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AMENDED AND RESTATED
CREDIT AGREEMENT
Among
XXXXX ALUMINUM CORPORATION
and
CREDIT AGRICOLE INDOSUEZ, AS AGENT,
and
THE LENDING INSTITUTIONS LISTED HEREIN
--------------------
Dated as of December 21, 1994
and
Amended and Restated as of
May 28, 1997
--------------------
$15,000,000
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TABLE OF CONTENTS
Page
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SECTION 1. Amount and Terms of Credit........................................................................2
1.01 Commitments...................................................................................2
1.02 Minimum Amount of Each Borrowing; Maximum Number of Borrowings................................2
1.03 Notice of Borrowings..........................................................................3
1.04 Disbursement of Funds.........................................................................3
1.05 Notes.........................................................................................4
1.06 Conversions...................................................................................5
1.07 Pro Rata Borrowings...........................................................................6
1.08 Interest......................................................................................6
1.09 Interest Periods..............................................................................7
1.10 Special Provisions Governing LIBOR Loans......................................................8
1.11 Capital Requirements.........................................................................12
1.12 Total Loan Commitments; Limitations on Outstanding Loan Amounts..............................13
1.13 Letters of Credit.............................................................................13
1.14 Restatement Effective Date; Effect of Restatement.............................................22
SECTION 2. Commitments......................................................................................24
2.01 Voluntary Reduction of Commitments...........................................................24
2.02 Mandatory Adjustments of Commitments, etc....................................................24
2.03 Commitment Commission........................................................................24
SECTION 3. Payments..........................................................................................24
3.01 Voluntary Prepayments.........................................................................25
3.02 Mandatory Prepayments........................................................................25
3.03 Method and Place of Payment...................................................................27
3.04 Net Payments.................................................................................28
SECTION 4. Conditions Precedent.............................................................................30
4.01 Conditions Precedent to Effectiveness of Agreement...........................................30
4.02 Conditions Precedent to All Loans.............................................................36
4.03 Conditions Precedent to All Letters of Credit.................................................38
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SECTION 5. Representations, Warranties and Agreements.......................................................39
5.01 Corporate Status..............................................................................39
5.02 Corporate Power and Authority; Business.......................................................39
5.03 No Violation..................................................................................40
5.04 Litigation....................................................................................41
5.05 Use of Proceeds...............................................................................41
5.06 Governmental Approvals, etc...................................................................41
5.07 Investment Company Act........................................................................42
5.08 Public Utility Holding Company Act............................................................42
5.09 True and Complete Disclosure..................................................................42
5.10 Financial Condition; Financial Statements; Projections........................................43
5.11 Security Interests............................................................................45
5.12 Tax Returns and Payments......................................................................45
5.13 ERISA.........................................................................................46
5.14 Subsidiaries..................................................................................47
5.15 Patents, etc..................................................................................47
5.16 Compliance with Laws, etc.....................................................................48
5.17 Properties....................................................................................48
5.18 Securities....................................................................................48
5.19 Collective Bargaining Agreements..............................................................48
5.20 Indebtedness Outstanding......................................................................49
5.21 Environmental Matters.........................................................................49
5.22 Environmental Investigations..................................................................51
SECTION 6. Affirmative Covenants.............................................................................51
6.01 Information Covenants.........................................................................51
6.02 Books, Records and Inspections................................................................57
6.03 Maintenance of Property; Insurance............................................................57
6.04 Payment of Taxes..............................................................................58
6.05 Corporate Franchises..........................................................................58
6.06 Compliance with Statutes, etc.................................................................58
6.07 ERISA.........................................................................................59
6.08 Performance of Obligations....................................................................59
6.09 Fiscal Quarters; Fiscal Year..................................................................60
6.10 Use of Proceeds...............................................................................60
6.11 Intentionally Omitted.........................................................................60
6.12 No Further Negative Pledges...................................................................60
6.13 Lender Meeting................................................................................60
6.14 Pledge of Additional Collateral...............................................................60
6.15 Security Interests............................................................................61
6.16 Environmental Events..........................................................................61
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SECTION 7. Negative Covenants...............................................................................62
7.01 Changes in Business...........................................................................62
7.02 Amendments or Waivers of Certain Documents....................................................62
7.03 Liens.........................................................................................63
7.04 Indebtedness..................................................................................65
7.05 Capital Expenditures..........................................................................65
7.06 Advances, Investments and Loans...............................................................66
7.07 Prepayments of Indebtedness, etc..............................................................66
7.08 Dividends, etc................................................................................67
7.09 Transactions with Affiliates..................................................................68
7.10 Total Interest Coverage Ratio.................................................................68
7.11 Fixed Charge Coverage Ratio...................................................................69
7.12 Leverage Ratio................................................................................70
7.13 Minimum Net Worth.............................................................................70
7.14 Current Ratio.................................................................................71
7.15 Disposition of Assets.........................................................................71
7.16 Contingent Obligations........................................................................72
7.17 ERISA.........................................................................................72
7.18 Merger and Consolidations.....................................................................73
7.19 Sale and Lease-Backs..........................................................................73
7.20 Sale or Discount of Receivables...............................................................73
7.21 Issuance of Subsidiary Stock..................................................................74
7.22 Speculative Transactions......................................................................74
7.23 Subsidiaries..................................................................................74
SECTION 8. Events of Default................................................................................74
8.01 Payments......................................................................................75
8.02 Representations, etc..........................................................................75
8.03 Covenants.....................................................................................75
8.04 Default Under Other Agreements................................................................75
8.05 Bankruptcy, etc...............................................................................76
8.06 ERISA.........................................................................................76
8.07 Security Documents............................................................................77
8.08 Judgments.....................................................................................77
8.09 Ownership.....................................................................................78
SECTION 9. Definitions.....................................................................................79
SECTION 10. The Agent.....................................................................................105
10.01 Appointment.................................................................................105
10.02 Delegation of Duties........................................................................105
10.03 Exculpatory Provisions......................................................................105
10.04 Reliance by the Agent.......................................................................106
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10.05 Notice of Default...........................................................................107
10.06 Non-Reliance on Agent and Other Banks.......................................................107
10.07 Indemnification.............................................................................108
10.08 The Agent in Its Individual Capacity........................................................108
10.09 Successor Agent.............................................................................109
10.10 Resignation, Transfer by Agent..............................................................109
SECTION 11. Miscellaneous..................................................................................110
11.01 Payment of Expenses, etc....................................................................110
11.02 Right of Setoff.............................................................................111
11.03 Notices.....................................................................................111
11.04 Benefit of Agreement........................................................................112
11.05 No Waiver; Remedies Cumulative..............................................................114
11.06 Payments Pro Rata...........................................................................114
11.07 Calculations; Computations..................................................................115
11.08 Governing Law; Submission to Jurisdiction; Venue............................................115
11.09 Counterparts................................................................................116
11.10 Effectiveness...............................................................................116
11.11 Headings Descriptive........................................................................117
11.12 Amendment or Waiver.........................................................................117
11.13 Survival....................................................................................117
11.14 Domicile of Loans...........................................................................117
11.15 Waiver of Jury Trial........................................................................117
11.16 Independence of Covenants...................................................................118
ANNEX I - List of Banks
ANNEX II - Bank Addresses
Schedule 4.01J - Schedule of Corporate Insurance Policies
Schedule 4.01K(a) - Schedule of Liens
Schedule 4.01K(b) - Schedule of Restrictions
Schedule 5.01 - Schedule of Consents
Schedule 5.03 Violations
Schedule 5.04 - Schedule of Litigation
Schedule 5.16 - Schedule of Violations
Schedule 5.19 - Schedule of Collective Bargaining Agreements
Schedule 5.20 - Indebtedness Outstanding
Schedule 5.21 - Environmental Matters
EXHIBIT A - Form of Revolving Note
EXHIBIT B-1 - Form of Opinion of Kramer, Levin, Naftalis & Xxxxxxx
EXHIBIT B-2 - Form of Opinion of Local Counsel
EXHIBIT C - Form of Amended General Security Agreement
EXHIBIT D-1 - Form of Notice of Assignment
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EXHIBIT D-2 - Form of Assignment and Assumption Agreement
EXHIBIT E - Form of Notice of Borrowing
EXHIBIT F - Form of Notice of Conversion/Continuation
EXHIBIT G - Form of Notice of Issuance
EXHIBIT H - Form of Borrowing Base Certificate
EXHIBIT I-1 - Form of Officers' Certificate Regarding Conditions Precedent
EXHIBIT I-2 - Form of Officers' Certificate Regarding Environmental Review
EXHIBIT I-3 - Form of Officers' Solvency Certificate
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AMENDED AND RESTATED CREDIT AGREEMENT, dated as of December 21, 1994
and amended and restated as of May 28, 1997 (the "Agreement"), among XXXXX
ALUMINUM CORPORATION, a Maryland corporation ("Borrower"), the lending
institutions listed in Annex I (each a "Bank" and, collectively, the "Banks")
and CREDIT AGRICOLE INDOSUEZ ("Indosuez") as agent and collateral agent for the
Banks (in such capacity, the "Agent"). Unless otherwise defined herein, all
capitalized terms used herein and defined in Section 9 are used herein as so
defined.
W I T N E S S E T H :
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WHEREAS, the Borrower, the Agent and the lending institutions party
thereto have entered into a Credit Agreement dated as of December 21, 1994 and
as amended to date (the "Existing Credit Agreement"); and
WHEREAS, the Borrower has issued $105 million of its 10 1/8% Senior
Notes due 2005 (the "Senior Notes"); and
WHEREAS, Borrower desires (a) to repay all of the Borrower's
obligations, including accrued interest and prepayment premiums, under (i) the
Existing Credit Agreement and (ii) the Borrower's outstanding 14.125% Senior
Subordinated Notes due 2001 (the "Subordinated Notes") (together, the
"Refinancing"), and (b) to pay a special cash dividend of $62.00 per share to
the holders of its common stock, to settle existing employee stock options and
to repurchase shares of its common stock (as more fully defined herein, the
"Distributions") and, in each case, to pay related fees and expenses (the
Refinancing and the Distributions together, the "Recapitalization"); and
WHEREAS, as part of the Refinancing, Borrower has requested that the
Banks amend and restate the Existing Credit Agreement to permanently terminate
all Term Loan Commitments (as defined in the Existing Credit Agreement) and
make available to Borrower the revolving credit facilities described herein;
and
WHEREAS, as part of the Refinancing, Borrower has requested that the
Banks amend the General Security Agreement to provide security only with
respect to inventory and accounts receivable and release all other security
interests; and
WHEREAS, the Banks are willing to make available the credit facilities
provided for herein.
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SECTION 1. Amount and Terms of Credit.
1.01 Commitments. Subject to and upon the terms and
conditions herein set forth, each Bank severally agrees at any time and from
time to time on and after the Closing Date and prior to the Final Revolving
Loan Maturity Date, to make a Loan or Loans to the Borrower under the Loan
Facility (each a "Revolving Loan" and, collectively, the "Revolving Loans")
which (i) shall be made at any time and from time to time on and after the
Closing Date and prior to the Final Revolving Loan Maturity Date, (ii) except
as hereinafter provided, shall initially be made as Base Rate Loans but may,
at the Borrower's option and subject to the terms hereof, thereafter be
converted into LIBOR Loans; provided that all Revolving Loans made by all
Banks pursuant to the same Borrowing shall, unless otherwise specifically
provided herein, consist entirely of Loans of the same Type, (iii) may be
repaid and reborrowed in accordance with the provisions hereof, (iv) shall
not exceed for any Bank at any time outstanding the Revolving Loan Commitment
of such Bank at such time and (v) shall not be made if the aggregate principal
amount of Revolving Loans then outstanding, after giving effect to the
Revolving Loan requested by the relevant Notice of Borrowing, plus the then
outstanding Letters of Credit Usage, after giving effect to the issuance of
all Letters of Credit subject to outstanding Requests for Issuance, would
exceed the lesser of the Borrower's Borrowing Base as shown in the Borrowing
Base Certificate that was last required to be delivered pursuant to Section
6.01 or the Total Revolving Loan Commitment.
1.02. Minimum Amount of Each Borrowing; Maximum Number of
Borrowings. The minimum aggregate principal amount of a Borrowing of Loans
shall be $100,000 and Borrowings in excess thereof shall be in integral
multiples of $100,000. At no time shall there be more than six (6) Borrowings
of LIBOR Loans.
1.03 Notice of Borrowings. Whenever the Borrower
desires that the Banks make Loans under the Loan Facility it shall give the
Agent at the Agent's Office (i) prior to 10:00 A.M. (New York time) at least
three Business Days' prior written notice (or telephonic notice promptly
confirmed in writing) of each Borrowing of LIBOR Loans and (ii) at least one
Business Day's prior written notice (or telephonic notice promptly confirmed in
writing) of each Borrowing of Base Rate Loans; provided that if written notice
(or telephonic notice promptly confirmed in writing) is given prior to 10:00
A.M. (New York time) on the day of a requested Borrowing, Borrowings of Base
Rate Loans may be made
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available on a same-day basis. Each such notice, which shall be
substantially in the form of Exhibit E hereto (each a "Notice of Borrowing")
shall be irrevocable, shall be deemed a representation by the Borrower that all
conditions precedent to such Borrowing have been satisfied and shall specify
(a) the aggregate principal amount in U.S. dollars of the Loans to be made
pursuant to such Borrowing, all of which shall be specified in such manner as
is necessary to comply with all limitations on Revolving Loans outstanding
hereunder, including without limitation, availability under the Borrowing Base,
(b) the requested date of Borrowing (which shall be a Business Day) and (c)
whether the respective Borrowing shall consist of Base Rate Loans or LIBOR
Loans and, if LIBOR Loans, the requested Interest Period to be initially
applicable thereto. The Agent shall as promptly as practicable give each Bank
written notice (or telephonic notice promptly confirmed in writing) of each
proposed Borrowing, of such Bank's proportionate share thereof and of the other
matters covered by the Notice of Borrowing.
1.04 Disbursement of Funds. (a) No later than 1:00 P.M.
(New York time) on the date specified in each Notice of Borrowing, each Bank
will make available to the Agent in New York, N.Y. its pro rata portion of
each Borrowing requested to be made on such date in the manner provided below.
(b) Each Bank shall make available all amounts it is to fund
under any Borrowing on or after the Closing Date in immediately available funds
to the Agent to the account specified therefor by the Agent or if no account is
so specified at the Agent's Office and the Agent will make such funds available
to the Borrower by depositing to the account specified therefor by the Borrower
or if no account is so specified to its account at the Agent's Office the
aggregate of the amounts so made available in the type of funds received.
Unless the Agent shall have been notified by any Bank prior to the date of any
such Borrowing that such Bank does not intend to make available to the Agent
its portion of the Borrowing or Borrowings to be made on such date, the Agent
may assume that such Bank has made such amount available to the Agent on such
date of Borrowing, and the Agent, in reliance upon such assumption, may (in its
sole discretion and without any obligation to do so) make available to the
Borrower a corresponding amount. If such corresponding amount is not in fact
made available to the Agent by such Bank and the Agent has made available same
to the Borrower, the Agent shall be entitled to recover such corresponding
amount from such Bank. If such Bank does not pay such corresponding amount
forthwith upon the Agent's demand therefor, the Agent shall promptly notify the
Borrower, and the Borrower shall immediately pay such corresponding amount to
the
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Agent. The Agent shall also be entitled to recover from such Bank or the
Borrower, as the case may be, interest on such corresponding amount in respect
of each day from the date such corresponding amount was made available by the
Agent to the Borrower to the date such corresponding amount is recovered by the
Agent, at a rate per annum equal to (x) if paid by such Bank, the Federal Funds
Rate or (y) if paid by the Borrower (and/or one or more other Credit Parties),
the then applicable rate of interest, calculated in accordance with Section
1.08, for the respective Loans. The Agent shall also be entitled to recover
from any Bank an amount equal to any other losses incurred by the Agent as a
result of the failure of such Bank to provide such amount as provided in this
Agreement.
(c) Nothing herein shall be deemed to relieve any Bank from
its obligation to fulfill its commitment hereunder or to prejudice any rights
which the Borrower or any other Credit Party may have against any Bank as a
result of any default by such Bank hereunder.
1.05 Notes. (a) The Borrower's obligation to pay the
principal of and interest on all the Loans made to it by each Bank shall be
evidenced by a promissory note (each, a "Revolving Note" and, collectively, the
"Revolving Notes") duly executed and delivered by the Borrower substantially in
the form of Exhibit A hereto, with blanks appropriately completed in conformity
herewith.
(b) The Revolving Note of the Borrower issued to each Bank
shall (i) be executed by the Borrower, (ii) be payable to the order of such
Bank and be dated the Closing Date, (iii) be in a stated principal amount equal
to the Revolving Loan Commitment of such Bank and be payable in the aggregate
principal amount of the Revolving Loans evidenced thereby, (iv) mature, with
respect to each Loan evidenced thereby, on the Final Revolving Loan Maturity
Date, (v) be subject to mandatory prepayment as provided in Section 3.02, (vi)
bear interest as provided in the appropriate clause of Section 1.08 in respect
of the Base Rate Loans and LIBOR Loans, as the case may be, evidenced thereby
and (vii) be entitled to the benefits of this Agreement and the other
applicable Credit Documents.
(c) Each Bank will note on its internal records the amount of
each Loan made by it and each payment in respect thereof and will, prior to any
transfer of any of its Notes, endorse on the reverse side thereof the
outstanding principal amount of Loans evidenced thereby; provided, however,
that failure to make any such notation shall not affect the Borrower's or
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any Credit Party's obligations hereunder or under the other applicable Credit
Documents in respect of such Loans.
1.06 Conversions. Subject to the provisions of Section
1.10 hereof, the Borrower shall have the option (i) to convert on any Business
Day all or any part of its outstanding Base Rate Loans equal to at least
$100,000 and integral multiples of $100,000 in excess of such amount, to LIBOR
Loans, (ii) to convert on any Business Day all or any part of its outstanding
LIBOR Loans equal to at least $100,000 and integral multiples of $100,000 in
excess of that amount, to Base Rate Loans; provided that (a) except as
otherwise provided in Section 1.10(b), LIBOR Loans may be converted into Base
Rate Loans only on the last day of an Interest Period applicable thereto, (b)
no such partial conversion of LIBOR Loans shall reduce the outstanding
principal amount of LIBOR Loans under the Loan Facility (or Portion thereof)
made pursuant to a single Borrowing to less than $100,000, (c) a Loan may only
be continued as or converted into LIBOR Loans if no Default or Event of Default
is in existence on the date of the conversion and (d) Borrowings resulting from
conversions pursuant to this Section 1.06 shall be limited in amount and number
as provided in Section 1.02; or (iii) upon the expiration of any Interest
Period applicable to LIBOR Loans, to continue all or any portion of such Loans
equal to at least $100,000 and integral multiples of $100,000 in excess of that
amount, as LIBOR Loans, and succeeding Interest Period(s) of such continued
Loans shall commence on the last day of the Interest Period of the Loans to be
continued. Each such conversion/continuation shall be effected by the Borrower
by giving the Agent at the Agent's Office prior to 10:00 A.M. (New York time)
at least three Business Days' (or one Business Day in the case of a conversion
into Base Rate Loans) prior written notice (or telephonic notice promptly
confirmed in writing) (each a "Notice of Conversion/Continuation"),
substantially in the form of Exhibit F hereto, specifying the Loans to be so
converted, the Type of Loans to be converted into, the proposed
conversion/continuation date, and, if to be converted into LIBOR Loans, the
requested Interest Period or Interest Periods to be initially applicable
thereto. The Agent shall give each Bank notice as promptly as practicable of
any such proposed conversion affecting any of its Loans. Notwithstanding the
foregoing or the provisions of Section 1.09, if a Default or Event of Default
is in existence at the time any Interest Period in respect of any Borrowing of
LIBOR Loans is to expire, such Loans may not be continued as LIBOR Loans but
instead shall be automatically converted on the last day of such Interest
Period into Base Rate Loans. If no Notice of Conversion/Continuation has been
duly delivered with respect to a LIBOR Loan on or before the third Business Day
prior to the
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last day of the Interest Period applicable thereto, such LIBOR Loan shall be
automatically converted into a Base Rate Loan.
Except as provided in Section 1.10 hereof, a Notice of
Conversion/Continuation for conversion to or continuation of LIBOR Loans or for
conversion to Base Rate Loans shall be irrevocable.
The giving to the Agent of a Notice of
Conversion/Continuation with respect to Loans which are to be converted to or
continued as LIBOR Loans shall be deemed to be a representation by the Borrower
on the date of such Notice of Conversion/Continuation that no Default or Event
of Default has occurred and is continuing under this Agreement.
1.07 Pro Rata Borrowings. All Borrowings under this
Agreement shall be loaned by the Banks pro rata on the basis of their Revolving
Loan Commitments. No Bank shall be responsible for any default by any other
Bank in its obligation to make Loans hereunder and each Bank shall be obligated
to make the Loans provided to be made by it hereunder, regardless of the
failure of any other Bank to fulfill its commitments hereunder.
1.08 Interest. (a) Subject to the provisions of
paragraph (c) below, the unpaid principal amount of each Base Rate Loan shall
bear interest from the date of the Borrowing thereof until maturity (whether by
acceleration or otherwise) (or unless sooner converted into a LIBOR Loan) at a
rate per annum equal to the sum of (i) the Base Rate in effect from time to
time and (ii) the applicable Interest Margin.
(b) Subject to the provisions of paragraph (c) below, the
unpaid principal amount of each LIBOR Loan shall bear interest from the date of
the Borrowing thereof until maturity (whether by acceleration or otherwise) (or
unless sooner converted to a Base Rate Loan) at a rate per annum equal to the
Adjusted LIBOR Rate.
(c) Interest at a rate per annum equal to the rate of
interest applicable as provided in paragraphs (a) or (b) above plus 2%, shall
accrue and be payable in respect of each Loan upon (i) the unpaid principal
amount of each Loan, upon the occurrence and during the continuance of an Event
of Default described in Section 8.01 or 8.03(a), (ii) overdue principal and
(iii) to the extent permitted by law, overdue interest.
(d) Interest shall accrue from and including the date of any
Borrowing to but excluding the date of any repayment
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thereof and shall be payable (i) in respect of each Base Rate Loan, quarterly
in arrears on the last Business Day of each March, June, September and
December beginning June 30, 1997; (ii) in respect of each LIBOR Loan, in
arrears on the last day of each Interest Period applicable thereto and, in the
case of an Interest Period in excess of three months, on each date occurring
at three-month intervals after the first date of such Interest Period; and
(iii) in respect of each Loan, on any prepayment (on the amount prepaid), at
maturity (whether by acceleration or otherwise) and, after such maturity, on
demand.
(e) All computations of interest hereunder shall be made
in accordance with Section 11.07(b).
(f) The Agent, upon determining the interest rate for any
Borrowing of LIBOR Loans for any Interest Period, shall promptly notify the
Borrower and the Banks thereof. Such determination shall, absent manifest
error, be final, conclusive and binding upon all parties hereto.
1.09 Interest Periods. At the time the Borrower gives a
Notice of Borrowing or Notice of Conversion/Continuation in respect of the
making of, conversion into, or continuation of, a Borrowing of LIBOR Loans, it
shall have the right to elect, by giving the Agent written notice (or
telephonic notice promptly confirmed in writing), the Interest Period
applicable to such Borrowing, which Interest Period shall, at the option of the
Borrower, be a one, two, three or six month period.
(a) the initial Interest Period for any Borrowing of LIBOR
Loans shall commence on the date of such Borrowing (including the date
of any conversion from a Borrowing of Base Rate Loans) and each
Interest Period occurring thereafter (including continuations thereof)
in respect of such Borrowing shall commence on the date on which the
next preceding Interest Period expires;
(b) if any Interest Period relating to a Borrowing of LIBOR
Loans begins on a date for which there is no numerically corresponding
date in the calendar month in which such Interest Period ends, such
Interest Period shall end on the last Business Day of such calendar
month;
(c) if any Interest Period would otherwise expire on a day
which is not a Business Day, such Interest Period shall expire on the
next succeeding Business Day; provided that if any Interest Period in
respect of a LIBOR Loan would otherwise expire on a day which is not a
Business Day but is a
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day of the month after which no further Business Day occurs in such
month, such Interest Period shall expire on the next preceding
Business Day; and
(d) no Interest Period shall extend beyond the Final
Revolving Loan Maturity Date.
1.10 Special Provisions Governing LIBOR Loans.
Notwithstanding other provisions of this Agreement, the following provisions
shall govern with respect to LIBOR Loans as to the matters covered:
(a) On an Interest Rate Determination Date, the Agent shall
determine (which determination shall, absent manifest error, be final,
conclusive and binding upon all parties hereto) the interest rate
which shall apply to the LIBOR Loans for which an interest rate is
then being determined for the applicable Interest Period and shall
promptly give notice thereof (in writing or by telephone confirmed in
writing) to the Borrower and to each Bank.
(b) In the event that (x) in the case of clause (i) below,
the Agent or (y) in the case of clause (ii) or (iii) below, any Bank,
shall have determined (which determination shall, absent manifest
error, be final, conclusive and binding upon all parties hereto):
(i) on any Interest Rate Determination Date that,
by reason of any changes arising on or after the Closing Date
affecting the interbank eurodollar market, adequate and fair
means do not exist for ascertaining the applicable interest
rate on the basis provided for in the definition of LIBOR;
(ii) at any time that such Bank shall incur
increased costs or reductions in the amounts received or
receivable hereunder with respect to any LIBOR Loans or its
obligation to make LIBOR Loans because of (x) any change
since the Closing Date (including changes proposed or
published prior to the Closing Date) in any applicable law,
governmental rule, regulation, guideline, request or order,
whether or not having the force of law, or in the
interpretation or administration thereof and including the
introduction of any new law or governmental rule, regulation,
guideline, request or order, such as, for example, but not
limited to: (A) a change in the basis of taxation of payments
to any Bank of the principal of or interest on the Notes or
any
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other amounts payable hereunder (except for changes in
the rate of tax on, or determined by reference to, the net
income or profits of such Bank pursuant to the laws of the
jurisdiction in which it is organized or in which its
principal office or applicable lending office is located or
any subdivision thereof or therein) or (B) a change in
official reserve requirements, but, in all events, excluding
reserves required under Regulation D to the extent included
in the computation of Adjusted LIBOR and/or (y) other
circumstances since the date of this Agreement affecting such
Bank or the interbank Eurodollar market or the position of
such Bank in such market; or
(iii) at any time that the making or continuance of
any LIBOR Loan has become unlawful by compliance by such Bank
in good faith with any law, governmental rule, regulation,
guideline or order (or would conflict with any such
governmental rule, regulation, guideline or order not having
the force of law even though the failure to comply therewith
would not be unlawful), or has become impracticable as a
result of a contingency occurring after the Closing Date
which materially and adversely affects the interbank
eurodollar market;
then, and in any such event, the Agent in the case of clause (i) above
or such Bank in the case of clause (ii) or (iii) above shall on such
date give notice (by telephone confirmed in writing) to the Borrower
of the Loan affected and, in the case of clause (ii) or (iii) to the
Agent, of such determination (which notice the Agent shall promptly
transmit to each of the other Banks). Thereafter (x) in the case of
clause (i) above, LIBOR Loans shall no longer be available until such
time as the Agent notifies the Borrower and the Banks that the
circumstances giving rise to such notice by the Agent no longer exist,
and any Notice of Borrowing or Notice of Conversion/Continuation given
by the Borrower with respect to the borrowing of or conversion into
(including continuance of) LIBOR Loans which have not yet been
incurred shall be deemed rescinded by the Borrower, (y) in the case of
clause (ii) above, the Borrower of the Loan affected shall pay to such
Bank, upon written demand therefor, such additional amounts (in the
form of an increased rate of, or a different method of calculating,
interest or otherwise as such Bank in its reasonable discretion shall
determine) as shall be required to compensate such Bank for such
increased costs or reductions in amounts receivable hereunder (a
written notice as to the additional amounts
-10-
owed to such Bank, showing the basis for the calculation thereof,
submitted to the Borrower of the Loan affected by such Bank shall,
absent manifest error, be final, conclusive and binding upon all
parties hereto) and (z) in the case of clause (iii) above, the
Borrower of the Loan affected shall take one of the actions specified
in Section 1.10(c) as promptly as possible and, in any event, within
the time period required by law.
(c) At any time that any LIBOR Loan is affected by the
circumstances described in Section 1.10(b)(ii) or (iii), the Borrower
may (and in the case of a LIBOR Loan affected pursuant to Section
1.10(b)(iii) shall) either (i) if a Notice of Borrowing or Notice of
Conversion/Continuation has been given with respect to the affected
LIBOR Loan, cancel said Notice of Borrowing or Notice of
Conversion/Continuation by giving the Agent telephonic notice
(confirmed promptly in writing) thereof on the same date that such
Borrower was notified by a Bank pursuant to Section 1.10(b)(ii) or
(iii), or (ii) if the affected LIBOR Loan is then outstanding, upon at
least three Business Days' notice to the Agent, require the affected
Bank to convert each such LIBOR Loan into a Base Rate Loan, or prepay
such LIBOR Loan; provided that if more than one Bank is affected at
any time, then all affected Banks must be treated the same pursuant to
this Section 1.10(c); and provided, further, that the Borrower shall
compensate any such affected Banks as set forth in Section 1.10(f).
(d) Anything herein to the contrary notwithstanding, if on
any Interest Rate Determination Date no LIBOR rate is available by
reason of the inability of the Agent to determine such interest rate
in accordance with the definition thereof, the Agent shall give the
Borrower and each Bank prompt notice thereof and the Loans requested
to be made as LIBOR Loans shall, subject to the applicable notice
requirements, be made as Base Rate Loans.
(e) Each Bank agrees that, as promptly as practicable after
it has actual knowledge of the occurrence of any event or the
existence of a condition that would cause it to be an affected Bank
under Section 1.10(b)(ii) or (iii), it will, to the extent not
inconsistent with such Bank's internal policies, use reasonable
efforts to make, fund or maintain the affected LIBOR Loans of such
Bank through another lending office of such Bank if as a result
thereof the additional moneys which would otherwise be required to be
paid in respect of such Loans pursuant to Section 1.10(b)(ii)
-11-
would be materially reduced or the illegality or other adverse
circumstances which would otherwise require prepayment of such Loans
pursuant to Section 1.10(b)(iii) would cease to exist, and if, as
determined by such Bank, in its reasonable discretion, the making,
funding or maintaining of such Loans through such other lending
office would not otherwise materially adversely affect such Loans or
such Bank. The Borrower hereby agrees to promptly pay all reasonable
expenses incurred by any Bank in utilizing another lending office of
such Bank pursuant to this Section 1.10(e).
