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Exhibit 4.3
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$50,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF JUNE 9, 2000
AMONG
CORRPRO COMPANIES, INC.
CSI COATING SYSTEMS INC.
AND
THE LENDERS PARTY HERETO
AND
BANK ONE, MICHIGAN, AS AGENT
AND
BANC ONE CAPITAL MARKETS, INC., AS ARRANGER
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TABLE OF CONTENTS
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ARTICLE PAGE
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ARTICLE I. DEFINITIONS...................................................................................1
1.1 Definitions...................................................................................1
1.2 Rules of Construction........................................................................16
ARTICLE II. THE CREDITS..................................................................................17
2.1 Commitments..................................................................................17
2.2 Repayment of Loans; Evidence of Debt.........................................................17
2.3 Procedures for Revolving Credit Borrowing....................................................18
2.4 Termination or Reduction of Commitments......................................................19
2.5 Facility and Agent Fees......................................................................19
2.6 Optional and Mandatory Principal Payments on All Loans.......................................19
2.7 Conversion and Continuation of Outstanding Advances..........................................20
2.7.1 Advances............................................................................20
2.7.2 Canadian Advances...................................................................20
2.8 Interest Rates, Interest Payment Dates; Interest and Fee Basis...............................21
2.9 Rates Applicable After Default...............................................................21
2.10 Pro Rata Payment, Method of Payment..........................................................22
2.11 Telephonic Notices...........................................................................23
2.12 Notification of Advances, Interest Rates, Prepayments and Commitment Reductions..............23
2.13 Lending Installations........................................................................23
2.14 Non-Receipt of Funds by the Agent............................................................23
2.15 Facility Letters of Credit...................................................................23
2.15.1 Obligation to Issue.................................................................23
2.15.2 Conditions for Issuance.............................................................24
2.15.3 Procedure for Issuance of Facility Letters of Credit................................24
2.15.4 Reimbursement Obligations...........................................................25
2.15.5 Participation.......................................................................25
2.15.6 Compensation for Facility Letters of Credit.........................................27
2.15.7 Letter of Credit Collateral Account.................................................27
2.15.8 Nature of Obligations...............................................................27
2.16 Swing Loans..................................................................................28
(a) Making of Swing Loans...............................................................28
(b) Swing Loan Borrowing Requests.......................................................28
(c) Repayment of Swing Loans............................................................28
2.17 Application of Payments with Respect to Defaulting Lenders...................................29
2.18 Amendment and Restatement....................................................................29
2.19 Security.....................................................................................29
ARTICLE III. YIELD PROTECTION; TAXES......................................................................30
3.1 Yield Protection.............................................................................30
3.2 Changes in Capital Adequacy Regulations......................................................31
3.3 Availability of Types of Advances............................................................31
3.4 Funding Indemnification......................................................................31
3.5 Taxes ......................................................................................32
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3.6 Lender Statements; Survival of Indemnity.....................................................33
3.7 No Duplication...............................................................................33
ARTICLE IV. CONDITIONS PRECEDENT.........................................................................34
4.1 Initial Credit Extension.....................................................................34
4.2 Each Credit Extension........................................................................36
ARTICLE V. REPRESENTATIONS AND WARRANTIES...............................................................36
5.1 Existence and Standing.......................................................................36
5.2 Authorization and Validity...................................................................36
5.3 No Conflict; Government Consent..............................................................36
5.4 Financial Statements.........................................................................37
5.5 Material Adverse Change......................................................................37
5.6 Taxes........................................................................................37
5.7 Litigation and Contingent Obligations........................................................37
5.8 Subsidiaries.................................................................................37
5.9 ERISA........................................................................................38
5.10 Accuracy of Information......................................................................38
5.11 Regulation U.................................................................................38
5.12 Material Agreements..........................................................................38
5.13 Compliance With Laws.........................................................................38
5.14 Ownership of Properties......................................................................38
5.15 Plan Assets; Prohibited Transactions.........................................................38
5.16 Environmental Matters........................................................................38
5.17 Investment Company Act.......................................................................39
5.18 Public Utility Holding Company Act...........................................................39
5.19 Canadian Borrower............................................................................39
5.20 Collateral Documents.........................................................................39
ARTICLE VI. COVENANTS....................................................................................40
6.1 Financial Reporting..........................................................................40
6.2 Use of Proceeds..............................................................................41
6.3 Notice of Default............................................................................41
6.4 Conduct of Business..........................................................................41
6.5 Taxes........................................................................................41
6.6 Insurance....................................................................................41
6.7 Compliance with Laws.........................................................................42
6.8 Maintenance of Properties....................................................................42
6.9 Inspection...................................................................................42
6.10 Dividends....................................................................................42
6.11 Indebtedness.................................................................................42
6.12 Merger.......................................................................................43
6.13 Sale of Assets...............................................................................43
6.14 Investments and Acquisitions.................................................................43
6.15 Liens........................................................................................44
6.16 Affiliates...................................................................................45
6.17 Financial Contracts..........................................................................45
6.18 Additional Covenants.........................................................................45
6.19 Financial Covenants..........................................................................45
6.19.1 Consolidated Fixed Charge Coverage Ratio............................................45
6.19.2 Leverage Ratio......................................................................45
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6.19.3 Minimum Consolidated Net Worth......................................................45
6.20 Additional Security and Collateral...........................................................45
ARTICLE VII. DEFAULTS.....................................................................................46
ARTICLE VIII. ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES...............................................47
8.1 Acceleration; Facility LC Collateral Account.................................................47
8.2 Amendments...................................................................................48
8.3 Preservation of Rights.......................................................................49
ARTICLE IX. GUARANTEE....................................................................................49
9.1 Guarantee....................................................................................49
9.2 No Subrogation...............................................................................50
9.3 Amendments, etc. with respect to the Obligations; Waiver of Rights...........................50
9.4 Guarantee Absolute and Unconditional.........................................................51
9.5 Reinstatement................................................................................51
9.6 Payments.....................................................................................51
ARTICLE X. GENERAL PROVISIONS...........................................................................52
10.1 Survival of Representations..................................................................52
10.2 Governmental Regulation......................................................................52
10.3 Headings.....................................................................................52
10.4 Entire Agreement.............................................................................52
10.5 Several Obligations; Benefits of this Agreement..............................................52
10.6 Expenses; Indemnification....................................................................52
10.7 Numbers of Documents.........................................................................53
10.8 Accounting...................................................................................53
10.9 Severability of Provisions...................................................................53
10.10 Nonliability of Lenders......................................................................53
10.11 Confidentiality..............................................................................53
10.12 Nonreliance.................................................................................53
ARTICLE XI. THE AGENT....................................................................................54
11.1 Appointment; Nature of Relationship..........................................................54
11.2 Powers.......................................................................................54
11.3 General Immunity.............................................................................54
11.4 No Responsibility for Loans, Recitals, etc...................................................54
11.5 Action on Instructions of Lenders............................................................55
11.6 Employment of Agents and Counsel.............................................................55
11.7 Reliance on Documents; Counsel...............................................................55
11.8 Agent's Reimbursement and Indemnification....................................................55
11.9 Notice of Default............................................................................55
11.10 Rights as a Lender...........................................................................56
11.11 Lender Credit Decision.......................................................................56
11.12 Successor Agent..............................................................................56
11.13 Agent's Fee..................................................................................57
11.14 Delegation to Affiliates.....................................................................57
ARTICLE XII. SETOFF; RATABLE PAYMENTS.....................................................................57
12.1 Setoff ......................................................................................57
12.2 Ratable Payments.............................................................................57
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ARTICLE XIII. BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS............................................57
13.1 Successors and Assigns.......................................................................57
13.2 Participations...............................................................................58
13.2.1. Permitted Participants; Effect......................................................58
13.2.2. Voting Rights.......................................................................58
13.2.3. Benefit of Setoff...................................................................58
13.3 Assignments..................................................................................58
13.3.1 Permitted Assignments...............................................................58
13.3.2. Effect; Effective Date..............................................................59
13.4 Dissemination of Information.................................................................59
13.5 Tax Treatment................................................................................59
ARTICLE XIV. NOTICES......................................................................................60
14.1 Notices......................................................................................60
14.2 Change of Address............................................................................60
ARTICLE XV. COUNTERPARTS.................................................................................60
ARTICLE XVI. CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.................................60
16.1 CHOICE OF LAW................................................................................60
16.2 WAIVER OF JURY TRIAL.........................................................................60
16.3 Submission To Jurisdiction; Waivers..........................................................60
16.4 Acknowledgments..............................................................................61
16.5 Power of Attorney............................................................................61
16.6 Judgment.....................................................................................62
SCHEDULES
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Pricing Schedule
Schedule 1.1 Commitments
Schedule 1.2 Eurocurrency Payment Office and Lending Installations
Schedule 5.7 Litigation
Schedule 5.8 Subsidiaries
Schedule 6.11 Indebtedness
Schedule 6.14 Investments
Schedule 6.15 Liens
EXHIBITS
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Exhibit A Pledge and Security Agreement
Exhibit B Promissory Note
Exhibit C Opinion
Exhibit D Transfer Instructions
Exhibit E Compliance Certificate
Exhibit F Assignment Agreement
Exhibit G Canadian Borrower Opinion
Exhibit H Collateral Sharing Agreement
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CREDIT AGREEMENT
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THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of June 9, 2000,
is among Corrpro Companies, Inc. (the "Company"), CSI Coating Systems Inc. (the
"Canadian Borrower" and together with the Company, the "Borrowers"), the Lenders
and Bank One, Michigan, formerly NBD Bank, as LC Issuer and as Agent.
RECITAL
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The Company, certain of its foreign subsidiaries, the Lenders and Bank
One, Michigan, as Agent, are parties to a Credit Agreement dated as of March 30,
1999 (as amended, the "Existing Credit Agreement"), and the parties hereto
desire to amend and restate the Existing Credit Agreement as set forth herein.
The parties hereto agree to amend and restate the Existing Credit
Agreement in its entirety as follows:
ARTICLE I.
DEFINITIONS
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1.1 DEFINITIONS. As used in this Agreement:
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Company or any of its Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any firm, corporation or limited liability
company, or division thereof, whether through purchase of assets, merger or
otherwise or (ii) directly or indirectly acquires (in one transaction or as the
most recent transaction in a series of related transactions) at least a majority
(in number of votes) of the securities of a corporation which have ordinary
voting power for the election of directors (other than securities having such
power only by reason of the happening of a contingency) or a majority (by
percentage or voting power) of the outstanding ownership interests of a
partnership or limited liability company.
"Adjusted EBITDA" means, with respect to the Company on any date,
EBITDA of the Company and its Consolidated Subsidiaries as of such date adjusted
to add back unusual charges not in excess of $2,000,000 recorded during the
fiscal quarter ended March 31, 2000 relating to legal fees or a reserve
established therefor and the discontinuance of certain product lines of the
Company.
"Advance" means a borrowing hereunder (i) made by the Lenders on the
same Borrowing Date, or (ii) converted or continued by the Lenders on the same
date of conversion or continuation, consisting, in either case, of the aggregate
amount of the several Loans of the same Type and, in the case of Eurocurrency
Loans, in the same Agreed Currency and for the same Interest Period.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 10% or
more of any class of voting securities (or other ownership interests) of the
controlled Person or possesses, directly or indirectly, the power to direct or
cause the direction of the
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management or policies of the controlled Person, whether through ownership of
stock, by contract or otherwise.
"Agent" means Bank One, Michigan in its capacity as contractual
representative of the Lenders pursuant to Article X, and not in its individual
capacity as a Lender, and any successor Agent appointed pursuant to Article X.
"Agreed Currencies" means Dollars and Canadian Dollars.
"Aggregate Canadian Commitments" means the aggregate amount, stated in
Canadian Dollars, of the Canadian Commitments of all of the Canadian Lenders.
"Aggregate Canadian Outstandings" means at any date of determination
with respect to any Canadian Lender, the sum of the aggregate unpaid principal
amount of such Lender's Canadian Revolving Credit Loans on such date and the
amount of such Lender's Pro Rata Share of the Canadian Facility Letter of Credit
Obligations, both stated in Canadian Dollars.
"Aggregate Commitments" means the aggregate of the Commitments of all
of the Lenders, as reduced from time to time pursuant to the terms hereof.
"Aggregate Total Outstandings" means as at any date of determination
with respect to any Lender, the sum of the U. S. Dollar Equivalent on such date
of the aggregate unpaid principal amount of such Lender's Revolving Credit Loans
on such date and the U. S. Dollar Equivalent on such date of the amount of such
Lender's Pro Rata Share of the Facility Letter of Credit Obligations and Swing
Loans on such date.
"Aggregate U.S. Commitments" means the aggregate amount in U.S. Dollars
of the U.S. Commitments of all of the Lenders.
"Aggregate U.S. Outstandings" means as at any date of determination
with respect to any Lender, the sum of the aggregate unpaid principal amount of
such Lender's U.S. Revolving Credit Loans on such date and the amount of such
Lender's Pro Rata Share of the U.S. Facility Letter of Credit Obligations and
Swing Loans to the Company on such date, both stated in U.S. Dollars.
"Agreement" means this credit agreement, as it may be amended or
modified and in effect from time to time.
"Agreement Accounting Principles" means generally accepted accounting
principles as in effect from time to time, applied in a manner consistent with
that used in preparing the financial statements referred to in Section 5.4.
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (i) the Prime Rate for such day and (ii) the sum of the
Federal Funds Effective Rate for such day plus 1% per annum.
"Applicable Facility Fee Rate" means, at any time, the percentage rate
per annum at which facility fees are accruing on the Aggregate Commitments
(without regard to usage) at such time as set forth in the Pricing Schedule.
"Applicable Facility LC Rate" means, at any time, the percentage rate
per annum set forth in the Pricing Schedule at which fees will be charged on
Facility LCs at such time.
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"Applicable Margin" means, with respect to Advances of any Type at any
time, the percentage rate per annum which is applicable at such time with
respect to Advances of such Type as set forth in the Pricing Schedule.
"Arranger" means Banc One Capital Markets, Inc., formerly First Chicago
Capital Markets, Inc., a Delaware corporation, and its successors.
"Article" means an article of this Agreement unless another document is
specifically referenced.
"Authorized Officer" means, with respect to any Borrower, any of the
chief executive officer, chief financial officer, vice-president/corporate
controller, the treasurer of such Borrower or any Person designated by any of
the foregoing in writing to the Agent from time to time to act on behalf of such
Borrower, in each case, acting singly.
"Borrowers" is defined in the preamble hereto.
"Borrowing Base" means, as of any date, the sum, based on the U.S.
Dollar Equivalent thereof, of (a) an amount equal to 75% of the amount of
Eligible Accounts Receivable, plus (b) an amount equal to 40% of the amount of
Eligible Inventory.
"Borrowing Base Certificate" for any date shall mean an appropriately
completed report of the Borrowers setting forth the Borrowing Base as of such
date, certified as true and correct as of such date by a duly Authorized Officer
of the Company in form and substance satisfactory to the Agent.
"Borrowing Date" means a date on which an Advance is made hereunder.
"Business Day" means (i) with respect to any borrowing, payment or rate
selection of Eurocurrency Advances, a day (other than a Saturday or Sunday) on
which banks generally are open in Detroit, Chicago and New York for the conduct
of substantially all of their commercial lending activities and on which
dealings in Dollars and the other Agreed Currencies are carried on in the London
interbank market, and (ii) for all other purposes, a day (other than a Saturday
or Sunday) on which banks generally are open in Detroit, Chicago and New York
for the conduct of substantially all of their commercial lending activities.
"Canada" shall mean the Dominion of Canada.
"Canadian Advance" means a borrowing hereunder (or continuation or a
conversion thereof) consisting of the several Canadian Revolving Credit Loans
made on the same Borrowing Date (or date of conversion or continuation) by the
Lenders to the Canadian Borrower for the same Interest Period.
"Canadian Borrower" means CSI Coating Systems Inc., a corporation
organized under the laws of the Province of Alberta.
"Canadian Borrower Opinion" means a legal opinion of counsel to the
Canadian Borrower addressed to the Agent and the Lenders concluding that the
Canadian Borrower and the Loan Documents to which it is a party substantially
comply with the matters listed on EXHIBIT G, with such assumptions,
qualifications and deviations therefrom as the Agent shall approve (such
approval not to be unreasonably withheld).
