Exhibit 10.90
REVOLVING CREDIT AGREEMENT
dated as of January 31, 1997
among
XXXXX XXXXXX, INC.
and
THE CHASE MANHATTAN BANK,
FLEET BANK, NATIONAL ASSOCIATION,
COOPERATIEVE CENTRALE RAIFFEISEN - BOERENLEENBANK, B.A.
"RABOBANK NEDERLAND", NEW YORK BRANCH AND
EUROPEAN AMERICAN BANK
TABLE OF CONTENTS
Page
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ARTICLE 1. DEFINITIONS; ACCOUNTING TERMS ................................... 1
Section 1.1. Definitions ................................................ 1
Section 1.2. Accounting Terms ............................................ 14
ARTICLE 2. REVOLVING CREDIT FACILITY ....................................... 15
Section 2.1. Revolving Credit Loans ...................................... 15
Section 2.2. The Revolving Credit Notes .................................. 15
Section 2.3. Use of Proceeds ............................................. 16
Section 2.4. Borrowing Procedure for Revolving Credit Loans .............. 16
Section 2.5. Minimum Amounts of Revolving Credit Loans ................... 17
Section 2.6. Interest Period Elections for Borrowings .................... 17
Section 2.7. Letters of Credit and Documentary Banker's Acceptances ...... 18
Section 2.8. Interest on Loans ........................................... 21
Section 2.9. Existing Letters of Credit and Documentary Banker's
Acceptances ............................................... 22
Section 2.10. Changes of Commitments ..................................... 22
ARTICLE 3. GENERAL CREDIT PROVISIONS; FEES AND PAYMENTS .................... 23
Section 3.1. Certain Notices ............................................. 23
Section 3.2. Prepayments ................................................. 23
Section 3.3. Commitment Fee .............................................. 23
Section 3.4. Usage Fee ................................................... 24
Section 3.5. Up Front Fee ................................................ 24
Section 3.6. Letter of Credit and Documentary Banker's Acceptance Fees ... 25
Section 3.7. Payments Generally .......................................... 26
Section 3.8. Judgment Currency ........................................... 27
Section 3.9. Foreign Exchange Indemnity .................................. 27
ARTICLE 4. YIELD PROTECTION, ETC ........................................... 28
Section 4.1. Certain Compensation ........................................ 28
Section 4.2. Additional Costs ............................................ 29
Section 4.3. Limitations on Types of Loans ............................... 30
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Section 4.4. Illegality .................................................. 30
Section 4.5. Certain LIBOR Loans Pursuant to Section 4.2, 4.3 and 4.4. 31
Section 4.6. Change of Lending Office .................................... 31
Section 4.7. Replacement of Banks ........................................ 31
Section 4.8. Survival .................................................... 32
ARTICLE 5. CONDITIONS PRECEDENT ............................................ 32
Section 5.1. Documentary Conditions Precedent ............................ 32
Section 5.2. Additional Conditions Precedent ............................. 34
Section 5.3. Deemed Representations ...................................... 34
ARTICLE 6. REPRESENTATIONS AND WARRANTIES .................................. 35
Section 6.1. Incorporation, Good Standing and Due Qualifications;
Compliance with Law ...................................................... 35
Section 6.2. Power and Authority; No Conflicts ........................... 35
Section 6.3. Legally Enforceable Agreements .............................. 36
Section 6.4. Litigation .................................................. 36
Section 6.5. Financial Statements; Other Liabilities ..................... 36
Section 6.6. Ownership and Liens ......................................... 37
Section 6.7. Taxes ....................................................... 37
Section 6.8. ERISA ....................................................... 37
Section 6.9. Subsidiaries and Ownership of Stock ......................... 38
Section 6.10. Credit Arrangements ........................................ 38
Section 6.11. Operation of Business ...................................... 38
Section 6.12. Hazardous Substances ....................................... 38
Section 6.13. No Default on Outstanding Judgments or Orders ............. 39
Section 6.14. Material Contracts ......................................... 39
Section 6.15. Labor Disputes and Acts of God ............................. 40
Section 6.16. Governmental Regulation .................................... 40
Section 6.17. Partnerships ............................................... 40
Section 6.18. No Forfeiture Proceeding ................................... 40
Section 6.19. No Default or Event of Default ............................. 40
Section 6.20. Solvency ................................................... 40
Section 6.21. Material Adverse Change .................................... 40
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Section 6.22. Name and Location........................................... 41
ARTICLE 7. AFFIRMATIVE COVENANTS............................................ 41
Section 7.1. Maintenance of Existence..................................... 41
Section 7.2. Conduct of Business.......................................... 41
Section 7.3. Maintenance of Properties.................................... 41
Section 7.4. Maintenance of Records....................................... 42
Section 7.5. Maintenance of Insurance..................................... 42
Section 7.6. Compliance with Laws......................................... 42
Section 7.7. Right of Inspection.......................................... 42
Section 7.8. Reporting Requirements....................................... 42
Section 7.9. Payment of Obligations....................................... 45
Section 7.10. Subsidiaries................................................ 46
ARTICLE 8. NEGATIVE COVENANTS............................................... 46
Section 8.1. Debt......................................................... 46
Section 8.2. Guarantees................................................... 47
Section 8.3. Liens........................................................ 47
Section 8.4. Investments................................................. 49
Section 8.5. Sale of Assets.............................................. 50
Section 8.6. Transactions with Affiliates................................. 50
Section 8.7. Mergers, Etc................................................. 51
Section 8.8. Acquisitions................................................ 51
Section 8.9. No Activities Leading to Forfeiture ......................... 52
Section 8.10. Corporate Documents; Fiscal Year ........................... 52
Section 8.11. Hazardous Substances; Use of Real Property ................. 52
Section 8.12. Dividends, etc ............................................. 52
Section 8.13. Material Change in Ownership ............................... 53
Section 8.14. Other Material Adverse Change .............................. 53
ARTICLE 9. FINANCIAL COVENANTS ............................................. 53
Section 9.1. Minimum Consolidated Net Worth .............................. 53
Section 9.2. Consolidated Maximum Capital Expenditures ................... 54
Section 9.3. Minimum Consolidated Cash Flow Coverage ..................... 54
Section 9.4. Consolidated Minimum Interest Coverage ...................... 55
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Section 9.5. Maximum Ratio of Consolidated Funded Debt to EBITDA.......... 55
ARTICLE 10. EVENTS OF DEFAULT .............................................. 55
Section 10.1. Events of Default .......................................... 55
Section 10.2. Remedies ................................................... 57
ARTICLE 11. THE AGENT; RELATIONS AMONG BANKS AND BORROWER .................. 58
Section 11.1. Appointment, Powers and Immunities of Agent ................ 58
Section 11.2. Reliance by Agent .......................................... 59
Section 11.3. Defaults ................................................... 59
Section 11.4. Rights of Agent as a Bank .................................. 59
Section 11.5. Indemnification of Agent ................................... 60
Section 11.6. Documents .................................................. 60
Section 11.7. Non-Reliance on Agent and Other Banks ...................... 60
Section 11.8. Failure of Agent to Act .................................... 61
Section 11.9. Resignation or Removal of Agent ............................ 61
Section 11.10. Amendments Concerning Agency Function ..................... 62
Section 11.11. Liability of Agent ........................................ 62
Section 11.12. Transfer of Agency Function ............................... 62
Section 11.13. Non-Receipt of Funds by the Agent ......................... 62
Section 11.14. Withholding Taxes ......................................... 62
Section 11.15. Several Obligations and Rights of Banks ................... 63
Section 11.16. Pro Rata Treatment of Loans, Etc .......................... 63
Section 11.17. Sharing of Payments Among Banks ........................... 63
ARTICLE 12. MISCELLANEOUS .................................................. 64
Section 12.1. Amendments and Waivers ..................................... 64
Section 12.2. Usury ...................................................... 64
Section 12.3. Expenses ................................................... 65
Section 12.4. Survival ................................................... 65
Section 12.5. Assignment; Participation .................................. 65
Section 12.6. Notices .................................................... 66
Section 12.7. Setoff ..................................................... 66
Section 12.8. Jurisdiction; Immunities ................................... 67
Section 12.9. Table of Contents; Headings ................................ 68
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Section 12.10. Severability .............................................. 68
Section 12.11. Counterparts .............................................. 68
Section 12.12. Integration ............................................... 68
Section 12.13. Governing Law ............................................. 68
Section 12.14. Confidentiality ........................................... 69
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REVOLVING CREDIT AGREEMENT (the "Agreement") dated as of January 31,
1997 among XXXXX XXXXXX, INC., a corporation organized under the laws of the
State of Delaware (the "Borrower"), THE CHASE MANHATTAN BANK, a New York banking
corporation ("Chase"), FLEET BANK, NATIONAL ASSOCIATION, a national banking
association organized under the laws of the United States of America ("Fleet"),
COOPERATIEVE CENTRALE RAIFFEISEN - BOERENLEENBANK, N.A. "RABOBANK NEDERLAND",
NEW YORK BRANCH, a corporation organized under the laws of the Netherlands
("Rabobank Nederland"), and EUROPEAN AMERICAN BANK, a New York banking
corporation ("EAB") (each of Chase, Fleet, Rabobank Nederland and EAB are,
individually, a "Bank", and collectively, the "Banks"), and Chase, as Agent for
the Banks.
WHEREAS, the Borrower has requested the Banks to extend credit to
the Borrower from time to time and the Banks are willing to extend such credit
in accordance with the terms of this Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1.
1. DEFINITIONS; ACCOUNTING TERMS
Section 1.1. Definitions.
As used in this Agreement the following terms have the following
meanings (terms defined in the singular to have a correlative meaning when used
in the plural and vice versa):
"Acquired Person" shall have the meaning given to such term in
Section 8.8 hereof.
"Acquisition" means any transaction pursuant to which the Borrower
or any of its Subsidiaries (a) acquires equity securities (or warrants, options
or other rights to acquire such securities) of any Person other than any Person
which is a Subsidiary of the Borrower, pursuant to a solicitation of tenders
therefor, or in one or more negotiated block, market or other transactions not
involving a tender offer, or a combination of any of the foregoing, or (b) makes
any Person a Subsidiary of the Borrower, or causes any such Person to be merged
into the Borrower or any of its respective Subsidiaries, in any case pursuant to
a merger, purchase of assets or any reorganization providing for the delivery or
issuance to the holders of such Person's then-outstanding securities, in
exchange for such securities, of cash or securities of the Borrower or any of
its Subsidiaries, or a combination thereof, or (c) purchases all or
substantially all of the business or assets of any Person.
"Additional Costs" shall have the meaning given to such term in
Article 4 hereof.
"Affiliate" means any Person: (a) which directly or indirectly
controls, or is controlled by, or is under common control with, the Borrower;
(b) which directly or indirectly beneficially owns or holds 25% or more of any
class of voting stock of the Borrower; (c) 25% or
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more of the voting stock or other voting interests of which is directly or
indirectly beneficially owned or held by Borrower; or (d) which is a partnership
in which the Borrower is a general partner. The term "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract, or otherwise.
"Agent" means The Chase Manhattan Bank, or its successors or
assigns.
"Aggregate Banker's Acceptance Outstandings" means, at a particular
time, the aggregate principal balance of outstanding Documentary Banker's
Acceptances created by the Agent on behalf of or for the benefit of the Borrower
pursuant hereto.
"Aggregate Letters of Credit Outstandings" means, at a particular
time, the sum of (a) the aggregate maximum amount at such time which is
available or available in the future to be drawn under all outstanding Letters
of Credit under this Agreement plus (b) the aggregate amount of any payments
made by the Agent on behalf of the Banks under any Letter of Credit under this
Agreement that has not been reimbursed by the Borrower or with respect to which
there has not been a conversion to Documentary Banker's Acceptances at such
time.
"Aggregate Outstandings" means, at a particular time, the sum of (a)
the Aggregate Letters of Credit Outstandings at such time plus (b) the Aggregate
Banker's Acceptance Outstandings, at such time plus (c) the Dollar Equivalent of
the aggregate outstanding principal amount of all Revolving Credit Loans.
"Agreement" means this Agreement, as amended or supplemented from
time to time. References to Articles, Sections, Exhibits, Schedules and the like
refer to the Articles, Sections, Exhibits, Schedules and the like of this
Agreement, unless otherwise indicated.
"Alternate Base Rate" means the rate of interest determined by the
Agent to be the higher of (i) the Federal Funds Rate plus 1/4 of 1% per annum or
(ii) the Prime Rate.
"Amortization" means amortization as determined in accordance with
GAAP.
"Applicable Currency" means, as to any particular payment or Loan,
the Approved Currency in which it is denominated or is payable.
"Applicable Currency Equivalent" means, with respect to an amount
denominated in Dollars which is to be converted to any other Applicable
Currency, the amount of such Applicable Currency required to purchase such
amount of Dollars at the Relevant Exchange Rate.
"Approved Currencies" means Dollars, Canadian Dollars, Australian
Dollars, British Pounds Sterling, Italian Lire, Deutsche Marks, Dutch Guilders,
French Francs, Belgian Francs, Swiss Francs, Japanese Yen, and, with the consent
of each of the Banks, any other currencies which are freely transferable and
convertible into Dollars and in which dealings in deposits are carried out in
the London interbank market.
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"Banking Day" means, as it relates to any payment, determination,
funding or notice to be made or given in connection with any Loan, or otherwise
to be made or given to or from the Agent with respect to such Loan, any day (a)
on which dealings in deposits in the Applicable Currency for such Loan are
carried out in the London interbank market, and (b) on which commercial banks
and foreign exchange markets are open for business in London, New York and the
principal financial center for such Applicable Currency.
"Banks" means Chase, Fleet, Rabobank Nederland and EAB, and any of
their permitted assigns pursuant to Section 12.5 hereof.
"Base Rate Loan" means any Revolving Credit Loan when and to the
extent the interest rate therefor is determined on the basis of the Alternate
Base Rate.
"Capital Expenditures" means the sum of (a) expenditures for any
fixed assets or improvements, replacements, substitutions, or additions thereto
which would be treated as capital expenditures in accordance with GAAP and (b)
the portion of all payments with respect to Capital Leases which are required to
be capitalized on the balance sheet of the lessee in accordance with GAAP.
"Capital Lease" means any lease which is required to be capitalized
on the balance sheet of the lessee in accordance with GAAP.
"Cash Collateral" means a Dollar deposit by the Borrower made in
immediately available funds to savings, checking or time deposit accounts at the
Banks (on a pro-rata basis in accordance with their respective Commitment
Proportions) for the purchase by the Borrower of certificates of deposit issued
by the Banks (on a pro-rata basis in accordance with their respective Commitment
Proportions) and the execution of all documents and the taking of all steps
required to give the Banks a perfected security interest in such deposits or
certificates of deposit.
"Closing Date" means the date this Agreement has been executed by
the Borrower and each of the Banks.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Commitment Fee" means the fees payable by the Borrower to the Banks
pursuant to Section 3.3 hereof.
"Commitment Proportion" means, with respect to each Bank at the time
of determination, that proportion that its Revolving Credit Commitment bears to
the Total Revolving Credit Commitment.
"Consolidated EBITDA" means, for any fiscal period, Consolidated Net
Income of the Borrower and its Subsidiaries less to the extent included in
determining Consolidated Net Income, all extraordinary gains plus to the extent
included in determining Consolidated Net Income in the same fiscal year as any
extraordinary gains are subtracted from the calculation of
3
Consolidated Net Income (and, only to the extent of such extraordinary gains),
extraordinary losses, plus Consolidated Interest Expense, plus to the extent
deducted in determining Consolidated Net Income, provisions for federal, state,
local and foreign income taxes, whether paid or deferred, plus to the extent
deducted in determining Consolidated Net Income, Depreciation and Amortization,
on a consolidated basis, of the Borrower and its Subsidiaries, plus to the
extent deducted in determining Consolidated Net Income, the aggregate amount of
(x) accretion expense with respect to options or rights to acquire the
Borrower's common stock and (y) any write-off of expenses arising in connection
with the Loans, plus the aggregate amount of non-cash expense associated with
the closure and post-closure reserves of a plant or facility owned by a Borrower
or a Subsidiary of the Borrower, plus the aggregate amount of all other Non-Cash
Charges not specifically listed above, plus stock contributions made by the
Borrower to the ESOP on a consolidated basis, all as determined in accordance
with GAAP.
"Consolidated Funded Debt" means, at a particular date, on a
consolidated basis, all Debt (including indebtedness incurred in connection with
Letters of Credit, Subordinated Debt, and all other Debt) of the Borrower and
its Subsidiaries having an original maturity of one year or more, including the
current portion of such Debt, other than guarantees by (x) the Borrower or (y)
any Subsidiary of the Debt of any Subsidiary reflected on the Borrower's
consolidated financial statements for such period.
"Consolidated Interest Expense" means, for a particular period, the
consolidated interest expense of the Borrower and its Subsidiaries as reflected
in the Borrower's consolidated financial statements for such period and
calculated in accordance with GAAP.
"Consolidated Net Income" means, for a particular period, the
consolidated net income of the Borrower and its Subsidiaries for such period,
determined in accordance with GAAP.
"Consolidated Net Profit" means, with respect to a particular
period, the net profit of the Borrower and its Subsidiaries on a consolidated
basis for such period, as reflected on the consolidated financial statements of
the Borrower and its Subsidiaries, and determined or calculated in accordance
with GAAP.
"Consolidated Net Worth" means, at any particular date, the amount
included under stockholders' equity, in accordance with GAAP, on the
consolidated balance sheet of the Borrower and its Subsidiaries as at such date,
but without giving any effect to any one-time change (positive or negative) in
Consolidated Net Worth attributable to changes in accounting principles
generally made applicable by the Financial Accounting Standards Board to
publicly traded domestic corporations.
"Consolidated Taxes" means, at a particular date, all amounts which
would, in conformity with GAAP, be included as Taxes on a consolidated balance
sheet of the Borrower and its Subsidiaries as at such date.
4
"Consolidated Total Assets" means, at a particular date, all amounts
which would, in conformity with GAAP, be included as assets on a consolidated
balance sheet of the Borrower and its Subsidiaries as at such date.
"Consolidated Total Liabilities" means, at a particular date, all
amounts which would, in conformity with GAAP, be included as liabilities on a
consolidated balance sheet of the Borrower and its Subsidiaries as at such date.
"Continuing Directors" means the directors of the Borrower on the
Closing Date, and each other director if such director's nomination for election
to the Board of Directors is recommended by a majority of the then-Continuing
Directors.
"Corporate Guarantors" means each of the Borrower's domestic
subsidiaries listed on the signature pages hereto.
"Credit Agreement" means that certain Amended and Restated Credit
Agreement, dated as of July 5, 1995, among the Borrower and the Banks, as such
agreement has been amended through the date hereof.
"Current Portion of Long-Term Debt" means, at any time, the portion
of any Debt which is classified as the current portion of long-term debt on the
consolidated financial statements of the Borrower and its Subsidiaries, and, in
the last year of the term of this Agreement, Current Portion of Long-Term Debt
shall include, but not be limited to, the Borrower's payment obligations with
regard to this Agreement.
"Debt" means with respect to any Person: (a) indebtedness of such
Person for borrowed money; (b) indebtedness for the deferred purchase price of
property or services; (c) Unfunded Vested Liabilities of such Person; (d) the
face amount of any outstanding letters of credit issued for the account of such
Person; (e) obligations arising under acceptance facilities; (f) guaranties,
endorsements (other than for collection in the ordinary course of business) and
other contingent obligations to purchase, to provide funds for payment, to
supply funds to invest in any Person, or otherwise to assure a creditor against
monetary loss; (g) obligations secured by any Lien on property of such Person;
(h) obligations of such Person as lessee under Capital Leases; and (i)
indebtedness of such Person evidenced by a note, bond, indenture or similar
instrument; provided, however, that for purposes of Article 9 hereof, (i) Debt
incurred in connection with off-balance sheet operating leases and (ii) Debt
secured by the Permitted Liens described in Sections 8.3 (a), 8.3 (b), 8.3 (c),
8.3 (d), and 8.3 (f), shall be excluded from the subject calculations.
"Default" means any event which with the giving of notice or lapse
of time, or both, would become an Event of Default.
"Default Rate" means a rate per annum equal to 2% above the rate of
interest otherwise (assuming no Event of Default has occurred and is continuing)
applicable to the relevant Loan.
5
"Depreciation" means depreciation as determined or calculated in
accordance with GAAP.
"Dividends" means, for any period, dividends paid by the applicable
Person.
"Documentary Banker's Acceptances" means banker's acceptances
created by the Agent accepting a draft drawn on the Agent in connection with or
in conjunction with Time Letters of Credit and which satisfy eligibility
requirements established by the Board of Governors of the Federal Reserve System
and the Agent's internal requirements as in effect from time to time.
"Dollar Equivalent" means (a) in relation to any amount denominated
in Dollars, such amount and (b) in relation to an amount denominated in any
Applicable Currency other than Dollars, the amount of Dollars which when
converted at the Exchange Rate would equal the principal amount of the Loan or
applicable payment in the Applicable Currency.
"Dollars" and the sign "$" mean lawful money of the United States of
America.
"Domestic Subsidiaries" means Subsidiaries formed, incorporated or
existing under the laws of, or which conduct substantially all of their business
in, the United States of America or any of its states.
"Election Date" has the meaning specified in Section 2.6(a).
"Eligible Transferee" shall mean a commercial bank, financial
institution or other institutional "accredited investor" (as defined in
Regulation D of the Securities Act of 1933, as amended); provided that the
short-term commercial paper rating from S&P of any such Person is at least A-1
or the equivalent thereof or from Xxxxx'x is at least P-1 or the equivalent
thereof.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions relating to the environment or to emissions,
discharges, releases or threatened releases of pollutants, contaminants,
chemicals, or industrial, toxic or hazardous substances or wastes into the
environment, including, without limitation, ambient air, surface water, ground
water, or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport, or handling of
pollutants, contaminants, chemicals, or industrial, toxic or hazardous
substances or wastes.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, including any rules and regulations promulgated
thereunder.
"ERISA Affiliate" means any corporation or trade or business which
is a member of the same controlled group of corporations (within the meaning of
Section 414(b) of the Code) as the Borrower or is under common control (within
the meaning of Section 414(c) of the Code) with the Borrower.
6
"ESOP" means the existing employee stock ownership plan
formed/maintained by the Borrower and its employees.
"Event of Default" shall have the meaning given such term in Section
10.1 hereof.