(f) The Borrower shall compensate each Bank, upon written
request by that Bank, for all reasonable losses, expenses and
liabilities (including, without limitation, such factors as any
interest paid by that Bank to lenders of funds borrowed by it to make
or carry its LIBOR Loans and any loss sustained by that Bank in
connection with re-employment of such funds (based upon the difference
between the amount earned in connection with the re-employment of such
funds and the amount payable by the Borrower if such funds had been
borrowed or remained outstanding)) which that Bank may sustain with
respect to the Borrower's LIBOR Loans: (i) if for any reason (other
than a default or error by that Bank) a Borrowing of any LIBOR Loan
does not occur on a date specified therefor in a Notice of Borrowing,
a Notice of Conversion/Continuation or a telephonic request for
borrowing, conversion or continuation, or a successive Interest Period
does not commence after notice therefor is given pursuant to Section
1.6 hereof (whether or not withdrawn by the Borrower or deemed
withdrawn pursuant to Section 1.10(b)(i)); or (ii) if any prepayment
or repayment (as required by Section 3.01 or 3.02 hereof, by
acceleration or otherwise) or conversion of any of such Bank's LIBOR
Loans occurs on a date which is not the last day of the Interest
Period applicable to that Loan; or (iii) if any prepayment or
repayment of any such Bank's LIBOR Loans is not made on any date
specified in a notice of prepayment or repayment given by the
Borrower; or (iv) as a consequence of (x) any other failure by the
Borrower to repay such Bank's LIBOR Loans when required by the terms
of this Agreement or (y) any election made pursuant to Section
1.10(b)(ii). Compensation owing under this Section 1.10(f) shall be
equal to the amount of interest which would have accrued on the amount
of principal prepaid or repaid or converted or not borrowed for the
period from the date of such prepayment or repayment or conversion or
failure to borrow or prepay or repay to the last day of the then
current Interest Period for the relevant LIBOR Loan (or, in the case
of a failure to
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borrow, the Interest Period for such LIBOR Loan which would have
commenced on the date of such failure to borrow) at the
applicable rate of interest for such LIBOR Loan provided for herein
minus any amount such Bank, in good faith and in its sole discretion,
determines is realizable upon the re-employment of such funds. A
certificate as to the amount of such losses, expenses and liabilities
submitted to the Borrower by such Bank shall, absent manifest error,
be final, conclusive and binding for all purposes.
(g) Any Bank may make, carry or transfer LIBOR Loans at, to
or for the account of any of its branch offices or the office of an
Affiliate of that Bank; provided that any increased costs associated
therewith shall be borne by such Bank.
(h) During the continuance of a Default or Event of Default,
the Borrower may not elect to have a Loan made or maintained as, or
converted into, a LIBOR Loan after the expiration of any Interest
Period then in effect for that Loan.
1.11 Capital Requirements. If any Bank shall have
determined that the adoption or effectiveness after the Closing Date of any
applicable law, rule or regulation regarding capital adequacy, or any change
therein, or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by such Bank or such
Bank's parent with any request or directive regarding capital adequacy (whether
or not having the force of law) of any such authority, central bank or
comparable agency (including in each case any such change proposed or published
prior to the date hereof), has or would have the effect of reducing the rate of
return on such Bank's or such Bank's parent's capital or assets as a
consequence of such Bank's obligations hereunder to a level below that which
such Bank or such Bank's parent could have achieved but for such adoption,
effectiveness or change or as a consequence of an increase in the amount of
capital required to be maintained by such Bank (including in each case, without
limitation, with respect to any Bank's Commitment or any Loan), then from time
to time, within 15 days after demand by such Bank (with a copy to the Agent),
the Borrower shall pay to such Bank such additional amount or amounts as will
compensate such Bank or such Bank's parent, as the case may be, for such
reduction. Each Bank, upon determining in good faith that any additional
amounts will be payable pursuant to this Section 1.11, will give prompt written
notice thereof to the Borrower, which notice shall set
-13-
forth in reasonable detail the basis of the calculation of such additional
amounts, although any delay in giving any notice shall not release or diminish
any of the Borrower's obligations to pay additional amounts pursuant to this
Section 1.11.
1.12 Total Loan Commitments; Limitations on Outstanding
Loan Amounts. The amount of the Total Revolving Loan Commitment is $15,000,000,
including up to $5,000,000 of Letters of Credit. Anything contained in this
Agreement to the contrary notwithstanding, (a) in no event shall the sum of the
aggregate principal amount of all Revolving Loans and Letter of Credit
Participations of any Bank at any time exceed such Bank's pro rata share of the
Total Revolving Loan Commitment, (b) in no event shall the sum of the aggregate
principal amount of all Revolving Loans and Letter of Credit Participations
from all Banks at any time exceed the Total Revolving Loan Commitment and (c)
in no event shall the Total Utilization of Revolving Loan Commitment plus
outstanding Letter of Credit Participations exceed the lesser of the Total
Revolving Loan Commitment or the Borrowing Base.
1.13 Letters of Credit.
(A) Letters of Credit. Subject to the terms and conditions of
this Agreement and in reliance upon the representations and warranties of the
Borrower set forth herein and in the other Documents, in addition to requesting
that the Banks make Revolving Loans pursuant to Section 1.03, the Borrower may
request, in accordance with the provisions of this Section 1.13, that one or
more Issuing Banks issue Letters of Credit for the account of the Borrower;
provided that (i) the Borrower shall not request that an Issuing Bank issue any
Letter of Credit and an Issuing Bank shall not issue any Letter of Credit, if,
after giving effect to such issuance the sum of (a) the then outstanding
Letters of Credit Usage, after giving effect to the issuance of all Letters of
Credit subject to outstanding requests for issuance of a Letter of Credit, plus
(b) the aggregate principal amount of Revolving Loans then outstanding, after
giving effect to the making of all Revolving Loans then requested by all
outstanding but unfunded Notices of Borrowing, would exceed the lesser of the
Borrower's Borrowing Base as shown in the Borrowing Base Certificate that was
last required to be delivered pursuant to Section 6.01 or the Total Revolving
Loan Commitment then in effect, (ii) in no event shall any Issuing Bank issue
(w) any Letter of Credit having an expiration date later than thirty (30)
Business Days prior to the Final Revolving Loan Maturity Date after giving
effect to any possible renewal of such Letter of Credit pursuant to the proviso
of the following clause (ii)(x),
-14-
(x) subject to the foregoing clause (ii)(w), any Letter of Credit
having an expiration date more than one year after its date of issuance;
provided that, subject to the foregoing clause (ii)(w), this clause (x) shall
not prevent any Issuing Bank from issuing a Letter of Credit containing a
provision to the effect that such Letter of Credit will automatically be
renewed annually for a period not to exceed one year, so long as such renewable
Letter of Credit provides that it shall not at any time be renewed for an
additional year if (I) the Borrower notifies the Issuing Bank in writing one
Business Day prior to the applicable renewal date that the Borrower elects to
allow the Letter of Credit to expire without being renewed, or (II) the Issuing
Bank or the Required Banks notify the Borrower in writing, prior to the date
set forth in such Letter of Credit as the date by which the beneficiary thereof
is to be notified whether such Letter of Credit is to be renewed, that such
Letter of Credit shall not be so renewed, in which case such Letter of Credit
shall not be so renewed, (y) any Letter of Credit, the initial stated amount of
which is less than $100,000, or (z) any Letter of Credit (I) as to which a
drawing can be made in a location other than in the United States of America,
(II) which is governed by laws other than the laws of the State of New York,
without regard to the principles of conflicts of laws or (III) as to which the
beneficiary is not required, by acceptance of the Letter of Credit, to be
subject to the exclusive jurisdiction of any competent state or federal court
in the State of New York with regard to such Letter of Credit and (iii) the
Borrower shall not request that any Issuing Bank issue and no Issuing Bank
shall issue any Letter of Credit if, after giving effect to such issuance and
the issuance of all other requested Letters of Credit, the then outstanding
Letters of Credit Usage in respect of all Letters of Credit would exceed
$5,000,000.
The issuance of any Letter of Credit in accordance with the
provisions of this Section 1.13 shall be given effect in the calculation of the
aggregate principal amount of Revolving Loans outstanding and the Letters of
Credit Usage and shall require the satisfaction of each condition set forth in
Sections 4.02 and 4.03; provided that the Borrower shall pay interest, charges
and commissions on such issued Letters of Credit only pursuant to this Section
1.13.
Immediately upon the issuance of each Letter of Credit, each
Bank other than the Issuing Bank or Banks shall be deemed to, and hereby agrees
to, have irrevocably purchased from the Issuing Bank a participation (such
participation of each Bank in each Letter of Credit being hereinafter referred
to as its "Letter of Credit Participation") in such Letter of Credit and
-15-
each drawing thereunder in an amount equal to such Bank's pro rata share
(determined on the basis of such Bank's Revolving Loan Commitment) of the
maximum amount which is or at any time may become available to be drawn
thereunder.
Each Letter of Credit may provide that the Issuing Bank may
(but shall not be required to) pay the beneficiary thereof upon the occurrence
of an Event of Default and the acceleration of the maturity of the Loans or, if
payment is not then due to the beneficiary, provide for the deposit of funds in
an account to secure payment to the beneficiary and that any funds so deposited
shall be paid to the beneficiary of the Letter of Credit if conditions to such
payment are satisfied or returned to the Issuing Bank for distribution to the
Banks (or, if all Obligations shall have been indefeasibly paid in full, to the
Borrower) if no payment to the beneficiary has been made and the final date
available for drawings under the Letter of Credit has passed. Each payment or
deposit of funds by an Issuing Bank as provided in this paragraph shall be
treated for all purposes of this Agreement as a drawing duly honored by such
Issuing Bank under the related Letter of Credit.
(B) Request for Issuance. Whenever the Borrower desires the
issuance of a Letter of Credit, it shall deliver to the Agent a request for
issuance of a Letter of Credit (a "Notice of Issuance"), substantially in the
form of Exhibit G hereto, no later than 10:00 A.M. (New York time) at least
three Business Days, or such shorter period as may be agreed to by any Issuing
Bank in any particular instance, in advance of the proposed date of issuance.
The Notice of Issuance with respect to any Letter of Credit shall specify (i)
the proposed date of issuance (which shall be a Business Day under the laws of
the jurisdiction of the Issuing Bank) of such Letter of Credit, (ii) the face
amount of such Letter of Credit, (iii) the expiration date of such Letter of
Credit and (iv) the name and address of the beneficiary of such Letter of
Credit. As soon as practicable after delivery of such request for issuance of a
Letter of Credit, the Issuing Bank for such Letter of Credit shall be
determined as provided in Section 1.13(C). At least two Business Days prior to
the date of issuance, or such shorter period as may be agreed to by any Issuing
Bank in any particular instance, the Borrower shall specify a precise
description of the documents and the verbatim text of any certificate to be
presented by the beneficiary of such Letter of Credit which, if presented by
such beneficiary prior to the expiration date of the Letter of Credit, would
require the Issuing Bank to make payment under the Letter of Credit; provided
that the Issuing Bank, in its sole judgment, may require changes in any such
documents and certificates; and provided, further, that
-16-
no Letter of Credit shall require payment against a conforming draft to be
made thereunder earlier than 1:00 P.M. in the time zone of the Issuing
Bank on the Business Day (which shall be a Business Day under the laws of the
jurisdiction of the Issuing Bank) next succeeding the Business Day (which shall
be a Business Day under the laws of the jurisdiction of the Issuing Bank) that
such draft is presented. In determining whether to pay under any Letter of
Credit, the Issuing Bank shall be responsible only to determine that the
documents and certificates required to be delivered under that Letter of Credit
have been delivered and that they comply on their face with the requirements of
that Letter of Credit. Promptly after receipt of a Notice of Issuance and the
determination of the Issuing Bank thereof, the Agent shall notify each Bank of
the proposed issuance, the identity of the Issuing Bank and the amount of each
other Bank's respective participation therein, determined in accordance with
Section 1.13(A).
(C) Determination of Issuing Bank.
(1) Upon receipt by the Agent of a Notice of Issuance
pursuant to Section 1.13(B), in the event the Agent elects to issue such Letter
of Credit, the Agent shall so notify the Borrower, and the Agent shall be the
Issuing Bank with respect thereto. In the event that the Agent, in its sole
discretion, elects not to issue such Letter of Credit, the Agent shall promptly
so notify the Borrower, and the Borrower may request any other Bank to issue
such Letter of Credit. Each such Bank so requested to issue such Letter of
Credit shall promptly notify the Borrower and the Agent whether or not, in its
sole discretion, it has elected to issue such Letter of Credit, and any such
Bank that so elects to issue such Letter of Credit shall be the Issuing Bank
with respect thereto, it being expressly understood that no Bank will have any
obligation to issue any Letter of Credit. No Issuing Bank shall issue any
Letter of Credit denominated in a currency other than Dollars.
(2) Each Issuing Bank that elects to issue a Letter of Credit
shall promptly give written notice to the Agent and each other Bank of the
information required under Section 1.13(B)(i)-(iv) relating to the Letter of
Credit.
(D) Payment of Amounts Drawn Under Letters of Credit. In the
event of any request for drawing under any Letter of Credit by the beneficiary
thereof, the Issuing Bank shall notify the Borrower and the Agent on or before
the date on which such Issuing Bank intends to honor such drawing, and the
Borrower shall reimburse such Issuing Bank on the day on which such drawing is
honored in an amount in same day funds equal to the amount
-17-
of such drawing; provided that, anything contained in this Agreement
to the contrary notwithstanding, (i) unless the Borrower shall have notified
the Agent and such Issuing Bank prior to 10:00 A.M. (New York time) on the
Business Day immediately prior to the date of such drawing that the Borrower
intends to reimburse such Issuing Bank for the amount of such drawing with
funds other than the proceeds of Revolving Loans, the Borrower shall be deemed
to have timely given a Notice of Borrowing to the Agent requesting the Banks to
make Revolving Loans that are Base Rate Loans on the date on which such drawing
is honored in an amount equal to the amount of such drawing, and (ii) subject
to satisfaction or waiver of the conditions specified in Section 4.02, the
Banks shall, on the date of such drawing, make Revolving Loans that are Base
Rate Loans in the amount of such drawing, the proceeds of which shall be
applied directly by the Agent to reimburse such Issuing Bank for the amount of
such drawing; and further provided that if, for any reason, proceeds of
Revolving Loans are not received by such Issuing Bank on such date in an amount
equal to the amount of such drawing, the Borrower shall reimburse such Issuing
Bank, on the Business Day (which shall be a Business Day under the laws of the
jurisdiction of such Issuing Bank) immediately following the date of such
drawing, in an amount in same day funds equal to the excess of the amount of
such drawing over the amount of such Revolving Loans, if any, that are so
received, plus accrued interest on such amount at the rate set forth in Section
1.13(F)(1)(i).
(E) Payment by Banks. In the event that the Borrower shall
fail to reimburse an Issuing Bank as provided in Section 1.13(D) in an amount
equal to the amount of any drawing honored by such Issuing Bank under a Letter
of Credit issued by it, such Issuing Bank shall promptly notify each Bank of
the unreimbursed amount of such drawing and of such Bank's respective
participation therein. Each Bank shall make available to such Issuing Bank an
amount equal to its respective participation in same day funds, at the office
of such Issuing Bank specified in such notice, not later than 1:00 P.M. (New
York time) on the Business Day (which shall be a Business Day under the laws of
the jurisdiction of such Issuing Bank) after the date notified by such Issuing
Bank. In the event that any Bank fails to make available to such Issuing Bank
the amount of such Bank's participation in such Letter of Credit as provided in
this Section 1.13(E), such Issuing Bank shall be entitled to recover such
amount on demand from such Bank together with interest at the customary rate
set by the Agent for the correction of errors among banks for three Business
Days and thereafter at the Base Rate. Each Issuing Bank shall distribute to
each other Bank which has paid all amounts payable by it under this Section
1.13(E) with respect to any Let-
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ter of Credit issued by such Issuing Bank such other Bank's pro rata share of
all payments received by such Issuing Bank from the Borrower in reimbursement
of drawings honored by such Issuing Bank under such Letter of Credit when such
payments are received. Nothing in this Section 1.13(E) shall be deemed to
relieve any Bank from its obligation to pay all amounts payable by it under
this Section 1.13(E) with respect to any Letter of Credit issued by an Issuing
Bank or to prejudice any rights that the Borrower or any other Bank may have
against a Bank as a result of any default by such Bank hereunder and no Bank
shall be responsible for the failure of any other Bank to pay its pro rata
share payable under this Section 1.13(E).
(F) Compensation.
(1) The Borrower agrees to pay the following amount
with respect to all Letters of Credit:
(i) with respect to drawings made under any Letter of
Credit, interest, payable on demand, on the amount paid by such
Issuing Bank in respect of each such drawing from and including the
date of the drawing through the date such amount is reimbursed by the
Borrower (including any such reimbursement out of the proceeds of
Revolving Loans pursuant to Section 1.13(D)) at a rate which is at all
times equal to 2% per annum in excess of the rate of interest
otherwise payable under this Agreement for Base Rate Loans during such
period; provided that amounts reimbursed after 12:00 noon (New York
time) on any date shall be deemed to be reimbursed on the next
succeeding Business Day; and
(ii) with respect to the issuance, amendment or transfer of
each Letter of Credit and each drawing made thereunder, documentary
and processing charges in accordance with such Issuing Bank's standard
schedule for such charges in effect at the time of such issuance,
amendment, transfer or drawing, as the case may be.
(2) The Borrower agrees to pay to the Agent for distribution
to each Bank in respect of all Letters of Credit outstanding such Bank's pro
rata share of a commission equal to 2% per annum of the maximum amount
available from time to time to be drawn under such outstanding Letters of
Credit, payable in arrears on and through the last Business Day of each March,
June, September and December and calculated on the basis of a 365-day year and
the actual number of days elapsed. Upon the happening and during the
continuance of an Event of Default described in
-19-
Section 8.01 or 8.03(a), the commission referred to in the preceding sentence
shall be 4% per annum.
(3) The Borrower agrees to pay to each Issuing Bank in
respect of all Letters of Credit outstanding issued by each such Issuing Bank a
commission equal to .25% per annum of the maximum amount available from time to
time to be drawn under each outstanding Letter of Credit issued by such Issuing
Bank, payable in arrears on and through the last Business Day of each March,
June, September and December and calculated on the basis of a 365-day year and
the actual number of days elapsed.
Amounts payable under clauses (1)(i) and (2) of this Section
1.13(F) shall be paid to the Agent on behalf of the Banks. The Agent shall
distribute to each Bank its pro rata share of such amount. Amounts payable
under clauses (1)(ii) and (3) of this Section 1.13(F) shall be paid directly to
the Issuing Bank.
(G) Obligations Absolute. The obligation of the Borrower to
reimburse each Issuing Bank for drawings made under the Letters of Credit
issued by it and the obligations of the Banks under Section 1.13(E) shall be
unconditional and irrevocable and shall be paid strictly in accordance with the
terms of this Agreement under all circumstances including, without limitation,
the following circumstances:
(1) any lack of validity or enforceability of any
Letter of Credit;
(2) the existence of any claim, setoff, defense or other
right that the Borrower or any Affiliate of the Borrower or any other
Person may have at any time against a beneficiary or any transferee of
any Letter of Credit (or any persons or entities for whom any such
beneficiary or transferee may be acting), such Issuing Bank, any Bank
or any other Person, whether in connection with this Agreement, the
transactions contemplated herein or any unrelated transaction;
(3) any draft, demand, certificate or any other document
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;
(4) payment by such Issuing Bank under any Letter of Credit
against presentation of a demand, draft or certifi-
-20-
cate or other document that does not comply with the terms of such
Letter of Credit unless such Issuing Bank shall have acted with
willful misconduct or gross negligence in issuing such payment;
(5) any other circumstance or happening whatsoever that is
similar to any of the foregoing; or
(6) the fact that a Default or Event of Default shall have
occurred and be continuing.
(H) Additional Payments. If by reason of (a) any change after
the Closing Date in applicable law, regulation, rule, decree or regulatory
requirement or any change in the interpretation or application by any judicial
or regulatory authority of any law, regulation, rule, decree or regulatory
requirement or (b) compliance by any Issuing Bank or any Bank with any
direction, request or requirement (whether or not having the force of law) of
any governmental or monetary authority including, without limitation,
Regulation D:
(i) such Issuing Bank or any Bank shall be subject to any
Non-Excluded Tax or other levy or charge of any nature or to any
variation thereof or to any penalty with respect to the maintenance or
fulfillment of its obligations under this Section 1.13, whether
directly or by such being imposed on or suffered by such Issuing Bank
or any Bank;
(ii) any reserve, deposit or similar requirement is or
shall be applicable, imposed or modified in respect of any Letter of
Credit issued by such Issuing Bank or participations therein purchased
by any Bank; or
(iii) there shall be imposed on such Issuing Bank or any
Bank any other condition regarding this Section 1.13, any Letter of
Credit or any participation therein;
and the result of the foregoing is to directly or indirectly increase the cost
to such Issuing Bank or any Bank of issuing, making or maintaining any Letter
of Credit or of purchasing or maintaining any participation therein, or to
reduce the amount receivable in respect thereof by such Issuing Bank or any
Bank, then and in any such case such Issuing Bank or such Bank shall, at any
time within a reasonable period after the additional cost is incurred or the
amount received is reduced, notify the Borrower and the Borrower shall pay on
demand such amounts as such Issuing Bank or such Bank may specify to be
necessary to compensate such Issuing Bank or such Bank for such additional cost
or
-21-
reduced receipt, together with interest on such amount from the date
demanded until payment in full thereof at a rate per annum equal at all times
to the rate applicable to Base Rate Loans then in effect; provided that the
failure of any Bank to timely give such notice shall not affect the obligation
of the Borrower to pay such amounts. A certificate in reasonable detail as to
the amount of such increased cost or reduced receipt, submitted to the Borrower
and the Agent by that Issuing Bank or any Bank, as the case may be, shall,
except for manifest error, be final, conclusive and binding for all purposes.
(I) Indemnification; Nature of Issuing Bank's Duties. In
addition to amounts payable as elsewhere provided in this Section 1.13, without
duplication, the Borrower hereby agrees to protect, indemnify, pay and save
each Issuing Bank harmless from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including reasonable
attorneys' fees and allocated costs of internal counsel) which such Issuing
Bank may incur or be subject to as a consequence, direct or indirect, of (i)
the issuance of the Letters of Credit or (ii) the failure of such Issuing Bank
to honor a drawing under any Letter of Credit as a result of any act or
omission, whether rightful or wrongful, of any present or future de jure or de
facto government or Governmental Authority (all such acts or omissions herein
called "Government Acts").
As between the Borrower and each Issuing Bank, the Borrower
assumes all risks of the acts and omissions of, or misuse of the Letters of
Credit issued by such Issuing Bank by, the respective beneficiaries of such
Letters of Credit. In furtherance and not in limitation of the foregoing, such
Issuing Bank shall not be responsible: (i) for the form, validity, sufficiency,
accuracy, genuineness or legal effects of any document submitted by any party
in connection with the application for and issuance of such Letters of Credit,
even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged; (ii) for the validity or
sufficiency of any instrument transferring or assigning or purporting to
transfer or assign any such Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, that may prove to be
invalid or ineffective for any reason; (iii) for failure of the beneficiary of
any such Letter of Credit to comply fully with conditions required in order to
draw upon such Letter of Credit; (iv) for errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail, cable, telegraph,
telex or otherwise, whether or not they are in cipher; (v) for errors in
interpretation of technical terms; (vi) for any loss or delay in the
transmission or otherwise of any document required
-22-
in order to make a drawing under any such Letter of Credit or of the
proceeds thereof; (vii) for the misapplication by the beneficiary of any such
Letter of Credit of the proceeds of any drawing under such Letter of Credit;
and (viii) for any consequences arising from causes beyond the control of such
Issuing Bank, including, without limitation, any Government Acts. None of the
above shall affect, impair, or prevent the vesting of any of such Issuing
Bank's rights or powers hereunder.
In furtherance and extension and not in limitation of the
specific provisions hereinabove set forth, any action taken or omitted by any
Issuing Bank in connection with the Letters of Credit issued by it or the
related certificates, if taken or omitted in good faith, shall not put such
Issuing Bank under any resulting liability to the Borrower.
Notwithstanding anything to the contrary contained in this
Section 1.13(I), the Borrower shall have no obligation to indemnify any Issuing
Bank in respect of any liability incurred by such Issuing Bank arising solely
out of the gross negligence or willful misconduct of such Issuing Bank or out
of the wrongful dishonor by such Issuing Bank of a proper demand for payment
under the Letters of Credit issued by it.
(J) Computation of Interest. Interest payable pursuant to
this Section 1.13 shall be computed on the basis of a 365-day year and the
actual number of days elapsed in the period during which it accrues.
1.14 Restatement Effective Date; Effect of Restatement.
(a) This Agreement shall become effective as provided in
Section 11.10.
(b) Upon the effectiveness of this Agreement in accordance
with the terms hereof:
(i) the terms and conditions of the Existing Credit
Agreement shall be restated in their entirety, but only with respect
to the rights, duties and obligations among the Agent, the Banks and
the Borrower accruing from and after the Closing Date;
(ii) this Agreement shall not in any way release or
impair the rights, duties, obligations or Liens with respect to the
Collateral created pursuant to the Existing Credit Agreement or any
other Credit Document or affect the
-23-
relative priorities thereof, in each case to the extent in force and
effect hereunder and thereunder as of the Amendment Date and except
as modified hereby or thereby or by documents, instruments and
agreements executed and delivered in connection herewith or
therewith, and all of such rights, duties, obligations and Liens
with respect to the Collateral are ratified and affirmed by the
parties hereto;
(iii) notwithstanding any other provisions of this
Agreement, all indemnification obligations of the Borrower under the
Existing Credit Agreement and any other Credit Document shall survive
the execution and delivery of this Agreement and shall continue in
full force and effect for the benefit of the Agent and the Banks;
(iv) the obligations incurred under the Existing
Credit Agreement shall, to the extent outstanding on the Closing Date,
continue to be outstanding under this Agreement and shall not be
deemed to be paid, released, discharged or otherwise satisfied by the
execution of this Agreement, and this Agreement shall not be deemed to
constitute a refinancing, substitution or novation of such
obligations;
(v) the execution, delivery and effectiveness of
this Agreement shall not operate as a waiver of any right, power or
remedy of any of the Banks or the Agent under the Existing Credit
Agreement, nor constitute a waiver of any covenant, agreement or
obligation of the Borrower under the Existing Credit Agreement, except
to the extent that any such covenant, agreement or obligation is no
longer set forth in this Agreement or is modified hereby;
(vi) any and all references in the Credit Documents
to the Existing Credit Agreement shall, without further action of the
parties, be deemed a reference to the Existing Credit Agreement as
restated by this Agreement, and as this Agreement shall be further
amended or amended and restated from time to time hereafter.
SECTION 2. Commitments.
2.01 Voluntary Reduction of Commitments. Upon at least
one Business Day's prior written notice (or telephonic notice promptly
confirmed in writing) to the Agent at the Agent's Office (which notice the
Agent shall promptly transmit to each of the Banks), the Borrower shall have
the right, without premium or
-24-
penalty, to terminate the unutilized portion of the Total Revolving Loan
Commitment, in part or in whole; provided that (x) any such termination shall
apply to proportionately and permanently reduce the Revolving Loan Commitment
of each of the Banks and (y) any partial reduction pursuant to this Section
2.01 shall be in the amount of at least $250,000 and integral multiples of
$100,000 in excess of that amount; provided, further, that the Total Revolving
Loan Commitment shall not be reduced to an amount less than the aggregate
Revolving Loans and Letters of Credit Usage then outstanding.
2.02 Mandatory Adjustments of Commitments, etc.
The Total Revolving Loan Commitment shall terminate on the Final Revolving
Loan Maturity Date.
2.03 Commitment Commission. The Borrower agrees to pay
the Agent a commitment commission ("Commitment Commission") for the account of
each Bank for the period from and including the Closing Date to but not
including the date the Total Revolving Loan Commitments have been terminated,
computed at a rate equal to 3/8% per annum on the daily average Unutilized
Commitment of such Bank. Accrued Commitment Commissions shall be due and
payable in arrears on the last Business Day of each March, June, September and
December, commencing June 30, 1997, and on the Maturity Date based on the
actual number of days elapsed over a year of 360 days.
SECTION 3. Payments.
3.01 Voluntary Prepayments. The Borrower shall have the right
to prepay Revolving Loans in whole or in part from time to time, without
premium or penalty, on the following terms and conditions: (i) The Borrower
shall give the Agent at the Agent's Office written notice (or telephonic notice
promptly confirmed in writing) of its intent to prepay the Loans, the amount of
such prepayment and, in the case of LIBOR Loans, the specific Borrowing or
Borrowings pursuant to which made, which notice shall be given by the Borrower
at least one Business Day prior to the date of such prepayment and which notice
shall promptly be transmitted by the Agent to each of the Banks; (ii) each
partial prepayment of any Borrowing shall be in an aggregate principal amount
of at least $250,000 and integral multiples of $100,000 in excess of such
amount; provided that no partial prepayment of LIBOR Loans made pursuant to a
single Borrowing under the Loan Facility (or Portion thereof) shall reduce the
outstanding Loans made pursuant to such Borrowing to an amount less than
$100,000; provided, further, that only one Revolving Loan Borrowing may be
-25-
voluntarily prepaid on any one day; and (iii) LIBOR Loans may only be prepaid
pursuant to this Section 3.01 on the last day of an Interest Period applicable
thereto.
3.02 Mandatory Prepayments.
(A) Requirements:
(a) The Borrower shall prepay the outstanding principal
amount of the Revolving Loans on any date on which the aggregate
outstanding principal amount of such Loans (after giving effect to any
other repayments or prepayments on such day and together with the
outstanding principal amount of Letters of Credit Usage) exceeds the
Total Revolving Loan Commitments in the amount of such excess.
