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Exhibit 10.55
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REVOLVING CREDIT AND GUARANTY AGREEMENT
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AMONG
THE LTV CORPORATION
A DEBTOR AND A DEBTOR-IN-POSSESSION UNDER CHAPTER 11 OF THE BANKRUPTCY CODE
AS BORROWER
AND
THE SUBSIDIARIES OF THE BORROWER NAMED HEREIN,
EACH A DEBTOR AND A DEBTOR-IN-POSSESSION UNDER CHAPTER 11 OF THE BANKRUPTCY CODE
AS GUARANTORS
AND
THE BANKS PARTY HERETO,
AND
THE CHASE MANHATTAN BANK,
AS ADMINISTRATIVE AGENT, DOCUMENTATION AGENT
AND COLLATERAL AGENT
AND
XX XXXXXX, A DIVISION OF
CHASE SECURITIES INC.,
AS BOOK MANAGER
AND
LEAD ARRANGER
AND
ABBEY NATIONAL TREASURY SERVICES PLC
AS CO-AGENT
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DATED AS OF MARCH 20, 2001
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REVOLVING CREDIT AND GUARANTY AGREEMENT
TABLE OF CONTENT
Page
SECTION 1. DEFINITIONS ...................................................... 2
SECTION 1.01 Defined Terms .................................. 2
SECTION 1.02 Terms Generally ............................... 16
SECTION 2. AMOUNT AND TERMS OF CREDIT ...................................... 17
SECTION 2.01 Commitment of the Banks ....................... 17
SECTION 2.02 Borrowing Base ................................ 17
SECTION 2.03 Letters of Credit ............................. 17
SECTION 2.04 Issuance ...................................... 19
SECTION 2.05 Nature of Letter of Credit Obligations
Absolute ...................................... 20
SECTION 2.06 Making of Loans ............................... 20
SECTION 2.07 Repayment of Loans; Evidence of Debt .......... 21
SECTION 2.08 Interest on Loans ............................. 22
SECTION 2.09 Default Interest .............................. 22
SECTION 2.10 Optional Termination or Reduction
of Commitment ................................ 22
SECTION 2.11 Alternate Rate of Interest .................... 22
SECTION 2.12 Refinancing of Loans .......................... 23
SECTION 2.13 Mandatory Prepayment; Commitment Termination;
Cash Collateral .............................. 24
SECTION 2.14 Optional Prepayment of Loans; Reimbursement
of Banks ..................................... 25
SECTION 2.15 Reserve Requirements; Change in
Circumstances ................................ 27
SECTION 2.16 Change in Legality ............................ 28
SECTION 2.17 Pro Rata Treatment, etc. ...................... 29
SECTION 2.18 Taxes ......................................... 29
SECTION 2.19 Fees .......................................... 32
SECTION 2.20 Commitment Fee ................................ 32
SECTION 2.21 Letter of Credit Fees ......................... 32
SECTION 2.22 Nature of Fees ................................ 33
SECTION 2.23 Priority and Liens ............................ 33
SECTION 2.24 Right of Set-Off .............................. 35
SECTION 2.25 Security Interest in Letter of Credit
Account ..................................... 35
SECTION 2.26 Payment of Obligations ........................ 36
SECTION 2.27 No Discharge; Survival of Claims .............. 36
SECTION 3. REPRESENTATIONS AND WARRANTIES .................................. 36
SECTION 3.01 Organization and Authority .................... 36
SECTION 3.02 Due Execution ................................. 36
SECTION 3.03 Statements Made ............................... 37
SECTION 3.04 Financial Statements .......................... 37
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SECTION 3.05 Ownership ..................................... 37
SECTION 3.06 Liens ......................................... 37
SECTION 3.07 Compliance with Law ........................... 38
SECTION 3.08 Insurance ..................................... 38
SECTION 3.09 Use of Proceeds ............................... 38
SECTION 3.10 Litigation .................................... 39
SECTION 4. CONDITIONS OF LENDING ..................................... 39
SECTION 4.01 Conditions Precedent to Initial Loans
and Initial Letters of Credit ................ 39
SECTION 4.02 Conditions Precedent to Each Loan and
Each Letter of Credit ........................ 41
SECTION 5. AFFIRMATIVE COVENANTS ........................................... 42
SECTION 5.01 Financial Statements, Reports, etc. ........... 42
SECTION 5.02 Corporate Existence ........................... 45
SECTION 5.03 Insurance ..................................... 45
SECTION 5.04 Obligations and Taxes ......................... 45
SECTION 5.05 Notice of Event of Default, etc. .............. 46
SECTION 5.06 Access to Books and Records ................... 46
SECTION 5.07 Maintenance of Collateral Account ............. 46
SECTION 5.08 Borrowing Base Certificate .................... 46
SECTION 5.09 Collateral Monitoring and Review .............. 46
SECTION 5.10 Business Plan ................................. 47
SECTION 5.11 Restructuring Plan ............................ 47
SECTION 5.12 Valuation of Copperweld ....................... 47
SECTION 5.13 Sale of VP Buildings .......................... 47
SECTION 5.14 Retention of Restructuring Consultants ........ 47
SECTION 5.15 Payment of Litigation Fees and Expenses ....... 47
SECTION 6. NEGATIVE COVENANTS .............................................. 48
SECTION 6.01 Liens ......................................... 48
SECTION 6.02 Merger, etc. .................................. 48
SECTION 6.03 Indebtedness .................................. 48
SECTION 6.04 Capital Expenditures .......................... 48
SECTION 6.05 EBITDA ........................................ 49
SECTION 6.06 Guarantees and Other Liabilities .............. 50
SECTION 6.07 Chapter 11 Claims ............................. 50
SECTION 6.08 Dividends; Capital Stock ...................... 50
SECTION 6.09 Transactions with Affiliates................... 51
SECTION 6.10 Investments, Loans and Advances ............... 51
SECTION 6.11 Disposition of Assets ......................... 51
SECTION 6.12 Nature of Business ............................ 51
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SECTION 6.13 Working Capital Facility .......................51
SECTION 6.14 Liquidity ......................................51
SECTION 7. EVENTS OF DEFAULT ................................................52
SECTION 7.01 Events of Default ..............................52
SECTION 8. THE AGENT AND THE CO-AGENT .......................................55
SECTION 8.01 Administration by Agent; Duties of Agent
and Co-Agent ..................................55
SECTION 8.02 Advances and Payments ..........................56
SECTION 8.03 Sharing of Setoffs and Payments ................56
SECTION 8.04 Agreement of Required Banks ....................57
SECTION 8.05 Liability of Agent and Co-Agent ................57
SECTION 8.06 Reimbursement and Indemnification ..............58
SECTION 8.07 Rights of Agent and Co-Agent ...................58
SECTION 8.08 Independent Banks ..............................58
SECTION 8.09 Notice of Transfer .............................59
SECTION 8.10 Successor Agent; Co-Agent Resignation ..........59
SECTION 9. GUARANTY .........................................................59
SECTION 9.01 Guaranty .......................................59
SECTION 9.02 No Impairment of Guaranty ......................60
SECTION 9.03 Subrogation ....................................61
SECTION 10. MISCELLANEOUS ............................................61
SECTION 10.01 Notices ........................................61
SECTION 10.02 Survival of Agreement, Representations and
Warranties, etc. ..............................61
SECTION 10.03 Successors and Assigns .........................61
SECTION 10.04 Confidentiality ................................64
SECTION 10.05 Expenses .......................................64
SECTION 10.06 Indemnity ......................................65
SECTION 10.07 CHOICE OF LAW ..................................65
SECTION 10.08 No Waiver ......................................65
SECTION 10.09 Extension of Maturity ......................... 65
SECTION 10.10 Amendments, etc. .............................. 65
SECTION 10.11 Severability .................................. 67
SECTION 10.12 Headings ...................................... 67
SECTION 10.13 Execution in Counterparts ..................... 67
SECTION 10.14 Prior Agreements .............................. 67
SECTION 10.15 Further Assurances ............................ 67
SECTION 10.16 WAIVER OF JURY TRIAL .......................... 67
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ANNEX A - Commitment Amounts
EXHIBIT A - Form of Final Order
EXHIBIT B - Form of Security and Pledge Agreement
EXHIBIT C - Form of Opinion of Counsel
EXHIBIT D - Form of Assignment and Acceptance
EXHIBIT E-1 - Form of Borrowing Base Certificate (weekly)
EXHIBIT E-2 - Form of Borrowing Base Certificate (monthly)
SCHEDULE 1.01 - Existing Letters of Credit
SCHEDULE 3.01 - Good Standing Exceptions
SCHEDULE 3.05 - Subsidiaries
SCHEDULE 3.06 - Liens
SCHEDULE 3.07 - Compliance with Law
SCHEDULE 3.10 - Litigation
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REVOLVING CREDIT AND GUARANTY AGREEMENT
Dated as of March 20, 2001
REVOLVING CREDIT AND GUARANTY AGREEMENT, dated as of March 20, 2001,
among THE LTV CORPORATION, a Delaware corporation (the "BORROWER"), a debtor and
debtor-in-possession in a case pending under Chapter 11 of the Bankruptcy Code,
each of the direct or indirect subsidiaries of the Borrower signatory hereto
(each a "GUARANTOR" and collectively, the "GUARANTORS"), each of which
Guarantors referred to in this paragraph is a debtor and debtor-in-possession in
a case pending under Chapter 11 of the Bankruptcy Code (the cases of the
Borrower and the Guarantors, each a "CASE" and collectively, the "CASES"), THE
CHASE MANHATTAN BANK, a New York banking corporation ("CHASE"), each of the
other financial institutions from time to time party hereto (together with
Chase, the "BANKS"), THE CHASE MANHATTAN BANK, as agent (in such capacity, the
"AGENT") for the Banks, and ABBEY NATIONAL TREASURY SERVICES PLC ("ABBEY"), as
co-agent (in such capacity, the "CO-AGENT") for the Banks.
INTRODUCTORY STATEMENT
On December 29, 2000, the Borrower and the Guarantors filed voluntary
petitions with the Bankruptcy Court initiating the Cases and have continued in
the possession of their assets and in the management of their business pursuant
to Sections 1107 and 1108 of the Bankruptcy Code.
The Borrower has applied to the Banks for a revolving credit and letter
of credit facility in an aggregate principal amount not to exceed
$581,868,616.74, all of the Borrower's obligations under which are to be
guaranteed by the Guarantors.
The proceeds of the Loans will be used (x) to repurchase the Existing
Receivables Portfolio, (y) to repurchase the Existing Inventory Portfolio and
(z) for working capital purposes of the Borrower and the Guarantors.
To provide guarantees and security for the repayment of the Loans, the
reimbursement of any draft drawn under a Letter of Credit and the payment of the
other obligations of the Borrower and the Guarantors hereunder and under the
other Loan Documents (including, without limitation, the Obligations of the
Borrower under Section 6.03 (vi)), the Borrower and the Guarantors will provide
to the Agent and the Banks the following (each as more fully described herein):
(a) a guaranty from each of the Guarantors of the due and punctual
payment and performance of the obligations of the Borrower hereunder;
(b) as to the Obligations of the Borrower and the Guarantors, an allowed
administrative expense claim in each of the Cases pursuant to Section 364(c)(1)
of the Bankruptcy Code having priority over all administrative expenses of the
kind specified in Sections 503(b) and 507(b) of the Bankruptcy Code but PARI
PASSU with the other Superpriority Claims referred to in Section 2.23(a)(i)(A)
and (B); and
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(c) as to the Obligations of the Borrower and the Guarantors, perfected
Liens, pursuant to Section 364(c)(2) and Section 364(c)(3) of the Bankruptcy
Code, upon all of the assets and property and the proceeds thereof of the
Borrower and the Guarantors as more fully set forth in Section 2.23 hereof and
on all cash and cash equivalents in the Letter of Credit Account, PROVIDED that
following the Termination Date, amounts in the Letter of Credit Account shall
not be subject to the Carve-Out hereinafter referred to.
All of the claims and the Liens granted hereunder in the Cases to the
Agent and the Banks shall be subject to the Carve-Out to the extent provided in
Section 2.23.
Accordingly, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
SECTION 1.01 DEFINED TERMS.
As used in this Agreement, the following terms shall have the meanings
specified below:
"ABBEY" shall have the meaning set forth in the Introduction.
"ABR BORROWING" shall mean a Borrowing comprised of ABR Loans.
"ABR LOAN" shall mean any Loan bearing interest at a rate determined by
reference to the Alternate Base Rate in accordance with the provisions of
Section 2.
"ADJUSTED LIBOR RATE" shall mean, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to the quotient of (a) the LIBOR
Rate in effect for such Interest Period divided by (b) a percentage (expressed
as a decimal) equal to 100% minus Statutory Reserves. For purposes hereof, the
term "LIBOR RATE" shall mean the rate at which dollar deposits approximately
equal in principal amount to such Eurodollar Borrowing and for a maturity
comparable to such Interest Period are offered to the principal London office of
the Agent in immediately available funds in the London interbank market at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"ADJUSTED NET ELIGIBLE ACCOUNTS RECEIVABLE" shall be equal to (a) Net
Eligible Accounts Receivable minus (b) the Dilution Reserve.
"ADVANCE RATE" shall mean, with respect to each category of Eligible
Inventory (i) 25% with respect to Raw Materials and (ii) 65% with respect to
Steel Products Inventory.
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"AFFILIATE" shall mean, as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such Person. For purposes of this definition, a Person (a
"CONTROLLED PERSON") shall be deemed to be "controlled by" another Person (a
"CONTROLLING PERSON") if the Controlling Person possesses, directly or
indirectly, power to direct or cause the direction of the management and
policies of the Controlled Person whether by contract or otherwise.
"AGENT" shall have the meaning set forth in the Introduction.
"AGREEMENT" shall mean this Revolving Credit and Guaranty Agreement, as
the same may from time to time be further amended, modified or supplemented.
"ALTERNATE BASE RATE" shall mean, for any day, a rate per annum equal to
the greatest of (a) the Prime Rate in effect on such day, (b) the Base CD Rate
in effect on such day plus 1% and (c) the Federal Funds Effective Rate in effect
on such day plus 1/2 of 1%. For purposes hereof, "PRIME RATE" shall mean the
rate of interest per annum publicly announced from time to time by the Agent as
its prime rate in effect at its principal office in New York City; each change
in the Prime Rate shall be effective on the date such change is publicly
announced. "BASE CD RATE" shall mean the sum of (a) the quotient of (i) the
Three-Month Secondary CD Rate divided by (ii) a percentage expressed as a
decimal equal to 100% minus Statutory Reserves and (b) the Assessment Rate.
"THREE-MONTH SECONDARY CD RATE" shall mean, for any day, the secondary market
rate for three-month certificates of deposit reported as being in effect on such
day (or, if such day shall not be a Business Day, the next preceding Business
Day) by the Board through the public information telephone line of the Federal
Reserve Bank of New York (which rate will, under the current practices of the
Board, be published in Federal Reserve Statistical Release H.15(519) during the
week following such day), or, if such rate shall not be so reported on such day
or such next preceding Business Day, the average of the secondary market
quotations for three-month certificates of deposit of major money center banks
in New York City received at approximately 10:00 a.m., New York City time, on
such day (or, if such day shall not be a Business Day, on the next preceding
Business Day) by the Agent from three New York City negotiable certificate of
deposit dealers of recognized standing selected by it. "FEDERAL FUNDS EFFECTIVE
RATE" shall mean, for any day, the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published on the next succeeding Business Day by
the Federal Reserve Bank of New York, or, if such rate is not so published for
any day which is a Business Day, the average of the quotations for the day of
such transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it. If for any reason the Agent shall have
determined (which determination shall be conclusive absent manifest error) that
it is unable to ascertain the Base CD Rate or the Federal Funds Effective Rate
or both for any reason, including the inability or failure of the Agent to
obtain sufficient quotations in accordance with the terms hereof, the Alternate
Base Rate shall be determined without regard to clause (b) or (c), or both, of
the first sentence of this definition, as appropriate, until the circumstances
giving rise to such inability no longer exist. Any change in the Alternate Base
Rate due to a change in the Prime Rate, the Three-Month Secondary CD Rate or the
Federal Funds
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Effective Rate shall be effective on the effective date of such change in the
Prime Rate, the Three-Month Secondary CD Rate or the Federal Funds Effective
Rate, respectively.
"ASSESSMENT RATE" shall mean for any date the annual rate (rounded
upwards, if necessary, to the next 1/100 of 1%) most recently estimated by the
Agent as the then current net annual assessment rate that will be employed in
determining amounts payable by the Agent to the Federal Deposit Insurance
Corporation (or any successor) for insurance by such Corporation (or any
successor) of time deposits made in dollars at the Agent's domestic offices.
"ASSIGNMENT AND ACCEPTANCE" shall mean an assignment and acceptance
entered into by a Bank and an Eligible Assignee, and accepted by the Agent,
substantially in the form of Exhibit D.
"AVAILABLE INVENTORY" shall mean (a) with respect to each category of
Eligible Inventory, an amount equal to the product of (i) the quantity of such
category of Eligible Inventory times (ii) the Inventory Value of such Eligible
Inventory times (iii) the Advance Rate applicable thereto; such product shall
then be reduced by sum of (A) the amount of liabilities or other amounts payable
with respect to such category of Eligible Inventory to Outside Processors or
Third Party Warehousemen, (B) the amount of any claim secured by purchase money
Liens on such category of Eligible Inventory, (C) to the extent the amount is
quantifiable, the amount of any claims secured by any Liens permitted by Section
6.03 on such Collateral as to which an appropriate notice has been filed,
provided, that in the case of any claims secured by a Lien described in
subparagraph (i) or (ii) of the definition of "Permitted Liens" that is being
contested in good faith by appropriate proceedings, only the excess, if any, of
the aggregate amount of such contested claims over $10,000,000 shall be included
in the amount of reduction from Available Inventory under this subclause (C),
and (D) the amount of Eligible Inventory of Georgia Tubing that exceeds
$6,500,000.
"BANKRUPTCY CODE" shall mean The Bankruptcy Reform Act of 1978, as
heretofore and hereafter amended, and codified as 11 U.S.C. Section 101 ET SEQ.
"BANKRUPTCY COURT" shall mean the United States Bankruptcy Court for the
Northern District of Ohio or any other court having jurisdiction over the Cases
from time to time.
"BANKS" shall have the meaning set forth in the Introduction.
"XXXX AND HOLD" shall mean an arrangement in which any Receivables
Entity, at the request of one of its customers contained in a written purchase
order and/or similar writing (including any oral communication that is confirmed
in writing), invoices that customer for goods but retains possession of such
goods for a period of time.
"BOARD" shall mean the Board of Governors of the Federal Reserve System
of the United States.
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"BORROWER" shall have the meaning set forth in the Introduction.
"BORROWING" shall mean the incurrence of Loans of a single Type made
from all the Banks on a single date and having, in the case of Eurodollar Loans,
a single Interest Period (with any ABR Loan made pursuant to Section 2.16 being
considered a part of the related Borrowing of Eurodollar Loans).
"BORROWING BASE" shall mean, on any date, an amount (calculated based on
the most recent weekly Borrowing Base Certificate delivered to the Agent in
accordance with this Agreement) that is equal to the sum of (a) 85% of Adjusted
Net Eligible Accounts Receivable plus (b) Available Inventory plus (c) the
Hennepin Component minus (d) the Carve-Out, provided, that the amount derived
from clause (b) shall not at any time exceed 150% of the amount derived from
clause (a). Borrowing Base standards may be fixed and revised from time to time
by the Agent in its sole discretion in the exercise of its reasonable judgment
(including without limitation, pursuant to any collateral monitoring, review or
appraisal performed pursuant to Section 5.09) with any changes in such standards
to be effective 10 days after delivery of notice thereof to the Borrower.
"BORROWING BASE CERTIFICATE" shall mean a certificate substantially in
the form of Exhibit E-1 and Exhibit E-2 hereto, as applicable (with such changes
therein as may be required by the Agent to reflect the components of and
reserves against the Borrowing Base as provided for hereunder from time to
time), executed and certified by a Financial Officer of the Borrower, which
shall include appropriate exhibits and schedules as referred to therein and as
provided for in Section 5.08.
"BUSINESS DAY" shall mean any day other than a Saturday, Sunday or other
day on which banks in the State of New York or London, England are required or
permitted to close (and, for a Letter of Credit, other than a day on which the
Fronting Bank issuing such Letter of Credit is closed); PROVIDED, HOWEVER, that
when used in connection with a Eurodollar Loan, the term "Business Day" shall
also exclude any day on which banks are not open for dealings in dollar deposits
on the London interbank market.
"CAPITAL EXPENDITURES" shall mean, for any period, the aggregate of all
expenditures (whether paid in cash and not theretofore accrued subsequent to
January 1, 2001 or accrued as liabilities during such period and including that
portion of any post-petition Capitalized Lease which is capitalized on the
consolidated balance sheet of the Borrower and the Guarantors) net of cash
amounts received by the Borrower and the Guarantors from other Persons during
such period in reimbursement of Capital Expenditures made by the Borrower and
the Guarantors, excluding interest capitalized during construction, made by the
Borrower and the Guarantors during such period that, in conformity with GAAP,
are required to be included in or reflected by the property, plant, equipment or
similar fixed asset accounts reflected in the consolidated balance sheet of the
Borrower and the Guarantors (including equipment which is purchased
simultaneously with the trade-in of existing equipment owned by the Borrower or
any of the Guarantors to the extent of the gross amount of such purchase price
less the book value of the equipment being traded in at such time), but
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excluding expenditures made in connection with the replacement or restoration of
assets to the extent reimbursed or financed from (x) insurance proceeds paid on
account of the loss of or the damage to the assets being replaced or restored or
(y) awards of compensation arising from the taking by condemnation or eminent
domain of such assets being replaced.
"CAPITALIZED LEASE" shall mean, as applied to any Person, any lease of
property by such Person as lessee which would be capitalized on a balance sheet
of such Person prepared in accordance with GAAP.
"CARVE-OUT" shall have the meaning set forth in Section 2.23.
"CASES" shall have the meaning set forth in the Introduction.
"CHANGE OF CONTROL" shall mean (i) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person or group
(within the meaning of the Securities Exchange Act of 1934 and the rules of the
Securities and Exchange Commission thereunder as in effect on the date hereof),
of shares representing more than 50% of the aggregate ordinary voting power
represented by the issued and outstanding capital stock of the Borrower; or (ii)
the occupation of a majority of the seats (other than vacant seats) on the Board
of Directors of the Borrower by Persons who were neither (A) nominated by the
Board of Directors of the Borrower nor (B) appointed by directors so nominated.
"CHASE" shall have the meaning set forth in the Introduction.
"CHASE SECURITIES INC." shall mean XX Xxxxxx, a division of Chase
Securities Inc.
"CLOSING DATE" shall mean the date on which this Agreement has been
executed and the conditions precedent to the making of the initial Loans set
forth in Section 4.01 have been satisfied or waived, which date shall occur
promptly upon entry of the Final Order, but not later than April 10, 2001.
"CO-AGENT" shall have the meaning set forth in the Introduction.
"CODE" shall mean the Internal Revenue Code of 1986, as amended.
"COLLATERAL" shall mean the "Collateral" as defined in the Security and
Pledge Agreement.
"COLLECTION PERIOD" shall mean each fiscal month of the Receivables
Entities.
"COLLECTIONS" shall mean, with respect to any Receivable or all of the
Receivables, as the case may be, all cash collections and other cash proceeds of
such Receivable or Receivables, including all cash proceeds of Related Security
with respect to such Receivable or Receivables.
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"CONSOLIDATED AFFILIATE" shall mean, with respect to any Receivables
Entity, any Affiliate of such Receivables Entity whose financial statements are,
or should be in accordance with GAAP, consolidated with the financial statements
of such Receivable Entity.
"COMMITMENT" shall mean, with respect to each Bank, the commitment of
each Bank hereunder in the amount set forth opposite its name on Annex A hereto
or as may subsequently be set forth in the Register from time to time, as the
same may be reduced from time to time pursuant to this Agreement.
"COMMITMENT FEE" shall have the meaning set forth in Section 2.20.
"COMMITMENT PERCENTAGE" shall mean at any time, with respect to each
Bank, the percentage obtained by dividing its Commitment at such time by the
Total Commitment at such time.
"CONSUMMATION DATE" shall mean the date of the substantial consummation
(as defined in Section 1101 of the Bankruptcy Code and which for purposes of
this Agreement shall be no later than the effective date) of a Reorganization
Plan that is confirmed pursuant to an order of the Bankruptcy Court.
"COPPERWELD" shall mean, collectively, Copperweld Corporation, a
Delaware corporation and all of its domestic Subsidiaries and Welded Tube Co. of
America.
"COPPERWELD TERM LOAN" shall mean the obligations created pursuant to
(i) that certain Credit Agreement dated as of November 10, 1999, as amended,
among the Borrower and certain lenders with Credit Suisse First Boston as agent,
(ii) all related loan documents, security agreements, mortgages, and ancillary
agreements, and (iii) the Copperweld Stipulation.
"COPPERWELD STIPULATION" shall have the meaning set forth in Section
2.23.
"DILUTION FACTORS" shall mean, with respect to any period, the aggregate
amount of all gross credit memos, returns, adjustments, allowances, Write-Offs
and other non-cash credits (excluding set-offs of pre-petition obligations)
recorded as reductions of Accounts Receivable by any Receivables Entity.
"DILUTION RATIO" shall mean, at any date, the amount (expressed as a
percentage) equal to (a) the aggregate amount of the applicable Dilution Factors
for the 3 most recently ended fiscal months divided by (b) total gross sales for
the 3 most recently ended fiscal months.
"DILUTION RESERVE" shall mean, at any date, the applicable Dilution
Ratio multiplied by the Net Eligible Accounts Receivable on such date.
"DOLLARS" AND "$" shall mean lawful money of the United States of
America.
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"EBITDA" shall mean, for any period, all as determined in accordance
with GAAP, the consolidated net income (or net loss) of the Borrower and its
Subsidiaries for such period (excluding the net income (or net loss) of Trico
Steel Company, L.L.C. for such period), PLUS (a) the sum of (i) depreciation
expense, (ii) amortization expense, (iii) other non-cash expenses, (iv) net
total Federal, state and local income tax expense, (v) gross interest expense
for such period less gross interest income for such period, (vi) extraordinary
losses, (vii) any non-recurring charge or restructuring charge which, in
accordance with GAAP, has been deducted in the calculation of net income, (viii)
the cumulative effect of any change in accounting principles and (ix) "Chapter
11 expenses" (or "administrative costs reflecting Chapter 11 expenses") as shown
on the Borrower's consolidated statement of income for such period less (b)
extraordinary gains PLUS or MINUS (c) the amount of cash received or expended in
such period in respect of any amount which, under clause (vii) above, was taken
into account in determining EBITDA for such or any prior period.
"ELIGIBLE ACCOUNTS RECEIVABLE" shall mean, at any time, a Receivable
which satisfies the following criteria:
(a) such Receivable is (i) denominated in U.S. Dollars, (ii)
non-interest bearing, and (iii) owed by an Eligible Obligor;
(b) such Receivable is in compliance with all applicable laws, rules and
regulations;
(c) such Receivable represents a bona fide obligation resulting from a
sale of goods which have been shipped or delivered or invoiced (and is not
shipped on a Xxxx and Hold basis) or services which have been performed, and
constitutes the legally valid, binding and enforceable obligation of the
applicable Obligor in accordance with its terms;
(d) such Receivable arose from the sale of merchandise or services in
the ordinary course of the respective Receivables Entities' business;
(e) such Receivable is not subject to any asserted reduction,
cancellation, refund or rebate or to any dispute, offset, counterclaim, Lien
(other than Liens created under the Loan Documents or that is junior to the
Liens created under the Loan Documents) or other defense, provided that the
Outstanding Balance of any such Receivable which is otherwise eligible and is
subject only in part to any of the foregoing shall be eligible to the extent not
subject to any such reduction, cancellation, refund, rebate, dispute, offset,
counterclaim, Lien or other defense;
(f) the assignment of such Receivable does not require the consent of
the Obligor or any other Person other than any such consent which has been
previously obtained or the requirement to obtain which is rendered ineffective
by Section 9-318 of the UCC;
(g) such Receivable was created in accordance with and otherwise
complies with all applicable requirements of the credit and collection policy of
the applicable Receivables Entity;
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(h) such Receivable is an "account" (and not chattel paper, a general
intangible or a Receivable Note or other instrument) within the meaning of the
UCC;
(i) such Receivable is subject to a perfected first priority Lien in
favor of the Agent;
(j) such Obligor is not the subject of a voluntary or involuntary
insolvency proceeding under the Bankruptcy Code, unless the Receivable arises
subsequent to a decree or order for relief with respect to such Obligor under
the Bankruptcy Code and the Required Banks have approved inclusion of such
Obligor's Receivables in Eligible Receivables;
(k) such Receivable is not a Write-Off;
(l) such Receivable does not have extended terms of greater than 90
days;
(m) such Receivable does not represent a bona fide obligation resulting
from a sale of goods which have been shipped or delivered or invoiced on a cash
on delivery basis;
(n) such Receivable has not aged more than 90 days past its invoice
date;
(o) without limiting the foregoing, in determining the aggregate amount
of Receivables from the same Obligor and any Affiliates thereof that are unpaid
more than 90 days from the invoice date, there shall be excluded the amount of
any net credit balance due and owing to the Obligor in respect of Receivables
that are so unpaid; and
(p) the Obligor (i) has not (or has not asserted a right of) setoff
against the Borrower or any Guarantor or (ii) has not disputed its liability
(whether by chargeback or otherwise) or made any claim with respect to such
Receivables Entity which has not been resolved, in each case without
duplication, to the extent of the amount owed by such Receivables Entity to the
Obligor, the amount of such actual or asserted right of setoff, or the amount of
such dispute or claim as the case may be.
"ELIGIBLE ASSIGNEE" shall mean (i) a commercial bank having total assets
in excess of $1,000,000,000; (ii) a finance company, insurance company or other
financial institution or fund, in each case reasonably acceptable to the Agent,
which in the ordinary course of business extends credit of the type contemplated
herein and has total assets in excess of $200,000,000 and whose becoming an
assignee would not constitute a prohibited transaction under Section 4975 of
ERISA; and (iii) any other financial institution satisfactory to the Borrower
and the Agent.
"ELIGIBLE INVENTORY" shall mean all Inventory which is not Ineligible
Inventory minus (i) the Shrink Reserve and (ii) the Seconds Reserve.
"ELIGIBLE OBLIGOR" shall mean each Obligor that satisfies the following
criteria:
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(a) it is not a Governmental Authority;
(b) it is not a Consolidated Affiliate of any Receivables Entity;
(c) no more than 50% of the aggregate Receivables owed by such Obligor
and its Affiliates were (for reasons other than disputes) aged more than 90 days
past their respective invoice dates;
(d) none of the past due Receivables owed by such Obligor have been
evidenced by Receivable Notes; and
(e) it is not a Foreign Obligor.
"EMERGENCY MOTION" shall have the meaning set forth in Section 4.01(e).
"ENVIRONMENTAL LIEN" shall mean a Lien in favor of any Governmental
Authority for (i) any liability under federal or state environmental laws or
regulations, or (ii) damages arising from or costs incurred by such Governmental
Authority in response to a release or threatened release of a hazardous or toxic
waste, substance or constituent, or other substance into the environment.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"ERISA AFFILIATE" shall mean any trade or business (whether or not
incorporated) which is a member of a group of which the Borrower is a member and
which is under common control within the meaning of Section 414(b) or (c) of the
Code and the regulations promulgated and rulings issued thereunder.
"EUROCURRENCY LIABILITIES" shall have the meaning assigned thereto in
Regulation D issued by the Board, as in effect from time to time.
"EURODOLLAR BORROWING" shall mean a Borrowing comprised of Eurodollar
Loans.
"EURODOLLAR LOAN" shall mean any Loan bearing interest at a rate
determined by reference to the Adjusted LIBOR Rate in accordance with the
provisions of Section 2.
"EVENT OF DEFAULT" shall have the meaning given such term in Section 7.
"EXCESS CONCENTRATION BALANCES" shall mean for any Obligor and its
Consolidated Affiliates, the aggregate outstanding balances of Eligible Accounts
Receivables due from such Obligor and, without duplication, its Consolidated
Affiliates which, expressed as a percentage of the aggregate outstanding
balances of all Eligible Receivables, exceeds the following percentages for the
following Obligors:
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(a) 20% for any Tier-1 Obligor;
(b) 15% for any Tier-2 Obligor
(c) 7.5% for any Tier-3 Obligor;
(d) 5% for any Tier-4 Obligor; and
(e) 3% for any Tier-5 Obligor.
"EXISTING INVENTORY FACILITY" shall mean, collectively, the loans
outstanding under (i) that certain Trust Agreement dated as of February 26, 1998
(as heretofore amended) between Steel Products and The Chase Manhattan Bank as
Collateral Agent and (ii) that certain Note Purchase and Letter of Credit
Agreement dated as of February 26, 1998 (as heretofore amended) among LTV Steel,
the Lenders named therein, Chase Securities Inc., as Placement Agent, and The
Chase Manhattan Bank as the Administrative Agent and as Collateral Agent.
"EXISTING INVENTORY PORTFOLIO" shall mean (i) the portfolio of
prepetition Inventory previously sold to Steel Products as reflected on its
books and records pursuant to the Existing Inventory Facility, in existence on
the Filing Date and remaining in existence on the Closing Date and (ii) the
replacement liens and other interests of the lenders under the Existing
Inventory Facility in the Inventory of the Sellers (as defined in the Existing
Inventory Facility) arising on or after the Filing Date through and including
the Closing Date pursuant to the Interim Order.
"EXISTING LETTERS OF CREDIT" shall mean the letters of credit issued
pursuant to the Existing Inventory Facility and the Existing Receivables
Facility and set forth on Schedule 1.01 hereto.
"EXISTING RECEIVABLES FACILITY" shall mean the loans outstanding under
that certain Revolving Credit Agreement dated as of October 12, 1994 (as
heretofore amended) among Sales Finance, the Lenders party thereto, the Issuing
Bank named therein, and The Chase Manhattan Bank as Facility Agent and as
Collateral Agent.
"EXISTING RECEIVABLES PORTFOLIO" shall mean (i) the portfolio of
prepetition Receivables previously sold to Sales Finance as reflected on its
books and records pursuant to the Existing Receivables Facility, in existence on
the Filing Date and remaining in existence on the Closing Date and (ii) the
replacement liens and other interests of the lenders under the Existing
Receivables Facility in the Receivables of the Sellers (as defined in the
Existing Receivables Facility) arising on or after the Filing Date through and
including the Closing Date pursuant to the Interim Order.
"FEES" shall collectively mean the Commitment Fees, Letter of Credit
Fees and other fees referred to in Sections 2.19, 2.20 and 2.21.
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"FILING DATE" shall mean December 29, 2000.
"FINAL ORDER" shall have the meaning given such term in Section 4.01(b).
"FINANCIAL OFFICER" shall mean the Chief Financial Officer, Controller,
Treasurer or Assistant Treasurer of the Borrower.
"FOREIGN OBLIGOR" shall mean any Obligor that is not a resident of a
state of the United States of America, the District of Columbia, the
Commonwealth of Puerto Rico or a Province of Canada (excluding Quebec,
Newfoundland, Nova Scotia, New Brunswick or Xxxxxx Xxxxxx Island).
"FRONTING BANK" shall mean Chase (or any of its banking affiliates) or
such other Bank (which other Bank shall be reasonably satisfactory to the
Borrower) as may agree with Chase to act in such capacity.
"GAAP" shall mean generally accepted accounting principles in the United
States of America applied in accordance with Section 1.02.
"GEORGIA TUBING" shall mean Georgia Tubing Corporation, a Delaware
corporation.
"GOVERNMENTAL AUTHORITY" shall mean any Federal, state, municipal or
other governmental department, commission, board, bureau, agency or
instrumentality or any court, in each case whether of the United States or
foreign.
"GUARANTOR" shall have the meaning set forth in the Introduction.
"HENNEPIN COMPONENT" shall mean the lesser of (i) $28,500,000 and (ii)
the appraised value of the Borrower's "Hennepin Works", until such time as the
Borrower shall have sold or otherwise disposed of the "Hennepin Works".
"HENNEPIN WORKS" shall mean the real property, fixtures and equipment
commonly known as the "Hennepin Works".
"INDEBTEDNESS" shall mean, at any time and with respect to any Person,
(i) all indebtedness of such Person for borrowed money, (ii) all indebtedness of
such Person for the deferred purchase price of property or services (other than
property, including inventory and services purchased, and expense accruals and
deferred compensation items arising, in the ordinary course of business), (iii)
all obligations of such Person evidenced by notes, bonds, debentures or other
similar instruments (other than performance, surety and appeal bonds arising in
the ordinary course of business), (iv) all indebtedness of such Person created
or arising under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and remedies
of the seller or lender under such agreement in the event of default may be
limited to repossession or sale of such property), (v) all obligations of such
Person under Capitalized Leases,
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(vi) all reimbursement, payment or similar obligations of such Person,
contingent or otherwise, under acceptance, letter of credit or similar
facilities and all obligations of such Person in respect of (x) currency swap
agreements, currency future or option contracts and other similar agreements
designed to hedge against fluctuations in foreign interest rates and (y)
interest rate swap, cap or collar agreements and interest rate future or option
contracts, (vii) all Indebtedness referred to in clauses (i) through (vi) above
guaranteed directly or indirectly by such Person, or in effect guaranteed
directly or indirectly by such Person through an agreement (A) to pay or
purchase such Indebtedness or to advance or supply funds for the payment or
purchase of such Indebtedness, (B) to purchase, sell or lease (as lessee or
lessor) property, or to purchase or sell services, primarily for the purpose of
enabling the debtor to make payment of such Indebtedness or to assure the holder
of such Indebtedness against loss in respect of such Indebtedness, (C) to supply
funds to or in any other manner invest in the debtor (including any agreement to
pay for property or services irrespective of whether such property is received
or such services are rendered) or (D) otherwise to assure a creditor against
loss in respect of such Indebtedness, and (viii) all Indebtedness referred to in
clauses (i) through (vii) above secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any Lien upon or in property (including, without limitation, accounts and
contract rights) owned by such Person, even though such Person has not assumed
or become liable for the payment of such Indebtedness.
"INELIGIBLE INVENTORY" shall mean all Inventory that:
(a) is not owned solely by an Inventory Entity, or is on consignment or
as to which such Inventory Entity does not have good, valid and marketable title
thereto;
(b) is not located at or in transit to property that is either (i) owned
or leased by an Inventory Entity; provided that with respect to any Leased
Premises, such Inventory Entity shall have delivered (either directly or through
assignment to the Agent) an access agreement in form and substance satisfactory
to the Agent executed by the lessor of such property, (ii) owned or leased by a
Third-Party Warehouseman holding more than $500,000 in Inventory that has
contracted with such Inventory Entity to store Inventory on such Third-Party
Warehouseman's property (it being agreed that those access agreements previously
delivered to the Agent are satisfactory); provided that such Inventory Entity
shall have delivered (either directly or through assignment) to the Agent an
access agreement in form and substance satisfactory to the Agent executed by
such Third-Party Warehouseman; provided, further, that the aggregate number of
locations described in clauses (i) and (ii) with respect to which such access
agreements have been executed shall not exceed 60; or (iii) owned or leased by
an Outside Processor holding more than $500,000 in Inventory, provided that such
Inventory Entity shall have delivered (either directly or through assignment) to
the Agent an access agreement executed by such Outside Processor (it being
agreed that those access agreements previously delivered to the Agent are
satisfactory); provided, further, that the aggregate number of locations
described in this clause (iii) with respect to which such access agreements have
been executed shall not exceed 60;
(c) is not subject to a perfected first priority Lien in favor of the
Agent;
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(d) is not located in the United States;
(e) is on hand for more than 6 months since it was last processed
according to the accounting policies of the respective Inventory Entity (other
than Inventory that is Raw Materials that, in accordance with such accounting
policies, is not aged); provided, however, that the scrap value of such
Inventory, as maintained at the plant level, shall not constitute "Ineligible
Inventory" by reason of this clause (e);
(f) consists of stores and supplies as determined in accordance with the
accounting policies of the respective Inventory Entity;
(g) is classified under the heading "other" in accordance with the
accounting policies of the respective Inventory Entity, provided that alloys,
fuel oil, fluxes, coke by-products and scrap shall not constitute "Ineligible
Inventory" by reason of this clause (g);
(h) is iron ore located at Empire Iron Mining Partnership;
(i) constitutes Raw Materials, but only to the extent the Inventory
Value of such Raw Materials exceeds 50% of the Inventory Value of all Inventory;
or
(j) is subject to a Negotiable Document of Title, unless such Negotiable
Document of Title has been delivered to the Agent and the Agent, in its sole
discretion, has determined that it has the security interest in such Inventory
intended to be granted under the Loan Documents with respect to Eligible
Inventory.
"INSUFFICIENCY" shall mean, with respect to any Plan, the amount, if
any, of its unfunded benefit liabilities within the meaning of Section
4001(a)(18) of ERISA.
"INTERCREDITOR AGREEMENT" shall mean that certain Intercreditor
Agreement dated as of April 2, 2001 among the Agent and Ableco Finance LLC, as
the same may from time to time be amended, modified or supplement.
"INTEREST PAYMENT DATE" shall mean (i) as to any Eurodollar Loan, the
last day of each consecutive 30 day period running from the commencement of the
applicable Interest Period, and (ii) as to all ABR Loans, the last calendar day
of each month and the date on which any ABR Loans are refinanced with Eurodollar
Loans pursuant to Section 2.12.
"INTEREST PERIOD" shall mean, as to any Borrowing of Eurodollar Loans,
the period commencing on the date of such Borrowing (including as a result of a
refinancing of ABR Loans) or on the last day of the preceding Interest Period
applicable to such Borrowing and ending on the numerically corresponding day (or
if there is no corresponding day, the last day) in the calendar month that is
one or three months thereafter, as the Borrower may elect in the related notice
delivered pursuant to Sections 2.06(b) or 2.12; PROVIDED, HOWEVER, that (i) if
any Interest Period would end on
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a day which shall not be a Business Day, such Interest Period shall be extended
to the next succeeding Business Day unless such next succeeding Business Day
would fall in the next calendar month, in which case such Interest Period shall
end on the next preceding Business Day, and (ii) no Interest Period shall end
later than the Termination Date.
"INTERIM ORDER" shall mean the Interim Order (i) Authorizing Debtors to
Obtain Post- Petition Financing or Use of Cash Collateral Pursuant to 11 U.S.C.
Sections 105, 361, 362, 363, 364(c)(1), 364(c)(2), 364(c)(3) and 507(b) and (II)
Granting Adequate Protection to Prepetition Parties entered on December 29,
2000.
"INVENTORY" shall mean all inventory of the Inventory Entities in all of
its forms, including, but not limited to:
(a) all goods held for sale or lease to be furnished under contracts of
service, purchase orders or otherwise or so leased;
(b) all Raw Materials, work-in-progress, semi-finished or finished
goods, and materials used or to be consumed in the manufacture, packing,
shipping, advertising, selling, leasing, furnishing or production of such
inventory or otherwise to be used or to be consumed in the respective Inventory
Entity's businesses;
(c) goods in which the any Inventory Entity has an interest in mass or a
joint or other interest or right of any kind; and
(d) goods which are returned to or repossessed by any Inventory Entity
and all additions and accessions thereto and replacements thereof.
"INVENTORY ENTITIES" shall mean LTV Steel and Georgia Tubing.
"INVENTORY VALUE" shall mean the lesser of (a) the per unit cost
(excluding, to the extent included in such cost, the amount of any intercompany
profit, fresh start valuation adjustment and iron ore transportation costs) of
such category of Eligible Inventory or (b) the per unit Published Value of such
category of Eligible Inventory (provided that if no such Published Value is
available, the per unit Published Value of such category of Eligible Inventory
shall be deemed to be higher than the per unit cost of such category of Eligible
Inventory).
"INVESTMENTS" shall have the meaning given such term in Section 6.10.
"LEASED PREMISES" shall mean any premises on which Inventory is located,
or to which it is in transit, in which the any Inventory Entity has a leasehold
interest rather than a fee interest.
"LETTER OF CREDIT" shall mean any irrevocable letter of credit issued
pursuant to Section 2.03, which letter of credit shall be (i) a standby letter
of credit, (ii) issued for the renewal
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or replacement of the Existing Letters of Credit, and following the increase in
the sublimit for Letters of Credit provided for in Section 2.03(a)(i), issued
for purposes that are consistent with the ordinary course of business of the
Borrower or any Affiliate, or for such other purposes as are reasonably
acceptable to the Agent, (iii) denominated in Dollars and (iv) otherwise in such
form as may be reasonably approved from time to time by the Agent and the
applicable Fronting Bank. For the purposes of this definition, the Existing
Letters of Credit which are outstanding on the Closing Date shall be deemed for
all purposes to be Letters of Credit issued pursuant to Section 2.03(a) hereof.
"LETTER OF CREDIT ACCOUNT" shall mean the account established by the
Borrower under the sole and exclusive control of the Agent maintained at the
office of the Agent at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 designated as
"The LTV Corporation Letter of Credit Account" that shall be used solely for the
purposes set forth in Sections 2.03(b) and 2.13.
"LETTER OF CREDIT FEES" shall mean the fees payable in respect of
Letters of Credit pursuant to Section 2.21.
"LETTER OF CREDIT OUTSTANDINGS" shall mean, at any time, the sum of (i)
the aggregate undrawn stated amount of all Letters of Credit then outstanding
PLUS (ii) all amounts theretofore drawn under Letters of Credit and not then
reimbursed.
"LIEN" shall mean any mortgage, pledge, security interest, encumbrance,
lien or similar charge of any kind whatsoever (including any conditional sale or
other title retention agreement or any lease in the nature thereof).
"LITIGATION FEES AND EXPENSES" shall have the meaning given such term in
Section 5.15.
"LOAN" shall have the meaning given such term in Section 2.01.
"LOAN DOCUMENT EXPENSES" shall have the meaning such term in Section
10.05.
"LOAN DOCUMENTS" shall mean this Agreement, the Letters of Credit, the
Security and Pledge Agreement, the Intercreditor Agreement and any other
instrument or agreement executed and delivered to the Agent or any Bank in
connection herewith.
"LTV STEEL" shall mean LTV Steel Company, Inc., a New Jersey
corporation.
"MATURITY DATE" shall mean June 30, 2002.
"MULTIEMPLOYER PLAN" shall mean a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate is
making or accruing an obligation to make contributions, or has within any of the
preceding five plan years made or accrued an obligation to make contributions.
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"MULTIPLE EMPLOYER PLAN" shall mean a Single Employer Plan, which (i) is
maintained for employees of the Borrower or an ERISA Affiliate and at least one
Person other than the Borrower and its ERISA Affiliates or (ii) was so
maintained and in respect of which the Borrower or an ERISA Affiliate could have
liability under Section 4064 or 4069 of ERISA in the event such Plan has been or
were to be terminated.
"NEGOTIABLE DOCUMENTS OF TITLE" shall mean any "xxxx of lading",
"warehouse receipt" or other "documents of title" which is in "negotiable" form,
as each such term is defined under the UCC of the applicable jurisdiction
required to perfect a security interest in any Inventory represented by such
documents and meeting all other requirements under the UCC to achieve such
perfection under such applicable law (including, without limitation, containing
all required endorsements and including a full set of documents when required).
"NET CASH PROCEEDS" shall mean (i) with respect to any sale or other
disposition of assets or properties by any Person, the amount of cash received
(directly or indirectly) from time to time by or on behalf of such Person or any
of its Subsidiaries, in connection therewith, after deducting therefrom (A)
reasonable expenses related thereto incurred by such Person in connection
therewith, (B) transfer taxes paid by such Person in connection therewith, (C)
amounts required to be paid in cash on account of liabilties directly
attributable to the sale (provided such amounts are not Pre- Petition Payments)
and (D) any net income taxes to be paid to any taxing authority in connection
with such sale or other disposition (after taking into account any tax credits
or deductions and any tax sharing arrangements) and (ii) with respect to the
issuance or incurrence of any Indebtedness by any Person, or the sale or
issuance by any Person of any shares of its capital stock, the aggregate amount
of cash received (directly or indirectly) from time to time by or on behalf of
such Person or any of its Subsidiaries in connection therewith, after deducting
therefrom only reasonable brokerage commissions, underwriting fees and
discounts, legal fees and similar fees and commissions.
"NET ELIGIBLE ACCOUNTS RECEIVABLE" shall mean Eligible Accounts
Receivable minus the Excess Concentration Balances for each Obligor and its
Affiliates.
"OBLIGATIONS" shall mean (a) the due and punctual payment of principal
of and interest on the Loans and the reimbursement of all amounts drawn under
Letters of Credit, (b) the due and punctual payment of the Fees and all other
present and future, fixed or contingent, monetary obligations of the Borrower
and the Guarantors to the Banks and the Agent under the Loan Documents, (c) the
due and punctual payment of Loan Document Expenses and the Litigation Fees and
Expenses and (d) the due and punctual payment of Indebtedness permitted by
6.03(vi).
"OBLIGOR" shall mean any Person designated to make payments in respect
of a Receivable.
"OTHER TAXES" shall have the meaning given such term in Section 2.18.
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"OUTSIDE PROCESSOR" shall mean any Person, other than an Inventory
Entity or its Affiliates, who provides processing services with respect to Raw
Materials or other Inventory owned by an Inventory Entity.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or any
successor agency or entity performing substantially the same functions.
"PENSION PLAN" shall mean a defined benefit pension or retirement plan
which meets and is subject to the requirements of Section 401(a) of the Code.
"PERMITTED INVESTMENTS" shall mean, in each case, as permitted by
Section 345 of the Bankruptcy Code or pursuant to orders entered by the
Bankruptcy Court:
(a) direct obligations of, or obligations the principal of and interest
on which are unconditionally guaranteed by, the United States of America (or by
any agency thereof to the extent such obligations are backed by the full faith
and credit of the United States of America), in each case maturing within twelve
months from the date of acquisition thereof;
(b) without limiting the provisions of paragraph (d) below, investments
in commercial paper maturing within 270 days from the date of acquisition
thereof and having, at such date of acquisition, a rating of at least "A-2" or
the equivalent thereof from Standard & Poor's Corporation or of at least "P-2"
or the equivalent thereof from Xxxxx'x Investors Service, Inc.;
(c) investments in certificates of deposit, banker's acceptances and
time deposits (including Eurodollar time deposits) maturing within one year from
the date of acquisition thereof issued or guaranteed by or placed with (i) any
domestic office of the Agent or the bank with whom the Borrower and the
Guarantors maintain their cash management system, provided, that if such bank is
not a Bank hereunder, such bank shall have entered into an agreement with the
Agent pursuant to which such bank shall have waived all rights of setoff and
confirmed that such bank does not have, nor shall it claim, a security interest
therein or (ii) any domestic office of any other commercial bank of recognized
standing organized under the laws of the United States of America or any State
thereof that has a combined capital and surplus and undivided profits of not
less than $250,000,000 and is the principal banking Subsidiary of a bank holding
company having a long-term unsecured debt rating of at least "A-2" or the
equivalent thereof from Standard & Poor's Corporation or at least "P-2" or the
equivalent thereof from Xxxxx'x Investors Service, Inc.;
(d) investments in commercial paper maturing within six months from the
date of acquisition thereof and issued by (i) the holding company of the Agent
or (ii) the holding company of any other commercial bank of recognized standing
organized under the laws of the United States of America or any State thereof
that has (A) a combined capital and surplus in excess of $250,000,000 and (B)
commercial paper rated at least "A-2" or the equivalent thereof from Standard &
Poor's Corporation or of at least "P-2" or the equivalent thereof from Xxxxx'x
Investors Service, Inc.;
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(e) investments in repurchase obligations with a term of not more
than seven days for underlying securities of the types described in clause (a)
above entered into with any office of a bank or trust company meeting the
qualifications specified in clause (c) above;
(f) investment in money market funds (i) registered under the
Investment Company Act of 1940, as amended, (ii) in compliance with Investment
Company Act Rule 2a-7, (iii) having net assets of at least $200,000,000 and (iv)
that are valued at daily maturity in calculating total portfolio average
maturity;
(g) other short term investments for foreign Subsidiaries in
accordance with normal investing practices for cash management in investments of
a type analogous to the foregoing; and
(h) to the extent owned on the Filing Date, investments by the
Borrower or any Guarantor in the capital stock of any direct or indirect
Subsidiary.
"PERMITTED LIENS" shall mean (i) Liens imposed by law (other than
Environmental Liens) for taxes, assessments or charges of any Governmental
Authority for claims not more than 60 days past due or which are being contested
in good faith by appropriate proceedings and with respect to which adequate
reserves or other appropriate provisions are being maintained in accordance with
GAAP; (ii) Liens of landlords and Liens of carriers, warehousemen, mechanics,
materialmen and other Liens (other than Environmental Liens) in existence on the
Filing Date or thereafter imposed by law and created in the ordinary course of
business; (iii) Liens incurred or deposits made in the ordinary course of
business (including, without limitation, surety bonds and appeal bonds) in
connection with workers' compensation, unemployment insurance and other types of
social security benefits; (iv) deposits not in excess of $40,000,000 to secure
the performance of tenders, bids, leases, contracts (other than for the
repayment of Indebtedness), statutory or regulatory obligations and other
similar obligations or arising as a result of progress payments under government
contracts; (v) easements (including, without limitation, reciprocal easement
agreements and utility agreements), rights-of-way, covenants, consents,
reservations, encroachments, variations and zoning and other restrictions,
charges or encumbrances (whether or not recorded) and interest of ground
lessors, which do not interfere materially with the ordinary conduct of the
business of the Borrower or any Guarantor, as the case may be, and which do not
materially detract from the value of the property to which they attach or
materially impair the use thereof to the Borrower or any Guarantor, as the case
may be; (vi) purchase money Liens (including Capitalized Leases) upon or in any
property acquired or held in the ordinary course of business to secure the
purchase price of such property or to secure Indebtedness permitted by Section
6.03(iv) solely for the purpose of financing the acquisition of such property;
(vii) any valid and perfected Liens securing the Copperweld Term Loan in
existence on the Filing Date or granted pursuant to the Copperweld Stipulation;
(viii) any Lien imposed under ERISA that is junior to the Liens in favor of the
Agent hereunder and under the Final Order; (ix) Junior Contribution Liens
provided for in the Final Order, or any stipulation modifying the Final Order;
and (x) extensions, renewals or replacements of any Lien referred to in
paragraphs (i) through (ix) above,
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PROVIDED that the principal amount of the obligation secured thereby is not
increased and that any such extension, renewal or replacement is limited to the
property originally encumbered thereby.
"PERSON" shall mean any natural person, corporation, division of a
corporation, partnership, trust, joint venture, association, company, estate,
unincorporated organization or government or any agency or political subdivision
thereof.
"PLAN" shall mean a Single Employer Plan or a Multiemployer Plan.
"PRE-PETITION PAYMENT" shall mean a payment (by way of adequate
protection or otherwise) of principal or interest or otherwise on account of any
pre-petition Indebtedness or trade payables or other pre-petition claims against
the Borrower or any Guarantor (it being understood and agreed that neither (x)
cure amounts that are paid by the Borrower or the Guarantors as a condition to
the assumption of unexpired leases of real or personal property or other
executory contracts nor (y) amounts that are set off by pre-petition Obligors of
the Borrower or the Guarantors from pre-petition amounts owing by such Obligors
to the Borrower or the Guarantors on account of the Borrower's or the
Guarantors' pre-petition obligations to them nor (z) amounts that are paid
pursuant to the Copperweld Stipulation, shall be deemed to be Pre-petition
Payments).
"PUBLISHED VALUE" shall mean the current price of Inventory, as
published by a recognized, third-party source which except as noted otherwise in
the Loan Documents is Preston Publishing or, if Preston Publishing is not
available, is approved in writing by the applicable Inventory Entity, the Agent
and the Required Banks.
"RAW MATERIALS" shall mean any raw materials used or consumed in the
manufacture, packing, shipping, advertising, selling, leasing, furnishing or
production of other inventory including, without limitation, iron-bearing coarse
or pelletized ore and sinter, coke, coal and other alloys and fluxes, but
excluding steel scrap and iron scrap (it being understood that steel scrap and
iron scrap shall be included in Inventory not constituting "Raw Materials").
"RECEIVABLE" shall mean all indebtedness of an Obligor (whether
constituting an account, chattel paper or a general intangible) arising from the
sale of goods, merchandise or the furnishing of services by a Receivables
Entity, including all interest or finance charges and other obligations of such
Obligor with respect thereto, but excluding in any event any such indebtedness
which (a) is not denominated in U.S. Dollars, (b) results from the sale of any
plant, property or equipment or (c) results from the sale of any oil, gas, coal
or mineral interest (other than sales of Inventory in the ordinary course of
business).
"RECEIVABLES ENTITIES" shall mean LTV Steel, Georgia Tubing and
Copperweld.
"RECEIVABLES NOTES" shall mean any promissory notes issued by an Obligor
to evidence a Receivable.
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"RECORDS" shall mean all invoices and other documents, books, records,
and other media for the storage of information (including tapes, disks, computer
programs and databases and related property) maintained with respect to the
Receivables and the related Obligors.
"REGISTER" shall have the meaning set forth in Section 10.03(d).
"RELATED SECURITY" shall mean with respect to any Receivable:
(a) all of the Receivables Entities' rights under the related invoice
(other than such Receivable);
(b) all guarantees, indemnities, warranties, chattel paper, insurance
policies and proceeds and security agreements and other agreements or
arrangements of whatever character from time to time supporting or securing
payment of such Receivable whether pursuant to the invoice related to such
Receivable or otherwise;
(c) all of the Receivables Entities' residual right, title and interest
in and to all goods and/or merchandise (including returned, repossessed or
foreclosed goods and/or merchandise) the sale of which give rise to such
Receivable;
(d) all of the Receivables Entities' rights in, to and under the (i)
Records, (ii) instruments, checks and other forms of payment and (iii) general
intangibles relating to such Receivable;
(e) the assignment to the Agent, of all UCC financing statements (if
any) covering the collateral security for the payment of any of the foregoing;
and
(f) all proceeds of the foregoing.
"REORGANIZATION PLAN" shall mean a plan of reorganization in any of the
Cases.
"REQUIRED BANKS" shall mean, at any time, Banks holding Loans
representing in excess of 50% of the aggregate principal amount of such Loans
outstanding or, if no Loans are outstanding, Banks having Commitments
representing in excess of 50% of the Total Commitment.
"SALES FINANCE" shall mean LTV Sales Finance Company, a Delaware
corporation.
"SECONDS RESERVE" shall mean, on any date, with respect to the Eligible
Inventory a reserve for "non-prime" or seconds or other "off-spec" Inventory
which may be included in the Agent's exclusive judgment at any time when
shipments of secondary Inventory as a percentage of total shipments of Inventory
materially exceeds levels existing prior to the Closing Date.
"SECURITY AND PLEDGE AGREEMENT" shall have the meaning set forth in
Section 4.01(f).
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"SHRINK RESERVE" shall mean, on any date, with respect to the Eligible
Inventory a reserve for book to physical inventory differences which may be
included in the Agent's exclusive judgment at any time when cumulative negative
adjustments during the current fiscal year exceeds more than 1% of the average
gross Inventory balance.
"SINGLE EMPLOYER PLAN" shall mean a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (i) is maintained for employees of the
Borrower or an ERISA Affiliate or (ii) was so maintained and in respect of which
the Borrower could have liability under Section 4069 of ERISA in the event such
Plan has been or were to be terminated.
"STATUTORY RESERVES" shall mean on any date the percentage (expressed as
a decimal) established by the Board and any other banking authority which is (i)
for purposes of the definition of Base CD Rate, the then stated maximum rate of
all reserves (including, but not limited to, any emergency, supplemental or
other marginal reserve requirement) for a member bank of the Federal Reserve
System in New York City, for new three month negotiable nonpersonal time
deposits in dollars of $100,000 or more or (ii) for purposes of the definition
of Adjusted LIBOR Rate, the then stated maximum rate for all reserves (including
but not limited to any emergency, supplemental or other marginal reserve
requirements) applicable to any member bank of the Federal Reserve System in
respect of Eurocurrency Liabilities (or any successor category of liabilities
under Regulation D issued by the Board, as in effect from time to time). Such
reserve percentages shall include, without limitation, those imposed pursuant to
said Regulation. The Statutory Reserves shall be adjusted automatically on and
as of the effective date of any change in such percentage.
"STEEL PRODUCTS" shall mean LTV Steel Products, LLC, a Delaware limited
liability company.
"STEEL PRODUCTS INVENTORY" shall mean flat rolled steel slabs, steel
bands, hot rolled sheet and strip sheet, cold rolled sheet and strip sheet,
electroplate, electro-galvanized steel, hot dip galvanized steel, steel scrap,
iron scrap and hot dip galvaneal.
"SUBSIDIARY" shall mean, with respect to any Person (herein referred to
as the "parent"), any corporation, association, limited liability company,
partnership, joint venture or other business entity (whether now existing or
hereafter organized) of which at least a majority of the securities or other
ownership interests having ordinary voting power for the election of directors,
members, partners or joint venturers are at the time as of which any
determination is being made, owned or controlled by the parent or one or more
subsidiaries of the parent or by the parent and one or more subsidiaries of the
parent.
"SUPER-MAJORITY BANKS" shall have the meaning given such term in Section
10.10(b).
"SUPERPRIORITY CLAIM" shall mean a claim against the Borrower and any
Guarantor in any of the Cases which is an administrative expense claim having
priority over any or all administrative expenses of the kind specified in
Sections 503(b) or 507(b) of the Bankruptcy Code.
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"TAXES" shall have the meaning given such term in Section 2.18.
"TERMINATION DATE" shall mean the earliest to occur of (i) the Maturity
Date, (ii) the Consummation Date and (iii) the acceleration of the Loans and the
termination of the Total Commitment in accordance with the terms hereof.
"TERMINATION EVENT" shall mean (i) a "reportable event", as such term is
described in Section 4043 of ERISA and the regulations issued thereunder (other
than a "reportable event" not subject to the provision for 30-day notice to the
PBGC under Section 4043 of ERISA or such regulations) or an event described in
Section 4068 of ERISA excluding events described in Section 4043(c)(9) of ERISA
or 29 CFR Sections 2615.21 or 2615.23 and excluding events which would not be
reasonably likely (as reasonably determined by the Agent) to have a material
adverse effect on the financial condition, operations, business, properties or
assets of the Borrower and the Guarantors taken as a whole, or (ii) the
withdrawal of the Borrower or any ERISA Affiliate from a Multiple Employer Plan
during a plan year in which it was a "substantial employer", as such term is
defined in Section 4001(c) of ERISA, or the incurrence of liability by the
Borrower or any ERISA Affiliate under Section 4064 of ERISA upon the termination
of a Multiple Employer Plan, or (iii) providing notice of intent to terminate a
Plan pursuant to Section 4041(c) of ERISA or the treatment of a Plan amendment
as a termination under Section 4041 of ERISA, if such amendment requires the
provision of security, or (iv) the institution of proceedings to terminate a
Plan by the PBGC under Section 4042 of ERISA, or (v) any other event or
condition (other than the commencement of the Cases and the failure to have made
any contribution accrued as of the Filing Date but not paid) which would
reasonably be expected to constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Plan, or the
imposition of any liability under Title IV of ERISA (other than for the payment
of premiums to the PBGC).
"THIRD-PARTY WAREHOUSEMAN" shall mean any premises where Inventory is
located, which premises is neither owned nor leased by an Inventory Entity.
"TIER-1 OBLIGOR" shall mean any Obligor (i) that has a commercial paper
rating from the Rating Agency of at least A-1+ or (ii) that does not have a
commercial paper rating of at least A-1+ but does have a senior actual or
implied debt rating from the Rating Agency of at least AAA.
"TIER-2 OBLIGOR" shall mean any Obligor (other than a Tier-1 Obligor)
(i) that has a commercial paper rating from Standard & Poor's Rating Group of at
least A-1 or (ii) that does not have a commercial paper rating of at least A-1
but does have a senior actual or implied debt rating from Standard & Poor's
Rating Group of at least A+.
"TIER-3 OBLIGOR" shall mean any Obligor (other than a Tier-1 Obligor or
a Tier-2 Obligor) (i) that has a commercial paper rating from Standard & Poor's
Rating Group of at least A-2 or (ii) that does not have a commercial paper
rating of at least A-2 but does have a senior actual or implied debt rating from
Standard & Poor's Rating Group of at least BBB+.
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"TIER-4 OBLIGOR" shall mean any Obligor (other than a Tier-1 Obligor, a
Tier-2 Obligor or a Tier-3 Obligor) (i) that has a commercial paper rating from
the Standard & Poor's Rating Group of at least A-3 or (ii) that does not have a
commercial paper rating of at least A-3 but does have a senior actual or implied
debt rating from Standard & Poor's Rating Group of at least BBB-.
"TIER-5 OBLIGOR" shall mean any Obligor which is not a Tier-1 Obligor, a
Tier-2 Obligor, a Tier-3 Obligor or a Tier-4 Obligor.
"TOTAL COMMITMENT" shall mean, at any time, the sum of the Commitments
at such time.
"TRANSFEREE" shall have the meaning given such term in Section 2.18.
"TYPE" when used in respect of any Loan or Borrowing shall refer to the
Rate of interest by reference to which interest on such Loan or on the Loans
comprising such Borrowing is determined. For purposes hereof, "Rate" shall mean
the Adjusted LIBOR Rate and the Alternate Base Rate.
"UNUSED TOTAL COMMITMENT" shall mean, at any time, (i) the Total
Commitment less (ii) the sum of (x) the aggregate outstanding principal amount
of all Loans and (y) the aggregate Letter of Credit Outstandings.
"VP BUILDINGS" shall mean VP Buildings, Inc., a Delaware corporation.
"WITHDRAWAL LIABILITY" shall have the meaning given such term under Part
I of Subtitle E of Title IV of ERISA.
"WORKING CAPITAL FACILITY" shall mean that certain $100,000,000
Financing Agreement among the Borrower, VP Buildings, Copperweld, LTV Steel,
Ableco Finance LLC and the other lenders named therein.
"WRITE-OFF" shall mean all or a portion of a Receivable that, consistent
with the applicable credit and collection policy of the applicable Receivables
Entity, has been or should be (i) specifically assigned to a category reserved
for doubtful Receivables or otherwise recorded on the Receivables Entities'
books as a Receivable the collectibility of which is doubtful or (without
duplication) (ii) written off such Receivables Entity's books as uncollectible.
SECTION 1.02 TERMS GENERALLY. The definitions in Section 1.01 shall apply
equally to both the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. All references herein to Sections, Exhibits and
Schedules shall be deemed references to Sections of, and Exhibits and Schedules
to, this Agreement unless the context shall otherwise require. Except as
otherwise expressly provided herein, all terms of an accounting or financial
nature shall be construed in
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accordance with GAAP, as in effect from time to time; PROVIDED, HOWEVER, that
for purposes of determining compliance with any covenant set forth in Section 6,
such terms shall be construed in accordance with GAAP as in effect on the date
of this Agreement applied on a basis consistent with the application used in the
Borrower's audited financial statements referred to in Section 3.04. The words
"include", "includes" and "including" shall be deemed to be followed by the
phrase "without limitation".
SECTION 2. AMOUNT AND TERMS OF CREDIT
SECTION 2.01 COMMITMENT OF THE BANKS.
(a) Each Bank severally and not jointly with the other Banks agrees,
upon the terms and subject to the conditions herein set forth, to make revolving
credit loans (each a "LOAN" and collectively, the "LOANS") to the Borrower at
any time and from time to time during the period commencing on the date hereof
and ending on the Termination Date in an aggregate principal amount not to
exceed, when added to such Bank's Commitment Percentage of the then aggregate
Letter of Credit Outstandings (in excess of the amount of cash then held in the
Letter of Credit Account pursuant to Section 2.03(b)), the Commitment of such
Bank, which Loans may be repaid and reborrowed in accordance with the provisions
of this Agreement. At no time shall the sum of the then outstanding aggregate
principal amount of the Loans PLUS the then aggregate Letter of Credit
Outstandings exceed the lesser of (i) the Total Commitment of $581,868,616.73,
as the same may be reduced from time to time pursuant to Section 2.10 or Section
2.13 and (ii) the Borrowing Base. On the Closing Date, each of the Banks that is
shown under the column headed "Settlement Amount" on that certain LTV Steel
Replacement DIP Settlement Accounting (4/02/01), a copy of which has heretofore
been furnished to the Banks, as making a payment shall pay the amount thereof to
the Agent for the account of those Banks who are shown therein as receiving a
payment, and the Agent shall distribute such payments as set forth therein.
(b) Each Borrowing shall be made by the Banks PRO RATA in accordance
with their respective Commitments; PROVIDED, HOWEVER, that the failure of any
Bank to make any Loan shall not in itself relieve the other Banks of their
obligations to lend.
SECTION 2.02 BORROWING BASE. Notwithstanding any other provision of this
Agreement to the contrary, the aggregate principal amount of all outstanding
Loans plus the then aggregate Letter of Credit Outstandings (in excess of the
amount of cash then held in the Letter of Credit Account pursuant to Section
2.03(b)) shall not at any time exceed the Borrowing Base and no Loan shall be
made or Letter of Credit issued in violation of the foregoing.
SECTION 2.03 LETTERS OF CREDIT.
(a) Upon the terms and subject to the conditions herein set forth,
the Borrower may request a Fronting Bank, at any time and from time to time
after the date hereof and prior to the Termination Date, to issue, and, subject
to the terms and conditions contained herein, such Fronting
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Bank shall issue, for the account of the Borrower or a Guarantor one or more
Letters of Credit, PROVIDED that no Letter of Credit shall be issued if after
giving effect to such issuance (i) the aggregate Letter of Credit Outstandings
shall exceed $102,889,053.02, PROVIDED, that following the termination of the
Working Capital Facility, such sublimit shall be increased by an additional
$20,000,000 or (ii) the aggregate Letter of Credit Outstandings, when added to
the aggregate outstanding principal amount of the Loans, would exceed the Total
Commitment and, PROVIDED FURTHER that no Letter of Credit shall be issued if the
Fronting Bank shall have received notice from the Agent or the Required Banks
that the conditions to such issuance have not been met. On the Closing Date,
each of the outstanding Existing Letters of Credit shall be deemed, for all
purposes, to be Letters of Credit issued pursuant to this Section 2.03(a).
(b) No Letter of Credit shall expire later than 60 days after the
Maturity Date, PROVIDED that if any Letter of Credit shall be outstanding on the
Termination Date, the Borrower shall, at or prior to the Termination Date,
except as the Agent may otherwise agree in writing, (i) cause all Letters of
Credit which expire after the Termination Date to be returned to the Fronting
Bank undrawn and marked "cancelled" or (ii) if the Borrower is unable to do so
in whole or in part, either (x) provide a letter of credit to one or more
Fronting Banks in a form satisfactory to such Fronting Bank and the Agent (in
their sole discretion), issued by a bank satisfactory to such Fronting Bank and
the Agent (in their sole discretion), and in an amount equal to 105% of the then
undrawn stated amount of all outstanding Letters of Credit issued by such
Fronting Banks (less the amount, if any, then on deposit in the Letter of Credit
Account) and/or (y) deposit cash in the Letter of Credit Account in an amount
equal to 105% of the then undrawn stated amount of all Letter of Credit
Outstandings (less the amount, if any, then on deposit in the Letter of Credit
Account) as collateral security for the Borrower's reimbursement obligations in
connection therewith, such cash to be remitted to the Borrower upon the
expiration, cancellation or other termination or satisfaction of such
reimbursement obligations and the payment in full of the Obligations.
(c) The Borrower shall pay to each Fronting Bank, in addition to
such other fees and charges as are specifically provided for in Section 2.21
hereof, such fees and charges in connection with the issuance, processing or
amendment of the Letters of Credit issued by such Fronting Bank as are
customarily imposed by such Fronting Bank from time to time in connection with
letter of credit transactions.
(d) Drafts drawn under each Letter of Credit shall be reimbursed by
the Borrower in Dollars not later than the first Business Day following the date
of draw and shall bear interest from the date of draw until the first Business
Day following the date of draw at a rate per annum equal to the Alternate Base
Rate PLUS 1-1/2% and thereafter on the reimbursed portion until reimbursed in
full at a rate per annum equal to the Alternate Base Rate PLUS 3-1/2% (computed
on the basis of the actual number of days elapsed over a year of 365 days or 366
days in a leap year). The Borrower shall effect such reimbursement (x) if such
draw occurs prior to the Termination Date (or the earlier date of termination of
the Total Commitment), in cash or through a Borrowing without the satisfaction
of the conditions precedent set forth in Section 4.02 or (y) if such draw occurs
on or after the Termination Date (or the earlier date of termination of the
Total Commitment), in cash. Each
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Bank agrees to make the Loans described in clause (x) of the preceding sentence
notwithstanding a failure to satisfy the applicable lending conditions thereto
or the provisions of Sections 2.02.
(e) Immediately upon the issuance of any Letter of Credit by any
Fronting Bank, such Fronting Bank shall be deemed to have sold to each Bank
other than such Fronting Bank and each such other Bank shall be deemed
unconditionally and irrevocably to have purchased from such Fronting Bank,
without recourse or warranty, an undivided interest and participation, to the
extent of such Bank's Commitment Percentage, in such Letter of Credit, each
drawing thereunder and the obligations of the Borrower and the Guarantors under
this Agreement with respect thereto. Upon any change in the Commitments pursuant
to the terms of this Agreement, it is hereby agreed that with respect to all
Letter of Credit Outstandings, there shall be an automatic adjustment to the
participations hereby created to reflect the new Commitment Percentages of the
assigning and assignee Banks. Any action taken or omitted by a Fronting Bank
under or in connection with a Letter of Credit, if taken or omitted in the
absence of gross negligence or willful misconduct, shall not create for such
Fronting Bank any resulting liability to any other Bank.
(f) In the event that a Fronting Bank makes any payment under any
Letter of Credit and the Borrower shall not have reimbursed such amount in full
to such Fronting Bank pursuant to this Section, the Fronting Bank shall promptly
notify the Agent, which shall promptly notify each Bank of such failure, and
each Bank shall promptly and unconditionally pay to the Agent for the account of
the Fronting Bank the amount of such Bank's Commitment Percentage of such
unreimbursed payment in Dollars and in same day funds. If the Fronting Bank so
notifies the Agent, and the Agent so notifies the Banks prior to 11:00 a.m. (New
York City time) on any Business Day, such Banks shall make available to the
Fronting Bank such Bank's Commitment Percentage of the amount of such payment on
such Business Day in same day funds. If and to the extent such Bank shall not
have so made its Commitment Percentage of the amount of such payment available
to the Fronting Bank, such Bank agrees to pay to such Fronting Bank, forthwith
on demand such amount, together with interest thereon, for each day from such
date until the date such amount is paid to the Agent for the account of such
Fronting Bank at the Federal Funds Effective Rate. The failure of any Bank to
make available to the Fronting Bank its Commitment Percentage of any payment
under any Letter of Credit shall not relieve any other Bank of its obligation
hereunder to make available to the Fronting Bank its Commitment Percentage of
any payment under any Letter of Credit on the date required, as specified above,
but no Bank shall be responsible for the failure of any other Bank to make
available to such Fronting Bank such other Bank's Commitment Percentage of any
such payment. Whenever a Fronting Bank receives a payment of a reimbursement
obligation as to which it has received any payments from the Banks pursuant to
this paragraph, such Fronting Bank shall pay to each Bank which has paid its
Commitment Percentage thereof, in Dollars and in same day funds, an amount equal
to such Bank's Commitment Percentage thereof.
SECTION 2.04 ISSUANCE. Whenever the Borrower desires a Fronting Bank to
issue a Letter of Credit, it shall give to such Fronting Bank and the Agent
prior written (including telegraphic, telex, facsimile or cable communication)
notice reasonably in advance of the requested date of issuance specifying the
date on which the proposed Letter of Credit is to be issued (which
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shall be a Business Day), the stated amount of the Letter of Credit so
requested, the expiration date of such Letter of Credit and the name and address
of the beneficiary thereof.
SECTION 2.05 NATURE OF LETTER OF CREDIT OBLIGATIONS ABSOLUTE. The
obligations of the Borrower to reimburse the Banks for drawings made under any
Letter of Credit shall be unconditional and irrevocable and shall be paid
strictly in accordance with the terms of this Agreement under all circumstances,
including, without limitation (it being understood that any such payment by the
Borrower shall be without prejudice to, and shall not constitute a waiver of,
any rights the Borrower might have or might acquire as a result of the payment
by the Fronting Bank of any draft or the reimbursement thereof by the Borrower):
(i) any lack of validity or enforceability of any Letter of Credit; (ii) the
existence of any claim, setoff, defense or other right which the Borrower or any
Guarantor may have at any time against a beneficiary of any Letter of Credit or
against any of the Banks, whether in connection with this Agreement, the
transactions contemplated herein or any unrelated transaction; (iii) any draft,
demand, certificate or 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; (iv) payment by a
Fronting Bank of any Letter of Credit against presentation of a demand, draft or
certificate or other document which does not comply with the terms of such
Letter of Credit; (v) any other circumstance or happening whatsoever, which is
similar to any of the foregoing; or (vi) the fact that any Event of Default
shall have occurred and be continuing.
SECTION 2.06 MAKING OF LOANS.
(a) Except as contemplated by Section 2.11, Loans shall be either
ABR Loans or Eurodollar Loans as the Borrower may request subject to and in
accordance with this Section, PROVIDED that all Loans made pursuant to the same
Borrowing shall, unless otherwise specifically provided herein, be Loans of the
same Type. Each Bank may fulfill its Commitment with respect to any Eurodollar
Loan or ABR Loan by causing any lending office of such Bank to make such Loan;
PROVIDED that any such use of a lending office shall not affect the obligation
of the Borrower to repay such Loan in accordance with the terms of this
Agreement. Each Bank shall, subject to its overall policy considerations, use
reasonable efforts (but shall not be obligated) to select a lending office which
will not result in the payment of increased costs by the Borrower pursuant to
Section 2.15. Subject to the other provisions of this Section and the provisions
of Section 2.12, Borrowings of Loans of more than one Type may be incurred at
the same time, provided that no more than ten (10) Borrowings of Eurodollar
Loans may be outstanding at any time.
(b) The Borrower shall give the Agent prior notice of each Borrowing
hereunder of at least three Business Days for Eurodollar Loans and one Business
Day for ABR Loans; such notice shall be irrevocable and shall specify the amount
of the proposed Borrowing (which shall not be less than $5,000,000 (and integral
multiples of $1,000,000) in the case of Eurodollar Loans and $500,000 (and
integral multiples of $100,000) in the case of ABR Loans) and the date thereof
(which shall be a Business Day) and shall contain disbursement instructions.
Such notice, to be effective, must be received by the Agent not later than 1:00
p.m., New York City time, on the third Business
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Day in the case of Eurodollar Loans and 12:00 noon, New York City time on the
first Business Day in the case of ABR Loans, preceding the date on which such
Borrowing is to be made. Such notice shall specify whether the Borrowing then
being requested is to be a Borrowing of ABR Loans or Eurodollar Loans. If no
election is made as to the Type of Loan, such notice shall be deemed a request
for Borrowing of ABR Loans. The Agent shall promptly notify each Bank of its
proportionate share of such Borrowing, the date of such Borrowing, the Type of
Borrowing or Loans being requested and the Interest Period or Interest Periods
applicable thereto, as appropriate. On the borrowing date specified in such
notice, each Bank shall make its share of the Borrowing available at the office
of the Agent at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, no later than 12:00
noon, New York City time, in immediately available funds. Upon receipt of the
funds made available by the Banks to fund any borrowing hereunder, the Agent
shall disburse such funds in the manner specified in the notice of borrowing
delivered by the Borrower and shall use reasonable efforts to make the funds so
received from the Banks available to the Borrower no later than 2:00 p.m. New
York City time.
SECTION 2.07 REPAYMENT OF LOANS; EVIDENCE OF DEBT.
(a) The Borrower hereby unconditionally promises to pay to the Agent
for the account of each Bank the then unpaid principal amount of each Loan on
the Termination Date.
(b) Each Bank shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrower to such Bank
resulting from each Loan made by such Bank, including the amounts of principal
and interest payable and paid to such Bank from time to time hereunder.
(c) The Agent shall maintain accounts in which it shall record (i)
the amount of each Loan made hereunder, the Type thereof and the Interest Period
applicable thereto, (ii) the amount of any principal or interest due and payable
or to become due and payable from the Borrower to each Bank hereunder and (iii)
the amount of any sum received by the Agent hereunder for the account of the
Banks and each Bank's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be PRIMA FACIE evidence of the
existence and amounts of the obligations recorded therein; PROVIDED that the
failure of any Bank or the Agent to maintain such accounts or any error therein
shall not in any manner affect the obligation of the Borrower to repay the Loans
in accordance with the terms of this Agreement.
(e) Any Bank may request that Loans made by it be evidenced by a
promissory note. In such event, the Borrower shall execute and deliver to such
Bank a promissory note payable to the order of such Bank (or, if requested by
such Bank, to such Bank and its registered assigns) in a form furnished by the
Agent and reasonably acceptable to the Borrower. Thereafter, the Loans evidenced
by such promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 10.03) be represented by one or more promissory
notes in such form payable to
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the order of the payee named therein (or, if such promissory note is a
registered note, to such payee and its registered assigns).
SECTION 2.08 INTEREST ON LOANS.
(a) Subject to the provisions of Section 2.09, each ABR Loan shall
bear interest (computed on the basis of the actual number of days elapsed over a
year of 360 days or, when the Alternate Base Rate is based on the Prime Rate, a
year with 365 days or 366 days in a leap year) at a rate per annum equal to the
Alternate Base Rate PLUS 1-1/2%.
(b) Subject to the provisions of Section 2.09, each Eurodollar Loan
shall bear interest (computed on the basis of the actual number of days elapsed
over a year of 360 days) at a rate per annum equal, during each Interest Period
applicable thereto, to the Adjusted LIBOR Rate for such Interest Period in
effect for such Borrowing PLUS 2-1/2%.
(c) Accrued interest on all Loans shall be payable monthly in
arrears on each Interest Payment Date applicable thereto, on the Termination
Date, after the Termination Date on demand and (with respect to Eurodollar
Loans) upon any repayment or prepayment thereof (on the amount prepaid).
SECTION 2.09 DEFAULT INTEREST. If the Borrower or any Guarantor, as the
case may be, shall default in the payment of the principal of or interest on any
Loan or in the payment of any other amount becoming due hereunder (including,
without limitation, the reimbursement pursuant to Section 2.03(d) of any draft
drawn under a Letter of Credit), whether at stated maturity, by acceleration or
otherwise, the Borrower or such Guarantor, as the case may be, shall on demand
from time to time pay interest, to the extent permitted by law, on such
defaulted amount up to (but not including) the date of actual payment (after as
well as before judgment) at a rate per annum (computed on the basis of the
actual number of days elapsed over a year of 360 days or when the Alternate Base
Rate is applicable and is based on the Prime Rate, a year with 365 days or 366
days in a leap year) equal to (x) in the case of Borrowings consisting of
Eurodollar Loans, the Adjusted LIBOR Rate in effect for such Borrowing PLUS
4-1/2% and (y) in the case of all other amounts, the Alternate Base Rate PLUS
3-1/2%.
SECTION 2.10 OPTIONAL TERMINATION OR REDUCTION OF COMMITMENT. Upon at
least two Business Days' prior written notice to the Agent, the Borrower may at
any time in whole permanently terminate, or from time to time in part
permanently reduce, the Unused Total Commitment, PROVIDED that no such reduction
shall be permitted if after giving effect thereto the Commitment of any Bank
would be less than the sum of the unpaid Loans held by such Bank PLUS such
Bank's participation in Letter of Credit Outstandings. Each such reduction of
the Commitments shall be in the principal amount of $5,000,000 or any integral
multiple thereof. Simultaneously with each reduction or termination of the
Commitment, the Borrower shall pay to the Agent for the account of each Bank the
Commitment Fee accrued and unpaid on the amount of the Commitment of such Bank
so terminated or reduced through the date thereof. Except as otherwise set forth
in
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Section 2.23(b), any reduction of the Total Commitment pursuant to this Section
shall be applied PRO RATA to reduce the Commitment of each Bank.
SECTION 2.11 ALTERNATE RATE OF INTEREST. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Eurodollar Loan, the Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower absent manifest
error) that reasonable means do not exist for ascertaining the applicable
Adjusted LIBOR Rate, the Agent shall, as soon as practicable thereafter, give
written, facsimile or telegraphic notice of such determination to the Borrower
and the Banks, and any request by the Borrower for a Borrowing of Eurodollar
Loans (including pursuant to a refinancing with Eurodollar Loans) pursuant to
Section 2.06 or 2.12 shall be deemed a request for a Borrowing of ABR Loans.
After such notice shall have been given and until the circumstances giving rise
to such notice no longer exist, each request for a Borrowing of Eurodollar Loans
shall be deemed to be a request for a Borrowing of ABR Loans.
SECTION 2.12 REFINANCING OF LOANS. The Borrower shall have the right, at
any time, on three Business Days' prior irrevocable notice to the Agent (which
notice, to be effective, must be received by the Agent not later than 1:00 p.m.,
New York City time, on the third Business Day preceding the date of any
refinancing), (x) to refinance (without the satisfaction of the conditions set
forth in Section 4 as a condition to such refinancing) any outstanding Borrowing
or Borrowings of Loans of one Type (or a portion thereof) with a Borrowing of
Loans of the other Type or (y) to continue an outstanding Borrowing of
Eurodollar Loans for an additional Interest Period, subject to the following:
(a) as a condition to the refinancing of ABR Loans with Eurodollar
Loans and to the continuation of Eurodollar Loans for an additional Interest
Period, no Event of Default shall have occurred and be continuing at the time of
such refinancing;
(b) if less than a full Borrowing of Loans shall be refinanced, such
refinancing shall be made pro rata among the Banks in accordance with the
respective principal amounts of the Loans comprising such Borrowing held by the
Banks immediately prior to such refinancing;
(c) the aggregate principal amount of Loans being refinanced shall
be at least $5,000,000, PROVIDED that no partial refinancing of a Borrowing of
Eurodollar Loans shall result in the Eurodollar Loans remaining outstanding
pursuant to such Borrowing being less than $5,000,000 in aggregate principal
amount;
(d) each Bank shall effect each refinancing by applying the proceeds
of its new Eurodollar Loan or ABR Loan, as the case may be, to its Loan being
refinanced;
(e) the Interest Period with respect to a Borrowing of Eurodollar
Loans effected by a refinancing or in respect to the Borrowing of Eurodollar
Loans being continued as Eurodollar
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Loans shall commence on the date of refinancing or the expiration of the current
Interest Period applicable to such continuing Borrowing, as the case may be;
(f) a Borrowing of Eurodollar Loans may be refinanced only on the
last day of an Interest Period applicable thereto; and
(g) each request for a refinancing with a Borrowing of Eurodollar
Loans which fails to state an applicable Interest Period shall be deemed to be a
request for an Interest Period of one month.
In the event that the Borrower shall not give notice to refinance any Borrowing
of Eurodollar Loans, or to continue such Borrowing as Eurodollar Loans, or shall
not be entitled to refinance or continue such Borrowing as Eurodollar Loans, in
each case as provided above, such Borrowing shall automatically be refinanced
with a Borrowing of ABR Loans at the expiration of the then-current Interest
Period. The Agent shall, after it receives notice from the Borrower, promptly
give each Bank notice of any refinancing, in whole or part, of any Loan made by
such Bank.
SECTION 2.13 MANDATORY PREPAYMENT; COMMITMENT TERMINATION; CASH
COLLATERAL.
(a) If at any time the aggregate principal amount of the outstanding
Loans plus the Letter of Credit Outstandings exceeds the lesser of (x) the Total
Commitment and (y) the Borrowing Base, the Borrower will within two Business
Days (i) prepay the Loans in an amount necessary to cause the aggregate
principal amount of the outstanding Loans PLUS the aggregate Letter of Credit
Outstandings to be equal to or less than the Total Commitment and/or the
Borrowing Base, as the case may be, and (ii) if, after giving effect to the
prepayment in full of the Loans, the Letter of Credit Outstandings in excess of
the amount of cash held in the Letter of Credit Account exceeds the Total
Commitment and/or the Borrowing Base, as the case may be, deposit into the
Letter of Credit Account an amount equal to 105% of the amount by which the
Letter of Credit Outstandings in excess of the amount of cash held in the Letter
of Credit Account so exceeds the Total Commitment or Borrowing Base, as the case
may be (and the Agent shall be authorized to debit any account of the Borrower
or the Guarantors in an amount equal to the amount of such prepayment or cash
collateralization), PROVIDED, HOWEVER, any prepayment pursuant to this
subsection (a) shall not result in a reduction of the Total Commitment.
(b) Upon the Termination Date, the Total Commitment shall be
terminated in full and the Borrower shall pay the Loans plus accrued but unpaid
interest thereon in full and, except as the Agent may otherwise agree in
writing, if any Letter of Credit remains outstanding, deposit into the Letter of
Credit Account an amount equal to 105% of the amount by which the Letter of
Credit Outstandings exceeds the amount of cash held in the Letter of Credit
Account, such cash to be remitted to the Borrower upon the expiration,
cancellation, satisfaction or other termination of such reimbursement
obligations, or otherwise comply with Section 2.03(b).
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(c) If on any Business Day, cash (including cash equivalents) on
hand of the Borrower and Guarantors exceeds the sum of $40,000,000 PLUS the
amount on deposit in the segregated or trust account and the corpus of the
trusts, in each case, as described in Section 2.23(d) herein, the Borrower
shall, on the second Business Day thereafter, if cash (and cash equivalents)
continues to exceed such amount, prepay (i) FIRST revolving loans outstanding
under the Working Capital Facility to the extent of such excess amount, and (ii)
SECOND, the Loans to the extent of any additional excess amount (PROVIDED,
HOWEVER, that any prepayment pursuant to the foregoing clause (ii) shall not
reduce the Total Commitment).
(d) The Total Commitment shall be automatically and permanently
reduced (i) by $100,000,000 on September 30, 2001, (ii) by an additional
$100,000,000 on December 31, 2001 and (iii) by an additional $200,000,000 on
March 31, 2002 (and the Loans shall be prepaid pursuant to Section 2.13(a) above
to the extent that the outstanding principal amount of the Loans PLUS Letter of
Credit Outstandings exceeds the Total Commitment as so reduced). The Total
Commitment reductions that are required on each date set forth in this paragraph
shall be applied so as to take into account and credit prior permanent
reductions of the Total Commitment (including, without limitation, reductions
arising as a result of asset sales or other dispositions or the incurrence of
secured Indebtedness in each case as described in clause (e) below).
(e) Upon the sale or other disposition of any of the assets or
properties of the Borrower and the Guarantors (other than Inventory and
Receivables as to which the Agent shall have been granted a senior Lien as
provided for herein and in the Final Order) for cash proceeds exceeding the
cumulative amount of $1,000,000 in the aggregate, or the incurrence of secured
Indebtedness permitted by Section 6.03(viii), the proceeds thereof shall be
applied as follows: (i) in the case of a sale or other disposition for cash
(other than with respect to the Hennepin Works), 50% of the Net Cash Proceeds
thereof shall be applied to the prepayment of outstanding Loans (in accordance
with the priorities set forth in Section 2.23(b) if applicable), and the Total
Commitment shall be automatically and permanently reduced to the extent of such
prepayment, (ii) in the case of a sale or other disposition for non-cash
consideration, 100% of such consideration will be pledged to the Agent with 50%
thereof to be applied to the prepayment of outstanding Loans (in accordance with
the priorities set forth in Section 2.23(b) if applicable), and the Total
Commitment shall be automatically and permanently reduced to the extent of such
prepayment when proceeds in respect of such non-cash consideration are received,
(iii) in the case of the incurrence of secured Indebtedness permitted by Section
6.03(viii), 50% of the Net Cash Proceeds thereof shall be applied to the
prepayment of outstanding Loans (in accordance with the priorities set forth in
Section 2.23(b) if applicable), and the Total Commitment shall be automatically
and permanently reduced to the extent of such prepayment, (iv) in the case of
the sale or other disposition of the Hennepin Works, 100% of the Net Cash
Proceeds up to $28,500,000 and thereafter 50% of the Net Cash Proceeds thereof
shall be applied to the prepayment of the outstanding Loans and the Total
Commitment shall be automatically and permanently reduced to the extent of such
prepayment, (v) the prepayments and percentages described in clauses (i) through
(iv) above shall be subject to and calculated after giving effect to the prior
payment of the Working Capital Facility (except as to the first $28,500,000 of
the
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Hennepin Works proceeds) and to the prior payment of other Indebtedness that is
secured by valid and perfected prior Liens.
SECTION 2.14 OPTIONAL PREPAYMENT OF LOANS; REIMBURSEMENT OF BANKS.
(a) The Borrower shall have the right at any time and from time to
time to prepay any Loans, in whole or in part, (x) with respect to Eurodollar
Loans, upon at least three Business Days' prior written, telex or facsimile
notice to the Agent and (y) with respect to ABR Loans on the same Business Day
if written, telex or facsimile notice is received by the Agent prior to 12:00
noon, New York City time, and thereafter upon at least one Business Day's prior
written, telex or facsimile notice to the Agent; PROVIDED, HOWEVER, that (i)
each such partial prepayment shall be in multiples of $1,000,000, (ii) no
prepayment of Eurodollar Loans shall be permitted pursuant to this Section
2.14(a) other than on the last day of an Interest Period applicable thereto
unless such prepayment is accompanied by the payment of the amounts described in
clause (i) of the first sentence of Section 2.14(b), and (iii) no partial
prepayment of a Borrowing of Eurodollar Loans shall result in the aggregate
principal amount of the Eurodollar Loans remaining outstanding pursuant to such
Borrowing being less than $5,000,000. Each notice of prepayment shall specify
the prepayment date, the principal amount of the Loans to be prepaid and in the
case of Eurodollar Loans, the Borrowing or Borrowings pursuant to which made,
shall be irrevocable and shall commit the Borrower to prepay such Loan by the
amount and on the date stated therein. The Agent shall, promptly after receiving
notice from the Borrower hereunder, notify each Bank of the principal amount of
the Loans held by such Bank which are to be prepaid, the prepayment date and the
manner of application of the prepayment.
(b) The Borrower shall reimburse each Bank on demand for any loss
incurred or to be incurred by it in the reemployment of the funds released (i)
resulting from any prepayment (for any reason whatsoever, including, without
limitation, refinancing with ABR Loans) of any Eurodollar Loan required or
permitted under this Agreement, if such Loan is prepaid other than on the last
day of the Interest Period for such Loan (including, without limitation, any
such prepayment in connection with the syndication of the credit facility
evidenced by this Agreement) or (ii) in the event that after the Borrower
delivers a notice of borrowing under Section 2.06 in respect of Eurodollar
Loans, such Loans are not made on the first day of the Interest Period specified
in such notice of borrowing for any reason other than a breach by such Bank of
its obligations hereunder. Such loss shall be the amount as reasonably
determined by such Bank as the excess, if any, of (A) the amount of interest
which would have accrued to such Bank on the amount so paid or not borrowed at a
rate of interest equal to the Adjusted LIBOR Rate for such Loan, for the period
from the date of such payment or failure to borrow to the last day (x) in the
case of a payment or refinancing with ABR Loans other than on the last day of
the Interest Period for such Loan, of the then current Interest Period for such
Loan, or (y) in the case of such failure to borrow, of the Interest Period for
such Loan which would have commenced on the date of such failure to borrow, over
(B) the amount of interest which would have accrued to such Bank on such amount
by placing such amount on deposit for a comparable period with leading banks in
the London interbank market. Each Bank shall deliver to the Borrower
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from time to time one or more certificates setting forth the amount of such loss
as determined by such Bank.
(c) In the event the Borrower fails to prepay any Loan on the date
specified in any prepayment notice delivered pursuant to Section 2.14(a), the
Borrower on demand by any Bank shall pay to the Agent for the account of such
Bank any amounts required to compensate such Bank for any loss incurred by such
Bank as a result of such failure to prepay, including, without limitation, any
loss, cost or expenses incurred by reason of the acquisition of deposits or
other funds by such Bank to fulfill deposit obligations incurred in anticipation
of such prepayment, but without duplication of any amounts paid under Section
2.14(b). Each Bank shall deliver to the Borrower from time to time one or more
certificates setting forth the amount of such loss as determined by such Bank.
(d) Any partial prepayment of the Loans by the Borrower pursuant to
Sections 2.13 or 2.14 shall be applied as specified by the Borrower or, in the
absence of such specification, as determined by the Agent, PROVIDED that in the
latter case no Eurodollar Loans shall be prepaid pursuant to Section 2.13 to the
extent that such Loan has an Interest Period ending after the required date of
prepayment unless and until all outstanding ABR Loans and Eurodollar Loans with
Interest Periods ending on such date have been repaid in full.
(e) Other than as specified in Section 2.13(b) and (c) above, all
prepayments shall be made without penalty or premium.
SECTION 2.15 RESERVE REQUIREMENTS; CHANGE IN CIRCUMSTANCES.
(a) Notwithstanding any other provision herein, if after the date of
this Agreement any change in applicable law or regulation or in the
interpretation or administration thereof by any Governmental Authority charged
with the interpretation or administration thereof (whether or not having the
force of law) shall change the basis of taxation of payments to any Bank of the
principal of or interest on any Eurodollar Loan made by such Bank or any fees or
other amounts payable hereunder (other than changes in respect of Taxes, Other
Taxes and taxes imposed on, or measured by, the net income or overall gross
receipts or franchise taxes of such Bank by the national jurisdiction in which
such Bank has its principal office or in which the applicable lending office for
such Eurodollar Loan is located or by any political subdivision or taxing
authority therein, or by any other jurisdiction or by any political subdivision
or taxing authority therein other than a jurisdiction in which such Bank would
not be subject to tax but for the execution and performance of this Agreement),
or shall impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account of or
credit extended by such Bank (except any such reserve requirement which is
reflected in the Adjusted LIBOR Rate) or shall impose on such Bank or the London
interbank market any other condition affecting this Agreement or the Eurodollar
Loans made by such Bank, and the result of any of the foregoing shall be to
increase the cost to such Bank of making or maintaining any Eurodollar Loan or
to reduce the amount of any sum received or receivable by such Bank hereunder
(whether of principal, interest or otherwise) by an amount deemed by such Bank
to be material, then the Borrower will pay to such Bank in accordance
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with paragraph (c) below such additional amount or amounts as will compensate
such Bank for such additional costs incurred or reduction suffered.
(b) If any Bank shall have determined that the adoption or
effectiveness after the date hereof of any law, rule, regulation or guideline
regarding capital adequacy, or any change in any of the foregoing or in the
interpretation or administration of any of the foregoing by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or any lending office of such
Bank) or any Bank's holding company 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, has or would have the effect of reducing the
rate of return on such Bank's capital or on the capital of such Bank's holding
company, if any, as a consequence of this Agreement, the Loans made by such Bank
pursuant hereto, such Bank's Commitment hereunder or the issuance of, or
participation in, any Letter of Credit by such Bank to a level below that which
such Bank or such Bank's holding company could have achieved but for such
adoption, change or compliance (taking into account Bank's policies and the
policies of such Bank's holding company with respect to capital adequacy) by an
amount deemed by such Bank to be material (except to the extent that such amount
is reflected in the Adjusted LIBOR Rate), then from time to time the Borrower
shall pay to such Bank such additional amount or amounts as will compensate such
Bank or such Bank's holding company for any such reduction suffered.
(c) A certificate of each Bank setting forth such amount or amounts
as shall be necessary to compensate such Bank or its holding company as
specified in paragraph (a) or (b) above, as the case may be, shall be delivered
to the Borrower and shall be conclusive absent manifest error. The Borrower
shall pay each Bank the amount shown as due on any such certificate delivered to
it within 10 days after its receipt of the same. Any Bank receiving any such
payment shall promptly make a refund thereof to the Borrower if the law,
regulation, guideline or change in circumstances giving rise to such payment is
subsequently deemed or held to be invalid or inapplicable.
(d) Failure on the part of any Bank to demand compensation for any
increased costs or reduction in amounts received or receivable or reduction in
return on capital with respect to any period shall not constitute a waiver of
such Bank's right to demand compensation with respect to such period or any
other period, PROVIDED that the Borrower shall not be required to compensate a
Bank pursuant to this Section for any increased costs or reductions incurred
more than 270 days prior to the date that such Bank notifies the Borrower of the
circumstance giving rise to such increased costs or reductions and of such
Bank's intention to claim compensation therefor. The protection of this Section
shall be available to each Bank regardless of any possible contention of the
invalidity or inapplicability of the law, rule, regulation, guideline or other
change or condition which shall have occurred or been imposed.
SECTION 2.16 CHANGE IN LEGALITY.
(a) Notwithstanding anything to the contrary contained elsewhere in
this Agreement, if (x) any change after the date of this Agreement in any law or
regulation or in the
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interpretation thereof by any Governmental Authority charged with the
administration thereof shall make it unlawful for a Bank to make or maintain a
Eurodollar Loan or to give effect to its obligations as contemplated hereby with
respect to a Eurodollar Loan or (y) at any time any Bank determines that the
making or continuance of any of its Eurodollar Loans has become impracticable as
a result of a contingency occurring after the date hereof which adversely
affects the London interbank market or the position of such Bank in such market,
then, by written notice to the Borrower, such Bank may (i) declare that
Eurodollar Loans will not thereafter be made by such Bank hereunder, whereupon
any request by the Borrower for a Eurodollar Borrowing shall, as to such Bank
only, be deemed a request for an ABR Loan unless such declaration shall be
subsequently withdrawn; and (ii) require that all outstanding Eurodollar Loans
made by it be converted to ABR Loans, in which event all such Eurodollar Loans
shall be automatically converted to ABR Loans as of the effective date of such
notice as provided in paragraph (b) below. In the event any Bank shall exercise
its rights under clause (i) or (ii) of this paragraph (a), all payments and
prepayments of principal which would otherwise have been applied to repay the
Eurodollar Loans that would have been made by such Bank or the converted
Eurodollar Loans of such Bank shall instead be applied to repay the ABR Loans
made by such Bank in lieu of, or resulting from the conversion of, such
Eurodollar Loans.
(b) For purposes of this Section 2.16, a notice to the Borrower by
any Bank pursuant to paragraph (a) above shall be effective, if lawful, and if
any Eurodollar Loans shall then be outstanding, on the last day of the
then-current Interest Period, otherwise, such notice shall be effective on the
date of receipt by the Borrower.
SECTION 2.17 PRO RATA TREATMENT, ETC. All payments and repayments of
principal and interest in respect of the Loans (except as provided in Sections
2.15 and 2.16 and subject to the priorities set forth in Section 2.23(b) if
applicable) shall be made pro rata among the Banks in accordance with the then
outstanding principal amount of the Loans and/or participations in Letter of
Credit Outstandings and all outstanding undrawn Letters of Credit (and the
unreimbursed amount of drawn Letters of Credit) hereunder and all payments of
Commitment Fees and Letter of Credit Fees (other than those payable to a
Fronting Bank) shall be made pro rata among the Banks in accordance with their
Commitments. All payments by the Borrower hereunder shall be (i) net of any tax
applicable to the Borrower or Guarantor and (ii) made in Dollars in immediately
available funds at the office of the Agent by 12:00 noon, New York City time, on
the date on which such payment shall be due. Interest in respect of any Loan
hereunder shall accrue from and including the date of such Loan to but excluding
the date on which such Loan is paid in full or converted to a Loan of a
different Type.
SECTION 2.18 TAXES.
(a) Any and all payments by the Borrower or any Guarantor hereunder
shall be made free and clear of and without deduction for any and all current or
future taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, EXCLUDING (i) taxes imposed on or measured by
the net income or overall gross receipts of the Agent or any Bank (or any
transferee or assignee thereof, including a participation holder (any such
entity being called a
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"TRANSFEREE")) and franchise taxes imposed on the Agent or any Bank (or
Transferee) by the United States or any jurisdiction under the laws of which the
Agent or any such Bank (or Transferee) is organized or in which the applicable
lending office of any such Bank (or Transferee) is located or any political
subdivision thereof or by any other jurisdiction or by any political subdivision
or taxing authority therein other than a jurisdiction in which the Agent or such
Bank (or Transferee) would not be subject to tax but for the execution and
performance of this Agreement and (ii) taxes, levies, imposts, deductions,
charges or withholdings ("AMOUNTS") with respect to payments hereunder to a Bank
(or Transferee) in accordance with laws in effect on the later of the date of
this Agreement and the date such Bank (or Transferee) becomes a Bank (or
Transferee, as the case may be), but not excluding, with respect to such Bank
(or Transferee), any increase in such Amounts solely as a result of any change
in such laws occurring after such later date or any Amounts that would not have
been imposed but for actions (other than actions contemplated by this Agreement)
taken by the Borrower after such later date (all such nonexcluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities being hereinafter
referred to as "TAXES"). If the Borrower or any Guarantor shall be required by
law to deduct any Taxes from or in respect of any sum payable hereunder to the
Banks (or any Transferee) or the Agent, (i) the sum payable shall be increased
by the amount necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section) such Bank
(or Transferee) or the Agent (as the case may be) shall receive an amount equal
to the sum it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions and (iii) the Borrower shall pay the full
amount deducted to the relevant taxing authority or other Governmental Authority
in accordance with applicable law.
(b) In addition, the Borrower agrees to pay any current or future
stamp or documentary taxes or any other excise or property taxes, charges,
assessments or similar levies that arise from any payment made hereunder or from
the execution, delivery or registration of, or otherwise with respect to, this
Agreement or any other Loan Document (hereinafter referred to as "OTHER TAXES").
(c) The Borrower will indemnify each Bank (or Transferee) and the
Agent for the full amount of Taxes and Other Taxes paid by such Bank (or
Transferee) or the Agent, as the case may be, and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted by
the relevant taxing authority or other Governmental Authority. Such
indemnification shall be made within 30 days after the date any Bank (or
Transferee) or the Agent, as the case may be, makes written demand therefor. If
a Bank (or Transferee) or the Agent shall become aware that it is entitled to
receive a refund in respect of Taxes or Other Taxes as to which it has been
indemnified by the Borrower pursuant to this Section, it shall promptly notify
the Borrower of the availability of such refund and shall, within 30 days after
receipt of a request by the Borrower, apply for such refund at the Borrower's
expense. If any Bank (or Transferee) or the Agent receives a refund in respect
of any Taxes or Other Taxes as to which it has been indemnified by the Borrower
pursuant to this Section, it shall promptly notify the Borrower of such refund
and shall, within 30 days after receipt of a request by the Borrower (or
promptly upon receipt, if the Borrower has requested application for such refund
pursuant hereto), repay such refund to the Borrower (to the extent of amounts
that have
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been paid by the Borrower under this Section with respect to such refund plus
interest that is received by the Bank (or Transferee) or the Agent as part of
the refund), net of all out-of-pocket expenses of such Bank (or Transferee) or
the Agent and without additional interest thereon; PROVIDED that the Borrower,
upon the request of such Bank (or Transferee) or the Agent, agrees to return
such refund (plus penalties, interest or other charges) to such Bank (or
Transferee) or the Agent in the event such Bank (or Transferee) or the Agent is
required to repay such refund. Nothing contained in this subsection (c) shall
require any Bank (or Transferee) or the Agent to make available any of its tax
returns (or any other information relating to its taxes that it deems to be
confidential). If the Borrower contests any Taxes or Other Taxes payable by the
Borrower under this Section with the assessing jurisdiction, such Bank (or
Transferee) or the Agent shall use its reasonable efforts to cooperate with the
Borrower and its counsel in the administrative and judicial pursuit of the
relief sought by the Borrower.
(d) Within 30 days after the date of any payment of Taxes or Other
Taxes withheld by the Borrower in respect of any payment to any Bank (or
Transferee) or the Agent, the Borrower will furnish to the Agent, at its address
referred to on the signature pages hereof, the original or a certified copy of a
receipt evidencing payment thereof.
(e) Without prejudice to the survival of any other agreement
contained herein, the agreements and obligations contained in this Section shall
survive the payment in full of the principal of and interest on all Loans made
hereunder.
(f) Each Bank (or Transferee) that is organized under the laws of a
jurisdiction outside the United States shall, if legally able to do so, prior to
the immediately following due date of any payment by the Borrower hereunder,
deliver to the Borrower such certificates, documents or other evidence, as
required by the Code or Treasury Regulations issued pursuant thereto, including
(A) Internal Revenue Service Form W-8BEN or (B) Internal Revenue Service Form
W-ECI and any other certificate or statement of exemption required by Treasury
Regulation Section 1.1441-1, 1.1441-4 or 1.1441-6(c) or any subsequent version
thereof or successors thereto, properly completed and duly executed by such Bank
(or Transferee) establishing that such payment is (i) not subject to United
States Federal withholding tax under the Code because such payment is
effectively connected with the conduct by such Bank (or Transferee) of a trade
or business in the United States or (ii) totally exempt from United States
Federal withholding tax or subject to a reduced rate of such tax under a
provision of an applicable tax treaty. Unless the Borrower and the Agent have
received forms or other documents satisfactory to them indicating that such
payments hereunder are not subject to United States Federal withholding tax or
are subject to such tax at a rate reduced by an applicable tax treaty, the
Borrower or the Agent shall withhold taxes from such payments at the applicable
statutory rate.
(g) The Borrower shall not be required to pay any additional amounts
to any Bank (or Transferee) in respect of United States Federal withholding tax
pursuant to subsection (a) above if the obligation to pay such additional
amounts would not have arisen but for a failure by such Bank (or Transferee) to
comply with the provisions of subsection (f) above.
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(h) Any Bank (or Transferee) claiming any additional amounts payable
pursuant to this Section 2.18 shall use reasonable efforts (consistent with
legal and regulatory restrictions) to file any certificate or document requested
by the Borrower or to change the jurisdiction of its applicable lending office
if the making of such a filing or change would avoid the need for or reduce the
amount of any such additional amounts that may thereafter accrue and would not,
in the sole reasonable determination of such Bank (or Transferee), be otherwise
materially disadvantageous to such Bank (or Transferee).
SECTION 2.19 FEES.
(a) The Borrower shall pay to the Agent, for the respective accounts
of Banks, on the Closing Date, a facility fee in an amount equal to 1/2 of 1% of
the Total Commitment.
(b) The Borrower shall pay to the Agent, for its own account, on the
Closing Date an advisory and structuring fee in the amount of $500,000.
(c) The Borrower shall pay to the Agent, for its own account, a
quarterly administrative agency fee in the amount of $250,000 on each of (i) the
Closing Date and (ii) each quarterly anniversary of the Closing Date, except if
such date is the Maturity Date and the Loans have been repaid in full on or
prior to such date.
(d) The Borrower shall pay to the Co-Agent, for its own account, on
the Closing Date a structuring fee in the amount of $250,000.
(e) The Borrower shall pay to the Co-Agent, for its own account, a
quarterly agency fee in the amount of $75,000 on each of (i) the Closing Date
and (ii) each quarterly anniversary of the Closing Date, except if such date is
the Maturity Date and the Loans have been repaid in full on or prior to such
date.
SECTION 2.20 COMMITMENT FEE. The Borrower shall pay to the Agent, for the
respective account of the Banks, a commitment fee (the "COMMITMENT FEE") for the
period commencing on the Closing Date to the Termination Date or the earlier
date of termination of the Commitment, computed (on the basis of the actual
number of days elapsed over a year of 360 days) at the rate of one-half of one
percent (1/2%) per annum on the average daily Unused Total Commitment. Such
Commitment Fee, to the extent then accrued, shall be payable (x) monthly, in
arrears, on the last calendar day of each month, (y) on the Termination Date and
(z) as provided in Section 2.10 hereof, upon any reduction or termination in
whole or in part of the Total Commitment.
SECTION 2.21 LETTER OF CREDIT FEES. The Borrower shall pay with respect to
each Letter of Credit (i) to the Agent on behalf of the Banks a fee calculated
(on the basis of the actual number of days elapsed over a year of 360 days) at
the rate of (x) two and one-half percent (2-1/2%) per annum on the daily average
Letter of Credit Outstandings and (ii) to the Fronting Bank such Fronting Bank's
customary fees for issuance, amendments and processing referred to in Section
2.03. In
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addition, the Borrower agrees to pay each Fronting Bank for its account a
fronting fee of one quarter of one percent (1/4%) per annum in respect of each
Letter of Credit issued by such Fronting Bank, for the period from and including
the date of issuance of such Letter of Credit to and including the date of
termination of such Letter of Credit, computed at a rate, and payable at times,
to be determined by such Fronting Bank, the Borrower and the Agent. Accrued fees
described in clause (i) of the first sentence of this paragraph in respect of
each Letter of Credit shall be due and payable monthly in arrears on the last
calendar day of each month and on the Termination Date, or such earlier date as
the Total Commitment is terminated. Accrued fees described in clause (ii) of the
first sentence of this paragraph in respect of each Letter of Credit shall be
payable at times to be determined by the Fronting Bank, the Borrower and the
Agent.
SECTION 2.22 NATURE OF FEES. All Fees shall be paid on the dates due, in
immediately available funds, to the Agent for the respective accounts of the
Agent, the Co-Agent and the Banks, as provided herein (or, in the case of the
fees described in Sections 2.19(d) and (e), to the Co-Agent for its own
account). Once paid, none of the Fees shall be refundable under any
circumstances.
SECTION 2.23 PRIORITY AND LIENS.
(a) The Borrower and each of the Guarantors hereby covenants,
represents and warrants that, upon entry of the Final Order, the Obligations of
the Borrower and the Guarantors hereunder and under the Loan Documents and in
respect of Indebtedness permitted by Section 6.03(vi): (i) pursuant to Section
364(c)(1) of the Bankruptcy Code, shall at all times constitute allowed
administrative expense claims in the Cases having priority over all
administrative expenses of the kind specified in Sections 503(b) or 507(b) of
the Bankruptcy Code, which shall rank pari passu (A) with the Superpriority
Claims in respect of the obligations under the Working Capital Facility and (B)
with respect to Copperweld, the Superpriority Claims granted to certain
creditors of Copperweld pursuant to the adequate protection stipulation
heretofore entered in the Cases on or about February 20, 2001 (as the same may
be amended, modified or extended from time to time by an order of the Bankruptcy
Court, the "COPPERWELD STIPULATION"); (ii) pursuant to Section 364(c)(2) of the
Bankruptcy Code, shall at all times be secured by a perfected first priority
Lien on (x) all present and future Inventory and Receivables of LTV Steel and
Georgia Tubing and all present and future Receivables of Copperweld (including,
without limitation, the Existing Receivables Portfolio and the Existing
Inventory Portfolio) and the proceeds and products thereof, whether now owned or
hereafter acquired, (y) the Hennepin Works to secure a portion of the
Obligations equal to $28,500,000, and (z) all cash maintained in the Letter of
Credit Account and any direct investments of the funds contained therein; (iii)
subject to paragraph (b) below, pursuant to Section 364(c)(3) of the Bankruptcy
Code, shall be secured by a perfected Lien upon (x) all property of the Borrower
and the Guarantors that is subject to valid and perfected Liens in existence on
the Filing Date or to valid Liens in existence on the Filing Date that are
perfected subsequent to the Filing Date as permitted by Section 546(b) of the
Bankruptcy Code or to Permitted Liens and (y) substantially all assets of VP
Buildings and all other unencumbered (prior to the granting of Liens to secure
the Working Capital Facility) assets of the Borrower and the Guarantors, junior
only to such valid and perfected Liens; subject only to (x) in the event of the
occurrence and during the continuance of an Event of Default
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or an event that would constitute an Event of Default with the giving of notice
or lapse of time or both, the payment of allowed and unpaid professional fees
and disbursements incurred by the Borrower, the Guarantors and any statutory
committees appointed in the Cases in an aggregate amount not in excess of
$5,000,000 IN TOTO and (y) the payment of unpaid fees pursuant to 28 U.S.C.
Section 1930 and to the Clerk of the Bankruptcy Court (collectively, the
"CARVE-OUT"), it being understood that the Carve-Out shall be applied PRO RATA
with any similar amounts provided for in any other instrument, agreement or
order to which the Borrower or any of the Guarantors are subject based on the
respective magnitude of the Carve-Out and such other amounts (including, without
limitation, those provided for in the Working Capital Facility and in the
Copperweld Stipulation), PROVIDED that following the Termination Date amounts in
the Letter of Credit Account shall not be subject to the Carve-Out. The Banks
agree that so long as no Event of Default or event which with the giving of
notice or lapse of time or both would constitute an Event of Default shall have
occurred, the Borrower and the Guarantors shall be permitted to pay compensation
and reimbursement of expenses allowed and payable under 11 U.S.C. Section 330
and 11 U.S.C. Section 331, as the same may be due and payable, and the same
shall not reduce the Carve-Out.
(b) Notwithstanding anything to the contrary set forth herein, the
Liens on the assets described in paragraph (a)(iii) above shall be allocated
among the Banks such that each Bank that is also a lender under the Working
Capital Facility with a Revolving Credit Commitment (as defined therein)
thereunder shall have a priority in such Liens to secure a portion of the
Obligations held by it such that each Bank that is also a lender under the
Working Capital Facility with a Revolving Credit Commitment thereunder shall
receive, for application to such Bank's exposure and permanent reduction of its
Commitment and Commitment Percentage (consistent with Section 2.13(e) hereof)
under this Agreement and the other Loan Documents, a percentage of the Net Cash
Proceeds of such Liens that is equal to such Bank's Revolving Credit Commitment
(not including any portion of the $35,000,000 Term Loan Commitment thereunder)
in the Working Capital Facility divided by the aggregate Revolving Credit
Commitments of all Banks therein (before any of such Net Cash Proceeds are
received by Banks that are not also lenders under the Working Capital Facility).
After application of the Net Cash Proceeds from the Liens on the assets
described in paragraph (a)(iii) above as described in this subparagraph, the
Agent shall recalculate each Bank's Commitment Percentage under this Agreement
and the other Loan Documents (provided that, notwithstanding any such
recalculation, subsequent optional Commitment reductions pursuant to Section
2.10 and subsequent mandatory prepayments and Commitment reductions provided for
in Section 2.13(e), other than with respect to the first $28,500,000 of Net Cash
Proceeds of a sale or other disposition of the Hennepin Works, shall be applied
in accordance with each Bank's Commitment Percentage as in effect on the Closing
Date and not in accordance with each Bank's Commitment Percentage as so
recalculated; the first $28,500,000 of Net Cash Proceeds of a sale or other
disposition of the Hennepin Works shall be applied in accordance with each
Bank's Commitment Percentage as recalculated). At such time as the Commitment
and the Commitment Percentage of each Bank that is also a lender under the
Working Capital Facility with a Revolving Credit Commitment therein has been
permanently reduced to zero (0) under this Agreement as a result of the
application of Net Cash Proceeds as set forth in the first sentence of this
Section, then any remaining Net Cash Proceeds from the Liens on the assets
described in paragraph (a)(iii) above shall be distributed to the remaining
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Banks under this Agreement and the other Loan Documents. As used in this
Section, the words "Bank that is also a lender under the Working Capital
Facility" shall mean a financial institution that was a party to the Existing
Receivables Facility or the Existing Inventory Facility at the time of the entry
of the Final Order (and any assignee of such financial institution, but only to
the extent (x) such financial institution had a Revolving Credit Commitment
under the Working Capital Facility immediately prior to such assignment or (y)
such assignee has its own Revolving Credit Commitment under the Working Capital
Facility without regard to whether its assignor had a Revolving Credit
Commitment thereunder).
(c) The Banks shall not be entitled to enforce any of the Liens
described in paragraph (a)(iii) above (x) so long as there are any amounts
outstanding under the Working Capital Facility or any commitment is in existence
thereunder or (y) with respect to collateral which is subject to valid and
perfected Liens securing the Copperweld Term Loan.
(d) Notwithstanding anything to the contrary set forth herein (i) in
the event the Bankruptcy Court approves a retention and severance program to be
proposed by the Borrower (as to which the Banks reserve all of their rights),
the claims and liens described above shall not apply to that portion of a
segregated or trust account established by the Borrower to fund such program
that does not exceed the lesser of the amount authorized by the Bankruptcy Court
and $8,000,000 and (ii) the claims and Liens described above shall not apply to
the assets included in the Borrower's Nonqualified Plans Master Trust and
Copperweld's separate trusts for its Supplemental Pension Plan and for its
employment agreement with Xxxx X. Xxxxxx, in each instance, to the extent
approved by an order or orders of the Bankruptcy Court.
(e) Subject to the priorities set forth in subsection (a) above, the
Carve-Out and the provisions of subsections (b), (c) and (d) above, as to all
real property the title to which is held by the Borrower or any of the
Guarantors, or the possession of which is held by the Borrower or any of the
Guarantors pursuant to leasehold interest, the Borrower and each Guarantor
hereby assigns and conveys as security, grants a security interest in,
hypothecates, mortgages, pledges and sets over unto the Agent on behalf of the
Banks all of the right, title and interest of the Borrower and such Guarantor in
all of such owned real property and in all such leasehold interests, together in
each case with all of the right, title and interest of the Borrower and such
Guarantor in and to all buildings, improvements, and fixtures related thereto,
any lease or sublease thereof, all general intangibles relating thereto and all
proceeds thereof. The Borrower and each Guarantor acknowledges that, pursuant to
the Final Order, the Liens in favor of the Agent on behalf of the Banks in all
of such real property and leasehold instruments shall be perfected without the
recordation of any instruments of mortgage or assignment. The Borrower and each
Guarantor further agrees that, upon the request of the Agent, the Borrower and
such Guarantor shall enter into separate fee and leasehold mortgages in
recordable form with respect to such properties on terms reasonably satisfactory
to the Agent.
SECTION 2.24 RIGHT OF SET-OFF. Subject to the provisions of Section 7.01,
upon the occurrence and during the continuance of any Event of Default, the
Agent and each Bank is hereby authorized at any time and from time to time, to
the fullest extent permitted by law and without
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further order of or application to the Bankruptcy Court, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by the Agent and each
such Bank to or for the credit or the account of the Borrower or any Guarantor
against any and all of the obligations of such Borrower or Guarantor now or
hereafter existing under the Loan Documents, irrespective of whether or not such
Bank shall have made any demand under any Loan Document and although such
obligations may not have been accelerated. Each Bank and the Agent agrees
promptly to notify the Borrower and Guarantors after any such set-off and
application made by such Bank or by the Agent, as the case may be, PROVIDED that
the failure to give such notice shall not affect the validity of such set-off
and application. The rights of each Bank and the Agent under this Section are in
addition to other rights and remedies which such Bank and the Agent may have
upon the occurrence and during the continuance of any Event of Default.
SECTION 2.25 SECURITY INTEREST IN LETTER OF CREDIT ACCOUNT. Pursuant to
Section 364(c)(2) of the Bankruptcy Code, the Borrower and the Guarantors hereby
assign and pledge to the Agent, for its benefit and for the ratable benefit of
the Banks, and hereby grant to the Agent, for its benefit and for the ratable
benefit of the Banks, a first priority security interest, senior to all other
Liens, if any, in all of the Borrower's and the Guarantors' right, title and
interest in and to the Letter of Credit Account and any direct investment of the
funds contained therein. Cash held in the Letter of Credit Account shall not be
available for use by the Borrower, whether pursuant to Section 363 of the
Bankruptcy Code or otherwise and shall be released to the Borrower as described
in clause (ii)(y) of Section 2.03(b).
SECTION 2.26 PAYMENT OF OBLIGATIONS. Subject to the provisions of Section
7.01, upon the maturity (whether by acceleration or otherwise) of any of the
Obligations under this Agreement or any of the other Loan Documents of the
Borrower and the Guarantors, the Banks shall be entitled to immediate payment of
such Obligations without further application to or order of the Bankruptcy
Court.
SECTION 2.27 NO DISCHARGE; SURVIVAL OF CLAIMS. Each of the Borrower and
the Guarantors agrees that (i) its obligations hereunder shall not be discharged
by the entry of an order confirming a Reorganization Plan (and each of the
Borrower and the Guarantors, pursuant to Section 1141(d)(4) of the Bankruptcy
Code, hereby waives any such discharge) and (ii) the Superpriority Claim granted
to the Agent and the Banks pursuant to the Final Order and described in Section
2.23 and the Liens granted to the Agent pursuant to the Final Order and
described in Sections 2.23 and 2.25 shall not be affected in any manner by the
entry of an order confirming a Reorganization Plan.
SECTION 3. REPRESENTATIONS AND WARRANTIES
In order to induce the Banks to make Loans and issue and/or
participate in Letters of Credit hereunder, the Borrower and each of the
Guarantors jointly and severally represent and warrant as follows:
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SECTION 3.01 ORGANIZATION AND AUTHORITY. Each of the Borrower and the
Guarantors (i) is duly organized and validly existing under the laws of the
State of its organization and is duly qualified as a foreign entity and, other
than as set forth on Schedule 3.01, is in good standing in each jurisdiction in
which the failure to so qualify would have a material adverse effect on the
financial condition, operations, business, properties, assets or prospects of
the Borrower and the Guarantors taken as a whole; (ii) subject to the entry by
the Bankruptcy Court of the Final Order has the requisite power and authority to
effect the transactions contemplated hereby, and by the other Loan Documents to
which it is a party, and (iii) subject to the entry by the Bankruptcy Court of
the Final Order has all requisite power and authority and the legal right to
own, pledge, mortgage and operate its properties, and to conduct its business as
now or currently proposed to be conducted.
SECTION 3.02 DUE EXECUTION. Upon the entry by the Bankruptcy Court of the
Final Order, the execution, delivery and performance by each of the Borrower and
the Guarantors of each of the Loan Documents to which it is a party (i) are
within the respective powers of each of the Borrower and the Guarantors, have
been duly authorized by all necessary action including the consent of
shareholders where required, and do not (A) contravene the charter or by-laws or
other organizational documents of any of the Borrower or the Guarantors, (B)
violate any law (including, without limitation, the Securities Exchange Act of
1934) or regulation (including, without limitation, Regulations T, U or X of the
Board of Governors of the Federal Reserve System), or any order or decree of any
court or Governmental Authority, (C) conflict with or result in a breach of, or
constitute a default under, any material indenture, mortgage or deed of trust
entered into after the Filing Date or any material lease, agreement or other
instrument entered into after the Filing Date binding on the Borrower or the
Guarantors or any of their properties, or (D) result in or require the creation
or imposition of any Lien upon any of the property of any of the Borrower or the
Guarantors other than the Liens granted pursuant to this Agreement, the other
Loan Documents or the Final Order; and (ii) do not require the consent,
authorization by or approval of or notice to or filing or registration with any
Governmental Authority other than the entry of the Final Order. Upon the entry
by the Bankruptcy Court of the Final Order, this Agreement has been duly
executed and delivered by each of the Borrower and the Guarantors. This
Agreement is, and each of the other Loan Documents to which the Borrower and
each of the Guarantors is or will be a party, when delivered hereunder or
thereunder, will be, a legal, valid and binding obligation of the Borrower and
each Guarantor, as the case may be, enforceable against the Borrower and the
Guarantors, as the case may be, in accordance with its terms and the Final
Order.
SECTION 3.03 STATEMENTS MADE. The information that has been delivered in
writing by the Borrower or any of the Guarantors to the Agent, the Co-Agent or
to the Bankruptcy Court in connection with any Loan Document (including, without
limitation, the Borrower's January 11, 2001 presentation to the Banks, the
Co-Agent and the Agent) and any financial statement delivered pursuant hereto or
thereto (other than to the extent that the presentation or any such statements
constitute projections), taken as a whole and in light of the circumstances in
which made, contains no untrue statement of a material fact and does not omit to
state a material fact necessary to make such statements not misleading; and, to
the extent that any such information constitutes projections, such projections
were prepared in good faith on the basis of assumptions, methods, data, tests
and
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information believed by the Borrower or such Guarantor to be reasonable at the
time such projections were prepared.
SECTION 3.04 FINANCIAL STATEMENTS. The Borrower has furnished the Banks
with copies of the draft audited consolidated financial statement and schedules
of the Borrower for the fiscal year ended December 31, 2000. Such financial
statements present fairly the financial condition and results of operations of
the Borrower and the Guarantors on a consolidated basis as of such date and for
such period; such balance sheets and the notes thereto disclose all liabilities,
direct or contingent, of the Borrower and the Guarantors as of the dates thereof
required to be disclosed by GAAP and such financial statements were prepared in
a manner consistent with GAAP. No material adverse change in the operations,
business, properties, assets or condition (financial or otherwise) of the
Borrower and the Guarantors, taken as a whole, has occurred from that set forth
in the Borrower's consolidated financial statements for the fiscal year ended
December 31, 2000 other than those which customarily occur as a result of events
leading up to and following the commencement of a proceeding under Chapter 11 of
the Bankruptcy Code and the commencement of the Cases.
SECTION 3.05 OWNERSHIP. Each of the Persons listed on Schedule 3.05 is a
wholly-owned (except as described on Schedule 3.05), direct or indirect
Subsidiary of the Borrower and the Borrower owns no other Subsidiaries, whether
directly or indirectly other than as set forth on Schedule 3.05.
SECTION 3.06 LIENS. Except for Liens existing on the Filing Date as
reflected on Schedule 3.06, there are no Liens of any nature whatsoever on any
assets of the Borrower or any of the Guarantors other than: (i) Liens granted
pursuant to the Working Capital Facility; (ii) Permitted Liens; (iii) Liens
permitted pursuant to Sections 6.01(v) and (vi); and (iv) Liens in favor of the
Agent and the Banks. Neither the Borrower nor the Guarantors are parties to any
contract, agreement, lease or instrument the performance of which, either
unconditionally or upon the happening of an event, will result in or require the
creation of a Lien on any assets of the Borrower or any Guarantor or otherwise
result in a violation of this Agreement other than the Liens granted to the
Agent and the Banks as provided for in this Agreement.
SECTION 3.07 COMPLIANCE WITH LAW.
(a) Except as set forth on Schedule 3.07, (i) the operations of the
Borrower and the Guarantors comply in all material respects with all applicable
environmental, health and safety statutes and regulations, including, without
limitation, regulations promulgated under the Resource Conservation and Recovery
Act (42 U.S.C. Sections 6901 ET SEQ.); (ii) to the Borrower's and each of the
Guarantor's knowledge, none of the operations of the Borrower or the Guarantors
is the subject of any Federal or state investigation evaluating whether any
remedial action involving a material expenditure by the Borrower or any
Guarantor is needed to respond to a release of any Hazardous Waste or Hazardous
Substance (as such terms are defined in any applicable state or Federal
environmental law or regulations) into the environment; and (iii) to the
Borrower's and each of the Guarantor's knowledge, the Borrower and the
Guarantors do not have any material contingent
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liability in connection with any release of any Hazardous Waste or Hazardous
Substance into the environment.
(b) Except as set forth on Schedule 3.07, neither the Borrower nor
any Guarantor is, to the best of its knowledge, in violation of any law, rule or
regulation, or in default with respect to any judgment, writ, injunction or
decree of any Governmental Authority the violation of which, or a default with
respect to which, would have a material adverse effect on the financial
condition, operations, business, properties, assets or prospects of the Borrower
and the Guarantors taken as a whole.
SECTION 3.08 INSURANCE. All policies of insurance of any kind or nature
owned by or issued to the Borrower and the Guarantors, including, without
limitation, policies of life, fire, theft, product liability, public liability,
property damage, other casualty, employee fidelity, workers' compensation,
employee health and welfare, title, property and liability insurance, are in
full force and effect and are of a nature and provide such coverage as is
customarily carried by companies of the same or similar size in the same or
similar businesses as the Borrower and the Guarantors.
SECTION 3.09 USE OF PROCEEDS. The proceeds of the Loans and the Letters of
Credit shall be used (x) to repurchase the Existing Receivables Portfolio, (y)
to repurchase the Existing Inventory Portfolio and (z) for working capital
purposes of the Borrower and the Guarantors, to the extent that following the
repurchases described in clauses (x) and (y) (and the payments required
thereby), the Borrower prepays Loans.
SECTION 3.10 LITIGATION. Other than as set forth on Schedule 3.10, there
are no unstayed actions, suits or proceedings pending or, to the knowledge of
the Borrower or the Guarantors, threatened against or affecting the Borrower or
the Guarantors or any of their respective properties, before any court or
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, which is reasonably likely to be determined adversely to
the Borrower or the Guarantors and, if so determined adversely to the Borrower
or the Guarantors would have a material adverse effect on the financial
condition, business, properties, prospects, operations or assets of the Borrower
and the Guarantors, taken as a whole.
SECTION 4. CONDITIONS OF LENDING
SECTION 4.01 CONDITIONS PRECEDENT TO INITIAL LOANS AND INITIAL LETTERS OF
CREDIT. The obligation of the Banks to make the initial Loans or the Fronting
Bank to issue the initial Letter of Credit, whichever may occur first, is
subject to the following conditions precedent:
(a) SUPPORTING DOCUMENTS. The Agent shall have received for each of
the Borrower and the Guarantors:
(i) a copy of such entity's certificate of incorporation, as
amended, certified as of a recent date by the Secretary of State of the
state of its incorporation;
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(ii) a certificate of such Secretary of State, dated as of a recent
date, as to the good standing of and payment of taxes by that entity and
as to the charter documents on file in the office of such Secretary of
State, except for those entities set forth on Schedule 3.01; and
(iii) a certificate of the Secretary or an Assistant Secretary of
that entity dated the date of the initial Loans or the initial Letter of
Credit hereunder, whichever first occurs, and certifying (A) that attached
thereto is a true and complete copy of the by-laws of that entity as in
effect on the date of such certification, (B) that attached thereto is a
true and complete copy of resolutions adopted by the Board of Directors or
stockholder of that entity authorizing the Borrowings and Letter of Credit
extensions hereunder, the execution, delivery and performance in
accordance with their respective terms of this Agreement, the Loan
Documents and any other documents required or contemplated hereunder or
thereunder and the granting of the security interest in the Letter of
Credit Account and other Liens contemplated hereby, (C) that the
certificate of incorporation of that entity has not been amended since the
date of the last amendment thereto indicated on the certificate of the
Secretary of State furnished pursuant to clause (i) above and (D) as to
the incumbency and specimen signature of each officer of that entity
executing this Agreement and the Loan Documents or any other document
delivered by it in connection herewith or therewith (such certificate to
contain a certification by another officer of that entity as to the
incumbency and signature of the officer signing the certificate referred
to in this clause (iii)).
(b) FINAL ORDER. At the time of the making of the initial Loans or
at the time of the issuance of the initial Letters of Credit, whichever first
occurs, the Agent, the Co-Agent and the Banks shall have received a certified
copy of an order of the Bankruptcy Court in substantially the form of Exhibit A
(the "FINAL ORDER") approving the Loan Documents and granting the Superpriority
Claim status and first priority and other Liens described in Section 2.23 which
Final Order (i) shall have been entered by not later than Xxxxx 00, 0000, (xx)
shall authorize the repurchase of the Existing Receivables Portfolio and the
Existing Inventory Portfolio with the proceeds of the Loans, (iii) shall have
determined that the sales effected pursuant to each of the Existing Receivables
Facility and the Existing Inventory Facility constituted "true sales" effective
on the Closing Date, (iv) shall include a termination of exclusivity in favor of
the Agent, the Co-Agent and the Banks upon the occurrence and continuation of an
Event of Default, (v) shall approve the payment by the Borrower of all of the
Fees set forth in Section 2.19, 2.20 and 2.21, (vi) shall be in full force and
effect, and (vii) shall not have been stayed, reversed, modified or amended in
any respect; and, if the Final Order is the subject of a pending appeal in any
respect, neither the making of such Loans nor the issuance of such Letter of
Credit nor the performance by the Borrower or any of the Guarantors of any of
their respective obligations hereunder or under the Loan Documents or under any
other instrument or agreement referred to herein shall be the subject of a
presently effective stay pending appeal.
(c) REPAYMENT OF EXISTING OBLIGATIONS. The Borrower shall have paid
in full the aggregate principal amounts outstanding under the Existing
Receivables Facility and the Existing
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Inventory Facility, together with accrued and unpaid interest thereon and unpaid
fees and expenses in connection therewith.
(d) WORKING CAPITAL FACILITY. The Bankruptcy Court shall have
entered a final order approving the Working Capital Facility, and the Working
Capital Facility shall be substantially in the form as filed with the Bankruptcy
Court on March 15, 2001 or otherwise reasonably satisfactory in form and
substance to the Required Banks.
(e) WITHDRAWAL OF EMERGENCY MOTION. The Borrower and the Guarantors
shall have withdrawn with prejudice its Emergency Motion for (1) Order Granting
Interim Authority to Use Cash Collateral and (2) Scheduling and Establishing
Deadlines Relating to a Final Hearing dated December 29, 2000 (the "EMERGENCY
MOTION").
(f) SECURITY AND PLEDGE AGREEMENT. The Borrower and each of the
Guarantors shall have duly executed and delivered to the Agent a Security and
Pledge Agreement in substantially the form of Exhibit B (the "SECURITY AND
PLEDGE AGREEMENT").
(g) DRAFT FINANCIAL STATEMENTS. The Agent, the Co-Agent and the
Banks shall have received a satisfactory draft of the Borrower's audited
consolidated financial statements for the fiscal year ended December 31, 2000.
(h) SALE OF VP BUILDINGS. The Agent and the Banks shall have
received a copy of any letter received by the Borrower expressing interest in an
acquisition of the stock or assets of VP Buildings or its Subsidiaries, together
with any letters of intent, memoranda of understanding or similar undertakings
entered into by the Borrower and a prospective purchaser or proffered by a
prospective purchaser with respect to any such sale or other disposition.
(i) OPINION OF COUNSEL. The Agent, the Co-Agent and the Banks shall
have received the favorable written opinion of counsel to the Borrower and the
Guarantors reasonably acceptable to the Agent and the Co-Agent, dated the date
of the initial Loans or the issuance of the initial Letter of Credit, whichever
first occurs, substantially in the form of Exhibit C.
(j) PAYMENT OF FEES. The Borrower shall have paid to the Agent for
distribution to the Agent, the Co-Agent and the Banks, as the case may be, the
then unpaid balance of all accrued and unpaid Fees due under and pursuant to
this Agreement.
(k) CORPORATE AND JUDICIAL PROCEEDINGS. All corporate and judicial
proceedings and all instruments and agreements in connection with the
transactions among the Borrower, the Guarantors, the Agent, the Co-Agent and the
Banks contemplated by this Agreement shall be reasonably satisfactory in form
and substance to the Agent and the Co-Agent, and the Agent and the Co-Agent
shall have received all information and copies of all documents and papers,
including records of corporate and judicial proceedings, which the Agent may
have reasonably requested in
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connection therewith, such documents and papers where appropriate to be
certified by proper corporate, governmental or judicial authorities.
(l) UCC SEARCHES. The Agent shall have received UCC searches
conducted in the jurisdictions in which the Borrower and the Guarantors conduct
business (dated as of a date reasonably satisfactory to the Agent), reflecting
the absence of Liens and encumbrances on the assets of the Borrower and the
Guarantors other than Liens described in Section 3.06 and such other Liens as
may be satisfactory to the Agent.
(m) CLOSING DOCUMENTS. The Agent shall have received all documents
required by Section 4.01 reasonably satisfactory in form and substance to the
Agent and the Co-Agent.
SECTION 4.02 CONDITIONS PRECEDENT TO EACH LOAN AND EACH LETTER OF CREDIT.
The obligation of the Banks to make each Loan and of the Fronting Bank to issue
each Letter of Credit, including the initial Loan and the initial Letters of
Credit, is subject to the following conditions precedent:
(a) NOTICE. The Agent shall have received a notice with respect to
such borrowing or issuance, as the case may be, as required by Section 2.
(b) REPRESENTATIONS AND WARRANTIES. All representations and
warranties contained in this Agreement and the other Loan Documents shall be
true and correct in all material respects on and as of the date of each
Borrowing or the issuance of each Letter of Credit hereunder with the same
effect as if made on and as of such date except to the extent such
representations and warranties expressly relate to an earlier date.
(c) NO DEFAULT. On the date of each Borrowing hereunder or the
issuance of each Letter of Credit, no Event of Default or event which upon
notice or lapse of time or both would constitute an Event of Default shall have
occurred and be continuing.
(d) FINAL ORDER. The Final Order shall be in full force and effect
and shall not have been stayed, reversed, modified or amended in any respect
without the prior written consent of the Required Banks.
(e) PAYMENT OF FEES. The Borrower shall have paid to the Agent the
then unpaid balance of all accrued and unpaid Fees then payable under and
pursuant to this Agreement.
(f) BORROWING BASE CERTIFICATE. The Agent and the Co-Agent shall
have received the timely delivery of the most recent Borrowing Base Certificate
(dated no more than seven (7) days prior to the making of a Loan or the issuance
of a Letter of Credit) required to be delivered hereunder.
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The request by the Borrower for, and the acceptance by the Borrower of, each
extension of credit hereunder shall be deemed to be a representation and
warranty by the Borrower that the conditions specified in this Section have been
satisfied or waived at that time.
SECTION 5. AFFIRMATIVE COVENANTS
From the date hereof and for so long as any Commitment shall be in
effect or any Letter of Credit shall remain outstanding (in a face amount in
excess of the amount of cash then held in the Letter of Credit Account, or in
excess of the face amount of letters of credit delivered, in each case pursuant
to Section 2.03(b)), or any amount shall remain outstanding or unpaid under this
Agreement, the Borrower and each of the Guarantors agree that, unless the
Required Banks shall otherwise consent in writing, the Borrower and each of the
Guarantors will:
SECTION 5.01 FINANCIAL STATEMENTS, REPORTS, ETC. In the case of the
Borrower and the Guarantors, deliver to the Agent, the Co-Agent and each of the
Banks:
(a) within 90 days after the end of each fiscal year, the Borrower's
consolidated balance sheet and related statement of income and cash flows,
showing the financial condition of the Borrower and its Subsidiaries on a
consolidated basis as of the close of such fiscal year and the results of their
respective operations during such year, the consolidated statements of the
Borrower to be audited by Ernst & Young LLP or other independent public
accountants of recognized national standing and accompanied by an opinion of
such accountants (which shall not be qualified in any material respect other
than with respect to the Cases or a going concern qualification) and to be
certified by a Financial Officer of the Borrower to the effect that such
consolidated financial statements fairly present the financial condition and
results of operations of the Borrower and its Subsidiaries on a consolidated
basis in accordance with GAAP;
(b) within 45 days after the end of each of the first three fiscal
quarters and within 90 days after the end of each fiscal year, the Borrower's
consolidated balance sheets and related statements of income and cash flows,
showing the financial condition of the Borrower and its Subsidiaries on a
consolidated basis (and, with respect to the annual statements, on a
consolidating basis) as of the close of such fiscal period and the results of
their operations during such fiscal period and the then elapsed portion of the
fiscal year, each certified by a Financial Officer as fairly presenting the
financial condition and results of operations of the Borrower and its
Subsidiaries on a consolidated basis (and, with respect to the annual
statements, on a consolidating basis) in accordance with GAAP, subject to normal
year-end audit adjustments, such unaudited annual financial statements to be
subject to the auditing procedures applied to the audit of the annual
consolidated financial statements delivered pursuant to subsection (a) above, in
a manner satisfactory to the Agent and the Co-Agent;
(c) (i) concurrently with any delivery of financial statements under
(a) and (b) above, a certificate of a Financial Officer certifying such
statements (A) certifying that no Event of Default or event which upon notice or
lapse of time or both would constitute an Event of Default has
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occurred, or, if such an Event of Default or event has occurred, specifying the
nature and extent thereof and any corrective action taken or proposed to be
taken with respect thereto and (B) setting forth computations in reasonable
detail satisfactory to the Agent and the Co-Agent demonstrating compliance with
the provisions of Sections 6.03, 6.04, 6.05 and 6.10 and (ii) concurrently with
any delivery of financial statements under (a) above, a certificate (which
certificate may be limited to accounting matters and disclaim responsibility for
legal interpretations) of the accountants auditing the consolidated financial
statements delivered under (a) above stating that, in the course of the regular
audit of the business of the Borrower and its Subsidiaries, nothing has come to
the attention of such accountants that an Event of Default has occurred and is
continuing, or if, in the opinion of such accountants, an Event of Default has
occurred and is continuing, specifying the nature thereof and all relevant facts
with respect thereto;
(d) as soon as available, but no more than 25 days after the end of
each fiscal month, the unaudited monthly cash flow reports of the Borrower and
its Subsidiaries on a consolidated basis for such fiscal month and the results
of their operations during such fiscal month and the then elapsed portion of the
fiscal quarter, together with a monthly comparison of actual results to plan and
a variance analysis for such fiscal month, PROVIDED, if such fiscal month is at
the end of a fiscal year or a fiscal quarter, such report shall be delivered in
accordance with paragraphs (a) or (b) above;
(e) by the third Business Day of each week following the Closing
Date, as of Friday of the immediately preceding week, a 13-week rolling cash
flow projection;
(f) as soon as possible, and in any event within 25 days of the
Closing Date, the consolidated audited financial statements of the Borrower and
its Subsidiaries as of December 31, 2000;
(g) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by it
with the Securities and Exchange Commission, or any governmental authority
succeeding to any of or all the functions of said commission, or with any
national securities exchange, as the case may be;
(h) as soon as available and in any event (A) within 30 days after
the Borrower or any of its ERISA Affiliates knows or has reason to know that any
Termination Event described in clause (i) of the definition of Termination Event
with respect to any Single Employer Plan of the Borrower or such ERISA Affiliate
has occurred or is reasonably likely to occur and (B) within 10 days after the
Borrower or any of its ERISA Affiliates knows or has reason to know that any
other Termination Event with respect to any such Plan has occurred or is
reasonably likely to occur, a statement of a Financial Officer of the Borrower
describing such Termination Event and the action, if any, which the Borrower or
such ERISA Affiliate proposes to take with respect thereto;
(i) promptly and in any event within 10 days after receipt thereof
by the Borrower or any of its ERISA Affiliates from the PBGC copies of each
notice received by the Borrower or any
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such ERISA Affiliate of the PBGC's intention to terminate any Single Employer
Plan of the Borrower or such ERISA Affiliate or to have a trustee appointed to
administer any such Plan;
(j) if requested by the Agent, promptly and in any event within 30
days after the filing thereof with the Internal Revenue Service, copies of each
Schedule B (Actuarial Information) to the annual report (Form 5500 Series) with
respect to each Single Employer Plan of the Borrower or any of its ERISA
Affiliates;
(k) within 10 days after notice is given or required to be given to
the PBGC under Section 302(f)(4)(A) of ERISA of the failure of the Borrower or
any of its ERISA Affiliates to make timely payments to a Plan, a copy of any
such notice filed and a statement of a Financial Officer of the Borrower setting
forth (A) sufficient information necessary to determine the amount of the lien
under Section 302(f)(3), (B) the reason for the failure to make the required
payments and (C) the action, if any, which the Borrower or any of its ERISA
Affiliates proposed to take with respect thereto;
(l) promptly and in any event within 10 days after receipt thereof
by the Borrower or any ERISA Affiliate from a Multiemployer Plan sponsor, a copy
of each notice received by the Borrower or any ERISA Affiliate concerning (A)
the imposition of Withdrawal Liability by a Multiemployer Plan, (B) the
determination that a Multiemployer Plan is, or is expected to be, in
reorganization within the meaning of Title IV of ERISA, (C) the termination of a
Multiemployer Plan within the meaning of Title IV of ERISA, or (D) the amount of
liability incurred, or which may be incurred, by the Borrower or any ERISA
Affiliate in connection with any event described in clause (A), (B) or (C)
above;
(m) promptly, from time to time, such other information regarding
the operations, business affairs and financial condition of the Borrower or any
Guarantor, or compliance with the terms of any material loan or financing
agreements as the Agent or the Co-Agent, at the request of any Bank, may
reasonably request; and
(n) furnish to the Agent, the Co-Agent and their respective counsel
promptly after the same is available, copies of all pleadings, motions,
applications, judicial information, financial information and other documents
filed by or on behalf of the Borrower or any of the Guarantors with the
Bankruptcy Court in the Cases, and use their best efforts to so furnish all
financial information and other documents distributed by or on behalf of the
Borrower or any of the Guarantors to any official committee appointed in the
Cases.
SECTION 5.02 CORPORATE EXISTENCE. Preserve and maintain in full force and
effect all governmental rights, privileges, qualifications, permits, licenses
and franchises necessary or desirable in the normal conduct of its business
except (i)(A) if in the reasonable business judgment of the Borrower or its
subsidiary, as the case may be, it is in its best economic interest not to
preserve and maintain such rights, privileges, qualifications, permits, licenses
and franchises, and (B) such failure to preserve the same could not, in the
aggregate, reasonably be expected to have a material adverse
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effect on the operations, business, properties, assets, prospects or condition
(financial or otherwise) of the Borrower and the Guarantors, taken as a whole,
and (ii) as otherwise permitted in connection with sales of assets permitted by
Section 6.11.
SECTION 5.03 INSURANCE. (a) Keep its insurable properties insured at all
times, against such risks, including fire and other risks insured against by
extended coverage, as is customary with companies of the same or similar size in
the same or similar businesses; and maintain in full force and effect public
liability insurance against claims for personal injury or death or property
damage occurring upon, in, about or in connection with the use of any properties
owned, occupied or controlled by the Borrower or any Guarantor, as the case may
be, in such amounts (giving effect to self-insurance) and with such deductibles
as are customary with companies of the same or similar size in the same or
similar businesses and in the same geographic area; and (b) maintain such other
insurance or self insurance as may be required by law. Following the payment in
full of the Working Capital Facility, the Agent shall be named as loss payee on
such insurance policies of the Borrower and the Guarantors as the Agent shall
reasonably request.
SECTION 5.04 OBLIGATIONS AND TAXES. With respect to the Borrower and each
Guarantor, pay all its material obligations arising after the Filing Date
promptly and in accordance with their terms and pay and discharge promptly all
material taxes, assessments and governmental charges or levies imposed upon it
or upon its income or profits or in respect of its property arising after the
Filing Date, before the same shall become in default, as well as all material
lawful claims for labor, materials and supplies or otherwise arising after the
Filing Date which, if unpaid, would become a Lien or charge upon such properties
or any part thereof; provided, however, that the Borrower and each Guarantor
shall not be required to pay and discharge or to cause to be paid and discharged
any such obligation, tax, assessment, charge, levy or claim so long as the
validity or amount thereof shall be contested in good faith by appropriate
proceedings (if the Borrower and the Guarantors shall have set aside on their
books adequate reserves therefor).
SECTION 5.05 NOTICE OF EVENT OF DEFAULT, ETC. Promptly give to the Agent
and the Co- Agent notice in writing of any Event of Default or the occurrence of
any event or circumstance which with the passage of time or giving of notice or
both would constitute an Event of Default (including, without limitation, the
occurrence of an "Event of Default" under the Working Capital Facility).
SECTION 5.06 ACCESS TO BOOKS AND RECORDS. Maintain or cause to be
maintained at all times true and complete books and records in accordance with
GAAP of the financial operations of the Borrower and the Guarantors; and provide
the Agent, the Co-Agent, the Banks and their respective representatives access
to all such books and records during regular business hours, in order that the
Agent, the Co-Agent and the Banks may upon reasonable prior notice examine and
make abstracts from such books, accounts, records and other papers for the
purpose of verifying the accuracy of the various reports delivered by the
Borrower or the Guarantors to the Agent, the Co- Agent or the Banks pursuant to
this Agreement or for otherwise ascertaining compliance with this Agreement.
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SECTION 5.07 MAINTENANCE OF COLLATERAL ACCOUNT. Continue to maintain with
the Agent an account or accounts to be used by the Borrower and the Guarantors
as their principal account for the deposit of proceeds of Inventory and
Receivables.
SECTION 5.08 BORROWING BASE CERTIFICATE. Furnish to the Agent and the
Co-Agent as soon as available and in any event (i) on or before the second
Business Day of each week, a weekly Borrowing Base Certificate as of the last
day of the immediately preceding week, (ii) on or before the 15th Business Day
of each month, a monthly Borrowing Base Certificate as of the last day of the
immediately preceding month, (iii) if requested by the Agent at any other time
when the Agent reasonably believes (or upon instruction from the Required Banks)
that the then existing Borrowing Base Certificate is materially inaccurate, as
soon as reasonably available but in no event later than five (5) Business Days
after such request, a Borrowing Base Certificate showing the Borrowing Base as
of the date so requested, in each case with supporting documentation (including,
without limitation, the documentation described on Schedule 1 to Exhibit E), and
(iv) such other supporting documentation and additional reports with respect to
the Borrowing Base as the Agent shall reasonably request. The Agent shall
provide to any Bank copies of the foregoing upon the request of such Bank.
SECTION 5.09 COLLATERAL MONITORING AND REVIEW. At any time upon the
request of the Agent, the Co-Agent or the Required Banks through the Agent,
permit the Agent or professionals (including consultants, accountants and
appraisers) retained by the Agent or its professionals to conduct evaluations
and appraisals of (i) the Borrower's practices in the computation of the
Borrowing Base and (ii) the assets included in the Borrowing Base, and pay the
reasonable fees and expenses in connection therewith (including, without
limitation, the reasonable and customary fees and expenses associated with the
Agent's Collateral Agent Services Group). In connection with any collateral
monitoring or review and appraisal relating to the computation of the Borrowing
Base, the Borrower shall make such adjustments to the Borrowing Base as the
Agent shall reasonably require based upon the terms of this Agreement and
results of such collateral monitoring, review or appraisal.
SECTION 5.10 BUSINESS PLAN. Make its senior officers available to discuss
the Borrower's business plan (a copy of which has heretofore been delivered to
the Agent, the Co-Agent and the Banks) with the Agent, the Co-Agent and/or the
Banks upon the Agent's or the Co-Agent's reasonable request.
SECTION 5.11 RESTRUCTURING PLAN. Furnish to the Agent and the Co-Agent by
no later than April 16, 2001 a restructuring plan for the Borrower's integrated
steel operations, in form and substance satisfactory to the Agent, the Co-Agent
and the Banks.
SECTION 5.12 VALUATION OF COPPERWELD. Cooperate with
PricewaterhouseCoopers such that PricewaterhouseCoopers will be in a position to
deliver to the Agent, the Co-Agent and the Banks by no later than March 31, 2001
its valuation of the enterprise value of Copperweld (which valuation shall be
reasonably satisfactory to the Agent, the Co-Agent and the Banks).
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SECTION 5.13 SALE OF VP BUILDINGS. Keep the Agent, the Co-Agent and the
Banks reasonably informed as to the status of discussions and negotiations for
the sale or other disposition of the stock or assets of VP Buildings or its
Subsidiaries.
SECTION 5.14 RETENTION OF RESTRUCTURING CONSULTANTS. Within 30 days of the
Closing Date retain, pursuant to an order of the Bankruptcy Court, and continue
the retention at all times thereafter of Xxx Xxxx & Associates or another
restructuring consultant acceptable to the Agent, the Co-Agent and the Required
Banks, having duties and responsibilities acceptable to the Required Banks, and
make such restructuring consultant available to the Agent, the Co-Agent and the
Banks to discuss the Borrower's operations, financial performance and cash flow
reports upon the Agent's or the Co-Agent's reasonable request.
SECTION 5.15 PAYMENT OF LITIGATION FEES AND EXPENSES. Pay promptly in the
ordinary course, to the extent not previously paid pursuant to Section 4.01(c),
the reasonable and documented fees and expenses of Chase and Abbey incurred in
connection with the litigation respecting the Emergency Motion heretofore filed
with the Bankruptcy Court and the entry of the Interim Order, including, without
limitation, the reasonable and documented fees and expenses of counsel, advisors
(including not more than $300,000 of litigation support services rendered by the
Gordian Group on behalf of Abbey) and experts thereto (the "LITIGATION FEES AND
EXPENSES"), subject in each case, to paragraph 15 of the Final Order.
SECTION 6. NEGATIVE COVENANTS
From the date hereof and for so long as any Commitment shall be in
effect or any Letter of Credit shall remain outstanding (in a face amount in
excess of the amount of cash then held in the Letter of Credit Account, or in
excess of the face amount of letters of credit delivered, in each case pursuant
to Section 2.03(b)) or any amount shall remain outstanding or unpaid under this
Agreement, unless the Required Banks shall otherwise consent in writing, the
Borrower and each of the Guarantors will not (and will not apply to the
Bankruptcy Court for authority to):
SECTION 6.01 LIENS. Incur, create, assume or suffer to exist any Lien on
any asset of the Borrower or the Guarantors, now owned or hereafter acquired by
the Borrower or any of such Guarantors, other than (i) Liens which were existing
on the Filing Date as reflected on Schedule 3.06 hereto; (ii) the senior and
junior Liens granted to secure the Working Capital Facility, PROVIDED that the
lenders under the Working Capital Facility shall not be permitted to enforce any
of the junior liens granted to secure the Working Capital Facility so long as
any of the Obligations shall remain outstanding hereunder or there shall remain
any Commitment hereunder; (iii) Permitted Liens; (iv) Liens in favor of the
Agent and the Banks; (v) Liens securing purchase money Indebtedness or
Capitalized Leases permitted by Section 6.03(iv); and (vi) Liens on assets other
than assets comprising First Lien Collateral (as defined in the Final Order),
provided that such Liens are granted in connection with Indebtedness permitted
as set forth in Section 6.03(viii) and proceeds of the Indebtedness secured by
such Liens are applied as set forth in Section 2.13(e) and Section 2.23(b).
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SECTION 6.02 MERGER, ETC. Consolidate or merge with or into another
Person.
SECTION 6.03 INDEBTEDNESS. Contract, create, incur, assume or suffer to
exist any Indebtedness, except for (i) Indebtedness under the Loan Documents;
(ii) Indebtedness incurred prior to the Filing Date (including existing
Capitalized Leases); (iii) intercompany Indebtedness between the Borrower and
the Guarantors, (iv) Indebtedness incurred subsequent to the Filing Date secured
by purchase money Liens or Capitalized Leases in an aggregate amount not to
exceed $1,000,000 to the extent permitted by Section 6.04; (v) Indebtedness
arising from Investments among the Borrower and the Guarantors that are
permitted hereunder; (vi) Indebtedness owed to Chase or any of its banking
Affiliates in respect of any overdrafts and related liabilities arising from
treasury, depository and cash management services or in connection with any
automated clearing house transfers of funds; (vii) Indebtedness under the
Working Capital Facility; and (viii) other Indebtedness secured by assets or
properties of the Borrower or the Guarantors other than assets comprising First
Lien Collateral (as defined in the Final Order), PROVIDED the proceeds thereof
are applied as set forth in Section 2.13(e) and Section 2.23(b) (subject,
however, to the right of any Bank, as the holder of a contingent, unsecured
deficiency claim, to object to the terms of such financing).
SECTION 6.04 CAPITAL EXPENDITURES.
(a) Make cumulative Capital Expenditures with respect to its
"Integrated Steel" operations for each period beginning on January 1, 2001 and
ending on each date listed below in excess of the amount opposite such date:
Period Ending Capital Expenditures
------------- --------------------
March 31, 2001 $ 20,000,000
June 30, 2001 $ 54,000,000
September 30, 2001 $ 89,000,000
December 31, 2001 $114,000,000
March 31, 2002 $139,000,000
June 30, 2002 $164,000,000
(b) Permit Copperweld to make cumulative Capital Expenditures for
each period beginning on January 1, 2001 and ending on each date listed below in
excess of the amount opposite such date:
Period Ending Capital Expenditures
------------- --------------------
March 31, 2001 $ 7,000,000
June 30, 2001 $ 14,000,000
September 30, 2001 $ 28,000,000
December 31, 2001 $ 38,000,000
March 31, 2002 $ 48,000,000
June 30, 2002 $ 58,000,000
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(c) Permit VP Buildings to make cumulative Capital Expenditures for
each period beginning on January 1, 2001 and ending on each date listed below in
excess of the amount opposite such date:
Period Ending Capital Expenditures
------------- --------------------
March 31, 2001 $ 4,000,000
June 30, 2001 $ 7,000,000
September 30, 2001 $ 11,000,000
December 31, 2001 $ 14,000,000
March 31, 2002 $ 17,000,000
June 30, 2002 $ 20,000,000
SECTION 6.05 EBITDA.
Permit cumulative EBITDA for each six month period ending on the dates set
forth below to be less than the amount specified opposite such date:
Six Month
---------
Period Ending EBITDA
------------- ------
April 30, 2001 ($164,000,000)
May 31, 2001 ($163,000,000)
June 30, 2001 ($143,000,000)
July 31, 2001 ($125,000,000)
August 31, 2001 ($ 91,000,000)
September 30, 2001 ($ 84,000,000)
October 31, 2001 ($ 67,000,000)
November 30, 2001 ($ 66,000,000)
December 31, 2001 ($ 66,000,000)
January 31, 2002 ($ 66,000,000)
February 28, 2002 ($ 66,000,000)
March 31, 2002 ($ 66,000,000)
April 30, 2002 ($ 66,000,000)
May 31, 2002 ($ 66,000,000)
June 30, 2002 ($ 66,000,000)
SECTION 6.06 GUARANTEES AND OTHER LIABILITIES. Purchase or repurchase (or
agree, contingently or otherwise, so to do) the Indebtedness of, or assume,
guarantee (directly or indirectly or by an instrument having the effect of
assuring another's payment or performance of any obligation or capability of so
doing, or otherwise), endorse or otherwise become liable, directly or
indirectly, in connection with the obligations, stock or dividends of any
Person, except (i) for any guaranty of Indebtedness or other obligations of any
Borrower or Guarantor if the Guarantor could have incurred such Indebtedness or
obligations under this Agreement (including, without limitation, the Working
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Capital Facility), (ii) by endorsement of negotiable instruments for deposit or
collection in the ordinary course of business, (iii) for liabilities under
leasehold interests that are assigned by the Borrower or any Guarantor to the
extent permitted by this Agreement and (iv) guarantees of the obligations of
Affiliates incurred prior to the Filing Date and extensions thereof.
SECTION 6.07 CHAPTER 11 CLAIMS. Incur, create, assume, suffer to exist or
permit any other Superpriority Claim which is pari passu with or senior to the
claims of the Agent and the Banks against the Borrower and the Guarantors
hereunder, except for the Carve-Out and the PARI PASSU claims under the Working
Capital Facility and in favor of certain creditors of Copperweld and described
in Section 2.23(a)(i)(A) and (B) above.
SECTION 6.08 DIVIDENDS; CAPITAL STOCK. Declare or pay, directly or
indirectly, any dividends or make any other distribution or payment, whether in
cash, property, securities or a combination thereof, with respect to (whether by
reduction of capital or otherwise) any shares of capital stock (or any options,
warrants, rights or other equity securities or agreements relating to any
capital stock), or set apart any sum for the aforesaid purposes, PROVIDED that
any Guarantor may pay dividends to the Borrower and to any other Guarantor that
is its direct parent.
SECTION 6.09 TRANSACTIONS WITH AFFILIATES. Sell or transfer any property
or assets to, or otherwise engage in any other material transactions with, any
of its Affiliates (other than the Borrower and the Guarantors), other than in
the ordinary course of business at prices and on terms and conditions not less
favorable to the Borrower or such Guarantor than could be obtained on an
arm's-length basis from unrelated third parties.
SECTION 6.10 INVESTMENTS, LOANS AND ADVANCES. Purchase, hold or acquire
any capital stock, evidences of indebtedness or other securities of, make or
permit to exist any loans or advances to, or make or permit to exist any
investment in, any other Person (all of the foregoing, "INVESTMENTS"), except
for (i) ownership by the Borrower of the capital stock of each of the Guarantors
listed on Schedule 3.05, (ii) Permitted Investments, (iii) advances and loans
among the Borrower and the Guarantors in the ordinary course of business and
(iv) existing Investments described on Schedule 6.10 hereto, (v) advances, loans
and payments to Affiliates of the Borrower that are not Guarantors (other than
as permitted by Section 6.09 and other than payments such as tolling fees
incurred in the ordinary course of business for the production or processing of
items for the Borrower and the Guarantors) in an amount not to exceed
$15,000,000 in the aggregate and that have been approved by an order of the
Bankruptcy Court and (vi) loans and advances to employees for moving, business
travel and entertainment, and other similar expenses in the ordinary course of
business.
SECTION 6.11 DISPOSITION OF ASSETS. Sell or otherwise dispose of any
assets (including, without limitation, the capital stock of any subsidiary)
except for (i) sales of inventory, fixtures and equipment in the ordinary course
of business, (ii) dispositions of surplus, obsolete or damaged equipment no
longer used in production, (iii) the sale or other disposition of the assets or
capital stock of VP Buildings or its Subsidiaries, PROVIDED such sale or
disposition shall have been
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consented to by the requisite majority of lenders under the Working Capital
Facility and (iv) sales or other disposition of assets (other than Inventory and
Receivables on which the Agent shall have been granted a first priority Lien as
provided for herein and in the Final Order), PROVIDED the proceeds thereof are
applied as set forth in Section 2.13(e) in accordance with the priorities set
forth in Section 2.23(b) (subject, however, in the case of clauses (iii) and
(iv), to the right of any Bank, as the holder of a contingent, unsecured
deficiency claim, to object to the terms of such sale or disposition).
SECTION 6.12 NATURE OF BUSINESS. Modify or alter in any material manner
the nature and type of its business as conducted at or prior to the Filing Date
(except as required by the Bankruptcy Code), it being understood that asset
sales permitted by Section 6.11 shall not constitute such a material
modification or alteration.
SECTION 6.13 WORKING CAPITAL FACILITY. Enter into any material amendments
or modifications to the Working Capital Facility that would be adverse to the
interests of the Borrower, the Guarantors or the Banks (as reasonably determined
by the Required Banks).
SECTION 6.14 LIQUIDITY. Permit the sum of (i) cash on hand (including cash
equivalents but excluding (x) amounts held in a segregated or escrow account to
fund the retention and severance program and (y) the corpus of the trusts, in
each case, as described in Section 2.23(d) above)) of the Borrowers and the
Guarantors PLUS (ii) the Unused Total Commitment PLUS (iii) unused availability
under the Working Capital Facility to be less than $40,000,000.
SECTION 6.15 COPPERWELD STIPULATION. Make or permit, or agree to make or
permit, any material amendment, modification or extension of the Copperweld
Stipulation without the prior written consent of the Required Banks.
SECTION 7. EVENTS OF DEFAULT
SECTION 7.01 EVENTS OF DEFAULT. In the case of the happening of any of the
following events and the continuance thereof beyond the applicable period of
grace if any (each, an "EVENT OF DEFAULT"):
(a) any material representation or warranty made by the Borrower or
any Guarantor in this Agreement or in any Loan Document or in connection with
this Agreement or the credit extensions hereunder or any material statement or
representation made in any report, financial statement, certificate or other
document furnished by the Borrower or any Guarantors to the Banks under or in
connection with this Agreement, shall prove to have been false or misleading in
any material respect when made or delivered; or
(b) default shall be made in the payment of any (i) Fees or interest
on the Loans when due, and such default shall continue unremedied for more than
two (2) Business Days or (ii) principal of the Loans or other amounts payable by
the Borrower hereunder (including, without limitation, reimbursement obligations
or cash collateralization in respect of Letters of Credit), when
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and as the same shall become due and payable, whether at the due date thereof or
at a date fixed for prepayment thereof or by acceleration thereof or otherwise;
or
(c) default shall be made by the Borrower or any Guarantor in the
due observance or performance of any covenant, condition or agreement contained
in Section 6 hereof; or
(d) default shall be made by the Borrower or any Guarantor in the
due observance or performance of any other covenant, condition or agreement to
be observed or performed pursuant to the terms of this Agreement, the Final
Order or any of the other Loan Documents and such default shall continue
unremedied for more than ten (10) days; or
(e) any of the Cases shall be dismissed or converted to a case under
Chapter 7 of the Bankruptcy Code or the Borrower or any Guarantor shall file a
motion or other pleading seeking the dismissal of any of the Cases under Section
1112 of the Bankruptcy Code or otherwise; a trustee under Chapter 7 or Chapter
11 of the Bankruptcy Code, a responsible officer or an examiner with enlarged
powers relating to the operation of the business (powers beyond those set forth
in Section 1106(a)(3) and (4) of the Bankruptcy Code) under Section 1106(b) of
the Bankruptcy Code shall be appointed in any of the Cases and the order
appointing such trustee, responsible officer or examiner shall not be reversed
or vacated within 30 days after the entry thereof; or an application shall be
filed by the Borrower or any Guarantor for the approval of any other
Super-Priority Claim (other than the Carve-Out or the PARI PASSU claims under
the Working Capital Facility or in favor of certain creditors of Copperweld as
described in Section 2.23(a)(i) (A) and (B)) in any of the Cases which is PARI
PASSU with or senior to the claims of the Agent and the Banks against the
Borrower or any Guarantor hereunder, or there shall arise or be granted any such
PARI PASSU or senior Super-Priority Claim; or
(f) the Bankruptcy Court shall enter an order or orders granting
relief from the automatic stay applicable under Section 362 of the Bankruptcy
Code to the holder or holders of any security interest to permit foreclosure (or
the granting of a deed in lieu of foreclosure or the like) on any assets of the
Borrower or any of the Guarantors which have a value in excess of $5,000,000 in
the aggregate; or
(g) a Change of Control shall occur; or
(h) the Borrower shall fail to deliver a certified Borrowing Base
Certificate when due and such default shall continue unremedied for more than
three (3) Business Days; or
(i) any material provision of any Loan Document shall, for any
reason, cease to be valid and binding on the Borrower or any of the Guarantors,
or the Borrower or any of the Guarantors shall so assert in any pleading filed
in any court; or
(j) an order of the Bankruptcy Court shall be entered reversing,
staying for a period in excess of 10 days, vacating or (without the written
consent of the Agent acting on the
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instructions of the Required Banks) otherwise amending, supplementing or
modifying the Final Order; or
(k) any judgments or orders as to post-petition liabilities or debts
for the payment of money in excess of $5,000,000 in the aggregate not covered by
insurance shall be rendered against the Borrower or any of the Guarantors and
the enforcement thereof shall not have been stayed; or
(l) any non-monetary judgment or order with respect to a
post-petition event shall be rendered against the Borrower or any of the
Guarantors which does or would reasonably be expected to (i) cause a material
adverse change in the financial condition, business, prospects, operations or
assets of the Borrower and the Guarantors taken as a whole on a consolidated
basis, (ii) have a material adverse effect on the ability of the Borrower or any
of the Guarantors to perform their respective obligations under any Loan
Document, or (iii) have a material adverse effect on the rights and remedies of
the Agent or any Bank under any Loan Document, and there shall be any period of
10 consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect; or
(m) the Borrower or the Guarantors shall make any Pre-Petition
Payment (including, without limitation, reclamation claims) other than payments
authorized by the Bankruptcy Court (x) not in excess of $20,000,000 in the
aggregate in respect of certain critical vendors paid after February 28, 2001,
(y) in respect of accrued payroll and related expenses as of the Filing Date,
and (z) not in excess of $10,000,000 in respect of valid reclamation claims; or
(n) there shall have occurred an "Event of Default" or any similarly
designated event under the Working Capital Agreement; or
(o) any Termination Event described in clauses (iii) or (iv) of the
definition of such term shall have occurred and shall continue unremedied for
more than 10 days and such Termination Event does or would reasonably be
expected to (i) have a material adverse effect on the ability of the Borrower or
any of the Guarantors to perform their respective obligations under any Loan
Document, or (ii) have a material adverse effect on the rights and remedies of
the Agent or any Bank under any Loan Document or on the validity or priority of
any Lien or claim granted to the Agent on behalf of the Banks thereunder; or
(p) (i) the Borrower or any ERISA Affiliate thereof shall have been
notified by the sponsor of a Multiemployer Plan that it has incurred Withdrawal
Liability to such Multiemployer Plan, (ii) the Borrower or such ERISA Affiliate
does not have reasonable grounds to contest such Withdrawal Liability and is not
in fact contesting such Withdrawal Liability in a timely and appropriate manner,
and (iii) such Withdrawal Liability does or would reasonably be expected to (i)
have a material adverse effect on the ability of the Borrower or any of the
Guarantors to perform their respective obligations under any Loan Document, or
(ii) have a material adverse effect on the rights and remedies of the Agent or
any Bank under any Loan Document or on the validity or priority of any Lien or
claim granted to the Agent on behalf of the Banks thereunder; or
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(q) the Borrower or any ERISA Affiliate thereof shall have been
notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is
in reorganization or is being terminated, within the meaning of Title IV of
ERISA, if such reorganization or termination does or would reasonably be
expected to (i) have a material adverse effect on the ability of the Borrower or
any of the Guarantors to perform their respective obligations under any Loan
Document, or (ii) have a material adverse effect on the rights and remedies of
the Agent or any Bank under any Loan Document or on the validity or priority of
any Lien or claim granted to the Agent on behalf of the Banks thereunder; or
(r) the Borrower or any ERISA Affiliate shall have committed a
failure described in Section 302(f)(1) of ERISA (other than the failure to make
any contribution accrued and unpaid as of the Filing Date) and such failure does
or would reasonably be expected to (i) have a material adverse effect on the
ability of the Borrower or any of the Guarantors to perform their respective
obligations under any Loan Document, or (ii) have a material adverse effect on
the rights and remedies of the Agent or any Bank under any Loan Document or on
the validity or priority of any Lien granted to the Agent on behalf of the Banks
thereunder; or
(s) it shall be determined (whether by the Bankruptcy Court or by
any other judicial or administrative forum) that the Borrower or any Guarantor
is liable for the payment of claims arising out of any failure to comply (or to
have complied) with applicable environmental laws or regulations the payment of
which will have a material adverse effect on the financial condition, business,
properties, operations, assets or prospects of the Borrower or the Guarantors,
taken as a whole, and the enforcement thereof shall not have been stayed;
then, and in every such event and at any time thereafter during the continuance
of such event, and without further order of or application to the Bankruptcy
Court, the Agent may, and at the request of the Required Banks, shall, by notice
to the Borrower (with a copy to counsel for any official committee appointed in
the Cases and to the United States Trustee for the Northern District of Ohio,
Eastern Division), take one or more of the following actions, at the same or
different times (PROVIDED, that with respect to clause (iv) below and the
enforcement of Liens or other remedies with respect to the Collateral under
clause (vi) below, the Agent shall provide the Borrower (with a copy to counsel
for any official committee in the Cases and to the United States Trustee for the
Northern District of Ohio, Eastern Division) with five (5) Business Days'
written notice prior to taking the action contemplated thereby and PROVIDED,
FURTHER, that upon receipt of notice referred to in the immediately preceding
clause with respect to the accounts referred to in clause (iv) below, the
Borrower may continue to make ordinary course disbursements from such accounts
(other than the Letter of Credit Account) but may not withdraw or disburse any
other amounts from such accounts): (i) terminate forthwith the Total Commitment;
(ii) declare the Loans then outstanding to be forthwith due and payable,
whereupon the principal of the Loans together with accrued interest thereon and
any unpaid accrued Fees and all other liabilities of the Borrower accrued
hereunder and under any other Loan Document, shall become forthwith due and
payable, without presentment, demand, protest or any other notice of any kind,
all of which are hereby expressly waived by the Borrower and the Guarantors,
anything contained herein or in any other Loan Document to the contrary
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notwithstanding; (iii) require the Borrower and the Guarantors upon demand to
forthwith deposit in the Letter of Credit Account cash in an amount which,
together with any amounts then held in the Letter of Credit Account, is equal to
the sum of 105% of the then Letter of Credit Outstandings (and to the extent the
Borrower and the Guarantors shall fail to furnish such funds as demanded by the
Agent, the Agent shall be authorized to debit the accounts of the Borrower and
the Guarantors maintained with the Agent in such amount five (5) Business Days
after the giving of the notice referred to above); (iv) set-off amounts in the
Letter of Credit Account or any other accounts maintained with the Agent and
apply such amounts to the obligations of the Borrower and the Guarantors
hereunder and in the other Loan Documents; (v) file a Reorganization Plan in any
or all of the Cases (and the Borrower and the Guarantors hereby consent to the
termination of exclusivity in favor of the Agent, the Co-Agent and the Banks so
as to permit such filing); and (vi) exercise any and all remedies under the Loan
Documents and under applicable law available to the Agent and the Banks.
SECTION 8. THE AGENT AND THE CO-AGENT
SECTION 8.01 ADMINISTRATION BY AGENT; DUTIES OF AGENT AND CO-AGENT.
(a) The general administration of the Loan Documents shall be by the
Agent and with respect to matters so specified, the Co-Agent. Each Bank hereby
irrevocably authorizes the Agent (and the Co-Agent where specified), at its
discretion, to take or refrain from taking such actions as agent on its behalf
and to exercise or refrain from exercising such powers under the Loan Documents
as are delegated by the terms hereof or thereof, as appropriate, together with
all powers reasonably incidental thereto (including the release of Collateral in
connection with any transaction that is expressly permitted by the Loan
Documents). Each Bank hereby irrevocably authorizes the Agent to enter into the
Intercreditor Agreement. The duties of the Agent shall be mechanical and
administrative in nature.
(b) Neither the Agent nor the Co-Agent shall have by reason of this
Agreement any fiduciary relationship in respect of any Bank. Nothing in this
Agreement or any of the Loan Documents, express or implied, is intended to or
shall be construed to impose upon the Agent or the Co-Agent any obligations in
respect of this Agreement or any of the Loan Documents except as expressly set
forth herein or therein. Neither the Agent nor the Co-Agent shall have any duty
or responsibility, either initially or on a continuing basis, to provide any
Bank with any credit or other information with respect to the Borrower, whether
coming into its possession before the date hereof or at any time or times
thereafter (except as expressly set forth in this Agreement). If the Agent seeks
the consent or approval of the Banks to the taking or refraining from taking of
any action hereunder, the Agent shall send notice thereof to the Co-Agent and to
each Bank. The Agent shall promptly notify the Co-Agent and each Bank any time
that the Banks have instructed the Agent to act or refrain from acting pursuant
hereto.
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SECTION 8.02 ADVANCES AND PAYMENTS.
(a) On the date of each Loan, the Agent shall be authorized (but not
obligated) to advance, for the account of each of the Banks, the amount of the
Loan to be made by it in accordance with its Commitment hereunder. Should the
Agent do so, each of the Banks agrees forthwith to reimburse the Agent in
immediately available funds for the amount so advanced on its behalf by the
Agent, together with interest at the Federal Funds Effective Rate if not so
reimbursed on the date due from and including such date but not including the
date of reimbursement.
(b) Any amounts received by the Agent in connection with this
Agreement (other than amounts to which the Agent or the Co-Agent, as applicable,
are entitled pursuant to Sections 2.19, 5.15, 8.06, 10.05 and 10.06), the
application of which is not otherwise provided for in this Agreement (including,
without limitation, pursuant to the priorities set forth in Section 2.23(b))
shall be applied, first, in accordance with each Bank's Commitment Percentage to
pay accrued but unpaid Commitment Fees or Letter of Credit Fees, and second, in
accordance with each Bank's Commitment Percentage to pay accrued but unpaid
interest and the principal balance outstanding and all unreimbursed Letter of
Credit drawings. All amounts to be paid to a Bank by the Agent shall be credited
to that Bank, after collection by the Agent, in immediately available funds
either by wire transfer or deposit in that Bank's correspondent account with the
Agent, as such Bank and the Agent shall from time to time agree.
SECTION 8.03 SHARING OF SETOFFS AND PAYMENTS. Except as provided for in
Section 2.23(b), each Bank agrees that if it shall, through the exercise of a
right of banker's lien, setoff or counterclaim against the Borrower, including,
but not limited to, a secured claim under Section 506 of the Bankruptcy Code or
other security or interest arising from, or in lieu of, such secured claim and
received by such Bank under any applicable bankruptcy, insolvency or other
similar law, or otherwise, obtain payment in respect of its Loans as a result of
which the unpaid portion of its Loans is proportionately less than the unpaid
portion of the Loans of any other Bank (a) it shall promptly purchase at par
(and shall be deemed to have thereupon purchased) from such other Bank a
participation in the Loans of such other Bank, so that the aggregate unpaid
principal amount of each Bank's Loans and its participation in Loans of the
other Banks shall be in the same proportion to the aggregate unpaid principal
amount of all Loans then outstanding as the principal amount of its Loans prior
to the obtaining of such payment was to the principal amount of all Loans
outstanding prior to the obtaining of such payment and (b) such other
adjustments shall be made from time to time as shall be equitable to ensure that
the Banks share such payment pro-rata, provided that if any such non-pro-rata
payment is thereafter recovered or otherwise set aside such purchase of
participations shall be rescinded (without interest). The Borrower expressly
consents to the foregoing arrangements and agrees that any Bank holding (or
deemed to be holding) a participation in a Loan may exercise any and all rights
of banker's lien, setoff (in each case, subject to the same notice requirements
as pertain to clause (iv) of the remedial provisions of Section 7.01) or
counterclaim with respect to any and all moneys owing by the Borrower to such
Bank as fully as if such Bank held a Note and was the original obligee thereon,
in the amount of such participation.
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SECTION 8.04 AGREEMENT OF REQUIRED BANKS. Upon any occasion requiring or
permitting an approval, consent, waiver, election or other action on the part of
the Required Banks, action shall be taken by the Agent for and on behalf or for
the benefit of all Banks upon the direction of the Required Banks, and any such
action shall be binding on all Banks. No amendment, modification, consent, or
waiver shall be effective except in accordance with the provisions of Section
10.10.
SECTION 8.05 LIABILITY OF AGENT AND CO-AGENT.
(a) The Agent and/or the Co-Agent, when acting on behalf of the
Banks, may execute any of its respective duties under this Agreement by or
through any of its respective officers, agents, and employees, and neither the
Agent, the Co-Agent nor their respective directors, officers, agents, employees
or Affiliates shall be liable to the Banks or any of them for any action taken
or omitted to be taken in good faith, or be responsible to the Banks or to any
of them for the consequences of any oversight or error of judgment, or for any
loss, unless the same shall happen through their respective gross negligence or
willful misconduct. The Agent, the Co-Agent and their respective directors,
officers, agents, employees and Affiliates shall in no event be liable to the
Banks or to any of them for any action taken or omitted to be taken by them
pursuant to instructions received by them from the Required Banks or in reliance
upon the advice of counsel selected respectively by them. Without limiting the
foregoing, none of the Agent, the Co-Agent nor any of their respective
directors, officers, employees, agents or Affiliates shall be responsible to any
Bank for the due execution, validity, genuineness, effectiveness, sufficiency,
or enforceability of, or for any statement, warranty, or representation in, this
Agreement, any Loan Document or any related agreement, document or order, or
shall be required to ascertain or to make any inquiry concerning the performance
or observance by the Borrower of any of the terms, conditions, covenants, or
agreements of this Agreement or any of the Loan Documents.
(b) Neither the Agent, the Co-Agent nor any of their respective
directors, officers, employees, agents or Affiliates shall have any
responsibility to the Borrower or the Guarantors on account of the failure or
delay in performance or breach by any Bank or by the Borrower or the Guarantors
of any of their respective obligations under this Agreement or any of the Loan
Documents or in connection herewith or therewith.
(c) Each of the Agent, in its capacity as Agent hereunder, and, as
applicable, the Co-Agent in its capacity as Co-Agent hereunder, shall be
entitled to rely on any communication, instrument, or document reasonably
believed by such person to be genuine or correct and to have been signed or sent
by a person or persons believed by such person to be the proper person or
persons, and such person shall be entitled to rely on advice of legal counsel,
independent public accountants, and other professional advisers and experts
selected by such person.
SECTION 8.06 REIMBURSEMENT AND INDEMNIFICATION. Each Bank agrees (i) to
reimburse (x) the Agent for such Bank's Commitment Percentage of any expenses
and fees incurred for the benefit of the Banks under this Agreement and any of
the Loan Documents, including, without
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limitation, counsel fees and compensation of agents and employees paid for
services rendered on behalf of the Banks, and any other expense incurred in
connection with the operations or enforcement thereof not reimbursed by the
Borrower or the Guarantors and (y) the Agent or the Co-Agent for such Bank's
Commitment Percentage of any expenses of the Agent or the Co-Agent incurred for
the benefit of the Banks that the Borrower has agreed to reimburse pursuant to
Section 10.05 and has failed to so reimburse and (ii) to indemnify and hold
harmless the Agent, the Co-Agent and any of their respective directors,
officers, employees, agents or Affiliates, on demand, in the amount of its
proportionate share, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses, or
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by, or asserted against it or any of them in any way relating to or arising out
of this Agreement or any of the Loan Documents or any action taken or omitted by
it or any of them under this Agreement or any of the Loan Documents to the
extent not reimbursed by the Borrower or the Guarantors (except such as shall
result from their respective gross negligence or willful misconduct).
SECTION 8.07 RIGHTS OF AGENT AND CO-AGENT. It is understood and agreed
that each of Chase and Abbey shall have the same rights and powers hereunder
(including the right to give such instructions) as the other Banks and may
exercise such rights and powers, as well as their respective rights and powers
under other agreements and instruments to which either of them is or may be
party, and engage in other transactions with the Borrower or any Guarantor, as
though they were not the Agent and Co-Agent, respectively, of the Banks under
this Agreement.
SECTION 8.08 INDEPENDENT BANKS. Each Bank acknowledges that it has,
independently and without reliance upon the Agent, the Co-Agent or any other
Bank and based on such documents and information as it has deemed appropriate,
made its own analysis of the creditworthiness of the Borrower and the Guarantors
and its own evaluation and decision to enter into this Agreement and, to the
extent it so determines, to issue and participate in Letters of Credit and/or to
make Loans hereunder. Each Bank also acknowledges that it will, independently
and without reliance upon the Agent, the Co-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 decisions in taking or not taking action under this
Agreement and agrees that neither the Agent nor the Co-Agent shall bear
responsibility therefor.
SECTION 8.09 NOTICE OF TRANSFER. The Agent may deem and treat a Bank party
to this Agreement as the owner of such Bank's portion of the Loans for all
purposes, unless and until a written notice of the assignment or transfer
thereof executed by such Bank shall have been received by the Agent.
SECTION 8.10 SUCCESSOR AGENT; CO-AGENT RESIGNATION. The Agent may resign
at any time by giving written notice thereof to the Banks and the Borrower. Upon
any such resignation, the Required Banks shall have the right to appoint a
successor Agent, which shall be reasonably satisfactory to the Borrower. If no
successor Agent shall have been so appointed by the Required Banks and shall
have accepted such appointment, within 30 days after the retiring Agent's giving
of
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notice of resignation, the retiring Agent may, on behalf of the Banks, appoint a
successor Agent, which shall be a commercial bank organized under the laws of
the United States of America or of any State thereof and having a combined
capital and surplus of a least $100,000,000, which shall be reasonably
satisfactory to the Borrower. Upon the acceptance of any appointment as Agent
hereunder by a successor Agent, such successor Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring Agent's resignation
hereunder as Agent, the provisions of this Section 8 shall inure to its benefit
as to any actions taken or omitted to be taken by it while it was Agent under
this Agreement. The Co-Agent may resign at any time by giving written notice
thereof to the Banks and the Borrower and no successor Co-Agent shall be
required to be appointed.
SECTION 9. GUARANTY
SECTION 9.01 GUARANTY.
(a) Each of the Guarantors unconditionally and irrevocably
guarantees the due and punctual payment by the Borrower of the Obligations. Each
of the Guarantors further agrees that the Obligations may be extended or
renewed, in whole or in part, without notice to or further assent from it, and
it will remain bound upon this guaranty notwithstanding any extension or renewal
of any of the Obligations. The Obligations of the Guarantors shall be joint and
several.
(b) Each of the Guarantors waives presentation to, demand for
payment from and protest to the Borrower or any other Guarantor, and also waives
notice of protest for nonpayment. The Obligations of the Guarantors hereunder
shall not be affected by (i) the failure of the Agent, the Co-Agent or a Bank to
assert any claim or demand or to enforce any right or remedy against the
Borrower or any other Guarantor under the provisions of this Agreement or any
other Loan Document or otherwise; (ii) any extension or renewal of any provision
hereof or thereof; (iii) any rescission, waiver, compromise, acceleration,
amendment or modification of any of the terms or provisions of any of the Loan
Documents; (iv) the release, exchange, waiver or foreclosure of any security
held by the Agent for the Obligations or any of them; (v) the failure of the
Agent, the Co-Agent or a Bank to exercise any right or remedy against any other
Guarantor; or (vi) the release or substitution of any Guarantor or any other
Guarantor.
(c) Each of the Guarantors further agrees that this guaranty
constitutes a guaranty of payment when due and not just of collection, and
waives any right to require that any resort be had by the Agent, the Co-Agent or
a Bank to any security held for payment of the Obligations or to any balance of
any deposit, account or credit on the books of the Agent, the Co-Agent or a Bank
in favor of the Borrower or any other Guarantor, or to any other Person.
(d) Each of the Guarantors hereby waives any defense that it might
have based on a failure to remain informed of the financial condition of the
Borrower and of any other Guarantor and any circumstances affecting the ability
of the Borrower to perform under this Agreement.
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(e) Each Guarantor's guaranty shall not be affected by the
genuineness, validity, regularity or enforceability of the Obligations or any
other instrument evidencing any Obligations, or by the existence, validity,
enforceability, perfection, or extent of any collateral therefor or by any other
circumstance relating to the Obligations which might otherwise constitute a
defense to this Guaranty. None of the Agent, the Co-Agent nor any of the Banks
makes any representation or warranty in respect to any such circumstances or
shall have any duty or responsibility whatsoever to any Guarantor in respect of
the management and maintenance of the Obligations.
(f) Subject to the provisions of Section 7.01, upon the Obligations
becoming due and payable (by acceleration or otherwise), the Banks shall be
entitled to immediate payment of such Obligations by the Guarantors upon written
demand by the Agent, without further application to or order of the Bankruptcy
Court.
SECTION 9.02 NO IMPAIRMENT OF GUARANTY. The obligations of the Guarantors
hereunder shall not be subject to any reduction, limitation, impairment or
termination for any reason, including, without limitation, any claim of waiver,
release, surrender, alteration or compromise, and shall not be subject to any
defense or set-off, counterclaim, recoupment or termination whatsoever by reason
of the invalidity, illegality or unenforceability of the Obligations. Without
limiting the generality of the foregoing, the obligations of the Guarantors
hereunder shall not be discharged or impaired or otherwise affected by the
failure of the Agent, the Co-Agent or a Bank to assert any claim or demand or to
enforce any remedy under this Agreement or any other agreement, by any waiver or
modification of any provision thereof, by any default, failure or delay, willful
or otherwise, in the performance of the Obligations, or by any other act or
thing or omission or delay to do any other act or thing which may or might in
any manner or to any extent vary the risk of the Guarantors or would otherwise
operate as a discharge of the Guarantors as a matter of law, unless and until
the Obligations are paid in full.
