Exhibit 10.15
CREDIT AGREEMENT
----------------
THIS CREDIT AGREEMENT, dated as of December 29, 1999, is by and among X. X.
XXXXXXXX WORLDWIDE, INC., a Delaware corporation (the "Borrower" or
"Worldwide"), U. S. Bank National Association, a national banking association,
as administrative bank (in such capacity, the "Administrative Bank"), and lead
arranger, Norwest Bank Minnesota, National Association, a national banking
association, as co-arranger, and the financial institutions now or hereafter
"Bank" parties hereto (individually a "Bank" and collectively the "Banks," which
term shall include U. S. National Association and Norwest Bank Minnesota
National Association in their respective roles as Banks).
ARTICLE I
---------
DEFINITIONS AND ACCOUNTING TERMS
Section 1.1 Defined Terms. In addition to terms defined elsewhere in
-------------
this Agreement, the following terms shall have the following respective meanings
(and such meanings shall be equally applicable to both the singular and plural
form of the terms defined, as the context may require):
"Adjusted CD Rate": Applicable to a CD Rate Loan Unit during its Interest
-------------------
Period, the rate (rounded upward, if necessary, to the next higher one-
hundredth of one percent) equal to the sum of: (a) the rate per annum determined
by dividing: (i) the CD Rate for the relevant Interest Period, by (ii) 1.00
minus the Domestic Reserve Percentage; plus (b) the annual rate most recently
----
estimated by the Administrative Bank as the then current net annual assessment
rate payable by the Administrative Bank to the Federal Deposit Insurance
Corporation (or any successor) for insuring time deposits made in Dollars at the
Administrative Bank's domestic offices; plus (c) the cost (converted to an
----
equivalent rate per annum) of customary brokerage fees charged by the
Administrative Bank in obtaining funds through the sale of its negotiable
certificates of deposit.
"Adjusted Eurodollar Rate": Applicable to a Eurodollar Rate Loan Unit
------------------------
during its Interest Period, the rate (rounded upward, if necessary, to the next
higher one-hundredth of one percent) determined by dividing the Eurodollar Rate
for the relevant Interest Period by 1.00 minus the Eurodollar Reserve
Percentage.
"Adjusted Net Income": For any period, the Net Income for such period, but
-------------------
excluding therefrom, non-operating gains and losses (including extra-ordinary
or unusual gains and losses, gains and losses from discontinuance of operations,
gains and losses arising from the sale of assets other than inventory and other
non-recurring gains and losses) during such period.
"Administrative Bank": As defined in the preamble hereto.
-------------------
"Adverse Event": The occurrence of any event that could have a material
-------------
adverse effect on the business, operations, property, assets or condition
(financial or otherwise) of Worldwide and its Subsidiaries (taken as a whole on
a consolidated basis) or on the ability of any Loan Party to perform its
obligations under the Loan Documents.
"Agreement": This Credit Agreement, as it may be amended, modified,
---------
supplemented, restated or replaced from time to time.
"Banks": As defined in the preamble hereto.
-----
"Borrower": As defined in the preamble hereto.
--------
"Business Day": Any day (other than a Saturday, Sunday or legal holiday in
------------
the State of Minnesota) on which national banks are permitted to be open in
Minneapolis, Minnesota.
"CD Rate": Applicable to determining the Adjusted CD Rate for a CD Rate
-------
Loan Unit during its Interest Period, the rate of interest determined by the
Administrative Bank for the relevant Interest Period to be the average (rounded
upward, if necessary, to the next higher one- hundredth of one percent) of the
rates quoted to the Administrative Bank at approximately 8:00 a.m.,
Administrative Bank time (or as soon thereafter as practicable), or at the
option of the Administrative Bank at approximately the time of the request for a
CD Rate Loan Unit if such request is made later than 8:00 a.m., Administrative
Bank time, in each case on the first day of the applicable Interest Period by
certificate of deposit dealers selected by the Administrative Bank, in its sole
discretion, for the purchase from the Administrative Bank, at face value, of
certificates of deposit issued by the Administrative Bank in an amount and
maturity comparable to the amount and maturity of the requested CD Rate Loan
Unit or, at the option of the Administrative Bank, determined for such amount
and maturity based on published composite quotations of certificate of deposit
rates selected by the Administrative Bank; provided, however, that if the
-------- -------
Borrower elects an Interest Period of one day, then the CD Rate shall be the
rate set forth above for a 30 day Interest Period as of the one day Interest
Period (or, if such day is not a Business Day, on the immediately preceding
Business Day).
"CD Rate Loan Unit": Each portion of any Loan designated as such in a
-----------------
notice of borrowing under Section 2.3 or a notice of continuation or conversion
-----------
under Section 2.4.
-----------
"Capitalized Lease": Any lease which, in accordance with GAAP, is
-----------------
capitalized on the books of the lessee.
"Change of Control": The occurrence after the date of this Agreement of any
-----------------
of the following events: (a) any Person or two or more Persons acting in
concert becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5
promulgated by the SEC) directly or indirectly, of more than 25% of the combined
voting power of the outstanding securities of Worldwide entitled to vote in the
election of directors; or (b) during any period of up to twelve (12) consecutive
months, whether commencing on or before the Closing Date, individuals who at the
beginning of such period constituted the board of directors of Worldwide
(together with any new directors whose election by such board of directors or
whose nomination for election by the shareholders of Worldwide, as the case may
be, was approved by a vote of at least a majority of the directors of Worldwide
then still in office) who were either directors at the beginning of such period
or whose election or nomination for election was previously so approved cease
for any reason to constitute a majority of the board of directors of Worldwide
then in office; or (c) any Person or two or more Persons acting in concert
acquire, by contract or otherwise, or enter into any contract or arrangement
which, upon consummation, will result, in such Person or Person's acquisition of
, or control over, more than 25% of the combined voting power of the
outstanding securities of Worldwide entitled to vote in the election of
directors
"Closing Date": The date on which the initial Revolving Loans are made
------------
after the satisfaction of all conditions precedent specified in Article VI.
----------
"Code": The Internal Revenue Code of 1986, as amended, or any successor
----
statute, together with regulations thereunder.
"Commitment": The agreement of the Banks to make the Loans and of U. S.
----------
Bank to issue the Letters of Credit and of each Bank to purchase its Letter of
Credit Participations.
"Compliance Certificate": As defined in Section 8.1(c).
---------------------- --------------
"Contingent Obligations": With respect to any Person at the time of any
----------------------
determination, without duplication, 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 otherwise; (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 direct or indirect security therefor, (b)
to purchase property, securities or services for the purpose of assuring the
owner of such Indebtedness of the payment of such Indebtedness, (c) to maintain
working capital, equity capital or other financial statement condition of the
primary obligor so as to enable the primary obligor to pay such Indebtedness or
otherwise to protect the owner thereof
2
against loss in respect thereof, or (d) entered into for the purpose of assuring
in any manner the owner of such Indebtedness of the payment of such Indebtedness
or to protect the owner against loss in respect thereof; provided, that the term
"Contingent Obligation" shall not include endorsements for collection or
deposit, in each case in the ordinary course of business.
"Default": Any event which, with the giving of notice to the Borrower or
-------
lapse of time, or both, would constitute an Event of Default.
"Default Rate": The rate applicable to Reference Rate Loan Units
------------
determined in accordance with Section 3.1(b).
--------------
"Domestic Reserve Percentage": Applicable to determining the Adjusted CD
---------------------------
Rate for a CD Rate Loan Unit during its Interest Period, as of any day, the
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Federal Reserve Board for determining the maximum reserve
requirement (including, without limitation, any basic, supplemental or emergency
reserves) for a member bank of the Federal Reserve System, with deposits
comparable in amount to those held by the Administrative Bank, in respect of new
non-personal time deposits in dollars having a maturity comparable to the
related Interest Period and in an amount of $100,000.00 or more. The rate of
interest applicable to any outstanding CD Rate Loan Unit shall be adjusted
automatically on and as of the effective date of any change in the Domestic
Reserve Percentage.
"EBITDA": For any period, the sum of: (a) the Adjusted Net Income for
------
such period; plus (b) the sum of the following amounts deducted in arriving at
----
the Net Income included in such Adjusted Net Income (but without duplication for
any item): (i) Interest Expense; (ii) depreciation and amortization; and (iii)
federal, state and local income taxes.
"ERISA": The Employee Retirement Income Security Act of 1974, as amended,
-----
or any successor statute, together with regulations thereunder.
"ERISA Affiliate": Any trade or business (whether or not incorporated)
---------------
that is a member of a group of which the Borrower or any of its Subsidiaries is
a member and which is treated as a single employer under Section 414 of the
Code.
"Eurodollar Business Day": A Business Day which is also a day for trading
-----------------------
by and between banks in United States dollar deposits in the interbank
Eurodollar market and a day on which banks are open for business in New York
City.
"Eurodollar Rate": Applicable to determining the Adjusted Eurodollar Rate
---------------
for a Eurodollar Rate Loan Unit during its Interest Period, the average offered
rate for deposits in United States Dollars (rounded upward, if necessary, to the
next highest one- hundredth of one percent), for delivery of such deposits on
the first day of such Interest Period, for the number of days in such Interest
Period, which appears on the Reuters Screen LIBO Page as of 11:00 a.m., London
time (or such other time as of which such rate appears) two Eurodollar Business
Days prior to the first day of such Interest Period, or, if the Reuters Screen
LIBO Page is not published at the time, the rate for such deposits determined by
the Administrative Bank at such time based on such other published service of
general application as shall be selected by the Administrative Bank for such
purpose or, if no such published service is available, based on rates at which
United States dollar deposits are offered to the Administrative Bank in the
interbank Eurodollar market at such time for delivery in immediately available
funds on the first day of such Interest Period in an amount approximately equal
to the principal balance to be outstanding on such Eurodollar Rate Loan Unit
(rounded upward, if necessary, to the next highest one- hundredth of one
percent); provided, however, that if the Borrower elects an Interest Period of
-------- -------
one day, then the Eurodollar Rate shall be the rate set forth above for a one
month Interest Period as of the one day Interest Period (or, if such day is not
a Eurodollar Business Day, on the immediately preceding Eurodollar Business
Day). "Reuters Screen LIBO Page" means the display designated as page "LIBO" on
the Reuter Monitor Money Rates Service (or such other page as may replace the
LIBO Page on that
3
service) for the purpose of displaying London interbank offered rates of major
banks for United States Dollar deposits.
"Eurodollar Rate Loan Unit": Each portion of any Revolving Loan designated
-------------------------
as such in a notice of borrowing under Section 2.3 or a notice of continuation
-----------
or conversion under Section 2.4.
-----------
"Eurodollar Reserve Percentage": Applicable in determining the Adjusted
-----------------------------
Eurodollar Rate for a Eurodollar Rate Loan Unit during its Interest Period, as
of any day, that percentage (expressed as a decimal) which is in effect on such
day, as prescribed by the Federal Reserve Board for determining the maximum
reserve requirement for the Administrative Bank, in respect of "Eurocurrency
Liabilities" (or in respect of any other category of liabilities which includes
deposits by reference to which the interest rate of Eurodollar Rate Loan Units
is determined or any category of extensions of credit or other assets which
includes loans by a non-United States office of the Administrative Bank to
United States residents). Any rate of interest based on the Eurodollar Rate
shall be adjusted automatically on and as of the effective date of any change in
the Eurodollar Reserve Percentage.
"Event of Default": Any event described in Section 10.1 which has not been
---------------- ------------
cured to the satisfaction of, or waived by, the Banks in accordance with Section
-------
12.1.
----
"Exchange Act": The Securities Exchange Act of 1934, as it may be amended,
------------
and any successor act thereto and the rules and regulations promulgated
thereunder.
"Existing Letter(s) of Credit": The letters of credit issued by U. S. Bank
----------------------------
that are described on Schedule 1.1(a) attached hereto and incorporated herein by
---------------
reference.
"Facility Fee": As provided in Section 3.2.
------------ -----------
"Federal Funds Rate": For any date, the overnight effective borrowing rate
------------------
per annum for such date (or, if such date is not a Business Day of the
Administrative Bank, the last Business Day of the Administrative Bank preceding
such date) for reserves in the amount of $1,000,000 or more traded among
commercial banks in the New York Federal Reserve District as published by the
Federal Reserve Bank of New York as being such rate in effect on such date;
provided, however, that if said rate is no longer published, then the Federal
-------- -------
Funds Rate shall be determined on the basis of other sources reasonably selected
by the Administrative Bank.
"Federal Reserve Board": The Board of Governors of the Federal Reserve
---------------------
System or any successor thereto.
"GAAP": Generally accepted accounting principles as in effect from time to
----
time including, without limitation, applicable statements, bulletins and
interpretations of the Financial Accounting Standards Board and applicable
bulletins, opinions and interpretations issued by the American Institute of
Certified Public Accountants or its committees.
"Guaranty": Each Guaranty, substantially in the form of Exhibit E, made by
-------- ---------
a Guarantor in favor of the Administrative Bank for itself and the ratable
benefit of the Banks as originally executed and as it may be amended, modified,
supplemented, restated or replaced from time to time.
"Guarantors": Each of the Borrower's now existing or hereafter arising
----------
Subsidiaries which the Required Banks require to execute and deliver a Guaranty
in accordance with Section 8.11.
-------------
"Indebtedness": Without duplication, all obligations, contingent or
------------
otherwise, which in accordance with GAAP should be classified upon the obligor's
balance sheet as liabilities, but in any event including the following (whether
or not they should be classified as liabilities upon such balance sheet): (a)
obligations secured by any mortgage, pledge, security interest, lien, charge or
other encumbrance existing on property owned or acquired subject thereto,
whether or not the obligation secured thereby shall have been assumed and
whether or not the obligation secured is the obligation of the owner or another
party; (b) any obligation on account of deposits or
4
advances; (c) any obligation for the deferred purchase price of any property or
services; (d) any obligation as lessee under any Capitalized Lease; (e) all
guaranties, endorsements and other contingent obligations in respect to
Indebtedness of others, except that Indebtedness shall not include endorsements
of instruments for payment in the ordinary course of business; and (f)
undertakings or agreements to reimburse or indemnify issuers of letters of
credit. For all purposes of this Agreement, the Indebtedness of any Person shall
include the Indebtedness of any partnership or joint venture in which such
Person is a general partner or a joint venturer unless such Indebtedness is non-
recourse to such Person.
"Individual Letter of Credit Commitment(s)": At any date, with respect to
-----------------------------------------
any Bank, such Bank's Percentage times the Letter of Credit Commitment at such
-----
date.
"Individual Revolving Credit Commitment(s)": At any date, with respect to
-----------------------------------------
any Bank, such Bank's Percentage times the Revolving Credit Commitment at such
-----
date.
"Interest Coverage Ratio": At any Quarterly Measurement Date, the ratio
-----------------------
of: (a) the EBITDA for the Measurement Period ending at such date; to (b) the
Interest Expense for such Measurement Period.
"Interest Expense": For any period, the aggregate consolidated interest
----------------
expense (including capitalized interest) of Worldwide and its Subsidiaries for
such period including, without limitation, the interest portion of any
Capitalized Lease.
"Interest Period": For any: (a) Eurodollar Rate Loan Unit, the period
---------------
which shall begin on (and include) the date of the initial borrowing date of
such Eurodollar Rate Loan Unit, or the date of the conversion of any other Type
of Unit into a Eurodollar Rate Loan Unit, or the date of the continuation of a
Eurodollar Rate Loan Unit as a Eurodollar Rate Loan Unit upon the termination of
the Interest Period then applicable thereto and, unless the final maturity of
such Eurodollar Rate Loan Unit is accelerated, shall end on (but exclude) the
date which is one, two, three or six months thereafter or, at the option of the
Required Banks, one day thereafter, as selected by the Borrower; or (b) any CD
Rate Loan Unit, the period which shall begin on (and include) the date of the
initial borrowing date of such CD Rate Loan Unit, or the date of the conversion
of any other Type of Unit into a CD Rate Loan Unit, or the date of the
continuation of a CD Rate Loan Unit as a CD Rate Loan Unit upon the termination
of the Interest Period then applicable thereto and, unless the final maturity of
such CD Rate Loan Unit is accelerated, shall end on (but exclude) the date which
is 30, 60, 90 or 180 days thereafter or, at the option of the Required Banks,
one day thereafter, as selected by the Borrower;
(w) any Interest Period for any CD Rate Loan Unit which would
otherwise end on a day which is not a Business Day shall end on the next
succeeding Business Day;
(x) any Interest Period for any Eurodollar Rate Loan Unit which would
otherwise end on a day not a Eurodollar Business Day shall end on the next
succeeding Eurodollar Business Day unless such extension would cause the
last day of such Interest Period to fall in the next following calendar
month, in which event the last day of such Interest Period for such
Eurodollar Rate Loan Unit shall occur on the next preceding Eurodollar
Business Day;
(y) no Interest Period shall extend beyond the stated Maturity of the
Revolving Loans; and
(z) any Interest Period for any Eurodollar Rate Loan Unit which begins
on the last day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Eurodollar Business Day in such
Interest Period.
"Investment": The acquisition, purchase, making or holding of any stock or
----------
other security, any loan, advance, contribution to capital, extension of credit
(except for trade and customer accounts receivable for inventory sold or
services rendered in the ordinary course of business and payable in accordance
with customary trade terms), any acquisitions of real or personal property
(other than real and personal property acquired in the ordinary course of
5
business) and any purchase or commitment or option to purchase stock or other
debt or equity securities of, or any interest in, another Person or any integral
part of any business or the assets comprising such business or part thereof.