(b) If the aggregate principal amount of outstanding
Revolving Loans and Letters of Credit Usage exceeds the Borrowing Base
as set forth in the Borrower's most recent Borrowing Base Certificate
required to be delivered pursuant to Section 6.01 of this Agreement
(such amount is hereinafter referred to as the "Excess"), then the
Borrower shall prepay its Revolving Loans in a principal amount equal
to such Excess no later than two (2) Business Days after Borrower has
delivered, or was required to deliver, such Borrowing Base Certificate
to the Agent and the Banks; provided that if there are no Revolving
Loans then outstanding, the Borrower shall cash collateralize Letters
of Credit, if any, on terms satisfactory to the Agent, in a principal
amount equal to such Excess.
(c) Within one Business Day of the date of funds being made
available to the Borrower and/or any of the Borrower's Subsidiaries,
as the case may be, of Net Cash Proceeds, an amount equal to 100% of
such Net Cash Proceeds or Net Financing Proceeds in excess of $250,000
shall be applied as provided in Section 3.02(B)(a); provided that Net
Cash Proceeds with respect to sales of assets that comply with clauses
(iii) and (iv) of Section 7.15 shall not be required to be so applied.
(d) Within one Business Day of the date of the receipt
thereof by the Borrower and/or any of its Subsidiaries, an amount
equal to 100% of the proceeds in excess of $250,000 received by the
Borrower (including capital contributions to the Borrower) or such
Subsidiary (net of underwriting discounts and commissions and other
costs and expenses directly associated therewith) from the sale after
the Closing Date
-26-
of equity (other than equity securities sold or issued to the
Borrower's management employees in connection with a
management incentive program or as provided for in the Indenture in
connection with an optional redemption of Senior Notes) shall be
applied as provided in Section 3.02(B)(a).
(e) On the date of funds being made available to the Borrower
and/or any of the Borrower's Subsidiaries, an amount equal to 100% of
(i) any surplus assets of any Pension Plan returned to the Borrower or
any of the Borrower's Subsidiaries and (ii) any tax refunds made to
the Borrower shall be applied as provided in Section 3.02(B)(a);
provided that no such surplus assets or tax refunds shall be required
to be so applied in any given fiscal year of the Borrower until the
aggregate of all such surplus assets or tax refunds, as the case may
be, in such year equals or exceeds $250,000.
(f) At the Agent's discretion, on the date of receipt thereof
by the Borrower, an amount equal to 100% of any insurance proceeds
received less any portion of such proceeds not in excess of $250,000
that is promptly applied to repair or replace the damaged property
which is the subject of such proceeds shall be applied as provided in
Section 3.02(B)(a).
(B) Application:
(a) Prepayments to be applied pursuant to this Section
3.02(B)(a) shall be applied first to prepay Revolving Loans and second
to cash collateralize Letters of Credit, if any, on terms satisfactory
to the Agent.
(b) With respect to each prepayment of Loans required by
Section 3.02(A), the Borrower shall give the Agent two Business Days
notice and may designate the Types of Loans and the specific Borrowing
or Borrowings which are to be prepaid; provided that (i)(x) LIBOR
Loans may be designated for prepayment pursuant to this Section 3.02
only on the last day of an Interest Period applicable thereto unless
all LIBOR Loans with Interest Periods ending on such date of required
prepayment and all Base Rate Loans have been or are concurrently being
paid in full and (y) if any prepayment of LIBOR Loans made pursuant to
a single Borrowing shall reduce the outstanding Loans made pursuant to
such Borrowing to an amount less than $100,000, such Borrowing shall
immediately be converted into Base Rate Loans; and (ii) each
prepayment of any Loans made pursuant to a single Borrowing shall be
applied pro rata among such Loans. In the absence of a des-
-27-
ignation by the Borrower, the Agent shall, subject to the above, make
such designation in its sole discretion. All prepayments shall include
payment of accrued interest on the principal amount so prepaid, shall
be applied to the payment of interest before application to principal
and shall include amounts payable, if any, under Section 1.10(f).
3.03 Method and Place of Payment. (a) Except as otherwise
specifically provided herein, all payments under this Agreement shall be made
to the Agent, for the ratable account of the Banks entitled thereto, not later
than 1:00 P.M. (New York time) on the date when due and shall be made in
immediately available funds in lawful money of the United States of America
to the account specified therefor by the Agent or if no account has been so
specified at the Agent's Office, it being understood that written notice by the
Borrower to the Agent to make a payment from the funds in the Borrower's
account at the Agent's Office shall constitute the making of such payment to
the extent of such funds held in such account. The Agent will thereafter cause
to be distributed on the same day (if payment is actually received by the Agent
in New York prior to 1:00 P.M. (New York time) on such day) funds relating to
the payment of principal or interest or fees ratably to the Banks entitled to
receive any such payment in accordance with the terms of this Agreement. If and
to the extent that any such distribution shall not be so made by the Agent in
full on the same day (if payment is actually received by the Agent prior to
1:00 P.M. (New York time) on such day), the Agent shall pay to each Bank its
ratable amount thereof and each such Bank shall be entitled to receive from the
Agent, upon demand, interest on such amount at the Federal Funds Rate for each
day from the date such amount is paid to the Agent until the date the Agent
pays such amount to such Bank.
(b) Any payments under this Agreement which are made by the
Borrower later than 1:00 P.M. (New York time) shall be deemed to have been made
on the next succeeding Business Day. Whenever any payment to be made hereunder
shall be stated to be due on a day which is not a Business Day, the due date
thereof shall be extended to the next succeeding Business Day and, with respect
to payments of principal, interest shall be payable during such extension at
the applicable rate in effect immediately prior to such extension, except that
with respect to LIBOR Loans, if such next succeeding applicable Business Day is
not in the same month as the date on which such payment would otherwise be due
hereunder or under any Note, the due date with respect thereto shall be the
next preceding applicable Business Day.
-28-
3.04 Net Payments. (a) All payments by the Borrower under
this Agreement or under any Credit Document shall be made without set-off
or counterclaim and in such amounts as may be necessary in order that all such
payments (after deduction or withholding for or on account of any present or
future taxes, levies, imposts, duties or other charges of whatsoever nature
imposed by any government or any political subdivision or taxing authority
thereof, other than any tax on the net income of a Bank pursuant to the income
tax laws of the United States or jurisdictions where such Bank's principal or
lending office is located (collectively, such non-excluded taxes are
hereinafter referred to as "Non-Excluded Taxes")) shall not be less than the
amounts otherwise specified to be paid under this Agreement and/or any Credit
Document. If the Borrower is required by law to make any deduction or
withholding on account of Non-Excluded Taxes from any payment due hereunder or
under the Notes, then (i) the Borrower shall timely remit such Taxes to the
Governmental Authority imposing the same and (ii) the amount payable hereunder
or under the Notes will be increased to such amount which, after deduction from
such increased amount of all amounts required to be deducted or withheld
therefrom, will not be less than the amount otherwise due and payable. A
certificate as to the calculation of any additional amounts payable to a Bank
under this Section 3.04 submitted to the Borrower by such Bank shall, absent
manifest error, be final, conclusive and binding for all purposes upon all
parties hereto. With respect to each deduction or withholding for or on account
of any Non-Excluded Taxes, the Borrower shall promptly furnish to each Bank
such certificates, receipts and other documents as may be required (in the
judgment of such Bank) to establish any tax credit to which such Bank may be
entitled.
(b) Without prejudice to the provisions of paragraph (a) of
this Section 3.04, if any Bank, or the Agent on its behalf, is required to make
any payment on account of Non-Excluded Taxes on or in relation to any sum
received or receivable under this Agreement and/or the other Credit Documents
by such Bank, or the Agent on its behalf, or any liability for Non-Excluded
Taxes in respect of any such payment is imposed, levied or assessed against any
Bank, or the Agent on its behalf, the Borrower will promptly indemnify such
Person against such Non-Excluded Tax payment or liability, together with any
interest, penalties and expenses (including counsel fees and expenses) payable
or incurred in connection therewith. The Borrower shall also reimburse each
Bank, upon the written request of such Bank, for taxes imposed on or measured
by the net income of such Bank pursuant to the laws of the jurisdiction in
which the principal office or lending office of such Bank is located or under
the laws of any political subdivision or taxing authority of any such
jurisdiction as such
-29-
Bank shall determine are payable by such Bank in respect of Non-Excluded
Taxes paid to or on behalf of such Bank pursuant to this Section 3.04. For
purposes of this Section, the term "Non-Excluded Taxes" includes interest,
penalties and expenses payable or incurred in connection therewith. A
certificate by such Bank, or the Agent on its behalf, as to the calculation
and amount of such payments shall, absent manifest error, be final,
conclusive and binding upon all parties hereto for all purposes. With respect
to each deduction or withholding for or on account of any Non-Excluded Taxes,
the Borrower shall promptly furnish to each Bank such certificates, receipts
and other documents as may be required (in the judgment of such Bank) to
establish any tax credit to which such Bank may be entitled.
(c) Each Bank organized under the laws of a jurisdiction
outside the United States (hereinafter, a "Non-U.S. Bank") shall, on or before
the date the first payment is due from Borrower on any Borrowings made
hereunder and from time to time thereafter if requested in writing by the
Borrower (but only so long as such Bank remains lawfully able to do so),
provide the Borrower with IRS Form W-8, Form 1001, or Form 4224, as
appropriate, or any successor form prescribed by the IRS, indicating that such
Non-U.S. Bank is entitled to complete or partial exemption from withholding on
all payments to be received by it under this Agreement. If the form provided by
such Bank indicates that such Bank is entitled to benefits under an income tax
treaty to which the United States is a party and which reduces the rate of the
withholding tax on payments made hereunder below the U.S. statutory rate then
in effect, such reduced withholding tax will be included in "Non-Excluded
Taxes" as defined in this Section 3.04.
(d) For any period with respect to which a Non-U.S. Bank has
failed to provide the Borrower with the appropriate form (unless such failure
is due to a change in treaty, law or regulation occurring subsequent to the
date of this Agreement), such Non-U.S. Bank shall not be entitled to
indemnification under Section 3.04(a) or 3.04(b) with respect to withholding
taxes imposed by the United States; provided, however, that should a Bank which
is otherwise exempt from or subject to a reduced rate of withholding tax become
subject to Non-Excluded Taxes because of its failure to deliver a form required
hereunder, the Borrower shall take such steps as such Bank shall reasonably
request to assist such Bank to recover such Non-Excluded Taxes.
(e) In the event a Non-U.S. Bank at the time of an assignment
is entitled to the benefit of payments pursuant to Section 3.04(a) or Section
3.04(b), the assignee of such Non-U.S. Bank shall be entitled to the same
benefits (including further
-30-
benefit of payments that may arise with respect to such assignee) that would
have been available to the assignor Non-U.S. Bank in the absence of such
assignment, but only to the extent the relevant amounts are incurred by or
with respect to such assignee.
(f) If the Borrower is required to pay additional amounts to
for the account of any Bank pursuant to this Section 3.04, then such Bank shall
take efforts to change the jurisdiction of its lending office so as to
eliminate or reduce any such additional amounts which may thereafter accrue if
such change would not, in the sole judgment of such Bank, result in any cost to
such Bank.
(g) Nothing contained in this Section 3.04 shall require any
Bank to make available any of its tax returns or any other information that it
deems to be confidential or proprietary.
SECTION 4. Conditions Precedent.
4.01 Conditions Precedent to Effectiveness of
Agreement. The effectiveness of this Agreement is subject (except as
otherwise hereinafter indicated), to the satisfaction of the following
conditions:
(A) Officers' Certificate. The Agent shall have received a
certificate dated the Closing Date, substantially in the form of Exhibit I-1
annexed hereto, and signed by an appropriate officer of the Borrower on behalf
of the Borrower stating that all of the applicable conditions set forth in this
Section 4.01 (in each case disregarding any reference therein that such
condition be deemed satisfactory by the Agent and/or the Required Banks) have
been satisfied or waived as of such date.
(B) Opinions of Counsel. The Agent shall have received an
opinion or opinions addressed to each of the Banks and dated the Closing Date,
each in form and substance satisfactory to the Agent, from (i) Kramer, Levin,
Naftalis & Xxxxxxx, counsel to the Borrower, which opinion shall address the
matters contained in Exhibit B-1 hereto, and (ii) local counsel to the Borrower
in each jurisdiction in which Collateral is located, which opinions shall
address the matters contained in Exhibit B-2 hereto.
(C) Corporate Proceedings. (i) All corporate and legal
proceedings and all instruments and agreements in connection with the
transactions contemplated by the Documents shall be sat-
-31-
isfactory in form and substance to the Agent, and the Agent shall have
received all information and copies of all certificates, documents and papers,
including records of corporate proceedings and governmental approvals, if any,
which the Agent may have requested from the Borrower and any of its Affiliates
or in connection therewith, such documents and papers where appropriate to be
certified by proper corporate or governmental authorities. Without limiting
the foregoing, the Agent shall have received:
(a) resolutions of the Board of Directors of the Borrower
which shall include, without limitation, resolutions approving such
documents and actions as are contemplated hereby and by the other
Documents, and resolutions as to the due authorization, execution and
delivery of this Agreement and each of the other Documents, in each
case, certified by the Borrower's corporate secretary or an assistant
secretary as being, on the Closing Date, in full force and effect,
without modification or amendment. Such resolutions shall be in form
and substance satisfactory to the Agent; and
(b) signature and incumbency certificates of each officer of
the Borrower executing instruments, documents or agreements required
to be executed in connection with the transactions contemplated by
this Agreement and the other Documents.
(ii) Prior to the Closing Date, the Agent shall have
received evidence, satisfactory to the Agent, as to the due incorporation of
the Borrower in the State of Maryland, including, without limitation, the
Borrower's certificate of incorporation as set forth in paragraph (F)(1) of
this Section 4.01.
(D) Refinancing. (i) The terms and conditions of and
any agreements and arrangements relating to the Refinancing shall be
satisfactory to the Agent and the Banks.
(ii) Proceeds of the issuance of the Senior Notes sufficient
to redeem all of the Borrower's outstanding Subordinated Notes shall have been
deposited in an escrow account, the form, substance and terms of which shall be
satisfactory to the Agent and the Banks.
(E) Credit Documents. Each of this Agreement and each other
Credit Document shall (i) be in form and substance satisfactory to the Agent
and (ii) have been, on or prior to the Closing Date, duly authorized, executed
and delivered by each of the parties signatory thereto.
-32-
(F) Organizational Documentation, etc. The Banks shall have
received copies of a true and complete certified copy of the following
documents of the Borrower and each of its Subsidiaries, the provisions of which
shall be satisfactory to the Agent and the Required Banks:
(1) Copies of its respective Certificate of Incorporation
which shall be certified and be accompanied by a good standing
certificate from the Secretary of State of the State of Maryland and
good standing certificates from the jurisdictions in which it is
qualified to do business as a foreign corporation, each to be dated a
recent date prior to the Closing Date;
(2) Copies of its By-laws certified as of a recent date
prior to the Closing Date by its corporate secretary.
(G) Notes. There shall have been delivered to the Agent for
the account of each of the Banks the Revolving Notes executed by the Borrower
in the amount and maturity and as otherwise provided herein.
(H) Certain Fees. All costs, fees and expenses (including,
without limitation, legal fees and expenses) payable to Indosuez by the
Borrower pursuant to the letter agreement between the Borrower and Indosuez
dated May 1, 1997 shall have been paid in full, and the Borrower shall have
paid or have caused to be paid the commitment and other fees and expenses
(including, without limitation, legal fees and expenses) contemplated hereby
and/or in connection with the Recapitalization and the other Documents. On or
prior to the Closing Date, the Borrower shall have delivered to the Agent
evidence satisfactory to the Agent that the fees and expenses (including,
without limitation, legal fees and expenses and fees and expenses payable to
Gibbons, Goodwin, van Amerongen ("GGvA")) in connection with the consummation
of the transactions contemplated by the Documents shall not exceed in the
aggregate $4.75 million.
(I) Financial Statements, etc. Prior to the Closing Date, the
Agent shall have received from the Borrower (i) audited financial statements
including a balance sheet and statements of income and cash flow of the
Borrower for each of the twelve months ended December 31, 1994, 1995 and 1996,
together with unqualified opinions of Ernst & Young LLP; (ii) unaudited
financial statements for the 3 months ended March 30, 1997 (together with the
financial statements in (i) above, the "Financial Statements"); (iii) the pro
forma opening balance sheet of the Borrower as at March 30, 1997 after giving
effect to the Recapitali-
-33-
zation and the Borrowings under this Agreement; (iv) financial projections
with respect to the Borrower, accompanied by a statement by the Borrower that
such projections are based on assumptions believed by the Borrower in good
faith to be reasonable as to the future financial performance of the Borrower,
satisfactory to the Agent and to the Required Banks and that since the time of
the preparation of such financial projections, no fact or facts have come to
the attention of the Borrower to cause the Borrower to believe that any of the
estimates and assumptions on which such projections are based are not
reasonable; and (v) the Borrower's consolidated plan for the succeeding five
twelve-month fiscal periods following the Closing Date, in each case prepared
in accordance with the Borrower's normal accounting procedures (which will
represent management's reasonable estimate of the Borrower's projected
performance during such periods). Each of the items delivered pursuant to
clauses (i) through (v) above shall be satisfactory to the Agent, in its sole
discretion. In addition, the Agent shall have received a letter from Ernst &
Young LLP stating that they have performed agreed upon procedures to the pro
forma opening balance sheet as of March 30, 1997 after giving effect to the
Recapitalization and the Borrowings under this Agreement, which such letter
shall be satisfactory in form and substance to the Agent.
(J) Insurance. Set forth on Schedule 4.01J is a summary of
all insurance policies maintained by the Borrower and its Subsidiaries. The
insurance coverage provided for the Borrower and its Subsidiaries by such
insurance policies shall be satisfactory to the Agent.
(K) Indebtedness, etc. Each of the Borrower and its
Subsidiaries shall have received all necessary consents or waivers or amended,
supplemented or otherwise modified, repaid, redeemed or defeased its
outstanding Indebtedness in a manner and on terms satisfactory to the Agent
such that there exists no default or potential default (including, without
limitation, as a result of the consummation of the Recapitalization or of any
Borrowing hereunder) with respect to such Indebtedness or under any note,
evidence of indebtedness, mortgage, deed of trust, security document or other
agreement relating to such Indebtedness and such indentures, notes, evidences
of indebtedness, mortgages, deeds of trust or other agreements relating to such
Indebtedness shall not contain any restriction on the ability of the Borrower
to enter into the Pledge Agreements or any other Security Documents or the
granting of any Lien in favor of the Banks in connection therewith, or, other
than as set forth on Schedule 4.01K(a), contain any financial covenants,
agreements or tests applicable to the Borrower or any of its Subsidiaries.
Sched-
-34-
ule 4.01K(b) sets forth a true list of all Liens other than Permitted
Encumbrances on the property of the Borrower and its Subsidiaries as of the
Closing Date. The obligations of the Borrower, with respect to its outstanding
Indebtedness, under this Section 4.01(K) shall be in addition to its
obligations under Section 4.01(D) hereof.
(L) Security Documents. Amendments to the Security Documents
shall have been duly executed and delivered by the respective parties thereto
and except to the extent previously provided, there shall have been delivered
to the Agent (i) certificates representing all Pledged Securities, if any,
together with executed and undated stock powers and/or assignments in blank,
(ii) evidence of the filing and due execution of appropriate financing
statements under the provisions of the UCC, applicable foreign, domestic or
local laws, rules or regulations in each of the offices where such filing is
necessary or appropriate to grant the Collateral Agent a perfected first
priority Lien (or comparable interest under foreign law in the case of foreign
Collateral) in such Collateral superior to and prior to the rights of all third
persons and subject to no other Liens except Prior Liens, (iii) to the extent
inventory is maintained on a leased premise, agreements from the respective
landlords of such of the Real Property which is being leased by the Borrower or
its Subsidiaries confirming that such landlords have subordinated their
landlord liens in the Borrower's (or such Subsidiaries', as applicable)
personal property to the security interests held by the Collateral Agent
pursuant to applicable Security Documents and that such landlords will provide
the Collateral Agent with reasonable access to such facilities to exercise, to
the extent permitted by law, the Collateral Agent's remedies pursuant to such
applicable Security Documents, and (iv) such other security and other documents
as may be necessary or, in the opinion of the Collateral Agent, desirable to
perfect the Liens in favor of the Collateral Agent created, or purported or
intended to be created, by the Security Documents.
(M) Consents, etc. All material governmental and third party
approvals and consents (including, without limitation, all material approvals
and consents required in connection with any environmental statutes, rules or
regulations), if any, in connection with the Recapitalization, the transactions
contemplated by the Documents and otherwise referred to herein or therein to be
completed on or before the Closing Date shall have been obtained and remain in
effect, and all applicable waiting periods shall have expired without any
action being taken by any competent authority which restrains, prevents or
imposes, in the judgment of the Agent or the Required Banks, materially adverse
-35-
conditions upon the consummation of the Refinancing. There shall not exist any
judgment, order, injunction or other restraint issued or filed with respect to
the making of the Loans hereunder or the consummation of the Recapitalization.
(N) Environmental Review. At or prior to the Closing Date,
there shall have been delivered to the Agent and each of the Banks an Officer's
Certificate of the Borrower in substantially the form of Exhibit I-2 annexed
hereto.
(O) Borrowing Base Certificate. The Agent and the Banks shall
have received and the Required Banks shall be satisfied (both as to form and
substance) with a Borrowing Base Certificate which shall be substantially in
the form of Exhibit H hereto and shall be prepared as of a date prior to the
Closing Date that is satisfactory to the Agent.
(P) Litigation. There shall be no litigation pending or
threatened involving the Borrower or any of its Subsidiaries, or any of their
respective properties or assets, that would impair the Recapitalization or the
consummation of the transactions contemplated by the Documents, or that, in the
good faith judgment of the Agent or the Required Banks, could be reasonably
expected to have a Materially Adverse Effect.
(Q) Capital Leases. All Capital Leases and Operating Leases
of the Borrower outstanding immediately prior to the Recapitalization shall
remain outstanding after giving effect to the Recapitalization, on terms
satisfactory to the Agent.
(R) Solvency. On the Closing Date, the Agent and each of the
Banks shall have received the Officers' Solvency Certificate.
(S) Senior Notes. Substantially contemporaneously with the
closing of this transaction, the Borrower shall have issued and sold $105
million of its Senior Notes and applied a portion of the proceeds to the
repayment in full of all existing indebtedness under the Existing Credit
Agreement.
(T) Equity Capitalization. As of the Closing Date the
Borrower shall have Consolidated Net Worth of not less than $(32.5) million.
For purposes of this Section 4.01(T), the calculation of such equity
capitalization shall exclude adjustments arising from the adoption by the
Borrower of Statement of Financial Accounting Standards No. 106.
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The effectiveness of this Agreement shall constitute a
representation and warranty by each Credit Party to each of the Banks that all
of the applicable conditions specified above have been satisfied or waived as
of that time and that, at the time of the effectiveness of this Agreement, the
conditions specified in Section 4.01 have been satisfied or waived. All of the
certificates, legal opinions and other documents and papers referred to in this
Section 4.01, unless otherwise specified, shall be delivered to the Agent at
the Agent's Office (or such other location as may be specified by the Agent)
for the account of each of the Banks and in sufficient counterparts for each of
the Banks and shall be satisfactory in form and substance to the Agent.
4.02 Conditions Precedent to All Loans. The obligation of the
Banks to make all Loans (which term shall not include a conversion or
continuation of a Loan) is subject, at the time of each such Loan, to the
satisfaction of the following conditions:
(A) Effectiveness. This Agreement shall have become
effective as provided in Section 11.10.
(B) No Default; Representations and Warranties. At the time
of the making of each Loan and also after giving effect thereto (i) there shall
exist no Default or Event of Default and (ii) all representations and
warranties contained herein and in each of the other Credit Documents in effect
at such time shall be true and correct in all material respects with the same
effect as though such representations and warranties had been made on and as of
the date of the making of such Loan, unless such representation and warranty
expressly indicates that it is being made as of any other specific date in
which case on and as of such other date.
(C) Adverse Change, etc. (a) Since the date of the Offering
Memorandum, nothing shall have occurred or become known which the Required
Banks or the Agent shall have determined (i) has had or could be reasonably
expected to have a Materially Adverse Effect or (ii) indicates that there has
been or could be reasonably expected to be a material adverse change in the
industries in which the Borrower and its Subsidiaries compete which could be
reasonably expected to have a Materially Adverse Effect; each such
determination shall be made both before and after giving effect to the
Recapitalization and the making of the Loans hereunder.
(b) All material governmental and third party approvals and
consents (including, without limitation, all material ap-
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provals and consents required in connection with any environmental statutes,
rules or regulations), if any, in connection with the conduct of the business
of the Borrower and its Subsidiaries shall have been obtained and remain in
effect.
(c) There shall not exist any judgment, order, injunction or
other restraint issued or filed with respect to the making of any Loans
hereunder the effect of which judgment, order, injunction or restraint is
adverse to any Bank.
(D) Documentation and Opinions of Counsel. The Agent, upon
request, shall have received such documentation and opinion or opinions,
addressed to each of the Banks, (i) from counsel to each Credit Party as may be
reasonably required, with reasonable notice under the circumstances, which
shall be satisfactory to the Agent, and (ii) appropriate local counsel, which
opinions shall cover such matters as reasonably requested by, and be in form
and substance reasonably satisfactory to, the Agent.
(E) Margin Rules. On the date of each Borrowing of Loans,
neither the making of any Loan nor the use of the proceeds thereof will violate
the provisions of Regulation G, T, U or X of the Board of Governors of the
Federal Reserve System.
(F) Borrowing Base Certificate. The Agent and the Banks shall
have received and the Agent and the Required Banks shall be reasonably
satisfied (both as to form and substance) with the Borrowing Base Certificate
last delivered to the Banks.
The acceptance of the proceeds of each Borrowing of Loans
shall constitute a representation and warranty by each Credit Party to each of
the Banks that all of the applicable conditions specified in Section 4.02 have
been satisfied or waived.
All of the certificates, legal opinions and other documents
and papers referred to in this Section 4.02, unless otherwise specified, shall
be delivered to the Agent at the Agent's Office (or such other location as may
be specified by the Agent) for the account of each of the Banks and in
sufficient counterparts for each of the Banks and shall be satisfactory in form
and substance to the Agent.
4.03 Conditions Precedent to All Letters of Credit. The right
of the Borrower to obtain the issuance of any Letter of Credit that the
relevant Issuing Bank determines to issue in its sole discretion hereunder is
subject to prior or concurrent satisfaction of all of the following conditions:
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(A) Required Documentation. On or prior to the date of
issuance of a Letter of Credit, the Agent shall have received, in
accordance with the provisions of Section 1.13(B), a request for
issuance with respect to such Letter of Credit (the furnishing by the
Borrower of each such request for issuance shall be deemed to
constitute a representation and warranty of the Borrower to the effect
that the conditions set forth in Section 4.02 are satisfied as of the
date of delivery and will be satisfied on the relevant date of
issuance), all other information specified in Section 1.13(B), and
such other documents as the Issuing Bank may reasonably require in
connection with the issuance of such Letter of Credit.
(B) Conditions. On the date of issuance of each such Letter
of Credit, all conditions precedent described in Section 4.02 shall be
satisfied to the same extent as though the issuance of such Letter of
Credit were the making of a Loan.
SECTION 5. Representations, Warranties and Agreements. In
order to induce the Banks to enter into this Agreement and to make the Loans
provided for herein, the Borrower makes the following representations and
warranties to, and agreements with, the Banks, all of which shall survive the
execution and delivery of this Agreement and the making of the Loans (with the
execution and delivery of this Agreement and the making of each Loan thereafter
being deemed to constitute a representation and warranty that the matters
specified in this Section 5 are true and correct in all material respects both
before and after giving effect to the Recapitalization and the related
transactions and as of the date of each such Loan unless such representation
and warranty expressly indicates that it is being made as of any specific
date):
5.01 Corporate Status. Each Credit Party (i) is a duly
organized and validly existing corporation in good standing under the laws of
its jurisdiction of its organization; (ii) has the corporate or other
organizational power and authority and, except as set forth on Schedule 5.01,
has obtained all requisite governmental licenses, authorizations, consents and
approvals to own and operate its property and assets and to transact the
business in which it is engaged and presently proposes to engage, including,
without limitation, those in compliance with or required by the Environmental
Laws except for those governmental licenses, authorizations, consents or
approvals the failure of which to be so obtained would not have a Materially
Adverse Effect and
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(iii) is duly qualified and authorized to do business and is in good standing
in all jurisdictions where it is required to be so qualified except where the
failure to be so qualified would not have a Materially Adverse Effect.
5.02 Corporate Power and Authority; Business. (a) Each Credit
Party has the corporate power and authority to execute, deliver and carry out
the terms and provisions of the Documents to which it is a party and has taken
all necessary corporate action to authorize the execution, delivery and
performance of the Documents to which it is a party. Each Credit Party has duly
executed and delivered each Document to which it is a party and each such
Document constitutes the legal, valid and binding obligation of such Person
enforceable in accordance with its terms except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights generally or by
equitable principles relating to enforceability.
(b) The Borrower was incorporated on November 6, 1967. From
July 3, 1987 to the Closing Date, the Borrower will not have engaged in any
business or incurred any liabilities except for activities, expenses and
liabilities incident to the operations of its businesses which are set forth in
the Offering Memorandum and which would not have a Materially Adverse Effect.
