EXHIBIT 10.1
LOAN AGREEMENT
By and Among
DEL LABORATORIES, INC. ("Borrower")
DEL PHARMACEUTICALS, INC. ("DPI" or a "Guarantor")
PARFUMS SCHIAPARELLI, INC. ("Parfums" or a "Guarantor")
ROYCE & XXXXX, INC. ("Royce" or a "Guarantor")
565 BROAD HOLLOW REALTY CORP. ("565" or a "Guarantor")
and
JPMORGAN CHASE BANK, as Agent for the Lenders ("Agent")
and
JPMORGAN CHASE BANK ("JPMORGAN" or a "Lender")
HSBC BANK USA ("HSBC" or a "Lender")
BRANCH BANKING AND TRUST COMPANY ("BBT" or a "Lender")
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS ........................................... 1
SECTION 1.01. Certain Defined Terms ..................................... 1
SECTION 1.02. Computation of Time Periods ............................... 16
SECTION 1.03. Accounting Terms .......................................... 17
ARTICLE II
AMOUNT AND TERMS OF THE LOANS .............................................. 17
SECTION 2.01. The Revolving Credit Loans ................................ 17
SECTION 2.02. Revolving Credit Loans; Notice, Continuation
and Conversion ............................................ 18
SECTION 2.03. Revolving Credit Notes .................................... 23
SECTION 2.04. Payment of Interest on the Revolving Credit Notes ......... 24
SECTION 2.05. Applicable Margin ......................................... 24
SECTION 2.06 Use of Proceeds ........................................... 25
SECTION 2.07. Commitment Fee; Other Fees ................................ 26
SECTION 2.08. Reductions of Total Commitment ............................ 26
SECTION 2.09. Prepayment ................................................ 27
SECTION 2.10. Reimbursement by Borrower ................................. 27
SECTION 2.11. Statutory Reserves ........................................ 28
SECTION 2.12. Increased Costs ........................................... 29
SECTION 2.13. Capital Adequacy .......................................... 30
SECTION 2.14. Change in Legality ........................................ 30
SECTION 2.15. Indemnity ................................................. 31
SECTION 2.16. Change in LIBOR; Availability of Rates .................... 31
SECTION 2.17. Authorization to Debit Borrower's Account ................. 31
SECTION 2.18. Late Charges; Default Interest ............................ 31
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SECTION 2.19. Payments .................................................. 32
SECTION 2.20. Interest Adjustments ...................................... 32
ARTICLE IIA ................................................................ 33
THE LETTERS OF CREDIT
SECTION 2A.01. Letters of Credit ......................................... 33
SECTION 2A.02. Issuance of Letters of Credit ............................. 34
SECTION 2A.03. Participations of Lenders ................................. 34
SECTION 2A.04. Repayment of Participations ............................... 35
SECTION 2A.05 Role of the Issuing Bank .................................. 36
SECTION 2A.06. Obligations Absolute ...................................... 37
SECTION 2A.07. Uniform Customs and Practices ............................. 38
SECTION 2A.08. Fees and Commissions ...................................... 38
ARTICLE III ................................................................ 40
CONDITIONS OF LENDING
SECTION 3.01 Conditions Precedent to the making of the Initial
revolving credit loan and the issuance of the initial
letter of credit .......................................... 40
SECTION 3.02. Conditions Precedent to All Revolving Credit Loans ........ 42
SECTION 3.03. Conditions Precedent to All Letters of Credit
and All B/As .............................................. 43
ARTICLE IV ................................................................. 44
REPRESENTATIONS AND WARRANTIES ............................................. 44
SECTION 4.01. Representations and Warranties ............................ 44
ARTICLE V................................................................... 50
COVENANTS OF THE BORROWER AND THE GUARANTOR................................. 50
SECTION 5.01. Affirmative Covenants...................................... 50
SECTION 5.02. Negative Covenants......................................... 55
SECTION 5.03. Financial Requirements..................................... 59
ARTICLE VI.................................................................. 61
EVENTS OF DEFAULT........................................................... 61
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SECTION 6.01. Events of Default.......................................... 61
SECTION 6.02. Remedies on Default........................................ 63
SECTION 6.03. Remedies Cumulative........................................ 64
ARTICLE VII................................................................. 65
THE AGENT; RELATIONS AMONG LENDERS AND BORROWER............................. 65
SECTION 7.01. Appointment, Powers and Immunities of Agent................ 65
SECTION 7.02. Reliance by Agent.......................................... 65
SECTION 7.03. Defaults................................................... 66
SECTION 7.04. Rights of Agent as a Lender................................ 66
SECTION 7.05. Indemnification of Agent................................... 67
SECTION 7.06. Documents.................................................. 67
SECTION 7.07. Non-Reliance on Agent and Other Lenders.................... 67
SECTION 7.08. Failure of Agent to Act.................................... 68
SECTION 7.09. Resignation of Agent....................................... 68
SECTION 7.10. Amendments Concerning Agency Function...................... 69
SECTION 7.11. Liability of Agent......................................... 69
SECTION 7.12. Transfer of Agency Function................................ 69
SECTION 7.13. Withholding Taxes.......................................... 69
SECTION 7.14. Several Obligations and Rights of Lenders.................. 70
SECTION 7.15. Pro Rata Treatment of Loans, Etc........................... 70
SECTION 7.16. Sharing of Payments Among Lenders.......................... 70
SECTION 7.17. Nonreceipt of Funds by Agent; Payments to Lenders.......... 71
ARTICLE VIII................................................................ 72
MISCELLANEOUS............................................................... 72
SECTION 8.01. Amendments, Etc............................................ 72
SECTION 8.02. Notices, Etc............................................... 72
SECTION 8.03. No Waiver, Remedies........................................ 72
SECTION 8.04. Costs and Expenses......................................... 73
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SECTION 8.05. Right of Set-off........................................... 73
SECTION 8.06. Binding Effect............................................. 74
SECTION 8.07. Successors and Assigns..................................... 74
SECTION 8.08. Further Assurances......................................... 75
SECTION 8.09. Section Headings, Severability, Entire Agreement........... 75
SECTION 8.10. Confidentiality............................................ 76
SECTION 8.11. Governing Law.............................................. 76
SECTION 8.12. WAIVER OF JURY TRIAL....................................... 76
SECTION 8.13. Execution in Counterparts.................................. 77
Schedule 1.01 Commitments of Each Lender
Schedule 2.01 Existing Letters of Credit
Schedule 4.01(a) Subsidiaries
Schedule 4.01(t) Credit Agreements
Schedule 5.02(a) Liens
Schedule 5.02(b) Debt
Schedule 5.02(h) Guaranties
Exhibit A Revolving Credit Note
Exhibit B Assignment and Assumption Agreement
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LOAN AGREEMENT
Dated as of April 13, 2004
DEL LABORATORIES, INC., a Delaware corporation, having its principal
place of business at 000 XXX Xxxxx, X.X. Xxx 0000, Xxxxxxxxx, Xxx Xxxx
00000-0000 (the "Borrower"), DEL PHARMACEUTICALS, INC., a Delaware corporation,
having its principal place of business at 000 XXX Xxxxx, X.X. Xxx 0000,
Xxxxxxxxx, Xxx Xxxx 00000-0000 ("DPI"), PARFUMS SCHIAPARELLI, INC., a New York
corporation, having its principal place of business at 000 XXX Xxxxx, X.X. Xxx
0000, Xxxxxxxxx, Xxx Xxxx 00000-0000 ("Parfums"), ROYCE & XXXXX, INC., a
Delaware corporation, having its principal place of business at 000 XXX Xxxxx,
X.X. Xxx 0000, Xxxxxxxxx, Xxx Xxxx 00000-0000 ("Royce"), 000 XXXXX XXXXXX XXXXXX
XXXX., x Xxx Xxxx corporation, having its principal place of business at 000 XXX
Xxxxx, X.X. Xxx 0000, Xxxxxxxxx, Xxx Xxxx 00000-0000 ("565"), (DPI, Parfums,
Royce and 565, individually a "Guarantor" and collectively, the "Guarantors")
and JPMORGAN CHASE BANK, as Agent for the Lenders (as defined herein), a New
York banking corporation, having an office at 000 Xxxxx Xxxxxxx Xxxx, Xxxxx 000,
Xxxxxxxx, Xxx Xxxx 00000 (the "Agent"), JPMORGAN CHASE BANK, a New York banking
corporation, having an office at 000 Xxxxx Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx,
Xxx Xxxx 00000 ("JPMorgan" or a "Lender") HSBC BANK USA, a New York banking
corporation having an office at 000 Xxxxx Xxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000
("HSBC" or a "Lender") and BRANCH BANKING AND TRUST COMPANY, a North Carolina
banking corporation, having an office at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxx Xxxxxxxx 00000 ("BBT" or a "Lender") hereby agree to amend and restate the
Amendment to and Restatement of Loan Agreement amended and restated as of March
26, 2002 as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. CERTAIN DEFINED TERMS. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"ADJUSTED LIBOR RATE" means, with respect to any Eurodollar Loan for
any Interest Period, an interest rate per annum (rounded, if not already a whole
multiple of 1/16th of one percent to the nearest 1/16th of one percent) equal to
the product of (a) the LIBOR Rate and (b) Statutory Reserves.
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"AFFILIATE" means, as to any Person (i) a Person which directly or
indirectly controls, or is controlled by, or is under common control with, such
Person; (ii) a Person which directly or indirectly beneficially owns or holds
twenty (20%) percent or more of any class of voting stock of, or twenty (20%)
percent or more of the equity interest in, such Person; or (iii) a Person twenty
(20%) percent or more of the voting stock of which, or twenty (20%) percent or
more of the equity interest of which, is directly or indirectly beneficially
owned or held by such Person, provided, however, that with respect to the
Borrower or any Guarantor, no natural Person, and no trust, estate or other
entity which may hold assets of such natural Person for estate planning purposes
or upon such natural Person's death, shall be deemed an Affiliate of the
Borrower or a Guarantor. The term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
contract, or otherwise.
"AGENT" means JPMorgan Chase Bank, or such other Lender as may succeed
to the position of Agent, as provided in this Agreement.
"AGGREGATE OUTSTANDINGS" means, at any time the sum of (i) outstanding
Revolving Credit Loans (including Swingline Loans), plus (ii) Outstanding L/C
Exposure.
"AGREEMENT" means this Loan Agreement, as amended, supplemented or
modified from time to time.
"ALTERNATE BASE RATE" means, for any day, the higher of (a) the Prime
Rate (computed on the basis of the actual number of days elapsed over a year of
360 days) in effect on such day or (b) the Federal Funds Effective Rate in
effect on such day plus one-half of one (1/2%) percent (computed on the basis of
the actual number of days elapsed over a year of 360 days). For purposes of this
Agreement any change in the Alternate Base Rate due to a change in the Prime
Rate or the Federal Funds Effective Rate shall be effective on the effective
date of such change in the Prime Rate or the Federal Funds Effective Rate,
respectively. If for any reason the Agent shall have reasonably determined
(which determination shall be conclusive absent manifest error) that it is
unable to ascertain the Federal Funds Effective Rate for any reason, including,
without limitation, the inability or failure of the Agent to obtain sufficient
bids or publications in accordance with the terms thereof, the Alternate Base
Rate shall be determined without regard to clause (b) of the first sentence of
this definition, as appropriate, until the circumstances giving rise to such
inability no longer exist.
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"ALTERNATE BASE RATE LOAN" means a Loan bearing interest at the
Alternate Base Rate in accordance with the provisions of Article II hereof.
"APPLICABLE MARGIN" means the amount of basis points to be added to the
Adjusted LIBOR Rate as provided in Section 2.04 of this Agreement and as
determined pursuant to Section 2.05 of this Agreement.
"ASSIGNMENT AND ASSUMPTION AGREEMENT" means the agreement by which a
Lender assigns all or part of its Commitment and its interests in the Loans to
another Lender, as provided in Section 8.07 of this Agreement.
"B/AS" means time drafts drawn by the beneficiary of a Time Letter of
Credit on the Issuing Bank and accepted by the Issuing Bank pursuant to Section
2A hereof for the account of the Borrower in connection with or in conjunction
with Time Letters of Credit having not more than 180 days' to run, which grow
out of transactions involving the importation or the domestic shipment of goods.
All such drafts shall be subject to the provisions of the Federal Reserve Act,
as amended, and the rules and regulations thereunder. In addition, all such
drafts shall be eligible for purchase by, discount with and pledge to, the
Federal Reserve Bank of New York.
"BA RATE" means the rate per annum established by the Issuing Bank from
time to time as its acceptance rate for B/As.
"BOARD OF GOVERNORS" means the Board of Governors of the Federal
Reserve System of the United States of America.
"BUSINESS DAY" means a day of the year on which banks are not required
or authorized to close in New York City, provided that, if the relevant day
relates to a Eurodollar Loan, a Eurodollar Interest Period, or notice with
respect to a Eurodollar Loan, the term "Business Day" shall mean a day on which
dealings in dollar deposits are also carried on in the London interbank market
and banks are open for business in London.
"CAPITAL EXPENDITURES" means as to any Person, the aggregate amount of
any expenditures (including purchase money debt and purchase money liens) by
such Person for assets (including fixed assets acquired under Capital Leases)
which it is contemplated will be used or usable in fiscal years subsequent to
the year of acquisition and that are required to be capitalized in accordance
with GAAP.
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"CAPITAL LEASE" means a lease which has been, or should be, in
accordance with GAAP, capitalized on the books of the lessee.
"CLOSING DATE" means the date on which the conditions precedent set
forth in Section 3.01 of this Agreement, are satisfied.
"COMMITMENT" means, with respect to each Lender, the obligation of such
Lender (i) to make Revolving Credit Loans to the Borrower pursuant to the terms
and subject to the conditions of this Agreement, and (ii) in the case of the L/C
Issuer, to issue Letters of Credit for the account of the Borrower or DPI or in
the case of the other Lenders, to take risk participations in the Letters of
Credit issued by the Issuing Bank, each pursuant to the terms and subject to the
conditions of this Agreement, in the aggregate Dollar amount and Pro Rata Share
set forth in Schedule 1.01 annexed hereto, as modified by any reductions in the
Total Commitment or by any assignments of all or any part of such Lender's
Commitment.
"CONSOLIDATED EBITDA" means, as to any Person, for any period, the
EBITDA of such Person and its Consolidated Subsidiaries, computed and
consolidated in accordance with GAAP.
"CONSOLIDATED FIXED CHARGE RATIO" means, as to the Borrower and its
Consolidated Subsidiaries, the ratio of (i) the sum of net income PLUS gross
interest expense PLUS income tax expense for the period PLUS depreciation PLUS
amortization to (ii) Consolidated Unfunded Capital Expenditures made during the
period PLUS dividends paid in cash PLUS open market stock repurchases (not
including the non-cash accounting for stock options) PLUS the current portion of
Consolidated Funded Debt PLUS gross interest expense PLUS income tax expense.
The Consolidated Fixed Charge Coverage Ratio shall be measured for the four (4)
fiscal quarters then ended, except for the current portion of Consolidated
Funded Debt, which shall be measured for the next succeeding four (4) fiscal
quarters.
"CONSOLIDATED FUNDED DEBT" means, as to any Person, at any date, any
Funded Debt of such Person and its Consolidated Subsidiaries.
"CONSOLIDATED NET INCOME" means, with respect to the Borrower and its
Consolidated Subsidiaries, net income for a fiscal period, computed and
consolidated in accordance with GAAP.
"CONSOLIDATED SUBSIDIARIES" means, as to any Person, those Subsidiaries
of such Person which are consolidated with such Person in the financial
statements delivered pursuant to Section 5.01(b).
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"CONSOLIDATED TANGIBLE NET WORTH" means, as to any Person, the excess
of (i) such Person's Consolidated Total Assets, less all intangible assets
properly classified as such in accordance with GAAP, including, but without
limitation, patents, patent rights, trademarks, trade names, franchises,
copyrights, licenses, permits and goodwill over (ii) such Person's Consolidated
Total Liabilities.
"CONSOLIDATED TOTAL ASSETS" means, as to any Person, at any date, the
aggregate net book value of the assets of such Person and its Consolidated
Subsidiaries at such date, after all appropriate adjustments in accordance with
GAAP (including without limitation, reserves for doubtful receivables,
obsolescence, depreciation and amortization and excluding the amount of any
write-up or revaluation of any asset, other than those permitted under standard
cost accounting procedures), computed and consolidated in accordance with GAAP.
"CONSOLIDATED TOTAL LIABILITIES" means, as to any Person, at any date,
all of the liabilities of such Person and its Consolidated Subsidiaries at such
date, including all items which, in accordance with GAAP would be included on
the liability side of the balance sheet (other than capital stock, treasury
stock, capital surplus and retained earnings) computed and consolidated in
accordance with GAAP.
"CONSOLIDATED UNFUNDED CAPITAL EXPENDITURES" means, as to any Person,
the aggregate amount of the Unfunded Capital Expenditures by such Person and its
Consolidated Subsidiaries, computed and consolidated in accordance with GAAP.
"DEBT" means, as to any Person, all (i) indebtedness or liability of
such Person for borrowed money; (ii) indebtedness of such Person for the
deferred purchase price of property or services (including trade obligations);
(iii) obligations of such Person as a lessee under Capital Leases; (iv) current
liabilities of such Person in respect of unfunded vested benefits under any
Plan; (v) reimbursement obligations of such Person under letters of credit
issued for the account of such Person; (vi) reimbursement obligations of such
Person arising under acceptance facilities; (vii) guaranties, endorsements
(other than for collection or deposit in the ordinary course of business) and
other contingent obligations to purchase, to provide funds for payment, to
supply funds to invest in any other Person, or otherwise to assure a creditor
against loss; (viii) obligations secured by any Lien on property owned by such
Person whether or not the obligations have been assumed; (ix) liabilities of
such Person under any preferred stock or other preferred equity instrument
which, at the option of the holder or upon the occurrence of one or more events,
is redeemable by such holder, or which, at the option of such holder is
convertible into Debt; and (x) all other liabilities recorded as such, or which
should be recorded as such, on such Person's financial statements in accordance
with GAAP.
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"DEFAULT" means any of the events specified in Section 6.01 of this
Agreement, whether or not any requirement for notice or lapse of time or any
other condition has been satisfied.
"DOLLARS" AND THE SIGN "$" mean lawful money of the United States of
America.
"EBITDA" means, as to any Person, for any period, the sum of (i) net
income PLUS (ii) gross interest expense PLUS (iii) income tax expense PLUS (iv)
depreciation expense PLUS (v) amortization of intangible assets.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, the regulations promulgated thereunder and the
published interpretations thereof as in effect from time to time.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) which together with any other Person would be treated, with such
Person, as a single employer under Section 4001 of ERISA.
"EURODOLLAR LOAN" means a Loan bearing interest at a rate based on the
Adjusted LIBOR Rate in accordance with the provisions of Article II hereof.
"EVENT OF DEFAULT" means any of the events specified in Section 6.01 of
this Agreement, provided that any requirement for notice or lapse of time or any
other condition has been satisfied.
"EXISTING LETTERS OF CREDIT" means the letters of credit existing on
the date hereof and listed on Schedule 2.01 hereto.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the weighted
average of the rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as published for such
day (or, if such day is not a Business Day for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for such day
on such transactions received by the Agent from three (3) federal funds brokers
of recognized standing selected by it.
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"FEE LETTER" means the letter dated March 12, 2004 from the Agent to
the Borrower pursuant to which the Borrower agrees to pay certain administrative
and other fees to the Agent.
"FOREIGN SUBSIDIARIES" means, with respect to the Borrower, those
Subsidiaries of the Borrower which are incorporated, formed or organized outside
of the United States.
"FUNDED DEBT" means (i) indebtedness or liability for borrowed money
having an original maturity of one year or more or which is extendable at option
of Borrower for more than one year, including all Loans under the Loan
Documents; (ii) indebtedness or liability for borrowed money permitted
hereunder; (iii) the deferred purchase price of property (excluding trade
obligations); (iv) obligations as a lessee under Capital Leases; (v) obligations
to reimburse a letter of credit issuer for draws; (vi) obligations under bankers
acceptances; and (vii) all liabilities under any preferred stock, which, at the
option of the holder or upon occurrence of certain events is redeemable by such
holder or is convertible into debt.
"FUNDED DEBT TO EBITDA RATIO" means, as to the Borrower and its
Consolidated Subsidiaries for any period, the ratio of (i) Consolidated Funded
Debt (as of the last day of such period) to (ii) Consolidated EBITDA for such
period. The Funded Debt to EBITDA Ratio shall be measured for a period covering
the four (4) fiscal quarters then ended.
"GAAP" means Generally Accepted Accounting Principles.
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" means those generally
accepted accounting principles and practices which are recognized as such by the
American Institute of Certified Public Accountants acting through the Financial
Accounting Standards Board ("FASB") or through other appropriate boards or
committees thereof and which are consistently applied for all periods so as to
properly reflect the financial condition, operations and cash flows of a Person,
except that any accounting principle or practice required to be changed by the
FASB (or other appropriate board or committee of the FASB) in order to continue
as a generally accepted accounting principle or practice may be so changed. Any
dispute or disagreement between the Borrower and the Agent relating to the
determination of Generally Accepted Accounting Principles shall, in the absence
of manifest error, be conclusively resolved for all purposes hereof by the
written opinion with respect thereto, delivered to the Agent, of the independent
accountants selected by the Borrower and reasonably satisfactory to the Agent
for the purpose of auditing the periodic financial statements of the Borrower.
