CREDIT AGREEMENT
Dated as of June 30, 1995
among
XXXXXX CO., INC.
as Borrower,
THE LENDERS NAMED HEREIN
as Lenders,
and
GENERAL ELECTRIC CAPITAL CORPORATION,
as Agent and Lender
TABLE OF CONTENTS
1. AMOUNT AND TERMS OF CREDIT . . . . . . . . . . . . . . . . . . . 1
1.1 Credit Facilities . . . . . . . . . . . . . . . . . . . . . 1
1.2 Letters of Credit . . . . . . . . . . . . . . . . . . . . . 3
1.3 Prepayment . . . . . . . . . . . . . . . . . . . . . . . . 3
1.4 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . 5
1.5 Interest on Revolving Credit Loan . . . . . . . . . . . . . 5
1.6 Eligible Accounts . . . . . . . . . . . . . . . . . . . . . 7
1.7 Eligible Inventory . . . . . . . . . . . . . . . . . . . . 8
1.8 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
1.9 Cash Management Systems; Daily Sweep . . . . . . . . . . . 8
1.10 Receipt of Payments . . . . . . . . . . . . . . . . . . . . 9
1.11 Application and Allocation of Payments . . . . . . . . . . 9
1.12 Loan Account and Accounting . . . . . . . . . . . . . . . . 10
1.13 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . 10
1.14 Access . . . . . . . . . . . . . . . . . . . . . . . . . . 12
1.15 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
1.16 Capital Adequacy; Increased Costs; Illegality . . . . . . . 13
2. CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . 15
2.1 Conditions to the Initial Loans . . . . . . . . . . . . . . 15
2.2 Further Conditions to Each Revolving Credit Advance . . . . 19
3. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . 19
3.1 Corporate Existence; Compliance with Law . . . . . . . . . 20
3.2 Executive Offices . . . . . . . . . . . . . . . . . . . . . 20
3.3 Corporate Power, Authorization, Enforceable Obligations . . 20
3.4 Financial Statements and Projections . . . . . . . . . . . 21
3.5 Collateral Reports . . . . . . . . . . . . . . . . . . . . 21
3.6 Material Adverse Effect . . . . . . . . . . . . . . . . . . 21
3.7 Ownership of Property; Liens . . . . . . . . . . . . . . . 22
3.8 Restrictions; No Default . . . . . . . . . . . . . . . . . 22
3.9 Labor Matters . . . . . . . . . . . . . . . . . . . . . . . 23
3.10 Ventures, Subsidiaries and Affiliates; Outstanding Stock
and Indebtedness . . . . . . . . . . . . . . . . . . . . . 23
3.11 Government Regulation . . . . . . . . . . . . . . . . . . . 23
3.12 Margin Regulations . . . . . . . . . . . . . . . . . . . . 24
3.13 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
3.14 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
3.15 No Litigation . . . . . . . . . . . . . . . . . . . . . . . 26
3.16 Brokers . . . . . . . . . . . . . . . . . . . . . . . . . . 26
3.17 Employment Matters . . . . . . . . . . . . . . . . . . . . 26
3.18 Patents, Trademarks, Copyrights and Licenses . . . . . . . 26
3.19 Full Disclosure . . . . . . . . . . . . . . . . . . . . . . 27
3.20 Hazardous Materials . . . . . . . . . . . . . . . . . . . . 27
3.21 Insurance Policies . . . . . . . . . . . . . . . . . . . . 27
3.22 Deposit and Disbursement Accounts . . . . . . . . . . . . . 27
3.23 Government Contracts . . . . . . . . . . . . . . . . . . . 28
3.24 Customer and Trade Relations . . . . . . . . . . . . . . . 28
3.25 Agreements and Other Documents . . . . . . . . . . . . . . 28
3.26 FEIN . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
4. FINANCIAL STATEMENTS AND INFORMATION . . . . . . . . . . . . . . 28
4.1 Reports and Notices . . . . . . . . . . . . . . . . . . . . 28
4.2 Communication with Accountants . . . . . . . . . . . . . . 29
5. AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . 29
5.1 Maintenance of Existence and Conduct of Business . . . . . 29
5.2 Payment of Obligations . . . . . . . . . . . . . . . . . . 29
5.3 Books and Records . . . . . . . . . . . . . . . . . . . . . 30
5.4 Litigation . . . . . . . . . . . . . . . . . . . . . . . . 30
5.5 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . 30
5.6 Compliance with Laws . . . . . . . . . . . . . . . . . . . 32
5.7 [Intentionally Omitted]. . . . . . . . . . . . . . . . . . 32
5.8 Supplemental Disclosure . . . . . . . . . . . . . . . . . . 32
5.9 Employee Plans . . . . . . . . . . . . . . . . . . . . . . 32
5.10 Environmental Matters . . . . . . . . . . . . . . . . . . . 32
5.11 Landlords' Agreements, Bailee Letters and Mortgagee
Agreements . . . . . . . . . . . . . . . . . . . . . . . . 33
5.12 Leased Locations of Collateral . . . . . . . . . . . . . . 33
6. NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . 33
6.1 Mergers, Subsidiaries, Etc . . . . . . . . . . . . . . . . 33
6.2 Investments; Loans and Advances . . . . . . . . . . . . . . 33
6.3 Indebtedness . . . . . . . . . . . . . . . . . . . . . . . 33
6.4 Employee Loans and Affiliate Transactions . . . . . . . . . 34
6.5 Capital Structure and Business . . . . . . . . . . . . . . 34
6.6 Guaranteed Indebtedness . . . . . . . . . . . . . . . . . . 34
6.7 Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
6.8 Sale of Assets . . . . . . . . . . . . . . . . . . . . . . 35
6.9 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
6.10 Financial Covenants . . . . . . . . . . . . . . . . . . . . 36
6.11 Hazardous Materials . . . . . . . . . . . . . . . . . . . . 36
6.12 Sale-Leasebacks . . . . . . . . . . . . . . . . . . . . . . 36
6.13 Cancellation of Indebtedness . . . . . . . . . . . . . . . 36
6.14 Restricted Payments . . . . . . . . . . . . . . . . . . . . 36
6.15 Management Agreements . . . . . . . . . . . . . . . . . . . 36
6.16 Leases . . . . . . . . . . . . . . . . . . . . . . . . . . 36
6.17 Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . 37
6.18 Change of Corporate Name or Location . . . . . . . . . . . 37
6.19 Cash Management . . . . . . . . . . . . . . . . . . . . . . 37
6.20 Technology Development Arrangements . . . . . . . . . . . . 37
7. TERM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
7.1 Termination . . . . . . . . . . . . . . . . . . . . . . . . 38
7.2 Survival of Obligations Upon Termination of Financing
Arrangements . . . . . . . . . . . . . . . . . . . . . . . 38
8. EVENTS OF DEFAULT: RIGHTS AND REMEDIES . . . . . . . . . . . . . 38
8.1 Events of Default . . . . . . . . . . . . . . . . . . . . . 38
8.2 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . 41
8.3 Waivers by Borrower . . . . . . . . . . . . . . . . . . . . 41
9. ASSIGNMENT AND PARTICIPATIONS; APPOINTMENT OF AGENT . . . . . . 42
9.1 Assignment and Participations . . . . . . . . . . . . . . . 42
9.2 Appointment of Agent . . . . . . . . . . . . . . . . . . . 43
9.3 Agent's Reliance, Etc. . . . . . . . . . . . . . . . . . . 44
9.4 GE Capital and Affiliates . . . . . . . . . . . . . . . . . 45
9.5 Lender Credit Decision . . . . . . . . . . . . . . . . . . 45
9.6 Indemnification . . . . . . . . . . . . . . . . . . . . . . 46
9.7 Successor Agent . . . . . . . . . . . . . . . . . . . . . . 46
9.8 Setoff and Sharing of Payments . . . . . . . . . . . . . . 47
9.9 Disbursement of Funds . . . . . . . . . . . . . . . . . . . 47
9.10 Advances; Payments; Information; Non-Funding Lenders . . . 48
10. SUCCESSORS AND ASSIGNS . . . . . . . . . . . . . . . . . . . . . 51
10.1 Successors and Assigns . . . . . . . . . . . . . . . . . . 51
11. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . 52
11.1 Complete Agreement; Modification of Agreement . . . . . . 52
11.2 Amendments and Waivers . . . . . . . . . . . . . . . . . . 52
11.3 Fees and Expenses . . . . . . . . . . . . . . . . . . . . 53
11.4 No Waiver . . . . . . . . . . . . . . . . . . . . . . . . 54
11.5 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . 54
11.6 Severability . . . . . . . . . . . . . . . . . . . . . . . 55
11.7 Conflict of Terms . . . . . . . . . . . . . . . . . . . . 55
11.8 Authorized Signature . . . . . . . . . . . . . . . . . . . 55
11.9 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . 55
11.10 Notices . . . . . . . . . . . . . . . . . . . . . . . . . 56
11.11 Section Titles . . . . . . . . . . . . . . . . . . . . . . 56
11.12 Counterparts . . . . . . . . . . . . . . . . . . . . . . . 56
11.13 WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . . . . 56
11.14 Press Releases . . . . . . . . . . . . . . . . . . . . . . 57
11.15 Reinstatement . . . . . . . . . . . . . . . . . . . . . . 57
INDEX OF EXHIBITS AND SCHEDULES
Exhibit A - Form of Notice of Revolving Credit Advance
Exhibit B - Form of Borrowing Base Certificate
Exhibit C - Form of Revolving Credit Note
Exhibit D - Form of Term Note
Exhibit E - Form of Security Agreement
Schedule 1.1(a) - Responsible Individual
Schedule 1.9 - List of Bank Accounts
Schedule 3.2 - Executive Offices
Schedule 3.4(A) - Financial Statements
Schedule 3.4(B) - Pro Forma
Schedule 3.4(C) - Projections
Schedule 3.7 - Real Estate and Leases
Schedule 3.9 - Labor Matters
Schedule 3.10 - Ventures, Subsidiaries and Affiliates;
Outstanding Stock
Schedule 3.13 - Tax Matters
Schedule 3.14 - ERISA Plans
Schedule 3.15 - Litigation
Schedule 3.16 - Brokers Fees
Schedule 3.17 - Employment Matters
Schedule 3.18 - Intellectual Property
Schedule 3.20 - Hazardous Materials
Schedule 3.21 - Insurance Policies
Schedule 3.22 - Deposit and Disbursement Accounts
Schedule 3.23 - Government Contracts
Schedule 3.25 - Material Agreements
Schedule 3.28 - Fein Numbers
Schedule 5.1 - Trade Names
Schedule 6.3 - Indebtedness
Schedule 6.4(a) - Transactions with Affiliates
Schedule 6.4(b) - Employee Compensation
Schedule 6.7 - Existing Liens
Schedule 8.1 - Additional Terms
Schedule 11.8 - Authorized Signatures
Schedule A (Recitals) - Definitions
Schedule B (Section 1.2) - Letters of Credit
Documents
Schedule C (Section 1.6) - Eligible Accounts
Schedule D (Section 1.7) - Eligible Inventory
Schedule E (Section 1.9) - Cash Management Systems
Schedule F (Section 2.1(b)) - Schedule of Additional Closing
Documents
Schedule G (Section 4.1(a)) - Financial Statements and
Projections -- Reporting
Schedule H (Section 4.1(b)) - Collateral Reports
Schedule I (Section 6.11) - Financial Covenants
Schedule J (Section 11.10) - Notice Addresses
Schedule K (Section 9.10(a)(iii)) - Wire Transfer Account Information
This CREDIT AGREEMENT, dated as of June 30, 1995 among XXXXXX
CO., INC., a Wisconsin corporation ("Borrower"), GENERAL ELECTRIC CAPITAL
CORPORATION, a New York corporation (in its individual capacity, "GE
Capital"), for itself, as Lender, and as Agent for Lenders, and the other
Lenders signatory hereto.
RECITALS
WHEREAS, Borrower desires that Lenders extend a revolving and
term credit facility to Borrower for the purpose of refinancing certain
indebtedness of Borrower, to provide working capital financing for
Borrower and to provide funds for other general corporate purposes of
Borrower; and Borrower desires to borrow up to Forty-Three Million Dollars
($43,000,000) from Lenders, and Lenders are willing to make certain loans
and other extensions of credit to Borrower of up to such amount upon the
terms and conditions set forth herein;
WHEREAS, Borrower desires to secure all of its obligations under
the Loan Documents by granting to Agent, on behalf of Lenders, a security
interest in and lien upon all of its personal and real property;
WHEREAS, capitalized terms used in this Agreement shall have the
meanings ascribed to them in Schedule A. All Schedules, Exhibits and
other attachments hereto, or expressly identified to this Agreement, are
incorporated herein by reference, and taken together, shall constitute but
a single agreement. These Recitals shall be construed as part of the
Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter contained, and for other good and valuable
consideration, the parties hereto agree as follows:
1. AMOUNT AND TERMS OF CREDIT
1.1 Credit Facilities.
(a) Revolving Credit Facility. (i) Upon and subject to the
terms and conditions hereof, each Lender, severally and not jointly,
agrees to make available, from time to time, until the Commitment
Termination Date, for Borrower's use and upon the request of Borrower
therefor, its Pro Rata Share of advances (each, a "Revolving Credit
Advance") in an aggregate amount which shall not at any given time exceed
the lesser at such time of (A) the Maximum Revolving Credit Loan and (B)
an amount equal to the Borrowing Base less the amount of the Letter of
Credit Obligations at such time ("Borrowing Availability"); provided,
however, that in no event shall the Revolving Credit Loan of any Lender
exceed its Revolving Credit Loan Commitment less its Pro Rata Share of the
Letter of Credit Obligations at such time. Until all amounts outstanding
in respect of the Revolving Credit Loan shall become due and payable on
the Commitment Termination Date, subject to the terms and conditions
hereof Borrower may from time to time borrow, repay and reborrow under
this Section 1.1(a). Each Revolving Credit Advance shall be made on
notice by Borrower to the individual at the Agent identified on Schedule
1.1(a) at the address specified thereon, given no later than (i) 11:00
a.m. (Chicago time) on the Business Day of the proposed Revolving Credit
Advance, in the case of an Index Rate Loan, or (ii) 11:00 a.m. (Chicago
time) on the day which is three (3) Business Days prior to the proposed
Revolving Credit Advance in the case of a LIBOR Loan; provided, however,
that unless Borrower shall also have complied with the requirements of
Section 1.5(e), all such Revolving Credit Advances shall bear interest by
reference to the Index Rate; provided, further that any Revolving Credit
Advance requested as a LIBOR Loan shall be in a minimum amount of
$1,000,000 and multiples of $500,000 in excess of such amount. Each such
notice (a "Notice of Revolving Credit Advance") shall be substantially in
the form of Exhibit A hereto, specifying therein the requested date, the
amount and type of such Revolving Credit Advance, and such other
information as may be required by Agent and shall be given in writing (by
telecopy or overnight courier) or by telephone confirmed immediately in
writing. Agent shall be entitled to rely upon, and shall be fully
protected under this Agreement in relying upon, any Notice of Revolving
Credit Advance believed by Agent to be genuine and to assume that each
Person executing and delivering the same was duly authorized unless the
responsible individual acting thereon for Agent shall have, at the time of
reliance thereon, actual knowledge to the contrary.
(ii) Borrower shall execute and deliver to each Lender a note
to evidence the Revolving Credit Loan, such note to be in the principal
amount of the Revolving Credit Loan Commitment of such Lender, dated the
Closing Date and substantially in the form of Exhibit C hereto (each a
"Revolving Credit Note" and, collectively, the "Revolving Credit Notes").
The Revolving Credit Notes shall represent the obligation of Borrower to
pay the amount of the Revolving Credit Loan Commitment or, if less, the
aggregate unpaid principal amount of all Revolving Credit Advances made by
Lenders to Borrower and all other obligations together with interest
thereon as prescribed in Section 1.5. The date and amount of each
Revolving Credit Advance and each payment of principal with respect
thereto shall be recorded on the books and records of Agent, which books
and records shall constitute prima facie evidence of the accuracy of the
information therein recorded. The entire unpaid balance of the Revolving
Credit Loan shall be immediately due and payable on the Commitment
Termination Date.
(b) Term Loan. Upon and subject to the terms and conditions
hereof, each Lender having a Term Loan Commitment severally and not
jointly agrees to make a term loan to Borrower on the Closing Date (all
such term loans, collectively, being the "Term Loan") in the original
principal amount of its Term Loan Commitment. The Term Loan shall be
evidenced by Term Notes substantially in the form of Exhibit D, and
Borrower shall execute and deliver the same to each such Lender.
The principal amount of the Term Loan shall be payable in
sixteen (16) consecutive quarterly installments on the last day of March,
June, September and December of each year, commencing September 30, 1996,
in the following respective scheduled installments:
Installments 1 through 4 $375,000 each;
Installments 5 through 12 $500,000 each; and
Installments 13 through 16 $625,000 each.
Installment 16 shall be due and payable on June 30, 2000 and shall be in
the amount of $625,000 or the then remaining principal balance of the Term
Loan if different than such amount. Amounts paid on the Term Loan may not
be reborrowed.
1.2 Letters of Credit. Subject to the terms and conditions of
Schedule B, Agent agrees to issue or guaranty Letters of Credit for the
benefit of Borrower.
1.3 Prepayment. (a) In the event that the outstanding balance
of the Revolving Credit Loan shall, at any time, exceed the lesser at such
time of (i) the Maximum Revolving Credit Loan and (ii) the Borrowing Base
less the outstanding amount of the Letter of Credit Obligations, Borrower
shall immediately repay the Revolving Credit Loan in the amount of such
excess. In the event that the sum of the outstanding balance of the
Revolving Credit Loan plus the Letter of Credit Obligations shall at any
time exceed the Borrowing Base, Borrower shall immediately repay the
Revolving Credit Loan in the amount of such excess, together with the
payment of any LIBOR breakage funding costs in accordance with Section
1.13(c).
(b) Immediately upon receipt by Borrower of net proceeds (after
deducting all expenses, including commissions, taxes payable, and amounts
payable to holders of prior liens, if any, and an appropriate reserve for
income taxes in connection therewith) of any asset disposition permitted
by Section 6.8(ii) or (iii), Borrower shall prepay the Loans with such net
proceeds (i) if such proceeds are Special Proceeds, in accordance with
clause (f) below, and (ii) otherwise in accordance with clause (e) below,
in each case together with the payment of any LIBOR breakage funding costs
in accordance with Section 1.13(c). As used in this Section 1.3(b),
"Special Proceeds" shall mean (x) proceeds of the sale of Borrower's real
estate located in Houston, Texas, and (y) proceeds (other than from sales
of machinery, equipment or dies and other than from the sale of the real
estate in Houston, Texas) not exceeding in the aggregate $500,000 per
Fiscal Year on a noncumulative basis.
(c) In the event that Borrower receives proceeds from the
issuance of any Stock after June 30, 1996, no later than the third
Business Day following the date of receipt of such proceeds Borrower shall
prepay the Loans in an amount equal to all such proceeds, net of
underwriting discounts and commissions and other reasonable costs
associated therewith, which prepayment shall be applied in accordance with
clause (f) below, together with the payment of any LIBOR breakage funding
costs in accordance with Section 1.13(c).
(d) Borrower shall have the right at any time on thirty (30)
days' prior written notice to Agent to voluntarily prepay all or part of
the Term Loan, and/or to voluntarily prepay all or part of the Revolving
Credit Loan and in connection therewith permanently reduce or terminate
the Revolving Credit Loan Commitment, provided that any such voluntary
prepayment shall be accompanied by the payment of the fee required by
Section 1.8(c), if any, plus the payment of any LIBOR funding breakage
costs in accordance with Section 1.13(c). Upon any such prepayment and
permanent reduction or termination of the Revolving Credit Loan
Commitment, Borrower's right to receive Revolving Credit Advances shall
simultaneously terminate or be permanently reduced, as the case may be.
(e) Any prepayments required under clause (b) above to be
applied under this clause (e) shall be applied in satisfaction of the
Obligations as follows:
(i) First, to the Term Loan and accrued interest with respect
thereto, to prepay scheduled installments of such Term Loan in
inverse order of maturity until the Term Loan shall have been prepaid
in full;
(ii) Second, to the principal amount of the Revolving Credit
Loan outstanding and accrued interest with respect thereto until the
same shall have been paid in full, and the Revolving Credit Loan
Commitment shall automatically be permanently reduced by the amount
of such prepayments;
(iii) Third, to cash collateralize the undrawn portion of any
Letters of Credit; and
(iv) Fourth, to all remaining Obligations.
(f) Any prepayments required under clause (b) or (c) above to
be applied under this clause (f) shall be applied in satisfaction of the
Obligations as follows:
(i) First, to the principal amount of the Revolving Credit Loan
outstanding and accrued interest with respect thereto until the same
shall have been paid in full;
(ii) Second, to the Term Loan and accrued interest with respect
thereto, to prepay scheduled installments of such Term Loan in
inverse order of maturity until the Term Loan shall have been prepaid
in full;
(iii) Third, to cash collateralize the undrawn portion of any
Letters of Credit; and
(iv) Fourth, to all remaining Obligations.
(g) Any cash collateral required by this Section 1.3 shall be
held by the Agent in a separate cash collateral account subject to the
security interest and lien of the Security Agreement and the terms of
Schedule B. The Borrower shall have no access to such account.
1.4 Use of Proceeds. Borrower shall utilize the proceeds of
Revolving Credit Advances solely for the Refinancing (and to pay any
related transaction expenses) and for the financing of ordinary working
capital and general corporate needs (but excluding in any event any direct
or indirect redemption, purchase, repayment or defeasance of any Stock of
Borrower.
1.5 Interest on Revolving Credit Loan. (a) Borrower shall pay
interest to Agent, for the ratable benefit of Lenders in accordance with
the various Loans being made by each Lender, in arrears on each applicable
Interest Payment Date, at a rate equal to: (A) with respect to the
Revolving Credit Loan, the Index Rate plus the Applicable Margin, or, at
the election of Borrower in accordance with Section 1.5(e), the applicable
LIBOR Rate plus the Applicable Margin, based on the amounts outstanding
from time to time under the Revolving Credit Loan; and (B) with respect to
the Term Loan, the Index Rate plus the Applicable Margin or, at the
election of Borrower in accordance with Section 1.5(e), the applicable
LIBOR Rate plus the Applicable Margin.
(b) If any payment on the Revolving Credit Loan becomes due and
payable on a day other than a Business Day, the maturity thereof shall be
extended to the next succeeding Business Day (except as set forth in the
definition of LIBOR Period) and, with respect to payments of principal,
interest thereon shall be payable at the then applicable rate during such
extension.
(c) All computations of interest shall be made by Agent on the
basis of a three hundred and sixty (360) day year, in each case for the
actual number of days occurring in the period for which such interest is
payable. The Index Rate shall be determined as of the last day of each
month and shall be in effect at such rate during the succeeding calendar
month. Each determination by Agent of an interest rate hereunder shall be
conclusive and binding for all purposes, absent manifest error or bad
faith.
(d) So long as any Event of Default shall have occurred and be
continuing, and after written notice from Agent to Borrower, the interest
rates applicable to the Revolving Credit Loan and any other Obligations
shall be increased by two percent (2%) per annum above the rate of
interest otherwise applicable hereunder ("Default Rate").
(e) Provided no Event of Default shall have occurred and be
continuing, Borrower may elect by 11:00 a.m. (Chicago time) on the third
(3rd) Business Day prior to (i) the date of any proposed Revolving Credit
Advance which is to bear interest at the LIBOR Rate, (ii) the end of each
LIBOR Period with respect to any LIBOR Loans, or (iii) the date on which
Borrower wishes to convert any Index Rate Loan to a LIBOR Loan, to have
all or some portion of the Revolving Credit Loan or the Term Loan bear
interest at the LIBOR Rate for the next succeeding LIBOR Period as
designated by Borrower in such election. If no election is received with
respect to a LIBOR Loan by 11:00 A.M. (Chicago time) on the third (3rd)
Business Day prior to the end of the LIBOR Period with respect to such
LIBOR Loan (or if a Default or an Event of Default shall have occurred and
be continuing), such LIBOR Loan shall be converted to an Index Rate Loan
at the end of the LIBOR Period. Borrower shall make such election by
notice to Agent in writing, by telecopy or overnight courier. Borrower
shall have the option to (1) convert at any time all or any part of the
outstanding Revolving Credit Loan or Term Loan equal to $1,000,000 and
integral multiples of $500,000 in excess of that amount from Loans bearing
interest at a rate determined by reference to one basis to Loans bearing
interest at a rate determined by reference to an alternative basis, or (2)
upon the expiration of any LIBOR Period applicable to a LIBOR Loan, to
continue all or any portion of such Loan equal to $1,000,000 and integral
multiples of $500,000 in excess of that amount as a LIBOR Loan and the
succeeding LIBOR Period(s) of such continued Loan shall commence on the
last day of the LIBOR Period of the Loan to be continued; provided that
LIBOR Loans may only be converted into Index Rate Loans on the expiration
date of a LIBOR Period applicable thereto; and provided, further, that no
outstanding Loan may be made or continued as, or be converted into, a
LIBOR Loan when any Event of Default has occurred and is continuing; and
provided, further, that no Loan may be made as converted into a LIBOR Loan
until five (5) days after the Closing Date, and only two (2) LIBOR Periods
shall be in effect at any one time for the Term Loan and not more than six
(6) LIBOR Periods shall be in effect at any one time for the Revolving
Credit Loan.
(f) Notwithstanding anything to the contrary set forth in this
Section 1.5, if, at any time until payment in full of all of the
Obligations, the rate of interest payable hereunder exceeds the highest
rate of interest permissible under any law which a court of competent
jurisdiction shall, in a final determination, deem applicable hereto (the
"Maximum Lawful Rate"), then in such event and so long as the Maximum
Lawful Rate would be so exceeded, the rate of interest payable hereunder
shall be equal to the Maximum Lawful Rate; provided, however, that if at
any time thereafter the rate of interest payable hereunder is less than
the Maximum Lawful Rate, Borrower shall continue to pay interest hereunder
at the Maximum Lawful Rate until such time as the total interest received
by Agent, on behalf of Lenders, from the making of such advances hereunder
is equal to the total interest which would have been received had the
interest rate payable hereunder been (but for the operation of this
paragraph) the interest rate payable since the Closing Date as otherwise
provided in this Agreement. Thereafter, the interest rate payable
hereunder shall be the rate of interest provided in Sections 1.5(b)
through (e) of this Agreement, unless and until the rate of interest again
exceeds the Maximum Lawful Rate, in which event this paragraph shall again
apply. In no event shall the total interest received by any Lender
pursuant to the terms hereof exceed the amount which such Lender could
lawfully have received had the interest due hereunder been calculated for
the full term hereof at the Maximum Lawful Rate. In the event the Maximum
Lawful Rate is calculated pursuant to this paragraph, such interest shall
be calculated at a daily rate equal to the Maximum Lawful Rate divided by
the number of days in the year in which such calculation is made. In the
event that a court of competent jurisdiction, notwithstanding the
provisions of this Section 1.5 (f), shall make a final determination that
a Lender has received interest hereunder or under any of the other Loan
Documents in excess of the Maximum Lawful Rate, Agent shall, to the extent
permitted by applicable law, promptly apply such excess first to any
interest due and not yet paid hereunder in respect of the Loans, then to
the outstanding principal of the Loans, then to Fees and any other unpaid
Obligations and thereafter shall refund any excess to Borrower or as a
court of competent jurisdiction may otherwise order.