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"Canadian Commitment" means, as to any Lender at any time, its
obligation to make Loans to the Canadian Borrower under Section 2.1.2 in an
aggregate amount not to exceed at any time outstanding the Equivalent Amount in
Canadian Dollars of the Dollar amount set forth opposite such Lender's name in
Schedule 1.1 under the heading "Canadian Commitment" or as otherwise established
pursuant to Section 13.3, as such amount may be reduced from time to time
pursuant to Sections 2.4, 13.3 and the other applicable provisions hereof.
"Canadian Dollars" and "CAD$" shall mean the lawful currency of Canada.
"Canadian Facility Letter of Credit" means any Facility Letter of
Credit for the account of the Canadian Borrower.
"Canadian Facility Letter of Credit Obligations" means Facility Letter
of Credit Obligations with respect to Canadian Facility Letters of Credit.
"Canadian Lender" means any Lender which has a Canadian Commitment.
"Canadian Revolving Credit Loans" means Loans made to the Canadian
Borrower under Section 2.1.2.
"Capital Expenditures" means, for any Person and without duplication,
any expenditures for any purchase or other acquisition by such Person of any
asset which would be classified as property, plant or equipment on a balance
sheet of such Person prepared in accordance with Agreement Accounting
Principles.
"Capitalized Lease" of a Person means any lease of Property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Cash Equivalent Investments" means (i) short-term obligations of, or
fully guaranteed by, the United States of America, (ii) commercial paper rated
A-1 or better by S&P or P-1 or better by Moody's, (iii) demand deposit accounts
maintained in the ordinary course of business, and (iv) certificates of deposit
issued by and time deposits with commercial banks (whether domestic or foreign)
having capital and surplus in excess of $100,000,000; provided in each case that
the same provides for payment of both principal and interest (and not principal
alone or interest alone) and is not subject to any contingency regarding the
payment of principal or interest.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Collateral" means all property and interests in property and proceeds
thereof now owned or hereafter acquired by the Borrowers or any Guarantor in or
upon which a Lien now or hereafter exists in favor of the Lenders, or the Agent
or the Collateral Agent on behalf of the Lenders, whether under this Agreement,
under the Collateral Documents or under any other documents executed by any such
Person and delivered to the Agent, the Collateral Agent or the Lenders.
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"Collateral Agent" means Bank One, Michigan, in its capacity as
collateral agent under the Collateral Documents.
"Collateral Documents" means, collectively, the Security Agreements,
the Mortgages, the Guaranties, and all other security agreements, mortgages,
deeds of trust, patent and trademark assignments, lease assignments, guarantees
and other similar agreements between any Loan Party and the Lenders, the Agent
or the Collateral Agent for the benefit of the Lenders, now or hereafter
delivered to the Lenders, the Agent or the Collateral Agent pursuant to or in
connection with the transactions contemplated hereby, and all financing
statements (or comparable documents now or hereafter filed in accordance with
the UCC or comparable law) against any Loan Party as debtor in favor of the
Lenders, the Agent or the Collateral Agent for the benefit of the Lenders as
secured party, and (b) all amendments, restatements, supplements, modifications,
renewals, replacements, consolidations, substitutions and extensions of any of
the foregoing.
"Collateral Shortfall Amount" is defined in Section 8.1.
"Commitment" means, for each Lender, such Lender's U.S. Commitment and
Canadian Commitment, and "Commitments" means the aggregate of all of the
Lenders' Commitments.
"Consolidated" means, when used with reference to any financial term in
this Agreement, the aggregate for the Company and its Subsidiaries of the
amounts signified by such term for all such persons determined on a consolidated
basis in accordance with Agreement Accounting Principles.
"Consolidated Capital Expenditures" means, with reference to any
period, the Capital Expenditures of the Company and its Subsidiaries calculated
on a consolidated basis for such period.
"Consolidated Indebtedness" means at any time the Indebtedness of the
Company and its Subsidiaries calculated on a consolidated basis as of such time.
"Consolidated Rentals" means, with reference to any period, the Rentals
of the Company and its Subsidiaries calculated on a consolidated basis for such
period.
"Contingent Obligation" of a Person means any agreement, undertaking or
arrangement by which such Person assumes, guarantees, endorses, contingently
agrees to purchase or provide funds for the payment of, or otherwise becomes or
is contingently liable upon, the obligation or liability of any other Person, or
agrees to maintain the net worth or working capital or other financial condition
of any other Person, or otherwise assures any creditor of such other Person
against loss, including, without limitation, any take-or-pay contract. The
amount of any Contingent Obligation shall be equal to the outstanding principal
amount of the obligation guaranteed or supported or such lesser amount to which
the maximum exposure of the Person becoming contingently liable shall have been
specifically limited.
"Conversion/Continuation Notice" is defined in Section 2.9.
"Controlled Group" means all members of a controlled group of
corporations or other business entities and all trades or businesses (whether or
not incorporated) under common control which, together with the Borrower or any
of its Subsidiaries, are treated as a single employer under Section 414 of the
Code.
"Credit Extension" means the making of an Advance or the issuance of a
Facility LC hereunder.
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"Credit Extension Date" means the Borrowing Date for an Advance or the
issuance date for a Facility LC.
"Default" means an event described in Article VII.
"Defaulting Lender" shall mean any Lender that fails to make available
to the Agent such Lender's Loans required to be made hereunder or shall have not
made a payment required to be made to the Agent hereunder. Once a Lender becomes
a Defaulting Lender, such Lender shall continue as a Defaulting Lender until
such time as such Defaulting Lender makes available to the Agent the amount of
such Defaulting Lender's Loans and all other amounts required to be paid to the
Agent pursuant to this Agreement.
"Dollars" and "$" shall mean the lawful currency of the United States
of America.
"EBITDA" means, with respect to any Person, the Net Income of such
Person plus, to the extent deducted from revenues in determining Net Income, (i)
Interest Expense, (ii) expense for taxes paid or accrued, (iii) depreciation,
(iv) amortization and (v) extraordinary losses incurred other than in the
ordinary course of business, minus, to the extent included in Net Income,
extraordinary gains realized other than in the ordinary course of business.
"Effective Date" shall mean the date on which each of the conditions
precedent set forth in Section 4.1 have been satisfied, or such earlier date as
the Lenders and the Agent shall have agreed.
"Eligible Accounts Receivable" means, as of any date, those accounts
receivable of the Company and its Subsidiaries, on a consolidated basis and
based on the U.S. Dollar Equivalent thereof, valued at the face amount thereof
less, without duplication, such reserves as may be established by the Company
and its Subsidiary on their books and records and less such reserves as the
Agent elects to establish in its reasonable credit judgment.
"Eligible Inventory" means, as of any date, that inventory (including
raw materials, work in process and finished goods) of the Company and its
Subsidiaries, on a consolidated basis and based on the U.S. Dollar Equivalent
thereof, less, without duplication, such reserves as may be established by the
Company and its Subsidiaries on their books and records and less such reserves
as the Agent elects to establish in its reasonable credit judgment; but shall
not include any such inventory (a) that does not constitute inventory readily
salable or usable in the business of the Borrower or any Subsidiary or (b) that
for any other reason is at any time deemed by the Agent to be ineligible in its
reasonable credit judgment, provided, however, that Eligible Inventory shall
include raw materials or goods that have been shipped to the Company or a
Subsidiary and financed by the issuance of an import letter of credit for the
account of the Company or a Subsidiary.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating to
(i) the protection of the environment, (ii) the effect of the environment on
human health, (iii) emissions, discharges or releases of pollutants,
contaminants, hazardous substances or wastes into surface water, ground water or
land, or (iv) the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of pollutants, contaminants, hazardous
substances or wastes or the clean-up or other remediation thereof.
"Equivalent Amount" of any currency with respect to any amount of
Dollars at any date shall mean the equivalent in such currency of such amount of
Dollars, calculated on the basis of the
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arithmetical mean of the buy and sell spot rates of exchange of the Agent for
such other currency at 11:00 a.m., London time, on the date on or as of which
such amount is to be determined.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"Eurocurrency Advance" means an Advance which bears interest at the
applicable Eurocurrency Rate.
"Eurocurrency Loan" means a Loan which bears interest at the applicable
Eurocurrency Rate.
"Eurocurrency Payment Office" of the Agent shall mean, for each of the
Agreed Currencies, the office, branch, affiliate or correspondent bank of the
Agent specified as the "Eurocurrency Payment Office" for such currency in
Schedule 1.2 hereto or such other office, branch, affiliate or correspondent
bank of the Agent as it may from time to time specify to the Borrower and each
Lender as its Eurocurrency Payment Office.
"Eurocurrency Rate" means, with respect to a Eurocurrency Advance for
the relevant Interest Period, the sum of (i) the quotient of (a) the
Eurocurrency Reference Rate applicable to such Interest Period, divided by (b)
one minus the Reserve Requirement (expressed as a decimal) applicable to such
Interest Period, plus (ii) the Applicable Margin.
"Eurocurrency Reference Rate" means, with respect to a Eurocurrency
Advance for the relevant Interest Period, (i) with respect to any Eurocurrency
Advance denominated in Canadian Dollars, the rate quoted to the Borrower
requesting such loan by the Canadian Lender at approximately 11:00 a.m. (Detroit
time) two Business Days prior to the first day of such Interest Period as the
current estimated cost to the Canadian Lender, expressed as an annual rate of
interest, of funding short term loans for the period in an aggregate amount
comparable to the amount of such loan to be made by the Canadian Lender, as
conclusively determined by the Canadian Lender, and (ii) with respect to any
other Eurocurrency Advance, the rate determined by the Agent to be the rate at
which Bank One, Michigan or any of its Affiliates, offers to place deposits in
the applicable Agreed Currency with first-class banks in the London interbank
market at approximately 11:00 a.m. (London time) two Business Days prior to the
first day of such Interest Period, in the approximate amount of Bank One,
Michigan's relevant Eurocurrency Loan and having a maturity equal to such
Interest Period, plus, with respect to any Loan denominated in British Pounds
Sterling, the Cost Rate.
"Excluded Taxes" means, in the case of each Lender or applicable
Lending Installation and the Agent, taxes imposed on its overall net income, and
franchise taxes imposed on it, by (i) the jurisdiction under the laws of which
such Lender or the Agent is incorporated or organized or (ii) the jurisdiction
in which the Agent's or such Lender's principal executive office or such
Lender's applicable Lending Installation is located.
"Exhibit" refers to an exhibit to this Agreement, unless another
document is specifically referenced.
"Existing Credit Agreement" is defined in the recitals hereto.
"Facility LC" or "Facility Letter of Credit" means a Letter of Credit
issued by the LC Issuer pursuant to Section 2.15.
"Facility LC Application" is defined in Section 2.15.3.
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"Facility LC Collateral Account" is defined in Section 2.15.11.
"Facility Letter of Credit Obligations" means, at any time, the sum,
without duplication, of (i) the aggregate undrawn stated amount under all
Facility LCs outstanding at such time plus (ii) the aggregate unpaid amount at
such time of all Reimbursement Obligations.
"Facility Termination Date" means April 30, 2002, or any earlier date
on which the Aggregate Commitment is reduced to zero or otherwise terminated
pursuant to the terms hereof
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10:00 a.m. (Detroit
time) on such day on such transactions received by the Agent from three Federal
funds brokers of recognized standing selected by the Agent in its sole
discretion.
"Financial Contract" of a Person means (i) any exchange-traded or
over-the-counter futures, forward, swap or option contract or other financial
instrument with similar characteristics, or (ii) any Rate Hedging Agreement.
"Fixed Charge Coverage Ratio" means, with respect to any Person, as of
the last day of any fiscal quarter of such Person, the ratio of (a) Adjusted
EBITDA of such Person, plus Rentals paid or payable by such Person, minus
Capital Expenditures of such Person, to (b) Fixed Charges of such Person, in
each case as calculated for the four consecutive fiscal quarters then ending,
all as determined in accordance with Agreement Accounting Principles.
"Fixed Charges" means, for any period and with respect to any Person,
the sum, without duplication, of (a) Interest Expense of such Person, plus (b)
all payments of principal and other sums required to be paid during such period
by such Person with respect to Indebtedness of such Person, plus (c) Rentals
paid or payable during such period by such Person, plus (d) all dividends,
distributions and other obligations paid with respect to any class of such
Person's Capital Stock or any dividend, payment or distribution paid in
connection with the redemption, purchase, retirement or other acquisition,
directly or indirectly, of any shares of such Person's Capital Stock.
"Floating Rate" means, for any day, a rate per annum equal to (i) the
Alternate Base Rate for such day plus (ii) the Applicable Margin, in each case
changing when and as the Alternate Base Rate changes.
"Floating Rate Advance" means an Advance which bears interest at the
Floating Rate.
"Floating Rate Loan" means a Loan which bears interest at the Floating
Rate.
"Foreign Subsidiary" means each Subsidiary organized under the laws of
a jurisdiction outside of the United States.
"Guarantor" means, with respect to the Obligations of the Canadian
Borrower, the Company, and with respect to the Obligations, each Subsidiary
Guarantor executing a Subsidiary Guaranty, and any other Person executing a
Guaranty from time to time.
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"Guaranty" means that certain guarantee contained in Article IX and any
other guarantee entered into in connection with this Agreement from time to
time, including a Subsidiary Guaranty.
"Indebtedness" of a Person means such Person's (i) obligations for
borrowed money, (ii) obligations representing the deferred purchase price of
Property or services (other than accounts payable arising in the ordinary course
of such Person's business payable on terms customary in the trade and other than
any earn-out or other contingent obligations incurred by such Person in
connection with any Acquisition), (iii) obligations, whether or not assumed,
secured by Liens or payable out of the proceeds or production from Property now
or hereafter owned or acquired by such Person, (iv) obligations which are
evidenced by notes, acceptances, or other instruments, (v) obligations of such
Person to purchase securities or other Property arising out of or in connection
with the sale of the same or substantially similar securities or Property, (vi)
Capitalized Lease Obligations, (vii) all obligations in respect of Letters of
Credit, whether drawn or undrawn, contingent or otherwise, (viii) any other
obligation for borrowed money or other financial accommodation which in
accordance with Agreement Accounting Principles would be shown as a liability on
the consolidated balance sheet of such Person, (ix) all other indebtedness,
obligations and liabilities incurred in connection with any asset
securitizations, regardless of whether such indebtedness, obligations or other
liabilities are recourse or non recourse to such Person and regardless of
whether such indebtedness, obligations or other liabilities are required to be
shown as a liability on the consolidated balance sheet of such Person in
accordance with Agreement Accounting Principles, and (x) Contingent Obligations
with respect to any of the foregoing.
"Interest Coverage Ratio" means
"Interest Expense" means, with respect to any Person and with reference
to any period, the interest expense of such Person.
"Interest Period" means, with respect to a Eurocurrency Advance, a
period of one, two, three or six months commencing on a Business Day selected by
the Borrower pursuant to this Agreement. Such Interest Period shall end on the
day which corresponds numerically to such date one, two, three or six months
thereafter, provided, however, that if there is no such numerically
corresponding day in such next, second, third or sixth succeeding month, such
Interest Period shall end on the last Business Day of such next, second, third
or sixth succeeding month. If an Interest Period would otherwise end on a day
which is not a Business Day, such Interest Period shall end on the next
succeeding Business Day, provided, however, that if said next succeeding
Business Day falls in a new calendar month, such Interest Period shall end on
the immediately preceding Business Day.
"Investment" of a Person means any loan, advance (other than
commission, travel and similar advances to officers and employees made in the
ordinary course of business), extension of credit (other than accounts
receivable arising in the ordinary course of business on terms customary in the
trade) or contribution of capital by such Person; stocks, bonds, mutual funds,
partnership interests, notes, debentures or other securities owned by such
Person; any deposit accounts and certificate of deposit owned by such Person;
and structured notes, derivative financial instruments and other similar
instruments or contracts owned by such Person.
"LC Issuer" means Bank One, Michigan (or any Lending Installation of
Bank One, Michigan designated by Bank One, Michigan) in its capacity as issuer
of Facility LCs hereunder, or any successor LC Issuer hereunder.
"Lenders" means the lending institutions listed on the signature pages
of this Agreement and their respective successors and assigns.