"Letter of Credit": As provided in Section 2.7(a) including, in all
---------------- --------------
events, the Existing Letter of Credit.
"Letter of Credit Application": As provided in Section 2.7(c).
---------------------------- --------------
"Letter of Credit Commission": As provided in Section 2.7(e)(i).
--------------------------- -----------------
"Letter of Credit Commitment": The maximum amount of Letter of Credit
---------------------------
Obligations which may from time to time be outstanding hereunder, being
initially $5,000,000.00 and, as the context may require, the agreement of U. S.
Bank to issue the Letters of Credit for the account of the Borrower and the
agreement of each other Bank to purchase a participation in the Letter of Credit
Obligations up to its Individual Letter of Credit Commitment subject to the
terms and conditions of this Agreement.
"Letter of Credit Obligations": At any date, the sum of: (a) the aggregate
----------------------------
amount available to be drawn on the Letters of Credit on such date; plus (b) the
----
aggregate amount owed by the Borrower to U. S. Bank on such date as a result of
draws on the Letters of Credit for which the Borrower has not reimbursed U. S.
Bank.
"Letter of Credit Participations": At any date, with respect to any Bank,
-------------------------------
such Bank's participations in the Letter of Credit Obligations.
"Letter of Credit Commitment Termination Date": The earlier of: (a) the
--------------------------------------------
Revolving Credit Termination Date; or (b) the date on which the Borrower
terminates the Letter of Credit Commitment pursuant to Section 4.3.
-----------
"Leverage Ratio": At any Quarterly Measurement Date, the ratio of: (a) the
--------------
Total Debt at such date; to (b) the sum of: (i) such Total Debt; plus (ii) the
Net Worth at such date.
"Liabilities": At any date of determination, the aggregate amount of
-----------
liabilities appearing on Worldwide's consolidated balance sheet at such date
prepared in accordance with GAAP.
"Lien": Any security interest, mortgage, pledge, lien, hypothecation,
----
judgment lien or similar legal process, charge, encumbrance, title retention
agreement or analogous instrument or device (including, without limitation, the
interest of the lessors under Capitalized Leases and the interest of a vendor
under any conditional sale or other title retention agreement).
"Loan Documents": This Agreement, the Notes, the Guaranties, the Letters
--------------
of Credit, the Letter of Credit Applications and each other instrument,
document, guaranty, security agreement, mortgage, or other agreement executed
and delivered by the Borrower or any other Loan Party pursuant to which the
Borrower or such other Loan Party incurs any liability to the Administrative
Bank or any Bank with respect to the Obligations, agrees to perform any covenant
or agreement with respect to the Obligations or grants any security interest to
secure the Obligations.
"Loan Party": The Borrower and, if any, each Guarantor.
----------
"Loans": The Revolving Loans.
-----
"Loan Units": A Reference Rate Loan Unit, CD Rate Loan Unit and a
----------
Eurodollar Rate Loan Unit (each a "Type" of Loan Unit).
"Maturity": The earlier of: (a) the date on which the Loans become due
--------
and payable under Section 10.2 upon the occurrence of an Event of Default; or
------------
(b) the Revolving Credit Termination Date for the Revolving Loans.
6
"Measurement Period": At any Quarterly Measurement Date, the four fiscal
------------------
quarters ending on such Quarterly Measurement Date.
"Monthly Payment Date": The last day of each month.
--------------------
"Net Income": For any period, the Worldwide's and its Subsidiaries'
----------
consolidated after-tax net income for such period determined in accordance with
GAAP.
"Net Worth": At any date, the total of all assets appearing on Worldwide's
----------
consolidated balance sheet at such date prepared in accordance with GAAP minus
all Liabilities.
"Norwest": Norwest Bank Minnesota, National Association, a national banking
-------
association.
"Notes": The Revolving Notes.
-----
"Obligations": All loans (including the Loans and the Letter of Credit
-----------
Obligations), advances, debts, liabilities, obligations, covenants and duties
owing by any Loan Party or the Loan Parties to the Administrative Bank or any
Bank of any kind or nature, present or future, which arise under this Agreement
or any other Loan Document, whether or not evidenced by any note, guaranty or
other instrument, whether or not for the payment of money, whether arising by
reason of an extension of credit, opening, guarantying or confirming of a letter
of credit, guaranty, indemnification or in any other manner, whether joint,
several, or joint and several, direct or indirect (including those acquired by
assignment or purchases), absolute or contingent, due or to become due, and
however acquired. The term includes, without limitation, all principal,
interest, fees, charges, expenses, attorneys' fees, and any other sum chargeable
to any Loan Party or the Loan Parties under this Agreement or any other Loan
Document.
"PACA": The Perishable Agricultural Commodities Act, 7 U.S.C. 499a et seq.
---- ------
as the same may from time to time be amended, and the rules and regulations
promulgated thereunder by any governmental agency or authority, as from time to
time in effect.
"PACA Bond": The bond, if any, required to be posted by Worldwide or any
---------
of its Restricted Subsidiaries in order to obtain its PACA License or conduct
its business.
"PACA License": If applicable, Worldwide's or any of its Restricted
------------
Subsidiaries' license to do business as a commission merchant and/or dealer
and/or broker under PACA.
"PBGC": The Pension Benefit Guaranty Corporation, established pursuant to
----
Subtitle A of Title IV of ERISA, and any successor thereto or to the functions
thereof.
"Percentage": With respect to any Bank, the percentage specified
----------
opposite such Bank's name on Schedule A attached hereto and incorporated herein
----------
by reference.
"Permitted Distributions": The dividends, distributions, repurchases and
-----------------------
redemptions permitted by the provisions of Section 9.15.
------------
"Permitted Liens": Liens permitted by the provisions of Section 9.7.
--------------- -----------
"Person": Any natural person, corporation, partnership, joint venture,
------
firm, association, trust, unincorporated organization, government or
governmental agency or political subdivision, or any other entity, whether
acting in an individual, fiduciary or other capacity.
"Plan": An employee benefit plan or other plan, maintained for employees
----
of the Borrower or of any ERISA Affiliate, and subject to Title IV of ERISA or
Section 412 of the Code.
7
"Pro Forma Compliance": With respect to any proposed Investment proposed
--------------------
incurrence of Indebtedness or proposed Permitted Distribution, that the Borrower
would be in pro forma compliance with each of Sections 9.12, 9.13, and 9.14. as
------------- ---- ----
of the immediately preceding Quarterly Measurement Date as if the proposed
transaction (including, without limitation, pro forma application of the net
proceeds from the incurrence of Indebtedness) had occurred at the beginning of
the Measurement Period ending on such Quarterly Measurement Date, where, for
purposes of determining the pro forma effect of any such transaction:
(a) the pro forma Interest Expense shall be determined as though the
interest rate on the Revolving Loans and other interest-bearing
Indebtedness, as the case may be, in effect on the date of the proposed
transaction was in effect throughout such Measurement Period; and
(b) with respect to any proposed Investment in another Person, only
that portion of such other Person's historical net income or EBITDA
allocable to the Borrower's or its Restricted Subsidiaries' proposed
Investment shall be added to the Adjusted Net Income or EBITDA, as the case
may be.
"Purchase Money Indebtedness": Any Indebtedness incurred for the purchase
---------------------------
of personal property where the repayment thereof is secured solely by an
interest in the personal property so purchased.
"Quarterly Measurement Date": The last day of each quarter of Worldwide's
--------------------------
fiscal year, commencing with the fiscal quarter ending on December 31, 1999.
"Quarterly Payment Date": The last day of each March, June, September, and
----------------------
December.
"Reference Rate": The rate of interest from time to time publicly
--------------
announced by the Administrative Bank as its "reference rate." Any Bank may lend
to its customers at rates that are at, above or below the Reference Rate. For
purposes of determining any interest rate which is based on the Reference Rate,
such interest rate shall change on the effective date of any change in the
Reference Rate.
"Reference Rate Loan Unit": Each portion of any Loan designated as such in
------------------------
a notice of borrowing under Section 2.3 or a notice of continuation or
-----------
conversion under Section 2.4.
-----------
"Regulatory Change": As to any Bank, any change (including any scheduled
-----------------
change) applicable to a class of banks which includes such Bank in any:
(a) federal or state law or foreign law; or
(b) regulation, interpretation, directive or request (whether or not
having the force of law) of any court or governmental authority charged
with the interpretation or administration of any law referred to in clause
(a) of this definition or of any fiscal, monetary or other authority having
jurisdiction over such class of banks;
or the adoption after the date hereof of any new or final law, regulation,
interpretation, directive or request applicable to a class of banks which
includes such Bank.
"Related Party": Any Person (other than a Subsidiary): (a) which directly
-------------
or indirectly, through one or more intermediaries, controls, or is controlled
by, or is under common control with, the Borrower; (b) which beneficially owns
or holds 15% or more of the equity interest of the Borrower; or (c)15% or more
of the equity interest of which is beneficially owned or held by the Borrower or
a Subsidiary. The term "control" means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
a Person, whether through the ownership of voting securities or by contract.
"Reportable Event": A reportable event, as defined in Section 4043 of
----------------
ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC, by regulation,
8
has waived the requirement of Section 4043(a) of ERISA that it be notified
within 30 days of the occurrence of such event, provided that a failure to meet
the minimum funding standard of Section 412 of the Code and Section 302 of ERISA
shall be a reportable event regardless of the issuance of any such waivers in
accordance with Section 412(d) of the Code.
"Required Banks": At any time, those Banks (which term shall include the
--------------
Administrative Bank) at such time having Percentages aggregating more than
66.67%.
"Restricted Subsidiary": Each of the Worldwide' Subsidiaries except for
---------------------
those identified on Schedule 1.1(b) attached hereto as being non-Restricted
---------------
Subsidiaries.
"Revolving Credit Commitment": The maximum unpaid principal amount of
---------------------------
Revolving Loans which may from time to time be outstanding hereunder, being
initially $40,000,000.00, as the same may be reduced from time to time pursuant
to Section 4.3 and, as the context may require, the agreement of each Bank to
-----------
make Revolving Loans to the Borrower up to its Individual Revolving Credit
Commitment subject to the terms and conditions of this Agreement.
"Revolving Credit Termination Date": The date which is the earliest of:
---------------------------------
(a) December 28, 2002; (b) the date on which the Borrower terminates the
Revolving Credit Commitment pursuant to Section 4.3; or (c) the date upon which
-----------
the obligation of the Banks to make Revolving Loans is terminated pursuant to
Section 10.2.
------------
"Revolving Loan(s)": The Loans described in Section 2.1.
----------------- -----------
"Revolving Notes": The promissory notes of the Borrower described in
---------------
Section 2.5, substantially in the form of Exhibit A, as such promissory notes
----------- ---------
may be amended, modified or supplemented from time to time, and such term shall
include any substitutions for, or renewals of, such promissory notes.
"SEC": The Securities and Exchange Commission or any successor thereto.
---
"Solvent" shall mean, with respect to any Person on any date of
-------
determination, that on such date:
(a) the fair value of such Person's tangible and intangible assets as
a going concern is in excess of the total amount of such Person's
liabilities including, without limitation, Contingent Obligations, provided
that, in computing the amount of any Contingent Obligation at any time in
connection with this clause (a), it is intended that such obligation will
be computed at the amount which, in light of all facts and circumstances
existing at such time, represents the amount that can be reasonably be
expected to become an actual or matured obligation as determined in
accordance with GAAP; and
(b) such Person is then able to pay its debts as they mature; and
(c) such Person has capital sufficient to carry on its business.
"Subsidiary": Any Person of which or in which the described Person and its
----------
other Subsidiaries own directly or indirectly 50% or more of: (a) the combined
voting power of all classes of stock having general voting power under ordinary
circumstances to elect a majority of the board of directors of such Person, if
it is a corporation, (b) the capital interest or profit interest of such Person,
if it is a partnership, joint venture or similar entity, or (c) the beneficial
interest of such Person, if it is a trust, association or other unincorporated
organization.
"Total Debt": At any date, Worldwide's and its Subsidiaries' consolidated
----------
interest-bearing Indebtedness including, without limitation, the outstanding
principal balance of the Loans, any Capitalized Leases, other interest-bearing
Indebtedness and, without duplication, guaranties of interest-bearing
Indebtedness.
9
"Total Usage": At any date, the sum of: (a) the outstanding principal
-----------
balance of the Revolving Loans; plus (b) the Letter of Credit Obligations.
----
"U. S. Bank": U. S. Bank National Association, a national banking
----------
association.
"USB Letter of Credit Fee": As provided in Section 2.7(e)(i).
------------------------ -----------------
Section 1.2 Accounting Terms and Calculations. Except as may be expressly
---------------------------------
provided to the contrary herein, all accounting terms used herein shall be
interpreted and all accounting determinations hereunder (including, without
limitation, determination of compliance with financial ratios and restrictions
in Articles VIII and IX hereof) shall be made in accordance with GAAP
------------- --
consistently applied on a consolidated basis for the Borrower and its
consolidated Subsidiaries as used in the preparation of the audited financial
statements described in Section 7.5(a).
--------------
Section 1.3 Computation of Time Periods. In this Agreement, in the
---------------------------
computation of a period of time from a specified date to a later specified date,
unless otherwise stated, the word "from" means "from and including" and the
words "to" or "until" each means "to but excluding."
Section 1.4 Other Definitional Provisions. The words "hereof," "herein,"
-----------------------------
and "hereunder" and words of similar import when used in this Agreement shall
refer to this Agreement as a whole and not to any particular provision of this
Agreement. References to Sections, Exhibits, Schedules and like references are
to this Agreement unless otherwise expressly provided.
ARTICLE II
----------
TERMS OF LENDING
Section 2.1 The Loans. Subject to the terms and conditions hereof and in
---------
reliance upon the warranties of the Borrower herein, the Banks severally agree
to make loans (each a "Revolving Loan" and collectively the "Revolving Loans")
to the Borrower from time to time from the date hereof until the Revolving
Credit Termination Date up to an aggregate unpaid principal amount at any time
equal to the Revolving Credit Commitment, during which period the Borrower may
repay and reborrow in accordance with the provisions hereof, provided that: (i)
--------
the Banks shall not be obligated to make any Revolving Loan if, after giving
effect to such Revolving Loan, the Total Usage would exceed the Revolving Credit
Commitment; and (ii) no Bank shall be obligated to make any Revolving Loan if,
after giving effect to such Revolving Loan, the aggregate unpaid principal
amount of all Revolving Loans made by such Bank plus its Letter of Credit
----
Participations would exceed such Bank's Individual Revolving Credit Commitment
at such time. Each borrowing under this Section 2.1 shall consist of Revolving
-----------
Loans made on the same day ratably by the Banks in accordance with their
Percentages, and each Bank's Revolving Loans made on such day shall be of the
same Type and shall have the same Interest Period (if applicable).
Section 2.2 Loan Units. Except as otherwise provided herein, the Loans
----------
shall be comprised of Eurodollar Rate Loan Units, CD Rate Loan Units and/or
Reference Rate Loan Units as shall be selected by the Borrower in accordance
with Section 2.3 and Section 2.4. Any combination of Types of Loan Units may be
----------- -----------
outstanding at the same time; provided, however, that the Revolving Loans may
-------- -------
not consist of more than ten (10) different Eurodollar Rate Loan Units and/or
ten (10) different CD Rate Loan Units. Each Eurodollar Rate Loan Unit or CD
Rate Loan Unit shall be in a minimum amount of $1,000,000.00 and in an integral
multiple of $100,000.00 above such amount. Each Reference Rate Loan Unit shall
be in an amount of not less than $500,000.00 and an integral multiple of
$100,000.00 above such amount.
10
Section 2.3 Borrowing Procedures. Any request by the Borrower for
--------------------
Revolving Loans shall be in writing, or by telephone promptly confirmed in
writing if so requested by the Administrative Bank, and must be given so as to
be received by the Administrative Bank not later than 12:00 noon,
Administrative Bank time, on: (i) the date of the requested Revolving Loans, if
such Revolving Loans will not include Eurodollar Rate Loan Units having an
Interest Period of one month or more; or (ii) on the third Eurodollar Business
Day prior to the date of the requested Revolving Loans, if such Revolving Loans
will include Eurodollar Rate Loan Units having an Interest Period of one month
or more. Each request for Revolving Loans shall specify the borrowing date
(which shall be a Business Day and, in the case of any request for Eurodollar
Rate Loan Units, a Eurodollar Business Day) and the amount of such Revolving
Loans. Each request for Revolving Loans shall be in a minimum amount of
$500,000.00 and an integral multiple of $100,000.00 above such amount. Each
request for Revolving Loans shall be deemed a representation and warranty by the
Borrower that all conditions precedent specified in Section 6.2 to such
-----------
Revolving Loans are satisfied on the date of such request and on the date the
requested Revolving Loans are made. Each written request or confirmation shall
be in the form of Exhibit B attached hereto.
---------
The Administrative Bank shall give prompt telephonic notice to each Bank of
the Borrower's request for Loans and the Borrower's interest rate elections for
such Loans. By not later than 1:00 p.m. (Administrative Bank time) on the date
of such Loans, each Bank shall make available to the Administrative Bank, in
immediately available funds, such Bank's Percentage of such Loans. After the
Administrative Bank's receipt of such funds, and upon satisfaction of the
applicable conditions set forth in Article VI, the Administrative Bank will make
----------
the amount of the requested Loans available to the Borrower at the
Administrative Bank's principal office in Minneapolis, Minnesota in immediately
available funds on the date requested.