1.6 Eligible Accounts. Based on the most recent Borrowing Base
Certificate delivered by Borrower to Agent and on other information
available to Agent, Agent shall determine which Accounts shall be deemed
to be "Eligible Accounts" for purposes of determining the amounts, if any,
to be advanced to Borrower under the Revolving Credit Loan. In
determining whether a particular Account constitutes an Eligible Account,
Agent shall not include any such Account which meets any of the criteria
set forth in Schedule C.
1.7 Eligible Inventory. Based on the most recent Borrowing
Base Certificate delivered by Borrower to Agent and on other information
available to Agent, Agent shall determine which Inventory shall be deemed
to be "Eligible Inventory" for purposes of determining the amounts, if
any, to be advanced to Borrower under the Revolving Credit Loan. In
determining whether any particular Inventory constitutes Eligible
Inventory, Agent shall not include Inventory which meets any of the
criteria set forth in Schedule D.
1.8 Fees. (a) Borrower shall pay to GE Capital, individually,
the fees specified in that certain Fee Letter, dated of even date herewith
(the "GE Capital Fee Letter"), at the times specified for payment therein.
(b) As additional compensation for Lenders' costs and risks in
making the Revolving Credit Loan available to Borrower, Borrower agrees to
pay to Agent, for the ratable benefit of Lenders, in arrears, on the first
Business Day of each month prior to the Commitment Termination Date and on
the Commitment Termination Date, a fee for Borrower's non-use of available
funds (the "Non-use Fee") in an amount equal to one-half of one percent
(1/2%) per annum (calculated on the basis of a 360 day year for actual
days elapsed) of the difference between the respective daily averages of
(i) the Maximum Revolving Credit Loan (as it may be adjusted from time to
time hereunder) and (ii) the amount of the Revolving Credit Loan
outstanding during the period for which the Non-Use Fee is due.
(c) Except as set forth in Section 1.3(d) above, if, prior to
July 1, 1998, Borrower shall prepay the Term Loans, Borrower shall pay to
the Agent, for the benefit of Lenders as liquidated damages and
compensation for the costs of being prepared to make funds available to
Borrower hereunder an amount determined by multiplying (i) in the case of
a prepayment of the Term Loan on or before June 30, 1997, two percent (2%)
by the sum of the outstanding principal balance of the Term Loan at the
date of such prepayment (or, in the case of a partial prepayment, by the
amount so prepaid) and (ii) in the case of a permanent prepayment of the
Term Loan after June 30, 1997 and on or before June 30, 1998, one percent
(1%) by the sum of the outstanding principal balance of the Term Loans at
the date of such prepayment (or, in the case of a partial prepayment, by
the amount so prepaid).
1.9 Cash Management Systems; Daily Sweep. On or prior to the
Closing Date, Borrower will establish and will maintain until the
Termination Date, the cash management systems described on Schedule E.
The Revolving Credit Loan shall be repaid at the close of each Business
Day to the extent of the balance in the Collection Account as more fully
described on Schedule E.
1.10 Receipt of Payments. Borrower shall make each payment
under this Agreement not later than noon (Chicago time) on the day when
due in lawful money of the United States of America in immediately
available funds to the Collection Account. For purposes of computing
interest and fees and determining the amount of funds available for
borrowing by Borrower pursuant to Section 1.1(a), (a) all payments
(including cash sweeps) consisting of cash, wire or electronic transfers
in immediately available funds shall be deemed received on the date of
deposit thereof in the Collection Account and notice to Agent of such
deposit before the time specified above, and (b) all payments consisting
of checks, drafts, or similar non-cash items shall be deemed received on
the day of receipt of good funds following deposit of any such payment in
the Collection Account and notice to Agent of such deposit.
1.11 Application and Allocation of Payments. Borrower
hereby irrevocably waives the right to direct the application of any and
all payments at any time or times hereafter received from or on behalf of
Borrower, and Borrower hereby irrevocably agrees that Agent shall have the
continuing exclusive right to apply any and all such payments against the
then due and payable Obligations of Borrower, to cash collateralize the
undrawn portion of any Letters of Credit, and in repayment of the
Revolving Credit Loan and Term Loans as Agent may deem advisable
notwithstanding any previous entry by Agent upon the Loan Account or any
other books and records. In the absence of a specific determination by
Agent with respect thereto, the same shall be applied in the following
order: (i) to then due and payable expenses of the Agent and to then due
and payable Fees; (ii) to then due and payable interest payments on the
Revolving Credit Loan and Term Loan; (iii) to principal payments on the
Revolving Credit Loan and Term Loan; (iv) to cash collateralize the
undrawn portion of any Letters of Credit, and (v) to all other then due
and payable Obligations. Agent is authorized to, and at its option may,
make or cause to be made Revolving Credit Advances on behalf of Borrower
for payment of all Fees, expenses, Charges, costs, principal, interest, or
other Obligations owing by Borrower under this Agreement or any of the
other Loan Documents if and to the extent Borrower fails to promptly pay
any such amounts as and when due, even if such Revolving Credit Advance
would cause total Revolving Credit Advances to exceed Borrowing
Availability or the Maximum Revolving Credit Loan amount. At Agent's
option and to the extent permitted by law, any advances so made shall be
deemed Revolving Credit Advances constituting part of the Revolving Credit
Loan hereunder. Any cash collateral required by this Section 1.11 shall
be held by the Agent in a separate cash collateral account subject to the
security interest and lien of the Security Agreement and the terms of
Schedule B. The Borrower shall have no access to such account.
1.12 Loan Account and Accounting. Agent shall maintain a
loan account (the "Loan Account") on its books to record: (a) all
Revolving Credit Advances and the Term Loan, (b) all payments made by
Borrower, and (c) all other appropriate debits and credits as provided in
this Agreement with respect to the Revolving Credit Loan and Term Loan or
any other Obligations. All entries in the Loan Account shall be made in
accordance with Agent's customary accounting practices as in effect from
time to time. Borrower shall pay all Obligations as such amounts become
due or are declared due pursuant to the terms of this Agreement.
The balance in the Loan Account, as recorded on Agent's most
recent printout or other written statement, shall be presumptive evidence
of the amounts due and owing to Agent and Lenders by Borrower; provided,
that, any failure to so record or any error in so recording shall not
limit or otherwise affect Borrower's obligations to pay the Obligations.
Agent shall render to Borrower a monthly accounting of transactions under
the Revolving Credit Loan and Term Loans setting forth the balance of the
Loan Account. Each and every such accounting shall (absent manifest
error) be deemed final, binding and conclusive upon Borrower in all
respects as to all matters reflected therein, unless Borrower, within
thirty (30) days after the date any such accounting is rendered, shall
notify Agent in writing of any objection which Borrower may have to any
such accounting, describing the basis for such objection with specificity.
In that event, only those items expressly objected to in such notice shall
be deemed to be disputed by Borrower.
1.13 Indemnity. (a) Borrower shall jointly and severally
indemnify and hold each of Agent, Lenders, their respective Affiliates,
and each such Person's respective officers, directors, employees,
attorneys, agents and representatives (each, an "Indemnified Person"),
harmless from and against any and all suits, actions, proceedings, claims,
damages, losses, liabilities and expenses (including attorneys' fees and
disbursements and other costs of investigation or defense, including those
incurred upon any appeal) which may be instituted or asserted against or
incurred by any such Indemnified Person as the result of credit having
been extended under this Agreement and the other Loan Documents or in
connection with or arising out of the transactions contemplated hereunder
and thereunder or any actions or failures to act in connection therewith,
including any and all Environmental Liabilities and Costs; provided, that
Borrower shall not be liable for any indemnification to such Indemnified
Person to the extent that any such suit, action, proceeding, claim,
damage, loss, liability or expense results solely from such Indemnified
Person's gross negligence or willful misconduct, as finally determined by
a court of competent jurisdiction after all possible appeals have been
exhausted. NEITHER AGENT, ANY LENDER, NOR ANY OTHER INDEMNIFIED PERSON
SHALL BE RESPONSIBLE OR LIABLE TO ANY OTHER PARTY HERETO, ANY SUCCESSOR,
ASSIGNEE OR THIRD PARTY BENEFICIARY OF SUCH PERSON OR ANY OTHER PERSON
ASSERTING CLAIMS DERIVATIVELY THROUGH SUCH PARTY, FOR INDIRECT, PUNITIVE,
EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED AS A RESULT OF
CREDIT HAVING BEEN EXTENDED OR TERMINATED UNDER THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS.
(b) Borrower hereby acknowledges and agrees that Agent (i) is
not now, and has not ever been, in control of any of the Real Estate or
Borrower's affairs, and (ii) does not have the capacity through the
provisions of the Loan Documents to influence Borrower's conduct with
respect to the ownership, operation or management of any of its Real
Estate.
(c) Borrower understands that in connection with Lenders'
arranging to provide the LIBOR Rate interest option with respect to the
Revolving Credit Loan and Term Loans from time to time at the option of
Borrower on the terms provided herein, Lenders may enter into funding
arrangements with third parties ("Funding Arrangements") on terms and con-
ditions which could result in losses to such Lenders if such LIBOR Rate
funds do not remain outstanding at the interest rates provided herein for
the entire LIBOR Period with respect to which the LIBOR Rate has been
fixed. Consequently, in order to induce Lenders to provide such LIBOR
Rate option on the terms provided herein and in consideration of Lenders
entering into such Funding Arrangements from time to time, if any LIBOR
Loans are repaid in whole or in part prior to the last day of any such
LIBOR Period therefor (whether such repayment is made pursuant to any
provision of this Agreement or any other Loan Document or is the result of
acceleration, by operation of law or otherwise), Borrower shall indemnify
and hold harmless each Lender from and against and in respect of any and
all losses, costs and expenses resulting from, or arising out of or
imposed upon or incurred by such Lender by reason of the liquidation or
reemployment of funds acquired or committed to be acquired by such Lender
to fund such LIBOR Loans pursuant to the Funding Arrangements. The amount
of any losses, costs or expenses resulting in an obligation of Borrower to
make a payment pursuant to the foregoing sentence shall not include any
losses attributable to lost profit to Lenders but shall represent the
excess, if any, of (A) such Lender's cost of borrowing the LIBOR Rate
funds pursuant to the Funding Arrangements over (B) the return to such
Lender on its reinvestment of such funds; provided, however, that if any
Lender terminates any Funding Arrangements in respect of the LIBOR Loans,
the amount of such losses, costs and expenses shall include the cost to
such Lender of such termination. In reinvesting any funds borrowed by any
Lender pursuant to the Funding Arrangements, such Lender shall take into
consideration the remaining maturity of such borrowings. As promptly as
practicable under the circumstances, each Lender shall provide Borrower
with its written calculation of all amounts payable pursuant to the next
preceding sentence, and such calculation shall be binding on the parties
hereto unless Borrower shall object thereto in writing within ten (10)
Business Days of receipt thereof.
1.14 Access. (a) Borrower shall provide full access during
normal business hours, from time to time upon three (3) Business Days'
prior notice, to Agent and any of its officers, employees and agents, as
frequently as Agent determines, in its reasonable discretion, to be
appropriate (unless a Default or Event of Default shall have occurred and
be continuing, in which event Agent and its officers, employees,
designees, agents and representatives shall have access at any and all
times and without any advance notice), to the properties, facilities,
books, records, suppliers, customers, advisors and employees (including
officers) of Borrower, to the Collateral, to the accountants (including
Xxxxxx Xxxxxxxx LLP) of Borrower and to the work papers of such
accountants, if available. Without limiting the generality of the
foregoing, Borrower shall (i) permit Agent, and any of its officers,
employees, agents and representatives, to inspect, audit and make extracts
from all of Borrower's records, files and books of account and (ii) permit
Agent, and any of its officers, employees, agents and representatives, to
inspect, review and evaluate the Accounts and Inventory at Borrower's
locations and at premises not owned by or leased to Borrower. Borrower
shall make available to Agent and its counsel, as quickly as is possible
under the circumstances, originals or copies of all books, records, board
minutes, contracts, insurance policies, environmental audits, business
plans, files, financial statements (actual and pro forma), filings with
federal, state and local regulatory agencies, and other instruments and
documents which Agent may request. Borrower shall deliver any document or
instrument necessary for Agent, as it may from time to time request, to
obtain records from any service bureau or other Person which maintains
records for Borrower, and shall maintain records or supporting
documentation on media, including computer tapes and discs owned by
Borrower. Borrower shall instruct their certified public accountants to
make available to Agent such information and records as Agent may request.
(b) A fee of $400 per day per individual (plus all out-of-
pocket costs and expenses) in connection with Agent's field examinations
permitted under Section 1.14(a) above and Section 4(c) of the Security
Agreement shall be charged against the Revolving Credit Facility in
connection with each field audit conducted after the Closing Date.
1.15 Taxes. (a) Any and all payments by Borrower hereunder
or under the Revolving Credit Notes or Term Notes shall be made, in
accordance with this Section 1.15, free and clear of and without deduction
for any and all present or future Taxes. If Borrower shall be required by
law to deduct any Taxes from or in respect of any sum payable hereunder or
under the Revolving Credit Notes or Term Notes, (i) the sum payable shall
be increased as much as shall be necessary so that after making all
required deductions (including deductions applicable to additional sums
payable under this Section 1.15) Agent or Lenders, as applicable, receive
an amount equal to the sum they would have received had no such deductions
been made, (ii) Borrower shall make such deductions, and (iii) Borrower
shall pay the full amount deducted to the relevant taxing or other
authority in accordance with applicable law.
(b) Borrower shall indemnify and pay, within ten (10) days of
demand therefor, Agent and each Lender for the full amount of Taxes
(including any Taxes imposed by any jurisdiction on amounts payable under
this Section 1.15) paid by Agent or such Lender, as appropriate, and any
liability (including penalties, interest and expenses) arising therefrom
or with respect thereto.
(c) Within thirty (30) days after the date of any payment of
Taxes, Borrower shall furnish to Agent, at its address referred to in
Section 11.10, the original or a certified copy of a receipt evidencing
payment thereof.
1.16 Capital Adequacy; Increased Costs; Illegality. (a)
In the event that any Lender shall have determined that the adoption after
the date hereof of any law, treaty, governmental (or quasi-governmental)
rule, regulation, guideline or order regarding capital adequacy, reserve
requirements or similar requirements or compliance by any Lender with any
request or directive regarding capital adequacy, reserve requirements or
similar requirements (whether or not having the force of law and whether
or not failure to comply therewith would be unlawful) from any central
bank or governmental agency or body having jurisdiction has the effect of
increasing the amount of capital, reserves or other funds required to be
maintained by such Lender and thereby reducing the rate of return on such
Lender's capital as a consequence of its obligations hereunder, then
Borrower shall from time to time within fifteen (15) days after notice and
demand on Borrower by such Lender (together with the certificate referred
to in the next sentence and with a copy to Agent) pay to Agent, for the
account of such Lender, additional amounts sufficient to compensate such
Lender for such reduction. A certificate as to the amount of such cost
and showing the basis of the computation of such cost submitted by such
Lender to Borrower and Agent shall, absent manifest error, be final,
conclusive and binding for all purposes, unless Borrower within ten (10)
days after demand for payment of such additional amount(s) shall notify
Agent and such Lender in writing of any objection which Borrower may have
to such computation, describing the basis for such objection with
specificity. In that event, only those items expressly objected to in
such notice shall be deemed to be disputed by Borrower. Such Lender's
determination, based upon the facts available, of the computation shall
(absent manifest error) be final, binding and conclusive on Borrower.
(b) If, due to either (i) the introduction of or any change in
or in the judicial or governmental interpretation of any law or regulation
or (ii) the compliance with any guideline or request from any central bank
or other Governmental Authority (whether or not having the force of law),
there shall be any increase in the cost to any Lender of agreeing to make
or making, funding or maintaining of any Loan, then Borrower shall from
time to time, within fifteen (15) days after notice and demand by such
Lender (with a copy of such demand to Agent), pay to Agent for the account
of such Lender additional amounts sufficient to compensate such Lender for
such increased cost. A certificate as to the amount of such increased
cost, submitted to Borrower and Agent by such Lender, shall be conclusive
and binding on Borrower for all purposes, absent manifest error, unless
Borrower within ten (10) days after demand for payment of such additional
amount(s) shall notify Agent and such Lender in writing of any objection
which Borrower may have to such computation, describing the basis for such
objection with specificity. In that event, only those items expressly
objected to in such notice shall be deemed to be disputed by Borrower.
Such Lender's determination, based upon the facts available, of the
computation shall (absent manifest error) be final, binding and conclusive
on Borrower. Each Lender agrees that, as promptly as practicable after it
becomes aware of any circumstances referred to in clause (i) or (ii) above
which would result in any such increased cost to such Lender, such Lender
shall, to the extent not inconsistent with such Lender's internal policies
of general application, use reasonable commercial efforts to minimize
costs and expenses incurred by it and payable to it by Borrower pursuant
to this Section 1.16(b).
(c) Notwithstanding anything to the contrary contained herein,
if the introduction of or any change in or in the judicial or governmental
interpretation of any law or regulation shall make it unlawful, or any
central bank or other Governmental Authority shall assert that it is
unlawful, for any Lender to agree to make or to make or to continue to
fund or maintain any LIBOR Loan, then, unless such Lender is able to agree
to make or to make or to continue to fund or to maintain such LIBOR Loan
at another branch or office of such Lender without, in such Lender's
opinion, adversely affecting it or its Loans or the income obtained
therefrom, on notice thereof and demand therefor by such Lender to
Borrower through Agent, (i) the obligation of such Lender to agree to make
or to make or to continue to fund or maintain LIBOR Loans shall terminate
and (ii) on the last day of each LIBOR Period applicable thereto, Borrower
shall prepay in full all outstanding LIBOR Loans or convert such LIBOR
Loans into Index Rate Loans.
(d) Upon the Agent obtaining actual knowledge of the occurrence
of any of the events set forth in this Section 1.16, Agent shall promptly
notify Borrower of the occurrence of such event. Borrower shall have the
right within five (5) days of receipt of such notice to convert any
outstanding LIBOR Loans to Index Rate Loans.
(e) Foreign Lenders. Each Lender organized under the laws of a
jurisdiction outside the United States (a "Foreign Lender") as to which
payments to be made under this Agreement or under the Notes are exempt
from United States withholding tax or are subject to United States
withholding tax at a reduced rate under an applicable statute or tax
treaty shall provide to Borrower and Agent a properly completed and
executed Internal Revenue Service Form 4224 or Form 1001 or other
applicable form, certificate or document prescribed by the Internal
Revenue Service or the United States certifying as to such Foreign
Lender's entitlement to such exemption or reduced rate or withholding with
respect to payments to be made to such Foreign Lender under this Agreement
and under the Notes (a "Certificate of Exemption"). Prior to becoming a
Lender under this Agreement and within fifteen (15) days after a
reasonable written request of Borrower or Agent from time to time
thereafter, each Foreign Lender that becomes a Lender under this Agreement
shall provide a Certificate of Exemption to Borrower and Agent. No Person
may become a Lender hereunder if such Person is unable to deliver a
Certificate of Exemption.
If a Foreign Lender does not provide a Certificate of Exemption
to Borrower and Agent within the time periods set forth in the preceding
paragraph, Borrower shall withhold taxes from payments to such Foreign
Lender at the applicable statutory rate and Borrower shall not be required
to pay any additional amounts as a result of such withholding; provided,
however, that all such withholding shall cease upon delivery by such
Foreign Lender of a Certificate of Exemption to Borrower and Agent.
2. CONDITIONS PRECEDENT
2.1 Conditions to the Initial Loans.
Notwithstanding any other provision of this Agreement and
without affecting in any manner the rights of Agent and Lenders hereunder,
Borrower shall have no rights under this Agreement (but shall have all
applicable obligations hereunder), and no Lender shall be obligated to
make any Loan on the Closing Date, or to take, fulfill, or perform any
other action hereunder, until the following conditions have been
satisfied, in Agent's sole discretion, or waived in writing by Agent:
(a) Credit Agreement. This Agreement or counterparts hereof
shall have been duly executed by, and delivered to, Borrower, Agent and
Lenders.
(b) Loan Documents. Agent shall have received such documents,
instruments, agreements and legal opinions as Agent shall request in
connection with the transactions contemplated by this Agreement and the
other Loan Documents, including all documents, instruments, agreements and
legal opinions listed in the Schedule of Documents attached hereto as
Schedule F, each in form and substance satisfactory to Agent.
(c) Repayment of Prior Loans. A pay-off letter(s) satisfactory
to Agent confirming that all of the Prior Lender Obligations will be
repaid in full from the proceeds of the initial Revolving Credit Advance
and Term Loan or otherwise terminated and all Liens upon any of the
property of Borrower in favor of Prior Lender shall be terminated by Prior
Lender immediately upon such payment or termination.
(d) Governmental Approvals. Evidence satisfactory to Agent
that Borrower has obtained consents and acknowledgments of all Persons
whose consents and acknowledgments may be required, including, but not
limited to, all requisite Governmental Authorities, to the terms, and to
the execution and delivery, of this Agreement, the other Loan Documents
and the consummation of the transactions contemplated hereby and thereby.
(e) Insurance. Evidence satisfactory to Agent that the
insurance policies provided for in Section 3.21 and Schedule 3.21 are in
full force and effect, together with appropriate evidence showing loss
payable and/or additional insured clauses or endorsements, as requested by
Agent, in favor of Agent, on behalf of Lenders, and in form and substance
satisfactory to Agent.
(f) Opening Availability. The Eligible Accounts and Eligible
Inventory supporting the initial Revolving Credit Advance and the amount
of the reserves to be established on the Closing Date shall be sufficient
in value, as determined by Agent, to provide Borrower with excess
Borrowing Availability, after giving effect to the initial Revolving
Credit Advance, the Term Loan, the amount of any Letter of Credit
Obligations under the Revolving Credit Loan and any initial Letter of
Credit Obligations (on a pro forma basis and without any deterioration in
trade payables) of at least $1,000,000.
(g) Payment of Fees. Payment by Borrower to GE Capital of the
fees required to be paid on the Closing Date in the respective amounts
specified in GE Capital Fee Letter.
(h) Officer's Certificate. Agent shall have received duly
executed originals of a certificate of the chief executive officer and the
Financial Officer of Borrower, dated the Closing Date, stating that since
December 30, 1994, to the best of their knowledge and belief, after due
inquiry (i) there has been no material adverse change in the business,
results of operations, financial condition or prospects of Borrower or the
industries in which Borrower operates; (ii) no litigation other than as
disclosed on Schedule 3.15 has been commenced which, if successful, would
have a Material Adverse Effect or could challenge any of the transactions
contemplated by this Agreement and the other Loan Documents; (iii) there
have been no dividends or other distributions to Borrower's stockholders;
and (iv) there has been no material increase in liabilities, liquidated or
contingent, and no material decrease in assets of Borrower.
(i) Accountants Letters. Agent, on behalf of Lenders, shall
have received a letter satisfactory in form and substance to Agent signed
by Borrower's independent certified public accountants, acknowledging that
Agent and Lenders are entitled to rely upon such accountant's
certification of Borrower's financial statements.
(j) Compliance with Laws. Agent shall have received evidence
satisfactory to Agent and its counsel that Borrower is in compliance in
all material respects, with all applicable foreign, federal, state and
local laws and regulations, including those relating to labor and
environmental matters and ERISA.
(k) Waivers. Agent, on behalf of Lenders, shall have received
landlord waivers and consents, bailee letters and mortgagee agreements in
form and substance satisfactory to Agent, in each case as required
pursuant to Section 5.11. In the event Borrower is unable to obtain a
landlord waiver and consent, bailee letter and/or mortgage agreement
acceptable to Agent as to any such location on or before the Closing Date,
Eligible Inventory at that location shall be subject to a reserve
established by Agent in accordance with Section 5.11.
(l) Mortgages. Mortgages covering all of the Real Estate other
than Borrower's regional sales office facilities not co-located with a
manufacturing facility (the "Mortgaged Properties") together with: (a)
copies of existing title insurance policies, as-built surveys, zoning
letters and certificates of occupancy, the contents of which are in each
case satisfactory to Agent in its sole discretion; (b) evidence that
counterparts of the Mortgages have been recorded in all places to the
extent necessary or desirable, in the judgment of Agent, to create a valid
and enforceable first priority lien (subject to Permitted Encumbrances) on
each Mortgaged Property in favor of Agent for the benefit of itself and
Lenders (or in favor of such other trustee as may be required or desired
under local law); and (c) an opinion of counsel in each state in which any
Mortgaged Property is located in form and substance and from counsel
satisfactory to Agent.
(m) Other Indebtedness. The terms and conditions of all
long-term debt of Borrower shall be acceptable to Agent, in its sole
discretion, and Agent and Lenders shall have received any and all
subordination and/or intercreditor agreements, all in form and substance
reasonably satisfactory to Agent, in its sole discretion, as Agent shall
have deemed necessary or appropriate with respect to such indebtedness.
(n) Environmental Reports. Agent shall have received copies of
existing environmental review and audit reports with respect to the
properties of Borrower and Agent shall be satisfied, in its sole
discretion, with the contents of all such environmental reports.
(o) Audited Financials. Agent shall have received Borrower's
most recent draft financial statements prepared by Xxxxxx Xxxxxxxx LLP.
(p) Real Estate Appraisals. Agent shall have received copies
of existing real estate appraisals of the Real Estate owned by Borrower
and shall be satisfied with the contents thereof in its sole discretion.
(q) Financial Condition. Borrower shall have provided Agent
with their current operating statements, a consolidated balance sheet and
statement of cash flows, and projections, and a Borrowing Base Certificate
certified by Borrower's Financial Officer for each Division, in each case
in form and substance satisfactory to Agent, and Agent shall be satisfied,
in its sole discretion, with all of the foregoing, including:
(i) the Pro Forma as of the Closing Date in accordance
with Section 3.4 hereof;
(ii) Projections in accordance with Section 3.4 hereof;
(iii) Borrower's most recent audited and unaudited financial
statements; and
(iv) a certificate of the Chief Executive Officer and/or
the Financial Officer of Borrower, based on such Pro Forma,
Projections and financial statements, to the effect that (A) Borrower
will be Solvent upon the consummation of the transactions
contemplated herein; (B) the Pro Forma fairly presents the financial
condition of Borrower as of the date thereof after giving effect to
the transactions contemplated by the Loan Documents; (C) the
Projections are reasonable estimates of the future financial
performance of the Borrower subsequent to the date thereof based upon
the historical performance of the Borrower; and (D) containing such
other statements with respect to the solvency of Borrower and matters
related thereto as the Agent shall request.