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"GUARANTEEING FOREIGN SUBSIDIARIES" means those Foreign Subsidiaries of
the Borrower required to become a Guarantor pursuant to Section 5.01(k) of this
Agreement.
"GUARANTOR" OR GUARANTORS" means those Persons identified as Guarantors
in the preamble to this Agreement, and any other Person required to guarantee
the obligations of the Borrower in accordance with Section 5.01(k) of this
Agreement.
"GUARANTY" OR "GUARANTIES" means the guaranty or guaranties executed
and delivered by one or more Guarantors pursuant to Section 3.01(h) or Section
5.01 (k) of this Agreement.
"HAZARDOUS MATERIALS" means, any flammable explosives, radioactive
materials, hazardous materials, hazardous wastes, hazardous or toxic substances,
or related materials regulated pursuant to the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C.
Sections 9601, et seq.), the Hazardous Materials Transportation Act, as amended
(49 U.S.C. Section 1801 et seq.), the Resource Conservation and Recovery Act, as
amended (42 U.S.C. Sections 6901 et. seq.), and in the regulations adopted and
publications promulgated pursuant thereto, or any other federal, state or local
environmental law, ordinance, rule or regulation related to the pollution or
protection of the environment.
"INTERCOMPANY DEBT" means Debt owing by the Borrower to any Guarantor
or from any Guarantor to the Borrower or from any Guarantor to any other
Guarantor.
"INTEREST DETERMINATION DATE" means the date on which an Alternate Base
Rate Loan is converted to a Eurodollar Loan and, in the case of a Eurodollar
Loan, the last day of the applicable Interest Period.
"INTEREST PAYMENT DATE" means (i) as to each Eurodollar Loan, the last
Business Day of each calendar quarter during the applicable Interest Period and
the last day of each Interest Period and (ii) as to each Alternate Base Rate
Loan, the first Business Day of each calendar month.
"INTEREST PERIOD" means the period commencing on the date of any
Eurodollar Loan and ending on the numerically corresponding day in the calendar
month that is one, two, three, six or twelve months thereafter (subject to
availability), as the Borrower may elect (or, if there is no numerically
corresponding day, on the last Business Day of such month); provided, however,
(i) no Interest Period shall end later than the Maturity Date, (ii) if any
Interest Period would end on a day which shall not be a Business Day, such
Interest Period shall be extended to the next succeeding Business Day unless
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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,
(iii) interest shall accrue from and including the first day of such Interest
Period to but excluding the date of payment of such interest pursuant to Section
2.04, and (iv) no Interest Period of particular duration may be selected by the
Borrower if the Agent determines, in its sole discretion, that Eurodollar Loans
with such maturities are not generally available.
"INVESTMENT" means any stock, evidence of Debt or other security of any
Person, any loan, advance, contribution of capital, extension of credit or
commitment therefor, including without limitation the guaranty of loans made to
others (except for current trade and customer accounts receivable for services
rendered in the ordinary course of business and payable in accordance with
customary trade terms in the ordinary course of business) and any purchase of
(i) any security of another Person or (ii) any business or undertaking of any
Person or any commitment or option to make any such purchase, or any other
investment.
"ISSUING BANK" means JPMorgan, or such other Lender that may succeed
JPMorgan as the issuer of Letters of Credit or B/As pursuant to this Agreement.
"L/C DOCUMENTS" means all documents required to be executed and
delivered by the Borrower in connection with the issuance of Letters of Credit
in accordance with the usual and customary practices of the Issuing Bank.
"L/C SUBLIMIT" means $2,000,000.00.
"LENDER" OR "LENDERS" means one or more of the lenders that are, or
become, lenders under, and parties to, this Agreement.
"LETTERS OF CREDIT" means Standby Letters of Credit, Sight Letters of
Credit and Time Letters of Credit issued by the Issuing Bank for the account of
the Borrower in a maximum aggregate amount which when combined with B/A's equal
an amount not in excess of the L/C Sublimit and issued pursuant to the terms and
conditions of this Agreement. Standby Letters of Credit shall be issued to
secure payment obligations of the Borrower incurred in the ordinary course of
business and shall be issued in all cases, with an expiry date. Sight Letters of
Credit and Time Letters of Credit shall be issued hereunder for the purpose of
providing the primary payment mechanism in connection with the purchase by
Borrower and DPI of goods in the ordinary course of business of the Borrower and
DPI.
"LIBOR RATE" means the rate (rounded upwards, if not already a whole
multiple of 1/16th of one (1%) percent, to the next higher of 1/16th of one (1%)
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percent) at which dollar deposits approximately equal in principal amount to the
requested Eurodollar Loan and for a maturity equal to the requested Interest
Period are offered in immediately available funds to the London office of the
Agent by leading banks in the London interbank market for Eurodollars at
approximately 11:00 a.m., London time, two (2) Business Days prior to the
commencement of such Interest Period.
"LIEN" means any mortgage, deed of trust, pledge, security interest,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
other), or preference, priority, or other security agreement or preferential
arrangement, charge, or encumbrance of any kind or nature whatsoever, including,
without limitation, any conditional sale or other title retention agreement, any
financing lease having substantially the same economic effect as any of the
foregoing, and the filing of any financing statement under the Uniform
Commercial Code or comparable law of any jurisdiction to evidence any of the
foregoing.
"LOAN" OR LOANS" means the Revolving Credit Loans (including Swingline
Loans) or any or all of the same as the context may require and includes
Alternate Base Rate Loans and Eurodollar Loans, as the context may require.
"LOAN DOCUMENTS" means this Agreement, the Notes, the Guaranties, the
L/C Documents and any other document executed or delivered pursuant to this
Agreement.
"MATERIAL ADVERSE CHANGE" means, as to the Borrower alone, DPI alone,
any other Guarantor which has revenues or assets representing more than ten
(10%) percent of the Borrower's consolidated revenues or assets (a "Material
Guarantor")or the Borrower and its Consolidated Subsidiaries taken as a whole,
(i) a material adverse change in the financial condition, business, operations,
properties, prospects or results of operations of the Borrower alone, DPI alone,
a Material Guarantor alone or the Borrower and its Consolidated Subsidiaries
taken as a whole (provided that the elimination of the inter-company payable
between the Borrower and DPI shall not, by virtue of such elimination alone, be
deemed a Material Adverse Change in either the Borrower or DPI) or (ii) any
event or occurrence which could have a material adverse effect on the ability of
the Borrower alone, DPI alone, a Material Guarantor alone or the Borrower and
its Consolidated Subsidiaries taken as a whole to perform its or their
obligations under the Loan Documents.
"MATURITY DATE" means the fifth anniversary of the Closing Date.
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"MULTIEMPLOYER PLAN" means a Plan described in Section 4001(a)(3) of
ERISA which covers employees of the Borrower or any ERISA Affiliate.
"NOTE" or "NOTES" means the Revolving Credit Notes or any or all of the
same as the context may require.
"OUTSTANDING L/C EXPOSURE" means, at any time, the aggregate of (i) the
amount available to be drawn on all outstanding Letters of Credit, (ii) the
aggregate amount of all unmatured B/As, other drafts accepted and deferred
payment obligations incurred by the Issuing Bank under any Letters of Credit and
(iii) the amount of any payments made by the Issuing Bank under any Letters of
Credit that has not been reimbursed by the Borrower.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"PERMITTED ACQUISITION" means an acquisition or acquisitions by the
Borrower or any Subsidiary of the Borrower by merger, consolidation or purchase
of a voting majority of the stock of another Person or the purchase of all or
substantially all of the assets of another Person (or of a division or other
operating component of another Person) (an "Acquisition") if all of the
following conditions are met:
(i) Such Acquisition is identified as a "Permitted
Acquisition" by the Borrower in writing to the Agent;
(ii) The Person to be acquired is domiciled in, has the
majority of its assets located in, and generates the majority
of its revenues from sources within, the United States;
(iii) The majority of such Person's revenue is derived from a
line or lines of business similar to the line or lines of
business engaged in by the Borrower as of the date hereof;
(iv) The Agent and the Lenders shall have received, at least
ten (10) Business Days prior to the closing of such
Acquisition, a certificate signed by the president or the
chief financial officer of the Borrower to the effect that
(and including calculations indicating that) on a pro forma
basis after giving effect to such Acquisition: (a) all
representations and warranties contained in the Loan Documents
will remain true and correct in all material respects, (b) the
Borrower will remain in compliance with all covenants
contained in the Loan Documents, and (c) no Default or Event
of Default has occurred and is continuing or will occur as a
result of the consummation of such Acquisition;
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(v) The Agent and the Lenders shall have received, at least
ten (10) Business Days prior to the closing of such
Acquisition, (i) at least two (2) years of historical
financial statements of such Person, and (ii) a set of
projections (prepared on a consolidated and consolidating
basis), setting forth in reasonable detail the pro forma
effect of such Acquisition and showing compliance by the
Borrower with all financial covenants set forth in this
Agreement for the remainder of the term of the Credit
Facility. The projections to be delivered hereunder shall
include and specify the assumptions used to prepare such
projections; and
(vi) The aggregate consideration paid in connection with the
Acquisition(s), whether in cash, stock or otherwise does not
exceed $25,000,000.00.
"PERMITTED EQUIPMENT SALES" means sales by the Borrower or its
Consolidated Subsidiaries of equipment in an aggregate principal amount not
exceeding $500,000.00 during any fiscal year.
"PERMITTED INVESTMENTS" means, (i) direct obligations of the United
States of America or any governmental agency thereof, or obligations guaranteed
by the United States of America, provided that such obligations mature within
one year from the date of acquisition thereof; (ii) time certificates of deposit
having a maturity of one year or less issued by any commercial bank organized
and existing under the laws of the United States or any state thereof and having
aggregate capital and surplus in excess of $500,000,000.00; (iii) money market
mutual funds having assets in excess of $2,500,000,000; (iv) commercial paper
rated not less than P-1 or A-1 or their equivalent by Xxxxx'x Investor Services,
Inc. or Standard & Poor's Corporation, respectively; (v) tax exempt securities
rated not less than Prime 2 or its equivalent by Xxxxx'x Investor Services, Inc.
or not less than A-1 or its equivalent by Standard & Poor's Corporation; (vi)
loans or advances between the Borrower and a Guarantor or between Guarantors;
(vii) deposits, whether in Dollars or eurodollars, commercial paper, cash
reserve deposits, repurchase agreements or any similar short term investments
made available by any Lender or any Affiliate of Lender; (viii) investments,
loans or advances in wholly owned domestic Subsidiaries, provided that any such
investment, loan or advance made after the date of this Agreement shall be made
only in a domestic Subsidiary which is a Guarantor; (ix) investments in, or
loans or advances to, Foreign Subsidiaries, provided any such single investment
(valued at cost), loan or advance shall not exceed $10,000,000.00 and all such
investments (valued at cost), loans and advances shall not exceed
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$12,500,000.00; (x) loans or advances to employees of the Borrower or a
Guarantor which do not exceed $2,000,000.00 in the aggregate at any time; (xi)
bonds issued by the State of Israel in an aggregate amount not exceeding
$250,000.00 (valued at cost) at any time; and (xii) Permitted Acquisitions.
"PERMITTED REAL ESTATE SALE" means (i) the sale by each of the Borrower
and 565 of (i) its real property and the improvements thereon located at 000
Xxxxx Xxxxxx Xxxx, Xxxxxxxxxxx, Xxx Xxxx or (ii) the sale by the Borrower of its
real property and the improvements thereon located at 000 Xxxxx 00xx Xxxxxx,
Xxxxxx, Xxx Xxxxxx provided that, in the case of either of such properties, such
sale shall (x) be for cash and (y) be in an arms length transaction with a
Person who or which is not an Affiliate of the Borrower.
"PERSON" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity or a federal, state or
local government, or a political subdivision thereof or any agency of such
government or subdivision.
"PLAN" means any employee benefit plan established or maintained by the
Borrower or any ERISA Affiliate.
"PRIME RATE" means the rate per annum announced by the Agent from time
to time as its prime rate in effect at its principal office on a 360-day basis;
each change in the Prime Rate shall be effective on the date such change is
announced to become effective.
"PROHIBITED TRANSACTION" means any non-exempt transaction set forth in
Section 406 of ERISA or Section 4975 of the Internal Revenue Code of 1986, as
amended from time to time.
"PRO RATA SHARE" means, with respect to each Lender, its pro rata share
of the Total Commitment, as set forth in Schedule 1.01 annexed hereto as the
same may be modified by any assignment of all or any part of such Lender's
Commitment.
"REGULATION D" means Regulation D of the Board of Governors, as the
same may be amended and in effect from time to time.
"REGULATION T" means Regulation T of the Board of Governors, as the
same may be amended and in effect from time to time.
"REGULATION U" means Regulation U of the Board of Governors, as the
same may be amended and in effect from time to time.
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"REGULATION X" means Regulation X of the Board of Governors, as the
same may be amended and in effect from time to time.
"REPORTABLE EVENT" means any of the events set forth in Section 4043 of
ERISA, other than an event for which the reporting requirements have been
waived.
"REQUIRED LENDERS" means (i) at any time there are Loans outstanding,
those Lenders having, in the aggregate, sixty six (66%) percent of such Loans
and (ii) at any time when there are no Loans outstanding those Lenders having,
in the aggregate, sixty six (66%) percent of the Total Commitment.
"REVOLVING CREDIT LOANS" shall have the meaning assigned to such term
in Section 2.01 of this Agreement.
"REVOLVING CREDIT NOTE" OR "REVOLVING CREDIT NOTES" means one or more,
as the context requires, of the promissory notes of the Borrower payable to the
order of each of the Lenders, in substantially the form of Exhibit A annexed
hereto, evidencing the aggregate indebtedness of the Borrower to each such
Lender resulting from Revolving Credit Loans made by such Lender to the Borrower
pursuant to this Agreement.
"SENIOR NOTE AGREEMENT" means that certain Amended and Restated Loan
Agreement dated as of March 26, 2002 among the Borrower, the Guarantors and
Xxxxxxx National Life Insurance Company, as amended by the Senior Note
Amendment.
"SENIOR NOTE AMENDMENT" means an amended and restated Senior Note
Agreement, in form and substance satisfactory to the Agent and its counsel,
pursuant to which the Senior Note Agreement is amended (i) to conform all the
covenants therein to the covenants of this Agreement and (ii) to provide for an
amendment of the repayment terms of the Senior Note Agreement as follows:
payments of accrued interest only through April 14, 2008 and amortization of
$6,000,000.00 on April 15, 2008, $6,000,000.00 on April 15, 2009, $6,000,000.00
on April 15, 2010 and $6,000,000.00 on April 15, 2011.
"SENIOR NOTE HOLDERS" means Xxxxxxx National Life Insurance Company,
and its successors and assigns, which is, or are, a party or parties to, and a
lender or lenders under, the Senior Note Agreement.
"SENIOR NOTES" means the amended and restated promissory note, executed
and delivered by the Borrower and evidencing the loans made to the Borrower, in
the current principal amount of $24,000,000.00, pursuant to the Senior Note
Agreement, as amended and restated pursuant to the Senior Note Amendment.
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"SIGHT LETTERS OF CREDIT" means letters of credit wherein the draft is
drawn at sight (i.e., drawn payable upon presentment).
"STANDBY LETTERS OF CREDIT" means letters of credit issued to secure a
payment obligation of the Borrower incurred in the ordinary course of business.
"STATUTORY RESERVES" means a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the maximum reserve percentages (including, without
limitation, any marginal, special, emergency, or supplemental reserves)
expressed as a decimal established by the Board of Governors or any other
banking authority to which the Agent is subject with respect to the Adjusted
LIBOR Rate for Eurocurrency Liabilities (as defined in Regulation D). Such
reserve percentages shall include, without limitation, those imposed under such
Regulation D. Eurodollar Loans shall be deemed to constitute Eurocurrency
Liabilities and as such shall be deemed to be subject to such reserve
requirements without benefit of or credit for proration, exceptions or offsets
which may be available from time to time to the Agent under such Regulation D.
Statutory Reserves shall be adjusted automatically on and as of the effective
date of any change in any reserve percentage.
"SUBORDINATED DEBT" means Debt of any Person, the repayment of which
the obligee has agreed in writing, on terms which have been approved by the
Agent and the Required Lenders in advance in writing, shall be subordinate and
junior to the rights of the Agent and the Lenders with respect to Debt owing
from such Person to the Agent and the Lenders.
"SUBSIDIARY" means, as to any Person, any corporation, partnership,
limited liability company or joint venture whether now existing or hereafter
organized or acquired (i) in the case of a corporation, of which a majority of
the securities having ordinary voting power for the election of directors (other
than securities having such power only by reason of the happening of a
contingency) are at the time owned by such Person and/or one or more
Subsidiaries of such Person or (ii) in the case of a partnership, limited
liability company or joint venture or similar entity, of which a majority of the
partnership, membership or other ownership interests are at the time owned by
such Person and/or one or more Subsidiaries of such Person.
"SWINGLINE LENDER" means JPMorgan.
"SWINGLINE LOANS" shall have the meaning set forth in Section 2.01(c)
hereof.
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"TIME LETTERS OF CREDIT" means Letters of Credit which provide for
payment on a specific maturity date determined in accordance with such Letters
of Credit.
"TOTAL COMMITMENT" means the aggregate of the Commitments of each of
the Lenders, which, on the date of this Agreement, is $45,000,000.00.
"UNFUNDED CAPITAL EXPENDITURES" means Capital Expenditures financed
other than by the incurrence of Debt, provided, however that any Capital
Expenditures financed by Revolving Credit Loans shall be considered Unfunded
Capital Expenditures.
SECTION 1.02. COMPUTATION OF TIME PERIODS. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
means "to and including".
SECTION 1.03. ACCOUNTING TERMS. Except as otherwise herein specifically
provided, each accounting term used herein shall have the meaning given to it
under GAAP.
(THE BALANCE OF THIS PAGE IS INTENTIONALLY BLANK)
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ARTICLE II
AMOUNT AND TERMS OF THE LOANS
SECTION 2.01. THE REVOLVING CREDIT LOANS. (a) The Lenders agree,
severally, but not jointly, on the date of this Agreement, on the terms and
conditions of this Agreement and in reliance upon the representations and
warranties of the Borrower and the Guarantors set forth in this Agreement, to
lend to the Borrower prior to the Maturity Date such amounts as the Borrower may
request from time to time (individually, a "Revolving Credit Loan" or
collectively, the "Revolving Credit Loans"), which amounts may be borrowed,
repaid and reborrowed, provided that (i) the aggregate amount of such Revolving
Credit Loans outstanding at any one time shall not exceed the Total Commitment,
or such lesser amount of the Total Commitment as it may be reduced pursuant to
Section 2.08 (a) hereof, (ii) Aggregate Outstandings shall not at any one time
exceed the Total Commitment as in effect at such time and (iii) each Lender's
Pro Rata Share of Aggregate Outstandings shall not exceed such Lender's
Commitment. On the date of this Agreement, all the Existing Letters of Credit
shall be deemed to be Outstanding L/C Exposure under this Agreement.
(b) Each Revolving Credit Loan shall be an Alternate Base Rate Loan or
a Eurodollar Loan (or a combination thereof) as the Borrower may request subject
to and in accordance with Section 2.02. Any Lender may at its option make any
Eurodollar Loan by causing a foreign branch or affiliate to make such Loan,
provided that any exercise of such option shall not affect the obligation of the
Borrower to repay such Loan in accordance with the terms of the applicable
Revolving Credit Note. Subject to the other provisions of this Agreement,
Revolving Credit Loans of more than one type may be outstanding at the same
time, provided not more than six (6) Eurodollar Loans may be outstanding at the
same time.
(c) Subject to the terms and conditions hereof, the Swingline Lender
agrees to make up to Ten Million ($10,000,000.00) Dollars of the Total
Commitment otherwise available to the Borrower for Revolving Credit Loans by
making Swingline loans ("Swingline Loans") in Dollars to the Borrower so long as
after giving effect thereto (i) the aggregate amount of outstanding Swingline
Loans shall not exceed Ten Million ($10,000,000.00) Dollars (the "Swingline
Commitment"), and (ii) the aggregate amount of Revolving Credit Loans
outstanding (including all outstanding Swingline Loans) shall not exceed the
Total Commitment; PROVIDED that a Swingline Loan shall not be available to
refinance an outstanding Swingline Loan. The Borrower may use the Swingline
Commitment by borrowing, repaying and reborrowing, all in accordance with the
terms and conditions hereof. Each Swingline Loan shall bear interest at a rate
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per annum (rounded upwards, if necessary, to the next 1/100 of one percent)
equal to the sum of (a) the Federal Funds Effective Rate in effect on such day
plus (b) such margin upon which the Swingline Lender and the Borrower shall
agree, upon receipt by the Swingline Lender of a Swingline Loan request pursuant
to subsection 2.02. The maturity date of any Swingline Loan shall be not longer
than seven (7) calendar days from the date of such Swingline Loan. In no event
shall the maturity date of any Swingline Loan be later than the Maturity Date.
