EXHIBIT 4(d)
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
BETWEEN
EVEREST & JENNINGS, INC.
AND
THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED,
CHICAGO BRANCH
December 8, 1995
TABLE OF CONTENTS
Page
ARTICLE I - DEFINITIONS 2
Section 1.1 Terms Defined in this Agreement 2
Section 1.2 Accounting Terms; Financial Statements 7
ARTICLE II - LOANS 7
Section 2.1 Loans 7
Section 2.2 Method of Borrowing 8
Section 2.3 Notes 8
Section 2.4 Repayment, Prepayment 9
Section 2.5 Payments 10
Section 2.6 Extensions of Letter of Credit
Availability Date 11
ARTICLE III - INTEREST, FEES AND COSTS 11
Section 3.1 Interest 11
Section 3.2 Amendment Fee 11
Section 3.3 Letter of Credit Fee 11
Section 3.4 Commitment Fee 12
Section 3.5 Default Rate 12
Section 3.6 Computational Basis 12
Section 3.7 Certain Costs 12
Section 3.8 Increased Costs, etc 12
Section 3.9 Taxes 13
ARTICLE IV - REPRESENTATIONS AND WARRANTIES 14
Section 4.1 Organization, Standing, etc. 14
Section 4.2 Conflicting Agreements and Other Matters 15
Section 4.3 Due Execution, etc. 15
Section 4.4 Title to Properties 15
Section 4.5 Litigation, Proceedings, etc. 16
Section 4.6 Governmental Consents, etc. 16
Section 4.7 Financial Information 16
Section 4.8 ERISA 17
Section 4.9 Investment Company Act 17
ARTICLE V - COVENANTS 17
Section 5.1 Affirmative Covenants 17
Section 5.2 Negative Covenants. 20
Section 5.3 ---- 21
ARTICLE VI - CONDITIONS OF LENDING 21
Section 6.1 Effective Date 22
Section 6.2 Subsequent Loans 23
ARTICLE VII - DEFAULT AND REMEDIES 24
Section 7.1 Events of Default 24
Section 7.2 Remedies 26
ARTICLE VIII - MISCELLANEOUS 26
Section 8.1 Set-Off 26
Section 8.2 Costs, Expenses and Taxes 27
Section 8.3 No Waiver; Modifications in Writing;
Cumulative Remedies 27
Section 8.4 Assignment/Substitution 27
Section 8.5 Governing Law 28
Section 8.6 Submission to Jurisdiction; Venue;
Waiver of Jury Trial 28
Section 8.7 Severability 28
Section 8.8 Limitations on Bank Liability 28
Section 8.9 Notices 29
Section 8.10 Execution in Counterparts 30
Section 8.11 Entire Agreement 30
Schedule 1.1
Schedule 4.5
Exhibit A - Form of Amended and Restated Guarantee
Exhibit B - INTENTIONALLY OMITTED
Exhibit C - Form of Amended and Restated Promissory Note
Exhibit D - Amended and Restated Subordination Agreement
Exhibit E - Form of Officer's Financial Certificate
Exhibit F - Form of Officer's Certificate
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT, dated
as of December 8, 1995, between THE HONGKONG AND SHANGHAI BANKING
CORPORATION LIMITED, a banking company organized and existing under the
laws of Hong Kong, acting through its Chicago Branch (the "Bank") and
EVEREST & JENNINGS, INC., a California corporation (the "Borrower"), with
its principal place of business at 4203 Earth City Expressway, Earth City,
Missouri 63045.
WITNESSETH
WHEREAS, the Borrower and the Bank are party to that certain Revolving
Credit Agreement dated as of September 30, 1992 (as amended, supplemented
or otherwise modified from time to time prior to the date hereof, the
"Existing Agreement") pursuant to which the Bank agreed, subject to certain
conditions, to make available to the Borrower a revolving credit facility
in an aggregate principal amount not to exceed $10,000,000 at any one time
outstanding and agreed, subject to certain conditions, to issue letters of
credit for the account of the Borrower in an aggregate amount not to exceed
$6,000,000 at any one time outstanding;
WHEREAS, the Borrower has requested the Bank to extend the term of the
Existing Agreement, to increase the aggregate principal amount of the
revolving credit facility to an amount not to exceed $25,000,000 at any one
time outstanding (while retaining up to $6,000,000 of availability under
the letter of credit subfacility) and to amend and restate the terms and
provisions of the Existing Agreement;
WHEREAS, the proceeds of such extensions of credit shall be used to
provide working capital to the Borrower and for other general corporate
purposes;
WHEREAS, to induce the Bank to enter into this Agreement and to extend
the credit to the Borrower contemplated hereby, the Guarantor has agreed to
guarantee all obligations of the Borrower to Bank hereunder and BIL Far
East, BIL Securities and the Parent have agreed to subordinate payment by,
or on behalf of, the Borrower of all or any portion of the Subordinated
Indebtedness (as such term is defined in the Subordination Agreement) to
the payment to the Bank of the Senior Liabilities (as such term is defined
in the Subordination Agreement);
WHEREAS, the Bank is willing to extend the term of the Existing
Agreement, to increase the aggregate principal amount of the revolving
credit facility to an amount not to exceed $25,000,000 at any one time
outstanding and to amend and restate the terms and provisions of the
Existing Agreement, subject to the terms and conditions set forth in this
Agreement, the guarantee by Guarantor of all obligations of the Borrower to
the Bank hereunder and the subordination by BIL Far East, BIL Securities
and the Parent; and
WHEREAS, it is the intent of the parties hereto that the execution and
delivery of this amendment and restatement of the Existing Agreement shall
not effectuate a novation or extinguishment of the indebtedness outstanding
under the Existing Agreement, but rather as it pertains to the indebtedness
outstanding under the Existing Agreement, shall constitute an amendment and
restatement of certain of the terms governing the payment and performance
of such indebtedness;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties
hereto agree that from and after the Effective Date (as hereinafter
defined) the Existing Agreement shall be amended and restated in its
entirety as follows:
ARTICLE I - DEFINITIONS
Section 1.1 Terms Defined in this Agreement. When used herein the
following terms shall have the following respective meanings:
"Affiliate" of any person or entity shall mean (a) any other person or
entity which, directly or indirectly, is in control of, is controlled by,
or is under common control with, such person or entity or (b) any other
person who is a director or officer of (i) such person or entity, (ii) any
subsidiary of such person or entity or (iii) any person or entity described
in clause (a) above. For purposes of this definition, a person or entity
shall be deemed to be "controlled by" such other person or entity if such
other person or entity possesses, directly or indirectly, power either to
(i) vote 20% or more of the securities having ordinary voting power for the
election of directors of such first person or entity or (ii) direct or
cause the direction of the management and policies of such first person or
entity whether by contract or otherwise.
"Agreement" means this Amended and Restated Revolving Credit Agreement
as it may be amended, supplemented or otherwise modified from time to time
in accordance with the terms hereof.
"Available Amount" means, on any day, the excess, if any, of the
Maximum Facility Amount then applicable over the sum of the aggregate
principal amount of Cash Advances then outstanding and the aggregate Stated
Amount of all Letters of Credit issued and then outstanding.
"BIL Far East" means BIL (Far East Holdings) Limited, a Hong Kong
corporation and an Affiliate of the Guarantor.
"BIL Far East Note" means the revolving promissory note dated
September 30, 1993 issued, jointly and severally, by the Parent and the
Borrower in favor of BIL Far East in an original principal amount of
approximately $12,470,000, as replaced by the revolving promissory note
dated December 7, 1995 issued, jointly and severally, by the Parent and the
Borrower in favor of BIL Far East in an original principal amount of
$20,600,000 as such replacement note may be amended, modified, refunded,
replaced or supplemented from time to time hereafter.
"BIL Securities" means BIL Securities (Offshore) Limited, a New
Zealand corporation and an Affiliate of the Guarantor, with its business
office at 2802 Three Exchange Square, Central, Hong Kong and its registered
office at Level 9, CML Building, 22-24 Victoria Street, Wellington, New
Zealand.
"Bank's Address" means the address of the Bank specified in Section
8.9 hereof or such other address as the Bank may specify in a written
notice to the Borrower.
"Borrowing Date" shall have the meaning set forth in Section 2.2.
"Business Day" means any day other than a Saturday, Sunday or a day on
which the Bank is authorized or required by law to close in Chicago,
Illinois.