2.2 Further Conditions to Each Revolving Credit Advance. It
shall be a further condition to the Term Loan, to the initial and each
subsequent Revolving Credit Advance and to the incurrence of the initial
and any subsequent Letter of Credit Obligations that the following
statements shall be true on the date of each such advance or funding, as
the case may be:
(a) All of Borrower's representations and warranties contained
herein or in any of the other Loan Documents shall be true and correct on
and as of the Closing Date and the date on which each Revolving Credit
Advance is made (or Letter of Credit Obligation is incurred) as though
made on and as of such date, except to the extent that any such
representation or warranty expressly relates to an earlier date and except
for changes therein expressly permitted or expressly contemplated by this
Agreement.
(b) No Material Adverse Effect shall have occurred since the
date hereof.
(c) No event shall have occurred and be continuing, or would
result from the making of any Revolving Credit Advance (or the incurrence
of any Letter of Credit Obligations), which constitutes or would
constitute a Default or an Event of Default.
(d) After giving effect to each Revolving Credit Advance (or
Letter of Credit Obligations) the aggregate principal amount of the
Revolving Credit Loan shall not exceed the maximum amount permitted by
Section 1.3(a) without requiring that a payment be made to Agent or any
Lender.
The request and acceptance by Borrower of the proceeds of the Term Loan or
any Revolving Credit Advance or the incurrence of any Letter of Credit
Obligations shall be deemed to constitute, as of the date of such request
or acceptance, (i) a representation and warranty by Borrower that the
conditions in this Section 2.2 have been satisfied and (ii) a
reaffirmation by Borrower of the granting and continuance of Agent's
Liens, on behalf of itself and Lenders, pursuant to the Collateral
Documents.
3. REPRESENTATIONS AND WARRANTIES
To induce Lenders to make the Revolving Credit Loan and Term
Loan and to incur Letter of Credit Obligations, Borrower makes the
following representations and warranties to Agent and each Lender, each
and all of which shall survive the execution and delivery of this
Agreement:
3.1 Corporate Existence; Compliance with Law. Borrower (i) is
a corporation duly organized, validly existing and in good standing under
the laws of its jurisdiction of incorporation and has been duly qualified
to conduct business and is in good standing in each other jurisdiction
where its ownership or lease of property or the conduct of its business
requires such qualification; (ii) has the requisite corporate power and
authority and the legal right to own, pledge, mortgage or otherwise
encumber and operate its properties, to lease the property it operates
under lease and to conduct its business as now, heretofore and proposed to
be conducted; (iii) has all licenses, permits, consents or approvals from
or by, and has made all filings with, and has given all notices to, all
Governmental Authorities having jurisdiction, to the extent required for
such ownership, operation and conduct; (iv) is in compliance with its
certificate or articles of incorporation and by-laws; and (v) is in
compliance with all applicable provisions of law.
3.2 Executive Offices. The current location of Borrower's
chief executive office and principal place of business is set forth in
Schedule 3.2 and, as of the Closing Date, none of such locations have
changed within the past six (6) months.
3.3 Corporate Power, Authorization, Enforceable Obligations.
The execution, delivery and performance by Borrower of the Loan Documents
and all other instruments and documents to be delivered by Borrower, and
the creation of all Liens provided for therein: (i) are within Borrower's
corporate power; (ii) have been duly authorized by all necessary or proper
corporate and shareholder action; (iii) are not in contravention of any
provision of Borrower's certificate or articles or incorporation or
bylaws; (iv) will not violate any law or regulation, or any order or
decree of any court or governmental instrumentality; (v) will not conflict
with or result in the breach or termination of, constitute a default under
or accelerate any performance required by, any indenture, mortgage, deed
of trust, lease, agreement or other instrument to which Borrower is a
party or by which Borrower or any of its property is bound; (vi) will not
result in the creation or imposition of any Lien upon any of the property
of Borrower other than those in favor of Agent, on behalf of itself and
Lenders, all pursuant to the Loan Documents; and (vii) do not require the
consent or approval of any Governmental Authority or any other Person,
except those referred to in Section 2.1(d), all of which will have been
duly obtained, made or complied with prior to the Closing Date. On or
prior to the Closing Date, each of the Loan Documents shall have been duly
executed and delivered for the benefit of or on behalf of Borrower, and
each Loan Document shall then constitute a legal, valid and binding
obligation of Borrower enforceable against it in accordance with its
terms, except as enforceability may be limited by bankruptcy, insolvency
or other similar laws affecting the rights of creditors generally or by
application of general principles of equity.
3.4 Financial Statements and Projections. All financial
statements (the "Financial Statements"), except for the Projections,
concerning Borrower which are referenced below have been prepared in
accordance with GAAP consistently applied throughout the periods involved
(except as disclosed therein and except, with respect to unaudited
financial statements, for the absence of footnotes and normal year-end
audit adjustments) and, to the best of Borrower's knowledge and belief
after due inquiry, do present fairly in all material respects the
financial condition of the corporations covered thereby as at the dates
thereof and the results of their operations for the periods then ended.
(a) The following financial statements attached hereto as
Schedule 3.4(A) have been delivered on the date hereof:
(i) The audited balance sheet at December 31, 1993 and related
statement of income, certified by Xxxxxx Xxxxxxxx LLP and the draft
audited balance sheet at December 31, 1994 and related statement of
income prepared by Xxxxxx Xxxxxxxx LLP.
(ii) The unaudited balance sheet at March 31, 1995 and the
related statement of income for the Fiscal Quarter then ended.
(b) Pro Forma. The Pro Forma delivered on the date hereof and
attached hereto as Schedule 3.4(B) was prepared by Borrower based on the
unaudited balance sheet of March 31, 1995 and was prepared in accordance
with GAAP, with only such adjustments thereto as would be required in
accordance with GAAP.
(c) Projections. The Projections delivered on the date hereof
and attached hereto as Schedule 3.4(C) have been prepared by Borrower in
light of past operations of its business, and reflect projections for the
three-year period beginning on January 1, 1995 on a quarter-by-quarter
basis for the first year and on a year-by- year basis thereafter. The
Projections represent as of the date hereof the good faith and reasonable
estimates of the future financial performance of Borrower based on its
historical performance (it being understood that such Projections are not
warranties of future performance).
3.5 Collateral Reports. Borrower has delivered the Collateral
Reports identified on Schedule H and each such Collateral Report complies
with the description thereof contained on Schedule H.
3.6 Material Adverse Effect. Since December 31, 1994, Borrower
has not incurred any obligations, contingent liabilities, or liabilities
for Charges, long-term leases or unusual forward or long-term commitments
which are not reflected in the pro forma balance sheet of Borrower and
which could, alone or in the aggregate, have or result in a Material
Adverse Effect. No Material Adverse Effect has occurred between December
31, 1994 and the Closing Date.
3.7 Ownership of Property; Liens. (a) Except as described on
Schedule 3.7, the real estate ("Real Estate") listed on Schedule 3.7
constitutes all of the real property owned, leased, or used in its
business by Borrower. Borrower (i) owns good and marketable fee simple
title to all of its owned real estate, and valid and marketable leasehold
interests in all of its Leases (both as lessor and lessee, sublessee or
assignee), all as described on Schedule 3.7, and (ii) good and marketable
title to, or valid leasehold interests in, all of its other properties and
assets, and none of the properties and assets of Borrower are subject to
any Liens, except Permitted Encumbrances; and Borrower has received all
deeds, assignments, waivers, consents, non-disturbance and recognition or
similar agreements, bills of sale and other documents, and duly effected
all recordings, filings and other actions necessary to establish, protect
and perfect Borrower's right, title and interest in and to all such real
estate and other assets or property. Except as described on Schedule 3.7,
(i) neither Borrower nor any other party to any such Lease described on
Schedule 3.7 is in default of its obligations thereunder or has delivered
or received any notice of default under any such Lease, and no event has
occurred which, with the giving of notice, the passage of time or both,
would constitute a default under any such Lease; (ii) Borrower does not
own or hold nor is obligated under or a party to, any option, right of
first refusal or any other contractual right to purchase, acquire, sell,
assign or dispose of any real property owned or leased by Borrower except
as set forth therein; and (iii) no portion of any real property owned or
leased by Borrower has suffered any material damage by fire or other
casualty loss or a Release which has not heretofore been completely
repaired and restored to its original condition or is being remedied. All
permits required to have been issued or appropriate to enable the real
property owned or leased by Borrower to be lawfully occupied and used for
all of the purposes for which they are currently occupied and used, have
been lawfully issued and are, as of the date hereof, in full force and
effect.
3.8 Restrictions; No Default. No contract, lease, agreement or
other instrument to which Borrower is a party or by which it or any of its
properties or assets is bound or affected and no provision of applicable
law or governmental regulation has or results in a Material Adverse
Effect, or could have or result in a Material Adverse Effect. Borrower is
not in default, and to Borrower's knowledge no third party is in default,
under or with respect to any material contract, agreement, lease or other
instrument to which it is a party.
3.9 Labor Matters. No strikes or other labor disputes against
Borrower are pending or, to Borrower's knowledge, threatened. Hours
worked by and payment made to employees of Borrower have not been in
violation of the Fair Labor Standards Act or any other applicable federal,
state, local or foreign law dealing with such matters. All payments due
from Borrower on account of employee health and welfare insurance have
been paid or accrued as a liability on the books of Borrower. Except as
set forth in Schedule 3.9, Borrower has no obligations under any
collective bargaining agreement, management agreement, consulting
agreement or any material employment agreement. There is no organizing
activity involving Borrower pending or, to Borrower's knowledge,
threatened by any labor union or group of employees. Except as set forth
in Schedule 3.9, there are no representation proceedings pending or, to
Borrower's knowledge, threatened with the National Labor Relations Board,
and no labor organization or group of employees of Borrower has made a
pending demand for recognition. Except as set forth in Schedule 3.9,
there are no complaints or charges against Borrower pending or threatened
to be filed with any federal, state, local or foreign court, governmental
agency or arbitrator based on, arising out of, in connection with, or
otherwise relating to the employment or termination of employment by
Borrower of any individual.
3.10 Ventures, Subsidiaries and Affiliates; Outstanding
Stock and Indebtedness. Borrower has no Subsidiaries, is not engaged in
any joint venture or partnership with any other Person, and, except as set
forth on Schedule 3.10, is not an Affiliate of any other Person. Borrower
previously has furnished Agent the identity of each Shareholder known by
Borrower to own or control all the issued and outstanding Stock of
Borrower. Except as set forth in Schedule 3.10, there are no outstanding
rights to purchase, options, warrants or similar rights or agreements
pursuant to which Borrower may be required to issue or sell any Stock or
other equity security. As of the Closing Date, all outstanding
Indebtedness of Borrower is described in Section 6.3 (including Schedule
6.3).
3.11 Government Regulation. Borrower is not an "investment
company" or an "affiliated person" of, or "promoter" or "principal
underwriter" for, an "investment company," as such terms are defined in
the Investment Company Act of 1940 as amended. Borrower is not subject to
regulation under the Public Utility Holding Company Act of 1935, the
Federal Power Act, or any other federal or state statute that restricts or
limits its ability to incur Indebtedness or to perform its obligations
hereunder, and the making of the Revolving Credit Advances and Term Loan
by Lenders, the incurrence of the Letter of Credit Obligations, the
application of the proceeds thereof and repayment thereof by Borrower and
the consummation of the transactions contemplated by this Agreement and
the other Loan Documents will not violate any provision of any such
statute or any rule, regulation or order issued by the Securities and
Exchange Commission.
3.12 Margin Regulations. Borrower is not engaged, nor will
it engage, principally or as one of its important activities, in the
business of extending credit for the purpose of "purchasing" or "carrying"
any "margin security" as such term is defined in Regulation U or G of the
Board of Governors of the Federal Reserve System (the "Federal Reserve
Board") as now and from time to time hereafter in effect (such securities
being referred to herein as "Margin Stock"). Borrower does not own any
Margin Stock, and the proceeds of the Revolving Credit Advances and Term
Loan will not be used, directly or indirectly, for the purpose of
purchasing or carrying any Margin Stock, for the purpose of reducing or
retiring any indebtedness which was originally incurred to purchase or
carry any Margin Stock or for any other purpose which might cause any of
the loans or other extensions of credit under this Agreement to be
considered a "purpose credit" within the meaning of Regulation G, T, U or
X of the Federal Reserve Board.
3.13 Taxes. All federal, state, local and foreign tax
returns, reports and statements, including, but not limited to,
information returns required to be filed by Borrower have been filed with
the appropriate Governmental Authority and all Charges and other
impositions shown thereon to be due and payable have been paid prior to
the date on which any fine, penalty, interest or late charge may be added
thereto for nonpayment thereof (or any such fine, penalty, interest, late
charge or loss has been paid), and Borrower has paid when due and payable
all Charges required to be paid by it excluding, in each case, Charges or
other amounts being contested in accordance with Section 5.2(b). Proper
and accurate amounts have been withheld by Borrower from its respective
employees for all periods in full and complete compliance with the tax,
social security and unemployment withholding provisions of applicable
federal, state, local and foreign law and such withholdings have been
timely paid to the respective Governmental Authorities. Schedule 3.13
sets forth as of the Closing Date those taxable years for which Borrower's
tax returns are currently being audited by the IRS or any other applicable
Governmental Authority and any assessments or threatened assessments in
connection with such audit, or otherwise currently outstanding. Except as
described on Schedule 3.13, Borrower has not executed or filed with the
IRS or any other Governmental Authority any agreement or other document
extending, or having the effect of extending, the period for assessment or
collection of any Charges. Borrower is not liable for any Charges or the
documents delivered in connection therewith: (i) under any agreement
(including, without limitation, any tax sharing agreements) or (ii) to the
best of Borrower's knowledge, as a transferee. As of the Closing Date,
Borrower has not agreed or been requested to make any adjustment under IRC
Section 481(a) by reason of a change in accounting method or otherwise
which would have a Material Adverse Effect.
3.14 ERISA. (a) Schedule 3.14 lists all Plans maintained
or contributed to by Borrower and all Qualified Plans maintained or
contributed to by any ERISA Affiliate, and separately identifies the Title
IV Plans, Multiemployer Plans, any multiple employer plans subject to
Section 4064 of ERISA, unfunded Pension Plans, Welfare Plans and Retiree
Welfare Plans. Each Qualified Plan has been determined by the IRS to
qualify under Section 401 of the IRC, and the trusts created thereunder
have been determined to be exempt from tax under the provisions of Section
501 of the IRC, and to the best knowledge of Borrower nothing has occurred
which would cause the loss of such qualification or tax-exempt status.
Each Plan is in compliance with the applicable provisions of ERISA and the
IRC, including the filing of reports required under the IRC or ERISA, and
with respect to each Plan, other than a Qualified Plan, all required
contributions and benefits have been paid in accordance with the
provisions of each such Plan. Neither Borrower nor any ERISA Affiliate,
with respect to any Qualified Plan, has failed to make any contribution or
pay any amount due as required by Section 412 of the IRC or Section 302 of
ERISA or the terms of any such Plan. With respect to all Retiree Welfare
Plans, the present value of future anticipated expenses pursuant to the
latest actuarial projections of liabilities does not exceed $55,000,000 as
of September 30, 1994, and copies of such latest projections have been
provided to Agent. Neither Borrower nor any ERISA Affiliate thereof has
engaged in a prohibited transaction, as defined in Section 4975 of the IRC
or Section 406 of ERISA, in connection with any Plan, which would subject
Borrower (after giving effect to any exemption) to a material tax on
prohibited transactions imposed by Section 4975 of the IRC or any other
material liability.
(b) Except as set forth in Schedule 3.14 and the Borrower's
audited financial statements for the period ended December 31, 1994: (i)
no Title IV Plan has any Unfunded Pension Liability; (ii) no ERISA Event
or event described in Section 4062(e) of ERISA with respect to any Title
IV Plan has occurred or is reasonably expected to occur; (iii) there are
no pending, or to the knowledge of Borrower, threatened claims, actions or
lawsuits (other than claims for benefits in the normal course), asserted
or instituted against (x) any Plan or its assets, (y) any fiduciary with
respect to any Plan or (z) Borrower nor any ERISA Affiliate with respect
to any Plan; (iv) neither Borrower nor any ERISA Affiliate thereof has
incurred or reasonably expects to incur any withdrawal liability (and no
event has occurred which, with the giving of notice under Section 4219 of
ERISA, would result in such liability) under Section 4201 of ERISA as a
result of a complete or partial withdrawal from a Multiemployer Plan; (v)
within the last five years neither Borrower nor any ERISA Affiliate
thereof has engaged in a transaction which resulted in a Title IV Plan
with Unfunded Liabilities being transferred outside of the "controlled
group" (within the meaning of Section 4001(a)(14) of ERISA) of any such
entity; (vi) no Plan which is a Retiree Welfare Plan provides for
continuing benefits or coverage for any participant or any beneficiary of
a participant after such participant's termination of employment (except
as may be required by Section 4980B of the IRC and at the sole expense of
the participant or the beneficiary of the participant); (vii) Borrower and
each ERISA Affiliate have complied with the notice and continuation
coverage requirements of Section 4980B of the IRC and the regulations
thereunder except where the failure to comply could not have or result in
any Material Adverse Effect; and (viii) no liability under any Plan has
been funded, nor has such obligation been satisfied, with the purchase of
a contract from an insurance company that is not rated AAA by the Standard
& Poor's Corporation or the equivalent by another nationally recognized
rating agency.
3.15 No Litigation. Except as set forth in Schedule 3.15,
no action, claim or proceeding is now pending or, to the knowledge of
Borrower, threatened against Borrower, before any court, board,
commission, agency or instrumentality of any federal, state, local or
foreign government or of any agency or subdivision thereof, or before any
arbitrator or panel of arbitrators, (i) which challenges Borrower's right
or power to enter into or perform any of its obligations under the Loan
Documents, or the validity or enforceability of any Loan Document or any
action taken thereunder, or (ii) which, if determined adversely, would
have or result in a Material Adverse Effect, nor to the best knowledge of
Borrower does a state of facts exist which is reasonably likely to give
rise to such proceedings.
3.16 Brokers. Except as set forth in Schedule 3.16, no
broker or finder acting on behalf of Borrower thereof brought about the
obtaining, making or closing of the loans made pursuant to this Agreement
or the transactions contemplated by the Loan Documents and Borrower has no
obligations to any Person in respect of any finder's or brokerage fees in
connection therewith.
3.17 Employment Matters. Except as set forth in Schedules 3.9
and 3.17, there are no material employment, consulting or management
agreements covering any management employee or Affiliate of Borrower. A
true and complete copy of each such agreement has been furnished to Agent.
3.18 Patents, Trademarks, Copyrights and Licenses. Except
as otherwise set forth in Schedule 3.18, Borrower owns all material
licenses, patents, patent applications, copyrights, service marks,
trademarks, trademark applications, and trade names necessary to continue
to conduct its business as heretofore conducted by it or proposed to be
conducted by it, each of which is listed, together with Copyright Office
or Patent and Trademark Office application or registration numbers, where
applicable, on Schedule 3.18. Schedule 3.18 also lists all tradenames or
other names under which Borrower conducts business. To the best of
Borrower's knowledge, the conduct of its business does not infringe upon
any intellectual property right of any other Person.
3.19 Full Disclosure. No information contained in this
Agreement, any of the other Loan Documents, the Projections, the
Financials, the Collateral Reports or any written statement furnished by
or on behalf of Borrower pursuant to the terms of this Agreement, which
has previously been delivered to Agent, contains any untrue statement of a
material fact or omits to state a material fact necessary to make the
statements contained herein or therein not misleading in light of the
circumstances under which they were made. The Liens granted to Agent, on
behalf of itself and Lenders, pursuant to the Collateral Documents will at
the Closing Date be fully perfected first priority Liens in and to the
Collateral described therein, subject only to Liens set forth in Schedule
3.7 and the Liens granted to Agent, on behalf of itself and Lenders,
pursuant to the Mortgages will at the Closing Date be fully protected
first priority Liens in and to the Mortgaged Property described therein
and Permitted Liens.
3.20 Hazardous Materials. Except as set forth in Schedule
3.20, the Real Property is free of contamination from any Hazardous
Material. In addition, Schedule 3.20 discloses material environmental
liabilities of Borrower of which it has knowledge (i) related to
noncompliance with the Environmental Laws, or (ii) associated with the
Real Estate. Borrower has not caused or suffered to occur any Release
with respect to any Hazardous Material at, under, above or upon any real
property which it owns or leases. Borrower is not involved in operations
that are likely to result in the imposition of any Lien on its assets or
any material liability on Borrower, under any Environmental Law, and
Borrower has not permitted any tenant or occupant of such premises to
engage in any such activity. Borrower has provided to Agent copies of all
existing environmental reports, reviews and audits and all written
information pertaining to actual or potential Environmental Liabilities
and Costs, in each case relating to Borrower.
3.21 Insurance Policies. Schedule 3.21 lists all insurance
of any nature maintained for current occurrences by Borrower, as well as a
summary of the terms of such insurance.
3.22 Deposit and Disbursement Accounts. Schedule 3.22
lists all banks and other financial institutions at which Borrower
maintains deposits and/or other accounts, including any disbursement
accounts, and such Schedule correctly identifies the name, address and
telephone number of each depository, the name in which the account is
held, a description of the purpose of the account, and the complete
account number.
3.23 Government Contracts. Except as set forth in Schedule
3.23, Borrower is not a party to any contract or agreement with the
federal government and none of the Accounts are subject to the Federal
Assignment of Claims Act (31 U.S.C. Section 3727).
3.24 Customer and Trade Relations. There exists no actual
or threatened termination or cancellation of, or any material adverse
modification or change in: (a) the business relationship of Borrower with
any customer or group of customers whose purchases during the preceding
twelve (12) months caused them to be ranked among the ten largest
customers of Borrower taken as a whole; or (b) the business relationship
of Borrower with any supplier material to the operations of Borrower.
3.25 Agreements and Other Documents. As of the Closing
Date, Borrower has provided to Agent or its counsel, on behalf of Lenders,
accurate and complete copies (or summaries) of all of the following
agreements or documents to which Borrower is subject and each of which are
listed on Schedule 3.25: (a) Plans; (b) supply agreements not terminable
by Borrower, within sixty (60) days following written notice issued by
Borrower; (c) purchase agreements not terminable by Borrower, within 60
days following written notice issued by Borrower; (d) Leases; (e) any
lease of equipment having a remaining term of one year or longer and
requiring aggregate rental and other payments in excess of $50,000 per
annum; (f) licenses and permits necessary for the conduct of Borrower's
businesses; (g) instruments or documents evidencing Indebtedness of
Borrower and any security interest granted by Borrower with respect
thereto; (h) instruments and agreements evidencing the issuance of any
equity securities, warrants, rights or options to purchase equity
securities of Borrower; (i) employment and consulting agreements; and (j)
all agreements providing for compensation of or payments to senior members
of management and/or stockholders of Borrower. The Management Agreements
are the only agreements in effect for the provision to the Borrower of
management services.
3.26 FEIN. Borrower's federal employer identification
number is 00-0000000.
4. FINANCIAL STATEMENTS AND INFORMATION
4.1 Reports and Notices. (a) Borrower hereby covenants and
agrees that from and after the Closing Date and until the Termination
Date, it shall deliver to Agent and/or Lenders, as required, financial
statements, notices and Projections at the times, to the Persons and in
the manner set forth in Schedule G.
(b) Borrower hereby covenants and agrees that from and after
the Closing Date, they shall deliver to Agent and/or Lenders, as required,
the various Collateral Reports at the times, to the Persons and in the
manner set forth in Schedule H.
4.2 Communication with Accountants. Borrower authorizes Agent
and each Lender to communicate directly with its independent certified
public accountants including Xxxxxx Xxxxxxxx LLP, and authorizes those
accountants and advisors to disclose to Agent and each Lender any and all
financial statements and other supporting financial documents and
schedules relating to Borrower (including, without limitation, copies of
any issued management letters) with respect to the business, financial
condition and other affairs of Borrower. On or before the Closing Date,
Borrower shall obtain a letter from such accountants, on which the Agent
shall be designated as a recipient, acknowledging that Borrower intends
the financial statements certified by such accountants to benefit or
influence Lenders and that Lenders may rely upon such certification.
5. AFFIRMATIVE COVENANTS
Borrower covenants and agrees that, unless Agent shall otherwise
consent in writing, from and after the date hereof and until the
Termination Date:
5.1 Maintenance of Existence and Conduct of Business. Borrower
shall: (a) do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence and its rights and
franchises; (b) continue to conduct its business substantially as now
conducted or as otherwise permitted hereunder; (c) at all times maintain,
preserve and protect all of its copyrights, patents, trademarks, trade
names and all other intellectual property and rights as licensee or
licensor thereof and preserve all the remainder of its assets and
properties, used or useful in the conduct of its business, and keep the
same in good repair, working order and condition (taking into
consideration ordinary wear and tear) and from time to time make, or cause
to be made, all necessary or appropriate repairs, replacements and
improvements thereto consistent with industry practices; and (d) transact
business only in such corporate and trade names as are set forth in
Schedule 5.1. In addition, Schedule 5.1 lists the FEIN or Federal
Employer Identification Number of Borrower.
5.2 Payment of Obligations. (a) Subject to Section 5.2(b),
Borrower shall pay and discharge or cause to be paid and discharged
promptly all (A) Charges imposed upon it, its income and profits, or any
of its property (real, personal or mixed), and (B) lawful claims for
labor, materials, supplies and services or otherwise, before any thereof
shall become past due.
(b) Borrower may in good faith contest, by appropriate
proceedings, the validity or amount of any Charges or claims described
Section 5.2(a); provided, that, at the time of commencement of any such
action or proceeding, and during the pendency thereof (i) no Default or
Event of Default shall have occurred and be continuing, (ii) adequate
reserves with respect thereto are maintained on the books of Borrower, in
accordance with GAAP, (iii) such contest is maintained and prosecuted
continuously and with diligence, (iv) none of the Collateral becomes
subject to forfeiture or loss as a result of such Charges or claims, (v)
no Lien shall be imposed to secure payment of such Charges or claims other
than inchoate tax liens, and (vi) Borrower shall promptly pay or discharge
such contested Charges and all additional charges, interest, penalties and
expenses, if any, and shall deliver to Agent evidence acceptable to Agent
of such compliance, payment or discharge, if such contest is terminated or
discontinued adversely to Borrower or the conditions set forth in this
Section 5.2(b) are no longer met.