5.03 No Violation. Except as set forth on Schedule 5.03,
neither the execution, delivery or performance by any Credit Party of the
Documents to which it is a party nor compliance with the terms and provisions
thereof nor the consummation of the transactions contemplated therein (i) will
contravene any applicable provision of any law, statute, rule, regulation,
order, writ, injunction or decree of any court or governmental instrumentality,
(ii) conflicts or will conflict or be inconsistent with, results or will result
in any breach or violation of any of the terms, covenants, conditions or
provisions of, or constitutes or will constitute a default under, or (other
than pursuant to the Security Documents) results or will result in the creation
or imposition of (or the obligation to create or impose) any Lien upon any of
the property or assets of any Credit Party pursuant to the terms of any
indenture, mortgage, deed of trust, agreement or other instrument to which any
Credit Party or any of its Subsidiaries is a party or by which it or any of its
property or assets is bound or to which it may be subject or any applicable
provision of any law, statute, rule, regulation, order, writ, injunction or
decree of any court or governmental instrumentality, or (iii) will violate any
provision of the charter or by-laws of any Credit Party or its Subsidiaries,
except where such contra-
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vention, conflict, inconsistency, breach, default, creation, imposition,
obligation or violation would not have a Materially Adverse Effect. Neither
the execution, delivery or performance of the Refinancing Documents or the
consummation of the Refinancing nor the terms of the financing in connection
therewith conflicts or will conflict or be inconsistent with, results or will
result in any breach or violation of any of the terms, covenants, conditions
or provisions of, or constitutes or will constitute a default under, or
results or will result in the creation or imposition of (or the obligation to
create or impose) any Lien (except pursuant to the Security Documents) upon
any of the property or assets of any Credit Party pursuant to the terms of,
any indenture, mortgage, deed of trust, instrument or agreement relating to
Indebtedness for borrowed money or the equivalent thereof or other material
agreement to which any Credit Party is a party or by which it or any of its
property or assets is bound or to which it may be subject or any law, statute,
rule, regulation, order, writ, injunction or decree of any court or
governmental instrumentality referred to in clause (i) above, except where
such conflict, inconsistency, breach, default, creation, imposition or
obligation would not have a Materially Adverse Effect.
5.04 Litigation. Except as set forth on Schedule 5.04, there
are no actions, judgments, suits, investigations or proceedings by any
administrative, governmental or other public authority or other Person pending
or, to the Borrower's knowledge, threatened, with respect to any Credit Party
or any of their respective assets (both before and after giving effect to the
Recapitalization) that (a) challenges the consummation of the Recapitalization
or the validity of any of the Documents or the transactions contemplated
thereby, including the making of any Loans or (b) individually or in the
aggregate, are likely to have a Materially Adverse Effect.
5.05 Use of Proceeds. (a) Except for the $2.0 million which
may be paid as a part of the Distributions, all the proceeds of all Revolving
Loans to be made after the Closing Date to the Borrower hereunder shall be
utilized for working capital and other general corporate purposes.
(b) Neither the making of any Loan hereunder, nor the use of
the proceeds therefrom, will violate or be inconsistent with the provisions of
Regulation G, T, U or X of the Board of Governors of the Federal Reserve
System.
5.06 Governmental Approvals, etc. No order, consent,
approval, license, authorization, or validation of, or filing, recording or
registration with, or exemption or other action by
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or notice to, any third party or any foreign or domestic, administrative,
governmental or public body or authority, or by any subdivision thereof (other
than those orders, consents, approvals, licenses, authorizations or validations
which, if not obtained or made, would not have a Materially Adverse Effect or
which have previously been obtained or made and except for filings to perfect
security interests granted pursuant to the Security Documents, all of which will
be accomplished on or prior to the Closing Date), is necessary or required to
authorize or is required in connection with (i) the execution, delivery and
performance of any Document or the transactions contemplated therein or (ii) the
legality, validity, binding effect or enforceability of any Document. At the
Closing Date, there does not exist any judgment, order, injunction or other
restraint issued or filed with respect to the transactions contemplated hereby,
the consummation of the Recapitalization or the making of Loans or the
performance by the Credit Parties of their obligations under the Documents.
5.07 Investment Company Act. The Borrower is not, nor will
be, after giving effect to the transactions contemplated hereby or by any of
the other Documents, an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended, or subject to any federal or local statute or regulation limiting
its ability to incur indebtedness for money borrowed or guarantee such
indebtedness as contemplated hereby or by any other Document.
5.08 Public Utility Holding Company Act. The Borrower is not,
nor will be after giving effect to the transactions contemplated hereby or by
any of the other Documents, a "holding company," or a "subsidiary company" of a
"holding company," or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company," within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
5.09 True and Complete Disclosure. All factual information
(taken as a whole) heretofore or contemporaneously furnished by or on behalf of
the Credit Parties in writing to any Bank (including, without limitation, all
information contained in the Documents and the Offering Memorandum) for
purposes of or in connection with this Agreement or any transaction
contemplated herein is (or was, on the Closing Date), and all other such
factual information (taken as a whole) hereafter furnished by or on behalf of
any such Person in writing to any Bank will be, true and accurate in all
material respects on the date as of which such information is dated or
certified and does not contain any
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untrue statement of a material factor omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and the Offering
Memorandum will be at the Closing Date true and accurate in all material
respects and will not contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
The projections and pro forma financial information contained
in such materials are based on good faith estimates and assumptions believed by
such Persons to be reasonable at the time made, it being recognized by the
Banks that such projections as to future events are not to be viewed as facts
and that actual results during the period or periods covered by any such
projections may differ from the projected results. There is no fact known to
any Credit Party which could have a Materially Adverse Effect which has not
been disclosed herein, in the Offering Memorandum or in such other documents,
certificates and written statements furnished to the Banks for use in
connection with the transactions contemplated hereby.
5.10 Financial Condition; Financial Statements; Projections.
(a) No Credit Party is entering into the arrangements contemplated hereby or by
the other Credit Documents, or intends to make any transfer or incur any
obligations hereunder or thereunder, with intent to hinder, delay or defraud
either present or future creditors. On and as of the Closing Date, on a pro
forma basis after giving effect to the Recapitalization and to all Indebtedness
incurred and Liens created, or to be created, by each Credit Party in
connection with the Recapitalization (including Indebtedness incurred
hereunder), (w) the Borrower does not expect that final judgments against any
Credit Party in actions for money damages with respect to pending or threatened
litigation will be rendered at a time when, or in an amount such that, such
Credit Party will be unable to satisfy any such judgments promptly in
accordance with their terms (taking into account the maximum reasonable amount
of such judgments in any such actions and the earliest reasonable time at which
such judgments might be rendered and the cash available to such Credit Party,
after taking into account all other anticipated uses of the cash of such Credit
Party (including the payments on or in respect of debts (including its
Contingent Obligations))); (x) no Credit Party will have incurred or intends
to, or believes that it will, incur debts beyond its ability to pay such debts
as such debts mature (taking into account the timing and amounts of cash to be
received by such Credit Party from any source, and of amounts to be
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payable on or in respect of debts of such Person and the amounts referred to in
the preceding clause (w)); (y) each Credit Party, after taking into account all
other anticipated uses of the cash of such Credit Party, anticipates being able
to pay all amounts on or in respect of debts of such Credit Party when such
amounts are required to be paid; and (z) each Credit Party will have sufficient
capital with which to conduct its present and proposed business and the property
of such Credit Party does not constitute unreasonably small capital with which
to conduct its present or proposed business. For purposes of this Section 5.10,
"debt" means any liability on a claim, and "claim" means a (i) right to payment
whether or not such a right is reduced to judgment, liquidated, unliquidated,
fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable,
secured or unsecured; or (ii) right to an equitable remedy for breach of
performance if such breach gives rise to a payment, whether or not such right to
an equitable remedy is reduced to judgment, fixed, contingent, matured,
unmatured, disputed, undisputed, secured or unsecured. On the date of each
Borrowing (and after giving effect to all Borrowings as of such date), the
representations set forth in this Section 5.10(a) shall be true and correct with
respect to the Borrower on such date.
(b) The Borrower has heretofore delivered to the Banks the
financial statements described in Section 4.01(I)(i) and (ii). All such
financial statements referred to in the preceding sentence were prepared in
accordance with GAAP consistently applied, except in the case of interim
financial statements for normal year-end adjustments and the absence of
footnote disclosures. Such financial statements present fairly the financial
position of the Borrower for each of the periods covered thereby. There has
also been delivered the pro forma opening balance sheet (after giving effect to
the Recapitalization and the Borrowings under this Agreement), of the Borrower
as at March 30, 1997, which presents a good faith estimate of the consolidated
pro forma financial condition of the Borrower at the date thereof. Except as
contemplated hereby, since March 30, 1997 (on a pro forma basis after giving
effect to the Recapitalization and the Borrowings under this Agreement) no
event or events have occurred that are likely to have a Materially Adverse
Effect. The assumptions made in preparing such pro forma opening balance sheet
are reasonable as of the Closing Date and all material assumptions are set
forth therein.
(c) There have heretofore been delivered to the Banks pro
forma consolidated income projections for the Borrower, pro forma consolidated
balance sheet projections for the Borrower and pro forma consolidated cash flow
projections for the Borrower for
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the seven month period from the Closing Date through the end of the fiscal year
ended December 31, 1997 and for the five twelve-month fiscal periods following
the fiscal year ended December 31, 1997, inclusive (collectively, the "Projected
Financial Statements"), which give effect to the Recapitalization and all
Indebtedness and Liens incurred or created in connection with the
Recapitalization (including all Indebtedness incurred hereunder). The Projected
Financial Statements are reasonable and present a good faith estimate of the
consolidated financial information contained therein at the date thereof.
(d) As of the Closing Date, except as fully reflected or
reserved against in the financial statements and the notes thereto described in
Section 5.10(b), there were no liabilities or obligations with respect to the
Borrower or its Subsidiaries of any nature whatsoever (whether absolute,
accrued, contingent or otherwise and whether or not due) which, either
individually or in aggregate, would be material to the Borrower or its
Subsidiaries, taken as a whole. As of the Closing Date the Borrower does not
know of any basis for the assertion against the Borrower of any liability or
obligation of any nature whatsoever that is not fully reflected in the
financial statements described in Section 5.10(b) or (c) or in the Offering
Memorandum or any schedules thereto or otherwise disclosed therein, except as
incurred by any Credit Party in connection with the Recapitalization, which,
either individually or in the aggregate, could reasonably be expected to be
material to the Borrower.
5.11 Security Interests. The Security Documents, once
executed and delivered, will create, in favor of the Collateral Agent for the
benefit of the Banks, as security for the obligations purported to be secured
thereby, a valid and enforceable perfected first priority security interest in
and Lien upon all of the Collateral, superior to and prior to the rights of all
third persons and subject to no Liens except the Prior Liens applicable to such
Collateral. The respective pledgor or assignor, as the case may be, has (or, on
and after the time it executes the respective Security Document, will have)
good and marketable title to all items of Collateral (including all such
Collateral located in Alabama) covered by such Security Document free and clear
of all Liens other than Liens expressly permitted under the applicable Security
Document. No filings or recordings are required in order to perfect the
security interests created under any Security Document except for filings or
recordings required in connection with any such Security Document which shall
have been made prior to or contemporaneously with the execution and delivery
thereof.
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5.12 Tax Returns and Payments. Each of the Borrower and its
Subsidiaries has filed all tax returns required to be filed by it (which are
true and correct in all material respects) and has paid all taxes and
assessments shown to be due thereon, other than those not yet delinquent and
except for those contested in good faith and for which adequate reserves have
been established. Each of the Borrower and its Subsidiaries has paid, or has
provided adequate reserves (in accordance with GAAP) for the payment of, all
federal, state, local and foreign income taxes (including, without limitation,
franchise taxes based upon income) applicable for all prior fiscal years and
for the current fiscal year to the date hereof. The Borrower knows of no
proposed tax assessment against the Borrower or any of its Subsidiaries that
could reasonably be expected to have a Materially Adverse Effect which is not
being actively contested in good faith by such Person to the extent affected
thereby in good faith and by appropriate proceedings; provided that such
reserves or other appropriate provisions, if any, as shall be required in
conformity with GAAP shall have been made or provided therefor.
5.13 ERISA. (A) Each of the Borrower and the ERISA Affiliates
is in compliance in all respects with all applicable provisions of ERISA and
the regulations and published interpretations thereunder with respect to all
employee benefit plans, Pension Plans and Multiemployer Plans except for
noncompliance that could not be expected to have a Materially Adverse Effect.
(B) No Termination Event has occurred or is reasonably
expected to occur with respect to any Pension Plan which resulted or would
result in a liability to the Borrower or any ERISA Affiliate that could be
expected to have a Materially Adverse Effect.
(C) The sum of the amount of unfunded benefit liabilities
(determined in accordance with Statement of Financial Accounting Standards No.
87) under all Title IV Plans (excluding each Title IV Plan with an amount of
unfunded benefit liabilities of zero or less) is not more than $3,000,000. As
of the Closing Date, the sum of the amount of unfunded benefit liabilities
(within the meaning of Section 4001(a)(18) of ERISA) under all Title IV Plans
(excluding each Pension Plan with an amount of unfunded benefit liabilities of
zero or less) is not more than $5,500,000.
(D) As of the Closing Date, neither the Borrower nor any
ERISA Affiliate has any obligation to contribute to or any liability or
potential liability (including, but not limited to, actual or potential
withdrawal liability) with respect to any
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Multiemployer Plan or any employee benefit plan described in Sections 4063 and
4064 of ERISA or in Section 413(c) of the Code. As of the Closing Date, the
Borrower and its ERISA Affiliates have complied with the requirements of ERISA
Section 515 with respect to each Multiemployer Plan. As of the Closing Date, the
aggregate potential withdrawal payments, as determined in accordance with Title
IV of ERISA, of the Borrower, its Subsidiaries and its ERISA Affiliates with
respect to all Multiemployer Plans was $0. Neither the Borrower nor any ERISA
Affiliate has incurred or reasonably expects to incur any withdrawal liability
under Section 4201 et seq. of ERISA to any Multiemployer Plan or any employee
benefit plan described in Sections 4063 and 4064 of ERISA or in Section 413(c)
of the Code that could be expected to have a Materially Adverse Effect.
(E) No Pension Plan has an accumulated funding deficiency
(whether or not waived).
(F) Neither the Borrower nor any ERISA Affiliate has or
reasonably expects to become subject to a Lien in favor of any Pension Plan
under Section 302(f) or 307 of ERISA or Section 401(a)(29) or 412(n) of the
Code.
(G) Assuming that no portion of the Loans to be advanced
hereunder is attributable, directly or indirectly, to the assets of any
employee benefit plan, the execution, performance and delivery of the Credit
Documents by any party thereto will not involve any prohibited transaction
within the meaning of Section 406 of ERISA or Section 4975 of the Code for
which an exemption therefrom is not available.
As used in this Section 5.13, the term "accumulated funding
deficiency" has the meaning specified in Section 302 of ERISA and Section 412
of the Code, and the term "employee benefit plan" has the meaning specified in
Section 3(3) of ERISA.
5.14 Subsidiaries. As of the Closing Date, the Borrower has
no Subsidiaries.
5.15 Patents, etc. Each Credit Party owns or possesses
adequate licenses or other rights to use all patents, patent applications,
trademarks, trademark applications, servicemarks, servicemark applications,
trade names, copyrights, trade secrets and know-how (collectively, the
"Intellectual Property"), that are necessary for the operation of its
respective businesses as presently conducted and as proposed to be conducted.
No claim is pending or threatened to the effect that any Credit Party infringes
upon or conflicts with the asserted rights of any other
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Person under any Intellectual Property, and there is no basis for any such claim
(whether or not pending or threatened). No claim is pending or threatened to the
effect that any such Intellectual Property owned or licensed by any Credit Party
or which any Credit Party otherwise has the right to use is invalid or
unenforceable by such Credit Party, and there is no basis for any such claim
(whether or not pending or threatened).
5.16 Compliance with Laws, etc. Except as set forth in
Schedule 5.16 hereto and other than those the non-compliance with which would
not have a Materially Adverse Effect, each Credit Party is in compliance with
all laws and regulations, including, without limitation, those relating to
pollution and environmental control, equal employment opportunity and employee
safety, in all jurisdictions in which it is presently doing business, and each
Credit Party will comply and cause each of its Subsidiaries to comply with all
such laws and regulations which may be imposed in the future in jurisdictions
in which it or such Subsidiary may then be doing business.
5.17 Properties. The Borrower and each of its Subsidiaries
have good and marketable title to and beneficial ownership of all their
respective properties and assets owned by them, including after the Closing
Date all property reflected in the most recent balance sheet referred to in
Section 5.10(b) (except as sold or otherwise disposed of since the date of such
balance sheet in the ordinary course of business), free and clear of all Liens
other than the Liens contemplated by the applicable Security Documents. The
Borrower and each of its Subsidiaries hold all material licenses, certificates
of occupancy or operation and similar certificates and clearances of municipal
and other authorities necessary to own and operate their respective properties
in the manner and for the purposes currently operated by each such party. Each
Real Property is suitable for its intended purposes and is served by such
utilities as are necessary for the operation thereof. There are no actual,
alleged or, to the knowledge of the Borrower, threatened defaults with respect
to any leases of real property under which the Borrower, or any of its
Subsidiaries, is lessor or lessee.
5.18 Securities. All of the outstanding capital stock of the
Borrower (and each of its Subsidiaries) has been duly authorized, issued and
delivered and is fully paid, nonassessable and free of preemptive rights.
Except as set forth in the Offering Memorandum, there are not, as of the
Closing Date and thereafter, any existing options, warrants, calls,
subscriptions, convertible or exchangeable securities, agreements, commitments
or arrangements for any Person to acquire any capital stock of the
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Borrower or any of its Subsidiaries or any other securities convertible into,
exchangeable for or evidencing the right to subscribe for any such capital
stock.
5.19 Collective Bargaining Agreements. Set forth on Schedule
5.19 hereto is a list and description (including dates of termination) of all
collective bargaining or similar agreements between or applicable to the
Borrower and/or any of its Subsidiaries as of the date hereof and any union,
labor organization or other bargaining agent in respect of the employees of the
Borrower and/or any of its Subsidiaries on the date indicated on Schedule 5.19
hereto.
5.20 Indebtedness Outstanding. Set forth on Schedule 5.20
hereto is a list and description of (a) all Indebtedness of the Borrower (other
than the Loans) that will be outstanding immediately after the Closing Date
("Existing Indebtedness") and (b) all Indebtedness of the Borrower that will be
repaid, redeemed, defeased, transferred or otherwise terminated on or prior to
the Closing Date or, in the case of the Subordinated Notes, on the later of (i)
30 days after the consummation of the offering of the Senior Notes and (ii)
July 15, 1997.
5.21 Environmental Matters. Except as set forth on Schedule
5.21 hereto or described in the Offering Memorandum, and except as would not
have a Materially Adverse Effect:
(A) Each of the Borrower and its Subsidiaries has obtained
all permits, licenses and other authorizations (collectively, "Authorizations")
which are required with respect to the operation of their respective businesses
and assets, and the use, ownership and operation of Real Property of the
Borrower and its Subsidiaries, in each case taken as a whole, under any
Environmental Law and each such authorization is in full force and effect.
(B) Each of the Borrower and its Subsidiaries is in
compliance with all terms and conditions of the Authorizations specified in
subsection 5.21(A) above, and is also in compliance with, and not subject to
liability under, any Environmental Laws applicable to it and its business,
assets, operations and Real Property (including, without limitation, compliance
with standards, schedules and timetables therein).
(C) There is no civil, criminal or administrative action,
suit, demand, claim, hearing, notice of violation, investigation, proceeding,
notice or demand letter or request for information pending or, to the knowledge
of the Borrower or any of its
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Subsidiaries, threatened against the Borrower or any of its Subsidiaries under
any Environmental Law.
(D) Neither the Borrower nor any of its Subsidiaries has
received notice that it has been identified as a potentially responsible party
under the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended ("CERCLA"), or any comparable state law, nor has the
Borrower or any of its Subsidiaries received any notification that any
Hazardous Materials that it, or any of its Subsidiaries, or any of their
respective predecessors in interest has used, generated, stored, treated,
handled, transported or disposed of, or arranged for disposal or treatment of,
or arranged with a transporter for transport for disposal or treatment of, have
been found at any site at which any Governmental Authority or private party is
conducting or plans to conduct a remedial investigation or other action
pursuant to any Environmental Law.
(E) There have been no releases (i.e., any past or present
releasing, spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, disposing or dumping) of Hazardous
Materials by the Borrower or any of its Subsidiaries or their respective
predecessors in interest on, at, upon, into or from any of the Real Properties.
To the knowledge of the Borrower and each of its Subsidiaries, there have been
no such releases on, at, upon, under, from or into any real property in the
vicinity of any of the Real Properties that, through soil, air, surface water
or groundwater migration or contamination, may have migrated to or under such
Real Properties.
(F) No friable asbestos is present in, on, or at any Real
Properties or any facility or equipment of the Borrower or any of its
Subsidiaries.
(G) No Real Properties of the Borrower or any of its
Subsidiaries or any of their respective predecessors in interest are (i) listed
or proposed for listing on the National Priorities List under CERCLA or (ii)
listed on the Comprehensive Environmental Response, Compensation and Liability
Information System under CERCLA or (iii) included on any comparable lists
maintained by any Governmental Authority having jurisdiction over the Borrower,
any of its Subsidiaries, any of their respective predecessors or any of the
assets or properties of any of the foregoing.
(H) There are no past or present events, conditions,
circumstances, activities, practices, incidents, actions or plans which may
interfere with or prevent compliance with any Environmental Law, or which may
give rise to any liability under any En-
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vironmental Law, including, without limitation, liability under CERCLA or
similar state, local or foreign laws, or otherwise form the basis of any claim,
action, demand, suit, proceeding, hearing or notice of violation, notice of
potential liability or investigation, based on or related to the manufacture,
processing, distribution, use, generation, treatment, storage, disposal,
transport, shipping or handling, or the emission, discharge, release or
threatened release into the environment, of any Hazardous Materials.
(I) No Lien has been recorded under any Environmental Law
with respect to any assets, facility, inventory or Real Property owned,
operated, leased or controlled by any of the Borrowers or any of their
respective Subsidiaries.
5.22 Environmental Investigations. All environmental
investigations, studies, audits, assessments or reviews directed to be
conducted by the Borrower or in the possession of the Borrower in relation to
the current or prior business or assets of the Borrower or any Subsidiary or
any Real Property, assets or facility now or previously owned, operated,
leased, used or controlled by the Borrower or any Subsidiary have been
delivered to the Agent.
SECTION 6. Affirmative Covenants. The Borrower covenants and
agrees that on the Closing Date and thereafter for so long as this Agreement is
in effect and until the Commitments have terminated and the Loans together with
interest, fees and all other Obligations incurred hereunder are paid in full:
6.01 Information Covenants. The Borrower will furnish or
cause to be furnished to each Bank:
(a) As soon as available and in any event within 90 days
after the close of each fiscal year of the Borrower, the audited
consolidated balance sheets of the Borrower and its Subsidiaries as at
the end of such fiscal year and the related consolidated statements of
operations, of cash flows and of stockholders' equity for such fiscal
year, setting forth comparative consolidated figures for the preceding
fiscal year, and a report on such consolidated balance sheets and
financial statements by a "Big Six" accounting firm or another firm of
independent public accountants of nationally recognized standing that
is satisfactory to the Agent, which report shall not be qualified as
to the scope of audit or as to the status of the Borrower and its
Subsidiaries as a going concern and shall state that such con-
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solidated financial statements present fairly, in all material
respects, the consolidated financial position of the Borrower and its
Subsidiaries as at the dates indicated and the consolidated results of
their operations and their cash flows for the periods indicated in
conformity with GAAP applied on a basis consistent with prior years
(except for such changes with which the independent certified public
accountants concur) and the audit by such accountants was conducted in
accordance with generally accepted auditing standards.
(b) As soon as practicable and in any event within 30 days
after the end of each month, commencing with the first full month
ending after the Closing Date, (i) the consolidated balance sheet of
the Borrower as at the end of such period and (ii) the related
statements of income and cash flows of the Borrower, in each case for
such fiscal month and (in the case of the third, sixth, ninth and
twelfth fiscal months) for the Fiscal Quarter then ended and for the
period from the beginning of the then current fiscal year to the end
of such fiscal month and, as the case may be, Fiscal Quarter, setting
forth in comparative form the corresponding periods of the prior
fiscal year, all in reasonable detail and certified by a principal
financial officer of the Borrower as presenting fairly, in accordance
with GAAP (except for the absence of notes thereto) applied (except as
specifically set forth therein) on a basis consistent with such prior
fiscal periods, the information contained therein, subject to changes
resulting from normal year-end audit adjustments.
(c) Together with each delivery of financial statements of
the Borrower and its Subsidiaries pursuant to subsection (a) above, a
written statement by the independent public accountants giving the
report thereon stating that in connection with their audit nothing has
come to their attention which causes them to believe that as of the
end of such fiscal year of the Borrower there existed a Default or an
Event of Default related to the breach of any covenant set forth in
Section 6 or 7 (having reviewed Sections 6, 7, 8 and 9 hereof and the
Compliance Certificate delivered within 45 days after the end of the
Borrower's fourth Fiscal Quarter) as they relate to accounting matters
and if such a condition or event has come to their attention,
specifying the nature thereof.
(d) Prior to the commencement of each fiscal year, budgets of
the Borrower and its Subsidiaries in reasonable
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detail for each month of such fiscal year, as customarily prepared by
management for its internal use, setting forth, with appropriate
discussion, the principal assumptions upon which such budgets are
based, accompanied by an Officers' Certificate certifying that such
budgets are reasonable and present a good faith estimate of the
consolidated information therein at the date thereof. Together with
each delivery of financial statements pursuant to Section 6.01(b)
hereof, a comparison of the most recent month's and the current year to
date financial results against the budgets required to be submitted
pursuant to this subsection (d) shall be presented to the Agent.
(e) As soon as practicable and in any event within 45 days
after the end of each of the Borrower's Fiscal Quarters, a certificate
of the chief financial officer, controller, chief accounting officer
or other Authorized Officer of the Borrower to the effect that such
financial statements are fairly presented in all material respects and
that no Default or Event of Default exists, or, if any Default or
Event of Default does exist, specifying the nature and extent thereof
and what action the Borrower has taken, is taking and proposes to take
with respect thereto, which certificate shall be accompanied by a
Compliance Certificate in a form reasonably acceptable to the Agent
setting forth the calculations required to establish (i) whether the
Borrower and its Subsidiaries were in compliance with the covenants in
this Agreement (including without limitation the covenants set forth
in Sections 7.05 and 7.10 through 7.14 inclusive) and (ii) the
applicable Interest Margin pursuant to the definition thereof, in each
case, as at the end of such fiscal period or year, as the case may be.
(f) Promptly upon receipt thereof, a copy of each annual
"management letter" and of each other report submitted to the Borrower
by its independent accountants in connection with any annual audit and
any interim or special audit made by them of the books of the Borrower
or any of its Subsidiaries.
(g) Promptly upon their becoming available, copies of all
financial statements, reports, notices and proxy statements sent or
made available generally by the Borrower or any Subsidiary of the
Borrower to its security holders, of all regular and periodic reports
and all registration statements and prospectuses, if any, filed by the
Borrower or any of its Subsidiaries with any securities exchange or
with the SEC and of all press releases and other statements made
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available generally by the Borrower or any Subsidiary of the Borrower
to the public concerning material developments in the business of the
Borrower and its Subsidiaries.
(h) Immediately upon any officer of the Borrower or any of
its Subsidiaries obtaining knowledge (w) of any condition or event
which constitutes a Default or Event of Default, or becoming aware
that any Bank has given any notice or taken any other action with
respect to a claimed Default or Event of Default under this Agreement,
(x) that any Person has given any notice to the Borrower or any
Subsidiary of the Borrower or taken any other action with respect to a
claimed default or event or condition of the type referred to in
Section 8.04, or (y) of a material adverse change in the business,
operations, properties, assets, nature of assets, condition (financial
or otherwise) or prospects of the Borrower and its Subsidiaries taken
as a whole, an Officers' Certificate specifying the nature and period
of existence of any such condition or event, or specifying the notice
given or action taken by such holder or Person and the nature of such
claimed Default, Event of Default, event or condition, or material
adverse change, and what action the Borrower has taken, is taking and
proposes to take with respect thereto.
(i) (i) Promptly upon any officer of the Borrower or any of
its Subsidiaries obtaining knowledge of the institution of, or threat
of, any action, suit, proceeding, governmental investigation or
arbitration against or affecting the Borrower or any of its
Subsidiaries or any property of the Borrower or any of its
Subsidiaries not previously disclosed to the Banks, which action,
suit, proceeding, governmental investigation or arbitration seeks (or
in the case of multiple actions, suits, proceedings, governmental
investigations or arbitrations arising out of the same general
allegations or circumstances which seek) recovery from the Borrower or
any of its Subsidiaries aggregating $500,000 or more (exclusive of
claims covered by insurance policies of the Borrower or any of its
Subsidiaries unless the insurers of such claims have disclaimed
coverage or reserved the right to disclaim coverage on such claims),
the Borrower shall give notice thereof to the Banks and provide such
other information as may be reasonably available to enable the Banks
and their counsel to evaluate such matters; (ii) as soon as
practicable and in any event within 45 days after the end of each
Fiscal Quarter, the Borrower shall provide a quarterly report to the
Banks covering the institution of, or threat of, any action, suit,
proceeding, governmental investigation or arbitration (not previously
reported) against or affect-
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ing the Borrower or any of its Subsidiaries or any property of the
Borrower or any of its Subsidiaries, which action, suit, proceedings,
governmental investigation or arbitration seeks (or in the case of
multiple actions, suits, proceedings, governmental investigations or
arbitrations arising out of the same general allegations or
circumstances which seek) recovery from the Borrower or any of its
Subsidiaries aggregating $250,000 or more (exclusive of claims covered
by insurance policies of the Borrower or any of its Subsidiaries unless
the insurers of such claims have disclaimed coverage or reserved the
right to disclaim coverage on such claims), and shall provide such
other information at such time as may be reasonably available to enable
the Banks and their counsel to evaluate such matters; (iii) in addition
to the requirements set forth in clauses (i) and (ii) of this Section
6.01(i), the Borrower upon request shall promptly give notice of the
status of any action, suit, proceeding, governmental investigation or
arbitration covered by a report delivered to the Banks pursuant to
clause (i) or (ii) above to the Banks and provide such other
information as may be reasonably available to it to enable the Banks
and their counsel to evaluate such matters and (iv) promptly upon any
officer of the Borrower or any of its Subsidiaries obtaining knowledge
of any dispute in respect of or the institution of, or threat of, any
action, suit, proceeding, governmental investigation or arbitration in
respect of any material contract of the Borrower or any of its
Subsidiaries, the Borrower shall give notice thereof to the Banks and
shall provide such other information as may be reasonably available to
enable the Banks and their counsel to evaluate such matters.
(j) Within 45 days of the last day of each fiscal year of the
Borrower, a report in form and substance reasonably satisfactory to
the Agent outlining all material insurance coverage maintained as of
the date of such report by the Borrower and its Subsidiaries and
outlining all material insurance coverage planned to be maintained by
the Borrower and its Subsidiaries in the subsequent fiscal year.