"Cash Advance" means an extension of credit made by the Bank in the
form of an advance of funds (i) prior to the Effective Date, pursuant to
the Existing Agreement to the extent such advance remains outstanding on
the Effective Date and (ii) on and after the Effective Date, pursuant to
Section 2.1 hereof.
"Cash Advance Repayment Date" means the earlier to occur of (i)
September 30, 1997, and (ii) such date to which the Obligations may be
accelerated hereunder.
"Change in Law" shall have the meaning set forth in Section 3.8.
"Dividend" shall have the meaning set forth in Section 5.2(g).
"Effective Date" shall have the meaning set forth in Section 6.1.
"Employee Benefit Plan" or "Plan" shall mean any "employee pension
benefit plan" as such term is defined in Section 3(2) of ERISA or an
"employee welfare benefit plan" as defined in Section 3(1) of ERISA, which
the Borrower or any affiliate of the Borrower maintains, to which the
Borrower or any such affiliate contributes, or under which the Borrower or
any such affiliate has any liability whether actual or contingent.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time.
"Event of Default" means any of the events or conditions listed in
Section 7.1.
"Existing Agreement" shall have the meaning set forth in the recitals
hereto.
"Guarantee" means the amended and restated guarantee, substantially in
the form of Exhibit A hereto, dated the Effective Date and issued by the
Guarantor for the benefit of the Bank.
"Guarantor" means Brierley Investments Limited, a New Zealand company.
"Guarantor Event of Default" has the meaning ascribed to such term in
the Guarantee.
"Guarantor Potential Event of Default" means any event or condition
which, with the giving of notice or passage of time or both, would
constitute a Guarantor Event of Default.
"Indebtedness" of any person means all obligations of such person (i)
for borrowed money or with respect to deposits or advances of any kind,
(ii) evidenced by bonds, debentures, notes or similar instruments, (iii)
upon which interest charges are customarily paid, (iv) under conditional
sale or title retention agreements relating to assets purchased by such
person, (v) issued or assumed as the deferred purchase price of property or
services (other than trade payables and payroll expenses incurred in the
ordinary course of business), (vi) all Indebtedness of others secured by
any Lien on assets owned or acquired by such person, (vii) all guarantees
by such person of Indebtedness of others, (viii) all capital lease
obligations of such person, and (ix) all obligations of such person, actual
or contingent, as an account party in respect of letters of credit and
bankers' acceptances, in any case whether primary, secondary, direct,
contingent, accrued, fixed or otherwise, heretofore, now or from time to
time hereafter owing, due or payable, however evidenced, created, incurred,
acquired or owing and however arising, whether under agreements providing
for the extension of credit, under other written or oral agreement, by
operation of law, or otherwise.
"Interest Payment Date" means (i) the last day of each Interest
Period, provided, however, if such date is not a Business Day, the Interest
Payment Date shall be the Business Day immediately following such day and
(ii) the Repayment Date.
"Interest Period" means the period commencing on the Effective Date
and ending on December 31, 1995 and, thereafter, each consecutive period
beginning on January 1, April 1, July 1 and October 1, as appropriate, and
ending on March 31, June 30, September 30 and December 31, respectively, of
such year.
"Letter of Credit" means any documentary or standby, as designated by
the Bank, letter of credit issued at the request, and for the account, of
the Borrower (i) prior to the Effective Date, pursuant to the Existing
Agreement, to the extent such letter of credit remains outstanding on the
Effective Date and (ii) on and after the Effective Date, pursuant to
Article II hereof, in either case in such form as may be agreed between the
Bank and the Borrower.
"Letter of Credit Availability Date" means the earlier to occur of (i)
September 30, 1997, or such date to which the Letter of Credit Availability
Date may, in the sole discretion of the Bank, be extended pursuant to
Section 2.6, and (ii) such date to which the Obligations may be accelerated
hereunder.
"Lien" shall mean with respect to any asset (a) any mortgage, deed of
trust, lien, pledge, encumbrance, charge or security interest in or on such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement relating to such
asset and (c) in the case of securities, any purchase option, call or
similar right of a third party with respect to such securities.
"Loan" or "Loans" shall mean any extension of credit by the Bank to
the Borrower hereunder whether in the form of a Cash Advance or the
issuance by the Bank of a Letter of Credit.
"Maximum Cash Advance Amount" means (i) prior to the Cash Advance
Repayment Date, $25,000,000 or such lesser amount to which the Maximum Cash
Advance Amount may be reduced pursuant to Section 2.4(e) and (ii)
thereafter, zero.
"Maximum Facility Amount" means on any day the sum of the then
applicable Maximum Cash Advance Amount and the then applicable Maximum
Letter of Credit Amount.
"Maximum Letter of Credit Amount" means (i) prior to the Letter of
Credit Availability Date, $6,000,000 and (ii) thereafter, zero.
"Multiemployer Plan" shall mean a plan to which more than one employer
is required to contribute, which is maintained pursuant to one or more
collective bargaining agreements between one or more employee organizations
and more than one employer, and which satisfies such other requirements as
the Secretary of Labor of the United States may prescribe by regulation.
"Note" shall have the meaning set forth in Section 2.3(a).
"Obligations" means any and all of the obligations of the Borrower to
the Bank, howsoever created, arising or evidenced, whether direct or
indirect, absolute or contingent, now or hereafter existing, or due or to
become due, which arise out of or in connection with this Agreement or any
Operative Document.
"Operative Documents" means this Agreement, the Note, the Guarantee,
the Subordination Agreement, each Letter of Credit and each other
agreement, instrument or certificate executed by the Borrower in connection
with this Agreement.
"Parent" means Everest & Jennings International Ltd.
"Permitted Liens" means (i) Liens for general taxes not yet due and
payable, (ii) statutory Liens of warehousemen, mechanics, materialmen and
other Liens imposed by law, created in the ordinary course of business and
for amounts not yet due, (iii) Liens existing on the Effective Date in
favor of BIL Far East in connection with the BIL Far East Note and further
described in Schedule 1.1 hereto, provided that such Liens are subordinated
to the payment in full to the Bank of the Obligations in accordance with
the terms of the Subordination Agreement; and (iv) other Liens in favor of
any person or entity which is not an Affiliate of the Borrower, the Parent,
the Guarantor, BIL Far East or BIL Securities to secure Indebtedness to
such person or entity.
"Potential Event of Default" means an event or condition which, with
the giving of notice or lapse of time or both, would constitute an Event of
Default.
"Prime Rate" means the rate determined by the Bank as the rate of
interest publicly announced by Marine Midland Bank, N.A. from time to time
as its prime rate, which rate is a base rate for calculating interest on
certain loans. The rate announced by Marine Midland Bank, N.A. as its
prime rate may or may not be the most favorable rate charged by Marine
Midland Bank, N.A. or the Bank to their respective customers. Each change
in the Prime Rate shall be effective on the date such change is publicly
announced as effective.
"Repayment Date" means the earliest to occur of (i) September 29, 1998
or 364 days from such later date to which the Letter of Credit Availability
Date may, in the sole discretion of the Bank, be extended pursuant to
Section 2.6, (ii) the latest termination or stated expiration date of any
Letter of Credit issued hereunder and (iii) such date to which the
Obligations may be accelerated hereunder.
"Stated Amount" means at any time, with respect to any Letter of
Credit, the aggregate amount that at such time may be demanded under such
Letter of Credit, subject to reduction as provided therein.
"Subordination Agreement" means the Amended and Restated Subordination
Agreement dated the date hereof in favor of the Bank made by BIL Far East,
BIL Securities and the Parent substantially in the form of Exhibit D
hereto.
Section 1.2 Accounting Terms; Financial Statements. All accounting
terms used herein not expressly defined in this Agreement shall have the
respective meanings given to them in accordance with generally accepted
accounting principles in effect in the United States as of the date hereof
("GAAP").