5.3 Books and Records. Borrower shall keep adequate records
and books of account with respect to Borrower's business activities, in
which proper entries, reflecting all financial transactions, are made in
accordance with GAAP and on a basis consistent with the Financial
Statements referred to in Schedule 3.4.
5.4 Litigation. Borrower shall notify Agent in writing,
promptly upon learning thereof, of any litigation commenced or threatened
against Borrower, and of the institution against it of any suit or
administrative proceeding that (a) seeks damages in excess of $100,000 or
(b) seeks injunctive relief.
5.5 Insurance. (a) Borrower shall, at its sole cost and
expense, maintain the policies of insurance described on Schedule 3.21 in
form and with insurers rated AA or better by Bests. Such policies shall
be in such amounts as are set forth in Schedule 3.21. Borrower shall
notify Agent promptly of any occurrence causing a material loss or decline
in value of any real or personal property and the estimated (or actual, if
available) amount of such loss or decline. So long as any Event of
Default shall have occurred and be continuing or if the casualty loss
exceeds $100,000: Borrower hereby directs all present and future insurers
under its "All Risk" policies of insurance to pay all proceeds payable
thereunder directly to Agent, on behalf of itself and Lenders and
irrevocably makes, constitutes and appoints Agent (and all officers,
employees or agents designated by Agent) as Borrower's true and lawful
agent and attorney-in-fact for the purpose of making, settling and
adjusting claims under such "All Risk" policies of insurance and endorsing
the name of Borrower on any check or other item of payment for the
proceeds of such "All Risk" policies of insurance. In the event Borrower
at any time or times hereafter shall fail to obtain or maintain any of the
policies of insurance required above or to pay any premium in whole or in
part relating thereto, Agent, without waiving or releasing any Obligations
or Default or Event of Default hereunder, may at any time or times
thereafter (but shall not be obligated to) obtain and maintain such
policies of insurance and pay such premiums and take any other action with
respect thereto which Agent deems advisable. All sums so disbursed,
including attorneys, fees, court costs and other charges related thereto,
shall be payable, on demand, by Borrower to Agent and shall be additional
Obligations hereunder secured by the Collateral, provided, that, if and to
the extent Borrower fails to promptly pay any of such sums upon demand
therefor, Agent is authorized to, and at its option may, make or cause to
be made Revolving Credit Advances on behalf of Borrower for payment
thereof.
(b) Agent reserves the right at any time, upon any change in
Borrower's risk profile (including, without limitation, any change in the
product mix maintained by Borrower or any laws affecting the potential
liability of Borrower), to require additional forms and limits of
insurance to, in Agent's reasonable opinion, adequately protect both Agent
and Lenders' interests in all or any portion of the Collateral and to
ensure that Borrower is protected by insurance in amounts and with
coverage customary for its industry. If requested by Agent, Borrower
shall deliver to Agent from time to time a report of a reputable insurance
broker, satisfactory to Agent, with respect to its insurance policies.
(c) Borrower shall deliver to Agent endorsements (i) to all
"All Risk" and business interruption insurance naming Agent, on behalf of
itself and Lenders, as loss payee, and (ii) to all general liability and
other liability policies naming Agent, on behalf of itself and Lenders, as
additional insured.
(d) The loss, if any, under any property insurance required to
be carried by this Section 5.5 shall be adjusted with the insurance
companies or otherwise collected, including the filing of appropriate
proceedings by Borrower, subject to the reasonable approval of the Agent
in the case of claims in excess of $100,000. If the proceeds payable
under any policy of property insurance are $100,000 or less, Borrower
shall have the right to use such proceeds to repair or replace the damaged
or destroyed property, provided that a Default or an Event of Default
shall not have occurred and be continuing at the time the proceeds are
paid. If a Default or an Event of Default shall have occurred and be
continuing at the time such insurance proceeds are paid, or if such
insurance proceeds are more than $100,000, such insurance proceeds shall
be applied to the Obligations in accordance with Section 1.3(f) (and,
notwithstanding anything else to the contrary in this Agreement or
otherwise, to permanently reduce the Revolving Credit Loan Commitment by
the amount of such proceeds that are, or are available to be, applied
against the Revolving Credit Loan) unless the Requisite Lenders agree to
permit part or all of such insurance proceeds to be used to repair or
replace the damaged or destroyed property.
5.6 Compliance with Laws. (a) Borrower shall comply in all
material respects with all federal, state and local laws and regulations
applicable to it, including those relating to licensing, ERISA and labor
matters.
5.7 [Intentionally Omitted].
5.8 Supplemental Disclosure. On the request of Agent (in the
event that such information is not otherwise delivered by Borrower to
Agent pursuant to this Agreement), so long as there are Obligations
outstanding hereunder, but not more frequently than quarterly absent the
occurrence and continuance of a Default or an Event of Default, Borrower
will supplement each schedule or representation herein with respect to any
matter hereafter arising which, if existing or occurring at the date of
this Agreement, would have been required to be set forth or described in
such schedule or as an exception to such representation or which is
necessary to correct any information in such schedule or representation
which has been rendered inaccurate thereby; provided, however, that such
supplement to such schedule or representation shall not be deemed an
amendment thereof unless expressly consented to in writing by Agent and
Requisite Lenders, and no such amendments, except as the same may be
consented to in a writing which expressly includes a waiver, shall be or
be deemed a waiver of any Default or Event of Default disclosed therein.
5.9 Employee Plans. Borrower shall notify Agent of (i) any and
all claims, actions, or lawsuits asserted or instituted, and of any
threatened litigation or claims, against Borrower, or against any ERISA
Affiliate, in connection with any Plan maintained, at any time, by
Borrower or such ERISA Affiliate, or to which Borrower or such ERISA
Affiliate has or had at any time any obligation to contribute, or/and
against any such Plan itself, or against any fiduciary of or service
provider to any such Plan and (ii) the occurrence of any material
Reportable Event with respect to any Pension Plan of Borrower or such
ERISA Affiliate.
5.10 Environmental Matters. Borrower shall (i) comply in
all material respects with the Environmental Laws applicable to it, (ii)
notify Agent promptly after Borrower becomes aware of any Release upon or
at any premises owned or occupied by it (other than Releases of immaterial
quantities of cleaning materials, lubricants, solvents and similar
products within any building which can be remediated promptly without any
adverse environmental effect and without any required notification to
regulatory authorities), and (iii) promptly forward to Agent a copy of any
order, notice, permit, application, or any communication or report
received by Borrower in connection with any Release or any other matter
relating to the Environmental Laws that may affect such premises or
Borrower. The provisions of this Section 5.10 shall apply whether or not
the Environmental Protection Agency, any other federal agency or any
state, local or foreign environmental agency has taken or threatened any
action in connection with any Release or the presence of any Hazardous
Materials.
5.11 Landlords' Agreements, Bailee Letters and Mortgagee
Agreements. Borrower shall use its best efforts to obtain a landlord's
agreement in form and substance acceptable to Agent from the lessor of its
manufacturing facility in Cythiana, Kentucky. If Borrower is unable to
obtain a landlord's agreement within ninety (90) days after the Closing
Date, Eligible Inventory at that location shall be subject to a reserve
equal to two (2) month's lease payments for purposes of calculating
Borrowing Availability. No real property or warehouse space shall be
leased or acquired by Borrower after the Closing Date, unless and until a
landlord or mortgagee agreement or bailee letter, as appropriate, shall
first have been obtained with respect to such location.
5.12 Leased Locations of Collateral. Borrower shall timely
and fully pay and perform its obligations under all leases and other
agreements with respect to each leased location or public warehouse where
any Collateral is or may be located. Borrower shall promptly deliver to
Agent copies of (i) any and all default notices received under or with
respect to any such leased location or public warehouse, and (ii) such
other notices or documents as Agent may request in its reasonable
discretion.
6. NEGATIVE COVENANTS
Borrower covenants and agrees that, without the prior written
consent of Agent and the Requisite Lenders, from and after the date hereof
until the Termination Date:
6.1 Mergers, Subsidiaries, Etc. Borrower shall not directly or
indirectly, by operation of law or otherwise, (i) form or acquire any
Subsidiary, or (ii) merge with, consolidate with, acquire all or
substantially all of the assets or capital stock of, or otherwise combine
with, any Person.
6.2 Investments; Loans and Advances. Except as otherwise
permitted by Section 6.3 or 6.4 below, Borrower shall not make any
investment in, or make or accrue loans or advances of money to any Person,
through the direct or indirect lending of money, holding of securities or
otherwise.
6.3 Indebtedness. Borrower shall not create, incur, assume or
permit to exist any Indebtedness, except (i) Indebtedness secured by Liens
permitted under Section 6.7, (ii) the Revolving Credit Loan, the Term Loan
and the other Obligations, (iii) deferred taxes, (iv) unfunded pension
fund and other employee benefit plan obligations and liabilities to the
extent they are permitted to remain unfunded under applicable law, (v)
existing Indebtedness set forth in Schedule 6.3 and refinancings thereof
on terms and conditions acceptable to Agent, in its reasonable discretion,
which shall in any event be on terms no less favorable to Borrower, Agent
or any Lender than the terms of the Indebtedness being refinanced, and
(vi) Capital Lease Obligations in an amount outstanding at any one time
which, when added to all then remaining lease obligations under operating
leases in which Borrower is lessee and including all renewal periods at
the option of lessor, does not exceed $2,000,000.
6.4 Employee Loans and Affiliate Transactions. (a) Borrower
shall not enter into or be a party to any transaction with an Affiliate of
Borrower except in the ordinary course of and pursuant to the reasonable
requirements of Borrower's business and upon fair and reasonable terms
that are fully disclosed to Agent in advance and are no less favorable to
Borrower than would be obtained in a comparable arm's length transaction
with a Person not an Affiliate of Borrower. All such transactions
existing as of the date hereof are described on Schedule 6.4(a).
(b) Borrower shall not enter into any lending or borrowing
transaction with any of its employees.
6.5 Capital Structure and Business. Borrower shall not (i)
make any changes in any of its business objectives, purposes or operations
which could in any way adversely affect the repayment of the Revolving
Credit Loan or Term Loan or any of the other Obligations or could have or
result in a Material Adverse Effect, (ii) make any change in its capital
structure that is not acceptable to Agent in its reasonable discretion or
(iii) amend its certificate or articles of incorporation or bylaws in a
manner which would adversely affect the Lenders or its duty or ability to
repay the Obligations. Borrower shall not engage in any business other
than the businesses currently engaged in by Borrower or businesses
reasonably related thereto.
6.6 Guaranteed Indebtedness. Borrower shall not incur any
Guaranteed Indebtedness except (i) by endorsement of instruments or items
of payment for deposit to the general account of Borrower, and (ii) for
Guaranteed Indebtedness incurred for the benefit of Borrower if the
primary obligation is expressly permitted by this Agreement.
6.7 Liens. Borrower shall not create, incur, assume or permit
to exist any Lien on or with respect to any of its properties or assets
(including Accounts, instruments, or chattel paper) of Borrower, whether
now owned or hereafter acquired except (i) Permitted Encumbrances, (ii)
presently existing or hereinafter created Liens in favor of Agent, on
behalf of Lenders, (iii) Lessor's interests under Capital Leases permitted
by Section 6.3(vi), and (iv) Liens existing on the date hereof and
described on Schedule 6.7.
In addition, Borrower shall not become a party to any agreement,
note, indenture or instrument, or take any other action, which would
prohibit the creation of a Lien on any of its properties or other assets
in favor of Agent, on behalf of itself and Lenders, as additional
collateral for the Obligations, except operating leases, Capital Leases
or intellectual property licenses which prohibit liens upon the assets
that are subject thereto.
6.8 Sale of Assets. Borrower shall not sell, transfer, convey,
assign or otherwise dispose of any of its properties or other assets,
including any of its Accounts, other than (i) the sale of Inventory in the
ordinary course of business, (ii) the sale, transfer, conveyance or other
disposition of assets having a value not exceeding $50,000 in any single
transaction or $250,000 in the aggregate in any Fiscal Year, and (iii) the
sale, transfer, conveyance or other disposition of obsolete or redundant
assets. Borrower shall promptly deliver to Agent all of the cash proceeds
(after deducting all expenses, including commissions, taxes payable, and
amounts payable to holders of prior liens, if any, and an appropriate
reserve for income taxes in connection therewith) of sales or dispositions
permitted under clauses (ii) and (iii) above, which proceeds shall be
applied to the repayment of the Obligations. With respect to any
disposition of assets or other properties permitted pursuant to this
Section 6.8, Agent agrees on reasonable prior written notice to release
its Lien on such assets or other properties in order to permit Borrower to
effect such disposition and shall execute and deliver to Borrower, at
Borrower's expense, appropriate UCC-3 termination statements and other
releases as reasonably requested by Borrower.
6.9 ERISA. Borrower shall not, nor shall it cause or permit
any ERISA Affiliate thereof (without Agent's prior written consent) to,
(i) acquire any ERISA Affiliate that maintains or has an obligation to
contribute to a Pension Plan that has either an "accumulated funding
deficiency", as defined in Section 302 of ERISA, or any "unfunded vested
benefits", as defined in Section 4006(a)(3)(E)(iii) of ERISA, in the case
of any plan other than a Multiemployer Plan, and as defined in Section
4211 of ERISA in the case of a Multiemployer Plan, in excess of $50,000,
(ii) permit or suffer any representation set forth in Schedule 3.14 to
cease to be met and satisfied at any time, (iii) terminate any Title IV
Plan where such termination could reasonably be anticipated to result in
liability in excess of $50,000 to such Person, (iv) permit any accumulated
funding deficiency, as defined in Section 302(a)(2) of ERISA, to be
incurred with respect to any Pension Plan, in excess of $50,000, (v) fail
to make any material contributions or fail to pay any amounts due and
owing as required by the terms of any Plan before such contributions or
amounts become delinquent, (vi) make a complete or partial withdrawal
(within the meaning of Section 4201 of ERISA) from any Multiemployer Plan,
or (vii) fail to promptly provide Agent with copies of any Plan documents
or governmental reports or filings, if requested by Agent.
6.10 Financial Covenants. Borrower shall not breach or
fail to comply with any of the Financial Covenants (the "Financial
Covenants") set forth in Schedule I.
6.11 Hazardous Materials. Borrower shall not cause or
permit any other Person within its control to, cause or permit a Release
or the presence, use, generation, manufacture, installation, Release,
discharge, storage or disposal of any Hazardous Materials on, under, in,
above or about any of its real estate or the transportation of any
Hazardous Materials to or from any real estate where such Release or such
presence, use, generation, manufacture, installation, Release, discharge,
storage or disposal would violate in any material respect, or form the
basis for any material liability under, any Environmental Laws. If a
Default or Event of Default shall have occurred and be continuing,
Borrower, at its own expense, shall cause the performance of such
investigation and remediation and preparation of such environmental
reports as Agent may from time to time request as to any location at which
Collateral is then located, by reputable environmental consulting firms
acceptable to Agent, and in form and substance acceptable to Agent.
6.12 Sale-Leasebacks. Borrower shall not engage in any
sale-leaseback or similar transaction involving any of its assets.
6.13 Cancellation of Indebtedness. Borrower shall not
cancel any claim or debt owing to it, except for reasonable consideration
negotiated on an arm's-length basis and in the ordinary course of its
business consistent with past practices.
6.14 Restricted Payments. Borrower shall not make any
Restricted Payment.
6.15 Management Agreements. Without Agent's consent,
Borrower shall not amend, modify, supplement, extend or renew the
Management Agreements, except of terms substantially the same as currently
exist or pay compensation thereunder in excess of the amounts set forth
therein.
6.16 Leases. (a) Borrower shall not enter into any lease
of real property or similar agreement or arrangement except existing
leases disclosed on Schedule 6.16 and renewals thereof on substantially
the same terms.
(b) Borrower shall not enter into or permit to exist any
operating lease for equipment or personal property, if the aggregate of
operating lease payments remaining to be paid under all outstanding
operating leases in which Borrower is lessee, including all renewal
periods at the option of lessor, together with all outstanding Capital
Lease Obligations, at any time exceeds $2,000,000.
6.17 Fiscal Year. Borrower shall not change its Fiscal
Year.
6.18 Change of Corporate Name or Location. (a) Borrower
shall not (i) change its corporate name or (ii) change its chief executive
office, principal place of business, corporate offices or warehouses or
Collateral locations, or the location of its records concerning the
Collateral, in any case without at least thirty (30) days' prior written
notice to Agent and after Agent's written acknowledgment that any
reasonable action requested by Agent in connection therewith, including,
without limitation, to continue the perfection of any Liens in favor of
Agent, on behalf of Lenders, in any Collateral has been completed or taken
and provided that any such new location shall be in the Continental United
States; (b) in furtherance of and without limiting the scope of clause (a)
above, Borrower shall not change its name, identity or corporate structure
in any manner which might make any financing or continuation statement
filed in connection herewith seriously misleading within the meaning of
Section 9.402(7) of the Code or any other then applicable provision of the
Code except upon prior written notice to Agent and Lenders and after
Agent's written acknowledgement that any reasonable action requested by
Agent in connection therewith, including, without limitation, to continue
the perfection of any Liens in favor of Agent, on behalf of Lenders, in
any Collateral has been completed or taken.
6.19 Cash Management. Borrower shall not accumulate or
maintain cash in disbursement, imprest or payroll accounts as of any date
of determination in excess of checks outstanding against such accounts as
of that date and amounts necessary to meet minimum balance requirements.
6.20 Technology Development Arrangements. Any term or
provision of this Agreement to the contrary notwithstanding, the Borrower
shall be permitted to enter into technology development arrangements in
the ordinary course of business with Persons other than Affiliates,
provided that (i) the aggregate amount of expenditures and commitments
therefor during the term of this Agreement shall not exceed $100,000 per
annum on a non-cumulative basis, and (ii) such arrangements do not involve
the creation of or investment in any legal entity established under
applicable law.
7. TERM
7.1 Termination. The financing arrangements contemplated
hereby shall be in effect until the Commitment Termination Date, and the
Revolving Credit Loan, the Term Loan and all other Obligations shall be
automatically due and payable in full on such date.
7.2 Survival of Obligations Upon Termination of Financing
Arrangements. Except as otherwise expressly provided for in the Loan
Documents, no termination or cancellation (regardless of cause or
procedure) of any financing arrangement under this Agreement shall in any
way affect or impair the obligations, duties and liabilities of Borrower
or the rights of Agent and Lenders relating to any unpaid portion of the
Revolving Credit Loan, the Term Loan or any other Obligation, due or not
due, liquidated, contingent or unliquidated or any transaction or event
occurring prior to such termination, or any transaction or event, the
performance of which is required after the Commitment Termination Date.
Except as otherwise expressly provided herein or in any other Loan
Document, all undertakings, agreements, covenants, warranties and
representations of or binding upon Borrower, and all rights of Agent and
each Lender, all as contained in the Loan Documents shall not terminate or
expire, but rather shall survive such termination or cancellation and
shall continue in full force and effect until such time as all of the
Obligations have been paid in full in accordance with the terms of the
agreements creating such Obligations.
8. EVENTS OF DEFAULT: RIGHTS AND REMEDIES
8.1 Events of Default. The occurrence of any one or more of
the following events (regardless of the reason therefor) shall constitute
an "Event of Default" hereunder:
(a) Borrower shall fail to pay any regularly scheduled
installment of principal of, or interest on, the Revolving Credit Loan or
the Term Loan when due and payable, and such failure shall remain
unremedied for a period of two (2) Business Days or more, or Borrower
shall fail to make payment of any of the other Obligations (other than as
set forth in clause (b) below) when due and payable or declared due and
payable.
(b) Borrower shall fail to pay any Fees, costs or expenses
payable or reimbursable by Borrower under this Agreement or under any
other Loan Document, and such failure shall have remained unremedied for a
period of 5 days or more after Borrower has received notice of such
failure from Agent or any Lender.
(c) Borrower shall fail or neglect to perform, keep or observe
any of the provisions of (i) Sections 1.9, 5.5 or 6, or any of the
provisions set forth in Schedules E or I, respectively; or (ii) Section 4
or any provisions set forth in Schedules G or H, respectively, within ten
(10) days after written notice from Agent.
(d) Borrower shall fail or neglect to perform, keep or observe
any other provision of this Agreement or of any of the other Loan
Documents (other than any provision embodied in or covered by any other
clause of this Section 8.1) and the same shall remain unremedied for ten
(10) days or more after Borrower has received written notice of any such
failure from Agent or any Lender.
(e) A default or breach shall occur under any other agreement,
document or instrument to which Borrower is a party and such default is
not cured within any applicable grace period and such default or breach
(i) involves the failure to make any payment when due in respect of any
Indebtedness (other than the Obligations) of Borrower in excess of $50,000
in the aggregate, or (ii) causes such Indebtedness or a portion thereof in
excess of $50,000 in the aggregate to become due prior to its stated
maturity or prior to its regularly scheduled dates of payment, or (iii)
entitles any holder of such Indebtedness or a trustee to cause such
Indebtedness or a portion thereof in excess of $50,000 in the aggregate to
become due prior to its stated maturity or prior to its regularly
scheduled dates of payment, regardless of whether such right is exercised
or waived by such holder or trustee.
(f) Any representation or warranty herein or in any Loan
Document or in any written statement, report, financial statement or
certificate made or delivered to any Lender by Borrower shall be untrue or
incorrect in any material respect, as of the date when made or deemed
made.
(g) Assets of Borrower with a fair market value of $50,000 or
more shall be attached, seized, levied upon or subjected to a writ or
distress warrant, or come within the possession of any receiver, trustee,
custodian or assignee for the benefit of creditors of Borrower and such
condition shall continue for thirty (30) days or more.
(h) A case or proceeding shall have been commenced against
Borrower in a court having competent jurisdiction seeking a decree or
order in respect of Borrower (i) under Title 11 of the United States Code,
as now constituted or hereafter amended or any other applicable federal,
state or foreign bankruptcy or other similar law, (ii) appointing a
custodian, receiver, liquidator, assignee, trustee or sequestrator (or
similar official) for Borrower or for any substantial part of Borrower's
assets, or (iii) ordering the winding-up or liquidation of the affairs of
Borrower and such case or proceeding shall remain undismissed or unstayed
for forty-five (45) days or more or such court shall enter a decree or
order granting the relief sought in such case or proceeding.
(i) Borrower shall (i) file a petition seeking relief under
Title 11 of the United States Code, as now constituted or hereafter
amended, or any other applicable federal, State or foreign bankruptcy or
other similar law, (ii) consent to the institution of proceedings
thereunder or to the filing of any such petition or to the appointment of
or taking possession by a custodian, receiver, liquidator, assignee,
trustee or sequestrator (or similar official) of Borrower or of any
substantial part of Borrower's assets, (iii) make an assignment for the
benefit of creditors, or (iv) take any corporate action in furtherance of
any such action.
(j) A final judgment or judgments for the payment of money in
excess of $50,000 in the aggregate shall be rendered against Borrower and
the same shall not (i) be fully covered by insurance, or (ii) within
thirty (30) days after the entry thereof, have been discharged or
execution thereof stayed pending appeal, or shall not have been discharged
prior to the expiration of any such stay.
(k) With respect to any Plan: (i) which is a Defined
Contribution Plan or Welfare Plan, Borrower or any ERISA Affiliate thereof
or any other party-in-interest or disqualified Person shall engage in any
transactions which in the aggregate results in a final assessment to
Borrower in excess of $50,000 under Section 409 or 502 of ERISA or IRC
Section 4975 which assessment has not been paid within 30 days of final
assessment and which is not being contested pursuant to Sections 6.2(b) or
(c) hereof; (ii) Borrower or any ERISA Affiliate thereof shall incur any
accumulated funding deficiency, as defined in IRC Section 412, in the
aggregate in excess of $50,000, or request a funding waiver from the IRS
for contributions in the aggregate in excess of $50,000; (iii) Borrower or
any ERISA Affiliate thereof shall not pay any withdrawal liability which
involves annual withdrawal liability payments which exceed $50,000, as a
result of a complete or partial withdrawal within the meaning of Section
4203 or 4205 of ERISA, within 30 days after the date such payment becomes
due, unless such payment is being contested pursuant to Sections 6.2(b) or
(c) hereof; (iv) Borrower or any ERISA Affiliate thereof shall fail to
make a required contribution by the due date under Section 412 of the IRC
or Section 302 of ERISA which would result in the imposition of a lien
under Section 412 of the IRC or Section 302 of ERISA within 30 days after
the date such payment becomes due; or (v) an ERISA Event (other than an
event described in 29 CFR Section 2615.23) with respect to a Plan has
occurred, and within thirty (30) days Borrower has not contested such
ERISA Event by appropriate proceedings.
(l) Any material provision of any Loan Document shall for any
reason cease to be valid or enforceable in accordance with its terms
(Borrower shall challenge the enforceability of any Loan Document), or any
security interest created under any Loan Document shall cease to be a
valid and perfected first priority security interest or Lien (except as
otherwise permitted herein or therein) in any of the Collateral purported
to be covered thereby.
(m) Any "Change of Control" shall occur.
8.2 Remedies. If any Default or Event of Default shall have
occurred and be continuing, Agent may (and at the written request of the
Requisite Lenders shall), without notice terminate this facility with
respect to further Revolving Credit Advances, whereupon any further
Revolving Credit Advances shall be made in Agent's sole discretion. If
any Event of Default shall have occurred and be continuing, Agent may (and
at the written request of the Requisite Lenders shall), without notice,
(a) declare all or any portion of the Obligations, including all or any
portion of the Revolving Credit Loan and/or Term Loan, to be forthwith due
and payable, and require that the Letter of Credit Obligations be cash
collateralized as provided in Schedule B, all without presentment, demand,
protest or further notice of any kind, all of which are expressly waived
by Borrower; (b) increase the rate of interest applicable to the Revolving
Credit Loan and/or Term Loan to the Default Rate, as provided in Section
1.5(d); and (c) exercise any rights and remedies provided to Agent under
the Loan Documents and/or at law or equity, including all remedies
provided under the Code; provided, however, that upon the occurrence of an
Event of Default specified in Sections 8.1 (j) or (k), all of the
Obligations, including the Revolving Credit Loan, shall become immediately
due and payable without declaration, notice or demand by any Person.