Unless the Administrative Bank and the Borrower shall have been notified by
any Bank in writing at least one Business Day prior to the date of a Loan that
such Bank does not intend to make available to the Administrative Bank its
Percentage of such Loan (except that no such notice to the Borrower is required
if the Borrower is not then able to satisfy the applicable conditions set forth
in Article VI), the Administrative Bank may assume that each Bank has made such
----------
amount available to the Administrative Bank on such date, and the Administrative
Bank may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If and to the extent any Bank shall not have made
available to the Administrative Bank on the date of any Loan such Bank's
Percentage of such Loan, such Bank and the Borrower agree to repay the
Administrative Bank forthwith on demand such corresponding amount, together with
interest thereon, for each day from the date of such Loan amount until the date
such amount is repaid to the Administrative Bank, at the Federal Funds Rate, in
the case of payment by such Bank, or at the interest rate applicable at the time
to the relevant Loan, in the case of payment by the Borrower; provided, however,
-------- -------
if such Bank shall repay to the Administrative Bank such corresponding amount,
the amount repaid shall constitute such Bank's Loan for purposes of this
Agreement.
Section 2.4 Continuation or Conversion of Loan Units for Loans. The
--------------------------------------------------
Borrower may elect to: (a) continue any outstanding Eurodollar Rate Loan Unit
or CD Rate Loan Unit from one Interest Period into a subsequent Interest Period
to begin on the last day of the earlier Interest Period; provided, however that
any Eurodollar Rate Loan or CD Rate Loan Unit having a daily Interest Period
shall automatically be continued, without further notice, as the same Type of
Loan Unit having a daily Interest Period; or (b) convert any outstanding Loan
Unit into another Type of Loan Unit (on the last day of an Interest Period only,
in the instance of a Eurodollar Rate Loan Unit or a CD Rate Loan Unit), by
giving the Administrative Bank notice in writing, or by telephone promptly
confirmed in writing if so requested by the Administrative Bank, given so as to
be received by the Administrative Bank not later than 12:00 noon, Administrative
Bank time: (i) on the date of the requested continuation or conversion, if the
continuing or converted Loan Unit shall be a Reference Rate Loan Unit, CD Rate
Loan Unit or a Eurodollar Rate Loan Unit having a daily Interest Period; or
(ii) three (3) Eurodollar Business Days prior to the date of the requested
continuation or conversion, if the continuing or converted Loan Unit shall be a
Eurodollar Rate Loan Unit having an Interest Period of one month or more. Each
required notice of continuation or conversion of a Loan Unit shall specify: (r)
the effective date of continuation or conversion (which shall be a Business Day
and, if the resulting Loan Unit is a Eurodollar Rate Loan Unit, a Eurodollar
Business Day); (s) the amount and the Type or Types of Loan Units following such
continuation or conversion; and (t) for continuation as, or conversion into,
Eurodollar Rate Loan Units or CD Rate Loan Units, the Interest Periods for such
Loan Units. Absent timely notice
11
of continuation or conversion, each Eurodollar Rate Loan Unit having an Interest
Period of one month or more or CD Rate Loan Unit having an Interest Period of 30
days or more shall automatically convert into a Reference Rate Loan Unit on the
last day of an applicable Interest Period, unless paid in full on such last day.
No Loan Unit comprising part of the Revolving Loans shall be continued as, or
converted into, a Eurodollar Rate Loan Unit or a CD Rate Loan Unit if the
Interest Period selected for such Loan Unit may not transpire prior to the
Maturity of the relevant Revolving Loans or if a Default or Event of Default
shall exist. Each written notice of continuation or conversion shall be in the
form of Exhibit C attached hereto. The Administrative Bank shall give prompt
---------
written notice to each Bank of any notice received by the Administrative Bank
from the Borrower pursuant to this Section 2.4.
-----------
Section 2.5 The Notes and Maturities. The Revolving Loans made by a Bank
------------------------
shall be evidenced by a Revolving Note, in the amount of such Bank's Individual
Revolving Credit Commitment. The Revolving Loans and the Revolving Notes shall
mature and be payable at Maturity of the Revolving Loans. Each Bank shall enter
in its records the amount of its Revolving Loan, the rate of interest borne on
such Revolving Loans by each Loan Unit, and the payments of the Revolving Loans
received by such Bank, and such records shall be conclusive evidence of the
subject matter thereof, absent manifest error.
Section 2.6 Funding Losses. Upon demand, the Borrower will indemnify and
--------------
hold each Bank free and harmless from and against any loss or expense which such
Bank may sustain or incur (including, without limitation, any loss or expense
sustained or incurred in obtaining, liquidating or employing deposits or other
funds acquired to effect, fund or maintain any Loan Unit) as a consequence of:
(i) any failure of the Borrower to make any payment when due of any amount due
hereunder with respect to the principal of any Loan or under any Note; or (ii)
any failure of the Borrower to borrow, continue or convert a Loan Unit on a date
specified therefor in a notice thereof; or (iii) any payment (including, without
limitation, any payment pursuant to Section 4.2, 4.3 or 10.2), prepayment or
------------------------
conversion of any Eurodollar Rate Loan Unit or CD Rate Loan Unit on a date other
than the last day of the Interest Period for such Loan Unit. Determinations by a
Bank for purposes of this Section 2.6 of the amount required to compensate such
-----------
Bank shall be conclusive in the absence of manifest error.
Section 2.7 Letters of Credit.
-----------------
(a) Letter of Credit Commitment. Subject to the terms and
---------------------------
conditions hereinafter set forth, U. S. Bank agrees to issue stand-by
letters of credit (the "Letters of Credit;" and which term shall include
the Existing Letters of Credit) from time to time on terms reasonably
acceptable to U. S. Bank on any Business Day during the period from the
date hereof and ending on the Letter of Credit Termination Date; provided,
--------
however, that U. S. Bank shall not be required to issue any Letter of
-------
Credit if, after giving effect to such issuance: (i) the Letter of Credit
Obligations would exceed the Letter of Credit Commitment; or (ii) the Total
Usage would exceed the Revolving Credit Commitment.
(b) Termination. The obligation of U. S. Bank to issue any Letter
-----------
of Credit shall terminate on the Letter of Credit Commitment Termination
Date.
(c) Manner of Issuance of Letters of Credit. On the date of this
---------------------------------------
Agreement, the Existing Letters of Credit shall be deemed to have been
issued by U. S. Bank pursuant to this Agreement for the account of the
Borrower. Each subsequent Letter of Credit shall be issued for the account
of the Borrower within three (3) Business Days after receipt of notice from
the Borrower to U. S. Bank specifying the date of the requested issuance,
the face amount of the requested Letter of Credit, and the expiry date of
the requested Letter of Credit; provided that such notice and the required
--------
accompanying documentation is received before 12:00 noon (Administrative
Bank time); any notice received after 12:00 noon (Administrative Bank time)
on any Business Day shall be deemed to have been received on the
immediately following Business Day. In no event shall any Letter of Credit
have an expiry date later than the earlier of: (i) twelve (12) months
after the date of issue ; or (ii) the Revolving Credit Termination Date.
Each request for a Letter of Credit shall be accompanied by an
appropriately completed and duly
12
executed application for a Letter of Credit in form acceptable to U. S.
Bank (a "Letter of Credit Application").
(d) Reimbursement on Demand. The Borrower agrees to pay to U. S.
-----------------------
Bank on demand at U. S. Bank's address shown on the signature page hereof:
(i) the amount of each draft or other request for payment drawn under any
Letter of Credit (whether drawn before, on or after its stated expiry
date), and (ii) interest on all amounts referred to in clause (i) above
from the date of such draw until payment in full at a fluctuating rate per
annum at all times equal to the Default Rate; provided, however, that so
-------- -------
long as the conditions precedent set forth in Section 2.1 and Article VI
----------- ----------
are satisfied as of the date of any draw under the Letter of Credit, the
Banks will make Revolving Loans in accordance with Section 2.3 (a) to pay
---------------
any draw under a Letter of Credit.
(e) Letter of Credit Fees.
---------------------
(i) The Borrower agrees to pay to U. S. Bank for: (A) its own
account, a fee (the "USB Letter of Credit Fee") at a rate per annum
equal to 0.125% of the undrawn face amount of the Letters of Credit
outstanding from time to time; and (B) the account of each Bank
ratably in accordance with its Percentage, a commission (the "Letter
of Credit Commission")at a rate per annum equal to 0.60% of the
undrawn face amount of the Letters of Credit outstanding from time to
time. The USB Letter of Credit Fee and the Letter of Credit Commission
with respect to each Letter of Credit is payable in arrears on each
Quarterly Payment Date. U. S. Bank shall promptly pay over to each
Bank its Percentage of each Letter of Credit Commission received by
the U.S. Bank.
(ii) The Borrower agrees to pay to U.S. Bank, solely for U.S.
Bank's account, all reasonable and customary charges, fees and
expenses which U. S. Bank may assess in connection with the issuance,
extension, amendment or payment of any Letter of Credit in accordance
with the schedule therefor then in effect, and any and all reasonable
out-of-pocket expenses which U. S. Bank may pay or incur in connection
therewith.
(f) Obligations Absolute. The Obligations of the Borrower
--------------------
under this Section 2.7 shall be unconditional and irrevocable and
-----------
shall be paid strictly in accordance with the terms of this Agreement
under all circumstances, including, without limitation, the following
circumstances: (i) any lack of validity or enforceability of any
Letter of Credit or any other agreement or instrument relating thereto
(collectively, the "Related Documents"); (ii) any amendment or waiver
of, or any consent to departure from, all or any of the Related
Documents; (iii) the existence of any claim, set-off, defense or other
right that the Borrower may have at any time against any beneficiary
or any transferee of any Letter of Credit (or any Persons for whom any
such beneficiary or any such transferee may be acting), U. S. Bank or
any other Person, whether in connection with any Related Document, the
transactions contemplated therein, or any unrelated transaction,
except as set forth in clause (v) below; (iv) any draft, statement or
any other document presented under any Letter of Credit proving to be
forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect, except as
set forth in clause (v) below; (v) payment by U. S. Bank under any
Letter of Credit against presentation of a draft or certificate which
does not comply with the terms of such Letter of Credit, except in the
case of payment resulting from the negligence or willful misconduct of
U. S. Bank; (vi) the occurrence of any Default or Event of Default; or
(vii) any other circumstance or event whatsoever, whether or not
similar to any of the foregoing.
(g) Letter of Credit Participations.
-------------------------------
(i) Concurrently with the issuance of each Letter of Credit
pursuant to this Agreement (including, without limitation, the deemed
issuance of the Existing Letters of Credit
13
pursuant to the first sentence of Section 2.7(c)), U. S. Bank shall be
--------------
deemed to have sold and transferred to each Bank, and each Bank shall
be deemed irrevocably and unconditionally to have purchased and
received from U. S. Bank, without recourse or warranty, an undivided
Letter of Credit Participation in each Letter of Credit and the Letter
of Credit Obligations with respect thereto and any security therefor.
U. S. Bank shall retain its individual Letter of Credit Participation
in each Letter of Credit and the Letter of Credit Obligations with
respect thereto and any security therefor. U. S. Bank shall promptly
give each other Bank notice of the issuance of each Letter of Credit
and the amount of such Bank's Letter of Credit Participation therein.
(ii) U. S. Bank shall promptly notify the Borrower and each Bank
of each demand for payment under a Letter of Credit and of the date on
which such payment is to be made and the amount of such Bank's
Revolving Loan to be made pursuant to Sections 2.3 and 2.7(d), if any.
-----------------------
By not later than 1:00 p.m. (Administrative Bank time), on each date
on which payment is to be made to U. S. Bank, each Bank shall pay to
U. S. Bank in immediately available funds, such Bank's Percentage of
such demand for payment which the Borrower has not paid to U. S. Bank,
by Revolving Loans or otherwise. Each Bank's obligation to make such
amounts available to U. S. Bank shall be irrevocable and shall not be
subject to any qualification or exception whatsoever and shall be made
in accordance with the terms and conditions of this Agreement under
all circumstances except where the Borrower is not liable to U. S.
Bank for payment of a draw on a Letter of Credit under Section
-------
2.7(f)(v). If and to the extent any Bank shall not have made such
---------
amount available to U. S. Bank on any such date, such Bank agrees,
upon demand, to pay interest on such amount to U. S. Bank for the
account of U. S. Bank for each day from and including the date on
which such payment was to be made to but excluding the date such
payment is made at a rate per annum equal to the Federal Funds Rate
from time to time in effect, based upon a year of 360 days. Any
Bank's failure to make available to U. S. Bank its Percentage of any
demand for payment under a Letter of Credit shall not relieve any
other Bank of its obligation to make available to U. S. Bank its
Percentage of such demand for payment on the date such payment is to
be made, but no Bank shall be responsible for the failure of any other
Bank to make available to U. S. Bank such other Bank's Percentage of
any such payment.
(iii) Whenever, at any time after U. S. Bank has made a payment
under any Letter of Credit and has received from another Bank such
other Bank's Percentage of the unreimbursed portion of such payment,
U. S. Bank receives any reimbursement on account of such unreimbursed
portion or any payment of interest on account thereof, U. S. Bank will
promptly distribute to such other Bank its pro rata share thereof in
--- ----
like funds as received in accordance with Section 4.4; provided,
----------- --------
however, that in the event that U. S. Bank is required to return such
-------
reimbursement or such payment of interest (as the case may be), such
other Bank will return to U. S. Bank any portion thereof previously
distributed to it by U. S. Bank in like funds as such reimbursement or
payment is required to be returned by U. S. Bank.
(h) Indemnification by Banks. The Banks severally agree to indemnify
------------------------
U. S. Bank acting in its capacity as issuer of the Letters of Credit, and
each officer, director, employee, agent and affiliate of U. S. Bank (herein
collectively called "LC Issuer Parties" and individually called a "LC
Issuer Party"), ratably according to their respective Percentages, to the
extent not reimbursed by the Borrower, from and against any and all claims,
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever
which may at any time (including, without limitation, at any time following
the payment of any of the Letter of Credit Obligations) be imposed on,
incurred by or asserted against U. S. Bank in any way relating to or
arising out of the issuance of or payment or failure to pay under the
Letter of Credit or the use of proceeds of any payment made under the
Letter of Credit; provided, however, that no Bank shall be liable for the
-------- -------
payment to U. S. Bank of any portion of such claims, liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever resulting from
U. S. Bank's gross negligence
14
or willful misconduct. All obligations provided for in this subsection (h)
shall survive the termination of this Agreement.
(i) Conflicts. The rights of U. S. Bank against the Borrower
---------
hereunder shall be in addition to all rights under (and shall control over
any conflict under) any Letter of Credit Application.
ARTICLE III
-----------
INTEREST AND FEES
Section 3.1 Interest. Subject to the provisions of Section 3.1(b), the
-------- --------------
Borrower agrees to pay interest on the outstanding principal amount of each
Revolving Loan from the date of such Revolving Loan until the Maturity thereof:
(a) With respect to each:
(i) Reference Rate Loan Unit comprising a portion of such
Revolving Loan, at a fluctuating rate per annum equal at all
times to the Reference Rate;
(ii) Eurodollar Rate Loan Unit comprising a portion of such
Revolving Loan, at a rate per annum equal at all times during the
Interest Period relating to such Eurodollar Rate Loan Unit to the
sum of the Adjusted Eurodollar Rate in effect for such Interest
Period plus 0.60%; and
----
(iii) CD Rate Loan Unit comprising a portion of such
Revolving Loan, at a rate per annum equal at all times during the
Interest Period relating to such Eurodollar Rate Loan Unit to the
sum of the Adjusted CD Rate in effect for such Interest Period
plus 0.60%
----
(b) Notwithstanding the provisions of Section 3.1(a), at all times
--------------
after the occurrence and during the continuance of any Event of Default,
the Borrower agrees to pay interest on the outstanding principal amount of
each Revolving Loan from the date on which the Administrative Bank notifies
the Borrower of such Event of Default at a rate per annum at all times
equal to the sum of the rate equal to the sum of (i) the Reference Rate;
plus (ii) two percent (2.0%) per annum.
----
(c) Until Maturity of a Loan: (i) interest accrued through the end of
a month on each Reference Rate Loan Unit shall be payable on the Monthly
Payment Date coinciding with the end of such month, commencing on the first
such Monthly Payment Date following the Closing Date; and (B) interest
accrued during the applicable Interest Period on each Eurodollar Rate Loan
Unit or CD Rate Loan Unit shall be payable on the last day of such
applicable Interest Period; provided, however, that in the case of any
-------- -------
Interest Period of longer than three (3) months, interest shall also be
payable at each Quarterly Payment Date occurring within such Interest
Period. Interest on each Loan shall also be payable at its Maturity.
Interest accrued after Maturity shall be payable on demand.
(e) No provision of this Agreement or any Note shall require the payment of
interest in excess of the rate permitted by applicable law.
Section 3.2 Facility Fee. The Borrower shall pay to the Administrative
------------
Bank a fee (the "Facility Fee"), for the account of each Bank ratably in
accordance with its Percentage, determined by applying a rate equal to 0.1875%
to the daily Revolving Credit Commitment. The Facility Fee shall be payable to
the Administrative Bank in arrears on each Quarterly Payment Date, commencing
with the first such date following the Closing Date, and on the Revolving Credit
Termination Date.