"Exchange Rate" means, in relation to the purchase of one currency
(the "first currency") with another currency (the "second currency"), the most
recent spot rate of exchange as published in the Exchange Rates Table of The
Wall Street Journal dated the date of such determination for the purchase of the
first currency with the second currency. If the relevant spot rate of exchange
is not available from The Wall Street Journal, then the relevant spot rate of
exchange shall be reasonably determined by the Agent and such determination
shall be conclusive absent manifest error.
"Eurocurrency Reserve Requirements" means, with respect to each
Interest Period for each LIBOR Loan (for purposes of determining Eurocurrency
Reserve Requirements with respect to any LIBOR Loan having a 7-day or a 14-day
Interest Period, such LIBOR Loan shall be deemed to have a one month Interest
Period), the aggregate (without duplication) of the maximum rates (expressed as
a percentage and rounded upward, if necessary, to the nearest 1/100 of 1%) of
reserve requirements current on the date two Banking Days prior to the beginning
of such Interest Period (including, without limitation, basic, supplemental,
marginal and emergency reserves under any regulations of the Board of Governors
of the Federal Reserve System or other governmental authority having
jurisdiction with respect thereto), as now and/or from time to time hereafter in
effect, dealing with reserve requirements prescribed for eurocurrency funding
maintained by any Bank.
"Facility Documents" means this Agreement, the Notes, the
Guarantees, and all other agreements, documents and instruments executed in
connection herewith or therewith including, but not limited to, all documents
and instruments executed by the Borrower or any Guarantor in favor of any Bank
in connection with this Agreement and the Loans made hereunder.
"Federal Funds Rate" means, for any day, the rate per annum equal to
the weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Banking Day, for the next
preceding Banking Day) by the Federal Reserve Bank of New York, or, if such rate
is not so announced or published for any day which is a Banking Day, the Federal
Funds Rate for the last day on which such rate was announced or published.
"Forfeiture Proceeding" means the commencement of any action or
proceeding affecting the Borrower or any of the Guarantors before any court,
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, which would result in the seizure or forfeiture of any of
their property which would cause a material adverse effect upon the operations,
business, properties or financial condition of the Borrower or any such
Guarantor.
"GAAP" means generally accepted accounting principles in the United
States of America, as in effect from time to time, consistently applied with
respect to the financial statements
7
of the Borrower, its Subsidiaries, and Affiliates or any Guarantor which are the
subject of Section 6.5 hereof.
"Guarantees" means the guarantees to be delivered on the Closing
Date to the Banks by each of the Guarantors and the guarantees to be delivered
to the Banks from time to time hereafter by Persons that become Guarantors
subsequent to the Closing Date, all in the form(s) attached hereto as Exhibit C.
"Guarantors" means the Corporate Guarantors and the Post-Closing
Guarantors.
"Hazardous Substance" or "Hazardous Substances" means any material,
including, without limitation, raw, processed or waste by-product materials,
which in itself or as found or used, is toxic, noxious or harmful to the health
or safety of human or animal life or vegetation, regardless of whether such
material be found on or below the surface of the ground, in any surface or
underground water, or airborne in ambient air or in the air inside of any
structure built or located upon or below the surface of the ground, or in any
machinery, equipment or inventory located or used in any such structure,
including, but in no event limited to, all hazardous materials, hazardous
wastes, toxic substances, infectious wastes, pollutants and contaminants from
time to time defined or classified as such under any Environmental Law,
regardless of the quantity found, used, manufactured or removed from a given
location.
"Interest Period" means the period commencing on the date of making,
renewal or conversion of a Loan to a LIBOR Loan and expiring 7 days, 14 days or
one, two, three or six months thereafter, as designated by the Borrower in the
notice given to the Agent under Section 2.4 hereof; provided that,
(a) the initial Interest Period for any LIBOR Loan shall commence on
the date of the making of such Loan (including the date of any conversion from a
Base Rate Loan) and each Interest Period occurring thereafter in respect of such
Loan shall commence on the date on which the next preceding Interest Period
expires;
(b) if any Interest Period would otherwise expire on a day which is
not a Banking Day, such Interest Period shall expire on the next succeeding
Banking Day, provided, however, that if any Interest Period would otherwise
expire on a day which is not a Banking Day but is a day of a calendar month
after which no further Banking Day occurs (in such month), such Interest Period
shall expire on the next preceding Banking Day;
(c) no Loan shall be continued as or converted to a LIBOR Loan if at
the time of any such continuation or conversion a Default or an Event of Default
exists; and
(d) no Interest Period shall extend beyond the Revolving Credit
Termination Date.
"Lending Office" means, for each Bank and for each type of Loan, the
lending office of such Bank (or of an affiliate of such Bank) designated as such
for such type of Loan on its
8
signature page hereof or such other office of such Bank (or of an affiliate of
such Bank) as such Bank may from time to time specify to the Agent as the office
by which its Loans are to be made and maintained.
"Letter of Credit" means any Sight Letter of Credit, Time Letter of
Credit or Standby Letter of Credit issued by the Agent for the account of the
Borrower pursuant to the terms of this Agreement.
"LIBOR" means, for any LIBOR Loan, the rate per annum (rounded
upwards, if necessary, to the nearest 1/16 of 1%) quoted at approximately 11:00
a.m. London time by the principal London branch of the Agent two Banking Days
prior to the first day of the Interest Period for such Loan for the offering to
leading or prime banks in the London interbank market of Dollar deposits in
immediately available funds, for a period (which period, in the case of a LIBOR
Loan having a 7-day or a 14-day Interest Period, shall be deemed to be a one
month Interest Period), and in an amount, comparable to such Interest Period
(which Interest Period, in the case of a LIBOR Loan having a 7-day or a 14-day
Interest Period, shall be deemed to be a one month Interest Period) and
principal amount of the LIBOR Loan which shall be made by the Banks hereunder
and outstanding during such Interest Period.
"LIBOR Loan" means any Revolving Credit Loan when and to the extent
the interest rate therefor is determined on the basis of Reserve Adjusted LIBOR
Rate.
"Lien" means any lien (statutory or otherwise), security interest,
mortgage, deed of trust, priority, pledge, charge, conditional sale, title
retention agreement, Capital Lease or other encumbrance or similar right of
others, or any agreement to give any of the foregoing.
"Loan" means a Revolving Credit Loan or a Letter of Credit or a
Documentary Banker's Acceptance.
"Margin" means for LIBOR Loans, the following:
9
Ratio of Consolidated Funded Debt
to Consolidated EBITDA Margin
---------------------- ------
Equal to or greater than 3.00:1.0 1%
Equal to or greater than 2.50:1.00 but less than 0.75%
3.00:1.00
Equal to or greater than 2.00:1.00 but less than 0.625%
2.50:1.00
Equal to or greater than 1.50:1.00 but less than 0.50%
2.00:1.00
Less than 1.50:1.00 0.375%
The Margin will be set on the day which is 10 Banking Days following the receipt
by the Agent of the financial statements referenced in Section 7.8(a) or Section
7.8(b), as the case may be, and shall apply to all LIBOR Loans (i.e., new or
additional Loans, or Loans which are continuations or conversions) to be made on
or after such date until, but not including, the next date on which the Margin
is reset in accordance with the provisions hereof; provided, however, that if
any financial statements are not received by the Agent within the time period
relating to such financial statements as provided in Section 7.8(a) or Section
7.8(b) hereof, as the case may be, the Margin on all LIBOR Loans to be made on
or after the date the Margin should have been reset in accordance with the
foregoing provisions (i.e., assuming timely delivery of the requisite financial
statements), until the day which is 10 Banking Days following the receipt by the
Agent of such financial statements, will be 1%; and further provided, however,
that the Banks shall not in any way be deemed to have waived any Event of
Default or any of their remedies hereunder (including, without limitations,
remedies provided in Article 10 hereof) in connection with the provisions of the
foregoing proviso.
"Multiemployer Plan" means a Plan defined as such in Section
4001(a)(3) of ERISA to which contributions have been made by the Borrower or any
ERISA Affiliate and which is covered by Title IV of ERISA.
"Non-Cash Charges" means all charges and expenses reflected on the
consolidated income statement of the Borrower and its Subsidiaries and
determined or calculated in accordance with GAAP which do not require a payment
of cash.
"Notes" means the Revolving Credit Notes.
10
"Obligations" means all of the obligations of the Borrower or any
Guarantor to the Banks under or in relation to this Agreement, the Notes, any
Letters of Credit, the Guarantees or any of the other Facility Documents, as
such agreements, documents and instruments are originally executed or as
modified, amended, restated, supplemented or extended from time to time, and all
obligations of the Borrower or any Guarantor to the Banks arising out of any
extension, refinancing or refunding of any of the foregoing obligations, whether
such obligations are now existing or hereafter acquired or arising, direct or
indirect, joint or several, absolute or contingent, due or to become due,
matured or unmatured, liquidated or unliquidated, arising by contract, operation
of law or otherwise.
"Operating Income" means, with respect to a particular Person for a
particular period, such Person's operating income for such period determined or
calculated in accordance with GAAP as reflected on such Person's financial
statements.
"Payment Office" means, with respect to the Agent for payments in
any Applicable Currency, such account at such bank or office in the principal
financial center in the country of the Applicable Currency as the Agent shall
designate by notice to the Person required to make the relevant payment and,
with respect to the Agent for payments in Dollars, such account at such bank or
office in New York City as the Agent shall designate by notice to the Person
required to make the relevant payment.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"Permitted Acquisition" shall have the meaning given to such term in
Section 8.8 hereof.
"Permitted Liens" means those certain Liens defined in Section 8.3
hereof.
"Person" means an individual, partnership, corporation, limited
liability company or partnership, business trust, joint stock company, trust,
unincorporated association, joint venture, governmental authority or other
entity of whatever nature.
"Plan" means any employee benefit or other plan established or
maintained, or to which contributions have been made, by the Borrower or any
ERISA Affiliate and which is covered by Title IV of ERISA or to which Section
412 of the Code applies, provided that such term shall not include plans
terminated prior to the date hereof.
"Post-Closing Guarantors" means (a) any wholly owned Subsidiary or
other entity, formed or acquired by the Borrower, Xxxx Holdings, Inc. or any
subsidiary of the Borrower or Xxxx Holdings, Inc. after the Closing Date with
Total Assets located in the United States of $10,000,000 or greater, and (b) any
Subsidiary or entity formed or acquired after the Closing Date in which the
Borrower or any Corporate Guarantor has a 66.67% or greater but less than 100%
ownership interest which becomes or is a Subsidiary which must have its
financial operations and results consolidated with Borrower under GAAP, if such
subsidiary or entity, after giving effect to the
11
acquisition, has Total Assets located in the United States that exceed 5% of the
Consolidated Total Assets of the Borrower and its Subsidiaries, taken as a
whole, valued as of the closing of such acquisition or as of the last day of any
fiscal year thereafter; providing such partially owned subsidiary or entity is
not a party to an agreement prohibiting it from becoming a Guarantor hereunder.
"Prime Rate" means that rate of interest from time to time announced
by the Agent at the Principal Office as its prime commercial lending rate.
"Principal Office" means the principal office of the Agent,
presently located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx.
"Reference Rate" means that rate charged by the Agent with regard to
Documentary Banker's Acceptances.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as the same may be amended or supplemented from time to
time.
"Regulatory Change" means, with respect to any Bank, any change
after the Closing Date in United States federal, state, municipal or foreign
laws or regulations (including Regulation D) or the adoption or making after
such date of any interpretations, directives or requests applying to a class of
banks including such Bank under any United States, federal, state, municipal or
foreign laws or regulations (whether or not having the force of law) by any
court or governmental or monetary authority charged with the interpretation or
administration thereof.
"Relevant Exchange Rate" means, with respect to any LIBOR Loan
denominated in any Approved Currency other than Dollars, the Exchange Rate for
the purchase of Dollars with such Approved Currency in effect on the date which
is two Banking Days before the later of (a) the date on which the Loan was first
made or (b) the last Election Date (if any) applicable to such Loan.
"Reportable Event" means any of the events set forth in Section
4043(b) of ERISA as to which events the PBGC by regulation has not waived the
requirement of Section 4043(a) of ERISA that it be notified within 30 days of
the occurrence of such event.
"Required Banks" means, at any time, with respect to any decisions
to be made by the Banks hereunder, Banks having at least 75% of the aggregate of
the Commitment Proportions hereunder.
"Reserve Adjusted LIBOR Rate" means, with respect to the Interest
Period (which Interest Period, in the case of a LIBOR Loan having a 7-day or a
14-day Interest Period, shall be deemed to be a one month Interest Period) for
each LIBOR Loan, the rate per annum (rounded upwards to the nearest whole
multiple of 1/100th of one percent) equal to the following:
LIBOR
--------------------
1.00 - Eurocurrency Reserve Requirements.
12
"Revolving Credit Commitment" means, with respect to each Bank, the
obligation of such Bank to extend credit to the Borrower hereunder and, subject
to the terms hereof, in the following aggregate amounts:
Chase $35,000,000
Fleet $25,000,000
Rabobank Nederland $25,000,000
EAB $15,000,000
"Revolving Credit Facility" means the aggregate of all extensions of
credit to be made available to the Borrower by the Banks, all as provided for
pursuant to Article 2 hereof.
"Revolving Credit Loans" means any extension of credit made by a
Bank pursuant to Section 2.1.
"Revolving Credit Note" means a promissory note of the Borrower in
the form of Exhibit A hereto evidencing the Revolving Credit Loans made by a
Bank hereunder.
"Revolving Credit Termination Date" means the earlier to occur of
(a) the date on which the Revolving Credit Commitment shall terminate hereunder
and (b) January 30, 2002.
"Sight Letter of Credit" means a sight letter of credit as defined
in the International Chamber of Commerce Uniform Customs and Practice for
Documentary Credits, 1993 Revisions, ICC Publication No. 500 or any successor
publication thereof.
"Solvent" means when used with respect to any Person on a particular
date, that on such date: (a) the fair saleable value of its assets is in excess
of the total amount of its liabilities, including, without limitation, the
reasonably expected amount of such Person's obligations with respect to
contingent liabilities, (b) the present fair saleable value of the assets of
such Person is not less than the amount that will be required to pay the
probable liability of such Person on its Debts as they become absolute and
matured, (c) such Person does not intend to, and does not believe that it will,
incur Debts or liabilities beyond such Person's ability to pay as such Debts and
liabilities mature and (d) such Person is not engaged in business or a
transaction for which such Person's property would constitute an unreasonably
small capital.
"Standby Letter of Credit" means a standby letter of credit as
defined in the International Chamber of Commerce Uniform Customs and Practice
for Documentary Credits, 1993 Revision, ICC Publication No. 500 or any successor
publication thereof.
"Subordinated Debt" means unsecured Debt of the Borrower that is
subordinated, (with such immaterial changes as the Required Banks may reasonably
require from time to time), to the Borrower's obligations to the Banks under
this Agreement on terms satisfactory to the Banks, and which Debt provides for
payment of principal only after the Revolving Credit Termination Date and for
the payment of simple interest at an annual rate not greater than the Base Rate
plus seven
13
percent and with respect to which Debt the Borrower shall provide the Agent with
all information reasonably requested by the Agent, including, without
limitation, an amortization schedule.
"Subsidiary", with respect to any Person, means any corporation or
other entity of which at least a majority of the securities or other ownership
interests having ordinary voting power (absolutely or contingently) for the
election of directors or other persons performing similar functions are, at the
relevant time, owned directly or indirectly by such Person.
"Taxes" means any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any governmental
or taxing authority of any jurisdiction, excluding, in the case of each Bank,
income taxes and franchise taxes (imposed in lieu of income taxes) imposed on
such Bank as a result of a present or former connection between the jurisdiction
of the government or the taxing authority imposing such tax and such Bank
(excluding a connection arising solely from such Bank having executed,
delivered, or performed its obligations or received a payment under, or
enforced, this Agreement, the Notes or the other Facility Documents) or any
political subdivision or taxing authority thereof or therein.
"Time Letter of Credit" means a Letter of Credit that provides for
payment on a specific maturity date(s) determined in accordance with the
stipulations of such Letter of Credit.
"Total Revolving Credit Commitments" means, at any time, the
aggregate of the Revolving Credit Commitments in effect at such time.
"Unfunded Vested Liabilities" means, with respect to any Plan, the
amount (if any) by which the present value of all vested benefits under the Plan
exceeds the fair market value of all Plan assets allocable to such benefits, as
determined on the most recent valuation date of the Plan and in accordance with
the provisions of ERISA for calculating the potential liability of the Borrower
or any ERISA Affiliate to the PBGC or the Plan under Title IV of ERISA.
"Up Front Fee" shall have the meaning given to such term in Section
3.5 hereof.
"Usage Fee" means the usage fee payable by the Borrower to the Banks
pursuant to Section 3.4 hereof.
Section 1.2. Accounting Terms.
All accounting terms not specifically defined herein shall be
construed in accordance with GAAP, and all financial data required to be
delivered hereunder shall be prepared in accordance with GAAP.
14
ARTICLE 2.
REVOLVING CREDIT FACILITY
Section 2.1. Revolving Credit Loans.
(a) Subject to the terms and conditions of this Agreement, each of
the Banks severally agrees, upon request by the Borrower, to make LIBOR Loans in
any of the Approved Currencies and Base Rate Loans in Dollars to the Borrower
(each such Loan being a "Revolving Credit Loan") from time to time on any
Business Day during the period from the date hereof to but excluding the
Revolving Credit Termination Date; provided, however, that no Revolving Credit
Loan shall be made if, after giving effect to such Loan, the Aggregate
Outstandings at the time of such Loan would exceed the Total Revolving Credit
Commitments in effect on such date. All Revolving Credit Loans shall be made by
the Banks, on a pro rata basis, in accordance with their respective Commitment
Proportions. Subject to the foregoing limits, the Borrower may borrow, repay and
reborrow all or a portion of the Revolving Credit Commitments hereunder. Any
amount of any Revolving Credit Loan not paid when due (at maturity, or
acceleration or otherwise) shall bear interest thereafter until paid at the
Default Rate. Notwithstanding the foregoing, in no event shall the Dollar
Equivalent of the aggregate principal balance (determined at the Relevant
Exchange Rate) of Revolving Credit Loans denominated in Approved Currencies
other than Dollars exceed $15,000,000 at any time.
(b) The Borrower and the Banks hereby agree that from and after the
date hereof, subject to the satisfaction of the conditions precedent to the
initial Loan hereunder, the LIBOR Loans existing prior to the date hereof
pursuant to the Credit Agreement and listed and described on Schedule 2.2
attached hereto shall be deemed to be evidenced by the Revolving Credit Notes
and shall be LIBOR Loans for all purposes of this Agreement, other than with
respect to the Commitment Proportion of the Banks in such existing LIBOR Loans,
which shall be determined in accordance with the applicable provisions of the
Credit Agreement as the same existed immediately prior to the Closing Date.
Section 2.2. The Revolving Credit Notes.
The Revolving Credit Loans of each Bank shall be evidenced by a
single promissory note in favor of such Bank with appropriate insertions duly
executed by the Borrower. Each Bank is hereby authorized to record the date and
amount of each Revolving Credit Loan, the date and amount of each payment of
principal thereof, the principal amount subject thereto, the interest rate with
respect thereto and the Applicable Currency thereof in such Bank's records or on
schedules annexed to and constituting a part of its Revolving Credit Note, and
absent manifest error, any such recordation shall constitute conclusive evidence
of the information so recorded; provided that the failure to make such
recordation shall not in any way affect the obligation of the Borrower to repay
the Revolving Credit Loans. Each Revolving Credit Note (a) shall be dated the
date hereof, (b) shall be stated to mature on the Revolving Credit Termination
Date and (c) shall bear interest on the unpaid principal amount thereof from
time to time as provided herein.
15
Section 2.3. Use of Proceeds.
The Borrower shall use the proceeds of the Revolving Credit
Loans to (a) pay and satisfy in full all "Revolving Credit Loans" under the
Credit Agreement, all accrued interest thereon, and all accrued commissions and
fees under the Credit Agreement, (b) for general corporate and working capital
purposes and (c) for Permitted Acquisitions. No part of the proceeds of any of
the Loans will be used for any purpose which violates the provisions of
Regulation G, T, U or X of the Board of Governors of the Federal Reserve System
as in effect on the date of making such Loans.
Section 2.4. Borrowing Procedure for Revolving Credit Loans.
(a) Each Revolving Credit Loan shall be, at the option of the
Borrower, either a Base Rate Loan or a LIBOR Loan, provided, however, that all
Loans in Approved Currencies other than Dollars shall be LIBOR Loans. The
Borrower shall give the Agent (i) at least four Banking Days irrevocable
telephonic notice of each LIBOR Loan denominated in any Approved Currency other
than Dollars (whether representing an additional borrowing hereunder, a
conversion of a borrowing hereunder from a Base Rate Loan to a LIBOR Loan, or a
continuation of such Loan as such a LIBOR Loan for an additional Interest
Period) prior to 11:30 a.m., New York, New York time on the day any such notice
is given (the "Eurocurrency LIBOR Notice"), (ii) at least three Banking Days
irrevocable telephonic notice of each LIBOR Loan denominated in Dollars (whether
representing an additional borrowing hereunder, a conversion of a borrowing
hereunder from a Base Rate Loan to such a LIBOR Loan, or a continuation of such
Loan as such a LIBOR Loan for an additional Interest Period) prior to 12:00
p.m., New York, New York time on the day any such notice is given (the "Dollar
LIBOR Notice"), and (iii) irrevocable telephonic notice of each Base Rate Loan
(whether representing an additional borrowing hereunder or the conversion of an
existing LIBOR Loan to a Base Rate Loan at the end of the Interest Period with
respect to such LIBOR Loan) prior to 12:00 p.m., New York, New York time on the
day of the proposed Base Rate Loan (the "Base Rate Loan Notice"). Each such
notification, which shall be effective only upon receipt thereof by the Agent,
shall specify the amount of the borrowing, the type of Revolving Credit Loan
(i.e., Base Rate Loan or LIBOR Loan), the date of the proposed borrowing,
whether any such Loan represents an additional borrowing, a conversion or a
continuation as referenced above, and, in the case of a LIBOR Loan, the Interest
Period to be used in the computation of interest with respect thereto and the
proposed currency thereof which shall be an Approved Currency. The Borrower
shall provide the Agent with written confirmation of each such telephonic notice
on the same day by telefacsimile transmission in such form as such notice has
been given under the Credit Agreement or such other form as shall be reasonably
acceptable to the Agent. Notice of receipt of any such notice by the Agent shall
be provided by the Agent to each Bank by telephone with reasonable promptness
but, assuming receipt by the Agent of any such notice prior to 12:00 p.m., New
York, New York time on a Banking Day, by no later than 2:00 p.m., New York, New
York time on the same day as the Agent's receipt of any such notice.