ARTICLE II - LOANS
Section 2.1 Loans. Subject to the terms and conditions and relying
upon the representations and warranties herein set forth, the Bank agrees
from time to time on any Business Day (A) during the period from the
Effective Date to five Business Days prior to the Cash Advance Repayment
Date to make a Cash Advance to the Borrower or (B) during the period from
the Effective Date to five Business Days prior to the Letter of Credit
Availability Date to issue Letters of Credit for the account of the
Borrower, in either case, at such times and in such amounts as the Borrower
may request in accordance with Section 2.2 provided, however, that (i) each
Cash Advance shall be in a principal amount of not less than $100,000 or an
integral multiple of $50,000 in excess thereof, (ii) each Letter of Credit
shall be in an initial Stated Amount of not less than $10,000, and (iii)
after giving effect to any Cash Advance or to the issuance of any Letter of
Credit (x) the sum of the aggregate principal amount of Cash Advances then
outstanding and the aggregate Stated Amount of all Letters of Credit issued
and then outstanding shall not exceed the then applicable Maximum Facility
Amount, (y) the aggregate principal amount of Cash Advances then
outstanding shall not exceed the then applicable Maximum Cash Advance
Amount and (z) the aggregate Stated Amount of all Letters of Credit issued
and then outstanding shall not exceed the then applicable Maximum Letter of
Credit Amount. Subject to the terms and conditions set forth in this
Agreement and within the foregoing limitations, the Borrower may borrow,
pay or prepay and reborrow hereunder.
Section 2.2 Method of Borrowing. The Borrower may request the Bank
to make a Loan in the form of a Cash Advance or the issuance of a Letter of
Credit under Section 2.1 by delivering to the Bank, by telecopier (followed
promptly by the original hard copy) or such other method as the Bank may,
from time to time, approve, an irrevocable notice specifying (i) the
Business Day on which the Cash Advance is to be made or the Letter of
Credit is to be issued, as the case may be, (the "Borrowing Date"),
(ii) the principal amount of the Cash Advance or the initial Stated Amount
of the Letter of Credit, as the case may be, subject to the conditions of
section 2.1, and (iii) in the case of a request to issue a Letter of
Credit, the exact form of the Letter of Credit to be issued which form
shall include without limitation (a) the name and address of the
beneficiary, (b) the expiration date of the Letter of Credit provided that
the expiration date may not be a date later than one year after the
relevant Borrowing Date, and (c) the form of sight draft and any other
documents required to be presented at the time of any demand for payment
(including the exact wording of such documents or copies thereof). Such
notice must be received by the Bank no later than 11:00 a.m., Chicago time,
(i) in the case of a Cash Advance, on the relevant Borrowing Date and (ii)
in the case of a Letter of Credit, on the Business Day preceding the
relevant Borrowing Date. The submission of such notice shall be deemed to
constitute a representation by the Borrower on and as of the Borrowing Date
as to the matters specified in Article IV in light of the facts and
circumstances then existing.
Section 2.3 Notes.
(a) The Obligations shall be evidenced by a promissory note (the
"Note"), substantially in the form of Exhibit C, with appropriate
insertions, dated the date hereof, in a principal amount not to exceed the
Maximum Facility Amount, payable to the order of the Bank no later than the
Repayment Date, duly executed on behalf of the Borrower, and representing
the obligation of the Borrower to pay the principal amount of the Cash
Advances made hereunder, to pay interest with respect to the principal
amount outstanding on the Cash Advances as set forth in Section 3.1 hereof,
to reimburse the Bank immediately for any amounts paid in respect of any
Letter of Credit and to pay all other amounts due or to become due
hereunder.
(b) The Bank shall, and is hereby authorized by the Borrower to,
endorse on the schedule attached to the Note (or a continuation thereof) an
appropriate notation evidencing the date and amount of each Loan made to
the Borrower and each payment of principal and interest by the Borrower
with respect thereto; provided that the failure of the Bank to make any
such notation or any error therein shall not affect in any manner the
obligations of the Borrower to repay the principal amount of the Loans
outstanding together with all interest accruing thereon. Such schedule as
maintained by the Bank shall, absent manifest error, constitute prima facie
evidence of the amount of Loans outstanding.
Section 2.4 Repayment, Prepayment.
(a) In the case of each Cash Advance and subject to Section 2.4(d)
hereof, the Borrower shall repay, in full, the outstanding principal amount
of each Cash Advance on the Cash Advance Repayment Date.
(b) The Borrower hereby agrees to pay to the Bank immediately and
without demand upon payment under any Letter of Credit an amount equal to
the full amount paid under the Letter of Credit. The reimbursement
obligation of the Borrower under the preceding sentence shall be absolute,
unconditional and irrevocable and shall be satisfied strictly in accordance
with the terms hereof irrespective of (i) any lack of validity or
enforceability of any Letter of Credit; (ii) any amendment or waiver of, or
any consent to or departure from any document entered into in connection
herewith which is not consented to in writing by the Bank; (iii) the
existence of any claim, set off, defense or other rights which the Borrower
may have at any time against any beneficiary or transferee of any Letter of
Credit, the Bank or any person or entity, whether in connection with the
Agreement or any unrelated transaction; (iv) any statement or any other
document (including, without limitation, any draft or demand) presented
under any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect whatsoever; (v) payment by the Bank under any
Letter of Credit against presentation of a draft or certificate which does
not comply with the terms of the Letter of Credit; or (vi) any other
circumstance or happening whatsoever, whether or not similar to any of the
foregoing, provided, however, that such circumstance or happening shall
not constitute the gross negligence or willful misconduct of the Bank.
(c) Subject to the provisions of Section 3.7, upon one Business Day
prior written notice to the Bank, the Borrower may, on any Business Day,
prepay by installments of not less than $100,000 all or a portion of the
principal amount of Cash Advances outstanding on such Business Day.
(d) In the event that, at any time, either (i) the sum of the
aggregate principal amount of Cash Advances then outstanding and the
aggregate Stated Amount of Letters of Credit issued and then outstanding
exceeds the then applicable Maximum Facility Amount, (ii) the aggregate
principal amount of Cash Advances then outstanding exceeds the then
applicable Maximum Cash Advance Amount or (iii) the aggregate Stated Amount
of Letters of Credit issued and then outstanding exceeds the then
applicable Letter of Credit Amount, then, subject to the provisions of
Section 3.7, the Borrower shall immediately, without demand, (A) in the
case of an excess determined under clauses (i) or (ii), pay or prepay Cash
Advances in an aggregate principal amount at least equal to such excess
together with accrued interest on such principal amount and, to the extent
of any excess remaining after such payment or prepayment, deposit with the
Bank cash collateral to secure the Obligations, in a manner satisfactory to
the Bank, in an amount at least equal to such remaining excess and (B) in
the case of an excess determined under clause (iii), deposit with the Bank
cash collateral to secure the Obligations, in a manner satisfactory to the
Bank, in an amount at least equal to such excess.
(e) Subject to Section 2.4(d), upon at least three Business Days'
prior irrevocable written notice to the Bank, the Borrower may at any time
permanently reduce, in part, the Maximum Cash Advance Amount, provided
however that each reduction is in a minimum amount of $1,000,000 and that
the Maximum Cash Advance Amount may not be reduced pursuant to this
Section 2.4(e) to an amount less than $5,000,000.
Section 2.5 Payments. All payments by the Borrower to the Bank
hereunder shall be made in lawful currency of the United States of America
and in immediately available funds at not later than 1:00 p.m., Chicago
time, on the due date at the Bank's Address. The Bank shall apply payments
received from the Borrower hereunder first to the payment of fees and
reasonable expenses due hereunder, then to the payment of interest due,
then to the repayment of principal of the Cash Advances and then to
collateralize, in a manner satisfactory to the Bank, the Obligations with
respect to any Letters of Credit then outstanding. All payments by the
Borrower to the Bank hereunder shall be made without offset, counterclaim,
deduction or withholding of any nature. Any amounts paid after 1:00 p.m.,
Chicago time, on any Business Day shall be deemed to be paid on the next
succeeding Business Day.
Section 2.6 Extensions of Letter of Credit Availability Date. No
later than 60 days prior to the Letter of Credit Availability Date, the
Borrower may request the Bank in writing to extend the Letter of Credit
Availability Date for a period not to exceed 364 days. The Bank in its
sole discretion may by written notice to the Borrower agree to extend the
Letter of Credit Availability Date, in which case the then applicable
Letter of Credit Availability Date shall be extended for such period not to
exceed 364 days from the date of such notice.
ARTICLE III - INTEREST, FEES AND COSTS
Section 3.1 Interest. The Borrower hereby agrees to pay to the
Bank, in arrears, on each Interest Payment Date occurring prior to the Cash
Advance Repayment Date and on the Cash Advance Repayment Date, interest on
the outstanding principal amount of each Cash Advance from the date that
such Cash Advance is made or deemed made until payment in full at the Prime
Rate plus .25% per annum.
