THIRD
AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
THIS THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
is made as of the 1st day of August, 1996, by and between XXXXXXX
INDUSTRIES, INC., a Michigan corporation, of Plymouth, Michigan
(herein called "Company") and COMERICA BANK, a Michigan banking
corporation, of Detroit, Michigan, successor by merger to
Manufacturers Bank, N.A., a national banking association formerly
known as Manufacturers National Bank of Detroit (herein called
the "Bank").
WHEREAS, Company, Bank (individually and in its capacity as
agent for the banks), and Bank of America Illinois ("Exiting
Bank") entered into a Second Amended and Restated Revolving
Credit Loan Agreement dated as of September 8, 1992 (as amended
or otherwise modified, herein called the "Prior Credit
Agreement");
WHEREAS, Exiting Bank assigned 100% of its interest in the
Prior Credit Agreement to Bank on July 31, 1996; and
WHEREAS, Company and the Bank desire to amend the Prior
Credit Agreement and restate the Prior Credit Agreement in its
entirety;
NOW, THEREFORE, the Prior Credit Agreement is hereby amended
and restated in its entirety as follows:
WITNESSETH:
1. DEFINITIONS
1.1 In addition to the terms defined elsewhere in this
Agreement, the following terms will have the following meanings:
"Advance" shall mean a borrowing requested by Company and
made by Bank under this Agreement and shall include a Eurodollar-
based Advance, and a Prime-based Advance.
"Alternate Base Rate shall mean for any day one percent (1%)
per annum above the Federal Funds Effective Rate in effect on
such day.
"Applicable Interest Rate" shall mean the Eurodollar-based
Rate, or the Prime-based Rate as selected by Company from time to
time subject to the terms and conditions of this Agreement.
"Business Day", as used herein, shall mean any day except a
Saturday, Sunday or other day on which banks in Detroit,
Michigan, or New York City, New York are authorized or required
by law to close.
"Capital Stock" means, with respect to any person, any and
all shares, share capital, interests, participations, warrants,
options or other equivalents (however designated) of capital
stock of a corporation and any and all equivalent ownership
interests in a person (other than a corporation), in each case
whether now outstanding or hereafter issued.
"Consolidated", as used herein, shall include all of
Company's Subsidiaries. "Subsidiary", as used herein, shall be a
corporation or other business entity of which more than fifty
percent (50%) of the outstanding voting stock or interest is
owned, either directly or indirectly, through one or more
intermediaries by Company.
"Consolidated Net Income" for any period means the Net
Income of Company and its consolidated Subsidiaries for such
period.
"Consolidated Tangible Net Worth" means, at any time, the
total of shareholders' equity (including capital stock,
additional paid-in capital and retained earnings after deducting
treasury stock) of the Company and its consolidated Subsidiaries
determined in accordance with generally accepted accounting
principles, less the sum of the total amount of any intangible
assets. Intangible assets shall include unamortized debt
discount and expense, unamortized deferred charges and goodwill.
"Current Market Rate" shall mean a per annum interest rate
equal to one-half percent (1/2%) above the rate reasonably
determined by Bank (based on quotations from established dealers)
to be in effect in the secondary market for United States
Treasury securities on the date of prepayment in an amount and
with a term to maturity comparable to such prepaid principal
installment.
"Environmental Laws" shall mean all federal, state and local
laws including statutes, regulations, ordinances, codes, rules,
and other governmental restrictions and requirements, relating to
environmental pollution, contamination or other impairment of any
nature, any hazardous or other toxic substances of any nature,
whether liquid, solid and/or gaseous, including smoke, vapor,
fumes, soot, acids, alkalis, chemicals, wastes, by-products, and
recycled materials. These Environmental Laws shall include but
not be limited to the Federal Solid Waste Disposal Act, the
Federal Clean Air Act, the Federal Clean Water Act, the Federal
Resource Conservation and Recovery Act of 1976, the Federal
Comprehensive Environmental Response, Compensation and Liability
Act of 1980, the Federal Superfund Amendments and Reauthorization
Act of 1986, regulations of the Environmental Protection Agency,
regulations of the Nuclear Regulatory Agency, regulations of any
state department of natural resources or state environmental
protection agency now or at any time hereafter in effect and
local health department ordinances.
"Eurocurrency Reserve Percentage" means, with respect to
each Eurodollar-Interest Period, a percentage equal to the daily
average during such Eurodollar-Interest Period of the percentages
in effect on each day of such Eurodollar-Interest Period, as
prescribed by the Board of Governors of the Federal Reserve
System (or any successor), for determining reserve requirements
applicable to "Eurocurrency liabilities" pursuant to Regulation D
or any other then applicable regulation of the Board of Governors
which prescribes reserve requirements applicable to "Eurocurrency
liabilities", as presently defined in Regulation D. For purposes
of this definition, any Eurodollar-based Advances hereunder shall
be deemed to be "Eurocurrency liabilities" as defined in
Regulation D.
"Eurodollar-based Advance" shall mean an Advance which bears
interest at the Eurodollar-based Rate.
"Eurodollar-based Rate" shall mean a per annum interest rate
which is one quarter of one percent (1/4%), plus the rate
(rounded upwards, if necessary, to the nearest 1/100 of 1%)
determined pursuant to the following formula:
Interbank Rate
----------------------
1-Eurocurrency Reserve
Percentage
"Eurodollar-Interest Period" shall mean an Interest Period
of one, two, three or six months as selected by Company pursuant
to Section 2.2 of this Agreement.
"Eurodollar Lending Office" shall mean Bank's office located
at One Detroit Center, 000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx or
such other branch of Bank, domestic or foreign, as it may
hereafter designate as its Eurodollar Lending Office by notice to
Company.
"Event of Default" shall mean any of the events of default
described in Section 8.
"Federal Funds Effective Rate" shall mean, for any day, a
fluctuating interest rate per annum equal to the weighted average
of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers,
as published for such day (or, if such day is not a Business Day,
for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day
which is a Business Day, the average of the quotations for such
day on such transactions received by Bank from three Federal
funds brokers of recognized standing selected by it, all as
conclusively determined by the Bank, such sum to be rounded
upward, if necessary, to the nearest whole multiple of 1/16th of
1%.
"Interbank Rate" means, with respect to each Eurodollar
Interest Period, the rate per annum at which Dollar deposits in
immediately available funds are offered to Bank two Banking Days
prior to the beginning of such Interest Period by major banks in
the interbank eurodollar market as at or about 10:00 a.m.,
Detroit time, for delivery on the first day of such Interest
Period, for the number of days comprised therein and in an amount
equal to the amount of the Eurodollar-based Advance to be
outstanding during such Interest Period.