(b) Each Bank will make its share of each Borrowing available to the
Agent at the Payment Office for the Applicable Currency by 2:00 p.m. (local time
at the place of payment), or such other time as may be required by law or
practice for the settlement of foreign exchange
16
transactions in the place of payment, on the date for such Borrowing by payment
in the Applicable Currency and in immediately available funds. Unless any
applicable condition specified in Article 5 has not been satisfied, the amounts
so received by the Agent will be made available to the Borrower at such Payment
Office by crediting the account of such Borrower with such amounts and in like
funds as received by the Agent; provided, however, that if the proceeds of any
Borrowing or any portion thereof are to be used to prepay outstanding Loans,
then the Agent shall apply such proceeds for such purpose to the extent
necessary and credit the balance, if any, to the Borrower's account.
(c) Notwithstanding anything to the contrary herein, after giving
effect to any Borrowing, unless consented to by the Agent in its sole
discretion, (i) there shall not be more than ten (10) different Interest Periods
in effect in respect of all Revolving Credit Loans then outstanding, and (ii)
there shall not be more than four (4) different Applicable Currencies in respect
of all Revolving Credit Loans then outstanding.
Section 2.5. Minimum Amounts of Revolving Credit Loans.
Except for borrowings which involve or utilize the full
remaining amount of the Revolving Credit Commitments and payments which result
in the prepayment of all Base Rate Loans, each borrowing and payment of Base
Rate Loans shall be in an amount at least equal to $500,000 and, if greater,
integral multiples of $100,000 in excess thereof. Each borrowing of LIBOR Loans
denominated in Dollars shall be in an amount at least equal to $2,000,000 and,
if greater, in integral multiples of $100,000 in excess thereof and each
borrowing of LIBOR Loans denominated in an Approved Currency other than Dollars
shall be in an amount at least equal to the Applicable Currency Equivalent of
$1,500,000 and, if greater, in integral multiples of the Applicable Currency
Equivalent of $100,000 in excess thereof.
Section 2.6. Interest Period Elections for Borrowings.
(a) The Borrower with respect to any outstanding Borrowing
consisting of LIBOR Loans may, upon notice to the Agent in accordance with
Section 2.6(b), elect to specify a new Interest Period for such Borrowing, which
Interest Period will commence on the last day of any Interest Period applicable
thereto (an "Election Date").
(b) If a Borrower elects to specify a new Interest Period for any
Borrowing pursuant to Section 2.6(a), it shall give the Agent notice thereof in
the form of a Notice of Interest Period Election to be received by the Agent not
later than 12:00 p.m. (New York City time) at least four Banking Days prior to
the Election Date in respect of any Borrowing to be denominated in any currency
other than Dollars or three Banking Days prior to the Election Date in respect
of any Borrowing to be denominated in Dollars, as the case may be, specifying:
(i) the Borrowing to which such notice relates;
(ii) the Election Date; and
17
(iii) the duration of the requested Interest Period.
(c) If by the time set forth in Section 2. 6 (b), (i) the Borrower
has failed to give a timely Notice of Interest Period Election for a Borrowing
consisting of LIBOR Loans in Approved Currencies other than Dollars, the
Borrower shall be deemed to have specified an Interest Period of one month or
(ii) the Borrower has failed to give timely Notice of Interest Period Election
for a Borrowing consisting of a LIBOR Loan in Dollars, such Loan shall
automatically convert to a Base Rate Loan at the end of the Applicable Interest
Period.
(d) The Agent will promptly notify each Bank of the duration of each
new Interest Period applicable to each Borrowing consisting of LIBOR Loans.
Section 2.7.
Letters of Credit and Documentary Banker's Acceptances.
(a) Generally. Subject to the terms and conditions set forth in this
Agreement, upon written request of the Borrower to the Agent in accordance
herewith, the Agent shall issue Letters of Credit and, upon or with respect to a
drawing under Time Letters of Credit, create Documentary Banker's Acceptances,
with pro rata participation by all of the Banks in accordance with their
respective Commitment Proportions, at any time between the date hereof and the
Revolving Credit Termination Date. Notwithstanding the foregoing, at no time
shall the sum of Aggregate Letters of Credit Outstandings plus Aggregate
Banker's Acceptance Outstandings exceed $5,000,000 and no Letter of Credit or
Documentary Banker's Acceptance shall be issued or created if after giving
effect to such Loan the Aggregate Outstandings at the time of such Loan would
exceed the Total Revolving Credit Commitments in effect on such date.
Furthermore, notwithstanding anything contained herein to the contrary, neither
the Agent nor any of the Banks shall be under any obligation to issue a Letter
of Credit or create a Documentary Banker's Acceptance if any order, judgment or
decree of any court, arbitrator or governmental authority shall purport by its
terms to enjoin, restrict or restrain the Agent or any of the Banks in any
respect relating to the issuance of such Letter of Credit or creation of such
Documentary Banker's Acceptance or a similar letter of credit or banker's
acceptance, or any law, rule, regulation, policy, guideline or directive
(whether or not having the force of law) from any governmental authority with
jurisdiction over the Agent or any of the Banks shall prohibit or direct the
Agent or any of the Banks in any respect relating to the issuance of such Letter
of Credit or a similar letter of credit, or the creation of such Documentary
Banker's Acceptance or similar banker's acceptance, or shall impose upon the
Agent or any of the Banks with respect to any Letter of Credit or any
Documentary Banker's Acceptance, any restrictions, any reserve or capital
requirement or any loss, cost or expense not reimbursed by the Borrower to the
Agent or any of the Banks. Each request for issuance of a Letter of Credit shall
be in writing and shall be received by the Agent by no later than 12:00 p.m. on
the day which is at least two Banking Days prior to the proposed date of
issuance. Such issuance shall occur by no later than 5:00 p.m. on the proposed
date of issuance (assuming proper prior notice as aforesaid). Subject to the
terms and conditions contained herein, the type of Letter of Credit (i.e., Sight
Letter of Credit, Time Letter of Credit or Standby Letter of Credit), the expiry
dates, amounts and beneficiaries of the Letters of Credit will be as designated
by the Borrower. The Agent shall promptly notify the Banks of the amounts of all
Letters of Credit issued hereunder and of any
18
extension, reduction, termination or amendment of any Letter of Credit. Each
Letter of Credit issued by the Agent hereunder shall identify: (i) the dates of
issuance and expiry of such Letter of Credit, (ii) the amount of such Letter of
Credit (which shall be a sum certain), (iii) the beneficiary and account party
of such Letter of Credit, (iv) the drafts and other documents necessary to be
presented to the Agent upon drawing thereunder, and (v) with respect to Time
Letters of Credit, the maturity date of any Documentary Banker's Acceptance
created upon or with respect to a drawing under such Time Letter of Credit. No
Sight or Time Letter of Credit issued hereunder shall expire more than 180 days
from its date of issuance, no Documentary Banker's Acceptance shall mature more
than 180 days from the date of the creation of such Documentary Banker's
Acceptance and no Standby Letter of Credit shall expire more than one year after
its issuance, and in no event shall any Letter of Credit expire or any
Documentary Banker's Acceptance mature after the Banking Day which is
immediately prior to the Revolving Credit Termination Date. The Borrower agrees
to execute and deliver to the Agent such further documents and instruments in
connection with any Letter of Credit issued or Documentary Banker's Acceptance
created hereunder as the Agent in accordance with its customary practices may
request.
(b) Drawings Under Letters of Credit and Payments of Documentary
Banker's Acceptance. The Borrower hereby absolutely and unconditionally promises
to (i) pay the Agent as soon as possible but in any event within one Banking Day
after any drawing under a Letter of Credit (except under a Time Letter of
Credit) or the maturity of a Documentary Banker's Acceptance, in immediately
available funds from its accounts, the amount of such drawing under such Letter
of Credit or Documentary Banker's Acceptance, plus interest thereon from the
date of such drawing until repaid in full, or (ii), by 12:30 p.m., New York, New
York time, on the Banking Day immediately following the day of any such drawing,
give a Base Rate Loan Notice. The Borrower shall pay to the Agent interest on
any amounts with respect to any such Letters of Credit or Documentary Banker's
Acceptance not paid when due (i.e., the amount of any drawing which is not paid
or converted to a Base Rate Loan within one Banking Day after any such drawing
or upon the maturity of any such Documentary Banker's Acceptance pursuant to the
provisions of this Agreement) until paid at a rate per annum equal to the
Default Rate which would be applicable to a Base Rate Loan in an amount equal to
such past due amount. If the Borrower so requests in accordance with the terms
hereof and if each of the conditions precedent to the making of a Loan set forth
in Article 5 of this Agreement has been satisfied on the Banking Day following a
drawing under a Letter of Credit or maturity of a Documentary Banker's
Acceptance, the amount of such drawing, plus interest thereon, or the amount of
such Documentary Banker's Acceptance, for which the Agent has not been
reimbursed by the Borrower shall become a Base Rate Loan made by the Banks to
the Borrower on such day as the Agent shall give written notice (which written
notice shall be by facsimile transmission or telex) to the Borrower and the
Banks of such circumstances. The Agent agrees to forward notice of the amount of
each drawing under a Letter of Credit and each matured Documentary Banker's
Acceptance promptly upon the occurrence thereof. Each Bank agrees that on the
first Banking Day after any such drawing or maturity, such Bank will immediately
make available by no later than 12:00 p.m. to the Agent at its office located at
the Agent's Principal Office, in Federal or other immediately available funds,
its ratable share (i.e., in accordance with its respective Commitment
Proportion) of any such drawing or payment or maturity, plus any interest which
shall have accrued thereon, provided that each Bank's obligation shall be
reduced by its pro rata share (i.e., in accordance with its respective
Commitment
19
Proportion) of any reimbursement by the Borrower in respect of any such drawing
or payment pursuant to this Section.
(c) Letter of Credit and Documentary Banker's Acceptance Obligations
Absolute. (i) The obligation of the Borrower to reimburse the Agent as provided
hereunder in respect of drawings or payments under Letters of Credit and
Documentary Banker's Acceptances shall rank pari passu with the obligation of
the Borrower to repay the Loans hereunder, shall be absolute and unconditional
under any and all circumstances. Without limiting the generality of the
foregoing, the obligation of the Borrower to reimburse the Agent in respect of
drawings under Letters of Credit and upon the maturity of Documentary Banker's
Acceptances shall not be subject to any defense based on the non-application or
misapplication by the beneficiary of the proceeds of any such payment or the
legality, validity, regularity or enforceability of the Letters of Credit or
Documentary Banker's Acceptances or any related document or any dispute between
or among the Borrower, the beneficiary of any Letter of Credit or any financing
institution or other party to which any Letter of Credit or Documentary Banker's
Acceptance may be transferred. The Agent may accept or pay any draft presented
to it under any Letter of Credit regardless of when drawn or made and whether or
not negotiated, if such draft, accompanying certificate or documents and any
transmittal advice are presented or negotiated on or before the expiry date of
the Letter of Credit or any renewal or extension thereof then in effect, and
conforms to the terms and conditions of such Letter of Credit. Furthermore,
neither the Agent nor any of its correspondents shall be responsible, as to any
document presented under a Letter of Credit which appears to be regular on its
face, and appears on its face to conform to the terms of the Letter of Credit,
for the validity or sufficiency of any signature or endorsement, for delay in
giving any notice or failure of any instrument to bear adequate reference to the
Letter of Credit, or for failure of any person to note the amount of any draft
on the reverse of the Letter of Credit.
(ii) Any action, inaction or omission on the part of the Agent
or any of its correspondents under or in connection with any Letter of Credit or
the related instruments, documents or property, if in good faith and in
conformity with such laws, regulations or customs as are applicable, shall be
binding upon the Borrower and shall not place the Agent or any of its
correspondents under any liability to the Borrower, in the absence of (x) gross
negligence or willful misconduct by the Agent or its correspondents or (y) the
failure by the Agent to pay under a Letter of Credit after presentation of a
draft and documents strictly complying with such Letter of Credit. The Agent's
rights, powers, privileges and immunities specified in or arising under this
Agreement are in addition to any heretofore or at any time hereafter otherwise
created or arising, whether by statute or rule of law or contract. All Letters
of Credit issued hereunder will, except to the extent otherwise expressly
provided hereunder, be governed by the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce,
Publication No. 500, and any subsequent revisions thereof.
(d) Obligations of Banks in Respect of Letters of Credit and
Documentary Banker's Acceptances. Each Bank acknowledges that each Letter of
Credit or Documentary Banker's Acceptance issued by the Agent pursuant to this
Agreement is issued by the Agent on behalf of and with the ratable participation
of all of the Banks (i.e., in accordance with their respective Commitment
Proportions), and each Bank agrees to make the payments required by subsection
(b)
20
hereof and agrees to be responsible for its pro rata share of all liabilities
incurred by the Agent in respect of each Letter of Credit issued, established,
opened or extended and each Documentary Banker's Acceptance created by the Agent
hereunder for the account of the Borrower. Each Bank agrees with the Agent and
the other Banks that its obligation to make the payments required by subsection
(b) hereof shall not be affected in any way by any circumstances (other than the
gross negligence or willful misconduct of the Agent) occurring before or after
the making of any payment by the Agent pursuant to any Letter of Credit or
Documentary Banker's Acceptance, including, without limitation:
(i) any modification or amendment of, or any consent, waiver,
release or forbearance with respect to, any of the terms of this Agreement or
any other instrument or document referred to herein;
(ii) the existence of any Default or Event of Default; or
(iii) any change of any kind whatsoever in the financial
position or credit worthiness of the Borrower.
(e) Use of Proceeds. The Borrower shall utilize Letters of Credit
and Documentary Banker's Acceptances hereunder for general corporate purposes
only. No part of the proceeds of any Letter of Credit or Documentary Letter of
Credit will be used for any purpose which violates the provisions of Regulation
G, T, U or X of the Board of Governors of the Federal Reserve System as in
effect on the date of issuance, drawing, creation or maturity with respect to
any such Letter of Credit or Documentary Banker's Acceptance.
Section 2.8. Interest on Loans.
(a) Base Rate Loans. The Borrower shall pay interest on the
outstanding and unpaid principal amount of each Base Rate Loan made under this
Agreement at a fluctuating rate per annum equal to the Alternate Base Rate from
time to time in effect. Each change in the interest rate shall take effect
simultaneously with the corresponding change in the Base Rate. Interest shall be
calculated on the basis of the actual number of days elapsed divided by a year
of three hundred sixty (360) days and shall be paid to the Agent for the
accounts of the Banks in arrears on the first day of each month commencing
February 1, 1997, and on the Revolving Credit Termination Date.
(b) LIBOR Loans. The Borrower shall pay interest on the outstanding
and unpaid principal amount of each LIBOR Loan made under this Agreement at a
rate per annum equal to the Reserve Adjusted LIBOR Rate in effect with respect
thereto, plus the applicable Margin. Interest shall be calculated on the basis
of the actual number of days elapsed divided by a year of three hundred sixty
(360) days, except in the case of LIBOR Loans denominated in British Pounds
Sterling, which shall be calculated on the basis of the actual number of days
elapsed divided by a year of 365 or 366 days, and shall be paid to the Agent for
the accounts of the Banks in arrears on the last day of the Interest Period
applicable to such LIBOR Loan; provided, however, that if such Interest Period
is longer than three months, interest shall be paid on the last day of each
three-month period following the commencement of such Interest Period and on the
last day of such Interest
21
Period. Interest with respect to any LIBOR Loan shall be paid in the applicable
Approved Currency at the relevant Payment Office for Loans in such Approved
Currency.
Section 2.9. Existing Letters of Credit and Documentary
Banker's Acceptances.
The Borrower and the Banks hereby agree that from and after the date
hereof, subject to the satisfaction of the conditions precedent to the initial
Loan hereunder or the issuance of the initial Letter of Credit hereunder as set
forth in Article 5 hereof, the letters of credit issued and banker's acceptances
created by the Agent for the account of the Borrower prior to the date hereof
and listed and described on Schedule 2.9 attached hereto shall be Letters of
Credit and Documentary Banker's Acceptances for all purposes of this Agreement
(other than with respect to opening or transaction fees and the payment
commissions made or accrued prior to the date hereof, which fees and commissions
shall be for the sole accounts of Chase, as "Agent", and Chase, Rabobank
Nederland, Fleet and EAB, as the "Banks", in accordance with the applicable
provisions of the Credit Agreement as the same existed immediately prior to the
Closing Date), and the Banks hereby affirm their pro rata participation (i.e.,
in accordance with their respective Commitment Proportions) in such Letters of
Credit and Documentary Banker's Acceptances. The Borrower represents and
warrants that the undrawn or outstanding amounts with respect to all such
outstanding Letters of Credit and Documentary Banker's Acceptances on the date
hereof is set forth on Schedule 2.9.
Section 2.10. Changes of Commitments.
(a) The Borrower shall have the right to reduce or terminate the
amount of unused Revolving Credit Commitments at any time or from time to time
prior to the Revolving Credit Termination Date, provided that: (i) the Borrower
shall give thirty (30) days prior written notice of each such reduction or
termination to the Agent; and (ii) each partial reduction shall be in an
aggregate amount at least equal to $5,000,000 or, if greater, in integral
multiples of $1,000,000 in excess thereof.
(b) The Revolving Credit Commitments once reduced or terminated may
not be reinstated.
22
ARTICLE 3.
GENERAL CREDIT PROVISIONS; FEES AND PAYMENTS
Section 3.1. Certain Notices.
Notices by the Borrower to the Agent of each borrowing pursuant to
Section 2.4, each prepayment pursuant to Section 3.2 and each reduction or
termination of Revolving Credit Commitments pursuant to Section 2.10 shall be
irrevocable and shall be effective on the date of receipt only if received by
the Agent not later than 12:00 p.m., New York City time, on or prior to the date
notice with respect thereto is required to be given hereunder. Each such notice
relating to the borrowing, continuation, conversion or prepayment of a Loan, as
the case may be, shall specify the Loans to be borrowed, converted, continued or
prepaid, and the amount and type of the Loans to be borrowed or prepaid, the
Interest Period with respect to any LIBOR Loan, the Applicable Currency thereof
and the date of borrowing, conversion, continuation or prepayment (which shall
be a Banking Day). Each such notice of reduction or termination of Revolving
Credit Commitments shall specify the amount of the Revolving Credit Commitments
to be reduced or terminated. The Agent shall notify the Banks of the contents of
each such notice promptly after the Agent's receipt thereof.
Section 3.2. Prepayments.
(a) Voluntary Prepayments of Base Rate Loans. The Borrower shall
have the right at any time and from time to time to prepay without premium or
penalty Base Rate Loans, in whole or in part, upon telephonic notice to the
Agent; provided, however, that any such partial prepayment shall be in a minimum
aggregate principal amount of $500,000 or, if greater, in amounts which are
integral multiples of $100,000 in excess thereof.
(b) Voluntary Prepayments of LIBOR Loans. the Borrower shall have
the right at any time and from time to time to prepay LIBOR Loans, in whole or
in part, on at least three Banking Days' prior written notice to the Agent,
subject to the provisions of Article 4 hereof; provided, however, that any such
partial prepayment shall be in a minimum aggregate principal amount of
$1,000,000 or, if greater, in amounts which are integral multiples of $100,000
in excess thereof.
(c) Accrued Interest. All prepayments made pursuant to Section 3.2
(b) shall be accompanied by the payment of all accrued interest on the amount so
prepaid.
Section 3.3. Commitment Fee.
The Borrower shall pay to the Agent on behalf and for the ratable
benefit of each Bank a Commitment Fee for the period from and including the date
hereof to and excluding the Revolving Credit Termination Date equal to such
Bank's Commitment Proportion of an amount equal to the product of (a) the
applicable percentage per annum, as set forth below, during the
23
applicable period multiplied by (b) the average daily unused portion of the
Total Revolving Credit Commitment during the applicable period.
Ratio of Consolidated Funded Debt
to EBITDA, on a Consolidated Basis Percentage Per Annum
---------------------------------- --------------------
Equal to or greater than 3.00:1.00 0.30%
Equal to or grater than 2.50:1.00 but 0.25%
less than 3.00:1.00
Equal to or greater than 2.00:1.00 but 0.1875%
less than 2.50:1.00
Equal to or greater than 1.50:1.00 but 0.15%
less than 2.00:1.00
Less than 1.50:1.00 0.10%
The Commitment Fee shall be calculated on the basis of a year of 360 days for
the actual number of days elapsed. The Commitment Fee shall be due and payable
quarterly in arrears on the first day of each calendar quarter and on the
Revolving Credit Termination Date. For purposes of determining the unused
portion of the Total Revolving Credit Commitment only, the Dollar Equivalent of
each LIBOR Loan made in an Approved Currency other than Dollars as of the date
of making such Loan shall be the amount of the Total Revolving Credit Commitment
used in connection with such Loan, and no further adjustments shall be made with
respect to the unused portion of the Total Revolving Credit Commitment based
upon fluctuations thereafter in the Dollar Equivalent of such Loan.
Section 3.4. Usage Fee.
If (a) the Borrower's ratio of Consolidated Funded Debt to
Consolidated EBITDA, on a consolidated basis, is less than 1.50:1.00 at any
time, and (b) the Total Revolving Credit Commitment is more than 25% utilized at
such time, the Borrower shall pay to the Agent for the benefit of the Banks a
Usage Fee of 0.025% per annum on the average daily unused portion of the Total
Revolving Credit Commitment.
Section 3.5. Up Front Fee.
The Borrower shall pay to the Agent on or before the Closing Date on
behalf and for the ratable benefit of the Banks in accordance with their
respective "Commitment Proportions" a non-refundable advisory fee of $70,000.
The payments under this Section 3.5 shall be due and payable on the Closing Date
in accordance with the provisions of Section 5.1 hereof.
24
Section 3.6. Letter of Credit and Documentary Banker's
Acceptance Fees.