15
Section 3.4 Computation. Interest, the Facility Fee, the USB Letter of
-----------
Credit Fee, the Letter of Credit Commission and any other fee calculated on a
per annum basis shall be computed on the basis of actual days elapsed and a
year of 360 days.
ARTICLE IV
----------
PAYMENTS, PREPAYMENTS, REDUCTION OR
TERMINATION OF THE CREDIT AND SETOFF
Section 4.1 Repayment. Principal of the Loans shall be due and payable
---------
in accordance with the provisions of Section 2.5 hereof and this Article IV.
----------- ----------
Section 4.2 Voluntary and Mandatory Prepayments.
-----------------------------------
(a) Optional Prepayments. The Borrower, by giving written or
--------------------
telephonic notice to the Administrative Bank by no later than 2:00 p.m.
(Administrative Bank time) on the Business Day of a prepayment, may prepay
the Loans, in whole or in part, at any time, without premium or penalty;
provided, however, that: (i) any prepayment shall be subject to the
-------- -------
provisions of Section 2.6; and (ii) each partial prepayment shall be in an
-----------
amount of $500,000.00 and an integral multiple $100,000.00 above such
amount. Any such prepayment must be accompanied by accrued and unpaid
interest on the amount prepaid and any amount payable pursuant to Section
-------
2.6. The Administrative Bank shall give prompt notice to each Bank of any
---
notice received by the Administrative Bank pursuant to this Section 4.2(a).
--------------
(b) Mandatory Prepayment of Revolving Loans. The Borrower shall
---------------------------------------
prepay the Revolving Loans as follows:
(i) If, at any time, the Total Usage exceeds the Revolving
Credit Commitment, then the Borrower shall immediately prepay the
Revolving Loans and cash collateralize the Letter of Credit
Obligations by the amount of such excess together with interest on the
amount prepaid. Any prepayment required by this subsection (i) shall
--------------
be applied first to prepay the Revolving Loans, and the remainder of
such prepayment, if any, shall be deposited in an interest-bearing
account maintained at U. S. Bank for application to the Borrower's
reimbursement obligations under Section 2.7(d) as payments are made
--------------
on the Letters of Credit, with the balance, if any, to be applied to
the other Obligations.
(ii) If, at any time, the Administrative Bank notifies the
Borrower that the sum of the aggregate unpaid principal amount of the
Revolving Loans made by any Bank plus its Letter of Credit
----
Participations exceeds such Bank's Individual Revolving Credit
Commitment by providing the Borrower with a written certificate from
such Bank calculating the amount of such excess, then the Borrower
shall immediately prepay the amount of such excess together with
interest on the amount prepaid to the Administrative Bank for
distribution to such Bank for application to the Revolving Loans owed
to such Bank.
(c) Application of Prepayments. Except as otherwise directed by the
--------------------------
Borrower, the Banks shall apply prepayments first to Reference Rate Loan
Units, then to Eurodollar Rate Loan Units having an Interest Period ending
on such day of prepayment, then to CD Rate Loan Units having an Interest
Period ending on such day of prepayment, then to other CD Rate Loan Units,
and then to other Eurodollar Rate Loan Units.
Section 4.3 Reduction or Termination of Revolving Credit Commitment or
-------------------------------------------------------
Letter of Credit Commitment.
16
(a) Voluntary. The Borrower may, at any time, upon no less than
---------
three (3) Business Days' prior written notice received by the
Administrative Bank, permanently reduce the Revolving Credit Commitment,
with any such reduction in a minimum amount of $5,000,000.00 or an integral
multiple of $1,000,000.00 in excess of that amount; provided, however, the
-------- -------
Borrower may not reduce the Revolving Credit Commitment below the sum of
the aggregate unpaid principal amount of the Revolving Loans plus the
----
Letter of Credit Obligations. The Borrower may, at any time when no
Revolving Loans or Letter of Credit Obligations are outstanding, upon not
less than three (3) Business Days' prior written notice to the
Administrative Bank, terminate both the Revolving Credit Commitment and
Letter of Credit Commitment in their entireties or may, when no Letter of
Credit Obligations are outstanding, terminate the Letter of Credit
Commitment. Upon termination of both of the Revolving Credit Commitment and
the Letter of Credit Commitment pursuant to this Section, the Borrower
shall pay to the Administrative Bank all accrued and unpaid interest on the
Revolving Loans, all unpaid Revolving Credit Non-Usage Fee accrued to the
date of such termination and all other unpaid Obligations of the Borrower
to the Administrative Bank or any Bank hereunder with respect to the
Revolving Loans, the Revolving Credit Commitment, the Letters of Credit and
the Letter of Credit Commitment including, without limitation, any amount
required to be paid under Section 10.3. Upon termination of the Letter of
------------
Credit Commitment (without a corresponding termination of the Revolving
Credit Commitment) pursuant to this Section, the Borrower shall pay to the
Administrative Bank all unpaid Obligations of the Borrower to U. S. Bank
hereunder with respect to the Letters of Credit and the Letter of Credit
Commitment including, without limitation, any amount required to be paid
under Section 10.3.
------------
(b) Application. Each reduction in the Revolving Credit Commitment
-----------
or Letter of Credit Commitment shall reduce the Banks' Individual Revolving
Credit Commitments or Individual Letter of Credit Commitments, as the case
may be, pro rata in accordance with their respective Percentages.
--- ----
Section 4.4 Payments. Except to the extent that this Agreement
--------
specifically requires that payments be made directly to an individual Bank, all
payments and prepayments of principal of, and interest on, the Notes and all
fees, expenses and other Obligations under the Loan Documents payable to the
Administrative Bank or the Banks shall be made without deduction, set-off, or
counterclaim and net of any withholding taxes, in immediately available funds,
not later than 2:00 p.m., Administrative Bank time, on the dates due to the
Administrative Bank at the office specified by it from time to time for the
ratable benefit of the Banks in accordance with their Percentages, except as
otherwise specifically provided in this Agreement. Funds received on any day
after such time shall be deemed to have been received on the next Business Day.
Subject to the definition of the term "Interest Period", whenever any payment to
be made hereunder or on the Notes shall be stated to be due on a day which is
not a Business Day, such payment shall be made on the next succeeding Business
Day and such extension of time shall be included in the computation of any
interest or fees. The Borrower authorizes each Bank to charge any of the
Borrower's accounts maintained at such Bank for the amount of any payment or
prepayment on the Notes or other amount owing pursuant to any of the other Loan
Documents. The Borrower hereby authorizes the Banks, at the discretion of the
Required Banks, to make a Revolving Loan in order to pay, on behalf of the
Borrower, any amount due on any Note or pursuant to any of the other Loan
Documents without further action on the part of the Borrower and regardless of
whether the Borrower is able to comply with the terms, conditions and covenants
of this Agreement at the time of such Revolving Loan. The Administrative Bank
will use its best efforts to inform the Borrower immediately prior to or
promptly after any such charge to the Borrower's account or Revolving Loan is
made. The Administrative Bank (or its designee) shall promptly distribute to
each Bank its respective Percentage of all payments of principal of or interest
on the Loans or other payments due under this Agreement or any other Loan
Document received by it for the account of such Bank; provided, however that:
-------- -------
(a) the Administrative Bank may set off against any amount distributable to any
Bank the amount, if any, which such Bank is obligated to pay to the
Administrative Bank under this Agreement or any other Loan Document; and (b) if
the Administrative Bank reasonably determines that any amount received by it
under this Agreement or any other Loan Document must be returned to the Borrower
or paid to any other Person pursuant to any insolvency law or otherwise, then,
notwithstanding any other term or condition of this Agreement or any other Loan
Document, the Administrative Bank will not be required to distribute any portion
thereof to any Bank and each Bank will repay to the Administrative Bank, on
demand, any portion of such amount that the Administrative Bank has distributed
to such Bank, together with interest at such rate, if any, as the
17
Administrative Bank is required to pay to the Borrower or such other Person,
without set-off, counterclaim or deduction of any kind. All amounts received by
each Bank (whether as a result of payment transmitted by the Borrower or
otherwise) on account of payment of interest on or principal of the Notes, or
other payments due under this Agreement or any other Loan Document, as the case
may be, shall be so applied by it to such payment.
Section 4.5 Pro Rata Sharing. If any Bank or any holder of any Note
----------------
shall obtain any payment (whether voluntary, involuntary, by application of
offset or otherwise) upon any Loan or other Obligation which is to be shared pro
---
rata under this Agreement in excess of its Percentage of such payment then or
----
thereafter obtained by all other Banks or other holders of Notes upon such
Obligations, such Bank or other holder shall purchase from the other Banks or
the other holders of Notes such participations in the relevant Obligation as
shall be necessary for such purchasing Bank or holder to share the excess
payment ratably with the other Banks or holders according to each Bank's or
other holder's Percentage; provided, however, that if all or any portion of the
-------- -------
excess payment is thereafter recovered from such purchasing holder, the purchase
shall be rescinded and the purchase price restored to the extent of such
recovery, but without interest. The Borrower agrees that any Bank or holder so
purchasing a participation from another Bank or holder pursuant to this Section
-------
4.5 may, to the fullest extent permitted by law, exercise all its rights of
---
payment (including the right of setoff) with respect to such participation as
fully as if such Bank or holder were the direct creditor of the Borrower in the
amount of such participation.
Section 4.6 Set-Off; etc. In addition to the remedies set forth in Section
------------- -------
10.2 and Section 10.3, upon the occurrence of any Event of Default or at any
---- ------------
time thereafter while such Event of Default continues, each Bank or any other
holder of the Notes may offset any and all balances, credits, deposits (general
or special, time or demand, provisional or final), accounts or monies of the
Borrower then or thereafter with such Bank or such other holder, or any
obligations of such Bank or such other holder of the Notes against the
Obligations. The Borrower hereby grants to each Bank and each other Note holder
a security interest in all such balances, credits, deposits, accounts or monies.
ARTICLE V
---------
ADDITIONAL PROVISIONS RELATING TO THE LOANS
Section 5.1 Increased Costs. If, as a result of any Regulatory Change:
---------------
(a) any tax, duty or other charge with respect to any Loan, the
Notes, the Letters of Credit, the Letter of Credit Participations or the
Commitment is imposed, modified or deemed applicable, or the basis of
taxation of payments to any Bank of interest or principal of the Loans, or
of the Facility Fee or of the USB Letter of Credit Fee or the Letter of
Credit Commission (other than taxes imposed on the overall net income of
such Bank by the jurisdiction in which such Bank has its principal office)
is changed;
(b) any reserve, special deposit, special assessment or similar
requirement against assets of, deposits with or for the account of, or
credit extended by, such Bank is imposed, modified or deemed applicable;
(c) any increase in the amount of capital required or expected to
be maintained by such Bank or any Person controlling such Bank is imposed,
modified or deemed applicable;
(d) any other condition affecting this Agreement or the Commitment
is imposed on such Bank or the relevant funding markets;
and such Bank determines that, by reason thereof, the cost to such Bank of
making or maintaining the Loans, the Letters of Credit, the Letter of Credit
Participations or the Commitment is increased, or the amount of any sum
receivable by such Bank hereunder or under the Notes is reduced; then, the
Borrower shall pay to such Bank upon demand such additional amount or amounts as
will compensate such Bank (or the controlling Person in the instance
18
of (c) above) on an after-tax basis for such additional costs or reduction
(provided that the Bank has not been compensated for such additional cost or
reduction in the calculation of the Eurodollar Reserve Percentage or Domestic
Reserve Percentage, as the case may be, for any affected Loan Unit). The Bank
claiming compensation under this Section will promptly notify the Borrower and
the Administrative Bank of any event of which it has knowledge, occurring after
the date hereof, which will entitle such Bank to compensation pursuant to this
Section. A certificate of the Bank claiming compensation under this paragraph,
setting forth the additional amount or amounts to be paid to it hereunder and
stating in reasonable detail the basis for the charge and the method of
computation, shall be conclusive in the absence of error. In determining any
compensation under this Section, the claiming Bank may use any reasonable
averaging and attribution methods. Failure on the part of a Bank to demand
compensation under this Section for any period shall not constitute a waiver of
such Bank's rights to demand compensation for any subsequent period.
Section 5.2 Deposits Unavailable or Interest Rate Unascertainable or
--------------------------------------------------------
Inadequate; Impracticability. If any Bank determines (which determination
----------------------------
shall be conclusive and binding on the parties hereto) that:
(a) deposits of the necessary amount for the relevant Interest Period
for any Eurodollar Rate Loan Unit or CD Rate Loan Unit are not available to
such Bank in the relevant market or that, by reason of circumstances
affecting such market, adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate or CD Rate for such Interest Period;
(b) the Adjusted Eurodollar Rate or the Adjusted CD Rate will not
adequately and fairly reflect the cost to such Bank of making or funding
the relevant Loan Unit for its Interest Period; or
(c) the making or funding of any Eurodollar Rate Loan Unit or CD Rate
Loan Unit has become impracticable as a result of any event occurring after
the date of this Agreement which, in the opinion of such Bank, materially
and adversely affects such Loan Unit or such Bank's Commitment to make such
Loan Unit or the relevant market;
such Bank shall promptly give notice of such determination to the Borrower and
the Administrative Bank that the adversely affected Type of Loan Unit is no
longer available to the Borrower, and (A) all Loans made by such Bank during
the period on and after the date of such Bank's notice through the date on which
such Bank determines that the circumstances giving rise to such Bank's
determination under subsection (a), (b) or (c) no longer exists shall accrue
interest only as a Type of Loan Unit not subject to such notice; (B) (1) any
notice of a new Eurodollar Rate Loan Unit previously given by the Borrower and
not yet borrowed or converted shall be deemed, as to such Bank, to be a notice
to make a Reference Rate Loan Unit, and (2) the Borrower shall be obligated to
either prepay in full any outstanding Eurodollar Rate Loan Units without premium
or penalty other than any amount required by Section 2.6 on the last day of the
-----------
current Interest Period with respect thereto or convert any such Eurodollar Rate
Loan Unit to a Reference Rate Loan Unit or, if then permitted, a CD Rate Loan
Unit or, in either case, on such earlier date as may be required by applicable
law. Any prepayment of any Eurodollar Rate Loan Unit or CD Rate Loan Unit prior
to the end of its Interest Period shall be accompanied by any payment required
by Section 2.6.
------------
Section 5.3 Changes in Law Rendering Eurodollar Rate Loan Units Unlawful.
------------------------------------------------------------
If at any time due to the adoption of any law, rule, regulation, treaty or
directive, or any change therein, or in the interpretation or administration
thereof by any court, central bank, governmental authority, agency or
instrumentality, or comparable agency charged with the interpretation or
administration thereof, or for any other reason arising subsequent to the date
of this Agreement, it shall become unlawful or impossible for any Bank to make
or fund any Eurodollar Rate Loan Unit, the obligation of such Bank to provide
such Loan Unit shall, upon the happening of such event, forthwith be suspended
for the duration of such illegality or impossibility. If any such event shall
make it unlawful or impossible for any Bank to continue any Eurodollar Rate Loan
Unit previously made by it hereunder, such Bank shall, upon the happening of
such event, notify the Borrower and the Administrative Bank thereof in writing,
and the Borrower shall, at the time notified by the Bank, either convert each
such unlawful Loan Unit to a Reference Rate Loan Unit or, if then permitted, a
CD Rate Loan Unit, or repay such Loan Unit in full, together with accrued
interest thereon and any payment required pursuant to Section 2.6.
-----------
19
Section 5.4 Withholding Taxes. Upon the written request of the Borrower,
-----------------
each Bank (or transferee) that is organized under the laws of a jurisdiction
outside the United States shall, if legally able to do so, prior to the
immediately following due date of any payment by the Borrower hereunder, deliver
to the Borrower such certificates, documents or other evidence, as required by
the Code or Treasury Regulations issued pursuant thereto, including Internal
Revenue Service Form 1001 or Form 4224 and any other certificate or statement of
exemption required by Treasury Regulation Section 1.1441-1, 1.1441-4 or 1.1441-
6(c) or any subsequent version thereof or successors thereto, properly completed
and duly executed by such Bank (or transferee) establishing that such payment is
(a) not subject to United States Federal withholding tax under the Code because
such payment is effectively connected with the conduct by such Bank (or
transferee) of a trade or business in the United States or (b) totally exempt
from United States Federal withholding tax, or subject to a reduced rate of such
tax under a provision of an applicable tax treaty. Unless the Borrower and the
Administrative Bank have received forms or other documents satisfactory to them
indicating that such payments hereunder are not subject to United States Federal
withholding tax or are subject to such tax at a rate reduced by an applicable
tax treaty, the Borrower or the Administrative Bank shall withhold taxes from
such payments at the applicable statutory rate. The Borrower shall not be
required to pay any additional amounts to any Bank (or transferee) in respect of
United States Federal withholding tax pursuant to Section 5.1 above if the
-----------
obligation to pay such additional amounts would not have arisen but for a
failure by such Bank (or transferee) to comply with the provisions of this
Section; provided, however, that the Borrower shall be required to pay those
--------- -------
amounts to any Bank (or transferee) it was required to pay hereunder prior to
the failure of such Bank (or transferee) to comply with the provisions of this
Section. Any Bank (or transferee) claiming any additional amounts payable
pursuant to this Section 5.4 shall use reasonable efforts (consistent with legal
-----------
and regulatory restrictions) to file any certificate or document requested by
the Borrower or to change the jurisdiction of its applicable lending office if
the making of such a filing or change would avoid the need for or reduce the
amount of any such additional amounts which may thereafter accrue and would not,
in the sole determination of such Bank, be otherwise disadvantageous to such
Bank (or transferee).