All repayments under this Agreement on account of Swingline Loans shall be made
in Dollars in immediately available funds to JPMorgan for its own account not
later than 1:00 p.m. New York City time on the date any such payment is due to
the office of JPMorgan specified herein.
SECTION 2.02. REVOLVING CREDIT LOANS; NOTICE, CONTINUATION AND
CONVERSION.
(a) Each Revolving Credit Loan shall be (i) in the case of
each Alternate Base Rate Loan in the minimum principal amount of
$500,000.00 and (ii) in the case of each Eurodollar Loan in the minimum
principal amount of $2,000,000.00 and in increased integral multiples
of $100,000.00 (except that, if any such Alternate Base Rate Loan so
requested shall exhaust the remaining available Total Commitment, such
Alternate Base Rate Loan may be in an amount equal to the amount of the
remaining available Total Commitment).
(b) The Borrower shall give the Agent irrevocable written,
telex, telephonic (immediately confirmed in writing) or facsimile
notice (i) at least three (3) Business Days prior to each Revolving
Credit Loan comprised in whole or in part of one or more Eurodollar
Loans (subject to availability, including, without limitation, the
conditions set forth in (c) below) or (ii) prior to 11:00 a.m. on the
day of each Revolving Credit Loan consisting solely of an Alternate
Base Rate Loan. Such notice shall specify the date of such borrowing,
the amount thereof and whether such Loan is to be (or what portion or
portions thereof are to be) an Alternate Base Rate Loan or a Eurodollar
Loan and, if such Loan or any portion thereof is to consist of one or
more Eurodollar Loans, the principal amounts thereof and Interest
Period or Interest Periods with respect thereto. If no election as to
the Interest Period is specified in such notice with respect to any
Eurodollar Loan, the Borrower shall be deemed to have selected an
Interest Period of one month's duration and if a Eurodollar Loan is
requested when such Loans are not available, the Borrower shall be
deemed to have requested an Alternate Base Rate Loan.
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(c) The Borrower shall have the right, on such notice to the
Agent as is required pursuant to (b) above, (i) to continue any
Eurodollar Loan or a portion thereof into a subsequent Interest Period
(subject to availability) or (ii) to convert an Alternate Base Rate
Loan into a Eurodollar Loan (subject to availability) subject to the
following:
(1) if an Event of Default shall have occurred and be
continuing at the time of any proposed conversion or continuation only Alternate
Base Rate Loans shall be available;
(2) in the case of a continuation or conversion of fewer than
all Loans, the aggregate principal amount of each Eurodollar Loan continued or
into which a Loan is converted shall be in the minimum principal amount of
$2,000,000.00 and in increased integral multiples of $100,000.00;
(3) each continuation or conversion of a Eurodollar Loan shall
be effected by the new Loan replacing the Loan (or portion thereof) being
continued or converted;
(4) if the new Loan made as a result of a continuation or
conversion shall be a Eurodollar Loan, the first Interest Period with respect
thereto shall commence on the date of continuation or conversion;
(5) each request for a Eurodollar Loan which shall fail to
state an applicable Interest Period shall be deemed to be a request for an
Interest Period of one month and each request for a Eurodollar Loan made when
such Loans are not available shall be deemed to be a request for an Alternate
Base Rate Loan; and
(6) in the event that the Borrower shall not give notice to
continue a Eurodollar Loan as provided above, such Loan shall automatically be
converted into an Alternate Base Rate Loan at the expiration of the then current
Interest Period.
(d) Upon receipt of such notice, the Agent shall promptly
notify each Lender of the contents thereof and of the amount, type and
other relevant information regarding the Loan requested. Thereupon,
each Lender shall, not later than 2:00 p.m. (New York time), transfer
immediately available funds equal to such Lender's Pro Rata Share of
the requested Loan to the Agent, which, provided the conditions of
Sections 3.01 and 3.02 of this Agreement have been met, and provided
the Lenders have made such transfers, shall thereupon transfer
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immediately available funds equal to the requested Loan to the
Borrower's account with the Agent. If a notice of borrowing is received
by the Agent after 11:00 a.m. on a Business Day, such notice shall be
deemed to have been given on the next succeeding Business Day. Any
Lender's failure to make any requested Loan shall not relieve any other
Lender of its obligation to make such Loan, but such other Lender shall
not be liable for such failure of the first Lender.
(e) Unless the Agent shall have received notice from a Lender
prior to 2:00 p.m. (New York time) on the requested date, that such
Lender will not make available to the Agent the Loan requested to be
made on such date, the Agent may assume that such Lender has made such
Loan available to the Agent on such date in accordance with Section
2.02(d) hereof and the Agent in its sole discretion may, in reliance
upon such assumption, make available to the Borrower on such date a
corresponding amount on behalf of such Lender. If and to the extent
such Lender shall not have so made available to the Agent the Loan
requested to be made on such date and the Agent shall have so made
available to the Borrower a corresponding amount on behalf of such
Lender, such Lender shall, on demand, pay to the Agent such
corresponding amount together with interest thereon, at the Federal
Funds Effective Rate, for each day from the date such amount shall have
been so made available by the Agent to the Borrower until the date such
amount shall have been repaid to the Agent. If such Lender does not pay
such corresponding amount promptly upon the Agent's demand therefor,
the Agent shall promptly notify the Borrower and the Borrower shall,
with reservation of rights against such Lender, not later than one (1)
Business Day following such notice, repay such corresponding amount to
the Agent together with accrued interest thereon at the applicable rate
or rates provided (i) in Section 2.04 hereof or (ii) if the Borrower
fails to repay such corresponding amount within three (3) Business Days
after such notice, in Section 2.18 hereof.
(f) Whenever the Borrower desires that the Swingline Lender
make a Swingline Loan, it shall give the Swingline Lender irrevocable
telephonic notice, which telephonic notice must be received by the
Swingline Lender not later than 12:00 P.M., New York City time, on the
proposed borrowing date, specifying (i) the amount to be borrowed, and
(ii) the requested borrowing date (which shall be a Business Day during
which Revolving Credit Loans are available). Each such telephonic
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borrowing request shall be confirmed promptly by hand delivery or
telecopy to the Swingline Lender of a written borrowing request duly
completed and executed by the Borrower. Each Swingline Loan shall be in
an amount equal to $500,000 or a whole multiple of $100,000 in excess
thereof. Not later than 2:00 P.M. New York City time, on the borrowing
date specified in a notice in respect of Swingline Loans, the Swingline
Lender shall make available to the Agent for the account of the
Borrower at the New York office of the Agent specified herein an amount
in immediately available funds equal to the amount of the Swingline
Loan to be made by the Swingline Lender. The Agent shall make the
proceeds of such Swingline Loan available to the Borrower on such
Borrowing Date by depositing such proceeds in the account of the
Borrower with the Agent on such Borrowing Date in immediately available
funds.
(g) The Swingline Lender, at any time and from time to time in
its sole and absolute discretion may, on behalf of the Borrower (which
hereby irrevocably directs the Swingline Lender to act on its behalf),
on one Business Day's notice given by the Swingline Lender (with a copy
to the Borrower) not later than 12:00 Noon, New York City time, request
each Lender (including the Swingline Lender in its capacity as a
Lender) to make, and each Lender hereby agrees to make, a Revolving
Credit Loan, in an amount equal to such Lender's percentage of the
Total Commitment of the aggregate amount of the Swingline Loans (the
"Refunded Swingline Loans") outstanding on the date of such notice, to
repay the Swingline Lender. Each Lender shall make the amount of such
Revolving Credit Loan available to the Agent at the New York office of
the Agent specified herein in immediately available funds, not later
than 10:00 A.M., New York City time, one Business Day after the date of
such notice. The proceeds of such Revolving Credit Loans shall be
immediately made available by the Agent to the Swingline Lender for
application by the Swingline Lender to the repayment of the Refunded
Swingline Loans. The Borrower irrevocably authorizes the Swingline
Lender to charge the Borrower's accounts with the Agent (up to the
amount available in each such account) in order to immediately pay the
amount of such Refunded Swingline Loans to the extent amounts received
from the Lenders are not sufficient to repay in full such Refunded
Swingline Loans if such deficiency is not otherwise reimbursed by the
Borrower on the Business Day following a written request for such
reimbursement to the Borrower by the Swingline Lender. (without
prejudice to any rights Borrower may have against any such Lender which
did not provide its pro rata portion to repay in full such Refunded
Swingline Loans) If such amount is not in fact made available to
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JPMorgan by any Lender, JPMorgan shall be entitled to recover such
amount on demand from such Lender together with accrued interest
thereon for each day from the date such amount is required to be paid,
at the Federal Funds Rate. If such Lender does not pay such amount as
provided above, and until such time as such Lender makes the required
payment, JPMorgan shall be deemed to continue to have outstanding
Swingline Loans in the amount of such unpaid participation obligation
for all purposes of the Loan Documents other than those provisions
requiring the other Lender to purchase a participation therein.
Further, such Lender shall be deemed to have assigned any and all
payments made of principal and interest on its Loans, amounts due with
respect to any Letters of Credit (or its participation interests
therein) and any other amounts due to it hereunder to JPMorgan to fund
Swingline Loans in the amount of the participation in Swingline Loans
that such Lender failed to purchase pursuant to this subsection
2.04(g), until such amount has been purchased (as a result of such
assignment or otherwise).
(h) If, prior to the time a Revolving Credit Loan would have
otherwise been made pursuant to Section 2.02 hereof, one of the events
described in Article VI hereof shall have occurred and be continuing
with respect to the Borrower or if for any other reason, as determined
by the Swingline Lender in its sole discretion, Revolving Credit Loans
may not be made as contemplated by subsection 2.02, each Lender shall,
on the date such Revolving Credit Loan was to have been made pursuant
to the notice referred to in subsection 2.02 (the "Refunding Date"),
purchase for cash an undivided participating interest in the then
outstanding Swingline Loans by paying to the Swingline Lender an amount
(the "Swingline Participation Amount") equal to (i) such Lender's
Commitment percentage TIMES (ii) the sum of the aggregate principal
amount of Swingline Loans then outstanding that were to have been
repaid with such Revolving Credit Loans.
(i) Whenever, at any time after the Swingline Lender has
received from any Lender such Lender's Swingline Participation Amount,
the Swingline Lender receives any payment on account of the Swingline
Loans, the Swingline Lender will distribute to such Lender its
Swingline Participation Amount (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such
Lender's participating interest was outstanding and funded and, in the
case of principal and interest payments, to reflect such Lender's PRO
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RATA portion of such payment if such payment is not sufficient to pay
the principal of and interest on all Swingline Loans then due);
PROVIDED, HOWEVER, that in the event that such payment received by the
Swingline Lender is required to be returned, such Lender will return to
the Swingline Lender any portion thereof previously distributed to it
by the Swingline Lender.
(j) Each Lender's obligation to make the Loans referred to in
this Section 2.02 and to purchase participating interests pursuant to
this Section 2.02 shall be absolute and unconditional and shall not be
affected by any circumstance, including (i) any setoff, counterclaim,
recoupment, defense or other right that such Lender or the Borrower may
have against the Swingline Lender, the Borrower or any other Person for
any reason whatsoever; (ii) the occurrence or continuance of a Default
or an Event of Default or the failure to satisfy any of the other
conditions specified herein; (iii) any adverse change in the condition
(financial or otherwise) of the Borrower; (iv) any breach of this
Agreement or any other Loan Document by the Borrower or any other
Lender; or (v) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing.
SECTION 2.03. REVOLVING CREDIT NOTES. Revolving Credit Loans shall be
evidenced by the Revolving Credit Notes of the Borrower. Each Lender's Revolving
Credit Note shall be dated the date hereof and be in the principal amount of
such Lender's Pro Rata Share of the Total Commitment, and shall mature on the
Maturity Date, at which time the entire outstanding principal balance and all
interest thereon shall be due and payable and the Commitment shall be
terminated. The Revolving Credit Notes shall be entitled to the benefits and
subject to the provisions of this Agreement.
At the time of the making of each Revolving Credit Loan and each
Swingline Loan and at the time of each payment of principal thereon, the holder
of each Revolving Credit Note is hereby authorized by the Borrower to make a
notation on the schedule annexed to the Revolving Credit Note of the date and
amount, and the type and Interest Period of the Revolving Credit Loan or
Swingline Loan or payment, as the case may be. Failure to make a notation with
respect to any Revolving Credit Loan or Swingline Loan shall not limit or
otherwise affect the obligation of the Borrower hereunder or under the Revolving
Credit Notes with respect to such Revolving Credit Loan or Swingline Loan, as
the case may be, and any payment of principal on the Revolving Credit Notes by
the Borrower shall not be affected by the failure to make a notation thereof on
said schedule.
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SECTION 2.04. PAYMENT OF INTEREST ON THE REVOLVING CREDIT NOTES.
(a) In the case of an Alternate Base Rate Loan, interest shall be
payable at a rate per annum (computed on the basis of the actual number of days
elapsed over a year of 360 days) equal to the Alternate Base Rate. Such interest
shall be payable on each Interest Payment Date, commencing with the first
Interest Payment Date after the date of such Alternate Base Rate Loan, on each
Interest Determination Date and on the Maturity Date. Any change in the rate of
interest on the Revolving Credit Note due to a change in the Alternate Base Rate
shall take effect as of the date of such change in the Alternate Base Rate.
(b) In the case of a Eurodollar Loan, interest shall be payable at a
rate per annum (computed on the basis of the actual number of days elapsed over
a year of 360 days) equal to the Adjusted LIBOR Rate plus the Applicable Margin.
Such interest shall be payable on each Interest Payment Date, commencing with
the first Interest Payment Date after the date of such Eurodollar Loan, on each
Interest Determination Date and on the Maturity Date. In the event Eurodollar
Loans are available, the Agent shall determine the rate of interest applicable
to each requested Eurodollar Loan for each Interest Period at 11:00 a.m., New
York City time, or as soon as practicable thereafter, two (2) Business Days
prior to the commencement of such Interest Period and shall notify the Lenders
and the Borrower of the rate of interest so determined. Such determination shall
be conclusive absent manifest error.
(c) Interest on Swingline Loans shall be paid on their respective
maturity dates.
(d) All interest on the Revolving Credit Notes shall be paid to the
Agent for the pro rata distribution to the Lenders.
SECTION 2.05. APPLICABLE MARGIN The Applicable Margin for Revolving
Credit Loans shall be determined on the basis of the Borrower's Funded Debt to
EBITDA Ratio, as calculated based on the Borrower's consolidated financial
statements for its most recent fiscal year or quarter in US Dollars on a rolling
four (4) quarter basis. The Agent shall determine the Applicable Margin within
five (5) Business Days after it has received the financial statements of the
Borrower as required by Section 5.01(b)(i) or (ii), as applicable. The Agent
shall promptly notify the Borrower and the Lenders of such determination, which
shall be conclusive, in the absence of manifest error. The Applicable Margin
shall be determined as follows:
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(a) The initial Applicable Margin shall be 100 basis points for
Eurodollar Loans and shall be applicable until five (5) Business Days after
delivery of the Borrower's consolidated financial statements for its fiscal
quarter ending March 31, 2004 pursuant to Section 5.01(b) hereof.
(b) Beginning five (5) Business Days after delivery of the Borrower's
consolidated financial statements for the fiscal quarter ending March 31, 2004,
and for each fiscal year or quarter thereafter:
(i) If the Borrower's Funded Debt to EBITDA Ratio as of the
end of such fiscal year or quarter is less than or equal to 1.00 to 1.00, the
Applicable Margin shall be 75 basis points for Eurodollar Loans.
(ii) If the Borrower's Funded Debt to EBITDA Ratio as of the
end of such fiscal year or quarter is greater than 1.00 to 1.00 but less than or
equal to 2.00 to 1.00, the Applicable Margin shall be 100 basis points for
Eurodollar Loans.
(iii) If the Borrower's Cash Flow Coverage Ratio as of the end
of such fiscal year or quarter is greater than 2.00 to 1.00, the Applicable
Margin shall be 125 basis points for Eurodollar Loans.
The Applicable Margin for any Eurodollar Loan shall change during the
term of such Eurodollar Loan as a result of this Section 2.05.
In the event that the Borrower fails to deliver any financial
statements and the related certificate on the due date therefor set forth in
Section 5.01(b)(i) or (ii) hereof, unless an Event of Default is declared as a
result of such failure, the Applicable Margin shall be 125 basis points for
Eurodollar Loans until the Borrower delivers all required financial statements
and certificates at which time the Applicable Margin shall be redetermined as
provided for in this Section 2.05.
Upon the occurrence and during the continuance of a Default or an Event
of Default, in addition to the increase in interest rates provided for in
Section 2.18(b) of this Agreement, the Applicable Margin may, as a result of
changes in the Borrower's Funded Debt to EBITDA Ratio, increase but will not
decrease.
SECTION 2.06 USE OF PROCEEDS. The proceeds of the Revolving Credit
Loans shall be used by the Borrower (i) for working capital needs of the
Borrower and its Consolidated Subsidiaries, including the issuance of Letters of
Credit in accordance with the terms and subject to the provisions of this
Agreement, (ii) to finance Capital Expenditures of the Borrower and its
Consolidated Subsidiaries, (iii) for general corporate purposes, and (iv)
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Permitted Acquisitions in an aggregate amount not exceeding $25,000,000.00. No
part of the proceeds of any Loan may be used for any purpose that directly or
indirectly violates or is inconsistent with, the provisions or Regulations T, U
or X.
SECTION 2.07. COMMITMENT FEE; OTHER FEES. (a) The Borrower agrees to
pay to the Agent, for the pro rata distribution to the Lenders, from the date of
this Agreement and for so long as the Total Commitment remains in effect, on the
last Business Day of each calendar quarter, a commitment fee computed at the
rate of one quarter of one (1/4%) percent per annum (computed on the basis of
the actual number of days elapsed over 360 days) on the average daily unused
amount of the Total Commitment, such commitment fee being payable for the
calendar quarter, or part thereof, preceding the payment date.
(b) The Borrower agrees to pay to the Agent, for pro rata distribution
to the Lenders on the date hereof, a facility fee equal to $45,000.00.
(c) The Borrower agrees to pay to the Agent, for its account, the fees
set forth in the Fee Letter, at the times and in the amounts set forth in the
Fee Letter.
SECTION 2.08. REDUCTIONS OF TOTAL COMMITMENT. Upon at least three (3)
Business Days' written notice to the Agent, the Borrower may irrevocably elect
to have the Total Commitment terminated in whole or reduced in part provided,
however, that any such partial reduction shall be in a minimum amount of
$1,000,000.00, or whole multiples thereof. The Total Commitment, once terminated
or reduced, shall not be reinstated without the express written approval of the
Agent and the Lenders. Any reduction of the Total Commitment shall be applied
pro rata to the respective Commitments of the Lenders. On the date any reduction
in the Total Commitment becomes effective, the Borrower shall, without notice or
demand from the Agent or the Lenders, prepay Revolving Credit Loans, subject to
the provisions of Section 2.10 of this Agreement, such that, following such
prepayment, the Aggregate Outstandings shall not exceed the Total Commitment, as
reduced.
SECTION 2.09. PREPAYMENT. (a) The Borrower shall have the right at any
time and from time to time to prepay any Alternate Base Rate Loan, in whole or
in part, without premium or penalty on the same day on which telephonic notice
is given to the Agent (immediately confirmed in writing) of such prepayment
provided, however, that each such prepayment shall be on a Business Day and
shall be in a minimum principal amount of $100,000.00.
(b) The Borrower shall have the right at any time and from time to
time, subject to the provisions of this Agreement, to prepay any Eurodollar
Loan, in whole or in part, on one (1) Business Day's prior irrevocable written
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notice to the Agent, provided, however, that (i) each such prepayment shall be
on a Business Day and shall be in a minimum principal amount of $250,000.00 and
in increased integral multiples of $100,000.00 and (ii) each such prepayment
shall be subject to the provisions of Section 2.10 of this Agreement.
(c) The notice of prepayment under this Section 2.09 shall set forth
the prepayment date and the principal amount of the Loan being prepaid and shall
be irrevocable and shall commit the Borrower to prepay such Loan by the amount
and on the date stated therein. All prepayments shall be accompanied by accrued
interest on the principal amount being prepaid to the date of prepayment. Each
prepayment under this Section 2.09 shall be applied first towards unpaid
interest on the amount being prepaid and then towards the principal in whole or
partial prepayment of Loans by the Borrower. In the absence of such
specification, amounts being prepaid shall be applied first to any Alternate
Base Rate Loan then outstanding and then to Eurodollar Loans in the order of the
expiration of their respective Interest Periods. All prepayments shall be
applied pro rata among the Lenders.
SECTION 2.10. REIMBURSEMENT BY BORROWER. The Borrower shall reimburse
the Agent, on behalf of a Lender, upon the Agent's demand, for any loss, cost or
expense incurred or to be incurred by such Lender (in such Lender's sole
determination) as a result of any prepayment or conversion (whether voluntarily
or by acceleration) of any Eurodollar Loan other than on the last day of the
Interest Period for such Loan, or if the Borrower fails to borrow the Eurodollar
Loan (or is not able to borrow because of a Default or an Event of Default or
for any other reason hereunder) after having given the irrevocable notice of
borrowing required by this Agreement. Such reimbursement shall include, but not
be limited to, any loss, cost or expense incurred by such Lender in obtaining,
liquidating or redeploying any funds used or to be used in making or maintaining
the Eurodollar Loan.