8.3 Waivers by Borrower. Except as otherwise provided for in
this Agreement or by applicable law, Borrower waives: (i) presentment,
demand and protest and notice of presentment, dishonor, notice of intent
to accelerate, notice of acceleration, protest, default, nonpayment,
maturity, release, compromise, settlement, extension or renewal of any or
all commercial paper, accounts, contract rights, documents, instruments,
chattel paper and guaranties at any time held by Agent on which Borrower
may in any way be liable, and hereby ratifies and confirms whatever Agent
may do in this regard, (ii) all rights to notice and a hearing prior to
Agent's taking possession or control of, or to Agent's replevy, attachment
or levy upon, the Collateral or any bond or security which might be
required by any court prior to allowing Agent to exercise any of its
remedies, and (iii) the benefit of all valuation, appraisal and exemption
laws. Borrower acknowledges that it has been advised by counsel of its
choice with respect to this Agreement, the other Loan Documents and the
transactions evidenced by this Agreement and the other Loan Documents.
9. ASSIGNMENT AND PARTICIPATIONS; APPOINTMENT OF AGENT
9.1 Assignment and Participations. (a) Borrower hereby
consents to Agent's and any Lender's sale of participations, and to
Agent's and any Lender's assignment, at any time or times, of any of the
Loan Documents, any Commitment or of any portion thereof or interest
therein, including, without limitation, Agent's and any Lender's rights,
title, interests, remedies, powers or duties thereunder, whether evidenced
by a writing or not; provided, however, that any assignment by a Lender of
all or any part of its Commitment shall (i) require the consent of
Borrower, which consent shall not be unreasonably withheld, provided such
consent shall not be required in connection with any loan portfolio
transfer made by GE Capital; (ii) require the consent of Agent and the
execution of a Lender Addition Agreement in form and substance
satisfactory to Agent; (iii) be conditioned on such assignee Lender
representing to the assigning Lender and the Agent that it is purchasing
the portion of the Revolving Credit Loan and/or Term Loan to be assigned
to it for its own account, for investment purposes and not with a view to
the distribution thereof; (iv) if a partial assignment, be in an amount at
least equal to $5,000,000 and, after giving effect to any such partial
assignment, the assigning Lender shall have retained Commitments in an
amount at least equal to $5,000,000; and (v) include a payment by the
assigning Lender to the Agent of an assignment fee of $3,000; and,
provided, further, that any participation by a Lender of all or any part
of its Commitments shall be in an amount at least equal to $5,000,000, and
with the understanding that all amounts payable by Borrower hereunder
shall be determined as if that Lender had not sold such participation, and
that the holder of any such participation shall not be entitled to require
such Lender to take or omit to take any action hereunder except actions
directly affecting (i) any reduction in the principal amount, interest
rate or fees payable hereunder in which such holder participates, (ii) any
extension of the final scheduled maturity date of the principal amount of
the Revolving Credit Loan and/or Term Loan in which such holder
participates, and (iii) any release of all or substantially all of the
Collateral (other than in accordance with the terms of this Agreement, the
Collateral Documents or the other Loan Documents). Borrower hereby
acknowledges and agrees that any participation will give rise to a direct
obligation of Borrower to the participant and the participant shall for
purposes of Sections 1.15, 1.16 and 9.8 be considered to be a "Lender".
(b) In the case of an assignment by a Lender under this Section
9.1, the assignee shall have, to the extent of such assignment, the same
rights, benefits and obligations as it would if it were a Lender
hereunder. The assigning Lender shall be relieved of its obligations
hereunder with respect to its Commitments or assigned portion thereof.
Borrower hereby acknowledges and agrees that any assignment will give rise
to a direct obligation of Borrower to the assignee and that the assignee
shall be considered to be a "Lender". In all instances, each Lender's
liability to make Loans hereunder shall be several and not joint and shall
be limited to such Lender's Pro Rata Share.
(c) Except as otherwise provided in this Section 9.1, no Lender
shall, as between Borrower and that Lender, be relieved of any of its
obligations hereunder as a result of any sale, assignment, transfer or
negotiation of, or granting of participation in, all or any part of the
Loans, the Notes or other Obligations owed to such Lender.
(d) Borrower shall assist any Lender permitted to sell
assignments or participations under this Section 9.1 as reasonably
required to enable the assigning or selling Lender to effect any such
assignment or participation, including the execution and delivery of any
and all agreements, notes and other documents and instruments as shall be
requested and the preparation of informational materials for, and the
participation of management in meetings with, potential assignees or
participants. Borrower shall certify the correctness, completeness and
accuracy of all descriptions of Borrower and its affairs contained in any
selling materials provided by Borrower and all other information provided
by Borrower and included in such materials, except that any projections
delivered by Borrower shall only be certified by Borrower as having been
prepared by Borrower in good faith and based on reasonable assumptions
consistent with Borrower's anticipated business plans.
(e) A Lender may furnish any information concerning Borrower in
the possession of such Lender from time to time to assignees and
participants (including prospective assignees and participants); provided,
however, that such Lender shall utilize commercially reasonable procedures
to cause such assignees or participants to maintain the confidentiality of
confidential information of Borrower. In the event Agent or any Lender
assigns or otherwise transfers all or any part of a Note, Agent or any
such Lender shall so notify Borrower and Borrower shall, upon the request
of Agent or such Lender, execute new Notes in exchange for the Notes being
assigned.
9.2 Appointment of Agent. GE Capital is hereby appointed Agent
to act on behalf of all Lenders as Agent under this Agreement and the
other Loan Documents. The provisions of this Section 9.2 are solely for
the benefit of Agent and Lenders and neither Borrower nor any other Person
shall have any rights as a third party beneficiary of any of the
provisions hereof. In performing its functions and duties under this
Agreement and the other Loan Documents, Agent shall act solely as an agent
of Lenders and does not assume and shall not be deemed to have assumed any
obligation toward or relationship of agency or trust with or for Borrower
or any other Person. Agent shall have no duties or responsibilities
except for those expressly set forth in this Agreement and the other Loan
Documents. The duties of Agent shall be mechanical and administrative in
nature and Agent shall not have, or be deemed to have, by reason of this
Agreement, any other Loan Document or otherwise a fiduciary relationship
in respect of any Lender. Neither Agent nor any of its officers,
directors, employees, agents or representatives shall be liable to any
Lender for any action taken or omitted to be taken by it hereunder or
under any other Loan Document, or in connection herewith or therewith,
except for damages caused by its or their own gross negligence or willful
misconduct as finally determined by a court of competent jurisdiction
after all possible appeals have been exhausted.
If Agent shall request instructions from Requisite Lenders with
respect to any act or action (including failure to act) in connection with
this Agreement or any other Loan Document, then Agent shall be entitled to
refrain from such act or taking such action unless and until Agent shall
have received instructions from Requisite Lenders, and Agent shall not
incur liability to any Person by reason of so refraining. Agent shall be
fully justified in failing or refusing to take any action hereunder or
under any other Loan Document (a) if such action would, in the opinion of
Agent, be contrary to law or the terms of this Agreement or any other Loan
Document or (b) if Agent shall not first be indemnified to its
satisfaction against any and all liability and expense which may be
incurred by it by reason of taking or continuing to take any such action.
Without limiting the foregoing, no Lender shall have any right of action
whatsoever against Agent as a result of Agent acting or refraining from
acting hereunder or under any other Loan Document in accordance with the
instructions of Requisite Lenders.
9.3 Agent's Reliance, Etc. Neither Agent nor any of its
directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection with
this Agreement or the other Loan Documents, except for its or their own
gross negligence or willful misconduct as finally determined by a court of
competent jurisdiction after all possible appeals have been exhausted.
Without limitation of the generality of the foregoing, Agent: (i) may
treat the payee of any Revolving Credit Note or Term Note as the holder
thereof until Agent receives written notice of the assignment or transfer
thereof signed by such payee and in form satisfactory to Agent; (ii) may
consult with legal counsel, independent public accountants and other
experts selected by it and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the advice of
such counsel, accountants or experts; (iii) makes no warranty or
representation to any Lender and shall not be responsible to any Lender
for any statements, warranties or representations made in or in connection
with this Agreement or the other Loan Documents; (iv) shall not have any
duty to ascertain or to inquire as to the performance or observance of any
of the terms, covenants or conditions of this Agreement or the other Loan
Documents on the part of Borrower or to inspect the Collateral (including
the books and records) of Borrower; (v) shall not be responsible to any
Lender for the due execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement or the other Loan
Documents or any other instrument or document furnished pursuant hereto or
thereto; and (vi) shall incur no liability under or in respect of this
Agreement or the other Loan Documents by acting upon any notice, consent,
certificate or other instrument or writing (which may be by telecopy,
telegram, cable or telex) believed by it to be genuine and signed or sent
by the proper party or parties.
9.4 GE Capital and Affiliates. With respect to its commitment
hereunder to make the Term Loan and Revolving Credit Advances, GE Capital
shall have the same rights and powers under this Agreement and the other
Loan Documents as any other Lender and may exercise the same as though it
were not Agent; and the term "Lender" or "Lenders" shall, unless otherwise
expressly indicated, include GE Capital in its individual capacity. GE
Capital and its Affiliates may lend money to, invest in, and generally
engage in any kind of business with, Borrower, and any of its Affiliates
and any Person who may do business with or own securities of Borrower or
any Affiliate, all as if GE Capital were not Agent and without any duty to
account therefor to Lenders. GE Capital and its Affiliates may accept
fees and other consideration from Borrower for services in connection with
the Agreement or otherwise without having to account for the same to
Lenders.
9.5 Lender Credit Decision. Each Lender acknowledges that it
has, independently and without reliance upon Agent or any other Lender and
based on the financial statements referred to in Section 3.4 and such
other documents and information as it has deemed appropriate, made its own
credit and financial analysis of Borrower and its own decision to enter
into this Agreement. Each Lender also acknowledges that it will,
independently and without reliance upon Agent or any other Lender and
based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or not
taking action under this Agreement. Each Lender acknowledges the
potential conflict of interest of each other Lender as a result of the
Lenders holding disproportionate interests in the Loans, and expressly
consents to, and waives any claim based upon, such conflict of interest.
9.6 Indemnification. Lenders agree to indemnify Agent (to the
extent not reimbursed by Borrower and without limiting the Obligations of
Borrower hereunder), ratably according to their respective Pro Rata
Shares, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed on,
incurred by, or asserted against Agent in any way relating to or arising
out of this Agreement or any other Loan Document or any action taken or
omitted by Agent in connection therewith; provided, however, that no
Lender shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from Agent's gross negligence or wilful misconduct
as finally determined by a court of competent jurisdiction after all
possible appeals have been exhausted. Without limiting the foregoing,
each Lender agrees to reimburse Agent promptly upon demand for its ratable
share of any out-of-pocket expenses (including counsel fees) incurred by
Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement and each other
Loan Document, to the extent that Agent is not reimbursed for such
expenses by Borrower.
9.7 Successor Agent. Agent may resign at any time by giving
not less than thirty (30) days' prior written notice thereof to Lenders
and Borrower. Upon any such resignation, the Requisite Lenders shall have
the right to appoint a successor Agent which shall be reasonably
acceptable to Borrower. If no successor Agent shall have been so
appointed by the Requisite Lenders and shall have accepted such
appointment, within 30 days after the resigning Agent's giving notice of
resignation then the resigning Agent may, on behalf of the Lenders,
appoint a successor Agent, which shall be a Lender, if a Lender is willing
to accept such appointment, or otherwise shall be a commercial bank or
financial institution organized under the laws of the United States of
America or of any State thereof having a combined capital and surplus of
at least $300,000,000, which is reasonably acceptable to Borrower. Upon
the acceptance of any appointment as Agent hereunder by a successor Agent,
such successor Agent shall thereupon succeed to and become vested with all
the rights, powers, privileges and duties of the resigning Agent, and the
resigning Agent shall be discharged from its duties and obligations under
this Agreement and the other Loan Documents, except that any indemnity
rights or other rights in favor of such resigning Agent shall continue.
After any resigning Agent's resignation hereunder as Agent, the provisions
of this Section 9 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Agent under this Agreement and the
other Loan Documents.
9.8 Setoff and Sharing of Payments. In addition to any rights
now or hereafter granted under applicable law and not by way of limitation
of any such rights, upon the occurrence and during the continuance of any
Event of Default, each Lender and each holder of any Note is hereby
authorized at any time or from time to time, without notice to Borrower or
to any other Person, any such notice being hereby expressly waived, to set
off and to appropriate and to apply any and all balances held by it at any
of its offices for the account of Borrower (regardless of whether such
balances are then due to Borrower) and any other properties or assets any
time held or owing by that Lender or that holder to or for the credit or
for the account of Borrower against and on account of any of the
Obligations which are not paid when due. Any Lender or holder of any Note
having a right to set off shall, to the extent the amount of any such set
off exceeds its Pro Rata Share of the Obligations, purchase for cash (and
the other Lenders or holders shall sell) such participations in each such
other Lender's or holder's Pro Rata Share of the Obligations as would be
necessary to cause such Lender to share such excess with each other Lender
or holder in accordance with their respective Pro Rata Shares. Borrower
agrees, to the fullest extent permitted by law, that (a) any Lender or
holder may exercise its right to set off with respect to amounts in excess
of its Pro Rata Share of the Obligations and may sell participations in
such excess to other Lenders and holders and (b) any Lender or holders so
purchasing a participation in the Revolving Credit Advances or Term Loan
made or other Obligations held by other Lenders or holders may exercise
all rights of set-off, bankers' lien, counterclaim or similar rights with
respect to such participation as fully as if such Lender or holder were a
direct holder of Revolving Credit Advances, Term Loan and other
Obligations in the amount of such participation.
9.9 Disbursement of Funds. Agent may, on behalf of Lenders,
disburse funds to Borrower for Revolving Credit Advances requested. Each
Lender shall reimburse Agent on demand for all funds disbursed on its
behalf by Agent, or if Agent so requests, each Lender will remit to Agent
its Pro Rata Share of any Revolving Credit Advance before Agent disburses
same to Borrower. If any Lender fails to pay the amount of its Pro Rata
Share forthwith upon Agent's demand, Agent shall promptly notify Borrower
and Borrower shall immediately repay such amount to Agent. Nothing in
this Section 9.9 or elsewhere in this Agreement or the other Loan
Documents shall be deemed to require Agent to advance funds on behalf of
any Lender or to relieve any Lender from its obligation to fulfill its
Revolving Credit Loan Commitment hereunder or to prejudice any rights that
Borrower may have against any Lender as a result of any default by such
Lender hereunder.
9.10 Advances; Payments; Information; Non-Funding Lenders.
(a) Revolving Credit Advances; Payments; Fee Payments.
(i) The Revolving Credit Loan balance may fluctuate from
day to day through Agent's disbursement of funds to, and receipt of funds
from, Borrower. In order to minimize the frequency of transfers of funds
between Agent and each Lender, Revolving Credit Advances and payments in
respect thereof will be settled according to the procedures described in
Sections 9.10(a)(ii) and 9.10(a)(iii) below. Notwithstanding these
procedures, each Lender's obligation to fund its portion of any advances
made by Agent to Borrower will commence on the date such advances are made
by Agent. Such payments will be made by each Lender without setoff,
counterclaim or reduction of any kind.
(ii) Not later than 11:00 a.m. (Chicago time) on the second
(2nd) Business Day of each week, or more frequently (including daily) if
Agent so elects or if Borrower has requested a Revolving Credit Advance in
excess of $500,000 (each such day being a "Settlement Date"), Agent will
advise each Lender by telephone, telex or telecopy of the amount of such
Lender's Pro Rata Share of the Revolving Credit Loan balance as of the
close of business on the first (1st) Business Day immediately preceding
the Settlement Date. In the event that payments are necessary to adjust
the amount of such Lender's portion of the Revolving Credit Loan to such
Lender's Pro Rata Share of the Revolving Credit Loan as of any Settlement
Date, the party from which such payment is due will pay the other, in same
day funds, by wire transfer to the other's account not later than
2:00 p.m. (Chicago time) on the Settlement Date. Notwithstanding the
foregoing, if Agent so elects, Agent may require that each Lender make its
Pro Rata Share of any requested Revolving Credit Advance available to
Agent for disbursement prior to the funding of such Revolving Credit
Advance. If Agent elects to require that such funds be so made available,
Agent shall advise each Lender by telephone, telex or telecopy of the
amount of such Lender's Pro Rata Share of the requested Revolving Credit
Advance no later than 11:00 a.m. (Chicago time) on the date of funding
thereof, and each such Lender shall pay Agent such Lender's Pro Rata Share
of such requested Revolving Credit Advance, in same day funds, by wire
transfer to the Agent's account not later than 2:00 p.m. (Chicago time) on
the date of funding such Revolving Credit Advance.
(iii) For purposes of this Section 9.10(a)(iii), the
following terms and conditions will have the following meanings:
(A) "Daily Loan Balance" means, with respect to the
Revolving Credit Loan or Term Loan, an amount
calculated as of the end of each calendar day by
subtracting (i) the cumulative principal amount paid
by Agent to a Lender with respect to such Loan from
the Closing Date through and including such calendar
day, from (ii) the cumulative principal amount of such
Loan advanced by such Lender to Agent from the Closing
Date through and including such calendar day.
(B) "Daily Interest Rate" means, with respect to the
Revolving Credit Loan or Term Loan, an amount
calculated by dividing the interest rate payable to a
Lender on such Loan (as set forth in Section 1.5) as
of each calendar day by three hundred sixty (360)
days.
(C) "Daily Interest Amount" means, with respect to the
Revolving Credit Loan or Term Loan, an amount
calculated by multiplying the Daily Loan Balance of
such Loan by the associated Daily Interest Rate
applicable to such Loan.
(D) "Interest Ratio" means, with respect to the Revolving
Credit Loan or Term Loan, a number calculated by
dividing the total amount of interest on such Loan
received by Agent during the immediately preceding
month by the total amount of interest on such Loan due
from Borrower during the immediately preceding month.
On the first (1st) Business Day of each calendar month (an "Interest
Settlement Date"), Agent will advise each Lender by telephone, telex or
telecopy of the amount of such Lender's Pro Rata Share of principal,
interest and Fees paid for the benefit of Lenders on the Revolving Credit
Loan and Term Loan as of the end of the last day of the immediately
preceding month. Provided that such Lender has made all payments required
to be made by it under this Agreement and the other Loan Documents, Agent
will pay to such Lender, by wire transfer to such Lender's account (as
specified by such Lender on Schedule K or the applicable Lender Addition
Agreement, as amended by such Lender from time to time after the date
hereof pursuant to the notice provisions contained herein or in the
applicable Lender Addition Agreement) not later than 12:00 noon (Chicago
time) on the next Business Day following the Interest Settlement Date,
such Lender's Pro Rata Share of principal, interest and Fees paid for the
benefit of Lenders on the Revolving Credit Loan and Term Loan, as
applicable. Such Lender's Pro Rata Share of interest on the Revolving
Credit Loan and Term Loans, as applicable, will be calculated by adding
together the Daily Interest Amounts for each calendar day of the prior
month for such Loan and multiplying the total thereof by the Interest
Ratio for such Loan.
(b) Availability of Lender's Pro Rata Share.
(i) Agent may assume that each Lender will make its Pro Rata
Share of each Revolving Credit Advance available to Agent on the first
(1st) Business Day following each Settlement Date. If such Pro Rata Share
is not, in fact, paid to Agent by such Lender when due, Agent will be
entitled to recover such amount on demand from such Lender without
set-off, counterclaim or deduction of any kind.
(ii) Nothing contained in this Section 9.10(b) will be deemed to
relieve any Lender of its obligation to fulfill its Commitments or to
prejudice any rights Agent or Borrower may have against any Lender as a
result of any default by such Lender under this Agreement.
(c) Return of Payments.
(i) If Agent pays an amount to a Lender under this Agreement in
the belief or expectation that a related payment has been or will be
received by Agent from Borrower and such related payment is not received
by Agent, then Agent will be entitled to recover such amount from such
Lender on demand without set-off, counterclaim or deduction of any kind.
(ii) If Agent determines at any time that any amount received by
Agent under this Agreement must be returned to Borrower or paid to any
other Person pursuant to any insolvency law or otherwise, then,
notwithstanding any other term or condition of this Agreement or any other
Loan Document, Agent will not be required to distribute any portion
thereof to any Lender. In addition, each Lender will repay to Agent on
demand any portion of such amount that Agent has distributed to such
Lender, together with interest at such rate, if any, as Agent is required
to pay to Borrower or such other Person, without set-off, counterclaim or
deduction of any kind.
(d) Dissemination of Information.
Agent will use reasonable efforts to provide Lenders with any
information received by Agent from Borrower which is required to be
provided to Lenders hereunder, with any notice of Default or Event of
Default received by Agent from Borrower, with any notice of Default or
Event of Default delivered by Agent to Borrower, with notice of any
Default or Event of Default of which Agent has actually become aware and
with notice of any action taken by Agent following any Default or Event of
Default; provided, however, that Agent shall not be liable to any Lender
for any failure to do so, except to the extent that such failure is
attributable to Agent's gross negligence or willful misconduct as finally
determined by a court of competent jurisdiction after all possible appeals
have been exhausted.
(f) Non-Funding Lenders. The failure of any Lender (such
Lender, a "Non-Funding Lender") to make any Revolving Credit Advance to be
made by it on the date specified therefor shall not relieve any other
Lender (each such other Lender, an "Other Lender") of its obligations to
make its Revolving Credit Advance on such date, but neither any Other
Lender nor Agent shall be responsible for the failure of any Non-Funding
Lender to make a Revolving Credit Advance to be made by such Non-Funding
Lender, and no Non-Funding Lender shall have any obligation to Agent or
any Other Lender for the failure by such Non-Funding Lender.
Notwithstanding anything set forth herein to the contrary, a Non-Funding
Lender shall not have any voting or consent rights under or with respect
to any Loan Document or constitute a "Lender" (or be included in the
calculation of "Required Lenders" hereunder) for any voting or consent
rights under or with to any Loan Document. Anything in this Agreement to
the contrary notwithstanding, each Lender hereby agrees with each other
Lender that no Lender shall take any action to protect or enforce its
rights arising out of this Agreement or the Notes (including, without
limitation, exercising any rights of set-off) without first obtaining the
prior written consent of Agent or Required Lenders, it being the intent of
Lenders that any such action to protect or enforce rights under this
Agreement and the Notes shall be taken in concert and at the direction or
with the consent of the Agent.
10. SUCCESSORS AND ASSIGNS
10.1 Successors and Assigns. This Agreement and the other
Loan Documents shall be binding on and shall inure to the benefit of
Borrower, Agent, Lenders and their respective successors and assigns,
except as otherwise provided herein or therein. Borrower may not assign,
transfer, hypothecate or otherwise convey its rights, benefits,
obligations or duties hereunder or under any of the other Loan Documents
without the prior express written consent of Agent and Requisite Lenders.
Any such purported assignment, transfer, hypothecation or other conveyance
by Borrower without the prior express written consent of Agent shall be
void. The terms and provisions of this Agreement are for the purpose of
defining the relative rights and obligations of Borrower, Agent and
Lenders with respect to the transactions contemplated hereby and there
shall be no third party beneficiaries of any of the terms and provisions
of this Agreement or any of the other Loan Documents.
11. MISCELLANEOUS
11.1 Complete Agreement; Modification of Agreement. The
Loan Documents constitute the complete agreement between the parties with
respect to the subject matter thereof and may not be modified, altered or
amended except as set forth in Section 11.2 below. Any letter of interest
or commitment letter and/or fee letter between Borrower and Agent or any
of its affiliates, predating this Agreement and relating to a financing of
substantially similar form, purpose or effect shall be superseded by this
Agreement.
11.2 Amendments and Waivers. (a) Except as otherwise
provided herein, no amendment, modification, termination or waiver of any
provision of this Agreement or any of the Notes or consent to any
departure by Borrower therefrom, shall in any event be effective unless
the same shall be in writing and signed by Agent, Requisite Lenders and
Borrower.
(b) In furtherance of and without limiting the foregoing, no
amendment, modification, termination or waiver of or consent with respect
to any provision of this Agreement which (i) increases the percentage
advance rates set forth in the definition of Borrowing Base or (ii) makes
less restrictive the nondiscretionary criteria for exclusion from Eligible
Accounts and Eligible Inventory set forth in Schedule C and Schedule D
hereto shall be effective unless the same shall be in writing and signed
by Agent, Requisite Lenders and Borrower.
(c) Notwithstanding the foregoing, except to the extent
permitted by any applicable Lender Addition Agreement, no amendment,
modification, termination or waiver shall, unless in writing and signed by
Agent and each affected Lender, do any of the following: (a) increase the
principal amount of the Commitment of any affected Lender; (b) reduce the
principal of, rate of interest on or Fees payable with respect to any
Revolving Credit Advance, Letter of Credit Obligations or Term Loan; (c)
extend the final scheduled maturity date of the principal amount of any
Loan; (d) waive, forgive, defer, extend or postpone any payment of
interest or Fees required hereunder; (e) except as otherwise contemplated
herein or in one of the other Loan Documents, permit Borrower to sell or
otherwise dispose of any Collateral with a value exceeding $5,000,000 in
the aggregate; (f) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Loans which shall be required for
Lenders or any of them to take any action hereunder; and (g) amend or
waive this Section 11.2 or the definitions of the terms used in this
Section 11.2 insofar as the definitions affect the substance of this
Section 11.2; and provided, further, that no amendment, modification,
termination or waiver affecting the rights or duties of Agent under this
agreement or any other Loan Document shall in any event be effective,
unless in writing and signed by Agent, in addition to Lenders required
hereinabove to take such action. Each amendment, modification,
termination or waiver shall be effective only in the specific instance and
for the specific purpose for which it was given. No amendment,
modification, termination or waiver shall be required for Agent to take
additional Collateral pursuant to any Loan Document. No amendment,
modification, termination or waiver of any provision of any Note shall be
effective without the written concurrence of the holder of that Note. No
notice to or demand on Borrower in any case shall entitle Borrower to any
other or further notice or demand in similar or other circumstances. Any
amendment, modification, termination, waiver or consent effected in
accordance with this Section 11.2 shall be binding upon each holder of the
Notes at the time outstanding and each future holder of the Notes.