Section 5.5 Discretion of the Banks as to Manner of Funding.
-----------------------------------------------
Notwithstanding any provision of this Agreement to the contrary, each Bank shall
be entitled to fund and maintain its funding of all or any part of the Loans in
any manner it elects; it being understood, however, that for purposes of this
Agreement, all determinations hereunder shall be made as if the Banks had
actually funded and maintained each Eurodollar Rate Loan Unit during its
Interest Period through the purchase of deposits having a term corresponding to
such Interest Period and bearing an interest rate equal to the Eurodollar Rate
and each CD Rate Loan Unit during its Interest Period through the purchase of
deposits having a term corresponding to such Interest Period and bearing an
interest rate equal to the CD Rate (whether or not the Banks shall have granted
any participation in such Loan Units).
Section 5.6 Funding Through the Sale of Participation. Subject only to
-----------------------------------------
the provisions of Section 12.5, the Borrower acknowledges that each Bank may
------------
fund all or any part of the Loans by sales of participation to various
participants and agrees that each Bank may, in invoking its rights under this
Article V or under Section 2.6, demand and receive payment for costs and other
--------- -----------
amounts incurred by, or allocable to, any such participant, or take other action
arising from circumstances applicable to any such participant, to the same
extent that such participant could demand and receive payments, or take other
action, under this Article V or under Section 2.6 if such participant were the
--------- -----------
Bank under this Agreement except that no participant's claims for payment of
costs and other amounts under this Article V or Section 2.6 shall exceed the
-----------
amount which such Bank would have received had such Bank not sold a
participation to such participant.
Section 5.7 Funding Through Branch or Affiliate. At each Bank's sole
-----------------------------------
option, it may fulfill its commitment to make Eurodollar Rate Loan Units by
causing a foreign branch or an affiliate to make or continue such Eurodollar
Rate Loan Units; provided, that in such instance such Eurodollar Rate Loan Unit
--------
shall be deemed for purposes of this Agreement to have been made by the Bank and
the obligation of the Borrower to repay such Eurodollar Rate Loan Units shall be
to such Bank and shall be deemed held by such Bank for the account of such
branch or affiliate.
20
ARTICLE VI
----------
CONDITIONS PRECEDENT
Section 6.1 Conditions of Initial Loans, etc. The obligation of the
--------------------------------
Banks to make the initial Revolving Loans or of U. S. Bank to issue the initial
Letter of Credit shall be subject to the satisfaction of the conditions
precedent, in addition to the applicable conditions precedent set forth in
Section 6.2 below, that the Administrative Bank shall have received all of the
-----------
following, in form and substance satisfactory to the Banks, each duly executed
and certified or dated the date of the initial Loans or Letter of Credit or such
other date as is satisfactory to the Banks:
(a) The Notes appropriately completed and duly executed by the
Borrower;
(b) The other Loan Documents, if any, appropriately completed and duly
executed by each Loan Party which is a party thereto;
(c) A certificate of the secretary or any assistant secretary of each
Loan Party having attached: (i) a copy of the corporate resolution of the
Borrower authorizing the execution, delivery and performance of the Loan
Documents to which such Loan Party is a party, certified by the Secretary
or an Assistant Secretary of such Loan Party; (ii) an incumbency
certificate showing the names and titles, and bearing the signatures of,
the officers of such Loan Party authorized to execute the Loan Documents to
which such Loan Party is a party; and (iii) a copy of the bylaws of such
Loan Party with all amendments thereto;
(d) A copy of the articles or certificate of incorporation of each
Loan Party with all amendments thereto, certified by the appropriate
governmental official of the jurisdiction of its incorporation as of a date
acceptable to the Administrative Bank and the Banks;
(e) Certificates of good standing for the Borrower from the respective
Secretary of States of the States of Delaware and Minnesota;
(f) An opinion of counsel to the Loan Parties, addressed to the
Administrative Bank and the Banks, in form and substance satisfactory to
the Administrative Bank and the Banks;
(g) An officer's certificate in a form provided by the Administrative
Bank executed by the chief financial officer or treasurer of the Borrower;
(h) Evidence of insurance for all insurance required by the Loan
Documents;
(i) A letter signed by the Borrower instructing the Banks as to
payment of the proceeds of the initial Revolving Loans;
(j) A Compliance Certificate appropriately completed as of a date
satisfactory to the Required Banks and duly executed by the Borrower
showing compliance with the financial covenants set forth in this Agreement
as of such date; and
(k) Such other approvals, opinions or documents as the Administrative
Bank or any Bank may reasonably request.
Section 6.2 Conditions Precedent to all Loans, etc. The obligation of the
---------------------------------------
Banks to make any Loan hereunder (including the initial Revolving Loans) or of
U. S. Bank to issue any Letter of Credit shall be subject to the satisfaction of
the following conditions precedent:
21
(a) Before and after giving effect to such Loan or Letter of Credit,
the representations and warranties contained in Article VII shall be true
-----------
and correct, as though made on the date of such Loan or Letter of Credit,
except that, after the delivery of any financial statements to the Banks in
accordance with Section 8.1(a) or (b), the representations and warranties
-------------- ---
set forth in Section 7.5 shall be deemed a reference to the audited or
-----------
unaudited financial statements then most recently delivered to the Banks;
(b) Before and after giving effect to such Loan or Letter of Credit,
no Default or Event of Default shall have occurred and be continuing; and
(c) The Administrative Bank shall have received the Borrower's request for
such Loan as required by Section 2.3 or the Letter of Credit Application
-----------
for such Letter of Credit as required by Section 2.7.
-----------
ARTICLE VII
-----------
REPRESENTATIONS AND WARRANTIES
To induce the Banks to enter into this Agreement, to grant the Commitment
and to make Loans hereunder, the Borrower represents and warrants to the
Administrative Bank and the Banks:
Section 7.1 Organization, Standing, etc. Each Loan Party and each of its
---------------------------
Restricted Subsidiaries are corporations or companies duly organized and
validly existing and in good standing under the laws of the state of their
respective organization and have all requisite power and authority to carry on
their respective businesses as now conducted, to enter into the Loan Documents
to which they are a party and to perform their obligations under the Loan
Documents. Each Loan Party and each of its Restricted Subsidiaries is duly
qualified and in good standing as a foreign corporation in each jurisdiction in
which the character of the properties owned, leased or operated by it or the
business conducted by it makes such qualification necessary.
Section 7.2 Authorization and Validity. The execution, delivery and
--------------------------
performance by each Loan Party of the Loan Documents to which such Loan Party is
a party have been duly authorized by all necessary corporate action by such Loan
Party. The Loan Documents constitute the legal, valid and binding obligations of
each Loan Party which is a party thereto, enforceable against such Loan Party in
accordance with their respective terms, subject to limitations as to
enforceability which might result from bankruptcy, insolvency, moratorium and
other similar laws affecting creditors' rights generally and subject to
limitations on the availability of equitable remedies.
Section 7.3 No Conflict, No Default. The execution, delivery and
-----------------------
performance by each Loan Party of the Loan Documents to which such Loan Party is
a party will not: (a) violate any provision of any law, statute, rule or
regulation or any order, writ, judgment, injunction, decree, determination or
award of any court, governmental agency or arbitrator presently in effect having
applicability to such Loan Party; (b) violate or contravene any provisions of
the articles (or certificate) of incorporation or bylaws of such Loan Party (in
the case of each Loan Party which is a corporation); or (c) result in a breach
of or constitute a default under any indenture, loan or credit agreement or any
other agreement, lease or instrument to which such Loan Party is a party or by
which it or any of its properties may be bound or result in the creation of any
Lien on any asset of such Loan Party except for Liens created by the Loan
Documents. No Loan Party is in default under or in violation of any such law,
statute, rule or regulation, order, writ, judgment, injunction, decree,
determination or award or any such indenture, loan or credit agreement or other
agreement, lease or instrument in any case in which the consequences of such
default or violation constitute an Adverse Event. No Default or Event of Default
has occurred and is continuing.
Section 7.4 Government Consent. No order, consent, approval, license,
------------------
authorization or validation of, or filing, recording or registration with, or
exemption by, any governmental or public body or authority is required on the
part of any Loan Party to authorize, or is required in connection with the
execution, delivery and performance of, or the legality, validity, binding
effect or enforceability of, the Loan Documents to which such Loan Party is a
party.
22
Section 7.5 Financial Statements and Condition. Worldwide's audited
----------------------------------
consolidated financial statements as at December 31, 1998, and its unaudited
financial statements as at September 30, 1999, as heretofore furnished to the
Administrative Bank and the Banks, have been prepared in accordance with GAAP on
a consistent basis (except for the omission of footnotes and prior period
comparative data required by GAAP and for variations from GAAP which in the
aggregate are not material) and fairly present the consolidated financial
condition of Worldwide and its Subsidiaries as at such dates and the results of
their consolidated operations and changes in financial position for the
respective periods then ended. Since December 31, 1998, no Adverse Event has
occurred.
Section 7.6 Litigation. There are no actions, suits or proceedings
----------
pending or, to the knowledge of the Borrower, threatened against or affecting
Worldwide or any of its Restricted Subsidiaries or any of their respective
properties before any court or arbitrator, or any governmental department,
board, agency or other instrumentality which, if determined adversely to such
Person, could constitute an Adverse Event.
Section 7.7 Contingent Liabilities. Neither Worldwide nor any of its
----------------------
Restricted Subsidiaries has any Contingent Obligations which are material to
such Person.
Section 7.8 Compliance. Worldwide and each of its Restricted Subsidiaries
----------
are in material compliance with all statutes and governmental rules and
regulations applicable to such Person.
Section 7.9 Environmental, Health and Safety Laws. There does not exist
-------------------------------------
any violation by Worldwide or any of its Restricted Subsidiaries of any
applicable federal, state or local law, rule or regulation or order of any
government, governmental department, board, agency or other instrumentality
relating to environmental, pollution, health or safety matters which will or
threatens to impose a material liability on such Person or which would require a
material expenditure by such Person to cure. Neither Worldwide nor any of its
Restricted Subsidiaries has received any notice to the effect that any part of
its operations or properties is not in material compliance with any such law,
rule, regulation or order or notice that it or its property is the subject of
any governmental investigation evaluating whether any remedial action is needed
to respond to any release of any toxic or hazardous waste or substance into the
environment, the consequences of which non-compliance or remedial action could
constitute an Adverse Event.
Section 7.10 ERISA. Each Plan complies with all material applicable
-----
requirements of ERISA and the Code and with all material applicable rulings and
regulations issued under the provisions of ERISA and the Code setting forth
those requirements, where the consequences of which non-compliance could
constitute an Adverse Event. No Reportable Event has occurred and is continuing
with respect to any Plan. All of the minimum funding standards applicable to
such Plans have been satisfied and there exists no event or condition which
would permit the institution of proceedings to terminate any Plan under Section
4042 of ERISA. The current value of the Plans' benefits guaranteed under Title
IV of ERISA does not exceed the current value of the Plans' assets allocable to
such benefits.
Section 7.11 Regulation U. Neither Worldwide nor any of its Restricted
------------
Subsidiaries is engaged in the business of extending credit for the purpose of
purchasing or carrying margin stock (as defined in Regulation U of the Federal
Reserve Board), and no part of the proceeds of any Loan will be used to purchase
or carry margin stock or for any other purpose which would violate any of the
margin requirements of the Board of the Governors of the Federal Reserve System.
Section 7.12 Ownership of Property; Liens. Worldwide and each of its
----------------------------
Restricted Subsidiaries have good and marketable title to their respective real
properties and good and sufficient title to their respective other properties,
including all properties and assets referred to in the audited financial
statements of Worldwide referred to in Section 7.5 (other than property
-----------
disposed of since the date of such financial statements in the ordinary course
of business). None of the properties, revenues or assets of Worldwide or any or
its Restricted Subsidiaries is subject to a Lien, except for: (a) Liens listed
on Schedule 7.12 attached hereto and incorporated herein by reference; or
-------------
(b) Liens allowed under Section 9.7.
-----------
23
Section 7.13 Indebtedness. Except for Indebtedness permitted by Section
------------ -------
9.6, neither Worldwide nor any of its Restricted Subsidiaries has any
---
Indebtedness.
Section 7.14 Guaranty of Suretyship. Except for Contingent Obligations
----------------------
permitted by Section 9.8, neither Worldwide nor any of its Restricted
-----------
Subsidiaries is a party to any contract of guaranty or suretyship and none of
its assets is subject to such a contract.
Section 7.15 Taxes. Worldwide and each of its Restricted Subsidiaries
-----
have filed all federal, state and local tax returns required to be filed and
have paid or made provision for the payment of all taxes due and payable
pursuant to such returns and pursuant to any assessments made against any such
Person or any of its property and all other taxes, fees and other charges
imposed on any such Person or any of its property by any governmental authority
(other than taxes, fees or charges the amount or validity of which is currently
being contested in good faith by appropriate proceedings and with respect to
which reserves in accordance with GAAP have been provided on the books of
Worldwide). No tax Liens have been filed and no material claims are being
asserted with respect to any such taxes, fees or charges. The charges, accruals
and reserves on the books of Worldwide and each of its Restricted Subsidiaries
in respect of taxes and other governmental charges are adequate to pay and
discharge such taxes.
Section 7.16 Trademarks, Patents. Worldwide and each of its Restricted
-------------------
Subsidiaries possess or have the right to use all of the patents, trademarks,
trade names, service marks and copyrights, and applications therefor, and all
technology, know-how, processes, methods and designs used in or necessary for
the conduct of their respective businesses, without known conflict with the
rights of others. Schedule 7.16 attached hereto and incorporated herein by
-------------
reference is a complete list of all such property.
Section 7.17 Investment Company Act. Neither Worldwide nor any of its
----------------------
Subsidiaries is an "investment company" or is "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
Section 7.18 Public Utility Holding Company Act. Neither Worldwide nor
----------------------------------
any of its Subsidiaries is a "holding company" or a "subsidiary company" of a
holding company or an "affiliate" of a holding company or of a subsidiary
company of a holding company within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
Section 7.19 Subsidiaries. Schedule 7.19 attached hereto and incorporated
------------ -------------
herein by reference sets forth as of the date of this Agreement a list of all of
Worldwide's Subsidiaries.
Section 7.20 Partnerships and Joint Ventures. Schedule 7.20 attached
------------------------------- -------------
hereto and incorporated herein by reference sets forth as of the date of this
Agreement a list of all partnerships or joint ventures in which Worldwide or any
of its Restricted Subsidiaries is a partner (limited or general) or joint
venturer.
Section 7.21 Use of Proceeds. The Revolving Loans will be used for the
---------------
Borrower's general corporate purposes.
Section 7.22 Solvency. Each Loan Party is Solvent after giving effect to
--------
the making of the Loans in the full amount available hereunder, the incurrence
of the Indebtedness pursuant to the Loan Documents, the granting of Liens
pursuant to the Loan Documents.
Section 7.23 Insurance. Schedule 7.23 attached hereto and incorporated
--------- -------------
herein by reference sets forth a summary of the property and casualty insurance
program carried by Worldwide or any of its Restricted Subsidiaries on the date
hereof, including any self-insurance or risk assumption agreed to by any such
Person or imposed upon any such Person by any such insurer.
24
Section 7.24 Contracts; Labor Matters. (a) Neither Worldwide nor any of
------------------------
its Restricted Subsidiaries is a party to any contract or agreement, or subject
to any charge, corporate restriction, judgment, decree or order, the performance
of which could constitute an Adverse Event; and (b) on the date of this
Agreement: (i) neither Worldwide nor any of its Restricted Subsidiaries is a
party to any labor dispute; and (ii) there are no strikes or walkouts relating
to any labor contracts to which any such Person is subject.
Section 7.25 Accuracy of Information. All factual information heretofore
-----------------------
or herewith furnished by any Loan Party to the Administrative Bank or any Bank
for purposes of or in connection with this Agreement or any transaction
contemplated hereby is, and all other such factual information hereafter
furnished by any Loan Party to the Administrative Bank or any Bank will be, true
and accurate in every material respect on the date as of which such information
is dated or certified and no such information contains any material misstatement
of fact or omits to state a material fact or any fact necessary to make the
statements contained therein not misleading.
Section 7.26 Capital Stock. As of the Closing Date, the stock ownership of
-------------
the Borrower and each of its Restricted Subsidiaries is set forth on Schedule
--------
7.26 attached hereto and incorporated herein by reference. All of the issued
----
and outstanding shares of capital stock of the Borrower and each of the
Restricted Subsidiaries is duly authorized, validly issued, fully paid and
nonassessable. Except as set forth in said Schedule 7.26, neither the Borrower
-------------
nor any of its Restricted Subsidiaries has granted or issued, and has not agreed
to grant or issue, any options, warrants or similar rights to any Person to
acquire any shares of, or other securities convertible into, the Borrower's or
such Subsidiaries' capital stock.