Section 3.2 Amendment Fee. The Borrower hereby agrees to pay to the
Bank on the Effective Date a non-refundable amendment fee of $7,500.
Section 3.3 Letter of Credit Fee. For each Letter of Credit, the
Borrower agrees (A) to pay to the Bank on each Fee Payment Date (as defined
below), in advance, (i) in the case of a Letter of Credit which has been
designated by the Bank as a standby Letter of Credit, a non-refundable
Letter of Credit Fee equal to 1.25% per annum of the Stated Amount of the
Letter of Credit on the date on which such Letter of Credit is issued or,
if applicable, renewed and (ii) in the case of a Letter of Credit
designated by the Bank as a documentary Letter of Credit, a non-refundable
Letter of Credit Fee equal to .50% of the Stated Amount of the Letter of
Credit on the date on which such Letter of Credit is issued or, if
applicable, renewed and (B) to pay to the Bank, upon demand, such
utilization, drawing, amendment or other fees as the Bank may customarily
impose in respect of letters of credit which it issues. For purposes of
this Section 3.3, the Letter of Credit Fee shall be payable in advance on
the Borrowing Date on which the relevant Letter of Credit is issued and on
each Interest Payment Date occurring thereafter for so long as such Letter
of Credit shall remain outstanding (each such payment date being a "Fee
Payment Date").
Section 3.4 Commitment Fee. The Borrower agrees to pay to the Bank,
in arrears, on each Interest Payment Date and on the Repayment Date a non-
refundable commitment fee equal to .375% per annum of the average daily
Available Amount during the relevant Interest Period.
Section 3.5 Default Rate. Overdue principal and (to the extent
permitted by law) overdue interest shall bear interest, payable on demand,
after as well as before judgment, from the date such principal or interest
became due until payment in full at a rate per annum equal to 2% above the
interest rate that would then otherwise be applicable hereunder.
Section 3.6 Computational Basis. All interest and fees payable
hereunder shall be calculated on the basis of a year of 360 days for the
actual number of days elapsed or scheduled to elapse, in the case of fees
payable in advance.
Section 3.7 Certain Costs. The Borrower agrees to reimburse the
Bank, upon demand, for any loss, cost or expense the Bank may incur as the
result of the failure of the Borrower to borrow after giving a notice
pursuant to Section 2.2, including, without limitation, any loss, cost or
expense that the Bank may suffer with respect to the reinvestment of funds.
A certificate setting forth such loss, cost or expense incurred by the Bank
shall be conclusive and binding for all purposes.
Section 3.8 Increased Costs, etc If the Bank reasonably determines
that the introduction of, implementation of, change in, or change in the
interpretation or application of, any law, rule, regulation, guideline,
directive or request by any court, central bank or administrative or
governmental authority charged with the interpretation or administration
thereof (whether or not having the force of law) subsequent to the
Effective Date (a "Change in Law") shall either (i) impose, modify or deem
applicable any taxation, reserve, assessment, special deposit or other
requirement with respect to any extensions of credit by or any letters
of credit issued by, or assets held by, or deposits in or other liabilities
for the account of, the Bank or (ii) impose on the Bank any other condition
regarding this Agreement, any Cash Advance, any Letter of Credit, or
any collateral therefor, or any of the transactions in the preceding clause
(i) or (ii), or (iii) affect the amount of any deduction that the Bank may
take for purposes of federal, state or local income taxes in respect of the
cost, including, but not limited to, interest, costs of maintaining any
Cash Advance, any Letter of Credit or the payment obligations of the
Borrower hereunder, and the result of any event referred to in clause (i),
(ii) or (iii) above shall be to increase the cost, or diminish the
anticipated return, to the Bank of issuing or maintaining any Cash Advance,
any Letter of Credit or the payment obligations of the Borrower hereunder,
or reduce the amounts receivable by the Bank hereunder or thereunder (which
increase in cost, diminution in return or reduction of amounts, shall be
determined by the Bank's reasonable allocation of the aggregate of such
costs, increases, diminution in return, or reductions resulting from such
event) or reduce the rate of return on all or any part of the Bank's
capital as described in the next succeeding sentence, then the Borrower
shall pay to the Bank from time to time, within thirty (30) days after
demand by the Bank, such additional amounts (to the extent not incorporated
in the calculation of the applicable Prime Rate) which shall be sufficient
to compensate the Bank on an after-tax basis for such increased cost,
diminution in return, reduction or loss of profitability from the date of
the Change in Law. If the Bank reasonably determines that a Change in Law
imposes, modifies or deems applicable any capital adequacy or similar
requirement (including, without limitation, a request or requirement which
affects the manner in which the Bank allocates capital resources to its
commitments, including its obligations hereunder) and as a result thereof,
in the reasonable opinion of the Bank, the rate of return on the Bank's
capital (as allocated to any Loan, any Letter of Credit, this Agreement
or any other Operative Document), as a consequence of its obligations
hereunder is reduced to a level below that which the Bank could have
achieved but for such circumstances, then the Borrower shall pay to the
Bank from time to time, within thirty (30) days after demand by the Bank,
such additional amounts (to the extent not incorporated in the calculation
of the applicable Prime Rate) as will compensate the Bank on an after-tax
basis for such reduction in rate of return. A certificate, prepared in
good faith, setting forth such increased cost, diminution in return, or
reduction of amounts or in rate of return incurred by the Bank as a result
of any event mentioned above and giving a reasonable explanation
and calculation thereof, submitted by the Bank to the Borrower (absent
manifest error), shall be conclusive and binding for all purposes. The
provisions of this Section 3.8 shall survive termination of this Agreement
and the discharge of the Borrower's other obligations hereunder and under
the Note.
Section 3.9 Taxes. Without limiting the provisions of Section 2.5,
all payments to be made by the Borrower to the Bank hereunder shall be made
free and clear of and without deduction for or on account of tax. In the
event that the Borrower is required to deduct or withhold any tax in
respect of any payment hereunder, the amount payable by the Borrower in
respect of which such deduction or withholding is required shall be
increased to the extent necessary to ensure that, after such deduction
or withholding, the Bank receives and retains (free from any liability in
respect of any such deduction or withholding) a net amount equal to the
amount which it would have received and retained had no such deduction or
withholding been made. Without limiting the provisions of Section 8.2, if
the Bank is required to make any payment on account of tax (other than
taxes imposed on the net income of the Bank by the United States, by the
State of Illinois or by Hong Kong, except to the extent that such tax is
imposed by such jurisdiction on any additional amount payable to the Bank
pursuant to the preceding sentence) or otherwise on or in relation to any
amount payable hereunder to the Bank or any liability in respect of any
such payment is asserted, imposed, levied or assessed against the Bank,
the Borrower shall, on demand, indemnify the Bank against such payment or
liability, together with any taxes, interest, penalties and expenses
payable or incurred in connection therewith. If, at any time, the Borrower
is required by law to make any deduction or withholding from any amount
payable by it hereunder, the Borrower shall promptly notify the Bank. If
the Borrower makes any payment hereunder in respect of which it is required
to make any deduction or withholding, it shall pay the full amount to be
deducted or withheld to the relevant taxation or other authority within the
time allowed for such payment under applicable law and shall deliver to the
Bank, within thirty days after it has made such payment, an original
receipt (or a certified copy thereof) issued by such authority evidencing
the payment of all amounts required to be deducted or withheld. The
provisions of this Section 3.9 shall survive the termination of this
Agreement and the discharge of the Borrower's other obligations hereunder
and under the Note.
ARTICLE IV - REPRESENTATIONS AND WARRANTIES
To induce the Bank to make each of the Loans, the Borrower represents
and warrants on the Effective Date, and by requesting a Loan the Borrower
shall be deemed to represent and warrant to the Bank on each Borrowing Date
that:
Section 4.1 Organization, Standing, etc The Borrower is a
corporation duly organized, validly existing and in good standing under the
laws of the State of California and is duly qualified and authorized to do
business in each jurisdiction in which the failure to so qualify would have
a material adverse effect on the business, condition, assets or operations
of the Borrower. The Borrower has all requisite power and authority to own
its assets and to carry on its business as presently conducted and as
proposed to be conducted. The Borrower has all requisite power and
authority (i) to execute, deliver and perform its obligations under each
and every Operative Document to which it is a party and (ii) to issue the
Note in the manner and for the purposes contemplated by this Agreement. No
Event of Default or Potential Event of Default has occurred and is
continuing.
Section 4.2 Conflicting Agreements and Other Matters. The execution,
delivery and performance by the Borrower of each and every Operative
Document to which it is a party do not and will not, in a manner which
would have a material adverse effect on the business, condition, assets or
operations of the Borrower, (i) violate any provisions of any law, rule,
regulation (including, without limitation, Regulations G, T, X or U of the
Board of Governors of the Federal Reserve System), order, writ, judgment,
decree, determination or award presently in effect having applicability to
the Borrower, or (ii) conflict with or result in a breach of or constitute
a default under the articles of incorporation or by-laws of the Borrower or
any indenture or loan or credit agreement, or any other agreement or
instrument, to which the Borrower is a party or by which the Borrower or
any of its properties may be bound or affected. The Borrower is not in
default, in a manner which would have a material adverse effect on the
business, condition, assets or operation of the Borrower, under or in
violation of any such law, rule, regulation, order, writ, judgment, decree,
determination or award described in clause (i) above or any indenture,
agreement or instrument described in clause (ii) above or under its
articles of incorporation or by-laws.
Section 4.3 Due Execution, etc The execution, delivery and
performance by the Borrower of each and every Operative Document to which
it is a party have been duly authorized by all requisite corporate and, if
required, stockholder action, and each Operative Document to which it is a
party has been duly executed by the Borrower and constitutes a legal, valid
and binding obligation of the Borrower, enforceable against the Borrower in
accordance with its terms subject only to applicable bankruptcy,
insolvency, reorganization, moratorium and similar laws affecting
creditor's rights generally and to general principles of equity.
Section 4.4 Title to Properties. The Borrower has good title to, or
a valid and subsisting leasehold interest in, all items of property owned
or leased by the Borrower, free and clear of all Liens, claims, defects,
and exceptions except Permitted Liens and, in the case of property owned by
the Borrower, free and clear of all restrictions on title transfer except
Permitted Liens. There are no actual or, to the best knowledge of the
Borrower, threatened or alleged defaults of a material nature with respect
to any leases of real property under which the Borrower is lessee or
lessor.
Section 4.5 Litigation, Proceedings, etc. There are no actions,
suits, proceedings or investigations pending or, to the knowledge of the
Borrower, threatened against or affecting the Borrower or any of its
properties before any court, governmental agency or regulatory authority
(Federal, state or local), which (i) seek to enjoin or otherwise materially
interfere with the consummation of the transactions contemplated by this
Agreement, or (ii) would materially impair the Borrower's ability to
perform fully any obligations under any Operative Document to which it is a
party on a timely basis, provided that the Borrower and the Bank hereby
acknowledge, for purposes of this representation, that any action, suit,
proceeding or investigation (1) which is described in Schedule 4.5 hereto
or (2) for which the Borrower has established reserves which are reflected
in its financial statements for its quarter ended September 30, 1995 and
which are adequate as of the date thereof, in either case, would not so
impair the Borrower's ability. To its best knowledge, after reasonable
inquiry, the Borrower has not violated and is not in violation of any
statute, rule or regulation of any governmental authority in each case
where such violation or default would materially and adversely affect the
condition, assets, business, or operations of the Borrower, provided that
the Borrower and the Bank hereby acknowledge, for purposes of this
representation, that any violation or asserted violation described in
Schedule 4.5 hereto would not so affect the Borrower.
Section 4.6 Governmental Consents, etc No authorization, consent,
approval, license, qualification or exemption from, nor any filing,
declaration or registration with, any court, governmental agency or
regulatory authority or any securities exchange or any other governmental
person or entity is required in connection with the execution, delivery or
performance by the Borrower of any Operative Document to which it is a
party.
Section 4.7 Financial Information. The consolidated financial
statements of the Borrower for the fiscal year ended December 31, 1994, the
financial statements of the Borrower for the fiscal quarter ended
September 30, 1995, the consolidated financial statements of the Guarantor
for the fiscal year ended June 30, 1995 and the Profit Statement for the
Year Ended 30 June 1995 released by the Directors of the Guarantor on
September 5, 1995, the Form 10-K for the Parent for the fiscal year ended
December 31, 1994 and the Form 10-Q for the Parent for the fiscal quarter
ended September 30, 1995, in each case, as submitted by the Borrower to the
Bank, present fairly the financial position (or in the case of the Profit
Statement of the Guarantor, the profits) of the Borrower, of the Guarantor
and of the Parent, as the case may be, as of the date thereof. None of the
Borrower or the Parent or, to the best knowledge of the Borrower without
independent inquiry, the Guarantor has any material contingent obligations,
liabilities or unusual and material forward or long-term commitments not
disclosed in said financial statements, Form 10-K or Form 10-Q, and there
are no material unrealized or anticipated losses from any commitments of
the Borrower or the Parent or, to the best knowledge of the Borrower, the
Guarantor. Since the date of said financial statements, Form 10-K and
Form 10-Q, there has been no material adverse change in the financial
position or operations of the Borrower, of the Parent or, to the best
knowledge of the Borrower, the Guarantor and no event has occurred which
materially adversely affects the prospects of the Borrower or, to the best
knowledge of the Borrower, the Guarantor.
Section 4.8 ERISA. Except as disclosed in Schedule 4.5 hereto, the
Borrower has not incurred any material accumulated funding deficiency
within the meaning of the ERISA and has not incurred any liability under
any Employee Benefit Plan or Multiemployer Plan.
Section 4.9 Investment Company Act. The Borrower is not an
"investment company" or a company "controlled" by an "investment company,"
within the meaning of the Investment Company Act of 1940, as amended.
ARTICLE V - COVENANTS
Until all obligations of the Borrower hereunder and under the other
Operative Documents are paid and fulfilled in full, the Borrower agrees
that it shall comply with the following covenants, unless the Bank consents
otherwise in writing:
Section 5.1 Affirmative Covenants. The Borrower shall:
(a) Furnish or cause to be furnished to the Bank:
(i) within three (3) Business Days after the Borrower shall have
obtained knowledge of the occurrence of an Event of Default or a Potential
Event of Default, the written statement of an officer of the Borrower
setting forth the details of each such Event of Default or Potential Event
of Default and the action which the Borrower proposes to take with respect
thereto;
(ii) as soon as available and in any event no later than the
earlier of ten (10) days after receipt thereof by the Borrower and one
hundred and five (105) days after the end of each fiscal year of the
Borrower, statements of financial position of the Borrower and of the
Parent as of the end of such fiscal year and the related statements of
earnings and changes in financial position for such fiscal year, setting
forth in each case in comparative form the figures for the previous fiscal
year, all certified as to fairness of presentation, GAAP and consistency by
independent public accountants of internationally recognized standing;
(iii) as soon as available and in any event within sixty (60)
days after the end of each of the first three quarters of each fiscal year
of the Borrower, unaudited statements of financial position of the Borrower
and of the Parent as of the end of such quarter and the related statements
of earnings and changes in financial position for such quarter and for the
portion of the fiscal year ended at the end of such quarter, setting forth
in each case in comparative form the figures for the corresponding quarter
and the corresponding portion of the previous fiscal year, all certified
(subject to normal year-end adjustments) as to fairness of presentation,
GAAP and consistency by the chief financial officer of the Borrower;
(iv) as soon as available and in any event no later than 45 days
after the end of each calendar month, an unaudited statement of financial
position of the Borrower as of the end of such month and the related
statement of earnings and changes in financial position for such calendar
month, certified as to fairness of presentation and consistency by the
chief financial officer of the Borrower in the form of Exhibit E hereto or
such other form as may be reasonably acceptable to the Bank;
(v) simultaneously with the delivery of each set of financial
statements referred to in clauses (ii), (iii) and (iv) above, a certificate
of the chief financial officer of the Borrower stating whether there exists
on the date of such certificate an Event of Default or a Potential Event of
Default and, if any Event of Default or Potential Event of Default then
exists, setting forth the details thereof and the action which the Borrower
is taking or proposes to take with respect thereto;
(vi) within ten days after the same are sent or, in the case of
statements or reports of the Guarantor, after the same are received by the
Borrower, copies of all financial statements and reports which the Parent
or the Guarantor sends to its stockholders, and within ten days after the
same are filed or, in the case of statements or reports of the Guarantor,
after the same are received by the Borrower, copies of all reports which
the Parent or the Guarantor may make to, or file with, the Securities and
Exchange Commission or any analogous governmental authority or any stock
exchange;
(vii) within ten days after the same are received by the
Borrower, the statement of financial position of the Guarantor as of the
end of the first six months of each fiscal year and as of the end of each
fiscal year, and the related statements of earnings and changes in
financial position for such periods, setting forth in each case in
comparative form the figures for the corresponding periods of the previous
fiscal year prepared and presented in accordance with generally accepted
accounting principles in New Zealand and, in the case of fiscal year end
statements, certified by independent public accountants of internationally
recognized standing;
(viii) within five (5) Business Days of obtaining knowledge
thereof, notice of any action, suit, proceeding or investigation pending or
threatened against or affecting the Borrower, the Parent or the Guarantor
or any of their respective properties which could materially and adversely
affect the condition, business, assets (or affecting title thereto), or
operations of the Borrower, the Parent or the Guarantor, or could adversely
affect the Borrower's ability to perform its obligations under any
Operative Document or the Guarantor's ability to perform its obligations
under the Guarantee; and
(ix) such other information respecting the Borrower, the Parent
or the Guarantor as the Bank may from time to time reasonably request.