11.3 Fees and Expenses. Borrower shall reimburse Agent for
all reasonable out-of-pocket expenses incurred in connection with (a) the
preparation of the Loan Documents (including the reasonable fees and
expenses of all of its special loan counsel, advisors, consultants and
auditors retained in connection with the Loan Documents and the
transactions contemplated thereby and advice in connection therewith), and
(b) wire transfers to the account of Borrower. Borrower shall reimburse
Agent for all fees, costs and expenses, including the fees, costs and
expenses of counsel or other advisors (including environmental and
management consultants) for advice, assistance, or other representation in
connection with:
(i) the forwarding to Borrower or any other Person on
behalf of Borrower by Agent of the proceeds of the Revolving Credit
Advances and Term Loan;
(ii) any amendment, modification or waiver of, or consent
with respect to, any of the Loan Documents or advice in connection with
the administration of the loans made pursuant hereto or its rights
hereunder or thereunder;
(iii) any litigation, contest, dispute, suit, proceeding or
action (whether instituted by Agent, any Lender, Borrower or any other
Person) in any way relating to the Collateral, any of the Loan Documents
or any other agreement to be executed or delivered in connection therewith
or herewith, whether as party, witness, or otherwise, including any
litigation, contest, dispute, suit, case, proceeding or action, and any
appeal or review thereof, in connection with a case commenced by or
against Borrower or any other Person that may be obligated to Agent by
virtue of the Loan Documents;
(iv) any attempt to enforce any rights of Agent or any
Lender against Borrower or any other Person that may be obligated to Agent
or any Lender by virtue of any of the Loan Documents;
(v) efforts to (A) monitor the Loans or any of the other
Obligations, (B) evaluate, observe, assess Borrower, any Subsidiary
thereof or their respective affairs, and (C) verify, protect, evaluate,
assess, appraise, collect, sell, liquidate or otherwise dispose of any of
the Collateral;
including, without limitation, all the attorneys' and other professional
and service providers' fees arising from such services, including those in
connection with any appellate proceedings; and all expenses, costs,
charges and other fees incurred by such counsel and others in any way or
respect arising in connection with or relating to any of the events or
actions described in this Section 11.3 shall be payable, on demand, by
Borrower to Agent. Without limiting the generality of the foregoing, such
expenses, costs, charges and fees may include: fees, costs and expenses of
accountants, environmental advisors, appraisers, investment bankers,
management and other consultants and paralegals; court costs and expenses;
photocopying and duplication expenses; court reporter fees, costs and
expenses; long distance telephone charges; air express charges; telegram
charges; secretarial overtime charges; and expenses for travel, lodging
and food paid or incurred in connection with the performance of such legal
or other advisory services.
11.4 No Waiver. Agent's or any Lender's failure, at any
time or times, to require strict performance by Borrower of any provision
of this Agreement and any of the other Loan Documents shall not waive,
affect or diminish any right of Agent or such Lender thereafter to demand
strict compliance and performance therewith. Any suspension or waiver of
an Event of Default under this Agreement or any of the other Loan
Documents shall not suspend, waive or affect any other Event of Default
under this Agreement and any of the other Loan Documents whether the same
is prior or subsequent thereto and whether of the same or of a different
type. None of the undertakings, agreements, warranties, covenants and
representations of Borrower contained in this Agreement or any of the
other Loan Documents and no Default or Event of Default by Borrower under
this Agreement and no defaults by Borrower under any of the other Loan
Documents shall be deemed to have been suspended or waived by Agent or any
Lender, unless such waiver or suspension is by an instrument in writing
signed by an officer of or other authorized employee of Agent and
Requisite Lenders and directed to Borrower specifying such suspension or
waiver.
11.5 Remedies. Agent's and Lenders' rights and remedies
under this Agreement shall be cumulative and nonexclusive of any other
rights and remedies which Agent or any Lender may have under any other
agreement, including the other Loan Documents, by operation of law or
otherwise. Recourse to the Collateral shall not be required.
11.6 Severability. Wherever possible, each provision of
this Agreement and the other Loan Documents shall be interpreted in such a
manner as to be effective and valid under applicable law, but if any
provision of this Agreement shall be prohibited by or invalid under
applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
11.7 Conflict of Terms. Except as otherwise provided in
this Agreement or any of the other Loan Documents by specific reference to
the applicable provisions of this Agreement, if any provision contained in
this Agreement is in conflict with, or inconsistent with, any provision in
any of the other Loan Documents, the provision contained in this Agreement
shall govern and control.
11.8 Authorized Signature. Until Agent shall be notified
by Borrower to the contrary, the signature upon any document or instrument
delivered pursuant hereto of an officer of Borrower listed on Schedule
11.8 shall bind Borrower and be deemed to be the act of Borrower affixed
pursuant to and in accordance with resolutions duly adopted by Borrower's
Board of Directors.
11.9 GOVERNING LAW. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED
IN ANY OF THE LOAN DOCUMENTS, IN ALL RESPECTS, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS AGREEMENT AND THE OBLIGATIONS
ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF ILLINOIS (WITHOUT
REGARD TO CONFLICT OF LAW PROVISIONS) AND ANY APPLICABLE LAWS OF THE
UNITED STATES OF AMERICA. BORROWER HEREBY CONSENTS AND AGREES THAT THE
STATE OR FEDERAL COURTS LOCATED IN XXXX COUNTY, CITY OF CHICAGO, ILLINOIS,
SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR
DISPUTES BETWEEN BORROWERS, AGENT AND LENDERS PERTAINING TO THIS AGREEMENT
OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY MATTER ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, PROVIDED,
THAT AGENT, LENDERS AND BORROWER ACKNOWLEDGE THAT ANY APPEALS FROM THOSE
COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF XXXX COUNTY,
CITY OF CHICAGO, ILLINOIS AND, PROVIDED, THAT NOTHING IN THIS AGREEMENT
SHALL BE DEEMED OR OPERATE TO PRECLUDE AGENT FROM BRINGING SUIT OR TAKING
OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE ON THE COLLATERAL
OR ANY OTHER SECURITY FOR THE OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR
OTHER COURT ORDER IN FAVOR OF AGENT. BORROWER EXPRESSLY SUBMITS AND
CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED
IN ANY SUCH COURT, AND BORROWER HEREBY WAIVES ANY OBJECTION WHICH BORROWER
MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM
NON CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR
EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. BORROWER HEREBY
WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED
IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS,
COMPLAINTS AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL
ADDRESSED TO BORROWER AT THE ADDRESS SET FORTH IN SCHEDULE J OF THIS
AGREEMENT AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE
EARLIER OF BORROWER'S ACTUAL RECEIPT THEREOF OR THREE (3) DAYS AFTER
DEPOSIT IN THE U.S. MAILS, PROPER POSTAGE PREPAID.
11.10 Notices. Except as otherwise provided herein,
whenever it is provided herein that any notice, demand, request, consent,
approval, declaration or other communication shall or may be given to or
served upon either of the parties by the other party, or whenever either
of the parties desires to give or serve upon the other party any
communication with respect to this Agreement, each such notice, demand,
request, consent, approval, declaration or other communication shall be in
writing and shall be deemed to have been validly served, given or
delivered (i) upon the earlier of actual receipt and three (3) Business
Days after deposit in the United States Mail, registered or certified
mail, return receipt requested, with proper postage prepaid, (ii) upon
transmission, when sent by telecopy or other similar facsimile
transmission (with such telecopy or facsimile promptly confirmed by
delivery of a copy by personal delivery or United States Mail as otherwise
provided in this Section 11.10), (iii) one (1) Business Day after deposit
with a reputable overnight courier with all charges prepaid or (iv) when
delivered, if hand-delivered by messenger, all of which shall be addressed
to the party to be notified and sent to the address or facsimile number
indicated on Schedule J or to such other address (or facsimile number) as
may be substituted by notice given as herein provided. The giving of any
notice required hereunder may be waived in writing by the party entitled
to receive such notice. Failure or delay in delivering copies of any
notice, demand, request, consent, approval, declaration or other
communication to any Person (other than Borrower or Agent) designated on
Schedule J to receive copies shall in no way adversely affect the
effectiveness of such notice, demand, request, consent, approval,
declaration or other communication.
11.11 Section Titles. The Section titles and Table of
Contents contained in this Agreement are and shall be without substantive
meaning or content of any kind whatsoever and are not a part of the
agreement between the parties hereto.
11.12 Counterparts. This Agreement may be executed in any
number of separate counterparts, each of which shall collectively and
separately constitute one agreement.
11.13 WAIVER OF JURY TRIAL. BECAUSE DISPUTES ARISING IN
CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND
ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES
WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION
RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE
APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION
OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES
HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING
BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE, AMONG AGENT, LENDERS AND BORROWER ARISING OUT OF, CONNECTED
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM
IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR
THE TRANSACTIONS RELATED THERETO.
11.14 Press Releases. Borrower hereby agrees that it is not
on the date hereof issuing any press releases with respect to this
Agreement or the Related Transactions which mentions or uses the name of
General Electric Capital Corporation or its affiliates. Borrower further
agrees that it will not make in the future any press releases using the
name of General Electric Capital Corporation or its affiliates referring
to this Agreement without the prior written consent of GE Capital unless
Borrower is required to do so under law and then, in any event, Borrower
will consult with GE Capital before issuing such press release.
11.15 Reinstatement. This Agreement shall remain in full
force and effect and continue to be effective should any petition be filed
by or against Borrower for liquidation or reorganization, should Borrower
become insolvent or make an assignment for the benefit of any creditor or
creditors or should a receiver or trustee be appointed for all or any
significant part of Borrower's assets, and shall continue to be effective
or be reinstated, as the case may be, if at any time payment and
performance of the Obligations, or any part thereof, is, pursuant to
applicable law, rescinded or reduced in amount, or must otherwise be
restored or returned by any obligee of the Obligations, whether as a
"voidable preference," "fraudulent conveyance," or otherwise, all as
though such payment or performance had not been made. In the event that
any payment, or any part thereof, is rescinded, reduced, restored or
returned, the Obligations shall be reinstated and deemed reduced only by
such amount paid and not so rescinded, reduced, restored or returned.
[signature pages follow]
IN WITNESS WHEREOF, this Agreement has been duly executed as of
the date first written above.
XXXXXX CO., INC.
By: /s/
Title: Secretary
By: /s/
Title: Treasurer_
GENERAL ELECTRIC CAPITAL
CORPORATION,
Revolving Credit Loan as Agent and Lender
Commitment:
$35,000,000.00 By: /s/
Term Loan Commitment: Title: Region Operations Manager
$8,000,000.00
AMENDMENT NO. 1 TO CREDIT AGREEMENT
This AMENDMENT NO. 1 TO CREDIT AGREEMENT (this "Amendment") is
entered into as of this 15th day of September, 1995 by and among XXXXXX
CO., INC., a Wisconsin corporation ("Borrower"), GENERAL ELECTRIC CAPITAL
CORPORATION, a New York corporation (in its individual capacity, "GE
Capital"), for itself as Lender and as Agent for Lenders, and the other
Lenders signatory hereto. Unless otherwise specified herein, capitalized
terms used in this Amendment shall have the meanings ascribed to them by
the Credit Agreement (as hereinafter defined).
RECITALS
WHEREAS, Borrower, Agent and Lenders have entered into that
certain Credit Agreement dated as of June 30, 1995 (as amended,
supplemented, restated or otherwise modified from time to time, the
"Credit Agreement"); and
WHEREAS, Borrower, Agent and Lenders wish to amend the Credit
Agreement to increase the Revolving Credit Loan Commitment from Thirty-
Five Million Dollars ($35,000,000) to Thirty-Seven Million Dollars
($37,000,000), thereby increasing the Commitments from Forty-Three Million
Dollars ($43,000,000) to Forty-Five Million Dollars ($45,000,000);
NOW THEREFORE, in consideration of the mutual execution hereof
and other good and valuable consideration, the parties hereto agree as
follows:
SECTION 1. Amendments to the Credit Agreement.
(a) The first recital to the Credit Agreement is amended in its
entirety to read as follows:
WHEREAS, Borrower desires that Lenders extend a revolving
and term credit facility to Borrower for the purpose of refinancing
certain indebtedness of Borrower, to provide working capital
financing for Borrower and to provide funds for other general
corporate purposes of Borrower; and Borrower desires to borrow up to
Forty-Five Million Dollars ($45,000,000) from Lenders, and Lenders
are willing to make certain loans and other extensions of credit to
Borrower of up to such amount upon the terms and conditions set forth
herein;
(b) The definition of "Commitments" in Schedule A to the Credit
Agreement is amended in its entirety to read as follows:
"Commitments" shall mean (a) as to any Lender, the
aggregate commitment of such Lender to make Revolving Credit Advances
and the Term Loan as set forth on the signature page to the Agreement
or in the most recent Lender Addition Agreement executed by such
Lender and (b) as to all Lenders, the aggregate commitment of all
Lenders to make Revolving Credit Advances and the Term Loan, which
aggregate commitment shall be Forty-Three Million Dollars
($43,000,000) on the Closing Date and shall increase to Forty-Five
Million Dollars ($45,000,000) on September 15, 1995, as such amount
may be further adjusted, if at all, from time to time in accordance
with the Credit Agreement.
(c) The definition of "Revolving Credit Loan Commitment" in
Schedule A to the Credit Agreement is amended in its entirety to read as
follows:
"Revolving Credit Loan Commitment" shall mean (a) as to any
Lender, the aggregate commitment of such Lender to make Revolving
Credit Advances as set forth on the signature page to the Agreement
or in the most recent Lender Addition Agreement executed by such
Lender and (b) as to all Lenders, the aggregate commitment of all
Lenders to make Revolving Credit Advances, which aggregate commitment
shall be Thirty-Five Million Dollars ($35,000,000) on the Closing
Date and shall increase to Thirty-Seven Million Dollars ($37,000,000)
on September 15, 1995, as such amount may be further adjusted, if at
all, from time to time in accordance with the Credit Agreement.
(d) The Revolving Credit Loan Commitment of GE Capital set
forth on the signature page of the Credit Agreement is amended from
Thirty-Five Million Dollars ($35,000,000) to Thirty-Seven Million Dollars
($37,000,000).
Section 2. Representations and Warranties of Borrower.
Borrower represents and warrants that:
(a) The execution, delivery and performance by Borrower of
this Amendment, the new Revolving Credit Note and the amended
Mortgages have been duly authorized by all necessary corporate action
and that this Amendment is a legal, valid and binding obligation of
Borrower enforceable against Borrower in accordance with its terms,
except as the enforcement thereof may be subject to (i) the effect of
any applicable bankruptcy, insolvency, reorganization, moratorium or
similar law affecting creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforcement is
sought in a proceeding in equity or at law);
(b) Each of the representations and warranties contained
in the Credit Agreement is true and correct in all material respects
on and as of the date hereof as if made on the date hereof;
(c) Neither the execution, delivery and performance of
this Amendment nor the consummation of the transactions contemplated
hereby does or shall contravene, result in a breach of, or violate
(i) any provision of Borrower's certificate or articles of
incorporation or bylaws, (ii) any law or regulation, or any order or
decree of any court or government instrumentality or (iii) indenture,
mortgage, deed of trust, lease, agreement or other instrument to
which Borrower is a party or by which Borrower or any of its property
is bound, except in any such case to the extent such conflict or
breach has been waived by a written waiver document a copy of which
has been delivered to Agent on or before the date hereof;
(d) Since the Closing Date, no provisions of Borrower's
certificate or articles of incorporation or by-laws have been
amended or changed; and
(e) No Default or Event of Default has occurred and is
continuing.
Section 3. Reference to and Effect Upon the Credit
Agreement.
(a) Except as specifically amended above, the Credit Agreement
and the other Loan Documents shall remain in full force and effect and are
hereby ratified and confirmed.
(b) The execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of Agent or
any Lender under the Credit Agreement or any Loan Document, nor constitute
a waiver of any provision of the Credit Agreement or any Loan Document,
except as specifically set forth herein. Upon the effectiveness of this
Amendment, each reference in the Credit Agreement to "this Agreement",
"hereunder", "hereof", "herein" or words of similar import shall mean and
be a reference to the Credit Agreement as amended hereby. Each reference
in the Credit Agreement to the "Revolving Credit Note" shall mean and be a
reference to the Revolving Credit Note executed of even date with this
Amendment.
Section 4. Costs and Expenses. As provided in Section 11.3
of the Credit Agreement, Borrower agrees to reimburse Agent for all costs
and expenses, including the fees, costs and expenses of counsel or other
advisors for advice, assistance, or other representation in connection
with this Amendment.
Section 5. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO
CONFLICTS OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS.
Section 6. Headings. Section headings in this Amendment are
included herein for convenience of reference only and shall not constitute
a part of this Amendment for any other purposes.
Section 7. Counterparts. This Amendment may be executed in
any number of counterparts, each of which when so executed shall be deemed
an original but all such counterparts shall constitute one and the same
instrument.
Section 8. Effectiveness. This Amendment shall become
effective upon:
(a) the receipt of executed original signature pages to this
Amendment by Lenders and Borrower;
(b) the receipt of an executed original Revolving Credit Note in
the amount of Thirty-Seven Million Dollars ($37,000,000), evidencing the
Revolving Credit Loan, both existing outstanding amounts and future
borrowings, and the return of the prior Revolving Credit Note in the
amount of Thirty-Five Million Dollars ($35,000,000);
(c) receipt of an executed original certificate from the
Secretary of the Borrower, certifying as to (i) resolutions of the Board
of Directors of Borrower duly authorizing the execution, delivery and
effectiveness of this Amendment and all other instruments and documents to
be delivered by the Borrower; and (ii) incumbency of qualified officers of
the Borrower;
(d) receipt of an executed original certificate from an
authorized officer of the Borrower, certifying that no Default or Event of
Default has occurred and is continuing;
(e) receipt of executed original signature pages to amended
Mortgages covering all of the Mortgaged Properties;
(f) receipt of a satisfactory original opinion of counsel from
Xxxxx Xxxxxx, General Counsel of Borrower; and
(g) reimbursement of Agent's costs and expenses as provided in
Section 4 hereof.
[signature pages follow]
IN WITNESS WHEREOF, the parties have executed this Amendment as
of the date and year first above written.
XXXXXX CO., INC.
By: /s/
Title: Vice President Law//Finance &
Secretary
GENERAL ELECTRIC CAPITAL CORPORATION,
individually and as Agent
for the Lenders
By: /s/
Title: Region Operations Manager
AMENDMENT NO. 2 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 2 TO CREDIT AGREEMENT (this "Amendment")
dated as of December 22, 1995, by and among Xxxxxx Co., Inc., a Wisconsin
corporation ("Borrower") and General Electric Capital Corporation, a New
York corporation (in its individual capacity, "GE Capital"), for itself as
Lender, and as Agent for the Lenders.
W I T N E S S E T H:
WHEREAS, Borrower, Agent and GE Capital have entered into that
certain Credit Agreement dated as of June 30, 1995, as amended on
September 15, 1995 (the "Credit Agreement");
WHEREAS, Borrower proposes to enter into a Note and Warrant
Purchase Agreement (the "Initial Purchase Agreement") with certain
purchasers listed on the schedule thereto (the "Purchasers"), pursuant to
which the Purchasers shall purchase (i) $4,000,000 principal amount of
senior subordinated notes (the "Senior Subordinated Notes") and (ii)
warrants (the "Warrants") exercisable for 20,000,000 shares of the
Borrower's common stock, and also proposes to enter into a Warrant
Agreement with the Purchasers (a "Warrant Agreement") and a Registration
Rights Agreement with the Purchasers (a "Registration Rights Agreement");
WHEREAS, Borrower proposes to enter into one or more additional
note purchase agreements on or before June 30, 1996 (individually, a
"Subsequent Purchase Agreement," and collectively or together with the
Initial Purchase Agreement, the "Purchase Agreements"), pursuant to which
up to an additional $6,600,000 principal amount of Senior Subordinated
Notes shall be sold, and also proposes to enter into further Warrant
Agreements and Registration Rights Agreements;
WHEREAS, Section 6.3 of the Credit Agreement provides that the
Borrower shall not create, incur, assume or permit to exist any
Indebtedness, except in limited circumstances;
WHEREAS, Section 6.5 of the Credit Agreement provides that the
Borrower shall not make any change in its capital structure that is not
acceptable to Agent in its reasonable discretion;
WHEREAS, Section 6.7 of the Credit Agreement provides that the
Borrower shall not create, incur, assume or permit to exist any Lien on or
with respect to its properties or assets, except in limited circumstances;
WHEREAS, the parties hereto wish to amend the Credit Agreement
to, among other things, allow Borrower to enter into the Purchase
Agreements, Warrant Agreements and Registration Rights Agreements.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Definitions. Capitalized terms used but not defined herein shall
have the meanings ascribed to such terms in the Credit Agreement.
2. Amendments to the Credit Agreement.
(a) The definition of "Change of Control" in Schedule A to the
Credit Agreement is amended in its entirety to read as follows:
"Change of Control" shall mean any event, transaction or
occurrence as a result of which, without the consent of the Agent
(which consent shall not be unreasonably withheld), either (i) (x)
Internationale Nederlanden (U.S.) Capital Corporation and its
Affiliates shall cease to own or control at least 15% of the
outstanding Stock (or rights to acquire Stock), on a fully diluted
basis and (y) Xxxxx Xxxxxxxx Ltd. and its Affiliates shall cease to
own or control at least 10% of the outstanding Stock (or rights to
acquire Stock), on a fully diluted basis, or (ii) any other Person
and its Affiliates shall own or control, directly or indirectly, in
the aggregate 51% or more of the Voting Stock, on a fully diluted
basis.
(b) Section 6.3 of the Credit Agreement is amended by deleting the
word "and " immediately before clause (vi) thereof and adding the
following after such clause (vi):
, and (vii) up to $10,600,000 original principal amount at the time
of issue of senior subordinated notes (the "Senior Subordinated
Notes") pursuant to that certain Note and Warrant Purchase Agreement
(the "Initial Purchase Agreement"), dated as of December 22, 1995
among Borrower and the purchasers listed on Schedule I thereto and
pursuant to any subsequent note purchase agreement (individually, a
"Subsequent Purchase Agreement," and, together with the Initial
Purchase Agreement, the "Purchase Agreements"), the notes for which
are purchased on or before June 30, 1996, provided, that the terms
and conditions of each such Purchase Agreement are substantially
identical to the Initial Purchase Agreement, provided further, that
the provisions of Article X and Section 11.16 of each such Purchase
Agreement, the definitions used therein and the form of notes issued
thereunder shall be identical in all respects to the provisions of
Article X and Section 11.16 of the Initial Purchase Agreement, the
definitions used therein and the form of notes issued thereunder,
respectively, and provided further, that the Agent shall be provided
with a true and complete copy of each Subsequent Purchase Agreement
five Business Days prior to the effective date of such Subsequent
Purchase Agreement.
(c) Section 6.5 of the Credit Agreement is amended by adding the
following at the end of clause (ii) thereof:
, except for the issuance of up to 53,000,000 warrants in the
aggregate pursuant to (x) the Purchase Agreements, (y) that certain
Warrant Agreement (the "Warrant Agreement") dated as of December 22,
1995 between the Borrower and the purchasers listed therein and one
or more subsequent warrant agreements (together with the Warrant
Agreement, the "Warrant Agreements"), the terms of which are
substantially identical to the Warrant Agreement and which are
executed concurrently with one of the Purchase Agreements, (z) that
certain Registration Rights Agreement (the "Registration Rights
Agreement") dated as of December 22, 1995 between the Borrower and
the purchasers listed therein and one or more subsequent registration
rights agreements (together with the Registration Rights Agreement,
the "Registration Rights Agreements"), the terms of which are
substantially identical to the Registration Rights Agreement and
which are executed concurrently with one of the Warrant Agreements
and one of the Purchase Agreements.
(d) Section 6.7 of the Credit Agreement is amended by deleting the
word "and" immediately before clause (iv) thereof and adding the following
after such clause (iv):
, and (v) Liens in connection with any of the Purchase Agreements,
provided that such Liens shall be junior and subordinated to the
Liens under this Agreement on the express terms set forth in Article
X and Section 11.16 of the Purchase Agreements, and the Borrower in
all respects shall comply with the requirements thereof, and provided
further, that the Borrower shall furnish to the Agent and its counsel
a true and complete copy of each agreement, document and instrument
granting or creating any such lien including any UCC statement,
mortgage, recordation and similar filing documents, and any proposed
amendments or modifications thereto from time to time, at least five
Business Days prior to the execution thereof.
(e) Section 8.1 of the Credit Agreement is amended by adding the
following:
(n) Any payment shall be made on account of any of the Senior
Subordinated Notes or Subordinated Debt (as defined in the Purchase
Agreements) or any breach of the provisions of Article X or Section
11.16 of any of the Purchase Agreements shall occur or be continuing
prior to termination of the Commitments and payment in full of the
Revolving Credit Loan and the Term Loan and all fees, costs and
expenses payable or reimbursable by Borrower pursuant to the Credit
Agreement or any other Loan Agreement.
(o) Any modification or amendment shall be made to any of the
Purchase Agreements, Senior Subordinated Notes, Warrant Agreements or
Registration Rights Agreements without the prior written consent of
Agent, which consent shall not be unreasonably withheld.
3. Incorporated Representations and Warranties. The representations and
warranties contained in Article 3 of the Credit Agreement are and will be
true and correct and complete in all material respects on and as of the
date hereof to the same extent as though made on and as of the date
hereof, except to the extent such representations and warranties
specifically relate to an earlier date, in which they are true, correct
and complete in all material respects as of such earlier date.
4. Representations and Warranties. In order to induce Agent to enter
into this Amendment, the Borrower represents and warrants that the copies
of the Initial Purchase Agreement, the Warrant Agreement and the
Registration Rights Agreement most recently caused by the Borrower to be
provided to Agent are true and complete copies of the duly and validly
executed Initial Purchase Agreement, the Warrant Agreement and the
Registration Rights Agreement.
5. Return of Closing Fee. Upon the effectiveness of the Initial
Purchase Agreement and receipt by the Borrower of the proceeds of the
Senior Subordinated Notes purchased thereunder, GE Capital will promptly
credit the Borrower's account by the aggregate amount of $344,000,
pursuant to Section 1 of the GE Capital Fee Letter. Upon the
effectiveness of any Subsequent Purchase Agreement on or before June 30,
1996 and receipt by the Borrower of the proceeds of the Senior
Subordinated Notes purchased thereunder, GE Capital will promptly further
credit the Borrower's account by an aggregate amount equal to 8.6% of the
net proceeds of the sale of the Senior Subordinated Notes, provided that
the total amount of the Closing Fee returned by GE Capital on account of
the Purchase Agreement and all Additional Purchase Agreements shall not
exceed $645,000, pursuant to Section 1 of the GE Capital Fee Letter.
6. Miscellaneous. The parties hereto hereby further agree as follows:
6.1 Further Assurances. Each of the parties hereto hereby agrees to
do such further acts and things and to execute, deliver and acknowledge
such additional agreements, powers and instruments as any other party
hereto may reasonably require to carry into effect the purposes of this
Amendment.
6.2 Costs, Expenses and Taxes; Indemnity. The provisions of Section
11.3 of the Credit Agreement are hereby incorporated by reference as if
fully set forth herein mutatis mutandis and made applicable to this
Amendment.
6.3 Counterparts. This Amendment may be executed in one or more
counterparts, each of which, when executed and delivered, shall be deemed
to be an original and all of which counterparts, taken together, shall
constitute but one and the same document with the same force and effect as
if the signatures of all of the parties were on a single counterpart, and
it shall not be necessary in making proof of this Amendment to produce
more than one (1) such counterpart.