Section 7.27 Year 2000. Worldwide has reviewed and assessed its and each
---------
of its Restricted Subsidiaries' respective business operations and computer
systems and applications to address the "year 2000 problem" (that is, that
computer applications and equipment used by Worldwide or such Restricted
Subsidiary, directly or indirectly through third parties, may be unable to
properly perform date-sensitive functions before, during and after January 1,
2000). The Borrower reasonably believes that the year 2000 problem will not
result in a material adverse change in Worldwide's or any of its Restricted
Subsidiaries' business condition (financial or otherwise), operations,
properties or prospects or ability to repay the Banks. The Borrower agrees that
this representation will be true and correct on and shall be deemed made by the
Borrower on each date the Borrower requests any Loan under this Agreement or any
Note or delivers any information to the Bank. The Borrower will promptly
deliver, and will cause Worldwide to deliver, to the Administrative Bank and
the Banks such information relating to this representation as the Administrative
Bank or the Required Banks request from time to time.
Section 7.28 PACA. With respect to the portion of the Borrower's or any
----
of its Restricted Subsidiaries' respective business operations that are subject
to PACA, such Person has received a valid PACA License without having to post
any bond required by PACA as a condition to issuing such PACA License and such
PACA License is in good standing.
Section 7.29 Survival of Representations. All representations and
---------------------------
warranties contained in this Article VII shall survive the delivery of the Notes
-----------
and the making of the Loans evidenced thereby, and any investigation at any time
made by or on behalf of the Administrative Bank or any Bank shall not diminish
their rights to rely thereon.
ARTICLE VIII
------------
AFFIRMATIVE COVENANTS
From the date of this Agreement and thereafter until the Commitment is
terminated or expires and the Loans and all other Obligations of the Borrower to
the Banks hereunder and under the Notes and the other Loan Documents have been
paid in full, unless the Required Banks shall otherwise expressly consent in
writing, the Borrower will do, and will cause Worldwide and each of its
Restricted Subsidiaries to do, all of the following:
25
Section 8.1 Financial Statements and Reports. Furnish to the
--------------------------------
Administrative Bank with sufficient copies for each Bank to receive its own copy
thereof:
(a) As soon as available and in any event within 120 days after the
end of each fiscal year of the Borrower, the annual audit report of
Worldwide (which may be included in Worldwide's 10K Reports described
below), prepared in conformity with GAAP, consisting of at least
consolidated statements of operations and retained earnings and cash flows,
and a consolidated balance sheet as at the end of such year, setting forth
in each case in comparative form corresponding figures from the previous
annual audit, certified without qualification by independent certified
public accountants of recognized standing selected by the Borrower and
acceptable to the Required Banks together with the related unaudited
consolidating statements. The Administrative Bank and the Banks agree that
Xxxxxx Xxxxxxxx LLP are acceptable independent certified public
accountants.
(b) As soon as available and in any event within 45 days after the end
of each fiscal quarter of each fiscal year, a copy of the unaudited
consolidated financial statements of Worldwide (which may be included in
Worldwide's 10Q Reports described below), prepared in conformity with GAAP
(except for the omission of footnotes and prior period comparative data
required by GAAP and for variations from GAAP which in the aggregate are
not material) consisting of a consolidated balance sheet as of the close of
such fiscal quarter and related consolidated statements of operations and
retained earnings and cash flow for such fiscal quarter and from the
beginning of such fiscal year to the end of such fiscal quarter and
comparative figures for the corresponding portion of the preceding fiscal
year together with the related unaudited consolidating statements.
(c) As soon as available, and in any event within 45 days after the
end of each quarter of each fiscal year, a compliance certificate (the
"Compliance Certificate") in the form of Exhibit D attached hereto signed
---------
by the Borrower's chief financial officer.
(d) As soon as available and in any event within 10 days after the
filing thereof, a copy of Worldwide's 10K Report (or any successor report)
filed with the SEC.
(e) As soon as available and in any event within 10 days after the
filing thereof (but in no event later than 55 days after the end of each of
the first three (3) fiscal quarters of each fiscal year of Worldwide), a
copy of Worldwide's 10Q Report (or any successor report) filed with the
SEC.
(f) As soon as available and in any event within 30 days after the
filing thereof, a copy of any other report not described above (other than
Form 4) which is filed by Worldwide or any of its Subsidiaries with the
SEC.
(g) Immediately upon becoming aware of any Default or Event of
Default, a notice describing the nature thereof and what action the
Borrower proposes to take with respect thereto.
(h) Immediately upon becoming aware of the occurrence, with respect to
any Plan, of any Reportable Event or any "prohibited transaction" (as
defined in Section 4975 of the Code), a notice specifying the nature
thereof and what action the Borrower proposes to take with respect thereto,
and, when received, copies of any notice from PBGC of intention to
terminate or have a trustee appointed for any Plan.
(i) Immediately upon becoming aware of the occurrence thereof, notice
of the institution of any litigation, arbitration or governmental
proceeding against Worldwide, any of its Restricted Subsidiaries or any of
such Person's property which, if determined adversely to such Person, could
constitute an Adverse Event, or the rendering of a judgment or decision in
such litigation or proceeding which constitutes an Adverse Event, and the
steps being taken by such Person with respect thereto.
26
(j) Immediately upon becoming aware of the occurrence thereof, notice
of any violation as to any environmental matter by Worldwide or any of its
Restricted Subsidiaries and of the commencement of any judicial or
administrative proceeding relating to health, safety or environmental
matters: (i) in which an adverse determination or result could result in
the revocation of or have a material adverse effect on any operating
permits, air emission permits, water discharge permits, hazardous waste
permits or other permits held by any such Person which are material to the
operations of such Person; or (ii) which will or threatens to impose a
material liability on any such Person to any other Person or which will
require a material expenditure by any such Person to cure any alleged
problem or violation.
(k) From time to time, such other information regarding the business,
operation and financial condition of the Borrower as the Administrative
Bank or the Required Banks may reasonably request.
Section 8.2 Corporate Existence. Except as permitted by Section 9.1,
------------------- -----------
maintain its corporate existence and good standing under the laws of its
jurisdiction of incorporation and its qualification to transact business in each
jurisdiction in which the character of the properties owned, leased or operated
by it or the business conducted by it makes such qualification necessary and
where the failure to so qualify could constitute an Adverse Event.
Section 8.3 Insurance. Maintain with financially sound and reputable
---------
insurance companies such insurance as may be required by any Loan Document or by
law and such other insurance in such amounts and against such hazards as is
customary in the case of reputable corporations engaged in the same or similar
business and similarly situated.
Section 8.4 Payment of Taxes and Claims. File all tax returns and reports
---------------------------
which are required by law to be filed by it and pay before they become
delinquent all taxes, assessments and governmental charges and levies imposed
upon it or its property and all claims or demands of any kind (including,
without limitation, those of suppliers, mechanics, carriers, warehouses,
landlords and other like Persons) which, if unpaid, might result in the creation
of a Lien upon its property; provided that the foregoing items need not be paid
if they are being contested in good faith by appropriate proceedings, and as
long as Worldwide's or any of its Restricted Subsidiaries' title to its property
is not materially adversely affected, its use of such property in the ordinary
course of its business is not materially interfered with and adequate reserves
with respect thereto have been set aside on such Person's books in accordance
with GAAP; provided, however, that, in all events, such Person shall pay or
-------- -------
cause to be paid all such taxes, assessments, charges or levies forthwith upon
the commencement of foreclosure of any Lien which may have attached as security
therefor.
Section 8.5 Inspection. After the occurrence and during the continuance
----------
of any Default or Event of Default, permit any Person designated by the
Administrative Bank or any Bank to visit and inspect any of its properties,
corporate books and financial records, to examine and to make copies of its
books of accounts and other financial records, and to discuss the affairs,
finances and accounts of Worldwide or any of its Subsidiaries with, and to be
advised as to the same by, its officers at such reasonable times and intervals
as the Administrative Bank or any Bank may designate. Such visits, inspections,
and examinations made while any Event of Default is continuing shall be at the
expense of the Borrower.
Section 8.6 Maintenance of Properties. Intentionally omitted.
-------------------------
Section 8.7 Books and Records. Keep adequate and proper records and books
-----------------
of account in which full and correct entries will be made of its dealings,
business and affairs.
Section 8.8 Compliance. Comply in all material respects with all laws,
----------
rules, regulations, orders, writs, judgments, injunctions, decrees or awards to
which it may be subject.
Section 8.9 ERISA. Maintain each Plan in compliance with all material
-----
applicable requirements of ERISA and of the Code and with all material
applicable rulings and regulations issued under the provisions of ERISA and of
the Code.
27
Section 8.10 Environmental Matters. Observe and comply with all laws,
---------------------
rules, regulations and orders of any government or government agency relating to
health, safety, pollution, hazardous materials or other environmental matters
to the extent non-compliance could result in a material liability or otherwise
could constitute or result in an Adverse Event.
Section 8.11 Additional Loan Parties. By no later than five (5) Business
-----------------------
Days after the Administrative Bank, at the Required Banks' direction, has
delivered a request to the Borrower that one or more of the Borrower's
Subsidiaries guaranty the Obligations, cause the relevant Subsidiary to execute
and deliver a Guaranty together with authorizing resolutions and such other
organizational documents, certificates of good standing, opinions of counsel and
other documents as the Administrative Bank may reasonably require. The Borrower
acknowledges and agrees that the Required Banks may require that such Guaranties
be executed and delivered at any time and from time to time and for any or no
reason.
ARTICLE IX
----------
NEGATIVE COVENANTS
From the date of this Agreement and thereafter until the Commitment and
each Letter of Credit is terminated or expires and the Loans and all other
Obligations of the Borrower to the Administrative Bank and Banks hereunder and
under the Notes and the other Loan Documents have been paid in full, unless the
Required Banks shall otherwise expressly consent in writing, the Borrower will
not do, and will not permit Worldwide or any of its Restricted Subsidiaries to
do, any of the following:
Section 9.1 Merger. Merge or consolidate or enter into any analogous
------
reorganization or transaction with any Person except for any such transaction
whereby: (a) any of the Borrower's Subsidiaries may merge or consolidate with
the Borrower or any other of the Borrower's Subsidiaries or any other Person so
long as: (a) the Borrower is the surviving corporation in any transaction
involving it; or (b) (i)the Borrower Subsidiaries is the surviving corporation
in any transaction involving it and a Person other than the Borrower or any
other of the Borrower's Subsidiaries; (ii) at the beginning of the Measurement
Period ending on the immediately preceding Quarterly Measurement Date, the
Borrower will be in Pro Forma Compliance; and (iii) no Default or Event of
Default has occurred and is continuing or would result from the consummation of
any proposed merger, consolidation or analogous reorganization or transaction;
provided, however, that the Borrower agrees to give the Administrative Bank
-------- -------
and the Banks at least 15 days' prior written notice of any such transaction
involving the Borrower or any of its Subsidiaries.
Section 9.2 Plans. Permit any condition to exist in connection with any
-----
Plan which might constitute grounds for the PBGC to institute proceedings to
have such Plan terminated or a trustee appointed to administer such Plan; permit
any Plan to terminate under any circumstances which would cause the Lien
provided for in Section 4068 of ERISA to attach to any property, revenue or
asset of the Borrower or any of its ERISA Affiliates; or permit the underfunded
amount of Plan benefits guaranteed under Title IV of ERISA to exceed
$500,000.00.
Section 9.3 Change in Nature of Business. Make any material change in the
----------------------------
nature of the business of Worldwide or any of its Restricted Subsidiaries as
carried on at the date hereof.
Section 9.4 Other Agreements. Enter into any agreement, bond, note or
----------------
other instrument with or for the benefit of any Person other than the
Administrative Bank for itself and the ratable benefit of the Banks which would:
(a) prohibit Worldwide or any of its Restricted Subsidiaries from granting, or
otherwise limit the ability of any such Person to grant to the Administrative
Bank for itself and the ratable benefit of the Banks any Lien on any assets or
properties of such Person; or (b) be violated or breached by any Loan Party's
performance of its obligations under the Loan Documents.
28
Section 9.5 Investments. Acquire for value, make, have or hold any
-----------
Investments, except:
(a) Investments outstanding on the date hereof and listed on Schedule
--------
9.5 attached hereto and incorporated herein by reference;
---
(b) Travel advances to officers and employees in the ordinary course
of business;
(c) Investments in readily marketable direct obligations of the United
States of America having maturities of one year or less from the date of
acquisition;
(d) Certificates of deposit or bankers' acceptances, each maturing
within one year from the date of acquisition, issued by: (a) a Bank; or (b)
any commercial bank organized under the laws of the United States or any
State thereof which has: (i) combined capital, surplus and undivided
profits of at least $100,000,000; and (ii) a credit rating with respect to
its unsecured indebtedness from a nationally recognized rating service that
is satisfactory to the Required Banks;
(e) Commercial paper maturing within 270 days from the date of
issuance and given the highest rating by a nationally recognized rating
service;
(f) Repurchase agreements relating to securities issued or guaranteed
as to principal and interest by the United States of America;
(g) Extensions of credit in the nature of accounts or notes receivable
arising from the sale of goods and services in the ordinary course of
business to non-Related Parties;
(h) Shares of stock, obligations or other securities received in
settlement of claims arising in the ordinary course of business;
(i) Money market accounts acceptable to the Administrative Bank;
(j) Existing Investments in Subsidiaries;
(k) Additional Investments in Restricted Subsidiaries;
(l) Additional Investments in other Persons (other than then existing
Subsidiaries) after the date of this Agreement so long as: (i) at the
beginning of the Measurement Period ending on the immediately preceding
Quarterly Measurement Date, the Borrower will be in Pro Forma Compliance;
(ii) no Default or Event of Default has occurred and is continuing or would
result from the consummation of any proposed Investment; and (iii) if the
proposed Investment constitutes the acquisition of the integral part of
the business of another Person or the assets comprising such business or
part thereof, the Borrower agrees to give the Administrative Bank and the
Banks at least 15 days' prior written notice of any such transaction.
Section 9.6 Indebtedness. Incur, create, issue, assume or suffer to exist
------------
any Indebtedness except:
(a) Indebtedness under this Agreement;
(b) Current liabilities, other than for borrowed money, incurred in
the ordinary course of business;
(c) Indebtedness existing on the date of this Agreement and disclosed
on the Borrower's September 30, 1999 balance sheet previously delivered to
the Banks or Indebtedness incurred subsequent to the date of such balance
sheet and disclosed on Schedule 9.6 attached hereto and incorporated herein
------------
by
29
reference; provided, however, that any such Indebtedness shall not be
-------- -------
refinanced without the express written consent of the Administrative Bank
and the Required Banks;
(d) Indebtedness consisting of endorsements for collection, deposit or
negotiation and warranties of products or services, in each case incurred
in the ordinary course of business;
(e) Indebtedness of the Borrower incurred to any Subsidiary or by any
Subsidiary to another Subsidiary; and
(f) Other Indebtedness so long as: (i) at the time and after giving
effect to the pro forma effect of such transaction as if it had occurred at
the beginning of the Measurement Period ending on the immediately
preceding Quarterly Measurement Date, the Borrower will be in Pro Forma
Compliance; and (ii) no Default or Event of Default has occurred and is
continuing or would result from the incurrence of the proposed
Indebtedness.
Section 9.7 Liens. Create, incur, assume or suffer to exist any Lien with
-----
respect to any property, revenues or assets now owned or hereafter arising or
acquired, except:
(a) Liens existing on the date of this Agreement and disclosed on
Schedule 7.12 hereto;
-------------
(b) Liens securing Purchase Money Indebtedness incurred in connection
with capital expenditures made after the date of this Agreement by way of
purchase money security interest, purchase money mortgage, conditional sale
or other title retention agreement, Capitalized Lease or other deferred
payment contract, and attaching only to the property being acquired,
provided that the Indebtedness secured thereby is permitted to be incurred
pursuant to Section 9.6(f) and does not exceed the lesser of the purchase
--------------
price or the fair market value of such property at the time of its
acquisition;
(c) Deposits or pledges to secure payment of workers' compensation,
unemployment insurance, old age pensions or other social security
obligations, in the ordinary course of business of the Borrower or any of
its Restricted Subsidiaries;
(d) Liens for taxes, fees, assessments and governmental charges not
delinquent or to the extent that payments therefor shall not at the time be
required to be made in accordance with the provisions of Section 8.4;
-----------
(e) Liens of carriers, warehousemen, mechanics and materialmen, and
other like Liens arising in the ordinary course of business, for sums not
due or to the extent that payment therefor shall not at the time be
required to be made in accordance with the provisions of Section 8.4;
-----------
(f) Liens securing lease obligations so long as such Liens attach only
to the property then being leased, do not attach to any of the Borrower's
or current assets, and do not secure any other indebtedness;
(g) Deposits to secure the performance of bids, trade contracts,
leases, statutory obligations and other obligations of a like nature
incurred in the ordinary course of business; and
(h) Zoning restrictions, easements, licenses, restrictions on the use
of real property or minor irregularities in title thereto, which do not
materially impair the use of such property in the operation of the
Borrower's business or the value of such property for the purpose of such
business.
Section 9.8 Contingent Liabilities. Either: (a) endorse, guarantee,
----------------------
contingently agree to purchase or to provide funds for the payment of, or
otherwise become contingently liable upon, any obligation of any other Person,
except: (i) by the endorsement of negotiable instruments for deposit or
collection (or similar transactions) in the
30
ordinary course of business; or (ii) Indebtedness permitted by Section 9.6; or
-----------
(b) agree to maintain the net worth or working capital of, or provide funds to
satisfy any other financial test applicable to, any other Person.