(a) Letters of Credit. The Borrower shall pay to the Agent, for its
sole account, customary fees in an amount or amounts which are normally charged
by the Agent to comparable customers. The Borrower shall pay to the Agent on
behalf and for the ratable benefit of each of the Banks the following additional
fees:
(i) A percentage amount per annum equal to the applicable
Margin for LIBOR Loans (i.e., at the time of issuance of the relevant Time
Letter of Credit) on the face amount of Time Letters of Credit, payable at the
creation of the Documentary Bankers Acceptance; and
(ii) A percentage amount per annum equal to the applicable
Margin for LIBOR Loans (i.e., at the time of issuance of the relevant Sight
Letter of Credit) on the amounts drawn under any Sight Letters of Credit,
subject to the Agent's minimum fee from time to time (i.e, customarily charged
to comparable customers with respect to Sight Letters of Credit), payable at the
time of any such drawing; and
(iii) A percentage amount per annum equal to the applicable
Margin for LIBOR Loans (i.e., at the time of issuance of the relevant Standby
Letter of Credit) on the face amount of each Standby Letter of Credit, subject
to the Agent's minimum fee from time to time (i.e, customarily charged to
comparable customers with respect to Standby Letters of Credit), payable at the
end of each calendar quarter, in arrears, on the last Banking Day of each such
calendar quarter for the period from and including the first day of such
calendar quarter to and including the last day of such calendar quarter.
The commissions and fees referenced in this subsection (a) shall be
calculated on the basis of a year of 360 days for the actual number of days
elapsed. Notwithstanding anything herein to the contrary, all Letters of Credit
fees shall be paid to the Agent; payment commissions on Letters of Credit shall
be shared pro-rata by the Banks, provided that if the actual payment commission
with respect to a Letter of Credit (based on the foregoing percentage amounts)
is less than any such minimum fee, the portion of such minimum fee paid by the
Borrower which is equal to such actual payment commission shall be shared
pro-rata by the Banks, while the portion of such minimum fee paid by the
Borrower which is in excess of such actual payment commission shall be retained
by the Agent for its sole account.
(b) Banker's Acceptances. The Borrower shall pay to the Agent, for
its sole account, fees in an amount or amounts which are normally charged by the
Agent to comparable customers respecting documentary banker's acceptances. The
Borrower shall pay to the Agent on behalf and for the ratable benefit of each of
the Banks a payment commission equal to a percentage amount per annum equal to
the Agent's "reference rate" with respect to Documentary Banker's Acceptances,
plus the applicable Margin for LIBOR Loans, on the face amount of Documentary
Banker's Acceptances, payable upon the creation of such Documentary Banker's
Acceptances. The commissions and fees referenced in this subsection (b) shall be
calculated on the basis of a year of 360 days for the actual number of days
elapsed. Notwithstanding anything herein to the contrary, all Documentary
Banker's Acceptance fees shall be paid to the Agent; payment commissions on
25
Documentary Banker's Acceptances shall be shared pro-rata by the Banks, provided
that if the actual payment commission with respect to a Documentary Banker's
Acceptance (based on the foregoing percentage amounts) is less than any such
minimum fee, the portion of such minimum fee paid by the Borrower which is equal
to such actual payment commission shall be shared pro-rata by the Banks, while
the portion of such minimum fee paid by the Borrower which is in excess of such
actual payment commission shall be retained by the Agent for its sole account.
Section 3.7. Payments Generally.
(a) All payments under this Agreement on the Notes shall be made in
the Applicable Currency of the relevant Borrowing in immediately available funds
to the Agent for the ratable benefit of the Banks, in accordance with their
respective Commitment Proportions, not later than 1:00 p.m. local time in the
place of payment on the relevant dates specified above (each such payment made
after such time on such date is to be deemed to have been made on the next
succeeding Banking Day), to the Agent at its Payment Office for the Applicable
Currency. The Borrower will notify the Agent of any payment pursuant to the
provisions of this Section at the same time it makes any such payment. The Agent
may (but shall not be obligated to) debit the amount of any such payment which
is not made by such time to any ordinary deposit account of the Borrower with
the Agent; provided, however, that the Agent shall not be permitted to debit any
funds which are not available to the Borrower other than on an overdraft basis.
The Borrower shall, at the time of making each payment under this Agreement or
the Notes, specify to the Agent the principal or other amount payable by the
Borrower under this Agreement or the Notes to which such payment is to be
applied; provided, however, that in the event that the Borrower fails to so
specify, or if a Default or an Event of Default has occurred and is continuing,
the Agent and the Banks shall apply such payment as they may elect in their sole
discretion. If the due date of any payment under this Agreement or the Notes
would otherwise fall on a day which is not a Banking Day, such date shall be
extended to the next succeeding Banking Day and interest shall be payable for
any principal so extended for the period of such extension.
(b) All payments made by the Borrower under this Agreement, the
Notes or the other Facility Documents shall be made free and clear of, and
without deduction or withholding for or on account of, Taxes. If any Taxes are
withheld from any amounts payable to any Bank hereunder or under the Facility
Documents, the amounts so payable to such Bank shall be increased to the extent
necessary to yield to such Bank (after payment of all Taxes) interest or any
such other amounts payable hereunder at the rates or in the amounts specified in
this Agreement, the Notes and the other Facility Documents. Whenever any Taxes
are payable by the Borrower, as promptly as possible thereafter, the Borrower
shall send to such Bank a certified copy of an original official receipt
received by the Borrower showing payment thereof. If the Borrower fails to pay
any Taxes when due to the appropriate taxing authority or fails to remit to the
Banks the required receipts or other required documentary evidence, the Borrower
shall indemnify the Banks for any incremental taxes, interest or penalties that
may become payable by any Bank as a result of any such failure. The agreements
in this subsection shall survive the termination of this Agreement and the
Facility Documents and the payment of the Notes and all other amounts payable
hereunder or thereunder.
Section 3.8. Judgment Currency.
26
The currency in which each Loan made hereunder is denominated and
the place of payment designated therefor is of the essence. The payment
obligation of the Borrower hereunder in any Approved Currency and designated
place of payment shall not be discharged by an amount paid in another currency
or in another place, whether pursuant to a judgment or otherwise, to the extent
that the amount so paid on prompt conversion to the currency in which such Loan
is denominated and transferred to the designated place of payment under normal
banking procedures does not yield the amount owing hereunder at the designated
place of payment. In the event that any payment by the Borrower, whether
pursuant to a judgment or otherwise, upon such conversion and transfer does not
result in payment of such amount in the Approved Currency at the designated
place of payment, the Agent shall be entitled to demand immediate payment of,
and shall have a separate cause of action against the Borrower for, the
additional amount necessary to yield the amount of such currency owing
hereunder.
Section 3.9. Foreign Exchange Indemnity.
If any sum due from the Borrower or any Guarantor under this
Agreement or any order or judgment given or made in relation hereto has to be
converted from the currency (the "first currency") in which the same is payable
hereunder or under such order or judgment into another currency (the "second
currency") for the purpose of (a) making or filing a claim or proof against the
Borrower or any Guarantor with any court, or tribunal, regulatory body,
arbitration panel, or other body having jurisdiction over the claim or proof, or
(b) enforcing any order or judgment given or made in relation hereto, the
Borrower or any Guarantor, as the case may be, shall indemnify and hold harmless
each of the Persons to whom such sum is due from and against any loss actually
suffered as a result of any discrepancy between (i) the rate of exchange used to
convert the amount in question from the first currency into the second currency
and (ii) the rate or rates of exchange at which such Person, acting in good
faith, purchased the first currency with the second currency after receipt of a
sum paid to it in the second currency in satisfaction, in whole or in part, of
any such order, judgment, claim or proof. The foregoing indemnity shall
constitute a separate obligation of the Borrower and the Guarantors distinct
from its other obligations hereunder and shall survive the giving or making of
any judgment or order in relation to all or any of such other obligations.
27
ARTICLE 4.
YIELD PROTECTION, ETC.
Section 4.1. Certain Compensation.
(a) The Borrower hereby agrees to indemnify the Banks against any
actual loss or expense which the Banks or any one of them may sustain or incur
as a consequence of any of the following:
(i) the receipt or recovery by the Bank, whether by voluntary
prepayment, acceleration or otherwise, of all or any part of a LIBOR Loan prior
to the last day of an Interest Period applicable thereto;
(ii) the conversion, prior to the last day of an applicable
Interest Period, of a LIBOR Loan into a Base Rate Loan;
(iii) the failure by the Borrower to borrow any LIBOR Loan,
convert any Base Rate Loan to a LIBOR Loan or continue any LIBOR Loan on the
date of borrowing, conversion or continuation by the Borrower pursuant to the
provisions hereof; or
(iv) the failure by the Borrower to pay, punctually on the due
date thereof, any amount payable by the Borrower with respect to or on account
of any LIBOR Loan.
Without limiting the effect of the foregoing, the amount to be paid
by the Borrower to the Agent on behalf of any Bank in order to so indemnify such
Bank for any actual loss occasioned by any of the events described in the
preceding paragraph, whether existing or prospective, and as liquidated damages
therefor, shall be equal to the excess, discounted to its present value as of
the date paid to the Agent, of (x) the amount of interest which otherwise would
have accrued on the principal amount so received, recovered, converted or not
borrowed during the period (the "Indemnity Period") commencing with the date of
such receipt, recovery, conversion, or failure to borrow to the last day of the
applicable Interest Period for such LIBOR Loan at the rate of interest
applicable to such LIBOR Loan (or the rate of interest agreed to in the case of
a failure to borrow) provided for herein (prior to default) over (y) the amount
of interest which would be earned by such Bank during the Indemnity Period if it
invested the principal amount so received, recovered, converted or not borrowed
at the rate per annum approximately equal to LIBOR, on an amount approximately
equal to such principal amount for a period of time comparable to such Indemnity
Period.
(b) A certificate as to any additional amounts payable pursuant to
this Section 4.1 setting forth the basis and method of determining such amounts
shall be conclusive, absent demonstrable error, as to the determination by each
Bank set forth therein if made reasonably and in good faith. The Borrower shall
pay to the Agent any amounts so certified to the Agent by a Bank within 10 days
of receipt of any such certificate. For purposes of this Section 4.1, all
references to the "Bank" shall be deemed to include any participant in this
Agreement and/or the Loans.
28
Section 4.2. Additional Costs.
(a) The Borrower shall pay to the Agent on behalf of any Bank, from
time to time, within two days of the demand of any such Bank, such amounts as
such Bank may reasonably determine to be necessary to compensate it for any
costs which such Bank reasonably determines are attributable to its obligation
to make any Loan hereunder, or any reduction in any amount receivable by such
Bank hereunder in respect of any such Loans or such obligation (such increases
in costs and reductions in amounts receivable being herein called "Additional
Costs"), resulting from any Regulatory Change which: (i) changes the basis of
taxation of any amounts payable to such Bank under this Agreement or its Note or
any Letter of Credit or any Documentary Banker's Acceptance in respect of any of
such Loans or obligations (other than taxes imposed on the overall net income or
franchise of such Bank or of its Lending Office for any of such Loans by the
jurisdiction in which such Bank has its principal office or such Lending
Office); or (ii) imposes or modifies any reserve, special deposit, deposit
insurance or assessment, minimum capital, capital ratio or similar requirements
relating to any extensions of credit or other assets of, or any deposits with or
other liabilities of, such Bank (including any of such Loans or any deposits
referred to in the definitions of "LIBOR Loans" or "Letters of Credit" or
"Documentary Banker's Acceptances" in Section 1.1); or (iii) imposes any other
condition affecting this Agreement, or its Note (or any of such extensions of
credit or liabilities) or any Letter of Credit or any Documentary Banker's
Acceptance and such Bank's obligations with respect thereto. Each Bank will
notify the Agent, and the Agent shall notify the Borrower of any event occurring
after the date of this Agreement which will entitle such Bank to compensation
pursuant to this Section 4.2(a) as promptly as practicable after it obtains
knowledge thereof and determines to request such compensation, which notice
shall set forth the basis of the calculation of such additional compensation.
The determination by any Bank of such amount, if done in good faith on the basis
of any reasonable method, shall, in the absence of any demonstrable error, be
conclusive.
(b) Without limiting the effect of the foregoing provisions of this
Section 4.2, in the event that, by reason of any Regulatory Change, any Bank
either (i) incurs Additional Costs based on or measured by the excess above a
specified level of the amount of a category of deposits or other liabilities of
such Bank which includes deposits by reference to which the interest rate on
LIBOR Loans is determined as provided in this Agreement or a category of
extensions of credit or other assets of such Bank which includes LIBOR Loans or
(ii) becomes subject to restrictions on the amount of such a category of
liabilities or assets which it may hold, then, if such Bank so elects by notice
to the Agent, the obligation of such Bank to make LIBOR Loans hereunder shall be
suspended until the date such Regulatory Change ceases to be in effect (in which
case the provisions of Section 4.5 shall be applicable).
(c) Without limiting the effect of the foregoing provisions of this
Section 4.2 (but without duplication), the Borrower shall pay to the Agent, and
the Agent shall pay to any Bank from time to time on request such amounts as
such Bank may reasonably determine to be necessary to compensate such Bank for
any costs which it reasonably determines are attributable to the maintenance by
it or any of its Affiliates pursuant to any law or regulation of any
jurisdiction or any interpretation, directive or request (whether or not having
the force of law and whether in effect on
29
the date of this Agreement or thereafter) of any court or governmental or
monetary authority, of capital in respect of its Loans or other obligations
hereunder (such compensation to include, without limitation, an amount equal to
any reduction in return on assets or equity of such Bank to a level below that
which it could have achieved but for such law, regulation, interpretation,
directive or request). Each Bank will notify the Agent, and the Agent will
notify the Borrower if it is entitled to compensation pursuant to this Section
4.2(c) as promptly as practicable after it determines to request such
compensation, which notice shall set forth the basis of the calculation of such
additional compensation. The determination by any Bank of such amount, if done
in good faith on the basis of any reasonable method, shall, in the absence of
any demonstrable error, be conclusive.
(d) Determinations and allocations by a Bank for purposes of this
Section 4.2 of the effect of any Regulatory Change pursuant to subsections (a)
or (b), or of the effect of capital maintained pursuant to subsection (c), on
its costs of making or maintaining Loans or its obligation to make Loans, or on
amounts receivable by, or the rate of return to, it in respect of Loans, and of
the additional amounts required to compensate such Bank under this Section 4.2,
shall be conclusive absent manifest error.
Section 4.3. Limitations on Types of Loans.
Anything herein to the contrary notwithstanding, if:
(a) any Bank determines (which determination shall be conclusive)
that quotations of interest rates for the relevant deposits referred to in the
definition of "LIBOR Loans" in Section 1.1 are not being provided in the
relevant amounts or for the relevant maturities for purposes of determining the
rate of interest for any LIBOR Loans as provided in this Agreement; or
(b) any Bank determines (which determination shall be conclusive)
and notifies the Agent, and the Agent notifies the Borrower that the relevant
rates of interest referred to in the definition of "LIBOR Loans" in Section 1.1
upon the basis of which the rate of interest for any type of LIBOR Loans is to
be determined do not adequately cover the cost to such Bank of making or
maintaining such Loans, then, and so long as such condition remains in effect,
such Bank shall be under no obligation to make LIBOR Loans.
Section 4.4. Illegality.
Notwithstanding any other provision in this Agreement, in the event
that it becomes unlawful for any Bank or its Lending Office to honor its
obligation to make or maintain LIBOR Loans hereunder, then such Bank shall
promptly notify the Agent, and the Agent shall notify the Borrower thereof and
such Bank's obligation to make or maintain LIBOR Loans hereunder shall be
suspended until such time as such Bank may again make and maintain such affected
Loans (in which case the provisions of Section 4.5 shall be applicable).
Section 4.5. Certain LIBOR Loans Pursuant to Section 4.2, 4.3
and 4.4.
30
If an event referred to in Section 4.2, 4.3 or 4.4 has occurred, the
affected Bank shall be required to make Base Rate Loans in accordance with this
Agreement, and all LIBOR Loans of such Bank then outstanding shall be
automatically converted into Base Rate Loans on the date specified by such Bank
in such notice, and, to the extent that LIBOR Loans are so made as (or converted
into) Base Rate Loans, all payments of principal which would otherwise be
applied to such Bank's LIBOR Loans shall be applied instead to its Base Rate
Loans. In the event of any conversion of any LIBOR Loan to a Base Rate Loan
pursuant to this Section 4.5 prior to the maturity date with respect to such
LIBOR Loan, the Borrower shall pay to the Agent for the account of the relevant
Bank all amounts required to be paid pursuant to Section 4.1 hereof.
Section 4.6. Change of Lending Office.
Each Bank agrees that, upon the occurrence of any event giving rise
to the operation of Sections 4.2, 4.3 or 4.4 with respect to such Bank, it will,
if requested by the Borrower, use reasonable efforts (subject to overall policy
considerations of such Bank) to designate another lending office for any Loans
or Letters of Credit affected by such event; provided that such designation is
made on such terms that, in the good faith judgment of such Bank, such Bank and
its lending office suffer no economic, legal or regulatory disadvantage, with
the object of avoiding the consequences of the event giving rise to the
operation of any such Section.
Section 4.7. Replacement of Banks.
Upon the occurrence of any event giving rise to the operation of
Section 4.2, 4.3 or 4.4 with respect to any Bank which results in such Bank
charging to the Borrower increased costs, the Borrower shall have the right, if
no Event of Default then exists or would exist after giving effect to such
replacement, to replace such Bank (the "Replaced Bank") with one or more other
Eligible Transferee or Transferees, each of which shall be reasonably acceptable
to the Agent (collectively, the "Replacement Bank"); provided that (a) at the
time of any replacement pursuant to this Section 4.7, the Replacement Bank shall
enter into one or more assignment and assumption agreements pursuant to Section
12.5 pursuant to which the Replacement Bank shall acquire the Revolving Credit
Commitment and outstanding Revolving Credit Loans of, and in each case
participations in Letters of Credit by, the Replaced Bank and, in connection
therewith, shall pay to (i) the Replaced Bank in respect thereof an amount equal
to the sum of (x) an amount equal to the principal of, and all accrued interest
on, all outstanding Revolving Credit Loans of the Replaced Bank, (y) an amount
equal to all unpaid drawings under outstanding Letters of Credit that have been
funded by (and not reimbursed to) such Replaced Bank, together with all then
unpaid interest with respect thereto at such time and (z) an amount equal to all
accrued, but theretofore unpaid, fees hereunder owing to the Replaced Bank
pursuant to Article III hereof, and (ii) the Agent as issuer of Letters of
Credit hereunder an amount equal to such Replaced Bank's pro rata share of any
unpaid drawing relating to outstanding Letters of Credit issued by the Agent
(which at such time remains an unpaid drawing) to the extent such amount was not
therefore funded by such Replaced Bank, and (b) all obligations of the Borrower
then owing to the Replaced Bank (other than those specifically described in
clause (a) above in respect of which the purchase price has been, or is
concurrently being, paid, but including all amounts, if any, owing under
Sections 4.2, 4.3 or 4.4) shall be paid in full to such Replaced Bank
concurrently with such replacement. Upon the execution of the
31
respective assignment and assumption agreements referred to above, the payment
of amounts referred to in clauses (a) and (b) above, the Replacement Bank shall
become a Bank hereunder and the Replaced Bank shall cease to constitute a Bank
hereunder, except with respect to indemnification provisions under this
Agreement, which shall survive as to such Replaced Bank.
Section 4.8. Survival.
The indemnities and other obligations set forth in this Article 4
shall survive payment in full of all Loans or extensions of credit made pursuant
to this Agreement and the Revolving Credit Termination Date.
ARTICLE 5.
CONDITIONS PRECEDENT
Section 5.1. Documentary Conditions Precedent.
The obligations of the Banks to make the Loans (including, without
limitation, issuing Letters of Credit) on or after the date hereof are subject
to the conditions precedent that:
(a) each Bank shall have received on or before the date hereof each
of the following, in form and substance reasonably satisfactory to such Bank and
its counsel:
(i) this Agreement and the Revolving Credit Notes duly
executed by the Borrower;
(ii) a certificate of the Secretary of the Borrower and each
of the Guarantors, dated the Closing Date, attesting to all corporate action
taken by such entity, including resolutions of its Board of Directors
authorizing the execution, delivery and performance of the Facility Documents
and each other document to be delivered pursuant to this Agreement, together
with certified copies of the certificate or articles of incorporation and the
by-laws of the Borrower and each of the Guarantors; and, such certificate shall
state that the resolutions and corporate documents thereby certified have not
been amended, modified, revoked or rescinded as of the date of such certificate;
(iii) a certificate of the Secretary of the Borrower and each
of the Guarantors, dated the Closing Date, certifying the names and true
signatures of the officers of such entity authorized to sign the Facility
Documents and the other documents to be delivered by such entity under this
Agreement;
(iv) a certificate of a duly authorized officer of the
Borrower, dated the Closing Date, stating that the representations and
warranties in Article 6 are true and correct on such date as though made on and
as of such date and that no event has occurred and is continuing which
constitutes a Default or Event of Default;
32
(v) Guarantees, duly executed by each Guarantor;
(vi) a favorable opinion of counsel for the Borrower and
Guarantors, dated the Closing Date, in substantially the form of Exhibit E;
(vii) satisfactory evidence that the Borrower and the
Guarantors are duly organized, validly existing and in good standing under the
laws of their respective jurisdictions of incorporation and each other
jurisdiction where qualification is necessary;
(viii) audited consolidated and consolidating balance sheets
of the Borrower and its Subsidiaries as at December 30, 1995, and consolidated
and consolidating income statements and statements of cash flows of the Borrower
and its Subsidiaries for the fiscal year then ended, all prepared in accordance
with GAAP, together with the unqualified opinion thereon of BDO Xxxxxxx,
independent certified public accountants, and unaudited consolidated and
consolidating balance sheet of the Borrower and its Subsidiaries as at September
28, 1996, together with income statements and statements of cash flows of the
Borrower and its Subsidiaries for the fiscal quarter ended September 28, 1996
and for the period commencing at the end of the previous fiscal year and ending
with the end of such quarter, each prepared by or under the supervision of the
chief financial officer of the Borrower in accordance with GAAP;
(ix) such other documents, instruments, approvals, opinions
and evidence as the Banks may reasonably require;
(b) the Borrower shall have paid or caused to be paid to the Banks
in full the Up Front Fee and all other fees required to be paid hereunder or in
connection herewith, and to the Agent in full all accrued fees and expenses of
the Agent in connection with the preparation, execution and delivery of this
Agreement and the other Facility Documents and the consummation of the
transactions contemplated thereby; and the Borrower shall have paid or caused to
be paid to the "Banks" and the "Agent" under the "Credit Agreement" all
outstanding "Revolving Credit Loans" thereunder and all accrued interest
thereon, and all accrued commissions and fees under such Credit Agreement;
(c) the Borrower and the Guarantors shall have obtained all
consents, permits and approvals required in connection with the execution,
delivery and performance by the Borrower and the Guarantors of their obligations
hereunder and such consents, permits and approvals shall continue in full force
and effect;
(d) all legal matters in connection with this financing shall be
reasonably satisfactory to the Banks and their counsel; and
(e) the Borrower shall provide reasonably satisfactory evidence that
neither it nor any Guarantor is in default with respect to any contractual
obligations to which it is a party, the effect of which could reasonably be
expected to be material and adverse to the Borrower or any Guarantor, or to the
ability of the Borrower or any Guarantor to perform its obligations hereunder or
under the other Facility Documents.
33
Section 5.2. Additional Conditions Precedent.
The obligations of the Banks to make any Loan (including, without
limitation, issuing Letters of Credit or creating Documentary Banker's
Acceptances) shall be subject to the further conditions precedent (which shall
be in addition to, and shall not be deemed to limit or modify, any of the other
terms and conditions hereunder) that on the date of such Loan the following
statements shall be true:
(a) (i) with respect to any Loan made to the Borrower on the date
hereof, the representations and warranties contained in Article 6 hereof are
true and correct on and as of the date hereof, and (ii) with respect to any Loan
made after the date hereof, the representations and warranties contained in
Article 6 hereof, which for purposes of this Section, shall be deemed to relate
to the Borrower and to each Guarantor as if each such Person were the subject of
each such representation and warranty, are true and correct in all material
respects on and as of the date of such Loan as though made on and as of such
date (except when such representation or warranty by its terms relates to the
date hereof or another specific date);
(b) no Default or Event of Default has occurred and is continuing or
would result from any such Loan; and
(c) no material adverse change shall have occurred in the business,
properties, financial condition or operations of the Borrower or any Guarantor
or in the ability of the Borrower or any Guarantor to perform any of its
obligations under this Agreement or under any of the Facility Documents with
respect to any Loan since the date of the then most recent (i.e., most recent to
the date of the relevant Loan) financial statements of the Borrower delivered or
required to be delivered to the Banks hereunder or in connection herewith.
Section 5.3. Deemed Representations.
Each notice of a Loan or submission to the Agent of a Letter of
Credit application, and the acceptance by the Borrower of the proceeds thereof
or the issuance of such Letter of Credit shall constitute a representation and
warranty that the statements contained in Section 5.2 are true and correct as of
the date of such Loan or the issuance of such Letter of Credit.
ARTICLE 6.
REPRESENTATIONS AND WARRANTIES
The Borrower and, where applicable, each Guarantor, hereby
represents and warrants that:
Section 6.1. Incorporation, Good Standing and Due
Qualifications; Compliance with Law.
34
Except as set forth in Schedule 6.1, each of the Borrower and its
Subsidiaries and the Guarantors is duly incorporated, validly existing and in
good standing under the laws of its respective jurisdiction of incorporation,
has the requisite power and authority to own its assets and to transact the
business in which it is now engaged or presently proposes to be engaged, and is
duly qualified as foreign corporations and in good standing under the laws of
each other jurisdiction in which such qualification is required except where the
failure to so qualify and/or be in good standing would not in any case or in the
aggregate, have a material adverse effect on the operations, business, property
or financial condition of the Borrower and its Subsidiaries and the Guarantors
taken as a whole or on the ability of the Borrower or any Guarantor, as the case
may be, to perform its obligations hereunder or under the Facility Documents. In
addition, the Borrower and each of its Subsidiaries and each Guarantor is in
compliance with all laws, treaties, rules or regulations, and determinations or
orders of or with respect to all arbitrations, courts or other governmental
authorities, in each case applicable to or binding upon it or any of its
material property or to which it or any of its material property is subject,
except to the extent that the failure to so comply would not, in any case or in
the aggregate, have a material adverse effect on the operations, business,
property or financial condition of the Borrower and its Subsidiaries taken as a
whole or on the ability of the Borrower or any Guarantor to perform its
obligations hereunder.
Section 6.2. Power and Authority; No Conflicts.
The execution, delivery and performance by the Borrower and the
Guarantors of each of the Facility Documents to which it is a party have been
duly authorized by all necessary corporate or partnership action and do not and
will not: (a) require any consent or approval of the stockholders or partners of
the Borrower or any of its Subsidiaries or any of the Guarantors; (b) contravene
the charter or by-laws of the Borrower or any of its Subsidiaries or any of the
Guarantors; (c) violate any provision of, or require any filing, registration,
consent or approval under, any law, rule, regulation (including, without
limitation, the provisions of Regulation G, T, U or X of the Board of Governors
of the Federal Reserve system as in effect from time to time), order, writ,
judgment, injunction, decree, determination or award presently in effect having
applicability to the Borrower or any of its Subsidiaries or any of the
Guarantors; (d) result in a breach of or constitute a default or require any
consent under any indenture or loan or credit agreement or any other agreement,
lease or instrument to which the Borrower or any of its Subsidiaries or any of
the Guarantors is a party or by which properties of the Borrower or any of its
Subsidiaries or any of the Guarantors may be bound or affected; (e) result in or
require the creation or imposition of any Lien upon or with respect to any of
the properties now owned or hereafter acquired by the Borrower or any of its
Subsidiaries or any of the Guarantors; or (f) cause the Borrower or any of its
Subsidiaries or any of the Guarantors to be in default under any such rule,
regulation, order, writ, judgment, injunction, decree, determination or award or
any such indenture, agreement, lease or instrument, except, in the case of
clauses (c), (d), and (f) above, where such violation, failure to satisfy such
requirement, breach, default or failure to obtain consent as the case may be,
would not, in any case or in the aggregate, have a material adverse effect upon
the operations, business, property or financial condition of the Borrower and
its Subsidiaries taken as a whole or on the ability of the Borrower or any
Guarantor to perform its obligations hereunder.
Section 6.3. Legally Enforceable Agreements.
35
Each Facility Document is, or when delivered under this Agreement
will be, a legal, valid and binding obligation of the Borrower and each
Guarantor (if such entity or Person is a party thereto) enforceable against such
entities or Person in accordance with its terms, except to the extent that such
enforcement may be limited by applicable bankruptcy, insolvency and other
similar laws affecting creditors' rights generally or by the effect of general
principles of equity which may limit the availability of equitable remedies
(whether in a proceeding at law or in equity).
Section 6.4. Litigation.
There are no actions, suits or proceedings pending or, to the
knowledge of the Borrower or its Subsidiaries or the Guarantors, threatened,
against or affecting the Borrower or any of its Subsidiaries or any of the
Guarantors before any court, governmental agency or arbitrator, which would, in
any one case or in the aggregate, materially adversely affect the financial
condition, operations, properties or business of the Borrower and its
Subsidiaries taken as a whole, or the ability of the Borrower or any Guarantor
to perform its obligations hereunder.
Section 6.5. Financial Statements; Other Liabilities.
(a) The consolidated and consolidating balance sheet of the Borrower
and its Subsidiaries as at December 30, 1995, and the related income statements
and statements of cash flow of the Borrower and its Subsidiaries for the fiscal
year then ended, and the accompanying notes, together with the opinion thereon
of BDO Xxxxxxx, independent certified public accountants, and the interim
financial statements of the Borrower and its Subsidiaries as at and as of (as
the case may be) September 28, 1996, copies of which have been furnished to each
of the Banks, fairly present the financial condition of the Borrower and its
Subsidiaries as at such dates and the results of the operations of the Borrower
for the periods covered by such statements, all in accordance with GAAP
consistently applied (subject, in the case of interim financial statements, to
year-end adjustments and except, in the case of such interim financial
statements, for the absence of GAAP notes thereto).
(b) As of the date hereof, there are no material liabilities or
obligations of the Borrower or any of its Subsidiaries, whether direct or
indirect, absolute or contingent, or matured or unmatured, other than (i) as
disclosed or provided for in the financial statements and notes thereto which
are referred to above, or (ii) which are disclosed elsewhere in this Agreement
or in the Schedules hereto or which are not required to be so disclosed
(including contracts (as such term is used in Section 6.14) of the Borrower, its
Subsidiaries and the Guarantors which are not required to be disclosed pursuant
to Section 6.14), or (iii) arising in the ordinary course of business since
September 28, 1996 or (iv) created by this Agreement. The written information,
exhibits and reports furnished by the Borrower to the Banks in connection with
the negotiation of this Agreement, taken as a whole, are complete and correct in
all material respects.
Section 6.6. Ownership and Liens.
The Borrower and its Subsidiaries and each of the Guarantors has
title to, or valid
36
leasehold interests in, all of its properties and assets, real and personal,
including the properties and assets, and leasehold interests reflected in the
financial statements referred to in Section 6.5, and none of the properties and
assets owned by the Borrower and each of the Guarantors, and none of their
leasehold interests is subject to any Lien, except for Permitted Liens or as
disclosed in Schedule 6.6.
Section 6.7. Taxes.
The Borrower and each of its Subsidiaries and each of the Guarantors
has filed all tax returns (foreign, federal, state and local) required to be
filed (including, without limitation, with respect to payroll and sales taxes),
except where the failure to file would not, in any case, or in the aggregate,
have a material adverse effect upon the operations, business, property or
financial condition of the Borrower and its Subsidiaries taken as a whole or on
the ability of the Borrower or any Guarantor to perform its obligations
hereunder, and the Borrower and each of its Subsidiaries and each of the
Guarantors have paid all Taxes, other than Taxes being contested in good faith
by appropriate proceedings and with respect to which adequate reserves in
conformity with GAAP shall have been provided on the books of the Borrower and
its Subsidiaries and the Guarantors.
Section 6.8. ERISA.
As of the date hereof, the Borrower and its ERISA Affiliates are in
compliance in all material respects with all applicable provisions of ERISA, to
the extent that any failure to comply in all material respects is not reasonably
likely to have a material adverse impact on the operations, business, properties
or financial condition of the Borrower and its Subsidiaries taken as a whole. No
Reportable Event has occurred with respect to any Plan; no notice of intent to
terminate a Plan has been filed nor has any Plan been terminated; no
circumstance exists which constitutes grounds under Section 4042 of ERISA
entitling the PBGC to institute proceedings to terminate, or appoint a trustee
to administer, a Plan, nor has the PBGC instituted any such proceedings; neither
the Borrower, nor any ERISA Affiliate has completely or partially withdrawn
under Sections 4201 or 4204 of ERISA from a Multiemployer Plan; the Borrower and
each of its ERISA Affiliates have met their minimum funding requirements under
ERISA with respect to all of their Plans, there are no Unfunded Vested
Liabilities, and neither the Borrower nor any ERISA Affiliate has incurred any
material liability to the PBGC under ERISA.
Section 6.9. Subsidiaries and Ownership of Stock.
As of the date hereof, Schedule 6.9 is a complete and correct list
of all Subsidiaries of the Borrower.
Section 6.10. Credit Arrangements.
Schedule 6.10 is a complete and correct list of all credit
agreements, indentures, purchase agreements, guaranties, Capital Leases and
other investments, agreements and arrangements in effect on the date of this
Agreement providing for or relating to extensions of credit to the Borrower or
any of the Guarantors for borrowed money (including agreements and
37
arrangements for the issuance of letters of credit or for acceptance financing)
in respect of which the Borrower or any of the Guarantors is in any manner
directly or contingently obligated; and the maximum principal or face amounts of
the credit in question, outstanding and which can be outstanding, are correctly
stated, and all Liens of any nature given or agreed to be given as security
therefor are correctly described or indicated in such Schedule.
Section 6.11. Operation of Business.
The Borrower and its Subsidiaries and the Guarantors possess all
licenses, permits, franchises, patents, copyrights, trademarks and trade names,
or rights thereto, to conduct their respective businesses substantially as now
conducted and as presently proposed to be conducted, except where the failure to
do so would not, in any case, have a material adverse effect upon the
operations, business, property or financial condition of the Borrower and its
Subsidiaries taken as a whole or on the ability of the Borrower or any Guarantor
to perform its obligations hereunder.
Section 6.12. Hazardous Substances.
The Borrower and its Subsidiaries and the Guarantors are in material
compliance with all applicable Environmental Laws, and have obtained all
necessary licenses and permits required to be issued pursuant to any applicable
Environmental Law, except where the failure to so comply or to obtain such
licenses or permits would not in any case or in the aggregate have a material
adverse effect on the business, property or financial condition of the Borrower
and its Subsidiaries or on the ability of the Borrower or any Guarantor to
perform its obligations hereunder. As of the date hereof, neither the Borrower
nor any of its Subsidiaries nor any of the Guarantors has received any notice or
communication from any governmental agency with respect to (i) any Hazardous
Substance relative to its operations, property or acts or (ii) any
investigation, demand or request pursuant to or enforcing any applicable
Environmental Law relating to it or its operations, in each case, except where
the subject matter thereof would not have a material adverse effect upon the
operations, business, property or financial condition of the Borrower and its
Subsidiaries taken as a whole or on the ability of the Borrower or any Guarantor
to perform its obligations hereunder, and no such investigation is pending, or
to the best knowledge of the Borrower, its Subsidiaries, or any Guarantor,
threatened.
Section 6.13. No Default on Outstanding Judgments or Orders.
Each of the Borrower and its Subsidiaries and the Guarantors has
satisfied all judgments and neither the Borrower nor any of its Subsidiaries is
in default with respect to any judgment, writ, injunction, decree, rule or
regulation of any court, arbitrator or federal, state, municipal or other
governmental authority, commission, board, bureau, agency or instrumentality,
domestic or foreign, except to the extent that such defaults would not, in any
case or in the aggregate, have a material adverse effect on the operations,
business, property or financial condition of the Borrower and its Subsidiaries
taken as a whole or on the ability of the Borrower or any Guarantor to perform
its obligations hereunder.
Section 6.14. Material Contracts.
38
As of the date hereof, Schedule 6.14 sets forth a true and correct
list of all contracts of the Borrower or any of its Subsidiaries and the
Guarantors which (i) with respect to leases of real property, involve the
payment per year of more than $1,000,000, (ii) with respect to contracts (other
than leases of real property), could reasonably be expected to involve the
payment during the remainder of their term of more than $2,000,000 (other than
purchase and sales contracts entered into in the ordinary course of business) or
(iii) are guarantees listed on Schedule 6.10 to this Agreement (each, a
"Material Contract"). As of the date hereof, none of the Borrower, any of its
Subsidiaries or any of the Guarantors, or to the Borrower's, its Subsidiaries'
or any of the Guarantors' knowledge, any other party to any Material Contract,
has breached or is in default under the terms of, or has caused or permitted to
exist any event that with or without due notice or lapse of time or both would
constitute a default or event of default under, any such Material Contract, and
which breach or default, individually or in the aggregate, would have a material
adverse effect on the business, financial condition or operations of the
Borrower and its Subsidiaries taken as a whole or on the ability of the Borrower
or any Guarantor to perform its obligations hereunder. As of the date hereof,
all such Material Contracts are valid, binding and in full force and effect with
respect to the Borrower, its Subsidiaries or the Guarantors, as the case may be,
and to the Borrower's knowledge, all such contracts are enforceable in
accordance with their respective terms, except as such enforceability may be
limited by bankruptcy, reorganization or similar laws, or by general principles
of equity which may limit the availability of equitable remedies (whether at any
proceeding at law or in equity), except to the extent that breaches or
violations of the foregoing provisions of this sentence would not, individually
or in the aggregate, have a material adverse effect on the operations, business,
property or financial condition of the Borrower and its Subsidiaries taken as a
whole or on the ability of the Borrower or any Guarantor to perform its
obligations hereunder. As used in this Section 6.14, the word "contract" means
and includes every indenture, loan or credit agreement, lease, mortgage, deed of
trust and other instrument, agency agreement or other agreement or understanding
of any kind, written or oral, whether or not legally enforceable.
39
Section 6.15. Labor Disputes and Acts of God.
As of the date hereof, neither the business nor the properties of
the Borrower or any of its Subsidiaries or any of the Guarantors are affected by
any fire, explosion, accident, strike, lockout or other labor dispute, drought,
storm, hail, earthquake, embargo, act of God or of the public enemy or other
casualty (whether or not covered by insurance), materially and adversely
affecting such business or properties or the operations of the Borrower and its
Subsidiaries taken as a whole, or the ability of the Borrower or any Guarantor
to perform its obligations hereunder (in each case, after giving effect to
insurance).
Section 6.16. Governmental Regulation.
Neither the Borrower nor any of its Subsidiaries is subject to
regulation under the Public Utility Holding Company Act of 1935, the Investment
Company Act of 1940 or any other statute or regulation limiting its ability to
incur indebtedness for money borrowed as contemplated hereby.
Section 6.17. Partnerships.
As of the date hereof, except as disclosed on Schedule 6.17 hereto,
neither the Borrower nor any Guarantor is a partner in any partnership.
Section 6.18. No Forfeiture Proceeding.
Neither the Borrower nor any of its Subsidiaries is engaged in or
proposes to be engaged in the conduct of any business or activity which is
likely to result in a Forfeiture Proceeding, and no Forfeiture Proceeding
against any of them is pending or, to the best knowledge of the Borrower and its
Subsidiaries as of the date hereof, threatened.
Section 6.19. No Default or Event of Default.
No Default or Event of Default has occurred and is continuing under
this Agreement, and immediately prior to the Closing Date, no "Default" or
"Event of Default" under the Credit Agreement shall have occurred which was at
such time continuing.
Section 6.20. Solvency.
Each of the Borrower and the Guarantors is Solvent.
Section 6.21. Material Adverse Change.
No event or series of events has occurred since September 28, 1996
which would, individually or in the aggregate, materially adversely affect, and
there has been no material adverse change since December 30, 1995 in, the
operations, business, properties or financial condition of
40
the Borrower and its Subsidiaries taken as a whole or the ability of the
Borrower or any Guarantor to perform its obligations hereunder.
Section 6.22. Name and Location.
To the best of the Borrower's knowledge, during the five years prior
to the making of this Agreement, neither the Borrower nor any Guarantor has been
known under, or transacted business using, any name or trade style except for
the name set forth above such entity's signature on this Agreement or as
described on Schedule 6.22. All locations at which the Borrower and any
Guarantor transacts business are described in Schedule 6.22. This representation
and warranty shall not survive the date hereof.
ARTICLE 7.
AFFIRMATIVE COVENANTS
So long as any of the Notes or any other Obligations shall remain
unpaid or any Bank shall have any Revolving Credit Commitment hereunder, the
Borrower shall, and the Borrower shall cause each of the Guarantors and each of
the Subsidiaries of the Borrower to:
Section 7.1. Maintenance of Existence.
Except as otherwise provided in this Agreement, preserve and
maintain its corporate existence and remain in good standing in the jurisdiction
of its organization, and qualify and remain qualified, as a foreign corporation
in each jurisdiction in which such qualification is required, except where the
failure to do so would not in any case have a material adverse effect on the
operations, business, property or financial condition of the Borrower or any of
the Guarantors, or on the ability of the Borrower or any such Guarantor to
perform its obligations hereunder.
Section 7.2. Conduct of Business.
Continue to engage principally in the principal businesses conducted
by it on the date hereof.
Section 7.3. Maintenance of Properties.
Maintain, keep and preserve, all of its properties (tangible and
intangible) necessary or useful in the proper conduct of its business in good
working order and condition, ordinary wear and tear excepted, except where the
failure to do so would not in any case have a material adverse effect on the
operations, business, property or financial condition of the Borrower or any of
the Guarantors, or on the ability of the Borrower or any such Guarantor to
perform its obligations hereunder.
41
Section 7.4. Maintenance of Records.
Keep adequate records and books of account, in which complete
entries, reflecting all financial transactions of such Person, will be made.
Section 7.5. Maintenance of Insurance.
Maintain insurance covering its assets and its business with
financially sound and reputable insurance companies or associations in such
amounts and covering such risks (including, without limitation, products
liability) as are usually carried by companies engaged in the same or a similar
business and similarly situated as and when due. The Borrower shall provide the
Agent notice that such policies have been paid in full and shall deliver
certified copies of the policy or policies of such insurance or certificates of
insurance to the Agent if the Agent so requests.
Section 7.6. Compliance with Laws.
Comply with all applicable laws, rules, regulations and orders
("Laws"), except to the extent that the failure to so comply would not have a
material adverse effect on the operations, business, property or financial
condition of the Borrower or any of the Guarantors or on the ability of the
Borrower or any such Guarantor to perform its obligations hereunder.
Section 7.7. Right of Inspection.
At any reasonable time upon reasonable notice during normal business
hours and from time to time, permit the Agent or any Bank or any agent or
representative thereof, to examine and make copies and abstracts from the
records and books of account of, and visit the properties of, such Person and to
discuss the affairs, finances and accounts of such Person with any of its
officers and directors and such entity's independent accountants at the sole
cost and expense of the Banks; provided, however, that notwithstanding the
foregoing to the contrary, upon the occurrence and during the continuance of any
Default or Event of Default, such costs and expenses shall be borne by the
Borrower.
Section 7.8. Reporting Requirements.