6.4 Headings. Headings used in this Amendment are for convenience
of reference only and shall not affect the construction of this Amendment.
6.5 Governing Law. THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT
MADE UNDER THE LAWS OF THE STATE OF ILLINOIS, AND FOR ALL PURPOSES SHALL
BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL
LAWS AND DECISIONS OF SAID STATE, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAWS.
6.6 Binding Effect. This Amendment shall be binding upon and inure
to the benefit of and be enforceable by the parties hereto and their
respective successors and assigns. Except as expressly set forth to the
contrary herein, this Amendment shall not be construed so as to confer any
right or benefit upon any Person other than the parties to this Amendment
and their respective successors and permitted assigns.
6.7 Amendment; Waiver; Reaffirmation of Loan Documents. The parties
hereto agree and acknowledge that nothing contained in this Amendment in
any manner or respect limits or terminates any of the provisions of the
Credit Agreement or the other Loan Documents other than as expressly set
forth herein and further agree and acknowledge that the Credit Agreement
and each of the other Loan Documents remain and continue in full force and
effect and are hereby ratified and reaffirmed in all respects. No delay
on the part of Agent in exercising any of their respective rights,
remedies, powers and privileges under the Credit Agreement or any of the
other Loan Documents or partial or single exercise thereof, shall
constitute a waiver thereof.
6.8 Financing Statements and Public Filings. The Agent agrees to
consent or object to the form of any UCC statement or other recording
document submitted to it on behalf of the Holders within five Business
Days; provided, that no such consent shall be unreasonably withheld; and,
provided, further, that the failure to object within five Business Days of
such submission to the Agent shall be deemed a consent by the Agent to the
filing of such UCC statement or other recording document on behalf of the
Holders; and provided, further that such UCC statement or other recording
document shall comply with the terms and provisions of Section 11.16 of
the Purchase Agreements.
[Balance of page intentionally left blank. Signature pages follow.]
IN WITNESS WHEREOF, this Amendment has been duly executed as of
the date first written above.
XXXXXX CO., INC.
By: /s/
Title: Vice President Law/Finance
& Secretary
GENERAL ELECTRIC CAPITAL CORPORATION,
As Agent and as Lender
By: /s/
Title: Senior Vice President Commercial
Finance
AMENDMENT NO. 3 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 3 TO CREDIT AGREEMENT (this "Amendment")
dated as of June 17, 1996, by and among Xxxxxx Co., Inc., a Wisconsin
corporation ("Borrower") and General Electric Capital Corporation, a New
York corporation (in its individual capacity, "GE Capital"), for itself as
Lender, and as Agent for the Lenders.
W I T N E S S E T H:
WHEREAS, Borrower, Agent and GE Capital have entered into that
certain Credit Agreement dated as of June 30, 1995, as amended (the
"Credit Agreement");
WHEREAS, the Borrower is the sponsor of the defined benefit
pension plans (the "Plans") set forth in Exhibit A hereto, covered by
Title IV of ERISA; and
WHEREAS, the Borrower has applied under section 412(d) of the
Internal Revenue Code and section 303 of ERISA to the U.S. Internal
Revenue Service ("IRS") for conditional waivers of the minimum funding
standard for the Plans ("Funding Waivers") for plan year 1995. As a
condition to granting the requested Funding Waivers, the IRS may require
that security perfected and enforced by the Pension Benefit Guaranty
Corporation ("PBGC") be provided to the Plans; and
WHEREAS, in the event the Funding Waivers are granted, the
Borrower has agreed to grant to the Plans and to PBGC a security interest
and lien in the amount of $11.2 million on the property described in
Exhibit B hereto (the "PBGC Collateral") to secure full and timely payment
of all amounts owing by the Borrower to the Plans as payment for the
Funding Waivers and payment to PBGC for liabilities that may arise under
the provisions of Section 4062 of ERISA in the event that one or more of
the Plans terminates prior to full payment of the amounts owing for the
Funding Waivers; and
WHEREAS, the parties hereto wish to amend the Credit Agreement
to, among other things, allow Borrower to obtain the Funding Waivers and
grant the PBGC Liens on the terms and conditions set forth in this
Amendment No. 3.
NOW, THEREFORE, the parties hereto hereby agree as follows:
I. Definitions. Capitalized terms used but not defined herein
shall have the meanings ascribed to such terms in the Credit Agreement.
II. Amendments to the Credit Agreement.
(a) Section 6.7 of the Credit Agreement is amended by deleting
the word "and" immediately before clause (v) thereof and adding the
following after such clause (v):
, and (vi) Liens granted to the PBGC in all real estate currently
owned by the Borrower and located in Cudahy, Wisconsin, and in all
equipment and fixtures owned by the Borrower and located on such real
estate and securing an amount payable to the PBGC under the
Borrower's defined benefit pensions not to exceed $11,200,000,
provided that (i) such Liens shall continue and be outstanding only
as long as the Borrower has not repaid the amount of its minimum
funding requirements waived as of the date hereof by the PBGC for the
Borrower's 1995 plan year, (ii) such Liens shall be junior and
subordinated to the Liens under this Agreement on the express terms
set forth in the Intercreditor Agreement, dated as of June 17, 1996,
by the Agent, ING Equity Partners, L.P. I, as agent for the holders
of the Senior Subordinated Notes and the PBGC, as amended,
supplemented or otherwise modified from time to time (the "PBGC
Intercreditor Agreement"), (iii) the Borrower shall not amend or
otherwise modify without the prior written consent of the Agent that
certain Payment and Security Agreement, dated June 17, 1996 by and
between the Borrower and the PBGC (the "PBGC Agreement"), which
consent of the Agent shall not be unreasonably withheld, provided
that the Agent shall in its sole and absolute discretion have the
right to consent to any additional Liens that might be proposed by
the Borrower to secure any obligations to the PBGC, and (iv) the
Borrower shall furnish to the Agent and its counsel a true and
complete copy of each agreement, document and instrument granting or
creating any such lien including any UCC statement, mortgage,
recordation and similar filing documents, and any proposed amendments
or modifications thereto from time to time, at least five Business
Days prior to the execution thereof.
(b) Section 8.1 of the Credit Agreement is amended by adding the
following:
(p) Any breach by the Borrower or any of the holders of the
Senior Subordinated Notes of the PBGC Intercreditor Agreement shall
occur or be continuing.
(q) Any breach by the Borrower shall occur or be continuing
under the PBGC Agreement or any other document or instrument related
thereto or arising thereunder.
III. Incorporated Representations and Warranties. The
representations and warranties contained in Article 3 of the Credit
Agreement are and will be true and correct and complete in all material
respects on and as of the date hereof to the same extent as though made on
and as of the date hereof, except to the extent such representations and
warranties specifically relate to an earlier date, in which they are true,
correct and complete in all material respects as of such earlier date.
IV. Representations and Warranties. In order to induce Agent
to enter into this Amendment, the Borrower represents and warrants that
the copy of the PBGC Agreement most recently caused by the Borrower to be
provided to Agent is a true and complete copy of the duly and validly
executed PBGC Agreement.
V. Waiver. GE Capital, individually and in its capacity as
Agent, hereby waives any breach of the Credit Agreement caused by the
failure of the Borrower to pay the amount of the Funding Waivers prior to
the Borrower's entering into the PBGC Agreement.
VI. Miscellaneous. The parties hereto hereby further agree as
follows:
6.1 Further Assurances. Each of the parties hereto hereby
agrees to do such further acts and things and to execute, deliver and
acknowledge such additional agreements, powers and instruments as any
other party hereto may reasonably require to carry into effect the
purposes of this Amendment.
6.2 Costs, Expenses and Taxes; Indemnity. The provisions of
Section 11.3 of the Credit Agreement are hereby incorporated by
reference as if fully set forth herein mutatis mutandis and made
applicable to this Amendment.
6.3 Counterparts. This Amendment may be executed in one or
more counterparts, each of which, when executed and delivered, shall
be deemed to be an original and all of which counterparts, taken
together, shall constitute but one and the same document with the
same force and effect as if the signatures of all of the parties were
on a single counterpart, and it shall not be necessary in making
proof of this Amendment to produce more than one (1) such
counterpart.
6.4 Headings. Headings used in this Amendment are for
convenience of reference only and shall not affect the construction
of this Amendment.
6.5 Governing Law. THIS AMENDMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER THE LAWS OF THE STATE OF ILLINOIS, AND FOR ALL
PURPOSES SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF SAID STATE,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
6.6 Binding Effect. This Amendment shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and
their respective successors and assigns. Except as expressly set
forth to the contrary herein, this Amendment shall not be construed
so as to confer any right or benefit upon any Person other than the
parties to this Amendment and their respective successors and
permitted assigns.
6.7 Amendment; Waiver; Reaffirmation of Loan Documents. The
parties hereto agree and acknowledge that nothing contained in this
Amendment in any manner or respect limits or terminates any of the
provisions of the Credit Agreement or the other Loan Documents other
than as expressly set forth herein and further agree and acknowledge
that the Credit Agreement and each of the other Loan Documents remain
and continue in full force and effect and are hereby ratified and
reaffirmed in all respects. No delay on the part of Agent in
exercising any of their respective rights, remedies, powers and
privileges under the Credit Agreement or any of the other Loan
Documents or partial or single exercise thereof, shall constitute a
waiver thereof.
6.8 Financing Statements and Public Filings. The Agent agrees
to consent or object to the form of any UCC statement or other
recording document submitted to it on behalf of the PBGC within five
Business Days; provided, that no such consent shall be unreasonably
withheld; and, provided, further that such UCC statement or other
recording document shall comply with the terms and provisions of the
PBGC Intercreditor Agreement.
[Balance of page intentionally left blank.
Signature pages follow.]
IN WITNESS WHEREOF, this Amendment has been duly executed as of
the date first written above.
XXXXXX CO., INC.
By: /s/
Title:________________________
GENERAL ELECTRIC CAPITAL CORPORATION,
As Agent and as Lender
By: /s/
Title:_________________________
AMENDMENT NO. 4 TO CREDIT AGREEMENT
This AMENDMENT NO. 4 TO CREDIT AGREEMENT (this "Amendment") is
entered into as of this 12th day of November, 1996 by and among XXXXXX
CO., INC., a Wisconsin corporation ("Borrower"), GENERAL ELECTRIC CAPITAL
CORPORATION, a New York corporation (in its individual capacity, "GE
Capital"), for itself as Lender and as Agent for Lenders, and the other
Lenders signatory hereto. Unless otherwise specified herein, capitalized
terms used in this Amendment shall have the meanings ascribed to them by
the Credit Agreement (as hereinafter defined).
RECITALS
WHEREAS, Borrower, Agent and Lenders have entered into that
certain Credit Agreement dated as of June 30, 1995 (as amended,
supplemented, restated or otherwise modified from time to time, the
"Credit Agreement"); and
WHEREAS, Borrower, Agent and Lenders wish to amend the Credit
Agreement to increase the Revolving Credit Loan Commitment from Thirty-
Seven Million Dollars ($37,000,000) to Forty-Five Million Dollars
($45,000,000), thereby increasing the Commitments from Forty-Five Million
Dollars ($45,000,000) to Fifty-Three Million Dollars ($53,000,000);
WHEREAS, Borrower, Agent and Lenders wish to amend the Credit
Agreement to reduce the Non-Use Fee;
NOW THEREFORE, in consideration of the mutual execution hereof
and other good and valuable consideration, the parties hereto agree as
follows:
SECTION 1. Amendments to the Credit Agreement.
(a) The first recital to the Credit Agreement is amended in its
entirety to read as follows:
WHEREAS, Borrower desires that Lenders extend a revolving
and term credit facility to Borrower for the purpose of refinancing
certain indebtedness of Borrower, to provide working capital
financing for Borrower and to provide funds for other general
corporate purposes of Borrower; and Borrower desires to borrow up to
Fifty-Three Million Dollars ($53,000,000) from Lenders, and Lenders
are willing to make certain loans and other extensions of credit to
Borrower of up to such amount upon the terms and conditions set forth
herein;
(b) Section 1.8(b) of the Credit Agreement is amended in its
entirety to read as follows:
(b) As additional compensation for Lenders' costs and
risks in making the Revolving Credit Loan available to Borrower,
Borrower agrees to pay to Agent, for the ratable benefit of Lenders,
in arrears, on the first Business Day of each month prior to the
Commitment Termination Date and on the Commitment Termination Date, a
fee for Borrower's non-use of available funds (the "Non-use Fee") in
amount equal to one-quarter of one percent (1/4%) per annum
(calculated on the basis of a 360 day year for actual days elapsed)
of the difference between the respective daily averages of (i) the
Maximum Revolving Credit Loan (as it may be adjusted from time to
time hereunder) and (ii) the amount of the Revolving Credit Loan
outstanding during the period for which the Non-use Fee is due.
(c) The definition of "Commitments" in Schedule A to the Credit
Agreement is amended in its entirety to read as follows:
"Commitments" shall mean (a) as to any Lender, the
aggregate commitment of such Lender to make Revolving Credit Advances
and the Term Loan as set forth on the signature page to the Agreement
or in the most recent Lender Addition Agreement executed by such
Lender and (b) as to all Lenders, the aggregate commitment of all
Lenders to make Revolving Credit Advances and the Term Loan, which
aggregate commitment shall be Forty-Three Million Dollars
($43,000,000) on the Closing Date, shall increase to Forty-Five
Million Dollars ($45,000,000) on September 15, 1995, and shall
increase to Fifty-Three Million Dollars ($53,000,000) on November __,
1996, as such amount may be further adjusted, if at all, from time to
time in accordance with the Credit Agreement.
(d) The definition of "Revolving Credit Loan Commitment" in
Schedule A to the Credit Agreement is amended in its entirety to read as
follows:
"Revolving Credit Loan Commitment" shall mean (a) as to any
Lender, the aggregate commitment of such Lender to make Revolving
Credit Advances as set forth on the signature page to the Agreement
or in the most recent Lender Addition Agreement executed by such
Lender and (b) as to all Lenders, the aggregate commitment of all
Lenders to make Revolving Credit Advances, which aggregate commitment
shall be Thirty-Five Million Dollars ($35,000,000) on the Closing
Date, shall increase to Thirty-Seven Million Dollars ($37,000,000) on
September 15, 1995 and shall increase to Forty-Five Million Dollars
($45,000,000) on November __, 1996, as such amount may be further
adjusted, if at all, from time to time in accordance with the Credit
Agreement.
(e) The Revolving Credit Loan Commitment of GE Capital set
forth on the signature page of the Credit Agreement is amended from
Thirty-Seven Million Dollars ($37,000,000) to Forty-Five Million Dollars
($45,000,000).
Section 2. Representations and Warranties of Borrower.
Borrower represents and warrants that:
(a) The execution, delivery and performance by Borrower of
this Amendment, the new Revolving Credit Note and the amended
Mortgages have been duly authorized by all necessary corporate action
and that this Amendment is a legal, valid and binding obligation of
Borrower enforceable against Borrower in accordance with its terms,
except as the enforcement thereof may be subject to (i) the effect of
any applicable bankruptcy, insolvency, reorganization, moratorium or
similar law affecting creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforcement is
sought in a proceeding in equity or at law);
(b) Each of the representations and warranties contained
in the Credit Agreement is true and correct in all material respects
on and as of the date hereof as if made on the date hereof;
(c) Neither the execution, delivery and performance of
this Amendment nor the consummation of the transactions contemplated
hereby does or shall contravene, result in a breach of, or violate
(i) any provision of Borrower's certificate or articles of
incorporation or bylaws, (ii) any law or regulation, or any order or
decree of any court or government instrumentality or (iii) indenture,
mortgage, deed of trust, lease, agreement or other instrument to
which Borrower is a party or by which Borrower or any of its property
is bound, except in any such case to the extent such conflict or
breach has been waived by a written waiver document a copy of which
has been delivered to Agent on or before the date hereof;
(d) Since the Closing Date, no provisions of Borrower's
certificate or articles of incorporation or by-laws have been
amended or changed; and
(e) No Default or Event of Default has occurred and is
continuing.
Section 3. Reference to and Effect Upon the Credit
Agreement.
(a) Except as specifically amended above, the Credit Agreement
and the other Loan Documents shall remain in full force and effect and are
hereby ratified and confirmed.
(b) The execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of Agent or
any Lender under the Credit Agreement or any Loan Document, nor constitute
a waiver of any provision of the Credit Agreement or any Loan Document,
except as specifically set forth herein. Upon the effectiveness of this
Amendment, each reference in the Credit Agreement to "this Agreement",
"hereunder", "hereof", "herein" or words of similar import shall mean and
be a reference to the Credit Agreement as amended hereby. Each reference
in the Credit Agreement to the "Revolving Credit Note" shall mean and be a
reference to the Revolving Credit Note executed of even date with this
Amendment.
Section 4. Costs and Expenses. As provided in Section 11.3
of the Credit Agreement, Borrower agrees to reimburse Agent upon demand
for all costs and expenses, including the fees, costs and expenses of
counsel or other advisors for advice, assistance, or other representation
in connection with this Amendment.
Section 5. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO
CONFLICTS OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS.
Section 6. Headings. Section headings in this Amendment are
included herein for convenience of reference only and shall not constitute
a part of this Amendment for any other purposes.
Section 7. Counterparts. This Amendment may be executed in
any number of counterparts, each of which when so executed shall be deemed
an original but all such counterparts shall constitute one and the same
instrument.
Section 8. Effectiveness. This Amendment shall become
effective upon:
(a) the receipt of executed original signature pages to this
Amendment by Lenders and Borrower;
(b) the receipt of an executed original Revolving Credit Note in
the amount of Forty-Five Million Dollars ($45,000,000), evidencing the
Revolving Credit Loan, both existing outstanding amounts and future
borrowings, and the return of the prior Revolving Credit Note in the
amount of Thirty-Seven Million Dollars ($37,000,000);
(c) receipt of an executed original certificate from the
Secretary of the Borrower, certifying as to (i) resolutions of the Board
of Directors of Borrower duly authorizing the execution, delivery and
effectiveness of this Amendment and all other instruments and documents to
be delivered by the Borrower; and (ii) incumbency of qualified officers of
the Borrower;
(d) receipt of an executed original certificate from an
authorized officer of the Borrower, certifying that no Default or Event of
Default has occurred and is continuing;
(e) receipt of executed original signature pages to amended
Mortgages covering all of the Mortgaged Properties;
(f) receipt of a satisfactory original opinion of counsel from
Xxxxx Xxxxxx, General Counsel of Borrower; and
(g) reimbursement of Agent's costs and expenses as provided in
Section 4 hereof.
IN WITNESS WHEREOF, the parties have executed this Amendment as
of the date and year first above written.
XXXXXX CO., INC.
By: /s/
Title:
GENERAL ELECTRIC CAPITAL CORPORATION,
individually and as Agent
for the Lenders
By: /s/
Title:
AMENDMENT NO. 5 TO CREDIT AGREEMENT
This AMENDMENT NO. 5 TO CREDIT AGREEMENT (this "Amendment") is
entered into as of this 8th day of April, 1997 by and among XXXXXX CO.,
INC., a Wisconsin corporation ("Borrower"), GENERAL ELECTRIC CAPITAL
CORPORATION, a New York corporation (in its individual capacity, ("GE
Capital"), for itself as Lender and as Agent for Lenders, and the other
Lenders signatory hereto. Unless otherwise specified herein, capitalized
terms used in this Amendment shall have the meanings ascribed to them by
the Credit Agreement (as hereinafter defined).
RECITALS
WHEREAS, Borrower, Agent and Lenders have entered into that
certain Credit Agreement dated as of June 30, 1995 (as amended,
supplemented, restated or otherwise modified from time to time, the
("Credit Agreement");
WHEREAS, Borrower, Agent and Lenders wish to terminate the
Borrower's right to choose the LIBOR pricing option; and
WHEREAS, Borrower, Agent and Lenders wish to amend the Credit
Agreement to provide for adjustments to the Applicable Margin for LIBOR
Loans and to change the amount to be paid to Agent, for the benefit of the
Lenders, as a result of a voluntary prepayment.
NOW THEREFORE, in consideration of the foregoing and other good
and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Termination of LIBOR Pricing Option. Upon the
effectiveness of this Amendment pursuant to Section 9 hereof, the Borrower
shall no longer have the option to elect LIBOR pricing and all existing
LIBOR Loans immediately shall be converted to Index Rate Loans.
SECTION 2. Amendments to the Credit Agreement.
(a) Section 1.3(d) of the Credit Agreement is amended in its
entirety to read as follows:
"(d) Borrower shall have the right at any time on thirty
(30) days' prior written notice to Agent to voluntarily:
(i) prepay all or part of the Term Loan, provided that any
such voluntary prepayment shall be accompanied by the payment of the fee
required by Section 1.8(c), if any, plus the payment of any LIBOR funding
breakage costs in accordance with Section 1.13(c); and
(ii) permanently reduce the Revolving Credit Loan
Commitment in whole or in part ratably among the Lenders in a minimum
aggregate amount of $1,000,000 or any integral multiple of $1,000,000
excess thereof; provided, however, that the amount of the Revolving
Outstanding Advances; provided further that any such voluntary reduction
shall be accompanied by the payment of the fee required by Section 1.8(c),
if any, plus the payment of any LIBOR funding breakage costs in accordance
with Section 1.13(c)."
(b) The second sentence of Section 1.5(c) of the Credit
Agreement is deleted and replaced by the following text:
"The Index Rate shall be determined each day based upon the
Index Rate as in effect each day."
"(c) Except as set forth in Section 1.3(d) above, if, prior to
July 1, 1999, Borrower shall prepay the Term Loans or permanently reduce
the Revolving Credit Loan Commitment, Borrower shall pay to the Agent, for
the benefit of Lenders as liquidated damages and compensation for the
costs of being prepared to make funds available to Borrower hereunder an
amount determined by multiplying one percent (1%) by, in the case of a
prepayment of the Term Loan, the amount of such prepayment, and in the
case of a permanent reduction in the Revolving Credit Loan Commitment, the
amount of such reduction."
(d) The definition of "Applicable Margin" in Schedule A to the
Credit Agreement is amended in its entirety to read as follows:
""Applicable Margin" shall mean, for Index Rate Loans,
until June 1, 1997, two and one-half percent (2.5%), and thereafter a
percentage in effect for the ten applicable Margin Period equal to the
percentage shown below opposite the Borrower's EBITDA for the twelve (12)
full consecutive calendar months ending with the most recent Fiscal Month
prior to such Margin Period for which Borrower has delivered its monthly
financial statements to Agent pursuant to clause (a) of Schedule G
("EBITDA Calculation Period"):
Applicable Margin for
EBITDA for the EBITDA Index Rate Loans for the
Calculation Period Related Margin Period
Greater than $23,500,000 2.00%
Greater than $20,750,000
but less than or equal to
$23,500,000 2.50%
Less than or equal to
$20,750,000 3.00%
As used in this definition: "Margin Period" shall mean, on any date of
determination, the period (i) commencing five (5) days after the delivery
of its monthly financial statements by the Borrower to the Agent as
required by clause (a) of Schedule G for its most recent Fiscal Month, and
(ii) ending four (4) days after the delivery of such monthly financial
statements for the next succeeding Fiscal Month."
(e) The definition of "Index Rate" in Schedule A to the Credit
Agreement is amended in its entirety to read as follows:
""Index Rate" shall mean, for any day, the published rate
for the thirty-day dealer placed commercial paper (sold through the
dealers by major corporations) which normally is published in the "Money
Rates" section of The Wall Street Journal for such day or, in the event
such reports shall not so appear, in such other nationally recognized
publications as Agent may, from time to time, specify to Borrower."
Section 3. Representations and Warranties of Borrower.
Borrower represents and warrants that:
(a) The execution, delivery and performance by Borrower of
this Amendment have been duly authorized by all necessary corporate action
and that this Amendment is a legal, valid and binding obligation of
Borrower enforceable against Borrower in accordance with its terms, except
as the enforcement thereof may be subject to (i) the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium or similar
law affecting creditors' rights generally and (ii) general principles of
equity (regardless of whether such enforcement is sought in a proceeding
in equity or at law);
(b) Each of the representations and warranties contained
in the Credit Agreement is true and correct in all material respects on
and as of the date hereof as if made on the date hereof;
(c) Neither the execution, delivery and performance of
this Amendment nor the consummation of the transactions contemplated
hereby does or shall contravene, result in a breach of, or violate (i) any
provision of Borrower's certificate or articles of incorporation or
bylaws, (ii) any law or regulation, or any order or decree of any court or
government instrumentality or (iii) indenture, mortgage, deed of trust,
lease, agreement or other instrument to which Borrower is a party or by
which Borrower or any of its property is bound, except in any such case to
the extent such conflict or breach has been waived by a written waiver
document a copy of which has been delivered to Agent on or before the date
hereof;
(d) Since the Closing Date, no provisions of Borrower's
certificate or articles of incorporation or by-laws have been amended or
changed; and
(e) No Default or Event of Default has occurred and is
continuing.
Section 4. Reference to and Effect Upon the Credit
Agreement.
(a) Except as specifically amended above, the Credit Agreement
and the other Loan Documents shall remain in full force and effect and are
hereby ratified and confirmed.
(b) The execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of Agent or
any Lender under the Credit Agreement or any Loan Document, nor constitute
a waiver of any provision of the Credit Agreement or any Loan Document,
except as specifically set forth herein. Upon the effectiveness of this
Amendment, each reference in the Credit Agreement to "this Agreement",
"hereunder", "hereof", "herein" or words of similar import shall mean and
be a reference to the Credit Agreement as amended hereby. Each reference
in the Credit Agreement to the "Revolving Credit Note" shall mean and be a
reference to the Revolving Credit Note executed of even date with this
Amendment.
Section 5. Costs and Expenses. As provided in Section 11.3
of the Credit Agreement, Borrower agrees to reimburse Agent upon demand
for all costs and expenses, including the fees, costs and expenses of
counsel or other advisors for advice, assistance, or other representation
in connection with this Amendment.
Section 6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO
CONFLICTS OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS.
Section 7. Headings. Section headings in this Amendment are
included herein for convenience of reference only and shall not constitute
a part of this Amendment for any other purposes.
Section 8. Counterparts. This Amendment may be executed in
any number of counterparts, each of which when so executed shall be deemed
an original but all such counterparts shall constitute one and the same
instrument.