"Interest Period" shall mean a Eurodollar-Interest Period
commencing on the day a Eurodollar-based Advance is made, or on
the effective date of an election of the Eurodollar-based Rate
made under Section 2.2, provided that:
(a) any Interest Period which would otherwise end on a day
which is not a Business Day shall be extended to the
next succeeding Business Day, except that if the next
succeeding Business Day falls in another calendar
month, the Interest Period shall end on the next
preceding Business Day and when an Interest Period
begins on a day which has no numerically corresponding
day in the calendar month during which such Interest
Period is to end, it shall end on the last Business Day
of such calendar month, and
(b) no Interest Period shall extend beyond the maturity
date set forth in the Note to which such Interest
Period is to be applied.
"Maturity Date" means April 1, 2001, as such date may be
extended from time to time pursuant to Section 2.8 hereof.
"Note Agreements" shall mean individually and together (i)
the Note Agreement dated June 12, 1986 between Aetna Insurance
Company and the Company and assigned on September 30, 1992 to the
Traveler's Insurance Company authorizing the issuance of the
Company's 8.80% senior notes due June 15, 2001, and (ii) the Note
Agreement dated August 15, 1991 between Massachusetts Mutual Life
Insurance Company and the Company authorizing the issuance of the
Company's 9.98% senior notes due August 15, 2006, in each case,
as in effect as of the date hereof and after giving effect to any
amendments permitted by Section 6.8 hereof after the date hereof.
"Net Income" of any person for any period means the net
income (loss) of such person for such period, determined in
accordance with generally accepted accounting principles
consistently applied.
"Prime Rate" shall mean the per annum interest rate
established by Bank as its prime rate for its borrowers as such
rate may vary from time to time, which rate is not necessarily
the lowest rate on loans made by Bank at any such time.
"Prime-based Advance" shall mean an advance which bears
interest at the Prime-based Rate.
"Prime-based Rate" shall mean at any time the per annum
interest rate which is the greater of the Prime Rate or the
Alternate Base Rate.
"Request for Advance" shall mean a Request for Advance
issued by Company under this Agreement in the form annexed to
this Agreement as Exhibit "B".
1.2 Unless otherwise defined or the context otherwise
requires, all financial and accounting terms shall be defined in
accordance with generally accepted accounting principles.
2. THE INDEBTEDNESS: Revolving Credit
2.1 The Bank agrees to lend to Company at any time and from
time to time from the effective date hereof until but not
including the Maturity Date, sums not to exceed TWELVE MILLION
DOLLARS ($12,000,000.00), in aggregate principal amount at any
one time outstanding. The borrowing hereunder shall be evidenced
by a Revolving Credit Note to Bank (herein called "Revolving
Credit Note") in form similar to that annexed hereto as Exhibit
"A" under which advances, repayments and readvances may be made,
subject to the terms and conditions of this Agreement.
2.2 The Revolving Credit Note shall mature on the Maturity
Date, and the respective Advances from time to time outstanding
thereunder shall bear interest at the Applicable Interest Rate.
At the time of each Advance, Company may select the Applicable
Interest Rate; provided, however, that interest shall be payable
at the Prime-based Rate in the event and so long as Company shall
not have elected another Applicable Interest Rate. Interest
shall be payable quarterly on the unpaid balance of the Prime-based
Advances from time to time outstanding on the last day of
each calendar quarter. Interest on each Eurodollar-based Advance
shall be payable on the last day of the Interest Period
applicable thereto and if such Interest Period is longer than
three months, interest shall be payable at intervals of three
months from the first day thereof. In the event and so long as
Company shall be in default under a Eurodollar-based Advance,
interest shall be payable at the greater of (i) 2% over the
Eurodollar-based Rate applicable thereto, or (ii) 2% over the
Prime-based Rate, until the Interest Period applicable thereto
shall expire, and thereafter the interest shall be payable at the
rate of 2% over the Prime-based Rate. In the event and so long
as Company shall be in default under a Prime-based Advance,
interest shall be payable at 2% over the Prime-based Rate.
2.3 Interest on Prime-based Advances and the facility fee
shall be computed on the basis of a 360 day year and assessed for
the actual number of days elapsed. Interest on Eurodollar-based
Advances shall be computed on the basis of a 360 day year and
assessed for the actual number of days of the Interest Period
applicable thereto but not including the last day thereof.
2.4 Bank shall not be obligated to make any Advance under
this Agreement unless Company shall have first filed with Bank a
Request for Advance executed by an authorized officer of Company.
Each Request for Advance shall set forth:
(a) the proposed date of Advance;
(b) whether the Advance is to be a Eurodollar-based Advance
or a Prime-based Advance, provided that at no time
shall more than five (5) Eurodollar-based Advances be
outstanding at any time;
(c) the principal amount of such Advance which, in the case
of a Eurodollar-based Advance shall be in an amount not
less than $1,500,000 or any $150,000 increment thereof
and in the case of a Prime-based Advance shall be in an
amount not less than $500,000 or any $100,000 increment
thereof; and
(d) in the case of a Eurodollar-based Advance, the duration
of the Interest Period applicable thereto.
2.5 Company may prepay all or part of the outstanding
balance of Prime-based Advances under the Revolving Credit Note
at any time. Company may prepay all or part of the outstanding
balance of Eurodollar-based Advances under the Revolving Credit
Note upon five (5) days written notice to Bank and upon payment
of a premium equal to the sum of the discounted net present
values of the interest payments that would otherwise be payable
on the principal amount (or part thereof) being prepaid, after
reducing each such interest payment by the amount of interest
that would be payable on its respective due date if such prepaid
principal (or part thereof) were re-invested at the Current
Market Rate therefor. The discount rate for the above
computation shall be the Current Market Rate. A certificate
shall be submitted by Bank to Company computing the prepayment
premium in the form annexed hereto as Exhibit "C" and shall be
presumed correct absent manifest error. Any prepayment made in
accordance with this Section shall be without premium, penalty or
prejudice to Company's right to reborrow under the terms of this
Agreement.
2.6 Company will give Bank prior notice in the form of the
Request for Advance not later than 11:00 a.m. (Detroit time) on
the date of any Prime-based Advance. Unless Bank's revolving
credit commitment shall have been suspended or terminated in
accordance with this Agreement, and subject to the terms and
conditions hereof, including but not limited to the submission of
an executed Request for a Prime-based Advance by Company without
exceptions noted to the compliance certification therein, Bank
shall make available to Company not later than 4:00 p.m. (Detroit
time) on such date the amount of such Prime-based Advance in
immediately available funds by credit to an account of Company
maintained with Bank or to such other account or third party as
Company may direct. In the case of a Eurodollar-based Advance
each Request for Advance shall be delivered to Bank by 11:00 a.m.
(Detroit time) three (3) Business Days prior to the proposed date
of Advance. A Request for Advance, once delivered to Bank, shall
not be revocable by Company.