Furnish directly to each of the Banks:
(a) as soon as available and in any event within ninety (90) days
after the end of each fiscal year of the Borrower, consolidating and audited
consolidated financial statements of the Borrower and its Subsidiaries
(including, without limitation, the Guarantors), which shall include
consolidated and consolidating balance sheets of the Borrower and its
Subsidiaries (including, without limitation, the Guarantors) as of the end of
such fiscal year, together with consolidated and consolidating income statements
and statements of cash flows of the Borrower and its Subsidiaries (including,
without limitation, the Guarantors) for such fiscal year and as of the end of
and for the prior fiscal year, and including a "break-out" of each Guarantor on
a separate schedule, all prepared in accordance with GAAP and accompanied by an
unqualified opinion thereon by independent
42
certified public accountants reasonably acceptable to the Required Banks
together with an executive summary of the management letter prepared by such
independent certified public accountants; provided, however, that if a Default
or Event of Default has occurred and is continuing, the full text of such
management letter shall be provided to the Agent;
(b) as soon as available and in any event within forty-five (45)
days after the end of each of the first, second and third quarters of each
fiscal year of the Borrower, unaudited consolidated and consolidating financial
statements of the Borrower and its Subsidiaries (including, without limitation,
the Guarantors), which shall include unaudited consolidated and consolidating
balance sheets of the Borrower and the Subsidiaries (including, without
limitation, the Guarantors) as of the end of each such quarter, together with
consolidated and consolidating income statements and statements of cash flows of
the Borrower and its Subsidiaries (including, without limitation, the
Guarantors) for each such quarterly period and for the period commencing at the
end of the previous fiscal year and ending with the end of such quarter, and
including a "break-out" of each Guarantor on a separate schedule, all in
reasonable detail and stating in comparative form the respective figures for the
corresponding date and period in the previous fiscal year and all prepared by or
under the supervision of the chief financial officer of the Borrower in
accordance with GAAP (subject to year-end adjustments and except for the absence
of GAAP notes thereto);
(c) simultaneously with the delivery of the financial reporting
statements referred to in (a) and (b) above, a certificate of the chief
financial officer of the Borrower, certifying that to the best of his knowledge
(i) no Default or Event of Default has occurred and is continuing or, if a
Default or Event of Default has occurred and is continuing, a statement as to
the nature thereof and the action which is proposed to be taken with respect
thereto, with computations demonstrating compliance (or non-compliance, as the
case may be) with the covenants contained in Article 9, and (ii) such financial
statements have been prepared in accordance with GAAP; (subject in the case of
(b) above to year-end adjustments and except for the absence of GAAP notes
thereto);
(d) promptly, and in any event within five (5) Banking Days after
the sending or filing thereof, copies of all proxy statements, financial
statements and reports which the Borrower or any of its Subsidiaries sends to
its stockholders, and copies of all regular, periodic and special reports and
all registration statements which the Borrower or any such Subsidiary files with
the Securities and Exchange Commission or any governmental authority which may
be substituted therefor, or with any national securities exchange or state
securities administration;
(e) simultaneously with the delivery of the annual financial
statements referred to in Section 7.8(a), a certificate of the independent
public accountants who audited such statements to the effect that, in making the
examination necessary for the audit of such statements, they have obtained no
knowledge of any condition or event which constitutes a Default or Event of
Default, or if such accountants shall have obtained knowledge of any such
condition or event, specifying in such certificate each such condition or event
of which they have knowledge and the nature and status thereof;
43
(f) within forty-five (45) days after the end of each fiscal year (a
"Prior Year") of the Borrower, the annual budget of the Borrower and its
Subsidiaries for the fiscal year immediately following the applicable Prior Year
in the form previously delivered pursuant to the Credit Agreement and in
substance satisfactory to the Banks, and copies of any updates, amendments or
modifications to the Borrower's "Corporate Strategic Plan" from time to time,
within five Banking days after the occurrence and completion of the same;
(g) promptly after the Borrower or any Guarantor becomes aware of
the commencement thereof, notice of all actions, suits, and proceedings before
any court or governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, affecting the Borrower or any Guarantor,
including, without limitation, any such proceeding relating to any alleged
violation of any Environmental Law, which, if determined adversely to the
Borrower or any such Guarantor would have a material adverse effect on the
financial condition, properties, or operations of the Borrower and its
Subsidiaries taken as a whole or any such Guarantor or on the ability of the
Borrower and its Subsidiaries taken as a whole or any Guarantor to perform its
obligations hereunder;
(h) as soon as possible and in any event within five days after any
Default or Event of Default has occurred, a written notice setting forth the
details of such Default or Event of Default and the action which is proposed to
be taken by the Borrower or Guarantor with respect thereto;
(i) as soon as possible and in any event within five Banking Days
after the Borrower knows that any of the events or conditions specified below
with respect to any Plan or Multiemployer Plan have occurred or exist, a
statement signed by a senior financial officer of the Borrower setting forth
details respecting such event or condition and the action, if any, which the
Borrower or its ERISA Affiliate proposes to take with respect thereto (and a
copy of any report or notice required to be filed with or given to PBGC by the
Borrower or an ERISA Affiliate with respect to such event or condition):
(i) any Reportable Event;
(ii) the filing under Section 4041 of ERISA of a notice of
intent to terminate any Plan or the termination of any Plan;
(iii) the institution by PBGC of proceedings under Section
4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Plan, or the receipt by the Borrower or any ERISA Affiliate of a
notice from a Multiemployer Plan that such action has been taken by PBGC with
respect to such Multiemployer Plan;
(iv) receipt by the Borrower or ERISA Affiliate of notice from
a Multiemployer Plan of the complete or partial withdrawal by the Borrower or
any ERISA Affiliate under Section 4201 or 4204 of ERISA from a Multiemployer
Plan imposing withdrawal liability (as of the date of such notification)
exceeding $1,000,000 or requiring payments exceeding $1,000,000 per annum;
44
(v) or the receipt by the Borrower or any ERISA Affiliate of
notice from a Multiemployer Plan that it is in reorganization or insolvency
pursuant to Section 4241 or 4245 of ERISA or that it intends to terminate or has
terminated under Section 4041A of ERISA if the aggregate annual contributions of
the Borrower and all ERISA Affiliates to all Multiemployer Plans which are then
in reorganization or being terminated have been increased by over amounts
contributed to such Multiemployer Plans for the plan year immediately preceding
the plan year in which the reorganization or termination occurs by an amount
exceeding $1,000,000; and
(vi) the institution of a proceeding by a fiduciary or any
Multiemployer Plan against the Borrower or any ERISA Affiliate to enforce
Section 515 of ERISA for delinquent contributions in excess of $100,000 which
proceeding is not dismissed within thirty (30) days;
(j) promptly after the furnishing thereof, copies of any reports or
records required to be filed with or furnished to any insurance carriers or
governmental authorities relating to Hazardous Substances located on any of real
properties owned or occupied by the Borrower or any Guarantor;
(k) promptly after the Borrower or any Guarantor knows of the
commencement or threat thereof, notice of any Forfeiture Proceeding;
(l) simultaneously with the delivery of the financial statements
referred to in Sections 7.8(a) and (b) above, quarterly reports in form and
substance satisfactory to the Agent, describing all Acquisitions consummated by
the Borrower and its Subsidiaries during the preceding fiscal quarter, which
reports shall include, without limitation, pro forma calculations demonstrating
that after giving effect to all such Acquisitions, no Default or Event of
Default is occurring hereunder; and
(m) such other information respecting the condition or operations,
financial or otherwise of the Borrower or any of its Subsidiaries or ERISA
Affiliates as the Agent may from time to time reasonably request.
Section 7.9. Payment of Obligations.
Pay, discharge or otherwise satisfy at or before maturity or before
they become delinquent, as the case may be, all material Debt and other material
obligations of whatever nature (including any obligation for taxes or wages),
except for any Debt or other material obligation which is being contested in
good faith and with respect to which, on a consolidated basis, adequate reserves
in conformity with GAAP shall have been provided on the books of the Borrower.
Section 7.10. Subsidiaries.
Simultaneously with their creation, the Borrower shall cause all of
the Domestic Subsidiaries of Xxxx Holdings, Inc., which qualify as Post-Closing
Guarantors in accordance with the definition of that term, to become Guarantors
hereunder.
45
ARTICLE 8.
NEGATIVE COVENANTS.
So long as any of the Notes or other Obligations shall remain unpaid
or any Bank shall have any Revolving Credit Commitment hereunder, the Borrower
shall not, and the Borrower shall cause all Domestic Subsidiaries not to:
Section 8.1. Debt.
Create, incur, assume or suffer to exist, any Debt, except:
(a) Debt of the Borrower under this Agreement or the Notes;
(b) Debt described in Schedule 6.10 (including any renewals,
refinancings or extensions thereof);
(c) Subordinated Debt that shall commence the amortization of
principal after the Revolving Credit Termination Date;
(d) Debt of the Borrower to any Subsidiary, or of any Subsidiary to
the Borrower or to another Subsidiary;
(e) Debt incurred in connection with operating leases entered into
by the Borrower or any of its Subsidiaries consistent with past practices or in
the ordinary course of business;
(f) Notwithstanding anything contained in this Section 8.1 to the
contrary and in addition to any of the Debt described in any of Sections 8.1
(a)-(k) hereof (other than this Section 8.1 (f)), Debt incurred after the date
of this Agreement in an aggregate principal amount not to exceed $50,000,000 at
any time outstanding as to all such Persons; provided that such additional Debt
other than Debt secured by Liens permitted pursuant to Section 8.3 shall rank
pari passu with indebtedness arising under this Agreement;
(g) Debt of the Borrower or any Subsidiary secured by purchase money
Liens permitted by Section 8.3(g);
(h) Debt incurred as a result of bid bonds or performance bonds
incurred by the Borrower or any Subsidiary in the ordinary course of its
business consistent with past practices;
(i) Debt consisting of guarantees permitted under Section 8.2;
(j) Debt of a Subsidiary acquired pursuant to a Permitted
Acquisition (or Debt assumed at the time of a Permitted Acquisition relating to
an asset securing such Debt); provided that (i)
46
such Debt was not incurred in connection with, or in anticipation of, such
Permitted Acquisition and (ii) no Default or Event of Default otherwise exists
or would result therefrom; and
(k) Debt incurred in connection with Capital Leases permitted
hereunder.
Section 8.2. Guarantees.
(a) Create, incur, assume or suffer to exist any guarantees of the
obligations of Subsidiaries, Affiliates or any other related or unrelated
Persons, including Acquired Persons, except (without duplication) for (i)
guarantees of Debt of their respective Subsidiaries and/or Affiliates in an
aggregate amount not to exceed $10,000,000 (in addition to amounts guaranteed
under the guarantees listed as such on Schedule 6.10 hereto (including any
renewals, extensions or refinancings thereof)) at any time outstanding, (ii) the
guarantees by the Borrower and the Guarantors of Debt of Xxxxx Xxxxxx Europe,
Inc. to Rabobank Nederland in an aggregate amount not to exceed at any time
outstanding the Dollar Equivalent of Netherlands Guilders 10,000,000 as
referenced in Section 8.3 (i) hereof (including any renewals, extensions or
refinancings thereof), and (iii) guarantees by the Borrower or any of the
Guarantors of Debt of any of the Guarantors or the Borrower.
(b) Notwithstanding Section 8.2 (a) (i) above, the Borrower, the
Guarantors, and/or the above-referenced Subsidiaries may suffer to exist any
guaranties of an Acquired Person which may exist on the closing date of the
subject Permitted Acquisition, for so long as (i) such guaranties are of the
obligations of an entity which will become a Subsidiary, Affiliate and/or
Guarantor of the Borrower or any Guarantor after the closing date of the
Permitted Acquisition, and (ii) neither the Borrower nor any Guarantor shall
assume such guaranties on or after such closing date.
Section 8.3. Liens.
Create, incur, assume or suffer to exist any Lien upon or with
respect to any of its properties, now owned or hereafter acquired, except the
following ("Permitted Liens"):
(a) Liens for taxes or assessments or other government charges or
levies if not yet due and payable or, if due and payable, if they are being
contested in good faith by appropriate proceedings and for which appropriate
reserves are maintained in conformity with GAAP;
(b) Liens imposed by law, such as mechanic's, materialmen's,
landlord's, warehousemen's and carrier's Liens, and other similar Liens,
securing obligations incurred in the ordinary course of business which are not
past due for more than thirty (30) days, or which are being contested in good
faith by appropriate proceedings and for which appropriate reserves in
accordance with GAAP have been established, including, without limitation, any
Landlord's Lien which is being contested in good faith by appropriate
proceedings and for which appropriate reserves in accordance with GAAP have been
established;
(c) Liens under workers' compensation unemployment insurance, social
security or similar legislation (other than ERISA);
47
(d) Liens, deposits or pledges to secure the performance of bids,
tenders, contracts (other than contracts for the payment of money), leases,
public or statutory obligations, surety, stay, appeal, indemnity, performance or
other similar bonds, or other similar obligations arising in the ordinary course
of business;
(e) judgment and other similar Liens arising in connection with
court proceedings; provided that the execution or other enforcement of such
Liens is effectively stayed and the claims secured thereby are being actively
contested in good faith and by appropriate proceedings;
(f) easements, rights-of-way, restrictions and other similar
encumbrances which, in the aggregate, do not materially interfere with the
occupation, use and enjoyment by the Borrower or any of its Subsidiaries of the
property or assets encumbered thereby in the normal course of its business or
materially impair the value of the property subject thereto;
(g) (i) purchase money Liens on any property heretofore or hereafter
acquired or the assumption of any Lien on any property existing at the time of
such acquisition, (ii) purchase money Liens on any property or assets acquired
in any Permitted Acquisition, whether existing at the time of such Permitted
Acquisition or arising after the time of such Permitted Acquisition by virtue of
such Permitted Acquisition, or the assumption of any Lien on any property or
assets acquired in such Permitted Acquisition existing at the time of such
Permitted Acquisition, provided that no such Lien (i.e., arising in conjunction
with any such Permitted Acquisition) shall at any time encumber any of the
property of the Borrower or any other Subsidiary of the Borrower, or (iii) a
Lien incurred in connection with any conditional sale or other title retention
agreement or a Capital Lease; provided, that in the case of any of (i)-(iii)
above, the creation or incurrence of any such Lien shall not otherwise result in
a Default or Event of Default with respect to any of the other provisions of
this Agreement;
(h) mortgage Liens or deeds of trust on real property owned and
occupied by the Borrower or its Subsidiaries;
(i) Liens existing on the date hereof which are described in Section
7 of Schedule 6.10 hereto; or
(j) Liens granted by any Subsidiary of the Borrower in favor of the
Borrower.
Section 8.4. Investments.
Make any loan or advance to any Person or purchase or otherwise
acquire, any capital stock, obligations or other securities of, make any capital
contribution to, or otherwise invest in, or acquire any interest in any Person
(each of the foregoing, an "Investment"). Notwithstanding the foregoing, the
Borrower shall be entitled to make the following Investments: (i) obligations
issued or guaranteed by states or municipalities within the United States of
America; (ii) obligations issued or guaranteed by the United States of America
or any agency or subdivision thereof; (iii) certificates of deposit, time
deposits, Eurodollar certificates of deposit, bankers acceptances and other
"money market instruments" issued by any bank, trust company or financial
institution
48
organized under the laws of the United States of America or any state thereof
(or, in the case of Eurodollar certificates of deposit, a branch of any such
bank, trust company or financial institution) having capital and surplus in an
aggregate amount not less than $200,000,000, or money market accounts or funds
which invest only in the types of Investments described in this subparagraph
(iii); (iv) commercial paper rated at least Prime-1 by Xxxxx'x Investor
Services, or A-1 by Standard & Poors, or money market accounts or funds which
invest only in the type of Investment described in this subparagraph (iv); (v)
repurchase agreements entered into with any bank, trust company or financial
institution organized under the laws of the United States of America or any
state thereof having capital and surplus in an aggregate amount not less than
$200,000,000, and relating to any of the Investments referred to in any of
clauses (i), (ii) and (iii) above, maturing or being due or payable in full not
more than one year after the relevant investor's acquisition thereof; (vi)
closed-end, over-collateralized, diversified investment funds rated at least AAA
by Standard & Poors; (vii) Investments in Affiliates (other than Subsidiaries)
or non-domestic Subsidiaries in an aggregate amount not to exceed $25,000,000 at
any time outstanding (in addition to such Investments made prior to the Closing
Date which are listed on Schedule 8.4) (for purposes of this subsection, the
phrase "Investment" shall mean only (x) loans which are recorded as debt in
accordance with GAAP, and advances made on behalf of Affiliates or non-domestic
Subsidiaries which are not repaid within 120 days of the date of such advance,
(y) purchase price of the interest purchased (at the time of purchase) or (z)
the amount of cash or the value of assets contributed (at the time of
contribution)), provided that the sum of all investments classified under
clauses (y) and (z) of the preceding parenthetical phrase shall in no event
exceed $7,000,000; (viii) Investments in Guarantors; (ix) Loans to employees, in
an aggregate amount not to exceed $1,000,000 (inclusive of principal and all
interest accrued in accordance with GAAP under the terms of such loans) at any
time outstanding; and (x) Loans to third parties (provided that any such Loans
are reasonably intended to benefit, directly or indirectly, the business or
financial condition of the Borrower) from time to time hereafter in an aggregate
amount not to exceed $5,000,000 (inclusive of principal and all interest accrued
in accordance with GAAP under the terms of such loans) at any time outstanding,
exclusive of the loan to SF Dental Company described in Schedule 8.4 and such
other loans, if any, that may be excluded from this calculation from time to
time by the Banks in their sole and absolute discretion; (xi) Permitted
Acquisitions; and (xii) Investments required to be taken in connection with the
bankruptcy or reorganization of suppliers and customers, and in settlement of
delinquent obligations of, and other disputes with customers and supplies
arising in the ordinary course of business; provided that as a result of and
after giving effect to any such Investment (i.e., any Investment referred to in
any of subsections (i)-(xi) above), no default or Event of Default shall have
occurred.
Section 8.5. Sale of Assets.
Sell, lease, assign, transfer or otherwise dispose of any of its now
owned or hereafter acquired assets (except to the Borrower), except for: (a)
assets disposed of in the ordinary course of business; or (b) the sale or other
disposition of assets no longer used or useful in the conduct of its business;
(c) the sale or other disposition of assets which are substantially
contemporaneously replaced with new assets of similar value and type; (d) sales
or dispositions which, individually or in the aggregate, in any one year period
ending on the anniversary date of the Closing Date or any succeeding anniversary
date thereof, do not exceed at any particular date during any such period,
49
ten (10%) percent, and for the period from the date hereof to (but not
including) the Revolving Credit Termination Date, do not exceed at any
particular date during such period, twenty (20%) percent, of the amount or value
of the assets, determined at the fair market value thereof determined in good
faith and after all necessary due diligence by the Board of Directors of the
Borrower, and its Subsidiaries taken as a whole, determined as at the date of
sale or disposition respecting any such sale or disposition, in arm's length
transactions for fair value, provided that, after giving effect to any such sale
or disposition, no Default or Event of Default shall have occurred; or (e) the
maintenance of the ESOP. Notwithstanding anything to the contrary in this
Agreement, in the event of the permitted sale or other disposition of all or
substantially all the business of a Guarantor which is permitted in accordance
with clause (d) above, such Person's Guarantee shall terminate and be of no
further force or effect, and the parties hereto shall execute and deliver such
documents to the Borrower as the Borrower reasonably requests to evidence that
fact.
Section 8.6. Transactions with Affiliates.
Enter into any transaction, including, without limitation, the
purchase, sale or exchange of property or the rendering of any service, with any
Affiliate, except (a) for transactions between the Borrower and any Guarantor or
any Guarantor with any other Guarantor, (b) for the maintenance of the ESOP, (c)
in the ordinary course of and pursuant to the reasonable requirements of the
relevant Person's business and upon fair and reasonable terms no less favorable
to the relevant Person than would obtain in a comparable arm's length
transaction with a Person not an Affiliate; and (d) for transactions between the
Borrower and any non-Guarantor Subsidiary of the Borrower which conducts
substantially all of its business outside the United States for the purchase of
inventory from the Borrower for a purchase price which is not less than the
Borrower's cost with respect thereto; provided that, after giving effect to any
such transaction (i.e., any of the transactions referred to in any of (a)-(d)
above), no Default or Event of Default shall have occurred.
50
Section 8.7. Mergers, Etc.
Merge or consolidate with, or sell, assign, lease or otherwise
dispose of (whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to,
any Person, or acquire, all or substantially all of the assets or the business
of any Person, except to the extent permitted (x) under Section 8.5 hereof or
(y) under Section 8.8 hereof, and only, in the case of any merger or
consolidation, if the Borrower is the surviving entity, provided that, after
giving effect to any such transaction, no Default or Event of Default shall have
occurred.
Section 8.8. Acquisitions.
Make an Acquisition, except that the Borrower or any Subsidiary of
the Borrower may engage in any Acquisition with any Person whose line or lines
of business are in the medical, dental, veterinary, hospital, or health care
technology fields and are substantially similar to the line or lines of business
in such fields of the Borrower or any Subsidiary, as the case may be, at the
time of such Acquisition, provided that:
(a) after giving effect to any such Acquisition, no Default or Event
of Default shall exist at the time of any such Acquisition or at the time or as
a result of the consummation of the transactions contemplated thereby;
(b) the Borrower shall notify the Banks of the consummation of any
such Acquisition with respect to which the aggregate cash amount paid or payable
exceeds $15,000,000, within 15 Banking Days of the consummation thereof, and
provide the Banks with evidence reasonably satisfactory to the Banks (which
evidence shall include pro forma financial statements) that after giving effect
to such Acquisition, no Default or Event of Default shall have existed at the
time of any such Acquisition or at the time or as a result of the consummation
of the transactions contemplated thereby;
(c) the aggregate cash amounts paid or payable with respect to any
one Acquisition from and after the date hereof to and including the Revolving
Credit Termination Date shall not exceed $25,000,000 without the prior written
consent of the Required Banks;
(d) such Acquisition has been either (1) approved by the board of
directors of the corporation which is the subject of such Acquisition or (2)
recommended for approval by such board to the shareholders of such corporation
and subsequently approved by the shareholders of such corporation as required
under applicable law or by the by-laws and the certificate of incorporation of
such corporation;
(e) if, upon the closing of the transactions contemplated by an
Acquisition, the aggregate amount or value of the assets (i.e., amounts which
would, in conformity with GAAP, be included as assets on a Person's balance
sheet) directly or indirectly acquired in such Acquisition after the Closing
Date which are located in the United States (e.g., in the case of receivables,
51
receivables for which records are maintained at a location in the United States
or with respect to which the principal business and assets of the relevant
account debtor are located in the United States) ("Acquired Assets"; and the
Person holding or owning such Acquired Assets shall be referred to as an
"Acquired Person") would cause such Acquired Person to become a Post-Closing
Guarantor, then such Acquired Person and each of its Subsidiaries that is not at
such time a party to an agreement which prohibits such Acquired Person or
Subsidiary, as the case may be, from becoming a Guarantor hereunder, shall,
immediately upon the consummation of any such transaction become a Guarantor of
the present and future obligations of the Borrower hereunder on terms and
conditions no less favorable to the Banks than those set forth in the
Guarantees;
(f) notwithstanding anything contained herein to the contrary, no
"hostile takeover" (i.e., an Acquisition opposed by the board of directors of
the selling Person or the Person party to such Acquisition) shall be permitted.
(g) Any Acquisition meeting or satisfying the provisions of this
Section 8.8 shall be referred to as a "Permitted Acquisition".
Section 8.9. No Activities Leading to Forfeiture.
Engage in the conduct of any business or activity which would be
likely to result in a Forfeiture Proceeding.
Section 8.10. Corporate Documents; Fiscal Year.
