D SEVENTH: “Subsidiary,” as used in this Agreement, means any corporation 70% of more of whose voting stock is owned at the time by the Parent Corporation or by a subsidiary of the Parent Corporation. All amounts stated in Dollars in this Agreement are in United States currency and all items in foreign currency shall for the purpose of this Agreement be converted into United States currency at the rate of exchange current at the time of the calculation, unless some other basis shall have been agreed to by the Bank Agent. Eighth: It is hereby agreed, jointly and severally, by the parties hereto other than the Banks, that the Parent Corporation shall furnish to each of the Banks quarterly (or oftener if required by the Bank Agent), a detailed consolidated balance sheet, consolidated earning statement, statement of consolidated net quick assets and statement of consolidated total liabilities calculated as provided in the subparagraphs (a) and (b) and Paragraph Sixrh hereof, such balance sheet and statements to be certified by the Parent Corporation acting by its President or Treasurer, and shall furnish once a year (or oftener if required by the Bank Agent) a similar balance sheet and statements and a complete audited report to be certified by independent public accountants satisfactory to the Banks. The quarterly balance sheet and statements to be certified by the officers of the Parent Corporation shall be furnished within 60 days after the close of the fiscal quarter, and the annual balance sheet and statements within 90 days after the close of the fiscal year. The parties hereto, other than the Banks, further covenant and agree, jointly and severally, to furnish with reasonable promptness such other data as the Bank Agent may reasonably request. NINTH: If there shall be any breach of any of the terms or covenants of this Agreement on the part of any of the parties hereto other than the Banks, then unless the breach is cured within 20 days after written notice to the Parent Corporation and the Borrowers from the Banks or from the Bank Agent, the term of said Loans shall, at the election of the Banks forthwith cease and determine, and any and all liabilities under this Agreement or incurred pursuant thereto to theBanks shall become at once due and payable without notice, presentation or demand of payment, and without any credit or time allowed by this Agreement or any instrument evidencing any such liability. The written notice provided for herein shall be sent by registered mail, addressed to the Parent Corporation and the Borrowers at the addresses referred to below, and during said twenty-day period after the giving of such written notice, if the Bank Agent so determines, the Banks shall not be required to make any additional advances under said Loans. The Bank Agent referred to in this Agreement shall be Mr. Louis A. Keidel, of Bankers Trust Company and in case of Mr. Keidel's disability or inability or failure for any reason to act, Mr. Hugh H. McGee, of Bankers Trust Company, and Mr. L. P. Christenson, of Manufacturers Trust Company, shall jointly act as Bank Agent. In case of Mr. McGee's disability or inability or failure for any reason to act Mr. J. B. Everett, of Bankers Trust Company, shall act in his place, and in case of Mr. Christenson's disability or inability or failure for any reason to act, Mr. R. A. Lockwood, of Manufacturers Trust Company, shall act in his place. In case both Mr. McGee and Mr. Everett shall be unable or for any reason shall fail to act at any time during the life of this Agreement, their successors shall be appointed in writing by the then President of Bankers Trust Company, and in case Mr. Christenson and Mr. Lockwood shall be unable to for any reason shall fail to act at any time during the life of this Agreement, their successors shall be appointed in writing by the then President of Manufacturers Trust Company. The Bank Agent is authorized on behalf of the Banks to determine for them when any breach of any of the terms or covenants of this Agreement by any of the parties hereto other than the Banks shall have occurred, and is further authorized thereafter on behalf of the Banks in accordance with the terms hereof to terminate the Loans and mature the obligations hereunder, which action (joined in by_both if two persons are then acting as Bank Agent) shall be binding upon the Banks. Any such action of the Bank Agent shall be evidenced in writing and addressed to the Parent Corporation at its office, 1430 Peel Street, Montreal, and to all other Borrowers at 405 Lexington Avenue, New York City, and shall be operative when sent by registered mail, postage prepaid. Whenever in this Agreement the action or consent of the Bank Agent is required or provided for, the Banks agree that they will act in pursuance of such action or consent of the Bank Agent, or in the absence of action or consent of the Bank Agent, by unanimous consent or action of the Banks themselves. TENTH: Upon the insolvency of, or upon the suspension of business of, or the filing of