SECTION 2.11. STATUTORY RESERVES. It is understood that the cost to the
Lenders of making or maintaining Eurodollar Loans may fluctuate as a result of
the applicability of, or change in, Statutory Reserves. The Borrower agrees to
pay to the Agent, on behalf of the Lenders from time to time, as provided in
Section 2.12 below, such amounts as shall be necessary to compensate each Lender
for the portion of the cost of making or maintaining any Eurodollar Loans made
by it resulting from any such Statutory Reserves, or change therein, it being
understood that the rates of interest applicable to Eurodollar Loans hereunder
have been determined on the basis of Statutory Reserves in effect at the time of
determination of the Adjusted LIBOR Rate, and that such rate does not reflect
costs imposed on such Lender in connection with any change to such Statutory
Reserves. It is agreed that, for purposes of this paragraph, the Eurodollar
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Loans made hereunder shall be deemed to constitute Eurocurrency Liabilities as
defined in Regulation D and to be subject to the reserve requirements of
Regulation D without benefit or credit of proration, exemptions or offsets which
might otherwise be available to a Lender from time to time under Regulation D.
SECTION 2.12. INCREASED COSTS. If, after the date of this Agreement,
the adoption of, or any change in, any applicable law, regulation, rule or
directive, or any interpretation thereof by any authority charged with the
administration or interpretation thereof:
(i) subjects the Agent, the Issuing Bank or any Lender to any
tax with respect to its Commitment, the Loans, the Notes, the Letters of Credit,
Outstanding L/C Exposure or on any amount paid or to be paid under or pursuant
to this Agreement, its Commitment, the Loans, the Notes, the Letters of Credit
or Outstanding L/C Exposure (other than any tax measured by or based upon the
overall net income of the Agent, the Issuing Bank or such Lender);
(ii) changes the basis of taxation of payments to the Agent,
the Issuing Bank or a Lender of any amounts payable hereunder (other than any
tax measured by or based upon the overall net income of the Agent, the Issuing
Bank or such Lender);
(iii) imposes, modifies or deems applicable any reserve,
capital adequacy or deposit requirements against any assets held by, deposits
with or for the account of, loans made by, or letters of credit issued by, the
Issuing Bank or a Lender; or
(iv) imposes on the Agent, the Issuing Bank or a Lender any
other condition affecting its Commitment, the Loans, the Notes, the Letters of
Credit, Outstanding L/C Exposure or this Agreement; and the result of any of the
foregoing is to increase the cost to the Agent, the Issuing Bank or such Lender
of maintaining this Agreement or its Commitment or making the Loans, or issuing
the Letter of Credit or creating B/As or to reduce the amount of any payment
(whether of principal, interest or otherwise) receivable by the Agent, the
Issuing Bank or such Lender or to require the Agent, the Issuing Bank or such
Lender to make any payment on or calculated by reference to the gross amount of
any sum received by it, in each case by an amount which the Agent, the Issuing
Bank or such Lender in its reasonable judgment deems material, then and in any
such case:
(a) the Issuing Bank or the Lender shall promptly advise the Agent and
the Borrower of such event, together with the date thereof, the amount of such
increased cost or reduction or payment and the way in which such amount has been
calculated; and
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(b) the Borrower shall pay to the Agent, on behalf of itself, the
Issuing Bank or such Lender, as applicable, within ten (10) days after the
advice referred to in subsection (a) hereinabove, such an amount or amounts as
will compensate the Agent, the Issuing Bank or such Lender, as applicable, for
such additional cost, reduction or payment for so long as the same shall remain
in effect.
The determination of the Agent, the Issuing Bank or a Lender
as to additional amounts payable pursuant to this Section 2.12 shall be
conclusive evidence of such amounts absent manifest error.
SECTION 2.13. CAPITAL ADEQUACY. If the Agent, the Issuing Bank or any
Lender shall have determined that the applicability of any law, rule, regulation
or guideline, or the adoption after the date hereof of any other 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 the Agent, the
Issuing Bank or such Lender (or any lending office of such Lender) or the
Agent's, the Issuing Bank's or such Lender'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 the Agent's, the Issuing Bank's or such
Lender's capital or on the capital of the Agent's, the Issuing Bank's or such
Lender's holding company, if any, as a consequence of its obligations hereunder
to a level below that which the Agent, the Issuing Bank or such Lender or the
Agent's, the Issuing Bank's or such Lender's holding company could have achieved
but for such adoption, change or compliance (taking into consideration the
Agent's, the Issuing Bank's or such Lender's policies and the policies of the
Agent's, the Issuing Bank's or such Lender's holding company with respect to
capital adequacy) by an amount reasonably deemed by the Agent, the Issuing Bank
or such Lender to be material, then and in any such case:
(a) the Agent, the Issuing Bank or such Lender shall promptly advise
the Borrower of such event, together with the date thereof, the amount of such
reduction and the way in which such amount has been calculated; and
(b) the Borrower shall pay to the Agent, on behalf of the Agent, the
Issuing Bank or such Lender, as applicable, within ten (10) days after the
advice referred to in subsection (a) hereinabove, such an amount or amounts as
will compensate the Agent, the Issuing Bank or such Lender or the Agent's, the
Issuing Bank's or such Lender's holding company for such reduction for so long
as the same shall remain in effect.
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The determination of the Agent, the Issuing Bank or a Lender as to
additional amounts payable pursuant to this Section 2.13 shall be conclusive
evidence of such amounts absent manifest error.
SECTION 2.14. CHANGE IN LEGALITY. (a) Notwithstanding anything to the
contrary contained elsewhere in this Agreement, if any change after the date
hereof in law, rule, regulation, guideline or order, or in the interpretation
thereof by any governmental authority charged with the administration thereof,
shall make it unlawful for any Lender to make or maintain any Eurodollar Loan or
to give effect to its obligations as contemplated hereby with respect to a
Eurodollar Loan, then, by written notice to the Agent and the Borrower, such
Lender may:
(i) declare that it will not thereafter make Eurodollar Loans
hereunder, whereupon the Borrower shall be prohibited from requesting such
Eurodollar Loans from such Lender unless such declaration is subsequently
withdrawn; and
(ii) require that, subject to the provisions of Section 2.10,
all outstanding Eurodollar Loans made by such Lender be converted to an
Alternate Base Rate Loan, whereupon all of such Eurodollar Loans shall be
automatically converted to an Alternate Base Rate Loan as of the effective date
of such notice as provided in paragraph (b) below.
(b) For purposes of this Section 2.14, a notice to
the Borrower by a Lender pursuant to paragraph
(a) above shall be effective, for the purposes of paragraph (a) above, 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 2.15. INDEMNITY. The Borrower will indemnify each of the
Lenders against any loss or expense which any Lender may sustain or incur as a
consequence of any default in payment or prepayment of the principal amount of
any Eurodollar Loan or any part thereof or interest accrued thereon, as and when
due and payable (at the due date thereof, by notice of prepayment or otherwise),
or the occurrence of any Event of Default, including but not limited to any loss
or expense sustained or incurred in liquidating or re-employing deposits from
third parties acquired to affect or maintain such Eurodollar Loan or any part
thereof. When claiming under this Section 2.15, a Lender shall provide to the
Borrower a statement, signed by an officer of such Lender, explaining the amount
of any such loss or expense (including the calculation of such amount), which
statement shall, in the absence of manifest error, be conclusive with respect to
the parties hereto.
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SECTION 2.16. CHANGE IN LIBOR; AVAILABILITY OF RATES. In the event, and
on each occasion, that, on the day the interest rate for any Eurodollar Loan is
to be determined, the Agent shall have reasonably determined (which
determination, absent manifest error, shall be conclusive and binding upon the
Borrower) that dollar deposits in the amount of the principal amount of the
requested Eurodollar Loan are not generally available in the London interbank
market, or that the rate at which such dollar deposits are being offered will
not adequately and fairly reflect the cost to the Lenders of making or
maintaining the principal amount of such Eurodollar Loan during such Interest
Period, such Eurodollar Loan shall be unavailable. The Agent shall, as soon as
practicable thereafter, given written, telex or telephonic notice of such
determination of unavailability to the Borrower. Any request by the Borrower for
an unavailable Eurodollar Loan shall be deemed to have been a request for an
Alternate Base Rate Loan. After such notice shall have been given and until the
Agent shall have notified the Borrower that the circumstances giving rise to
such notice no longer exist, each subsequent request for an unavailable
Eurodollar Loan shall be deemed to be a request for an Alternate Base Rate Loan.
SECTION 2.17. AUTHORIZATION TO DEBIT BORROWER'S ACCOUNT. The Agent is
hereby authorized to debit the Borrower's account maintained with the Agent for
(i) all scheduled payments of principal and/or interest under the Notes, (ii)
all required reimbursements and other payments due in connection with Letters of
Credit, (iii) the Agent's fees and (iv) the commitment fee and all other amounts
due hereunder; all such debits to be made on the days such payments are due in
accordance with the terms hereof.
SECTION 2.18. LATE CHARGES; DEFAULT INTEREST. (a) If the Borrower shall
default in the payment of any principal installment of or interest on any Loan
or any other amount becoming due hereunder, the Borrower shall pay interest, to
the extent permitted by law, on such defaulted amount up to 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) equal to (i)
the amount of principal, interest, fees and/or other amounts due (the "Past Due
Amount") TIMES (ii) two (2%) percent in excess of the interest rate otherwise in
effect with respect to the type of Loan in connection with which the required
payments have not been made, or, if no such interest rate is in effect, two (2%)
percent in excess of the Alternate Base Rate, TIMES (iii) the number of days the
Past Due Amount is delinquent.
(b) Upon the occurrence and during the continuation of an Event of
Default, the Borrower shall, at the demand of the Agent and the Required
Lenders, pay interest on all amounts owing under the Notes and this Agreement
(after as well as before judgment) at a rate per annum (computed on the basis of
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the actual number of days elapsed over a year of 360 days) equal to two (2%)
percent in excess of the interest rate otherwise in effect hereunder, subject to
the provisions of Section 2.02(c)(1) of this Agreement.
SECTION 2.19. PAYMENTS. All payments by the Borrower hereunder or under
the Notes shall be 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 on the Notes shall accrue from and including the date of
each Loan to but excluding the date on which such Loan is paid in full or
refinanced with a Loan of a different type.
SECTION 2.20. INTEREST ADJUSTMENTS. (a) If the provisions of this
Agreement or the Notes would at any time otherwise require payment by the
Borrower to the Lenders of any amount of interest in excess of the maximum
amount then permitted by applicable law the interest payments shall be reduced
to the extent necessary so that the Lenders shall not receive interest in excess
of such maximum amount. To the extent that, pursuant to the foregoing sentence,
the Lenders shall receive interest payments hereunder or under the Notes in an
amount less than the amount otherwise provided, such deficit (hereinafter called
the "Interest Deficit") will cumulate and will be carried forward (without
interest) until the termination of this Agreement. Interest otherwise payable to
the Lenders hereunder and under the Notes for any subsequent period shall be
increased by such maximum amount of the Interest Deficit that may be so added
without causing the Lenders to receive interest in excess of the maximum amount
then permitted by applicable law.
(b) The amount of the Interest Deficit on the Maturity Date shall be
cancelled and not paid.
(THE BALANCE OF THIS PAGE IS INTENTIONALLY BLANK)
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ARTICLE IIA
THE LETTERS OF CREDIT
SECTION 2A.01. LETTERS OF CREDIT. (a) On the terms and conditions set
forth herein, (i) the Issuing Bank agrees, from time to time on any Business Day
during the period from the date of this Agreement to the day which is thirty
(30) days prior to the Maturity Date to issue Letters of Credit and create B/A's
for the account of the Borrower or DPI and (ii) the Lenders severally agree to
participate in Letters of Credit issued and B/A's created for the account of the
Borrower or DPI. Within the foregoing limits, and subject to the other terms and
conditions hereof, the Borrower's and DPI's ability to obtain Letters of Credit
and have B/A's created shall be fully revolving, and, accordingly, the Borrower
and DPI may, during the foregoing period, obtain Letters of Credit to replace
Letters of Credit which have expired or which have been drawn upon and
reimbursed, provided that in no event shall the Outstanding L/C Exposure exceed
the L/C Sublimit.
(b) The Issuing Bank has no obligation to issue any Letter of
Credit if:
(i) any order, judgment or decree of any governmental
authority or arbitrator purports by its terms
to enjoin or restrain the Issuing Bank from issuing such Letter of Credit or any
requirement of law applicable to the Issuing Bank or any request or directive
(whether or not having the force of law) from any governmental authority with
jurisdiction over the Issuing Bank prohibits, or requests that the Issuing Bank
refrain from, the issuance of commercial letters of credit generally or such
Letter of Credit in particular or imposes upon such Issuing Bank with respect to
such Letter of Credit any restriction, reserve or capital requirement (for which
such Issuing Bank is not otherwise compensated hereunder) not in effect on the
date of this Agreement, or imposes upon the Issuing Bank any unreimbursed loss,
cost or expense which was not applicable on the date of this Agreement and which
the Issuing Bank in good xxxxx xxxxx material to it;
(ii) the Issuing Bank has received written notice
from any Lender, the Agent or the Borrower, on or
prior to the Business Day prior to the requested date of issuance of such Letter
of Credit, that one or more of the applicable conditions contained in Article
III is not then satisfied;
(iii) the expiry date of any requested Letter of
Credit is (x) in the case of Time Letters of Credit or Sight Letters of Credit,
more than one (1) year from its date of issuance or (y) in the case of Standby
Letters of Credit or Sight Letters of Credit later than thirty (30) Business
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Days prior to the Maturity Date or (z) in the case of Time Letters of Credit,
the expiry date of any draft resulting from a draw under a Time Letter of Credit
would mature later than the Business Day which is immediately prior to the
Maturity Date;
(iv) Aggregate Outstandings, after giving effect to
the requested Letter of Credit shall exceed the Total Commitment;
(v) the L/C Documents are not in form and substance
satisfactory to the Issuing Bank; or
(vi) any requested Letter of Credit is not in form
and substance acceptable to the Issuing Bank, or the issuance of a Letter of
Credit violates any applicable policies of the Issuing Bank.
SECTION 2A.02. ISSUANCE OF LETTERS OF CREDIT. Each Letter of Credit
shall be issued upon the request of the Borrower (which request shall be
irrevocable), received by the Issuing Bank in accordance with arrangements
between the Issuing Bank and the Borrower to provide the Issuing Bank
electronically with the information necessary to issue, amend or renew Letters
of Credit. The arrangements between the Borrower and the Issuing Bank are set
forth in the L/C Documents (other than the Letters of Credit) between the
Issuing Bank and the Borrower. To the extent any term in any such L/C Documents
(other than a Letter of Credit) conflicts with or is inconsistent with the terms
of this Agreement, the term most favorable to the Issuing Bank shall apply, and
an Issuing Bank may exercise its rights under either such L/C Document or this
Agreement, but subject in any event to the provisions herein with respect to
sharing and notification. If any such inconsistency exists, the Agent and the
Lenders shall not be deemed to have waived any rights hereunder, nor shall the
Issuing Bank be deemed to have waived any rights under such L/C Document, by
reason of such inconsistency.
SECTION 2A.03. PARTICIPATIONS OF LENDERS. (a) Immediately upon the
issuance of each Letter of Credit and the creation of each B/A, each Lender
shall be deemed to, and hereby irrevocably unconditionally agrees to, purchase
from the Issuing Bank a participation in such Letter of Credit and B/A, as
applicable, each drawing thereunder in any amount and each draft accepted or
deferred payment obligation incurred in any amount under such Letter of Credit
and B/A equal in each case to the product of (i) the Pro Rata Share of each
Lender, times (ii) the maximum amount available to be drawn under such Letter of
Credit and the amount of such drawing, accepted draft or deferred payment
obligation, respectively. Each issuance of a Letter of Credit or creation of a
B/A shall be deemed to utilize the Commitment of each Lender by an amount equal
to the amount of such participation.
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(b) The Issuing Bank will promptly notify the Borrower of any drawing
under a Standby Letter of Credit or a Sight Letter of Credit. The Borrower shall
reimburse the Issuing Bank on each date that any amount is paid by the Issuing
Bank under any Standby Letter of Credit or any Sight Letter of Credit (each such
date, an "Honor Date") at such time(s) as are agreed upon by the Borrower and
the Issuing Bank, in an amount equal to the amount so paid by the Issuing Bank.
In the case of Time Letters of credit, the Borrower shall pay to the Issuing
Bank on the maturity date of each B/A, the amount of such B/A. Any such B/A
shall mature on or prior to the Maturity Date. If the Borrower fails to
reimburse the Issuing Bank for the full amount of any drawing under any Letter
of Credit at such agreed upon time on the Honor Date, or fails to pay a B/A on
its maturity date, the Issuing Bank will promptly notify the Agent and the Agent
will promptly notify each Lender thereof.
(c) Upon receipt of any notice from the Agent of any failure by the
Borrower to reimburse or pay the Issuing Bank, each Lender shall make available
to the Agent for the account of the Issuing Bank its pro rata share of the
amount of such reimbursement or payment. If, after receipt of such notice, any
Lender fails to transfer its pro rata share of the amount of such reimbursement
or payment to the Agent, interest shall accrue on such Lender's obligation to
make such reimbursement or payment from the Honor Date or the maturity date, as
applicable, to the date such Lender makes such payment, at a rate per annum
equal to the Federal Funds Effective Rate in effect from time to time during
such period. Any failure of the Agent to give notice to the Lenders on an Honor
Date or a maturity date, as applicable, or in sufficient time to enable any
Lender to effect such payment on such date shall not relieve such Lender from
its obligations under this subsection (c).
(d) Each Lender's payment to the Issuing Bank pursuant to Section
2A.03(c) shall be deemed payment in respect of and in satisfaction of its
participation in such Letter of Credit or B/A.
(e) Each Lender's obligation to make payment in respect of its
participation in Letters of Credit or B/As, shall be absolute and unconditional
and without recourse to the Issuing Bank and shall not be affected by any
circumstance, including (i) any setoff, counterclaim, recoupment, defense or
other right which such Bank may have against the Issuing Bank, the Borrower or
any other Person for any reason whatsoever; (ii) the occurrence or continuance
of a Default or any Event of Default; or (iii) any other circumstance, happening
or event whatsoever, whether or not similar to any of the foregoing.
SECTION 2A.04. REPAYMENT OF PARTICIPATIONS. (a) Upon receipt by the
Issuing Bank of (i) reimbursement from the Borrower for any payment made by the
Issuing Bank under a Letter of Credit or a B/A with respect to which any Lender
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has paid for its participation in such Letter of Credit or B/A or (ii) payment
of interest thereon, the Issuing Bank will pay such amounts to the Agent in the
same funds as those received by the Issuing Bank. The Agent shall promptly
distribute to each Lender its pro rata share thereof.
(b) If the Agent or any Issuing Bank is required at any time to return
to the Borrower, or to a trustee, receiver, liquidator, custodian, or any
official in any insolvency proceeding, any portion of the payments made by the
Borrower to the Agent or to the Issuing Bank pursuant to Section 2A.04(a) in
reimbursement of a payment made under a Letter of Credit or a B/A or interest
thereon or fees relating thereto or as a result of a setoff, each Lender shall,
on demand of the Agent or the Issuing Bank, as the case may be, forthwith return
to the Agent or the Issuing Bank, as the case may be, the amount of its pro rata
share of any amounts so returned by the Agent or the Issuing Bank plus interest
thereon from the date such demand is made to the date such amounts are returned
by such Lender to the Agent or the Issuing Bank, at a rate per annum equal to
the Federal Funds Effective Rate in effect from time to time.
(c) If any event described in subsection (b) above occurs, the
obligation of the Borrower in respect of the payment or setoff required to be
returned shall be revived and continued in full force and effect as if such
payment had not been make or such setoff had not been effected.
SECTION 2A.05 ROLE OF THE ISSUING BANK. (a) The Issuing Bank shall not
have any responsibility to obtain any document in connection with paying any
draw under a Letter of Credit (other than any required sight or time draft,
certificate and other documents expressly required by the Letter of Credit) or
to ascertain or inquire as to the validity or accuracy of any such document or
the authority of the Person executing or delivering any such document.
(b) Neither the Issuing Bank nor any of its correspondents or assignees
shall be liable to any Lender for: (i) any action taken or omitted in connection
herewith at the request or with the approval of the Lenders (including the
Required Lenders, as applicable); (ii) any action taken or omitted in the
absence of gross negligence or willful misconduct; or (iii) the due execution,
effectiveness, validity or enforceability of any L/C Document.
(c) The Borrower hereby assumes all risks of the acts or omissions of
any beneficiary or transferee with respect to its use of any Letter of Credit;
provided, however, that this assumption is not intended to, and shall not,
preclude the Borrower's pursuing such rights and remedies as it may have against
the beneficiary or transferee at law or under any other agreement. Neither the
Agent, nor any of its officers, directors or employees, nor any of the
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respective correspondents, participants or assignees of the Issuing Bank, shall
be liable or responsible for any of the matters described in clauses (i) through
(vii) of Section 2A.06; provided, however, that the Borrower may have a claim
against the Issuing Bank, and the Issuing Bank may be liable to the Borrower, to
the extent of any direct, as opposed to consequential or exemplary, damages
suffered by the Borrower which the Borrower proves were caused by the Issuing
Bank's willful misconduct or gross negligence or the Issuing Bank's willful
failure to pay under any Letter of Credit after the presentation to it by the
beneficiary of a required sight or time draft and certificate(s) strictly
complying with the terms and conditions of a Letter of Credit. In furtherance
and not in limitation of the foregoing: (i) the Issuing Bank may accept
documents that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary;
and (ii) the Issuing Bank shall not be responsible for the validity or
sufficiency of any instrument transferring or assigning or purporting to
transfer or assign a Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part, which may prove to be invalid or
ineffective for any reasons.
SECTION 2A.06. OBLIGATIONS ABSOLUTE. The obligations of the Borrower
under this Agreement and any L/C Documents to reimburse the Issuing Bank for a
drawing under a Standby Letter of Credit or a Sight Letter of Credit and upon
the maturity date of any B/A shall be unconditional and irrevocable, and shall
be paid strictly in accordance with the terms of this Agreement and the L/C
Documents under all circumstances, including the following:
(i) any lack of validity or enforceability of this Agreement
or any L/C Document;
(ii) any change in the time, manner or place of payment of, or
in any other term of, all or any of the obligations of the Borrower in respect
of any Letter of Credit or any other amendment or waiver of or any consent to
departure from all or any of the L/C Documents;
(iii) the existence of any claim, setoff, defense or other
right that the Borrower may have at any time against any beneficiary or any
transferee of any Letter of Credit (or any Person for whom any such beneficiary
or any such transferee may be acting), the Issuing Bank or any other Person,
whether in connection with this Agreement, the transactions contemplated hereby
or by the L/C Documents or any unrelated transaction;
(iv) 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; or any loss or delay in the transmission or otherwise
of any document required in order to make a drawing under any Letter of Credit;
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(v) any payment by the Issuing Bank under a Letter of Credit
against presentation of a draft or certificate that does not strictly comply
with the terms of any Letter of Credit; or any payment made by the Issuing Bank
under any Letter of Credit to any Person purporting to be a trustee in
bankruptcy, debtor-in-possession, assignee for the benefit of creditors,
liquidator, receiver or other representative of or successor to any beneficiary
or any transferee of any Letter of Credit, including any arising in connection
with any insolvency proceeding;
(vi) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or consent to departure
from any other guarantee, for all or any of the obligations of the Borrower in
respect of any Letter of Credit; or
(vii) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing, including any other circumstance that
might otherwise constitute a defense available to, or a discharge of, the
Borrower.
SECTION 2A.07. UNIFORM CUSTOMS AND PRACTICES. The Uniform Customs and
Practices for Documentary Credits as published by the International Chamber of
Commerce most recently at the time of issuance of any Letter of Credit shall
(unless otherwise expressly provided in the Letters of Credit) apply to the
Letters of Credit.
SECTION 2A.08. FEES AND COMMISSIONS. (a) In the case of Standby Letters
of Credit the Borrower shall pay to the Agent a per annum commission equal to
the Applicable Margin for Eurodollar Loans at the time of the issuance of such
Standby Letter of Credit.
(b) In the case of Sight Letters of Credit, the Borrower shall pay to
the Agent a payment commission equal to the greater of (i) $100.00 or (ii) one
quarter of one (1/4%) percent of the amount drawn, payable on the date of
presentment of the required documents under the Sight Letter of Credit.
(c) In the case of Time Letters of Credit, the Borrower shall pay to
the Agent on the date of acceptance of each draft, a per annum commission on the
face amount of each B/A and other deferred payment obligations from the date of
acceptance of the required draft under the Time Letter of Credit to the maturity
date of the draft equal to two (2%) percent, provided, however, that the minimum
amount of such commission shall not be less than $150.00.
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(d) In the case of all Letters of Credit, the Borrower shall pay to the
Issuing Bank, for its own account, its usual and customary letter of credit fees
as established from time to time, including without limitation, fees,
commissions and charges for issuance, payment, processing amendment and
expiration.
(e) In the case of the fees and commissions set forth in (a), (b) and
(c) above, same shall be paid to the Agent for the pro rata distribution to the
Lenders.
(THE BALANCE OF THIS PAGE IS INTENTIONALLY BLANK)
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ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. CONDITIONS PRECEDENT TO THE MAKING OF THE INITIAL
REVOLVING CREDIT LOAN AND THE ISSUANCE OF THE INITIAL LETTER OF CREDIT. The
obligation of the Lenders to make the initial Revolving Credit Loans
contemplated by this Agreement and the obligation of the Issuing Bank to issue
the initial Letter of Credit or create the initial B/A contemplated by this
Agreement is subject to the following conditions precedent, the satisfaction of
which shall be, and each of which shall be in form and substance, satisfactory
to the Agent, the Lenders and their counsel:
(a) The Agent shall have received the Revolving Credit Notes duly
executed and payable to the order of each of the Lenders.
(b) The Agent shall have received certified (as of the date of this
Agreement) copies of the resolutions of the Board of Directors of the Borrower
authorizing the Loans and authorizing and approving this Agreement and the other
Loan Documents and the execution, delivery and performance thereof and certified
copies of all documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to this Agreement and the other
Loan Documents.
(c) The Agent shall have received certified (as of the date of this
Agreement) copies of the resolutions of the Board of Directors and, if required
under applicable law, the shareholders of each of the Guarantors, authorizing
and approving this Agreement, its Confirmation of Guaranty and any other Loan
Document applicable to such Guarantors, and the execution, delivery and
performance thereof and certified copies of all documents evidencing other
necessary corporate action and governmental approvals, if any, with respect to
this Agreement, its Confirmation of Guaranty and the other Loan Documents.
(d) The Agent shall have received a certificate of the Secretary or an
Assistant Secretary (attested to by another officer) of the Borrower certifying:
(i) the names and true signatures of the officer or officers of the Borrower
authorized to sign this Agreement, the Notes and the other Loan Documents to be
delivered hereunder on behalf of the Borrower; and (ii) a copy of the Borrower's
by-laws as complete and correct on the date of this Agreement.
(e) The Agent shall have received a Certificate of the Secretary or an
Assistant Secretary (attested to by another officer) of each of the Guarantors
certifying (i) the names and true signatures of the officer or officers of the
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Guarantors authorized to sign this Agreement, their Guaranties and any other
Loan Documents to be delivered hereunder on behalf of the Guarantors; (ii) a
copy of each of the Guarantors' by-laws as complete and correct on the date of
this Agreement; and (iii) the stock ownership of each Guarantor.
(f) The Agent shall have received copies of the certificate of
incorporation and all amendments thereto of the Borrower and the Guarantors
certified in each case by the Secretary of State (or equivalent officer) of the
state of incorporation of each of the Borrower and the Guarantors and a
certificate of existence and good standing with respect to the Borrower and the
Guarantors from the Secretary of State (or equivalent officer) of the state of
incorporation of the Borrower and the Guarantors) and from the Secretary of
State (or equivalent officer) of any state in which the Borrower or the
Guarantors are required to be authorized to do business.
(g) The Agent shall have received an opinion, addressed to the Agent
and each of the Lenders, of Proskauer Rose LLP, counsel for the Borrower and the
Guarantors as to certain matters referred to in Article IV hereof and as to such
other matters as the Agent or its counsel may reasonably request.
(h) The Agent shall have received from each Guarantor, an executed
Guaranty.
(i) The Agent shall have received evidence that the Borrower and each
Guarantor maintain adequate casualty and liability insurance, with financially
sound and reputable insurance companies or associations, in such amounts and
covering such risks as are usually carried by companies engaged in similar
businesses and owning properties and doing business in the same general areas in
which the Borrower and the Guarantors operate.
(j) The Agent shall have received and satisfactorily reviewed all
credit agreements and other similar agreements described in Section 4.01(t) of
this Agreement.
(k) The Agent shall have received and satisfactorily reviewed the
audited consolidated financial statements of the Borrower and its Consolidated
Subsidiaries for the fiscal year ended December 31, 2003 and a draft compliance
certificate of the Borrower for the fiscal year ended December 31, 2003
demonstrating compliance with the covenants contained in Section 5.03 of this
Agreement.
(l) The Agent and the Lenders shall have received and satisfactorily
reviewed the Senior Note Amendment.
(m) The following statements shall be true and the Agent shall have
received a certificate signed by the President or the Chief Financial Officer of
the Borrower dated the date hereof, stating that:
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(i) After giving effect to the execution and delivery of this
Agreement and the Senior Note Amendment, the representations and warranties
contained in Article IV of this Agreement and in the Loan Documents are true and
correct in all material respects on and as of such date, except for those
relating to an earlier date, which shall remain true and correct as of such
earlier date; and
(ii) No Default or Event of Default has occurred and is
continuing, or would result from the making of the Revolving Credit Loans.
(n) Receipt by the Agent of (i) the facility fees payable to the
Lenders, (ii) its administrative fee together with all other fees payable
pursuant to the Fee Letter.
(o) All schedules, documents, certificates and other information
provided to the Agent or any Lender pursuant to or in connection with this
Agreement shall be reasonably satisfactory to the Agent and its counsel in all
respects.
(p) All legal matters incident to this Agreement and the transactions
contemplated hereby shall be satisfactory to Cullen and Xxxxxx Xxxxxxxx Xxxxx
LLP, counsel to the Agent.
(q) Receipt by the Agent of such other approvals, opinions or documents
as the Agent or its counsel may reasonably request.
(r) Payment by the Borrower of the reasonable fees and expenses of
counsel to the Agent.
SECTION 3.02. CONDITIONS PRECEDENT TO ALL REVOLVING CREDIT LOANS. The
obligations of the Lenders to make each subsequent Revolving Credit Loan shall
be subject to the further condition precedent that on the date of such Revolving
Credit Loan:
(a) The following statements shall be true and each request for a
Revolving Credit Loan shall be deemed a certification by the Borrowers and the
Guarantors that such statements are true, and the Agent shall have received, if
requested by the Agent, a certificate signed by the President or the Chief
Financial Officer of the Borrower dated the date of such Revolving Credit Loan,
stating that:
(i) The representations and warranties contained in Article IV
of this Agreement and in the Loan Documents are true and correct in all material
respects on and as of such date as though made on and as of such date except for
those that relate to an earlier date which shall remain true and correct as of
such earlier date; and
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(ii) No Default or Event of Default has occurred and is
continuing, or would result from such Revolving Credit Loan.
(b) The Agent shall have received such other approvals, opinions or
documents as the Agent may reasonably request.
SECTION 3.03. CONDITIONS PRECEDENT TO ALL LETTERS OF CREDIT AND ALL
B/AS. The obligation of the Issuing Bank to issue each Letter of Credit
(including the initial Letter of Credit) and to create each B/A shall be subject
to the further condition precedent that on the date of each request for a Letter
of Credit or B/A:
(a) The following statements shall be true and each request for a
Letter of Credit or B/A shall be deemed a certification by the Borrowers and the
Guarantors that such statements are true, and the Agent shall have received, if
requested by the Agent, a certificate signed by the President or the Chief
Financial Officer of the Borrower dated the date of such request for a Letter of
Credit or B/A, stating that:
(i) The representations and warranties contained in Article IV
of this Agreement and in the Loan Documents are true and correct in all material
respects on and as of such date as though made on and as of such date except for
those that relate to an earlier date which shall remain true and correct as of
such earlier date; and
(ii) No Default or Event of Default has occurred and is
continuing, or would result from the issuance of such Letter of Credit or the
creation of such B/A.
(b) The Agent shall have received such other approvals, opinions or
documents as the Agent may reasonably request.
(THE BALANCE OF THIS PAGE IS INTENTIONALLY BLANK)
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. REPRESENTATIONS AND WARRANTIES. On the date hereof and,
on each date that the Borrower requests a Revolving Credit Loan, a Letter of
Credit or the issuance of a B/A, the Borrower and the Guarantors each represent
and warrant as follows:
(a) SUBSIDIARIES. On the date hereof, the only Subsidiaries of the
Borrower or the Guarantors, whether or not active or inactive, are those set
forth on Schedule 4.01(a) annexed hereto, which Schedule accurately sets forth
with respect to each such Subsidiary, its name and address, any other addresses
at which it conducts business, its state of incorporation and each other
jurisdiction in which it is qualified to do business, other than jurisdictions
where the failure to so qualify would not be reasonably likely to result in a
Material Adverse Change in such Subsidiary, the identity and share holdings of
its stockholders and whether or not such Subsidiary is inactive and has no
material assets. Except as set forth on Schedule 4.01(a), all of the issued and
outstanding shares of each Subsidiary which are owned by the Borrower or any
Guarantor are owned by the Borrower or such Guarantor free and clear of any
mortgage, pledge, lien or encumbrance, other than Liens permitted by Section
5.02(a) of this Agreement. Except as set forth on Schedule 4.01(a) and except
for options granted under the 1984 Stock Option Plan or the 1994 Stock Plan,
there are no outstanding warrants, options, contracts or commitments of any kind
entitling any Person to purchase or otherwise acquire any shares of common or
capital stock or other equity interest of the Borrower, any Guarantor or any
Subsidiary of the Borrower or any Guarantor, nor are there outstanding any
securities which are convertible into or exchangeable for any shares of the
common or capital stock of the Borrower, any Guarantor or any Subsidiary of the
Borrower or any Guarantor.
(b) ORGANIZATION; GOOD STANDING. The Borrower, each Guarantor and each
Subsidiary of the Borrower or any Guarantor are each a corporation duly
incorporated, validly existing and in good standing under the laws of their
respective jurisdictions of incorporation and each has the corporate power to
own its assets and to transact the business in which it is presently engaged and
is duly qualified and is in good standing in all other jurisdictions where the
failure to so qualify would be reasonably likely to result in a Material Adverse
Change.
(c) LOAN DOCUMENTS; NO CONSENTS OR VIOLATIONS. The execution, delivery
and performance by the Borrower and each Guarantor of the Loan Documents to
which they are a party are within the Borrower's and such Guarantor's corporate
power and have been duly authorized by all necessary corporate action and do not
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and will not (i) require any consent or approval of the stockholders of the
Borrower or such Guarantor (other than those previously obtained and appropriate
evidence of which has been delivered to the Agent); (ii) do not contravene the
Borrower's or such Guarantor's certificate of incorporation, charter or by-laws;
(iii) violate any provision of or any law, rule, regulation, contractual
restriction, order, writ, judgment, injunction, or decree, determination or
award binding on or affecting the Borrower or such Guarantor; (iv) result in a
breach of or constitute a default under any indenture or loan or credit
agreement, or any other material agreement, lease or instrument to which the
Borrower or such Guarantor is a party or by which it or its properties may be
bound or affected; and (v) result in, or require, the creation or imposition of
any Lien upon or with respect to any of the properties now owned or hereafter
acquired by the Borrower or such Guarantor, other than the Liens created
pursuant to the Loan Documents.
(d) AUTHORIZATION. No authorization or approval or other action by, and
no notice to or filing with, any governmental authority or regulatory body is
required for the due execution, delivery and performance by the Borrower or any
Guarantor of any Loan Document to which it is a party, except authorizations,
approvals, actions, notices or filings which have been obtained, taken or made,
as the case may be.
(e) VALIDITY AND ENFORCEABILITY. The Loan Documents, when delivered
hereunder, will have been duly executed and delivered on behalf of the Borrower
and each Guarantor, as the case may be, and will be legal, valid and binding
obligations of the Borrower and each Guarantor, as the case may be, enforceable
against the Borrower or such Guarantor in accordance with their respective
terms, except as enforcement may be limited by equitable principles or by
bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to
or limiting creditors' rights generally.
(f) FINANCIAL STATEMENTS. The consolidated financial statements of the
Borrower and its Consolidated Subsidiaries for the fiscal year ended December
31, 2003 copies of each of which have been furnished to the Agent and the
Lenders, (i) fairly present in all material respects the financial condition of
the Borrower and its Consolidated Subsidiaries as at such dates and the results
of operations of the Borrower and its Consolidated Subsidiaries for the periods
ended on such dates, all in accordance with GAAP, subject, in the case of the
interim financial statements, to year end adjustments and the absence of
footnotes, (ii) between December 31, 2003 and the date of this Agreement there
has been no Material Adverse Change and (iii) except as disclosed on such
financial statements or the notes thereto, there are no undisclosed liabilities
of the Borrower or any of its Consolidated Subsidiaries, contingent or otherwise
required to be disclosed therein.
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(g) LITIGATION. There is no pending or to the Borrower's or any
Guarantor's knowledge, threatened action, proceeding or investigation affecting
the Borrower, such Guarantor or any Subsidiary of the Borrower or any Guarantor,
before any court, governmental agency or arbitrator, which would either in one
case or in the aggregate, be reasonably likely to result in a Material Adverse
Change.
(h) TAXES. The Borrower, each Guarantor and each Subsidiary of the
Borrower or any Guarantor have filed all federal, state and local tax returns
required to be filed and have paid all taxes, assessments and governmental
charges and levies thereon to be due, including interest and penalties, unless
and only to the extent that (i) such taxes are being contested in good faith and
by appropriate proceedings by the Borrower, such Guarantor or any such
Subsidiary, as the case may be; (ii) there are adequate reserves therefor in
accordance with GAAP entered on the books of the Borrower, such Guarantor or any
such Subsidiary; and (iii) no enforcement proceedings for the collection of such
taxes against the Borrower, such Guarantor or any such Subsidiary have been
commenced.
(i) LICENSES, ETC. The Borrower, each Guarantor and each Subsidiary of
the Borrower or any Guarantor possess, or has the right to use, all material
licenses, permits, franchises, patents, copyrights, trademarks and trade names
or rights thereto, to conduct their respective businesses substantially as now
conducted and as presently proposed to be conducted, and neither the Borrower,
such Guarantor nor any such Subsidiary are in violation of any similar rights of
others.
(j) NO ADVERSE AGREEMENTS. Neither the Borrower, nor any Guarantor nor
any Subsidiary of the Borrower or any Guarantor is a party to any indenture,
loan or credit agreement or any other agreement, lease or instrument or subject
to any charter or corporate restriction, the default or breach of which would be
reasonably likely to result in a Material Adverse Change. All material
agreements to which the Borrower, any Guarantor, or any Subsidiary of the
Borrower or any Guarantor is a party are in full force and effect and neither
the Borrower, such Guarantor nor any such Subsidiary are in default of any such
agreement.
(k) MARGIN STOCK. The Borrower is not engaged in the business of
extending credit for the purpose of purchasing or carrying margin stock (within
the meaning of Regulation T, U or X), and no proceeds of any Loan will be used
to purchase or carry any margin stock or to extend credit to others for the
purpose of purchasing or carrying any margin stock or in any other way which
will cause the Borrower to violate the provisions of Regulations T, U or X.
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(l) COMPLIANCE WITH LAWS. The Borrower, each Guarantor and each
Subsidiary of the Borrower or any Guarantor are, except as provided or disclosed
in paragraphs (h), (m) or (n) of this Section 4.01, in all material respects in
compliance with all federal and state laws and regulations in all jurisdictions
where the failure to comply with such laws or regulations would be reasonably
likely to result in a Material Adverse Change.
(m) ERISA. Subject to the last sentence of this Section 4.01(m), the
Borrower, each Guarantor, each Subsidiary of the Borrower or any Guarantor and
each ERISA Affiliate are in compliance in all material respects with all
applicable provisions of ERISA. Neither a Reportable Event nor a Prohibited
Transaction has occurred and is continuing with respect to any Plan; no notice
of intent to terminate a Plan in a distress termination has been filed nor has
any Plan been terminated under such circumstances; no circumstances exist which
constitute grounds under Section 4042 of ERISA entitling the PBGC to institute
proceedings to terminate, or appoint a trustee to administrate, a Plan, nor has
the PBGC instituted any such proceedings; neither the Borrower, any Guarantor,
any Subsidiary of the Borrower or any Guarantor, nor any ERISA Affiliate has
completely or partially withdrawn under Sections 4201 or 4204 of ERISA from a
Multiemployer Plan which would result in a Material Adverse Change; the
Borrower, each Guarantor, each Subsidiary of the Borrower or any Guarantor and
each ERISA Affiliate have met their minimum funding requirements under ERISA
with respect to all of their Plans and the present fair market value of all Plan
assets exceeds the present value of all vested benefits under each Plan, as
determined on the most recent valuation date of the Plan in accordance with the
provisions of ERISA for calculating the potential liability of the Borrower,
such Guarantor, any such Subsidiary or any ERISA Affiliate to PBGC or the Plan
under Title IV of ERISA; and neither the Borrower, such Guarantor, any such
Subsidiary nor any ERISA Affiliate has incurred any liability to the PBGC under
ERISA. Notwithstanding the foregoing, the representations and warranties
contained in this Section 4.01(m) are qualified to the extent that if any such
representation or warranty applies to a Plan maintained by an ERISA Affiliate,
such representation or warranty shall be deemed to be to the best knowledge of
the Borrower.
(n) HAZARDOUS MATERIALS. The Borrower, each Guarantor and each
Subsidiary of the Borrower or any Guarantor are in compliance in all material
respects with all federal, state or local laws, ordinances, rules, regulations
or policies governing Hazardous Materials and neither the Borrower, any
Guarantor nor any such Subsidiary has used Hazardous Materials on, from, or
affecting any property now owned or occupied or hereafter owned or occupied by
the Borrower, such Guarantor or any such Subsidiary in any manner which violates
in a material manner federal, state or local laws, ordinances, rules,
regulations or policies governing the use, storage, treatment, transportation,
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manufacture, refinement, handling, production or disposal of Hazardous
Materials, and, to the Borrower's, such Guarantor's and such Subsidiaries'
knowledge, no prior owner of any such property or any tenant, subtenant, prior
tenant or prior subtenant have used Hazardous Materials on, from or affecting
such property in any manner which violates in a material manner federal, state
or local laws, ordinances, rules, regulations, or policies governing the use,
storage, treatment, transportation, manufacture, refinement, handling,
production or disposal of Hazardous Materials.
(o) USE OF PROCEEDS. The proceeds of the Revolving Credit Loans shall
be used exclusively for the purposes set forth in Sections 2.06 hereof.
(p) TITLE TO ASSETS; NO LIENS. The Borrower and each Guarantor have
good and marketable title to all of their properties and assets, subject only to
the Liens permitted by Section 5.02(a) of this Agreement.
(q) CASUALTIES, ETC. Neither the business nor the properties of the
Borrower, any Guarantor nor any Subsidiary of the Borrower or any Guarantor are
affected by any fire, explosion, accident, strike, hail, earthquake, embargo,
act of God or of the public enemy, or other casualty (whether or not covered by
insurance), which would be reasonably likely to result, in any one case or in
the aggregate, in a Material Adverse Change.
(r) SOLVENCY. After giving effect to the execution of this Agreement,
the availability of the Total Commitment and the Senior Note Amendment, (i) the
fair value of the assets of (x) the Borrower and its Consolidated Subsidiaries,
on a consolidated basis and (y) the Borrower and DPI, each singularly, exceeds,
in each case, their debts and liabilities (subordinated, contingent or
otherwise); (ii) the present fair saleable value of the property of (x) the
Borrower and its Consolidated Subsidiaries, on a consolidated basis and (y) the
Borrower and DPI, each singularly, is, in each case, greater than the amount
required to pay the probable liability of their debts and other liabilities
(subordinated, contingent or otherwise) as such debts and other liabilities
mature; (iii) (x) the Borrower and its Consolidated Subsidiaries, on a
consolidated basis and (y) the Borrower and each Guarantor singularly, is, in
each case, able to pay their debts and liabilities (subordinated, contingent or
otherwise) as such debts and liabilities mature; and (iv) (x) the Borrower and
its Consolidated Subsidiaries, on a consolidated basis and (y) the Borrower and
each Guarantor singularly, do not have, in each case, unreasonably small capital
to conduct the businesses in which they are engaged; and (v) the Borrower and
DPI each has a positive net worth.
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(s) FINANCIAL ADVANTAGE. Each Guarantor acknowledges it has derived or
expects to derive a financial or other advantage from the Loans obtained by the
Borrower from the Lenders.
(t) CREDIT AGREEMENTS, ETC. Schedule 4.01(t) is a complete and correct
list, as of the date hereof, of all credit agreements, indentures, purchase
agreements, guaranties, Capital Leases, and other agreements and arrangements
presently in effect providing for or relating to extensions of credit (including
agreements and arrangements for the issuance of letters of credit or for
acceptance financing) in the principal amount of $100,000.00 or more and in
respect of which the Borrower or any Guarantor is in any manner directly or
contingently obligated (other than the Loan Documents), and the maximum
principal or face amounts of the credit in question, outstanding or to be
outstanding, are correctly stated, and all Liens of any nature given or agreed
to be given as security therefor are correctly described or indicated in such
Schedule.
(THE BALANCE OF THIS PAGE IS INTENTIONALLY BLANK)
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ARTICLE V
COVENANTS OF THE BORROWER AND THE GUARANTOR
SECTION 5.01. AFFIRMATIVE COVENANTS. So long as any amount shall remain
outstanding under the Revolving Credit Notes, or there is any Outstanding L/C
Exposure, or so long as the Commitments shall remain in effect, the Borrower and
each Guarantor will, unless the Agent and the Required Lenders shall otherwise
consent in writing:
(a) COMPLIANCE WITH LAWS, ETC. Comply, and cause each Subsidiary of the
Borrower or any Guarantor to comply, in all material respects with all
applicable laws, rules, regulations and orders, where the failure to so comply
would be reasonably likely to result in a Material Adverse Change.
(b) REPORTING REQUIREMENTS. Furnish to the Agent and the Lenders: (i)
ANNUAL FINANCIAL STATEMENTS. As soon as available and in any event within ninety
(90) days after the end of each fiscal year of the Borrower, a copy of the
audited consolidated and unaudited consolidating (such consolidating statements
to be prepared by management of the Borrower) financial statements of the
Borrower and its Consolidated Subsidiaries for such year, including balance
sheets with related statements of income and retained earnings and statements of
cash flows, all in reasonable detail and setting forth in comparative form the
figures for the previous fiscal year, together with an unqualified opinion,
prepared by independent certified public accountants selected by the Borrower
and reasonably satisfactory to the Agent, all such financial statements to be
prepared in accordance with GAAP.
(ii) QUARTERLY FINANCIAL STATEMENTS. As soon as available and
in any event within forty five (45) days after the end of each of the first
three fiscal quarters of each fiscal year of the Borrower, a copy of the
consolidated and consolidating financial statements of the Borrower and its
Consolidated Subsidiaries for such quarter, including balance sheets with
related statements of income and retained earnings and statements of cash flows,
all in reasonable detail and setting forth in comparative form the figures for
the comparable period for the previous fiscal year, all such financial
statements to be prepared by management of the Borrower in accordance with GAAP.
(iii) MANAGEMENT LETTERS. Promptly upon receipt thereof, copies
of any reports submitted to the Borrower or any Guarantor by independent
certified public accountants in connection with the examination of the financial
statements of the Borrower and the Guarantor made by such accountants.
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(iv) CERTIFICATE OF NO DEFAULT. Simultaneously with the
delivery of the financial statements referred to in Section 5.01(b)(i) and (ii),
a certificate of the President or the Chief Financial Officer of the Borrower,
(1) certifying that no Default or Event of Default has occurred and is
continuing, or if a Default or Event of Default has occurred and is continuing,
a statement as to the nature thereof and the action which is proposed to be
taken with respect thereto; and (2) with computations demonstrating compliance
with the covenants contained in Section 5.03.
(v) ACCOUNTANTS' REPORT. Simultaneously with the delivery of
the annual financial statements referred to in Section 5.01(b)(i), a certificate
of the independent certified public accountants who audited such statements to
the effect that, in making the examination necessary for the audit of such
statements, they have obtained no knowledge of any condition or event which
constitutes a Default or Event of Default, or if such accountants shall have
obtained knowledge of any such condition or event, specify in such certificate
each such condition or event of which they have knowledge and the nature and
status thereof.
(vi) NOTICE OF LITIGATION. Promptly after the commencement
thereof, notice of all actions, suits and proceedings before any court or
governmental department, commission, board, bureau, agency, or instrumentality,
domestic or foreign, affecting the Borrower, any Guarantor or any Subsidiary of
the Borrower or any Guarantor which, if determined adversely to the Borrower,
such Guarantor or any such Subsidiary would be reasonably likely to result in a
Material Adverse Change.
(vii) NOTICE OF DEFAULTS AND EVENTS OF DEFAULT. As soon as
possible and in any event within five (5) days after the occurrence of each
Default or Event of Default, a written notice setting forth the details of such
Default or Event of Default and the action which is proposed to be taken by the
Borrower with respect thereto.
(viii) ERISA REPORTS. Promptly after the filing or receiving
thereof, copies of all reports, including annual reports, and notices which the
Borrower, any Guarantor or any Subsidiary of the Borrower or any Guarantor,
files with or receives from the PBGC, the Internal Revenue Service or the U.S.
Department of Labor under ERISA; and as soon as possible after the Borrower, any
Guarantor or any such Subsidiary knows or has reason to know that any Reportable
Event or Prohibited Transaction has occurred with respect to any Plan or that
the PBGC or the Borrower, any Guarantor or any such Subsidiary has instituted or
will institute proceedings under Title IV of ERISA to terminate any Plan, the
Borrower or such Guarantor will deliver to the Agent and the Lenders a
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certificate of the President or the Chief Financial Officer of the Borrower or
such Guarantor setting forth details as to such Reportable Event or Prohibited
Transaction or Plan termination and the action the Borrower or such Guarantor
proposes to take with respect thereto;
(ix) ENVIRONMENTAL NOTICES. Promptly after the receipt thereof,
a copy of any written claim, summons, charge or other notice to the Borrower,
any Guarantor or any Subsidiary of the Borrower or any Guarantor alleging
failure to comply with any federal, state or local laws governing Hazardous
Materials.
(x) MATERIAL ADVERSE CHANGE. Promptly, upon the occurrence
thereof, notice of a Material Adverse Change.
(xi) REPORTS TO OTHER CREDITORS. Promptly after the furnishing
thereof, copies of any statement or report furnished to any other party pursuant
to the terms of any indenture, loan, or credit or similar agreement and not
otherwise required to be furnished to the Agent and the Lenders pursuant to any
other clause of this Section 5.01(b).
(xii) PROXY STATEMENTS, ETC. Promptly after the sending or
filing thereof, copies of all proxy statements, financial statements and reports
which the Borrower, any Guarantor or any Subsidiary of the Borrower or any
Guarantor sends to its stockholders, and copies of all regular, periodic, and
special reports, and all registration statements which the Borrower or such
Guarantor or any such Subsidiary files with the Securities and Exchange
Commission or any governmental authority which may be substituted therefor, or
with any national securities exchange.
(xiii) NOTICE OF AFFILIATES. Promptly after any Person becomes
an Affiliate of the Borrower or any Guarantor (other than if such Person becomes
an Affiliate solely by virtue of a member of management of the Borrower making
an investment in such Person), notice to the Agent and the Lenders of such
Affiliate, provided that this clause (xiii) shall not require the Borrower or
any Guarantor to advise the Agent and the Lenders of any changes in officers
other than executive officers.
(xiv) GENERAL INFORMATION. Such other information respecting
the condition or operations, financial or otherwise, of the Borrower, any
Guarantor or any Subsidiary of the Borrower or any Guarantor as the Agent or any
Lender may from time to time reasonably request.
(c) TAXES. Pay and discharge, and cause each Subsidiary of the Borrower
or any Guarantor to pay and discharge, all taxes, assessments and governmental
charges upon it or them, its or their income and its or their properties prior
to the dates on which penalties are attached thereto, unless and only to the
extent that (i) such taxes shall be contested in good faith and by appropriate
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proceedings by the Borrower, such Guarantor or any such Subsidiary, as the case
may be; (ii) there be adequate reserves therefor in accordance with GAAP entered
on the books of the Borrower, such Guarantor or any such Subsidiary; and (iii)
no enforcement proceedings for the collection of such taxes against the
Borrower, such Guarantor or any such Subsidiary have been commenced.
(d) CORPORATE EXISTENCE. Except as permitted by Section 5.02(c) of this
Agreement, preserve and maintain, and cause each Subsidiary of the Borrower or
any Guarantor to preserve and maintain, their corporate existence and good
standing in the jurisdiction of their incorporation and the rights, privileges
and franchises of the Borrower, each Guarantor and each such Subsidiary in each
case where failure to so preserve or maintain would be reasonably likely to
result in a Material Adverse Change, except that any inactive Subsidiary (that
has no assets) may wind up, liquidate or dissolve with at least thirty (30) days
prior written notice to the Agent.
(e) MAINTENANCE OF PROPERTIES AND INSURANCE. (i) Keep, and cause each
Subsidiary of the Borrower and any Guarantor to keep, the respective properties
and assets (tangible or intangible) that are useful and necessary in its
business, in good working order and condition, reasonable wear and tear
excepted; and (ii) maintain, and cause any such Subsidiary to maintain,
insurance with financially sound and reputable insurance companies or
associations in such amounts and covering such risks as are usually carried by
companies engaged in similar businesses and owning properties and doing business
in the same general areas in which the Borrower, any Guarantor and any such
Subsidiary may operate.
(f) BOOKS OF RECORD AND ACCOUNT. Keep, and cause each Subsidiary of the
Borrower and any Guarantor to keep, adequate records and proper books of record
and account in which complete entries will be made in a manner to enable the
preparation of financial statements in accordance with GAAP, reflecting all
financial transactions of the Borrower, such Guarantor, and any such Subsidiary.
(g) VISITATION. At any reasonable time, and from time to time, and upon
prior notice, and, provided no Default or Event of Default then exists, not more
often than once during any calendar year, permit the Agent or any agents or
representatives thereof, to examine and make copies of (except if such copies
would result in the loss of any attorney-client or other privilege) and
abstracts from the financial and accounting books and records of, and visit the
properties of, the Borrower, the Guarantor or any Subsidiary of the Borrower or
the Guarantor to discuss the affairs, finances and accounts of the Borrower, the
Guarantor or any such Subsidiary with any of the respective officers of the
Borrower, the Guarantor or any such Subsidiary or the Borrower's, the
Guarantor's or such Subsidiary's independent accountants.
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(h) PERFORMANCE AND COMPLIANCE WITH OTHER AGREEMENTS. Perform and
comply in all material respects, and cause each Subsidiary of the Borrower or
any Guarantor to perform and comply in all material respects, with each of the
provisions of each and every agreement the failure to perform or comply with
which would be reasonably likely to result in a Material Adverse Change.
(i) PENSION FUNDING. Comply in all material respects, and cause each
Subsidiary of the Borrower or any Guarantor to comply in all material respects,
with the following and cause each ERISA Affiliate of the Borrower, any Guarantor
or any such Subsidiary to comply with the following:
(i) engage solely in transactions which would not subject any
of such entities to either a civil penalty assessed pursuant to Section 502(i)
of ERISA or a tax imposed by Section 4975 of the Internal Revenue Code in either
case in an amount in excess of $25,000.00;
(ii) make full payment when due of all amounts which, under
the provisions of any Plan or ERISA, the Borrower, any Guarantor, any such
Subsidiary or any ERISA Affiliate of any of same is required to pay as
contributions thereto;
(iii) all applicable provisions of the Internal Revenue Code
and the regulations promulgated thereunder, including but not limited to Section
412 thereof, and all applicable rules, regulations and interpretations of the
Accounting Principles Board and the Financial Accounting Standards Board;
(iv) not fail to make any payments in an aggregate amount
greater than $25,000.00 to any Multiemployer Plan that the Borrower, any
Guarantor, any such Subsidiary or any ERISA Affiliate may be required to make
under any agreement relating to such Multiemployer Plan, or any law pertaining
thereto; or
(v) not take any action regarding any Plan which could result
in the occurrence of a Prohibited Transaction.
(j) LICENSES; TRADEMARKS. Maintain at all times, and cause each
Subsidiary of the Borrower or any Guarantor to maintain at all times, all
licenses or permits necessary to the conduct of its business or as may be
required by any governmental agency or instrumentality thereof, except for such
licenses or permits where the failure to so maintain would not be reasonably
likely to result in a Material Adverse Change and take all steps necessary to
maintain the exclusive ownership of, and the rights to, all trademarks and
tradenames material to the business of the Borrower or a Subsidiary, provided
however that the Borrower and the Guarantors shall not be required to take such
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steps, including, without limitation the renewal or continuation of such a
material trademark or tradename registrations in the United States Trademark
Office, if the Borrower or the applicable Guarantor has provided the Agent and
the Lenders with a written statement giving the reasons why such steps are not
necessary and why such failure to maintain such trademark or tradename would not
result in a Material Adverse Change.
(k) NEW SUBSIDIARIES. (i) Cause any Subsidiary (other than a Foreign
Subsidiary) of the Borrower or any Guarantor formed after the date of this
Agreement that is either actively running a business or owns any assets to
become a Guarantor and to become a party to this Agreement as a Guarantor.
(ii) Cause any Foreign Subsidiary which, in the reasonable
determination of the Borrower and its professional advisors, if it became a
Guaranteeing Foreign Subsidiary would not result in adverse tax consequences to
the Borrower, to become a Guarantor and to become a party to this Agreement as a
Guarantor.
SECTION 5.02. NEGATIVE COVENANTS. So long as any amount shall remain
outstanding under the Revolving Credit Note, or there is any Outstanding L/C
Exposure, or so long as the Commitment shall remain in effect, neither the
Borrower nor any Guarantor will, without the written consent of the Agent and
the Required Lenders:
(a) LIENS, ETC. Create, incur, assume or suffer to exist, any Lien,
upon or with respect to any of its properties, now owned or hereafter acquired,
except:
(i) Liens for taxes or assessments or other government charges
or levies if not yet due and payable or if due and payable if they are being
contested in good faith by appropriate proceedings and for which appropriate
reserves are maintained;
(ii) Liens imposed by law, such as mechanics', materialmen's,
landlords', warehousemen's, and carriers' Liens, and other similar Liens,
securing obligations incurred in the ordinary course of business which are not
past due or which are being contested in good faith by appropriate proceedings
and for which appropriate reserves have been established;
(iii) Liens under workers' compensation, unemployment
insurance, Social Security, or similar legislation;
(iv) Liens, deposits, or pledges to secure the performance of
bids, tenders, contracts (other than contracts for the payment of money), leases
(permitted under the terms of this Agreement), public or statutory obligations,
surety, stay, appeal, indemnity, performance or other similar bonds, or other
similar obligations arising in the ordinary course of business;
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(v) Liens described in Schedule 5.02(a), which Liens may be
renewed, extended or refinanced, without securing any additional Debt and on
terms no less favorable to the Borrower or applicable Guarantor than the
original terms;
(vi) Judgment and other similar Liens arising in connection
with court proceedings (other than those described in Section 6.01(f)), provided
the execution or other enforcement of such Liens is effectively stayed and the
claims secured thereby are being actively contested in good faith and by
appropriate proceedings and for which adequate reserves are maintained;
(vii) Easements, rights-of-way, restrictions, and other
similar encumbrances which, in the aggregate, do not materially interfere with
the Borrower's or a Guarantor's occupation, use and enjoyment of the property or
assets encumbered thereby in the normal course of its business or materially
impair the value of the property subject thereto;
(viii) Intentionally omitted; and
(ix) Purchase money Liens on any property hereafter acquired
or the assumption of any Lien on property existing at the time of such
acquisition, or a Lien incurred in connection with any conditional sale or other
title retention agreement or a Capital Lease, provided that:
(1) Any property subject to any of the foregoing is
acquired by the Borrower or a Guarantor in the ordinary course of its respective
business and the Lien on any such property is created contemporaneously with
such acquisition;
(2) The obligation secured by any Lien so created,
assumed, or existing shall not exceed one hundred (100%) percent of lesser of
cost or fair market value of the property acquired as of the time of the
Borrower or the Guarantor acquiring the same;
(3) Each such Lien shall attach only to the property
so acquired and fixed improvements thereon; and
(4) The obligation secured by such Lien is permitted
by the provisions of Section 5.02(b) and the related expenditure is permitted by
the provisions of Section 5.03(b).
(b) DEBT. Create, incur, assume, or suffer to exist, any Debt, except:
(i) Debt of the Borrower under this Agreement or the Notes;
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(ii) Debt described in Schedule 5.02(b),which Debt may be
renewed, extended or refinanced on terms no less favorable to the Borrower or
applicable Guarantor than the current terms of such Debt;
(iii) Subordinated Debt;
(iv) Accounts payable to trade creditors for goods or services
and current operating liabilities (other than for borrowed money), in each case
incurred and paid in the ordinary course of business;
(v) Debt of the Borrower or any Guarantor secured by purchase
money Liens permitted by Section 5.02(a)(ix);
(vi) Debt evidenced by the Senior Notes;
(vii) Intentionally omitted;
(viii) Intercompany Debt; and
(ix) short term unsecured Debt of up to $20,000,000.00 (i.e.
indebtedness with a final maturity not exceeding 364 days from the date of
incurrence of such indebtedness).
(c) MERGER; ACQUISITIONS. (x) Other than in connection with Permitted
Acquisitions, merge into, or consolidate with or into, or have merged into it,
any Person; and, for the purpose of this subsection (c), the acquisition or sale
by the Borrower or any Guarantor by lease, purchase or otherwise, of all, or
substantially all, of the common stock or the assets of any Person or of it
shall be deemed a merger of such Person with the Borrower or any Guarantor,
provided that (i) the Borrower may merge with any Guarantor, provided the
Borrower is the surviving entity and (iii) any Guarantor may merge with any
other Guarantor.
(y) Make any Acquisition other than a Permitted Acquisition.
(d) SALE OF ASSETS, ETC. Sell, assign, transfer, lease or otherwise
dispose of any of its assets, (including a saleleaseback transaction) with or
without recourse, except for (i) inventory disposed of in the ordinary course of
business; (ii) the sale or other disposition of assets no longer used or useful
in the conduct of its business; (iii) Permitted Equipment Sales, (iv) a
Permitted Real Estate Sale and (v) sales of assets between the Borrower and a
Guarantor or between Guarantors, or sale of assets by an inactive Subsidiary of
the Borrower or a Guarantor to the Borrower or a Guarantor.
(e) INVESTMENTS, ETC. Make any Investment other than Permitted
Investments.