Amend, modify or supplement its certificate or articles of
incorporation or by-laws or, in the case of any partnership, its partnership
agreement, in any way which would materially adversely affect the ability of the
Borrower or any Guarantor to perform its obligations hereunder or change its
fiscal year (other than a change of fiscal year to a year ending December 31).
Section 8.11. Hazardous Substances; Use of Real Property.
Use, or permit the use of, the owned or leased real properties for
conducting any manufacturing, industrial, commercial or retail business which
involves in any way the introduction, manufacture, generation, processing or
storage of any Hazardous Substance in violation, in any material respect, of any
applicable Environmental Law.
Section 8.12. Dividends, etc.
(a) Pay or accrue (i.e., to pay in the future) any cash dividends
(other than to the Borrower), except that the Borrower may pay cash dividends in
any year of up to 40% of the Borrower's Consolidated Net Income for such year in
any fiscal year; or
(b) redeem, repurchase or acquire any stock or securities of the
Borrower for an aggregate purchase price respecting all such transactions in
excess of $5,000,000 per fiscal year; or
52
(c) make any capital distribution in cash or other property (other
than stock dividends); or
(d) take any action which would have an effect equivalent to any of
the foregoing.
Section 8.13. Material Change in Ownership.
(a) Permit any change in the ownership of the Borrower, which
results in any Person or related group of Persons other than the Persons who are
executive officers or directors of the Borrower, or the ESOP, owning
beneficially 30% or more of the outstanding shares of common stock of the
Borrower.
(b) Permit any change in control of the Borrower's Board of
Directors, whereby the Continuing Directors shall cease to constitute a majority
of the Borrower's Board of Directors.
Section 8.14. Other Material Adverse Change.
Suffer or permit any other material adverse change in the operations
of the Borrower and its Subsidiaries taken as a whole.
ARTICLE 9.
FINANCIAL COVENANTS
So long as any of the Notes or other Obligations shall remain
unpaid, or any Bank shall have any Revolving Credit Commitment under this
Agreement, the Borrower shall:
Section 9.1. Minimum Consolidated Net Worth.
Maintain at all times during each of the periods set forth below, a
Consolidated Net Worth of not less than the amounts set forth below opposite the
applicable period:
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Period Amounts
------ -------
Fiscal Year 1996 Actual Consolidated Net Worth at
12/31/95 plus the net proceeds of the
1996 offering of securities by the
Borrower plus 50% of positive
Consolidated Net Income for the
current fiscal year to date
Any Fiscal Year thereafter Prior year-end Actual Consolidated
Net Worth plus the net proceeds of any
offering of securities by the Borrower
plus 50% of positive Consolidated Net
Income for the current fiscal year to date
Section 9.2. Consolidated Maximum Capital Expenditures.
Not be permitted to make aggregate Capital Expenditures on a
consolidated basis with its Subsidiaries (the term Subsidiaries, for all
purposes contained in this Article 9, shall mean all Subsidiaries of the
Borrower whose results are required in accordance with GAAP to be consolidated
with the results of the Borrower) in excess of $15,000,000 in any fiscal year or
$55,000,000 during the term of the Revolving Credit Facility.
Section 9.3. Minimum Consolidated Cash Flow Coverage.
Maintain at all times on a rolling four-quarter basis, a ratio of
(A) Consolidated Net Profit of the Borrower and its Subsidiaries after
Consolidated Taxes of the Borrower and its Subsidiaries plus consolidated
Depreciation of the Borrower and its Subsidiaries plus consolidated Amortization
of the Borrower and its Subsidiaries plus consolidated Non-Cash Charges of the
Borrower and its Subsidiaries (other than consolidated Depreciation of the
Borrower and its Subsidiaries and consolidated Amortization of the Borrower and
its Subsidiaries) plus Consolidated Interest Expense plus the aggregate amount
of net cash proceeds from the issuance of capital stock of the Borrower and its
Subsidiaries on a consolidated basis (as determined in accordance with GAAP), to
(B) Consolidated Interest Expense plus the Current Portion of Long-Term Debt
less the Debt resulting from the Van Den Braak Acquisition, provided same shall
be repaid with a portion of the Loans made hereunder prior to its October, 1997
maturity (as determined in accordance with GAAP) plus consolidated Capital Lease
payments of the Borrower and its Subsidiaries plus consolidated Dividends of the
Borrower and its Subsidiaries plus consolidated Capital Expenditures of the
Borrower and its Subsidiaries (net of indebtedness incurred for the purpose of
financing such Capital Expenditures) (as determined in accordance with GAAP)
plus the aggregate amount of cash payments made by the Borrower and its
Subsidiaries on a consolidated basis (as determined in
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accordance with GAAP) to purchase or redeem capital stock of the Borrower and
its Subsidiaries on a consolidated basis (as determined in accordance with
GAAP), of not less than 1.10:1.00.
Section 9.4. Consolidated Minimum Interest Coverage.
Maintain at all times on a rolling four-quarter basis a ratio of
consolidated Operating Income of the Borrower and its Subsidiaries (before
special charges) before Consolidated Interest Expense and Consolidated Taxes
plus consolidated Depreciation of the Borrower and its Subsidiaries plus
consolidated Amortization of the Borrower and its Subsidiaries to Consolidated
Interest Expense of the Borrower and its Subsidiaries (as determined in
accordance with GAAP) of not less than 3.00:1.00.
Section 9.5. Maximum Ratio of Consolidated Funded Debt to
EBITDA.
Maintain at all times a ratio of Consolidated Funded Debt as of the
last day of the preceding fiscal quarter to Consolidated EBITDA of not more than
3.0:1.0.
Compliance with all of the financial covenants contained in this
Article 9 may be determined by reference to consolidated financial statements of
the Borrower and its Subsidiaries delivered to the Agent in accordance with
Section 7.8 hereof. The Borrower and its Subsidiaries must be in compliance with
all such covenants at all times during the relevant period. All financial
covenants may be tested more frequently, but shall not be tested less
frequently, than quarterly, at the discretion of the Banks.
ARTICLE 10.
EVENTS OF DEFAULT
Section 10.1. Events of Default.
Any of the following events shall be an "Event of Default":
(a) The Borrower shall: (i) fail to pay the principal of any Note as
and when due and payable; (ii) fail to pay interest on any Note within two
Banking Days of the date any such payment is due and payable or any other
Obligation as and when due and payable; or (iii) fail to pay any Bank any amount
when due and payable in connection with any Letter of Credit or Documentary
Banker's Acceptance;
(b) Any representation or warranty made or deemed made by the
Borrower in this Agreement or in any other Facility Document or which is
contained in any certificate, document, opinion or financial or other statement
furnished at any time under or in connection with any Facility Document shall
prove to have been incorrect, if made or deemed made on or as of the date
hereof, in any respect or, if made or deemed made on or as of any date
subsequent to the date hereof, in any material respect;
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(c) The Borrower shall: (i) fail to perform or observe any term,
covenant or agreement contained in any of (A) Section 2.3, Section 2.7(e),
Article 8, Article 9, or Section 12.3 hereof; (B) Section 7.8, and such failure
shall continue for ten (10) consecutive days after written notice; or (C) any
Facility Document other than this Agreement (except to the extent of obligations
specifically referred to in Section 10.1(a) hereof, after the expiration of any
applicable grace period provided in any such Facility Document); or (ii) fail to
perform or observe any term, covenant or agreement on its part to be performed
or observed (other than the obligations specifically referred to in any of
Section 10.1(a), Section 10.1(b), Section 10.1(c)(i) or any of Sections
10.1(d)-(j) hereof) in this Agreement and (in the case of this Section
10.1(c)(ii) only) such failure shall continue for thirty (30) consecutive days
after written notice;
(d) The Borrower or any Guarantor shall: (i) fail to pay any Debt or
Debts for borrowed money (other than the payment obligations described in (a)
above) in the aggregate amount of $2,000,000 or more, as the case may be, or any
interest or premium thereon, when due (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise) after giving effect to any
applicable grace periods; or (ii) fail to perform or observe any term, covenant
or condition on its part to be performed or observed, including the obligation
to make payment, under any agreement or instrument relating to any other Debt or
Debts (other than the payment obligations described in (a) above or the Debt or
Debts described in (d)(i) above) in the aggregate amount of $2,000,000, when
required to be performed or observed, if the effect of such failure to perform
or observe is to accelerate or permit the acceleration of the maturity of such
Debt, after giving effect to any applicable grace period; provided, however,
that notwithstanding anything in the foregoing to the contrary, with respect to
that certain Debt owing to New York State Urban Development Corp. as set forth
in Section 1 of Schedule 6.10 hereof (the "Urban Development Loan"), no effect
will be given to a default or acceleration of or with respect to the Urban
Development Loan if and for so long as the full amount of such Urban Development
Loan is secured by other Debt of the Borrower;
(e) The Borrower or any Guarantor (i) shall generally not, or be
unable to, or shall admit in writing its or their inability to, pay its or their
debts as such debts become due; or (ii) shall make an assignment for the benefit
of creditors, petition or apply to any tribunal for the appointment of a
custodian, receiver or trustee for it or a substantial part of its assets; or
(iii) shall commence any proceeding under any bankruptcy, reorganization,
arrangement, readjustment of debt, dissolution or liquidation law or statute of
any jurisdiction, whether now or hereafter in effect; or (iv) shall have had any
such petition or application filed or any such proceeding shall have been
commenced, against it or them, in which an adjudication or appointment is made
or order for relief is entered which petition, application or proceeding remains
unstayed and in effect for a period of thirty (30) days or more; or (v) by any
act or omission shall indicate its consent to, approval of or acquiescence in
any such petition, application or proceeding or order for relief or the
appointment of a custodian, receiver or trustee for all or any substantial part
of its property; (vi) shall suffer any such custodianship, receivership or
trusteeship (as referenced in (v) above, exclusive of any of the matters
referenced in any of (i) - (iv) hereof) to continue undischarged for a period of
forty-five (45) days or more; or (vii) the Borrower shall cease to be Solvent;
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(f) One or more judgments, decrees or orders for the payment of
money in excess of $1,000,000 in the aggregate shall be rendered against the
Borrower any Guarantor and such judgments, decrees or orders shall continue
unsatisfied and in effect for a period of thirty (30) consecutive days without
being vacated, discharged, satisfied or stayed or bonded pending appeal;
(g) An event or condition specified in Section 6.8 hereof shall
occur or exist with respect to any Plan or Multiemployer Plan and, as a result
of such event or condition, together with all other such events or conditions,
the Borrower, any Guarantor or any ERISA Affiliate shall incur a liability to a
Plan, a Multiemployer Plan or the PBGC (or any combination of the foregoing)
which is, in the determination of the Required Banks, material in relation to
the financial condition, operations, business or prospects of the Borrower;
(h) Any Forfeiture Proceeding shall have been commenced against the
Borrower or any Guarantor unless, immediately upon the commencement of any such
proceeding, such Borrower or Guarantor, contests any such proceeding in good
faith by appropriate proceedings and such proceeding is unstayed and in effect
for a period of thirty (30) days or more after the commencement thereof;
provided, however, that until such proceeding is dismissed as aforesaid, and
notwithstanding anything contained in this Agreement to the contrary, the Banks
will be under no obligation to make Revolving Credit Loans available to the
Borrower after the commencement of any such proceeding unless and until such
time as any such proceeding shall have been dismissed pursuant to the foregoing
provisions; or
(i) Any of the Guarantees shall at any time after their execution
and delivery and for any reason cease to be in full force and effect or shall be
declared null and void, or the validity of enforceability thereof shall be
contested by the Borrower or any Guarantor (or any assignee or transferee of the
Borrower or any Guarantor), or the Borrower or any Guarantor (or any assignee or
transferee of the Borrower) shall deny that it has any further liability or
obligation under any Guarantees to which it is a party, or the Borrower or any
Guarantor (or any assignee or transferee of any such Borrower or any Guarantor)
shall fail to perform any of its obligations under the Guarantees to which it is
a party.
Section 10.2. Remedies.
Upon the occurrence of any Event of Default hereunder, the Required
Banks may, by notice to the Borrower, (a) declare the Revolving Credit
Commitments to be terminated, whereupon the same shall forthwith terminate, and
(b) declare the outstanding principal of the Notes, all interest thereon and all
other Obligations to be forthwith due and payable, whereupon the Notes, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by the Borrower; provided that, in the case of an
Event of Default referred to in Section 10.1(f) or Section 10.1(i) above, the
Revolving Credit Commitments shall be immediately terminated, and the Notes, all
interest thereon and all other amounts payable under this Agreement or the Notes
shall be immediately due and payable without notice, presentment, demand,
protest or other formalities of any kind, all of which are hereby expressly
waived by the Borrower. With respect to all Letters of Credit that shall not
have matured or with respect to which presentment for
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honor shall not have occurred, the Borrower shall deposit in a cash collateral
account opened by the Agent an amount equal to the aggregate undrawn amount of
Letters of Credit, and the unused portion thereof, if any, shall be returned to
the Borrower after the respective expiration dates of the Letters of Credit and
after all Obligations are paid in full. Furthermore, if an Event of Default has
occurred and the Required Banks have exercised the remedies set forth in (a) and
(b) above, interest and fees payable hereunder in connection with the Loans
shall automatically be increased to the Default Rate (with respect to Letters of
Credit, the fees payable with respect thereto shall be automatically increased
to a rate per annum equal to the Default Rate which would be applicable to a
Base Rate Loan, in an amount equal to the aggregate of the past due amounts with
respect to all outstandings Letters of Credit).
ARTICLE 11.
THE AGENT;
RELATIONS AMONG BANKS AND BORROWER
Section 11.1. Appointment, Powers and Immunities of Agent
Each Bank hereby irrevocably (but subject to removal by the Required
Banks pursuant to Section 11.9) appoints and authorizes Chase to act as its
agent hereunder and under any other Facility Document with such powers as are
specifically delegated to the Agent by the terms of this Agreement and any other
Facility Document, together with such other powers as are reasonably incidental
thereto. The Agent shall have no duties or responsibilities except those
expressly set forth in this Agreement and any other Facility Document, and shall
not by reason of this Agreement be a trustee for any Bank. The Agent shall not
be responsible to the Banks for any recitals, statements, representations or
warranties made by the Borrower, any of the Guarantors, or any of the Acquired
Entities, or any officer or official of the Borrower, any of the Guarantors, or
any of the Acquired Entities, or any other Person contained in this Agreement or
any other Facility Document, or in any certificate or other document or
instrument referred to or provided for in, or received by any of them under,
this Agreement or any other Facility Document, or for the value, legality,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Facility Document or any other document or instrument
referred to or provided for herein or therein, or for any failure by the
Borrower, any of the Guarantors, or any of the Acquired Entities to perform any
of their or its respective obligations hereunder or thereunder. The Agent may
take all necessary actions by itself and/or it may employ agents and
attorneys-in-fact and shall not be responsible, except as to money or securities
received by it or its authorized agents, for the negligence or misconduct of
itself or its employees or of any such agents or attorneys-in-fact, if such
agents or attorneys-in-fact are selected by it with reasonable care. Neither the
Agent nor any of its directors, officers, employees or agents shall be liable or
responsible for any action taken or omitted to be taken by it or them hereunder
or under any other Facility Document or in connection herewith or therewith,
except for its or their own gross negligence or willful misconduct. The Borrower
shall pay any fee agreed to by the Borrower and the Agent with respect to the
Agent's services hereunder.
Section 11.2. Reliance by Agent.
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The Agent shall be entitled to rely upon any certification, notice
or other communication (including any thereof by telephone, telex, telegram or
cable) believed by it to be genuine and correct and to have been signed or sent
by or on behalf of the proper Person or Persons, and upon advice and statements
of legal counsel, independent accountants and other experts selected by the
Agent. The Agent may deem and treat each Bank as the holder of the Loans made by
it for all purposes hereof unless and until a notice of the assignment or
transfer thereof satisfactory to the Agent signed by such Bank shall have been
furnished to the Agent, but the Agent shall not be required to deal with any
Person who has acquired a participation in any Loan from a Bank. As to any
matters not expressly provided for by this Agreement or any other Facility
Document, the Agent shall in all cases be fully protected in acting, or in
refraining from acting, hereunder in accordance with instructions signed by the
Required Banks, and such instructions of the Required Banks and any action taken
or failure to act pursuant thereto shall be binding on all of the Banks and any
other holder of all or any portion of any Loan.
Section 11.3. Defaults.
The Agent shall not be deemed to have knowledge of the occurrence of
a Default or Event of Default (other than the non-payment of principal of or
interest on the Loans to the extent the same is required to be paid to the Agent
for the account of the Banks) unless the Agent has received notice from a Bank
or the Borrower specifying such Default or Event of Default and stating that
such notice is a "Notice of Default." In the event that the Agent receives such
a notice of the occurrence of a Default or Event of Default, the Agent shall
give prompt notice thereof to the Banks (and shall give each Bank prompt notice
of each such non-payment). The Agent shall (subject to Section 12.8) take such
action with respect to such Default or Event of Default which is continuing as
shall be directed by the Required Banks; provided that, unless and until the
Agent shall have received such directions, the Agent may take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interest of the Banks; and
provided further that the Agent shall not be required to take any such action
which it determines to be contrary to law.
Section 11.4. Rights of Agent as a Bank.
With respect to its Revolving Credit Commitment and the Loans made
by it, the Agent, in its capacity as a Bank hereunder, shall have the same
rights and powers hereunder as any other Bank and may exercise the same as
though it were not acting as the Agent, and the term "Bank" or "Banks" shall,
unless the context otherwise indicates, include the Agent in its capacity as a
Bank. The Agent or any Bank and their respective Affiliates may (without having
to account therefor to any other Bank) accept deposits from, lend money to (on a
secured or unsecured basis), and generally engage in any kind of banking, trust
or other business with, the Borrower, the Guarantors, or the Acquired Entities
or any of them (and any of their Affiliates). In the case of the Agent, it may
do so as if it were not acting as the Agent, and the Agent may accept fees and
other consideration from the Borrower, the Guarantors, or the Acquired Entities
or any of them for services in connection with this Agreement or otherwise
without having to account for the same to the Banks. Although the Agent or a
Bank or their respective Affiliates may in the course of such
59
relationships and relationships with other Persons acquire information about the
Borrower, the Guarantors and their respective Affiliates, neither the Agent nor
such Bank shall have any duty to disclose such information to the other Banks.
Section 11.5. Indemnification of Agent.
The Banks agree to indemnify the Agent (to the extent not reimbursed
under Section 12.3 or under the applicable provisions of any other Facility
Document, but without limiting the obligations of the Borrower under Section
12.3 or such provisions), ratably in accordance with the aggregate unpaid
principal amount of the Loans made by the Banks (without giving effect to any
participation, in all or any portion of such Loans, sold by them to any other
Person) or, if no Loans are at the time outstanding, ratably in accordance with
their respective Commitments, for any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind and nature whatsoever which may be imposed on, incurred by or
asserted against the Agent in any way relating to or arising out of this
Agreement, any other Facility Document or any other documents contemplated by or
referred to herein or the transactions contemplated hereby or thereby
(including, without limitation, the costs and expenses which the Borrower is
obligated to pay under Section 12.3 or under the applicable provisions of any
other Facility Document but excluding, unless a Default or Event of Default has
occurred, normal administrative costs and expenses incidental to the performance
of its agency duties hereunder) or the enforcement of any of the terms hereof or
thereof or of any such other documents or instruments; provided that no Bank
shall be liable for any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the party to be indemnified.
Section 11.6. Documents.
The Agent will forward to each Bank, promptly after the Agent's
receipt thereof, a copy of each report, notice or other document required by
this Agreement or any other Facility Document to be delivered to the Agent for
such Bank.
Section 11.7. Non-Reliance on Agent and Other Banks.
Each Bank agrees that it has, independently and without reliance on
the Agent or any other Bank, and based on such documents and information as it
has deemed appropriate, made its own credit analysis of the Borrower and the
Guarantors and the decision to enter into this Agreement and that it will,
independently and without reliance upon the Agent or any other Bank, and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own analysis and decisions in taking or not taking action
under this Agreement or any other Facility Document. The Agent shall not be
required to keep itself informed as to the performance or observance by the
Borrower or the Guarantors of this Agreement or any other Facility Document, or
any other document referred to or provided for herein or therein, or to inspect
the properties or books of the Borrower or the Guarantors. Except for notices,
reports and other documents and information expressly required to be furnished
to the Banks by the Agent hereunder, the Agent shall not have any duty or
responsibility to provide any Bank with any credit or other information
concerning the affairs, financial condition or business of the Borrower or the
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Guarantors which may come into the possession of the Agent or of its Affiliates.
The Agent shall not be required to file this Agreement, any other Facility
Document or any document or instrument referred to herein or therein, for record
or give notice of this Agreement, any other Facility Document or any document or
instrument referred to herein or therein, to anyone.
Section 11.8. Failure of Agent to Act.
Except for action expressly required of the Agent hereunder, the
Agent shall in all cases be fully justified in failing or refusing to act
hereunder unless it shall have received further assurances (which may include
cash collateral) of the indemnification obligations of the Banks under Section
11.5 in respect of any and all liability and expense which may be incurred by it
by reason of taking or continuing to take any such action.
Section 11.9. Resignation or Removal of Agent.
Subject to the appointment and acceptance of a successor Agent as
provided below, the Agent may resign at any time by giving written notice
thereof to the Banks and the Borrower, and the Agent may be removed at any time
with or without cause by the Required Banks; provided that the Borrower and the
other Banks shall be promptly notified thereof. Chase shall be deemed removed as
Agent by the Required Banks at such time as the aggregate of the Commitment
Proportions of Chase and its Affiliates is less than 35% of the aggregate
Commitment Proportions of the Banks hereunder; provided, however, that such
removal shall only be deemed effective upon the appointment of a successor
Agent. Upon any such resignation or removal, the Required Banks shall have the
right to appoint a successor Agent. If no successor Agent shall have been so
appointed by the Required Banks and shall have accepted such appointment within
thirty (30) days after the retiring Agent's giving of notice of resignation or
the Required Banks' removal of the retiring Agent, then the retiring Agent may,
on behalf of the Banks, appoint a successor Agent, which shall be a bank which
has an office in New York, New York. The appointment of any bank which is not
then a party hereto shall be subject to the approval of the Borrower, which
shall not be unreasonably withheld or from among the Banks which are parties
hereto. The Required Banks or the retiring Agent, as the case may be, shall upon
the appointment of a Successor Agent promptly so notify the Borrower and the
other Banks. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and obligations
hereunder. After any retiring Agent's resignation or removal hereunder as Agent,
the provisions of this Article 11 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
the Agent.