2.7 The Company agrees to pay to the Bank a facility fee
for the period from the date hereof to but excluding the Maturity
Date (as such date may be extended pursuant to Section 2.8
hereof) in an amount equal to 0.125% per annum of the maximum
amount of Bank's commitment (whether used or unused) in effect
from time to time hereunder. Such facility fee shall be payable
quarterly in arrears on the first day of each calendar quarter
(in respect of the prior calendar quarter) commencing on October
1, 1996, and on the Maturity Date for any period then ending for
which such facility fee shall not have been theretofore paid.
The facility fee shall be computed on a daily basis for the
actual number of days elapsed on the basis of a year of 360 days.
2.8 Provided that no Event of Default has occurred and is
continuing, the Company may by written notice to the Bank (which
notice shall be irrevocable and which shall not be deemed
effective unless actually received by the Bank) on or before
February 1 of each year, beginning February 1, 1999 but not
before January 1 of each such year, request that the Bank extend
the then applicable Maturity Date to a date that is one year
later than the Maturity Date then in effect. On or before March 1
of each year in which the Company has delivered an extension
request, Bank shall have the right, in its sole and absolute
discretion, to deliver a written notice to the Company consenting
to or rejecting the requested extension. If Bank has not given
such notice to the Company by March 1 of such year, Bank shall be
deemed not to have consented to such extension. If Bank consents
to the extension request the Maturity Date shall be so extended
for an additional one year period, the term Maturity Date shall
mean such extended date and the Bank shall promptly notify the
Company in writing that such extension has occurred. If Bank
decides not to extend the Maturity Date, the Bank's commitment to
make Advances hereunder shall terminate on the Maturity Date then
in effect, and the Bank shall promptly notify Company thereof.
2.9 The proceeds of the Revolving Credit Note are to be
applied first to repay the present indebtedness, if any, of
Company to the Bank and the Exiting Bank outstanding under the
Prior Credit Agreement (including costs under Section 2.5
thereof), upon execution of this Agreement, and then for working
capital and general corporate purposes.
3. CONDITIONS
3.1 Company agrees to furnish Bank prior to the initial
borrowing under this Agreement, in form to be satisfactory to
Bank, with (i) an opinion of Company's counsel with respect to
the legal matters referred to in Sections 4.1 through 4.3 hereof;
(ii) certified copies of resolutions of the Board of Directors of
Company evidencing approval of the borrowing hereunder; (iii)
certified copies of Company's Articles of Incorporation and
Bylaws; and (iv) a certificate of good standing from the state of
Company's incorporation.
4. REPRESENTATIONS AND WARRANTIES
Company represents and warrants and such representations and
warranties shall be deemed to be continuing representations and
warranties during the entire life of this Agreement:
4.1 It is a corporation duly organized and existing in good
standing under the laws of the State of Michigan; it is duly
qualified and authorized to do business as a foreign corporation
in each jurisdiction where the character of its assets or the
nature of its activities makes such qualification necessary,
except where such failure to qualify will not have a material
adverse effect on the Company; execution, delivery and
performance of this Agreement, and any other documents and
instruments required under this Agreement, and the issuance of
the Revolving Credit Note (Revolving Credit Note herein sometimes
called "Note") by Company are within its corporate powers, have
been duly authorized, are not in contravention of law or the
terms of Company's Articles of Incorporation or Bylaws, and do
not require the consent or approval of any governmental body,
agency or authority; and this Agreement and any other documents
and instruments required under this Agreement, when issued and
delivered under this Agreement, will be valid and binding in
accordance with their terms.
4.2 The execution, delivery and performance of this
Agreement and any other documents and instruments required under
this Agreement, and the issuance of the Note by Company, are not
in contravention of the unwaived terms of any indenture,
agreement or undertaking to which Company is a party or by which
it is bound.
4.3 No litigation or other proceeding before any court or
administrative agency is pending, or to the knowledge of the
officers of Company is threatened against Company or any
Subsidiary, the outcome of which could materially impair
Company's consolidated financial condition or its ability to
carry on its business.
4.4 There are no security interests in, liens, mortgages,
or other encumbrances on any of Company's or Subsidiary's assets,
except as permitted in Section 6.6 of this Agreement.
4.5 There exists no default under the provisions of any
instrument evidencing any permitted debt or of any agreement
relating thereto, except where such default would not have a
material adverse effect on the Company and its Subsidiaries taken
as a whole.
4.6 Company does not maintain or contribute to any employee
pension benefit plan subject to title IV of the "Employee
Retirement Income Security Act of 1974" (herein called "ERISA")
except the plans set forth in Exhibit "D" annexed hereto. (herein
called "Pension Plan"). The "unfunded past service liability" of
the Pension Plan unless unknown, as of January 1, 1995, is as set
forth in Exhibit "D" and there is no accumulated funding
deficiency within the meaning of ERISA, or any existing liability
with respect to the Pension Plan owed to the Pension Benefit
Guaranty Corporation or any successor thereto.
4.7 The consolidated balance sheet and operating statement
of Company dated December 31, 1995, previously furnished Bank, is
substantially complete and correct and fairly presents the
consolidated financial condition of Company and the results of
its consolidated operations; since said date there has been no
material adverse change in the consolidated financial condition
of Company; to the knowledge of Company's officers, neither
Company nor its Subsidiaries has any contingent obligations
(including any liability for taxes) not disclosed by or reserved
against in said balance sheet, and at the present time there are
no unrealized or anticipated losses which would constitute an
event of default in the covenants hereunder from any present
commitment of Company or Subsidiaries.
4.8 All tax returns and tax reports of Company and its
Subsidiaries required by law to be filed have been duly filed or
extensions obtained, and all taxes, assessments and other
governmental charges or levies (other than those presently
payable without penalty and those currently being contested in
good faith) upon Company and its Subsidiaries (or any of its or
their properties) which are due and payable have been paid. The
charges, accruals and reserves on the books of Company and its
Subsidiaries in respect of the Federal income tax for all periods
are adequate in the opinion of Company.
4.9 Company and its Subsidiaries are, in the conduct of
their business, in compliance in all material respects with all
applicable federal, state or local laws, statutes, ordinances and
regulations, the enforcement of which, if they were not in
compliance, would have a material adverse effect on their
business or the value of their property or assets, taken as a
whole. Company and its Subsidiaries have all approvals,
authorizations, consents, licenses, orders and other permits of
all governmental agencies and authorities, whether federal, state
or local, required to permit the operation of their business as
presently conducted, except such approvals, authorizations,
consents, licenses, orders and other permits with respect to
which the failure to have can be cured without having an adverse
effect on the operation of their business taken as a whole.
4.10 No representation or warranty by Company in this
Agreement, nor any written statement or certificate (including
financial statements) furnished or to be furnished to Bank
pursuant hereto contains or will contain any materially untrue
statement of any fact or omits or will omit to state a fact
necessary to make such representation, warranty, statement or
certificate not misleading.
4.11 Except as disclosed on Exhibit "E" hereto, neither
Company nor any Subsidiary is a party to any litigation or
administrative proceeding, nor so far as is known by Company is
any litigation or administrative proceeding threatened against
Company or any Subsidiary, which in either case (A) asserts or
alleges that Company or any Subsidiary violated Environmental
Laws (as defined herein) (B) asserts or alleges that Company or
any Subsidiary is required to clean up, remove, or take remedial
or other response action due to the disposal, depositing,
discharge, leaking or other release of any hazardous substances
or materials, (C) asserts or alleges that Company or any
Subsidiary is required to pay all or a portion of the cost of any
past, present, or future cleanup, removal or remedial or other
response action which arises out of or is related to the
disposal, depositing, discharge, leaking or other release of any
hazardous substances or materials by Company or any Subsidiary,
except for such matters which, individually or in the aggregate,
would not have a material adverse effect on the financial
condition or business of the Company and its Subsidiaries, taken
as a whole.
4.12 To the best knowledge of Company, there are no
conditions existing as of the date hereof which (A) would subject
Company or any Subsidiary to damages, penalties, injunction
relief or cleanup costs under any applicable Environmental Laws
or which require or are likely to require cleanup, removal,
remedial action or other response pursuant to applicable
Environmental Laws by Company or any Subsidiary and (B) would,
individually or in the aggregate, have a material adverse effect
upon the Company and its Subsidiaries, taken as a whole.
4.13 Except as disclosed on Exhibit E hereto, neither
Company nor any Subsidiary is subject to any judgment, decree,
order or citation related to or arising out of applicable
Environmental Laws and to the best knowledge of the Company,
neither Company nor any Subsidiary has been named or listed as a
potentially responsible party by any governmental body or agency
in a matter arising under any applicable Environmental Laws,
except for such matters which, individually or in the aggregate,
would not have a material adverse effect on the financial
condition or business of the Company and its Subsidiaries, taken
as a whole.
5. AFFIRMATIVE COVENANTS
Company covenants and agrees that it will, so long as Bank
is committed to make any Advances under this Agreement and
thereafter so long as any indebtedness remains outstanding under
this Agreement:
5.1 Furnish to Bank:
(a) within one hundred twenty (120) days after and as of
the end of each of Company's fiscal years, the
following:
(i) a detailed audit report of Company prepared on a
consolidated basis and certified to by independent
certified public accountants reasonably
satisfactory to Bank, together with a
consolidating balance sheet and statement of
profit and loss of Company certified by an
authorized officer of Company;
(ii) the annual report of Company;
(iii) copy of the SEC Form 10K report; and
(iv) copy of the proxy statement sent by Company to
stockholders;
(b) within forty five (45) days after and as of the end of
each quarter, except the last quarter of each fiscal
year, the following:
(i) a copy of Company's consolidated balance sheet and
related statement of income for such quarter,
certified (subject to year-end audit adjustments)
by an officer of Company; together with a
certification by an officer of Company (a) to the
effect that there has been no Event of Default
under this Agreement and that the representations
and warranties set forth in this Agreement are
true as of the date of such certification, and (b)
stating in reasonable detail the information and
calculations necessary to establish compliance
with the provisions of Sections 5.2, 5.3, 5.4 and
6.1 hereof; and
(ii) a copy of the SEC Form 10Q report;
(c) promptly, and in form to be reasonably satisfactory to
Bank, such other information as Bank may reasonably
request from time to time.
5.2 Maintain a current ratio of not less than 1.5 to 1.0.
"Current ratio" means the ratio of consolidated current assets to
consolidated current liabilities; provided, however, that in such
computation all prepaid items shall be excluded from consolidated
current assets and any amounts outstanding under the Revolving
Credit Note shall be excluded from consolidated current
liabilities.
5.3 Maintain at all times a Consolidated Tangible Net Worth
of not less than $80,162,000, plus an amount equal to 50% of the
net cash proceeds of the issuance of Capital Stock of the Company
received during each fiscal quarter ending on or after June 30,
1996.
5.4 Maintain, as of the end of each fiscal quarter, a fixed
charge coverage ratio of not less than 2.0 to 1 as of the end of
each fiscal quarter. "Fixed charge coverage ratio" shall mean the
ratio of (a) Consolidated Net Income (excluding any FASB 106
adjustment) during the one year period ending on the last day of
such quarter, plus depreciation and other non-cash charges to
income plus interest expense and rentals paid on operating and
capital leases during such year, to (b) the sum of (i) interest
expense and rentals paid on operating and capital leases during
such year plus (ii) the total of all principal payments due under
loan obligations (excluding balloon maturities) and capitalized
leases of Company and Subsidiaries falling due in the one year
following the end of such fiscal quarter.
5.5 Pay and discharge and cause each Subsidiary to pay and
discharge all taxes and other governmental charges and all
contractual obligations calling for the payment of money, before
the same shall become overdue, unless and to the extent only that
such payment is being contested in good faith.
5.6 Maintain and cause each Subsidiary to maintain
insurance coverage on its physical assets and against other
business risks in such amount and of such types as are
customarily carried by companies similar in size and nature, and
in the event of acquisition of additional property, real or
personal, or of incurrence of additional risks of any nature,
increase such insurance coverage in such manner and to such
extent as prudent business judgment and present practice would
dictate.
5.7 Permit Bank, through its authorized attorneys,
accountants, and representatives, to examine Company's and
Subsidiaries' books, accounts, records, ledgers and assets of
every kind and description at all reasonable times upon oral or
written request of Bank.
5.8 Promptly notify Bank of any condition or event which
constitutes or with the running of time and/or the giving of
notice would constitute a default under this Agreement, and
promptly inform Bank of any material adverse change in Company's
or Subsidiaries' financial condition.
5.9 Maintain and cause each Subsidiary to maintain in good
standing all material licenses required by the states in which
they own and operate assets or carry on their business, or any
agency of such states, or other governmental authority that may
be necessary or required for Company or Subsidiaries to carry on
their general business objects and purposes.
5.10 Comply and cause each Subsidiary to comply with all
material requirements imposed by ERISA as presently in effect or
hereafter promulgated including, but not limited to, the minimum
funding requirements of any Pension Plan.
5.11 Promptly notify Bank upon the knowledge of Company or
any Subsidiary of the occurrence thereof of any of the following
events:
(a) the termination of any Pension Plan pursuant to
Subtitle C of Title IV of ERISA or otherwise;
(b) the appointment of a trustee by a United States
District Court to administer any Pension Plan;
(c) the commencement by the Pension Benefit Guaranty
Corporation, or any successor thereto of any proceeding
to terminate any Pension Plan;
(d) the failure of any Pension Plan to satisfy the minimum
funding requirements for any plan year as established
in Section 412 of the Internal Revenue Code of 1954, as
amended;
(e) the withdrawal of the Company or any Subsidiary from
any Pension Plan;
(f) those reportable events designated in 29 CFR 2615 with
respect to which the 30 day notice requirement in ERISA
Section 4043 (a) is not waived; or
(g) the entrance, maintenance, or contribution of Company
or any Subsidiary to an employee pension plan that is
subject to Title IV of ERISA, except any Pension Plan
heretofore described.