(k) As soon as practicable and in any event within ten days
after the making of any amendment or waiver, copies of amendments or
waivers with respect to Indebtedness of the Borrower or any of its
Subsidiaries.
(l) On or prior to the Closing Date, the Borrower's
consolidated plan for the remainder of the fiscal year ending 1997 and
for the next succeeding five fiscal years, in
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each case prepared in accordance with the Borrower's normal accounting
procedures (and which will represent management's reasonable estimate
of the Borrower's projected performance during such periods) applied on
a consistent basis, including, without limitation, (A) forecasted
consolidated balance sheets and consolidated statements of operations
and of cash flows of the Borrower and its Subsidiaries, (B) the amount
of forecasted capital expenditures for such fiscal periods, and (C)
forecasted compliance with Sections 7.05 and 7.10 through 7.14
inclusive; provided that if any such forecast indicates that the
Borrower may not be in compliance with any provision of this Agreement
at some future date, such forecast shall not constitute a Default or an
Event of Default or anticipatory or other breach thereof; and provided
further that the Borrower shall provide an Officers' Certificate
specifying the action the Borrower proposes to take with respect
thereto.
(m) Within twenty (20) days after the last Business Day of
each fiscal month of the Borrower, the Borrower shall deliver to Agent
for distribution to each Bank a borrowing base certificate in the form
of Exhibit H hereto (the "Borrowing Base Certificate") detailing the
Borrower's Eligible Accounts Receivable and Eligible Inventory as of
the last day of such month, certified as complete and correct on
behalf of the Borrower by the Borrower's chief executive officer,
chief financial officer, controller or other Authorized Officer. In
addition, each Borrowing Base Certificate shall have attached to it
such additional schedules and/or other information as the Agent may
reasonably request. If the Borrower fails to deliver any such
Borrowing Base Certificate within twenty (20) days after the end of
any such month, then the Borrower's Borrowing Base shall be deemed to
be $0 until such time as the Borrower shall deliver such required
Borrowing Base Certificate. The Borrower shall also deliver on a
monthly basis an accounts receivable aging analysis and an inventory
breakout in form and substance reasonably satisfactory to the Agent.
(n) With reasonable promptness, such other information and
data with respect to the Borrower or any of its Subsidiaries or any
other similar entity in which the Borrower or any Subsidiary has an
investment, as from time to time may be reasonably requested by any
Bank.
(o) (i) On or prior to the Closing Date and within 30 days
after the commencement of each fiscal year, a complete and accurate
list of the officers and directors of the Bor-
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rower and (ii) within 30 days of any change in personnel affecting the
accuracy of such list, a notice specifying such change in personnel.
(p) The Borrower will promptly furnish to the Agent all
financial statements, information and reports which the Borrower
furnishes or causes to be furnished to any holder of Senior Notes (or
any agreement or instrument evidencing Indebtedness issued in exchange
for, or to refund or refinance Indebtedness outstanding under, the
Senior Notes).
6.02 Books, Records and Inspections. The Borrower will, and
will cause each of its Subsidiaries to, keep true books of records and accounts
in which full and correct entries will be made of all their business
transactions, and will reflect in its financial statements adequate accruals
and appropriations to reserves, all in accordance with GAAP. The Borrower will,
and will cause each of its Subsidiaries to, permit, upon reasonable prior
notice to the chief financial officer, controller or any other Authorized
Officer of the Borrower, officers and designated representatives of the Agent
or any Bank to visit and inspect any of the properties or assets of the
Borrower and any of its Subsidiaries in whomsoever's possession, and to examine
the books of account of the Borrower and any of its Subsidiaries and discuss
the affairs, finances and accounts of the Borrower and of any of its
Subsidiaries with, and be advised as to the same by, its and their officers and
independent accountants (in the presence of such officers), all at such times
and intervals and to such extent as the Agent or any Bank may reasonably
request.
6.03 Maintenance of Property; Insurance. (a) The Borrower
will, and will cause each of its Subsidiaries to, exercise commercially
reasonable efforts to maintain or cause to be maintained in good repair,
working order and condition (subject to normal wear and tear) all properties
used in their businesses (including, without limitation, each Real Property)
and from time to time will make or cause to be made all appropriate repairs,
renewals and replacements thereof and will maintain and renew as necessary all
material licenses, permits and other clearances necessary to use and occupy
such properties of the Borrower and each Subsidiary, as the case may be.
(b) The Borrower will, and will cause each of its
Subsidiaries to, maintain or cause to be maintained, with financially sound and
reputable insurers, insurance with respect to its properties and business
against loss or damage of the kinds customarily insured against by corporations
of established reputation engaged in the same or similar businesses and
similarly
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situated, of such types and in such amounts as are customarily carried under
similar circumstances by such other corporations to the extent that such types
and such amounts of insurance are available at commercially reasonable rates.
The Borrower will, and will cause each of its Subsidiaries to, furnish to each
Bank, upon reasonable request, information as to the insurance carried, and will
not cancel any such insurance without the consent of the Required Banks.
(c) Without limiting subsection 6.03(b) above, the Borrower
will, and will cause each of its Subsidiaries to, maintain in full force the
insurance coverages specified in the Security Documents.
6.04 Payment of Taxes. The Borrower will pay and discharge,
and will cause each of its Subsidiaries to pay and discharge, all taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits, or upon any properties belonging to it, prior to the date on
which penalties attach thereto, and all lawful claims which, if unpaid, might
become a Lien or charge upon any properties of the Borrower or any of its
Subsidiaries or cause a failure or forfeiture of title thereto; provided that
neither the Borrower nor any of its Subsidiaries shall be required to pay any
such tax, assessment, charge, levy or claim that is being contested in good
faith and by proper proceedings promptly instituted and diligently conducted if
it has maintained adequate reserves with respect thereto in accordance with
GAAP.
6.05 Corporate Franchises. The Borrower will do, and will
cause each Subsidiary to do, or cause to be done, all things necessary to
preserve and keep in full force and effect its existence, rights and authority,
except where such failure to keep in full force and effect such rights and
authority would not have a Materially Adverse Effect.
6.06 Compliance with Statutes, etc. The Borrower will, and
will cause each of its Subsidiaries to, comply with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property (including applicable statutes,
regulations, orders and restrictions relating to environmental standards and
controls) other than non-compliance which would not have a Materially Adverse
Effect.
6.07 ERISA. The Borrower will furnish to each of the Banks:
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(a) promptly upon the Borrower knowing or having reason to
know of the occurrence of any (i) Termination Event, or (ii)
"prohibited transaction," within the meaning of Section 406 of ERISA
or Section 4975 of the Code, in connection with any Pension Plan or
any trust created thereunder, which in the case of all such events
described in clause (i) or (ii) results or could reasonably be
expected to result in a liability of the Borrower or its ERISA
Affiliates in the aggregate in excess of $100,000, a written notice
specifying the nature thereof, what action the Borrower or its ERISA
Affiliates have taken, are taking or propose to take with respect
thereto, and, when known, any action taken or threatened by the
Internal Revenue Service, Department of Labor, PBGC or Multiemployer
Plan sponsor with respect thereto.
(b) with reasonable promptness copies of (i) all notices
received by the Borrower or any of its ERISA Affiliates of PBGC's
intent to terminate any Title IV Plan or to have a trustee appointed
to administer any Title IV Plan, the notice of which event is required
pursuant to the preceding paragraph (a); (ii) upon the request of the
Agent each Schedule B (Actuarial Information) to the annual report
(Form 5500 Series) filed by the Borrower or any of its ERISA
Affiliates with the Internal Revenue Service with respect to each
Pension Plan; (iii) upon the request of the Agent, the most recent
actuarial valuation report for each Title IV Plan; and (iv) all
notices received by the Borrower or any of its ERISA Affiliates from a
Multiemployer Plan sponsor concerning the imposition or amount of
withdrawal liability pursuant to Section 4202 of ERISA, the notice of
which event is required pursuant to the preceding paragraph (a) above.
6.08 Performance of Obligations. The Borrower will, and will
cause each of its Subsidiaries to, perform in all material respects all of
their respective obligations under the terms of each mortgage, indenture,
security agreement, other debt instrument and material contract by which it is
bound or to which it is a party, except where such nonperformance would not
have a Materially Adverse Effect.
6.09 Fiscal Quarters; Fiscal Year. The Borrower will, for
financial reporting purposes, and will cause each of its Subsidiaries to, have
its fourth fiscal quarters and its fiscal years end on December 31 and its
first fiscal quarter end on the 13th Sunday following such date and each of its
second and third fiscal quarters end on the 13th Sunday following the end of
the preceding quarter.
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6.10 Use of Proceeds. All proceeds of the Loans shall be
used as provided in Section 5.05.
6.11 Intentionally Omitted.
6.12 No Further Negative Pledges. Except with respect to
Existing Indebtedness and except with respect to prohibitions against other
encumbrances on specific property encumbered to secure payment of particular
Indebtedness permitted hereunder (which Indebtedness relates solely to the
acquisition or improvement of such specific property), neither the Borrower nor
any of its Subsidiaries shall enter into any agreement prohibiting the creation
or assumption of any Lien upon its properties or assets, whether now owned or
hereafter acquired.
6.13 Lender Meeting. The Borrower will participate in a
meeting of the Banks once during each fiscal year to be held at a location and
a time selected by the Borrower and reasonably acceptable to the Agent.
6.14 Pledge of Additional Collateral. Subject to Section
6.12, promptly, and in any event within 30 days after the acquisition of assets
of the type that would have constituted Collateral (if the Person acquiring
such assets had executed an appropriate Security Document on the Closing Date)
at the Closing Date (the "Additional Collateral"), the Borrower will, and will
cause each of its Subsidiaries to, execute all necessary documents and take all
necessary action, including, without limitation, the filing of appropriate
financing statements under the provisions of the UCC, applicable foreign,
domestic or local laws, rules or regulations in each of the offices where such
filing is necessary or appropriate to grant the Collateral Agent a perfected
Lien in such Collateral (or comparable interest under foreign law in the case
of foreign Collateral) pursuant to and to the full extent required by the
Security Documents and this Agreement. All actions taken by the parties in
connection with the pledge of Additional Collateral, including, without
limitation, costs of counsel for the Agent, shall be for the account of the
Borrower, which shall pay all sums due on demand.
6.15 Security Interests. The Borrower will, and will cause
each of its Subsidiaries to, perform any and all acts and execute any and all
documents (including, without limitation, the execution, amendment or
supplementation of any financing statement and continuation statement) for
filing in any appropriate jurisdiction under the provisions of the UCC, local
law or any statute, rule or regulation of any applicable jurisdiction which are
necessary in order to maintain or confirm in favor of the
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Collateral Agent for the ratable benefit of the Banks a valid and perfected Lien
on the Collateral and any Additional Collateral, subject to no Liens except for
Prior Liens and Liens permitted by the applicable Security Documents. The
Borrower shall, as promptly as practicable after the filing of any financing
statements, deliver to the Agent acknowledgment copies of, or copies of lien
search reports confirming the filing of, financing statements duly filed under
the UCC of all jurisdictions as may be necessary or, in the reasonable opinion
of the Agent, desirable to perfect the Lien created, or purported or intended to
be created, by each Security Document.
6.16 Environmental Events. (i) The Borrower will promptly
give notice to the Agent upon becoming aware thereof, in each case to the
extent such occurrence would have a Materially Adverse Effect, (a) of any
violation of any Environmental Law, (b) of any inquiry, proceeding,
investigation or other action, including a request for information or a notice
of potential liability under any Environmental Law from any Person or (c) of
the discovery of the release or threatened release of any Hazardous Material
at, on, upon, under or from any of the Real Properties or any facility or
equipment thereat in excess of reportable quantities or allowable standards or
levels under any Environmental Law, or in a manner and/or amount which could
reasonably be expected to result in liability under any Environmental Law.
(ii) In the event of the presence of any Hazardous Material
on, at, upon or under any of the Real Properties which is in violation of, or
which could reasonably be expected to result in liability under, any
Environmental Law, in each case which would have a Materially Adverse Effect,
the Borrower or any of its Subsidiaries, upon discovery thereof, shall take all
necessary steps to initiate and expeditiously complete all response, corrective
and other action required under any Environmental Law to mitigate and eliminate
any such adverse effect.
(iii) The Borrower shall as promptly as practicable, but in
any event within 15 days, notify the Agent of the occurrence of any event
specified in Section 6.16(ii) and shall thereafter keep the Agent informed on a
periodic basis of any actions taken in response to such event and the results
of such actions.
(iv) The Borrower shall provide the Agent with copies of
any notice, submittal or documentation provided by any Borrower or any of its
respective Subsidiaries to any governmental authority or third party under any
Environmental Law if the matter which is the subject of the notice, submittal
or other documentation could reasonably be expected to result in a Materially
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Adverse Effect. Such notice, submittal or documentation shall be provided to
the Agent promptly and, in any event, within 5 business days after such
material is provided to the governmental authority or third party.
SECTION 7. Negative Covenants. The Borrower hereby covenants
and agrees that as of the Closing Date and thereafter for so long as this
Agreement is in effect and until the Commitments have terminated and until the
Loans together with interest, fees and all other Obligations incurred hereunder
are paid in full:
7.01 Changes in Business. The Borrower will not, and the
Borrower will not permit any of its Subsidiaries to, materially alter the
character of its businesses from that conducted by the Borrower or such
Subsidiary, as the case may be, at the Closing Date.
7.02 Amendments or Waivers of Certain Documents. After the
Closing Date, the Borrower will not, and the Borrower will not permit any of
its Subsidiaries to, amend or otherwise change the terms of any of the
Refinancing Documents, its Certificate of Incorporation (including, without
limitation, by the filing of a certificate of designation) or By-laws or any
agreement entered into by the Borrower or any of its Subsidiaries with respect
to its capital stock in any manner adverse to the Banks.
7.03 Liens. The Borrower will not, and will not permit any of
its Subsidiaries to, directly or indirectly, create, incur, assume or permit or
suffer to exist any Lien upon or with respect to any item constituting
Collateral, whether now owned or hereafter acquired, except for the Lien of the
Security Document relating thereto, Prior Liens applicable thereto and other
Liens expressly permitted by such Security Document. The Borrower will not, and
will not permit any of its Subsidiaries to, create, incur, assume or suffer to
exist any Lien upon or with respect to any property or assets of the Borrower
or any of its Subsidiaries which does not constitute Collateral, whether now
owned or hereafter acquired, or sell any such property or assets subject to an
understanding or agreement, contingent or otherwise, to repurchase such
property or assets or assign any right to receive income, or file or permit the
filing of any financing statement under the UCC or any other similar notice of
Lien under any similar recording or notice statute, except the following, which
are herein collectively referred to as "Permitted Encumbrances":
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(a) Liens for taxes, assessments or governmental charges or
claims not yet delinquent or Liens for taxes, assessments or
governmental charges or claims being contested in good faith and by
appropriate proceedings for which adequate reserves, as may be
required by GAAP, have been established;
(b) Liens in respect of property or assets of the Borrower or
any of its Subsidiaries imposed by law (i) which were incurred in the
ordinary course of business, such as carriers', warehousemen's and
mechanics' Liens and other similar Liens arising in the ordinary
course of business, and (x) which do not in the aggregate materially
detract from the value of such property or assets or materially impair
the use thereof in the operation of the business of the Borrower or
any of its Subsidiaries or (y) which are being contested in good faith
by appropriate proceedings, which proceedings have the effect of
preventing the forfeiture or sale of the property or asset subject to
such Lien or (ii) which do not relate to material liabilities of the
Borrower and its Subsidiaries and do not, in the aggregate, materially
detract from the value of the property and assets of the Borrower and
its Subsidiaries taken as a whole;
(c) Liens in connection with any attachment or judgment
(including judgment or appeal bonds) not in excess of $250,000 in the
aggregate (exclusive of any amount adequately covered by insurance as
to which the insurance company has acknowledged coverage) unless the
judgment it secures shall, within 60 days after the entry thereof, not
have been discharged or execution thereof not stayed pending appeal,
or shall not have been discharged within 30 days after the expiration
of any such stay;
(d) Liens (other than any Lien imposed by ERISA) incurred or
deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of
social security, or to secure the performance of tenders, statutory
obligations, surety and appeal bonds, bids, leases, government
contracts, performance and return-of-money bonds and other similar
obligations incurred in the ordinary course of business (exclusive of
obligations in respect of the payment for borrowed money or the
equivalent);
(e) Subject to the provisions of Section 7.19, Leases with
respect to the assets or properties of the Borrower entered into in
the ordinary course of the Borrower's business
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and subordinate in all respects to the Liens granted and evidenced by
the Security Documents;
(f) easements, rights of way, restrictions, minor defects or
irregularities in title not interfering in any material respect with
the business of the Borrower or any of its Subsidiaries, and which do
not materially impair the operations, value or utility of the Real
Property to which it relates for such Real Property's intended
purposes; and
(g) Liens upon real or tangible personal property acquired by
the Borrower or its Subsidiaries after the date hereof; provided that
(i) any such Lien is created solely for the purpose of securing
Indebtedness representing, or incurred to finance, the cost of the
item of property subject thereto, (ii) the principal amount of the
Indebtedness secured by such Lien does not exceed 100%, of the fair
value (as determined in good faith by the board of directors of the
Borrower) of the respective property at the time it was so acquired,
(iii) such Lien does not extend to or cover any other property other
than such item of property and (iv) the incurrence of such
Indebtedness secured by such Lien is permitted by Section 7.04.
The Borrower shall use its best efforts to obtain the waiver
of any Lien referred to in clause (b)(i) above on or in respect of any
Equipment or Inventory. The term "Permitted Encumbrances" shall mean, with
respect to Collateral, Liens permitted under the applicable Security Documents.
7.04 Indebtedness. The Borrower will not, and will not permit
any of its Subsidiaries to, contract, create, incur, assume, become liable for
(contingently or otherwise) or suffer to exist any Indebtedness, except:
(a) Indebtedness incurred pursuant to the Credit Documents;
provided that the aggregate Indebtedness incurred pursuant to this
Agreement shall in no event exceed the Total Commitments;
(b) Existing Indebtedness and any refinancing thereof or
guarantees with respect thereto; provided that any such refinancing of
Existing Indebtedness shall be on terms which, both taken as a whole
and specifically as such terms relate to the identity of the obligors,
repayments of principal, covenants, events of default and security in
property of the debtor, are in each event no less favorable to the
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Banks than the correlative terms of the Existing Indebtedness;
(c) Interest Rate Agreements;
(d) $2.5 million of Indebtedness, in the aggregate at any
time outstanding, incurred to finance the cost of the acquisition of
real or personal tangible property (including Capital Leases);
provided that such Indebtedness shall not exceed 100% of the fair
value of such property; and provided, further, that such Indebtedness
is not secured by any Lien other than a Lien referred to in clause (g)
of Section 7.03;
(e) other unsecured Indebtedness not exceeding $500,000 in the
aggregate at any time outstanding; and
(f) the Subordinated Notes, provided that the Subordinate
Notes are repurchased no later than the later of (i) 30 days after the
consummation of the offering of the Senior Notes and (ii) July 15, 1997.
7.05 Capital Expenditures. The Borrower will not, and will
not permit any of its Subsidiaries to, make Consolidated Capital Expenditures
for any purpose, in excess of $3.5 million in any fiscal year; provided further
that if the Borrower and its Subsidiaries have made Consolidated Capital
Expenditures in the immediately preceding fiscal year less than the maximum
amount set forth above for such immediately preceding fiscal year (a
"deficiency amount"), the Borrower and its Subsidiaries may make Consolidated
Capital Expenditures in the current fiscal year in an amount not to exceed the
sum of (i) the amount set forth for such current fiscal year and (ii) the
deficiency amount for the immediately preceding fiscal year; provided that a
deficiency amount may only be carried over to such fiscal year and may not be
aggregated with any other deficiency amount.
7.06 Advances, Investments and Loans. The Borrower will not,
and will not permit any of its Subsidiaries to, lend money or credit or make
advances to any Person, or purchase or acquire any stock, obligations or
securities of, or any other interest in, or make any capital contribution to
any Person, except:
(a) investments in Cash and Cash Equivalents;
(b) receivables owing to them and advances to customers and
suppliers, in each case if created, acquired or made
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in the ordinary course of business and payable or dischargeable in
accordance with customary trade terms;
(c) investments (including debt obligations) received in
connection with the bankruptcy or reorganization of suppliers and
customers and in settlement of delinquent obligations of, and other
disputes with, customers and suppliers arising in the ordinary course
of business; and
(d) additional loans, advances and/or investments of a nature
not contemplated by the foregoing clauses (a) through (c); provided
that all loans, advances and investments made pursuant to this clause
(d) shall not exceed $500,000 in the aggregate at any time
outstanding; and provided, that all Securities or other instruments
evidencing such loans, investments or advances shall be pledged
pursuant to an appropriate Security Document in the event that such
Securities or other instruments shall have been acquired for aggregate
consideration in excess of $250,000.
7.07 Prepayments of Indebtedness, etc. Except with respect to
the Senior Notes in accordance with Section 7.08, the Borrower will not, and
will not permit any of its Subsidiaries to: (i) after the issuance thereof,
amend or modify (or permit the amendment or modification of) any of the terms
or provisions of any of the Indebtedness (or any agreement relating thereto) of
the type described in Section 7.04(b) (except as permitted under Section 7.02
with respect to the Refinancing Documents); (ii) make (or give any notice in
respect of) any voluntary or optional payment or prepayment or redemption or
acquisition for value of (including, without limitation, by way of depositing
with any trustee with respect thereto money or securities before such
Indebtedness is due for the purpose of paying such Indebtedness when due), or
exchange of, any such Indebtedness or any capital stock, as the case may be;
and (iii) pay interest on the Existing Indebtedness (other than in accordance
with the terms thereof).
7.08 Dividends, etc. Except for the Distributions, the
Borrower will not, and will not permit any of its Subsidiaries to, declare or
pay any dividends or return any capital to, its stockholders or authorize or
make any other distribution, payment or delivery of property or cash to its
stockholders as such, or redeem, retire, purchase or otherwise acquire,
directly or indirectly, for any consideration, any shares of any class of its
capital stock now or hereafter outstanding (or any warrants for or options or
stock appreciation rights in respect of any of such shares), or make any
loans or advances to Affiliates, or set
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aside any funds for any of the foregoing purposes, or permit any of its
Subsidiaries to purchase or otherwise acquire for consideration any shares of
any class of the capital stock of the Borrower or any other of the Borrower's
Subsidiaries, as the case may be, now or hereafter outstanding (or any options
or warrants or stock appreciation rights issued by such Person with respect to
its capital stock) (all of the foregoing, together with the optional redemption
or repurchase of the Senior Notes in accordance with the terms of the Indenture,
"Dividends"), unless (1) immediately before and immediately after giving effect
to such proposed Dividends on a pro forma basis, no Default or Event of Default
shall have occurred and be continuing and such Dividend shall not be an event
which is, or after notice or lapse of time would be, an "event of default" under
the terms of any Indebtedness of the Borrower or its Subsidiaries and (2) after
giving effect to the proposed Dividend, the aggregate amount of all such
Dividends declared or made since the Closing Date, does not exceed 50% of the
aggregate Consolidated Net Income of the Borrower accrued on a cumulative basis
during the period beginning on the first day of the fiscal quarter beginning
after the Closing Date and ending on the last day of the Borrower's last fiscal
quarter ending prior to the date of the Dividend, provided that the aggregate
amount of such Dividends shall not exceed $5.0 million in any twelve-month
period; and except that (i) any Subsidiary of the Borrower may pay Dividends to
its parent corporation if such parent corporation is the Borrower or a
Wholly-Owned Subsidiary of the Borrower, and (ii) any Subsidiary of the Borrower
may pay to the Borrower any amounts required for the payment of any taxes
payable (x) by the Borrower or (y) by the Borrower and/or its Subsidiaries on a
consolidated, combined or unitary basis.
7.09 Transactions with Affiliates. The Borrower will not, and
will not permit any Subsidiaries to, enter into any transaction or series of
transactions, whether or not in the ordinary course of business, with any
holder of 5% or more of any class of equity securities of any Credit Party or
with any Affiliate of any Credit Party other than on terms and conditions
substantially as favorable to the Borrower or such Subsidiary as would be
obtainable by the Borrower or such Subsidiary at the time in a comparable
arm's-length transaction with a Person other than a holder of 5% or more of any
class of equity securities of a Credit Party or an Affiliate; provided that the
foregoing restrictions shall not apply to (i) transactions between the Borrower
and any of its Wholly-Owned Subsidiaries and between Wholly-Owned Subsidiaries
of the Borrower, (ii) the payment of fees (including any fees described in
Section 11.04 hereof) to Indosuez and its Affiliates for financial services,
such fees not to exceed the usual and customary fees of Indosuez for similar
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services, (iii) the payment of a fee to GGvA for financial advisory services in
connection with the Recapitalization not to exceed $500,000 and (iv) the
payment of fees to GGvA for financial advisory services not to exceed, in any
year, $500,000 plus reasonable expenses actually incurred by GGvA with respect
thereto.
7.10 Total Interest Coverage Ratio. The Borrower will not
permit the ratio of (i) Consolidated EBITDA of the Borrower during any Test
Period to (ii) Consolidated Interest Expense of the Borrower during the shorter
of (a) any Test Period or (b) the period consisting of the number of days
elapsed since the Closing Date, in each case ending on the last day of any
Fiscal Quarter listed below, to be less than the ratio set forth opposite such
fiscal quarter, provided that, for purposes of (b), Consolidated Interest
Expense shall be equal to the product of the amount of Consolidated Interest
Expense for such period and a fraction, the numerator of which is 365 and the
denominator of which is the number of days elapsed during such period since the
Closing Date:
Fiscal Quarter Ratio
-------------- -----
Third Fiscal Quarter of 1997 1.60 to 1.00
Last Fiscal Quarter of 1997 1.60 to 1.00
First Fiscal Quarter of 1998 1.60 to 1.00
Second Fiscal Quarter of 1998 1.60 to 1.00
Third Fiscal Quarter of 1998 1.60 to 1.00
Last Fiscal Quarter of 1998 1.60 to 1.00
First Fiscal Quarter of 1999 1.60 to 1.00
Second Fiscal Quarter of 1999 1.60 to 1.00
Third Fiscal Quarter of 1999 1.60 to 1.00
Last Fiscal Quarter of 1999 1.60 to 1.00
First Fiscal Quarter of 2000 1.60 to 1.00
Second Fiscal Quarter of 2000 1.60 to 1.00
Third Fiscal Quarter of 2000 1.60 to 1.00
Last Fiscal Quarter of 2000 1.60 to 1.00
First Fiscal Quarter of 2001 1.60 to 1.00
Second Fiscal Quarter of 2001 1.60 to 1.00
Third Fiscal Quarter of 2001 1.60 to 1.00
First Fiscal Quarter of 2002 1.60 to 1.00
Second Fiscal Quarter of 2002 1.60 to 1.00
7.11 Fixed Charge Coverage Ratio. The Borrower will not
permit the ratio of (i) Consolidated EBITDAC of the Borrower minus cash income
taxes paid by the Borrower during any Test Period to (ii) Consolidated Interest
Expense of the Borrower plus the amount of scheduled mandatory payments on
account of principal of Indebtedness of the Borrower during the shorter of (a)
any Test Period or (b) the period consisting of the number of days
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elapsed since the Closing Date, in each case ending on the last day of any
Fiscal Quarter listed below, to be less than the ratio set forth opposite such
fiscal quarter, provided that, for the purposes of (b), Consolidated Interest
Expense shall be equal to the product of the amount of Consolidated Interest
Expense for such period and a fraction, the numerator of which is 365 and the
denominator of which is the number of days elapsed during such period since the
Closing Date.
Fiscal Quarter Ratio
-------------- ------
Third Fiscal Quarter of 1997 1.10 to 1.00
Last Fiscal Quarter of 1997 1.10 to 1.00
First Fiscal Quarter of 1998 1.10 to 1.00
Second Fiscal Quarter of 1998 1.10 to 1.00
Third Fiscal Quarter of 1998 1.10 to 1.00
Last Fiscal Quarter of 1998 1.10 to 1.00
First Fiscal Quarter of 1999 1.10 to 1.00
Second Fiscal Quarter of 1999 1.10 to 1.00
Third Fiscal Quarter of 1999 1.10 to 1.00
Last Fiscal Quarter of 1999 1.10 to 1.00
First Fiscal Quarter of 2000 1.10 to 1.00
Second Fiscal Quarter of 2000 1.10 to 1.00
Third Fiscal Quarter of 2000 1.10 to 1.00
Last Fiscal Quarter of 2000 1.10 to 1.00
First Fiscal Quarter of 2001 1.10 to 1.00
Second Fiscal Quarter of 2001 1.10 to 1.00
Third Fiscal Quarter of 2001 1.10 to 1.00
First Fiscal Quarter of 2002 1.10 to 1.00
Second Fiscal Quarter of 2002 1.10 to 1.00
7.12 Leverage Ratio. The Borrower will not permit the ratio
of (i) Indebtedness of the Borrower and its Subsidiaries to (ii) the
Consolidated EBITDA of the Borrower during any Test Period ending on the last
day of any Fiscal Quarter listed below to be more than the ratio set forth
opposite such fiscal quarter:
Fiscal Quarter Ratio
-------------- -----
Third Fiscal Quarter of 1997 5.75 to 1.00
Last Fiscal Quarter of 1997 5.75 to 1.00
First Fiscal Quarter of 1998 5.75 to 1.00
Second Fiscal Quarter of 1998 5.75 to 1.00
Third Fiscal Quarter of 1998 5.75 to 1.00
Last Fiscal Quarter of 1998 5.75 to 1.00
First Fiscal Quarter of 1999 5.75 to 1.00
Second Fiscal Quarter of 1999 5.75 to 1.00
Third Fiscal Quarter of 1999 5.75 to 1.00
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Fiscal Quarter Ratio
-------------- -----
Last Fiscal Quarter of 1999 5.75 to 1.00
First Fiscal Quarter of 2000 5.75 to 1.00
Second Fiscal Quarter of 2000 5.75 to 1.00
Third Fiscal Quarter of 2000 5.75 to 1.00
Last Fiscal Quarter of 2000 5.75 to 1.00
First Fiscal Quarter of 2001 5.75 to 1.00
Second Fiscal Quarter of 2001 5.75 to 1.00
Third Fiscal Quarter of 2001 5.75 to 1.00
First Fiscal Quarter of 2002 5.75 to 1.00
7.13 Minimum Net Worth. The Borrower will maintain a
Consolidated Net Worth (to be calculated for the purposes of this Section 7.13
excluding gains, net of income taxes related thereto (but not losses, net of
income taxes related thereto) resulting from Asset Sales) of at least the
amount set forth below as of the last day of each of the fiscal years set forth
below and during the three Fiscal Quarters immediately following each such
fiscal year:
Amount in
Fiscal Year: $ Millions
----------- ----------
1997...................................................... $(33.00)
1998...................................................... (30.50)
1999...................................................... (30.00)
2000 ..................................................... (29.00)
2001...................................................... (27.00)
2002...................................................... (25.00)
7.14 Current Ratio. Borrower will not, at any time, permit
the ratio of (i) Consolidated Current Assets of the Borrower to (ii)
Consolidated Current Liabilities of the Borrower to be less than 1.50:1 as
determined on the last day of each fiscal month of the Borrower, for any two
consecutive fiscal months of the Borrower. In the event that any such ratio so
determined is less than 1.50:1 for any two consecutive fiscal months of the
Borrower, the Borrower will provide written notice of such to the Agent within
15 days of the last day of such second fiscal month.