(b) To do such further acts and things, and to execute and deliver
such additional agreements, instruments or assignments as the Bank may at
any time reasonably request, in any case at the expense of the Borrower, in
connection with the administration and enforcement of this Agreement, the
Guarantee, or any other security for the Obligations or any part thereof or
in order better to assure and confirm unto the Bank its rights and
remedies.
(c) Preserve and maintain its existence, rights, privileges and
franchises in the jurisdiction of its incorporation, and qualify and remain
qualified and authorized to do business in each other jurisdiction in which
the failure to so qualify or remain qualified would have a material adverse
effect on the Borrower.
(d) Engage in the same general lines of business as presently
conducted by it.
(e) Comply with all laws, rules, regulations and governmental orders
(federal, state and local) having applicability to it or to the business or
businesses at any time conducted by it, where the failure to so comply
would have a material adverse effect, on the business, condition (financial
or otherwise), assets or operations of the Borrower, including, without
limitation, all such applicable environmental, health and safety laws,
rules, regulations and governmental orders.
(f) Maintain, or cause to be maintained, in good repair, working
order and condition in accordance with its customary practices (ordinary
wear and tear excepted) and in accordance with any applicable contractual
requirements, all of its properties (whether owned or held under lease)
which are necessary or useful to the ordinary conduct of its business,
and from time to time make or cause to be made all needed and appropriate
repairs, renewals, replacements, additions, betterments and improvements
thereto, so that the business carried on in connection therewith may be
conducted at all times.
(g) Prior to the occurrence of an Event of Default, upon four (4)
Business Days prior notice or, after the occurrence and during the
continuance of an Event of Default, at any time permit the Bank and/or
representatives of a firm of public accountants designated by the Bank,
from time to time, to visit and inspect, during normal business hours, its
properties, to examine and make copies of and take abstracts from its
records and books of account, and to discuss its affairs, finances and
accounts with its principal officers and independent public accountants.
(h) Keep, or cause to be kept adequate records and books of account,
in which complete entries are to be made reflecting its business and
financial transactions, in accordance with GAAP consistently applied.
(i) Maintain or cause to be maintained with financially sound and
reputable insurers acceptable to the Bank insurance policies or programs
(including liability insurance) in such amounts and for such risks as are
customarily maintained in the Borrower's industry.
(j) Use the proceeds of the Cash Advances or any Letter of Credit
solely for agreed purposes and consistently with all applicable laws and
statutes.
(k) To maintain with the Bank the demand deposit account established
by the Borrower pursuant to the Existing Agreement the minimum balance of
which shall at all times be no less than $1,000 and to pay all customary
Bank fees and charges in connection therewith.
Section 5.2 Negative Covenants. The Borrower shall not, without the
prior written consent of the Bank (which consent will not unreasonably be
withheld):
(a) Incur, create, assume or permit to exist any Indebtedness to BIL
Far East, the Guarantor, BIL Securities, the Parent or any Affiliate of the
Borrower or any such entity unless such Indebtedness (and any and all
rights to any collateral therefor) at all times is expressly subordinated,
in a manner satisfactory to the Bank, to the payment to the Bank in full of
all Obligations and the Borrower provides the Bank with no less than five
(5) Business Days' prior written notice of (A) the Borrower's intention to
incur or assume such Indebtedness, which notice also shall describe the
material terms of such Indebtedness, and (B) any amendment to the material
terms of such Indebtedness.
(b) INTENTIONALLY OMITTED
(c) INTENTIONALLY OMITTED
(d) Merge or consolidate with or into any person except that any
subsidiary of the Borrower may be merged or consolidated with or into the
Borrower or any other subsidiary of the Borrower.
(e) INTENTIONALLY OMITTED
(f) Make any change in the Borrower's capital structure which would
in any way adversely affect the repayment of the Borrower's obligations
hereunder and under the Note.
(g) Declare or pay any dividend on any shares of any class of its
capital stock or apply any of its property or assets to the purchase,
redemption or other retirement of, or set apart any sum for the payment of
any dividends on, or for the purchase, redemption or other retirement of,
or make any other distribution by reduction of capital or otherwise, in
respect of, any shares of any class of capital stock of the Borrower (any
such action constituting a "Dividend").
(h) INTENTIONALLY OMITTED
Section 5.3 INTENTIONALLY OMITTED
ARTICLE VI - CONDITIONS OF LENDING
Section 6.1 Effective Date. The amendment and restatement of the
Existing Agreement shall become effective on the first date (the "Effective
Date") that each of the following conditions shall have been satisfied or
fulfilled:
(a) The Borrower shall have executed and delivered to the Bank the
Note (appropriately completed) and this Agreement (including all schedules,
exhibits, certificates, opinions and financial statements delivered
pursuant hereto in form and substance acceptable to the Bank) which shall
be in full force and effect and the Borrower shall have initialed the
provisions of Section 8.6 hereof (Waiver of Jury Trial, etc.).
(b) The Bank shall have received from the Borrower payment of all
accrued but unpaid interest and fees in respect of all Cash Advances and
Letters of Credit outstanding on the Effective Date.
(c) The Bank shall have received the Guarantee duly executed by the
Guarantor and in full force and effect and shall have received the
Subordination Agreement duly executed by BIL Far East, BIL Securities and
the Parent and in full force and effect.
(d) The Bank shall have received resolutions of the Guarantor
authorizing the execution, delivery and performance of the Guarantee.
(e) The Bank shall have received the signed opinions of Bryan Cave,
counsel to the Borrower and United States counsel to the Guarantor and of
New Zealand counsel to the Guarantor, dated the date hereof in form and
substance acceptable to the Bank.
(f) The Bank shall have received a Certificate of the Secretary, or
the Assistant Secretary, of the Borrower, substantially in the form of
Exhibit F hereto, certifying (i) the names and true signatures of the
officers of the Borrower authorized to sign this Agreement and the Note,
(ii) the By-Laws of the Borrower as in effect on the date of certification,
(iii) the resolutions (in form and substance acceptable to the Bank) of the
Borrower authorizing and approving the execution, delivery and performance
of this Agreement and the Note, (iv) the representations and warranties (in
form and substance acceptable to the Bank) of the Borrower, and (v) that
there have been no changes in the Articles of Incorporation of the Borrower
since the most recent certification thereof by the Secretary of State of
California. Such certificate shall be dated the date hereof and shall
state that the resolutions attached thereto have not been amended,
modified, revoked or rescinded as of such date and are at such date in full
force and effect.
(g) The Bank shall have received a copy of the Borrower's Articles of
Incorporation, certified as of a recent date by the Secretary, or the
Assistant Secretary, of the Borrower, and a Certificate of good standing,
certified as of a recent date by the Secretary of State of the State of
California.
(h) The representations and warranties made by the Borrower in
Article IV hereof shall be true and correct in all material respects on and
as of the date hereof as though made on and as of such date.
(i) No Event of Default or Potential Event of Default shall have
occurred and be continuing hereunder or would result from the consummation
of the transactions contemplated hereby.
(j) The Bank shall have received from the Borrower the non-refundable
amendment fee required by Section 3.2 hereof.
(k) The Bank shall have been reimbursed by the Borrower for the fees
and reasonable expenses of its counsel, Baker & McKenzie, in connection
with the drafting and negotiation of this Agreement and the other Operative
Documents.