6. NEGATIVE COVENANTS
Company covenants and agrees that so long as Bank is
committed to make any Advances under this Agreement and
thereafter so long as any indebtedness remains outstanding under
this Agreement, it will not, without the prior written consent of
Bank:
6.1 Allow its consolidated total liabilities to exceed One
Hundred Fifty percent (150%) of its Consolidated Tangible Net
Worth.
6.2 Purchase, acquire or redeem, or allow any Subsidiary to
purchase, acquire or redeem any of their capital stock or make
any material change in their capital structure or general
business objects or purpose.
6.3 Enter into or allow any Subsidiary to enter into any
merger or consolidation or sell, lease, transfer, or dispose of
all, substantially all, or any material part of their assets,
except: (a) in the ordinary course of their business; and (b)
sale, lease, transfer, or disposal of Subsidiaries' assets which,
on a consolidated basis, do not constitute a material part of the
consolidated assets.
6.4 Guarantee, endorse, or otherwise become secondarily
liable, or allow any Subsidiary to guaranty, endorse, or
otherwise become secondarily liable, for or upon the obligations
of others, except:
(a) by endorsement for deposit in the ordinary course of
business;
(b) the guarantee, endorsement, or secondary liability of
Company on any indebtedness or other obligation of any
Subsidiary in an aggregate amount for all such
indebtedness or obligations at any time outstanding not
to exceed Ten Million Dollars ($10,000,000); and
(c) the guarantee, endorsement, or secondary liability of
Company on any indebtedness or other obligation of any
employee of Company incurred to finance relocation of
such employee, in an aggregate amount for all such
indebtedness or obligations at any time outstanding not
to exceed Seven Hundred Fifty Thousand Dollars
($750,000), provided that no individual indebtedness or
obligation guaranteed by Company shall exceed One
Hundred Fifty Thousand Dollars ($150,000).
6.5 Purchase or otherwise acquire or become obligated for
the purchase of, or allow any Subsidiary to purchase or become
obligated for the purchase of, all or substantially all of the
assets or business interests of any person, firm or corporation
or any shares of stock of any corporation, trusteeship or
association or in any other manner effectuate or attempt to
effectuate an expansion of present business by acquisition,
except for the purchase or acquisition or obligation to purchase
or acquire assets, business interests, or stock which, in the
aggregate over the term of this Agreement, shall not exceed
twenty-five percent (25%) of the Consolidated Tangible Net Worth
at the time of the last such obligation to purchase or acquire.
6.6 Affirmatively pledge or mortgage, or allow any
Subsidiary to pledge or mortgage, any of their assets, whether
now owned or hereafter acquired, or create, suffer or permit to
exist any lien, security interest in, or encumbrance thereon,
except:
(a) liens in favor of Bank; or
(b) the liens, security interests, or charges or other
encumbrances permitted in Exhibit "F" hereto;
6.7 Become or remain obligated for any indebtedness for
borrowed money, or for any indebtedness incurred in connection
with the acquisition of any property, real or personal, tangible
or intangible, except:
(a) indebtedness to Bank under this Agreement and any other
indebtedness to Bank;
(b) current unsecured trade, utility or non-extraordinary
accounts payable arising in the ordinary course of
Company's business;
(c) indebtedness outstanding under the Note Agreements;
(d) indebtedness owing to other financial institutions not
to exceed Ten Million Dollars ($10,000,000.00) in
aggregate principal amount at any one time outstanding.
6.8 Prepayment under or Amendment of Note Agreements.
(a) Make no prepayment otherwise permitted under the Note
Agreements unless, both before and immediately after
giving effect to any such prepayment, no Event of
Default has occurred is continuing or would occur after
giving effect thereto which would provide the holders
of the Note Agreements with any greater or more
favorable rights than those granted to the Bank in this
Agreement.
(b) Amend, modify or otherwise alter (or suffer to be
amended, modified or altered) any of the following
terms or conditions of the Note Agreements, or either
of them, without the prior written approval the Bank:
(i) any increase in the original principal amount
thereof or the amount of any scheduled principal
payments, or (ii) other changes in repayment terms, or
any shortening of the original amortization thereof, or
(iii) any changes in the default or remedial provisions
thereof.
Upon any amendments, modifications or alterations of
the Note Agreements, or either of them, Company shall
promptly (but no later than five (5) days following the
effective date thereof) notify the Bank of the
occurrence thereof, by furnishing Bank with copies of
all such amendments modifications or alterations. If
the Bank shall determine, in its sole discretion, that
any such amendment, modification or alteration contains
any new covenant, or makes any existing covenant in the
Note Agreements, or either of them, more restrictive
than the covenants contained in this Agreement, Company
shall forthwith upon demand by the Bank enter into such
amendments or modifications of this Agreement as
reasonably determined by the Bank to be necessary to
make this Agreement (and the covenants contained
herein) at least as restrictive as such amended Note
Agreements.
7. ENVIRONMENTAL PROVISIONS
7.1 Company shall comply, and shall cause its Subsidiaries
to comply, in all material respects with all applicable
Environmental Laws.
7.2 Company shall provide to Bank, promptly upon receipt,
copies of any correspondence, notice, pleading, citation,
indictment, complaint, order, decree, or other document from any
source asserting or alleging a circumstance or condition which
requires or may require a financial contribution by Company or
any Subsidiary or a cleanup, removal, remedial action, or other
response by or on the part of Company or any Subsidiary under
applicable Environmental Laws or which seeks damages or civil,
criminal or punitive penalties from Company or any Subsidiary for
an alleged violation of Environmental Laws, provided that such
financial contribution, action, response, damages or penalties
(A) would have reasonable prospects for being successfully
asserted against Company or any Subsidiary (as determined by the
Company in good faith) and (B), if imposed against Company or any
Subsidiary, would have a material adverse effect upon Company and
its Subsidiaries, taken as a whole.
7.3 Company shall promptly notify Bank in writing as soon
as Company becomes aware of any condition or circumstance which
makes the environmental warranties contained in this Agreement
incomplete or inaccurate in any material respect as of any date.
7.4 Company hereby indemnifies, saves and holds Bank and
any of its past, present and future officers, directors,
shareholders, employees, representatives and consultants harmless
from any and all loss, damages, suits, penalties, costs,
liabilities and expenses (including but not limited to reasonable
investigation, environmental audit(s), and legal expenses)
arising out of any claim, loss or damage under any applicable
Environmental Laws, caused by or in any way related to any
property owned or operated by Company or any Subsidiary;
provided, however, that the foregoing indemnification shall not
be applicable when arising from events or conditions occurring
while Bank is in sole possession (subject to the rights of any
creditors of Company) of the property. In no event shall Company
be liable hereunder for any loss, damages, suits, penalties,
costs, liabilities or expenses arising from any act of gross
negligence or willful misconduct of Bank, or its agents or
employees.
8. DEFAULTS
8.1 Upon non-payment of the principal outstanding under the
terms of this Agreement or the Note when due in accordance with
the terms thereof or upon non-payment of the interest or fees
outstanding under the terms of this Agreement or the Note when
due in accordance with terms thereof and continuance of such
default for a period of three (3) days, the Note shall
automatically become immediately due and payable, and Bank's
commitments to make further advances under this Agreement shall
automatically terminate.
8.2 Upon occurrence of any of the following events of
default:
(a) default in the observance or performance of any of the
conditions, covenants or agreements of Company set
forth in Sections 2.7, 5.2, 5.3, 5.4, 5.7, 5.8, 5.11,
6.1 through 6.8, inclusive, and 10.8 hereof;
(b) default in the observance or performance of any of the
other conditions, covenants or agreements of Company
herein set forth and continuance thereof for thirty
(30) days after notice to Company by Bank;
(c) any representation or warranty made by Company herein
or in any instrument submitted pursuant hereto proves
untrue in any material respect;
(d) default in the observance or performance of any other
obligation of Company to the Bank under any other
document, instrument or agreement, and the continuance
thereof beyond any applicable period of grace or cure;
(e) default in the payment of any other obligation of
Company or any Subsidiary for borrowed money, or in the
observance or performance of any conditions, covenants
or agreements related or given with respect thereto;
(f) judgments for the payment of money in excess of the sum
of One Million Dollars ($1,000,000.00) in the aggregate
shall be rendered against Company or any Subsidiaries,
and such judgments shall remain unpaid, unvacated,
unbonded or unstayed by appeal or otherwise for a
period of sixty (60) consecutive days from the date of
its/their entry;
(g) the occurrence of any "reportable event", as defined in
the Employee Retirement Income Security Act of 1974 and
any amendments thereto, which is determined to
constitute grounds for termination by the Pension
Benefit Guaranty Corporation of any employee pension
benefit plan maintained by or on behalf of the Company
or any Subsidiary for the benefit of any of its
employees or for the appointment by the appropriate
United States District Court of a trustee to administer
such plan and such reportable event is not corrected
and such determination is not revoked within 30 days
after notice thereof has been given to the plan
administrator or the Company or any Subsidiary; or the
institution of proceedings by the Pension Benefit
Guaranty Corporation to terminate any such employee
benefit pension plan or to appoint a trustee to
administer such plan; or the appointment of a trustee
by the appropriate United States District Court to
administer any such employee benefit pension plan;
then, or at any time thereafter, unless such default is remedied,
Bank may give notice to Company declaring all outstanding
indebtedness hereunder to be due and payable, whereupon all
indebtedness then outstanding hereunder shall immediately become
due and payable without further notice and demand, as the case
may be, and Bank's commitments to make further Advances under
this Agreement shall automatically terminate.
8.3 If a creditors' committee shall have been appointed for
the business of Company or any Subsidiary; or if Company or any
Subsidiary shall have made a general assignment for the benefit
of creditors or shall have been adjudicated bankrupt, or shall
have filed a voluntary petition in bankruptcy or for
reorganization or to effect a plan or arrangement with creditors;
or shall file an answer to a creditor's petition or other
petition filed against it, admitting the material allegations
thereof for an adjudication in bankruptcy or for reorganization;
or shall have applied for or permitted the appointment of a
receiver or trustee or custodian for any of its property or
assets; or such receiver, trustee or custodian shall have been
appointed for any of its property or assets (otherwise than upon
application or consent of Company or any Subsidiary) and such
receiver, trustee, or custodian so appointed shall not have been
discharged within forty-five (45) days after the date of his
appointment; or if an order shall be entered and shall not be
dismissed or stayed within forty-five (45) days from its entry,
approving any petition for reorganization of Company or any
Subsidiary; then the Note and all indebtedness then outstanding
hereunder shall automatically become immediately due and payable,
and Bank's commitments to make further Advances under this
Agreement shall automatically terminate.
9. PAYMENTS
9.1 All payments by Company of principal of, or interest
on, the Note, and of the facility fee, shall be made on the date
specified for payment under this Agreement not later than 12:00
Noon (Detroit time) in immediately available funds by Company to
Bank.
9.2 Whenever any payment to be made shall otherwise be due
on a day which is not a Business Day such payment shall be made
on the next succeeding Business Day and such extension of time
shall be included in computing interest, if any, in connection
with such payment.
9.3 Company hereby authorizes Bank to charge its general
deposit account, if any, maintained with Bank for the amount of
any principal, interest, facility fee, or Bank's fee when the
same becomes due and payable under the terms of this Agreement or
the Note.
9.4 In addition to and not in limitation of any rights of
Bank or other holder of the Note under applicable law, Bank and
other such holder shall, upon non-payment when due of any of the
Note and without notice or demand of any kind, have the right to
appropriate and apply to the payment of the Note owing to it
(whether or not then due) any and all balances, credits,
deposits, accounts or moneys of Company then or thereafter with
Bank or other holder.
10. MISCELLANEOUS
10.1 This Agreement shall be binding upon and shall inure to
the benefit of Company and Bank and their respective successors
and assigns, except that the credit provided for under this
Agreement and no part thereof and no obligation of Bank hereunder
shall be assignable or otherwise transferable by Company.
10.2 Company, upon thirty (30) days' prior notice to the
Bank, may from time to time permanently reduce the credit
provided for under this Agreement by ONE MILLION DOLLARS
($1,000,000.00) in aggregate or any larger integral multiple
thereof in aggregate. Any such reduction shall reduce the
commitment of the Bank to lend under Section 2.1, and on the date
of reduction, reduce the amount of the revolving credit, subject
to payment (to the date of such reduction) of the facility fee
under Section 2.7.
10.3 If with respect to any Interest Period Bank determines
that, by reason of circumstances affecting the foreign exchange
and interbank markets generally, deposits in Eurodollars in the
applicable amounts are not being offered to Bank for such
Interest Period, then Bank shall forthwith give notice thereof to
the Company. Thereafter until Bank notifies Company that such
circumstances no longer exist, the obligation of Bank to make
Eurodollar-based Advances shall be suspended.
10.4 If, after the date hereof, the introduction of, or any
change in, any applicable law, rule or regulation or in the
interpretation or administration thereof by any governmental
authority charged with the interpretation or administration
thereof, or compliance by Bank (or its Eurodollar Lending Office)
with any request or directive (whether or not having the force of
law) of any such authority, shall make it unlawful or impossible
for the Bank (or its Eurodollar Lending Office) to honor its
obligations hereunder to make or maintain any advance or the
indebtedness under any Note with interest at the Eurodollar-based
Rate, Bank shall forthwith give notice thereof to Company.
Thereafter the obligation of Bank to make or maintain Eurodollar-
based Advances shall be suspended and thereafter Company may
select as Applicable Interest Rates only those which remain
available.
10.5 If the adoption after the date hereof, or any change
after the date hereof in, any applicable law, rule or regulation
of any governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof, or
compliance by Bank (or their Eurodollar Lending Office) with any
request or directive (whether or not having the force of law)
made by any such authority, central bank or comparable agency
after the date hereof (a "Change in Law"):
(a) shall subject Bank (or its Eurodollar Lending Office)
to any tax, duty or other charge with respect to any
advance or the Note or shall change the basis of
taxation of payments to Bank (or its Eurodollar Lending
Office) of the principal of or interest on any advance
or the Note (except for changes in the rate of tax on
the overall net income of Bank or its Eurodollar
Lending Office imposed by the jurisdiction in which
said Bank's principal executive office or Eurodollar
Lending Office is located); or
(b) shall impose, modify or deem applicable any reserve
(including, without limitation, any imposed by the
Board of Governors of the Federal Reserve System)
special deposit or similar requirement against assets
of, deposits with or for the account of, or credit
extended by Bank (or its Eurodollar Lending Office) or
shall impose on Bank (or its Eurodollar Lending Office)
or the foreign exchange and interbank markets any other
condition affecting any advance or the Note;
and the result of any of the foregoing is to increase the cost to
Bank of maintaining any part of the indebtedness hereunder or to
reduce the amount of any sum received or receivable by Bank under
the Note, by an amount deemed by Bank to be material, then Bank
shall promptly notify Company of such fact and demand
compensation therefor and, within fifteen days after demand by
Bank, Company agrees to pay to Bank such additional amount or
amounts as will compensate Bank for such increased cost or
reduction. Bank will promptly notify Company of any event of
which it has knowledge which will entitle Bank to compensation
pursuant to this Section. A certificate of Bank setting forth
the basis for determining such additional amount or amounts
necessary to compensate Bank shall be conclusively presumed to be
correct save for manifest error. Any further Eurodollar-based
Rate shall be automatically adjusted to compensate Bank for such
changes set forth above.
10.6 In the event that at any time after the date of this
Agreement any Change in Law shall, in the opinion of Bank,
require that the commitment of the Bank under this Agreement be
treated as an asset or otherwise be included for purposes of
calculating the appropriate amount of capital to be maintained by
the Bank or any corporation controlling the Bank (the "Parent
Corporation"), Bank shall notify Company. Company and Bank shall
thereafter negotiate in good faith an agreement to increase the
facility fee payable to Bank under this Agreement, which in the
opinion of Bank, will adequately compensate Bank for the costs
associated with such Change of Law. If such increase is approved
in writing by Company within thirty (30) days from the date of
the notice to Company from Bank, the facility fee payable by
Company under this Agreement shall, effective from the date of
such agreement, include the amount of such agreed increase. If
Company and Bank are unable to agree on such an increase within
thirty (30) days from the date of the notice to Company, Company
shall have the option, exercised by written notice to Bank within
forty-five (45) days from the date of the aforesaid notice to
Company from Bank, to terminate the commitment of Bank hereunder.
If (a) Company and Bank fail to agree on an increase in the
facility fee, or (b) Company fails to give timely notice that it
has elected to exercise its option to terminate the commitment as
set forth above, then the commitment shall automatically
terminate as of the last day of the aforesaid forty-five (45) day
period.
10.7 No delay or failure of Bank in exercising any right,
power or privilege hereunder shall affect such right, power or
privilege, nor shall any single or partial exercise thereof
preclude any further exercise thereof, or the exercise of any
other power, right or privilege. The rights of Bank under this
Agreement are cumulative and not exclusive of any right or
remedies which Bank would otherwise have.
10.8 If there is an event of default, Company shall pay all
out-of-pocket expenses incurred by the Bank (including fees and
disbursements of staff or outside counsel) in connection with
such event of default. Company shall indemnify Bank against any
transfer taxes, documentary taxes, assessments or charges made by
any governmental authority by reason of the execution and
delivery of this Agreement or the Note.
10.9 All notices with respect to this Agreement shall be
deemed to be completed (unless otherwise stated) upon mailing by
certified mail to the following:
To Company:
00000 Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
To Bank:
000 Xxxxxxxx Xxxxxx
XX 0000
0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: U.S. Banking Automotive Group
10.10 If any provision of this Agreement refers to any
action to be taken by any Person which such Person is prohibited
from taking, such provision shall be applicable whether such
action is taken directly or indirectly by such Person, whether or
not expressly specified in such provision.
10.11 Each covenant hereunder shall be given independent
effect (subject to any exceptions stated in such covenant) so
that if a particular action or condition is not permitted by any
such covenant (taking into account any such stated exception),
the fact that it would be permitted by any exception to, or would
be otherwise within the limitations of, another covenant shall
not avoid the occurrence of an Event of Default.
10.12 This Agreement and the Note shall be governed by, and
construed and enforced in accordance with, Michigan law.
10.13 This Agreement shall become effective upon the
execution hereof by Bank and Company. This Agreement may be
signed in any number of counterparts with the same effect as if
the signatures thereto and hereto were upon the same instrument.
WITNESS the due execution hereof as of the day and year
first above written.
COMERICA BANK XXXXXXX INDUSTRIES, INC.
By: By:
Its: Its:
EXHIBIT "A"
REVOLVING CREDIT NOTE
$12,000,000 Detroit, Michigan
August 1, 1996
On or before the Maturity Date (as defined in the Credit
Agreement) FOR VALUE RECEIVED, the undersigned, XXXXXXX
INDUSTRIES, INC., a Michigan corporation (herein called
"Company") promises to pay to the order of COMERICA BANK, a
Michigan banking corporation (herein called "Bank") at its main
office in Detroit, Michigan, the indebtedness or so much of the
sum of TWELVE MILLION DOLLARS ($12,000,000) as may from time to
time have been advanced and then be outstanding hereunder and
under a certain Third Amended and Restated Revolving Credit
Agreement by and among Company and Bank, dated August 1, 1996 (as
amended or otherwise modified from time to time, herein called
"Credit Agreement").