7.15 Disposition of Assets. The Borrower will not, and will
not permit any of its Subsidiaries to, dispose of all or any part of its
interest in any asset, except that the Borrower and its Subsidiaries may sell
assets so long as (i) such sales are approved by the Required Banks and the
sales price thereof is, in the reasonable judgment of the Agent, at least equal
to
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the fair market value of such assets, (ii) subject to Section 7.21, such sales
are for at least the fair market value of such assets and the aggregate amount
of such asset sales is less than $1,000,000 for any fiscal year of the Borrower
and, in any such case, the Borrower or such Subsidiary complies with the
mandatory prepayment provisions and, in the case of Collateral, so long as the
conditions to the release of Collateral described herein and in the applicable
Security Documents are met, (iii) such sales are of inventory and raw materials
and in the ordinary course of business, or (iv) such sales are (A) of obsolete
equipment, (B) for at least the fair market value of such equipment and (C) the
proceeds of such sales are used within 90 days of such sales to (1) purchase
equipment used in substantially similar lines of business or (2) to repay
Indebtedness under this Credit Agreement pursuant to Section 3.01.
The consideration received by the Borrower and its
Subsidiaries from each sale of assets permitted above shall be received in
whole at the time of sale and at least 70% of the consideration from each sale
shall consist of Cash or Cash Equivalents or, other than with respect to
Section 7.15(iii), to the extent of its fair market value, equipment used in
substantially similar lines of business.
7.16 Contingent Obligations. The Borrower will not, and will
not permit any of its Subsidiaries to, directly or indirectly, create or become
or be liable with respect to any Contingent Obligation except:
(i) guarantees resulting from endorsement of negotiable
instruments for collection in the ordinary course of business;
(ii) Interest Rate Agreements;
(iii) obligations arising as a direct consequence of the
Refinancing;
(iv) other Contingent Obligations not to exceed $250,000
outstanding at any one time; and
(v) guarantees of the Senior Notes as provided in the
indenture relating thereto.
7.17 ERISA. The Borrower will not, and will not permit any of
its ERISA Affiliates to:
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(i) engage in any transaction in connection with which
the Borrower could be subject to either a tax imposed by Section
4975(a) of the Code or the corresponding civil penalty assessed
pursuant to Section 502(i) of ERISA, which penalties and taxes for all
such transactions could reasonably be expected to be in an aggregate
amount in excess of $250,000;
(ii) permit to exist any failure to make contributions or
any unfunded benefits liability which creates, or with the passage of
time would create, a statutory lien or requirement to provide security
under ERISA or the Code in favor of the PBGC or any Pension Plan,
Multiemployer Plan or other entity;
(iii) permit the sum of the amount of unfunded benefit
liabilities (determined in accordance with Statement of Financial
Accounting Standards No. 87) under all Title IV Plans (excluding each
Title IV Plan with an amount of unfunded benefit liabilities of zero
or less) to exceed $3,500,000 for a period in excess of twelve months;
or
(iv) fail to make any payment to any Multiemployer Plan
that it or any of its ERISA Affiliates may be required to make under
such Multiemployer Plan, any agreement relating to such Multiemployer
Plan, or any law pertaining thereto that would have a Materially
Adverse Effect.
As used in this Section 7.17, the term "accumulated funding
deficiency" has the meaning specified in Section 302 of ERISA and Section 412
of the Code, and the term "amount of unfunded benefit liabilities" has the
meaning specified in Section 4001(a)(18) of ERISA.
7.18 Merger and Consolidations. Neither the Borrower nor any
of its Subsidiaries will merge or consolidate with or into any other entity.
7.19 Sale and Lease-Backs. The Borrower will not, and will
not permit any of its Subsidiaries to, directly or indirectly, become or
thereafter remain liable as lessee or as guarantor or other surety with respect
to the lessee's obligations under any lease, whether an Operating Lease or a
Capital Lease, of any property (whether real or personal or mixed) whether now
owned or hereafter acquired, (i) which the Borrower or any of its Subsidiaries
has sold or transferred or is to sell or transfer to any other Person or (ii)
which the Borrower or any such Subsidiary intends to use for substantially the
same purpose as any
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other property which has been or is to be sold or transferred by the Borrower or
any such Subsidiary to any Person in connection with such lease, if in the case
of clause (i) or (ii) above, such sale and such lease are part of the same
transaction or a series of related transactions or such sale and such lease
occur within one year of each other or are with the same other Person.
7.20 Sale or Discount of Receivables. The Borrower will not,
nor will it permit any of its Subsidiaries to, sell, with or without recourse,
or discount (other than in connection with trade discounts necessitated by the
creditworthiness of the other party, in each case, in the ordinary course of
business consistent with past practice) or otherwise sell for less than the
face value thereof, notes or accounts receivable; provided that the Borrower or
its Subsidiaries may employ a collection agent in connection with collection of
accounts receivable not to exceed $250,000 in any fiscal year of the Borrower
which have been unpaid for at least 90 days after the original payment date.
7.21 Issuance of Subsidiary Stock. The Borrower will not, and
will not permit any of its Subsidiaries to, directly or indirectly, issue,
sell, assign, pledge or otherwise encumber or dispose of any shares of capital
stock or other securities (or warrants, rights or options to acquire capital
stock or convertible securities or other equity securities) of any such
Subsidiary.
7.22 Speculative Transactions. The Borrower will not, and
will not permit any of its Subsidiaries to, directly or indirectly, enter into
speculative use of derivatives and commodity and hedging transactions; provided
that the Borrower or its Subsidiaries may enter into agreements consistent with
the Borrower's present practice of hedging future aluminum purchases associated
with customer forward sales contracts and purchase commitments.
7.23 Subsidiaries. The Borrower shall not form, acquire or
permit any Person to become a Subsidiary of the Borrower unless (i) such
Subsidiary has executed and delivered a Guarantee with respect to all of the
Borrower's obligations hereunder and such Security Documents as are necessary
or desirable, in the sole judgment of the Agent, to grant to the Banks a
perfected first priority Lien on all of the assets of such Person which would
otherwise constitute Collateral, in each case in form and substance acceptable
to the Agent and (ii) the Borrower has executed and delivered or has caused its
Subsidiaries to execute and deliver, as appropriate, such Pledge Agreements and
other Security Documents as are necessary or desirable, in the sole judg-
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ment of the Agent, to grant to the Banks a perfected first priority Lien on all
of the Pledged Securities issued by such newly-formed Subsidiary, in each case
in form and substance acceptable to the Agent.
SECTION 8. Events of Default. Upon the occurrence and during
the continuance of any of the following specified events (each an "Event of
Default"):
8.01 Payments. The Borrower shall (i) default in the payment
when due of any principal of the Loans, (ii) default, and such default shall
continue for two or more Business Days, in the payment when due of any interest
on the Loans or under any other Credit Document or (iii) fail to pay any other
amounts owing hereunder for five days after receiving notice thereof; or
8.02 Representations, etc. Any representation, warranty or
statement made or deemed made by any Credit Party herein or in any other Credit
Document or in any statement or certificate delivered or required to be
delivered pursuant hereto or thereto shall prove to be untrue in any material
respect on the date as of which made or deemed made; or
8.03 Covenants. Any Credit Party shall (a) default in the due
performance or observance by it of any term, covenant or agreement contained in
Section 6.12, 6.14, 6.15 or Section 7 hereof or (b) default in the due
performance or observance by it of any other term, covenant or agreement
contained in this Agreement, any other Credit Documents or any Security
Document (other than those referred to in Section 8.01, 8.02 or clause (a) of
this Section 8.03) and such defaults under this clause (b) shall continue
unremedied for a period of at least fifteen days after the date of such
default; or
8.04 Default Under Other Agreements. (a) Any Credit Party
shall (i) default in any payment with respect to any Indebtedness or preferred
stock having a principal amount or liquidation value, as the case may be, in
excess of $250,000 individually or $500,000 in the aggregate for all Credit
Parties, beyond the period of grace, if any, provided in the instrument or
agreement under which such Indebtedness or preferred stock was created, or (ii)
default in the observance or performance of any agreement or condition relating
to any such Indebtedness or preferred stock or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit (with or without notice,
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lapse of time or both) the holder or holders of such Indebtedness (or a trustee
or agent on behalf of such holder or holders) or preferred stock to cause any
such Indebtedness or preferred stock to become due (whether by acceleration,
redemption, etc.) prior to its stated maturity; or (b) any such Indebtedness or
preferred stock of the Borrower or any of its Subsidiaries shall be declared to
be due and payable, required to be prepaid or redeemed other than by a regularly
scheduled required prepayment, prior to the stated maturity thereof; or
8.05 Bankruptcy, etc. Any Credit Party shall commence a
voluntary case concerning itself under Title 11 of the United States Code
entitled "Bankruptcy," as now or hereafter in effect, or any successor thereto
(the "Bankruptcy Code"); or an involuntary case is commenced against any Credit
Party or any of its Subsidiaries and the petition is not controverted within 10
days, or is not dismissed within 60 days, after commencement of the case; or a
custodian (as defined in the Bankruptcy Code) is appointed for, or takes charge
of, all or substantially all of the property of any Credit Party or any of its
Subsidiaries; or any Credit Party or any of its Subsidiaries commences any
other proceeding under any reorganization, arrangement, adjustment of debt,
relief of debtors, dissolution, insolvency or liquidation or similar law of any
jurisdiction whether now or hereafter in effect relating to any Credit Party or
any of its Subsidiaries; or there is commenced against any Credit Party or any
of its Subsidiaries any such proceeding which remains undismissed for a period
of 60 days; or any Credit Party or any of its Subsidiaries is adjudicated
insolvent or bankrupt; or any order of relief or other order approving any such
case or proceeding is entered; or any Credit Party or any of its Subsidiaries
suffers any appointment of any custodian or the like for it or any substantial
part of its property to continue undischarged or unstayed for a period of 60
days; or any Credit Party or any of its Subsidiaries makes a general assignment
for the benefit of creditors; or any corporate action is taken by any Credit
Party or any of its Subsidiaries for the purpose of effecting any of the
foregoing; or
8.06 ERISA. (i) Other than the Recapitalization, any
"reportable event" as described in Section 4043 of ERISA or the regulations
thereunder (excluding those events for which the requirement for notice has
been waived by the PBGC), or any other event or condition, which the Required
Banks determine constitutes reasonable grounds under Section 4042 of ERISA for
the termination of any Pension Plan by the PBGC or for the appointment by the
appropriate United States District Court of a trustee to administer or
liquidate any Title IV Plan shall have occurred; or
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(ii) A trustee shall be appointed by a United States District
Court to administer any Title IV Plan; or
(iii) The PBGC shall institute proceedings to terminate any
Title IV Plan or to appoint a trustee to administer any Title IV Plan; or
(iv) The Borrower or any of its ERISA Affiliates shall become
liable to the PBGC or any other party under Section 4062, 4063 or 4064 of ERISA
with respect to any Title IV Plan; or
(v) The Borrower or any of its ERISA Affiliates shall become
liable to any Multiemployer Plan under Section 4201 et seq. of ERISA;
if the sum of each of the Borrower's and its ERISA Affiliates' (which are
Subsidiaries of the Borrower) various liabilities (and including any
liabilities of the Borrower's ERISA Affiliates which are not Subsidiaries of
the Borrower which reasonably could be expected to result in a liability to the
Borrower) (such liabilities to include, without limitation, any liability to
the PBGC or to any other party under Section 4062, 4063 or 4064 of ERISA with
respect to any Title IV Plan, or to any Multiemployer Plan under Section 4201
et seq. of ERISA, and to be calculated after giving effect to the tax
consequences thereof) as a result of such events listed in subclauses (i)
through (v) above exceeds $250,000 and is unpaid for a period of 45 days; or
8.07 Security Documents. Any Security Document shall cease to
be in full force and effect in all material respects, or shall cease to give
the Collateral Agent, the Liens, rights, powers and privileges purported to be
created thereby, in favor of the Collateral Agent, superior to and prior to the
rights of all third Persons and subject to no Liens other than Prior Liens and
Liens expressly permitted by the applicable Security Document, or any judgment
creditor having a Lien against any item of Collateral shall commence legal
action to foreclose such Lien or otherwise exercise its remedies against any
item of Collateral; or
8.08 Judgments. One or more judgments or decrees shall be
entered against any Credit Party or any of the Borrower's Subsidiaries
involving a liability of $250,000 or more in the case of any one such judgment
or decree and $500,000 or more in the aggregate for all such judgments and
decrees for all Credit Parties and their Subsidiaries (in either case in excess
of the amount covered by insurance as to which the insurance company has
acknowledged coverage) and any such judgments or decrees
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shall not have been vacated, discharged, stayed or bonded pending appeal within
60 days from the entry thereof; or
8.09 Ownership. (i) The Permitted Holders cease to own at
least 51% of the total voting power or the Voting Stock of the Borrower, par
value $.01 per share and any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act), is or becomes the "beneficial
owner" (as such term is used in Rules 13d-3 and 13d-5 under the Exchange Act,
except that a person shall be deemed to have beneficial ownership of all shares
that such person has a right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of 30%
or more of the total voting power or the Voting Stock of the Borrower; (ii)
individuals who constituted the Board of Directors of the Borrower on the
Closing Date (together with any new directors whose proposal for election by
the shareholders of the Borrower was approved by a vote of 51% of the directors
of the Borrower then still in office who either were directors on the Closing
Date or whose election or nomination for election was previously so approved)
shall cease for any reason to constitute a majority of the members of the Board
of Directors of the Borrower still in office; (iii) any "person" or "group" (as
defined in clause (i) above) shall have the right to designate or ability to
appoint or nominate a greater number of the members of the Board of Directors
of the Borrower than the Permitted Holder shall have; (iv) the Borrower
conveys, transfers or leases all or substantially all of its assets to any
Person; (v) the Permitted Holders cease to own at least 51% of the total voting
power or the Voting Stock of the Borrower, par value $.01 per share; or (vi)
the approval by stockholders of the Borrower of any plan or proposal for the
liquidation, dissolution or winding up of the Borrower; provided that the
distribution of Voting Stock by a Permitted Holder to the partners of such
Permitted Holder on a pro rata (in relation to each such partner's interest in
the partnership) basis in accordance with the terms of the partnership
agreement of such Permitted Holder as in effect on the date hereof shall not be
deemed to be a violation of clause (v) of this Section 8.09;
Then, and in any such event, and at any time thereafter, if
any Event of Default shall then be continuing, the Agent shall, upon the
written request of the Required Banks, by written notice to the Borrower, take
any or all of the following actions, without prejudice to the rights of the
Agent or any Bank to enforce its claims against the Borrower, except as
otherwise specifically provided for in this Agreement (provided that an Event
of Default specified in Section 8.05 shall occur, with respect to any Credit
Party, automatically without the giving of any no-
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xxxx): (i) declare the Total Revolving Loan Commitments terminated, whereupon
the Commitment of each Bank shall forthwith terminate immediately and any
accrued and unpaid Commitment Commission shall forthwith become due and payable
without any other notice of any kind; (ii) declare the principal of and accrued
interest in respect of all Loans and all Obligations owing hereunder and
thereunder to be, whereupon the same shall become, forthwith due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by each Credit Party; and/or (iii) enforce, as Collateral
Agent (or direct the Collateral Agent to enforce), any or all of the remedies
created pursuant to the Security Documents. In addition, upon demand by the
Agent or the Required Banks after the occurrence and during the continuance of
any Default or Event of Default, the Borrower shall deposit with the Agent for
the ratable benefit of the Banks with respect to each Letter of Credit then
outstanding, promptly upon such demand, Cash or Cash Equivalents in an amount
equal (taken together with any Cash or Cash Equivalents previously provided by
Borrower for such purpose, if any) to the greatest amount for which each such
Letter of Credit may be drawn. Such deposit shall be held by the Agent for the
ratable benefit of the Banks as security for, and to provide for the payment of,
outstanding Letters of Credit. If an Event of Default is cured or waived in
accordance with the terms of the Agreement, it ceases (and, if waived, pursuant
to the terms, and to the extent, of such waiver).
SECTION 9. Definitions. As used herein, the following terms
shall have the meanings herein specified unless the context otherwise requires.
Defined terms in this Agreement shall include in the singular number the plural
and in the plural the singular:
"Account" means each of the Borrower's "accounts" (as that
term is defined in Section 9-106 of the Uniform Commercial Code as in effect in
the State of New York), whether or not such Account has been earned by
performance and whether now existing or existing in the future, including,
without limitation, all (i) accounts receivable, including, without limitation,
all accounts created by or arising from all of the Borrower's sales of goods or
rendition of services made under any of the Borrower's trademarks or trade
names; (ii) unpaid seller's rights (including rescission, replevin, reclamation
and stopping in transit) relating to the foregoing or arising therefrom; (iii)
rights to any goods represented by any of the foregoing, including returned or
repossessed goods; (iv) reserves and credit balances held by the Borrower with
respect to any such accounts receivable or any ac-
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count debtor; (v) guarantees or collateral for any of the foregoing; and (vi)
insurance policies or rights relating to any of the foregoing.
"Additional Collateral" shall have the meaning provided in
Section 6.14.
"Adjusted LIBOR Rate" shall mean, with respect to any LIBOR
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to the product of (i) the sum of
(a) the LIBOR in effect for such Interest Period and (b) the applicable
Interest Margin and (ii) Statutory Reserves, if any.
"Affiliate" shall mean, with respect to any Person, any other
Person directly or indirectly controlling (including but not limited to all
directors and executive officers of such Person), controlled by, or under
direct or indirect common control with such Person; provided that neither
Indosuez nor any Affiliate of Indosuez shall be deemed to be an Affiliate of
any Credit Party. A Person shall be deemed to control a corporation for the
purposes of this definition if such Person possesses, directly or indirectly,
the power (i) to vote 10% or more of the securities having ordinary voting
power for the election of directors of such corporation or (ii) to direct or
cause the direction of the management and policies of such corporation, whether
through the ownership of voting securities, by contract or otherwise.
"Agent" shall mean Indosuez, or any successor thereto
appointed in accordance herewith, in its capacity as agent and collateral agent
for the Banks.
"Agent's Office" means the office of the Agent located at
0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other office in
New York as the Agent may hereafter designate in writing as such to the other
parties hereto.
"Agreement" shall mean this Credit Agreement, as the same may
after its execution be amended, supplemented or otherwise modified from time to
time in accordance with the terms hereof.
"Asset Sale" shall mean the sale, transfer or other
disposition, to the extent consummated after the Closing Date, (x) by the
Borrower of any of the Securities of its Subsidiaries to any Person or (y) by
the Borrower or any Subsidiary of the Borrower to any Person other than the
Borrower or any Wholly-Owned Subsidiary of the Borrower of any asset of the
Bor-
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rower or such Subsidiary (other than transactions included in the definition of
Net Financing Proceeds and sales, transfers or other dispositions of inventory
in the ordinary course of business and/or of obsolete equipment effected in
compliance with Section 7.15(iv)).
"Authorized Officer" shall mean any senior officer of the
Borrower, designated as such in writing to the Agent by the Borrower, to the
extent acceptable to the Agent.
"Bank" shall have the meaning provided in the first paragraph
of this Agreement and in Section 11.04.
"Bankruptcy Code" shall have the meaning provided in Section
8.05.
"Base Rate" shall mean the higher of (x) 1/2% per annum in
excess of the Federal Funds Rate and (y) the rate which the Agent announces
from time to time as its prime lending rate, as in effect from time to time.
The rate the Agent announces as its prime lending rate is a reference rate and
does not necessarily represent the lowest or best rate actually charged to any
customer. The Agent may make commercial loans or other loans at rates of
interest at, above or below the rate it announces as its prime lending rate.
"Base Rate Loan" shall mean each Loan bearing interest at the
rate provided in Section 1.08(a).
"Borrower" shall have the meaning set forth in the
introductory paragraph of this Agreement.
"Borrowing" shall mean the incurrence pursuant to a Notice of
Borrowing and to the Loan Facility of one Type of Loan by the Borrower from all
of the Banks on a pro rata basis on a given date (or resulting from conversions
on a given date), having in the case of LIBOR Loans the same Interest Periods.
"Borrowing Base" means an amount equal to the sum of (i) 80%
of the Eligible Accounts Receivable and (ii) 50% of the Eligible Inventory.
"Borrowing Base Certificate" shall have the meaning provided
in Section 6.01(m).
"Business Day" shall mean (i) for all purposes other than as
covered by clause (ii) below, any day excluding Saturday, Sunday and any day
which shall be in the City of New York a legal
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holiday or a day on which banking institutions are authorized by law or other
governmental actions to close and (ii) with respect to all notices and
determinations in connection with, and payments of principal and interest on,
LIBOR Loans, any day which is a Business Day described in clause (i) and which
is also a day for trading by and between banks in U.S. dollar deposits in the
interbank Eurodollar market.
"Capital Lease" of any Person shall mean any lease of any
property (whether real, personal or mixed) by that Person as lessee which, in
conformity with GAAP, is, or is required to be, accounted for as a capital
lease on the balance sheet of that Person, together with any renewals of such
leases (or entry into new leases) on substantially similar terms.
"Capitalized Lease Obligations" of any Person shall mean all
obligations under Capital Leases of such Person or any of its Subsidiaries in
each case taken at the amount thereof accounted for as liabilities in
accordance with GAAP.
"Cash" means money, currency or a credit balance in a Deposit
Account.
"Cash Equivalents" shall mean (i) securities issued or
directly and fully guaranteed or insured by the United States of America or any
agency or instrumentality thereof (provided that the full faith and credit of
the United States of America is pledged in support thereof) having maturities
of not more than three years from the date of acquisition, (ii) marketable
direct obligations issued by any State of the United States of America or any
local government or other political subdivision thereof rated (at the time of
acquisition of such security) at least AA by Standard & Poor's Corporation
("S&P") or the equivalent thereof by Xxxxx'x Investors Service, Inc.
("Moody's") having maturities of not more than one year from the date of
acquisition, (iii) U.S. dollar denominated time deposits, certificates of
deposit and bankers' acceptances of (x) any Bank, (y) any domestic commercial
bank of recognized standing having capital and surplus in excess of
$250,000,000 or (z) any bank whose short-term commercial paper rating (at the
time of acquisition of such security) by S&P is at least A-1 or the equivalent
thereof or by Xxxxx'x is at least P-1 or the equivalent thereof (any such bank,
an "Approved Bank"), in each case with maturities of not more than six months
from the date of acquisition, (iv) commercial paper and variable or fixed rate
notes issued by any Bank or Approved Bank or by the parent company of any Bank
or Approved Bank and commercial paper and variable rate notes issued by, or
guaranteed by, any industrial or financial company with a short-term
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commercial paper rating (at the time of acquisition of such security) of at
least A-1 or the equivalent thereof by S&P or at least P-1 or the equivalent
thereof by Moody's, or guaranteed by any industrial company with a long-term
unsecured debt rating (at the time of acquisition of such security) of at least
AA or the equivalent thereof by S&P or the equivalent thereof by Moody's and in
each case maturing within one year after the date of acquisition and (v)
repurchase agreements with any Bank or any primary dealer maturing within one
year from the date of acquisition that are fully collateralized by investment
instruments that would otherwise be Cash Equivalents; provided that the terms of
such repurchase agreements comply with the guidelines set forth in the Federal
Financial Institutions Examination Council Supervisory Policy -- Repurchase
Agreements of Depository Institutions With Securities Dealers and Others, as
adopted by the Comptroller of the Currency on October 31, 1985.
"Closing Date" shall mean May 28, 1997.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"Collateral" shall mean all of the Pledged Collateral and
Pledged Securities.
"Collateral Agent" means Indosuez in its capacity as
collateral agent for the Banks.
"Collective Bargaining Agreement" shall mean each Collective
Bargaining Agreement set forth on Schedule 5.19.
"Commercial Letter of Credit" means any letter of credit or
similar instrument issued for the account of the Borrower, for the purpose of
providing the primary payment mechanism in connection with the purchase of any
materials, goods or services by the Borrower or any of its Subsidiaries in the
ordinary course of business of the Borrower or such Subsidiaries.
"Commitment" shall mean, with respect to each Bank, such
Bank's Revolving Loan Commitment.
"Commitment Commission" shall have the meaning provided in
Section 2.03.
"Compliance Certificate" shall mean a certificate issued
pursuant to Section 6.01(e) signed by a chief financial officer, controller,
chief accounting officer or other Authorized Officer of the Borrower.
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"Consolidated Amortization Expense" for any Person shall
mean, for any period, the consolidated amortization expense of such Person for
such period, determined on a consolidated basis for such Person and its
Subsidiaries in conformity with GAAP.
"Consolidated Capital Expenditures" of any Person shall mean,
for any period, the aggregate gross increase during that period, in the
property, plant or equipment reflected in the consolidated balance sheet of
such Person and its consolidated Subsidiaries, in conformity with GAAP, but
excluding expenditures made in connection with the replacement, substitution or
restoration of assets (i) to the extent financed from insurance proceeds paid
on account of the loss of or damage to the assets being replaced or restored,
(ii) with awards of compensation arising from the taking by eminent domain or
condemnation of the assets being replaced or (iii) with regard to equipment
that is purchased simultaneously with the trade-in of existing equipment, fixed
assets or improvements, the credit granted by the seller of such equipment for
the trade-in of such equipment, fixed assets or improvements; provided that
Consolidated Capital Expenditures shall in any event include the purchase price
paid in connection with the acquisition of any other Person (including through
the purchase of all of the capital stock or other ownership interests of such
Person or through merger or consolidation) to the extent allocable to property,
plant and equipment.
"Consolidated Current Assets" shall mean, with respect to any
Person as at any date of determination, the total assets of such Person and its
consolidated Subsidiaries which may properly be classified as current assets on
a consolidated balance sheet of such Person and its Subsidiaries in accordance
with GAAP; provided that the determination of the value of inventory shall be
made without giving effect to reserves relating to the Borrower's LIFO (as
defined under GAAP) accounting policy made solely as a result of fluctuations
in the price of aluminum and in accordance with GAAP.
"Consolidated Current Liabilities" shall mean, with respect
to any Person as at any date of determination, the total liabilities of such
Person and its consolidated Subsidiaries which may properly be classified as
current liabilities (other than the current portion of any Loans and other than
interest accrued on the Subordinated Notes) on a consolidated balance sheet of
such Person and its consolidated Subsidiaries in accordance with GAAP.
"Consolidated Depreciation Expense" for any Person shall
mean, for any period, the consolidated depreciation expense
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of such Person for such period, determined on a consolidated basis for such
Person and its consolidated Subsidiaries in conformity with GAAP.
"Consolidated EBITDA" for any Person shall mean, for any
period, the amount equal to (A) the sum of the amounts for such period of (i)
Consolidated Net Income, (ii) Consolidated Tax Expense, (iii) Consolidated
Interest Expense, (iv) Consolidated Amortization Expense and (v) Consolidated
Depreciation Expense (with respect to clauses (ii) through (iv), to the extent
such amounts were deducted in computing Consolidated Net Income) less (B) the
sum of the amounts for such period of (i) interest income (net of income taxes)
and (ii) gains on sales of assets (net of income taxes) to the extent included
in Consolidated Net Income, whether or not extraordinary (excluding sales in
the ordinary course of business) and other extraordinary gains, all as
determined on a consolidated basis for such Person and its consolidated
Subsidiaries in accordance with GAAP.
"Consolidated EBITDAC" for any Person shall mean, for any
period, Consolidated EBITDA minus Consolidated Capital Expenditures.
"Consolidated Interest Expense" for any Person shall mean,
for any period, the sum of (x) total interest expense (including that
attributable to Capital Leases in accordance with GAAP) and (y) total cash
dividends paid on any preferred stock, in each case of such Person and its
Subsidiaries on a consolidated basis with respect to all outstanding
Indebtedness and preferred stock of such Person and its Subsidiaries,
including, without limitation, all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers' acceptance
financing, but excluding, however, any amortization of deferred financing
costs, all as determined on a consolidated basis for such Person and its
consolidated Subsidiaries in accordance with GAAP. For purposes of clause (y)
above, dividend requirements shall be increased to an amount representing the
pretax earnings that would be required to cover such dividend requirements;
accordingly, the increased amount shall be equal to such dividend requirements
multiplied by a fraction, the numerator of which is such dividend requirement
and the denominator of which is 1 minus the applicable actual combined Federal,
state, local and foreign income tax rate of such Person and its subsidiaries
(expressed as a decimal), on a consolidated basis, for the fiscal year
immediately preceding the date of the transaction giving rise to the need to
calculate Consolidated Interest Expense.
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"Consolidated Net Income" for any Person shall mean, for any
period, the net income (or loss) of such Person and its Subsidiaries on a
consolidated basis for such period taken as a single accounting period
determined on a consolidated basis for such Person and its consolidated
Subsidiaries in conformity with GAAP; provided that there shall be excluded (i)
the income (or loss) of any other Person (other than consolidated Subsidiaries
of such Person) in which any third Person (other than such Person or any of its
consolidated Subsidiaries) has a joint interest, except to the extent of the
amount of dividends or other distributions actually paid to such Person or any
of its Subsidiaries by such other Person during such period, (ii) the income
(or loss) of any other Person accrued prior to the date it becomes a
consolidated Subsidiary of such Person or is merged into or consolidated with
such Person or any of its consolidated Subsidiaries or such other Person's
assets are acquired by such Person or any of its consolidated Subsidiaries,
(iii) the income of any consolidated Subsidiary of such Person to the extent
that the declaration or payment of dividends or similar distributions by that
consolidated Subsidiary of that income is not at the time permitted by
operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to that
consolidated Subsidiary, and (iv) the effect of any provision (net of income
taxes) relating to the Borrower's LIFO (as defined under GAAP) accounting
policy made solely as a result of fluctuations in the price of aluminum and in
accordance with GAAP.