(l) The Bank shall have received confirmation from the Guarantor of
the continuing force and effect of the duly executed letter agreement from
the Guarantor dated September 9, 1992 and signed by the Guarantor on
September 15, 1992 in form and substance reasonably acceptable to the Bank
and such letter shall continue to be in full force and effect.
(m) The Borrower shall have continued to maintain the demand deposit
account with the Bank as required by Section 5.1(k) hereunder.
(n) The Bank shall have received an acceptance by CSC Network of its
appointment as agent for service of process in Illinois for the Borrower
and for the Guarantor.
(o) The Bank shall have received such other documentation as is
otherwise reasonably requested, in writing, by the Bank.
Section 6.2 Subsequent Loans.
The Bank's obligation to make each subsequent Loan is subject to the
following conditions precedent:
(a) Notice. The Bank shall have received a notice from the Borrower
in accordance with Section 2.2.
(b) Representations and Warranties. The representations and
warranties by the Borrower in Article IV hereof shall be true and correct
on and as of the Borrowing Date of such Loan as though made on and as of
such date.
(c) No Default. At the time of such Loan and immediately after
giving effect to such Loan, no Event of Default or Potential Event of
Default shall have occurred and be continuing.
(d) Letter of Credit Fee. With respect to the issuance of each
Letter of Credit, the Bank shall have received the Letter of Credit Fee
required by Section 3.3 hereof.
(e) Other Documents. The Borrower shall provide the Bank with any
other document the Bank may from time to time request.
ARTICLE VII - DEFAULT AND REMEDIES
Section 7.1 Events of Default. The occurrence or existence of any of
the following events, acts, occurrences or state of facts shall constitute
an Event of Default:
(a) the failure of the Borrower to pay when due any amount due in
accordance with Section 2.4(a) or Section 2.4(b) or to pay any other amount
due hereunder within three (3) days after the due date thereof, whether by
acceleration or otherwise; or
(b) any representation or warranty made or deemed made by the
Borrower under or in connection with any Operative Document or by BIL Far
East, BIL Securities or the Parent under or in connection with the
Subordination Agreement shall have been untrue, incomplete or misleading,
in any material respect, when made or deemed made and, if capable of
remedy, shall not have been remedied within thirty (30) days; or
(c) the failure by the Borrower duly to observe or perform any
agreement, condition or covenant under this Agreement or any Operative
Document and, in the case of a covenant contained in Section 5.1 hereof,
such failure, if capable of remedy, shall not be remedied within five (5)
days; or
(d) the failure by BIL Far East, BIL Securities or the Parent duly to
observe or perform any agreement, condition or covenant under the
Subordination Agreement and such failure, if capable of remedy, shall not
be remedied within thirty (30) days after notice of such failure from the
Bank; or
(e) any petition in bankruptcy or similar petition being filed by or
against the Borrower, the Parent or the Guarantor or any proceedings
in bankruptcy, or under any laws relating to the relief of debtors, being
commenced for the relief or readjustment of any indebtedness of the
Borrower, the Parent or the Guarantor either through reorganization,
composition, extension, or otherwise and in the case of a petition being
filed or proceedings being commenced involuntarily such petition or
proceeding shall not be dismissed within thirty (30) days; or
(f) the inability of the Borrower, the Parent or the Guarantor
generally to pay its debts as they become due or the making by the
Borrower, the Parent or the Guarantor of an assignment for the benefit of
creditors or the taking advantage by any of the same of any insolvency law;
or
(g) the appointment of a receiver of any property of the Borrower,
the Parent or the Guarantor or the taking possession of any substantial
part of the property, or the assumption of control over the affairs or
operations, of any thereof by any governmental authority or any court at
the insistence of any governmental authority and, in the case of an
involuntary appointment of a receiver, such appointment shall not be
dismissed within thirty (30) days; or
(h) the attachment, distraint, garnishment or execution of or against
any funds or other property of the Borrower, the Parent or the Guarantor
which may be in, or come into, the possession of or control of the Bank, or
of any third party acting for the Bank, or of the same becoming subject at
any time to any mandatory order of any court or other legal process; or
(i) the Guarantor, the Parent or the Borrower shall (i) fail to
pay any principal or interest, regardless of amount, due in respect of any
Indebtedness, in a principal amount in excess of $15,000,000, in the case
of Indebtedness of the Guarantor, or $350,000, in the case of Indebtedness
of the Parent or of the Borrower, when and as the same shall become due and
payable after any applicable grace period or (ii) fail to observe or
perform any other term, covenant, condition or agreement contained in
any agreement or instrument evidencing or governing any such Indebtedness,
the effect of such failure is to cause or to permit the holder or holders
of such Indebtedness or a trustee on its or their behalf to cause all
or any portion of such Indebtedness to become due prior to its stated
maturity; or
(j) one or more judgments for the payment of money in an aggregate
amount in excess of $1,000,000 shall be rendered against the Borrower, the
Parent or the Guarantor or any combination thereof and the same shall
remain undischarged for a period of 30 consecutive days during which
execution shall not be effectively stayed or any action shall be legally
taken by a judgment creditor to levy upon assets of the Borrower, the
Parent or the Guarantor to enforce any such judgment; or
(k) for any reason (other than release by the Bank) this Agreement,
the Note, the Guarantee or the Subordination Agreement shall cease to be
valid and binding and in full force and effect or enforceable in accordance
with its terms or the Borrower, the Guarantor or any other party shall
repudiate or attempt to repudiate, in writing, all or any of its respective
obligations under any such Operative Document; or
(l) the Guarantor at any time shall own, whether directly or
indirectly, less than fifty one percent (51%), after giving effect to the
conversion of preferred shares convertible into voting stock, of the
outstanding voting stock of the Parent or the Parent shall own less than
one hundred percent (100%) of all classes of the outstanding voting stock
of the Borrower; or
(m) the Parent shall take any action to declare or pay any Dividend
in respect of any shares of any class of its capital stock, except for any
declaration and payment to the Guarantor of a Dividend in the form of stock
of the Parent pursuant to the Certificate of Designations, Preferences and
Rights of Series A Convertible Preferred Stock; or
(n) the Guarantor shall repudiate in writing or fail to perform any
agreement contained in the letter agreement in favor of the Bank dated
September 9, 1992 and signed by the Guarantor on September 15, 1992; or
(o) Any Guarantor Event of Default or Guarantor Potential Event of
Default shall have occurred.
Section 7.2 Remedies.
Upon the occurrence of any Event of Default, unless the Bank shall
otherwise direct in writing, the Bank's obligations hereunder, including
its agreement to make Loans, shall immediately terminate, all Cash Advances
then outstanding shall immediately be due and payable in full together with
accrued interest thereon and all other Obligations then existing shall
become immediately due and payable, in any case without presentment,
protest, demand or any other notice, all of which hereby are expressly
waived. Upon the occurrence of any Event of Default, the Bank may also
exercise any or all of its rights and remedies under any security
documents, including, without limitation, any guarantees, or under any
applicable law or which it otherwise possesses. Upon the occurrence of any
Event of Default, the Bank also may require that the Borrower deposit cash
or other collateral acceptable to the Bank with the Bank or its designee in
an amount equal to the aggregate Stated Amount of all Letters of Credit and
all other Obligations then outstanding as collateral for the repayment of
any future demands for payment under the Letter of Credit and such
Obligations.
ARTICLE VIII - MISCELLANEOUS
Section 8.1 Set-Off. Upon the occurrence and during the continuance
of any Potential Event of Default or any Event of Default, the Bank is
hereby authorized at any time and from time to time, without notice to the
Borrower (any such notice being expressly waived by the Borrower), to set-
off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time
owing by the Bank to or for the credit or the account of the Borrower
against any and all Obligations, irrespective of whether or not the Bank
shall have made any demand under this Agreement and although such
Obligations may be contingent and unmatured. The Bank agrees promptly to
notify the Borrower after any such set-off and application, provided that
the failure to give such notice shall not affect the validity of such set-
off and application. The rights of the Bank under this Section are in
addition to other rights and remedies which the Bank may have including,
without limitation, other rights of set-off.