Section 9.9 Transactions with Related Parties. (a) Permit the direct or
---------------------------------
indirect transfer, distribution or payment of any of its funds, assets or
property to any Related Party, except that Worldwide or any of its Restricted
Subsidiaries may pay: (i) bona fide employee compensation (including benefits)
to Related Parties for services actually rendered to such Person; (ii) expenses
incurred by an employee in the ordinary course of business; (iii) expenses or
rents for services or property or the use thereof allocated to such Person; (iv)
Permitted Distributions to the extent permitted by Section 9.15; and (v) other
------------
amounts permitted to be paid by other subsections of this Section; provided,
-------- --------
however, that all such payments pursuant to subsections (a)(i), (ii) and (iii)
-------
shall not exceed the amount which would be payable in a comparable arm's length
transaction with a third party who is not a Related Party; (b) lend or advance
money, credit or property to any Related Party except as otherwise by other
subsections of this Section; (c) invest in (by capital contribution or
-------
otherwise) or purchase or repurchase any stock or indebtedness, or any assets or
properties, of any Related Party except as permitted by Section 9.15 or
------------
otherwise permitted by other subsections of this Section; or (d) guarantee,
-------
assume, endorse or otherwise become responsible for, or enter into any agreement
or instrument for the purpose of discharging or assuming (directly or
indirectly, through the purchase of goods, supplies or services or otherwise)
the indebtedness, performance, capability, obligations, dividends or agreement
for the furnishing of funds of any Related Party or any officer, director or
employee thereof except for the Guaranties permitted by Section 9.6 or otherwise
-----------
permitted by other subsections of this Section.
-------
Section 9.10 Use of Proceeds. Permit any proceeds of the Loans to be
---------------
used, either directly or indirectly, for the purpose, whether immediate,
incidental or ultimate, of "purchasing or carrying any margin stock" within the
meaning of Regulation U of the Federal Reserve Board, as amended from time to
time, and furnish to the Bank upon its request, a statement in conformity with
the requirements of Federal Reserve Form U-l referred to in Regulation U.
Section 9.11 Fiscal Year. Change its fiscal year-end from December 31.
-----------
Section 9.12 Interest Coverage Ratio. Permit, as of any Quarterly
-----------------------
Measurement Date, commencing with the Quarterly Measurement Date occurring on
December 31, 1999, the Interest Coverage Ratio to be less than 19.00 to 1.0.
Section 9.13 Leverage Ratio. Permit, as of any Quarterly Measurement
--------------
Date, commencing with the Quarterly Measurement Date occurring on December 31,
1999, the Leverage Ratio to be greater than 0.20 to 1.00.
Section 9.14 Net Worth. Permit, as of any Quarterly Measurement Date,
---------
commencing with the Quarterly Measurement Date occurring on December 31, 1999,
the Net Worth to be less than $215,000,000.00.
Section 9.15 Restricted Payments. Purchase or redeem any shares of its
-------------------
stock, declare or pay any dividends thereon (other than dividends payable solely
in the paying party's common stock and dividends payable to the Borrower), make
any distribution to stockholders as such, or set aside any funds for any such
purpose; except that: (a) any of Worldwide's direct or indirect wholly-owned
Subsidiaries may pay dividends to its corporate parent; and (b) Worldwide and
any of its less than wholly-owned Restricted Subsidiaries may pay dividends to
their respective shareholders and redeem or repurchase shares of their
respective stock or other equity interests so long as: (i) at the time and
after giving effect to the pro forma effect of such transaction as if it had
occurred at the beginning of the Measurement Period ending on the immediately
preceding Quarterly Measurement Date, the Borrower will be in Pro Forma
Compliance; and (ii) no Default or Event of Default has occurred and is
continuing or would result from the proposed dividend, repurchase or redemption.
31
Section 9.16 Unconditional Purchase Obligations . Enter into or be a
----------------------------------
party to any contract for the purchase or lease of materials, supplies or other
property or services if such contract requires that payment be made by it
regardless of whether or not delivery is ever made of such materials, supplies
or other property or services.
ARTICLE X
---------
EVENTS OF DEFAULT AND REMEDIES
Section 10.1 Events of Default. The occurrence of any one or more of the
-----------------
following events shall constitute an Event of Default upon the expiration of the
cure period, if any, described in the relevant event:
(a) The Borrower shall fail to make when due, whether by acceleration
or otherwise, any payment of principal of or interest on the Notes or any
fee or other amount required to be made to the Administrative Bank or any
Bank pursuant to any Loan Document; or
(b) Any representation or warranty made or deemed to have been made by
or on behalf of the Borrower or any other Loan Party in any of the Loan
Documents or by or on behalf of the Borrower or such other Loan Party in
any certificate, statement, report or other writing furnished by or on
behalf of the Borrower or such other Loan Party to the Banks pursuant to
the Loan Documents shall prove to have been false or misleading in any
material respect on the date as of which the facts set forth are stated or
certified or deemed to have been stated or certified; or
(c) The Borrower shall fail to comply with Section 8.1(g), Section
-------------- -------
8.2, Section 8.11 or any Section of Article IX hereof; or
------------ ----------
(d) Any Loan Party shall fail to comply with any agreement, covenant,
condition, provision or term contained in the Loan Documents on its part to
be performed (and such failure shall not constitute an Event of Default
under any of the other provisions of this Section 10.1) and such failure to
------------
comply shall continue for 30 calendar days after the earliest to occur of:
(A) the date the Borrower gives notice of such failure to the
Administrative Bank; (B) the date the Borrower should have given notice of
such failure to the Administrative Bank pursuant to Section 8.1(g); or (C)
--------------
the date the Administrative Bank gives notice of such failure to the
Borrower; or
(e) Any Loan Party shall become insolvent or shall generally not pay
its debts as they mature or shall apply for, shall consent to, or shall
acquiesce in the appointment of a custodian, trustee or receiver of such
Person or for a substantial part of the property thereof or, in the absence
of such application, consent or acquiescence, a custodian, trustee or
receiver shall be appointed for any such Person or for a substantial part
of the property thereof and shall not be discharged within 60 days; or
(f) Any bankruptcy, reorganization, debt arrangement or other
proceedings under any bankruptcy or insolvency law shall be instituted by
or against any Loan Party, and, if instituted against any such Person,
shall have been consented to or acquiesced in by such Person, or shall
remain undismissed for 60 days, or an order for relief shall have been
entered against any such Person, or any such Person shall take any
corporate action to approve institution of, or acquiesced in, such a
proceeding; or
(g) Any dissolution or liquidation proceeding shall be instituted by
or against any Loan Party and, if instituted against any such Person, shall
be consented to or acquiesced in by such Person or shall remain for 60 days
undismissed, or any such Person shall take any corporate action to approve
institution of, or acquiescence in, such a proceeding; or
(h) A judgment or judgments for the payment of money in excess of the
sum of $10,000,000.00 in the aggregate shall be rendered against any Loan
Party or any such Person shall not
32
discharge the same or provide for its discharge in accordance with its
terms, or procure a stay of execution thereof, prior to any execution on
such judgments by such judgment creditor, within 30 days from the date of
entry thereof, and within said period of 30 days, or such longer period
during which execution of such judgment shall be stayed, appeal therefrom
and cause the execution thereof to be stayed during such appeal; or
(i) The Borrower or any ERISA Affiliate shall institute steps to
terminate any Plan if in order to effectuate such termination, the Borrower
or any ERISA Affiliate would be required to make a contribution to such
Plan, or would incur a liability or obligation to such Plan, in excess of
$10,000,000.00, or the PBGC shall institute steps to terminate any Plan; or
(j) The maturity of any Indebtedness of any Loan Party (other than
Indebtedness under this Agreement or the other Loan Documents) in the
aggregate amount of more than $10,000,000.00 for any such Person shall be
accelerated, or any such Person shall fail to pay any such Indebtedness
when due or, in the case of such Indebtedness payable on demand, when
demanded, or any event shall occur or condition shall exist and shall
continue for more than the period of grace, if any, applicable thereto and
shall have the effect of causing, or permitting (any required notice having
been given and grace period having expired) the holder of any such
Indebtedness or any trustee or other Person acting on behalf of such holder
to cause such Indebtedness to become due prior to its stated maturity or to
realize upon any collateral given as security therefor; or
(k) Any creditor of any Loan Party shall commence foreclosure,
replevin or other proceedings against any of the Collateral and such
proceeding shall remain unstayed or unbonded for 10 consecutive days; or
(l) Any Change of Control shall occur; or
(m) If the validity or enforceability of any of the Loan Documents
shall be challenged by any Loan Party or any other party thereto, or any
Loan Document shall fail to remain in full force and effect; or
(n) If any part of Worldwide's or any of its Restricted Subsidiaries'
inventory is subject to PACA: (i) such Person's PACA License shall be
revoked or suspended; (ii) supplier, sellers or agents commence actions
seeking to enforce the trust created by PACA in an aggregate amount of
$1,000,000.00 for all such actions; or (iii) any surety company issuing
such Person's PACA Bond shall notify such Person of such surety's decision
not to renew such PACA Bond.
Section 10.2 Remedies. If: (a) any Event of Default described in
--------
Sections 10.1(e), (f) or (g) shall occur, the Commitment shall automatically
---------------- --- ---
terminate and the outstanding unpaid principal balance of the Notes, the accrued
interest thereon, the Letter of Credit Obligations and all other Obligations of
the Borrower shall automatically become immediately due and payable; or (b) any
other Event of Default shall occur and be continuing, then the Administrative
Bank, upon written direction from the Required Banks, shall take any or all of
the following actions: (i) declare the Commitment terminated, whereupon the
Commitment shall terminate; (ii) declare that the outstanding unpaid principal
balance of the Notes, the accrued and unpaid interest thereon, the Letter of
Credit Obligations and all other Obligations under the Loan Documents to be
forthwith due and payable, whereupon the Notes, all accrued and unpaid interest
thereon, the Letter of Credit Obligations and all such Obligations shall
immediately become due and payable, in each case without demand or notice of any
kind, all of which are hereby expressly waived, anything in this Agreement or
in the Notes to the contrary notwithstanding; (iii) exercise all rights and
remedies under any other instrument, document or agreement between the Borrower
and the Administrative Bank for the benefit of the Banks; and (iv) enforce all
rights and remedies under any applicable law.
Section 10.3 Prepayment Obligations. The Borrower agrees that if the
----------------------
Obligations become immediately due and payable in full at a time when one or
more Letters of Credit are outstanding, the Borrower shall thereupon
automatically be obligated to pay the Administrative Bank, in addition to all
other amounts owing under this
33
Agreement, the aggregate face amount of all Letters of Credit then outstanding.
The foregoing obligation to pay in advance for amounts which U. S. Bank may
later have to pay pursuant to the Letters of Credit is and shall at all times
constitute a part of the "Obligations". Amounts paid by the Borrower pursuant to
this Section 10.3 shall be made directly to an interest-bearing collateral
------------
account maintained at U. S. Bank for application to the Borrower's reimbursement
obligations under Section 2.7(d) as payments are made on the Letters of Credit,
--------------
with the balance, if any, to be applied to the other Obligations.
ARTICLE XI
THE ADMINISTRATIVE BANK
Section 11.1 Appointment and Authorization. Each Bank hereby appoints
-----------------------------
U.S. Bank as the Administrative Bank and authorizes the Administrative Bank to
act on such Bank's behalf to the extent provided herein or under any other Loan
Document or in connection therewith, and to take such other action and exercise
such other powers as may be reasonably incidental thereof. Each Bank hereby
agrees to be bound by the terms and conditions of the Borrower Security
Agreement and consents to the execution and delivery and/or acceptance of such
Loan Documents by the Administrative Bank.
Section 11.2 Power. The Administrative Bank shall have and may exercise
-----
such powers under this Agreement and any other Loan Documents as are
specifically delegated to the Administrative Bank by the terms hereof or
thereof, together with such powers as are reasonably incidental thereto. As to
any matters not expressly provided for by the Loan Documents (including, without
limitation, enforcement or collection of the Notes), the Administrative Bank
shall not be required to exercise any discretion or take any action, but shall
be required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Required Banks,
and such instructions shall be binding upon all Banks and all holders of the
Notes; provided, however, that the Administrative Bank shall not be required to
-------- -------
take any action which exposes the Administrative Bank to personal liability or
which is contrary to any Loan Document or applicable law. The Administrative
Bank shall not have any implied duties or any obligation to take any action
under this Agreement or any other Loan Document except such action as is
specifically provided by this Agreement or any other Loan Document to be taken
by the Administrative Bank. The Administrative Bank shall act as an independent
contractor in performing its obligations as Administrative Bank hereunder and
nothing contained herein shall be deemed to create a fiduciary relationship
among or between the Administrative Bank and the Borrower or among or between
the Administrative Bank and any Bank.
Section 11.3 Employment of Counsel; etc. The Administrative Bank may
---------------------------
execute any of its duties under this Agreement or any other Loan Document, and
any instrument, agreement or document executed, issued or delivered pursuant
hereto or in connection herewith, by or through employees, agents and attorneys-
in-fact and shall not be answerable to any of the Banks for the default or
misconduct of any such agent or attorney-in-fact selected by it with reasonable
care. The Administrative Bank shall be entitled to rely on advice of counsel
(including counsel who are the employees of the Administrative Bank) selected by
the Administrative Bank concerning all matters pertaining to the agency hereby
created and its duties under any of the Loan Documents.
Section 11.4 Reliance. The Administrative Bank shall be entitled to rely
--------
upon and shall not be under a duty to examine or pass upon the validity,
effectiveness or genuineness of any notice, consent, waiver, amendment,
certificate, affidavit, letter, telegram, statement, paper, document or writing
believed by it to be genuine and to have been signed or sent by the proper
Person or Persons, and the Administrative Bank shall be entitled to assume that
the same are valid, effective and genuine and what they purport to be.
Section 11.5 General Immunity. Neither the Administrative Bank nor any
----------------
of the Administrative Bank's directors, officers, agents, attorneys or employees
shall be liable to any Bank for any action taken or omitted to be taken by it or
them under the Loan Documents or in connection therewith except that the
Administrative Bank shall be obligated on the terms set forth herein for
performance of its express obligations hereunder and except that no
34
Person shall be relieved of any liability imposed by law for intentional tort or
gross negligence. Without limiting the generality of the foregoing, the
Administrative Bank: (a) shall not be responsible to any Bank for any recitals,
statements, warranties or representations under the Loan Documents or any
agreement or document relative thereto or for the financial condition of the
Borrower; (b) shall not be responsible for the authenticity, accuracy,
completeness, value, validity, effectiveness, due execution, legality,
genuineness, enforceability or sufficiency of any of the Loan Documents; (c)
shall not be responsible for the validity, genuineness, creation, perfection or
priority of any of the Liens created by any of the Loan Documents, or the
validity, genuineness, enforceability, existence, value or sufficiency of any
Collateral or other security; (d) shall not be bound to ascertain or inquire as
to the performance or observance of any of the terms, covenants or conditions of
any of the Loan Documents on the part of the Borrower or of any of the terms of
any such agreement by any party thereto and shall have no duty to inspect the
property (including the books and records) of the Borrower; (e) shall incur no
liability under or in respect of any of the Loan Documents or any other document
or Collateral by acting upon any notice, consent, certificate or other
instrument or writing (which may be by telegram, cable or telex) believed by the
Administrative Bank to be genuine and signed or sent by the proper party; and
(f) may consult with legal counsel (including counsel for the Borrower),
independent public accountants and other experts selected by the Administrative
Bank and shall not be liable for any action taken or omitted to be taken in
accordance with the advice of such counsel, accountants or experts.
Section 11.6 Credit Analysis. Each Bank has made, and shall continue to
---------------
make, its own independent investigation or evaluation of the operations,
business, property and condition, financial and otherwise, of the Borrower in
connection with the making of its commitments hereunder and has made, and will
continue to make, its own independent appraisal of the creditworthiness of the
Borrower. Without limiting the generality of the foregoing, each Bank
acknowledges that prior to the execution of this Agreement, it had this
Agreement and all other Loan Documents and such other documents or matters as it
deemed appropriate relating thereto reviewed by its own legal counsel as it
deemed appropriate, and it is satisfied with the form of this Agreement and all
other Loan Documents. Each Bank agrees and acknowledges that neither the
Administrative Bank nor any of its directors, officers, attorneys or employees
makes any representations or warranties about the creditworthiness of the
Borrower or with respect to the due execution, legality, validity, genuineness,
effectiveness, sufficiency or enforceability of this Agreement or any other Loan
Documents, or the validity, genuineness, execution, perfection or priority of
Liens created or reaffirmed by any of the Loan Documents, or the validity,
genuineness, enforceability, existence, value or sufficiency of any Collateral
or other security. Except as explicitly provided herein, neither the
Administrative Bank nor any Bank has any duty or responsibility, either
initially or on a continuing basis, to provide any other Bank with any credit or
other information with respect to the operations, business, property, condition
or creditworthiness of the Borrower or any other Loan Party, whether such
information comes into its possession on or before a Default or an Event of
Default or at any time thereafter; provided, however, that the Administrative
-------- -------
Bank agrees that it will promptly provide each Bank with copies of the financial
statements, other financial reports and notices received by the Administrative
Bank pursuant to Section 8.1 and, at the request of a Bank, a copy of any
-----------
Collateral audit performed by the Administrative Bank; provided further,
-------- -------
however, that neither the Administrative Bank nor any of its employees,
-------
officers, directors or agents makes any representation or warranty regarding any
information or analyses provided to any Bank, whether such information or
analyses was provided by the Borrower or prepared or obtained by the
Administrative Bank and none of the Administrative Bank or any of its employees,
officers, directors or agents shall be liable to any Person receiving a copy of
such information or analyses.
Section 11.7 U.S. Bank and Affiliates. With respect to its Commitments,
------------------------
the Loans made by it, the Notes issued to it and the Letter of Credit
Participations retained by it, U. S. Bank shall have the same rights and powers
under the Loan Documents as any other Bank and may exercise the same as though
it were not the Administrative Bank; and the term "Bank" or "Banks" shall,
unless otherwise expressly indicated, include U. S. Bank in its individual
capacity. U. S. Bank and its Affiliates may accept deposits from, lend money
to, act as trustee under indentures of, and generally engage in any kind of
business with the Borrower, and any person or entity who may do business with or
own securities of the Borrower, all as if U. S. Bank were not the Administrative
Bank and without any duty to account therefor to the Banks.
Section 11.8 Indemnification. The Banks severally agree to indemnify
---------------
and hold harmless the Administrative Bank and its officers, directors, employees
and agents (to the extent not reimbursed by the
35
Borrower), ratably according to their respective Percentages, from and against
any and all claims, liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by, or asserted against the
Administrative Bank or any of its officers, directors, employees or agents, in
any way relating to or arising out of any investigation, litigation or
proceeding concerning or relating to the transaction contemplated by this
Agreement or any of the other Loan Documents, or any of them, or any action
taken or omitted to be taken by the Administrative Bank or any of its officers,
directors, employees or agents, under any of the Loan Documents' provided,
--------
however, that no Bank shall be liable for any portion of such claims,
-------
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the gross negligence or willful
misconduct of the Administrative Bank or any of its officers, directors,
employees or agents. Without limitation of the foregoing, each Bank agrees to
reimburse the Administrative Bank promptly upon demand for such Bank's
Percentage of any out-of-pocket expenses (including counsel fees) incurred by
the Administrative Bank or its officers, directors, employees or agents in
connection with the preparation, execution, administration or enforcement of, or
obtaining legal advice in respect of rights or responsibilities under any of,
the Loan Documents, to the extent that the Administrative Bank is not reimbursed
for such expenses by the Borrower. If any indemnity furnished to the
Administrative Bank for any purpose shall, in the opinion of the Administrative
Bank, be insufficient or become impaired, the Administrative Bank may call for
additional indemnity and not commence or cease to do the acts indemnified
against until such additional indemnity is furnished.
Section 11.9 Successor Administrative Bank. The Administrative Bank may
-----------------------------
resign at any time as Administrative Bank under the Loan Documents by giving
written notice thereof to the Banks and the Borrower and may be removed as agent
under the Loan Documents at any time with or without cause by the Required
Banks. Upon any such resignation or removal, the Required Banks shall have the
right to appoint a successor Administrative Bank hereunder. If no successor
Administrative Bank shall have been so appointed by the Required Banks, and such
appointed successor shall have accepted such appointment, within 30 days after
the retiring Administrative Bank's giving of notice of resignation or the
Required Bank's removal of the retiring Administrative Bank, then the retiring
Administrative Bank may, on behalf of the Banks, appoint a successor
Administrative Bank, which shall be a commercial bank organized under the laws
of the United States or of any State thereof and having a combined capital and
surplus of at least $300,000,000.00. Upon the acceptance of any appointment as
Administrative Bank under the Loan Documents by a successor Administrative Bank,
such successor Administrative Bank shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring
Administrative Bank, and the retiring Administrative Bank shall be discharged
from its duties and obligations under the Loan Documents. After any retiring
Administrative Bank's resignation or removal as Administrative Bank under the
Loan Documents, the provisions of this Article XI shall inure to its benefit as
----------
to any actions taken or omitted to be taken by it while it was Administrative
Bank under the Loan Documents.
36
ARTICLE XII
-----------
MISCELLANEOUS
Section 12.1 Waiver and Amendment. No failure on the part of any Bank or
--------------------
the holder of any Note to exercise and no delay in exercising any power or right
hereunder or under any other Loan Document shall operate as a waiver thereof;
nor shall any single or partial exercise of any power or right preclude any
other or further exercise thereof or the exercise of any other power or right.
The remedies herein and in any other instrument, document or agreement delivered
or to be delivered to the Banks hereunder or in connection herewith are
cumulative and not exclusive of any remedies provided by law. No notice to or
demand on the Borrower not required hereunder or under any Note or any other
Loan Document shall in any event entitle the Borrower to any other or further
notice or demand in similar or other circumstances or constitute a waiver of the
right of the Banks or the holder of any Note to any other or further action in
any circumstances without notice or demand. The provisions of this Agreement and
each other Loan Document may from time to time be amended, modified or waived,
if such amendment, modification or waiver is in writing and consented to by the
Borrower (in the case of amendments or modifications) and by the Required Banks,
except that the consent of all Banks shall be required to: (a) extend or
increase the amount of the Commitment; (b) extend the maturity of any principal
or any installment of principal payable under any Note or any Letter of Credit
Obligation; (c) reduce the rate of interest payable with respect to any Note or
Letter of Credit Obligation or extend the date of the payment thereof; (d)
reduce the fees or any other payment obligations of the Borrower hereunder or
under any other Loan Document or extend the date of the payment thereof; (e)
release any material collateral except as otherwise expressly permitted by the
terms of the Loan Documents; (f) waive any Event of Default of the nature
described in Section 10.1(a); (g) reduce the aggregate Percentages required to
---------------
effect an amendment, modification, waiver or consent to this Agreement or any
other Loan Document; (h) change the definition of Required Banks; or (i) amend,
modify, supplement, or grant any waiver or consent, under this Section.
-------
Notwithstanding any other provisions of this Agreement, no amendment,
modification or waiver shall be made with respect to the provisions of any Loan
Document which affects the rights and obligations of the Administrative Bank
without the consent of the Administrative Bank. No amendment, modification or
waiver of any provision of this Agreement or consent to any departure by the
Borrower therefrom shall be effective unless the same shall be in writing and
signed by the Required Banks, and then such amendment, modification, waiver or
consent shall be effective only in the specific instances and for the specific
purpose for which given.
Section 12.2 Expenses and Indemnities.
------------------------
(a) Loan Documents. Whether or not any Loan is made, the Borrower
--------------
agrees to pay and reimburse the Administrative Bank, upon demand, for all
reasonable expenses paid or incurred by the Administrative Bank (including
filing and recording costs and fees and expenses of legal counsel, who may
be employees of the Administrative Bank, and including the costs of any
appraisals and environmental assessments) in connection with the
preparation, review, execution, delivery, amendment, modification or
interpretation of the Loan Documents. The Borrower agrees to pay and
reimburse the Administrative Bank and each Bank, upon demand, for all
reasonable expenses paid or incurred by the Administrative Bank or such
Bank (including reasonable fees and expenses of legal counsel, who may be
employees of the Administrative Bank or such Bank) in connection with the
collection and enforcement of the Loan Documents. The Borrower agrees to
pay, and save each Bank (including the Administrative Bank) harmless from
all liability for, any stamp or other taxes which may be payable with
respect to the execution or delivery of the Loan Documents. The Borrower
agrees to indemnify and hold each Bank (including the Administrative Bank)
harmless from any loss or expense which may arise or be created by the
acceptance of telephonic or other instructions for making Loans or
disbursing the proceeds thereof except for losses or expenses caused by
such Bank's or the Administrative Bank's, as the case may be, gross
negligence or willful misconduct. The obligations of the Borrower under
this Section 12.2 shall survive any termination of this Agreement.
------------
(b) General Indemnity. In addition to the payment of expenses
pursuant to Section 12.2(a), whether or not the transactions contemplated
---------------
hereby shall be consummated, the Borrower hereby
37
indemnifies, and agrees to pay and hold the Administrative Bank, each Bank,
any holder of any Notes, and their respective officers, directors,
employees, agents, successors and assigns (collectively called the
"Indemnitees") harmless from and against, any and all other liabilities,
-----------
obligations, losses, damages, penalties, actions, judgments, suits, claims,
costs, expenses and disbursements of any kind or nature whatsoever
(including, without limitation, the reasonable fees and disbursements of
counsel for any of such Indemnitees in connection with any investigative,
administrative or judicial proceeding commenced or threatened, whether or
not any of such Indemnitees shall be designated a party thereto), that may
be imposed on, incurred by, or asserted against the Indemnitees (or any of
them), in any manner relating to or arising out of the Loan Documents, the
statements contained in any commitment letters delivered by a Bank, the
Banks' several agreements to make the Loans, or the use or intended use of
the proceeds of any of the Loans (the "Indemnified Liabilities"); provided,
----------------------- --------
however, that the Borrower shall have no obligation to an Indemnitee
-------
hereunder with respect to Indemnified Liabilities arising from the gross
negligence or willful misconduct of such Indemnitee. To the extent that the
undertaking to indemnify, pay and hold harmless set forth in the preceding
sentence may be unenforceable because it is violative of any law or public
policy, the Borrower shall contribute the maximum portion that it is
permitted to pay and satisfy under applicable law, to the payment and
satisfaction of all Indemnified Liabilities incurred by the Indemnitees or
any of them.
(c) Survival. The obligations of the Borrower under this Section 12.2
-------- ------------
shall survive any termination of this Agreement.
Section 12.3 Notices. Except when telephonic notice is expressly
-------
authorized by this Agreement, any notice or other communication to any party in
connection with this Agreement shall be in writing and shall be sent by manual
delivery, telegram, telex, facsimile transmission, overnight courier or United
States mail (postage prepaid) addressed to such party at the address specified
on the signature page hereof, or at such other address as such party shall have
specified to the other party hereto in writing. All periods of notice shall be
measured from the date of delivery thereof if manually delivered, from the date
of sending thereof if sent by telegram, telex or facsimile transmission, from
the first Business Day after the date of sending if sent by overnight courier,
or from four days after the date of mailing if mailed; provided, however, that
any notice to the Administrative Bank or any Bank under Article II hereof shall
----------
be deemed to have been given only when received by the Administrative Bank or
such Bank, as the case may be. The Borrower hereby authorizes the Administrative
Bank and the Banks to rely upon the telephone or written instructions of any
person identifying himself as an authorized officer of the Borrower and upon any
signature which the Administrative Bank or the Banks believes to be genuine, and
the Borrower shall be bound thereby in the same manner as if such person were
authorized or such signature were genuine.
Section 12.4 Successors. This Agreement shall be binding upon the
----------
Borrower, the Administrative Bank, and the Banks and their respective successors
and assigns, and shall inure to the benefit of the Borrower, the Administrative
Bank, and the Banks and the successors and assigns of the Administrative Bank
and each Bank. The Borrower shall not assign its rights or duties hereunder
without the consent of the Administrative Bank and all of the Banks With the
prior written consent of the Administrative Bank, which shall not be
unreasonably withheld or delayed by the Administrative Bank, and upon the
payment to the Administrative Bank, solely for the account of the Administrative
Bank, of a fee of $3,500.00 for each assignment, a Bank may assign to a
financial institution a proportionate part of its rights and obligations under
this Agreement; provided, however, that, so long as no Event of Default has
-------- -------
occurred and is continuing, the assignment shall not be less than $10,000,000.00
(or, if a Bank's Individual Revolving Credit Commitment is less than
$10,000,000.00, then not less than the entire amount of such Bank's Individual
Revolving Credit Commitment) of the assigning Bank's Individual Revolving Credit
Commitment. Schedule A shall be amended to reflect each such assignment and the
----------
Borrower agrees to execute and deliver replacement notes to reflect such
assignment.
Section 12.5 Participations and Information. Each Bank may sell
------------------------------
participation interests in any or all of the Loans and in all or any portion of
its Individual Revolving Credit Commitment to any Person without the consent of
the Borrower, the Administrative Bank, or any other Bank.
38
Section 12.6 Severability. Any provision of this Agreement which is
------------
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
Section 12.7 Captions. The captions or headings herein and any table of
--------
contents hereto are for convenience only and in no way define, limit or describe
the scope or intent of any provision of this Agreement.
Section 12.8 Entire Agreement. This Agreement, the Notes and the other
----------------
Loan Documents embody the entire agreement and understanding between the
Borrower and the Administrative Bank and the Banks with respect to the subject
matter hereof and thereof. This Agreement supersedes all prior agreements and
understandings relating to the subject matter hereof.
Section 12.9 Counterparts. This Agreement may be executed in any number
------------
of counterparts, all of which taken together shall constitute one and the same
instrument, and either of the parties hereto may execute this Agreement by
signing any such counterpart.
Section 12.10 Governing Law. THE VALIDITY, CONSTRUCTION AND
-------------
ENFORCEABILITY OF THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY THE INTERNAL
LAWS OF THE STATE OF MINNESOTA, WITHOUT GIVING EFFECT TO CONFLICT OF LAWS
PRINCIPLES THEREOF, BUT GIVING EFFECT TO FEDERAL LAWS OF THE UNITED STATES
APPLICABLE TO NATIONAL BANKS.
Section 12.11 Consent to Jurisdiction. AT THE OPTION OF THE REQUIRED
-----------------------
BANKS, THIS AGREEMENT AND THE NOTES MAY BE ENFORCED IN ANY FEDERAL COURT OR
MINNESOTA STATE COURT SITTING IN MINNEAPOLIS OR ST. XXXX, MINNESOTA; AND THE
BORROWER CONSENTS TO THE JURISDICTION AND VENUE OF ANY SUCH COURT AND WAIVES ANY
ARGUMENT THAT VENUE IN SUCH FORUMS IS NOT CONVENIENT. IN THE EVENT THE BORROWER
COMMENCES ANY ACTION IN ANOTHER JURISDICTION OR VENUE UNDER ANY TORT OR CONTRACT
THEORY ARISING DIRECTLY OR INDIRECTLY FROM THE RELATIONSHIP CREATED BY THIS
AGREEMENT, THE REQUIRED BANKS AT THEIR OPTION SHALL BE ENTITLED TO HAVE THE CASE
TRANSFERRED TO ONE OF THE JURISDICTIONS AND VENUES ABOVE-DESCRIBED, OR IF SUCH
TRANSFER CANNOT BE ACCOMPLISHED UNDER APPLICABLE LAW, TO HAVE SUCH CASE
DISMISSED WITHOUT PREJUDICE.
39
Section 12.12 Waiver of Jury Trial. EACH OF THE ADMINISTRATIVE BANK, THE
--------------------
BANKS AND THE BORROWER WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS (a) UNDER THIS AGREEMENT OR UNDER ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE
FUTURE BE DELIVERED IN CONNECTION HEREWITH OR (b) ARISING FROM ANY BANKING
RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT, AND AGREES THAT ANY
SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
Section 12.13 Disclosure of Information. Subject to this Section, the
-------------------------
Borrower authorizes each Bank to disclose to any participant or assignee (each a
"Transferee") and any prospective Transferee any and all financial and other
Confidential Information (as hereinafter defined) in such Bank's possession
concerning the Loan Parties which has been delivered to such Bank by the Loan
Parties pursuant to this Agreement or which has been delivered to such Bank by
the Loan Parties in connection with such Bank's credit evaluation of the Loan
Parties prior to entering into this Agreement. The Administrative Bank and each
Bank agree that, except as may be required by applicable law or regulation, or
by reason of subpoena after providing notice thereof and an opportunity to
contest unless such notice is prohibited by the terms of the subpoena or
applicable law, court order or government action or as may be necessary or
convenient for the enforcement of the Administrative Bank's and the Banks'
rights and remedies under the Loan Documents or applicable law after the
occurrence of any Event of Default: (a) neither the Administrative Bank nor such
Bank will divulge, publish or otherwise reveal, either directly or through
another, to any Person (other than a Transferee or prospective Transferee) any
Confidential Information; (b) the Administrative Bank and such Bank will return
all Confidential Information to the relevant Loan Party after the termination of
the Administrative Bank's or such Bank's, as the case may be, interests in this
Agreement; and (c) the relevant Loan Party is entitled to injunctive relief
restraining any disclosure of Confidential Information in contravention of the
provisions of this Section without the prior written consent of the relevant
Loan Party. For purposes of this Agreement, "Confidential Information" shall
mean any proprietary information and, in particular, any confidential
information, including facts, business information, formulae, methods,
processes, inventions, devices, plant facilities or the like delivered to, or
received by, the Banks pursuant to Sections 8.1 or 8.5 or otherwise pursuant to
-------------------
the transactions contemplated by this Agreement except for any such information
which: (w) the relevant Loan Party identifies as not being confidential
information; (x) was known to the public prior to the date of its disclosure to
the Banks; (y) becomes known to the public subsequent to the date of its
disclosure by the Borrower through no act of the Banks; or (z) becomes known to
any Bank on a non-confidential basis from a source other than the Borrower.
40
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above.
X. X. XXXXXXXX WORLDWIDE, INC.
By /s/ Xxxx Xxxxxx
Its: Treasurer
0000 Xxxxxxxx Xxxx
Xxxx Xxxxxxx, XX 00000-0000
Attention: Xx. Xxxx Xxxxxx
Telecopier: (000) 000-0000
U. S. Bank National Association, as
Administrative Bank and a Bank
By /s/ Xxxx X. XxXxxxxx
Its Vice President
U. X. Xxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Attention: Mr. Xxxx XxXxxxxx
Telecopier: (000) 000-0000
Norwest Bank Minnesota, National Association
By /s/ Xxxxxxx X. Xxxxxxxx
Its Assistant Vice President
Norwest Center
Sixth Street and Marquette
Xxxxxxxxxxx, XX 00000
Attention: Mr. Xxxxx Xxxxxxxxx
Telecopier: (000) 000-0000
41