Section 9. Effectiveness. This Amendment shall become
effective upon:
(a) the receipt of executed original signature pages to this
Amendment by Lenders and Borrower;
(b) receipt of an executed original certificate from the
Secretary of the Borrower, certifying as to (i) resolutions of the Board
of Directors of Borrower duly authorizing the execution, delivery and
effectiveness of this Amendment and all other instruments and documents to
be delivered by the Borrower; and (ii) incumbency of qualified officers of
the Borrower;
(c) receipt of an executed original certificate from an
authorized officer of the Borrower, certifying that no Default or Event of
Default has occurred and is continuing;
(d) receipt of a satisfactory original opinion of counsel from
Xxxxx Xxxxxx, General Counsel of Borrower; and
(e) reimbursement of Agent's costs and expenses as provided in
Section 5 hereof.
IN WITNESS WHEREOF, the parties have executed this Amendment as
of the date and year first above written.
XXXXXX CO., INC.
By: /s/
Title:
GENERAL ELECTRIC CAPITAL CORPORATION,
individually and as Agent
for the Lenders
By: /s/
Title: Duly Authorized Signatory
AMENDMENT NO. 6 TO CREDIT AGREEMENT
This AMENDMENT NO. 6 TO CREDIT AGREEMENT (this "Amendment") is
entered into as of this 23rd day of May, 1997 by and among XXXXXX CO.,
INC., a Wisconsin corporation ("Borrower"), GENERAL ELECTRIC CAPITAL
CORPORATION, a New York corporation (in its individual capacity, "GE
Capital"), for itself as Lender and as Agent for Lenders, and the other
Lenders signatory hereto. Unless otherwise specified herein, capitalized
terms used in this Amendment shall have the meanings ascribed to them by
the Credit Agreement (as hereinafter defined).
RECITALS
WHEREAS, Borrower, Agent and Lenders have entered into that
certain Credit Agreement dated as of June 30, 1995 (as amended,
supplemented, restated or otherwise modified from time to time, the
"Credit Agreement");
WHEREAS, Borrower has entered into an Asset Purchase Agreement
dated April 24, 1997 (the "Trinity Asset Purchase Agreement") with Trinity
Fitting & Flange Group, Inc., a Delaware corporation ("Trinity"), pursuant
to which Borrower is selling and Trinity is purchasing certain assets
related to the Borrower's Industrial Products Division;
WHEREAS, Borrower proposes to purchase (the "Xxxxx Purchase")
substantially all of the assets (the "Xxxxx Assets") of Xxxxx Machine
Company, Incorporated, a Connecticut corporation ("Xxxxx"); and
WHEREAS, the parties hereto wish to enter into this Amendment to
consent to the Trinity Asset Purchase Agreement, waive any Defaults caused
thereby, consent to the Xxxxx Purchase and amend the Credit Agreement as
provided herein.
NOW THEREFORE, in consideration of the foregoing and other good
and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Consent and Waiver. Subject to the satisfaction
of each of the conditions set forth in Section 9 of this Amendment, Agent
and Lenders hereby consent to the execution and consummation of the
Trinity Asset Purchase Agreement and waive any existing Default caused
solely by the execution of the Trinity Asset Purchase Agreement; provided
that the proceeds received pursuant thereto is applied to the Revolving
Credit Loan; provided further that the escrow agent under that certain
Escrow Agreement to be executed pursuant to Section 11.1. of the Trinity
Asset Purchase Agreement (the "Escrow Agreement") shall have acknowledged
that Agent has a first priority perfected security interest in the
Borrower's interest in any funds deposited in escrow pursuant to the
Escrow Agreement, such acknowledgment to be in form and substance
satisfactory to Agent, and provided further that the Trinity Asset
Purchase Agreement shall not be materially amended without the consent of
the Agent.
SECTION 2. Amendments to the Credit Agreement.
(a) Section 1.4 of the Credit Agreement is amended in its
entirety to read as follows:
"1.4 Use of Proceeds. (a) Borrower shall utilize the
proceeds of Revolving Credit Advances solely for the Refinancing (and
to pay any related transaction expenses) and for the financing of
ordinary working capital and general corporate needs (but excluding
in any event any direct or indirect redemption, purchase, repayment
or defeasance of any Stock of Borrower).
(b) Notwithstanding Section 1.4(a), but subject to Section
1.1 (a), Borrower shall not utilize proceeds of the Trinity Asset
Purchase which flow through the Revolving Credit Advances to pay to
its Pension Plans except in an amount not to exceed ten million
dollars ($10,000,000) in the aggregate; provided that on or before
the date of such Revolving Credit Advances, each of the following
shall have occurred in form and substance satisfactory to the Agent:
(i) the PBGC shall have released its Liens on Borrower's property and
withdraw all other conditions and requirements imposed in connection
with its conditional waiver of the minimum funding standards for
Borrower's Plans, (ii) that certain Intercreditor Agreement dated as
of June 17, 1996, by Agent, ING Equity Partners, L.P. I, as agent for
the Noteholders and the PBGC shall have been terminated, and (iii)
that certain Payment and Security Agreement dated as of June 17, 1996
between Borrower and the PBGC shall have been terminated.
(c) Notwithstanding Section 1.4(a), but subject to Section
1.1 (a), Borrower shall not utilize proceeds of Revolving Credit
Advances Borrower to purchase assets other than in the ordinary
course of business except for an amount not to exceed eight million
five hundred thousand dollars ($8,500,000) in the aggregate to
purchase the Xxxxx Assets; provided that the terms and conditions of
the Xxxxx Purchase are satisfactory to Agent in its reasonable
discretion and provided further that on or before the date of such
Revolving Credit Advances, any Liens on Xxxxx Assets shall have been
released and Borrower shall have executed and delivered in form and
substance satisfactory to Agent (i) mortgages with respect to any
Xxxxx Assets which constitute real property and (ii) UCC financing
statements for each jurisdiction in which Xxxxx Assets are located.
(d) Notwithstanding Section 1.4(a) and Section 6.3, but
subject to Section 1.1(a) and the provisos contained in Section
1.4(c), Borrower may execute a note in the principal amount of one
million dollars ($1,000,000) in favor of the shareholders of Xxxxx
and use proceeds of Revolving Credit Advances to pay interest and
principal on the note."
(c) Schedule I to the Credit Agreement is amended in its
entirety to read as provided in Exhibit A hereto.
SECTION 3. Representations and Warranties of Borrower.
Borrower represents and warrants that:
(a) The execution, delivery and performance by Borrower of
this Amendment have been duly authorized by all necessary corporate
action and that this Amendment is a legal, valid and binding
obligation of Borrower enforceable against Borrower in accordance
with its terms, except as the enforcement thereof may be subject to
(i) the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditors' rights
generally and (ii) general principles of equity (regardless of
whether such enforcement is sought in a proceeding in equity or at
law);
(b) Each of the representations and warranties contained
in the Credit Agreement is true and correct in all material respects
on and as of the date hereof as if made on the date hereof;
(c) Neither the execution, delivery and performance of
this Amendment nor the consummation of the transactions contemplated
hereby does or shall contravene, result in a breach of, or violate
(i) any provision of Borrower's certificate or articles of
incorporation or bylaws, (ii) any law or regulation, or any order or
decree of any court or government instrumentality or (iii) indenture,
mortgage, deed of trust, lease, agreement or other instrument to
which Borrower is a party or by which Borrower or any of its property
is bound, except in any such case to the extent such conflict or
breach has been waived by a written waiver document a copy of which
has been delivered to Agent on or before the date hereof;
(d) Since the Closing Date, no provisions of Borrower's
certificate or articles of incorporation or by-laws have been
amended or changed; and
(e) No Default or Event of Default has occurred and is
continuing.
SECTION 4. Reference to and Effect Upon the Credit
Agreement.
(a) Except as specifically amended above, the Credit Agreement
and the other Loan Documents shall remain in full force and effect and are
hereby ratified and confirmed.
(b) The execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of Agent or
any Lender under the Credit Agreement or any Loan Document, nor constitute
a waiver of any provision of the Credit Agreement or any Loan Document,
except as specifically set forth herein. Upon the effectiveness of this
Amendment, each reference in the Credit Agreement to "this Agreement",
"hereunder", "hereof", "herein" or words of similar import shall mean and
be a reference to the Credit Agreement as amended hereby. Each reference
in the Credit Agreement to the "Revolving Credit Note" shall mean and be a
reference to the Revolving Credit Note executed of even date with this
Amendment.
SECTION 5. Costs and Expenses. As provided in Section 11.3
of the Credit Agreement, Borrower agrees to reimburse Agent upon demand
for all costs and expenses, including the fees, costs and expenses of
counsel or other advisors for advice, assistance, or other representation
in connection with this Amendment.
SECTION 6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO
CONFLICTS OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS.
SECTION 7. Headings. Section headings in this Amendment are
included herein for convenience of reference only and shall not constitute
a part of this Amendment for any other purposes.
SECTION 8. Counterparts. This Amendment may be executed in
any number of counterparts, each of which when so executed shall be deemed
an original but all such counterparts shall constitute one and the same
instrument.
SECTION 9. Effectiveness. This Amendment shall become
effective upon:
(a) the receipt of executed original signature pages to this
Amendment by Lenders and Borrower;
(b) receipt of an executed original certificate from the
Secretary of the Borrower, certifying as to (i) resolutions of the Board
of Directors of Borrower duly authorizing the execution, delivery and
effectiveness of this Amendment and all other instruments and documents to
be delivered by the Borrower; and (ii) incumbency of qualified officers of
the Borrower;
(c) receipt of an executed original certificate from an
authorized officer of the Borrower, certifying that no Default or Event of
Default has occurred and is continuing;
(d) receipt of a satisfactory original opinion of counsel from
Xxxxx Xxxxxx, Vice President Law/Finance of Borrower;
(e) reimbursement of Agent's costs and expenses as provided in
Section 5 hereof; and
(f) receipt of a Borrowing Base Certificate certified by
Borrower's Financial Officer after giving effect to the Trinity Asset
Purchase Agreement, in form and substance satisfactory to Agent.
IN WITNESS WHEREOF, the parties have executed this Amendment as
of the date and year first above written.
XXXXXX CO., INC.
By: /s/
Title: Treasurer
GENERAL ELECTRIC CAPITAL CORPORATION,
individually and as Agent
for the Lenders
By: /s/
Title: Duly Authorized Signatory
AMENDMENT NO. 7 TO CREDIT AGREEMENT
This AMENDMENT NO. 7 TO CREDIT AGREEMENT (this "Amendment") is
entered into as of this 2nd day of July, 1997 by and among XXXXXX CO.,
INC., a Wisconsin corporation ("Borrower"), XXXXX MACHINE CO., INC., a
Nevada corporation and a wholly-owned subsidiary of Borrower
("Guarantor"), GENERAL ELECTRIC CAPITAL CORPORATION, a New York
corporation (in its individual capacity, "GE Capital"), for itself as
Lender and as Agent for Lenders, and the other Lenders signatory hereto.
Unless otherwise specified herein, capitalized terms used in this
Amendment shall have the meanings ascribed to them by the Credit Agreement
(as hereinafter defined).
RECITALS
WHEREAS, Borrower, Agent and Lenders have entered into that
certain Credit Agreement dated as of June 30, 1995 (as amended,
supplemented, restated or otherwise modified from time to time, the
"Credit Agreement");
WHEREAS, Borrower entered into an Asset Purchase Agreement dated
June 18, 1997 (the "Xxxxx Asset Purchase Agreement") with Xxxxx Machine
Company, Incorporated, a Connecticut corporation ("Xxxxx"), pursuant to
which Borrower purchased substantially all of the assets of Xxxxx (the
"Xxxxx Assets").
WHEREAS, Borrower caused Guarantor to be formed as a wholly-
owned subsidiary of Borrower and caused some or all of the Xxxxx Assets to
be transferred to Guarantor;
WHEREAS, as a condition to making the Loans under the Credit
Agreement to fund the purchase of the Xxxxx Assets and allowing the
formation of Guarantor, Agent requires that (i) the Borrower pledge the
Xxxxx Assets to secure the Obligations and (ii) Guarantor guarantee the
Obligations and pledge the Xxxxx Assets to secure such guaranty;
WHEREAS, the parties hereto wish to enter into this Amendment to
consent to the formation of Guarantor and the transfer of the Xxxxx Assets
to Guarantor, waive any Defaults caused thereby and amend the Credit
Agreement as provided herein.
NOW THEREFORE, in consideration of the foregoing and other good
and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Consent and Waiver. Subject to the satisfaction
of each of the conditions set forth in Section 10 of this Amendment, Agent
and Lenders hereby consent to the formation of Guarantor and the transfer
of the Xxxxx Assets to Guarantor and waive any existing Default caused
solely thereby.
SECTION 2. Amendments to the Credit Agreement.
(a) Sections 5 and 6 of the Credit Agreement are amended by (i)
deleting each reference therein to "Borrower shall not" and replacing each
such reference with a reference to "Borrower shall not, and shall not
cause or permit any Subsidiary to," and (ii) deleting each other reference
therein to "Borrower shall" and replacing each such reference with a
reference to "Borrower shall, and shall cause each Subsidiary to,".
(b) Section 6.2 of the Credit Agreement is amended by inserting
the following text at the end of such Section:
", provided that Borrower may make loans and advances to Guarantor
and Guarantor may make loans and advances to Borrower.
(c) The financial covenants referred to in Section 6.10 of the
Credit Agreement and Schedule I thereto henceforth shall be calculated for
Borrower and its Subsidiaries on a consolidated basis. All defined terms
used therein shall henceforth be deemed to refer to Borrower and its
Subsidiaries on a consolidated basis.
(d) The following text is added as Section 12 of the Credit
Agreement:
"12. GUARANTY
Guarantor hereby unconditionally guarantees the due and
punctual payment of all Obligations of Borrower from time to time
outstanding, including without limitation the due and punctual
payment of the principal of and interest on the Loans made to
Borrower pursuant to this Agreement and the due and punctual payment
of all other amounts payable by Borrower under this Agreement or the
other Loan Documents (collectively, the "Guaranteed Obligations").
The obligations of Guarantor under this Section 12 and
under any other Loan Document executed by Guarantor shall be
unconditional and absolute and, without limiting the generality of
the foregoing, shall not be released, discharged or otherwise
affected by:
(a) any extension, renewal, settlement, compromise, waiver or
release in respect of any Guaranteed Obligation of Borrower or the
Collateral therefor under this Agreement or the other Loan Documents
unless such extension, renewal, settlement, compromise, waiver or
release expressly applies to any Guaranteed Obligation;
(b) any modification or amendment of or supplement to this
Agreement or the other Loan Documents unless such modification,
amendment or supplement expressly releases or discharges the
Guaranteed Obligations;
(c) any change in the corporate existence, structure or
ownership of Borrower, or any insolvency, bankruptcy, reorganization
or other similar proceeding affecting Borrower or its Collateral or
assets;
(d) the existence of any claim, set-off or other rights which
Borrower may have at any time against Guarantor, the Agent, any
Lender or any other Person, whether in connection herewith or any
unrelated transactions, provided that nothing herein shall prevent
the assertion of any such claim by separate suit or compulsory
counterclaim;
(e) any invalidity or unenforceability for any reason of any
provision or all of this Agreement or the other Loan Documents
relating to or against Borrower, or any provision of applicable law
or regulation purporting to prohibit the payment by Borrower of the
principal of or interest on any Note or any other amount payable by
it under this Agreement or the other Loan Documents; or
(f) any other act or omission to act or delay of any kind by
Borrower, Agent, any Lender or any other Person, or any other
circumstance whatsoever which might, but for the provisions of this
paragraph, constitute a legal or equitable discharge of Borrower's
obligations under this Agreement or the other Loan Documents.
Guarantor's obligations under this Section 12 and under any
other Loan Document executed by Guarantor shall remain in full force
and effect until all Guaranteed Obligations shall have been paid in
full and this Agreement and the other Loan Documents shall have
terminated in accordance with their terms. If at any time any
payment of the principal of or interest on any Note made by Borrower
or any other amount payable by Borrower under this or the other Loan
Documents is rescinded or must be otherwise restored or returned upon
the insolvency, bankruptcy or reorganization of Borrower or
otherwise, Guarantor's obligations under this Section 12 with respect
to such payment shall be revived and continued in full force and
effect.
Guarantor irrevocably waives notice, presentment, protest,
notice, demand or action on delinquency in respect of the Guaranteed
Obligations or any part thereof, including any right to require the
Agent or the Lenders to xxx the Borrower, any other guarantor or any
other Person obligated with respect to the Obligations or any part
thereof, or otherwise to enforce payment thereof against any
collateral securing the same.
Until the Obligations are paid in full, the Guarantor shall
not exercise any right of subrogation, reimbursement, contribution or
indemnity with respect to payments made by the Guarantor pursuant to
this Section 12 or under any other Loan Document executed by
Guarantor. In the event that the demand for payment of any amount
payable by Borrower under this Agreement or the other Loan Documents
is stayed upon the insolvency, bankruptcy or reorganization of
Borrower, all such amounts otherwise subject to acceleration under
the terms of this Agreement or the other Loan Documents shall
nonetheless be payable by the Guarantor hereunder forthwith upon
demand by the Agent.
If in any action or proceeding involving any state, federal
or foreign bankruptcy, insolvency or other law affecting the rights
of creditors generally, the obligations of Guarantor set forth in
this Section 12 or under any other Loan Document executed by
Guarantor would be held or determined to be void, invalid or
unenforceable on account of the amount of the aggregate liability of
Guarantor hereunder, then notwithstanding any other provision of this
Section 12 or under any other Loan Document executed by Guarantor to
the contrary, the aggregate amount of Guarantor's liability shall,
without any further action of Agent or any other Person, be
automatically limited and reduced with respect to Guarantor to the
highest amount which is valid and enforceable as determined in such
action or proceeding."
(e) Schedules 1.9, 3.7, 3.9, 3.10, 3.15, 3.17, 3.28, 5.1, 6.3,
6.4(a), 6.4(b), 6.7, 11.8 to the Credit Agreement are amended in their
entirety to read as provided in Exhibit A hereto.
(f) The definitions of "Accounts," "Copyright License,"
"Copyrights," "Documents," "Equipment," "Fiscal Quarter," "Fixtures,"
"General Intangibles," "Goods," "Hazardous Material," "Instruments,"
"Inventory," "License," "Material Adverse Effect," "Mortgages," "Patent
License," "Patents," "Permitted Encumbrances," "Proceeds," "Trademark
License," "Trademarks" and "Work-in-Process" in Schedule A to the Credit
Agreement are amended by deleting each reference therein to "Borrower" and
replacing each such reference with a reference to "Borrower or any
Subsidiary" and deleting each reference therein to "Borrower's" and
replacing each such reference with a reference to "Borrower's or any
Subsidiary's."
(g) The definition of "Agreement" in Schedule A to the Credit
Agreement is amended by inserting the word "Guarantor," directly after the
reference to "Borrower."
(h) The definition of "Obligations" in Schedule A to the Credit
Agreement is amended by inserting the words "or Guarantor" directly after
each reference to "Borrower."
(i) The definition of "Security Agreement" in Schedule A to the
Credit Agreement is amended by inserting the words " and Guarantor"
directly after the reference to "Borrower."
(j) Schedule A to the Credit Agreement is amended by inserting
the following definition in appropriate alphabetical order:
""Guarantor" shall mean Xxxxx Machine Co., Inc., a Nevada
corporation."
(k) The financial statements and operating plans to be
delivered pursuant to Sections (a), (b), (c) and (d) of Schedule G to the
Credit Agreement henceforth shall be prepared for Borrower and its
Subsidiaries on a consolidated and a consolidating basis.
SECTION 3. Representations and Warranties of Borrower.
Borrower represents and warrants that:
(a) The execution, delivery and performance by Borrower of
this Amendment have been duly authorized by all necessary corporate
action and that this Amendment is a legal, valid and binding
obligation of Borrower enforceable against Borrower in accordance
with its terms, except as the enforcement thereof may be subject to
(i) the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditors' rights
generally and (ii) general principles of equity (regardless of
whether such enforcement is sought in a proceeding in equity or at
law);
(b) After giving effect to this Amendment, each of the
representations and warranties contained in the Credit Agreement is
true and correct in all material respects on and as of the date
hereof as if made on the date hereof with respect to Borrower and its
Subsidiaries;
(c) Neither the execution, delivery and performance of
this Amendment nor the consummation of the transactions contemplated
hereby does or shall contravene, result in a breach of, or violate
(i) any provision of Borrower's certificate or articles of
incorporation or bylaws, (ii) any law or regulation, or any order or
decree of any court or government instrumentality or (iii) indenture,
mortgage, deed of trust, lease, agreement or other instrument to
which Borrower is a party or by which Borrower or any of its property
is bound, except in any such case to the extent such conflict or
breach has been waived by a written waiver document a copy of which
has been delivered to Agent on or before the date hereof;
(d) After giving effect to this Amendment, no Default or
Event of Default has occurred and is continuing.
SECTION 4. Representations and Warranties of Guarantor.
Guarantor represents and warrants that:
(a) Guarantor is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation;
(b) Guarantor is duly qualified to do business and is in
good standing under the laws of each jurisdiction where its ownership
or lease of property or the conduct of its business requires such
qualification;
(c) Guarantor has the requisite corporate power and
authority and the legal right to own, pledge, mortgage and operate
its properties, to lease the property it operates under lease, and to
conduct its business as now, heretofore and proposed to be conducted;
(d) Guarantor has all licenses, permits, consents or
approvals from or by, and has made all material filings with, and has
given all notices to, all Governmental Authorities having
jurisdiction, to the extent required for such ownership, operation
and conduct;
(e) Guarantor is in compliance with its charter and by-
laws;
(f) Guarantor is in compliance with all applicable
provisions of law, except where the failure to comply, individually
or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect;
(g) After giving effect to this Amendment, each of the
representations and warranties made by Borrower in Sections 3.2,
3.7,3.9, 3.10, 3.13, 3.15, 3.17, 3.18, 3.20, 3.21, 3.22, 3.23, 3.25
and 3.26 of the Credit Agreement are true and correct as if made by
Guarantor with respect to Guarantor and its properties on the date
hereof.
(h) The execution, delivery and performance by Guarantor
of this Amendment have been duly authorized by all necessary
corporate action and that this Amendment is a legal, valid and
binding obligation of Guarantor enforceable against Guarantor in
accordance with its terms, except as the enforcement thereof may be
subject to (i) the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditors' rights
generally and (ii) general principles of equity (regardless of
whether such enforcement is sought in a proceeding in equity or at
law);
(i) Neither the execution, delivery and performance of
this Amendment nor the consummation of the transactions contemplated
hereby does or shall contravene, result in a breach of, or violate
(i) any provision of Guarantor's certificate or articles of
incorporation or bylaws, (ii) any law or regulation, or any order or
decree of any court or government instrumentality or (iii) indenture,
mortgage, deed of trust, lease, agreement or other instrument to
which Guarantor is a party or by which Guarantor or any of its
property is bound, except in any such case to the extent such
conflict or breach has been waived by a written waiver document a
copy of which has been delivered to Agent on or before the date
hereof; and
(j) Guarantor's federal employee identification number is
00-0000000.
SECTION 5. Reference to and Effect Upon the Credit
Agreement.
(a) Except as specifically amended above, the Credit Agreement
and the other Loan Documents shall remain in full force and effect and are
hereby ratified and confirmed.
(b) The execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of Agent or
any Lender under the Credit Agreement or any Loan Document, nor constitute
a waiver of any provision of the Credit Agreement or any Loan Document,
except as specifically set forth herein. Upon the effectiveness of this
Amendment, each reference in the Credit Agreement to "this Agreement",
"hereunder", "hereof", "herein" or words of similar import shall mean and
be a reference to the Credit Agreement as amended hereby.
SECTION 6. Costs and Expenses. As provided in Section 11.3
of the Credit Agreement, Borrower agrees to reimburse Agent upon demand
for all costs and expenses, including the fees, costs and expenses of
counsel or other advisors for advice, assistance, or other representation
in connection with this Amendment.
SECTION 7. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO
CONFLICTS OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS.
SECTION 8. Headings. Section headings in this Amendment are
included herein for convenience of reference only and shall not constitute
a part of this Amendment for any other purposes.
SECTION 9. Counterparts. This Amendment may be executed in
any number of counterparts, each of which when so executed shall be deemed
an original but all such counterparts shall constitute one and the same
instrument.
SECTION 10. Effectiveness. This Amendment shall become
effective upon:
(a) the receipt of executed original signature pages to this
Amendment by Lenders, Borrower and Guarantor;
(b) the receipt of executed original signature pages to that
certain Amendment No. 1 to Security Agreement, of even date herewith by
Borrower and Guarantor;
(c) the receipt of executed original signature pages to that
certain Mortgage of even date herewith by Guarantor in favor of Agent,
covering real estate located in Connecticut;
(d) evidence satisfactory to Agent that Agent (for the benefit
of itself and Lenders) has a valid and perfected first priority security
interest in the Guarantor Collateral, including (i) such documents duly
executed by Guarantor (including financing statements under the UCC and
other applicable documents under the laws of any jurisdiction with respect
to the perfection of Liens) as Agent may request in order to perfect its
security interests in the Guarantor Collateral and (ii) copies of UCC
search reports listing all effective financing statements that name
Guarantor, as debtor, together with copies of such financing statements,
none of which shall cover the Guarantor Collateral.
(e) receipt of an executed original certificate from the
Secretary of each of Borrower and Guarantor, certifying as to (i)
resolutions of the Board of Directors of such entity duly authorizing the
execution, delivery and effectiveness of this Amendment and all other
instruments and documents to be delivered by such entity; and (ii)
incumbency of qualified officers of such entity;
(f) receipt of an executed original certificate from an
authorized officer of each of Borrower and Guarantor, certifying that no
Default or Event of Default has occurred and is continuing;
(g) receipt of (i) certified copies of Guarantor's certificate
or articles of incorporation and all amendments thereto, (ii) good
standing certificate (including verification of tax status) for Guarantor
in its state of incorporation and (iii) for each of Borrower and
Guarantor, good standing certificates (including verification of tax
status) and certificates of qualification to conduct business in each
jurisdiction where Guarantor's ownership or lease of property or the
conduct of its business requires such qualification, each of the foregoing
dated a recent date prior to the dated hereof and certified by the
applicable Secretary of State or other authorized governmental entity.
(h) receipt of a satisfactory original opinions of counsel from
Xxxxx Xxxxxx, Vice President Law/Finance of Borrower and Vice President
Law/Finance of Guarantor;
(i) receipt of an executed copy of the Xxxxx Purchase
Agreement; and
(j) reimbursement of Agent's costs and expenses as provided in
Section 7 hereof; and
IN WITNESS WHEREOF, the parties have executed this Amendment as
of the date and year first above written.
XXXXXX CO., INC.
By: /s/
Title: Vice President Law/Finance
XXXXX MACHINE CO., INC.
By:
Title: Vice President & Secretary
GENERAL ELECTRIC CAPITAL CORPORATION,
individually and as Agent
for the Lenders
By: /s/
Title:
