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Exhibit 4.1
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AMENDED AND RESTATED
CREDIT AGREEMENT
DATED AS OF JANUARY 8, 1999
AMONG
XXXXXXX & XXXXX, INC.,
THE LENDERS NAMED HEREIN,
BANK ONE, N.A.,
AS ADMINISTRATIVE AGENT AND
ISSUING BANK,
NATIONSBANK, N.A.,
AS DOCUMENTATION AND SYNDICATION AGENT,
THE BANK OF NOVA SCOTIA,
AS ISSUING BANK
AND
ABN AMRO, N.V.,
AS ISSUING BANK
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TABLE OF CONTENTS
Article Section Page
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ARTICLE I DEFINITIONS.......................................................................................... 1
SECTION 1.01. Defined Terms........................................................................... 1
SECTION 1.02. Terms Generally......................................................................... 26
SECTION 1.03. Types of Borrowings..................................................................... 27
ARTICLE II THE CREDITS......................................................................................... 27
SECTION 2.01. Restructuring of Loans.................................................................. 27
SECTION 2.02. Commitment to Make Loans................................................................ 27
SECTION 2.03. Loans................................................................................... 28
SECTION 2.04. Notice of Borrowings.................................................................... 31
SECTION 2.05. Notes; Repayment of Loans............................................................... 31
SECTION 2.06. Fees.................................................................................... 32
SECTION 2.07. Interest on Loans....................................................................... 34
SECTION 2.08. Default Interest........................................................................ 35
SECTION 2.09. Alternate Rate of Interest.............................................................. 35
SECTION 2.10. Termination and Reduction of Commitments; Extension of
Commitments..................................................................... 36
SECTION 2.11. Conversion and Continuation Options..................................................... 36
SECTION 2.12. Mandatory Repayments and Prepayments.................................................... 38
SECTION 2.13. Optional Prepayments.................................................................... 40
SECTION 2.14. Reserve Requirements; Change in Circumstances........................................... 41
SECTION 2.15. Change in Legality...................................................................... 42
SECTION 2.16. Indemnity............................................................................... 43
SECTION 2.17. Pro Rata Treatment...................................................................... 44
SECTION 2.18. Sharing of Setoffs...................................................................... 44
SECTION 2.19. Payments................................................................................ 45
SECTION 2.20. Taxes................................................................................... 46
SECTION 2.21. Assignment of Commitments Under Certain Circumstances;
Duty to Mitigate................................................................ 49
SECTION 2.22. Swingline Loans......................................................................... 50
SECTION 2.23. Letters of Credit....................................................................... 51
SECTION 2.24. Introduction of the Euro................................................................ 56
ARTICLE III REPRESENTATIONS AND WARRANTIES..................................................................... 57
SECTION 3.01. Organization; Powers.................................................................... 57
SECTION 3.02. Authorization........................................................................... 58
SECTION 3.03. Enforceability.......................................................................... 58
SECTION 3.04. Consents and Governmental Approvals..................................................... 58
SECTION 3.05. Financial Statements; Undisclosed Liabilities........................................... 58
SECTION 3.06. No Material Adverse Change.............................................................. 59
SECTION 3.07. Title to Properties; Possession Under Leases............................................ 59
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SECTION 3.08. Subsidiaries............................................................................ 59
SECTION 3.09. Litigation; Compliance with Laws........................................................ 59
SECTION 3.10. Agreements.............................................................................. 60
SECTION 3.11. Federal Reserve Regulations............................................................. 60
SECTION 3.12. Investment Company Act; Public Utility Holding Company
Act............................................................................. 60
SECTION 3.13. Use of Proceeds......................................................................... 61
SECTION 3.14. Tax Returns............................................................................. 61
SECTION 3.15. No Material Misstatements............................................................... 61
SECTION 3.16. Employee Benefit Plans.................................................................. 61
SECTION 3.17. Environmental and Safety Matters........................................................ 62
SECTION 3.18. Security Interests...................................................................... 62
SECTION 3.19. Solvency................................................................................ 63
SECTION 3.20. Transactions with Affiliates and Shareholders........................................... 63
SECTION 3.21. Insurance............................................................................... 64
SECTION 3.22. Labor Matters........................................................................... 64
SECTION 3.23. Covenants Contained in the Original Credit Agreement.................................... 64
SECTION 3.24. Year 2000 Compliance.................................................................... 64
ARTICLE IV CONDITIONS OF LENDING............................................................................... 65
SECTION 4.01. Conditions Precedent to the Effective Date.............................................. 65
SECTION 4.02. All Credit Events....................................................................... 68
ARTICLE V AFFIRMATIVE COVENANTS................................................................................ 69
SECTION 5.01. Existence; Businesses and Properties.................................................... 69
SECTION 5.02. Insurance............................................................................... 69
SECTION 5.03. Obligations and Taxes................................................................... 70
SECTION 5.04. Financial Statements, Reports, etc...................................................... 70
SECTION 5.05. Other Information....................................................................... 72
SECTION 5.06. ERISA................................................................................... 73
SECTION 5.07. Maintaining Records; Access to Properties and Inspections............................... 74
SECTION 5.08. Use of Proceeds......................................................................... 74
SECTION 5.09. Interest Rate Protection Agreements..................................................... 74
SECTION 5.10. Fiscal Year............................................................................. 74
SECTION 5.11. Compliance with Environmental Laws; Preparation of
Environmental Reports........................................................... 74
SECTION 5.12. Subsidiaries............................................................................ 75
SECTION 5.13. Further Assurances...................................................................... 75
SECTION 5.14. Certain Post-Closing Covenants.......................................................... 76
SECTION 5.15. Year 2000 Compliance.................................................................... 76
ARTICLE VI NEGATIVE COVENANTS.................................................................................. 76
SECTION 6.01. Indebtedness............................................................................ 76
SECTION 6.02. Negative Pledge......................................................................... 79
SECTION 6.03. Intentionally Omitted................................................................... 80
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SECTION 6.04. Investments, Loans and Advances......................................................... 80
SECTION 6.05. Mergers, Consolidations, Dispositions and Acquisitions.................................. 83
SECTION 6.06. Dividends, Distributions and Other Restricted Payments.................................. 85
SECTION 6.07. Impairment of Security Interests........................................................ 86
SECTION 6.08. Limitation on Restrictions on Subsidiary Dividends, etc................................. 86
SECTION 6.09. No Other Negative Pledges............................................................... 86
SECTION 6.10. Transactions with Affiliates and Shareholders........................................... 86
SECTION 6.11. Business of Borrower and Subsidiaries................................................... 87
SECTION 6.12. Certain Amendments...................................................................... 87
SECTION 6.13. Capital Expenditures.................................................................... 87
SECTION 6.14. Financial Covenants..................................................................... 87
ARTICLE VII EVENTS OF DEFAULT.................................................................................. 88
ARTICLE VIII THE AGENTS AND ISSUING BANK....................................................................... 92
SECTION 8.01. Appointment and Authorization........................................................... 92
SECTION 8.02. Liability of Agents..................................................................... 92
SECTION 8.03. Action by Agents........................................................................ 93
SECTION 8.04. Successor Agents........................................................................ 93
SECTION 8.05. Agent and Affiliate..................................................................... 93
SECTION 8.06. Indemnification......................................................................... 94
SECTION 8.07. Credit Decision......................................................................... 94
SECTION 8.08. Collateral Agency Agreement............................................................. 94
ARTICLE IX MISCELLANEOUS....................................................................................... 94
SECTION 9.01. Notices................................................................................. 94
SECTION 9.02. Survival of Agreement................................................................... 95
SECTION 9.03. Binding Effect.......................................................................... 96
SECTION 9.04. Successors and Assigns.................................................................. 96
SECTION 9.05. Expenses; Indemnity..................................................................... 99
SECTION 9.06. Right of Setoff.........................................................................101
SECTION 9.07. Applicable Law..........................................................................101
SECTION 9.08. Waivers; Amendment......................................................................101
SECTION 9.09. Interest Rate Limitation................................................................103
SECTION 9.10. Entire Agreement........................................................................103
SECTION 9.11. Severability............................................................................103
SECTION 9.12. Counterparts............................................................................103
SECTION 9.13. Headings................................................................................104
SECTION 9.14. Remedies................................................................................104
SECTION 9.15. Jurisdiction; Consent to Service of Process.............................................104
SECTION 9.16. Legend..................................................................................105
SECTION 9.17. Judgment Currency.......................................................................105
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Schedules
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Schedule 1.01 Restricted Subsidiaries
Schedule 2.02(a) Revolving Credit Commitment
Schedule 3.05(b) Liabilities
Schedule 3.08 Subsidiaries
Schedule 3.09 Litigation; Compliance with Laws
Schedule 3.10 Material Contracts
Schedule 3.16 Employee Benefit Plans
Schedule 3.17 Environmental Matters
Schedule 3.18 Filings
Schedule 3.20 Transactions with Affiliates and Shareholders
Schedule 3.22 Labor Matters
Schedule 5.14 Post Closing Matters
Schedule 6.01 Indebtedness
Schedule 6.02 Liens
Schedule 6.04 Investments
Exhibits (not filed herewith but will be furnished upon request of the
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Commission)
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Exhibit A-1 Form of Revolving Credit Note
Exhibit A-2 Form of Swingline Note
Exhibit B-1 Form of Borrower's Consent and Agreement
Exhibit B-2 Form of Subsidiaries' Consent and Agreement
Exhibit C Form of Intercompany Note
Exhibit D Form of Assignment and Acceptance
Exhibit E Form of Opinion of Counsel
Exhibit F Form of Compliance Certificate
Exhibit G Form of Supplemental Agreement
Exhibit H-1 Form of Notice of Borrowing/Conversion
Exhibit H-2 Form of Notice of Foreign Currency Loan Borrowing
Exhibit I Form of Subordinated Note
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AMENDED AND RESTATED CREDIT AGREEMENT dated as of January 8, 1999,
among XXXXXXX & XXXXX, INC., an Ohio corporation, the Lenders (as defined in
this Amended Agreement), BANK ONE, N.A., as Administrative Agent and Issuing
Bank, NATIONSBANK, N.A., as Documentation and Syndication Agent, THE BANK OF
NOVA SCOTIA, as Issuing Bank and ABN AMRO, N.V., as Issuing Bank.
The Borrower (such term, and all other capitalized terms in this
paragraph, being used as defined in this Amended Agreement below) requested the
Lenders to extend, and the Lenders extended on the Closing Date, credit to the
Borrower in the form of Revolving Loans in an aggregate principal Dollar Amount
of up to $200,000,000, pursuant to the terms and conditions of the Original
Credit Agreement (as defined below). The Borrower has requested that the Lenders
(i) make Foreign Currency Revolving Loans to the Borrower and (ii) make certain
other amendments and modifications to the Original Credit Agreement. The Lenders
are willing to make such amendments and modifications to the Original Credit
Agreement upon the terms and subject to the conditions set forth herein.
Accordingly, the parties hereto agree that, on the Effective Date, this Amended
Agreement will become effective and the Original Credit Agreement will be
amended to read as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINED TERMS. As used in this Amended Agreement, the
following terms shall have the meanings specified below:
"ABN AMRO FOREIGN CURRENCY LETTERS OF CREDIT" shall mean, collectively,
Letters of Credit issued pursuant to Section 2.23(a)(iii) by ABN AMRO Bank N.V.
for the sole purpose of collateralizing Indebtedness of any Italian Subsidiary,
any German Subsidiary, any UK Subsidiary, and any Canadian Subsidiary, to the
extent such Indebtedness is permitted pursuant to Section 6.01(n).
"ABN AMRO FRONTING FEE" shall have the meaning assigned to such term is
Section 2.06(b).
"ABR BORROWING" shall mean a Borrowing comprised of ABR Loans.
"ABR LOAN" shall mean any ABR Revolving Loan or any Swingline Loan.
"ABR REVOLVING LOAN" shall mean any Revolving Loan and any Swingline
Loan bearing interest at a rate determined by reference to the Alternate Base
Rate in accordance with the provisions of Article II.
"ACQUIRED ENTITY" shall have the meaning set forth in Section 6.04(g)
or Section 6.04(h).
The term "ADDITIONAL AMOUNTS" shall have the meaning assigned to that
term in
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Section 2.20(a).
"ADJUSTED LIBO RATE" shall mean, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to the product of (a) the LIBO Rate
in effect for that Interest Period and (b) Statutory Reserves.
"ADMINISTRATIVE AGENT" shall mean Bank One, N.A., in its capacity as
administrative agent for the Lenders under this Amended Agreement, and its
successors in that capacity.
"ADMINISTRATIVE QUESTIONNAIRE" shall mean, with respect to each Lender,
the administrative questionnaire in the form submitted to that Lender by the
Administrative Agent and returned to the Administrative Agent duly completed by
the applicable Lender.
"AFFILIATE" shall mean, when used with respect to a specified person,
another person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the person
specified.
"AGENTS" shall mean the Administrative Agent and the Syndication Agent.
"ALTERNATE BASE RATE" shall mean, for any day, a rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to the greater of
(a) the Federal Funds Effective Rate in effect on such day plus 0.50% and (b)
the Prime Rate in effect on such day. If the Administrative Agent shall have
determined (which determination shall be conclusive absent manifest error) that
it is unable to ascertain the Federal Funds Effective Rate for any reason,
including the inability or failure of the Administrative Agent to obtain
sufficient quotations in accordance with the terms of this Amended Agreement,
the Alternate Base Rate shall be determined without regard to clause (a) of the
first sentence of this definition until the circumstances giving rise to that
inability no longer exist. 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 the applicable change in the Prime Rate or the Federal Funds
Effective Rate, respectively, without notice to the Borrower.
"AMENDED AGREEMENT" shall mean this Amended and Restated Credit
Agreement, as amended, modified, extended, restated or supplemented from time to
time.
"APPLICABLE LAWS" shall have the meaning assigned to such term in
Section 3.09(b).
"APPLICABLE LIBOR MARGIN" shall mean, with respect to any Revolving
Loan outstanding on any day:
(i) 0.275%, if such day falls within a Level I Pricing Period;
(ii) 0.35%, if such day falls within a Level II Pricing Period;
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(iii) 0.425%, if such day falls within a Level III Pricing Period;
(iv) 0.50%, if such day falls within a Level IV Pricing Period;
(v) 0.70%, if such day falls within a Level V Pricing Period; and
(vi) 0.875%, if such day falls within a Level VI Pricing Period.
"APPLICABLE PERCENTAGE" of any Lender shall mean a fraction (expressed
as a percentage) the numerator of which is such Lender's Revolving Credit
Commitment and the denominator of which is the aggregate of all Revolving Credit
Commitments.
"ASSET SALE" shall mean any sale, lease, transfer, assignment,
condemnation, taking or other disposition or series of related sales, leases,
transfers, assignments or dispositions (including dispositions in the nature of
casualties, to the extent covered by insurance) of any businesses, business
units, assets (including licenses, trademarks and other intangibles and the
Capital Stock of any Subsidiary) or other properties of the Borrower or any
Subsidiary (each referred to for the purposes of this definition as a
"disposition") by the Borrower or any of its Subsidiaries (including any
disposition by means of a merger, consolidation or similar transaction) other
than (i) a disposition by a Subsidiary to the Borrower, (ii) a disposition by
the Borrower or a Subsidiary to a Wholly Owned Subsidiary that is a Qualified
Acquisition Subsidiary and (iii) a disposition permitted by Sections 6.05(a),
(b), (c), (e) and (g).
"ASSIGNMENT AND ACCEPTANCE" shall mean an assignment and acceptance
entered into by a Lender and an assignee, and accepted by the Administrative
Agent, in the form of Exhibit D or such other form as shall be approved by the
Administrative Agent.
"BANK GUARANTEE" shall mean a Guarantee of any Lender with respect to
Indebtedness issued by the Borrower or any of its Subsidiaries; provided, that,
nothing in this definition shall be construed as a commitment or agreement of
any Lender to issue any such Bank Guarantee.
"BOARD" shall mean the Board of Governors of the Federal Reserve System
of the United States.
"BORROWER" shall mean Xxxxxxx & Xxxxx, Inc., an Ohio corporation, and
its successors.
"BORROWER'S CONSENT AND AGREEMENT" shall mean the Borrower's Consent
and Agreement dated as of the Effective Date between the Borrower and the
Administrative Agent in the form attached hereto as Exhibit B-1.
"BORROWING" shall mean a group of Loans of a single Class and Type made
by the Lenders on a single date and as to which a single Interest Period is in
effect.
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"BREAKAGE EVENT" shall have the meaning assigned to that term in
Section 2.16.
"BUSINESS DAY" shall mean any day (other than a Saturday, Sunday or a
day which is a legal holiday in the States of North Carolina, Ohio or New York)
on which banks are open for business in Charlotte, North Carolina, Dayton, Ohio
and New York City; PROVIDED, THAT, when used in connection with a LIBOR Loan,
the term "BUSINESS DAY" shall also exclude any day on which banks are not open
for dealings in dollar deposits or Foreign Currencies in the London interbank
market.
"CANADIAN SUBSIDIARY" shall mean R&M Canada or any Wholly Owned
Subsidiary of the Borrower organized and existing under the laws of Canada or
any province thereof.
"CAPITAL EXPENDITURES" shall mean, for any period, the sum of all
expenditures (whether paid in cash or other consideration or accrued as a
liability) which would, in accordance with GAAP, be included on a consolidated
statement of cash flows of the Borrower and its Consolidated Subsidiaries for
such period as additions to property, plant and equipment, Capital Lease
Obligations or similar items; provided, that, the foregoing shall exclude all
such expenditures to the extent made with insurance proceeds or condemnation
awards as permitted pursuant to Section 6.05(e).
"CAPITAL LEASE OBLIGATIONS" of any person shall mean the obligations of
such person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under GAAP
and, for the purposes of this Amended Agreement, the amount of such obligations
at any time shall be the capitalized amount thereof at such time determined in
accordance with GAAP.
"CAPITAL STOCK" of any person shall mean any and all shares,
partnership, limited liability company and other interests, rights to purchase,
warrants, options, participations or other equivalents of or interests in
(however designated) the equity of such person.
"CARRY OVER AMOUNT" shall mean, for any Fiscal Year, an amount equal to
the difference between (i) fifty percent (50%) of the Borrower's Consolidated
Net Income for the preceding Fiscal Year and (ii) the aggregate amount of all
assets used to pay dividends on, or repurchase or redeem, the Capital Stock of
the Borrower during such previous Fiscal Year; provided, that, in no event shall
the Carry Over Amount exceed twenty-five percent (25%) of the Borrower's
Consolidated Net Income for such previous Fiscal Year.
"CASH EQUIVALENTS" shall mean:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
of America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America),
in each case maturing within 180 days from the date of acquisition
thereof;
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(b) investments in commercial paper maturing within 180 days
from the date of acquisition thereof and having, at such date of
acquisition, the highest credit rating obtainable from Standard &
Poor's Corporation or from Xxxxx'x Investors Service, Inc.
respectively;
(c) investments in certificates of deposit, banker's
acceptances and time deposits maturing within 180 days from the date of
acquisition thereof issued or guaranteed by or placed with, and money
market deposit accounts issued or offered by, any domestic office of
any Lender or any commercial bank organized under the laws of the
United States of America or any State thereof, which has a combined
capital and surplus and undivided profits of not less than
$300,000,000;
(d) money market funds substantially all of whose assets are
comprised of securities of the types described in (a) through (c)
above;
(e) cash deposits in any deposit account or in any cash
collateral account with any Lender; and
(f) other investment instruments approved in writing by the
Agents and offered by financial institutions which have a combined
capital and surplus and undivided profits of not less than
$300,000,000.
"CASH TAX EXPENSE" shall mean, for any period for any person, the
amount of expense for Federal, state, local and other income taxes of such
person and its Consolidated Subsidiaries, determined on a consolidated basis in
accordance with GAAP (assuming such person was deemed to be the common parent of
an affiliated group (within the meaning of Section 1504 of the Code) of which
only such person and its subsidiaries were members), for such period, but
excluding deferred income tax expense.
"CHANGE OF CONTROL" means and shall be deemed to have occurred on (a)
the date upon which a transaction or event or any series of transactions or
events occurs that is required to be reported on Schedule 13D pursuant to
Section 13(d) of the Exchange Act and the regulations promulgated thereunder,
whereby a person or group, as used for purposes of Section 13(d) of the Exchange
Act (other than M.H.M. & Co., Ltd., an Ohio limited partnership ("M.H.M.")), has
or will become the Beneficial Owner of 30% or more of the outstanding Voting
Shares or the date upon which the Borrower first learns that a person or group
(other than M.H.M.) has or will become the Beneficial Owner of 30% or more of
the outstanding Voting Shares; (b) the date of a change in the composition of
the Board of Directors of the Borrower (the "Board of Directors") such that
individuals who were members of the Board of Directors on the date two years
prior to such change (or who were subsequently elected to fill a vacancy in the
Board of Directors by the affirmative vote of at least two-thirds of the
directors then still in office who were directors at the beginning of such two
year period) no longer constitute a majority of the Board of Directors; (c) the
date either the Board of Directors or shareholders approve a merger or
consolidation of the Borrower
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with any other person, other than a merger or consolidation which would result
in the Voting Shares outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into Voting
Shares of the surviving entity) at least 80% of the total voting power
represented by the Voting Shares of such surviving entity outstanding
immediately after such merger or consolidation; (d) the date either the Board of
Directors or shareholders of the Borrower approve a plan of liquidation of the
Borrower or an agreement for the sale, lease, transfer or other disposition by
the Borrower of all or substantially all the Borrower's assets, or (e) the date
that members of the Xxxxx family, individually or collectively, no longer are
the Beneficial Owners of a majority of the Voting Stock of M.H.M. For purposes
of this definition, "Beneficial Owner" means the person or group has the power,
directly or indirectly, to vote or direct the vote of, and the power to dispose,
or direct the disposition of, Voting Shares; "Voting Shares" means the Capital
Stock of the Borrower entitled to vote generally in the election of directors of
the Borrower; and "Voting Stock" means the Capital Stock of M.H.M. entitled to
vote generally on the management and affairs of M.H.M.
"CHARGES" shall have the meaning assigned to that term in Section 9.09.
"CLASS" shall have the meaning assigned to that term in Section 1.03.
"CLOSING DATE" shall mean November 25, 1997.
"CODE" shall mean the Internal Revenue Code of 1986, as the same may be
amended from time to time.
"COLLATERAL" shall mean all the collateral pledged or purported to be
pledged pursuant to any of the Collateral Documents, including all Intercompany
Notes and the Capital Stock of all Restricted Subsidiaries.
"COLLATERAL AGENCY AGREEMENT" shall mean the Intercreditor and
Collateral Agency Agreement, dated as of May 15, 1998, among the Borrower, the
Domestic Subsidiaries, the Collateral Agent, the Lenders, the Noteholders and
the Agents.
"COLLATERAL AGENT" shall mean Bank One Trust Company, N.A., as
Collateral Agent under the Collateral Agency Agreement, and its successors and
assigns thereunder.
"COLLATERAL DOCUMENTS" shall mean the Pledge Agreement, the Collateral
Agency Agreement and all other documents and instruments executed and delivered
pursuant to the terms hereof or thereof in order to secure any Obligations or
perfect any Lien granted for the benefit of the Lenders and the Noteholders
pursuant thereto.
"COMMITMENT" shall mean, with respect to any Lender, such Lender's
Revolving Credit Commitment and, in the case of the Swingline Lender, its
Swingline Commitment and, in the case of an Issuing Bank, its Letter of Credit
Commitment.
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"COMMONLY CONTROLLED ENTITY" shall mean an entity, whether or not
incorporated, which is under common control with the Borrower within the meaning
of Section 4001 of ERISA or is part of a group which includes the Borrower and
which is treated as a single employer under Section 414 of the Code.
"CONFIDENTIAL INFORMATION MEMORANDUM" shall mean the confidential
information memorandum of the Borrower dated October, 1996.
"CONSOLIDATED EBIT" shall mean, for any period for any person,
Consolidated Net Income of such person for such period, plus, to the extent
deducted in computing such Consolidated Net Income for such period, (a) the sum
of (i) Consolidated Interest Expense for such period, and (ii) Cash Tax Expense
for such period, minus, to the extent added in computing such Consolidated Net
Income for such period, (b) the sum of (i) any interest income and (ii) any
non-cash income or non-cash gains during such period that requires footnote
disclosure on financial statements, reports or other filings pursuant to or in
accordance with GAAP or applicable SEC regulations, all as determined on a
consolidated basis with respect to such person and its Consolidated Subsidiaries
in accordance with GAAP.
"CONSOLIDATED EBITDA" shall mean, for any period for any person,
Consolidated Net Income of such person for such period, plus, to the extent
deducted in computing such Consolidated Net Income for such period, (a) the sum
of (i) Consolidated Interest Expense for such period, (ii) Cash Tax Expense for
such period, and (iii) depreciation, depletion, amortization of intangibles and
other non-cash charges or non-cash losses, minus, to the extent added in
computing such Consolidated Net Income for such period, (b) the sum of (i) any
interest income, and (ii) any non-cash income or non-cash gains during such
period that requires footnote disclosure on financial statements, reports or
other filings pursuant to or in accordance with GAAP or applicable SEC
regulations, all as determined on a consolidated basis with respect to such
person and its Consolidated Subsidiaries in accordance with GAAP.
"CONSOLIDATED FIXED CHARGE COVERAGE RATIO" shall mean, for the Borrower
as of any date, the ratio of (a) Consolidated EBIT for the Reference Period with
respect to such date, to (b) Consolidated Interest Expense for such Reference
Period; provided, that, if, since the beginning of the applicable Reference
Period, (A) the Borrower or any Consolidated Subsidiary has issued or incurred
any Indebtedness that remains outstanding as of the end of such Reference Period
in connection with any Permitted Acquisition or pursuant to Sections 6.01(d),
6.01(g) or 6.01(j), Consolidated Interest Expense for such Reference Period
shall be calculated after giving effect on a pro forma basis to (I) such
Indebtedness as if such Indebtedness had been issued or incurred on the first
day of such Reference Period and (II) the discharge of any other Indebtedness
repaid, repurchased or otherwise discharged with the proceeds of such new
Indebtedness as if such discharge had occurred on the first day of such
Reference Period, (B) the Borrower or any Consolidated Subsidiary shall have
made any Asset Sale with a net book value in excess of $1,000,000, the
Consolidated EBIT for the applicable Reference Period shall be reduced by an
amount equal to the Consolidated EBIT (if positive) directly attributable to the
assets which are the subject of such Asset Sale for such Reference Period, or
increased by an amount equal to the Consolidated EBIT (if negative), directly
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attributable thereto for such Reference Period and Consolidated Interest Expense
for such Reference Period shall be reduced by an amount equal to the
Consolidated Interest Expense directly attributable to any Indebtedness of the
Borrower or any Consolidated Subsidiary repaid or otherwise discharged with
respect to the Borrower and its continuing Consolidated Subsidiaries in
connection with such Asset Sale for such Reference Period (or, if the Capital
Stock of any Consolidated Subsidiary is sold, the Consolidated Interest Expense
for such Reference Period directly attributable to the Indebtedness of such
Consolidated Subsidiary to the extent the Borrower and its continuing
Consolidated Subsidiaries are no longer liable for such Indebtedness after such
sale), and (C) the Borrower or any Consolidated Subsidiary shall have made a
Permitted Acquisition, Consolidated EBIT for the applicable Reference Period
shall be calculated after giving pro forma effect thereto as if such Permitted
Acquisition occurred on the first day of such Reference Period. For purposes of
this definition, whenever pro forma effect is to be given to an acquisition of
assets, (i) the amount of income or earnings relating thereto and the amount of
Consolidated Interest Expense associated with any Indebtedness issued or
incurred in connection therewith, the pro forma calculations shall be determined
in good faith by a responsible Financial Officer of the Borrower and (ii) if any
Indebtedness bears a floating rate of interest and is being given pro forma
effect, the interest on such Indebtedness shall be calculated as if the rate in
effect on the date of the beginning of the applicable Reference Period had been
the applicable rate for the entire period. Whenever pro forma effect is to be
given to any event or for any Reference Period, the pro forma calculations made
shall be cumulative of all events for which pro forma effect is to be given that
have occurred within or that relate to the applicable Reference Period.
"CONSOLIDATED INTEREST EXPENSE" shall mean, for any period for any
person, the sum (without duplication) of (a) the gross amount of interest
expense, both expensed and capitalized, of such person and its Consolidated
Subsidiaries, determined on a consolidated basis in accordance with GAAP, for
such period, exclusive of any non-cash interest expense related to original
issue discount notes and pay-in-kind notes, and (b) all amounts paid (net of any
amounts received) by such person and its Consolidated Subsidiaries pursuant to
Interest Rate Protection Agreements for such period.
"CONSOLIDATED LEVERAGE RATIO" shall mean, for the Borrower as of any
date, the ratio of (a) Total Debt on such date to (b) Consolidated EBITDA for
the Reference Period applicable to such date; provided, that, if, since the
beginning of the applicable Reference Period, (A) the Borrower or any
Consolidated Subsidiary has issued or incurred any Indebtedness that remains
outstanding as of the end of such Reference Period in connection with any
Permitted Acquisition or pursuant to Sections 6.01(d), 6.01(g) or 6.01(j),
Consolidated Interest Expense for such Reference Period shall be calculated
after giving effect on a pro forma basis to (I) such Indebtedness as if such
Indebtedness had been issued or incurred on the first day of such Reference
Period and (II) the discharge of any other Indebtedness repaid, repurchased or
otherwise discharged with the proceeds of such new Indebtedness as if such
discharge had occurred on the first day of such Reference Period, (B) the
Borrower or any Consolidated Subsidiary shall have made any Asset Sale with a
net book value in excess of $1,000,000, the Consolidated EBITDA for such
Reference Period shall be reduced by the amount equal to Consolidated EBITDA (if
positive) directly attributable to the
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assets which are the subject of such Asset Sale for such Reference Period, or
increased by an amount equal to the Consolidated EBITDA (if negative), directly
attributable thereto for such Reference Period, and Consolidated Interest
Expense for such Reference Period shall be reduced by an amount equal to the
Consolidated Interest Expense directly attributable to any Indebtedness of the
Borrower or any Consolidated Subsidiary repaid or otherwise discharged with
respect to the Borrower and its continuing Consolidated Subsidiaries in
connection with such Asset Sale for such Reference Period (or, if the Capital
Stock of any Consolidated Subsidiary is sold, the Consolidated Interest Expense
for such Reference Period directly attributable to the Indebtedness of such
Consolidated Subsidiary to the extent the Borrower and its continuing
Consolidated Subsidiaries are no longer liable for such Indebtedness after such
sale), and (C) the Borrower or any Consolidated Subsidiary shall have made a
Permitted Acquisition, Consolidated EBITDA for such Reference Period shall be
calculated after giving pro forma effect thereto as if such Permitted
Acquisition occurred on the first day of such Reference Period. For purposes of
this definition, whenever pro forma effect is to be given to an acquisition of
assets, (i) the amount of income or earnings relating thereto and the amount of
Consolidated Interest Expense associated with any Indebtedness issued or
incurred in connection therewith, the pro forma calculations shall be determined
in good faith by a responsible Financial Officer of the Borrower and (ii) if any
Indebtedness bears a floating rate of interest and is being given pro forma
effect, the interest on such Indebtedness shall be calculated as if the rate in
effect on the date of the beginning of the applicable Reference Period had been
the applicable rate for the entire period. Whenever pro forma effect is to be
given to any event or for any Reference Period, the pro forma calculations made
shall be cumulative of all events for which pro forma effect is to be given that
have occurred within or that relate to the applicable Reference Period.
"CONSOLIDATED NET INCOME" shall mean, for any period for any person,
net income or loss of such person and its Consolidated Subsidiaries for such
period determined on a consolidated basis in accordance with GAAP; provided,
that, there shall be excluded from such calculation of net income or loss (a)
the income of any person in which any other person (other than such person or
any of its subsidiaries or any director holding qualifying shares in accordance
with applicable law) has a joint interest, except to the extent of the amount of
dividends or other distributions actually paid to such person or any of its
Wholly Owned Subsidiaries by such other person during such periods, (b) the
income (or loss) of any other person accrued prior to the date it becomes a
subsidiary of such person or is merged into or consolidated with such person or
any of its subsidiaries or the date that such other person's assets are acquired
by such person or any of its subsidiaries, (c) the income of any subsidiary of
such person to the extent that the declaration or payment of dividends or
similar distributions by such subsidiary of that income is not at the time
permitted by operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation applicable to
that subsidiary, except that, with respect to the Borrower and its Consolidated
Subsidiaries, the income of Pfaudler shall not be subject to exclusion from the
Borrower's Consolidated Net Income pursuant to this clause (c) solely because of
negative retained earnings existing as of the Closing Date that prevent, under
German law, the payment of dividends by Pfaudler; (d) any after-tax gains
attributable to sales of assets out of the ordinary course of business and (e)
(to the extent not included in clauses (a)
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through (d) above) any non-cash extraordinary gains.
"CONSOLIDATED NET WORTH" shall mean, as of any date of determination,
the total of all amounts which would in accordance with GAAP be included on a
consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as
of such date as stockholder's equity, LESS any amounts attributable to
Disqualified Stock.
"CONSOLIDATED PRICING RATIO" shall mean, for the Borrower as of any
date, the ratio of (a) Total Debt on such date, less the aggregate principal
amount of Letters of Credit outstanding on such date, to (b) Consolidated EBITDA
for the Reference Period applicable to such date; PROVIDED, THAT, if, since the
beginning of the applicable Reference Period, (A) the Borrower or any
Consolidated Subsidiary has issued or incurred any Indebtedness that remains
outstanding as of the end of such Reference Period in connection with any
Permitted Acquisition or pursuant to Sections 6.01(d), 6.01(g) or 6.01(j),
Consolidated Interest Expense for such Reference Period shall be calculated
after giving effect on a pro forma basis to (I) such Indebtedness as if such
Indebtedness had been issued or incurred on the first day of such Reference
Period and (II) the discharge of any other Indebtedness repaid, repurchased or
otherwise discharged with the proceeds of such new Indebtedness as if such
discharge had occurred on the first day of such Reference Period, (B) the
Borrower or any Consolidated Subsidiary shall have made any Asset Sale with a
net book value in excess of $1,000,000, the Consolidated EBITDA for such
Reference Period shall be reduced by the amount equal to Consolidated EBITDA (if
positive) directly attributable to the assets which are the subject of such
Asset Sale for such Reference Period, or increased by an amount equal to the
Consolidated EBITDA (if negative), directly attributable thereto for such
Reference Period, and Consolidated Interest Expense for such Reference Period
shall be reduced by an amount equal to the Consolidated Interest Expense
directly attributable to any Indebtedness of the Borrower or any Consolidated
Subsidiary repaid or otherwise discharged with respect to the Borrower and its
continuing Consolidated Subsidiaries in connection with such Asset Sale for such
Reference Period (or, if the Capital Stock of any Consolidated Subsidiary is
sold, the Consolidated Interest Expense for such Reference Period directly
attributable to the Indebtedness of such Consolidated Subsidiary to the extent
the Borrower and its continuing Consolidated Subsidiaries are no longer liable
for such Indebtedness after such sale), and (C) the Borrower or any Consolidated
Subsidiary shall have made a Permitted Acquisition, Consolidated EBITDA for such
Reference Period shall be calculated after giving pro forma effect thereto as if
such Permitted Acquisition occurred on the first day of such Reference Period.
For purposes of this definition, whenever pro forma effect is to be given to an
acquisition of assets, (i) the amount of income or earnings relating thereto and
the amount of Consolidated Interest Expense associated with any Indebtedness
issued or incurred in connection therewith, the pro forma calculations shall be
determined in good faith by a responsible Financial Officer of the Borrower and
(ii) if any Indebtedness bears a floating rate of interest and is being given
pro forma effect, the interest on such Indebtedness shall be calculated as if
the rate in effect on the date of the beginning of the applicable Reference
Period had been the applicable rate for the entire period. Whenever pro forma
effect is to be given to any event or for any Reference Period, the pro forma
calculations made shall be cumulative of all events for which pro forma effect
is to be given that have occurred within or
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that relate to the applicable Reference Period.
"CONSOLIDATED SUBSIDIARIES" shall mean, for any person, all
subsidiaries of such person that should be consolidated with such person for
financial reporting purposes in accordance with GAAP.
"CONTROL" shall mean the possession, direct or indirect, of the power
to direct or cause the direction of the management or policies of a person,
whether through the ownership of voting securities, by contract or otherwise,
and "Controlling" and "Controlled" shall have meanings correlative thereto.
"CONVERTIBLE DEBT" shall mean the Borrower's 6.5% Convertible
Subordinated Notes due 2003 originally issued in an aggregate principal amount
equal to $65,000,000 pursuant to the Indenture dated as of September 18, 1996
between the Borrower and Star Bank, National Association, as Trustee.
"DEFAULT" shall mean any event or condition which upon notice, lapse of
time or both would constitute an Event of Default.
"DETERMINATION DATE" shall mean:
(a) in connection with the issuance of, or participation in,
any Foreign Currency Letter of Credit, the Business Day of such
issuance or participation;
(b) in connection with any extension of any Foreign Currency
Letter of Credit, the Business Day of such extension;
(c) the date of any reduction of the Revolving Credit
Commitments pursuant to the terms of Section 2.10;
(d) for purposes of Section 2.12(c), the last Business Day of
each calendar month;
(e) in connection with the origination of any new Foreign
Currency Revolving Loan, the Business Day which is the earliest of the
date such loan is made or the date the interest rate is set, as
applicable; or
(f) in connection with any extension, conversion, or
continuation of any Foreign Currency Revolving Loan, the last Business
Day of each month or the Business Day which is the earlier of the date
such Loan is extended, converted or continued, or the date the interest
rate is set, as applicable, in connection with any extension,
conversion or continuation.
"DISQUALIFIED STOCK" of any person shall mean (a) any Capital Stock of
such person or any subsidiary of such person which by its terms (or by the terms
of any security into which it
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is convertible or for which it is exchangeable or exercisable), upon the
happening of any event or otherwise (i) matures or is mandatorily redeemable or
subject to any mandatory repurchase requirement, pursuant to a sinking fund
obligation or otherwise, (ii) is convertible into or exchangeable or exercisable
for Indebtedness or Disqualified Stock or (iii) is redeemable or subject to any
repurchase requirement exercisable at the option of the holder thereof, in whole
or in part, in each case on or prior to the first anniversary of the Revolving
Credit Maturity Date (or, if earlier, the first anniversary of the date on which
all the Obligations have been indefeasibly paid in full in cash and the
Commitments have been terminated) and (b) any Preferred Stock of a subsidiary of
such person.
"DOLLAR AMOUNT" shall mean (a) with respect to dollars or an amount
denominated in dollars, such amount and (b) with respect to an amount of any
Foreign Currency or an amount denominated in such Foreign Currency, the Dollar
Equivalent of such amount on the applicable date of determination.
"DOLLAR EQUIVALENT" shall mean, on any date, with respect to an amount
denominated in a Foreign Currency, the amount of dollars into which the
Administrative Agent could, in accordance with its practice from time to time in
the interbank foreign exchange market, convert such amount of such Foreign
Currency at its spot selling rate of exchange effective for that date for the
immediate exchange of such currencies (inclusive of all reasonable related costs
of conversion, if any are actually incurred, and based on the market rates
available to Administrative Agent) applicable to the relevant transaction at or
about 11:00 a.m., Eastern Standard Time, on such date.
"DOLLARS" or "$" shall mean lawful money of the United States of
America.
"DOMESTIC SUBSIDIARY" shall mean any Subsidiary incorporated or
organized under the laws of the United States of America, any state thereof or
the District of Columbia; provided, that, for purposes of this Amended
Agreement, Xxxxxxx & Xxxxx International Sales Company, Inc., a U.S. Virgin
Islands Corporation, shall not be considered a Domestic Subsidiary.
"EASTERN STANDARD TIME" shall mean Eastern Standard Time or, if
applicable, Daylight Savings Time in the eastern time zone in which Dayton, Ohio
is located.
"EFFECTIVE DATE" shall have the meaning assigned to such term in
Section 4.01.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as the same may be amended from time to time.
"EURO" shall have the meaning assigned to such term in Section 2.24.
"EURODOLLAR BORROWING" shall mean a Borrowing comprised of Revolving
Loans bearing interest at a rate based on the Adjusted LIBO Rate.
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"EVENT OF DEFAULT" shall have the meaning assigned to such term in
Article VII.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended.
"EXCLUDED TAXES" shall have the meaning assigned to such term in
Section 2.20(a).
"FACILITY FEE" shall have the meaning assigned to that term in Section
2.06(a).
"FAIR MARKET VALUE" shall mean with respect to any Permitted
Acquisition, the value that would be obtained in an arm's-length transaction
between an informed and willing seller under no compulsion to sell and an
informed and willing buyer.
"FEDERAL FUNDS EFFECTIVE RATE" shall mean, for any day, the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published on the
next succeeding Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day which is a Business Day, the average
of the quotations for the day of such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by it. Each change in the Federal Funds Effective Rate shall be
effective on the date thereof, without notice to the Borrower.
"FEE LETTER" shall have the meaning assigned to such term in Section
2.06(c).
"FEES" shall mean the Facility Fees, the Letter of Credit Fees, the
Fronting Fees and the other fees payable pursuant to the Fee Letter.
"FINANCIAL OFFICER" of any corporation shall mean the chief financial
officer, principal accounting officer or similar officer of such corporation.
"FISCAL YEAR" shall mean, when used with respect to any year, the
Fiscal Year of the Borrower ending on August 31 of such year.
"FOREIGN CURRENCY" shall mean (a) (i) with respect to the ABN AMRO
Foreign Currency Letters of Credit issued to collateralize Indebtedness
permitted pursuant to Section 6.01(n), Italian lira, German marks, Canadian
dollars, English pounds sterling and Singapore dollars and (ii) with respect to
the Other Foreign Currency Letters of Credit, such currencies as may be agreed
upon by the Issuing Banks and the Borrower, from time to time, and (b) with
respect to Foreign Currency Revolving Loans, English pounds sterling and German
marks.
"FOREIGN CURRENCY BORROWING" shall mean a Borrowing comprised of
Foreign Currency Revolving Loans.
"FOREIGN CURRENCY EQUIVALENT" shall mean, on any date, with respect to
an amount denominated in dollars, the amount of any applicable Foreign Currency
into which the
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Administrative Agent could, in accordance with its practice from time to time in
the interbank foreign exchange market, convert such amount of dollars at its
spot rate of exchange (inclusive of all reasonable related costs of conversion,
if any are actually incurred) applicable to the relevant transaction at or about
11:00 a.m., Dayton, Ohio time, on such date.
"FOREIGN CURRENCY LETTER OF CREDIT EXPOSURE" shall mean all Letter of
Credit Exposure attributable to Foreign Currency Letters of Credit.
"FOREIGN CURRENCY LETTERS OF CREDIT" shall mean, collectively, the ABN
AMRO Foreign Currency Letters of Credit and Other Foreign Currency Letters of
Credit.
"FOREIGN CURRENCY REVOLVING LOAN" shall have the meaning assigned to
such term in Section 2.03.
"FOREIGN SUBSIDIARY" shall mean any Subsidiary which is not a Domestic
Subsidiary (including, without limitation, Xxxxxxx & Xxxxx International Sales
Company, Inc.).
"FRONTING FEE" shall mean, collectively or alternatively, the Other
Bank Fronting Fee and the ABN AMRO Fronting Fee.
"GAAP" shall mean United States generally accepted accounting
principles, applied on a consistent basis.
"GERMAN SUBSIDIARY" shall mean Pfaudler or any other Wholly Owned
Subsidiary of the Borrower organized and existing under the laws of Germany.
"GOVERNMENTAL AUTHORITY" shall mean any Federal, state, local or
foreign governmental department, commission, board, bureau, authority, agency,
court, instrumentality or judicial or regulatory body or entity.
"GUARANTEE" of or by any person shall mean any obligation, contingent
or otherwise, of such person guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other person (the "primary obligor") in any
manner, whether directly or indirectly, and including any obligation of such
person, direct or indirect, (a) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness or to purchase (or to advance
or supply funds for the purchase of) any security for the payment of such
Indebtedness, (b) to purchase property, securities or services for the purpose
of assuring the owner of such Indebtedness of the payment of such Indebtedness
or (c) to maintain working capital, equity capital or other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness; provided, that, the term Guarantee shall not
include endorsements for collection or deposit, in either case in the ordinary
course of business.
"GUARANTEE AGREEMENT" shall mean the Amended and Restated Guarantee
Agreement dated as of May 15, 1998 among the Domestic Subsidiaries, the
Collateral Agent and the
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Administrative Agent, as amended from time to time.
"GUARANTOR" shall mean any guarantor under the Guarantee Agreement.
"HAZARDOUS MATERIALS" shall have the meaning assigned to such term in
Section 3.17.
"INDEBTEDNESS" of any person shall mean, without duplication, (a) all
obligations of such person for borrowed money or with respect to deposits or
advances of any kind made with or to such person, (b) all obligations of such
person evidenced by bonds, debentures, notes or similar instruments (other than
obligations under surety bonds incurred in the ordinary course of business), (c)
all obligations of such person upon which interest charges are customarily paid,
(d) all obligations of such person under conditional sale or other title
retention agreements relating to property or assets purchased by such person,
(e) all obligations of such person issued or assumed as the deferred purchase
price of property or services, (f) all Indebtedness of others secured by (or for
which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on property owned or acquired by such
person, whether or not the obligations secured thereby have been assumed, (g)
all Guarantees by such person of Indebtedness of others, (h) all Capital Lease
Obligations of such person, (i) all obligations of such person in respect of
Interest Rate Protection Agreements, (j) all obligations of such person,
contingent or otherwise, as an account party in respect of letters of credit and
bankers' acceptances and (k) all obligations of such person to contribute money
or other property to any other person. The Indebtedness of any person shall
include, without duplication, the Indebtedness of any partnership in which such
person is a general partner and of any trust or other entity formed or utilized
in connection with a securitization of assets of such person. Notwithstanding
the foregoing, the Indebtedness of any person shall exclude all trade accounts
payable, customer advance payments, and accrued expenses determined in
accordance with GAAP and all of which arise or are incurred in the ordinary
course of business.
"INDEMNIFIED PARTY" shall have the meaning assigned to such term in
Section 9.05(b).
"INDEMNITY, SUBROGATION AND CONTRIBUTION AGREEMENT" shall mean the
Indemnity, Subrogation and Contribution Agreement dated as of May 15, 1998 among
the Borrower and the Domestic Subsidiaries, in favor of the Secured Parties, as
amended from time to time.
"INDIAN AFFILIATE" shall mean Gujarat Machinery Manufacturing Co., an
Indian corporation.
"INTERCOMPANY INDEBTEDNESS" shall mean Indebtedness of the Borrower or
any Subsidiary to (a) any Wholly Owned Subsidiary that is a Domestic Subsidiary
or (b) the Borrower.
"INTERCOMPANY NOTES" shall mean the promissory notes issued as
contemplated by Sections 6.01(c) and 6.04(b), in the form attached hereto as
Exhibit C.
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"INTEREST PAYMENT DATE" shall mean, with respect to any Loan, all of
the following to the extent applicable: (a) the last day of the Interest Period
applicable to the Borrowing of which such Loan is a part, (b) if such Loan is
part of any Eurodollar Borrowing with an Interest Period of more than three
months' duration, each day that would have been an Interest Payment Date had
successive Interest Periods of three months' duration been applicable to such
Borrowing, (c) if such Loan is part of any Eurodollar Borrowing, the date of any
repayment or prepayment of the Borrowing of which such Loan is a part, (d) if
such Loan is a part of any ABR Borrowing, the date of any prepayment of the
Borrowing required pursuant to the terms of Section 2.12 and (e) any conversion
of any Eurodollar Borrowing to any ABR Borrowing.
"INTEREST PERIOD" shall mean (a) as to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing or on the last day of the
immediately preceding Interest Period applicable to such Borrowing, as the case
may be, and ending on the numerically corresponding day (or, if there is no
numerically corresponding day, on the last day) in the calendar month that is 1,
2, 3 or 6 months thereafter, as the Borrower may elect, subject to the
availability thereof, as determined by the Administrative Agent, and (b) as to
any ABR Borrowing (including any ABR Borrowing comprised of Swingline Loans),
the period commencing on the date of such Borrowing or on the last day of the
immediately preceding Interest Period applicable to such Borrowing, as the case
may be, and ending on the earliest of (i) the next succeeding March 31, June 30,
September 30 or December 31, (ii) the Revolving Credit Maturity Date and (iii)
the date such Borrowing is prepaid in accordance with Section 2.12; PROVIDED,
THAT, if any Interest Period would end on a day other than a Business Day, such
Interest Period shall be extended to the next succeeding Business Day unless, in
the case of a Eurodollar Borrowing only, 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. Interest shall accrue from and including the
first day of an Interest Period to, but excluding, the last day of such Interest
Period.
"INTEREST RATE PROTECTION AGREEMENT" shall mean any interest rate swap,
foreign currency exchange agreement, collar, cap or other arrangement requiring
payments contingent upon interest rates.
"ISSUING BANK" shall mean, as the case may be, (i) Bank One, N.A. and
The Bank of Nova Scotia, in their capacity as the issuer of Letters of Credit
(other than the ABN AMRO Foreign Currency Letters of Credit), and their
successors in such capacity, and (ii) with respect to the ABN AMRO Foreign
Currency Letters of Credit only, ABN AMRO Bank N.V., and its successors in such
capacity.
"ITALIAN SUBSIDIARY" shall mean RMI or any other Wholly Owned
Subsidiary of the Borrower organized and existing under the laws of Italy.
"JUDGMENT CURRENCY" shall have the meaning assigned to such term in
Section 9.17.
"JUDGMENT CURRENCY CONVERSION DATE" shall have the meaning assigned to
such term in
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Section 9.17.
"LENDER" shall mean each financial institution listed on the signature
pages hereof, each assignee which becomes a Lender pursuant to Section 9.04(b),
and their respective successors (including the Swingline Lender).
"LETTERS OF CREDIT" shall mean any and all letters of credit issued by
any Issuing Bank pursuant to Section 2.23.
"LETTER OF CREDIT AVAILABILITY PERIOD" shall mean the period from and
including the Effective Date to but excluding the earlier of (a) the date five
Business Days prior to the Revolving Credit Maturity Date and (b) the
termination of the Revolving Credit Commitments of the Lenders in accordance
with the terms hereof.
"LETTER OF CREDIT COMMITMENT" shall mean the commitment of the Issuing
Banks to issue Letters of Credit pursuant to Section 2.23.
"LETTER OF CREDIT DISBURSEMENT" shall mean a payment or disbursement
made by the Issuing Bank pursuant to a Letter of Credit.
"LETTER OF CREDIT EXPOSURE" shall mean at any time an amount equal to
the sum of (a) the aggregate undrawn amount of all outstanding Letters of
Credit, plus (b) the aggregate amount of all Letter of Credit Disbursements not
yet reimbursed by the Borrower as provided in Section 2.23. The Letter of Credit
Exposure of any Lender at any time shall mean its Applicable Percentage of the
aggregate Letter of Credit Exposure at such time.
"LETTER OF CREDIT FEE" shall have the meaning assigned to that term in
Section 2.06(b)(i).
"LEVEL I PRICING PERIOD" shall mean, subject to Section 2.07(c), any
period on or after the Effective Date during which the Consolidated Pricing
Ratio is less than or equal to 1.50:1.00 and no Event of Default has occurred
and is continuing.
"LEVEL II PRICING PERIOD" shall mean, subject to Section 2.07(c), any
period on or after the Effective Date during which the Consolidated Pricing
Ratio is greater than 1.50:1.00 but less than or equal to 2.00:1.00 and no Event
of Default has occurred and is continuing.
"LEVEL III PRICING PERIOD" shall mean, subject to Section 2.07(c), any
period on or after the Effective Date during which the Consolidated Pricing
Ratio is greater than 2.00:1.00 but less than or equal to 2.50:1.00 and no Event
of Default has occurred and is continuing.
"LEVEL IV PRICING PERIOD" shall mean, subject to Section 2.07(c), any
period on or after the Effective Date during which the Consolidated Pricing
Ratio is greater than 2.50:1.00 but less than or equal to 3.00:1.00 and no Event
of Default has occurred and is continuing.
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"LEVEL V PRICING PERIOD" shall mean, subject to Section 2.07(c), any
period on or after the Effective Date during which the Consolidated Pricing
Ratio is greater than 3.00:1.00 but less than or equal to 3.50:1.00 and no Event
of Default has occurred and is continuing.
"LEVEL VI PRICING PERIOD" shall mean any period on or after the
Effective Date which is not a Level I Pricing Period, Level II Pricing Period,
Level III Pricing Period, Level IV Pricing Period or Level V Pricing Period.
"LIBO RATE" shall mean, with respect to any Eurodollar Borrowing for
any Interest Period, the rate (rounded upwards, if necessary, to the next 1/16
of 1%) per annum designated as the British Bankers' Association settlement rate,
which appears on the display on page 3750 (under the caption "USD") of the
Telerate Services, Incorporated screen (the "Telerate Screen") (or on such other
display as may replace such page on the Telerate Screen) as of 11:00 a.m.
(London time) two Business Days prior to the commencement of such Interest
Period, for a period of time comparable to such Interest Period; PROVIDED, THAT,
if no offered quotations appear on the Telerate Screen or if quotations are not
given on the Telerate Screen for the selected period, then the LIBO Rate shall
be the rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%)
appearing on Reuters Screen LIBO Page as the London interbank offered rate for
deposits in dollars at approximately 11:00 a.m. (London time) two Business Days
prior to the commencement of such Interest Period, for a term comparable to such
Interest Period; and PROVIDED, FURTHER, that if more than one rate is specified
on Reuters Screen LIBO Page, the applicable rate shall be the arithmetic mean of
all such rates.
"LIBOR LOAN" shall mean any Revolving Loan bearing interest at a rate
determined by reference to the Adjusted LIBO Rate in accordance with the
provisions of Article II.
"LIEN" shall mean, with respect to any asset, any mortgage, deed of
trust, lien, pledge, easement, restriction, restrictive covenant, lease,
sublease, option, charge, security interest or encumbrance of any kind in
respect of such asset. For purposes hereof, the Borrower or any Subsidiary shall
be deemed to own subject to a lien any asset which it has acquired or holds
subject to the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement relating to such asset.
"LOAN DOCUMENTS" shall mean this Amended Agreement, the Notes, the
Letters of Credit, the Guarantee Agreement, the Indemnity, Subrogation and
Contribution Agreement, the Intercompany Notes, the Collateral Documents, the
Borrower's Consent and Agreement, the Subsidiaries' Consent and Agreement any
Interest Rate Protection Agreements entered into by the Borrower with any Lender
or Affiliate thereof as permitted hereunder and any Supplemental Agreements.
"LOANS" shall mean any or all of the Revolving Loans and the Swingline
Loans.
"MARGIN STOCK" shall have the meaning assigned to such term under
Regulation U.
"MATERIAL ADVERSE CHANGE" shall mean a material adverse change in the
business,
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assets, liabilities, financial condition, prospects or results of operations of
Borrower and the Subsidiaries, taken as a whole.
"MATERIAL ADVERSE EFFECT" shall mean (a) a materially adverse effect on
the material existing agreements and relationships, business, financial
condition or results of operations of the Borrower and the Subsidiaries, taken
as a whole, (b) a material impairment of the ability of the Borrower or any of
the Subsidiaries to perform its material obligations under any Loan Document to
which it is or will be a party or (c) a material impairment of the rights of or
benefits available to the Lenders or the Collateral Agent under any Loan
Document. In determining whether any individual event would result in a Material
Adverse Effect, notwithstanding that such event does not itself have such
effect, a Material Adverse Effect shall be deemed to have occurred if the
cumulative effect of such event and all other then existing events would result
in a Material Adverse Effect.
"MATERIAL CONTRACTS" shall have the meaning assigned to such term in
Section 3.10(a).
"MAXIMUM RATE" shall have the meaning assigned to such term in Section
9.09.
"MEXICAN SUBSIDIARY" shall mean Pfaudler S.A. de C.V., a Mexican
corporation.
"MULTIEMPLOYER PLAN" shall mean a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"NMS" shall mean NationsBanc Xxxxxxxxxx Securities, LLC (f/k/a
NationsBanc Capital Markets, Inc.).
"NET CASH PROCEEDS" shall mean, with respect to any Prepayment Event,
an amount equal to (a) the gross cash proceeds (including insurance proceeds and
condemnation awards in the case of any casualty) actually paid to or actually
received by or on behalf of the Borrower or any Subsidiary from or in respect of
such event (including cash received as proceeds from any noncash consideration
received in respect of any such event), LESS (b) the sum of (i) any expenses
reasonably incurred by the Borrower and the Subsidiaries in respect of such
Prepayment Event, including, in the case of a sale or issuance of Capital Stock,
underwriters' fees, discounts or commissions and, in the case of a disposition
of assets or properties, commissions, (ii) in the case of a disposition of
assets or properties, amounts required to be applied to repay Indebtedness
(other than Loans) associated with the assets or properties subject to such
Prepayment Event and (iii) in the case of a disposition of assets or properties,
taxes paid or payable by the Borrower and the Subsidiaries (as determined
reasonably and in good faith by a Financial Officer of the Borrower) in respect
of such Prepayment Event.
"NEW LENDING OFFICE" shall have the meaning assigned to such term in
Section 2.20(f).
"NON-U.S. LENDER" shall have the meaning assigned to such term in
Section 2.20(g).
"NOTEHOLDERS" shall mean the owners of the Senior Notes.
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"NOTES" shall mean the Revolving Credit Notes and the Swingline Note.
"OBLIGATION CURRENCY" shall have the meaning assigned to such term in
Section 9.17.
"OBLIGATIONS" shall mean (a) the Borrower's obligations in respect of
the due and punctual payment of principal of and interest (including interest
accruing after the filing of a petition initiating any proceeding referred to in
paragraph (g) or (h) of Article VII of this Amended Agreement) on the Loans and
all amounts drawn under the Letters of Credit, when and as due, whether at
maturity, by acceleration, upon one or more dates set for prepayment or
otherwise, (b) all Fees, expenses, indemnities and expense reimbursement
obligations of the Borrower under the Original Agreement, this Amended
Agreement, the Fee Letter, or any other Loan Document and (c) all other
obligations, monetary or otherwise, of the Borrower or any of the Subsidiaries
under any Loan Document (including any Interest Rate Protection Agreement
entered into by the Borrower after the Closing Date with any Lender or Affiliate
of a Lender as permitted under this Amended Agreement) to which it is a party,
in each case, whether now owing or hereafter existing.
"OFFICER'S CERTIFICATE" shall mean, as to any corporation, a
certificate executed on its behalf by the Chairman of the Board of Directors (if
an officer) or its President or one of its Vice Presidents and its Treasurer, or
Controller, or one of its Assistant Treasurers or Assistant Controllers, and, as
to any partnership, a certificate executed on behalf of such partnership by its
general partner in a manner which would qualify such certificate as an Officer's
Certificate of such general partner hereunder.
"ORIGINAL CREDIT AGREEMENT" shall mean the Amended and Restated Credit
Agreement dated as of November 25, 1997 among the Borrower, the lenders named
therein, Bank One, N.A. (f/k/a Bank One, Dayton, N.A.), as Administrative Agent
and Issuing Bank, and NationsBank, N.A., as Documentation and Syndication Agent,
as amended, modified or supplemented from time to time.
"OTHER FOREIGN CURRENCY LETTERS OF CREDIT" shall mean, collectively,
Letters of Credit, issued in a Foreign Currency (other than ABN AMRO Foreign
Currency Letters of Credit) and issued pursuant to Section 2.23(a)(ii) by either
Bank One, N.A. or The Bank of Nova Scotia, as the case may be.
"OTHER BANK FRONTING FEE" shall have the meaning assigned to such term
in Section 2.06(b).
"OTHER TAXES" shall have the meaning assigned to that term in Section
2.20(b).
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA or any successor thereto.
"PERFECTION CERTIFICATE" shall mean a certificate from the Borrower and
the Subsidiaries
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dated November 26, 1996.
"PERMITTED ACQUISITION" shall mean any acquisition completed pursuant
to the terms of, and as permitted by, Sections 6.04(g) or 6.04(h).
"PERMITTED INDEBTEDNESS" shall mean Indebtedness permitted pursuant to
Section 6.01.
A "PERSON" shall mean any natural person, corporation, business trust,
joint venture, association, company, limited liability company, partnership,
government (or any agency or political subdivision thereof) or other entity.
"PFAUDLER" shall mean Pfaudler-Werke GMBH, a German limited liability
company.
"PLAN" shall mean at a particular time, any employee benefit plan which
is covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5)
of ERISA.
"PLEDGE AGREEMENT" shall mean the Amended and Restated Pledge and
Security Agreement among the Borrower, the Domestic Subsidiaries, the Collateral
Agent and the Administrative Agent dated as of May 15, 1998 as amended from time
to time.
"PREFERRED STOCK", as applied to the Capital Stock of any corporation,
shall mean Capital Stock of any class or classes (however designated) which is
preferred as to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
"PREPAYMENT EVENT" shall mean (a) the issuance or sale by the Borrower
or any of its Subsidiaries of any Capital Stock of the Borrower or any of its
Subsidiaries (other than (i) the conversion of any of the Subordinated Notes to
Capital Stock of the Borrower pursuant to the terms thereof, (ii) any such
issuance or sale solely to the Borrower or any of the Wholly Owned Subsidiaries,
and (iii) any issuance of Capital Stock pursuant to employee or director stock
plans of the Borrower or pursuant to the Borrower's Investor Stock Purchase
Plan), (b) the contribution of capital to the equity of the Borrower or any of
its Subsidiaries, whether or not Capital Stock is issued on account thereof
(except as expressly permitted by the terms of Sections 6.04(a)(ii) and
6.04(k)), or (c) any other Asset Sale. The foregoing definition shall not be
deemed to imply that any such action or event is permitted under this Amended
Agreement.
"PRIME RATE" shall mean the rate of interest per annum adopted from
time to time by the Administrative Agent as its prime rate as announced and in
effect at its principal office in Dayton, Ohio. Each change in the Prime Rate
shall be effective on the date such change is adopted, without notice to the
Borrower. The Prime Rate is a reference rate used by the Administrative Agent in
determining interest rates on certain loans and is not intended to be
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the lowest rate of interest charged on any extension of credit to any debtor.
"PURCHASE MONEY INDEBTEDNESS" shall mean Indebtedness of the Borrower
or any Subsidiary in respect of which a Lien described in Section 6.02(i) is
incurred.
"QUALIFIED ACQUISITION SUBSIDIARY" shall mean (i) any Domestic
Subsidiary, (ii) any Foreign Subsidiary that is a Restricted Subsidiary as long
as the Agents shall have received an opinion of counsel in form, content and as
to counsel reasonably satisfactory to the Agents stating that the Administrative
Agent, on behalf of the Lenders, has a valid, perfected and first priority
security interest, pursuant to the Pledge Agreement, in the applicable
percentage of the Capital Stock of that Subsidiary as required by the Pledge
Agreement, (iii) R&M UK, as long as the Agents shall have received an opinion of
counsel in form, content and as to counsel reasonably satisfactory to the Agents
stating that the Administrative Agent, on behalf of the Lenders, has a valid,
perfected and first priority security interest, pursuant to the Pledge
Agreement, in the applicable percentage of the Capital Stock of the parent or
parents of R&M UK (whether directly or indirectly), as required or contemplated
by the Pledge Agreement, and (iv) the Mexican Subsidiary, as long as the Agents
shall have received an opinion of counsel in form, content and as to counsel
reasonably satisfactory to the Agents stating that the Administrative Agent, on
behalf of the Lenders, has a valid, perfected and first priority security
interest, pursuant to the Pledge Agreement, in the applicable percentage of the
Capital Stock of the parent or parents of the Mexican Subsidiary (whether
directly or indirectly), as required or contemplated by the Pledge Agreement.
"R&M CANADA" shall mean Xxxxxxx & Xxxxx Canada Ltd., a corporation
organized and existing under the laws of Canada.
"R&M UK" shall mean Xxxxxxx & Xxxxx U.K. Limited, an English
corporation.
"REFERENCE PERIOD" with respect to any date shall mean the period of
four consecutive fiscal quarters of the Borrower immediately preceding such date
or, if such date is the last day of a fiscal quarter, ending on such date.
"REGISTER" shall have the meaning assigned to such term in Section
9.04(d).
"REGULATION G" shall mean Regulation G of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"REGULATION U" shall mean Regulation U of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"REGULATION X" shall mean Regulation X of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"REPORTABLE EVENT" shall mean any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the PBGC has waived either
the 30-day notice period or
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the penalty for failure to give notice.
"REQUIRED FINANCIAL STATEMENTS" shall mean, with respect to any period,
the financial statements of the Borrower for such period required under Section
5.04.
"REQUIRED LENDERS" shall mean, at any time, Lenders holding Loans
(excluding Swingline Loans), Letter of Credit Exposure, and Swingline Exposure
and having Revolving Credit Commitments representing in the aggregate at least a
majority of the sum at such time of (a) the aggregate principal Dollar Amount of
the Loans outstanding (excluding Swingline Loans), (b) the aggregate Dollar
Amount of Letter of Credit Exposure, (c) the aggregate amount of Swingline
Exposure and (d) the aggregate amount of unused Revolving Credit Commitments.
"RESPONSIBLE OFFICER" of any person shall mean and include the
president, chief executive officer, chief operating officer, any financial
officer, any vice president, the general counsel or any other senior officer of
such person (or, in the case of a partnership, of a general partner thereof).
"RESTRICTED SUBSIDIARY" shall mean (i) all Domestic Subsidiaries of the
Borrower, none of the Capital Stock of which is owned by Unrestricted
Subsidiaries and (ii) all Foreign Subsidiaries of the Borrower, all of the
Capital Stock of which is owned directly by the Borrower or a Wholly Owned
Domestic Subsidiary, or any subsidiary described in clauses (i) or (ii) that is
formed or acquired after the date hereof; provided, that, nothing in this
definition shall be deemed to permit any such formation or acquisition of a
subsidiary. Each of such Domestic and Foreign Subsidiaries existing as of the
Effective Date are listed on Schedule 1.01.
"REVOLVING CREDIT AVAILABILITY PERIOD" shall mean the period from and
including the Effective Date to but excluding the termination of the Revolving
Credit Commitments of the Lenders in accordance with the terms hereof.
"REVOLVING CREDIT BORROWING" shall mean a Borrowing comprised of
Revolving Loans.
"REVOLVING CREDIT COMMITMENT" shall mean, with respect to each Lender,
the commitment of such Lender to make Revolving Loans hereunder as set forth on
Schedule 2.02(a), or in the Assignment and Acceptance pursuant to which such
Lender assumed its Revolving Credit Commitment, as applicable, as the same may
be (a) reduced from time to time pursuant to Section 2.10 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04.
"REVOLVING CREDIT FACILITY" shall mean the Revolving Loans, the
Swingline Loans and the Letters of Credit provided or participated in by the
Lenders to the Borrower pursuant to this Amended Agreement and the other Loan
Documents.
"REVOLVING CREDIT MATURITY DATE" shall mean November 25, 2002.
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"REVOLVING CREDIT NOTES" shall mean a promissory note of the Borrower,
substantially in the form of Exhibit A-1 hereto, evidencing Revolving Loans.
"REVOLVING LOANS" shall mean the revolving loans made by the Lenders to
the Borrower pursuant to Section 2.02(a) of this Amended Agreement and Section
2.01(a) of the Original Agreement. Such Revolving Loans shall consist of U.S.
Dollar Revolving Loans and Foreign Currency Revolving Loans. Each U.S. Dollar
Revolving Loan shall be a LIBOR Loan or an ABR Loan. Each Foreign Currency
Revolving Loan shall be a LIBOR Loan.
"RMI" shall mean Xxxxxxx & Xxxxx Italia S.p.A., a corporation organized
and existing under the laws of Italy.
"SEC" shall mean the Securities and Exchange Commission, and any
successor thereto.
"SECURED PARTIES" shall mean (a) the Lenders and the Issuing Banks, (b)
the Administrative Agent and the Syndication Agent, in their capacities as such
under each Loan Document, (c) each Agent or Lender with which the Borrower
enters into an Interest Rate Protection Agreement pursuant to the Original
Agreement or this Amended Agreement, in its capacity as a party to such
agreement, (d) the beneficiaries of each indemnification obligation undertaken
by the Borrower or any of the Subsidiaries under any Loan Document, (e) the
Noteholders and (f) the successors and assigns of the foregoing.
"SENIOR NOTES" shall mean the senior secured notes of the Borrower
issued pursuant to the Senior Note Purchase Agreement.
"SENIOR NOTE PURCHASE AGREEMENT" shall mean, collectively, the separate
note purchase agreements pursuant to which the Borrower issued up to
$100,000,000 principal amount of the Senior Notes, together with all other
documents related thereto.
"SHAREHOLDER" shall mean, as of any date, any person or "group" (within
the meaning of Rule 13d-3 under the Exchange Act) (a) which beneficially owns as
of such date Capital Stock of the Borrower (or of any person Controlling the
Borrower) representing 5% or more of the aggregate ordinary voting power of all
the outstanding Capital Stock of the Borrower (or of such person Controlling the
Borrower) and (b) of which the Borrower has knowledge.
"SINGLE EMPLOYER PLAN" shall mean any Plan which is covered by Title IV
of ERISA, but which is not a Multiemployer Plan.
"SOLVENT" shall have the meaning assigned to such term in Section
3.19(a).
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"STATUTORY RESERVES" shall mean a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board and any other domestic banking authority (and with
respect to any Non-U.S. Lender, any foreign banking authority) to which the
Administrative Agent or any Lender (including any branch, Affiliate or other
fronting office making or holding a Loan) is subject for Eurocurrency
Liabilities (as defined in Regulation D of the Board). Such reserve percentages
shall include those imposed pursuant to such Regulation D. LIBOR Loans shall be
deemed to constitute Eurocurrency Liabilities and to be subject to such reserve
requirements without benefit of or credit for proration, exemptions or offsets
which may be available from time to time to any Lender under such Regulation D.
Statutory Reserves shall be adjusted automatically on and as of the effective
date of any change in any reserve percentage.
"SUBORDINATED NOTES" shall mean (i) the $65,000,000 6.5% Convertible
Subordinated Notes due September 1, 2003, and all documents and instruments
pursuant to which they were issued or related in any way thereto, (ii) the
promissory notes issued or to be issued by Glasteel Parts and Services, Inc., a
Subsidiary of the Borrower, to Pharaoh Corp. (and the associated subordinated
guarantees of the Borrower with respect to each such note) pursuant to the Asset
Purchase Agreement dated as of February 28, 1995 between the Borrower and
Pharaoh Corp., and all documents and instruments pursuant to which they were
issued or related in any way thereto and (iii) the two Promissory Notes dated
February 28, 1995 in the original principal amount of $1,917,857 each from
Pfaudler, Inc. (a Subsidiary of the Borrower) to Xxx Xxxx and Xxx Xxxx,
respectively, and the associated Subordinated Guaranty of the Borrower with
respect to each such note of even date therewith, and all documents and
instruments pursuant to which they were issued or related in any way thereto.
The term "SUBSIDIARY" shall mean, with respect to any person (referred
to in this definition as the "parent"), any corporation, partnership,
association or other business entity (a) of which Capital Stock representing
more than 50% of the aggregate ordinary voting power or more than 50% of the
ownership interests is, at the time any determination is being made, owned,
Controlled or held, or (b) which is, at the time any determination is made,
otherwise Controlled, by (i) the parent, (ii) one or more subsidiaries of the
parent or (iii) the parent and one or more subsidiaries of the parent.
"SUBSIDIARY" shall mean the subsidiaries of the Borrower existing as of
the Effective Date and listed on Schedule 3.08 and other subsidiaries of the
Borrower that are permitted to be created or acquired hereafter pursuant to the
express terms of this Amended Agreement.
"SUBSIDIARIES' CONSENT AND AGREEMENT" shall mean the Subsidiaries'
Consent and Agreement dated as of the Effective Date among the Domestic
Subsidiaries, the Lenders and the Administrative Agent in the form attached
hereto as Exhibit B-2.
"SUPPLEMENTAL AGREEMENT" shall mean an agreement among a Subsidiary,
the Collateral Agent and the Administrative Agent in the form attached hereto as
Exhibit G, as amended
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from time to time.
"SUZHOU PFAUDLER" shall mean Suzhou Pfaudler Glass-lined Equipment
Company Limited, a corporation organized and existing under the laws of the
People's Republic of China.
"SWINGLINE BORROWING" shall mean a Borrowing comprised of Swingline
Loans.
"SWINGLINE COMMITMENT" shall mean the commitment of the Swingline
Lender to make loans pursuant to Section 2.02(c) and Section 2.22, as the same
may be reduced from time to time pursuant to Section 2.10.
"SWINGLINE EXPOSURE" shall mean at any time the aggregate principal
amount at such time of all outstanding Swingline Loans. The Swingline Exposure
of any Lender at any time shall equal its Applicable Percentage of the aggregate
Swingline Exposure at such time.
"SWINGLINE LENDER" shall mean Bank One, N.A., and its successors in
such capacity.
"SWINGLINE LOANS" shall mean any loan made by the Swingline Lender
pursuant to Section 2.02(c) and 2.22.
"SWINGLINE NOTE" shall mean a promissory note of the Borrower,
substantially in the form of Exhibit A-2 hereto, evidencing Swingline Loans.
"SYNDICATION AGENT" shall mean NationsBank, N.A., in its capacity as
syndication agent and documentation agent for the Lenders hereunder, and its
successors in such capacity.
"TAXES" shall have the meaning assigned to such term in Section
2.20(a).
"TOTAL DEBT" shall mean, without duplication, as of any date, the
aggregate amount of (a) all Revolving Loans, Letters of Credit and Swingline
Loans outstanding as of such date and (b) all other Indebtedness (other than (i)
Interest Rate Protection Agreements permitted by Section 6.01(h), (ii) the
obligations of Pfaudler with respect to its unfunded German pension plan and
(iii) post retirement obligations of the Borrower and the Domestic Subsidiaries)
of the Borrower and its Consolidated Subsidiaries as of such date, determined on
a consolidated basis in accordance with GAAP, which by its terms or by the terms
of any instrument or agreement relating thereto matures more than one year from
the date of the initial creation thereof (including any current installment
thereof due within one year of the date of determination); PROVIDED, THAT, Total
Debt shall include any Indebtedness which does not otherwise come within the
foregoing definition but which is directly or indirectly renewable or extendible
at the option of the debtor to a date one year or more (including an option of
the debtor under a revolving credit or similar agreement obligating the lender
or lenders to extend credit over a period of one year or more) from the date of
the initial creation thereof.
"TRANSFEREE" shall have the meaning assigned to such term in Section
2.20(a).
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"TYPE" shall have the meaning assigned to such term in Section 1.03.
"UK SUBSIDIARY" shall mean R&M UK or any other Wholly Owned Subsidiary
of the Borrower organized and existing under the laws of England.
"U.S. DOLLAR BORROWING" shall mean a Borrowing consisting of U.S.
Dollar Revolving Loans.
"U.S. DOLLAR REVOLVING LOAN" shall have the meaning assigned to such
term in Section 2.03(a).
"UNRESTRICTED SUBSIDIARY" shall mean any Subsidiary other than a
Restricted Subsidiary.
"VOTING STOCK" shall have the meaning assigned to such term in the
definition of "Change of Control".
"WHOLLY OWNED SUBSIDIARY" shall mean, at any time, any Subsidiary, all
of the Capital Stock of which is at such time directly or indirectly owned by
the Borrower.
"YEAR 2000 COMPLIANT" shall have the meaning assigned to such term in
Section 3.24.
SECTION 1.02. TERMS GENERALLY. The definitions in Section 1.01 shall
apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to,
this Amended Agreement unless the context shall otherwise require. Unless
otherwise expressly provided herein, all terms of an accounting or financial
nature used herein shall be interpreted in accordance with GAAP, as in effect
from time to time; PROVIDED, THAT, for purposes of (a) making any calculation
contemplated by the provisions of Article II and (b) determining compliance with
any covenant set forth in Article VI, such terms shall be construed in
accordance with GAAP as in effect on the date of this Amended Agreement applied
on a basis consistent with the application used in preparing the audited
financial statements of the Borrower referred to in Section 3.05.
SECTION 1.03. TYPES OF BORROWINGS. The term "Borrowing" refers to the
portion of the aggregate principal amount of Loans of any Class outstanding
hereunder which bears interest of a specific Type and for a specific Interest
Period pursuant to a notice of Borrowing pursuant to Section 2.04. Each Lender's
ratable share of each Borrowing is referred to herein as a separate "Loan".
Borrowings and Loans hereunder are distinguished by "Class" and "Type". The
"Class" of a Loan or of a Commitment to make such a Loan or of a Borrowing
comprising such Loans refers to whether such Loan is a Revolving Loan or a
Swingline Loan. The "Type" of a Loan refers to whether a Revolving Loan is an
ABR Loan or a LIBOR
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Loan. Borrowings and Loans may (but need not) be identified both by Class and
Type (E.G., a "LIBOR Revolving Loan" is a Loan which is both a Revolving Loan
and a LIBOR Loan).
ARTICLE II
THE CREDITS
SECTION 2.01. RESTRUCTURING OF LOANS. When this Amended Agreement
becomes effective, without further action by any person, all outstanding Loans
under the Original Credit Agreement shall become Loans hereunder, and shall be
subject hereto, in an aggregate principal Dollar Amount equal to the aggregate
principal Dollar Amount of such outstanding Loans. All such Loans hereunder
shall be of the same Type, and shall have the same Interest Period, as the
corresponding Loans outstanding under the Original Credit Agreement.
SECTION 2.02. COMMITMENT TO MAKE LOANS. (a) Subject to the terms and
conditions and relying upon the representations and warranties herein set forth,
each Lender agrees, severally and not jointly, to make Revolving Loans to the
Borrower, at any time and from time to time during the Revolving Credit
Availability Period, in an aggregate principal amount at any one time
outstanding not to exceed the excess, if any, of such Lender's Revolving Credit
Commitment set forth opposite its name on Schedule 2.02(a) (as the same may be
reduced from time to time pursuant to Section 2.10 or changed from time to time
pursuant to an assignment in accordance with Section 9.04) over its Applicable
Percentage of the sum of the Dollar Amount of outstanding and unpaid Revolving
Loans at such time, plus the Dollar Amount of its Letter of Credit Exposure at
such time, plus its Swingline Exposure at such time; provided, that, (i) the
aggregate outstanding principal Dollar Amount of Foreign Currency Revolving
Loans shall not exceed $100,000,000 at any time, (ii) the aggregate principal
Dollar Amount of Letter of Credit Exposure shall not exceed the limits
applicable thereto as set forth in Section 2.23, and (iii) the aggregate
outstanding principal amount of Swingline Loans shall not exceed the limits set
forth in Section 2.02(c).
(b) The Borrower may borrow, pay or prepay and reborrow Revolving Loans
during the Revolving Credit Availability Period, within the limits set forth in
Section 2.02(a) and upon the other terms and subject to the other conditions and
limitations set forth herein.
(c) Subject to the terms and conditions and relying on the
representations and warranties herein set forth, the Swingline Lender agrees to
make loans to the Borrower, from time to time during the Revolving Credit
Availability Period, in an aggregate principal amount at any one time
outstanding not to exceed the lesser of (i) $10,000,000 and (ii) the excess, if
any, of the aggregate amount of all Lenders' Revolving Credit Commitments, as
the same may be reduced from time to time pursuant to Section 2.10 or changed
from time to time pursuant to an assignment in accordance with Section 9.04,
over the sum of (A) the Dollar Amount of then outstanding and unpaid Revolving
Loans, (B) the outstanding Dollar Amount of aggregate Letter of Credit Exposure
and (C) the outstanding aggregate Swingline Exposure. Each Swingline Loan shall
be in a principal amount that is an integral multiple of $100,000.
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SECTION 2.03. LOANS. (a) Each Loan (other than Swingline Loans) shall
be made as part of a Borrowing consisting of Loans made by the Lenders ratably
in accordance with their respective Revolving Credit Commitments based on their
Applicable Percentage; provided, that, the failure of any Lender to make any
Loan shall not in itself relieve any other Lender of its obligation to lend
hereunder (it being understood, however, that no Lender shall be responsible for
the failure of any other Lender to make any Loan required to be made by such
other Lender). Subject to the terms and conditions contained herein, funds
advanced by the Lenders pursuant to any Revolving Loan may be in U.S. dollars (a
"U.S. Dollar Revolving Loan") or a Foreign Currency (a "Foreign Currency
Revolving Loan"). The Loans comprising any Borrowing made in U.S. Dollars (other
than a Borrowing comprised of Swingline Loans) shall be in an aggregate
principal amount which is (i) an integral multiple of $100,000 and not less than
$500,000 in the case of LIBOR Loans and (ii) an integral multiple of $100,000 in
the case of ABR Loans. Each Borrowing consisting of Foreign Currency Revolving
Loans shall be in a minimum aggregate principal Dollar Amount equal to the
applicable Foreign Currency Equivalent of approximately $1,000,000 and integral
multiples of the applicable Foreign Currency Equivalent of approximately
$500,000 in excess thereof. At no time shall the aggregate outstanding principal
Dollar Amount of Foreign Currency Revolving Loans exceed $100,000,000.
(b) A particular Borrowing (other than a Borrowing comprised of
Swingline Loans) shall consist solely of ABR Loans or LIBOR Loans as the
Borrower may request pursuant to Section 2.04; provided, that, if an Event of
Default or Default shall have occurred and be continuing (i) the Borrower shall
not be entitled to request any LIBOR Loans and (ii) no Loans of any Type shall
be made unless such Event of Default or Default shall have been waived in
accordance with Section 9.08(b); PROVIDED, THAT, the Administrative Agent shall
not be deemed liable to the Lenders for disbursing Loan proceeds received from a
Lender if the Administrative Agent had no knowledge of the existence of a
Default or Event of Default. Each Lender may at its option fulfill its
Commitment with respect to any LIBOR Loan by causing any domestic or foreign
branch or Affiliate of such Lender 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 this Amended Agreement and the
applicable Note. Borrowings of more than one Type and LIBOR Loans bearing
interest for more than one specific Interest Period may be outstanding at the
same time; provided, that, the Borrower shall not be entitled to request any
Borrowing or any continuation or conversion thereof which, if made, would result
in an aggregate of more than ten separate LIBOR Loans of any Lender being
outstanding hereunder at any one time. For purposes of the foregoing, Loans
having different Interest Periods, regardless of whether they commence on the
same date, shall be considered separate Loans.
(c) All Swingline Loans shall be ABR Loans. No Swingline Loan shall be
a LIBOR Loan.
(d) (i) Subject to Section 2.03(h) and Section 2.17, each Lender shall
make each U.S. Dollar Revolving Loan to be made by it hereunder on the proposed
date thereof by wire
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transfer of immediately available funds to the Administrative Agent in Dayton,
Ohio, not later than 4:00 p.m., Eastern Standard Time, and the Administrative
Agent shall by 6:00 p.m., Eastern Standard Time, credit or wire transfer the
amounts so received to an account in the name of the Borrower maintained with
the Administrative Agent or, if a Borrowing shall not occur on such date because
any condition precedent herein specified shall not have been met, return the
amounts so received to the respective Lenders.
(ii) Subject to Section 2.03(h) and Section 2.17, each Lender shall
make each Foreign Currency Revolving Loan to be made by it hereunder on the
proposed date thereof by wire transfer of immediately available funds to the
Administrative Agent by 1:00 p.m., local time in the place where such deposit is
required to be made pursuant to Section 2.19, for payments by the Borrower, of
same day funds in the applicable Foreign Currency. Such deposit will be made to
such accounts in the primary market for such Foreign Currencies as the
Administrative Agent shall specify from time to time by notice to the Lenders.
To the extent funds are received from the Lenders, the Administrative Agent
shall promptly make such funds available by wire transfer to such accounts as
the Borrower shall have specified to the Administrative Agent. If Foreign
Currency Revolving Loans shall not occur on such date because any condition
precedent herein specified shall not have been met, the Administrative Agent
shall return the amounts received from Lenders in accordance with this paragraph
to the respective Lenders.
(e) If the Administrative Agent has not received from the Borrower the
payment required by Section 2.23(g) by 2:00 p.m., Eastern Standard Time, on the
date of notice from the Issuing Bank that payment of a draft presented under any
Letter of Credit has been or will be made, as provided in Section 2.23(g), the
Administrative Agent will promptly notify the Issuing Bank and each Lender of
the Letter of Credit Disbursement and the currency in which such disbursement is
denominated and, in the case of each Lender, its pro rata portion of such Letter
of Credit Disbursement. Not later than 2:00 p.m., Eastern Standard Time, on the
next Business Day, each Lender shall make available its pro rata share (based on
such Lender's Applicable Percentage) of such Letter of Credit Disbursement in
the currency of such disbursement, in funds immediately available in Dayton,
Ohio, to the Administrative Agent at its address set forth in Section 9.01, and
the Administrative Agent will promptly make such funds available to the Issuing
Bank. The Administrative Agent will promptly remit to each Lender that shall
have made such funds available its pro rata portion (based on such Lender's
Applicable Percentage) of any amounts subsequently received by the
Administrative Agent from the Borrower in respect of such Letter of Credit
Disbursement in the currency in which it was received.
(f) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing, or prior to the time of any required
payment by any Lender in respect of a Letter of Credit Disbursement, that such
Lender will not make available to the Administrative Agent such Lender's portion
of such Borrowing or payment, the Administrative Agent may assume that such
Lender has made such portion available to the Administrative Agent on the date
of such Borrowing or payment in accordance with Section 2.03(a), and the
Administrative Agent may, in reliance upon such assumption, make
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available to the Borrower or the Issuing Bank, as the case may be, on such date
a corresponding amount. If and to the extent that such Lender shall not have
made such portion available to the Administrative Agent, such Lender and the
Borrower severally agree to repay to the Administrative Agent forthwith on
demand such corresponding amount (or in the case of any Foreign Currency Loan,
the Dollar Equivalent thereof) together with interest thereon, for each day from
the date such amount is made available to the Borrower or the Issuing Bank (or,
if the Administrative Agent and the Issuing Bank are the same person, from the
date of such payment in respect of a Letter of Credit Disbursement), as
applicable, until the date such amount is repaid to the Administrative Agent at,
(i) in the case of the Borrower, the interest rate applicable thereto pursuant
to Section 2.07 or 2.23(g), as applicable, and (ii) in the case of such Lender,
the Federal Funds Effective Rate. If such Lender shall repay to the
Administrative Agent such corresponding amount in respect of a Borrowing, such
amount shall constitute such Lender's Loan as part of such Borrowing for
purposes of this Amended Agreement.
(g) Notwithstanding any other provision of this Amended Agreement, the
Borrower shall not be entitled to request any Eurodollar Borrowing if the
Interest Period requested with respect thereto would end after the Revolving
Credit Maturity Date. Any Revolving Credit Borrowing which cannot be refinanced
as a Eurodollar Borrowing by reason of the preceding sentence shall be
automatically converted at the end of the Interest Period in effect for such
Borrowing into an ABR Borrowing.
(h) The Borrower may refinance all or any part of any Revolving Credit
Borrowing with a Revolving Credit Borrowing of the same or a different Type,
upon the terms and subject to the conditions and limitations set forth in this
Amended Agreement. Any Revolving Credit Borrowing or part thereof so refinanced
shall be deemed for all purposes to be simultaneously repaid or prepaid in
accordance with Section 2.05 or 2.13, as applicable, with the proceeds of a new
Revolving Credit Borrowing and the proceeds of such new Revolving Credit
Borrowing (to the extent they do not exceed the principal amount of the
Borrowing being refinanced) shall not be paid by the Lenders to the
Administrative Agent or by the Administrative Agent to the Borrower pursuant to
Section 2.03(d).
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SECTION 2.04. NOTICE OF BORROWINGS. (a) U.S. DOLLAR BORROWINGS. In
order to request a Borrowing (other than a Swingline Loan) consisting of U.S.
Dollar Revolving Loans, the Borrower shall give the Administrative Agent written
or telecopy notice (or telephone notice promptly confirmed in writing or by
telecopy) (a) in the case of a Eurodollar Borrowing, not later than 12:00 noon,
Eastern Standard Time, two Business Days before a proposed Borrowing and (b) in
the case of an ABR Borrowing, not later than 12:00 noon, Eastern Standard Time,
on the Business Day of a proposed Borrowing. Any such notice of Borrowing shall
be irrevocable, shall be substantially in the form of Exhibit H-1 hereto and
shall in each case refer to this Amended Agreement and specify (i) whether the
Borrowing then being requested is to be a Eurodollar Borrowing or an ABR
Borrowing; (ii) the date of such Borrowing (which shall be a Business Day) and
the amount thereof; and (iii) if such Borrowing is to be a Eurodollar Borrowing,
the Interest Period with respect thereto. If no election as to the Type of
Borrowing is specified in any such notice, then the requested Borrowing shall be
an ABR Borrowing. If no Interest Period with respect to any Eurodollar Borrowing
is specified in any such notice, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration. If the Borrower shall not
have given notice in accordance with this Section 2.04(a) of its election to
refinance a Revolving Credit Borrowing prior to the end of the Interest Period
in effect for such Borrowing, then the Borrower shall (unless such Borrowing is
repaid at the end of such Interest Period) be deemed to have given notice of an
election to refinance such Borrowing with an ABR Borrowing. The Administrative
Agent shall, by 2:00 p.m. Eastern Standard Time, on the day it receives a notice
hereunder from the Borrower, advise the applicable Lenders of any notice given
pursuant to this Section 2.04(a) and of each Lender's portion of the requested
Borrowing.
(b) FOREIGN CURRENCY BORROWINGS. In order to request a Borrowing
consisting of Foreign Currency Revolving Loans, the Borrower shall give the
Administrative Agent written or telecopy notice (or telephone notice promptly
confirmed in writing or by telecopy), not later than 12:00 noon, Eastern
Standard Time, three Business Days before a proposed Borrowing. Any such notice
of Borrowing shall be irrevocable and shall be substantially in the form of
Exhibit H-2 hereto and shall in each case refer to this Amended Agreement and
specify (i) that a Borrowing consisting of Foreign Currency Revolving Loans is
requested, (ii) the date of the requested Borrowing (which shall be a Business
Day), (iii) the requested Foreign Currency, (iv) the aggregate principal amount
requested to be borrowed and (v) the Interest Period(s) therefor. If the
Borrower shall fail to specify in any such notice of Borrowing an applicable
Interest Period, then such notice shall be deemed to be a request for an
Interest Period of one month. The Administrative Agent shall give notice to each
Lender promptly upon receipt of each such Notice of Borrowing pursuant to this
Section 2.04(b), the contents thereof and the amount equal to each such Lender's
Revolving Credit Commitment of the Borrowing to be made pursuant thereto.
SECTION 2.05. NOTES; REPAYMENT OF LOANS. (a) The Revolving Loans made
by each Lender shall be evidenced by a Revolving Credit Note, duly executed and
delivered on behalf of the Borrower, dated the Effective Date, substantially in
the form attached hereto as Exhibit A-1, with the blanks appropriately filled,
payable to the order of such Lender in a principal amount equal to such Lender's
Revolving Credit Commitment. The outstanding
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principal balance of each Revolving Loan as evidenced by each applicable
Revolving Credit Note, shall be payable on the last day of the Interest Period
applicable to such Revolving Loan and on the Revolving Credit Maturity Date, and
shall bear interest from the date of the first Borrowing hereunder on the
outstanding principal balance thereof as set forth in Section 2.07. Subject to
Section 2.12, all principal of, and interest on, Foreign Currency Loans shall be
paid or repaid, as the case may be, in the applicable currency in which such
Loan was made. Each Lender shall, and is hereby authorized by the Borrower to,
endorse on the schedule attached to each Revolving Credit Note delivered to such
Lender (or on a continuation of such schedule attached to such Revolving Credit
Note and made a part thereof), or otherwise to record in such Lender's internal
records, an appropriate notation evidencing the date and amount of each
applicable Loan from such Lender, each payment and prepayment of principal of
any such Loan, each payment of interest on any such Loan and the other
information provided for on such schedule; PROVIDED, THAT, the failure of any
Lender to make such a notation or any error therein shall not affect the
obligation of the Borrower to repay the Loans made by such Lender in accordance
with the terms of this Amended Agreement and the applicable Revolving Credit
Notes.
(b) The Swingline Loans made by the Swingline Lender shall be evidenced
by a Swingline Note, duly executed and delivered on behalf of the Borrower,
substantially in the form attached hereto as Exhibit A-2, with the blanks
appropriately filled, payable to the order of the Swingline Lender in a
principal amount equal to the Swingline Commitment. The outstanding principal
balance of each Swingline Loan, as evidenced by the applicable Swingline Note,
shall be payable on the last day of the Interest Period applicable to such
Swingline Loan and on the Revolving Credit Maturity Date. The Swingline Note
shall bear interest from the date of the first Borrowing hereunder on the
outstanding principal balance thereof as set forth in Section 2.07. The
Swingline Lender shall, and is hereby authorized by the Borrower to, endorse on
the schedule attached to the Swingline Note (or on a continuation of such
schedule attached to the Swingline Note and made a part thereof), or otherwise
to record in the Swingline Lender's internal records, an appropriate notation
evidencing the date and amount of each applicable Swingline Loan from the
Swingline Lender, each payment and prepayment of principal of any Swingline
Loan, each payment of interest on any such Loan and the other information
provided for on such schedule; PROVIDED, THAT, the failure of the Swingline
Lender to make such a notation or any error therein shall not affect the
obligation of the Borrower to repay the Swingline Loans made by the Swingline
Lender in accordance with the terms of this Amended Agreement and the Swingline
Note.
SECTION 2.06. FEES. (a) The Borrower shall pay to the Administrative
Agent for the account of each Lender, on the last day of March, June, September
and December in each year and on the date on which the Revolving Credit
Commitment of such Lender shall expire or be terminated as provided herein, a
facility fee (a "FACILITY FEE") on the total Revolving Credit Commitment (as the
same may be reduced from time to time pursuant to Section 2.10) of such Lender
during the preceding quarter (or shorter period commencing with the Effective
Date or ending with the date on which the Revolving Credit Commitment of such
Lender shall be terminated), equal to (A) during any Level I Pricing Period,
0.125% per annum; (B) during any Level II Pricing Period, 0.150% per annum; (C)
during any Level III Pricing Period,
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0.200% per annum; (D) during any Level IV Pricing Period, 0.250% per annum; (E)
during any Level V Pricing Period, 0.300% per annum; and (F) during any Level VI
Pricing Period, 0.375% per annum. All Facility Fees shall be computed on the
basis of the actual number of days elapsed in a year of 360 days. The Facility
Fees due to each Lender shall commence to accrue on the Effective Date and cease
to accrue on the date on which the Revolving Credit Commitment of such Lender
shall be terminated as provided herein.
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(b) The Borrower shall pay to the Administrative Agent (i) for the
account of each Lender, on the last day of March, June, September and December
of each year and on the date on which the Revolving Credit Commitment of such
Lender shall expire or be terminated as provided herein, a letter of credit fee
(a "LETTER OF CREDIT FEE") equal to (A) such Lender's Applicable Percentage of
the Dollar Amount of the aggregate Letter of Credit Exposure (excluding the
portion thereof attributable to unreimbursed Letter of Credit Disbursements)
existing as of the first day of the quarter then ended (or shorter period
commencing with the Effective Date or ending with the date on which all Letters
of Credit have been canceled or have expired and the Revolving Credit
Commitments of all Lenders shall have been terminated) plus the Dollar Amount of
the face amount of each Letter of Credit issued during such quarter (or shorter
period commencing with the Effective Date or ending with the date on which all
Letters of Credit have been canceled or have expired and the Revolving Credit
Commitments of all Lenders shall have been terminated), in each case the date of
determination for such Dollar Amounts being the last day of the applicable
quarter then ended (or shorter period commencing with the Effective Date or
ending with the date on which all Letters of Credit have been cancelled or have
expired and the Revolving Credit Commitments of all Lenders shall have been
terminated), multiplied by (B) a per annum rate equal to the Applicable LIBOR
Margin in effect from time to time during such period, (ii) with regard to Other
Foreign Currency Letters of Credit and Letters of Credit issued in dollars, for
the account of Bank One, N.A. or The Bank of Nova Scotia, as the case may be, on
the last day of March, June, September and December of each year, a fronting fee
(the "OTHER BANK FRONTING FEE") of 0.125% per annum on the sum of (A) the
aggregate Letter of Credit Exposure attributable to such Letters of Credit
issued by such Issuing Bank (excluding the portion thereof attributable to
related unreimbursed Letter of Credit Disbursements) existing as of the first
day of the quarter then ended (or shorter period commencing with the date hereof
or ending with the Revolving Credit Maturity Date) and (B) the face amount of
each Letter of Credit issued in dollars and the Dollar Equivalent amount of the
face amount of each Other Foreign Currency Letter of Credit issued by such
Issuing Bank during such quarter, in each case the date of determination for
such Dollar Equivalent amount being the last day of the applicable quarter then
ended (or shorter period commencing with the Effective Date or ending with the
date on which all Letters of Credit have been cancelled or have expired and the
Revolving Credit Commitments of all Lenders shall have been terminated), and,
with respect to each such Letter of Credit issued by Bank One, N.A. or The Bank
of Nova Scotia, as the case may be, any other customary fees of such Issuing
Bank agreed upon by the Borrower and such Issuing Bank, in connection with the
issuance, amendment or transfer of any Letter of Credit or any Letter of Credit
Disbursement by such Issuing Bank, and (iii) with regard to ABN AMRO Foreign
Currency Letters of Credit, for the account of ABN AMRO Bank N.V., in its
capacity as an Issuing Bank, therefor, on the last day of March, June, September
and December of each year, a fronting fee (the "ABN AMRO FRONTING FEE") of
0.125% per annum on the sum of (A) the Dollar Equivalent amount of the aggregate
Foreign Currency Letter of Credit Exposure attributable to ABN AMRO Foreign
Currency Letters of Credit (excluding the portion thereof attributable to
unreimbursed Letter of Credit Disbursements) existing as of the first day of the
quarter then ended (or shorter period commencing with the date hereof or ending
with the Revolving Credit Maturity Date) and (B) the Dollar Equivalent amount of
the face amount of each ABN AMRO Foreign Currency Letter of Credit issued
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during such quarter, in each case the date of determination for such Dollar
Equivalent amount being the last day of the applicable quarter then ended (or
shorter period commencing with the Effective Date or ending with the date on
which all Letters of Credit have been cancelled or have expired and the
Revolving Credit Commitments of all Lenders shall have been terminated), and,
with respect to each ABN AMRO Foreign Currency Letter of Credit, any other
customary fees of ABN AMRO Bank N.V. agreed upon by the Borrower and ABN AMRO
Bank N.V., in connection with the issuance, amendment or transfer of any ABN
AMRO Foreign Currency Letter of Credit or any Letter of Credit Disbursement. All
Letter of Credit Fees and Fronting Fees shall be computed on the basis of the
actual number of days elapsed in a year of 360 days.
(c) The Borrower agrees to pay to the Agents, for their own accounts,
the fees set forth in the Fee Letter dated October 2, 1996 among NMS, the Agents
and the Borrower and in the applicable provisions of the Commitment Letter dated
October 2, 1996 among such parties (together, the "Fee Letter") in the amounts
and on the dates provided in the FEE LETTER. Such fees shall be in addition to
reimbursement of the Agents' reasonable out-of-pocket expenses.
(d) All Fees shall be paid on the dates due, in immediately available
funds. Once paid, none of the Fees shall be refundable under any circumstances
(absent manifest error).
SECTION 2.07. INTEREST ON LOANS. (a) Subject to the provisions of
Section 2.08, each Revolving Loan and each Swingline Loan comprising an ABR
Borrowing shall bear interest for each day from the date such Loan is made until
it becomes due (computed on the basis of the actual number of days elapsed over
a year of 365 or 366 days, as the case may be when determined by reference to
the Prime Rate and over a year of 360 days at all other times) at a rate per
annum equal to the Alternate Base Rate. So long as any ABR Borrowing is
outstanding, the Administrative Agent shall promptly notify the Borrower of any
change in the Prime Rate.
(b) Subject to the provisions of Section 2.08, each Revolving Loan
comprising a Eurodollar Borrowing shall bear interest for each day from the date
such Loan is made until it becomes due (computed on the basis of the actual
number of days elapsed over a year of 360 days) at a rate per annum equal to the
Adjusted LIBO Rate for the Interest Period in effect for such Borrowing, plus
the Applicable LIBOR Margin in effect from time to time for such Class of Loan.
(c) Each Level I Pricing Period, Level II Pricing Period, Level III
Pricing Period, Level IV Pricing Period, Level V Pricing Period or Level VI
Pricing Period (each a "Pricing Period") shall commence on (and include) the
date that is the first day of the third month following the end of each Fiscal
Quarter of the Borrower and shall terminate on the day before the beginning of
the next Pricing Period. Notwithstanding the foregoing, in the event the
Borrower has failed to deliver any Required Financial Statements when due in
accordance with Section 5.04, a Level VI Pricing Period shall be deemed to be in
effect beginning as of the first day of the third month following the end of the
Fiscal Quarter for which any Required
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Financial Statement was not timely delivered and such Level VI Pricing Period
shall remain effective until a Fiscal Quarter in which Borrower has delivered
the Required Financial Statements when due in accordance with Section 5.04, and
then the applicable Pricing Period as determined pursuant hereto with reference
to the Required Financial Statements shall become effective on the date
determined above.
(d) Interest on each Loan shall be payable on the Interest Payment
Dates applicable to such Loan, except as otherwise provided in this Amended
Agreement. The applicable Alternate Base Rate or Adjusted LIBO Rate for each
Interest Period or day within an Interest Period, as the case may be, shall be
determined by the Administrative Agent in good faith, and such determination
shall be conclusive absent manifest error.
SECTION 2.08. DEFAULT INTEREST. If and for so long as any Event of
Default shall have occurred and be continuing, interest shall accrue, to the
extent permitted by applicable law, on the outstanding amount of all Obligations
during the period from (and including) the date of such Event of Default to (but
not including) the date of actual payment (after as well as before judgment) at
(a) in the case of principal of or interest on any Loan, the rate per annum
(computed on the basis of the actual number of days elapsed over a year of 365
or 366 days, as the case may be, when determined by reference to the Prime Rate
and over a year of 360 days at all other times) applicable to such Loan during
such period pursuant to Section 2.07, plus 2.00% or (b) in the case of any other
amount, a rate per annum (computed on the basis of the actual number of days
elapsed over a year of 365 or 366 days, as the case may be, when determined by
reference to the Prime Rate and over a year of 360 days at all other times)
equal to the rate applicable to ABR Loans during such period pursuant to Section
2.07, plus 2.00%. The Borrower shall pay all such accrued but unpaid interest
from time to time upon demand.
SECTION 2.09. ALTERNATE RATE OF INTEREST. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Eurodollar Borrowing the Administrative Agent shall have
reasonably determined that deposits in the principal amounts in the relevant
currency of the Loans comprising such Borrowing are not generally available in
the applicable interbank market, or that the rates at which such deposits are
being offered will not adequately and fairly reflect the cost to the Lenders of
making or maintaining LIBOR Loans during such Interest Period, or that
reasonable means do not exist for ascertaining the Adjusted LIBO Rate, the
Administrative Agent shall, as soon as practicable thereafter, give written or
telecopy notice of such determination to the Borrower and the Lenders. In the
event of any such determination, any request by the Borrower for a Eurodollar
Borrowing pursuant to Section 2.04 or 2.11 shall, until the Administrative Agent
shall have advised the Borrower and the Lenders that the circumstances giving
rise to such notice no longer exist, be deemed to be a request for an ABR
Borrowing. Each determination by the Administrative Agent hereunder shall be
conclusive absent manifest error.
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SECTION 2.10. TERMINATION AND REDUCTION OF COMMITMENTS; EXTENSION OF
COMMITMENTS. (a) The Revolving Credit Commitments and the Swingline Commitment
shall be automatically terminated at 5:00 p.m., Eastern Standard Time, on the
Revolving Credit Maturity Date.
(b) Upon at least five Business Days' prior irrevocable written or
telecopy notice to the Administrative Agent, the Borrower may at any time in
whole permanently terminate, or in part permanently reduce, the Revolving Credit
Commitments; PROVIDED, THAT, (i) each partial reduction of the Revolving Credit
Commitments shall be in a minimum aggregate principal amount which is an
integral multiple of $500,000 and not less than $1,000,000, and (ii) the
aggregate of Revolving Credit Commitments shall not be reduced to an amount that
is less than the Dollar Amount of all aggregate Letter of Credit Exposure at
that time.
(c) On the date of each mandatory payment or prepayment of Loans (or
provision of cash collateral in respect of outstanding Letters of Credit) in
accordance with Sections 2.12(b) or (c), the Revolving Credit Commitments shall
be permanently reduced by an aggregate amount equal to the amount of such
required payment or prepayment (or provision of cash collateral).
(d) Each reduction in the Revolving Credit Commitments shall be made
ratably among the Lenders in accordance with their respective Revolving Credit
Commitments and each such reduction shall proportionately reduce the Swingline
Commitment. The Borrower shall pay to the Administrative Agent for the account
of the Lenders, on the date of each termination or reduction of the Revolving
Credit Commitments, the Facility Fees on the amount of the Revolving Credit
Commitments so terminated or reduced accrued to the date of such termination or
reduction.
SECTION 2.11. CONVERSION AND CONTINUATION OPTIONS. Except with respect
to Borrowings comprised of Swingline Loans, as to which this Section 2.11 shall
not apply, the Borrower shall have the right at any time upon prior irrevocable
notice to the Administrative Agent (a) not later than 12:00 noon, Eastern
Standard Time, on the day of conversion, to convert any Eurodollar Borrowing
(other than a Foreign Currency Revolving Loan) into an ABR Borrowing, (b) not
later than 12:00 noon, Eastern Standard Time, two Business Days prior to
conversion or continuation, to convert any ABR Borrowing into a Eurodollar
Borrowing or to continue any Eurodollar Borrowing (other than a Foreign Currency
Revolving Loan) as a Eurodollar Borrowing for an additional Interest Period, (c)
not later than 12:00 noon, Eastern Standard Time, two Business Days prior to
conversion, to convert the Interest Period with respect to any Eurodollar
Borrowing (other than a Foreign Currency Revolving Loan) to another permissible
Interest Period and (d) not later than 12:00 noon, Eastern Standard Time, three
Business Days prior to conversion or continuation, to convert the Interest
Period with respect to any Foreign Currency Revolving Loan to another
permissible Interest Period or to continue any Foreign Currency Revolving Loan
as a Foreign Currency Revolving Loan for an additional Interest Period, subject
in each case to the following:
(i) each conversion or continuation shall be made pro rata
among the
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Lenders in accordance with the respective principal amounts of the
Loans comprising the converted or continued Borrowing;
(ii) the aggregate principal amount of such Borrowing
converted into or continued as (A) a Eurodollar Borrowing in dollars,
shall be an integral multiple of $100,000 and not less than $500,000,
(B) a Eurodollar Borrowing in a Foreign Currency shall be an integral
multiple of the applicable Foreign Currency Equivalent of approximately
$500,000 and not less than the applicable Foreign Currency Equivalent
of approximately $1,000,000, or (C) an, ABR Borrowing, shall be the
lesser of (I) the remaining outstanding principal amount of such
Borrowing and (II) an integral multiple of $100,000;
(iii) each conversion or continuation shall be effected by
each Lender by applying the proceeds of the new Loan of such Lender
resulting from such conversion or continuation to the Loan (or portion
thereof) of such Lender being converted or continued;
(iv) accrued interest on a LIBOR Loan (or portion thereof)
being converted or continued shall be paid by the Borrower at the time
of conversion;
(v) if any Eurodollar Borrowing is converted or continued at a
time other than the end of the Interest Period applicable thereto, the
Borrower shall pay, upon demand, any amounts due to the Lenders
pursuant to Section 2.16;
(vi) any portion of a Borrowing maturing or required to be
repaid in less than one month may not be converted into or continued as
a Eurodollar Borrowing;
(vii) any portion of a Eurodollar Borrowing (other than a
Eurodollar Borrowing in a Foreign Currency) which cannot be converted
into or continued as a Eurodollar Borrowing by reason of clause (vi)
above shall be automatically converted at the end of the Interest
Period in effect for such Borrowing into an ABR Borrowing;
(viii) Foreign Currency Revolving Loans may not be converted
into ABR Loans pursuant to this Section 2.11; and
(ix) Foreign Currency Loans in a particular Foreign Currency
may not be converted into or continued as Foreign Currency Loans of any
other Foreign Currency pursuant this Section 2.11.
Each notice pursuant to this Section 2.11 shall be irrevocable, shall
be in substantially the form of Exhibit H-1 hereto or, if the request involves a
Foreign Currency Revolving Loan, Exhibit H-2 hereto, and shall in each case
refer to this Amended Agreement and specify (I) the principal amount, the Class,
the Type and, in the case of a Eurodollar Borrowing, the Interest Period of the
Borrowing that the Borrower requests be converted or continued, (II) whether
such Borrowing is to be converted to or continued as a Eurodollar Borrowing or
an
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ABR Borrowing, (III) if such notice requests a conversion, the date of such
conversion (which shall be a Business Day) and (IV) if such Borrowing is to be
converted to or continued as a Eurodollar Borrowing, the Interest Period with
respect thereto. If no Interest Period is specified in any such notice with
respect to any conversion to or continuation as a Eurodollar Borrowing, the
Borrower shall be deemed to have selected an Interest Period of one month's
duration. The Administrative Agent shall advise the other Lenders of any notice
given pursuant to this Section 2.11 and of each Lender's portion of any
converted or continued Borrowing. If the Borrower shall not have given notice in
accordance with this Section 2.11 to continue any Borrowing into a subsequent
Interest Period (and shall not otherwise have given notice in accordance with
this Section 2.11 to convert such Borrowing), such Borrowing shall, at the end
of the Interest Period applicable thereto (unless repaid pursuant to the terms
hereof), automatically be continued into a new Interest Period as an ABR
Borrowing, unless such Borrowing is a Foreign Currency Borrowing, in which case
such Borrowing shall be automatically continued as a Foreign Currency Borrowing
in the same Foreign Currency for an Interest Period of one month.
SECTION 2.12. MANDATORY REPAYMENTS AND PREPAYMENTS.
(a) On the Revolving Credit Maturity Date, all Revolving Credit
Borrowings and all Swingline Borrowings shall be due and payable to the extent
not previously paid and all Letter of Credit Exposure (if any) shall be
terminated or cash collateralized in a manner satisfactory to the Agents.
(b) In the event and on each occasion that a Prepayment Event occurs,
the Borrower shall give to the Administrative Agent written or telecopy notice
of such event, the amount of Net Cash Proceeds expected to be received therefrom
and the expected schedule for receiving such proceeds. On the date of receipt by
the Borrower or any Subsidiary of Net Cash Proceeds from such Prepayment Event,
the Borrower shall prepay Loans in an aggregate principal amount equal to the
lesser of (x) 100% of such Net Cash Proceeds received and (y) the amount of Net
Cash Proceeds required to reduce the Commitments (as contemplated by Section
2.10(c)) to, but not below, $100,000,000; PROVIDED, THAT in the case of an Asset
Sale, (i) no such prepayment shall be required unless the aggregate amount of
Net Cash Proceeds received from such Asset Sale and all other Asset Sales
occurring during the same Fiscal Year of the Borrower equals or exceeds
$5,000,000 and the Borrower or any of its Subsidiaries fail to reinvest such Net
Cash Proceeds to purchase operating assets within 180 days of receipt by the
Borrower or any of its Subsidiaries thereof and (ii) any such receipt of Net
Cash Proceeds that would otherwise result in prepayment of a lesser amount under
this subparagraph (c) shall cumulate until the aggregate amount of such Net Cash
Proceeds received and not yet applied equals or exceeds $5,000,000, at which
time such prepayment shall be made.
(c) In the event and on each occasion that the sum of (i) the aggregate
outstanding principal Dollar Amount of Revolving Loans, (ii) the aggregate
Dollar Amount of all Letter of Credit Exposure, and (iii) the aggregate
Swingline Exposure (collectively, the "REVOLVING LOAN EXPOSURE") exceeds the
aggregate amount of the Revolving Credit Commitments at such time, the Borrower
shall immediately prepay Revolving Loans such that the aggregate Dollar
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Amount of all Revolving Loan Exposure is equal to or less than the aggregate
Revolving Credit Commitments. In addition, on the last day of each calendar
month, or on any other Determination Date, the Borrower shall pay or prepay
outstanding Foreign Currency Revolving Loans to the extent, if necessary, so
that (i) the Dollar Amount (determined as of such date) of all aggregate
Revolving Credit Exposure is equal to or less than the aggregate Revolving
Credit Commitments existing at that time and (ii) the Dollar Amount of the
aggregate outstanding principal amount of such Foreign Currency Loans shall not
exceed $100,000,000. In addition, in the event that on the last day of any
calendar month or on any other Determination Date, the Dollar Amount of the
Foreign Currency Letter of Credit Exposure resulting from the ABN AMRO Foreign
Currency Letters of Credit exceeds $50,000,000, then the Borrower shall cash
collateralize Foreign Currency Letter of Credit Exposure resulting from the ABN
AMRO Foreign Currency Letters of Credit (in each instance, in dollars or in a
Foreign Currency reasonably required by the Issuing Bank) to the extent, if
necessary, so that (i) the Dollar Amount (determined as of such date) of all
aggregate Revolving Loan Exposure is equal to or less than the aggregate
Revolving Credit Commitments existing at that time and (ii) the Dollar Amount
(determined as of such date) of all Foreign Currency Letter of Credit Exposure
resulting from the ABN AMRO Foreign Currency Letters of Credit is equal to or
less than $50,000,000 (and thereupon such cash shall be deemed to reduce the
Letter of Credit Exposure for purposes of this Section 2.12(c)). In the event
that on the last day of any calendar month or on any other Determination Date,
the Dollar Amount of the aggregate Letter of Credit Exposure resulting from
Letters of Credit issued in dollars and Other Foreign Currency Letters of
Credit, exceeds $25,000,000, then the Borrower shall cash collateralize such
Letter of Credit Exposure (in each instance, in dollars or in a Foreign Currency
reasonably required by the Administrative Agent) to the extent, if necessary, so
that (i) the Dollar Amount (determined as of such date) of all aggregate
Revolving Loan Exposure is equal to or less than the aggregate Revolving Credit
Commitments existing at that time and (ii) the Dollar Amount (determined as of
such date) of all aggregate Letter of Credit Exposure resulting from Letters of
Credit issued in dollars and Other Foreign Currency Letters of Credit is equal
to or less than $25,000,000 (and thereupon such cash shall be deemed to reduce
the Letter of Credit Exposure for purposes of this Section 2.12(c)).
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(d) All mandatory prepayments under Section 2.12(b) or (c) shall be
applied (to the extent applicable) (i) FIRST, to reduce the outstanding
principal amount of U.S. Dollar Revolving Loans or Foreign Currency Revolving
Loans, as the case may be, and (ii) second, to the extent that the remaining
amount of such prepayment is greater than the aggregate principal Dollar Amount
of outstanding Loans, to provide cash collateral in an amount equal to all such
Letter of Credit Exposure (the amount to be deposited shall be denominated in
the currency or currencies of the Letter(s) of Credit then outstanding) (and
thereupon such cash shall be deemed to reduce the Letter of Credit Exposure for
purposes of this Section 2.12(d)). Subject to the foregoing provisions, any
mandatory prepayment of Loans of any Class pursuant to Section 2.12(b) or (c)
shall be applied to prepay all ABR Loans of such Class before any LIBOR Loans of
such Class are prepaid. All mandatory prepayments shall be applied first to
Loans in the currency in which payment is made by the Borrower. Amounts to be
applied to the prepayment of LIBOR Loans shall be deposited, as long as no Event
of Default shall then exist, in a separate Prepayment Account (as defined below)
for the LIBOR Loans; provided, that, the Borrower shall not have the option to
deposit any such amounts in a Prepayment Account if an Event of Default shall
have occurred and be continuing. The Administrative Agent shall apply any cash
deposited in the Prepayment Account to prepay LIBOR Loans on the last day of
their respective Interest Periods (or, at the direction of the Borrower, on any
earlier date) until all outstanding LIBOR Loans have been prepaid or until all
the allocable cash on deposit in the Prepayment Account has been exhausted. For
purposes of this Amended Agreement, the term "PREPAYMENT ACCOUNT" for LIBOR
Loans shall mean an account established by the Borrower with the Administrative
Agent and over which the Administrative Agent shall have exclusive dominion and
control, including the exclusive right of withdrawal for application in
accordance with this paragraph. The Administrative Agent will, at the request of
the Borrower, invest amounts on deposit in the Prepayment Account in Cash
Equivalents that mature prior to the last day of the applicable Interest Periods
of the LIBOR Loans to be prepaid; PROVIDED, HOWEVER, that (i) the Administrative
Agent shall not be required to make any investment that, in its sole judgment,
would require or cause the Administrative Agent to be in, or would result in
any, violation of any law, statute, rule or regulation and (ii) if an Event of
Default shall have occurred and be continuing, the selection of such investments
shall be in the sole discretion of the Administrative Agent. The Borrower shall
indemnify the Administrative Agent for any losses relating to the investments so
that the amount available to prepay LIBOR Loans on the last day of the
applicable Interest Periods is not less than the amount that would have been
available had no investments been made pursuant thereto. Other than any interest
earned on such investments, the Prepayment Accounts shall not bear interest.
Interest or profits, if any, on such investments shall be deposited in the
applicable Prepayment Account and reinvested and disbursed as specified above.
If the maturity of the Loans has been accelerated pursuant to Article VII, the
Administrative Agent may, in its sole discretion, apply all amounts on deposit
in the Prepayment Account for any Class of Loans to satisfy any of the
Obligations related to such Class of Loans. The Borrower hereby pledges and
assigns to the Administrative Agent, for its benefit and the benefit of the
Lenders, each Prepayment Account established hereunder to secure the Obligations
related to such Class of Loans.
(e) Each payment of Borrowings pursuant to this Section 2.12 (except
partial
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prepayments of ABR Borrowings) shall be accompanied by accrued interest on the
principal amount paid to but excluding the date of payment. All payments under
this Section 2.12 shall be subject to Section 2.16, but otherwise shall be
without premium or penalty.
SECTION 2.13. OPTIONAL PREPAYMENTS. (a) Subject to Section 2.13(b), the
Borrower shall have the right at any time and from time to time to prepay any
LIBOR Loans, in whole or in part, upon giving prior written or telecopy notice
(or telephone notice promptly confirmed by written or telecopy notice) to the
Administrative Agent, at least three Business Days prior to the date of
prepayment; PROVIDED, THAT each partial prepayment of LIBOR LOANS shall be in a
Dollar Amount which is an integral multiple of $500,000 and not less than
$1,000,000 and a partial prepayment of a Eurodollar Borrowing under this Section
2.13(a) shall not be made that would result in the remaining aggregate
outstanding principal Dollar Amount thereof being less than $500,000. Each
notice of prepayment shall specify the prepayment date, the Class, the Type, the
Interest Period of the Borrowing to be prepaid and the principal amount thereof
to be prepaid, shall be irrevocable and shall commit the Borrower to prepay such
Borrowing by the amount stated therein on the date stated therein.
(b) All prepayments under this Section 2.13 shall be subject to Section
2.16 but otherwise shall be without premium or penalty. All prepayments under
this Section 2.13 shall be accompanied by accrued interest on the principal
amount being prepaid to, but excluding, the date of payment.
SECTION 2.14. RESERVE REQUIREMENTS; CHANGE IN CIRCUMSTANCES. (a)
Notwithstanding any other provision of this Amended Agreement, if after the date
of this Amended Agreement any change in applicable law or regulation or in the
interpretation or administration thereof by any Governmental Authority charged
with the interpretation or administration thereof (whether or not having the
force of law) shall change the basis of taxation of payments to any Lender or
the Issuing Bank of the principal of or interest on any LIBOR Loan made by such
Lender or any Fees or other amounts payable hereunder (other than changes in
respect of taxes imposed on the overall net income of such Lender or the Issuing
Bank by the jurisdiction in which such Lender or the Issuing Bank has its
principal office or by any state of the United States or by any political
subdivision or taxing authority therein), or shall impose, modify or deem
applicable any reserve, special deposit or similar requirement against assets
of, deposits with or for the account of or credit extended by any Lender or the
Issuing Bank (except any such reserve requirement that is reflected in the
Adjusted LIBO Rate) or shall impose on such Lender or the Issuing Bank or the
applicable interbank market any other condition affecting this Amended Agreement
or LIBOR Loans made by such Lender or any Letter of Credit or participation
therein, and the result of any of the foregoing shall be to increase the cost to
such Lender or the Issuing Bank of making or maintaining any LIBOR Loan or
increase the cost to any Lender of issuing or maintaining any Letter of Credit
or purchasing or maintaining a participation therein or to reduce the amount of
any sum received or receivable by such Lender (or Affiliate or parent thereof
which fairly allocates any such increase to the Lender) or the Issuing Bank
hereunder (whether of principal, interest or otherwise) by an amount deemed by
such Lender or the Issuing Bank to be material, then the Borrower will pay to
such Lender or the Issuing Bank, as the case may be,
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upon demand such additional amount or amounts as will compensate such Lender or
the Issuing Bank, as the case may be, for such additional costs actually
incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined that the
adoption after the date hereof of any law, rule, regulation, agreement or
guideline regarding capital adequacy, or any change after the date hereof in any
such law, rule, regulation, agreement or guideline or in the interpretation or
administration thereof by any Governmental Authority (including the National
Association of Insurance Commissioners) charged with the interpretation or
administration thereof, or compliance by any Lender (or any lending office of
such Lender) or the Issuing Bank or any Lender's or the Issuing Bank's holding
company with any request or directive regarding capital adequacy (whether or not
having the force of law) of any Governmental Authority has or would have the
effect of reducing the rate of return on such Lender's or the Issuing Bank's
capital or on the capital of such Lender's or the Issuing Bank's holding
company, if any, as a consequence of this Amended Agreement or the Loans made or
participations in Letters of Credit purchased by such Lender pursuant hereto or
the Letters of Credit issued by the Issuing Bank pursuant hereto to a level
below that which such Lender or the Issuing Bank or such Lender's or the Issuing
Bank's holding company could have achieved but for such applicability, adoption,
change or compliance (taking into consideration such Lender's or the Issuing
Bank's policies and the policies of such Lender's or the Issuing Bank's holding
company with respect to capital adequacy) by an amount deemed by such Lender or
the Issuing Bank to be material, then, from time to time the Borrower shall pay
to such Lender or the Issuing Bank, as the case may be, such additional amount
or amounts as will compensate such Lender or the Issuing Bank or such Lender's
or the Issuing Bank's holding company for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the
circumstances requiring the payment of compensation, the calculations with
respect thereto, and the amount or amounts necessary to compensate such Lender
or the Issuing Bank or its holding company, as applicable, as specified in
paragraph (a) or (b) above shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay such Lender or the
Issuing Bank the amount shown as due on any such certificate delivered by it
within 10 days after its receipt of the same.
(d) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation for any increased costs or reduction in amounts received or
receivable or reduction in return on capital shall not constitute a waiver of
such Lender's or the Issuing Bank's right to demand such compensation. The
protection of this Section 2.14 shall be available to each Lender and the
Issuing Bank regardless of any possible contention of the invalidity or
inapplicability of the law, rule, regulation, agreement, guideline or other
change or condition that shall have occurred or been imposed. In the event any
Lender or the Issuing Bank ever receives a refund from any applicable
Governmental Authority of any amount paid by the Borrower on account of the
provisions of this Section 2.14, the applicable Lender or Issuing Bank, as the
case may be, shall repay those refunded amounts to the Borrower.
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SECTION 2.15. CHANGE IN LEGALITY. (a) Notwithstanding any other
provision of this Amended Agreement, if after the date hereof, (i) any change in
any law or regulation or in the interpretation thereof by any Governmental
Authority charged with the administration or interpretation thereof shall make
it unlawful for any Lender to make or maintain any LIBOR Loan or Foreign
Currency Loan or to give effect to its obligations as contemplated hereby with
respect to any LIBOR Loan or Foreign Currency Loan, or (ii) there shall have
occurred any change in national or international financial, political or
economic conditions, other than those arising under Section 2.24, (including the
imposition of or any change in exchange controls) or currency exchange rates
which would make it impracticable for any Lender to make Loans denominated in
any Foreign Currency to the Borrower, as contemplated by this Amended Agreement,
then, by written notice to the Borrower and to the Administrative Agent, such
Lender may:
(A) declare that LIBOR Loans or Foreign Currency Loans (in the
affected Foreign Currency) will not thereafter (for the duration of
such unlawfulness) be made by such Lender hereunder (or be continued
for additional Interest Periods and ABR Loans will not thereafter (for
such duration) be converted into LIBOR Loans), whereupon any request
for a LIBOR Loan or a Foreign Currency Loan (or to convert an ABR
Borrowing to a Eurodollar Borrowing or to continue a Eurodollar
Borrowing for an additional Interest Period) shall, as to such Lender
only, (I) if such Loan is a U.S. Dollar Revolving Loan, be deemed a
request for an ABR Loan (or a request to continue an ABR Loan as such
for an additional Interest Period or to convert a LIBOR Loan into an
ABR Loan, as the case may be), unless such declaration shall be
subsequently withdrawn, or (II) if such Loan is a Foreign Currency
Revolving Loan, be deemed to have been withdrawn, unless such
declaration shall be subsequently withdrawn; and
(B) require that all outstanding LIBOR Loans or Foreign
Currency Loans (in the affected Foreign Currency) as the case may be,
made by it be (I) if such Loans are U.S. Dollar Revolving Loans,
converted to ABR Loans, in which event all such LIBOR Loans shall be
automatically converted to ABR Loans as of the effective date of such
notice as provided in paragraph (b) below or (II) if such Loans are
Foreign Currency Revolving Loans, repaid immediately, in which event
all such Foreign Currency Revolving Loans (in the affected Foreign
Currency) shall be required to be repaid in full by the Borrower as of
the effective date of such notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above with
respect to any U.S. Dollar Revolving Loans, all payments and prepayments of
principal that would otherwise have been applied to repay the LIBOR Loans that
would have been made by such Lender or the converted LIBOR Loans of such Lender
shall instead be applied to repay the ABR Loans made by such Lender in lieu of,
or resulting from the conversion of, such LIBOR Loans.
(b) For purposes of this Section 2.15, a notice to the Borrower by any
Lender shall be effective as to each LIBOR Loan made by such Lender, if lawful,
on the last day of the
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Interest Period currently applicable to such LIBOR Loan or, if there are then
two or more current Interest Periods, on the last day of each such Interest
Period, respectively; otherwise, such notice shall be effective on the date of
receipt by the Borrower.
SECTION 2.16. INDEMNITY. The Borrower shall indemnify each Lender
against any loss or expense that such Lender may sustain or incur as a
consequence of (a) any event, other than a default by the Agents or such Lender
in the performance of its obligations hereunder, which results in (i) such
Lender receiving or being deemed to receive any amount on account of the
principal of any LIBOR Loan prior to the end of the Interest Period in effect
therefor, (ii) the conversion of any LIBOR Loan to a Loan of another Type, or
the conversion of the Interest Period with respect to any LIBOR Loan, in each
case other than on the last day of the Interest Period in effect therefor, (iii)
any LIBOR Loan to be made by such Lender (including any LIBOR Loan to be made
pursuant to a conversion or continuation under Section 2.11) not being made
after notice of such Loan shall have been given by the Borrower hereunder (any
of the events referred to in this clause (a) being called a "BREAKAGE EVENT") or
(b) any default by the Borrower in the making of any payment or prepayment
required to be made hereunder. In the case of any Breakage Event, such loss
shall include an amount equal to the excess, as reasonably determined by such
Lender, of (i) its cost of obtaining funds for the LIBOR Loan that is the
subject of such Breakage Event for the period from the date of such Breakage
Event to the last day of the Interest Period in effect (or that would have been
in effect) for such Loan over (ii) the amount of interest likely to be realized
by such Lender in redeploying the funds released or not utilized by reason of
such Breakage Event for such period. A certificate of any Lender setting forth
any amount or amounts which such Lender is entitled to receive pursuant to this
Section 2.16 shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay each Lender the amount shown as due on
any such certificate delivered by it within 10 days after its receipt of the
same.
SECTION 2.17. PRO RATA TREATMENT. Except as required under Section 2.15
and as provided in this Section 2.17 with respect to Swingline Loans, each
Borrowing, each payment or prepayment of principal of any Borrowing, each
payment of interest on the Loans, each payment of the Facility Fees, each
reduction of the Revolving Credit Commitments and each refinancing of any
Borrowing with, conversion of any Borrowing to, or continuation of any Borrowing
as, a Borrowing of any Type shall be allocated pro rata among the Lenders in
accordance with their respective applicable Commitments (or, if such Commitments
shall have expired or been terminated, in accordance with the sum of (a) the
respective principal amounts of their applicable outstanding Loans and (b) the
respective amounts of their Letter of Credit Exposure). For purposes of
determining the available Revolving Credit Commitments of the Lenders at any
time, each outstanding Swingline Loan shall be deemed to have utilized the
Revolving Credit Commitments of the Lenders (including those Lenders which shall
not have made Swingline Loans) pro rata in accordance with such respective
Revolving Credit Commitments. Each Lender agrees that in computing such Lender's
portion of any Borrowing to be made hereunder, the Administrative Agent may, in
its discretion, round each Lender's percentage of such Borrowing to the next
higher or lower whole dollar amount.
SECTION 2.18. SHARING OF SETOFFS. Each Lender agrees that if it shall,
through the
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exercise of a right of banker's lien, setoff or counterclaim against the
Borrower, or pursuant to a secured claim under Section 506 of Title 11 of the
United States Code or other security or interest arising from, or in lieu of,
such secured claim, received by such Lender under any applicable bankruptcy,
insolvency or other similar law or otherwise or by any other means, obtain
payment (voluntary or involuntary) in respect of any Loan or Loans as a result
of which the unpaid principal portion of its Loans of any Class shall be
proportionately less than the unpaid principal portion of the Loans of such
Class of any other Lender, it shall be deemed simultaneously to have purchased
from such other Lender at face value, and shall promptly pay to such other
Lender the purchase price for, a participation in such Loans of such other
Lender, so that the aggregate unpaid principal amount of the Loans and
participations in Loans of any Class held by each Lender shall be in the same
proportion to the aggregate unpaid principal amount of all Loans of such Class
then outstanding as the principal amount of its Loans of such Class prior to
such exercise of banker's lien, setoff or counterclaim or other event was to the
principal amount of all Loans of such Class outstanding prior to such exercise
of banker's lien, setoff or counterclaim or other event; PROVIDED, HOWEVER,
that, if any such purchase or purchases or adjustments shall be made pursuant to
this Section 2.18 and the payment giving rise thereto shall thereafter be
recovered, such purchase or purchases or adjustments shall be rescinded to the
extent of such recovery and the purchase price or prices or adjustment restored
without interest. For purposes of this Section 2.18, the Revolving Loans of any
Lender shall include such Lender's Letter of Credit Exposure. The Borrower
expressly consents to the foregoing arrangements and agrees that any Lender
holding a participation in a Loan deemed to have been so purchased may exercise
any and all rights of banker's lien, setoff or counterclaim with respect to any
and all moneys owing by the Borrower to such Lender by reason thereof as fully
as if such Lender had made a Loan directly to the Borrower in the amount of such
interest.
SECTION 2.19. PAYMENTS. (a) Unless expressly provided otherwise herein,
the Borrower shall make each payment (including principal of or interest on any
Borrowing or any Fees or other amounts) hereunder or under any other Loan
Document without setoff, defense or counterclaim not later than the time
required by subparagraph 2.19(d) below, on the date when due in dollars to the
Administrative Agent, in immediately available funds.
(b) Whenever any payment (including principal of or interest on any
Borrowing or any Fees or other amounts) hereunder or under any other Loan
Document shall become due, or otherwise would occur, on a day that is not a
Business Day, such payment may be made on the next succeeding Business Day, and
such extension of time shall in such case be included in the computation of
interest or Fees, if applicable.
(c) With respect to any Foreign Currency Revolving Loan, each payment
on account of an amount due from the Borrower hereunder or under any other Loan
Document shall be made by such Borrower to the Administrative Agent in the
currency in which such amount is denominated and in such funds as are customary
at the place and time of payment for the settlement of international payments in
such currency. Without limiting the terms of the preceding sentence, accrued
interest on any Loans denominated in a Foreign Currency shall be payable in the
same Foreign Currency as such Loan. Upon request, the
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Administrative Agent will give the Borrower a statement showing the computation
used in calculating such amount, which statement shall be conclusive in the
absence of manifest error. The obligation of the Borrower to make each payment
on account of such amount in the currency in which such amount is denominated
shall not be discharged or satisfied by any tender, or any recovery pursuant to
any judgment, which is expressed in or converted into any other currency, except
to the extent such tender or recovery shall result in the actual receipt by the
Administrative Agent of the full amount in the appropriate currency payable
hereunder. The Borrower agrees that its obligation to make each payment on
account of such amount in the currency in which such amount is denominated shall
be enforceable as an additional or alternative claim for recovery in such
currency of the amount (if any) by which such actual receipt shall fall short of
the full amount of such currency payable hereunder, and shall not be affected by
judgment being obtained for such amount.
(d) Except as otherwise specifically provided herein, each payment
(including principal of or interest on, any Loan, any Fees, or other fees or
amounts) hereunder and under any instrument delivered hereunder shall be made to
the Administrative Agent in immediately available funds, without offset,
deduction, counterclaim or withholding of any kind, prior to 11:00 a.m., local
time in the place where such payment is required to be made pursuant to this
subsection (d) on the date due at:
with respect to payment in British Pounds Sterling:
Lloyds Bank, PLC London, England
For Credit To: Bank One International Corp., Dallas
Account No.: 00000000
For Credit To: Bank One, N.A. (Dayton)
For Credit To: Xxxxxxx & Xxxxx, Inc.
Obligor 2674419219
(Attention: Xxxxx Xxxxxxxx (000) 000-0000)
with respect to payment in German Marks:
Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxx
For Credit To: Bank One International Corp., Dallas
Account No.: 8.183.478.00
For Credit To: Bank One, N.A. (Dayton)
For Credit To; Xxxxxxx & Xxxxx, Inc.
Obligor 2674419219
(Attention: Xxxxx Xxxxxxxx (000) 000-0000)
or at such other place as may be designated by the Administrative Agent to the
Borrower in writing. Any payments received after such time shall be deemed
received on the next succeeding Business Day.
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SECTION 2.20. TAXES. (a) Any and all payments by or on behalf of the
Borrower or any Subsidiary hereunder and under any other Loan Document shall be
made, in accordance with Section 2.19, free and clear of and without deduction
for any and all current or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, EXCLUDING (i) income
taxes or branch profit taxes imposed on the net income of any Agent, any Lender
or the Issuing Bank (or any transferee or assignee thereof, including a
participation holder (any such entity a "TRANSFEREE")) and (ii) franchise taxes
imposed on the net income of any Agent, any Lender or the Issuing Bank (or
Transferee), in each case by the jurisdiction under the laws of which any Agent,
such Lender or the Issuing Bank (or Transferee) is organized or any political
subdivision thereof or the jurisdiction in which such Lender or Transferee has
its applicable lending office (all such nonexcluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities, collectively or individually,
being called "Taxes" and all such excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being called "EXCLUDED TAXES"). Subject to
the provisions of Section 2.20(f) if the Borrower or any Subsidiary shall be
required to deduct any Taxes from or in respect of any sum payable hereunder or
under any other Loan Document to any Lender or the Issuing Bank (or any
Transferee) or either Agent, (A) the sum payable shall be increased by the
amount (an "ADDITIONAL AMOUNT") necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 2.20 but excluding Excluded Taxes) such Lender or the Issuing Bank
(or Transferee) or Agent, as the case may be, shall receive an amount equal to
the sum it would have received had no such deductions been made, (B) the
Borrower or such Subsidiary shall make such deductions and (C) the Borrower or
such Subsidiary shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
(b) In addition, the Borrower agrees to pay to the relevant
Governmental Authority in accordance with applicable law, any current or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies (including mortgage recording taxes and similar fees) that arise
from any payment made hereunder or under any other Loan Document or from the
execution, delivery or registration of, or otherwise with respect to, this
Amended Agreement or any other Loan Document ("OTHER TAXES").
(c) The Borrower will indemnify each Lender (or Transferee), each Agent
and the Issuing Bank (or Transferee) for the full amount of Taxes and Other
Taxes paid by such Lender (or Transferee) or Agent or the Issuing Bank, as the
case may be, and any liability (excluding Excluded Taxes, but including
penalties, interest and expenses (including reasonable attorneys' fees and
expenses)) arising therefrom or with respect thereto, whether or not such Taxes
or Other Taxes were correctly or legally asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability and the
method of computation thereof prepared by the Administrative Agent, the
Syndication Agent, a Lender or the Issuing Bank (or Transferee) or any Agent on
its behalf, absent manifest error, shall be final, conclusive and binding for
all purposes. Such indemnification shall be made within 30 days after the date
any Agent, any Lender or the Issuing Bank (or Transferee), as the case may be,
makes written demand therefor and provides the Borrower with the certificate
described above.
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(d) If any Lender (or Transferee) or Agent shall become aware that it
is entitled to claim a refund in respect of Taxes or Other Taxes as to which it
has been indemnified by the Borrower, or with respect to which the Borrower has
paid additional amounts, pursuant to this Section 2.20, it shall promptly notify
the Borrower of the availability of such refund claim and shall, within 30 days
after receipt of a request by the Borrower, make a claim to such Governmental
Authority for such refund at the Borrower's expense. If any Lender (or
Transferee) or Agent receives a refund (including pursuant to a claim for refund
made pursuant to the preceding sentence) in respect of any Taxes or Other Taxes
as to which it has been indemnified by the Borrower, or with respect to which
the Borrower has paid additional amounts, pursuant to this Section 2.20, it
shall within 30 days from the date of such receipt, so long as no Event of
Default has occurred and is continuing, pay over such refund to the Borrower
(but only to the extent of indemnity payments made, or additional amounts paid,
by the Borrower under this Section 2.20 with respect to the Taxes or Other Taxes
giving rise to such refund), net of all out-of-pocket expenses of such Lender
(or Transferee) or Agent and without interest (other than interest paid by the
relevant Governmental Authority with respect to such refund); PROVIDED, HOWEVER,
that the Borrower, upon the request of such Lender (or Transferee) or Agent,
agrees to repay the amount paid over to the Borrower (plus penalties, interest
or other charges) to such Lender (or Transferee) or Agent in the event such
Lender (or Transferee) or Agent is required to repay such refund to such
Governmental Authority.
(e) As soon as practicable after the date of any payment of Taxes or
Other Taxes by the Borrower or any Subsidiary to the relevant Governmental
Authority, the Borrower or such Subsidiary will deliver to the Administrative
Agent, at its address referred to in Section 9.01, the original or a certified
copy of a receipt issued by such Governmental Authority evidencing payment
thereof.
(f) Each Lender (or Transferee) that is organized under the laws of a
jurisdiction other than the United States, any State thereof or the District of
Columbia (a "NON-U.S. LENDER") shall deliver to the Borrower and the
Administrative Agent two copies of (i) either United States Internal Revenue
Service Form 1001 or Form 4224, or, in the case of a Non-U.S. Lender claiming
exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of
the Code with respect to payments of "portfolio interest", a Form W-8, or any
subsequent versions thereof or successors thereto (and, if such Non-U.S. Lender
delivers a Form W-8, a certificate representing that such Non-U.S. Lender is not
a bank for purposes of Section 881(c) of the Code, is not a 10-percent
shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the
Borrower and is not a controlled foreign corporation related to the Borrower
(within the meaning of Section 864(d)(4) of the Code)), properly completed and
duly executed by such Non-U.S. Lender claiming complete exemption from, or
reduced rate of, U.S. Federal withholding tax on payments by the Borrower under
this Amended Agreement and the other Loan Documents and (ii) an Internal Revenue
Service Form W-8 or W-9 entitling such Non-U.S. Lender to receive a complete
exemption from United States backup withholding tax. Such forms shall be
delivered by each Non-U.S. Lender on or before the date it becomes a party to
this Amended Agreement (or, in the case of a Transferee that is a participation
holder, on or before the date such participation holder
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becomes a Transferee hereunder) and on or before the date, if any, such Non-U.S.
Lender changes its applicable lending office by designating a different lending
office (a "NEW LENDING OFFICE"). In addition, each Non-U.S. Lender shall deliver
such forms promptly upon the obsolescence or invalidity of any form previously
delivered by such Non-U.S. Lender. If a Non-U.S. Lender who has delivered the
forms referred to above on the date it becomes a party to this Amended Agreement
(or, in the case of a Transferee, on the date that it becomes a Transferee
hereunder) determines that it is unable subsequently to submit to the Borrower
any such form, or that it is required to withdraw or cancel any such form, such
Non-U.S. Lender shall promptly notify the Borrower of such fact. Notwithstanding
any other provision of this Section 2.20(g), a Non-U.S. Lender shall not be
required to deliver any form pursuant to this Section 2.20(g) that such Non-U.S.
Lender is not legally able to deliver.
(g) The Borrower shall not be required to indemnify any Non-U.S.
Lender, or to pay any additional amounts to any Non-U.S. Lender, in respect of
United States Federal withholding tax pursuant to paragraph (a) or (c) above to
the extent that (i) the obligation to pay such additional amounts would not have
arisen but for a failure by such Non-U.S. Lender to comply with Section 2.20(f)
or (ii) the obligation to withhold amounts with respect to United States Federal
withholding tax existed on the date such Non-U.S. Lender become a party to this
Amended Agreement (or, in the case of a Transferee that is a participation
holder, on the date such participation holder became a Transferee hereunder) or,
with respect to payments to a New Lending Office, the date such Non-U.S. Lender
designated such New Lending Office with respect to a Loan; PROVIDED, HOWEVER,
that this clause (ii) shall not apply (A) to any Transferee or New Lending
Office that becomes a Transferee or New Lending Office as a result of an
assignment, participation, transfer or designation made at the request of the
Borrower and (B) to the extent the indemnity payment or additional amounts any
Transferee, or any Lender (or Transferee) acting through a New Lending Office,
would be entitled to receive (without regard to this clause (ii)) do not exceed
the indemnity payment or additional amounts that the person making the
assignment, participation or transfer to such Transferee, or Lender (or
Transferee) making the designation of such New Lending Office, would have been
entitled to receive in the absence of such assignment, participation, transfer
or designation or (ii) the obligation to pay such additional amounts would not
have arisen but for a failure by such Non-U.S. Lender to comply with the
provisions of paragraph (f) above.
(h) Nothing contained in this Section 2.20 shall require any Lender or
the Issuing Bank (or Transferee) or any Agent to make available any of its tax
returns (or any other information that it deems to be confidential or
proprietary).
(i) The provisions of this Section 2.20 shall remain operative and in
full force and effect regardless of the expiration of the term of this Amended
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the invalidity or unenforceability of any term or
provision of this Amended Agreement or any other Loan Document, or any
investigation made by or on behalf of any Agent or any Lender.
SECTION 2.21. ASSIGNMENT OF COMMITMENTS UNDER CERTAIN CIRCUMSTANCES;
DUTY TO MITIGATE. (a) In the event (i) any Lender or the Issuing Bank delivers a
certificate requesting
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compensation pursuant to Section 2.14, (ii) any Lender or the Issuing Bank
delivers a notice described in Section 2.15 or (iii) the Borrower is required to
pay any additional amount to any Lender or the Issuing Bank or any Governmental
Authority on account of any Lender or the Issuing Bank pursuant to Section 2.20,
the Borrower may, at its sole expense and effort (including with respect to the
processing and recordation fee referred to in Section 9.04(b)), upon notice to
such Lender or the Issuing Bank and the Agents, as the case may be, require such
Lender or the Issuing Bank, as applicable, to transfer and assign, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all of its interests, rights and obligations under this Amended
Agreement to an assignee reasonably acceptable to the Agents that shall assume
such assigned obligations (which assignee may be another Lender, if a Lender
accepts such assignment), PROVIDED, THAT (A) such assignment shall not conflict
with any law, rule or regulation or order of any court or other Governmental
Authority having jurisdiction, (B) the Borrower shall have received the prior
written consent of the Agents (and, if a Revolving Credit Commitment is being
assigned, of the Issuing Bank and the Swingline Lender), which consent shall not
unreasonably be withheld, (C) no Event of Default shall have occurred and be
continuing and (D) the Borrower or such assignee shall have paid to the affected
Lender or the Issuing Bank in immediately available funds an amount equal to the
sum of 100% of the principal of and interest accrued to the date of such payment
on the outstanding Loans or Letter of Credit Disbursements of such Lender or the
Issuing Bank, respectively, plus all Fees and other amounts accrued for the
account of such Lender or the Issuing Bank hereunder (including any amounts
under Section 2.14 and Section 2.16); PROVIDED, FURTHER, that if prior to any
such assignment the circumstances or event that resulted in such Lender's notice
or certificate under Section 2.14 or 2.15 or demand for additional amounts under
Section 2.20, as the case may be, shall cease to exist or become inapplicable
for any reason or if such Lender shall waive its rights in respect of such
circumstances or event under Section 2.14, 2.15, 2.16 or 2.20, as the case may
be, then such Lender shall not thereafter be required to make any such
assignment hereunder.
(b) If (i) any Lender or the Issuing Bank shall request compensation
under Section 2.14, (ii) any Lender or the Issuing Bank delivers a notice
described in Section 2.15 or (iii) the Borrower is required to pay any
additional amount to any Lender or the Issuing Bank or any Governmental
Authority on account of any Lender or the Issuing Bank, pursuant to Section
2.20, then such Lender or the Issuing Bank shall use reasonable efforts (which
shall not require such Lender or the Issuing Bank to incur an unreimbursed loss
or unreimbursed cost or expense or otherwise take any action inconsistent with
its internal policies or legal or regulatory restrictions or suffer any
disadvantage or burden deemed by it to be significant) (A) to file any
certificate or document reasonably requested in writing by the Borrower or (B)
to assign its rights and delegate and transfer its obligations hereunder to
another of its offices, branches or affiliates, if such filing or assignment
would reduce its claims for compensation under Section 2.14 or enable it to
withdraw its notice pursuant to Section 2.15 or would reduce amounts payable
pursuant to Section 2.20, as the case may be, in the future. The Borrower hereby
agrees to pay all reasonable costs and expenses incurred by any Lender or the
Issuing Bank in connection with any such filing or assignment, delegation and
transfer.
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SECTION 2.22. SWINGLINE LOANS.
(a) SWINGLINE LOANS. The Borrower shall notify the Administrative Agent
by telecopy, or by telephone (confirmed by telecopy), not later than 12:00
(noon), Eastern Standard Time, on the day of a proposed Swingline Loan. Such
notice shall be delivered on a Business Day, shall be irrevocable and shall
refer to this Amended Agreement and shall specify the requested date (which
shall be a Business Day) and amount of such Swingline Loan. The Administrative
Agent will promptly advise the Swingline Lender of any notice received from the
Borrower pursuant to this paragraph (a). The Swingline Lender shall make each
Swingline Loan available to the Borrower by means of a credit to the general
deposit account of the Borrower with the Swingline Lender by 6:00 p.m. on the
date such Swingline Loan is so requested.
(b) PREPAYMENT. The Borrower shall have the right at any time and from
time to time to prepay any Swingline Loan, in whole or in part, upon giving
written or telecopy notice (or telephone notice promptly confirmed by written,
or telecopy notice) to the Swingline Lender and to the Administrative Agent
before 12:00 noon, Eastern Standard Time, on the date of prepayment at the
Swingline Lender's address for notices specified in Section 9.01.
(c) PARTICIPATIONS. The Swingline Lender may by written notice given to
the Administrative Agent not later than 1:00 p.m., Eastern Standard Time, on any
Business Day require the Lenders to acquire participations on such Business Day
in all or a portion of the Swingline Loans outstanding. Such notice shall
specify the aggregate amount of Swingline Loans in which Lenders will
participate. The Administrative Agent will, by 2:00 p.m., Eastern Standard Time,
on the date of receipt of such notice, give notice to each Lender, specifying in
such notice such Lender's Applicable Percentage of such Swingline Loan or Loans.
In furtherance of the foregoing, each Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above, to pay to the
Administrative Agent by 4:00 p.m., Eastern Standard Time, on the date such
notice is received from the Swingline Lender, for the account of the Swingline
Lender, such Lender's Applicable Percentage of such Swingline Loan or Loans.
Each Lender acknowledges and agrees that its obligation to acquire
participations in Swingline Loans pursuant to this paragraph is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including the occurrence and continuance of a Default or an Event of Default,
and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever. Each Lender shall comply with its
obligation under this paragraph by wire transfer of immediately available funds,
in the same manner as provided in Section 2.03(d) with respect to Loans made by
such Lender (and Section 2.03(c) shall apply, MUTATIS MUTANDIS, to the payment
obligations of the Lenders) and the Administrative Agent shall promptly pay to
the Swingline Lender the amounts so received by it from the Lenders. The
Administrative Agent shall notify the Borrower of any participations in any
Swingline Loan acquired pursuant to this paragraph and thereafter payments in
respect of such Swingline Loan shall be made to the Administrative Agent and not
to the Swingline Lender. Any amounts received by the Swingline Lender from the
Borrower (or other party on behalf of the Borrower) in respect of a Swingline
Loan after receipt by the Swingline Lender of the proceeds of a sale of
participations therein shall be
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promptly remitted to the Administrative Agent; any such amounts received by the
Administrative Agent shall be promptly remitted by the Administrative Agent to
the Lenders that shall have made their payments pursuant to this paragraph and
to the Swingline Lender, as their interests may appear. The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not relieve
the Borrower (or other party liable for obligations of the Borrower) of any
default in the payment thereof.
SECTION 2.23. LETTERS OF CREDIT. (a) The Borrower may request the
issuance of (i) Letters of Credit in dollars, in form and substance reasonably
acceptable to the Administrative Agent and the Issuing Bank, for the account of
the Borrower, at any time and from time to time during the Letter of Credit
Availability Period; PROVIDED, THAT, any such Letter of Credit shall be issued
only if, and each request by the Borrower for the issuance of any Letter of
Credit shall be deemed a representation and warranty of the Borrower that,
immediately following the issuance of such Letter of Credit, (A) the aggregate
Dollar Amount of Letter of Credit Exposure resulting from Letters of Credit
(other than ABN AMRO Foreign Currency Letters of Credit) issued by Bank One,
N.A. and The Bank of Nova Scotia, does not exceed $25,000,000, and (B) the sum
of the Dollar Amount of all aggregate Letter of Credit Exposure, the aggregate
Swingline Exposure and the aggregate principal Dollar Amount of outstanding
Revolving Loans does not exceed the aggregate amount of the Revolving Credit
Commitments at such time, (ii) Other Foreign Currency Letters of Credit, in form
and substance reasonably acceptable to the Administrative Agent and Bank One
N.A. or The Bank of Nova Scotia, as the case may be, for the account of the
Borrower, at any time and from time to time during the Letter of Credit
Availability Period; PROVIDED, THAT, any such Other Foreign Currency Letter of
Credit shall be issued only if, and each request by the Borrower for the
issuance of any such Other Foreign Currency Letter of Credit shall be deemed a
representation and warranty of the Borrower that, immediately following the
issuance of such Other Foreign Currency Letter of Credit (A) the aggregate
Dollar Amount of aggregate Letter of Credit Exposure resulting from Letters of
Credit (other than ABN AMRO Foreign Currency Letters of Credit) issued by Bank
One, N.A. and The Bank of Nova Scotia does not exceed $25,000,000 and (B) the
sum of the Dollar Amount of all aggregate Letter of Credit Exposure, the
aggregate Swingline Exposure and the aggregate principal Dollar Amount of
outstanding Revolving Loans does not exceed the aggregate amount of the
Revolving Credit Commitments at such time, and (iii) ABN AMRO Foreign Currency
Letters of Credit, in form and substance reasonably acceptable to the
Administrative Agent and the Issuing Bank, for the account of the Borrower, at
any time and from time to time during the Letter of Credit Availability Period;
PROVIDED, THAT, any such ABN AMRO Foreign Currency Letter of Credit shall be
issued only if, and each request by the Borrower for the issuance of any such
ABN AMRO Foreign Currency Letter of Credit shall be deemed a representation and
warranty of the Borrower that, immediately following the issuance of such ABN
AMRO Foreign Currency Letter of Credit, (A) the aggregate Dollar Amount of
Foreign Currency Letter of Credit Exposure resulting from the ABN AMRO Foreign
Currency Letters of Credit does not exceed $50,000,000 and (B) the sum of the
Dollar Amount of all aggregate Letter of Credit Exposure, the aggregate
Swingline Exposure and the aggregate principal Dollar Amount of outstanding
Revolving Loans does not exceed the aggregate amount of the Revolving Credit
Commitments at such time. For purposes hereof, the "issuance" of a Letter of
Credit includes the
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amendment, renewal or extension of a Letter of Credit.
(b) Each trade Letter of Credit shall expire no later than the earlier
of (i) 270 days after the date of issuance of such Letter of Credit and (ii) the
fifth Business Day prior to the Revolving Credit Maturity Date. Each standby
Letter of Credit shall expire no later than the fifth Business Day prior to the
Revolving Credit Maturity Date.
(c) Each issuance of any Letter of Credit shall be made on at least two
Business Days' prior irrevocable written or telecopy notice (such notice to be
delivered by 12:00 noon, Eastern Standard Time) from the Borrower (or such
shorter notice as shall be acceptable to the Issuing Bank) to the Administrative
Agent and the Issuing Bank specifying whether such Letter of Credit is a standby
Letter of Credit or a trade Letter of Credit, the date of issuance, the date on
which such Letter of Credit is to expire, the amount of such Letter of Credit,
whether such Letter of Credit is to be issued in dollars or a Foreign Currency
(and if such Letter of Credit is to be issued in a Foreign Currency, the
applicable Foreign Currency and whether such Letter of Credit is to be an Other
Foreign Currency Letter of Credit or an ABN AMRO Foreign Currency Letter of
Credit), the name and address of the beneficiary of such Letter of Credit, and
such other information as may be necessary or desirable to complete such Letter
of Credit; provided, that, with respect to ABN AMRO Foreign Currency Letters of
Credit any such Letter of Credit issued in the same Foreign Currency shall be
issued in amounts that shall not be less than the approximate Dollar Equivalent
of US $2,000,000 or multiples thereof (or such other amounts as agreed to by the
Issuing Bank in its sole discretion), however, with respect to ABN AMRO Letters
of Credit to be issued in Singapore dollars, no such Letter of Credit shall be
issued in an amount that is less than the approximate Dollar Equivalent of U.S.
$250,000 or multiples thereof. The Issuing Bank(s) will give the Administrative
Agent prompt notice of the issuance and amount of such Letter of Credit and the
expiration date of such Letter of Credit (and the Administrative Agent shall
give prompt notice thereof to the Syndication Agent and each Lender). During the
Letter of Credit Availability Period, the Issuing Bank(s) also will give the
Administrative Agent (i) if and when requested, notice of the amount available
to be drawn under each outstanding Letter of Credit and (ii) prompt notice of
any payment or disbursement that has been or will be made under any Letter of
Credit. Each Letter of Credit (other than Foreign Currency Letters of Credit)
issued hereunder will be subject to the Uniform Customs and Practices for
Documentary Credits, as in effect from time to time. Each Foreign Currency
Letter of Credit issued hereunder shall be subject to and incorporate the
Uniform Customs and Practice for Documentary Credits, 1993 Revision,
International Chamber of Commerce Publication No. 500 (the "UCP") (other than
Articles 41 and 43 thereof with respect to standby Letters of Credit); to the
extent not inconsistent with the UCP, Article 5 of the Uniform Commercial Code
as adopted in Ohio ("ARTICLE 5"); and Section 5-102(a)(10) of the 1995 Official
Text with comments of the Uniform Commercial Code Revised Article 5, as
promulgated by the American Law Institute and National Conference of
Commissioners on Uniform State Laws ("REVISED ARTICLE 5"), which section of
Revised Article 5 shall govern and control over any inconsistent provision of
the UCP or Article 5.
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(d) By the issuance of a Letter of Credit and without any further
action on the part of the Issuing Bank, the Agents or the Lenders in respect
thereof, the Issuing Bank hereby grants to each Lender, and each Lender hereby
acquires from the Issuing Bank, a participation in such Letter of Credit equal
to such Lender's Applicable Percentage of the aggregate amount available to be
drawn under such Letter of Credit, effective upon the issuance of such Letter of
Credit. In consideration and in furtherance of the foregoing, each Lender hereby
absolutely and unconditionally agrees to pay to the Administrative Agent, on
behalf of the Issuing Bank, in accordance with Section 2.03(e), such Lender's
Applicable Percentage of the amount of each Letter of Credit Disbursement in the
currency of such disbursement made by the Issuing Bank and not reimbursed by the
Borrower when due in accordance with Section 2.23(g).
(e) Each Lender acknowledges and agrees that its obligation to acquire
participations pursuant to Section 2.23(d) in respect of Letters of Credit is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including the occurrence and continuance of a Default or Event of
Default, and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever.
(f) The Borrower shall pay to the Administrative Agent, for the account
of the Lenders and the Issuing Bank, as applicable, a nonrefundable Letter of
Credit Fee and Fronting Fee in accordance with Section 2.06(b). In addition to
the foregoing fees and commissions, the Borrower shall pay or reimburse the
Issuing Bank for such normal and customary costs and expenses, including,
without limitation, administrative, issuance, amendment, payment and negotiation
charges, as are incurred or charged by the Issuing Bank in issuing, effecting
payment under, amending or otherwise administering any Letter of Credit
(including any Letter of Credit issued for the account of a Subsidiary).
(g) The Borrower hereby agrees to reimburse the Issuing Bank for any
payment or disbursement made by the Issuing Bank under any Letter of Credit
(including any Letter of Credit issued for the account of a Subsidiary), by
making payment in immediately available funds, to the Administrative Agent on
the same Business Day after receipt of notice of such payment or disbursement
(or notice that such payment or disbursement will be made), in the amount and
currency of such payment or disbursement, plus interest on the amount so paid or
disbursed by the Issuing Bank, at a rate per annum equal to the greater of (i)
the rate applicable to ABR Loans pursuant to Section 2.07 or (ii) the cost on a
per annum basis to the Issuing Bank of the funds so paid or disbursed under the
Letter of Credit plus the Applicable LIBOR Margin (such cost plus such margin
being referred to herein as the "Cost of Funds"); PROVIDED, THAT, if such amount
is not reimbursed prior to 2:00 p.m., Eastern Standard Time, on the same
Business Day after receipt by the Borrower of the notice of such payment or
disbursement (or notice that such payment or disbursement will be made),
interest shall thereafter accrue on such unreimbursed amount at a rate per annum
equal to the greater of (i) the rate applicable to ABR Loans during such period
pursuant to Section 2.07, plus 2.00% or (ii) the Cost of Funds plus 2.00%. The
Administrative Agent shall promptly pay any such amounts received by it to the
Issuing Bank. Borrower hereby agrees to indemnify and hold harmless each Agent,
each Issuing Bank, and each Lender (in any capacity hereunder) from and against
any and all loss, liability, cost, and expense arising at any time or times from
the
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exchange of one or more currencies for one or more other currencies hereunder.
(h) The Borrower's obligation to reimburse Letter of Credit
Disbursements as provided in Section 2.23(g) shall be absolute, unconditional
and irrevocable and shall be performed strictly in accordance with the terms of
this Amended Agreement under any and all circumstances whatsoever, and
irrespective of:
(i) any lack of validity or enforceability of any Letter of
Credit or any other Loan Document or any term or provision therein;
(ii) the existence of any claim, setoff, defense or other
right which the Borrower, any Subsidiary or any other person may at any
time have against the beneficiary under any Letter of Credit, the
Issuing Bank, the Agents, any Lender or any other person, whether in
connection with this Amended Agreement, any other Loan Document or any
other related or unrelated agreement or transaction;
(iii) any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or failing to comply with the Uniform Customs and Practices for
Documentary Credits, as in effect from time to time, or any statement
therein being untrue or inaccurate in any respect;
(iv) payment by the Issuing Bank under a Letter of Credit
against presentation of a draft or other document which does not comply
with the terms of such Letter of Credit;
(v) any amendment, waiver or consent in respect of this
Amended Agreement or any other Loan Document; and
(vi) any other act or omission or delay of any kind or any
other circumstance or event whatsoever, whether or not similar to any
of the foregoing and whether or not foreseeable, that might, but for
the provisions of this Section 2.23(h), constitute a legal or equitable
discharge of the Borrower's obligations hereunder.
(i) Without limiting the generality of the provisions of the foregoing
paragraph (h), it is expressly understood and agreed that the absolute and
unconditional obligation of the Borrower hereunder to reimburse Letter of Credit
Disbursements will not be excused by the gross negligence or willful misconduct
of the Issuing Bank. However, the preceding sentence and the provisions of
Section 2.23(h) shall not be construed to excuse the Issuing Bank from liability
to the Borrower to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by the Borrower to the
extent permitted by applicable law) suffered by the Borrower that are caused by
the Issuing Bank's bad faith, gross negligence or willful misconduct in
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. It is understood that 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
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and, in making any payment under any Letter of Credit (i) the Issuing Bank's
exclusive reliance in good faith on the documents presented to it under such
Letter of Credit as to any and all matters set forth therein, including reliance
on the amount of any draft presented under such Letter of Credit, if such
document on its face appears to be in order, and whether or not any other
statement or any other document presented pursuant to such Letter of Credit
proves to be forged or invalid or any statement therein proves to be inaccurate
or untrue in any respect whatsoever and (ii) any noncompliance in any immaterial
respect of the documents presented under such Letter of Credit with the terms
thereof shall, in each case, be deemed not to constitute bad faith, gross
negligence or willful misconduct of the Issuing Bank.
(j) The Issuing Bank shall, promptly following its receipt thereof,
examine all documents purporting to represent a demand for payment under a
Letter of Credit. The Issuing Bank shall as promptly as possible give telephonic
notification, confirmed by telex or telecopy, to the Administrative Agent and
the Borrower of such demand for payment and whether the Issuing Bank has made or
will make a Letter of Credit Disbursement thereunder; PROVIDED, THAT, the
failure to give such notice shall not relieve the Borrower of its obligation to
reimburse any such Letter of Credit Disbursement in accordance with this Section
2.23. The Administrative Agent shall promptly give each Lender notice thereof.
(k) In the event that the Borrower is required or elects pursuant to
the terms of this Amended Agreement, including, but not limited to, Sections
2.12(b) and (c) (other than Article VII) or any other Loan Document, to provide
cash collateral in respect of the Letter of Credit Exposure, the Borrower shall
deposit in an account with the Administrative Agent, for the benefit of each
Lender, an amount in cash equal to the amount of such Letter of Credit Exposure
(or such lesser amount as shall be required hereunder or thereunder); the amount
to be deposited shall be denominated in the currency or currencies of the
Letter(s) of Credit outstanding as determined by the relevant Issuing Bank(s).
Such deposit shall be held by the Administrative Agent as collateral for the
payment and performance of the Obligations to Lenders. The Administrative Agent
shall have exclusive dominion and control, including the exclusive right of
withdrawal, over such account. Other than any interest earned on the investment
of such deposits in Cash Equivalents, which investments shall be made as
directed by the Borrower (subject, however, to the preservation of such deposits
in the currency in which deposited and unless such investments shall be contrary
to applicable law or regulation or a Default or Event of Default shall have
occurred and be continuing, in which case the Administrative Agent shall
determine in its discretion whether to make investments and, if so, shall
determine in its discretion the Cash Equivalents to be selected), such deposits
shall not bear interest. Interest or profits, if any, on such investments shall
accumulate in such account. Borrower hereby pledges all such deposits and
accounts and cash collateral, together with the proceeds, investments, and
increases thereof and the interest thereon, to the Administrative Agent for the
benefit of the Issuing Banks and the other Lenders to secure payment and
performance of the Obligations. Moneys in such account shall automatically be
applied by the Administrative Agent to reimburse the Issuing Bank for Letter of
Credit Disbursements and, if the maturity of the Loans has been accelerated, to
satisfy the Obligations to the Lenders. If the Borrower is required to provide
an amount of cash collateral hereunder pursuant to Section 2.12(c), such amount
(to the extent not applied as aforesaid) shall be returned to the Borrower
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upon demand; PROVIDED, THAT, after giving effect to such return, (i) the sum of
the Dollar Amount of the aggregate Letter of Credit Exposure, plus the aggregate
outstanding Swingline Exposure, plus the aggregate outstanding Dollar Amount of
Revolving Loans would not exceed the aggregate Revolving Credit Commitments,
(ii) the Dollar Amount of Letters of Credit (other than ABN AMRO Foreign
Currency Letters of Credit) does not exceed $25,000,000, (iii) the Dollar Amount
of the ABN AMRO Foreign Currency Letters of Credit does not exceed $50,000,000
and (iv) no Default or Event of Default shall have occurred and be continuing.
In the event that the Borrower is required pursuant to the terms of Article VII
of this Amended Agreement to provide cash collateral in respect of Letter of
Credit Exposure, the Borrower shall deposit such cash collateral in an account
with the Collateral Agent pursuant to the Collateral Agency Agreement. Such
deposit shall be held by the Collateral Agent in accordance with the Collateral
Agency Agreement. Any such deposit to be held by the Administrative Agent or the
Collateral Agent, as provided herein, shall be accompanied by notice from the
Borrower, in form satisfactory to the Administrative Agent or the Collateral
Agent, as the case may be, setting forth the basis for such deposit, identifying
in reasonable detail the Letters of Credit to which such deposit relates, and
setting forth any other information related to such deposit reasonably requested
by the Administrative Agent or the Collateral Agent, as the case may be. The
Borrower shall promptly provide the Administrative Agent with a copy of any such
notice to the Collateral Agent and shall promptly provide the Collateral Agent
with a copy of any such notice to the Administrative Agent. If the Borrower is
required to provide an amount of cash collateral hereunder as a result of an
Event of Default, such amount (to the extent not applied as aforesaid) shall be
returned to the Borrower within three Business Days after all Events of Default
have been cured or waived.
SECTION 2.24. INTRODUCTION OF THE EURO. (a) If, as a result of the
implementation of the European economic and monetary union ("EMU"), (i) any
currency available for borrowing under this Amended Agreement (a "national
currency") ceases to be lawful currency of the state issuing the same and is
replaced by a European single or common currency (the "Euro") or (ii) any
national currency and the Euro are at the same time both recognized by the
central bank or comparable governmental authority of the state issuing such
currency as lawful currency of such state, then any amount payable hereunder by
any party hereto in such national currency (including, without limitation, any
Loans to be made under this Amended Agreement) shall instead be payable in Euro
and the amount so payable shall be determined by redenominating or converting
such amount into Euro at the exchange rate officially fixed by the European
Central Bank for the purpose of implementing the EMU; PROVIDED, that to the
extent any EMU legislation provides that an amount denominated either in Euro or
in the applicable national currency can be paid either in Euro or in the
applicable national currency, each party to this Amended Agreement shall be
entitled to pay or repay such amount in Euro or in the applicable national
currency. Prior to the occurrence of the event or events described in clause (i)
or (ii) of the preceding sentence, each amount payable hereunder in any such
national currency will, except as otherwise provided herein, continue to be
payable only in that national currency.
(b) Borrower shall from time to time, at the request of the
Administrative Agent,
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pay to the Administrative Agent for the account of each Lender the amount of any
cost or increased cost incurred by, or of any reduction in any amount payable to
or in the effective return on its capital to, or of interest or other return
foregone by, such Lender or any holding company of such Lender contemplated by
Sections 2.14, 2.15, 2.16 and 2.20 of this Amended Agreement as a result of the
introduction of, changeover to or operation of the Euro in any applicable state.
(c) In addition, this Amended Agreement (including, without limitation,
the definition of LIBO Rate) will be amended to the extent determined by the
Administrative Agent (acting reasonably and in consultation with the Borrower)
to be necessary to reflect such implementation of the EMU and change in currency
and to put the Lenders and the Borrower in the same position, so far as
possible, that they would have been in if such implementation and change in
currency had not occurred. Except as provided in the foregoing provisions of
this Section 2.24, no such implementation or change in currency nor any economic
consequences resulting therefrom shall (i) give rise to any right to terminate
prematurely, contest, cancel, rescind, alter, modify or renegotiate the
provisions of this Amended Agreement or (ii) discharge, excuse or otherwise
affect the performance of any Obligations of the Borrower under this Amended
Agreement, any Notes or other Loan Documents.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to each of the Lenders that:
SECTION 3.01. ORGANIZATION; POWERS. Each of the Borrower and the
Subsidiaries (a) is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, (b) has all requisite power
and authority to own its property and assets and to carry on its business as now
conducted and as proposed to be conducted, (c) is qualified to do business in
every jurisdiction where such qualification is required, except where the
failure so to qualify would not result in a Material Adverse Effect, and (d) has
the requisite power and authority to execute, deliver and perform its
obligations under each of the Loan Documents and each other agreement or
instrument contemplated thereby to which it is or will be a party and, in the
case of the Borrower, to obtain extensions of credit hereunder.
SECTION 3.02. AUTHORIZATION. The execution, delivery and performance by
each of the Borrower and the Subsidiaries of each of the Loan Documents to which
it is or will be a party (including the exercise of remedies thereunder) and, in
the case of the Borrower, the extensions of credit hereunder (a) have been duly
authorized by all requisite corporate or partnership and, if required,
stockholder action and (b) will not (i) violate (A) any provision of law,
statute, rule or regulation, (B) any provision of the certificate of
incorporation, partnership agreement, operating agreement or other constitutive
documents or by-laws of the Borrower and the Subsidiaries, (C) any order of any
Governmental Authority or (D) any provision of any Material Contract or other
indenture, agreement or instrument to which the
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Borrower or any of the Subsidiaries is a party or by which any of them or any of
their property is or may be bound, (ii) be in conflict with, result in a breach
of or constitute (alone or with notice or lapse of time or both) a default or
give rise to increased, additional, accelerated or guaranteed rights of any
person under any Material Contract or other indenture, agreement or instrument
or (iii) except for the Liens of the Collateral Documents, result in the
creation or imposition of any Lien upon or with respect to any property or
assets now owned or hereafter acquired by the Borrower or any of the
Subsidiaries.
SECTION 3.03. ENFORCEABILITY. This Amended Agreement has been duly
executed and delivered by the Borrower and constitutes, and each other Loan
Document when executed and delivered by the Borrower or any of the Subsidiaries
will constitute, a legal, valid and binding obligation of such party enforceable
against such party in accordance with its terms, subject to the effect of
bankruptcy, insolvency, reorganization, arrangement, moratorium, fraudulent
conveyance, voidable preference or similar laws and the application of equitable
principles generally.
SECTION 3.04. CONSENTS AND GOVERNMENTAL APPROVALS. No action, consent
or approval of, registration or filing with or any other action by (a) any
Governmental Authority, (b) any creditor or shareholder of the Borrower or any
creditor, shareholder, partner or member of the Subsidiaries, (c) any
counterparty to a Material Contract or (d) except where failure to take or
obtain such action, consent or approval of, registration or filing with or such
other action could not reasonably be expected to have a Material Adverse Effect,
any other person, is or will be required in connection with the Revolving Credit
Facility or the performance by the Borrower or any of the Subsidiaries of the
Loan Documents to which it is or will be a party, in each case except such as
have been made or obtained and are in full force and effect.
SECTION 3.05. FINANCIAL STATEMENTS; UNDISCLOSED LIABILITIES. (a) The
Borrower has heretofore furnished to the Lenders its consolidated balance sheet
and statements of income and cash flows as of and for the 1998 Fiscal Year,
audited by and accompanied by the unqualified opinion of Ernst & Young LLP,
independent public accountants. Such financial statements present fairly the
financial condition and results of operations and cash flows of the Borrower and
its Consolidated Subsidiaries as of such dates and for such periods. Such
balance sheet and the notes thereto disclose all material liabilities, direct,
contingent or otherwise, of the Borrower and its Consolidated Subsidiaries as of
the dates thereof for which disclosure is required in accordance with GAAP. Such
financial statements were prepared in accordance with GAAP applied on a
consistent basis, except as otherwise noted therein.
(b) As of the Effective Date, the Borrower and the Subsidiaries do not
have any material liability, contingent or otherwise, required by GAAP to be set
forth on a consolidated balance sheet of the Borrower, except (i) as set forth
in the financial statements referred to in Section 3.05(a), (ii) for items set
forth in Schedule 3.05(b) and (iii) for liabilities and obligations incurred in
the ordinary course of business consistent with past practice.
SECTION 3.06. NO MATERIAL ADVERSE CHANGE. Since August 31, 1998, and as
of the
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Effective Date, there has not been any Material Adverse Change in the business
of the Borrower.
SECTION 3.07. TITLE TO PROPERTIES; POSSESSION UNDER LEASES. (a) Each of
the Borrower and the Subsidiaries has good and marketable title to, or valid
leasehold interests or licenses in, all its properties and assets (including
without limitation, real property and intellectual property interests), except
for defects in title that do not materially interfere with its ability to
conduct its business as currently conducted or to utilize such properties and
assets for their intended purposes. All such properties and assets are free and
clear of Liens, other than Liens permitted by Section 6.02.
(b) Each of the Borrower and the Subsidiaries has complied in all
material respects with all obligations under all material leases to which it is
a party and all such leases are in full force and effect. Each of the Borrower
and the Subsidiaries enjoys peaceful and undisturbed possession under all such
material leases.
SECTION 3.08. SUBSIDIARIES. Schedule 3.08 sets forth a list of all of
the Subsidiaries, the respective jurisdictions of organization thereof and the
percentage ownership interest, direct or indirect, of the Borrower therein. All
of the Subsidiaries are Consolidated Subsidiaries.
SECTION 3.09. LITIGATION; COMPLIANCE WITH LAWS. (a) As of the Effective
Date, except as set forth in Schedule 3.09 or as fully covered by third party
insurance, there are no pending or, to the knowledge of the Borrower, threatened
litigation, arbitrations or other proceedings against the Borrower or any
Subsidiary involving a claim for more than $200,000. Except as noted on Schedule
3.09, there are no lawsuits, claims, arbitrations or other proceedings which, if
adversely determined, whether individually or in the aggregate, would have a
Material Adverse Effect. As of the Effective Date, to the knowledge of the
Borrower, except as set forth in Schedule 3.09, neither the Borrower nor any
Subsidiary is a party or subject to or in default under any material judgment,
order, injunction or decree of any Governmental Authority or arbitration
tribunal. Except as set forth in Schedule 3.09, there are no actions, suits,
investigations or proceedings at law or in equity or by or before any arbitrator
or Governmental Authority now pending or, to the knowledge of the Borrower,
threatened against or affecting the Borrower, any of the Subsidiaries or any
business, property or rights of the Borrower or any of the Subsidiaries (i)
which involve any Loan Document or (ii) as to which there is a reasonable
possibility of an adverse determination and which, if adversely determined,
could, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(b) Except as set forth in Schedule 3.09, the Borrower and the
Subsidiaries are in compliance with all applicable statutes, laws, ordinances,
rules, orders and regulations of any Governmental Authority ("APPLICABLE LAWS")
including those relating to the environment, taxes and occupational health and
safety, except for instances of noncompliance that, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect. Except as set forth in
Schedule 3.09 and as of the Effective Date, neither the Borrower nor any
Subsidiary
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has received any written communication during the past three years from a
Governmental Authority that alleges that the Borrower or a Subsidiary is not in
compliance in any material respect with any Applicable Laws. Except as set forth
in Schedule 3.09 and as of the Effective Date, to the knowledge of the Borrower,
there is no pending or threatened investigation of the Borrower or a Subsidiary
by any Governmental Authority.
SECTION 3.10. AGREEMENTS. (a) Each indenture or other agreement or
instrument evidencing Indebtedness and each other material agreement, contract,
lease, license, commitment or other instrument (within the meaning of 17 C.F.R.
ss.229.601(b)(10)(1996)) to which the Borrower or any of the Subsidiaries is a
party or by which it or any of its properties or assets are or may be bound as
of the Effective Date is listed on Schedule 3.10 hereto (collectively with the
Subordinated Notes and any agreements listed on Schedule 3.20, the "MATERIAL
CONTRACTS").
(b) Except as set forth in Schedule 3.10, all the Material Contracts
are valid, binding and in full force and effect in all material respects. Except
as set forth in Schedule 3.10, the Borrower and the Subsidiaries have performed
all material obligations required to be performed by them to date under the
Material Contracts and they are not in breach or default in any material respect
thereunder and, to the knowledge of the Borrower, no other party to any of the
Material Contracts is in breach or default in any material respect thereunder.
Neither the Borrower, nor any of the Subsidiaries, nor, to the knowledge of the
Borrower, any other party to any Material Contract has given notice of
termination of, or taken any action inconsistent with the continuation of, any
Material Contract. None of such other parties has any presently exercisable
right to terminate any Material Contract nor will any such other party have any
right to terminate any Material Contract on account of the execution, delivery
or performance of the Loan Documents.
SECTION 3.11. FEDERAL RESERVE REGULATIONS. (a) Neither the Borrower nor
any of the Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing or
carrying Margin Stock.
(b) No part of the proceeds of any Loan and no Letter of Credit will be
used, whether directly or indirectly, and whether immediately, incidentally or
ultimately, for any purpose which entails a violation of, or which is
inconsistent with, the provisions of the regulations of the Board, including
Regulation G, U and X.
SECTION 3.12. INVESTMENT COMPANY ACT; Public Utility Holding Company
Act. Neither the Borrower nor any of the Subsidiaries is (a) an "investment
company" as defined in, or subject to regulation under, the Investment Company
Act of 1940 or (b) a "holding company" as defined in, or subject to regulation
under, the Public Utility Holding Company Act of 1935 or (c) subject to
regulation as a "public utility" or a "public service corporation" or the
equivalent under any Federal or state law.
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SECTION 3.13. USE OF PROCEEDS. The proceeds of all Loans will be used
solely (a) to provide for the ongoing working capital requirements of the
Borrower and the Subsidiaries and for general corporate purposes (including
working capital, Capital Expenditures in the ordinary course of business and
Permitted Acquisitions) and (b) to pay related fees and expenses. The Letters of
Credit will be issued solely (i) to support various financial and other
performance obligations of the Borrower and the Subsidiaries incurred in the
ordinary course of business and (ii) with respect to the ABN AMRO Letters of
Credit, to collateralize certain permitted Indebtedness of certain Foreign
Subsidiaries.
SECTION 3.14. TAX RETURNS. Each of the Borrower and the Subsidiaries
has filed or caused to be filed all Federal, state and local tax returns
required to have been filed by it and has paid or caused to be paid all taxes
shown to be due and payable on such returns or on any assessments received by
it, except taxes that are being contested in good faith by appropriate
proceedings diligently pursued and for which adequate reserves in accordance
with GAAP have been set aside on its financial statements.
SECTION 3.15. NO MATERIAL MISSTATEMENTS. The Confidential Information
Memorandum and the exhibits and schedules (except for forecasts and projections)
furnished by or on behalf of the Borrower to the Lenders in connection with the
negotiation of any Loan Document or included therein or delivered pursuant
thereto, when taken as a whole and evaluated in the context presented, do not
contain any material misstatement of fact or omit to state any material fact
necessary to make the statements therein not misleading in light of the
circumstances under which such information was provided. Any such exhibit or
schedule which constitutes a forecast or a projection was prepared in good
faith, was based on assumptions that the Borrower believes to be reasonable and
was based on the best information reasonably available to the Borrower. The
Borrower has no reason to believe that any such forecasts or projections are
misleading in any material respect in light of the circumstances existing at the
time of preparation thereof.
SECTION 3.16. EMPLOYEE BENEFIT PLANS. (a) Except as set forth in
Schedule 3.16, each of the Borrower and the Commonly Controlled Entities is in
compliance in all material respects with the applicable provisions of ERISA and
the regulations and published interpretations thereunder. Neither a Reportable
Event nor an "accumulated funding deficiency" (within the meaning of Section 412
of the Code or Section 302 of ERISA) has occurred within the last five years
with respect to any Plan, and each Plan has complied in all material respects
with the applicable provisions of ERISA and the Code. No termination of a Single
Employer Plan has occurred and no Lien in favor of the PBGC or a Plan has arisen
during the five years prior to the Effective Date.
(b) Except as set forth in Schedule 3.16, the present value of all
accrued benefits under each Single Employer Plan in which the Borrower or any
Commonly Controlled Entity is a participant (based on those assumptions used to
fund the Plans) did not, as of the last annual valuation date, exceed the value
of the assets of such Plan allocable to such accrued benefits.
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(c) Neither the Borrower nor any Commonly Controlled Entity has had a
complete or partial withdrawal from any Multiemployer Plan, and neither the
Borrower nor any Commonly Controlled Entity would become subject to any
liability under ERISA if the Borrower or any such Commonly Controlled Entity
were to withdraw completely from all Multiemployer Plans as of the last
valuation date.
(d) No such Multiemployer Plan is in "reorganization" or "insolvent,"
within the meaning of such terms as used in ERISA.
(e) Except as set forth in Schedule 3.16, neither the Borrower nor any
Commonly Controlled Entity has any liability for post retirement benefits to be
provided to its current and former employees.
(f) No prohibited transaction under ERISA or the Code has occurred with
respect to any Multiemployer Plan or Single Employer Plan which could have a
Material Adverse Effect.
SECTION 3.17. ENVIRONMENTAL AND SAFETY MATTERS. As of the Effective
Date, except as set forth in Schedule 3.17, each of the Borrower and the
Subsidiaries has complied in all material respects with all applicable Federal,
state, local and other statutes, ordinances, orders, judgments, rulings and
regulations relating to protection of the environment or to employee health or
safety. As of the Effective Date, except as set forth in Schedule 3.17, neither
the Borrower nor any Subsidiary has received notice of any material failure so
to comply. The facilities of the Borrower and the Subsidiaries do not manage or
contain any hazardous wastes, hazardous substances, hazardous materials, toxic
substances, toxic pollutants or similarly denominated substances, as those terms
or similar terms are used in the Resource Conservation and Recovery Act, the
Comprehensive Environmental Response Compensation and Liability Act, the
Hazardous Materials Transportation Act, the Toxic Substance Control Act, the
Clean Air Act, the Clean Water Act or any other applicable law relating to
protection of the environment, human health or to employee health and safety
(collectively, "HAZARDOUS MATERIALS"), in violation in any material respect of
any such law or any regulations promulgated pursuant thereto. Except as set
forth in Schedule 3.17, to the knowledge of the Borrowers, there are no events,
conditions or circumstances involving environmental pollution, regulation or
control or employee health or safety that are reasonably likely to result in any
material liabilities being incurred by the Borrower or any Subsidiary.
SECTION 3.18. SECURITY INTERESTS. (a) The Collateral Agent for the
benefit of the Secured Parties will at all times have the Liens provided for in
the Collateral Documents and, subject to the filing by the Borrower of
continuation statements to the extent required by the Uniform Commercial Code
and the continuing possession by the Collateral Agent of the certificates
representing the securities pledged pursuant to the Pledge Agreement, the
Collateral Documents will at all times constitute a valid and continuing lien of
record and first priority perfected security interest in all the Collateral
referred to therein. No filings or recordings are required in order to perfect
the security interests created under the Collateral Documents, except for
filings or recordings listed on Schedule 3.18. All such listed filings
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and recordings will have been made on or prior to the Effective Date.
(b) All of the shares of common stock of each Subsidiary have been duly
and validly authorized and issued, are fully paid and nonassessable, and were
not issued in violation of the preemptive rights of any stockholder. The
Borrower owns, directly or indirectly, good and valid title to 100% (or such
other percentage as the Borrower does own, directly or indirectly, as noted on
Schedule 3.08) of the Capital Stock of each Subsidiary, free and clear of all
Liens, other than the Liens of the Collateral Documents, of every kind, whether
absolute, matured, contingent or otherwise. There are no existing options,
warrants, calls or commitments relating to, or any securities or rights
convertible into, exercisable for or exchangeable for, any Capital Stock of the
Subsidiaries.
SECTION 3.19. SOLVENCY. (a) After the making of each Loan made on the
Effective Date and the uses of proceeds therefrom, each of the Borrower and the
Subsidiaries will be Solvent on the Effective Date. "SOLVENT" means, with
respect to any person, that (i) the fair value of the assets of such person, at
a fair valuation, will exceed the debts and liabilities, subordinated,
contingent or otherwise, of such person; (ii) the present fair saleable value of
the property of such person will be greater than the amount that will be
required to pay the liabilities of such person on its debts and other
liabilities, subordinated, contingent or otherwise, as such debts and other
liabilities become absolute and matured; (iii) such person will be able to pay
its debts and liabilities, subordinated, contingent or otherwise, as such debts
and liabilities become absolute and matured; and (iv) such person will not have
an unreasonably small amount of capital with which to conduct the businesses in
which it is engaged as such businesses are now conducted and are proposed to be
conducted. With respect to any contingent liabilities, such liabilities shall be
computed at the amount which, in light of all the facts and circumstances
existing at the time, represents the amount which can reasonably be expected to
become an actual or matured liability.
(b) The Borrower does not intend to, or to permit any of the
Subsidiaries to, and does not believe that the Borrower or any of the
Subsidiaries will, incur debts beyond its ability to pay such debts as they
mature taking into account the timing of and amounts of cash to be received by
the Borrower or any such Subsidiary and the timing of and amounts of cash to be
payable on or in respect of indebtedness of the Borrower or any such Subsidiary.
SECTION 3.20. TRANSACTIONS WITH AFFILIATES AND SHAREHOLDERS. Except as
set forth in Schedule 3.20 and except for agreements and arrangements among the
Borrower and Wholly Owned Subsidiaries or among Wholly Owned Subsidiaries,
neither the Borrower nor any of the Subsidiaries is a party to, and none of the
properties and assets of the Borrower or any of the Subsidiaries is subject to
or bound by, any agreement or arrangement with, (a) any Affiliate of the
Borrower or any of the Subsidiaries, except in each case those agreements or
arrangements that are entered into on terms not less favorable to the Borrower
or any Subsidiary as a comparable transaction on an arm's-length basis with an
unrelated third party or as may be expressly permitted by Section 6.10, or (b)
any Shareholder. Except as set forth in Schedule 3.20 and except for
transactions among the Borrower and Wholly Owned Subsidiaries or among Wholly
Owned Subsidiaries, neither the Borrower nor any of the
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Subsidiaries is engaged in any transaction with (i) any Affiliate of the
Borrower or of any Subsidiary, except in each case those agreements or
arrangements that are entered into on terms not less favorable to the Borrower
or any Subsidiary as a comparable transaction on an arm's-length basis with an
unrelated third party or as may be expressly permitted by Section 6.10, or (ii)
any Shareholder.
SECTION 3.21. INSURANCE. The Borrower and the Subsidiaries maintain
policies of fire and casualty, liability, business interruption and other forms
of insurance in such amounts, with such deductibles and against such risks and
losses, all of which are in accordance with normal industry practices. All such
policies are in full force and effect, all premiums due and payable thereon have
been paid (other than retroactive or retrospective premium adjustments that are
not yet, but may be, required to be paid with respect to any period under
comprehensive general liability and workmen's compensation insurance policies),
and no notice of cancellation or termination has been received with respect to
any such policy which has not been replaced on substantially similar terms prior
to the date of such cancellation. The activities and operations of the Borrower
and the Subsidiaries have been conducted in a manner so as to conform in all
material respects to all applicable provisions of such insurance policies.
SECTION 3.22. LABOR MATTERS. (i) As of the Effective Date, except as
set forth in Schedule 3.22, there is no labor strike, dispute, work stoppage or
lockout pending or, to the knowledge of the Borrower, threatened against the
Borrower or a Subsidiary, (ii) to the knowledge of the Borrower, as of the
Effective Date, no union organizational campaign is in progress with respect to
the employees of the Borrower or a Subsidiary; (iii) as of the Effective Date,
there is no unfair labor practice charge or complaint against the Borrower or a
Subsidiary pending or, to the knowledge of the Borrower, threatened before the
National Labor Relations Board; (iv) there are no pending or threatened union
grievances against the Borrower or a Subsidiary as to which there is a
reasonable possibility of adverse determination and that, if so determined,
would have a Material Adverse Effect; (v) there are no pending, or, to the
knowledge of the Borrower, threatened, charges against the Borrower, a
Subsidiary or any current or former employee of the Borrower before the Equal
Employment Opportunity Commission or any state or local agency responsible for
the prevention of unlawful employment practices which individually or in the
aggregate are reasonably likely to have a Material Adverse Effect; and (vi) as
of the Effective Date, none of the Borrower and the Subsidiaries has received
written notice during the past three years of the intent of any Governmental
Authority responsible for the enforcement of labor or employment laws to conduct
an investigation of the Borrower or a Subsidiary and, to the knowledge of the
Borrower, no such investigation is in progress.
(b) No employee or agent of the Borrower or any Subsidiary that has not
signed a confidentiality and non-compete agreement is privy to any information
that, if disseminated to an unrelated third party, could have a Material Adverse
Effect.
SECTION 3.23. COVENANTS CONTAINED IN THE ORIGINAL CREDIT AGREEMENT. The
requirements of Section 5.14 of the Original Credit Agreement have been
satisfied (or waived)
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in all respects.
SECTION 3.24. YEAR 2000 COMPLIANCE. The Borrower has (a) initiated a
review and assessment of all material areas within its and each of its
Subsidiaries' business and operations that could be adversely affected by the
"Year 2000 Problem" (that is, the risk that computer applications used by the
Borrower or any of its Subsidiaries may be unable to recognize and perform
properly date-sensitive functions involving certain dates prior to, including
and any date after December 31, 1999) and make inquiries appropriate to its
material suppliers and vendors, (b) developed a plan and timeline for addressing
the Year 2000 Problem on a timely basis, and (c) to date, implemented that plan
in accordance with that timetable. The Borrower reasonably believes that all
computer applications that are material to its or any of its Subsidiaries'
business and operations will on a timely basis be able to perform properly
date-sensitive functions for all dates before, including and after January 1,
2000 (that is, be "Year 2000 COMPLIANT"), except to the extent that a failure to
do so could not reasonably be expected to have Material Adverse Effect.
ARTICLE IV
CONDITIONS OF LENDING
SECTION 4.01. CONDITIONS PRECEDENT TO THE EFFECTIVE DATE. This Amended
Agreement shall become effective on the first date (the "EFFECTIVE DATE") when
all of the following conditions precedent set forth in this Section 4.01, and
the additional conditions precedent set forth in Section 4.02, have been
satisfied:
(a) The Agents shall have received (i) counterparts hereof
signed by each of the parties (or, in the case of any Lender as to
which an executed counterpart shall not have been received, telecopy or
other written confirmation from such party in form satisfactory to the
Agents of the execution of a counterpart hereof by such Lender), (ii)
counterparts of the Borrower's Consent and Agreement signed by each of
the parties thereto (or, in the case of any Lender as to which an
executed counterpart shall not have been received, telecopy or other
written confirmation from such party in form satisfactory to the Agents
of the execution of the counterpart thereof by such Lender), and (iii)
counterparts of the Subsidiary's Consent and Agreement signed by each
of the parties thereto (or, in the case of any Lender as to which an
executed counterpart shall not have been received, telecopy or other
written confirmation from such party in form satisfactory to the Agents
of the execution of the counterpart thereof by such Lender).
(b) The Administrative Agent shall have received for the
account of each Lender a duly executed Note or Notes, dated the
Effective Date, complying with the provisions of Section 2.05. On the
Effective Date, the Lenders under the Original Credit Agreement will
return the Notes dated as of the Closing Date to the Borrower for
cancellation, and such Notes will be replaced, as applicable, by the
Notes dated the Effective Date and issued to the Lenders hereunder.
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(c) The Administrative Agent on behalf of the Secured Parties
shall have a security interest in the Collateral of the type and
priority described in the Collateral Documents, perfected to the extent
contemplated by Section 3.18 and the Administrative Agent shall have
received:
(i) confirmation by the Borrower that the Collateral
Agent has previously received certificates representing all
Pledged Securities (as defined in the Pledge Agreement),
accompanied by stock powers endorsed in blank;
(ii) confirmation by the Borrower that no additional
filing, registration or recordation of any document (including
any Uniform Commercial Code financing statement) is required
to be filed, registered or recorded in order to create in
favor of the Collateral Agent for the benefit of the Secured
Parties a valid, legal and perfected security interest in or
Lien on the Collateral; and
(iii) searches of Uniform Commercial Code filings in
the jurisdiction of the chief executive office of the Borrower
and each Subsidiary and each jurisdiction where any Collateral
is located and where a filing was made in connection with the
Original Credit Agreement and the Collateral Documents,
confirming the perfected security interest in the Collateral
in favor of the Collateral Agent for the benefit of the
Secured Parties.
(d) The Agents shall have received an opinion of Xxxxxxxx Xxxx
& Xxxxx LLP, counsel to the Borrower and the Subsidiaries,
substantially in the form of Exhibit E hereto dated the Effective Date
and addressed to the Agents and the Lenders.
(e) The Agents shall have received:
(i) an Officer's Certificate, dated the Effective
Date and signed by a Responsible Officer of each of the
Borrower and the Subsidiaries confirming compliance with the
conditions precedent set forth in subparagraphs (g), (h), (i)
and (j) of this Section 4.01 and in subparagraphs (b), (c) and
(d) of Section 4.02;
(ii) an Officer's Certificate, dated the Effective
Date and signed by a Responsible Officer of each of the
Borrower and the Domestic Subsidiaries certifying that the
copies of the long form certificates of incorporation and
other constitutive documents, including all amendments
thereto, of each of the Borrower and all the Domestic
Subsidiaries delivered pursuant to the execution of the
Original Credit Agreement or in connection with any
Supplemental Agreement executed prior to the Effective Date,
have not been modified or amended in any respect and remain in
full force and effect in accordance with their terms;
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(iii) a certificate as to the good standing of each
such party as of a recent date, from such Secretary of State
(or other domestic or foreign authority (where available));
(iv) a certificate of the Secretary or Assistant
Secretary of each of the Borrower, the Domestic Subsidiaries,
dated the Effective Date and certifying (A) that the by-laws
or comparable governing instruments of such party delivered
pursuant to the execution of the Original Credit Agreement or
in connection with any Supplemental Agreement executed prior
to the Effective Date, have not been modified or amended in
any respect and remain in full force and effect in accordance
with their terms, (B) that attached thereto is a true and
complete copy of resolutions duly adopted by the Board of
Directors or comparable governing body of such party (or, in
the case of any partnership, of the general partner of such
party) authorizing the execution, delivery and performance of
this Amended Agreement, the Borrower's Consent and Agreement
and the Subsidiaries' Consent and Agreement, and, in the case
of the Borrower, the extensions of credit hereunder, and that
such resolutions have not been modified, rescinded or amended
and are in full force and effect, (C) that the certificate of
incorporation or other constitutive documents of such party
have not been amended since the date of the last amendment
thereto shown on the certificate of good standing furnished
pursuant to clause (iii) above, and (D) as to the incumbency
and specimen signature of each officer executing any Loan
Document or any other document delivered in connection
herewith on behalf of such party; and
(v) such other documents, opinions, certificates and
agreements in connection with the Revolving Credit Facility,
in form and substance satisfactory to the Agents, as it shall
reasonably request.
(f) The Borrower shall have paid all Fees and other amounts
due and payable to the Agents or any Lender on or prior to the
Effective Date, including, without limitation, all fees and other
amounts accrued to the Effective Date to the Administrative Agent for
the account of each Lender pursuant to Section 2.05 of the Original
Credit agreement.
(g) No Material Adverse Change shall have occurred since
August 31, 1998.
(h) The Lenders shall have received evidence satisfactory to
each of them that the Borrower and the Subsidiaries have obtained all
governmental (whether domestic or foreign), shareholder and third party
consents and approvals and expiration of all applicable waiting or
appeal periods necessary or, in the opinion of the Lenders, appropriate
in connection with the Revolving Credit Facility and the pledge of the
Collateral for the Revolving Credit Facility without any action being
taken that could
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restrain, prevent or impose any material adverse condition on the
Borrower, the Subsidiaries (or any of them) or the transactions
contemplated hereby or that could seek or threaten any of the
foregoing, and no law or regulation or condition shall be applicable
which in the judgment of the Lenders could have such effect.
(i) There shall not exist any action, suit, investigation or
proceeding pending or threatened in any court or before any arbitrator
or Governmental Authority that purports to adversely affect the
Revolving Credit Facility or that could have a Material Adverse Effect.
(j) None of the Borrower and the Subsidiaries shall be in
violation of any law, rule or regulation, or in default with respect to
any judgment, writ, injunction or decree of any Governmental Authority,
where such violation or default could reasonably be expected to result
in a Material Adverse Effect.
SECTION 4.02. ALL CREDIT EVENTS. The obligations of the Lenders to make
Loans hereunder, and the obligation of the Issuing Bank to issue Letters of
Credit hereunder, are subject to the satisfaction of the conditions that on the
date of each Borrowing and on the date of issuance of each Letter of Credit:
(a) The Agents shall have received a notice of such Borrowing
as required by Section 2.04 or Section 2.11, or a notice requesting the
issuance of such Letter of Credit as required by Section 2.23(c), or a
notice requesting a Swingline Borrowing as required by Section 2.22(a),
as applicable.
(b) The representations and warranties set forth in Article
III and the representations and warranties of the Borrower and the
Subsidiaries set forth in the other Loan Documents shall be true and
correct in all material respects on and as of the date of such
Borrowing or the date of the issuance of such Letter of Credit with the
same effect as though made on and as of such date, except to the extent
such representations and warranties expressly relate to an earlier date
(in which case such representations and warranties shall be true and
correct in all material respects on and as of such earlier date).
(c) At the time of and immediately after such Borrowing or the
issuance of such Letter of Credit, the aggregate outstanding Dollar
Amount of the Loans of each Class, the Swingline Exposure and the
Letter of Credit Exposure shall not exceed the limitations set forth in
Section 2.02.
(d) At the time of and immediately after such Borrowing or the
issuance of such Letter of Credit, no Default or Event of Default shall
have occurred and be continuing.
Each Borrowing hereunder and each issuance of a Letter of Credit hereunder shall
be deemed to constitute a representation and warranty by the Borrower on the
date of such Borrowing or
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issuance of such Letter of Credit as to the matters specified in paragraphs (b),
(c) and (d) of this Section 4.02. For purposes of this Section 4.02, a
"Borrowing" does not include a conversion or continuation of a previously
outstanding Borrowing pursuant to Section 2.11.
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees with each Lender that so long as this
Amended Agreement shall remain in effect and until the Commitments have been
terminated and the Loans, together with interest, Fees and all other Obligations
have been paid in full, all Letters of Credit have been canceled or have
expired, and all amounts drawn thereunder have been reimbursed in full, unless
the Required Lenders shall otherwise consent in writing:
SECTION 5.01. EXISTENCE; BUSINESSES AND PROPERTIES. (a) The Borrower
will, and will cause each of the Subsidiaries to, do or cause to be done all
things necessary to preserve, renew and keep in full force and effect its legal
existence, except as otherwise expressly permitted under Sections 6.05(a) and
(b).
(b) The Borrower will, and will cause each of the Subsidiaries to, do
or cause to be done all things necessary to obtain, preserve, renew, extend and
keep in full force and effect the rights, leases, privileges, licenses, permits,
franchises, authorizations, patents, copyrights, trademarks, trade names and all
other intellectual property material to the conduct of its business; maintain
and operate such business in substantially the manner in which it is presently
conducted and operated; comply in all material respects with all applicable
laws, rules, regulations (including any zoning, building, ordinance, code or
approval or any building permits or any restrictions of record or agreements
affecting real property and excluding environmental laws, which are subject to
the provisions of Section 5.11) and judgments, writs, injunctions, decrees and
orders of any Governmental Authority, whether now in effect or hereafter
enacted; and at all times maintain and preserve all property material to the
conduct of such business and keep such property in good repair, working order
and condition (subject to ordinary wear and tear) and from time to time make, or
cause to be made, all needful and proper repairs, renewals, additions,
improvements and replacements thereto necessary in order that the business
carried on in connection therewith may be properly conducted at all times.
SECTION 5.02. INSURANCE. (a) The Borrower will, and will cause each of
the Subsidiaries to, keep its insurable properties fully insured at all times by
financially sound and reputable insurers; such insurance to include fire and
other risks insured against by extended coverage, public and product liability
insurance against claims for personal injury or death or property damage
occurring upon, in, about or in connection with the use of any properties owned,
occupied or controlled by it and business interruption insurance, and maintain
such other insurance as may be required by law and as is customary in the
industry. The Borrower shall deliver to the Administrative Agent on the
Effective Date a report from the Borrower's independent insurance consultant
demonstrating that the insurance required by this Section
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5.02 is in effect.
(b) The Borrower will, and will cause each of the Subsidiaries to, on
the request of the Agents, deliver original or certified copies of all insurance
policies to the Agents.
(c) In connection with the covenants set forth in this Section 5.02, it
is understood and agreed that:
(i) none of the Agents, the Lenders, the Issuing Bank or their
respective agents or employees shall be liable for any loss or damage
insured by the insurance policies required to be maintained under this
Section 5.02, it being understood that (A) the Borrower and the
Subsidiaries shall look solely to their insurance companies or any
other parties other than the aforesaid parties for the recovery of such
loss or damage and (B) such insurance companies shall have no rights of
subrogation against the Agents, the Lenders, the Issuing Bank or their
agents or employees;
(ii) upon the occurrence of an Event of Default, the Borrower
will permit an insurance consultant retained by the Agents, at the
expense of the Borrower, to review the insurance policies maintained by
the Borrower and the Subsidiaries; and
(iii) the designation of any form, type or amount of insurance
coverage by the Agents or the Lenders under this Section 5.02 shall in
no event be deemed a representation, warranty or advice by the Agents
or the Lenders that such insurance is adequate for the purposes of the
business of the Borrower and the Subsidiaries or the protection of
their properties.
SECTION 5.03. OBLIGATIONS AND TAXES. The Borrower will, and will cause
each of the Subsidiaries to, pay all of its Indebtedness and other obligations
promptly and in accordance with their terms and pay and discharge promptly when
due all taxes, assessments and governmental charges or levies imposed upon it or
upon its income or profits or in respect of its property, before the same shall
become delinquent or in default, as well as all lawful claims for labor,
materials and supplies or otherwise which, if unpaid, might give rise to a Lien
upon such properties or any part thereof; PROVIDED, THAT, such payment and
discharge shall not be required with respect to any such tax, assessment,
charge, levy or claim so long as the validity or amount thereof shall be
contested in good faith by appropriate proceedings diligently pursued and the
Borrower shall have set aside on its books adequate reserves in accordance with
GAAP with respect thereto and such contest operates to suspend collection of the
contested obligation, tax, assessment or charge and enforcement of a Lien.
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SECTION 5.04. FINANCIAL STATEMENTS, REPORTS, ETC. The Borrower will
furnish to the Agents and each Lender:
(a) as soon as available, and in any event within 105 days
after the end of each Fiscal Year (i) its consolidated and
consolidating balance sheet and related consolidated and consolidating
statements of operations and cash flows, showing the consolidated and
consolidating financial position of the Borrower and its Consolidated
Subsidiaries as of the close of such Fiscal Year and the consolidated
and consolidating results of their operations and cash flows during
such year, in each case setting forth in comparative form the figures
for the preceding Fiscal Year, with all of the consolidated statements
having been audited by a nationally recognized independent public
accounting firm and accompanied by an opinion of such accountants
(which shall not be qualified in any material respect) to the effect
that such financial statements fairly present the consolidated
financial position and consolidated results of operations and cash
flows of the Borrower and its Consolidated Subsidiaries in accordance
with GAAP consistently applied and (ii) copies of its Annual Report on
Form 10-K prepared in compliance with the requirements therefor and
filed with the SEC;
(b) as soon as available, and in any event within 45 days
after the end of each of the first three fiscal quarters of each Fiscal
Year (i) its consolidated balance sheet and related consolidated
statements of operations and cash flows, showing the consolidated
financial position of the Borrower and its Consolidated Subsidiaries as
of the close of such fiscal quarter, the consolidated results of their
operations and cash flows during such fiscal quarter and the then
elapsed portion of such Fiscal Year and the consolidated cash flows for
the then elapsed portion of such Fiscal Year, all certified by one of
its Financial Officers as fairly presenting the consolidated financial
position and consolidated results of operations and cash flows of the
Borrower and its Consolidated Subsidiaries in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments and
(ii) copies of its Quarterly Report on form 10-Q prepared in compliance
with the requirements therefore and filed with the SEC;
(c) concurrently with any delivery of financial statements
under paragraph (a) or (b) above, an Officer's Certificate of the
Borrower certifying that no Default or Event of Default has occurred
or, if such a Default or Event of Default has occurred, specifying the
nature and extent thereof and any corrective action taken or proposed
to be taken with respect thereto;
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(d) concurrently with any delivery of financial statements
under paragraph (a) or (b) above, a certificate of a Financial Officer
of the Borrower, substantially in the form of Exhibit F hereto, (i)
setting forth computations in reasonable detail satisfactory to the
Administrative Agent demonstrating compliance with the covenants
contained in Sections 6.13 and 6.14, (ii) setting forth computations in
reasonable detail satisfactory to the Administrative Agent
demonstrating the Consolidated Pricing Ratio, (iii) stating whether,
since the date of the most recent Required Financial Statements
previously delivered, there has been any material change in the
generally accepted accounting principles applied in the preparation of
the Borrower's financial statements and, if so, describing such change
and (iv) stating whether, since the date of the most recent certificate
required pursuant to this subclause (d) the Borrower or any of its
Subsidiaries has received notice, including, but not limited to,
management letters or any similar disclosure, from any unrelated third
party with respect to the Borrower's plan to become Year 2000
Compliant, or the progress of such plan;
(e) promptly upon their becoming publicly available, copies of
all (i) financial statements, reports, notices and proxy statements
sent or made available by the Borrower to all of its security holders
in compliance with the Exchange Act or any comparable Federal or state
laws relating to the disclosure by any person of information to its
security holders, (ii) all regular and periodic reports and all
registration statements and prospectuses filed by the Borrower with any
securities exchange or with the SEC, and (iii) all press releases and
other statements made available by the Borrower or its Subsidiaries
concerning material developments in the business of the Borrower or any
of the Subsidiaries, as the case may be;
(f) promptly upon completion, but in any event not later than
45 days after the commencement of each Fiscal Year, a copy of
projections by the Borrower of its consolidated balance sheet and
related consolidated statements of operations and cash flows for such
Fiscal Year (including all material assumptions to such projections)
and a budget for such Fiscal Year, all in form customarily prepared by
the Borrower's management, such projected financial statements to be
accompanied by a certificate of a Financial Officer to the effect that
such projected financial statements have been prepared in good faith,
based on assumptions that the Borrower believes to be reasonable and
based on the best information available to the Borrower and that such
Financial Officer has no reason to believe they are misleading in any
material respect in light of the circumstances existing at the time of
preparation thereof;
(g) at least 10 but not more than 30 days prior to any
Permitted Acquisition, financial projections covering the period from
the date of such Permitted Acquisition through the Revolving Credit
Maturity Date giving effect to such Permitted Acquisition and
demonstrating compliance by the Borrower on a pro forma basis with the
covenants in Article VI from and after the date of, and after giving
effect to such Permitted Acquisition through the Revolving Credit
Maturity Date (such projections to be certified by a Financial Officer
of the Borrower as having been prepared in good faith on the basis of
assumptions believed by the Borrower to be reasonable);
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(h) as soon as available, and in any event within 15 days of
receipt, any final management letter issued or provided by the auditors
of the Borrower or any Subsidiary; and
(i) promptly, from time to time, such other information
regarding the operations, business affairs and financial condition of
the Borrower or any Subsidiary, or compliance with the terms of any
Loan Document, as either Agent or any Lender may reasonably request.
SECTION 5.05. OTHER INFORMATION. (a) The Borrower will furnish to the
Agents prompt written notice of the following:
(i) any Default or Event of Default, specifying the nature and
extent thereof and the corrective action (if any) proposed to be taken
with respect thereto;
(ii) the filing or commencement of, or any threat or notice of
intention of any person to file or commence, any action, suit or
proceeding, whether at law or in equity or by or before any
Governmental Authority, against or affecting the Borrower or any of the
Subsidiaries (A) which, if adversely determined, could individually or
in the aggregate, reasonably be expected to have a Material Adverse
Effect or (B) which involves a claim or series of related claims
against the Borrower or any Subsidiary in excess of $2,000,000;
PROVIDED, THAT, the Borrower is not required to give written notice of
claims fully covered by third party insurance;
(iii) all matters materially affecting the value,
enforceability or collectibility of any material portion of its assets,
including changes to significant contracts, schedules of equipment,
changes of significant equipment or real property, the reclamation or
repossession of, or the return to the Borrower or any of the
Subsidiaries of, a material amount of goods and material claims or
disputes asserted by any customer or other obligor, which matters could
have a Material Adverse Effect;
(iv) any material adverse change in the relationship between
any of the Borrower and the Subsidiaries, on the one hand, and any of
its respective suppliers, licensors or customers, on the other hand,
which could reasonably be expected to have a Material Adverse Effect;
(v) all proposed amendments to any material agreement relating
to Indebtedness to which the Borrower or any Subsidiary is a party; and
(vi) any development that individually or in the aggregate has
resulted in, or could reasonably be expected to have, a Material
Adverse Effect.
(b) Immediately upon receipt by the Borrower, the Borrower shall
provide the Agents and the Lenders with copies of all notices (including notices
of default), statements and
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financial information received from any other creditor or lessor with respect to
any item of Indebtedness which, if not paid, could give rise to an Event of
Default or the repossession of material property from the Borrower or any of the
Subsidiaries.
(c) Any notification required by this Section 5.05 shall be accompanied
by a certificate of a Financial Officer of the Borrower setting forth the
details of the specified events and the action which the Borrower proposes to
take with respect thereto.
SECTION 5.06. ERISA. (a) The Borrower will, and will cause each of the
Subsidiaries to, comply in all material respects with the applicable provisions
of ERISA and the Code.
(b) The Borrower will promptly give notice to the Agents and each
Lender of the following events, as soon as possible and in any event within 30
days after the Borrower knows or has reason to know thereof: (i) the occurrence
or expected occurrence of any Reportable Event with respect to any Plan, a
failure to make any required contribution to a Plan, any filing by the Borrower
with the PBGC of a notice of intent to terminate a Plan, any receipt by the
Borrower of notice from the PBGC of the intention of the PBGC to terminate a
Plan or appoint a trustee to administer a Plan, any Lien in favor of the PBGC or
a Plan, or any withdrawal from, or the termination, reorganization or insolvency
(within the meaning of such terms as used in ERISA) of, any Multiemployer Plan;
or (ii) the institution of proceedings or the taking of any other action by the
PBGC or the Borrower or any Commonly Controlled Entity or any Multiemployer Plan
with respect to the withdrawal from, or the termination, reorganization or
insolvency (within the meaning of such terms as used in ERISA) of, any Single
Employer Plan or Multiemployer Plan.
SECTION 5.07. MAINTAINING RECORDS; ACCESS TO PROPERTIES AND
INSPECTIONS. The Borrower will, and will cause each of the Subsidiaries to, keep
proper books of record and account in which full, true and correct entries in
conformity with GAAP and all requirements of law are made of all dealings and
transactions in relation to its business and activities. The Borrower will, and
will cause each of the Subsidiaries to, permit any representatives designated by
either Agent or any Lender to visit and inspect the financial records and the
properties of the Borrower or any Subsidiary at reasonable times and as often as
reasonably requested, and to make extracts from and copies of such financial
records, and permit any representatives designated by either Agent or any Lender
to discuss the affairs, finances and condition of the Borrower or any Subsidiary
with the officers thereof and independent accountants therefor (with
representatives of the Borrower present unless an Event of Default or Default
has occurred and is continuing).
SECTION 5.08. USE OF PROCEEDS. The Borrower will use the proceeds of
the Loans and request the issuance of Letters of Credit only for the purposes
set forth in Section 3.13.
SECTION 5.09. INTEREST RATE PROTECTION AGREEMENTS. After the Effective
Date in the event the Borrower elects to enter into and thereafter maintain in
full force and effect Interest Rate Protection Agreements, then such Interest
Rate Protection Agreements shall be at rates
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and on terms reasonably satisfactory to the Agents and the Borrower; PROVIDED,
THAT, it is understood and agreed that any Interest Rate Protection Agreement
entered into with any person other than a Lender must be unsecured. The Borrower
will promptly deliver evidence of the execution and delivery of such Interest
Rate Protection Agreements to the Administrative Agent.
SECTION 5.10. FISCAL YEAR. The Borrower will cause its Fiscal Year to
end on August 31 in each year. The Borrower will cause each Subsidiary to cause
their respective Fiscal Years to end on the date in each year that is the date
of such Subsidiaries' Fiscal Year end in effect as of the Effective Date.
SECTION 5.11. COMPLIANCE WITH ENVIRONMENTAL LAWS; PREPARATION OF
ENVIRONMENTAL REPORTS. (a) The Borrower will, and will cause each Subsidiary to,
comply, and use its best efforts to cause all lessees and other persons
occupying the properties owned or leased by the Borrower and the Subsidiaries to
comply, in all material respects with all environmental laws and environmental
permits applicable to its operations and properties except to the extent that
the failure to comply therewith could not reasonably be expected to result in
liability in excess of $500,000; obtain and renew all material environmental
permits necessary for its operations and properties; and conduct any remedial
action required under, and in accordance with, environmental laws, except to the
extent that: (i) the cost of such remedial action could not reasonably be
expected to exceed $500,000; or (ii) the necessity of any such remedial action
is being contested in good faith by appropriate proceedings timely instituted
and diligently pursued and in the manner provided by applicable law.
(b) If a Default or Event of Default caused by reason of a breach of
Section 3.17 or 5.11(a) shall have occurred and be continuing, or if the laws of
the United States or any state in which the Borrower or any of the Subsidiaries
leases or owns property provide that a Lien upon the property of the Borrower or
any of the Subsidiaries may be obtained for the removal of Hazardous Materials
which have been released, at the request of the Required Lenders through the
Administrative Agent, the Borrower will provide to the Lenders within 45 days
after such request, at the expense of the Borrower, an environmental site
assessment report for the properties which are the subject of such Default or
Event of Default prepared by an environmental consulting firm reasonably
acceptable to the Agents and indicating the presence or absence of Hazardous
Materials and the estimated cost of any compliance or remedial action in
connection with such properties. To the extent any such Hazardous Materials are
located therein or thereunder that either (i) subjects a property to Lien or
(ii) requires removal to safeguard the health of any person, the Borrower shall,
and shall cause each of the Subsidiaries to, remove, or cause to be removed,
such Lien and such Hazardous Materials at the Borrower's expense.
SECTION 5.12. SUBSIDIARIES. The Borrower shall cause each and every
Domestic Subsidiary that is (i) existing as of the Closing Date, to execute and
deliver a Guarantee Agreement, Indemnity, Subrogation and Contribution
Agreement, Intercompany Note, Pledge Agreement and other Collateral Documents as
may be required by the Agents and (ii) organized or acquired subsequent to the
Closing Date, to execute and deliver an Intercompany
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Note and a Supplemental Agreement immediately upon and contemporaneously with
their organization or acquisition. The Borrower will cause each and every Wholly
Owned Subsidiary that is a Foreign Subsidiary and each and every Foreign
Subsidiary that is not a Wholly Owned Subsidiary that is existing as of the
Closing Date, or organized or is acquired subsequent thereto, to (x) prior to
the date the applicable Foreign Subsidiary incurs Intercompany Indebtedness to
the Borrower or a Wholly Owned Subsidiary that is a Domestic Subsidiary, at
which time and as a condition to that borrowing, such Foreign Subsidiary shall
execute and deliver an Intercompany Note, and (y) in the event any Foreign
Subsidiary borrows funds (as permitted hereunder) in excess of $250,000 from the
Borrower or any Domestic Subsidiary, contemporaneously with such borrowing,
deliver an opinion of counsel reasonably required by the Agents and the
Collateral Agent, as the case may be, regarding the enforceability thereof and
the Lender's security interest therein. Nothing in this Section 5.12 shall be
deemed to imply that any such acquisition or organization of a Subsidiary is
permitted under this Amended Agreement.
SECTION 5.13. FURTHER ASSURANCES. Within 10 days after a request by
either of the Agents, the Collateral Agent or the Required Lenders, the Borrower
will, and will cause each Subsidiary to, execute any and all further documents,
financing statements, agreements and instruments, and take all further action
(including filing Uniform Commercial Code and other financing statements that
may be required under applicable law, or that the Required Lenders, the Agents
or the Collateral Agent may reasonably request), in order to effectuate the
transactions contemplated by the Loan Documents and in order to grant, maintain,
preserve, protect and perfect the validity and first priority of the security
interests created or intended to be created by the Collateral Documents. Such
security interests and Liens will be created under the Collateral Documents and
other security agreements, instruments and documents in form and substance
satisfactory to the Agents and the Collateral Agent, and the Borrower shall
deliver or cause to be delivered to the Lenders all such instruments and
documents (including legal opinions and lien searches) as the Agents and the
Collateral Agent shall reasonably request to evidence compliance with this
Section 5.13. The Borrower agrees to provide such evidence as the Agents and the
Collateral Agent shall reasonably request as to the perfection and priority
status of each such security interest and Lien.
SECTION 5.14. CERTAIN POST-CLOSING COVENANTS. With respect to those
Foreign Subsidiaries that are Wholly Owned Subsidiaries and listed on Schedule
5.14, the Borrower agrees to cause such Foreign Subsidiaries to execute and
deliver to the Borrower, and then to the Administrative Agent pursuant to the
Pledge Agreement, all within 30 days from the Effective Date, Intercompany Notes
executed on behalf of such Foreign Subsidiaries. It is understood and agreed
that, with respect to any Foreign Subsidiary listed on Schedule 5.14, until the
covenants and requirements set forth in this Section 5.14 with respect to such
Foreign Subsidiary have been satisfied in full, in the reasonable opinion of the
Agents, such Foreign Subsidiary shall not be permitted to incur Intercompany
Indebtedness in excess of that permitted pursuant to the Original Agreement.
SECTION 5.15. YEAR 2000 COMPLIANCE. The Borrower will promptly notify
the Administrative Agent in the event the Borrower discovers or determines that
any computer
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application that is material to its or any of its Subsidiaries' business and
operations will not be Year 2000 Compliant on a timely basis, except to the
extent that such failure could not reasonably be expected to have a Material
Adverse Effect.
ARTICLE VI
NEGATIVE COVENANTS
The Borrower covenants and agrees with each Lender that so long as this
Amended Agreement shall remain in effect and until the Commitments have been
terminated and the Loans, together with interest, Fees and all other Obligations
have been paid in full, all Letters of Credit have been canceled or have expired
and all amounts drawn thereunder have been reimbursed in full, unless the
Required Lenders shall otherwise consent in writing:
SECTION 6.01. INDEBTEDNESS. The Borrower will not, and will not cause
or permit any of the Subsidiaries to, incur, create, issue, assume, guarantee or
permit to exist any Indebtedness or Disqualified Stock, except:
(a) Indebtedness or Disqualified Stock existing on the
Effective Date that is set forth in Schedule 6.01 (but not any
extension, renewal, increase or refinancing thereof, other than the
refinancing of Indebtedness permitted under Section 6.01(d) (i) if such
refinancing is within the terms and limits of Section 6.01(d)(i));
(b) Indebtedness created and evidenced by the Loan Documents;
(c) Intercompany Indebtedness existing on the Effective Date
that is set forth on Schedule 6.01, or arising thereafter; PROVIDED,
THAT (i) in the case of Intercompany Indebtedness existing on the
Effective Date, all such Indebtedness is listed on Schedule 6.01, (ii)
in the case of Intercompany Indebtedness arising after the Effective
Date, all such Indebtedness is evidenced by Intercompany Notes pledged
to the Collateral Agent pursuant to the Pledge Agreement and is
permitted pursuant to Section 6.04(b); PROVIDED, THAT, the aggregate
Intercompany Indebtedness of Foreign Subsidiaries to the Borrower or
any Domestic Subsidiary shall not exceed $45,000,000 at any time and,
contemporaneously with any loan or advance to a Foreign Subsidiary, if
required by the terms of Section 5.12, the Borrower shall deliver or
cause to be delivered to the Collateral Agent an opinion of counsel to
such Foreign Subsidiary, in form and substance reasonably satisfactory
to the Collateral Agent, stating that the applicable Intercompany Note
is the valid, binding and enforceable obligation of such Foreign
Subsidiary and (iii) Intercompany Indebtedness that is created between
Domestic Subsidiaries that are Wholly Owned Subsidiaries is not
required to be evidenced by Intercompany Notes; PROVIDED, THAT, such
Indebtedness (A) is incurred in good faith, in the ordinary course of
business, and for a legitimate company purpose, (B) is unsecured and
(C) is, by its terms, not assignable, transferrable, sellable, or
otherwise pledgeable to any third party;
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(d) (i) Indebtedness for borrowed money of Foreign
Subsidiaries to unrelated third parties (including guarantees with
respect thereto by the Borrower or any other Subsidiaries, as long as
those guarantees are unsecured (except for Liens on the assets (other
than Capital Stock) of the applicable Foreign Subsidiary)) that does
not exceed $20,000,000 in an aggregate amount outstanding at any time,
(which Indebtedness includes the Indebtedness described in item 4 of
Schedule 6.01) and (ii) in the event the Borrower acquires a majority
(or more) of the total outstanding Capital Stock of the Indian
Affiliate as permitted by Section 6.04(g), then the Indebtedness for
borrowed money of the Indian Affiliate existing as of the Effective
Date that does not exceed $6,000,000;
(e) Indebtedness of the Borrower or any Wholly Owned
Subsidiary that is a Domestic Subsidiary to Foreign Subsidiaries;
PROVIDED, THAT such Indebtedness is unsecured and is created and
outstanding under an agreement or instrument pursuant to which such
Indebtedness is subordinated to the Obligations secured under the
Collateral Documents at least to the extent provided in the instrument
attached hereto as Exhibit I;
(f) Indebtedness owed to any person providing worker's
compensation, health, disability or other employee benefits, property,
casualty or liability insurance to the Borrower or any Subsidiary, so
long as such Indebtedness shall not be in excess of the amount of the
unpaid cost or estimated or negotiated amounts of, and shall be
incurred only to defer the cost or estimated or negotiated amounts of,
such insurance for the applicable insurance period for which such
Indebtedness is incurred and such Indebtedness shall be outstanding
only during such period (which period shall not extend beyond the date
that is two years after the date on which such Indebtedness is
incurred);
(g) Indebtedness (including Capital Lease Obligations and
Purchase Money Indebtedness) issued or assumed as the deferred purchase
price of property or services (excluding trade accounts payable arising
in the ordinary course of business and paid in accordance with
customary trade terms) in a principal amount at any time outstanding
not in excess of $5,000,000 and incurred to finance Capital
Expenditures permitted by Section 6.13;
(h) Interest Rate Protection Agreements entered into in
accordance with Section 5.09;
(i) Indebtedness for advances permitted by Section 6.04(d);
(j) Indebtedness issued to a seller or assumed as the deferred
purchase price of a person (or to which the acquired person is
subject), business or asset in connection with a Permitted Acquisition
pursuant to Section 6.04(g); PROVIDED, THAT (i) such Indebtedness is
not secured by a Lien on any assets other than assets acquired in such
Permitted Acquisition, (ii) any Indebtedness issued or assumed pursuant
to this Section
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6.01(j) may not be refinanced in any manner except with Revolving Loans
and (iii) the aggregate principal Dollar Amount of all such
Indebtedness outstanding at any time shall not exceed $15,000,000;
(k) Indebtedness from one Wholly Owned Foreign Subsidiary to
another Wholly Owned Foreign Subsidiary; PROVIDED, THAT, such
Indebtedness (i) is incurred in good faith, in the ordinary course of
business, and for a legitimate company purpose, (ii) is unsecured and
(iii) is, by its terms, not assignable, transferrable, sellable, or
otherwise pledgeable to any third party;
(l) Indebtedness of Foreign Subsidiaries pursuant to foreign
currency hedge contracts entered into in the ordinary course of
business;
(m) Indebtedness of Suzhou Pfaudler to the Borrower or a
Domestic Subsidiary in an aggregate principal amount not to exceed
$1,100,000; PROVIDED, THAT (i) such Indebtedness is evidenced by a
promissory note and other documents and instruments that are in form
and substance reasonably acceptable to the Administrative Agent and the
Required Lenders, and (ii) such note and any liens and security
interests granted by Suzhou Pfaudler to the Borrower (or applicable
Domestic Subsidiary) to collateralize such Indebtedness are assigned to
the Lenders pursuant to the terms of the Collateral Documents;
(n) Indebtedness of any Italian Subsidiary, any German
Subsidiary, any UK Subsidiary, any Canadian Subsidiary that (i) does
not exceed, for all such Subsidiaries on a collective basis,
$50,000,000 in the aggregate, (ii) is collateralized by an ABN AMRO
Foreign Currency Letter of Credit, and (iii) is unsecured;
(o) Indebtedness created pursuant to the Senior Note Purchase
Agreement and evidenced by the Senior Notes; and
(p) Indebtedness of the Borrower or any of its Subsidiaries
incurred in connection with the issuance of Bank Guarantees; PROVIDED,
THAT (i) the aggregate principal Dollar Amount of such Bank Guarantees
does not exceed $10,000,000 at any one time and (ii) such Bank
Guarantees shall be (A) incurred in good faith, in the ordinary course
of business and for a legitimate company purpose, (B) unsecured and (C)
otherwise issued on terms satisfactory to the Agents and the Required
Lenders.
SECTION 6.02. NEGATIVE PLEDGE. The Borrower will not, and will not
cause or permit any of the Subsidiaries to, create, incur, assume or permit to
exist any Lien on any property or assets (including Capital Stock or other
securities of any Subsidiary or other person) now owned or hereafter acquired by
it or on any income or revenues or rights in respect of any thereof, except:
(a) Liens existing on the Effective Date and that are set
forth in Schedule 6.02, provided that such Liens secure only those
obligations which they
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secure on the Effective Date;
(b) Liens in favor of the Collateral Agent on behalf of the
Secured Parties created by the Collateral Documents securing the
Obligations and the Senior Notes;
(c) Liens for taxes not yet due or which are being contested
in compliance with Section 5.03;
(d) carriers', warehousemen's, mechanic's, materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business and securing obligations that are not due or which are being
contested in compliance with Section 5.03;
(e) pledges and deposits made in the ordinary course of
business in compliance with workmen's compensation, unemployment
insurance and other social security laws or regulations;
(f) deposits to secure the performance of bids, trade
contracts (other than for Indebtedness), leases (other than Capital
Lease Obligations), statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in
the ordinary course of business;
(g) zoning restrictions, easements, rights-of-way and
restrictions on use of real property existing as of the Effective Date
or incurred in the ordinary course of business which, in the aggregate,
are not substantial in amount and do not materially detract from the
value of the property subject thereto or interfere with the ordinary
conduct of the business of the Borrower or any of the Subsidiaries;
(h) unperfected Liens arising by operation of law under
Article 2 of the Uniform Commercial Code in favor of unpaid sellers or
prepaying buyers of goods relating to amounts that are not past due in
accordance with their respective terms of sale;
(i) purchase money security interests in real property,
improvements thereto or equipment hereafter acquired (or, in the case
of improvements, constructed) by the Borrower or any Subsidiary;
PROVIDED, THAT (i) such security interests secure Indebtedness
permitted by Section 6.01(g), (ii) such security interests are
incurred, and the Indebtedness secured thereby is created, within 90
days after such acquisition (or completion of construction), (iii) the
Indebtedness secured thereby does not exceed 100% of the lesser of the
cost or the fair market value of such real property, improvements or
equipment at the time of such acquisition (or completion of
construction) and (iv) such security interests do not apply to any
other property or assets of the Borrower or any Subsidiary;
(j) leases or subleases which are entered into in the ordinary
course of the business and which do not interfere in any material
respect with the ordinary conduct
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of the business of the Borrower or its Subsidiaries;
(k) Liens existing on any asset (other than Capital Stock)
acquired in a Permitted Acquisition or on the assets (other than
Capital Stock) of any person acquired in a Permitted Acquisition;
PROVIDED, THAT, (i) the Indebtedness secured by any such Lien is
permitted under Section 6.01(j), (ii) any such Lien is created at the
time of completion of the Permitted Acquisition, (iii) the Indebtedness
secured thereby does not exceed 100% of the lesser of the cost or the
fair market value of the asset acquired at the time of the Permitted
Acquisition and (iv) such Liens are confined solely to the asset
acquired (or assets of the person acquired) and do not apply to any
other asset of the Borrower or any Subsidiary; and
(l) Liens on assets (other than Capital Stock) of Foreign
Subsidiaries securing Indebtedness or guarantees permitted under
Section 6.01(d).
SECTION 6.03. INTENTIONALLY OMITTED.
SECTION 6.04. INVESTMENTS, LOANS AND ADVANCES. The Borrower will not,
and will not cause or permit any of the Subsidiaries to, purchase, hold or
acquire any Capital Stock, evidences of indebtedness or other securities of,
make or permit to exist any loans, extensions of credit or advances to, make
guarantees in favor of, or make or permit to exist any other investment, capital
contribution or other interest in, any other person, except:
(a) (i) equity investments existing on the Effective Date by
the Borrower in the Subsidiaries and listed on Schedule 6.04, (ii)
contributions of equity made after the Effective Date to Subsidiaries
of the Borrower that, when taken together with all aggregate
consideration paid as permitted pursuant to Section 6.04(h) during any
Fiscal Year, do not exceed $15,000,000 in the aggregate during such
Fiscal Year as long as such contributions are not made for the purpose
of funding an acquisition not otherwise permitted hereunder and (iii)
treasury stock held by the Borrower and its Subsidiaries on the
Effective Date and listed on Schedule 6.04 or acquired by the Borrower
or a Subsidiary as permitted pursuant to Section 6.06(a);
(b) loans and advances made after the Effective Date by the
Borrower or any Wholly Owned Subsidiary that is a Domestic Subsidiary
to any Subsidiary or the Borrower; PROVIDED, THAT, any such loan or
advance (i) is evidenced by an Intercompany Note pledged and delivered
to the Administrative Agent on behalf of the Secured Parties pursuant
to the Pledge Agreement (other than as excepted in clause (iii) of
Section 6.01(c)), and (ii) is otherwise permitted pursuant to Section
6.01(c);
(c) trade accounts receivable (and related notes and
instruments) arising in the ordinary course of business consistent with
past practices;
(d) (i) advances to employees for home-swing loans and moving
and travel expenses in the ordinary course of business consistent with
past practices, and
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guarantees by the Borrower in connection with home-swing loans of third
parties to employees and (ii) loans to executive officers of the
Borrower to assist in the payment of taxes resulting from an election
made under Section 83(b) of the Code;
(e) Cash Equivalents;
(f) securities held by the Borrower or any of the Subsidiaries
prior to the Effective Date and listed in Schedule 6.04;
(g) one or more non-hostile acquisitions by the Borrower or
any Qualified Acquisition Subsidiary of assets or Capital Stock (other
than Margin Stock) of any other person (such assets, in the case of an
asset acquisition, or person, in the case of the acquisition of Capital
Stock, is referred to herein as the "ACQUIRED ENTITY") so long as (A)
in the case of an acquisition of assets, such assets are to be used,
and in the case of an acquisition of Capital Stock, the person so
acquired is engaged, in a business generally considered to be a part of
the fluids management industry, (B) the Borrower shall have provided
the Lenders with the financial projections required by Section 5.04(g)
and such other information as the Lenders shall reasonably request, (C)
on the date of such acquisition and immediately after giving effect
thereto, the representations and warranties set forth in Article III
shall be true and correct in all material respects with the same effect
as though made on and as of such date and no Default or Event of
Default shall exist, (D) the Consolidated Leverage Ratio shall not
exceed 3.75 to 1.00 calculated on a pro forma basis, (E) the
Consolidated Fixed Charge Coverage Ratio shall not be less than 2.00 to
1.00 calculated on a pro forma basis, (F) in the case of an acquisition
of Capital Stock of a person, then simultaneously with any such
acquisition, the Administrative Agent for the benefit of the Secured
Parties shall be granted (I) in the case of a person organized under
the laws of the United States, any State thereof or the District of
Columbia, a first priority security interest in all of such Capital
Stock acquired by the Borrower or any Qualified Acquisition Subsidiary
as part of such acquisition, and (II) in the case of a person organized
under the laws of a jurisdiction other than the United States, any
State thereof or the District of Columbia, that will be acquired
directly by the Borrower or a Domestic Subsidiary, a first priority
security interest in 65% of all of the Capital Stock of the person so
acquired, and in all cases the Borrower shall, and shall cause any
applicable Subsidiary to, execute any documents (including a
Supplemental Agreement, Intercompany Note, financing statements and
other Collateral Documents) and take all action (including filing
financing statements and obtaining and providing consents, and legal
opinions) that may be required under applicable law, or that the Agents
may request, in order to grant, preserve, protect and perfect such
security interest, (G) in the case of an acquisition of Capital Stock
of a person, the Borrower acquires directly or indirectly 100% of the
Capital Stock of such person; PROVIDED, THAT, with respect to the
Indian Affiliate, the Borrower may acquire less than all but at least a
majority interest in the Indian Subsidiary for a total aggregate
consideration not to exceed $10,000,000, and (H) the total aggregate
consideration for any single acquisition (or series of related
acquisitions) of such Capital Stock or assets shall not exceed
$20,000,000 (such
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consideration to include, without limitation, the amount of
Indebtedness incurred pursuant thereto as permitted by Section
6.01(j));
(h) one or more (i) contributions of equity to newly formed,
non-wholly owned Subsidiaries or (ii) non-hostile acquisitions by the
Borrower or any Qualified Acquisition Subsidiary of assets or Capital
Stock (other than Margin Stock) of any other person (such assets, in
the case of an asset acquisition, or person, in the case of the
acquisition of Capital Stock, is referred to herein as the "ACQUIRED
ENTITY"), so long as (A) in the case of an acquisition of assets, such
assets are to be used, and in the case of an acquisition of Capital
Stock or the formation of a new Subsidiary, the person so acquired or
formed is or will be engaged, in a business generally considered to be
a part of the fluids management industry, (B) the Borrower shall have
provided the Lenders with the financial projections required by Section
5.04(g) and such other information as the Lenders shall reasonably
request, (C) on the date of such acquisition or formation of a new
Subsidiary, and immediately after giving effect thereto, the
representations and warranties set forth in Article III shall be true
and correct in all material respects with the same effect as though
made on and as of such date and no Default or Event of Default shall
exist, (D) the Consolidated Leverage Ratio shall not exceed 3.75 to
1.00 calculated on a pro forma basis, (E) the Consolidated Fixed Charge
Coverage Ratio shall not be less than 2.00 to 1.00 calculated on a pro
forma basis, (F) in the case of an acquisition of Capital Stock of a
person or the formation of a new Subsidiary, then simultaneously with
any such acquisition or formation, the Administrative Agent for the
benefit of the Secured Parties shall be granted (I) in the case of a
person organized under the laws of the United States, any State thereof
or the District of Columbia, a first priority security interest in all
of such Capital Stock acquired by or issued to the Borrower or any
Qualified Acquisition Subsidiary as part of such acquisition or
formation, and (II) in the case of a person organized under the laws of
a jurisdiction other than the United States, any State thereof or the
District of Columbia, that will be acquired or formed directly by the
Borrower or a Domestic Subsidiary, a first priority security interest
in 65% of all of the Capital Stock of the person so acquired or formed
that is owned by the Borrower or a Domestic Subsidiary, (G) in the case
of an acquisition of Capital Stock of a person or the formation of a
new Subsidiary, the Borrower acquires (or is issued, as the case may
be) directly or indirectly a majority of the Capital Stock of such
person; PROVIDED, THAT, the Borrower or the applicable Qualified
Acquisition Subsidiary has Control over the acquired or newly-formed
person, and (H) the total aggregate consideration for all such
transactions (or series of related transactions) as contemplated by
clauses (i) and (ii) of this subparagraph (h) above that are
consummated during any Fiscal Year, when taken together with any
contributions made during such Fiscal Year as permitted by Section
6.04(a)(ii), shall not exceed $15,000,000 (such consideration to
include, without limitation, the amount of Indebtedness incurred
pursuant thereto as permitted by Section 6.01(j));
(i) loans and advances made after the Effective Date by (i)
any Foreign Subsidiaries to the Borrower or any Wholly Owned Subsidiary
that is a Domestic
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Subsidiary that are permitted pursuant to Section 6.01(e) and (ii) any
Wholly Owned Foreign Subsidiary to another Wholly Owned Foreign
Subsidiary that are permitted pursuant to Section 6.01(k);
(j) loans to any Affiliate of the Borrower or its
Subsidiaries; PROVIDED, THAT, (i) such loans do not exceed an aggregate
amount equal to $5,000,000 at any one time outstanding, and (ii) all
such loans are evidenced by Intercompany Notes pledged to the Agents
and the Lenders pursuant to the Pledge Agreement; and
(k) a contribution of assets to the Borrower or any Wholly
Owned Subsidiary that is a Domestic Subsidiary to the extent permitted
by Section 6.05(g).
SECTION 6.05. MERGERS, CONSOLIDATIONS, DISPOSITIONS AND ACQUISITIONS.
The Borrower will not, and will not cause or permit any of the Subsidiaries to,
(i) merge into or consolidate with any other person, (ii) permit any other
person to merge into or consolidate with it, (iii) sell, transfer, lease or
otherwise dispose of (in one transaction or in a series of transactions) all or
any substantial part of its assets (whether now owned or hereafter acquired)
(iv) issue, sell, transfer, lease or otherwise dispose of any Capital Stock of
any Subsidiary to, or permit any Subsidiary to accept any capital contribution
from, any person, or (v) purchase, lease or acquire (in one transaction or a
series of transactions) all or any substantial part of the assets of any other
person, except that:
(a) any Foreign Subsidiary may be merged, liquidated or
consolidated with or into another Foreign Subsidiary if, immediately
after giving effect to such transaction, no condition or event shall
exist which constitutes a Default or Event of Default;
(b) any Subsidiary may be merged, liquidated or consolidated
with or into the Borrower or any Domestic Subsidiary that is a Wholly
Owned Subsidiary if, immediately after giving effect to such
transaction, no condition or event shall exist which constitutes a
Default or Event of Default and the Borrower or such Domestic
Subsidiary, as applicable, is the surviving entity;
(c) the Borrower and any of the Subsidiaries may sell
inventory in the ordinary course of business for fair value and on an
arm's-length basis (and as may be permitted pursuant to Section 6.10)
and may purchase inventory in the ordinary course of business;
(d) the Borrower and any of the Subsidiaries may sell damaged,
worn out or obsolete tangible assets or scrap in the ordinary course of
business and in a commercially reasonable manner, so long as the Net
Cash Proceeds of any such disposition are applied as required by
Section 2.12(d);
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(e) the foregoing shall not be deemed violated by any casualty
or condemnation affecting assets of the Borrower or any Subsidiary, so
long as (i) the Borrower or its applicable Subsidiary reinvests the Net
Cash Proceeds of any such casualty of condemnation within 180 days of
the date of such casualty or condemnation (or if the Required Lenders
agree to a longer period, such longer period) in assets of a like kind
and character to those that were destroyed or taken or (ii) if the
Borrower or its applicable Subsidiary does not reinvest the Net Cash
Proceeds of any such casualty or condemnation as provided in the
preceding clause (i) within the period provided in clause (i), the Net
Cash Proceeds thereof are immediately applied as required by Section
2.12(d);
(f) the Borrower and any of the Subsidiaries may sell, lease,
transfer, assign or dispose of assets to any other person to the extent
that the aggregate Net Cash Proceeds from such sale, lease, transfer,
assignment or other disposition to such person do not exceed $500,000,
so long as (I) the fair market value of all property disposed of
pursuant to this clause (f) does not exceed $2,000,000 in the aggregate
in any Fiscal Year and (II) the Net Cash Proceeds of any such
disposition are applied as required by Section 2.12(d);
(g) the Borrower or any of its Subsidiaries may transfer
assets to the Borrower or any Wholly Owned Subsidiary which is a
Domestic Subsidiary;
(h) the Borrower or a Qualified Acquisition Subsidiary may
make Permitted Acquisitions to the extent permitted by Section 6.04(g)
or Section 6.04(h);
(i) the Borrower may make equity contributions to Wholly Owned
Subsidiaries to the extent permitted by Section 6.04(a)(ii);
(j) the Borrower and the Subsidiaries may make Capital
Expenditures to the extent permitted by Section 6.13;
(k) the Borrower and any applicable Subsidiary may acquire the
Capital Stock of the Borrower or the Subsidiaries to the extent
permitted by Section 6.06(a); and
(l) a non-Wholly owned Foreign Subsidiary may issue Capital
Stock to third parties as long as (i) the proceeds thereof are used for
working capital purposes of such Subsidiary or to finance the
acquisition of capital assets in the ordinary course of business; and
(ii) the issuer remains a majority-owned Subsidiary of the Borrower
after the issuance of such Capital Stock.
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SECTION 6.06. DIVIDENDS, DISTRIBUTIONS AND OTHER RESTRICTED PAYMENTS.
(a) The Borrower will not, and will not cause or permit any of the Subsidiaries
to, (i) declare or pay, directly or indirectly, any dividend or make any other
distribution (by reduction of capital or otherwise and including any tax sharing
or indemnification payments), whether in cash, property, securities or a
combination thereof, with respect to any Capital Stock of the Borrower or any of
the Subsidiaries, (ii) except as expressly permitted pursuant to Section 6.06(b)
below and except for Capital Stock reacquired by the Borrower in connection with
the exercise of stock options granted pursuant to employee or director stock
option plans of the Borrower or in connection with withholding taxes due under
any stock plan in which employees or directors participate, directly or
indirectly redeem, purchase, retire or otherwise acquire for value, any Capital
Stock of the Borrower or any of the Subsidiaries, whether such acquisition is
made at the option of the Borrower or such Subsidiary or at the option of the
holder of such Capital Stock and whether or not such acquisition is required
under the terms and conditions applicable to such Capital Stock or set aside any
amount for any such purpose, (iii) release, cancel, compromise or forgive in
whole or in part any Indebtedness evidenced by the Intercompany Notes or (iv)
directly or indirectly redeem, purchase, prepay, retire, defease or otherwise
acquire for value any Indebtedness (other than Obligations), whether such
acquisition is made at the option of the Borrower or such Subsidiary or at the
option of the holder of such Indebtedness and whether or not such acquisition is
required under the terms and conditions applicable to such Indebtedness, or set
aside any amount for any such purpose, except for repayments of principal of any
such Indebtedness in accordance with the scheduled amortization thereof;
PROVIDED, THAT (v) any Subsidiary may declare and pay dividends or make other
distributions to the Borrower or any Wholly Owned Subsidiary, (w) as long as no
Event of Default then exists, the Borrower may pay cash dividends to the holders
of its Capital Stock and repurchase or redeem Capital Stock of the Borrower in
each Fiscal Year of the Borrower that do not exceed the greater of (A) the sum
of (I) fifty percent (50%) of the Borrower's Consolidated Net Income for the
preceding Fiscal Year and (II) the Carry Over Amount, if any, for that Fiscal
Year or (B) $2,500,000, (x) the Borrower may prepay the Senior Notes so long as
no Event of Default has occurred and is continuing on the date of such
prepayment, (y) the Borrower may prepay the Convertible Debt so long as no Event
of Default has occurred and is continuing on the date of such prepayment and,
(z) as a condition to any payments made pursuant to clauses (w), (x) or (y)
preceding, after giving effect to such payment or prepayment, as the case may
be, the Borrower is in compliance on a pro forma basis with the covenants
contained in this Article VI from the date of such payment or prepayment through
the Revolving Credit Maturity Date, and the Borrower shall, prior to the date of
such payment or prepayment (other than with respect to the payment of cash
dividends and the repurchase or redemption of Capital Stock), as the case may
be, deliver to each Lender projections (certified in accordance with Section
5.04(g)) demonstrating such compliance.
(b) In connection with a Permitted Acquisition in which Capital Stock
of the Borrower is to be issued as all or part of the consideration therefor,
the Borrower or a Restricted Subsidiary may repurchase a number of shares of the
Capital Stock of Borrower which is not greater than the number of shares of
Borrower's Capital Stock issued or to be issued in connection with the Permitted
Acquisition so long as: (i) all of such Capital Stock is repurchased during the
fiscal quarter of Borrower in which the Permitted Acquisition occurs,
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and (ii) the aggregate consideration paid for the Capital Stock so repurchased,
together with all other consideration paid in such Permitted Acquisition (other
than consideration consisting of a number of shares of Borrower's Capital Stock
not greater than the number of shares so repurchased) does not exceed the amount
permitted by Section 6.04(g); PROVIDED, THAT, any such repurchase of Capital
Stock of the Borrower in connection with a Permitted Acquisition that is not
completed must otherwise be permitted under Section 6.06(a).
SECTION 6.07. IMPAIRMENT OF SECURITY INTERESTS. The Borrower will not,
and will not permit any of the Subsidiaries to, take or omit to take any action,
which action or omission might or would have the result of materially impairing
the security interests in favor of the Collateral Agent on behalf of the Secured
Parties with respect to the Collateral, and the Borrower will not, and will not
permit any of the Subsidiaries to, grant to any person (other than the
Collateral Agent on behalf of the Secured Parties pursuant to the Loan
Documents) any interest whatsoever in the Collateral.
SECTION 6.08. LIMITATION ON RESTRICTIONS ON SUBSIDIARY DIVIDENDS, ETC.
The Borrower will not, and will not cause or permit any of the Subsidiaries to,
directly or indirectly, create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or restriction or any restriction in its
articles of incorporation (except restrictions imposed by state law), By-laws or
comparable governing instruments on the ability of any Subsidiary to (a) pay
dividends or make any other distributions on or in respect of its Capital Stock,
or pay any indebtedness owed to the Borrower or any Subsidiary, (b) make loans
or advances to the Borrower or any Subsidiary or (c) except in agreements
entered into in connection with a transaction permitted by Section 6.02(i),
transfer any of its properties or assets to the Borrower or any Subsidiary,
except for such encumbrances or restrictions existing under or by reason of (i)
customary non-assignment provisions in any lease governing a leasehold interest
or in any other contract governing a contract right which in the ordinary course
of business is not assignable or (ii) this Amended Agreement and the Collateral
Documents.
SECTION 6.09. NO OTHER NEGATIVE PLEDGES. The Borrower will not, and
will not cause or permit any of the Subsidiaries to, directly or indirectly,
enter into any agreement prohibiting the creation or assumption of any Lien upon
the properties or assets of the Borrower or any Subsidiary, whether now owned or
hereafter acquired, or requiring an obligation to be secured if some other
obligation is secured, except for this Amended Agreement and except in
agreements entered into in connection with a transaction permitted by Section
6.02(i), Section 6.02(l) or Section 6.01(n).
SECTION 6.10. TRANSACTIONS WITH AFFILIATES AND SHAREHOLDERS. The
Borrower will not, and will not cause or permit any of the Subsidiaries to, sell
or transfer any property or assets to, or purchase or acquire any property or
assets from, or otherwise enter into or maintain any other transactions with,
any Affiliate of the Borrower or any of the Shareholders, except that so long as
no Default or Event of Default shall have occurred and be continuing, the
Borrower or any Subsidiary may enter into any of the foregoing transactions in
the ordinary course of business at prices and on terms and conditions that are
(i) set forth in
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writing and (ii) as favorable to the Borrower or such Subsidiary as would be
obtainable at the time in a comparable transaction on an arm's-length basis from
an unrelated third party. The provisions of this Section 6.10 shall not prohibit
(A) any payment expressly permitted under Section 6.04 or 6.06, (B) any
transaction entered into and maintained among the Borrower and any Restricted
Subsidiaries or among Restricted Subsidiaries and (C) payment of compensation to
employees and directors in the ordinary course of business. Notwithstanding the
foregoing, (x) the Borrower and the Subsidiaries may engage in transactions on a
non-arm's-length basis in connection with "beachhead" pricing in new markets as
long as such transactions are permitted by the rules and regulations regarding
international transfer pricing set forth in the Internal Revenue Code, and (y)
except as required by other provisions of this Amended Agreement, permitted
transactions between Subsidiaries are not required to be in writing.
SECTION 6.11. BUSINESS OF BORROWER AND SUBSIDIARIES. The Borrower will
not, and will not cause or permit any of the Subsidiaries to, engage at any time
in any business or business activity other than the businesses conducted by it
on the Closing Date, other businesses generally considered to be a part of the
fluids management industries and business activities reasonably incidental
thereto.
SECTION 6.12. CERTAIN AMENDMENTS. The Borrower will not, and will not
cause or permit any of the Subsidiaries to, enter into any amendment,
modification or waiver of (a) the Certificate of Incorporation or By-laws or
comparable governing instruments of the Borrower or any of the Subsidiaries as
in effect on the Effective Date, other than amendments, modifications and
waivers which are not, individually or in the aggregate, adverse in any material
respect to the rights or interests of the Lenders, (b) the Subordinated Notes or
(c) the Senior Note Purchase Agreement without the written consent of the
Lenders required under the Collateral Agency Agreement.
SECTION 6.13. CAPITAL EXPENDITURES. The Borrower will not permit the
aggregate amount of Capital Expenditures made by the Borrower and its
Subsidiaries taken as a whole in any Fiscal Year to exceed the sum of (i)
$40,000,000, plus (ii) the amount, if any, by which Capital Expenditures for the
previous Fiscal Year (other than any Fiscal Year prior to the 1997 Fiscal Year),
are less than $40,000,000.
SECTION 6.14. FINANCIAL COVENANTS.
(a) CONSOLIDATED FIXED CHARGE COVERAGE RATIO. The Borrower
will not permit the Consolidated Fixed Charge Coverage Ratio for any
Reference Period to be less than 2.00 to 1.00 at any time during the
term of this Amended Agreement.
(b) CONSOLIDATED LEVERAGE RATIO. The Borrower will not permit
the Consolidated Leverage Ratio for any Reference Period to exceed 3.75
to 1.00 at any time during the term of this Amended Agreement.
(c) MINIMUM CONSOLIDATED NET WORTH. The Borrower will not
permit its Consolidated Net Worth as of the last day of any fiscal
quarter of the Borrower to be
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less than the Minimum Compliance Level at any time during the term of
this Amended Agreement. The "Minimum Compliance Level" shall be
$112,194,000 as of August 31, 1998 and shall be increased as of the
last day of each fiscal quarter of the Borrower ending after the
Effective Date by an amount equal to the sum of (a) 50% of Consolidated
Net Income (if positive) for such fiscal quarter, (b) 50% of the Net
Cash Proceeds of the issuance of any Capital Stock of the Borrower or
any Subsidiary that does not constitute Disqualified Stock and 80% of
the Net Cash Proceeds of the issuance of any Disqualified Stock of the
Borrower or any Subsidiary and (c) from and after the date of any
conversion to equity of the Convertible Debt in accordance with the
terms thereof, an aggregate amount equal to 80% of the book value of
the increase in the capital and surplus of the Borrower resulting from
such conversion of the Convertible Debt; PROVIDED, THAT, nothing in
this paragraph shall be construed to permit the issuance of any such
Capital Stock or Disqualified Stock. It is understood that the first
increase in the Minimum Compliance Level pursuant to the foregoing
provisions shall be determined as of the Borrower's fiscal quarter
ending November 30, 1998. The foregoing increases in the Minimum
Compliance Level shall be fully cumulative and no reduction in the
Minimum Compliance Level shall be made to reflect negative Consolidated
Net Income for any period.
ARTICLE VII
EVENTS OF DEFAULT
In case of the happening of any of the following events (each
an "EVENT OF DEFAULT" and collectively the "EVENTS OF DEFAULT"):
(a) default shall be made in the payment of any principal of
any Loan or any reimbursement obligation in respect of a Letter of
Credit when and as the same shall become due and payable, whether at
the due date thereof or at a date fixed for prepayment thereof or by
acceleration thereof or otherwise;
(b) default shall be made in the payment of any interest on
any Loan or any Fee or any other amount (other than an amount referred
to in paragraph (a) above) due under any Loan Document, when and as the
same shall become due and payable, and such default shall continue
unremedied for a period of three Business Days;
(c) default shall be made in the due observance or performance
by the Borrower or any Subsidiary of any covenant, condition or
agreement contained in Section 5.01(a), 5.05, 5.08, 5.09, 5.10, 5.12,
5.13 or 5.14 or in Article VI;
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(d) default shall be made in the due observance or performance
by the Borrower or any Subsidiary of any covenant, condition or
agreement contained herein and in any other Loan Document (other than
those specified in paragraph (a), (b) or (c) above) and such default
shall continue unremedied for a period of 30 days after such default
becomes known to a Responsible Officer of the Borrower or such
Subsidiary;
(e) any representation or warranty made or deemed made in any
Loan Document or the extensions of credit hereunder, or any
representation, warranty, statement or information contained in any
report, certificate, financial statement or other instrument furnished
in connection with or pursuant to any Loan Document, shall prove to
have been false or misleading in any material respect when so made,
deemed made or furnished;
(f) the Borrower or any Subsidiary shall (i) fail to pay any
principal or interest, regardless of amount, due in respect of any
Indebtedness in a principal amount in excess of $500,000, when and as
the same shall become due and payable, or (ii) fail to observe or
perform any other term, covenant, condition or agreement contained in
any agreement or instrument evidencing or governing any Indebtedness in
excess of $4,000,000 if the effect of any failure referred to in this
clause (ii) is to cause, or to permit the holder or holders of such
Indebtedness or a trustee on its or their behalf to cause, with or
without the giving of notice or the lapse of time or both, such
Indebtedness to become due prior to its stated maturity;
(g) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent
jurisdiction seeking (i) relief in respect of the Borrower or any
Subsidiary, or of a substantial part of its property or assets, under
Title 11 of the United States Code, as now constituted or hereafter
amended, or any other Federal, state or foreign bankruptcy, insolvency,
receivership or similar law, (ii) the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for
the Borrower or any Subsidiary, or for a substantial part of its
property or assets, or (iii) the winding-up or liquidation of the
Borrower or any Subsidiary; and such proceeding or petition shall
continue undismissed for 60 days or an order or decree approving or
ordering any of the foregoing shall be entered;
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(h) the Borrower or any Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking relief under Title
11 of the United States Code, as now constituted or hereafter amended,
or any other Federal, state or foreign bankruptcy, insolvency,
receivership or similar law, (ii) consent to the institution of, or
fail to contest in a timely and appropriate manner, any proceeding or
the filing of any petition described in paragraph (g) above, (iii)
apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for such party
or for a substantial part of its property or assets, (iv) file an
answer admitting the material allegations of a petition filed against
it in any such proceeding, (v) make a general assignment for the
benefit of creditors, (vi) become unable, admit in writing its
inability or fail generally to pay its debts as they become due or
(vii) take any action for the purpose of effecting any of the
foregoing;
(i) one or more judgments or orders for the payment of money
in an aggregate amount in excess of $500,000 shall be rendered against
the Borrower or any Subsidiary or any combination thereof and the same
shall remain undischarged for a period of 30 consecutive days during
which execution shall not be effectively stayed, or any judgment
creditor shall levy upon assets or properties of the Borrower or any
Subsidiary to enforce any such judgment;
(j) (i) any person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the
Code) involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived, shall exist
with respect to any Plan, or any Lien shall arise on the assets of the
Borrower or any Commonly Controlled Entity in favor of the PBGC or a
Plan, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed (or a trustee
shall be appointed) to administer, or to terminate, any Single Employer
Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is, in the reasonable opinion of the Required
Lenders, likely to result in the termination of such Plan for purposes
of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for
purposes of Title IV of ERISA, (v) the Borrower or any Commonly
Controlled Entity shall, or in the reasonable opinion of the Required
Lenders is likely to, incur any liability in connection with a
withdrawal from, or the termination, reorganization or insolvency of
(within the meaning of such terms as used in ERISA), a Multiemployer
Plan or (vi) any other event or condition shall occur or exist with
respect to a Plan; and, in each case in clauses (i) through (vi) above,
such event or condition, together with all other such events or
conditions, if any, could reasonably be expected to result in liability
of the Borrower and the Subsidiaries in an aggregate amount exceeding
$2,500,000 or require payments by the Borrower and the Subsidiaries
exceeding $1,000,000 in any year;
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(k) any Lien purported to be created by any Collateral
Document shall cease to be, or shall for any reason be asserted by the
Borrower or any Subsidiary not to be, a valid, perfected, first
priority Lien on the securities, properties or assets covered thereby,
except as priority may be affected by Liens permitted under Section
6.02 and except for releases of Collateral in accordance with all
applicable provisions of this Amended Agreement and the Collateral
Documents;
(l) any Loan Document or any material provision of any Loan
Document shall be declared by any Governmental Authority to be invalid
or unenforceable in whole or in part, or shall be asserted by the
Borrower or any Subsidiary not to be, in full force and effect and
enforceable in accordance with its terms;
(m) any adverse change in the material agreements or
relationships of the Borrower and the Subsidiaries shall occur and such
event or condition, together with all other such events or conditions,
if any, could, in light of all the then existing circumstances,
reasonably be expected to result in net losses, claims or actions
(after tax) to which the Borrower or its Subsidiaries are or may become
subject (with or without the passage of time) in an amount equal to or
greater than the greater of (i) $10,000,000 or (ii) 7% of the
Borrower's Consolidated Net Worth;
(n) any material intellectual property or any material license
relating thereto shall be invalid or unenforceable in whole or in part
or shall for any reason not be in full force and effect and enforceable
by the Borrower and the Subsidiaries or shall infringe the rights of
any other person or any other adverse change in the material
intellectual property rights of the Borrower and the Subsidiaries shall
occur and such event or condition, together with all other such events
or conditions, if any, could reasonably be expected to have a Material
Adverse Effect;
(o) either (i) the Borrower or any Subsidiary shall be liable,
whether directly, indirectly through required indemnification of any
person or otherwise, for the costs of investigation and/or remediation
of any Hazardous Material originating from or affecting property or
properties, whether or not owned, leased or operated by the Borrower or
any Subsidiary, which liability, together with all other such
liabilities, could reasonably be expected to exceed $10,000,000 or
require payments exceeding $3,000,000 in any year or (ii) any Federal,
state, regional, local or other environmental regulatory agency or
authority shall commence an investigation or take any other action that
could reasonably be expected to be determined adversely to the Borrower
or any Subsidiary and, on the basis of such a determination, to have a
Material Adverse Effect; or
(p) there shall occur (i) any Change of Control (as defined in
this Amended Agreement) or (ii) any change of control as contemplated
by any of the Subordinated Notes;
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then, and in every such event, and at any time thereafter during the continuance
of such event, the Administrative Agent may, and at the request of the Required
Lenders shall, take one or more of the following actions, at the same or
different times: (i) by notice to the Borrower terminate the Commitments and
they shall immediately terminate; (ii) by notice to the Borrower declare the
Loans then outstanding to be forthwith due and payable (in whole or, in the sole
discretion of the Required Lenders, from time to time in part, provided that any
such partial acceleration shall be made pro rata based on the outstanding
principal amount of Loans of each Class), whereupon the principal of the Loans
so declared to be due and payable, together with accrued interest thereon and
any unpaid accrued Fees and all other liabilities of the Borrower accrued
hereunder or under any other Loan Document, shall thereupon become immediately
due and payable, without presentment, demand, protest or any other notice of any
kind, all of which are hereby expressly waived by the Borrower, anything
contained herein or in any other Loan Document to the contrary notwithstanding;
(iii) require cash collateral as contemplated by Section 2.23(k) in an amount
not exceeding the Letter of Credit Exposure; (iv) exercise any remedies
available under the Guarantee Agreement, the Collateral Documents or otherwise;
or (v) any combination of the foregoing; PROVIDED, THAT, in the case of (A) any
of the Events of Default with respect to the Borrower described in paragraph (g)
or (h) above or (B) the Event of Default specified in paragraph (p) above, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and any unpaid accrued Fees
and all other liabilities of the Borrower accrued hereunder or under any other
Loan Document, shall automatically become due and payable, without presentment,
demand, protest or any other notice of any kind, all of which are hereby
expressly waived by the Borrower, anything contained herein or in any other Loan
Document to the contrary notwithstanding.
ARTICLE VIII
THE AGENTS AND ISSUING BANK
SECTION 8.01. APPOINTMENT AND AUTHORIZATION. (a) Each of the Lenders,
and each subsequent holder of any Note by its acceptance thereof, hereby
irrevocably appoints and authorizes each of the Agents and the Issuing Bank to
take such actions as agent on behalf of such Lender or holder and to exercise
such powers as are specifically delegated to such Agent or the Issuing Bank, as
the case may be, by the terms and provisions hereof and of the other Loan
Documents, together with such actions and powers as are reasonably incidental
thereto.
(b) The Administrative Agent is hereby expressly authorized by the
Lenders, without hereby limiting any implied authority, and hereby agrees (in
the case of clause (ii) below, at the direction of the Required Lenders), (i) to
receive on behalf of the Lenders all payments of principal of and interest on
the Loans and all other amounts due to the Lenders hereunder, and promptly to
distribute to each Lender its proper share of each payment so received; (ii) to
give notice on behalf of each of the Lenders to the Borrower of any Event of
Default specified in this Amended Agreement of which the Administrative Agent
has actual knowledge acquired in connection with its agency hereunder; (iii) to
give notice to the Lenders
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of any Event of Default specified in this Amended Agreement of which the
Administrative Agent has actual knowledge acquired in connection with its agency
hereunder; and (iv) to distribute to each Lender copies of all notices,
financial statements and other materials delivered by the Borrower pursuant to
this Amended Agreement as received by the Administrative Agent.
SECTION 8.02. LIABILITY OF AGENTS. Neither the Agents, the Issuing
Bank, nor any of their respective directors, officers, employees or agents,
shall be liable as such for any action taken or omitted to be taken by any of
them, except for such party's own gross negligence or willful misconduct, or be
responsible for any statement, warranty or representation herein or the contents
of any document delivered in connection herewith, or be required to ascertain or
to make any inquiry concerning the performance or observance by the Borrower or
any Subsidiary of any of the terms, conditions, covenants or agreements
contained in any Loan Document. Neither the Agents nor the Issuing Bank shall be
responsible to the Lenders or the holders of the Notes for the due execution,
genuineness, validity, enforceability or effectiveness of this Amended
Agreement, the Notes or any other Loan Documents or other instruments or
agreements. Each of the Administrative Agent and the Issuing Bank may deem and
treat the payee of any Note as the owner thereof for all purposes hereof until
it shall have received from the payee of such Note notice, given as provided
herein, of the transfer thereof in compliance with Section 9.04. Each of the
Agents and the Issuing Bank shall in all cases be fully protected in acting, or
refraining from acting, in accordance with written instructions signed by the
Required Lenders and, except as otherwise specifically provided herein, such
instructions and any action or inaction pursuant thereto shall be binding on all
the Lenders and each subsequent holder of any Note. The Agents, the Issuing Bank
and the Required Lenders shall, in the absence of knowledge to the contrary, be
entitled to rely on any instrument or document believed by it in good faith to
be genuine and correct and to have been signed or sent by the proper person or
persons. Neither the Agents, the Issuing Bank nor any of their respective
directors, officers, employees or agents, shall have any responsibility to the
Borrower on account of the failure of or delay in performance or breach by any
Lender of any of its obligations hereunder or to any Lender on account of the
failure of or delay in performance or breach by any other Lender or the Borrower
or any Subsidiary of any of their respective obligations hereunder or under any
other Loan Document or in connection herewith or therewith. The Agents and the
Issuing Bank may execute any and all duties hereunder by or through agents or
employees, shall be entitled to consult with legal counsel, independent public
accountants and other experts selected by it with respect to all matters arising
hereunder and shall not be liable for any action taken or omitted to be taken in
good faith by it in accordance with the advice of such counsel, accountants or
experts.
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SECTION 8.03. ACTION BY AGENTS. The Lenders hereby acknowledge that
neither the Agents nor the Issuing Bank shall be under any duty to take any
discretionary action permitted to be taken by it pursuant to the provisions of
this Amended Agreement unless it shall be requested in writing to do so by the
Required Lenders. The obligations of the Agents and the Issuing Bank under the
Loan Documents are only those expressly set forth herein and therein. Without
limiting the generality of the foregoing, no Agent shall be required to take any
action with respect to any Default or Event of Default, except as expressly
required pursuant to Article VII.
SECTION 8.04. SUCCESSOR AGENTS. Subject to the appointment and
acceptance of a successor Agent, the Agents and the Issuing Bank (except, in the
case of the Issuing Bank, in respect of Letters of Credit issued by it) may
resign at any time by notifying the Lenders and the Borrower. Upon any such
resignation, the Required Lenders shall have the right to appoint a successor
subject to approval by the Borrower (which shall not be unreasonably withheld).
If no successor shall have been so appointed by the Required Lenders, and shall
have accepted such appointment within 30 days after the retiring Agent or
Issuing Bank, as the case may be, gives notice of its resignation, then the
retiring Agent or Issuing Bank, as the case may be, on behalf of the Lenders,
shall appoint a successor Agent or Issuing Bank, as applicable, which shall be a
commercial bank organized or licensed under the laws of the United States of
America or of any State thereof and having a combined capital and surplus of at
least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any
appointment as an Agent or Issuing Bank, as the case may be, hereunder by a
successor bank, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent or Issuing Bank and
the retiring Agent or Issuing Bank shall be discharged from its duties and
obligations hereunder. After the resignation of an Agent or the Issuing Bank, as
the case may be, hereunder, the provisions of this Article and Section 9.05
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 an Agent or Issuing Bank.
SECTION 8.05. AGENT AND AFFILIATE. With respect to the Loans made by it
hereunder, the Letters of Credit issued by it hereunder and the Notes issued to
it, the Agents and the Issuing Bank, each in its individual capacity and not as
an Agent or the Issuing Bank, as the case may be, shall have the same rights and
powers as any other Lender and may exercise the same as though it were not an
Agent or the Issuing Bank. The Agents and the Issuing Bank (and its Affiliates)
may accept deposits from, lend money to and generally engage in any kind of
business and transactions with the Borrower or any Subsidiary or other Affiliate
thereof as if it were not an Agent or the Issuing Bank (or such Affiliate
thereof).
SECTION 8.06. INDEMNIFICATION. Each Lender agrees (a) to reimburse each
of the Agents and the Issuing Bank, on demand, in the amount of its pro rata
share (as determined under Section 2.17) of any expenses incurred for the
benefit of the Lenders by such Agent or the Issuing Bank, as the case may be,
including counsel fees and compensation of agents and employees paid for
services rendered on behalf of the Lenders, which shall not have been reimbursed
by the Borrower and (b) to indemnify and hold harmless each of the Agents, the
Issuing Bank and any of their respective directors, officers, employees or
agents, on demand,
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in the amount of such pro rata share, from and against any and all liabilities,
taxes, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by or asserted against it in its capacity as an Agent or
the Issuing Bank, as the case may be, or any of them in any way relating to or
arising out of this Amended Agreement or any other Loan Document or any action
taken or omitted by it or any of them under this Amended Agreement or any other
such Loan Document, to the extent the same shall not have been reimbursed by the
Borrower; PROVIDED, THAT, no Lender shall be liable to any Agent or the Issuing
Bank for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the gross negligence or willful misconduct of such Agent, the Issuing Bank
or any of their respective directors, officers, employees or agents.
SECTION 8.07. CREDIT DECISION. Each Lender acknowledges that it has,
independently and without reliance upon the Agents, the Issuing Bank or any
other Lender and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Amended Agreement. Each Lender also acknowledges that it will, independently and
without reliance upon the Agents, the Issuing Bank or any other Lender and based
on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Amended Agreement or any other Loan Document, any
related agreement or any document furnished hereunder or thereunder.
SECTION 8.08. COLLATERAL AGENCY AGREEMENT. The Lenders hereby authorize
the Agents to enter into the Collateral Agency Agreement and agree to be bound
by the terms thereof.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. NOTICES. Notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopy as follows:
(a) if to the Borrower, to it at 0000 Xxxxxxxxx Xxxxx, Xxxxxx,
Xxxx 00000, Attention of Xxxxxxx X. Xxx (Telecopy No. (000) 000-0000),
with a copy to Xxxxxxxx Xxxx & Xxxxx LLP, 0000 Xxxxxxxxxx Xxxxx, X.X.,
X.X. Xxx 0000, Xxxxxx, Xxxx 00000-0000, Attention of Xxxxx X. Xxxxxxxx,
Esq. (Telecopy No:
(000) 000-0000);
(b) if to the Administrative Agent or the Issuing Bank, to it
at Kettering Tower, 00 Xxxxx Xxxx Xxxxxx, 0xx Xxxxx, Xxxxxx, Xxxx
00000, Attention of Xx. Xxxx X. Xxxxxx (Telecopy No. (000) 000-0000),
with a copy to Banc One Corporation, Legal Department, 000 Xxxx Xxxxx
Xxxxxx, Xxxxxxxx, Xxxx 00000, Attention of Xxxxx
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Xxxxxxx, Esq. (Telecopy No. (000) 000-0000);
(c) if to the Syndication Agent, to it at (i) Sears Tower, 000
Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000-0000, Attention of
Xx. Xxxxxxx Xxxxx (Telecopy No: (000) 000-0000), and (ii) NationsBank
Corporate Center, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000, Attention of Mr. Xxxxxx Xxxxxxxxxx (Telecopy No: (704)
388-9441), with a copy to Fennebresque, Clark, Xxxxxxxx & Hay, at
NationsBank Corporate Center, 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, Attention of Xxxxxx X. Xxxxxx,
Esq. (Telecopy No. (000) 000-0000); and
(d) if to a Lender, to it at its address (or telecopy number)
set forth in Schedule 2.01(a), or in the Assignment and Acceptance
pursuant to which such Lender shall have become a party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Amended Agreement shall be deemed to have been given
on the date of receipt if delivered by hand or overnight courier service or sent
by telecopy or on the date three Business Days after dispatch by certified or
registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) to such party as provided in this Section 9.01 or in accordance with
the latest unrevoked direction from such party given in accordance with this
Section 9.01. In all events, notice shall be deemed effective immediately upon
refusal of delivery thereof irrespective of the method of such delivery.
SECTION 9.02. SURVIVAL OF AGREEMENT. All covenants, agreements,
representations and warranties made by the Borrower herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Amended Agreement or any other Loan Document shall be
considered to have been relied upon by the Lenders, the Agents and the Issuing
Bank and shall survive the making by the Lenders of the Loans, the execution and
delivery to the Lenders of the Notes evidencing such Loans, and the issuance of
the Letters of Credit, regardless of any investigation made by the Lenders, the
Agents or the Issuing Bank or on their behalf, and shall continue in full force
and effect as long as the principal of or any accrued interest on any Loan, any
Fee, any Letter of Credit Disbursement or any other amount payable under this
Amended Agreement or any other Loan Document is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not been
terminated. The provisions of Section 2.14, 2.16, 2.20 and 9.05 shall remain
operative and in full force and effect regardless of the expiration of the term
of this Amended Agreement, the consummation of the transactions contemplated
hereby, the repayment of any of the Loans, the expiration of the Commitments,
the expiration of any Letter of Credit, the invalidity or unenforceability of
any term or provision of this Amended Agreement or any other Loan Document or
any investigation made by or on behalf of the Agent, the Issuing Bank or any
Lender.
SECTION 9.03. BINDING EFFECT. This Amended Agreement shall become
effective on the Effective Date.
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SECTION 9.04. SUCCESSORS AND ASSIGNS. (a) All covenants, promises and
agreements by or on behalf of the Borrower, the Agents, the Issuing Bank or the
Lenders that are contained in this Amended Agreement shall be binding upon and
inure to the benefit of their respective permitted successors and assigns.
(b) Each Lender may assign to one or more assignees all or a portion of
its interests, rights and obligations under this Amended Agreement (including
all or a portion of its Commitments, the Loans at the time owing to it, the
Notes held by it and the participations in Letters of Credit held by it) to
other financial institutions; PROVIDED, THAT, the Borrower (unless an Event of
Default shall have occurred and be continuing), the Agents and, in the case of
an assignment of a Revolving Credit Commitment, the Issuing Bank must give their
prior written consent to such assignment (which consent shall not be
unreasonably withheld). No Lender shall assign to any financial institution
other than an existing Lender, a Commitment in an amount less than $10,000,000;
PROVIDED, THAT, a Lender may assign Commitments to a financial institution in
amounts less than $10,000,000 as long as (i) no Commitments are assigned in
amounts less than $5,000,000, (ii) any Lender desiring to assign Commitments in
amounts less that $10,000,000 shall first notify the Borrower and the Agents at
which time the Borrower shall have 30 days to identify a financial institution
of its choice willing to assume the Commitments to be assigned by such Lender
(which financial institution shall be reasonably acceptable to the Agents) and
(iii) after such assignment is made, no Lender shall hold less than $5,000,000
in total Commitments. The parties to each such assignment (including, but not
limited to, an assignment by a Lender to another Lender) shall execute and
deliver to the Administrative Agent an Assignment and Acceptance, together with
the Note or Notes subject to such assignment and a processing and recordation
fee of $3,500 and the assignee, if it shall not be a Lender or an Affiliate
thereof, shall deliver to the Administrative Agent an Administrative
Questionnaire. Upon acceptance and recording pursuant to Section 9.04(e), from
and after the effective date specified in each Assignment and Acceptance, which
effective date shall be at least five Business Days after the execution thereof
(unless the Administrative Agent shall otherwise agree), (A) the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Amended Agreement and (B) the assigning Lender thereunder shall, to
the extent of the interest assigned by such Assignment and Acceptance, be
released from its obligations under this Amended Agreement (and, in the case of
an Assignment and Acceptance covering all or the remaining portion of an
assigning Lender's rights and obligations under this Amended Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.14, 2.16, 2.20 and 9.05, as well as to any Fees accrued
for its account to the effective date of the Assignment and not yet paid).
(c) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim arising
in respect of any action by the assigning Lender; (ii) except as set forth in
clause (i) above, such assigning Lender makes no representation or warranty and
assumes
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no responsibility with respect to any statements, warranties or representations
made in or in connection with this Amended Agreement, any other Loan Document or
any other instrument or document furnished pursuant hereto or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of this
Amended Agreement, any other Loan Document or any other instrument or document
furnished pursuant hereto, or the financial condition of the Borrower or any
Subsidiary or the performance or observance by the Borrower or any Subsidiary or
the performance or observance by the Borrower or any Subsidiary of any of its
obligations under this Amended Agreement, any other Loan Document or any other
instrument or document furnished pursuant hereto; (iii) such assignee represents
and warrants that it is legally authorized to enter into such Assignment and
Acceptance; (iv) such assignee confirms that it has received a copy of this
Amended Agreement and the other Loan Documents, together with copies of the most
recent Required Financial Statements and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to enter
into such Assignment and Acceptance; (v) such assignee will independently, and
without reliance upon the Agents, the Issuing Bank, such assigning Lender or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Amended Agreement; (vi) such assignee appoints and
authorizes the Agents and the Issuing Bank to exercise such powers under this
Amended Agreement as are delegated to such party by the terms hereof, together
with such powers as are reasonably incidental hereto; and (vii) such assignee
agrees that it will perform in accordance with their terms all the obligations
which by the terms of this Amended Agreement are required to be performed by it
as a Lender.
(d) The Administrative Agent shall maintain at one of its offices in
Dayton, Ohio (or such other reasonable location as the Administrative Agent may
select with prompt notice to the Lenders), a copy of each Assignment and
Acceptance delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitments of, and principal amount of the
Loans owing to, each Lender pursuant to the terms hereof from time to time (the
"REGISTER"). The entries in the Register shall be conclusive in the absence of
manifest error and the Borrower, the Agents and the Lenders may treat each
person whose name is recorded in the Register pursuant to the terms hereof as a
Lender hereunder for all purposes of this Amended Agreement. The Register shall
be available for inspection by the Borrower, the Issuing Bank and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee together with the Note or Notes
subject to such assignment, an Administrative Questionnaire completed in respect
of the assignee (unless the assignee shall already be a Lender hereunder or
shall be an Affiliate of a Lender), the processing and recordation fee referred
to in Section 9.04(b) and, if required, the written consent of the Borrower, the
Agents and the Issuing Bank to such assignment, the Administrative Agent shall
(i) accept such Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to the Issuing
Bank, the Syndication Agent, the Lenders and the Borrower. Within five Business
Days after receipt of notice, the Borrower, at its own expense, shall execute
and deliver to the
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Administrative Agent, in exchange for the surrendered Note or Notes, a new Note
or Notes payable to the order of such assignee in a principal amount equal to
the applicable portion thereof (and the corresponding Commitment, if any)
assumed by it pursuant to such Assignment and Acceptance and, if the assigning
Lender has retained any portion of such Note or Notes (and such Commitment, if
any), a new Note or Notes payable to the order of such assigning Lender in a
principal amount equal to the applicable portion of such Note or Notes (and such
Commitment, if any) retained by it. Such new Note or Notes shall be in an
aggregate principal amount equal to the aggregate principal amount of such
surrendered Note; such new Note or Notes shall be dated the date of the
surrendered Notes which they replace and shall otherwise be in substantially the
form of Exhibits A-1 and A-2 hereto, as applicable. Canceled Notes shall be
returned to the Borrower.
(f) Each Lender may, without the consent of the Borrower, the Agents or
the Issuing Bank, sell participations in all or a portion of its rights and
obligations under this Amended Agreement (including all or a portion of its
Commitment, the Loans owing to it, the Notes held by it and the participations
in Letters of Credit held by it) to one or more participants; PROVIDED, THAT,
(i) such Lender's obligations under this Amended Agreement shall remain
unchanged, (ii) the sum of (A) the principal amount of the outstanding Loans
subject to such participation and (B) the unused amount of the Commitments of
the Lender subject to such participation shall be not less than the lesser of
(I) $5,000,000 and (II) the entire remaining amount of the outstanding Loans and
unused Commitments of such Lender, (iii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iv) the participating banks or other entities shall be entitled to the benefit
of the cost protection and indemnity provisions contained in Sections 2.13, 2.15
and 2.19 to the same extent as if they were Lenders (except that no participant
shall be entitled to claim any amount greater than its pro rata share of the
amount that could have been claimed by the Lender from which it acquired its
participation) and (v) the Borrower, the Agents, the Issuing Bank and the other
Lenders shall continue to deal solely and directly with the Lender from which
the participant acquired its interest in connection with such Lender's rights
and obligations under this Amended Agreement, and such Lender shall retain the
sole right to enforce the obligations of the Borrower relating to the Loans and
to approve any amendment, modification or waiver of any provision of this
Amended Agreement (other than amendments, modifications or waivers decreasing
any fees payable hereunder or the amount of principal of or the rate at which
interest is payable on the Loans, extending any scheduled principal payment date
or date fixed for the payment of interest on the Loans or increasing or
extending the Commitments).
(g) Any Lender or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.04, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower or any of the Subsidiaries
furnished to such Lender by or on behalf of the Borrower or any of the
Subsidiaries; PROVIDED, THAT, prior to any such disclosure of non-public
information, each such assignee or participant or proposed assignee or
participant shall execute an agreement whereby such assignee or participant
shall agree (subject to customary exceptions) to preserve the confidentiality of
such information.
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(h) Assignments and participations pursuant to this Section 9.04 need
not be pro rata among the Revolving Credit Facility.
(i) Any Lender may at any time assign all or any portion of its rights
under this Amended Agreement and the Notes issued to it to a Federal Reserve
Bank to secure extensions of credit by such Federal Reserve Bank to such Lender;
PROVIDED, THAT, no such assignment shall release a Lender from any of its
obligations hereunder or substitute any such Federal Reserve Bank for such
Lender as a party hereto.
(j) The Borrower shall not assign or delegate any of its rights or
duties hereunder or any interest herein (whether voluntarily, by operation of
law or otherwise). Any purported assignment or delegation in violation of the
foregoing shall be void.
SECTION 9.05. EXPENSES; INDEMNITY. (a) The Borrower agrees to pay all
reasonable out-of-pocket expenses incurred by any Agent, NMS or the Issuing Bank
in connection with the preparation, execution and administration of this Amended
Agreement and the other Loan Documents, the syndication or closing of the
Revolving Credit Facility, the administration of the Revolving Credit Facility
or any amendment, modification or waiver of the provisions hereof or thereof and
the Borrower agrees to pay all reasonable out-of-pocket expenses incurred by any
Agent, NMS, the Issuing Bank or any Lender in connection with the enforcement or
protection of the rights of the Agents, the Issuing Bank and the Lenders under
this Amended Agreement and the other Loan Documents or in connection with the
Loans made, the Notes issued hereunder or the Letters of Credit issued
hereunder, including the reasonable fees, charges and disbursements of (i)
Fennebresque, Clark, Xxxxxxxx & Hay, counsel for the Syndication Agent, and the
allocated cost of in-house counsel to the Administrative Agent, (ii) any third
party consultants retained with the Borrower's consent, which consent will not
be unreasonably withheld, to assist the Agents in analyzing any environmental,
insurance, solvency-related and other due diligence issues and (iii) in
connection with any such enforcement or protection (including any workout or
restructuring or any negotiations relating thereto), any other counsel for any
Agent, the Issuing Bank or any Lender (including the allocated internal fees and
expenses of any in-house staff counsel).
(b) The Borrower agrees to indemnify each of the Agents, NMS, the
Issuing Bank, the Affiliates of any Agent, the Lenders, and their respective
directors, officers, employees, agents and Controlling persons (each, an
"INDEMNIFIED PARTY") from and against any and all losses, claims (whether valid
or not), damages and liabilities, joint or several, to which such Indemnified
Party may become subject, related to or arising out of (i) the Revolving Credit
Facility, (ii) the execution or delivery of the Original Credit Agreement, this
Amended Agreement or any other Loan Document or any agreement or instrument
contemplated hereby or thereby, the performance by the parties hereto or thereto
of their respective obligations hereunder or thereunder and the other
transactions contemplated hereby and thereby, (iii) the use of the Letters of
Credit or the proceeds of the Loans or (iv) any claim, litigation, investigation
or proceeding relating to any of the foregoing, whether or not any Indemnified
Party is a party thereto. The Borrower further agrees to reimburse each
Indemnified Party for
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all expenses (including reasonable attorneys' fees and expenses) as they are
incurred in connection with the investigation of, preparation for or defense of
any pending or threatened claim or any action or proceeding arising therefrom.
Notwithstanding the foregoing, the obligation to indemnify any Indemnified Party
under this Section 9.05(b) shall not apply in respect of any loss, claim, damage
or liability to the extent that a court of competent jurisdiction shall have
determined by final and nonappealable judgment that such loss, claim, damage or
liability resulted from such Indemnified Party's gross negligence or willful
misconduct.
(c) The Borrower agrees to indemnify each of the Agents, NMS, the
Issuing Bank, the Lenders and the other Indemnified Parties from and against any
and all losses, claims (whether valid or not), damages and liabilities, joint or
several, to which such Indemnified Party may become subject, related to or
arising out of (i) any Federal, state, local or other statute, ordinance, order,
judgment, ruling or regulation relating to environmental pollution, regulation
or control affecting the Borrower, any Subsidiary or its properties or assets,
(ii) any Hazardous Materials managed by the Borrower or any Subsidiary, (iii)
any event, condition or circumstance involving environmental protection,
pollution, regulation or control affecting the Borrower or any Subsidiary or its
properties or assets or (iv) any claim, litigation, investigation or proceeding
relating to any of the foregoing, whether or not any Indemnified Party is a
party thereto. The Borrower further agrees to reimburse each Indemnified Party
for all expenses (including reasonable consultants' and attorneys' fees and
expenses) as they are incurred in connection with the investigation of,
preparation for or defense of any pending or threatened claim or any action or
proceeding arising therefrom. Notwithstanding the foregoing, the obligation to
indemnify any Indemnified Party under this Section 9.05(c) shall not apply in
respect of any loss, claim, damage or liability to the extent that a court of
competent jurisdiction shall have determined by final and nonappealable judgment
that such loss, claim, damage or liability resulted from such Indemnified
Party's gross negligence or willful misconduct.
(d) In the event that the foregoing indemnity is unavailable or
insufficient to hold an Indemnified Party harmless, then the Borrower will
contribute to amounts paid or payable by such Indemnified Party in respect of
such Indemnified Party's losses, claims, damages or liabilities in such
proportions as appropriately reflect the relative benefits received by and fault
of the Borrower and such Indemnified Party in connection with the matters as to
which such losses, claims, damages or liabilities relate and other equitable
considerations.
(e) If any action, proceeding or investigation is commenced, as to
which any Indemnified Party proposes to demand such indemnification, it shall
notify the Borrower with reasonable promptness; PROVIDED, THAT, any failure by
such Indemnified Party to notify the Borrower shall not relieve the Borrower
from its obligations hereunder except to the extent the Borrower is prejudiced
thereby. The Borrower shall be entitled to assume the defense of any such
action, proceeding or investigation, including the employment of counsel and the
payment of all fees and expenses. Each Indemnified Party shall have the right to
employ separate counsel in connection with any such action, proceeding or
investigation and to participate in the defense thereof, but the fees and
expenses of such counsel shall be paid by such
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Indemnified Party, unless (i) the Borrower has failed to assume the defense and
employ counsel as provided herein, (ii) the Borrower has agreed in writing to
pay such fees and expenses of separate counsel or (iii) an action, proceeding or
investigation has been commenced against such Indemnified Party and the Borrower
and representation of both the Borrower and such Indemnified Party by the same
counsel would be inappropriate because of actual or potential conflicts of
interest between the parties (in the case of any Agent or Lender, the existence
of any such actual or potential conflict of interest to be determined by such
party, taking into account, among other things, any relevant regulatory
concerns). In the case of any circumstance described in clause (i), (ii), or
(iii) of the immediately preceding sentence, the Borrower shall be responsible
for the reasonable fees and expenses of such separate counsel; provided, that,
the Borrower shall not in any event be required to pay the fees and expenses of
more than one separate counsel (plus appropriate local counsel under the
direction of such separate counsel) for all Indemnified Parties, unless
representation of all Indemnified Parties by the same counsel would be
inappropriate due to actual or potential conflicting interests between such
Indemnified Parties, in which case, the Borrower shall be required to pay the
fees and expenses of such additional counsel as are necessary to prevent such
conflicting interests. The Borrower shall be liable only for settlement of any
claim against an Indemnified Party made with the Borrower's written consent.
(f) The provisions of this Section 9.05 shall remain operative and in
full force and effect regardless of the expiration of the term of this Amended
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the invalidity or unenforceability of any term or
provision of this Amended Agreement or any other Loan Document, or any
investigation made by or on behalf of any Agent or Lender. All amounts due under
this Section 9.05 shall be payable on written demand therefor.
SECTION 9.06. RIGHT OF SETOFF. If an Event of Default shall have
occurred and be continuing, 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
except deposits for the payment of payroll taxes) at any time held and other
indebtedness at any time owing by such Lender to or for the credit or the
account of the Borrower against any of and all the obligations of the Borrower
now or hereafter existing under this Amended Agreement and the other Loan
Documents held by such Lender, irrespective of whether or not such Lender shall
have made any demand under this Amended Agreement or such other Loan Document
and although such obligations may be unmatured. The rights of each Lender under
this Section 9.06 are in addition to other rights and remedies (including other
rights of setoff) which such Lender may have.
SECTION 9.07. APPLICABLE LAW. THIS AMENDED AGREEMENT AND THE OTHER LOAN
DOCUMENTS SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF OHIO, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
SECTION 9.08. WAIVERS; AMENDMENT. (a) No failure or delay of any Agent,
the Issuing Bank or any Lender in exercising any power or right hereunder shall
operate as a
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waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Agents, the Issuing Bank
and the Lenders hereunder and under the other Loan Documents are cumulative and
are not exclusive of any rights or remedies which they would otherwise have. No
waiver of any provision of this Amended Agreement or any other Loan Document or
consent to any departure by the Borrower or any other Secured Party therefrom
shall in any event be effective unless the same shall be permitted by Section
9.08(b), and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice or demand on the
Borrower in any case shall entitle the Borrower to any other or further notice
or demand in similar or other circumstances.
(b) None of this Amended Agreement, the other Loan Documents and any
provision hereof or thereof may be waived, amended or modified (and no consent
to the departure by the Borrower or any other Secured Party therefrom may be
effective), except pursuant to an agreement or agreements in writing entered
into by the Borrower and the Required Lenders; PROVIDED, THAT, no such agreement
shall (i) decrease the principal amount of or extend the maturity of or date for
the payment of any interest on any Loan or any date for reimbursement of a
Letter of Credit Disbursement, or waive or excuse any such payment or any part
thereof, or decrease the rate of interest on any Loan or a Letter of Credit
Disbursement, without the prior written consent of each Lender affected thereby,
(ii) change or extend the Commitments or decrease the Fees of any Lender without
the prior written consent of such Lender, (iii) increase the aggregate
Commitments of the Lenders without the prior written consent of each Lender,
(iv) amend or modify the provisions of Section 2.17 or 9.04(j), the provisions
of this Section, the definition of the term "Required Lenders," release at one
time or serially in the aggregate all or substantially all the Guarantors or all
or substantially all the Collateral, without the prior written consent of each
Lender; (v) change the amount of the Revolving Credit Facility or any provision
relating to any prepayment of the Loans under the Revolving Credit Facility
without the consent of Lenders holding more than 50% of the outstanding Loans
(and outstanding Letter of Credit Exposure, if applicable) under the Revolving
Credit Facility, (vi) waive the conditions to funding any Loan or issuance of a
Letter of Credit without the consent of Lenders holding more than 50% of the
outstanding Loans, Letter of Credit Exposure and unused Commitments under the
Revolving Credit Facility, and (vii) waive, amend or modify in a manner that, by
its terms, adversely affects a Lender's participation in a Facility differently
from those of the Lenders participating in the other Facility, shall require the
consent of such adversely affected Lenders holding more than 50% of the
outstanding Loans, Letter of Credit Exposure (if applicable) and unused
Commitments under such Facility; PROVIDED, FURTHER, that no such agreement shall
amend, modify or otherwise affect the rights or duties of any Agent, the
Swingline Lender (in its capacity as such) or the Issuing Bank hereunder or
under any other Loan Document without the prior written consent of such Agent,
the Swingline Lender or the Issuing Bank, as applicable. Each Lender and each
holder of a Note shall be bound by any waiver, amendment or modification
authorized by this Section 9.08 regardless of whether its Note shall have been
marked to make reference thereto, and any consent by any Lender or holder of a
Note pursuant to this Section 9.08 shall bind any person subsequently acquiring
a Note from it,
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whether or not such Note shall have been so marked.
SECTION 9.09. INTEREST RATE LIMITATION. Notwithstanding anything herein
or in the Notes to the contrary, if at any time the applicable interest rate,
together with all fees and charges which are treated as interest under
applicable law (collectively the "CHARGES"), as provided for herein or in any
other document executed in connection herewith, or otherwise contracted for,
charged, received, taken or reserved by any Lender, shall exceed the maximum
rate permitted by applicable law (the "MAXIMUM RATE") which may be contracted
for, charged, taken, received or reserved by such Lender in accordance with
applicable law, the rate of interest payable under the affected Note held by
such Lender, together with all Charges payable to such Lender, shall be limited
to the Maximum Rate.
SECTION 9.10. ENTIRE AGREEMENT. (a) This Amended Agreement, the other
Loan Documents and the Fee Letter constitute the entire contract among the
parties relative to the subject matter hereof and thereof. Any previous
agreement among the parties with respect to the subject matter hereof and
thereof is superseded by this Amended Agreement, the other Loan Documents and
the Fee Letter. Nothing in this Amended Agreement, the other Loan Documents or
the Fee Letter, expressed or implied, is intended to confer upon any party
(other than the parties hereto and the other Secured Parties) any rights,
remedies, obligations or liabilities under or by reason of this Amended
Agreement, the other Loan Documents or the Fee Letter.
(b) THIS WRITTEN AMENDED AGREEMENT, THE NOTES, THE OTHER LOAN
DOCUMENTS, THE FEE LETTER AND THE DOCUMENTS EXECUTED IN CONNECTION HEREWITH
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
SECTION 9.11. SEVERABILITY. In the event any one or more of the
provisions contained in this Amended Agreement or in any other Loan Document
should be held invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein and
therein shall not in any way be affected or impaired thereby. The parties shall
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 9.12. COUNTERPARTS. This Amended Agreement may be executed by
the parties hereto in several counterparts and each such counterpart shall be
deemed to be an original, admissible into evidence, but all such counterparts
shall together constitute but one and the same Agreement, and shall become
effective as provided in Section 9.03. Delivery of an executed counterpart of
this Amended Agreement by facsimile shall be equally as effective as delivery of
a manually executed counterpart of this Amended Agreement. Any party delivering
an executed counterpart of this Amended Agreement by facsimile shall also
deliver a manually executed counterpart of this Amended Agreement, but the
failure to deliver a
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manually executed counterpart shall not affect the validity, enforceability, and
binding effect of this Amended Agreement.
SECTION 9.13. HEADINGS. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Amended Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Amended Agreement.
SECTION 9.14. REMEDIES. In case any one or more of the covenants and/or
agreements set forth in this Amended Agreement shall have been breached by the
Borrower, then the Administrative Agent may, on behalf of the Lenders, proceed
to protect and enforce the Lenders' rights either by suit in equity and/or by
action at law, including, but not limited to, an action for damages as a result
of any such breach and/or an action for specific performance of any such
covenant or agreement contained in this Amended Agreement. Without limitation of
the foregoing, the Borrower agrees that failure to comply with any of the
covenants contained herein will cause irreparable harm and that specific
performance shall be available in the event of any breach thereof. The Agent
acting pursuant to this Section 9.14, shall be indemnified against all
liability, loss or damage, together with all reasonable costs and expenses
related thereto (including reasonable legal and accounting fees and expenses) in
accordance with Section 9.05.
SECTION 9.15. JURISDICTION; CONSENT TO SERVICE OF PROCESS. (a) The
Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any Ohio State court or Federal
court of the United States of America sitting in Dayton, Ohio, and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this Amended Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard and
determined in such Ohio State court or, to the extent permitted by law, in such
Federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Amended Agreement shall affect any right that any Agent, the
Issuing Bank or any Lender may otherwise have to bring any action or proceeding
relating to this Amended Agreement or the other Loan Documents against the
Borrower or its properties in the courts of any jurisdiction.
(b) The Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Amended Agreement or the other Loan Documents
in any Ohio State court or Federal court of the United States of America sitting
in Dayton, Ohio. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(c) Each party to this Amended Agreement irrevocably consents to
service of
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process in the manner provided for notices in Section 9.01. Nothing in this
Amended Agreement will affect the right of any party to this Amended Agreement
to serve process in any other manner permitted by law.
SECTION 9.16. LEGEND. THIS AMENDED AGREEMENT AND THE NOTES ARE SUBJECT
TO THE TERMS AND CONDITIONS CONTAINED IN THE COLLATERAL AGENCY AGREEMENT WHICH,
AMONG OTHER THINGS, ESTABLISHES CERTAIN RIGHTS WITH RESPECT TO THE SECURITY FOR
THIS AMENDED AGREEMENT AND THE NOTES AND THE SHARING OF PROCEEDS THEREOF WITH
CERTAIN OTHER SECURED CREDITORS. COPIES OF THE COLLATERAL AGENCY AGREEMENT WILL
BE FURNISHED TO ANY HOLDER OF THE NOTES UPON REQUEST TO THE BORROWER.
SECTION 9.17. JUDGMENT CURRENCY. (a) Each of the Borrower's and any of
its Subsidiaries' (each, a "Loan Party") obligations hereunder to make payments
in dollars or in any Foreign Currency (the "OBLIGATION CURRENCY") shall not be
discharged or satisfied by any tender or recovery pursuant to any judgment
expressed in or converted into any currency other than the Obligation Currency,
except to the extent that such tender or recovery results in the effective
receipt by the Agent or a Lender of the full amount of the Obligation Currency
expressed to be payable to the Agent or such Lender under this Amended
Agreement. If, for the purpose of obtaining or enforcing judgment against any
Loan Party in any court or in any jurisdiction, it becomes necessary to convert
into or from any currency other than the Obligation Currency (such other
currency being hereinafter referred to as the "JUDGMENT CURRENCY") an amount due
in the Obligation Currency, the conversion shall be made, at the Dollar
Equivalent or the Foreign Currency Equivalent, as applicable, determined in each
case as of the Business Day immediately preceding the day on which the judgment
is given (such Business Day being hereinafter referred to as the "JUDGMENT
CURRENCY CONVERSION DATE").
(b) If there is a change in the rate of exchange prevailing between the
Judgment Currency Conversion Date and the date of actual payment of the amount
due, such amount payable by the applicable Loan Party shall be reduced or
increased, as applicable, such that the amount paid in the Judgment Currency,
when converted at the rate of exchange prevailing on the date of payment, will
produce the amount of the Obligation Currency which could have been purchased
with the amount of Judgment Currency stipulated in the judgment or judicial
award at the rate of exchange prevailing on the Judgment Currency Conversion
Date.
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IN WITNESS WHEREOF, the Borrower, the Agents, the Issuing Bank and the
Lenders have caused this Amended Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.
XXXXXXX & XXXXX, INC.,
as Borrower
by
___________________________________
Name: Xxxxxxx Xxx
Title: Vice President, Finance and
Chief Financial Officer
BANK ONE, N.A., as Administrative
Agent, Issuing Bank and Lender
by
___________________________________
Name:
Title:
NATIONSBANK, N.A., as Documentation
and Syndication Agent and Lender
by
___________________________________
Name: Xxxxxxx X. Xxxxx
Title:
THE BANK OF NOVA SCOTIA,
as Issuing Bank and Lender
by
___________________________________
Name:
Title:
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ABN AMRO BANK N.V.,
as Issuing Bank and Lender
by
___________________________________
Name:
Title:
by
___________________________________
Name:
Title:
NATIONAL CITY BANK, Successor by merger
to NATIONAL CITY BANK OF COLUMBUS,
as a Lender
by
___________________________________
Name:
Title:
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