"Consolidated Net Worth" of any Person shall mean, at any
time for the determination thereof, the sum of the capital stock and additional
paid-in capital plus retained earnings (or minus accumulated deficit) of such
Person and its consolidated Subsidiaries, all as determined on a consolidated
basis for such Person and its consolidated Subsidiaries in conformity with
GAAP; provided that such calculation shall be made without giving effect to
provisions (net of income taxes) relating to the Borrower's LIFO (as defined
under GAAP) accounting policy made solely as a result of fluctuations in the
price of aluminum and in accordance with GAAP.
"Consolidated Tax Expense" for any Person shall mean, for any
period, the consolidated tax expense of such Person for such period, determined
on a consolidated basis for such Person and its consolidated Subsidiaries in
conformity with GAAP; provided that such calculation shall be made without
giving effect to provisions (net of income taxes) relating to the Borrower's
LIFO (as defined under GAAP) accounting policy made solely as a
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result of fluctuations in the price of aluminum and in accordance with GAAP.
"Contingent Obligations" shall mean, as to any Person,
without duplication, any obligation of such Person guaranteeing or intended to
guarantee any Indebtedness, leases, dividends or other obligations ("primary
obligations") of any other Person (the "primary obligor") in any manner,
whether directly or indirectly, including, without limitation, any obligation
of such Person, whether or not contingent, (a) to purchase any such primary
obligation or any property constituting direct or indirect security therefor,
(b) to advance or supply funds (i) fo the purchase or payment of any such
primary obligation or (ii) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (c) to purchase property, securities or services primarily for
the purpose of assuring the owner of any such primary obligation of the ability
of the primary obligor to make payment of such primary obligation or (d)
otherwise to assure or hold harmless the owner of such primary obligation
against loss in respect thereof; provided, however, that the term Contingent
Obligation shall not include endorsements of instruments for deposit or
collection in the ordinary course of business and amounts that are included in
Section 7.16. The amount of any Contingent Obligation shall be deemed to be an
amount equal to the maximum amount that such Person may be obligated to expend
pursuant to the terms of such Contingent Obligation or, if such Contingent
Obligation is not so limited, the stated or determinable amount of the primary
obligation in respect of which such Contingent Obligation is made or, if not
stated or determinable, the maximum reasonably anticipated liability in respect
thereof (assuming such Person is required to perform thereunder) as determined
by such Person in good faith.
"Credit Documents" shall mean (i) this Agreement, (ii) each
Note and (iii) each Security Document.
"Credit Party" shall mean the Borrower and each Person (other
than the Banks and their respective Affiliates) party to any Credit Document.
"Default" shall mean any event, act or condition which with
notice or lapse of time, or both, would constitute an Event of Default.
"Deposit Account" means a demand, time, savings, passbook or
like account with a bank, savings and loan association,
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credit union or like organization, other than an account evidenced by a
negotiable certificate of deposit.
"Distributions" shall mean, within six months of the Closing
Date, (i) a special cash dividend (the "Special Dividend") to the holders of
the Borrower's common stock of $62.00 per share (approximately $56 million
based on the 903,063 shares outstanding as of Xxxxx 00, 0000), (xx) the
settlement of existing employee stock options through a combination of (x) the
payment of the difference between the amount of the Special Dividend per share
and the exercise price per share and (y) the issuance of shares of common stock
of the Borrower (including the payment of a bonus to option holders receiving
shares in settlement of their options designed to enable them to satisfy a
portion of the income tax incurred by virtue of their receipt of shares of
common stock), and (iii) the repurchase of all of the shares of common stock
held by certain stockholders to the extent, if any, of the remaining proceeds
from the issuance of the Senior Notes; provided that the amount of such
Distribution shall not exceed the net amount received by the Borrower from the
issuance and sale of the Senior Notes less any amounts used to repay
Indebtedness plus up to $2.0 million of Loans made within 30 days of the
Closing Date.
"Dividends" shall have the meaning provided in Section 7.08.
"Documents" shall mean each Credit Document and Refinancing
Document.
"Dollars" means United States Dollars.
"Eligible Accounts Receivable" shall mean, as at any
applicable date of determination, the aggregate face amount of the Borrower's
Accounts included in clause (i) of the definition of Account hereunder
(excluding any Accounts set forth in clause (ii) through (vi) of such
definition), without duplication, in each case less (without duplication) the
aggregate amount of all reserves, limits and deductions with respect to such
Accounts set forth below or as otherwise provided in this Agreement and less
the aggregate amount of all returns, discounts, claims, credits, charges
(including warehouseman's charges) and allowances of any nature with respect to
such Accounts (whether issued, owing, granted or outstanding). Unless otherwise
approved in writing by the Agent in its sole discretion (or, if the aggregate
amount of approvals exceeds $500,000 at any one time, the approval of the
Required Banks), no individual Account shall be deemed to be an Eligible
Account Receivable if:
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(a) the Borrower does not have legal and valid title to the
Account; or
(b) the Account is not the valid, binding and legally
enforceable obligation of the account debtor subject, as to
enforceability, only to (i) applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws at the time in effect
affecting the enforceability of creditors' rights generally and (ii)
judicial discretion in connection with the remedy of specific
performance and other equitable remedies; or
(c) the Account arises out of a sale made by the Borrower to
an Affiliate of the Borrower; or
(d) (i) the Account is unpaid more than 30 days after the
original payment date; provided, however, that the aggregate amount of
all invoices providing for payment more than 60 days from the date of
the invoice that may constitute Eligible Accounts Receivable shall not
exceed $250,000 at any one time; or
(e) the Account, when aggregated with all other Accounts of
the same account debtor (or any Affiliate thereof), exceeds 20 percent
in face value of all Accounts of the Borrower then outstanding, to the
extent of such excess; or
(f) (i) the account debtor is also a creditor of the
Borrower, to the extent of the amount owed by the Borrower to the
account debtor, (ii) the Account is subject to any claim on the part
of the account debtor disputing liability under such Account in whole
or in part, to the extent of the amount of such dispute or (iii) the
Account otherwise is or is reasonably likely to become subject to any
right of setoff or any counterclaim, claim or defense by the account
debtor, to the extent of the amount of such setoff or counterclaim,
claim or defense; or
(g) the account debtor has commenced a voluntary case under
the federal bankruptcy laws, as now constituted or hereafter amended,
or made an assignment for the benefit of creditors or if a decree or
order for relief has been entered by a court having jurisdiction in
the premises in respect of the account debtor in an involuntary case
under the federal bankruptcy laws, as now constituted or hereafter
amended, or if any other petition or other application for relief
under the federal bankruptcy laws has been filed by
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or against the account debtor, or if the account debtor has failed,
suspended business, ceased to be solvent, or consented to or suffered a
receiver, trustee, liquidator or custodian to be appointed for it or
for all or a significant portion of its assets or affairs; or
(h) the Agent does not have a valid and perfected first
priority security interest in such Account (subject only to a tax lien
being contested in good faith and by appropriate proceedings and
permitted by Section 7.03(a)); or
(i) the sale to the account debtor is on a consignment,
xxxx-and-hold, sale on approval, guaranteed sale or sale-and-return
basis or pursuant to any written agreement providing for repurchase or
return; or
(j) it is from the same account debtor (or any Affiliate
thereof) and fifty percent (50%) or more, in face amount, of other
Accounts from either such account debtor or any Affiliate thereof are
due or unpaid for more than 60 days after the original invoice date;
or
(k) fifty percent (50%) or more, in face amount, of other
Accounts from the same account debtor are not deemed Eligible Accounts
Receivable hereunder; or
(l) with respect to the Account, the account debtor is a
foreign government or any agency, department or instrumentality
thereof; or
(m) the Account is an Account a security interest in which
would be subject to the Federal Assignment of Claims Act of 1940, as
amended (31 U.S.C. ss. 3727 et seq.), unless the Borrower has assigned
the Account to the Agent in compliance with the provisions of such
Act; or
(n) the sale is to an account debtor outside the continental
United States or incorporated in or conducting substantially all of
its business in any jurisdiction located outside the United States,
unless the sale is (i) on letter of credit, guaranty or acceptance
terms, in each case acceptable to the Agent, or (ii) otherwise
approved by and acceptable to the Agent; or
(o) the Agent determines in good faith in accordance with its
internal credit policies that (i) collection of the Account is
insecure or (ii) the Account may not be paid by reason of the account
debtor's financial inability to pay;
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provided, however, that any Account referred to in this clause (o)
shall not become ineligible until the Agent shall have given the
Borrower three Business Days' advance notice of such determination; or
(p) the goods giving rise to such Account have not been
shipped and delivered to and accepted by the account debtor or the
services giving rise to such Account have not been performed by the
Borrower and accepted by the account debtor or the Account otherwise
does not represent a final sale; or
(q) the Account does not comply in all material respects with
all applicable legal requirements, including, where applicable, the
Federal Consumer Credit Protection Act, the Federal Truth in Lending
Act and Regulation Z of the Board of Governors of the Federal Reserve
System, in each case as amended.
"Eligible Assignee" means a commercial bank or financial
institution having total assets in excess of $250,000,000.
"Eligible Inventory" shall mean (A) the gross amount of the
Borrower's Inventory, valued at the lower of cost (on a FIFO basis) or market,
which (i) is owned solely by the Borrower and with respect to which the
Borrower has good, valid and marketable title; (ii) is stored on property that
is either (a) owned or leased by the Borrower or (b) owned or leased by a
warehouseman that has contracted with the Borrower to store Inventory on such
warehouseman's property (provided that, with respect to Inventory stored on
property leased by the Borrower, the Borrower shall have delivered in favor of
the Agent an acknowledgment agreement executed by the lessor of such property,
and, with respect to the Inventory stored on property owned or leased by a
warehouseman, the Borrower shall have delivered to the Agent acknowledgment
agreements executed by such warehouseman); (iii) is subject to a valid,
enforceable and first priority Lien in favor of the Agent subject to a tax lien
being contested in good faith and by appropriate proceedings and permitted by
Section 7.03(a), except with respect to Eligible Inventory stored at sites
described in clause (ii)(b) above, for Liens for normal and customary
warehouseman charges; (iv) is located in the United States; and (v) is not, in
the reasonable judgment of the Agent, obsolete or slow moving, and which
otherwise conforms to the warranties and standards for eligibility contained
herein; (B) less any goods returned or rejected by the Borrower's customers and
goods in transit to third parties (other than to the Borrower's agents or
warehousemen that comply with clause (A)(ii)(b) above); and (C) less any
reserves
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required by the Agent for special order goods and market value declines. In
addition to the foregoing, Eligible Inventory shall include such items of the
Borrower's Inventory as the Borrower shall request and that the Agent approves
in advance, in writing and in its sole discretion (or if the aggregate amount of
approvals exceeds $500,000 at any one time, the approval of the Required Banks);
provided that this definition of Eligible Inventory shall under no circumstances
include work in process and finished goods which exceed in the aggregate 50% of
the book value of all of the Inventory of the Borrower and its Subsidiaries.
"Environmental Laws" means the common law and all federal,
state, local and foreign laws or regulations, codes, orders, decrees, judgments
or injunctions issued, promulgated, approved or entered thereunder, now or
hereafter in effect, relating to pollution or protection of public or employee
health and safety or the environment, including, without limitation, laws
relating to (i) emissions, discharges, releases or threatened releases of
Hazardous Materials into the environment (including, without limitation,
ambient air, surface water, ground water, land surface or subsurface strata),
(ii) the manufacture, processing, distribution, use, generation, treatment,
storage, disposal, transport or handling of Hazardous Materials, and (iii)
underground and above ground storage tanks, and related piping, and emissions,
discharges, releases or threatened releases therefrom.
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended from time to time. Section references to ERISA are to
ERISA as in effect at the date of this Agreement and any subsequent provisions
of ERISA, amendatory thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean any entity, whether or not
incorporated, which is under common control or would be considered a single
employer with the Borrower within the meaning of Section 414(b), (c) or (m) of
the Code and regulations promulgated under those sections or within the meaning
of section 4001(b) of ERISA and regulations promulgated under that section.
"Event of Default" shall have the meaning provided in Section
8.
"Excess" shall have the meaning provided in Section
3.02(A)(b).
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"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Existing Indebtedness" shall have the meaning provided in
Section 5.20.
"Federal Funds Rate" means on any one day the weighted
average of the rate on overnight Federal funds transactions with members of the
Federal Reserve System only arranged by Federal funds brokers as published as
of such day by the Federal Reserve Bank of New York, or if not so published,
the rate then used by first-class banks in extending overnight loans to other
first-class banks.
"Final Revolving Loan Maturity Date" shall mean the last
Business day of June, 2002.
"Financial Statements" shall have the meaning provided in
Section 4.01(I).
"Financing Proceeds" means the cash (other than Net Cash
Proceeds) received by any Credit Party, directly or indirectly, from any
financing transaction of whatever kind or nature, including without limitation
from any incurrence of Indebtedness, any mortgage or pledge of an asset or
interest therein (including a transaction which is the substantial equivalent
of a mortgage or pledge), from the sale of tax benefits, from a lease to a
third party and a pledge of the lease payments due thereunder to secure
Indebtedness, from a joint venture arrangement, from an exchange of assets and
a sale of the assets received in such exchange, or any other similar
arrangement or technique whereby a Credit Party obtains Cash in respect of an
asset, net of direct costs associated therewith. Financing Proceeds shall not
include any amounts with respect to the refinancing of the Total Revolving Loan
Commitment.
"FIRREA" means the Financial Institutions Reform, Recovery &
Enforcement Act of 1989, as amended from time to time, and any successor
statute.
"Fiscal Quarter" shall mean, with respect to any Person, each
of such Person's fiscal quarters, and with respect to the Borrower and each of
its Subsidiaries, the fiscal quarters required pursuant to Section 6.09.
"GAAP" shall mean generally accepted accounting principles in
the United States of America as in effect on the Closing Date, it being
understood and agreed that determinations in ac-
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cordance with GAAP for purposes of Section 7, including defined terms as used
therein, are subject (to the extent provided therein) to Section 11.07(a).
"General Security Agreement" shall mean the Amended General
Security Agreement substantially in the form of Exhibit C hereto, except for
such changes therein as shall have been approved by the Agent and the Required
Banks, as the same may after its execution be amended, supplemented or
otherwise modified from time to time in accordance with the terms thereof and
hereof.
"General Security Agreements" shall mean and include, once
executed and delivered, the General Security Agreement and any other general
security agreements delivered pursuant to Section 6.14 or 6.15.
"GGvA" shall have the meaning provided in Section 4.01(H).
"Government Acts" shall have the meaning provided in Section
1.13(I).
"Governmental Authority" means any federal, state, local,
foreign or other governmental or administrative (including self-regulatory)
body, instrumentality, department or agency or any court, tribunal,
administrative hearing body, arbitration panel, commission, or other similar
dispute-resolving panel or body including, without limitation, those governing
the regulation and protection of the environment, whether now or hereafter in
existence, or any officer or official thereof.
"Guarantee" shall mean a guarantee of all of the Borrower's
Obligations hereunder in favor of the Banks in form and substance satisfactory
to the Agent and the Required Banks.
"Hazardous Materials" means any pollutant, contaminant,
chemical or industrial, toxic or hazardous substance, constituent or waste,
including, without limitation, petroleum including crude oil or any fraction
thereof, or any petroleum product, subject to regulation under any
Environmental Law.
"Indebtedness" of any Person shall mean, without duplication,
(i) all indebtedness of such Person for borrowed money, (ii) the deferred
purchase price of assets or services which in accordance with GAAP would be
shown on the liability side of the balance sheet of such Person, (iii) the face
amount of all letters of credit issued for the account of such Person and,
without duplication, all drafts drawn thereunder, (iv) all Indebtedness
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of a second Person secured by any Lien on any property owned by such first
Person, whether or not such Indebtedness has been assumed by such first Person,
(v) all Capitalized Lease Obligations of such Person, (vi) all obligations of
such Person to pay a specified purchase price for goods or services whether or
not delivered or accepted, i.e., take-or-pay and similar obligations, (vii) all
obligations of such Person under Interest Rate Agreements and (viii) all
Contingent Obligations of such Person; provided that Indebtedness shall not
include trade payables, accrued expenses, accrued dividends and accrued income
taxes, in each case arising in the ordinary course of business.
"Indenture" shall mean the indenture relating to the Senior
Notes, dated as of May 28, 1997 between the Borrower and Fleet National Bank,
as trustee.
"Indosuez" shall mean Credit Agricole Indosuez.
"Interest Margin" shall mean, in respect of (i) Base Rate
Loans, 1.00%; and (ii) LIBOR Loans, 2.25%.
"Interest Period" shall mean, with respect to any LIBOR Loan,
the interest period applicable thereto, as determined pursuant to Section 1.09
hereof.
"Interest Rate Agreement" shall mean any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement,
interest rate futures contract, interest rate option contract or other similar
agreement or arrangement to which the Borrower is a party, designed to protect
the Borrower or any of its Subsidiaries against fluctuations in interest rates.
"Interest Rate Determination Date" means, with respect to a
LIBOR Loan, the date which is two Business Days prior to the commencement of
the Interest Period for such Borrowing.
"Inventory" shall mean all of the inventory of the Borrower
including without limitation: (i) all raw materials, work in process, parts,
components, assemblies, supplies and materials used or consumed in the
Borrower's business; (ii) all goods, wares and merchandise, finished or
unfinished, held for sale or lease or leased or furnished or to be furnished
under contracts of service; and (iii) all goods returned or repossessed by the
Borrower.
"Issuing Bank" shall mean the Bank that agrees to issue a
Letter of Credit, determined as provided in Section 1.13(C).
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"Lease" shall mean any lease, sublease, franchise agreement,
license, occupancy or concession agreement.
"Letter of Credit" or "Letters of Credit" means (i) Standby
Letter or Letters of Credit and (ii) Commercial Letter or Letters of Credit, in
each case, issued or to be issued by Issuing Banks for the account of the
Borrower pursuant to Section 1.13.
"Letter of Credit Participation" has the meaning assigned to
that term in Section 1.13(A).
"Letters of Credit Usage" means, as at any date of
determination, the sum of (i) the maximum aggregate amount that is or at any
time thereafter may become available under all Letters of Credit then
outstanding plus (ii) the aggregate amount of all drawings under Letters of
Credit honored by all Issuing Banks and not theretofore reimbursed by the
Borrower; provided, however, the Letters of Credit Usage of an Issuing Bank
shall be deemed to be only such portion of the Letters of Credit Usage of such
Issuing Bank which Banks have not bought by participation pursuant to Section
1.13(A).
"LIBOR" means, with respect to any LIBOR Loan for any
Interest Period, an interest rate per annum (rounded upwards, if necessary, to
the next 1/16 of 1%) equal to the rate at which U.S. Dollar deposits
approximately equal in principal amount to the applicable Loan of the Agent, in
its capacity as Lender, included in such LIBOR Loan and for a maturity
comparable to such Interest Period are offered to the principal London office
of the Agent in the London interbank market at approximately 11:00 A.M., London
time, on the Interest Rate Determination Date for such LIBOR Loan.
"LIBOR Loan" means any Loan bearing interest at a rate
determined by reference to Adjusted LIBOR in accordance with the provisions of
Section 1.08(b) hereof.
"Lien" shall mean any mortgage, pledge, security interest,
encumbrance, lien, claim, hypothecation, assignment for security or charge of
any kind (including any agreement to give any of the foregoing, any conditional
sale or other title retention agreement or any lease in the nature thereof).
"Loan" shall mean each and every Revolving Loan.
"Loan Facility" shall mean the credit facility evidenced by
the Total Revolving Loan Commitment.
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"Materially Adverse Effect" means, (i) with respect to the
Borrower, any materially adverse effect (both before and after giving effect to
the Refinancing and the financing thereof and the other transactions
contemplated hereby and by the other Documents) with respect to the operations,
business, properties, assets, nature of assets, liabilities (contingent or
otherwise), financial condition or prospects of the Borrower or the Borrower
and its Subsidiaries taken as a whole, or (ii) any fact or circumstance
(whether or not the result thereof would be covered by insurance) as to which
singly or in the aggregate there is a reasonable likelihood of (w) a materially
adverse change described in clause (i) with respect to either the Borrower or
the Borrower and its Subsidiaries, taken as a whole, (x) the inability of any
Credit Party to perform in any material respect its Obligations hereunder or
under any of the other Documents or the inability of the Lenders to enforce in
any material respect their rights purported to be granted hereunder or under
any of the other Documents or the Obligations (including realizing on the
Collateral), or (y) a materially adverse effect on the ability to effect
(including hindering or unduly delaying) the Refinancing and the other
transactions contemplated hereby and by the Documents on the terms contemplated
hereby and thereby.
"Maturity Date" shall mean the Final Revolving Loan Maturity
Date.
"Multiemployer Plan" means a "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA with respect to which the Borrower or any of its
ERISA Affiliates is or has been required to contribute.
"Net Cash Proceeds" shall mean with respect to any Asset
Sale, the aggregate cash payments received by the Borrower and/or any of the
Borrower's Subsidiaries, as the case may be, from such Asset Sale, net of
direct expenses of sale; provided, however, that with respect to taxes,
expenses shall only include taxes to the extent that taxes are payable in cash
in the current year or in the next succeeding year with respect to the current
year as a result of such Asset Sale; provided, further, that Net Cash Proceeds
shall not include any amounts or items included in the definition of Financing
Proceeds or Net Financing Proceeds (including in any proviso appearing therein
or exclusion therefrom).
"Net Financing Proceeds" means Financing Proceeds, net of
direct expenses of the transaction and net of taxes (including income taxes)
currently paid or payable in cash as a result thereof in the current year or in
the next succeeding year with
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respect to the current year as a result of the transaction generating Net
Financing Proceeds.
"Non-Excluded Taxes" shall have the meaning provided in
Section 3.04.
"Notes" shall mean any Revolving Note.
"Notice of Borrowing" shall have the meaning provided in
Section 1.03.
"Notice of Conversion/Continuation" shall have the meaning
provided in Section 1.06.
"Notice of Issuance" shall have the meaning provided in
Section 1.13(B).
"Obligations" shall mean all amounts, direct or indirect,
contingent or absolute, of every type or description, and at any time existing,
owing to the Agent or any Bank pursuant to the terms of this Agreement or any
other Credit Document or secured by any of the Security Documents.
"Offering Memorandum" shall mean the final Offering
Memorandum, dated May 20, 1997, prepared by the Borrower in connection with the
offering and sale of the Senior Notes, and provided to the Banks prior to the
Closing Date.
"Officers' Certificate" means, as applied to any corporation,
a certificate executed on behalf of such corporation by its Chairman of the
Board (if an officer) or its President or one of its Vice Presidents and by its
Chief Financial Officer or its Treasurer or any Assistant Treasurer (in such
Person's capacity as an officer and not individually); provided that every
Officers' Certificate with respect to compliance with a condition precedent to
the making of any Loan hereunder shall include (i) a statement that the
officers making or giving such Officers' Certificate have read such condition
and any definitions or other provisions contained in this Agreement relating
thereto, (ii) a statement that, in the opinion of the signers, they have made
or have caused to be made such examination or investigation as is necessary to
enable them to express an informed opinion as to whether or not such condition
has been complied with, and (iii) a statement as to whether, in the opinion of
the signers, such condition has been complied with.
"Officers' Solvency Certificate" means the Officers' Solvency
Certificate in the form of Exhibit I-3 hereto.
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"Operating Lease" of any Person shall mean any lease
(including, without limitation, leases which may be terminated by the lessee at
any time) of any property (whether real, personal or mixed) by such Person as
Lessee which is not a Capital Lease.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA, or any successor thereto.
"Pension Plan" means any pension plan as defined in Section
3(2) of ERISA (other than a Multiemployer Plan) which is or has been maintained
by or to which contributions are or have been made by the Borrower or any of
its ERISA Affiliates.
"Permitted Encumbrances" shall have the meaning provided in
Section 7.03.
"Permitted Holders" shall mean (i) Gibbons, Goodwin, van
Amerongen ("GGvA"), (ii) Xxxxxx X. Xxxxxxx, Xxxx Xxxxxxx, Xxxxx X. xxx
Xxxxxxxxx and Xxxxxxxxx Xxxxxx Camp (the "GGvA Partners"), (iii) trusts created
for the benefit of any of the GGvA Partners or the spouse, issue, parents or
other relatives of any such GGvA Partner, (iv) entities controlled by any of
such GGvA Partners, and (v) in the event of the death of any of the GGvA
Partners, the heirs or testamentary legatees of such GGvA Partner.
"Person" shall mean any individual, partnership, joint
venture, firm, corporation, association, trust or other enterprise or any
government or political subdivision or any agency, department or
instrumentality thereof.
"Pledge Agreement" shall mean a Securities Pledge Agreement
in form and substance satisfactory to the Agent and the Required Banks,
delivered pursuant to Section 7.23, as the same may after its execution be
amended, supplemented or otherwise modified from time to time in accordance
with the terms thereof and hereof.
"Pledge Agreements" shall mean and include, once executed and
delivered, the Pledge Agreement and any securities pledge agreements delivered
pursuant to Section 6.14 or 6.15.
"Pledged Collateral" shall mean all the Pledged Collateral as
defined in the General Security Agreements.
"Pledged Securities" shall mean all the Pledged Collateral as
defined in the Pledge Agreements which shall include,
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without limitation, (i) all issued and outstanding shares of capital stock or
any Person from time to time owned or held by the Borrower and its Subsidiaries,
(ii) all intercompany notes from time to time owned or held by the Borrower and
its Subsidiaries, (iii) all dividends, cash, options, warrants, rights,
instruments, distributions, returns of capital, income, profits and other
property, interests or proceeds from time to time received, receivable or
otherwise distributed to the Borrower and its Subsidiaries in respect of or in
exchange for any or all of the foregoing and (iv) all Proceeds (as defined under
the Uniform Commercial Code as in effect in any relevant jurisdiction or under
other relevant law) of any of the foregoing.
"Portion" shall mean the Revolving Portion.
"Prior Liens" shall mean Liens which, pursuant to the
provisions of any Security Document, are or may be superior to the Lien of such
Security Document.
"Projected Financial Statements" shall have the meaning
provided in Section 5.10(c).
"Real Property" shall mean all right, title and interest of
the Borrower or any of its Subsidiaries (including, without limitation, any
leasehold estate) in and to a parcel of real property owned or operated by the
Borrower or any of its Subsidiaries together with, in each case, all
improvements and appurtenant fixtures, equipment, personal property, easements
and other property and rights incidental to the ownership, lease or operation
thereof.
"Recapitalization" shall have the meaning provided in the
Recitals hereto.
"Refinancing" shall have the meaning provided in the Recitals
hereto.
"Refinancing Documents" shall mean all documentation required
in connection with the redemption of the Subordinated Notes and the issuance of
the Senior Notes.
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof establishing reserve requirements.
"Regulation G" shall mean Regulation G of the Board of
Governors of the Federal Reserve System as from time to time in
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effect and any successor to all or a portion thereof establishing margin
requirements.
"Regulation T" shall mean Regulation T of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof establishing margin requirements.
"Regulation U" shall mean Regulation U of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof establishing margin requirements.
"Regulation X" shall mean Regulation X of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof establishing margin requirements.
"Required Banks" shall mean at any time two or more Banks (if
at the time there are at least two Banks) holding at least 51% of the Total
Commitments held by Banks (or, if the Total Commitments shall have been
terminated, Banks holding at least 51% of the outstanding Loans and Letters of
Credit Usage); provided that for the purposes of Section 4, the requirement
that any document, agreement, certificate or other writing is to be
satisfactory to the Required Banks shall be satisfied if (x) such document,
agreement, certificate or other writing was delivered in its final form to the
Banks prior to the Closing Date (or if amended or modified thereafter, the
Agent has reasonably determined such amendment or modification not to be
material), (y) such document, agreement, certificate or other writing is
satisfactory to the Agent and (z) Banks holding more than 66-2/3% of the Total
Commitments held by Banks have not objected in writing to such document,
agreement, certificate or other writing to the Agent prior to the Closing Date.
"Revolving Loan Commitment" shall mean, with respect to each
Bank, the amount set forth below such Bank's name on the signature pages hereto
directly below the column entitled "Revolving Loan Commitment," as same may be
reduced from time to time pursuant to Sections 2.01, 3.02 and/or 8.
"Revolving Loans" shall have the meaning provided in Section
1.01.
"Revolving Note" shall have the meaning provided in Section
1.05(a) (and shall include any amendments of or substitutions for such notes).
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"Revolving Portion" shall mean, at any time, the portion of
the Loan Facility evidenced by the Total Revolving Loan Commitment.
"SEC Regulation D" shall mean Regulation D as promulgated
under the Securities Act, as the same may be in effect from time to time.
"Secured Parties" shall have the meaning specified in the
Security Documents.
"Securities" shall mean any stock, shares, voting trust
certificates, bonds, debentures, options, warrants, notes, or other evidences
of indebtedness, secured or unsecured, convertible, subordinated or otherwise,
or in general any instruments commonly known as "securities" or any
certificates of interest, shares or participations in temporary or interim
certificates for the purchase or acquisition of, or any right to subscribe to,
purchase or acquire, any of the foregoing.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Security Documents" shall mean each of the Pledge
Agreements, the General Security Agreements and any other documents utilized to
pledge any other property or assets of whatever kind or nature as Collateral
for the Obligations.
"Senior Notes" shall have the meaning provided in the Recitals
hereto.
"Standby Letter of Credit" means any standby letter of credit
or similar instrument issued for the purpose of supporting (i) workers'
compensation liabilities of the Borrower or any of its Subsidiaries, (ii) the
obligations of third-party insurers of the Borrower or any of its Subsidiaries
arising by virtue of the laws of any jurisdiction requiring third-party
insurers to obtain such letters of credit, or (iii) performance, payment,
deposit or surety obligations of the Borrower or any of its Subsidiaries if
required by law or governmental rule or regulation or in accordance with custom
and practice in the industry.