SECTION 9.03 SUBROGATION. Upon payment by any Guarantor of any sums to the
Agent, the Co-Agent or a Bank hereunder, all rights of such Guarantor against
the Borrower arising as a result thereof by way of right of subrogation or
otherwise, shall in all respects be subordinate and junior in right of payment
to the prior final and indefeasible payment in full of all the Obligations. If
any amount shall be paid to such Guarantor for the account of the Borrower, such
amount shall be held in trust for the benefit of the Agent, the Co-Agent and the
Banks and shall forthwith be paid to the Agent, the Co-Agent and the Banks to be
credited and applied to the Obligations, whether matured or unmatured.
SECTION 10. MISCELLANEOUS
SECTION 10.01 NOTICES. Notices and other communications provided for
herein shall be in writing (including facsimile communication) and shall be
mailed, transmitted by facsimile, or delivered to the Borrower or any Guarantor
at 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000, Attention: Chief Financial Officer
(with a copy to General Counsel and Xxxxxxxx, Xxxxxxx and Xxxxxx, 000 Xxxxx
Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000 Attn.: Xxxxx Xxxxxxx,
Esq.) and
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to a Bank, the Agent or the Co-Agent to it at its respective address set forth
on Annex A, or such other address as such party may from time to time designate
by giving written notice to the other parties hereunder. All notices and other
communications given to any party hereto in accordance with the provisions of
this Agreement shall be deemed to have been given on the fifth Business Day
after the date when sent by registered or certified mail, postage prepaid,
return receipt requested, if by mail; or when receipt is acknowledged, if by any
facsimile equipment of the sender; in each case addressed to such party as
provided in this Section 10.01 or in accordance with the latest unrevoked
written direction from such party; provided, however, that in the case of
notices to the Agent and the Co-Agent notices pursuant to the preceding sentence
with respect to change of address and pursuant to Section 2 shall be effective
only when received by the Agent and the Co-Agent.
SECTION 10.02 SURVIVAL OF AGREEMENT, REPRESENTATIONS AND WARRANTIES, ETC.
All warranties, representations and covenants made by the Borrower or any
Guarantor herein or in any certificate or other instrument delivered by it or on
its behalf in connection with this Agreement shall be considered to have been
relied upon by the Banks and shall survive the making of the Loans herein
contemplated regardless of any investigation made by any Bank or on its behalf
and shall continue in full force and effect so long as any amount due or to
become due hereunder is outstanding and unpaid and so long as the Commitments
have not been terminated. All statements in any such certificate or other
instrument shall constitute representations and warranties by the Borrower and
the Guarantors hereunder with respect to the Borrower.
SECTION 10.03 SUCCESSORS AND ASSIGNS.
(a) This Agreement shall be binding upon and inure to the benefit of
the Borrower, the Agent, the Co-Agent and the Banks and their respective
successors and assigns. Neither the Borrower nor any of the Guarantors may
assign or transfer any of their rights or obligations hereunder without the
prior written consent of all of the Banks. Each Bank may sell participations to
any Person in all or part of any Loan, or all or part of its Commitment, in
which event, without limiting the foregoing, the provisions of Section 2.15
shall inure to the benefit of each purchaser of a participation (provided that
such participant shall look solely to the seller of such participation for such
benefits and the Borrower's and the Guarantors' liability, if any, under
Sections 2.15 and 2.18 shall not be increased as a result of the sale of any
such participation) and the PRO RATA treatment of payments, as described in
Section 2.17, shall be determined as if such Bank had not sold such
participation. In the event any Bank shall sell any participation, such Bank
shall retain the sole right and responsibility to enforce the obligations of the
Borrower and each of the Guarantors relating to the Loans, including, without
limitation, the right to approve any amendment, modification or waiver of any
provision of this Agreement (provided that such Bank may grant its participant
the right to consent to such Bank's execution of amendments, modifications or
waivers which (i) reduce any Fees payable hereunder to the Banks, (ii) reduce
the amount of any scheduled principal payment on any Loan or reduce the
principal amount of any Loan or the rate of interest payable hereunder or (iii)
extend the maturity of the Borrower's obligations hereunder). The sale of any
such participation shall not alter the rights and obligations of the Bank
selling such participation hereunder with respect to the Borrower.
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(b) Each Bank may assign to one or more Banks or Eligible Assignees
all or a portion of its interests, rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment and the same
portion of the related Loans at the time owing to it), PROVIDED, HOWEVER, that
(i) other than in the case of an assignment to a Person at least 50% owned by
the assignor Bank, or by a common parent of both, or to another Bank, the Agent
and the Fronting Bank must give their respective prior written consent to such
assignment, which consent will not be unreasonably withheld, (ii) the aggregate
amount of the Commitment and/or Loans of the assigning Bank subject to each such
assignment (determined as of the date the Assignment and Acceptance with respect
to such assignment is delivered to the Agent) shall, unless otherwise agreed to
in writing by the Borrower and the Agent, in no event be less than $5,000,000 or
the remaining portion of such Bank's Commitment and/or Loans, if less (or
$1,000,000 in the case of an assignment between Banks) and (iii) the parties to
each such assignment shall execute and deliver to the Agent, for its acceptance
and recording in the Register (as defined below), an Assignment and Acceptance
with blanks appropriately completed, together with a processing and recordation
fee of $3,500 (for which the Borrower shall have no liability). Upon such
execution, delivery, acceptance and recording, from and after the effective date
specified in each Assignment and Acceptance, which effective date shall be
within ten Business Days after the execution thereof (unless otherwise agreed to
in writing by the Agent), (A) the assignee thereunder shall be a party hereto
and, to the extent provided in such Assignment and Acceptance, have the rights
and obligations of a Bank hereunder and (B) the Bank thereunder shall, to the
extent provided in such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Bank's rights
and obligations under this Agreement, such Bank shall cease to be a party
hereto).
(c) By executing and delivering an Assignment and Acceptance, the
Bank assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than the
representation and warranty that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim, such Bank
assignor makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with this Agreement or any of the other Loan Documents or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of this Agreement or any of the other Loan Documents; (ii) such Bank assignor
makes no representation or warranty and assumes no responsibility with respect
to the financial condition of the Borrower or any Guarantor or the performance
or observance by the Borrower or any Guarantor of any of its obligations under
this Agreement or any of the other Loan Documents or any other instrument or
document furnished pursuant hereto; (iii) such assignee confirms that it has
received a copy of this Agreement and the other Loan Documents, together with
copies of the financial statements referred to in Section 3.04 and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (iv) such
assignee will, independently and without reliance upon the Agent, the Co-Agent,
such Bank assignor 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
decisions in taking or not taking action under this Agreement; (v) such assignee
appoints and authorizes the Agent and/or the Co-Agent to take such action as
agent
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on its behalf and to exercise such powers under this Agreement as are delegated
to the Agent and/or the Co-Agent by the terms thereto, together with such powers
as are reasonably incidental hereof; and (vi) such assignee agrees that it will
perform in accordance with their terms all obligations that by the terms of this
Agreement are required to be performed by it as a Bank.
(d) The Agent shall maintain at its office a copy of each Assignment
and Acceptance delivered to it and a register for the recordation of the names
and addresses of the Banks and the Commitments of, and principal amount of the
Loans owing to, each Bank from time to time (the "Register"). The entries in the
Register shall be conclusive, in the absence of manifest error, and the
Borrower, the Guarantors, the Agent, the Co-Agent and the Banks shall treat each
Person the name of which is recorded in the Register as a Bank hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrower or any Bank at any reasonable time and from time to time upon
reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Bank and the assignee thereunder together with the fee payable in
respect thereto, the Agent shall, if such Assignment and Acceptance has been
completed with blanks appropriately filled and consented to by the Agent and the
Fronting Bank (to the extent such consent is required hereunder), (i) accept
such Assignment and Acceptance, (ii) record the information contained therein in
the Register and (iii) give prompt written notice thereof to the Borrower
(together with a copy thereof). No assignment shall be effective for purposes of
this Agreement unless it has been recorded in the Register as provided in this
paragraph.
(f) Any Bank may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section 10.03, disclose
to the assignee or participant or proposed assignee or participant, any
information relating to the Borrower or any of the Guarantors furnished to such
Bank by or on behalf of the Borrower or any of the Guarantors; PROVIDED that
prior to any such disclosure, each such assignee or participant or proposed
assignee or participant shall agree in writing to be bound by the provisions of
Section 10.04.
(g) The Borrower hereby agrees to actively assist and cooperate with
the Agent in the Agent's efforts to sell participations herein (as described in
Section 10.03(a)) and assign to one or more Banks or Eligible Assignees a
portion of its interests, rights and obligations under this Agreement (as set
forth in Section 10.03(b)).
SECTION 10.04 CONFIDENTIALITY. Each Bank agrees to keep any information
delivered or made available by the Borrower or any of the Guarantors to it
confidential from anyone other than persons employed or retained by such Bank
who are or are expected to become engaged in evaluating, approving, structuring
or administering the Loans; PROVIDED that nothing herein shall prevent any Bank
from disclosing such information (i) to any of its Affiliates or to any other
Bank, PROVIDED such Affiliate agrees to keep such information confidential to
the same extent required by the Banks hereunder, (ii) upon the order of any
court or administrative agency, (iii) upon the request or demand of any
regulatory agency or authority, (iv) which has been publicly disclosed other
than
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as a result of a disclosure by the Agent, the Co-Agent or any Bank which is not
permitted by this Agreement, (v) in connection with any litigation to which the
Agent, the Co-Agent, any Bank, or their respective Affiliates may be a party to
the extent reasonably required, (vi) to the extent reasonably required in
connection with the exercise of any remedy hereunder, (vii) to such Bank's legal
counsel and independent auditors, and (viii) to any actual or proposed
participant or assignee of all or part of its rights hereunder subject to the
proviso in Section 10.03(f). Each Bank shall use reasonable efforts to notify
the Borrower of any required disclosure under clause (ii) of this Section.
SECTION 10.05 EXPENSES. Whether or not the transactions hereby
contemplated shall be consummated, the Borrower and the Guarantors agree to pay
all reasonable and documented out- of-pocket expenses (i) incurred by the Agent
(including but not limited to the reasonable fees and disbursements of Xxxxxx,
Xxxxx & Xxxxxxx LLP, special counsel for the Agent, any other counsel that the
Agent shall retain and any internal or third-party appraisers, consultants and
auditors advising the Agent and Chase Securities Inc.) in connection with the
preparation, execution, delivery and administration of this Agreement and the
other Loan Documents, the making of the Loans and the issuance of the Letters of
Credit, the perfection of the Liens contemplated hereby, the syndication of the
transactions contemplated hereby and the reasonable and customary costs, fees
and expenses internally allocated charges and expenses relating to the Agent's
initial and ongoing Borrowing Base examinations, of the Agent in connection with
its monthly and other periodic field audits, monitoring of assets (including
reasonable and customary internally allocated fees incurred in connection with
periodic collateral evaluations and appraisals and internally allocated
monitoring fees associated with the Agent's Collateral Agent Services Group),
(ii) of the Co-Agent incurred by the Co-Agent and counsel to the Co-Agent (but
not other advisors) with respect to the drafting, review and execution of this
Agreement and the other Loan Documents and following the occurrence of an Event
of Default or a request for a waiver, amendment or modification to this
Agreement and (iii) following the occurrence of an Event of Default, incurred by
the Banks, the Co-Agent and the Agent in the enforcement or protection of the
rights of any one or more of the Banks, the Co-Agent or the Agent in connection
with this Agreement or the other Loan Documents, including but not limited to
the reasonable fees and disbursements of any counsel for the Banks, the Co-Agent
or the Agent. Such payments shall be made on the date of the Final Order and
thereafter on demand upon delivery of a statement setting forth such costs and
expenses (collectively, the "LOAN DOCUMENT EXPENSES").
SECTION 10.06 INDEMNITY. The Borrower and each of the Guarantors agree to
indemnify and hold harmless the Agent, the Co-Agent, Chase Securities Inc. and
the Banks and their directors, officers, employees, agents and Affiliates (each
an "INDEMNIFIED PARTY") from and against any and all expenses, losses, claims,
damages and liabilities incurred by such Indemnified Party arising out of claims
made by any Person in any way relating to the transactions contemplated hereby,
but excluding therefrom all expenses, losses, claims, damages, and liabilities
to the extent that they are determined by the final judgment of a court of
competent jurisdiction to have resulted from the gross negligence or willful
misconduct of such Indemnified Party. The obligations of the Borrower and the
Guarantors under this Section shall survive the termination of this Agreement
and/or the payment of the Loans
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SECTION 10.07 CHOICE OF LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
SHALL IN ALL RESPECTS BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS
OF THE STATE OF NEW YORK AND (TO THE EXTENT APPLICABLE) THE BANKRUPTCY CODE.
SECTION 10.08 NO WAIVER. No failure on the part of the Agent, the Co-Agent
or any of the Banks to exercise, and no delay in exercising, any right, power or
remedy hereunder or any of the other Loan Documents shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. All remedies hereunder are cumulative and are not
exclusive of any other remedies provided by law.
SECTION 10.09 EXTENSION OF MATURITY. Should any payment of principal of or
interest or any other amount due hereunder become due and payable on a day other
than a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day and, in the case of principal, interest shall be payable
thereon at the rate herein specified during such extension.
SECTION 10.10 AMENDMENTS, ETC.
(a) No modification, amendment or waiver of any provision of this
Agreement or the Security and Pledge Agreement, and no consent to any departure
by the Borrower or any Guarantor therefrom, shall in any event be effective
unless the same shall be in writing and signed by the Required Banks, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given; PROVIDED, HOWEVER, that no such modification or
amendment shall without the written consent of the Bank affected thereby (x)
increase the Commitment of a Bank (it being understood that a waiver of an Event
of Default shall not constitute an increase in the Commitment of a Bank), or (y)
reduce the principal amount of any Loan or the rate of interest payable thereon,
or extend any date for the payment of interest or principal hereunder or reduce
any Fees payable hereunder or extend the final maturity of the Borrower's
obligations hereunder; and, PROVIDED, FURTHER, that no such modification or
amendment shall without the written consent of all of the Banks (i) amend or
modify any provision of this Agreement which provides for the unanimous consent
or approval of the Banks, (ii) amend this Section 10.10 or the definition of
Required Banks or (iii) amend or modify Section 2.17 or the Super-Priority Claim
status of the Banks contemplated by Section 2.23, PROVIDED, further, that no
such modification or amendment shall without the written consent of the
Super-majority Banks (A) release any material portion of the Liens granted to
the Agent hereunder, under the Final Order or under any other Loan Document
(other than as permitted by Schedule 6.11), (B) release any material Guarantor
or (C) amend the definition of the term Borrowing Base, PROVIDED, further, that
no such modification or amendment shall without the written consent of all of
the Banks release all or substantially all of the Liens granted to the Agent
hereunder, under the Final Order or under any of the other Loan Documents (other
than as permitted by Section 6.11), or release all or substantially all of the
Guarantors. No such amendment or modification may adversely affect the rights
and obligations of the Agent, the Co-Agent or any Fronting Bank hereunder or
Chase or any of its banking Affiliates in the capacity referred to in Section
6.03(vi)
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without its prior written consent. No notice to or demand on the Borrower or any
Guarantor shall entitle the Borrower or any Guarantor to any other or further
notice or demand in the same, similar or other circumstances. Each assignee
under Section 10.03(b) shall be bound by any amendment, modification, waiver, or
consent authorized as provided herein, and any consent by a Bank shall bind any
Person subsequently acquiring an interest on the Loans held by such Bank. No
amendment to this Agreement shall be effective against the Borrower or any
Guarantor unless signed by the Borrower or such Guarantor, as the case may be.
(b) Notwithstanding anything to the contrary contained in Section
10.10(a), in the event that the Borrower requests that this Agreement be
modified or amended in a manner which would require the unanimous consent of all
of the Banks and such modification or amendment is agreed to by the
Super-majority Banks (as hereinafter defined), then with the consent of the
Borrower and the Super-majority Banks, the Borrower and the Super-majority Banks
shall be permitted to amend the Agreement without the consent of the Bank or
Banks which did not agree to the modification or amendment requested by the
Borrower (such Bank or Banks, collectively the "MINORITY BANKS") to provide for
(w) the termination of the Commitment of each of the Minority Banks, (x) the
addition to this Agreement of one or more other financial institutions (each of
which shall be an Eligible Assignee), or an increase in the Commitment of one or
more of the Super-majority Banks, so that the Total Commitment after giving
effect to such amendment shall be in the same amount as the Total Commitment
immediately before giving effect to such amendment, (y) if any Loans are
outstanding at the time of such amendment, the making of such additional Loans
by such new financial institutions or Super-majority Bank or Banks, as the case
may be, as may be necessary to repay in full the outstanding Loans of the
Minority Banks immediately before giving effect to such amendment and (z) such
other modifications to this Agreement as may be appropriate. As used herein, the
term "Super-majority Banks" shall mean, at any time, Banks holding Loans
representing at least 66-2/3% of the aggregate principal amount of the Loans
outstanding, or if no Loans are outstanding, Banks having Commitments
representing at least 66-2/3% of the Total Commitment.
SECTION 10.11 SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 10.12 HEADINGS. Article and Section headings used herein are for
convenience only and are not to affect the construction of or be taken into
consideration in interpreting this Agreement.
SECTION 10.13 EXECUTION IN COUNTERPARTS. This Agreement may be executed in
any number of counterparts, each of which shall constitute an original, but all
of which taken together shall constitute one and the same instrument.
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SECTION 10.14 PRIOR AGREEMENTS. This Agreement represents the entire
agreement of the parties with regard to the subject matter hereof, and the terms
of any letters, term sheets and other documentation entered into or exchanged
between the Borrower or a Guarantor and any Bank, the Co-Agent or the Agent
prior to the execution of this Agreement which relate to Loans to be made
hereunder shall be replaced by the terms of this Agreement.
SECTION 10.15 FURTHER ASSURANCES. Whenever and so often as reasonably
requested by the Agent, the Borrower and the Guarantors will promptly execute
and deliver or cause to be executed and delivered all such other and further
instruments, documents or assurances, and promptly do or cause to be done all
such other and further things as may be necessary and reasonably required in
order to further and more fully vest in the Agent and/or the Banks all rights,
interests, powers, benefits, privileges and advantages conferred or intended to
be conferred by this Agreement and the other Loan Documents.
SECTION 10.16 WAIVER OF JURY TRIAL. IN EACH OF THE BORROWER, THE
GUARANTORS, THE AGENT, THE CO-AGENT AND IN EACH BANK HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR RELATING TO ANY OF THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED
THEREBY.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and the year first written.
BORROWER:
THE LTV CORPORATION
By:__________________________________
Name:
Title:
GUARANTORS:
LTV STEEL COMPANY, INC.
COPPERWELD BIMETALLIC PRODUCTS COMPANY
COPPERWELD CORPORATION
COPPERWELD EQUIPMENT COMPANY
COPPERWELD MARKETING & SALES COMPANY
COPPERWELD TUBING PRODUCTS COMPANY
CRYSTALANE, INC.
DEARBORN LEASING COMPANY
ERIE B CORPORATION
ERIE I CORPORATION
FOX TRAIL, INC.
GEORGIA TUBING CORPORATION
INVESTMENT BANKERS, INC.
J&L EMPIRE, INC.
JALCITE I, INC.
JALCITE II, INC.
XXXXX & XXXXXXXX STEEL INCORPORATED
LTV BLANKING CORPORATION
LTV-COLUMBUS PROCESSING, INC.
THE LTV CORPORATION (A WYOMING CORPORATION)
LTV-EGL HOLDING COMPANY
LTV ELECTRO-GALVANIZING, INC.
LTV-ESCROW, INC.
LTV INTERNATIONAL, INC.
LTV PICKLE, INC.
LTV PROPERTIES, INC.
LTV STEEL DE MEXICO, LTD.
LTV STEEL MINING COMPANY
LTV-TRICO HOLDING, INC.
LTV-TRICO, INC.
LTV-XXXXXXXXX, INC.
LTVGT, INC.
METALLON MATERIALS ACQUISITION CORPORATION
MIAMI ACQUISITION CORPORATION
NEMACOLIN MINES CORPORATION
REOMAR, INC.
REPUBLIC TECHNOLOGY CORPORATION
REVOLVING CREDIT AND GUARANTY AGREEMENT
83
SOUTHERN CROSS INVESTMENT COMPANY
TAC ACQUISITION CORPORATION
TRICO STEEL COMPANY, INC.
UNITED PANEL, INC.
VARCO XXXXXX INTERNATIONAL, INC.
VP BUILDINGS, INC.
VP-XXXXXX, INC.
WELDED TUBE CO. OF AMERICA
WELDED TUBE HOLDINGS, INC.
YOUNGSTOWN ERIE CORPORATION
YST ERIE CORPORATION
By: _____________________________
Name:
Title:
REVOLVING CREDIT AND GUARANTY AGREEMENT
84
THE CHASE MANHATTAN BANK,
Individually and as Agent
By: ______________________________
Name:
Title:
Address: 000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xx. Xxxxx Xxxxx
Fax No.: 000-000-0000
REVOLVING CREDIT AND GUARANTY AGREEMENT
85
ABBEY NATIONAL TREASURY SERVICES PLC,
Individually and as Co-Agent
By: _______________________________________
Name:
Title:
By: _______________________________________
Name:
Title:
Address: Abbey National Treasury Services Plc
Abbey House
000-000 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Attn: Xx. Xxxxx XxXxxx
Mr. Xxxx Xxxxxxxx
Xx. Xxxxxx Xxxxxx
Fax No.: 000-00-000-000-0000
with a copy to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxxx, Esq.
Fax No.: 000-000-0000
REVOLVING CREDIT AND GUARANTY AGREEMENT
86
CREDIT AGRICOLE INDOSUEZ (NEW YORK)
By: __________________________________
Name:
Title:
Address: 000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxxxxxx Xxxx
Fax No.: 000-000-0000
REVOLVING CREDIT AND GUARANTY AGREEMENT
87
BANK OF AMERICA, N.A.
By: ________________________________________________
Name:
Title:
Address: 000 Xxxxx XxXxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attn: Business Credit-Account Executive for LTV Steel
(IL1-231-16-33)
Fax No.: 000-000-0000
REVOLVING CREDIT AND GUARANTY AGREEMENT
88
BANKERS TRUST COMPANY
By: _____________________________________
Name:
Title:
Address: 000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xx. Xxxxxxx Xxxxxxxxxx
Fax No.: 000-000-0000
REVOLVING CREDIT AND GUARANTY AGREEMENT
89
ABLECO FINANCE LLC
By: __________________________________
Name:
Title:
Address: 000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xx. Xxxx X. Xxxxxx
Fax No.: 000-000-0000
REVOLVING CREDIT AND GUARANTY AGREEMENT
90
GMAC COMMERCIAL CREDIT LLC
By: ___________________________________
Name:
Title:
Address: Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Mr. Xxxxxx Xxxxxx
Fax No.: 000-000-0000
REVOLVING CREDIT AND GUARANTY AGREEMENT
91
MELLON BANK, N.A.
By: ______________________________________
Name:
Title:
Address: Xxx Xxxxxx Xxxx Xxxxxx, Xxxx 0000
Xxxxxxxxxx, XX 00000-0000
Attn: Xx. Xxxx Xxxx
Fax No.: 000-000-0000
REVOLVING CREDIT AND GUARANTY AGREEMENT
92
NATIONAL CITY BANK
By: ___________________________________
Name:
Title:
Address: 0000 Xxxx 0xx Xxxxxx, Xxx. 0000
Xxxxxxxxx, XX 00000
Attn: Xx. Xxxx XxXxxxxxx
Fax No.: 000-000-0000
REVOLVING CREDIT AND GUARANTY AGREEMENT
93
CHASE SECURITIES INC.,
as agent for The Chase Manhattan Bank
By: ______________________________________
Name:
Title:
Address: x/x Xxxxx Xxxxxxxxx Xxxx
0 Xxxxx Xxxxxxxxx Plaza, 8th Floor
New York, NY 10081
Attn: Xx. Xxxxxxx Xxxxx,
SPS High Yield Loan Trading
Fax No.: 000-000-0000
REVOLVING CREDIT AND GUARANTY AGREEMENT
94
THE SUMITOMO MITSUI BANKING CORPORATION
By: __________________________________
Name:
Title:
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Loan Restructuring Department
Fax No.: 000-000-0000
REVOLVING CREDIT AND GUARANTY AGREEMENT
95
D.K. ACQUISITION PARTNERS, G.P.
By: ______________________________________
Name:
Title:
Address: 000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: Xx. Xxxxxx X. Xxxxxxx
Fax No.: 000-000-0000
REVOLVING CREDIT AND GUARANTY AGREEMENT
00
XXX XXXX XX XXXXXXXXXX
By: _______________________________________
Name:
Title:
Address: 000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000-0000
Attn: Mr. Art Xxxxxx and Mr. Xxxxxx Xxxxx
Fax No.: 000-000-0000
REVOLVING CREDIT AND GUARANTY AGREEMENT
97
GENERAL ELECTRIC CAPITAL CORPORATION
By: ___________________________________
Name:
Title:
Address: Commercial Finance
00 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Attn: Xx.Xxxxxxx Xxxx
Fax No.: 000-000-0000
REVOLVING CREDIT AND GUARANTY AGREEMENT
98
ANNEX A
to
REVOLVING CREDIT AND GUARANTY AGREEMENT
Dated as of March 20, 2001
BANK COMMITMENT COMMITMENT
AMOUNT PERCENTAGE
The Chase Manhattan Bank $49,869,998.04 8.5707%
Abbey National Treasury Services Plc $222,510,626.39 38.2407%
Credit Agricole Indosuez (New York) $60,717,113.07 10.4348%
Bank of America, N.A. $29,267,162.27 5.0299%
Bankers Trust Company $29,267,162.27 5.0299%
Ableco Finance LLC $24,389,301.89 4.1915%
GMAC Commercial Credit LLC $22,438,157.73 3.8562%
Mellon Bank, N.A. $22,438,157.73 3.8562%
National City Bank $22,438,157.73 3.8562%
Chase Securities Inc., as agent for
The Chase Manhattan Bank $12,682,436.98 2.1796%
The Sumitomo Mitsui Banking Corporation $22,438,157.73 3.8562%
D.K. Acquisition Partners, G.P. $29,267,162.27 5.0299%
Key Bank of Washington $19,511,441.51 3.3532%
General Electric Capital Corporation $14,633,581.13 2.5149%
Total: $581,868,616.74 100.0000%
99
Exhibit A to the
Revolving Credit and
Guaranty Agreement
FORM OF FINAL ORDER
100
Exhibit B to the
Revolving Credit and
Guaranty Agreement
FORM OF SECURITY AND
PLEDGE AGREEMENT
101
Exhibit C to the
Revolving Credit and
Guaranty Agreement
FORM OF OPINION OF COUNSEL
102
Exhibit D to the
Revolving Credit and
Guaranty Agreement
FORM OF ASSIGNMENT AND ACCEPTANCE
103
Exhibit E to the
Revolving Credit and
Guaranty Agreement
FORM OF BORROWING BASE CERTIFICATE
104
SCHEDULE 1.1
EXISTING LETTERS OF CREDIT
105
SCHEDULE 3.01
GOOD STANDING EXCEPTIONS
106
SCHEDULE 3.05
SUBSIDIARIES
107
SCHEDULE 3.06
LIENS
108
SCHEDULE 3.07
COMPLIANCE WITH LAWS
109
SCHEDULE 3.10
LITIGATION