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Section 11.10. Amendments Concerning Agency Function.
The Agent shall not be bound by any waiver, amendment, supplement or
modification of this Agreement or any other Facility Document which affects its
duties hereunder or thereunder unless it shall have given its prior consent
thereto.
Section 11.11. Liability of Agent.
The Agent shall not have any liabilities or responsibilities to the
Borrower on account of the failure of any Bank to perform its obligations
hereunder or to any Bank on account of the failure of the Borrower to perform
its obligations hereunder or under any other Facility Document.
Section 11.12. Transfer of Agency Function.
Without the consent of the Borrower or any Bank, the Agent may at
any time or from time to time transfer its functions as Agent hereunder to any
of its offices wherever located, provided that the Agent shall promptly notify
the Borrower and the Banks thereof.
Section 11.13. Non-Receipt of Funds by the Agent.
Unless the Agent shall have been notified by a Bank or the Borrower
(either one as appropriate being the "Payor") prior to the date on which such
Bank is to make payment hereunder to the Agent of the proceeds of a Loan or the
Borrower is to make payment to the Agent, as the case may be (either such
payment being a "Required Payment"), which notice shall be effective upon
receipt, that the Payor does not intend to make the Required Payment to the
Agent, the Agent may assume that the Required Payment has been made and may, in
reliance upon such assumption (but shall not be required to), make the amount
thereof available to the intended recipient on such date and, if the Payor has
not in fact made the Required Payment to the Agent, the recipient of such
payment shall, on demand, repay to the Agent the amount made available to it
together with interest thereon for the period from the date such amount was so
made available by the Agent until the date the Agent recovers such amount at a
rate per annum equal to the average daily Federal Funds Rate for such period.
Section 11.14. Withholding Taxes.
Each Bank represents that it is entitled to receive any payments to
be made to it hereunder without the withholding of any tax and will furnish to
the Agent such forms, certifications, statements and other documents as the
Agent may request from time to time to evidence such Bank's exemption from the
withholding of any tax imposed by any jurisdiction or to enable the Agent to
comply with any applicable laws or regulations relating thereto. Without
limiting the effect of the foregoing, if any Bank is not created or organized
under the laws of the United States of America or any state thereof, in the
event that the payment of interest by the Borrower is treated for U.S. income
tax purposes as derived in whole or in part from sources from
62
within the U.S., such Bank will furnish to the Agent Form 4224 or Form 1001 of
the Internal Revenue Service, or such other forms, certifications, statements or
documents, duly executed and completed by such Bank as evidence of such Bank's
exemption from the withholding of U.S. tax with respect thereto. The Agent shall
not be obligated to make any payments hereunder to such Bank in respect of any
Loan or such Bank's Commitment until such Bank shall have furnished to the Agent
the requested form, certification, statement or document.
Section 11.15. Several Obligations and Rights of Banks.
The failure of any Bank to make any Loan to be made by it on the
date specified therefor shall not relieve any other Bank of its obligation to
make its Loan on such date, but no Bank shall be responsible for the failure of
any other Bank to make a Loan to be made by such other Bank. The amounts payable
at any time hereunder to each Bank shall be a separate and independent debt, and
each Bank shall be entitled to protect and enforce its rights arising out of
this Agreement, and it shall not be necessary for any other Bank to be joined as
an additional party in any proceeding for such purpose.
Section 11.16. Pro Rata Treatment of Loans, Etc.
Except to the extent otherwise provided in this Agreement: (a) each
borrowing under Section 2.4 or issuance of Letters of Credit or Documentary
Banker's Acceptances under Section 2.7 shall be made from or for the benefit of
the Banks, each payment of the Commitment Fee accruing under Section 3.3, the
Usage Fee accruing under Section 3.4, and the Up Front Fee accruing under
Section 3.5, and each conversion of a Loan from one type of Loan to another
pursuant to Section 2.4, shall be made for the account of the Banks, pro rata in
accordance with their respective Commitment Proportions; (b) each prepayment and
payment of principal of or interest on Loans of a particular type and a
particular Interest Period shall be made to the Agent for the account of the
Banks holding Loans of such type and Interest Period pro rata in accordance with
the respective unpaid principal amounts of such Loans of such Interest Period
held by such Banks.
Section 11.17. Sharing of Payments Among Banks.
If a Bank shall obtain payment of any principal of or interest on
any Loan made by it through the exercise of any right of setoff, banker's lien,
counterclaim, or by any other means, it shall promptly purchase from the other
Banks participation in (or, if and to the extent specified by such Bank, direct
interests in) the Loans made by the other Banks in such amounts, and make such
other adjustments from time to time as shall be equitable to the end that all
the Banks shall share the benefit of such payment (net of any expenses which may
be incurred by such Bank in obtaining or preserving such benefit) pro rata in
accordance with the unpaid principal and interest on the Loans held by each of
them. To such end, the Banks shall make appropriate adjustments among themselves
(by the resale of participation sold or otherwise) if such payment is rescinded
or must otherwise be restored. The Borrower agrees that any Bank so purchasing a
participation (or direct interest) in the Loans made by other Banks may exercise
all rights of setoff, banker's lien, counterclaim or similar rights with respect
to such participation (or direct interest). Nothing contained herein shall
require any Bank to exercise any such right or shall affect the right of any
63
Bank to exercise, and retain the benefits of exercising, any such right with
respect to any other indebtedness of the Borrower.
ARTICLE 12.
MISCELLANEOUS
Section 12.1. Amendments and Waivers.
Except as otherwise expressly provided in this Agreement, any
provision of this Agreement may be amended or modified only by an instrument in
writing signed by the Borrower and the Required Banks, and any provision of this
Agreement may be waived by the Borrower and by an instrument signed by the
Required Banks (if such provision requires performance by the Borrower, or any
of them), including, but not limited to, any Event of Default; provided that no
amendment, modification or waiver shall, unless by an instrument signed by all
of the Banks: (a) increase or extend the term, or extend the time or waive any
requirement for the reduction or termination of the Revolving Credit Commitment,
(b) extend the date fixed for the payment of principal of or interest on any
Loan, (c) reduce the amount of any payment of principal thereof or the rate at
which interest is payable thereon or any fee payable hereunder, (d) alter the
terms of Sections 12.1 through 12.8 and Section 12.13, (e) change the Revolving
Credit Commitment of any Bank or the fees payable to any Bank, except as
expressly otherwise provided herein, (f) permit the Borrower, or any of the
Guarantors, to transfer or assign any of its obligations hereunder or under the
Facility Documents, or (g) change the definition of the term "Required Banks".
No failure on the part of any Bank to exercise, and no delay in exercising, any
right hereunder shall operate as a waiver thereof or preclude any other or
further exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
Section 12.2. Usury.
Anything herein to the contrary notwithstanding, the Obligations
shall be subject to the limitation that payments of interest shall not be
required to the extent that receipt thereof would be contrary to provisions of
law applicable to a Bank limiting rates of interest which may be charged or
collected by such Bank. If any of the above-referenced payments of interest,
together with any other charges or fees deemed in the nature of interest, exceed
the maximum legal rate, then the Banks shall have the right to make such
adjustments as are necessary to reduce any such aggregate interest rate (based
on the foregoing aggregate amount) to the maximum legal rate, and if any Bank
ever receives, collects or applies any such excess, it shall be deemed a partial
repayment of principal and treated as such; and if principal is paid in full,
any remaining excess shall be refunded to the Borrower. The Borrower waives any
right to prior notice of such adjustment and further agrees that any such
adjustment may be made by the Banks subsequent to notification from the Borrower
that such aggregate interest charged exceeds the maximum legal rate.
Section 12.3. Expenses.
64
The Borrower shall reimburse each of the Banks on demand for all
reasonable costs, expenses and charges (including, without limitation,
reasonable fees and charges of such Banks' special counsel, Xxxxxx, Xxxxxx &
Xxxxxx, plus disbursements, but excluding the fees and charges of any other
counsel for or to any of the Banks (including, without limitation, any in-house
counsel) incurred in connection with or relation to the documentation,
negotiation and closing of the transactions contemplated hereby, and their
respective disbursements) incurred by such Bank in connection with the
preparation, review, execution and delivery of this Agreement and the Facility
Documents (including, without limitation, with respect to that certain letter
dated December 24, 1996, executed by the Borrower and the Banks). In addition,
the Borrower shall reimburse each Bank for all of its reasonable costs and
expenses in connection with the protection, enforcement or preservation of any
rights under this Agreement, the Notes or the other Facility Documents. The
Borrower agrees to indemnify each Bank and their respective directors, officers,
employees and agents from, and hold each of them harmless against, any and all
losses, liabilities, claims, damages or expenses incurred by any of them arising
out of or by reason of any investigation or litigation or other proceedings
(including any threatened investigation or litigation or other proceedings)
relating to any actual or proposed use by the Borrower or any of its Affiliates
of the proceeds of the Loans, or to the failure of the Borrower to perform or
observe any of the terms, covenants or conditions on its part to be performed or
observed under this Agreement or under any of the Facility Documents including,
without limitation, the reasonable fees and disbursements of counsel incurred in
connection with any such investigation or litigation or other proceedings (but
excluding any such losses, liabilities, claims, damages or expenses incurred by
reason of the gross negligence, willful misconduct or bad faith of the Person to
be indemnified).
Section 12.4. Survival.
The obligations of the Borrower under Section 2.3, Section 2.7(e),
Section 3.3, Section 3.4, Article 4 and Section 12.3 shall survive the repayment
of the Loans and the Revolving Credit Termination Date for a period
corresponding to the maximum applicable statute of limitations in effect in the
State of New York from time to time.
Section 12.5. Assignment; Participation.
This Agreement shall be binding upon, and shall inure to the benefit
of Borrower, the Banks and their respective successors and assigns, except that
the Borrower may not assign or transfer its rights or obligations hereunder.
Each Bank may, only with the prior written consent of the Borrower and the
Agent, which consent shall not be unreasonably withheld, assign, or sell
participation in, all or any part of any Loan to another bank or other entity,
in which event (a) in the case of an assignment, upon notice thereof by the Bank
to the Borrower and the Agent and subject to the Borrower's and Agent's consent
(as referenced above), the assignee shall have, to the extent of such assignment
(unless otherwise provided therein), the same rights, benefits and obligations
(including, without limitation, a ratable assumption of the assigning Bank's
Commitment and Commitment Proportion hereunder) as it would have if it were a
Bank hereunder; provided, however, that no assignment shall be made of or with
respect to a principal amount which is less than $15,000,000 of the Commitment
of the resigning Bank (e.g., in outstanding Loans and in the obligation to make
future Loans) and no assignment can be made until the assigning Bank offers,
65
upon reasonable prior written notice, the other Banks a right of first refusal
to purchase such assigning Bank's interest on the same terms and conditions as
are being offered by the assignee; and (b) in the case of a participation, the
participant shall have no rights under the Facility Documents and all amounts
payable by the Borrower under Articles 2 and 3 shall be determined as if such
Bank had not sold such participation. Such Bank may furnish any information
concerning the Borrower in the possession of such Bank from time to time to
assignees and participants (including prospective assignees and participants);
provided that such Bank shall require any such prospective assignee or such
participant (prospective or otherwise) to agree in writing to maintain the
confidentiality of such information in accordance with Section 12.14 hereof.
There shall be no limit on the number of assignments or participations that may
be granted by any Bank. Notwithstanding anything contained herein to the
contrary each Bank shall be permitted, without the prior consent of the Borrower
and without being subject to the above-referenced right of first refusal, to
assign all or part of its Revolving Credit Commitment hereunder to any Federal
Reserve Bank in connection with any collateral assignment thereto in the
ordinary course of any such Bank's business or assign or participate all or part
of its Revolving Credit Commitment hereunder to any Affiliate of such Bank.
Section 12.6. Notices.
Unless the party to be notified otherwise notifies the other party
in writing as provided in this Section, and except as otherwise provided in this
Agreement, notices shall be given to the Borrower by certified or registered
mail or by recognized overnight delivery services to such party at its address
on the signature page of this Agreement, and in any such case, any such notice
shall be accompanied by notice by telecopy. Initially, notice shall be delivered
to each party hereto at the addresses set forth on the signature page hereof.
Notices shall be effective: (a) if given by registered or certified mail, 72
hours after deposit in the mails with postage prepaid, addressed as aforesaid;
or (b) if given by recognized overnight delivery service, on the Banking Day
following deposit with such service addressed as aforesaid; or (c) if given by
telecopy, when the telecopy is transmitted to the telecopy number as aforesaid
and confirmed with a confirmation receipt.
Section 12.7. Setoff.
The Borrower agrees that, in addition to (and without limitation of)
any right of setoff, banker's lien or counterclaim a Bank may otherwise have,
each Bank shall be entitled, at its option without any prior notice to the
Borrower (any such notice being expressly waived by the Borrower to the extent
permitted by applicable law), to offset balances (general or special, time or
demand, provisional or final) held by it for the account of the Borrower at any
of such Bank's offices, in Dollars or in any other currency, against any amount
payable by the Borrower to such Bank under this Agreement or such Bank's Note
which is not paid when due (regardless of whether such balances are then due to
the Borrower), in which case it shall promptly notify the Borrower thereof;
provided that such Bank's failure to give such notice shall not affect the
validity thereof. Payments by the Borrower thereof hereunder shall be made
without setoff or counterclaim. Each Bank agrees that if it shall, through the
exercise of a right of banker's lien, set-off, counterclaim or otherwise, obtain
any payments from the Borrower or any of the Guarantors, all such payments shall
first be applied to the repayment of the outstanding Obligations, and such Bank
will (a) be
66
deemed to have simultaneously purchased from the other Banks a share in the
Obligations held by such Banks so that the amount of the Obligations held by
each of the Banks shall be on a pro rata basis (provided, however, that for
purposes of this Section, the term "pro-rata" will be determined with respect to
each Bank's Commitment Proportion of outstanding Obligations after subtraction
in each case of amounts, if any, by which any such Bank has not funded an amount
equal to its Commitment Proportion of outstanding Obligations) and (b) make such
disposition and arrangements with the other Banks with respect to such payments,
either by way of distribution, pro tanto assignment of claims, subrogation or
otherwise as shall result in each Bank receiving in respect of such payments its
Commitment Proportion thereof as contemplated hereby. If all or any portion of
any of the payments referenced above is thereafter recovered from the Bank which
received the same, the purchase provided in this Section shall be rescinded to
the extent of such recovery, without interest. The Borrower and the Guarantors
expressly consent to the foregoing arrangements and agree that each Bank so
purchasing a portion of the other Banks' Obligations may exercise all rights of
payment with respect to such portion as fully as if such Bank were the direct
holder of such portion.
Section 12.8. Jurisdiction; Immunities.
(A) THE BORROWER HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF
ANY NEW YORK STATE OR UNITED STATES FEDERAL COURT SITTING IN NEW YORK OR SUFFOLK
COUNTIES OVER ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE NOTES, AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT ALL
CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN
SUCH NEW YORK STATE OR FEDERAL COURT. THE BORROWER IRREVOCABLY CONSENTS TO THE
SERVICE OF ANY AND ALL PROCESS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING
(BY CERTIFIED OR REGISTERED MAIL) OF COPIES OF SUCH PROCESS TO THE BORROWER AT
THE ADDRESS SPECIFIED IN SECTION 12.6. THE BORROWER AGREES THAT A FINAL JUDGMENT
(INCLUDING ANY APPLICABLE APPEALS) IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY LAW. THE BORROWER FURTHER WAIVES ANY OBJECTION
TO VENUE IN SUCH STATE AND ANY OBJECTION TO AN ACTION OR PROCEEDING IN SUCH
STATE ON THE BASIS OF FORUM NON CONVENIENS. THE BORROWER FURTHER AGREES THAT ANY
ACTION OR PROCEEDING BROUGHT AGAINST ANY BANK SHALL BE BROUGHT ONLY IN NEW YORK
STATE OR UNITED STATES FEDERAL COURT SITTING IN NEW YORK OR SUFFOLK COUNTIES.
EACH OF THE BANKS AND THE BORROWER WAIVE ANY RIGHT THEY MAY HAVE TO JURY TRIAL
WITH RESPECT TO THIS AGREEMENT AND THE OTHER FACILITY DOCUMENTS.
(B) NOTHING IN THIS SECTION 12.8 SHALL AFFECT THE RIGHT OF ANY BANK
TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT THE RIGHT
OF ANY BANK TO BRING ANY ACTION OR PROCEEDING AGAINST THE BORROWER, OR ITS
PROPERTY IN THE COURTS OF ANY OTHER JURISDICTIONS.
67
(C) TO THE EXTENT THAT THE BORROWER HAS OR HEREAFTER MAY ACQUIRE ANY
IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER FROM
SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION,
EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, IT HEREBY
IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS
AGREEMENT AND THE NOTES.
Section 12.9. Table of Contents; Headings.
Any table of contents and the headings and captions hereunder are
for convenience only and shall not affect the interpretation or construction of
this Agreement.
Section 12.10. Severability.
The provisions of this Agreement are intended to be severable. If
for any reason any provision of this Agreement shall be held invalid or
unenforceable in whole or in part in any jurisdiction, such provision shall, as
to such jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without in any manner affecting the validity or enforceability
thereof in any other jurisdiction or the remaining provisions hereof in any
jurisdiction.
Section 12.11. Counterparts.
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument, and any party
hereto may execute this Agreement by signing any such counterpart.
Section 12.12. Integration.
The Facility Documents set forth the entire agreement among the
parties hereto relating to the transactions contemplated thereby and supersede
any prior oral or written statements or agreements with respect to such
transactions.
Section 12.13. Governing Law.
This Agreement shall be governed by, and interpreted and construed
in accordance with, the law of the State of New York.
Section 12.14. Confidentiality.
Each of the Banks agrees that it will use all reasonable best
efforts not to disclose without the prior consent of the Borrower (other than to
affiliates of such Banks and their respective directors, employees, auditors,
counsel or other professional advisors) any confidential information with
respect to the Borrower or any of its Subsidiaries which is furnished by the
Borrower;
68
provided that upon notice to the Borrower any Bank may disclose any such
information (a) that is or has become generally available to the public; (b) as
may be required or appropriate (x) in any report, statement or testimony
submitted to any municipal, state or Federal or other governmental regulatory
body having or claiming to have jurisdiction over such Bank or to the Federal
Reserve Board or the Federal Deposit Insurance Corporation or similar
organizations (whether in the United States or elsewhere) or their successors or
(y) in connection with any request or requirement of any such regulatory body;
(c) as may be required or appropriate in response to any summons or subpoena or
in connection with any litigation; (d) to comply with any law, order, regulation
or ruling applicable to such Bank; and (e) to any prospective transferee in
connection with any contemplated transfer of any of the Notes or any interest
therein by such Bank; provided that such prospective transferee agrees to be
bound by this Section 12.14 to the same extent as such Bank.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized as of the
date first above written.
XXXXX XXXXXX, INC.
By:____________________________
Name: H. Xxxxxxx Xxxxxxxxxxxxx
Title:Treasurer
Address for Notice 000 Xxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attn: Chairman of the Board
cc: General Counsel and Chief Financial Officer
Telephone No.: (000) 000-0000
Telefax No.: (000) 000-0000
69
AGENT:
THE CHASE MANHATTAN BANK
By:
-----------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
Lending Office and Address for Notices:
The Chase Manhattan Bank
Agent Bank Services
000 X. 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxx Xxxxxxx
Vice President
Telephone No.: (000) 000-0000
Telefax No.: (000) 000-0000
Letters of Credit
Issuing Agent
The Chase Manhattan Bank
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Telefax: (000) 000-0000
BANKS:
THE CHASE MANHATTAN BANK
By:
-----------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
Telephone: (000) 000-0000
Telefax: (000) 000-0000
70
Lending Office and Address for Notices:
The Chase Manhattan Bank
000 Xxxxx Xxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx
Vice President
Telephone No.: (000) 000-0000
Telefax No.: (000) 000-0000
FLEET BANK, NATIONAL ASSOCIATION
By:
-----------------------------
Name: Xxxxxx X. Xxxxxxx, Esq.
Title: Vice President
Lending Office and Address for Notices:
Fleet Bank, National Association
000 Xxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Vice President
Telephone No.: (000) 000-0000
Telefax No.: (000) 000-0000
71
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK, B.A. "RABOBANK NEDERLAND",
NEW YORK BRANCH
By:
--------------------------------
Name:
---------------------------
Title:
--------------------------
By:
--------------------------------
Name:
---------------------------
Title:
--------------------------
Lending Office and Address for Notices
Cooperatieve Centrale Raiffeisen-
Boerenleenbank, B.A. "Rabobank Nederland",
New York Branch
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxx Xxxxxx
Vice President
Telephone No.: (000) 000-0000
Telefax No.: (000) 000-0000
EUROPEAN AMERICAN BANK
By:
----------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
Lending Office and Address for Notices:
European American Bank
EAB Plaza
Uniondale, New York 11555
Attention: Xxxxxx Xxxxxxxxxx
Vice President
Telephone No.: (000) 000-0000
Telefax No.:(000) 000-0000
72
FOR THE PURPOSES OF THE REPRESENTATIONS SET FORTH IN ARTICLE 6:
XXXX HOLDINGS, INC.
By:
-----------------------------
Name: H. Xxxxxxx Xxxxxxxxxxxxx
Title: Treasurer
XXXX DENTAL CO., INC.
By:
-----------------------------
Name: H. Xxxxxxx Xxxxxxxxxxxxx
Title: Treasurer
XXXX DENTAL (FLORIDA), INC.
By:
-----------------------------
Name: H. Xxxxxxx Xxxxxxxxxxxxx
Title: Treasurer
TRI-STATE MEDICAL SUPPLY, INC.
By:
-----------------------------
Name: H. Xxxxxxx Xxxxxxxxxxxxx
Title: Treasurer
SCHEIN DENTAL EQUIPMENT CORP.
By:
-----------------------------
Name: H. Xxxxxxx Xxxxxxxxxxxxx
Title: Treasurer
73
SSN HEALTHCARE SUPPLY, INC.
By:
-----------------------------
Name: H. Xxxxxxx Xxxxxxxxxxxxx
Title: Treasurer
ROCKFORD DENTAL MFG. CO.
By:
-----------------------------
Name: H. Xxxxxxx Xxxxxxxxxxxxx
Title: Treasurer