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"Lending Installation" means, with respect to a Lender, the LC Issuer
or the Agent, the office, branch, subsidiary or affiliate of such Lender, the LC
Issuer or the Agent with respect to each Agreed Currency listed on Schedule 1.2
or the administrative information sheets provided to the Agent in connection
herewith or otherwise selected by the Lender, the LC Issuer or the Agent.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
"Leverage Ratio" means, as of any date of calculation, the ratio of (i)
Consolidated Total Debt outstanding on such date to (ii) Adjusted EBITDA for the
Company's then most-recently ended four fiscal quarters. To the extent
Indebtedness is being incurred concurrently with an Acquisition, then Adjusted
EBITDA shall be adjusted on a pro forma basis as if such Acquisition had
occurred at the beginning of such four fiscal quarter period.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other title retention
agreement).
"Loan" means, with respect to a Lender, such Lender's Revolving Credit
Loans and, with respect to the Agent, Swing Loans.
"Loan Documents" means this Agreement, the Facility LC Applications and
any Notes issued pursuant to Section 2.13, the Collateral Documents, the
Subsidiary Guaranties and the other agreements, certificates and other documents
contemplated hereby or executed or delivered pursuant hereto by any Loan Party
at any time in favor of the Agent, the Collateral Agent, the LC Issuer or any
Lender.
"Loan Party" means each Borrower and each Guarantor.
"Material Adverse Effect" means a material adverse effect on (i) the
business, Property, condition (financial or otherwise), results of operations,
or prospects of the Company and its Subsidiaries taken as a whole, (ii) the
ability of any Borrower to perform its obligations under the Loan Documents to
which it is a party, or (iii) the validity or enforceability of any of the Loan
Documents or the rights or remedies of the Agent, the LC Issuer or the Lenders
thereunder.
"Material Indebtedness" is defined in Section 7.5.
"Modify" and "Modification" are defined in Section 2.19.1.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Mortgage" means each mortgage, deed of trust or similar document
entered into by the Company, the Canadian Borrower or any Guarantor granting a
Lien on real property to the Collateral Agent for the benefit of the Lenders and
the Noteholders pursuant to this Agreement in the case of the Company or any
Guarantor, and for the benefit of the Canadian Lenders in the case of the
Canadian Borrower, substantially in the forms as approved by the Collateral
Agent, as amended or modified from time to time.
"Mortgaged Property" means all property subject to a Lien pursuant to a
Mortgage.
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"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Borrower or any
member of the Controlled Group is a party to which more than one employer is
obligated to make contributions.
"Net Income" means, with respect to any Person and with reference to
any period, the net income (or loss) of such Person from continuing operations
calculated for such period.
"Net Worth" means, with respect to any Person, at any time the
consolidated stockholders' equity of such Person, without giving effect to any
foreign currency translation adjustment account.
"Non-U.S. Borrower" is defined in Section 3.1(b).
"Non-U.S. Lender" is defined in Section 3.5(iv).
"Note" means any promissory note issued at the request of a Lender
pursuant to this Agreement.
"Noteholder Obligations" means any and all existing and future
indebtedness, obligation and liability of every kind nature and character,
direct or indirect, absolute or contingent (including all renewals, extensions
and modifications thereof and all fees, costs and expenses incurred by the
Noteholders or the Collateral Agent in connection with the preparation,
administration, collection or enforcement thereof) of the Borrowers to any
Noteholder or any branch, subsidiary or affiliate thereof, arising under or
pursuant to this Security Agreement, the Senior Note Agreement and any Senior
Note now or hereafter issued under the Senior Note Agreement.
"Noteholders" means the holders from time to time of the Senior Notes
issued pursuant to the Senior Note Agreement.
"Notice of Assignment" is defined in Section 13.3.2.
"Obligations" means collectively, the unpaid principal of and interest
on the Loans, all obligations and liabilities pursuant to the Facility Letters
of Credit, all Rate Hedging Obligations and all other obligations and
liabilities of each Borrower to the Agent, the LC Issuer or the Lenders
(including Affiliates of such Lenders in the case of Rate Hedging obligations)
under this Agreement and the other Loan Documents (including, without
limitation, interest accruing at the then applicable rate provided in this
Agreement or any other applicable Loan Document after the maturity of the Loans
and interest accruing at the then applicable rate provided in this Agreement or
any other applicable Loan Document after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to any Borrower whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding), whether direct or
indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with, this
Agreement, the other Loan Documents or any other document made, delivered or
given in connection therewith, in each case whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs, expenses or
otherwise (including, without limitation, all reasonable fees and disbursements
of counsel to the Agent, the LC Issuer or to the Lenders that are required to be
paid by any Borrower pursuant to the terms of this Agreement or any other Loan
Document).
"Operating Lease" of a Person means any lease of Property (other than a
Capitalized Lease) by such Person as lessee which has an original term
(including any required renewals and any renewals effective at the option of the
lessor) of one year or more.
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"Other Bank Obligations" means any and all existing and future
indebtedness, obligations and liabilities of every kind, nature and character,
direct or indirect, absolute or contingent (including all renewals, extensions
and modifications thereof and all fees, costs and expenses incurred by the
Lenders in connection with the preparation, administration, collection or
enforcement thereof, and including the undrawn amount of any letters of credit
outstanding for the account of the Company or any of its Subsidiaries), of the
Company or any of its Subsidiaries to any Lender or any branch, subsidiary or
affiliate thereof, which may arise under, out of, or in connection with, any
loans, letters of credit, bank guarantees or other extensions of credit or
financial accommodations denominated in a currency other than Dollars, other
than the Obligations or the Rate Hedging Obligations
"Other Taxes" is defined in Section 3.5(ii).
"Outstanding Credit Exposure" means, as to any Lender at any time, the
sum of (i) the aggregate principal amount of its Loans outstanding at such time,
plus (ii) an amount equal to its Pro Rata Share of the Facility Letter of Credit
Obligations at such time, plus (iii) an amount equal to its Pro Rata Share of
Swing Loans outstanding at such time.
"Participants" is defined in Section 13.2.1.
"Payment Date" means the last Business Day of each March, June,
September and December occurring after the Effective Date, commencing June 30,
2000.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Permitted Liens" has the meaning set forth in Section 6.15.
"Person" means any natural person, corporation, firm, joint venture,
partnership, limited liability company, association, enterprise, trust or other
entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
"Plan" means an employee pension benefit plan which is covered by Title
IV of ERISA or subject to the minimum funding standards under Section 412 of the
Code as to which the Borrower or any member of the Controlled Group may have any
liability.
"Pricing Schedule" means the Schedule attached hereto identified as
such.
"Prime Rate" means a rate per annum equal to the prime rate of interest
announced from time to time by Bank One, Michigan or its parent (which is not
necessarily the lowest rate charged to any customer), changing when and as said
prime rate changes.
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets owned,
leased or operated by such Person.
"Pro Rata Share" means, for each Lender, the ratio of such Lender's
Commitment (calculated using the U.S. Dollar Equivalent thereof) to the
Aggregate Commitment (calculated using the U.S. Dollar Equivalent thereof),
provided that (a) with respect to U.S. Revolving Credit Loans, U.S. Facility
Letters of Credit, Swing Loans made to the Company and facility fees with
respect to the U.S. Commitment, Pro Rata Share means, for each Lender, the ratio
such Lender's U.S. Commitment bears to the Aggregate U.S. Commitments, and (b)
with respect to Canadian Revolving Credit Loans, Canadian Facility Letters of
Credit, and facility fees with respect to the Canadian Commitment, Pro Rata
Share means, for each Lender, the ratio such Lender's Canadian Commitment bears
to the Aggregate Canadian Commitments.
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If at any time the Commitments have been terminated, the amount of any
Commitment for the purposes of this definition of "Pro Rata Share" only shall be
deemed equal to the amount of such Commitment immediately prior to its
termination.
"Purchasers" is defined in Section 13.3.1.
"Rate Hedging Agreement" means an agreement, device or arrangement
providing for payments which are related to fluctuations of interest rates,
exchange rates or forward rates, including, but not limited to,
dollar-denominated or cross-currency interest rate exchange agreements, forward
currency exchange agreements, interest rate cap or collar protection agreements,
forward rate currency or interest rate options, puts and warrants.
"Rate Hedging Obligations" of a Person means any and all obligations of
such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (i) any and all Rate
Hedging Agreements, and (ii) any and all cancellations, buy backs, reversals,
terminations or assignments of any Rate Hedging Agreement
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor thereto
or other regulation or official interpretation of said Board of Governors
relating to reserve requirements applicable to member banks of the Federal
Reserve System.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks for the purpose of purchasing or carrying margin
stocks applicable to member banks of the Federal Reserve System.
"Reimbursement Obligations" means, at any time, the aggregate of all
obligations of the Borrowers then outstanding under Section 2.15 to reimburse
the LC Issuer for amounts paid by the LC Issuer in respect of any one or more
drawings under Facility LCs.
"Rentals" of a Person means the aggregate fixed amounts payable by such
Person under any Operating Lease.
"Reportable Event" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC has by regulation waived
the requirement of Section 4043(a) of ERISA that it be notified within 30 days
of the occurrence of such event, provided, however, that a failure to meet the
minimum funding standard of Section 412 of the Code and of Section 302 of ERISA
shall be a Reportable Event regardless of the issuance of any such waiver of the
notice requirement in accordance with either Section 4043(a) of ERISA or Section
412(d) of the Code.
"Required Canadian Lenders" means (a) at any time prior to the
termination of the Canadian Commitments, Canadian Lenders holding not less than
51% of the Aggregate Canadian Commitments of all Canadian Lenders and (b) at any
time after the termination of the Canadian Commitments, Canadian Lenders whose
aggregate Canadian Revolving Credit Loans and Pro Rata Shares of Canadian
Facility Letters of Credit aggregate at least 51% of the Aggregate Canadian
Revolving Credit Loans of all Canadian Lenders and all Canadian Facility Letters
of Credit.
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"Required Lenders" means (a) at any time prior to the termination of
the Commitments, Lenders holding not less than 51% of the U. S. Dollar
Equivalent of the aggregate Commitments of all Lenders; and (b) at any time
after the termination of the Commitments, Lenders whose Aggregate Total
Outstandings aggregate at least 51% of the Aggregate Total Outstandings of all
Lenders.
"Required U.S. Lenders" means (a) at any time prior to the termination
of the U.S. Commitments, U.S. Lenders holding not less than 51% of the aggregate
U.S. Commitments of all U.S. Lenders and (b) at any time after the termination
of the U.S. Commitments, U.S. Lenders whose aggregate U.S. Loans and Pro Rata
Shares of U.S. Facility Letters of Credit aggregate at least 51% of the
Aggregate U.S. Loans of all U.S. Lenders and all U.S. Facility Letters of
Credit.
"Reserve Requirement" means, with respect to an Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on Eurocurrency
liabilities.
"Revolving Credit Loans" means, with respect to a Lender, such Lender's
loans made pursuant to Section 2.1.
"S&P" means Standard and Poor's Ratings Services, a division of The
McGraw Hill Companies, Inc.
"Sale and Leaseback Transaction" means any sale or other transfer of
Property by any Person with the intent to lease such Property as lessee.
"Schedule" refers to a specific schedule to this Agreement, unless
another document is specifically referenced.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Secured Obligations" means, collectively, (i) the Obligations, (ii)
all Rate Hedging Obligations of the Company or any of its Subsidiaries owing to
one or more Lenders or their Affiliates, (iii) the Other Bank Obligations, and
(iv) the Noteholder Obligations.
"Security Agreements" means the Pledge and Security Agreements granting
a first-priority security interest and lien on all personal property of the
Company and the Guarantors, and providing for the pledge by the Company of all
of the shares of capital stock of each Guarantor and 65% of the shares of
capital stock held by the Company of each first tier Significant Subsidiary that
is also a Foreign Subsidiary, to the Collateral Agent on behalf of the Lenders
and the Noteholders to secure the Secured Obligations substantially in the form
of Exhibit A attached hereto, or any similar agreement under the laws of any
foreign jurisdiction providing for the pledge of 65% of the shares of capital
stock of a Foreign Subsidiary, and the Personal Property Security Agreement
granting a first priority security interest and lien on all personal property of
the Canadian Borrower to the Collateral Agent on behalf of the Canadian Lenders.
"Senior Note Agreement" means the Note Purchase Agreement dated as of
January 21, 1998 between the Company and The Prudential Insurance Company of
America related to the $30,000,000 7.6% Senior Notes due January 15, 2008, as
amended or modified from time to time.
"Significant Subsidiary" means any Subsidiary identified as such on
Schedule 5.8 and any other Subsidiary or Subsidiaries of the Company if
considered in the aggregate as one Subsidiary, which would
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constitute (i) 10% or more of the Company's consolidated total assets; or (ii)
10% or more of the Company's consolidated revenues for the most recent four
fiscal quarters.
"Single Employer Plan" means a Plan maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower or any member of
the Controlled Group.
"Subordinated Indebtedness" of a Person means any Indebtedness of such
Person the payment of which is subordinated to payment of the Secured
Obligations to the written satisfaction of the Required Lenders in their
reasonable discretion.
"Subsidiary" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(ii) any partnership, limited liability company, association, joint venture or
similar business organization more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled.
Unless otherwise expressly provided, all references herein to a "Subsidiary"
shall mean a Subsidiary of the Company.
"Subsidiary Guaranty" means a Guaranty of the Obligations by each
Subsidiary of the Company that is not a Foreign Subsidiary or an inactive
Subsidiary, and "Subsidiary Guarantor" means each Subsidiary of the Company
executing a Subsidiary Guaranty.
"Substantial Portion" means, as of any date, with respect to the
Property of the Borrower and its Subsidiaries, Property which (i) represents
more than 10% of the consolidated assets of the Borrower and its Subsidiaries as
would be shown in the consolidated financial statements of the Borrower and its
Subsidiaries as of such date, or (ii) is responsible for more than 10% of the
consolidated net sales or of the consolidated net income of the Borrower and its
Subsidiaries as reflected in the financial statements referred to in clause (i)
above at the beginning of the twelve-month period ending with the month in which
such determination is made.
"Swing Loans" is defined in Section 2.16.
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and any and all liabilities with
respect to the foregoing, but excluding Excluded Taxes.
"Total Debt" as of any date, means all of the following for the Company
and its Subsidiaries on a Consolidated basis and without duplication: (i) all
debt for borrowed money and similar monetary obligations evidenced by bonds,
notes, debentures, Capitalized Lease Obligations or otherwise, including without
limitation obligations in respect of the deferred purchase price of properties
or assets, in each case whether direct or indirect; (ii) all liabilities secured
by any Lien existing on property owned or acquired subject thereto, whether or
not the liability secured thereby shall have been assumed; (iii) all
reimbursement obligations under outstanding letters of credit in respect of
drafts which have been presented and have not yet been paid and are not included
in clause (i) above, and (iv) all Contingent Obligations.
"Transferee" is defined in Section 13.4.
"Type" means, with respect to any Advance, its nature as a Floating
Rate Advance or a Eurocurrency Advance.
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"Unfunded Liabilities" means the amount (if any) by which the present
value of all vested and unvested accrued benefits under all Single Employer
Plans exceeds the fair market value of all such Plan assets allocable to such
benefits, all determined as of the then most recent valuation date for such
Plans using PBGC actuarial assumptions for single employer plan terminations.
"Unmatured Default" means an event which but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"U.S. Dollar Equivalent" means, on any date with respect to an amount
denominated in any currency other than U.S. Dollars, the equivalent in U.S.
Dollars of such amount determined at the Exchange Rate on the date of
determination of such equivalent.
"U.S. Commitment" means, as to any Lender at any time, its obligation
to make Revolving Credit Loans to the Company in Dollars in an aggregate amount
not to exceed at any time outstanding the U.S. Dollar amount set forth opposite
such Lender's name in Schedule 1.1 under the heading "U.S. Commitment" or as
otherwise established pursuant to Section 13.3, as such amount may be reduced
from time to time pursuant to Sections 2.4, 13.3 and the other applicable
provisions hereof.
"U.S. Facility Letter of Credit" means any Letter of Credit for the
account of the Company.
"U.S. Facility Letter of Credit Obligations" means Facility Letter of
Credit Obligations with respect to U.S. Facility Letters of Credit.
"U.S. Lender" means any Lender which has a U.S. Commitment.
"U.S. Revolving Credit Loans" means Revolving Credit Loans made to the
Company pursuant to Section 2.1.1.
"Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary all of
the outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (ii) any partnership, limited liability company,
association, joint venture or similar business organization 100% of the
ownership interests having ordinary voting power of which shall at the time be
so owned or controlled.
1.2 RULES OF CONSTRUCTION. The foregoing definitions shall be equally
applicable to both the singular and plural forms of the defined terms.
Notwithstanding anything herein, and in any financial statements of the Company
or in Agreement Accounting Principles to the contrary, for purposes of
calculating and determining compliance with the financial covenants in Section
6.19 and in connection with calculating the Applicable Facility Fee Rate, the
Applicable Facility LC Rate and the Applicable Margin under the Pricing
Schedule, any Acquisition made by the Company or any of its Subsidiaries,
including through mergers or consolidations and including any related financial
transactions, during the period for which such financial covenants were
calculated shall be deemed to have occurred on the first day of the relevant
period for which such financial covenants were calculated on a pro forma basis
consistent with standard industry practice and SEC guidelines.
ARTICLE II.
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THE CREDITS
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2.1 COMMITMENTS.
2.1.1 Subject to the terms of this Agreement, from and
including the Effective Date and prior to the Facility Termination Date, each
U.S. Lender severally agrees, on the terms and conditions set forth in this
Agreement, to make U.S. Revolving Credit Loans to the Company from time to time
so long as after giving effect thereto and to any concurrent repayment of Loans
(i) the Aggregate U.S. Outstandings of each U.S. Lender are equal to or less
than its U.S. Commitment and (ii) the Aggregate Total Outstandings of all
Lenders are equal to or less than the Borrowing Base. Subject to the terms of
this Agreement, the Company may borrow, repay and reborrow U.S. Revolving Credit
Loans at any time prior to the Facility Termination Date. The U.S. Revolving
Credit Loans may be Floating Rate Loans or Eurocurrency Loans, or a combination
thereof selected in accordance with Sections 2.3 and 2.7. The U.S. Commitments
to lend hereunder shall expire on the Facility Termination Date.
2.1.2 Subject to the terms of this Agreement, from and
including the Effective Date and prior to the Facility Termination Date, each
Canadian Lender severally agrees, on the terms and conditions set forth in this
Agreement, to make Canadian Revolving Credit Loans to the Canadian Borrower from
time to time so long as after giving effect thereto and to any concurrent
repayment of Loans (i) the Aggregate Canadian Outstandings of each Canadian
Lender are equal to or less than its Canadian Commitment and (ii) the Aggregate
Total Outstandings of all Lenders are equal to or less than the Borrowing Base.
Subject to the terms of this Agreement, the Canadian Borrower may borrow, repay
and reborrow Canadian Revolving Credit Loans at any time prior to the Facility
Termination Date. The Canadian Revolving Credit Loans will be Eurocurrency Loans
as selected in accordance with Sections 2.3 and 2.7. The Canadian Commitments to
lend hereunder shall expire on the Facility Termination Date.
2.2 REPAYMENT OF LOANS; EVIDENCE OF DEBT.
2.2.1 (a) The Company hereby unconditionally promises to pay
to the Agent for the account of each U.S. Lender in U.S. Dollars the then unpaid
principal amount of each U.S. Revolving Credit Loan of such Lender on the
Facility Termination Date and on such other dates and in such other amounts as
may be required from time to time pursuant to this Agreement. The Company hereby
further agrees to pay to the Agent for the account of each U.S. Lender interest
in U.S. Dollars on the unpaid principal amount of the U.S. Revolving Credit
Loans from time to time outstanding until payment thereof in full at the rates
per annum, and on the dates, set forth in Section 2.8.
(b) The Canadian Borrower hereby unconditionally
promises to pay to the Agent for the account of each Canadian Lender in Canadian
Dollars the then unpaid principal amount of each Canadian Revolving Credit Loan
of such Lender on the Facility Termination Date and on such other dates and in
such other amounts as may be required from time to time pursuant to this
Agreement. The Canadian Borrower hereby further agrees to pay to the Agent for
the account of each Canadian Lender interest in Canadian Dollars on the unpaid
principal amount of the Canadian Revolving Credit Loans from time to time
outstanding until payment thereof in full at the rates per annum, and on the
dates, set forth in Section 2.8.
(c) The Borrowers hereby unconditionally promise to
pay to the Agent for the account of each U.S. Lender and each Canadian Lender,
as may be required hereunder, an amount of the Aggregate Total Outstandings to
the extent that the Aggregate Total Outstandings of all Lenders exceed the
Borrowing Base at any time. If the Borrowers do not make the payment required
under this Section 2.2.1(c) at any time, the Agent or the Required Lenders may
require either the Company or the
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Canadian Borrower to pay such amount of the Aggregate Total Outstandings as may
be required to satisfy the requirements of this Section 2.2.1(c).
2.2.2 The books and records of the Agent and of each Lender
shall, to the extent permitted by applicable law, be prima facie evidence of the
existence and amounts of the obligations of the Borrowers therein recorded;
provided, however, that the failure of any Lender or the Agent to maintain any
such books and records or any error therein, shall not in any manner affect the
obligation of the Borrowers to repay (with applicable interest) the Loans made
to such Borrowers by such Lender in accordance with the terms of this Agreement.
2.2.3 The Borrowers agree that, upon the request to the Agent
by any Lender, the relevant Borrowers will execute and deliver to such Lender
promissory notes of each Borrower evidencing the Revolving Credit Loans of such
Lender, substantially in the form of EXHIBIT B with appropriate insertions as to
date, currency and principal amount (each, a "Revolving Credit Note") provided,
that the delivery of such Notes shall not be a condition precedent to the
Effective Date.
2.3 PROCEDURES FOR REVOLVING CREDIT BORROWING.
(a) The Company may borrow under the U.S. Commitments and the
Canadian Borrower may borrow under the Canadian Commitments, in each case from
time to time prior to the Facility Termination Date on any Business Day.
(b) The Company shall give the Agent irrevocable notice (which
notice must be received by the Agent prior to 12:00 p.m., Detroit time) (i)
three Business Days prior to the requested Borrowing Date, if all or any part of
the requested Revolving Credit Loans are to be initially Eurocurrency Loans, or
(ii) one Business Day prior to the requested Borrowing Date otherwise,
specifying in each case (w) the amount to be borrowed, (x) the requested
Borrowing Date, (y) whether the borrowing is to be of Eurocurrency Loans,
Floating Rate Loans or a combination thereof and (z) if the borrowing is to be
entirely or partly of Eurocurrency Loans, the amount of such Type of Loan and
the length of the initial Interest Periods therefor. Each borrowing under the
U.S. Commitments shall be in an amount equal to (A) in the case of Floating Rate
Loans, $100,000 or a whole multiple of $100,000 in excess thereof (or, if the
then aggregate available U.S. Commitments are less than $100,000, such lesser
amount) and (B) in the case of Eurocurrency Loans, $1,000,000 or a whole
multiple of $100,000 in excess thereof. Upon receipt of any such notice from the
Company, the Agent shall promptly notify each U.S. Lender thereof. Not later
than 11:00 a.m., Detroit time on each requested Borrowing Date each U.S. Lender
shall make an amount equal to its Pro Rata Share of the principal amount of the
Revolving Credit Loans requested to be made on such Borrowing Date available to
the Agent at its Detroit office specified in Section 14.1 in U.S. Dollars and in
immediately available funds. The Agent shall on such date credit the account of
the Company on the books of such office with the aggregate of the amounts made
available to the Agent by the U.S. Lenders and in like funds as received by the
Agent.
(c) The Canadian Borrower shall give the Agent irrevocable
notice (which notice must be received by the Agent prior to 12:00 p.m., local
time of the Agent's Canadian funding office three Business Days prior to the
requested Borrowing Date) specifying in each case (i) the amount to be borrowed,
(ii) the requested Borrowing Date and (iii) the length of the initial Interest
Period therefor. Each borrowing by the Canadian Borrower shall be in Canadian
Dollars. Upon receipt of any such notice from the Canadian Borrower, the Agent
shall promptly notify each Canadian Lender thereof. Not later than 2:00 p.m.,
local time of the Agent's Canadian funding office on the requested Borrowing
Date, each Canadian Lender shall make an amount equal to its Pro Rata Share of
the principal amount of such Canadian Revolving Credit Loans requested to be
made on such Borrowing Date available to the Agent at the Agent's Canadian
funding office specified by the Agent from time to time by notice to such
Canadian
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Lenders and in immediately available or other same day funds customarily used
for settlement in Canadian Dollars. The amounts made available by each such
Lender will then be made available to the Canadian Borrower in like funds as
received by the Agent.
2.4 TERMINATION OR REDUCTION OF COMMITMENTS. The Canadian Borrower may
permanently reduce the Canadian Commitments, in whole or in part, ratably among
the Canadian Lenders in integral multiples of CAD$1,000,000, and the Company may
permanently reduce the U.S. Commitments, in whole or in part, ratably among the
U.S. Lenders in integral multiples of $5,000,000, in each case upon at least
three Business Days' irrevocable written notice to the Agent, and which notice
shall specify the amount of any such reduction, provided, however, that the
Aggregate Canadian Commitments may not be reduced below the Aggregate Canadian
Outstandings of all Lenders and the Aggregate U.S. Commitments may not be
reduced below the Aggregate U.S. Outstandings of all Lenders. In addition, all
accrued facility fees shall be payable on the effective date of any termination
of the Commitments.
2.5 FACILITY AND AGENT FEES.
(a) Each Borrower agrees to pay to the Agent for the account
of each Lender a facility fee at the rate per annum equal to the Applicable
Facility Fee Rate set forth in the Pricing Schedule, on the average daily amount
of each Commitment of such Lender to such Borrower, whether used or unused, from
and including the Effective Date to but excluding the Facility Termination Date,
payable on each Payment Date hereafter and on the Facility Termination Date. The
facility fee payable in respect to each Commitment shall be payable in the
currency in which such Commitment is denominated.
(b) The Company agrees to pay to the Agent for its own
account, such other fees as agreed to in writing between the Company and the
Agent.
2.6 OPTIONAL AND MANDATORY PRINCIPAL PAYMENTS ON ALL LOANS.
2.6.1 The Company may at any time and from time to time prepay
Floating Rate Loans, in whole or in part, without penalty or premium, upon at
least one Business Day's irrevocable notice to the Agent, specifying the date
and amount of prepayment. If any such notice is given, the amount specified in
such notice shall be due and payable on the date specified therein. Partial
prepayment of Floating Rate Loans shall be in a minimum aggregate amount of
$100,000 or any integral multiple of $100,000 in excess thereof.
2.6.2 Each Borrower may at any time and from time to time
prepay, without premium or penalty (but together with payment of any amount
payable pursuant to Section 3.4), its Eurocurrency Loans and its Canadian
Revolving Credit Loans in whole or in part, upon at least three Business Days'
irrevocable notice to the Agent specifying the date and amount of prepayment.
Partial payments of Eurocurrency Loans shall be in a minimum aggregate amount of
$1,000,000 or any integral multiple of $100,000 in excess thereof. Partial
prepayments of Canadian Revolving Credit Loans shall be in a minimum aggregate
amount of CAD$1,000,000 or any integral multiple of CAD$100,000 in excess
thereof, or such lesser principal amount as may equal the outstanding Canadian
Revolving Credit Loans or such lesser amount as may be agreed to by the Canadian
Lenders.
2.6.3 (i) If the Aggregate Canadian Outstandings exceed the
Aggregate Canadian Commitments at any time the Canadian Borrower shall promptly
prepay the Aggregate Canadian Outstandings in the amount of such excess, and
(ii) if the Aggregate U.S. Outstandings exceed the Aggregate U.S. Commitments at
any time the Company shall promptly prepay the Aggregate U.S. Outstandings in
the amount of such excess.
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2.6.4 Each prepayment pursuant to this Section 2.6 and each
conversion pursuant to Section 2.7 shall be accompanied by accrued and unpaid
interest on the amount prepaid to the date of prepayment and any amounts payable
under Section 3.4 in connection with such payment.
2.6.5 Prepayments pursuant to this Section 2.6 shall be
applied as follows: (a) in the case of prepayments made by the Company, first to
prepay Floating Rate Loans and second to prepay Eurocurrency Loans then
outstanding in such order as the Company may direct and (b) in the case of
prepayments made by a Borrower of Canadian Revolving Credit Loans, to prepay
Canadian Revolving Credit Loans made to such Borrower in such order as the
Company may direct, provided that all prepayments on any Loans to a Borrower
shall be applied pro rata to the Loans owing by such Borrower.
2.6.6 All amounts prepaid may be reborrowed and successively
repaid and reborrowed, subject to the other terms and conditions in this
Agreement.
2.7. CONVERSION AND CONTINUATION OF OUTSTANDING ADVANCES.
2.7.1 ADVANCES. Floating Rate Advances shall continue as
Floating Rate Advances unless and until such Floating Rate Advances are
converted into Eurocurrency Advances. Each Eurocurrency Advance other than a
Canadian Advance shall continue as a Eurocurrency Advance until the end of the
then applicable Interest Period therefor, at which time such Eurocurrency
Advance shall be automatically converted into a Floating Rate Advance unless the
Company shall have given the Agent a Conversion/Continuation Notice requesting
that, at the end of such Interest Period, such Eurocurrency Advance either
continue as a Eurocurrency Advance for the same or another Interest Period or be
converted into a Floating Rate Advance. Subject to the terms hereof, the Company
may elect from time to time to convert all or any part of a Revolving Credit
Advance of any Type to the Company into any other Type or Types of Advance;
provided that any conversion of any Eurocurrency Advance shall be made on, and
only on, the last day of the Interest Period applicable thereto. The Company
shall give the Agent irrevocable notice (a "Conversion/ Continuation Notice") of
each conversion of an Advance or continuation of a Eurocurrency Advance not
later than 10:00 a.m. (Detroit time) at least one Business Day, in the case of a
conversion into a Floating Rate Advance, or three Business Days, in the case of
a conversion into or continuation of a Eurocurrency Advance, prior to the date
of the requested conversion or continuation, specifying:
(a) the requested date, which shall be a Business
Day, of such conversion or continuation,
(b) the aggregate amount and Type of the Revolving
Credit Advance which is to be converted or continued, and
(c) the amounts and Type(s) of Revolving Credit
Advance(s) into which such Advance is to be converted or continued and, in the
case of a conversion into or continuation of a Eurocurrency Advance, the
duration of the Interest Period applicable thereto.
2.7.2 CANADIAN ADVANCES. Any Canadian Advances may be
continued as such upon the expiration of the then current Interest Period with
respect thereto by the relevant Borrower giving the Agent at least three
Business Days' prior irrevocable notice of such election and specifying the
duration of the Interest Period applicable thereto, provided, that if the
relevant Borrower shall fail to give such notice, such Canadian Advance shall be
automatically continued for an Interest Period of one month provided that such
continuation would not extend the Interest Period beyond the Facility
Termination Date.
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2.8 INTEREST RATES, INTEREST PAYMENT DATES; INTEREST AND FEE BASIS.
(a) Each Floating Rate Loan shall bear interest on the
outstanding principal amount thereof, for each day from and including the date
such Loan is made or is converted from a Eurocurrency Rate Loan into a Floating
Rate Loan pursuant to Section 2.7 to but excluding the date it becomes due or is
converted into a Eurocurrency Rate Loan pursuant to Section 2.7 hereof, at a
rate per annum equal to the Floating Rate for such day. Each Eurocurrency Loan
shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurocurrency Rate determined for such
Interest Period. Notwithstanding the foregoing, all interest and fees shall
accrue on and after the Effective Date as set forth in this Agreement, and all
interest and fees for all periods prior to the Effective Date shall be
calculated and paid in accordance with the Existing Credit Agreement.
(b) Interest accrued on each Floating Rate Advance shall be
payable on each Payment Date, commencing with the first such date to occur after
the Effective Date and at maturity. Interest accrued on each Eurocurrency Rate
Advance shall be payable on the last day of its applicable Interest Period, on
any date on which the Eurocurrency Rate Advance is prepaid, whether by
acceleration or otherwise, and at maturity. Interest accrued on each
Eurocurrency Rate Advance having an Interest Period longer than three months
shall also be payable on the last day of each three-month interval during such
Interest Period.