a voluntary petition in bankruptcy by, or the filing of a voluntary petition pursuant to or purporting to be pursuant to the Acts of Congress relating to bankruptcy or amendatory of such Acts by, or an adjudication of bankruptcy of, or the making of an assignment for the benefit of creditors by or the consent by any one of the parties of the first part to the appointment of any receiver of or of a substantial part of the property of such party or (if the Bank Agent above referred to shall so determine) of any one or more subsidiaries constituting so substantial a part of the enterprise as seriously to affect the business as a whole, then and in any such event, any and all liabilities under this Agreement or incurred pursuant hereto shall become at once due and payable without notice, presentation, or demand of payment, and notwithstanding any credit or time allowed by this Agreement or any instrument evidencing any of said liabilities and the term of the said Loans shall thereupon forthwith cease. Upon the entry of an order pursuant to or purporting to be pursuant to the Acts of Congress relating to bankruptcy or amendatory of such Acts, approving a petition or answer seeking reorganization of, or of an order appointing any receiver of or of a substantial part of the property of, or the issuance of a warrant of attachment against the property of, any one of the parties of the first part or any one or more subsidiary constituting so substantial a part of the enterprise as in the determination of the Bank Agent shall seriously affect the business as a whole, then and in that event unless such order approving a petition or answer seeking reorganization, or order appointing a receiver as dismissed or stayed within 90 days from its entry (during which period, if the Bank Agent so determines, the Banks shall not be required to make any additional advances under said Loans) or such attachment be dismissed or bonded within a period of thirty days from its levy, then at the option of the Banks, acting through the aforesaid Bank Agent, any and all liabilities under this Agreement or incurred pursuant hereto shall become at once due and payable without notice, presentation or demand of payment, and notwithstanding any credit or time allowed by this Agreement or any instrument evidencing any of said liabilities, and the terms of said Loans shall thereupon forthwith cease. Nothing in this paragraph shall limit any rights which the Banks might otherwise have. ELEVENTH: No delay on the part of any of the parties in exercising any of the rights hereunder, and any one or more failures to act, and no partial or single exercise thereof, shall constitute a waiver of such rights. TWELFTH: The Parent Corporation and each of the other parties of the first part jointly and severally agree that the first moneys advanced hereunder shall be used by them to effect repayment of certain notes payable to Bankers Trust Company and Manufacturers Trust Company in an aggregate amount of $6,250,000, plus interest, and hereby authorize and request Bankers Trust Company, on its behalf and on behalf of Manufacturers Trust Company, to effect such repayment for account of the parties of the first part out of the first sums advanced hereunder. THIRTEENTH: It is understood that the presently outstanding note or notes of the Parent Corporation and/or the other parties of the first part, due November 2, 1941, in an aggregate principal amount of Five million Dollars ($5,000,000), shall continue to remain outstanding and shall be unaffected by this Agreement. FOURTEENTH: This Agreement may be executed in any number of counterparts which, together shall constitute but one Agreement. IN WITNESS WHEREOF the parties hereto have caused these presents to be signed by their proper officers thereunto duly authorized as of the day and year first above written, DISTILLERS CORPORATION-SEAGRAMS, LIMITED, By President. Attest: Assistant Treasurer, JOSEPH E. SEAGRAM & Sons, INC., (an Indiana corporation) Vice President. surer. JOSEPH E. SEAGRAM & Sons, Inc., (a Delaware corporation) By Vice President. Attest: JOSEPH E. SEAGRAM & SONS, INC., (a Maryland corporation) Ву Vice President. Attest: Assistant Treasurer. SEAGRAM-DISTILLERS CORPORATION, (a Delaware corporation) Ву Vice President. Attest: Assistant Treasurer. MARYLAND DISTILLERY, INC., (a Maryland corporation) By Vice President. Attest: Assistant' Treasurer. THE CALVERT DISTILLING Co., (a Maryland corporation) By Vice President. Attest: Assistant Treasurer. CALVERT-DISTILLERS CORPORATION, (a Maryland corporation) By Vice President. Attest: Assistant Treasurer. LINCOLN INN DISTILLING Co., Inc., (a Delaware corporation) By Vice President. Attest: Assistant Treasurer. JULIUS KESSLER DISTILLING Co., INC., Vice President. Attest: DISTILLERS CORPORA DIRECTORS AND COMP. GIBSON MANUFACTURERS TRUST CO. PROTECTIVE COMM. SURETY CO. TORS OF GERMANY FRIEL SCHWENGEL BRONFMAN, A. BRINTCAN INVESTMENTS, LTD. BRONFMAN, S. GLOBE BEDDING CO., LTD. BRINTCAN INVESTMENTS, LTD. CLELAND JORDAN WINE CO., LTD. |