"Statutory Reserves" means a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board of Governors of the Federal Reserve
System of
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the United States or by any other Governmental Authority, domestic or foreign,
with jurisdiction over the Agent or any Bank (including any branch, Affiliate or
other funding office thereof making or holding a Loan) with respect to the
Adjusted LIBOR applicable to any Borrowing, for any category of liabilities
which includes deposits by reference to which the Adjusted LIBOR in respect of
such Borrowing is determined. Such reserve percentages shall include those
imposed pursuant to Regulation D. For purposes of this definition, LIBOR Loans
shall be deemed to constitute "Eurocurrency Liabilities" within the meaning of
Regulation D and to be subject to such reserve requirements without benefit of
or credit for proration, exemptions or offsets which may be available from time
to time to any Bank under such Regulation D. Statutory Reserves shall be
adjusted automatically on and as of the effective date of any change in any
reserve percentage.
"Subordinated Notes" shall have the meaning provided in the
Recitals hereto.
"Subsidiary" of any Person shall mean and include (i) any
corporation more than 50% of whose stock of any class or classes having by the
terms thereof ordinary voting power to elect a majority of the directors of
such corporation (irrespective of whether or not at the time stock of any class
or classes of such corporation shall have or might have voting power by reason
of the happening of any contingency) is at the time owned by such Person
directly or indirectly through Subsidiaries and (ii) any partnership,
association, joint venture or other entity in which such Person directly or
indirectly through Subsidiaries has more than a 50% equity interest at the
time.
"Termination Event" means (i) other than the
Recapitalization, a "reportable event" described in Section 4043 of ERISA or in
the regulations thereunder (excluding events for which the requirement for
notice of such reportable event has been waived by the PBGC) with respect to a
Title IV Plan, or (ii) the withdrawal of the Borrower or any of its ERISA
Affiliates from a Title IV Plan during a plan year in which it was a
"substantial employer" as defined in Section 4001(a)(2) of ERISA, or (iii) the
filing of a notice of intent to terminate a Title IV Plan or the treatment of a
Title IV Plan amendment as a termination under Section 4041 of ERISA, or (iv)
the institution of proceedings by the PBGC to terminate a Title IV Plan or to
appoint a trustee to administer a Title IV Plan, or (v) any other event or
condition which might constitute reasonable grounds under Section 4042 of ERISA
for the termination of, or the appointment of a trustee to administer, any
Title IV Plan, or (vi) the complete or partial withdrawal (within the meaning
of Sections 4203 and 4205,
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respectively, of ERISA) of the Borrower or any of its ERISA Affiliates from a
Multiemployer Plan, or (vii) the insolvency or reorganization (within the
meaning of Sections 4245 and 4241, respectively, of ERISA) or termination of any
Multiemployer Plan, or (viii) the failure to make any payment or contribution to
any Pension Plan or Multiemployer Plan or the making of any amendment to any
Pension Plan which could result in the imposition of a lien or the posting of a
bond or other security.
"Test Period" shall mean the four consecutive complete Fiscal
Quarters of the Borrower then last ended.
"Title IV Plan" means any plan (other than a Multiemployer
Plan) described in Section 4021(a) of ERISA, and not excluded under Section
4021(b) of ERISA, which is or has been maintained by, or to which contributions
are or have been made by, the Borrower or any of its ERISA Affiliates.
"Total Revolving Loan Commitment" shall mean the sum of the
Revolving Loan Commitment of each of the Banks.
"Total Utilization of Revolving Loan Commitment" shall mean,
at any date of determination, the sum of the aggregate principal amount of all
Revolving Loans.
"Type" shall mean a Base Rate Loan or LIBOR Loan.
"UCC" shall mean the Uniform Commercial Code as in effect in
the State of New York.
"Unutilized Commitment" for any Bank at any time shall mean,
on and after the Closing Date, the unutilized Revolving Loan Commitment of such
Bank, after taking into effect the Letters of Credit Usage.
"Voting Stock" means all classes of capital stock of a
corporation then outstanding and normally entitled to vote in the election of
directors.
"Wholly-Owned Subsidiary" of any Person shall mean any
Subsidiary of such Person to the extent all of the capital stock or other
ownership interests in such Subsidiary, other than directors' or nominees'
qualifying shares, is owned directly or indirectly by such Person.
"Written" or "in writing" shall mean any form of written
communication or a communication by means of telex, telecopier device,
telegraph or cable.
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SECTION 10. The Agent.
10.01 Appointment. Each Bank hereby irrevocably designates
and appoints Indosuez as Agent (such term to include the Agent acting as
Collateral Agent) of such Bank to act as specified herein and in the other
Credit Documents and such Bank hereby irrevocably authorizes such Agent to take
such action on its behalf under the provisions of this Agreement and the other
Credit Documents and to exercise such powers and perform such duties as are
expressly delegated to such Agent by the terms of this Agreement and the other
Credit Documents, together with such other powers as are reasonably incidental
thereto. Such Agent agrees to act as such upon the express conditions contained
in this Section 10. Notwithstanding any provision to the contrary elsewhere in
this Agreement, such Agent shall not have any duties or responsibilities,
except those expressly set forth herein or in the other Credit Documents, or
any fiduciary relationship with any Bank, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against such Agent. The provisions of this Section
10 are solely for the benefit of such Agent and the Banks, and no Credit Party
shall have any rights as a third party beneficiary of any of the provisions
hereof. In performing its functions and duties under this Agreement, such Agent
shall act solely as an agent of the Banks and does not assume and shall not be
deemed to have assumed any obligation or relationship of agency or trust with
or for any Credit Party.
For purposes of this Section 10 and Section 11.05, the term
"Agent" shall refer to each of the Agent and the Collateral Agent.
10.02 Delegation of Duties. The Agent may execute any of its
duties under this Agreement or any other Credit Document by or through agents
or attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care except to the extent otherwise required by Section 10.03.
10.03 Exculpatory Provisions. Neither the Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact or affiliates
shall be (i) liable for any action lawfully taken or omitted to be taken by it
or such Person under or in connection with this Agreement (except for its or
such Person's own gross negligence or willful misconduct) or (ii) responsible
in any manner to any of the Banks for any recit-
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als, statements, representations or warranties by the Borrower, any Subsidiary
of the Borrower or any of their respective officers contained in this Agreement,
any other Document or in any certificate, report, statement or other document
referred to or provided for in, or received by the Agent under or in connection
with, this Agreement or any other Document or for any failure of the Borrower or
any Subsidiary of the Borrower or any of their respective officers to perform
its obligations hereunder or thereunder. The Agent shall be under no obligation
to any Bank to ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this Agreement, or to
inspect the properties, books or records of the Borrower or any Subsidiary of
the Borrower. The Agent shall not be responsible to any Bank for the
effectiveness, genuineness, validity, enforceability, collectibility or
sufficiency of this Agreement or any Credit Document or for any representations,
warranties, recitals or statements made herein or therein or made in any written
or oral statement or in any financial or other statements, instruments, reports,
certificates or any other documents in connection herewith or therewith
furnished or made by such Agent to the Banks or by or on behalf of the Borrower
to such Agent or any Bank or be required to ascertain or inquire as to the
performance or observance of any of the terms, conditions, provisions, covenants
or agreements contained herein or therein or as to the use of the proceeds of
the Loans or of the existence or possible existence of any Default or Event of
Default.
10.04 Reliance by the Agent. The Agent shall be entitled to
rely, and shall be fully protected in relying, upon any note, writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other
document or conversation believed by it to be genuine and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to the Credit Parties),
independent accountants and other experts selected by the Agent. The Agent
shall be fully justified in failing or refusing to take any action under this
Agreement or any other Credit Document unless it shall first receive such
advice or concurrence of the Required Banks as it deems appropriate or it shall
first be indemnified to its satisfaction by the Banks against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement and the
other Credit Documents in accordance with a request of the Required Banks (or
to the extent specifically provided in Section 11.12, all the
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Banks), and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Banks.
10.05 Notice of Default. The Agent shall be deemed not to
have knowledge of the occurrence of any Default or Event of Default, other than
a default in the payment of principal or interest on the Loans hereunder,
unless it has received notice from a Bank or the Borrower or any other Credit
Party referring to this Agreement, describing such Default or Event of Default
and stating that such notice is a "notice of default." In the event that the
Agent receives such a notice, the Agent shall give prompt notice thereof to the
Banks. The Agent shall take such action with respect to such Default or Event
of Default as shall be reasonably directed by the Required Banks; provided
that, unless and until the Agent shall have received such directions, the Agent
may (but shall not be obligated to) take such action, or refrain from taking
such action, with respect to such Default or Event of Default as it shall deem
advisable in the best interests of the Banks.
10.06 Non-Reliance on Agent and Other Banks. Each Bank
expressly acknowledges that neither the Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates have made any
representations or warranties to it and that no act by the Agent hereinafter
taken, including any review of the affairs of the Borrower or any Subsidiary of
the Borrower, shall be deemed to constitute any representation or warranty by
the Agent to any Bank. Each Bank represents to the Agent that it has,
independently and without reliance upon any the Agent or any other Bank, and
based on such documents and information as it has deemed appropriate, made its
own appraisal of and investigation into the business, assets, operations,
property, financial and other conditions, prospects and creditworthiness of the
Borrower and its Subsidiaries and made its own decision to make its Loans
hereunder and enter into this Agreement and the other agreements contemplated
hereby. Each Bank also represents that it will, independently and without
reliance upon the Agent or any other Bank, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement, and to make such investigation as it deems necessary to inform
itself as to the business, assets, operations, property, financial and other
conditions, prospects and creditworthiness of the Borrower and its
Subsidiaries. Except for notices, reports and other documents expressly
required to be furnished to the Banks by the Agent hereunder, the Agent shall
have no duty or responsibility to provide any Bank with any credit or other
information concerning the business, operations,
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assets, property, financial and other conditions, prospects or creditworthiness
of the Borrower or any of its Subsidiaries which may come into the possession of
any Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates.
10.07 Indemnification. The Banks agree to indemnify the Agent
in its capacity as such or in any other representative capacity under any other
Credit Document ratably according to their aggregate Commitments, from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, reasonable expenses or disbursements of any
kind whatsoever which may at any time (including, without limitation, at any
time following the payment of the Obligations) be imposed on, incurred by or
asserted against the Agent in its capacity as such in any way relating to or
arising out of this Agreement or any other Credit Document, or any documents
contemplated by or referred to herein or the transactions contemplated hereby
or any action taken or omitted to be taken by the Agent under or in connection
with any of the foregoing, but only to the extent that any of the foregoing is
not paid by the Borrower or any of its Subsidiaries; provided that no Bank
shall be liable to the Agent for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting solely from any the Agent's
gross negligence or willful misconduct. If any indemnity furnished to the Agent
for any purpose shall, in the opinion of the Agent, be insufficient or become
impaired, the Agent may call for additional indemnity and cease, or not
commence, to do the acts indemnified against until such additional indemnity is
furnished. The agreements in this Section 10.07 shall survive the payment of
all Obligations.
10.08 The Agent in Its Individual Capacity. The Agent and its
Affiliates may make loans to, accept deposits from and generally engage in any
kind of business with the Borrower, its Subsidiaries and other Affiliates of
the Borrower as though such Agent were not the Agent hereunder. With respect to
the Loans made by it and all Obligations owing to it, the Agent shall have the
same rights and powers under this Agreement as any Bank and may exercise the
same as though it were not the Agent, and the terms "Bank" and "Banks" shall
include the Agent in its individual capacity.
10.09 Successor Agent. Upon the acceptance of any appointment
as an Agent hereunder by a successor Agent, the term "Agent" shall include such
successor agent effective upon its appointment, and the resigning Agent's
rights, powers and duties as Agent shall be terminated, without any other or
further act or
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deed on the part of such former Agent or any of the parties to this Agreement.
After the retiring Agent's resignation hereunder as Agent, the provisions of
this Section 10 shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Agent under this Agreement.
10.10 Resignation, Transfer by Agent. (A) The Agent may
resign from the performance of all its functions and duties hereunder at any
time by giving 20 Business Days' prior written notice to the Borrower and the
Banks. Such resignation shall take effect upon the acceptance by a successor
Agent of appointment pursuant to subsections B and C below or as otherwise
provided below.
(B) Upon any such notice of resignation of an Agent, the
Required Banks shall appoint a successor Agent acceptable to the Borrower and
which shall be an incorporated bank or trust company or other qualified
financial institution with operations in the United States and total assets of
at least $1 billion.
(C) If a successor Agent shall not have been so appointed
within said 15 Business Day period, the resigning Agent with the consent of the
Borrower shall then appoint a successor Agent (which shall be an incorporated
bank or trust company or other qualified financial institution with operations
in the United States and total assets of at least $1 billion) who shall serve
as a successor Agent until such time, if any, as the Required Banks appoint a
successor Agent as provided above.
(D) If no successor Agent has been appointed pursuant to
Section 10.10(B) or (C) by the twentieth Business Day after the date such
notice of resignation was given by the resigning Agent, such Agent's
resignation shall become effective and the Required Banks shall thereafter
perform all the duties of Agent hereunder until such time, if any, as the
Required Banks appoint a successor Agent as provided above.
(E) Notwithstanding anything to the contrary contained in
this Section 10, Indosuez, as Agent, may transfer its rights and obligations to
perform all of its functions and duties hereunder to its parent company or to
any Affiliate of it or its parent company.
SECTION 11. Miscellaneous.
11.01 Payment of Expenses, etc. The Borrower agrees to: (i)
whether or not the transactions herein contemplated are
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consummated, pay all reasonable out-of-pocket costs and expenses of the Agent in
connection with the negotiation, preparation, execution and delivery of the
Credit Documents and the documents and instruments referred to therein and any
amendment, waiver or consent relating thereto (including, without limitation,
the reasonable fees and disbursements of Xxxxxx Xxxxxx & Xxxxxxx and, in each
jurisdiction in which any Collateral is located, one local counsel to the Banks)
with prior notice to the Borrower of the engagement of any counsel and of each
of the Banks in connection with the enforcement of the Credit Documents
(including in connection with any "work-out" or other restructuring of the
Borrower's Obligations or in connection with any bankruptcy, reorganization or
similar proceeding with respect to any Credit Party or its Subsidiaries) and the
documents and instruments referred to therein (including, without limitation,
the reasonable fees and disbursements of counsel for each of the Banks) with
prior notice to the Borrower of the engagement of any counsel and the fees and
expenses of any appraisers or any consultants or other advisors engaged with
prior notice to the Borrower of any such engagement with respect to
environmental or other matters; (ii) pay and hold each of the Banks harmless
from and against any and all present and future stamp and other similar taxes
with respect to the foregoing matters and save each of the Banks harmless from
and against any and all liabilities with respect to or resulting from any delay
or omission (other than to the extent attributable to such Bank) to pay such
taxes; (iii) indemnify each Bank, its officers, directors, employees,
representatives and agents from and hold each of them harmless against any and
all losses, liabilities, claims, damages or expenses (including, without
limitation, any and all losses, liabilities, claims, damages or expenses arising
under Environmental Laws) incurred by any of them as a result of, or arising out
of, or in any way related to, or by reason of, any investigation, litigation or
other proceeding (whether or not any Bank is a party thereto) related to the
entering into and/or performance of any Document or the use of the proceeds of
any Loans hereunder or the Refinancing or the consummation of any other
transactions contemplated in any Credit Document, including, without limitation,
the reasonable fees and disbursements of counsel incurred in connection with any
such investigation, litigation or other proceeding (but excluding any such
losses, liabilities, claims, damages or expenses to the extent incurred by
reason of the gross negligence or willful misconduct of the Person to be
indemnified); and (iv) pay all reasonable out-of-pocket costs and expenses of
the Agent in connection with the assignment or attempted assignment to any other
Person of all or any portion of Indosuez's interest under this Agreement
pursuant to Section 11.04 incurred prior to 180 days following the Closing Date.
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11.02 Right of Setoff. In addition to any rights now or
hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, upon the occurrence and during the continuance
of an Event of Default, each Bank is hereby authorized at any time or from time
to time, without presentment, demand, protest or other notice of any kind to
any Credit Party or to any other Person, any such notice being hereby expressly
waived, to set off and to appropriate and apply any and all deposits (general
or special) and any other Indebtedness at any time held or owing by such Bank
(including, without limitation, by branches and agencies of such Bank wherever
located) to or for the credit or the account of any Credit Party against and on
account of the Obligations and liabilities of such Credit Party to such Bank
under this Agreement or under any of the other Credit Documents, including,
without limitation, all interests in Obligations of such Credit Party purchased
by such Bank pursuant to Section 11.06(b), and all other claims of any nature
or description arising out of or connected with this Agreement or any other
Credit Document, irrespective of whether or not such Bank shall have made any
demand hereunder and although said Obligations, liabilities or claims, or any
of them, shall be contingent or unmatured.
11.03 Notices. Except as otherwise expressly provided herein,
all notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, telecopier or cable communication) and mailed,
telegraphed, telexed, telecopied, cabled or delivered, if to the Borrower,
Xxxxx Aluminum Corporation, 000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx,
Xxxxxxxx 00000, Attention: Chief Financial Officer, with a copy to: Kramer,
Levin, Naftalis, Nessin, Xxxxx & Xxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxxx X. Xxxxxx, or if to another Credit Party, to its
address specified in the other relevant Credit Documents, as the case may be;
if to any Bank, at its address specified for such Bank on Annex II hereto; or,
at such other address as shall be designated by any party in a written notice
to the other parties hereto. All such notices and communications shall, when
mailed, telegraphed, telexed, telecopied, or cabled or sent by overnight
courier, be effective two days after being deposited in the mails, when
delivered to the telegraph company, cable company or overnight courier, as the
case may be, or when sent by telex or telecopier, except that notices and
communications to the Agent shall not be effective until received by the Agent.
11.04 Benefit of Agreement. (a) This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the
parties hereto, all future holders of the Notes,
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and their respective successors and assigns; provided that no Credit
Party may assign or transfer any of its interests hereunder without the
prior written consent of the Banks; and provided, further, that the
rights of each Bank to transfer, assign or grant participations in its
rights and/or obligations hereunder shall be limited as set forth below
in this Section 11.04; provided that nothing in this Section 11.04
shall prevent or prohibit any Bank from (i) pledging its Loans
hereunder to a Federal Reserve Bank in support of borrowings made by
such Bank from such Federal Reserve Bank and (ii) granting
participations in or assignments of such Bank's Loans, Notes and/or
Commitments hereunder to its parent company and/or to any Affiliate of
such Bank that is at least 50% owned by such Bank or its parent
company. The Borrower shall issue new Notes to such assignees in
conformity with Section 1.05 and the assignor shall return the old
Notes to the Borrower. Upon the effectiveness of any assignment in
accordance with clause (ii) above, the assignee, if not a Bank, will
become a "Bank" for all purposes of this Agreement and the other Credit
Documents and, to the extent of such assignment, the assigning Bank
shall be relieved of its obligations hereunder with respect to the
Commitments being assigned. In the case of any participation in
accordance with clause (ii) above, the participant shall not have any
rights under this Agreement or any of the other Credit Documents (the
participant's rights against the granting Bank in respect of such
participation to be those set forth in the agreement with such Bank
creating such participation) and all amounts payable by the Borrower
hereunder shall be determined as if such Bank had not sold such
participation; provided that such participant shall be considered to be
a "Bank" for purposes of Sections 11.02 and 11.06(b).
(b) Each Bank shall have the right to transfer, assign or
grant participations in all or any part of its remaining Loans, Notes and/or
Commitments hereunder on the basis set forth below in this clause (b). Each
Bank may furnish any information concerning the Borrower in the possession of
such Bank from time to time to assignees and participants (including
prospective assignees and participants).
(A) Assignments. Each Bank, with the written consent of the
Agent, which shall not be unreasonably withheld, which shall be
evidenced on the notice in the form of Exhibit D-1 hereto, may assign
pursuant to an Assignment Agreement substantially in the form of
Exhibit D-2 hereto all or a portion of its Loans, Notes and/or
Commitments
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hereunder pursuant to this clause (b)(A) to (x) one or more Banks or
(y) one or more Eligible Assignees, in each case, in minimum amounts of
$5,000,000, or all of its Loans, Notes and/or Commitments; provided
that any assignment pursuant to clause (y) shall not result in the
Borrower paying additional amounts pursuant to Section 3.04 as of the
time of such assignment. Any assignment pursuant to this clause (b)(A)
will become effective five Business Days after the Agent's receipt of
(i) a written notice in the form of Exhibit D-1 hereto from the
assigning Bank and the assignee Bank or Eligible Assignee, and (ii) a
processing and recordation fee of $2,000 from the assigning Bank in
connection with the Agent's recording of such sale, assignment,
transfer or negotiation; provided that such fee shall only be payable
if the assignment is between a Bank and a party that is not a Bank
prior to the assignment. The Borrower shall issue new Notes to the
assignee Bank or Eligible Assignee in conformity with Section 1.05 and
the assignor shall return the old Notes to the Borrower. Upon the
effectiveness of any assignment in accordance with this clause (b)(A),
the assignee, if not a Bank, will become a "Bank" for all purposes of
this Agreement and the other Credit Documents and, to the extent of
such assignment, the assigning Bank shall be relieved of its
obligations hereunder with respect to the Commitments being assigned.
(B) Participations. Each Bank may transfer, grant or assign
participations in all or any part of such Bank's Loans, Notes and/or
Commitments hereunder pursuant to this clause (b)(B) to any Person;
provided that (i) such Bank shall remain a "Bank" for all purposes of
this Agreement and the transferee of such participation shall not
constitute a Bank hereunder and (ii) no participant under any such
participation shall have rights to approve any amendment to or waiver
of this Agreement or any other Credit Document except to the extent
such amendment or waiver would (x) change the scheduled final maturity
date of any of the Loans, Notes or Commitments in which such
participant is participating or (y) reduce the principal amount,
interest rate or fees applicable to any of the Loans, Notes or
Commitments in which such participant is participating or postpone the
payment of any interest or fees or (z) release all or substantially
all of the Collateral. In the case of any such participation, the
participant shall not have any rights under this Agreement or any of
the other Credit Documents (the participant's rights against the
granting Bank in respect of such participation to be those set forth
in the agreement with such Bank creating such participation) and all
amounts payable by the
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Borrower hereunder shall be determined as if such Bank had not sold
such participation; provided that such participant shall be considered
to be a "Bank" for purposes of Sections 11.02 and 11.06(b).
11.05 No Waiver; Remedies Cumulative. No failure or delay on
the part of any Agent or any Bank in exercising any right, power or privilege
hereunder or under any other Credit Document and no course of dealing between
any Credit Party and any Agent or any Bank shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, power, or privilege
hereunder or under any other Credit Document preclude any other or further
exercise thereof or the exercise of any other right, power or privilege
hereunder or thereunder. The rights and remedies herein expressly provided are
cumulative and not exclusive of any rights or remedies which any Agent or any
Bank would otherwise have. No notice to or demand on any Credit Party in any
case shall entitle any Credit Party to any other or further notice or demand in
similar or other circumstances or constitute a waiver of the rights of any
Agent or the Banks to any other or further action in any circumstances without
notice or demand.
11.06 Payments Pro Rata. (a) The Agent agrees that promptly
after its receipt of each payment from or on behalf of any Credit Party in
respect of any Obligations of such Credit Party, it shall distribute such
payment to the Banks pro rata based upon their respective shares, if any, of
the Obligations with respect to which such payment was received.
(b) Each of the Banks agrees that, if it should receive any
amount hereunder (whether by voluntary payment, by realization upon security,
by the exercise of the right of setoff or banker's lien, by counterclaim or
cross action, by the enforcement of any right under the Credit Documents, or
otherwise) which is applicable to the payment of the principal of, or interest
on, the Loans, of a sum which with respect to the related sum or sums received
by other Banks is in a greater proportion than the total of such Obligations
then owed and due to such Bank bears to the total of such Obligations then owed
and due to all of the Banks immediately prior to such receipt, then such Bank
receiving such excess payment shall purchase for cash without recourse or
warranty from the other Banks an interest in the Obligations of the respective
Credit Party to such Banks in such amount as shall result in a proportional
participation by all of the Banks in such amount; provided that if all or any
portion of such excess amount is thereafter recovered from such Bank, such
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purchase shall be rescinded and the purchase price restored to the extent of
such recovery, but without interest.
11.07 Calculations; Computations. (a) The financial
statements to be furnished to the Banks pursuant hereto shall be made and
prepared in accordance with GAAP consistently applied throughout the periods
involved (except as set forth in the notes thereto or as otherwise disclosed in
writing by the Borrower to the Banks); provided that, except as otherwise
specifically provided herein, all computations determining compliance with
Section 7 and all definitions used herein for any purpose shall utilize
accounting principles and policies in effect at the time of the preparation of,
and in conformity with those used to prepare, the historical financial
statements delivered to the Banks pursuant to Section 4.01(I).
(b) All computations of interest and fees hereunder shall be
made on the actual number of days elapsed over a year of 365 days; provided,
however, that all computations of interest on LIBOR Loans and of fees payable
pursuant to Section 2.03 hereof shall be made on the actual number of days
elapsed over a year of 360 days.
11.08 Governing Law; Submission to Jurisdiction; Venue. (a)
This Agreement and the rights and obligations of the parties hereunder shall be
construed and enforced in accordance with and be governed by the laws of the
State of New York applicable to contracts made and to be performed wholly
therein. Any legal action or proceeding with respect to this Agreement or any
other Credit Document may be brought in the courts of the State of New York or
of the United States for the Southern District of New York, and, by execution
and delivery of this Agreement, each Credit Party hereby irrevocably accepts
for itself and in respect of its property, generally and unconditionally, the
non-exclusive jurisdiction of the aforesaid courts. Each Credit Party further
irrevocably consents to the service of process out of any of the aforementioned
courts in any such action or proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, to the respective Credit Party,
at its address for notices pursuant to Section 11.03, such service to become
effective 30 days after such mailing. Each Credit Party hereby irrevocably
appoints the Borrower and such other Persons as may hereafter be selected by
the Borrower irrevocably agreeing in writing to serve as its agent for service
of process in respect of any such action or proceeding. Nothing herein shall
affect the right of the Agent or any Bank to serve process in any other manner
permitted by law or to commence legal proceedings or oth-
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erwise proceed against any Credit Party in any other jurisdiction.
(b) Each Credit Party hereby irrevocably waives any objection
which it may now or hereafter have to the laying of venue of any of the
aforesaid actions or proceedings arising out of or in connection with this
Agreement or any other Credit Document brought in the courts referred to in
clause (a) above and hereby further irrevocably waives and agrees not to plead
or claim in any such court that any such action or proceeding brought in any
such court has been brought in an inconvenient forum.
11.09 Counterparts. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be deemed an
original, but all of which shall together constitute one and the same
instrument. A set of counterparts executed by all the parties hereto shall be
lodged with the Borrower and the Agent.
11.10 Effectiveness. This Agreement shall become effective on
the date on which the Borrower and each of the Banks shall have signed a copy
hereof (whether the same or different copies) and shall have delivered the same
to the Agent at the Agent's Office or, in the case of the Banks, shall have
given to the Agent telephonic (confirmed in writing), written, telex or
telecopy notice (actually received) at such office that the same has been
signed and mailed to it. The Agent will give the Borrower and each Bank prompt
written notice of the effectiveness of this Agreement.
11.11 Headings Descriptive. The headings of the several
sections and subsections of this Agreement are inserted for convenience only and
shall not in any way affect the meaning or construction of any provision of this
Agreement.
11.12 Amendment or Waiver. Neither this Agreement nor any
other Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination
is in writing signed by the Required Banks; provided that no such change,
waiver, discharge or termination shall, without the consent of each affected
Bank and the Agent, (i) extend the scheduled final maturity date of any Loan,
or any portion thereof, or reduce the rate or extend the time of payment of
interest thereon or fees or reduce the principal amount thereof, or increase
the Commitments of any Bank over the amount thereof then in effect (it being
understood that a
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waiver of any Default or Event of Default or of a mandatory reduction in the
Total Commitment shall not constitute a change in the terms of any Commitment of
any Bank), (ii) release all or substantially all of the Collateral (except as
expressly permitted by the Credit Documents), (iii) amend, modify or waive any
provision of this Section, or Section 1.10, 1.11, 3.04, 8, 10.07, 11.01, 11.02,
11.04, 11.06, 11.07(b) or 11.13, (iv) reduce any percentage specified in, or
otherwise modify, the definition of Required Banks or (v) consent to the
assignment or transfer by any Credit Party of any of its rights and obligations
under this Agreement. No provision of Section 10 may be amended without the
consent of the Agent.
11.13 Survival. All indemnities set forth herein including,
without limitation, in Section 1.11, 3.04, 10.07 or 11.01 shall survive the
execution and delivery of this Agreement and the making of the Loans, the
repayment of the Obligations and the termination of the Total Commitments.
11.14 Domicile of Loans. Each Bank may transfer and carry its
Loans at, to or for the account of any branch office, subsidiary or Affiliate
of such Bank.
11.15 Waiver of Jury Trial. Each of the parties to this
agreement hereby irrevocably waives all right to a trial by jury in any action,
proceeding or counterclaim arising out of or relating to this Agreement, the
Credit Documents or the transactions contemplated hereby or thereby.
11.16 Independence of Covenants. All covenants hereunder
shall be given independent effect so that if a particular action or condition
is not permitted by any of such covenants, the fact that it would be permitted
by an exception to, or be otherwise within the limitation of, another covenant
shall not avoid the occurrence of a Default or an Event of Default if such
action is taken or condition exists.
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Agreement to be duly executed and delivered as of the date
first above written.
XXXXX ALUMINUM CORPORATION
By: /s/ W. Xxxxxxx Xxxxx
___________________________
Name: W. Xxxxxxx Xxxxx
Title: Senior Vice President
Credit Agreement among Xxxxx Aluminum Corporation, Credit Agricole
Indosuez and the Banks listed herein
CREDIT AGRICOLE INDOSUEZ, as Agent
By: /s/
______________________________
Name:
Title:
By: /s/ Xxxxxx Xxxxxxx
______________________________
Name:
Title:
Revolving Loan Commitment:$
SUMMIT BANK
By: /s/
________________________
Name:
Title:
Revolving Loan Commitment:$