The indebtedness outstanding under this Note from time to
time shall bear interest at the Applicable Interest Rate. At the
time of each Advance Company may select the Applicable Interest
Rate; provided, however, that interest shall be payable at the
Prime-based Rate in the event and so long as Company shall not
have elected another Applicable Interest Rate. Interest shall be
payable quarterly commencing on September 30, 1996, on the unpaid
balance of the Prime-based Advances from time to time
outstanding, and on the last day of each calendar quarter
thereafter. Interest on each Eurodollar-based Advance shall be
payable on the last day of the Interest Period applicable thereto
and if such Interest Period is longer than three months, interest
shall be payable at intervals of three months from the first day
thereof. In the event and so long as Company shall be in default
under a Eurodollar-based Advance, interest shall be payable at
the greater of (i) 2% over the Eurodollar-based Rate applicable
thereto, or (ii) 2% over the Prime-based Rate, until the
Eurodollar-Interest Period applicable thereto shall expire, and
thereafter the interest shall be payable at the rate of 2% over
the Prime-based Rate. In the event and so long as Company shall
be in default under a Prime-based Advance, interest shall be
payable at 2% over the Prime-based Rate.
This Note evidences borrowing under, is subject to, contains
terms defined by, and may be matured under, the terms of the
Credit Agreement, to which-reference is hereby made. Company
grants Bank a lien on all property and assets, including deposits
and other credits of the Company, at any time in possession or
control of or owing by Bank for any purpose.
Company hereby waives presentment for payment, demand,
protest and notice of protest of this Note and agrees that no
obligation hereunder shall be discharged by reason of any
extension, indulgence, release, or forbearance granted by any
holder of this Note to any party now or hereafter liable hereon
or any present or subsequent owner of any property, real or
personal, which is now or hereafter security for this Note. Any
transferees of, or endorser, guarantor or surety paying this Note
in full shall succeed to all rights of Bank, and Bank shall be
under no further responsibility for the exercise thereof or the
loan evidenced hereby.
This Note has been issued pursuant to the Credit Agreement
in replacement and renewal of the notes dated September 8, 1992
previously issued by Company under the Prior Credit Agreement.
Nothing herein shall limit any right granted Bank by other
instrument or by law.
XXXXXXX INDUSTRIES, INC.
By:
Its:
EXHIBIT "B"
REQUEST FOR ADVANCE
TO: COMERICA BANK ("COMERICA")
The undersigned, XXXXXXX INDUSTRIES, INC., does hereby
request a(an) * Advance in the amount of
DOLLARS ($ ) against the Revolving
Credit Note dated August 1, 1996, of undersigned to Comerica in
the face amount of Twelve Million Dollars ($12,000,000.00). The
Interest Period for the requested Advance, if applicable, shall
be ** .
The proceeds of the initial advance shall be used as set
forth in the Agreement described below, and the remaining
advances shall be deposited to the Account No. of the
undersigned with Comerica.
Undersigned warrants that no condition or event has occurred
and is continuing which constitutes or, with the running of time
would constitute a default under that certain Third Amended and
Restated Revolving Credit Agreement dated August 1, 1996 by and
among undersigned and Comerica.
Dated this day of , 19 .
XXXXXXX INDUSTRIES, INC.
By:
Its:
* Insert, as applicable, "Prime-based", or "Eurodollar-based."
** Insert, as applicable, "one month", "two months", "three
months", or "six months".
EXHIBIT "C"
1. Average interest payments
under the Revolving Credit Note
(1/-- x 365/360) x ------% x $-----------) = $------
2. Average interest payments if
reinvested at Current Market Rate
(1/-- x Current Market Rate x $-----------) = $------
3. Difference in interest payments
(line 1 less line 2) $------
4. Net present value of annuity (from established
tables) with factors of remaining interest
payments and term at Current Market Rate $------
5. Prepayment premium (line 3 times line 4) $------
The Bank hereby certifies the computation of the prepayment
premium and demands payment thereof by Company pursuant to the
Note(s).
COMERICA BANK
By:
Its:
Dated: , 19
EXHIBIT "D"
Pension Plan
Unfunded (Overfunded)
Accrued Liability as of
Plan Name 1/1/95
1. Xxxxxxx Industries, Inc. Pension Plan $942,486
2. Retirement Plan for Bargaining Employees ($752,266)
of Xxxxxxx Industries, Inc., Litchfield
Operation
3. Retirement Plan for Bargaining Employees $474,600
of Xxxxxxx Industries, Inc., Edon Operation
4. Retirement Plan for Bargaining Employees $284,538
of Xxxxxxx Industries, Inc., Fremont Operation
5. Retirement Plan for Bargaining Employees of $ 11,919
Xxxxxxx Industries, Inc., Xxxx Operations
Multi-Employer Plans
6. I.A.M. National Pension fund (Benefit Plan B):
- Xxxxxxx Operation (See Note A, below) Unknown
7. National Industrial Group Pension Plan:
- Gladwin Operation (See Note A, below) Unknown
8. Central States, Southeast and Southwest Areas
Pension Plans (See Note B, below):
- Fremont Operation Unknown
- Gladwin Operation Unknown
- Litchfield Operation Unknown
Note A: The most recent annual reports we have on file for these
Plans appear to indicate that the market value of Plan assets
exceeds vested accrued liabilities.
Note B: The Company has seven drivers covered by this Plan.
EXHIBIT "E"
(Environmental Disclosures)
NONE
EXHIBIT "F"
Such lien, security interest or other charge or encumbrance
upon or with respect to the property rights or contract rights of
the Company or any Subsidiary arising in the ordinary course of
business, set forth as follows:
1. For taxes, assessments or governmental charges or
levies on property of the Company or any Subsidiary, if the same
shall not at the time be delinquent or thereafter can be paid
without penalty, or are being contested in good faith by
appropriate proceedings;
2. Imposed by law, such as carriers, warehousemen and
mechanics liens and liens arising out of judgment or awards
against the Company or any Subsidiary for sums not yet due or
with respect to which the Company or such Subsidiary at the time
shall currently be prosecuting an appeal or proceedings for
review and with respect to which it shall secure bond and a stay
of execution pending such appeal;
3. Arising out of pledges or deposits under workmen's
compensation laws, unemployment insurance, old age pensions, or
social security or retirement benefits, or similar legislation;
4. Arising out of good faith deposits in connection with
bids, tenders, contracts or leases or deposits to secure surety
and appeal bonds to which the Company or any Subsidiary is a
party, or other similar pledges or deposits made in the ordinary
course of business;
5. Out of easements, rights-of-way, restrictions and other
similar encumbrances in respect to real property not interfering
with the ordinary conduct of the business of the Company or any
Subsidiary;
6. Of lessors, on the property subject to the lease and
improvements thereto or thereon, as to which the Company or any
Subsidiary is the lessee;
7. Of conditional sale agreements or other purchase money
security interest given or retained to secure the purchase price
of any equipment, inventory or other personal property acquired
by the Company or any Subsidiary and used or useful in connection
with the Company's business, or of purchase money mortgages or
other liens on real property held by the Company or any
Subsidiary to secure the purchase price of such property;
provided, however, that the aggregate of leases, liens,
mortgages, and security interests shall not exceed Two Hundred
Fifty Thousand Dollars ($250,000.00) at any one time outstanding.