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(f) TRANSACTIONS WITH AFFILIATES. Except as otherwise expressly
permitted by this Agreement or except in the ordinary course of business and
pursuant to the reasonable requirements of the Borrower's, a Guarantor's or a
Subsidiary's business and upon fair and reasonable terms no less favorable to
the Borrower or a Guarantor or a Subsidiary than would be obtained in a
comparable arm's length transaction with a Person not an Affiliate, enter into
any transaction, including, without limitation, the purchase, sale, or exchange
of property or the rendering of any service, with any Affiliate, provided
however, in no event shall the Borrower or any Guarantor engage in any
transaction with a Subsidiary of the Borrower or a Guarantor which Subsidiary is
not a Guarantor.
(g) PREPAYMENT OF OUTSTANDING DEBT. Pay, in whole or in part, any
outstanding Debt of the Borrower or a Guarantor, which by its terms is not then
due and payable other than (i) Debt owing to the Lenders, (ii) Intercompany Debt
and (iii) accounts payable and other trade payables.
(h) GUARANTEES. Guaranty, or in any other way become directly or
contingently obligated for any Debt of any other Person (including any
agreements relating to working capital maintenance, take or pay contracts or
similar arrangements) other than (i) the endorsement of negotiable instruments
for deposit in the ordinary course of business; (ii) guarantees existing on the
date hereof and set forth in Schedule 5.02(h) annexed hereto; or (iii)
guarantees of any Debt permitted under Section 5.02(b) of this Agreement.
(i) CHANGE OF BUSINESS. Materially alter the nature of its business.
(j) FISCAL YEAR. Change the ending date of its fiscal year from
December 31.
(k) Intentionally omitted.
(l) ACCOUNTING POLICIES. Change any accounting policies, except as
permitted by GAAP.
(m) DIVIDENDS, ETC. If an Event of Default has occurred and is
continuing, or after giving effect to the proposed action described in this
Section 5.02(m) an Event of Default would occur, declare or pay any dividends,
purchase, redeem, retire or otherwise acquire for value any of its capital stock
now or hereafter outstanding, or make any distribution of assets to its
stockholders as such, whether in cash, assets, or in obligations of the Borrower
or a Guarantor; or allocate or otherwise set apart any sum for the payment of
any dividend or distribution on, or for the purchase, redemption or retirement
of any shares of its capital stock; or make any other distribution by reduction
of capital or otherwise in respect of any share of its capital stock, except any
Subsidiary may pay dividends to its shareholder(s).
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(n) CHANGE IN CONTROL. (a) Permit any Person or "group" (within the
meaning of Section 13(d)-3 under the Securities Exchange Act of 1934 and the
rules of the Securities and Exchange Commission as in effect on the date
hereof), other than the members of management of the Borrower and the directors
of the Borrower, each as in office on the date of this Agreement, to own more
than fifty (50%) percent of the outstanding voting securities of the Borrower.
(b) Permit any nominees other than nominees nominated by the existing board of
directors of the Borrower to hold a majority of the seats on the board of
directors of the Borrower.
(o) HAZARDOUS MATERIAL. The Borrower, each Guarantor and each
Subsidiary of the Borrower or a Guarantor shall not cause or permit any property
owned or occupied by the Borrower, a Guarantor or any such Subsidiary to be used
to generate, manufacture, refine, transport, treat, store, handle, dispose,
transfer, produce or process Hazardous Materials, except in compliance with all
applicable federal, state and local laws or regulations; nor shall the Borrower,
a Guarantor or any such Subsidiary cause or permit, as a result of any
intentional or unintentional act or omission on the part of the Borrower, such
Guarantor or any such Subsidiary or any tenant or subtenant, a release of
Hazardous Materials onto any property owned or occupied by the Borrower, such
Guarantor or any such Subsidiary or onto any other property other than in
compliance with all applicable federal, state and local laws or regulations; nor
shall the Borrower, the Guarantors and each such Subsidiary fail to comply in
all material respects with all applicable federal, state and local laws,
ordinances, rules and regulations, whenever and by whomever triggered, nor fail
to obtain and comply in all material respects with, any and all approvals,
registrations or permits required thereunder. The Borrower and the Guarantors
shall execute any documentation reasonably required by the Agent in connection
with the representations, warranties and covenants contained in this paragraph
and Section 4.01 of this Agreement.
(p) LIMITATIONS ON CONSOLIDATED FOREIGN ASSETS AND REVENUES. (i) Have
more than fifteen (15%) percent of the consolidated assets or revenues of the
Borrower and its Consolidated Subsidiaries be located in, or derived from,
locations other than the United States.
(ii) Have more than ten (10%) percent of the consolidated
assets or revenues of the Borrower and its Consolidated Subsidiaries be held by,
or produced by, any Foreign Subsidiary.
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SECTION 5.03. FINANCIAL REQUIREMENTS. So long as any amount shall
remain outstanding under the Revolving Credit Note, or there is any Outstanding
L/C Exposure, or so long as the Commitment shall remain in effect:
(a) MINIMUM CONSOLIDATED TANGIBLE NET WORTH. The Borrower will maintain
Consolidated Tangible Net Worth ("CTNW") of not less than the amounts set forth
below for the periods set forth below (to be tested quarterly):
PERIOD MINIMUM CTNW
Closing Date to 12/30/04 $80,000,000.00
12/31/04 to 12/30/05 $80,000,000.00 PLUS
and for each succeeding 50% of the Borrower's
period beginning on each aggregate Consolidated Net
December 31 and ending on Income for each fiscal year
the next December 30 during which this Agreement
remains in effect. A net loss
for any fiscal year shall
not reduce the minimum CTNW
for such year and any
subsequent year.
(b) CONSOLIDATED FIXED CHARGE RATIO. The Borrower will maintain at all
times a Consolidated Fixed Charge Ratio of not less than 1.25 to 1.
(c) FUNDED DEBT TO EBITDA RATIO. The Borrower will maintain at all
times a Funded Debt to EBITDA Ratio of not greater than 2.75 to 1.00 (to be
tested quarterly on a rolling 4 quarter basis).
(THE BALANCE OF THIS PAGE IS INTENTIONALLY BLANK)
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ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. EVENTS OF DEFAULT. If any of the following events
("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay (i) any installment of
principal of any Revolving Credit Note when due, (ii) any amounts due in
connection with any Letter of Credit or B/A when due or (iii) any interest, fees
or other amounts owed in connection with this Agreement within five (5) days of
when such payment is due; or
(b) Any representation or warranty made by the Borrower or a
Guarantor herein or in the Loan Documents or which is contained in any
certificate, document, opinion, or financial or other statement furnished at any
time under or in connection with any Loan Document shall prove to have been
incorrect in any material respect when made; or
(c) The Borrower or a Guarantor shall (i) fail to perform or
observe any term, covenant or agreement contained in Sections 5.01(a), (c), (e),
(f), (h), (i), or (j) of this Agreement for twenty (20) days after such
performance or observation is required, or (ii) fail to perform or observe any
other term, covenant, or agreement contained in this Agreement in any other Loan
Document (other than the Notes) on its part to be performed or observed; or
(d) The Borrower, a Guarantor, or any Subsidiary of the
Borrower or a Guarantor shall fail to pay any Debt or Debts, or principal
installments thereon, which Debt or Debts are in the aggregate principal amount
of $500,000.00 or more (excluding Debt evidenced by the Notes) of the Borrower,
a Guarantor or any such Subsidiary (as the case may be), or any interest or
premium thereon, when due (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise) and such failure shall continue after the
applicable grace period, if any, specified in the agreement or instrument
relating to such Debt; or any other default under any agreement or instrument
relating to any such Debt, or any other event shall occur and shall continue
after the applicable grace period, if any, specified in such agreement or
instrument, if the effect of such default or event is to accelerate, or to
permit the acceleration of, the maturity of such Debt; or any such Debt shall be
declared to be due and payable, or required to be prepaid (other than by a
regularly scheduled required prepayment), prior to the stated maturity thereof;
or
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(e) The Borrower, any Guarantor or any Subsidiary of the
Borrower or any Guarantor shall generally not pay its Debts as such Debts become
due, or shall admit in writing its inability to pay its Debts generally, or
shall make a general assignment for the benefit of creditors; or any proceeding
shall be instituted by or against the Borrower, any Guarantor or any such
Subsidiary seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment, protection,
relief, or composition of it or its Debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver, trustee, or other similar
official for it or for any substantial part of its property and if instituted
against the Borrower, any Guarantor or any such Subsidiary shall remain
undismissed for a period of 60 days; or the Borrower, any Guarantor or any such
Subsidiary shall take any action to authorize any of the actions set forth above
in this subsection (e); or
(f) Any judgment or order or combination of judgments or
orders for the payment of money, in excess of $500,000.00 in the aggregate,
which sum shall not be subject to full, complete and effective insurance
coverage (subject to deductibles), shall be rendered against the Borrower, any
Guarantor or any Subsidiary of the Borrower or any Guarantor and either (i)
enforcement proceedings shall have been commenced by any creditor upon such
judgment or order or (ii) there shall be any period of 30 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
(g) Any Guarantor shall fail to perform or observe any term or
provision of its Guaranty or any representation or warranty made by such
Guarantor (or any of its officers) in connection with such Guarantor's Guaranty
shall prove to have been incorrect in any material respect when made; or
(h) Any of the following events occur or exist with respect to
the Borrower, any Guarantor, any Subsidiary of the Borrower or any Guarantor, or
any ERISA Affiliate: (i) any Prohibited Transaction involving any Plan; (ii) any
Reportable Event with respect to any Plan; (iii) the filing under Section 4041
of ERISA of a notice of intent to terminate any Plan or the termination of any
Plan; (iv) any event or circumstance that might constitute grounds entitling the
PBGC to institute proceedings under Section 4042 of ERISA for the termination
of, or for the appointment of a trustee to administer, any Plan, or the
institution of the PBGC of any such proceedings; (v) complete or partial
withdrawal under Section 4201 or 4204 of ERISA from a Multiemployer Plan or the
reorganization insolvency, or termination of any Multiemployer Plan; and in each
case above, such event or condition, together with all other events or
conditions, if any, could in the opinion of the Agent subject the Borrower, any
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Guarantor, any such Subsidiary or any ERISA Affiliate to any tax, penalty, or
other liability to a Plan, a Multiemployer Plan, the PBGC, or otherwise (or any
combination thereof) which in the aggregate exceeds or may exceed $250,000.00;
or
(i) This Agreement or any other Loan Document, at any time
after its execution and delivery and for any reason, ceases to be in full force
and effect or shall be declared to be null and void, or the validity or
enforceability of any document or instrument delivered pursuant to this
Agreement shall be contested by the Borrower, any Guarantor or any party to such
document or instrument or the Borrower, any Guarantor or any party to such
document or instrument shall deny that it has any or further liability or
obligation under any such document or instrument; or
(j) An event of default specified in any Loan Document other
than this Agreement shall have occurred and be continuing.
SECTION 6.02. REMEDIES ON DEFAULT. Upon the occurrence and continuance
of an Event of Default the Agent may, and at the request of the Required Lenders
shall, by notice to the Borrower, take any or all of the following actions, (i)
terminate the Commitments, (ii) demand cash collateral in the full amount of the
Outstanding L/C Exposure, (iii) declare the Notes, all interest thereon and all
other amounts payable under this Agreement to be forthwith due and payable,
whereupon the Commitments shall be terminated, the cash collateral shall be due,
the Revolving Credit Notes, all such interest and all such amounts shall become
and be forthwith due and payable, without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by the
Borrower and (iv) proceed to enforce its rights whether by suit in equity or by
action at law, whether for specific performance of any covenant or agreement
contained in this Agreement or any Loan Document, or in aid of the exercise of
any power granted in either this Agreement or any Loan Document or proceed to
obtain judgment or any other relief whatsoever appropriate to the enforcement of
its rights, or proceed to enforce any other legal or equitable right which the
Agent may have by reason of the occurrence of any Event of Default hereunder or
under any Loan Document, provided, however, upon the occurrence of an Event of
Default referred to in Section 6.01(e), the Commitments shall be immediately
terminated, the cash collateral shall be immediately due, the Revolving Credit
Notes, all interest thereon and all other amounts payable under this Agreement
shall be immediately due and payable without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by the
Borrower. Any amounts collected pursuant to action taken under this Section 6.02
shall be applied to the payment of, first, any costs incurred by the Agent in
taking such action, including, but without limitation, reasonable attorneys fees
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and expenses, second, to cash collateral for the Outstanding L/C Exposure,
third, to payment of the accrued but unpaid interest on the Revolving Credit
Notes, and fourth, to payment of the unpaid principal of the Revolving Credit
Notes.
SECTION 6.03. REMEDIES CUMULATIVE. No remedy conferred upon or reserved
to the Agent or the Lenders hereunder or in any Loan Document is intended to be
exclusive of any other available remedy, but each and every such remedy shall be
cumulative and in addition to every other remedy given under this Agreement or
any Loan Document or now or hereafter existing at law or in equity. No delay or
omission to exercise any right or power accruing upon any Event of Default shall
impair any such right or power or shall be construed to be a waiver thereof, but
any such right and power may be exercised from time to time and as often as may
be deemed expedient. In order to entitle the Agent or any Lender to exercise any
remedy reserved to it in this Article VI, it shall not be necessary to give any
notice, other than such notice as may be herein expressly required in this
Agreement or in any Loan Document.
(THE BALANCE OF THIS PAGE IS INTENTIONALLY BLANK)
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ARTICLE VII
THE AGENT; RELATIONS AMONG LENDERS AND BORROWER
SECTION 7.01. APPOINTMENT, POWERS AND IMMUNITIES OF AGENT. Each Lender
hereby irrevocably appoints and authorizes the Agent to act as the Agent
hereunder and under any other Loan Document with such powers as are specifically
delegated to the Agent by the terms of this Agreement and any other Loan
Document, together with such other powers as are reasonably incidental thereto.
The Agent shall have no duties or responsibilities except those expressly set
forth in this Agreement and any other Loan Document, and shall not by reason of
this Agreement be a trustee or fiduciary for any Lender. The Agent shall not be
responsible to the Lenders for any recitals, statements, representations or
warranties made by the Borrower or the Guarantors, or any officer or official of
the Borrower or Guarantors, or any of them, or any other Person contained in
this Agreement or any other Loan Document, or in any certificate or other
document or instrument referred to or provided for in, or received by any of
them under, this Agreement or any other Loan Document, or for the value,
legality, validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any other Loan Document or any other document or instrument
referred to or provided for herein or therein, except as explicitly provided
herein, or for the failure by the Borrower, the Guarantors, or any of them to
perform any of their or its respective obligations hereunder or thereunder. The
Agent may employ agents and attorneys-in-fact and shall not be responsible,
except as to money or securities received by it or its authorized agents, for
the negligence or misconduct of any such agents or attorneys-in-fact selected by
it with reasonable care. Except as otherwise explicitly provided herein, neither
Agent nor any of their directors, officers, employees or agents shall be liable
or responsible to any Lender for any action taken or omitted to be taken by it
or them hereunder or under any other Loan Document or in connection herewith or
therewith, except for its or their own gross negligence or willful misconduct.
The Borrower shall pay any fee agreed to by the Borrower and the Agent with
respect to the Agent's services hereunder.
SECTION 7.02. RELIANCE BY AGENT. The Agent shall be entitled to rely
upon any certification, notice or other communication (including any thereof by
telephone, telex, telegram or cable) believed by it to be genuine and correct
and to have been signed or sent by or on behalf of the proper Person or Persons,
and upon advice and statements of legal counsel, independent accountants and
other experts selected by the Agent with reasonable care. The Agent may deem and
treat each Lender as the holder of the Loans made by it for all purposes hereof
unless and until a notice of the permitted transfer thereof satisfactory to the
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Agent and signed by such Lender shall have been furnished to the Agent but the
Agent shall not be required to deal with any Person who has acquired a
participation in any Loan from a Lender. As to any matters not expressly
provided for by this Agreement or any other Loan Document, the Agent shall in
all cases be fully protected in acting, or in refraining from acting, hereunder
in accordance with instructions signed by the Required Lenders, and such
instructions of the Required Lenders and any action taken or failure to act
pursuant thereto shall be binding on all of the Lenders and any other holder of
all or any portion of any Loan.
SECTION 7.03. DEFAULTS. The Agent shall not be deemed to have knowledge
of the occurrence of a Default or Event of Default (other than the non-payment
of principal of or interest on the Loans or the non-payment of fees due
hereunder) unless the Agent has actual knowledge of such Default or Event of
Default or has received notice from a Lender or a Borrower specifying such
Default or Event of Default and stating that such notice is a "Notice of
Default." In the event that the Agent receives such a notice of, or otherwise
has actual knowledge of the occurrence of, a Default or Event of Default, the
Agent shall give prompt notice thereof to the Lenders (and shall give each
Lender prompt notice of each such non-payment). The Agent shall (subject to
Section 7.08 and Section 8.01 hereof) take such action with respect to such
Default or Event of Default which is continuing as shall be directed by the
Required Lenders; provided that, unless and until the Agent shall have received
such directions, the Agent may take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it shall deem
advisable in the best interest of the Lenders; and provided further that the
Agent shall not be required to take any such action which it determines to be
contrary to law.
SECTION 7.04. RIGHTS OF AGENT AS A LENDER. With respect to the Loans
made by it, any Person which is the Agent in its capacity as a Lender hereunder
shall have the same rights and powers hereunder as any other Lender and may
exercise the same as though it were not acting as an Agent, and the term
"Lender" or "Lenders" shall, unless the context otherwise indicates, include any
Person which is an Agent in its capacity as a Lender. The Agent or any Lender
and their respective Affiliates may (without having to account therefor to any
other Lender except as otherwise expressly provided in this Agreement) accept
deposits from, lend money to (on a secured or unsecured basis but subject to the
provisions of Section 5.02(a) and (b) of this Agreement), and generally engage
in any kind of banking, trust or other business with, the Borrower, the
Guarantors or any of them (and any of their Affiliates); PROVIDED that no
payment or lien priority (other than purchase money liens on equipment being
financed by such Lender) shall be given to the Agent or to any Lender for any
other transaction without the express written approval of all of the other
Lenders. In the case of the Agent, it may do so as if it were not acting as
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Agent hereunder, and the Agent may accept fees and other consideration from the
Borrower, the Guarantors or any of them for services in connection with this
Agreement or otherwise without having to account for the same to the Lenders.
Although the Agent or a Lender or any of their respective Affiliates may in the
course of such relationships and relationships with other Persons acquire
information about the Borrower, the Guarantors, their Affiliates and such other
Persons, neither the Agent nor such Lender shall have any duty to the other
Lenders or the Agent to disclose such information to the other Lenders or the
Agent except as otherwise provided herein with respect to the occurrence of an
Event of Default.
SECTION 7.05. INDEMNIFICATION OF AGENT. The Lenders agree to indemnify
the Agent and its directors, officers, employees, agents and Affiliates (the
"Indemnitees") (to the extent not reimbursed under Section 8.04 hereof or under
the applicable provisions of any other Loan Document, but without limiting the
obligations of the Borrower and Guarantors under Section 8.04 hereof or such
provisions), ratably in accordance with their Pro Rata Shares of the Total
Commitment (without giving effect to any participation in all or any portion of
the Total Commitment sold by them to any other Person), for any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against the Indemnitees in any way relating
to or arising out of this Agreement, any other Loan Document or any other
documents contemplated by or referred to herein or the transactions contemplated
hereby or thereby (including, without limitation, the costs and expenses which
the Borrower and Guarantors are obligated to pay under Section 8.04 hereof or
under the applicable provisions of any other Loan Document but excluding, unless
a Default or Event of Default has occurred, normal administrative costs and
expenses incidental to the performance of its agency duties hereunder) or the
enforcement of any of the terms hereof or thereof or of any such other documents
or instruments; provided that no Lender shall be liable for any of the foregoing
to the extent they arise from the gross negligence or willful misconduct of an
Indemnitee.
SECTION 7.06. DOCUMENTS. It is the responsibility of the Borrower to
forward to each Lender, on or before the due dates set forth herein, a copy of
each report, notice (other than notices of borrowings and payments) or other
document required by this Agreement or any other Loan Document to be delivered
to the Agent. Neither Agent is responsible for forwarding such information to
the Lenders.
SECTION 7.07. NON-RELIANCE ON AGENT AND OTHER LENDERS. Each Lender
agrees that it has, independently and without reliance on the Agent or any other
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Lender, and based on such documents and information as it has deemed
appropriate, made its own credit analysis of the Borrower, the Guarantors and
their Subsidiaries and decision to enter into this Agreement and that it will,
independently and without reliance upon the Agent or any other Lender, and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own analysis and decisions in taking or not taking action
under this Agreement or any other Loan Document. Neither Agent shall be required
to keep itself informed as to the performance or observance by the Borrower or
Guarantors of this Agreement or any other Loan Document or any other document
referred to or provided for herein or therein or to inspect the properties or
books of the Borrower, the Guarantors or any Subsidiary of the Borrower or any
Guarantor. Except for notices, reports and other documents and information
expressly required to be furnished to the Lenders by the Agent hereunder, the
Agent shall not have any duty or responsibility to any other Lender to provide
any Lender with any credit or other information concerning the affairs,
financial condition or business of the Borrower, the Guarantors or any
Subsidiary (or any of their Affiliates) which may come into the possession of
the Agent or of its Affiliates. The Agent shall not be required to file this
Agreement, any other Loan Document or any document or instrument referred to
herein or therein, or record or give notice of this Agreement, any other Loan
Document or any document or instrument referred to herein or therein, to any
Person.