Section 8.2 Costs, Expenses and Taxes. The Borrower agrees to pay
all reasonable costs and expenses incurred by the Bank (including the
reasonable fees and expenses of counsel to the Bank) in connection with (i)
the drafting and negotiation of this Agreement and the other Operative
Documents, (ii) any amendment, modification, or waiver thereof, and (iii)
the enforcement or renegotiation of this Agreement or any other Operative
Document. The Borrower also agrees to pay the reasonable fees and expenses
of any accounting firm designated by the Bank to audit or to examine the
books and records of the Borrower pursuant to Section 5.1(g) or otherwise
under this Agreement. The Borrower also agrees to reimburse the Bank, upon
demand, for any stamp, transfer, franchise and other similar taxes payable
or determined to be payable in connection with the execution, delivery or
enforcement of this Agreement, the Note or any other Operative Document.
The Borrower will indemnify and hold harmless the Bank and the Bank's
directors, officers, employees, attorneys and agents (together the
"Indemnitees") against any and all liabilities, losses, damages, judgments,
suits and claims (and the reasonable costs and legal fees relating thereto)
of any kind or nature whatsoever imposed on, incurred by or asserted
against an Indemnitee (whether arising under or in connection with this
Agreement or any Operative Document or any law or regulation, including,
without limitation any environmental, health or safety law).
Notwithstanding the foregoing, the Borrower will not be obligated to pay
for any claims or liability which may arise from the Bank's willful
misconduct or gross negligence. The obligations of the Borrower under this
Section 8.2 shall survive the termination of this Agreement and the
discharge of the Borrower's other obligations hereunder and under the Note.
Section 8.3 No Waiver; Modifications in Writing; Cumulative Remedies.
No failure or delay on the part of the Bank in exercising any right, power
or remedy hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right, power or remedy preclude further
exercise thereof or the exercise of any other right, power or remedy. The
remedies provided for herein are cumulative and are not exclusive of any
remedies that may be available to the Bank at law or in equity or
otherwise. No amendment, modification, supplement, termination or waiver
of or to any provision of this Agreement or any other Operative Document,
nor consent to any departure by the Borrower from the terms of any
provision of this Agreement shall be effective unless the same shall be in
writing and signed by or on behalf of the Bank.
Section 8.4 Assignment/Substitution. This Agreement is a continuing
obligation, shall survive the termination of the Letters of Credit and
shall (a) be binding upon the Borrower, its successors and assigns, and (b)
inure to the benefit of and be enforceable by the Bank and its successors
and assigns; provided that the Borrower may not assign all or any part of
this Agreement without the prior written consent of the Bank. The Bank may
upon notice substitute another lending office of the Bank as the lending
office hereunder. The Bank may sell participations in all or any part of
any Loan and may, with the prior written consent of the Borrower (which
consent will not unreasonably be withheld), assign all or any portion or
any Loan to another financial institution.
Section 8.5 Governing Law. This Agreement shall be deemed to be a
contract made under the laws of the State of Illinois, and for all purposes
shall be construed in accordance with the laws of the State of Illinois,
without regard to principles of conflicts of law.
Section 8.6 Submission to Jurisdiction; Venue; Waiver of Jury Trial.
To induce the Bank to make the Cash Advances, the Borrower irrevocably
agrees that subject to Bank's sole and absolute election, all suits,
actions or other proceedings in any way, manner or respect, arising out of
or from or related to this Agreement, the Note or any other Operative
Document shall be litigated in courts having situs within Chicago,
Illinois. The Borrower hereby consents and submits to the jurisdiction of
any local, state or federal court located within Chicago, Illinois. The
Borrower hereby irrevocably appoints CSC Networks with offices at 33 North
LaSalle Street, Chicago, Illinois 60602, to act as its agent for service of
process in such courts and, the Borrower also irrevocably consents to
the service of any and all process in any such suit, action or proceeding
brought in any court located within Chicago, Illinois by the delivery
of copies of such process to such agent. THE BORROWER HEREBY WAIVES ANY
RIGHT IT MAY HAVE TO REQUEST OR DEMAND TRIAL BY JURY, TO TRANSFER OR CHANGE
THE VENUE OF ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT AGAINST THE
BORROWER BY THE BANK IN ACCORDANCE WITH THIS SECTION OR TO CLAIM THAT ANY
SUCH PROCEEDING HAS BEEN BROUGHT IN ANY INCONVENIENT FORUM.
INITIALS OF BORROWER: /i/ TWE
Section 8.7 Severability. Wherever possible each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be
prohibited by or be invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of
this Agreement.
Section 8.8 Limitations on Bank Liability. Without limiting any
other provision hereof, the Borrower assumes all risks of, and the Bank
shall not be liable or responsible for, the acts or omissions of any
beneficiary or transferee of any Letter of Credit with respect to its use
of the Letter of Credit and whether any demand under the Letter of Credit
is inconsistent with any other demand or with any Operative Document. As
between the Borrower and the Bank, neither the Bank nor any of its officers
or directors shall be liable or responsible for any claim, damage, loss,
liability, cost or expense which the Borrower may incur (or which may be
claimed by any person) by reason of or in connection with the execution and
delivery or transfer of any Letter of Credit. In furtherance and not in
limitation of the foregoing, the Bank may accept documents that appear on
their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary.
The Borrower acknowledges and agrees that the Bank also shall be relieved
from responsibility for (and its right to reimbursement hereunder shall not
be impaired by) any act or omission for which banks are relieved
of responsibility under the Uniform Customs and Practice for Documentary
Credits, 1993 revision, ICC Publication No. 500 (1994).
Section 8.9 Notices. Except where telephonic instructions or notices
are authorized herein to be given, all notices and other communications
required or permitted to be given shall be in writing and (except for
written confirmations of telephonic instructions) shall be personally
delivered, telecopied or sent by registered or certified mail, postage
prepaid, return receipt requested, or by a reputable courier delivery
service, and shall be deemed to be given on the day that such writing is
delivered or sent to the intended recipient thereof in accordance with the
provisions of this Section 8.9. Unless otherwise specified in a notice
sent or delivered in accordance with the foregoing provisions, notices and
other communications in writing shall be given to or made upon the
respective parties hereto at their respective addresses (or to their
respective telecopier numbers) indicated below or to such other addresses
as may be hereafter designated in writing by the respective parties hereto
and, in the case of telephonic instructions or notices, by calling the
telephone number indicated for such party below:
If to the Borrower: Everest & Jennings, Inc.
4203 Earth City Expressway
Earth City, Missouri 63045
Attention: Mr. Timothy Evans
Tel. No: (314) 512-7275
Telecopier No.: (314) 512-7063
With a copy to: BIL (USA) Inc.
c/o Gray Cary Ware & Freidenrich
401 "B" Street
Suite 1700
San Diego, CA 92101-4297
Attention: Mr. Robert W. Ayling
Tel. No.: (619) 699-2700
Telecopier No.: (619) 236-1048
and Brierley Investments Limited
Level 6
CML Building
22-24 Victoria Street
Wellington, New Zealand
Attention: Company Secretary
Telecopier No.: (644) 473-8199
If to the Bank: The HongKong and Shanghai Banking Corporation
Limited, Chicago Branch
190 S. La Salle Street
Suite 1100
Chicago, Illinois 60603
Attention: Mr. J. Gregory McClain
Tel No.: (312) 853-6400
Telecopier No.: (312) 853-3855
Section 8.10 Execution in Counterparts. This Agreement may be signed
in any number of counterparts, each of which shall be an original with the
same effect as if the signatures thereto and hereto were upon the same
instrument.
Section 8.11 Entire Agreement. This Agreement amends and restates in
its entirety the Existing Agreement. As so amended and restated, this
Agreement and the Note embody the entire agreement and understanding among
the parties hereto and supersede all prior agreements and understandings
between the parties hereto, including, without limitation, the Existing
Agreement. For the avoidance of doubt, any Loans outstanding on the
Effective Date constitute "Loans" for all purposes of this Agreement and
the other Operative Documents. This amendment and restatement of the
Existing Agreement shall not effectuate a novation or extinguishment of the
indebtedness outstanding under the Existing Agreement, but rather as it
pertains to the indebtedness outstanding under the Existing Agreement,
shall constitute an amendment and restatement of certain of the terms
governing the payment and performance of such indebtedness.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of
the date first above written.
EVEREST & JENNINGS, INC.
By /s/ Timothy W. Evans
Its Vice President & CFO
THE HONGKONG AND SHANGHAI
BANKING CORPORATION LIMITED
By /s/ J. Gregory McClain
Its Vice President