SECTION 7.08. FAILURE OF AGENT TO ACT. Except for action expressly
required of the Agent hereunder, the Agent shall in all cases be fully justified
in failing or refusing to act hereunder unless it shall have received further
assurances (which may include cash collateral) of the indemnification
obligations of the Lenders under Section 7.05 hereof in respect of any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action.
SECTION 7.09. RESIGNATION OF AGENT. Subject to the appointment and
acceptance of a successor Agent as provided below, the Agent may resign at any
time by giving written notice thereof to the Lenders and the Borrower. Upon any
such resignation, the Required Lenders shall have the right to appoint a
successor Agent, which shall be a Lender which has an office in New York, New
York and, provided no Event of Default has occurred and is continuing, which
shall be reasonably acceptable to the Borrower, such acceptance not to be
unreasonably withheld or delayed. If no successor Agent shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Agent's giving of notice of resignation, then
the retiring Agent may, on behalf of the Lenders, appoint a successor Agent,
which shall be a Lender which has an office in New York, New York and, provided
no Event of Default has occurred and is continuing, which shall be reasonably
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acceptable to the Borrower, such acceptance not to be unreasonably withheld or
delayed. The Required Lenders or the retiring Agent shall upon the appointment
of a successor Agent promptly so notify the Borrower, the Guarantors and the
other Lenders. 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
hereunder. After any retiring Agent's resignation as Agent the provisions of
this Article 7 shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as the Agent.
SECTION 7.10. AMENDMENTS CONCERNING AGENCY FUNCTION. The Agent shall
not be bound by any waiver, amendment, supplement or modification of this
Agreement or any other Loan Document which affects its rights or duties
hereunder or thereunder unless it shall have given its prior written consent
thereto.
SECTION 7.11. LIABILITY OF AGENT. The Agent shall not have any
liabilities or responsibilities to the Borrower, the Guarantors or any of them
on account of the failure of any Lender to perform its obligations hereunder or
to any Lender on account of the failure of the Borrower, the Guarantors or any
of them to perform their or its obligations hereunder or under any other Loan
Document. Nothing herein shall be read to relieve any obligation that the Agent
may have to the Borrower as a Lender hereunder.
SECTION 7.12. TRANSFER OF AGENCY FUNCTION. Without the consent of the
Borrower, the Guarantors or any Lender, the Agent may at any time or from time
to time transfer its functions as Agent hereunder to any of its offices located
in the New York metropolitan area, provided that the Agent shall promptly notify
the Borrower, the Guarantors and the Lenders thereof.
SECTION 7.13. WITHHOLDING TAXES. Each Lender represents that it is
entitled to receive any payments to be made to it hereunder without the
withholding of any tax and will furnish to the Agent such forms, certifications,
statements and other documents as the Agent may request from time to time to
evidence such Lender's exemption from the withholding of any tax imposed by any
jurisdiction or to enable the Agent to comply with any applicable laws or
regulations relating thereto. Without limiting the effect of the foregoing, if
any Lender is not created or organized under the laws of the United States of
America or any state thereof, in the event that the payment of interest by the
Borrower is treated for U.S. income tax purposes as derived in whole or in part
from sources from within the United States, such Lender will furnish to the
Agent Form W-8BEN or Form W-8ECI of the Internal Revenue Service, or such other
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forms, certifications, statements or documents, duly executed and completed by
such Lender as evidence of such Lender's exemption from the withholding of
United States tax with respect thereto. The Agent shall not be obligated to make
any payments hereunder to such Lender in respect of any Loan until such Lender
shall have furnished to the Agent the requested form, certification, statement
or document.
SECTION 7.14. SEVERAL OBLIGATIONS AND RIGHTS OF LENDERS. The failure of
any Lender to make any Loan to be made by it on the date specified therefor
shall not relieve any other Lender of its obligation to make its Loan on such
date, but no Lender shall be responsible for the failure of any other Lender to
make a Loan to be made by such other Lender.
SECTION 7.15. PRO RATA TREATMENT OF LOANS, ETC. Except to the extent
otherwise provided, each prepayment and payment of principal of, or interest on,
Loans of a particular type and a particular Interest Period, if any, and each
payment of fees or other amounts due hereunder shall be made to the Agent for
the account of the Lenders holding Loans of such type and Interest Period, if
any, pro rata (except for payments made under the Fee Letter, which shall be
retained by the Agent for its own account, and unless otherwise expressly
provided otherwise in this Agreement) in accordance with the respective unpaid
principal amounts for such Loans of such Interest Period held by such Lenders.
SECTION 7.16. SHARING OF PAYMENTS AMONG LENDERS. If a Lender shall
obtain payment of any principal of or interest on any Loan any fee due
hereunder, made by it through the exercise of any right of setoff, banker's
lien, counterclaim, or any other means, it shall share such payment with the
other Lenders and the amount of such payment shall be applied to reduce the
Loans of all the Lenders pro rata in accordance with the unpaid principal on the
Loans held by each of them, and make such other adjustments from time to time as
shall be equitable to the end that all the Lenders shall share the benefit of
such payment (net of any expenses which may be incurred by such Lender in
obtaining or preserving such benefit) pro rata in accordance with the unpaid
principal and interest on the Loans held by each of them. To such end the
Lenders shall make appropriate adjustments among themselves if such payment is
rescinded or must otherwise be restored. The Borrower agrees that any Lender so
purchasing a participation (or direct interest) in the Loans made by the other
Lenders may exercise all rights of set off, banker's lien, counterclaim or
similar rights with respect to such participation (or direct interest). Nothing
contained herein shall require any Lender to exercise any such right or shall
affect the right of any Lender to exercise, and retain the benefits of
exercising, any such right with respect to any other indebtedness of the
Borrower. Notwithstanding the foregoing or any other provision of this
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Agreement, no right or remedy of any Lender relating to any assets of the
Borrower (including real property, improvements or fixtures) not covered by this
Agreement or the other Loan Documents shall in any way be affected by this
Agreement or otherwise with respect to any other indebtedness of the Borrower to
any of the Lenders.
SECTION 7.17. NONRECEIPT OF FUNDS BY AGENT; PAYMENTS TO LENDERS. (a)
Unless the Agent shall have received notice from the Borrower prior to the date
on which any payment is due to the Lenders hereunder that the Borrower will not
make such payment in full, the Agent may assume that the Borrower has made such
payment in full to the Agent on such date and the Agent in its sole discretion
may, but shall not be obligated to, in reliance upon such assumption, cause to
be distributed to each Lender on such due date an amount equal to the amount
then due such Lender. If and to the extent that the Borrower shall not have so
made such payment in full to the Agent, such Lender agrees to repay to the Agent
on demand such amount and if for any reason the Agent does not receive such
amount from such Lender on the day of such demand, if such demand is made before
2:00 p.m. on such day, or on the next Business Day if demand is made after 2:00
p.m. on such day, such Lender shall repay to the Agent forthwith on demand such
amount distributed to such Lender together with interest thereon, for each day
from the date such amount is distributed to such Lender until the date such
Lender repays such amount to the Agent, at the customary rate set by the Agent
for the correction of errors among lenders for three (3) Business Days and
thereafter at the interest rate applicable to the obligation that was not repaid
by the Borrower, or if no such rate was in effect, at the Alternate Base Rate.
(b) If the Agent shall fail to pay any amounts owing by the Agent to a
Lender as promptly as may be required by this Agreement, the Agent shall pay to
such Lender, on its demand, interest on such delinquent amount at the customary
rate set by the Agent for the correction of errors among lenders for three (3)
Business Days and thereafter at the Alternate Base Rate.
(THE BALANCE OF THIS PAGE IS INTENTIONALLY BLANK)
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ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. AMENDMENTS, ETC. Except as otherwise expressly provided
in this Agreement, any provision of this Agreement may be amended or modified
only by an instrument in writing signed by the Borrower, the Guarantors, the
Agent and the Required Lenders, and any provision of this Agreement may be
waived by the Borrower (if such provision requires performance by the Agent or
the Lenders) or by the Agent acting with the consent of the Required Lenders (if
such provision requires performance by the Borrower or any Guarantor); PROVIDED
that no amendment, modification or waiver shall, unless by an instrument signed
by all of the Lenders or by the Agent acting with the consent of all of the
Lenders result in: (1) a reduction in the principal amount of the Revolving
Credit Loans or Outstanding L/C Exposure or extension of the Maturity Date; (2)
a reduction in the rate of interest other than as expressly permitted herein or
reduction of any Loan or any fee or any extension of any due date thereof; (3)
an increase in the amount of the Total Commitment; (4) a change in the duration
or the amount of any Lender's Commitment; (5) a modification of the definition
of "Required Lenders" or any provision of this Section 8.01; (6) the assignment
or transfer by the Borrower of any of its rights and obligations under the Loan
Documents; or (7) releases of any Guarantors.
SECTION 8.02. NOTICES, ETC. All notices and other communications
provided for hereunder shall be in writing (including telegraphic communication)
and mailed, telegraphed, sent by facsimile or delivered, if to the Borrower or a
Guarantor, at the address of the Borrower or Guarantor, as the case may be, set
forth at the beginning of this Agreement and if to the Agent or any of the
Lenders, at the addresses of the Agent and the Lenders set forth at the
beginning of this Agreement to the attention of Del Laboratories, Inc. Account
Officer, or, as to each party, at such other address as shall be designated by
such party in a written notice complying as to delivery with the terms of this
Section 8.02 to the other parties. All such notices and communications shall be
effective two (2) days after mailing or when telegraphed, telecopied or
delivered, except that notices to the Agent or Lender shall not be effective
until actually received by the Agent or such Lender.
SECTION 8.03. NO WAIVER, REMEDIES. No failure on the part of either
Agent or any Lender to exercise, and no delay in exercising, any right, power or
remedy under any Loan Document, shall operate as a waiver thereof; nor shall any
single or partial exercise of any right under any Loan Document preclude any
other or further exercise thereof or the exercise of any other right. The
remedies provided in the Loan Documents are cumulative and not exclusive of any
remedies provided by law.
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SECTION 8.04. COSTS AND EXPENSES. The Borrower agrees to pay on demand
all reasonable costs and expenses of the Agent in connection with the
preparation, execution, delivery and administration of this Agreement, the
Revolving Credit Notes and any other Loan Documents, including, without
limitation, the reasonable fees and expenses of counsel for the Agent with
respect thereto and with respect to advising the Agent as to its rights and
responsibilities under this Agreement, and all costs and expenses, if any
(including reasonable counsel fees and expenses), of the Agent and the Lenders
in connection with the enforcement of this Agreement, the Revolving Credit Notes
and any other Loan Documents. The Borrower and each Guarantor, jointly and
severally, shall at all times protect, indemnify, defend and save harmless the
Agent and the Lenders from and against any and all claims, actions, suits and
other legal proceedings, and liabilities, obligations, losses, damages,
penalties, judgments, costs, expenses or disbursements which the Agent or any of
the Lenders may, at any time, sustain or incur by reason of or in consequence of
or arising out of the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby except as herein provided.
The Borrower and each Guarantor acknowledge that it is the intention of the
parties hereto that this Agreement shall be construed and applied to protect and
indemnify the Agent and the Lenders against any and all risks involved in the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby, all of which risks are hereby assumed by the
Borrower and the Guarantors, including, without limitation, any and all risks of
the acts or omissions, whether rightful or wrongful, of any present or future DE
JURE or DE FACTO government or governmental authority, provided that neither the
Borrower nor any Guarantor shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Agent's or any Lender's gross
negligence or willful misconduct. The provisions of this Section 8.04 shall
survive the payment of the Notes and the termination of this Agreement.
SECTION 8.05. RIGHT OF SET-OFF. Upon the occurrence and during the
continuance of any Event of Default, each Lender is hereby authorized at any
time and from time to time, to the fullest extent permitted by law, 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 such
Lender, or any Affiliate of such Lender to or for the credit or the account of
the Borrower or any Guarantor against any and all of the obligations of the
Borrower or the Guarantors now or hereafter existing under this Agreement and
the Revolving Credit Notes, irrespective of whether or not the Agent shall have
made any demand under this Agreement or the Revolving Credit Notes and although
such obligations may be unmatured. The rights of the Agent and the Lenders under
this Section are in addition to all other rights and remedies (including,
without limitation, other rights of set-off) which they may have.
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SECTION 8.06. BINDING EFFECT. This Agreement shall become effective
when it shall have been executed by the Borrower, the Guarantors, the Agent and
the Lenders and thereafter it shall be binding upon and inure to the benefit of
the Borrower, the Guarantors, the Agent and the Lenders and their respective
permitted successors and assigns.
SECTION 8.07. SUCCESSORS AND ASSIGNS. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective permitted successors and assigns, except that the Borrower
may not assign or otherwise transfer any of its rights or obligations under this
Agreement without the prior written consent of all Lenders.
(b) Any Lender may at any time grant to one or more lenders or other
institutions (each a "Participant") participating interests in its Commitment or
any or all of its Loans or its obligations in connection with Letters of Credit.
In the event of any such grant by a Lender of a participating interest to a
Participant, whether or not upon notice to the Borrowers and the Agent, such
Lender shall remain responsible for the performance of its obligations
hereunder, and the Borrower and the Agent shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement pursuant to which any Lender may
grant such a participating interest shall provide that such Lender shall retain
the sole right and responsibility to enforce the obligations of the Borrower
hereunder including, without limitation, the right to approve any amendment,
modification or waiver of any provision of this Agreement. The Borrower agrees
that each Participant shall, to the extent provided in its participation
agreement, be entitled to the benefits of Section 8.05 of this Agreement and
this subparagraph (b) with respect to its participating interest. An assignment
or other transfer which is not permitted by subsection (c) or (d) below shall be
given effect for purposes of this Agreement only to the extent of a
participating interest granted in accordance with this subsection (b).
(c) (i) Any Lender may at any time assign to one or more lenders or
other institutions (each an "Assignee") all, or a proportionate part (equivalent
to an initial Commitment of not less than $5,000,000.00) of all, of its rights
and obligations under this Agreement, the Notes and its obligations in
connection with Letters of Credit and/or B/As, and such Assignee shall assume
such rights and obligations, pursuant to an Assignment and Assumption Agreement
in substantially the form of Exhibit B hereto executed by such Assignee and such
transferor Lender, with the subscribed consent of the Agent and, if no Event of
Default has occurred and is continuing, the Borrower, which consent in either
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case shall not be unreasonably withheld. Upon execution and delivery of such
instrument and payment by such Assignee to such transferor Lender of an amount
equal to the purchase price agreed between such transferor Lender and such
Assignee, such Assignee shall be a Lender party to this Agreement and shall have
all the rights and obligations of a Lender with a Commitment as set forth in
such instrument of assumption, and the transferor Lender shall be released from
its obligations hereunder to a corresponding extent, and no further consent or
action by any party shall be required.
(ii) Upon the consummation of any assignment pursuant
to this subsection (c), the transferor Lender, the Agent and the Borrower shall
make appropriate arrangements so that, if required, new Notes are issued to the
Assignor and the Assignee and the Assignor shall surrender its original Note for
cancellation. In connection with any such assignment, the transferor Lender
shall pay to the Agent an administrative fee for processing such assignment in
the amount of $3,000.00 and the reasonable fees of the Agent's counsel. If an
Assignee is not incorporated under the laws of the United States of America or a
state thereof, it shall deliver to the Borrower and the Agent certification as
to exemption from deduction or withholding of any United States federal income
taxes in accordance with Section 7.13 hereof.
(d) Any Lender may at any time assign all or any portion of its rights
under this Agreement and its Notes to a Federal Reserve Bank. No such assignment
shall release the transferor Lender from its obligations hereunder.
SECTION 8.08. FURTHER ASSURANCES. The Borrower and each Guarantor agree
at any time and from time to time at its expense, upon the reasonable request of
the Agent or its counsel, to promptly execute, deliver, or obtain or cause to be
executed, delivered or obtained any and all further instruments and documents
and to take or cause to be taken all such other action the Agent may deem
reasonable and desirable in obtaining the full benefits of, this Agreement or
any other Loan Document.
SECTION 8.09. SECTION HEADINGS, SEVERABILITY, ENTIRE AGREEMENT. Section
and subsection headings have been inserted herein for convenience only and shall
not be construed as part of this Agreement. Every provision of this Agreement
and each Loan Document is intended to be severable; if any term or provision of
this Agreement, any Loan Document, or any other document delivered in connection
herewith shall be invalid, illegal or unenforceable for any reason whatsoever,
the validity, legality and enforceability of the remaining provisions hereof or
thereof shall not in any way be affected or impaired thereby. All exhibits and
schedules to this Agreement shall be annexed hereto and shall be deemed to be
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part of this Agreement. This Agreement and the exhibits and schedules attached
hereto embody the entire Agreement and understanding among the Borrower, the
Guarantors, the Agent and the Lenders and supersede all prior agreements and
understandings relating to the subject matter hereof.
SECTION 8.10. CONFIDENTIALITY. The Agent, the Lenders and each of their
assignees and participants agree to use commercially reasonable efforts
(reasonably equivalent to the efforts the Agent, a Lender or such assignee or
participant applies to maintaining the confidentiality of its own confidential
information) to maintain as confidential all confidential information provided
to them by the Borrower or any of its Subsidiaries, except that the Agent, a
Lender and any assignee or participant may disclose such information (a) to
Persons employed or engaged by the Agent, a Lender or such assignee or
participant in evaluating, approving, structuring or administering this
Agreement, the Loans or its Commitment, provided such Persons have been
instructed to treat such information as confidential in accordance with this
Section 8.10; (b) to any bona fide assignee or participant or potential assignee
or participant that has agreed to comply with the covenant contained in this
Section 8.10 (and any such bona fide assignee or participant or potential
assignee or participant may disclose such information to Persons employed or
engaged by them as described in CLAUSE (A) above); (c) as required or requested
by any governmental authority or reasonably believed by the Agent, a Lender or
such assignee or participant to be compelled by any court decree, subpoena or
legal or administrative order or process; (d) as, in the opinion of the Agent's,
a Lender's or such assignee's or participant's counsel, required by law; (e) in
connection with the exercise of any right or remedy under the Loan Documents or
in connection with any litigation to which the Agent, a Lender or such assignee
or participant is a party arising in connection with any Loan Document; or (f)
which ceases to be confidential through no fault of the Agent, a Lender or such
assignee or participant. In the event that any Lender receives a request or
demand to disclose any confidential information pursuant to any subpoena or
court order, such Lender agrees to the extent permitted by applicable law or if
permitted by applicable law, statute, rule or regulation to the extent such
Lender determines in good faith that it will not create any risk of liability to
such Lender, that such Lender will promptly notify Borrower of such request so
that Borrower may seek a protective order or other appropriate relief or remedy.
SECTION 8.11. GOVERNING LAW; JURISDICTION. (a) This Agreement, the
Revolving Credit Notes and all other Loan Documents shall be governed by, and
construed in accordance with, the laws of the State of New York, without regard
to principles of conflict of laws.
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(b) The Borrower and Guarantors each consent to the
jurisdiction of any United States federal or New York state court sitting in
Nassau or Suffolk County in any action or proceeding brought to enforce any
rights of the Agent and the Banks under this Agreement, the other Loan Documents
and any other document or instrument related hereto.
SECTION 8.12. WAIVER OF JURY TRIAL. THE BORROWER, EACH GUARANTOR, THE
AGENT AND THE LENDERS WAIVE ALL RIGHTS TO TRIAL BY JURY ON ANY CAUSE OF ACTION
DIRECTLY OR INDIRECTLY INVOLVING THE TERMS, COVENANTS OR CONDITIONS OF THIS
AGREEMENT OR ANY LOAN DOCUMENT.
SECTION 8.13. EXECUTION IN COUNTERPARTS. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
(THE BALANCE OF THIS PAGE IS INTENTIONALLY BLANK)
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
DEL LABORATORIES, INC.
By /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Executive Vice President
and Chief Financial Officer
DEL PHARMACEUTICALS, INC.
By /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Executive Vice President
and Chief Financial Officer
PARFUMS SCHIAPARELLI, INC.
By /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Executive Vice President
and Chief Financial Officer
ROYCE & XXXXX, INC.
By /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Executive Vice President
and Chief Financial Officer
565 BROAD HOLLOW REALTY CORP.
By /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Executive Vice President
and Chief Financial Officer
JPMORGAN CHASE BANK, as Agent
By /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Vice President
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JPMORGAN CHASE BANK
By /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Vice President
HSBC BANK USA
By /s/ Xxxx X. Xxxxxxx
Xxxx X. Xxxxxxx
Vice President
BRANCH BANKING AND TRUST COMPANY
By /s/ Xxxxxxxx X. Xxxx, Xx.
Xxxxxxxx X. Xxxx, Xx.
Senior Vice President
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SCHEDULE 1.01
COMMITMENTS OF EACH LENDER
AMOUNT PRO RATA SHARE
JPMorgan Chase Bank $18,000,000.00 40.00%
Branch Banking and
Trust Company $15,000,000.00 33.33%
HSBC Bank USA $12,000,000.00 26.67%
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