(c) Interest shall be payable for the day an Advance is made
but not for the day of any payment on the amount paid if payment is received
prior to noon (local time) at the place of payment. If any payment of principal
of or interest on an Advance shall become due on a day which is not a Business
Day, except as otherwise provided in the definition of Interest Period, such
payment shall be made on the next succeeding Business Day and, in the case of a
principal payment, such extension of time shall be included in computing
interest in connection with such payment.
(d) All interest and fees shall be computed on the basis of
the actual number of days (including the first day but excluding the last day)
occurring during the period such interest or fee is payable over a year
comprised of 360 days, except for interest on Canadian Revolving Credit Loans
which shall be calculated for actual days elapsed on the basis of a 365 day year
or unless otherwise specified herein.
(e) Changes in the rate of interest on that portion of any
Advance maintained as a Floating Rate Advance will take effect simultaneously
with each change in the Alternate Base Rate. Each Eurocurrency Rate Advance
shall bear interest on the outstanding principal amount thereof from and
including the first day of the Interest Period applicable thereto to (but not
including) the last day of such Interest Period at the interest rate determined
as applicable to such Eurocurrency Rate Advance. No Interest Period may end
after the Facility Termination Date.
2.9 RATES APPLICABLE AFTER DEFAULT. Notwithstanding anything to the
contrary contained in this Agreement, during the continuance of a Default or
Unmatured Default the Required Lenders may, at their option, by notice to the
Borrowers (which notice may be revoked at the option of the Required Lenders
notwithstanding any provision of Section 8.2 requiring unanimous consent of the
Lenders to changes in interest rates), declare that no Advance may be made as,
converted into or continued (after the expiration of the then current Interest
Period) as a Eurocurrency Rate Advance, provided that, notwithstanding the
foregoing, any outstanding Eurocurrency Advance may be continued for an Interest
Period not to exceed one month after such notice to the Borrowers by the
Required Lenders. Upon and during the continuance of any Default, the Required
Lenders may, at their option, by notice to the Company (which notice may be
revoked at the option of the Required Lenders notwithstanding any provision of
Section 8.2 requiring unanimous consent of the Lenders as to changes and
interest rates)
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declare that (i) each Eurocurrency Rate Advance shall bear interest for the
remainder of the applicable Interest Period at the rate otherwise applicable to
such Interest Period (with the Applicable Margin automatically adjusted to the
highest amount provided in the definition of "Applicable Margin",
notwithstanding where the Applicable Margin would otherwise be set) plus 2% per
annum, and (ii) each Floating Rate Advance and any other amount due under this
Agreement shall bear interest at a rate per annum equal to the Floating Rate
otherwise applicable to Floating Rate Loans (with the Applicable Margin
automatically adjusted to the highest amount provided in the definition of
"Applicable Margin", notwithstanding where the Applicable Margin would otherwise
be set) plus 2% per annum, provided that, upon and during the continuance of any
acceleration for any reason of any of the Obligations, the interest rate set
forth in clauses (i) and (ii) shall be applicable to all Advances without any
election or action on the part of the Agent or any Lender.
2.10 PRO RATA PAYMENT, METHOD OF PAYMENT.
2.10.1 Each borrowing of Loans by the Company from the Lenders
shall be made pro rata according to the Pro Rata Shares of such Lenders in
effect on the date of such borrowing. Each payment by the Company on account of
any facility fee shall be allocated by the Agent among the Lenders in accordance
with their respective Pro Rata Shares. Any reduction of the U.S. Commitments of
the U.S. Lenders shall be allocated by the Agent among the U.S. Lenders pro rata
according to the Pro Rata Shares of the U.S. Lenders with respect thereto.
Except as otherwise provided in this Agreement, each optional prepayment by the
Company on account of principal or interest on its Revolving Credit Loans shall
be allocated by the Agent pro rata according to the respective outstanding
principal amounts thereof. All payments (including prepayments) to be made by
the Company hereunder in respect of amounts denominated in Dollars, whether on
account of principal, interest, fees or otherwise, shall be made, without
setoff, deduction, or counterclaim, in immediately available funds to the Agent
at the Agent's address specified pursuant to Article XIV, or at any other
Lending Installation of the Agent specified in writing by the Agent to the
Company, by 12:00 p.m. (Detroit time) on the date when due. Each payment
delivered to the Agent for the account of any Lender shall be delivered promptly
by the Agent to such Lender in the same type of funds that the Agent received at
its address specified pursuant to Article XIV or at any Lending Installation
specified in a notice received by the Agent from such Lender. The Agent is
hereby authorized to charge the account of the Company maintained with Bank One,
Michigan (other than any payroll account) for each payment of principal,
interest and fees as it becomes due hereunder and the Agent shall provide prompt
notice of any such charge to the Company.
2.10.2 Each borrowing of Canadian Revolving Credit Loans by
the Canadian Borrower shall be allocated by the Agent pro rata according to the
Pro Rata Shares of the Canadian Lenders in effect on the date of such Loan. Each
payment by the Canadian Borrower on account of any facility fee shall be
allocated by the Agent among the Canadian Lenders in accordance with their
respective Pro Rata Shares. Any reduction of any of the Canadian Commitments
shall be allocated by the Agent pro rata according to the Pro Rata Shares of the
Canadian Lenders with respect thereto. Except as provided in Section 2.6, each
payment (including each prepayment) by the Canadian Borrower on account of
principal of and interest on Canadian Revolving Credit Loans shall be allocated
by the Agent pro rata according to the respective principal amounts of the
Canadian Revolving Credit Loans then due and owing by such Borrower to each
Canadian Lender that made such Canadian Revolving Credit Loans. All payments
(including prepayments) to be made by a Borrower on account of Canadian
Revolving Credit Loans, whether on account of principal, interest, fees or
otherwise, shall be made without setoff, deduction, or counterclaim in the
currency of such Canadian Loan (in same day or other funds customarily used in
the settlement of obligations in such currency) to the Agent for the account of
the Canadian Lenders that made such Loans, at the payment office for such
Canadian Revolving Credit Loans specified from time to time by the Agent by
notice to the Borrowers prior to 12:00 p.m. local time at such
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payment office on the due date thereof. The Agent shall distribute such payment
to the Canadian Lenders entitled to receive the same promptly upon receipt in
like funds as received.
2.11 TELEPHONIC NOTICES. Each Borrower hereby authorizes the Lenders
and the Agent to extend, convert or continue Advances, effect selections of
Types of Advances and to transfer funds based on telephonic notices made by any
Person or Persons the Agent or any Lender reasonably and in good faith believes
to be an Authorized Officer. Each Borrower agrees to deliver promptly to the
Agent a written confirmation, if such confirmation is requested by the Agent or
any Lender, of each telephonic notice signed by an Authorized Officer. If the
written confirmation differs in any material respect from the action taken by
the Agent and the Lenders, the records of the Agent and the Lenders shall govern
absent manifest error.
2.12 NOTIFICATION OF ADVANCES, INTEREST RATES, PREPAYMENTS AND
COMMITMENT REDUCTIONS. Promptly after receipt thereof, the Agent will notify
each Lender of the contents of each Revolving Credit Commitment reduction
notice, Canadian Commitment reduction notice, Borrowing Notice,
Conversion/Continuation Notice, and repayment notice received by it hereunder.
The Agent will notify each Lender of the interest rate applicable to each
Eurocurrency Rate Advance promptly upon determination of such interest rate and
will give each Lender prompt notice of each change in the Alternate Base Rate.
2.13 LENDING INSTALLATIONS. Each Lender may make and book its Loans at
any Lending Installation(s) selected by such Lender and may change its Lending
Installation(s) from time to time. All terms of this Agreement shall apply to
any such Lending Installation(s) and the Notes, if any, shall be deemed held by
each Lender for the benefit of such Lending Installation(s). Each Lender may, by
written or telex notice to the Agent and the applicable Borrower, designate one
or more Lending Installations which are to make and book Loans and for whose
account Loan payments are to be made.
2.14 NON-RECEIPT OF FUNDS BY THE AGENT. Unless a Borrower or a Lender,
as the case may be, notifies the Agent prior to the date on which it is
scheduled to make payment to the Agent of (a) in the case of a Lender, the
proceeds of a Loan or (b) in the case of a Borrower, a payment of principal,
interest or fees to the Agent for the account of the Lenders, that it does not
intend to make such payment, the Agent may assume that such payment has been
made. The Agent may, but shall not be obligated to, make the amount of such
payment available to the intended recipient in reliance upon such assumption. If
such Lender or Borrower, as the case may be, has not in fact made such payment
to the Agent, the recipient of such payment shall, on demand by the Agent, repay
to the Agent the amount so made available together with interest thereon in
respect of each day during the period commencing on the date such amount was so
made available by the Agent until the date the Agent recovers such amount at a
rate per annum equal to (i) in the case of payment by a Lender, the Federal
Funds Effective Rate for the first five days and the interest rate applicable to
the relevant Loan for each day thereafter or (ii) in the case of payment by a
Borrower, the interest rate applicable to the relevant Loan.
2.15 FACILITY LETTERS OF CREDIT.
2.15.1 OBLIGATION TO ISSUE. Subject to the terms and
conditions of this Agreement and in reliance upon the representations and
warranties of the Borrowers herein set forth, the LC Issuer hereby agrees to
issue for the account of a Borrower through such of the LC Issuer's Lending
Installations or Affiliates as the LC Issuer may determine, one or more Facility
Letters of Credit in accordance with this Section 2.15, from time to time during
the period, commencing on the Effective Date and ending five Business Days prior
to the Facility Termination Date.
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2.15.2 CONDITIONS FOR ISSUANCE. In addition to being subject
to the satisfaction of the conditions contained in Sections 4.1 and 4.2, the
obligation of the LC Issuer to issue any Facility Letter of Credit is subject to
the satisfaction in full of the following conditions:
(a) the aggregate maximum amount then available for
drawing under Facility Letters of Credit issued by the LC Issuer, after giving
effect to the Facility Letter of Credit requested hereunder, shall not exceed
any limit imposed by law or regulation upon the LC Issuer;
(b) the requested Facility Letter of Credit has an
expiration date at least five Business Days prior to the Facility Termination
Date;
(c) after giving effect to the Facility Letter of
Credit requested hereunder, the U.S. Dollar Equivalent of the aggregate maximum
amount then available for drawing under Facility Letters of Credit issued by the
LC Issuer shall not exceed $5,000,000, and no prepayment would be required under
this Agreement and no provision of this Agreement would be breached;
(d) the applicable Borrower shall have delivered to
the LC Issuer at such times and in such manner as the LC Issuer may reasonably
prescribe such documents and materials as may be required pursuant to the terms
of the proposed Letter of Credit and the proposed Letter of Credit shall be
reasonably satisfactory to the LC Issuer as to form and content; and
(e) as of the date of issuance, no order, judgment or
decree of any Court, arbitrator or governmental authority shall purport by its
terms to enjoin or restrain the LC Issuer from issuing the Facility Letter of
Credit and no law, rule or regulation applicable to the LC Issuer and no request
or directive (whether or not having the force of law) from any governmental
authority with jurisdiction over the LC Issuer shall prohibit or request that
the LC Issuer refrain from the issuance of Letters of Credit generally or the
issuance of that Facility Letter of Credit.
2.15.3 PROCEDURE FOR ISSUANCE OF FACILITY LETTERS OF CREDIT.
(a) The applicable Borrower shall give the LC Issuer
and the Agent two Business Days' prior written notice of any requested issuance
of a Facility Letter of Credit under this Agreement (except that, in lieu of
such written notice, a Borrower may give the LC Issuer (i) notice of such
request by tested telex or other tested arrangement satisfactory to the LC
Issuer or (ii) telephonic notice of such request if confirmed in writing by
delivery to the LC Issuer (A) immediately (x) of a telecopy of the written
notice required hereunder which has been signed by an Authorized Officer of such
Borrower or (y) of a telex containing all information required to be contained
in such written notice and (B) promptly (but in no event later than the
requested time of issuance) of a copy of the written notice required hereunder
containing the original signature of an Authorized Officer of such Borrower);
such notice shall be irrevocable and shall specify the stated amount and
Canadian or U.S. Dollars of the Facility Letter of Credit requested, the
effective date (which day shall be a Business Day) of issuance of such requested
Facility Letter of Credit, the date on which such requested Facility Letter of
Credit is to expire (which date shall be a Business Day and shall in no event be
later than the fifth day prior to Facility Termination Date), the purpose for
which such Facility Letter of Credit is to be issued, and the Person for whose
benefit the requested Facility Letter of Credit is to be issued. The Agent shall
give notice to each applicable Lender of the issuance of each Facility Letter of
Credit reasonably promptly after such Facility Letter of Credit is issued. At
the time such request is made, the requesting Borrower shall also provide the
applicable LC Issuer with a copy of the form of the Facility Letter of Credit it
is requesting be issued. Such notice, to be effective, must be received by the
LC Issuer not later than 2:00 p.m. (local time) or the time agreed upon by the
LC Issuer and such Borrower on the last Business Day on which notice can be
given under this Section 2.15.3.
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(b) Subject to the terms and conditions of this
Section 2.15.3 and provided that the applicable conditions set forth in Sections
4.1 and 4.2 hereof have been satisfied, the LC Issuer shall, on the requested
date, issue a Facility Letter of Credit on behalf of the applicable Borrower in
accordance with the LC Issuer's usual and customary business practices.
(c) The LC Issuer shall not extend or amend any
Facility Letter of Credit unless the requirements of this Section 2.15 are met
as though a new Facility Letter of Credit was being requested and issued.
2.15.4 REIMBURSEMENT OBLIGATIONS.
(a) Each Borrower agrees to pay to the LC Issuer the
amount of all Reimbursement Obligations, interest and other amounts payable to
the LC Issuer under or in connection with any Facility Letter of Credit issued
on behalf of such Borrower immediately when due, irrespective of any claim,
set-off, defense or other right which any Borrower or any Subsidiary may have at
any time against the LC Issuer or any other Person, under all circumstances,
including without limitation, any of the following circumstances:
(i) any lack of validity or enforceability
of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, setoff,
defense or other right which any Borrower or any Subsidiary may have at any time
against a beneficiary named in a Facility Letter of Credit or any transferee of
any Facility Letter of Credit (or any Person for whom any such transferee may be
acting), any LC Issuer, any Lender, or any other Person, whether in connection
with this Agreement, any Facility Letter of Credit, the transactions
contemplated herein or any unrelated transactions (including any underlying
transactions between any Borrower or any Subsidiary and the beneficiary named in
any Facility Letter of Credit);
(iii) any draft, certificate or any other
document presented under the Facility Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement therein
being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any
security for the performance or observance of any of the terms of any of the
Loan Documents; or
(v) the occurrence of any Default or
Unmatured Default.
(b) The LC Issuer shall promptly notify the
applicable Borrower of any draw under a Facility Letter of Credit. Such Borrower
shall reimburse the applicable LC Issuer for drawings under a Facility Letter of
Credit issued by it on behalf of such Borrower promptly after the payment by the
LC Issuer. Any Reimbursement Obligation with respect to any Facility Letter of
Credit shall bear interest from the date of the relevant drawings under the
pertinent Facility Letter of Credit at (i) in the case of such Obligations
denominated in U.S. Dollars, the interest rate for Floating Rate Loans or (ii)
in the case of such Obligations denominated in Canadian Dollars, at the
correlative floating rate of interest customarily applicable to similar
extensions of credit to corporate borrowers in Canada, as determined by the
Agent. In addition to its other rights, the Issuers shall also have all rights
for indemnification and reimbursement as each Lender is entitled under this
Agreement.
2.15.5 PARTICIPATION.
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(a) Immediately upon issuance by the LC Issuer of any
Facility Letter of Credit in accordance with the procedures set forth in Section
2.15.3, (i) with respect to each U.S. Facility Letter of Credit, each U.S.
Lender shall be deemed to have irrevocably and unconditionally purchased and
received from the LC Issuer, without recourse or warranty, an undivided interest
and participation equal to its Pro Rata Share of such U.S. Facility Letter of
Credit (including, without limitation, all obligations of the applicable
Borrower with respect thereto) and any security therefor or guaranty pertaining
thereto and (ii) with respect to each Canadian Facility Letter of Credit, each
Canadian Lender shall be deemed to have irrevocably and unconditionally
purchased and received from the LC Issuer, without recourse or warranty, an
undivided interest and participation equal to its Pro Rata Share in such
Canadian Facility Letter of Credit (including, without limitation, all
obligations of the Canadian Borrower with respect thereto), any security
therefor or guaranty pertaining thereto; provided, that a Letter of Credit
issued by the LC Issuer shall not be deemed to be a Facility Letter of Credit
for purposes of this Section 2.15.5 if the LC Issuer shall have received written
notice from any Lender on or before one Business Day prior to the date of its
issuance of such Letter of Credit that one or more of the conditions contained
in Sections 4.1 or 4.2 are not then satisfied, and, in the event the LC Issuer
receives such a notice, it shall have no further obligation to issue any Letter
of Credit until such notice is withdrawn by that Lender or such condition has
been effectively waived in accordance with the provisions of this Agreement.
(b) In the event that the LC Issuer makes any payment
under any Facility Letter of Credit and the applicable Borrower shall not have
repaid such amount to the LC Issuer pursuant to Section 2.15.4, the LC Issuer
shall promptly notify the Agent and each Lender participating in such Letter of
Credit of such failure, and each Lender participating in such Letter of Credit
shall promptly and unconditionally pay to the Agent for the account of the LC
Issuer the amount of such Lender's Pro Rata Share of the unreimbursed amount of
any such payment in the applicable currency. If any Lender participating in such
Facility Letter of Credit fails to make available to the LC Issuer any amounts
due to the LC Issuer pursuant to this Section 2.15.5(b), the LC Issuer shall be
entitled to recover such amount, together with interest thereon (i) in the case
of amounts denominated in U.S. Dollars, at the Federal Funds Effective Rate, for
the first three Business Days after such Lender receives such notice and
thereafter, at the Floating Rate, or (ii) in the case of amounts denominated in
Canadian Dollars, at a local cost of funds rate for obligations in such currency
as determined by the Agent for the first three Business Days after such Lender
receives such notice, and thereafter at the floating rate of interest
correlative to the Floating Rate customarily applicable to similar extensions of
credit to corporate borrowers in Canada, as determined by the Agent, in either
case payable (i) on demand, (ii) by setoff against any payments made to the LC
Issuer for the account of such Lender or (iii) by payment to the LC Issuer by
the Agent of amounts otherwise payable to such Lender under this Agreement. The
failure of any Lender to make available to the Agent its Pro Rata Share of the
unreimbursed amount of any such payment shall not relieve any other Lender of
its obligation hereunder to make available to the Agent its Pro Rata Share of
the unreimbursed amount of any payment on the date such payment is to be made,
but no Lender shall be responsible for the failure of any other Lender to make
available to the Agent its Pro Rata Share of the unreimbursed amount of any
payment on the date such payment is to be made.
(c) Whenever the LC Issuer receives a payment on
account of a Reimbursement Obligation, including any interest thereon, it shall
promptly pay to each Lender which has funded its participating interest therein,
in like funds as received an amount equal to such Lender's Pro Rata Share
thereof.
(d) The obligations of a Lender to make payments to
the Agent with respect to a Facility Letter of Credit shall be absolute,
unconditional and irrevocable, not subject to any counterclaim, set-off,
qualification or exception whatsoever and shall be made in accordance with the
terms and conditions of this Agreement under all circumstances.
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(e) In the event any payment by a Borrower received
by the Agent with respect to a Facility Letter of Credit and distributed by the
Agent to the Lenders on account of their participations is thereafter set aside,
avoided or recovered from the Agent in connection with any receivership,
liquidation, reorganization or bankruptcy proceeding, each Lender which received
such distribution shall, upon demand by the Agent, contribute such Lender's Pro
Rata Share of the amount set aside, avoided or recovered together with interest
at the rate required to be paid by the Agent upon the amount required to be
repaid by it.
2.15.6 COMPENSATION FOR FACILITY LETTERS OF CREDIT. The LC
Issuer of a Facility Letter of Credit shall have the right to receive from the
Borrower which requested issuance of such Facility Letter of Credit, solely for
the account of the LC Issuer, a fronting fee in an amount equal to 0.125% per
annum as well as the LC Issuer's reasonable and customary costs of issuing and
servicing the Facility Letters of Credit. In addition, such Borrower shall pay
to the Agent for the account of each Lender participating in such Facility
Letter of Credit a non-refundable fee at the Applicable Facility LC Rate set
forth in the Pricing Schedule applied to the face amount of the Facility Letter
of Credit, payable quarterly in advance to all Lenders participating in such
Facility Letter of Credit (including the LC Issuer) ratably from the date such
Facility Letter of Credit is issued until its stated expiry date.
2.15.7 LETTER OF CREDIT COLLATERAL ACCOUNT. Each Borrower
hereby agrees that it will, until the final expiration date of any Facility
Letter of Credit and thereafter as long as any amount is payable to the Lenders
in respect of any Facility Letter of Credit, maintain a special collateral
account (the "Letter of Credit Collateral Account") at the Agent's office at the
address specified pursuant to Article XIV, in the name of such Borrower but
under the sole dominion and control of the Agent, for the benefit of the Lenders
and in which such Borrower shall have no interest other than as set forth in
Section 8.1. The Agent will invest any funds on deposit from time to time in the
Letter of Credit Collateral Account in certificates of deposit of the Agent
having a maturity not exceeding 30 days. Nothing in this Section 2.15.7 shall
either obligate the Agent to require any Borrower to deposit any funds in the
Letter of Credit Collateral Account or limit the right of the Agent to release
any funds held in the Letter of Credit Collateral Account other than as required
by Section 8.1, and the Borrower's obligations to deposit funds in the Letter of
Credit Collateral Account are limited to the circumstances required by Section
8.1 after the occurrence of a Default and during the continuance thereof.
2.15.8 NATURE OF OBLIGATIONS.
(a) As among the Borrowers, the LC Issuer and the
Lenders, each Borrower assumes all risks of the acts and omissions of, or misuse
of the Facility Letters of Credit by, the respective beneficiaries of the
Facility Letters of Credit requested by it. In furtherance and not in limitation
of the foregoing, the Issuers and the Lenders shall not be responsible for (i)
the form, validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the application for and
issuance of any Facility Letter of Credit, even if it should in fact prove to be
in any or all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Facility Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove to
be invalid or ineffective for any reason; (iii) failure of the beneficiary of a
Facility Letter of Credit to comply fully with conditions required in order to
draw upon such Facility Letter of Credit; (iv) errors, omissions, interruptions
or delays in transmission or delivery of any messages, by mail, cable,
telegraph, telex or otherwise; (v) errors in interpretation of technical terms;
(vi) misapplication by the beneficiary of a Facility Letter of Credit of the
proceeds of any drawing under such Facility Letter of Credit; or (vii) any
consequences arising from causes beyond the control of the Issuers or the
Lenders. In addition to amounts payable as elsewhere provided in this Section
2.15, such Borrower hereby agrees to protect, indemnify, pay and save the Agent,
each LC Issuer and each Lender harmless from and against any and
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all claims, demands, liabilities, damages, losses, costs, charges and expenses
(including reasonable attorneys' fees) arising from the claims of third parties
against the Agent or the LC Issuer in respect of any Facility Letter of Credit
requested by such Borrower.
(b) In furtherance and extension and not in
limitation of the specific provisions hereinabove set forth, any action taken or
omitted by the Issuers or any Lender under or in connection with the Facility
Letters of Credit or any related certificates, if taken or omitted in good
faith, shall not put the LC Issuer or such Lender under any resulting liability
to any Borrower or relieve any Borrower of any of its obligations hereunder to
the Issuers, the Agent or any Lender.
(c) Notwithstanding anything to the contrary
contained in this Section 2.15.8, a Borrower shall not have any obligation to
indemnify the Agent the LC Issuer and each Lender under this Section 2.15 in
respect of any liability incurred by each arising primarily out of the willful
misconduct or gross negligence of the LC Issuer, as determined by a court of
competent jurisdiction, or out of the wrongful dishonor by the LC Issuer of a
proper demand for payment made under the Facility Letters of Credit issued by
the LC Issuer as determined by a court of competent jurisdiction, unless such
dishonor was made at the request of such Borrower in writing, or out of the
wrongful honor by the LC Issuer of a demand for payment made under the Facility
Letters of Credit issued by the LC Issuer which demand for payment does not
comply with the conditions required in order to draw upon such Facility Letter
of Credit as determined by a court of competent jurisdiction, unless such
dishonor was made at the request of such Borrower in writing.
2.16. SWING LOANS.
(a) MAKING OF SWING LOANS. The Agent may elect in its sole
discretion to make revolving loans (the "Swing Loans") to the Company solely for
the Agent's own account, from time to time prior to the Facility Termination
Date up to an aggregate principal amount at any one time outstanding not to
exceed the lesser of $5,000,000 or the unused amount of the Aggregate
Commitments. The Agent may make Swing Loans (subject to the conditions precedent
set forth in Article IV), provided that the Agent has received a request in
writing or via telephone from an Authorized Officer of the Company for funding
of a Swing Loan no later than such time required by the Agent, on the Business
Day on which such Swing Loan is requested to be made. The Agent shall not make
any Swing Loan in the period commencing one Business Day after the Agent becomes
aware that one or more of the conditions precedent contained in Section 4.2 are
not satisfied and ending upon the satisfaction or waiver of such condition(s).
Each outstanding Swing Loan shall be payable on the Business Day following
demand therefor, with interest at the rate agreed to between the Agent and the
Company accrued thereon and shall otherwise be subject to all the terms and
conditions applicable to Loans, except that all interest thereon shall be
payable to the Agent solely for its own account.
(b) SWING LOAN BORROWING REQUESTS. The Company agrees to
deliver promptly to the Agent a written confirmation of each telephonic notice
for Swing Loans signed by an Authorized Officer. If the written confirmation
differs in any material respect from the action taken by the Agent, the records
of the Agent shall govern, absent manifest error.
(c) REPAYMENT OF SWING LOANS. At any time after making a Swing
Loan, the Agent may request the Company to, and upon request by the Agent the
Company shall, promptly request an Advance from all Lenders to the Company and
apply the proceeds of such Advance to the repayment of any Swing Loan owing by
the Company not later than the Business Day following the Agent's request.
Notwithstanding the foregoing, upon the earlier to occur of (a) three Business
Days after demand is made by the Agent, and (b) the Facility Termination Date,
each U.S. Lender to the Company (other than the Agent) shall irrevocably and
unconditionally purchase from the Agent, without recourse or warranty, an
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undivided interest and participation in such Swing Loan in an amount equal to
such Lender's Pro Rata Share of such Swing Loan and promptly pay such amount to
the Agent in immediately available funds. Such payment shall be made by the
other Lenders whether or not a Default is then continuing or any other condition
precedent set forth in Section 4.2 is then met and whether or not the Company
has then requested an Advance in such amount. If any Lender fails to make
available to the Agent, any amounts due to the Agent from such Lender pursuant
to this Section, the Agent shall be entitled to recover such amount, together
with interest thereon at the Federal Funds Effective Rate for the first three
Business Days after such Lender receives notice of such required purchase and
thereafter, at the rate applicable to such Loan, payable (i) on demand, (ii) by
setoff against any payments made to the Agent for the account of such Lender or
(iii) by payment to the Agent by the Agent of amounts otherwise payable to such
Lender under this Agreement. The failure of any Lender to make available to the
Agent its Pro Rata Share of any unpaid Swing Loan shall not relieve any other
Lender of its obligation hereunder to make available to the Agent its Pro Rata
Share of any unpaid Swing Loan on the date such payment is to be made, but no
Lender shall be responsible for the failure of any other Lender to make
available to the Agent its Pro Rata Share of any unpaid Swing Loan.
2.17 APPLICATION OF PAYMENTS WITH RESPECT TO DEFAULTING LENDERS. No
payments of principal, interest or fees delivered to the Agent for the account
of any Defaulting Lender shall be delivered by the Agent to such Defaulting
Lender. Instead, such payments shall, for so long as such Defaulting Lender
shall be a Defaulting Lender, be held by the Agent, and the Agent is hereby
authorized and directed by all parties hereto to hold such funds in escrow and
apply such funds as follows:
(i) First, if applicable to any payments due to the LC Issuer
pursuant to Section 2.15.5 or the Agent under Section 2.16; and
(ii) Second, to Loans required to be made by such Defaulting
Lender on any Borrowing Date to the extent such Defaulting Lender fails to make
such Loans.
Notwithstanding the foregoing, upon the termination of the Commitments
and the payment and performance of all of the Obligations (other than those
owing to a Defaulting Lender), any funds then held in escrow by the Agent
pursuant to the preceding sentence shall be distributed to each Defaulting
Lender, pro rata in proportion to amounts that would be due to each Defaulting
Lender but for the fact that it is a Defaulting Lender.
2.18 AMENDMENT AND RESTATEMENT. On the Effective Date, the Existing
Credit Agreement will be amended and restated to read in full as set forth
herein and any Notes delivered by any of the Borrowers pursuant to the Existing
Credit Agreement and any other Loan Documents shall continue in full force and
effect and be deemed issued or delivered in connection with this Agreement.
Notwithstanding such amendment and restatement of the Existing Credit Agreement,
the rights and obligations of the parties thereto with respect to periods prior
to the Effective Date will continue to be governed by the provisions thereof.
2.19 SECURITY. All obligations of the Borrowers and the Guarantors
under this Agreement, the Notes and all other Loan Documents shall be secured in
accordance with and to the extent of the Collateral Documents. All obligations
of the Borrowers under this Agreement, each of the Notes and all other Loan
Documents shall be unconditionally guaranteed by the Guarantors pursuant to and
in accordance with ARTICLE IX hereof and the Subsidiary Guaranty. Sixty-five
percent (65%) of the outstanding capital stock of each first tier Foreign
Subsidiary which is a Significant Subsidiary shall be pledged to secure all of
the obligations of the Borrowers under this Agreement, the Notes and all other
Loan Documents. It is understood by the parties hereto that the Collateral
securing the Canadian Revolving Credit Loans and the Canadian Facility Letter of
Credit Obligations shall secure only such
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Canadian obligations, and not any U.S. Revolving Credit Loans, U.S. Facility
Letter of Credit Obligations, or Swing Loans.
ARTICLE III.
YIELD PROTECTION; TAXES
-----------------------
3.1 YIELD PROTECTION.
(a) If, on or after the date of this Agreement, the adoption
of any law or any governmental or quasi-governmental rule, regulation, policy,
guideline or directive (whether or not having the force of law), or any change
in the interpretation or administration thereof by any governmental or
quasi-governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender or
applicable Lending Installation or the LC Issuer with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency:
(i) subjects any Lender or any applicable Lending
Installation or the LC Issuer to any Taxes, or changes the basis of taxation of
payments (other than with respect to Excluded Taxes) to any Lender or the LC
Issuer in respect of its Eurocurrency Loans, Facility LCs or participations
therein, or
(ii) imposes or increases or deems applicable any
reserve, assessment, insurance charge, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit extended by,
any Lender or any applicable Lending Installation or the LC Issuer (other than
reserves and assessments taken into account in determining the interest rate
applicable to Eurocurrency Advances), or
(iii) imposes any other condition the result of
which is to increase the cost to any Lender or any applicable Lending
Installation or the LC Issuer of making, funding or maintaining its Eurocurrency
Loans, or of issuing or participating in Facility LCs, or reduces any amount
receivable by any Lender or any applicable Lending Installation or the LC Issuer
in connection with its Eurocurrency Loans, Facility LCs or participations
therein, or requires any Lender or any applicable Lending Installation or the LC
Issuer to make any payment calculated by reference to the amount of Eurocurrency
Loans, Facility LCs or participations therein held or interest or LC Fees
received by it, by an amount deemed material by such Lender or the LC Issuer as
the case may be,
and the result of any of the foregoing is to increase the cost to such Lender or
applicable Lending Installation or the LC Issuer, as the case may be, of making
or maintaining its Eurocurrency Loans or Commitment or of issuing or
participating in Facility LCs or to reduce the return received by such Lender or
applicable Lending Installation or the LC Issuer, as the case may be, in
connection with such Eurocurrency Loans, Commitment, Facility LCs or
participations therein, then, within 15 days of demand by such Lender or the LC
Issuer, as the case may be, the Borrowers shall pay such Lender such additional
amount or amounts as will compensate such Lender or the LC Issuer, as the case
may be, for such increased cost or reduction in amount received.
(b) NON-U.S. RESERVE COSTS OR FEES WITH RESPECT TO LOANS TO
NON-U.S. BORROWERS. If any law or any governmental or quasi-governmental rule,
regulation, policy, guideline or directive of any jurisdiction outside of the
United States of America or any subdivision thereof (whether or not having the
force of law), imposes or deems applicable any reserve requirement against or
fee with respect to
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assets of, deposits with or for the account of, or credit extended by, any
Lender or any applicable Lending Installation, or the LC Issuer, and the result
of the foregoing is to increase the cost to such Lender or applicable Lending
Installation, or the LC Issuer, of making or maintaining its Eurocurrency Loans
to, or of issuing or participating in Facility LCs upon the request of, or of
making and maintaining its Commitment to, any Borrower that is not incorporated
under the laws of the United States of America or a state thereof (each a
"Non-U.S. Borrower") or its Commitment to any Non-U.S. Borrower or to reduce the
return received by such Lender or applicable Lending Installation or the LC
Issuer in connection with such Eurocurrency Loans to, Facility LCs applied for
by, or Commitment to any Non-U.S. Borrower or Commitment to any Non-U.S.
Borrower, then, within 15 days of demand by such Lender, or the LC Issuer, as
the case may be, such Non-U.S. Borrower shall pay such Lender or the LC Issuer,
as the case may be, such additional amount or amounts as will compensate such
Lender for such increased cost or reduction in amount received, provided that
such Non-U.S. Borrower shall not be required to compensate any Lender for such
non-U.S. reserve costs or fees to the extent that an amount equal to such
reserve costs or fees is received by such Lender as a result of the calculation
of the interest rate applicable to Eurocurrency Advances pursuant to clause
(i)(b) of the definition of "Eurocurrency Rate."
3.2 CHANGES IN CAPITAL ADEQUACY REGULATIONS. If a Lender or the LC
Issuer determines the amount of capital required or expected to be maintained by
such Lender or the LC Issuer, any Lending Installation of such Lender or the LC
Issuer or any corporation controlling such Lender or the LC Issuer is increased
as a result of a Change, then, within 15 days of demand by such Lender or the LC
Issuer, the Borrower shall pay such Lender or the LC Issuer the amount necessary
to compensate for any shortfall in the rate of return on the portion of such
increased capital which such Lender or the LC Issuer determines is attributable
to this Agreement, its Outstanding Credit Exposure or its Commitment to make
Loans and issue or participate in Facility LCs, as the case may be, hereunder
(after taking into account such Lender's or the LC Issuer's policies as to
capital adequacy). "Change" means (i) any change after the date of this
Agreement in the Risk-Based Capital Guidelines, or (ii) any adoption of or
change in any other law, governmental or quasi-governmental rule, regulation,
policy, guideline, interpretation, or directive (whether or not having the force
of law) after the date of this Agreement which affects the amount of capital
required or expected to be maintained by any Lender or the LC Issuer or any
Lending Installation or any corporation controlling any Lender or the LC Issuer.
"Risk-Based Capital Guidelines" means (i) the risk-based capital guidelines in
effect in the United States on the date of this Agreement, including transition
rules, and (ii) the corresponding capital regulations promulgated by regulatory
authorities outside the United States implementing the July 1988 report of the
Basle Committee on Banking Regulation and Supervisory Practices Entitled
"International Convergence of Capital Measurements and Capital Standards,"
including transition rules, and any amendments to such regulations adopted prior
to the date of this Agreement.
3.3 AVAILABILITY OF TYPES OF ADVANCES. If any Lender determines that
maintenance of its Eurocurrency Loans at a suitable Lending Installation would
violate any applicable law, rule, regulation, or directive, whether or not
having the force of law, or if the Required Lenders determine that (i) deposits
of a type, currency and maturity appropriate to match fund Eurocurrency Advances
are not available or (ii) the interest rate applicable to Eurocurrency Advances
does not accurately reflect the cost of making or maintaining Eurocurrency
Advances, then the Agent shall suspend the availability of Eurocurrency Advances
and require any affected Eurocurrency Advances to be repaid or converted to
Floating Rate Advances, subject to the payment of any funding indemnification
amounts required by Section 3.4.
3.4 FUNDING INDEMNIFICATION. If any payment of a Eurocurrency Advance
occurs on a date which is not the last day of the applicable Interest Period,
whether because of acceleration, prepayment or otherwise, or a Eurocurrency
Advance is not made on the date specified by a Borrower for any reason other
than default by the Lenders, the Borrower will indemnify each Lender for any
loss or cost incurred
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by it resulting therefrom, including, without limitation, any loss or cost in
liquidating or employing deposits acquired to fund or maintain such Eurocurrency
Advance.
3.5 TAXES.
(i) All payments by any Borrower to or for the account of any
Lender, the LC Issuer or the Agent hereunder or under any Note or Facility LC
Application shall be made free and clear of and without deduction for any and
all Taxes. If any Borrower shall be required by law to deduct any Taxes from or
in respect of any sum payable hereunder to any Lender, the LC Issuer or the
Agent, (a) the sum payable shall be increased as necessary so that after making
all required deductions (including deductions applicable to additional sums
payable under this Section 3.5) such Lender, the LC Issuer or the Agent (as the
case may be) receives an amount equal to the sum it would have received had no
such deductions been made, (b) such Borrower shall make such deductions, (c)
such Borrower shall pay the full amount deducted to the relevant authority in
accordance with applicable law and (d) such Borrower shall furnish to the Agent
the original copy of a receipt evidencing payment thereof within 30 days after
such payment is made.
(ii) In addition, each Borrower hereby agrees to pay any
present or future stamp or documentary taxes and any other excise or property
taxes, charges or similar levies which arise from any payment made hereunder or
under any Note or Facility LC Application or from the execution or delivery of,
or otherwise with respect to, this Agreement or any Note or Facility LC
Application ("Other Taxes").
(iii) Each Borrower hereby agrees to indemnify the Agent, the
LC Issuer and each Lender for the full amount of Taxes or Other Taxes
(including, without limitation, any Taxes or Other Taxes imposed on amounts
payable under this Section 3.5) paid by the Agent, the LC Issuer or such Lender
and any liability (including penalties, interest and expenses) arising therefrom
or with respect thereto. Payments due under this indemnification shall be made
within 30 days of the date the Agent, the LC Issuer or such Lender makes demand
therefor pursuant to Section 3.6.
(iv) Each Lender that is not incorporated under the laws of
the United States of America or a state thereof (each a "Non-U.S. Lender")
agrees that it will, not less than ten Business Days after the date of this
Agreement, (i) deliver to each of the Company and the Agent two duly completed
copies of United States Internal Revenue Service Form W-8BEN or W-8ECI,
certifying in either case that such Lender is entitled to receive payments under
this Agreement without deduction or withholding of any United States federal
income taxes, and (ii) deliver to each of the Company and the Agent a United
States Internal Revenue Form W-8 or W-9, as the case may be, and certify that it
is entitled to an exemption from United States backup withholding tax. Each
Non-U.S. Lender further undertakes to deliver to each of the Company and the
Agent (x) renewals or additional copies of such form (or any successor form) on
or before the date that such form expires or becomes obsolete, and (y) after the
occurrence of any event requiring a change in the most recent forms so delivered
by it, such additional forms or amendments thereto as may be reasonably
requested by the Company or the Agent. All forms or amendments described in the
preceding sentence shall certify that such Lender is entitled to receive
payments under this Agreement without deduction or withholding of any United
States federal income taxes, unless an event (including without limitation any
change in treaty, law or regulation) has occurred prior to the date on which any
such delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such Lender from duly completing and
delivering any such form or amendment with respect to it and such Lender advises
the Company and the Agent that it is not capable of receiving payments without
any deduction or withholding of United States federal income tax.
(v) For any period during which a Non-U.S. Lender has failed
to provide the Company with an appropriate form pursuant to clause (iv), above
(unless such failure is due to a change
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in treaty, law or regulation, or any change in the interpretation or
administration thereof by any governmental authority, occurring subsequent to
the date on which a form originally was required to be provided such Non-U.S.
Lender shall not be entitled to indemnification under this Section 3.5 with
respect to Taxes imposed by the United States; provided that, should a Non-U.S.
Lender which is otherwise exempt from or subject to a reduced rate of
withholding tax become subject to Taxes because of its failure to deliver a form
required under clause (iv), above, the Company shall take such steps as such
Non-U.S. Lender shall reasonably request to assist such Non-U.S. Lender to
recover such Taxes.
(vi) Any Lender that is entitled to an exemption from or
reduction of withholding tax with respect to payments under this Agreement or
any Note pursuant to the law of any relevant jurisdiction or any treaty shall
deliver to the Company (with a copy to the Agent), at the time or times
prescribed by applicable law, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without
withholding or at a reduced rate.
(vii) If the U.S. Internal Revenue Service or any other
governmental authority of the United States or any other country or any
political subdivision thereof asserts a claim that the Agent did not properly
withhold tax from amounts paid to or for the account of any Lender (because the
appropriate form was not delivered or properly completed, because such Lender
failed to notify the Agent of a change in circumstances which rendered its
exemption from withholding ineffective, or for any other reason), such Lender
shall indemnify the Agent fully for all amounts paid, directly or indirectly, by
the Agent as tax, withholding therefor, or otherwise, including penalties and
interest, and including taxes imposed by any jurisdiction on amounts payable to
the Agent under this subsection, together with all costs and expenses related
thereto (including reasonable attorneys fees and time charges of attorneys for
the Agent, which attorneys may be employees of the Agent). The obligations of
the Lenders under this Section 3.5(vii) shall survive the payment of the
Obligations and termination of this Agreement.
3.6 LENDER STATEMENTS; SURVIVAL OF INDEMNITY. To the extent reasonably
possible, each Lender shall designate an alternate Lending Installation with
respect to its Eurocurrency Loans to reduce any liability of a Borrower to such
Lender under Sections 3.1, 3.2 and 3.5 or to avoid the unavailability of
Eurocurrency Advances under Section 3.3, so long as such designation is not, in
the judgment of such Lender, disadvantageous to such Lender. Each Lender shall
deliver a written statement of such Lender to the affected Borrower (with a copy
to the Agent) as to the amount due, if any, under Section 3.1, 3.2, 3.4 or 3.5.
Such written statement shall set forth in reasonable detail the calculations
upon which such Lender determined such amount and shall be final, conclusive and
binding on such Borrower in the absence of manifest error. Determination of
amounts payable under such Sections in connection with a Eurocurrency Loan shall
be calculated as though each Lender funded its Eurocurrency Loan through the
purchase of a deposit of the type, currency and maturity corresponding to the
deposit used as a reference in determining the Eurocurrency Rate applicable to
such Loan, whether in fact that is the case or not. Unless otherwise provided
herein, the amount specified in the written statement of any Lender shall be
payable on demand after receipt by such Borrower of such written statement. The
obligations of the Borrowers under Sections 3.1, 3.2, 3.4 and 3.5 shall survive
payment of the Obligations and termination of this Agreement.
3.7 NO DUPLICATION. To the extent more than one section of this Article
III were to apply, Borrowers shall have no obligation to make duplicate payments
(e.g. payments in excess of actual out-of-pocket expenses or allocated costs or
charges to any Lender).
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ARTICLE IV.
CONDITIONS PRECEDENT
--------------------
4.1 INITIAL CONDITIONS PRECEDENT. The Effective Date shall not occur
hereunder unless the Borrowers have furnished to the Agent with sufficient
copies for the Lenders the documents listed below or otherwise satisfied the
following conditions:
(i) Copies of the articles or certificate of incorporation of
each Borrower, together with all amendments, certified by the Secretary or
Assistant Secretary of each Borrower.
(ii) Copies, certified by the Secretary or Assistant Secretary
of each Borrower, of its by-laws and of its Board of Directors' resolutions and
of resolutions or actions of any other body authorizing the execution of the
Loan Documents to which such Borrower is a party
(iii) An incumbency certificate, executed by the Secretary or
Assistant Secretary of each Borrower, which shall identify by name and title and
bear the signatures of the Authorized Officers and any other officers of such
Borrower authorized to sign the Loan Documents to which such Borrower is a
party, upon which certificate the Agent and the Lenders shall be entitled to
rely until informed of any change in writing by such Borrower.
(iv) A certificate, signed by the chief financial officer of
each Borrower, stating that on the Effective Date no Default or Unmatured
Default has occurred and is continuing.
(v) A written opinion or opinions of the Company's counsel,
addressed to the Lenders in substantially the form of EXHIBIT C, and the
Canadian Borrower Opinion.
(vi) Any Notes requested by a Lender payable to the order of
each such requesting Lender.
(vii) The Agent shall have received complete executed copies
of the documents relating to the amendment of the Senior Note Agreement being
entered into by the Company contemporaneously with the execution of this
Agreement and the Agent shall be satisfied with the terms and conditions set
forth therein.
(viii) An executed Borrowing Base Certificate as of April 30,
2000.
(ix) The Borrowers shall have paid to the Lenders signing this
Agreement all fees set forth in the fee letter from the Company to the Agent
dated June __, 2000.
(x) The Agent and the Lenders shall have entered into an
intercreditor agreement or collateral sharing agreement with the Noteholders or
their agent or representative on terms and conditions satisfactory to the Agent
and the Lenders.
(xi) The Collateral Documents, executed by the Loan Parties,
in appropriate form for recording, where necessary, together with:
(a) A duly completed and executed perfection
certificate from each Loan Party;
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(b) Copies of all UCC financing statements and other
filings, registrations and recordings to be filed,
registered or recorded to perfect the security
interests of the Collateral Agent under the
Collateral Documents in accordance with applicable
law;
(c) Written advice relating to such Lien and judgment
searches as the Agent shall have reasonably
requested, and such termination statements or other
documents as may be necessary to confirm that the
Collateral is subject to no other Liens in favor of
any Persons (other than Permitted Liens);
(d) All certificates and instruments representing
Collateral being pledged to the Collateral Agent and
stock transfer powers duly endorsed in blank in a
form reasonably satisfactory to the Collateral Agent;
(e) Recordation, filing and other action (including
payment of any applicable taxes or fees) in such
jurisdictions as the Lenders or the Agent may
reasonably deem necessary or appropriate with respect
to the Collateral Documents, including the filing of
financing statements and similar documents which the
Lenders or the Agent may deem necessary or
appropriate to create, preserve or perfect the Liens,
security interests and other rights intended to be
granted to the Lenders or the Collateral Agent
thereunder, together with Uniform Commercial Code
record searches in such offices as the Lenders or the
Agent may request;
(f) Policies of mortgage title insurance issued by an
insurer and in amounts satisfactory to the Lenders
and the Agent, insuring the interest of the Lenders
and the Collateral Agent under the Mortgages with
standard exceptions and without any special
exceptions other than Permitted Liens or such other
exceptions reasonably acceptable to the Lenders and
the Agent and containing such further endorsements,
affirmative coverage and other terms as the Lenders
and the Agent may reasonably request;
(g) A schedule setting forth all real property leased
by the Borrower, together with copies of the related
leases, certified as true and correct as of the
Effective Date by a duly authorized officer of such
Borrower, and an agreement of the landlord for each
of the properties leased by the Borrower in Sante Fe
Springs, California, Houston, Texas, and Sand
Springs, Oklahoma, in form and substance acceptable
to the Lenders and the Agent, waiving its distraint,
lien and similar rights with respect to any property
subject to the Security Documents and agreeing to
permit the Collateral Agent to enter such premises in
connection therewith; and
(h) Evidence that the casualty and other insurance
required pursuant to the Loan Documents is in full
force and effect and that the Collateral Agent has
been named as lender loss payee and mortgagee under
all policies of casualty insurance and as additional
named insured under all policies of liability
insurance.
(i) Such environmental site assessments with respect
to the Mortgaged Property as shall be reasonably
requested by the Agent.
(xii) The Subsidiary Guaranty executed by each Subsidiary
Guarantor.
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(xiii) Such other documents as any Lender or its counsel may
have reasonably requested.
4.2 EACH CREDIT EXTENSION. The Lenders shall not be required to make
any Credit Extension unless on the applicable Credit Extension Date:
(i) There exists no Default or Unmatured Default.
(ii) The representations and warranties contained in Article V
are true and correct as of such Credit Extension Date except to the extent any
such representation or warranty is stated to relate solely to an earlier date,
in which case such representation or warranty shall have been true and correct
on and as of such earlier date.
(iii) All legal matters incident to the making of such Credit
Extension shall be satisfactory to the Lenders and their counsel.
Each Borrowing notice or request for issuance of a Facility LC with
respect to each such Credit Extension shall constitute a representation and
warranty by each Borrower that the conditions contained in Sections 4.2(i) and
(ii) have been satisfied.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
------------------------------
Each of the Company and the Canadian Borrower (insofar as the
representations and warranties set forth below relate to the Canadian Borrower)
represents and warrants to the Lenders that:
5.1 EXISTENCE AND STANDING. Each of the Company and its Subsidiaries is
a corporation, partnership (in the case of Subsidiaries only) or limited
liability company duly and properly incorporated or organized, as the case may
be, validly existing and (to the extent such concept applies to such entity) in
good standing under the laws of its jurisdiction of incorporation or
organization and has all requisite authority to conduct its business in each
jurisdiction in which its business is conducted.
5.2 AUTHORIZATION AND VALIDITY. Each Borrower has the power and
authority and legal right to execute and deliver the Loan Documents to which it
is a party and to perform its obligations thereunder. The execution and delivery
by each Borrower of the Loan Documents to which it is a party and the
performance of its obligations thereunder have been duly authorized by proper
corporate proceedings, and the Loan Documents to which they are a party
constitute legal, valid and binding obligations of the Borrowers enforceable
against the Borrowers in accordance with their terms, except as enforceability
may be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally.
5.3 NO CONFLICT; GOVERNMENT CONSENT. Neither the execution and delivery
by the Borrowers of the Loan Documents, nor the consummation of the transactions
therein contemplated, nor compliance with the provisions thereof will violate
(i) any law, rule, regulation, order, writ, judgment, injunction, decree or
award binding on the Company or any of its Subsidiaries, except where violation
cannot reasonably be expected to have a Material Adverse Effect, or (ii) the
Company's or any Subsidiary's articles or certificate of incorporation,
partnership agreement, certificate of partnership, articles or certificate of
organization, by-laws, or operating or other management agreement, as the case
may be, or
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(iii) the provisions of any indenture, instrument or agreement to which the
Company or any of its Subsidiaries is a party or is subject, or by which it, or
its Property, is bound, or conflict with or constitute a default thereunder, or
result in, or require, the creation or imposition of any Lien in, of or on the
Property of the Company or a Subsidiary pursuant to the terms of any such
indenture, instrument or agreement, except where violation cannot reasonably be
expected to have a Material Adverse Effect. No order, consent, adjudication,
approval, license, authorization, or validation of, or filing, recording or
registration with, or exemption by, or other action in respect of any
governmental or public body or authority, or any subdivision thereof, which has
not been obtained by the Company or any of its Subsidiaries, is required to be
obtained by the Company or any of its Subsidiaries in connection with the
execution and delivery of the Loan Documents, the borrowings under this
Agreement, the payment and performance by each Borrower of the Obligations or
the legality, validity, binding effect or enforceability of any of the Loan
Documents, except where the failure to take any such action cannot reasonably be
expected to have a Material Adverse Effect.
5.4 FINANCIAL STATEMENTS. The March 31, 1999 year-end financial
statements of the Company and its Subsidiaries and the March 31, 2000 financial
statements of the Company and its Subsidiaries heretofore delivered to the
Lenders were prepared in accordance with generally accepted accounting
principles in effect on the date such statements were prepared and fairly
present the consolidated financial condition and operations of the Company and
its Subsidiaries at such dates and the consolidated results of their operations
for the periods then ended.
5.5 MATERIAL ADVERSE CHANGE. Since March 31, 2000, there has been no
change in the business, Property, prospects, condition (financial or otherwise)
or results of operations of the Company and its Subsidiaries which could
reasonably be expected to have a Material Adverse Effect.
5.6 TAXES. The Company and its Subsidiaries have filed all United
States federal tax returns and all other tax returns which are required to be
filed and have paid all taxes due pursuant to said returns or pursuant to any
assessment received by the Company or any of its Subsidiaries, except such
taxes, if any, the failure of which to file or pay would not reasonably be
expected to have a Material Adverse Effect or are being contested in good faith
and as to which adequate reserves have been provided in accordance with
Agreement Accounting Principles and as to which no Lien exists. No tax liens
have been filed and no claims are being asserted with respect to any such taxes.
5.7 LITIGATION AND CONTINGENT OBLIGATIONS. Except as set forth on
Schedule 5.7 hereto, there is no litigation, arbitration, governmental
investigation, proceeding or inquiry pending or, to the knowledge of any of
their officers, threatened against or affecting the Company or any of its
Subsidiaries which could reasonably be expected to have a Material Adverse
Effect or which seeks to prevent, enjoin or delay the making of any Credit
Extensions. Other than any liability incident to any litigation, arbitration or
proceeding which is set forth on Schedule 5.7, the Company and its Subsidiaries
have no material contingent obligations not provided for or disclosed in the
financial statements referred to in Section 5.4.
5.8 SUBSIDIARIES. Schedule 5.8 contains an accurate list of all
Subsidiaries of the Company, including all Significant Subsidiaries, as of the
date of this Agreement, setting forth their respective jurisdictions of
organization and the percentage of their respective capital stock or other
ownership interests owned by the Company or other Subsidiaries. All of the
issued and outstanding shares of capital stock or other ownership interests of
such Subsidiaries have been (to the extent such concepts are relevant with
respect to such ownership interests) duly authorized and issued and are fully
paid and non-assessable.
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5.9 ERISA. The Unfunded Liabilities of all Single Employer Plans do not
in the aggregate exceed $1,000,000. Each Plan complies in all material respects
with all applicable requirements of law and regulations, no Reportable Event has
occurred with respect to any Plan, neither the Company nor any other member of
the Controlled Group has withdrawn from any Plan or initiated steps to do so,
and no steps have been taken to reorganize or terminate any Plan.
5.10 ACCURACY OF INFORMATION. No information, exhibit or report
furnished by the Company or any of its Subsidiaries to the Agent or to any
Lender in connection with the negotiation of, or compliance with, the Loan
Documents contained any material misstatement of fact or omitted to state a
material fact or any fact necessary to make the statements contained therein not
misleading.
5.11 REGULATION U. Margin stock (as defined in Regulation U)
constitutes less than 25% of the value of those assets of the Company and its
Subsidiaries which are subject to any limitation on sale, pledge, or other
restriction hereunder.
5.12 MATERIAL AGREEMENTS. Neither the Company nor any Subsidiary is a
party to any agreement or instrument or subject to any charter or other
corporate restriction which could reasonably be expected to have a Material
Adverse Effect. Neither the Company nor any Subsidiary is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in (i) any agreement to which it is a party, which default
could reasonably be expected to have a Material Adverse Effect or (ii) any
agreement or instrument evidencing or governing Indebtedness, which default
could reasonably be expected to have a Material Adverse Effect.
5.13 COMPLIANCE WITH LAWS. The Company and its Subsidiaries have
complied with all applicable statutes, rules, regulations, orders and
restrictions of any domestic or foreign government or any instrumentality or
agency thereof having jurisdiction over the conduct of their respective
businesses or the ownership of their respective Property except for any failure
to comply with any of the foregoing which could not reasonably be expected to
have a Material Adverse Effect.
5.14 OWNERSHIP OF PROPERTIES. On the date of this Agreement, the
Borrower and its Subsidiaries will have good title, free of all Liens other than
those permitted by Section 6.15, to all of the Property and assets reflected in
the Company's most recent consolidated financial statements provided to the
Agent as owned by the Company and its Subsidiaries.
5.15 PLAN ASSETS; PROHIBITED TRANSACTIONS. The Company is not an entity
deemed to hold "plan assets" within the meaning of 29 C.F.R. Section 2510.3-101
of an employee benefit plan (as defined in Section 3(3) of ERISA) which is
subject to Title I of ERISA or any plan (within the meaning of Section 4975 of
the Code), and neither the execution of this Agreement nor the making of Credit
Extensions hereunder gives rise to a prohibited transaction within the meaning
of Section 406 of ERISA or Section 4975 of the Code.
5.16 ENVIRONMENTAL MATTERS. In the ordinary course of its business, the
officers of the Company consider the effect of Environmental Laws on the
business of the Company and its Subsidiaries, in the course of which they
identify and evaluate potential risks and liabilities accruing to the Company
due to Environmental Laws. On the basis of this consideration, the Company has
concluded that Environmental Laws cannot reasonably be expected to have a
Material Adverse Effect. Neither the Company nor any Subsidiary has received any
notice to the effect that its operations are not in material compliance with any
of the requirements of applicable Environmental Laws or are the subject of any
federal or state investigation evaluating whether any remedial action is needed
to respond to a release of any toxic or hazardous waste or substance into the
environment, which non-compliance or remedial action could reasonably be
expected to have a Material Adverse Effect.
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5.17 INVESTMENT COMPANY ACT. Neither the Company nor any Subsidiary is
an "investment company" or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended.
5.18 PUBLIC UTILITY HOLDING COMPANY ACT. Neither the Company nor any
Subsidiary is a "holding company" or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
5.19 CANADIAN BORROWER.
(i) The Canadian Borrower is a direct Wholly-Owned Subsidiary
of the Company (excluding director qualifying shares); and
(ii) The Canadian Borrower has all right and authority to
enter into this Agreement and each other Loan Document to which it is a party,
and to perform all of its obligations under this and each other Loan Document to
which it is a party, and this Agreement and each other Loan Document to which it
is a party has been duly authorized by all necessary action on the part of such
Borrower, and this Agreement and each other Loan Document to which it is a party
constitute valid and binding obligations of the Canadian Borrower enforceable in
accordance with their terms except as such terms may be limited by the
application of bankruptcy, moratorium, insolvency and similar laws affecting the
rights of creditors generally and by general principles of equity.
5.20 COLLATERAL DOCUMENTS.
(i) The provisions of each of the Collateral Documents create
in favor of the Collateral Agent for the benefit of the Lenders and the
Noteholders, a legal, valid and enforceable first priority security interest in
all right, title and interest of the Loan Parties in the Collateral described
therein, subject only to any Permitted Liens. As of the Effective Date, all
Equipment and Inventory (as such terms are defined in the applicable Security
Agreement) of the Loan Parties will be kept at, or will be in transit to, the
locations set forth on schedules to the applicable Security Agreement, and when
financing statements have been filed in the appropriate offices in the
jurisdictions corresponding to such locations, when appropriate filings have
been made in the U.S. Patent and Trademark Office, and when such other actions
as are each described in each of the Collateral Documents are completed, each of
the Collateral Documents shall have created a perfected security interest in all
right, title and interest of the applicable Loan Party in the Collateral
described therein, and except for Permitted Liens existing on the Effective Date
and whose priority cannot be superseded by the provisions hereof or of any
Collateral Document and filings hereunder or thereunder, a perfected first lien
on, and security interest in, all right, title and interest of such Loan Party,
as the case may be, in the Collateral described in each Collateral Document.
(ii) Each Mortgage, when delivered will be effective to grant
to the Collateral Agent for the benefit of the Lenders and the Noteholders a
legal, valid and enforceable lien on all the right, title and interest of the
mortgagor under such Mortgage in the mortgaged property described therein,
subject to bankruptcy, insolvency and creditors' right generally, general
principles of equity, and limitations or qualifications on the enforcement of
certain rights, remedies and waivers by the jurisdiction in which enforcement is
sought. When each such Mortgage is duly recorded in the offices listed on the
schedule to such Mortgage and the mortgage recording fees and taxes in respect
thereof are paid and the formal requirements of state law applicable to the
recording of real estate mortgages generally are complied with, each such
mortgaged property, subject to the encumbrances and exceptions to title set
forth therein and any Permitted Liens and except as noted in the title policies
delivered to the Collateral Agent pursuant to
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Section 4.1(xii)(f), shall be subject to a legal, valid, enforceable and
perfected first priority lien; and when financing statements have been filed in
the offices specified in such Mortgage, such Mortgage also creates a legal,
valid, enforceable and perfected first lien on, and security interest in, all
right, title and interest of the applicable Loan Party under such Mortgage in
all personal property and fixtures covered by such Mortgage, subject to no other
Liens, except the encumbrances and exceptions to title set forth therein and
except as noted in the title policies delivered to the Collateral Agent and
Permitted Liens.
ARTICLE VI.
COVENANTS
---------
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.1 FINANCIAL REPORTING. The Company will maintain, for itself and each
Subsidiary, a system of accounting established and administered in accordance
with Agreement Accounting Principles, and furnish to the Lenders:
(i) Within 90 days after the close of each of its fiscal
years, an unqualified (except for qualifications relating to changes in
accounting principles or practices reflecting changes in generally accepted
accounting principles and required or approved by the Borrower's independent
certified public accountants) audit report certified by nationally recognized
independent certified public accountants, prepared in accordance with Agreement
Accounting Principles on a consolidated and consolidating basis (consolidating
statements need not be certified by such accountants) for itself and its
Subsidiaries, including balance sheets as of the end of such period, related
profit and loss and reconciliation of surplus statements, and a statement of
cash flows, accompanied by a certificate of said accountants that, in the course
of their examination necessary for their certification of the foregoing, they
have obtained no knowledge of any Default or Unmatured Default, or if, in the
opinion of such accountants, any Default or Unmatured Default shall exist,
stating the nature and status thereof.
(ii) Within 45 days after the close of the first three
quarterly periods of each of its fiscal years, for itself and its Subsidiaries,
consolidated and consolidating unaudited balance sheets as at the close of each
such period and consolidated and consolidating profit and loss and
reconciliation of surplus statements and a statement of cash flows for the
period from the beginning of such fiscal year to the end of such quarter, all
certified by its chief financial officer.
(iii) Together with the financial statements required under
Sections 6.1(i) and (ii), a compliance certificate in substantially the form of
EXHIBIT E signed by its chief financial officer showing the calculations
necessary to determine compliance with this Agreement and stating that no
Default or Unmatured Default exists, or if any Default or Unmatured Default
exists, stating the nature and status thereof.
(iv) Within 270 days after the close of each fiscal year, a
statement of the Unfunded Liabilities of each Single Employer Plan, certified as
correct by an actuary enrolled under ERISA.
(v) As soon as possible and in any event within 10 days after
a Borrower knows that any Reportable Event has occurred with respect to any
Plan, a statement, signed by the chief financial officer of the Company,
describing said Reportable Event and the action which the Borrower proposes to
take with respect thereto.
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(vi) As soon as possible and in any event within 10 days after
receipt by a Borrower, a copy of (a) any notice or claim to the effect that the
Borrower or any of its Subsidiaries is or may be liable to any Person as a
result of the release by the Borrower, any of its Subsidiaries, or any other
Person of any toxic or hazardous waste or substance into the environment, and
(b) any notice alleging any violation of any federal, state or local
environmental, health or safety law or regulation by the Company or any of its
Subsidiaries, which, in either case, could reasonably be expected to have a
Material Adverse Effect.
(vii) Promptly upon the furnishing thereof to the shareholders
of the Company, copies of all financial statements, reports and proxy statements
so furnished.
(viii) Promptly upon the filing thereof, copies of all
registration statements and annual, quarterly, monthly or other regular reports
which the Company or any of its Subsidiaries files with the Securities and
Exchange Commission.
(ix) No later than the 21st day of each month, a Borrowing
Base Certificate, prepared as of the close of business on the last Business Day
of the previous month, together with supporting schedules, in form and detail
satisfactory to the Agent, setting forth such information as the Agent may
reasonably request, certified as true and correct by a duly authorized officer
of the Company.
(x) Such other information (including non-financial
information) as the Agent or any Lender may from time to time reasonably
request.
6.2 USE OF PROCEEDS. The Company will, and will cause each Subsidiary
to, use the proceeds of the Credit Extensions for working capital, general
corporate purposes and Acquisitions. The Company will not, nor will it permit
any Subsidiary to, use any of the proceeds of the Advances to purchase or carry
any "margin stock" (as defined in Regulation U) .
6.3 NOTICE OF DEFAULT. The Company will, and will cause each Subsidiary
to, give prompt notice in writing to the Lenders of the occurrence of any
Default or Unmatured Default and of any other development, financial or
otherwise, which could reasonably be expected to have a Material Adverse Effect.
6.4 CONDUCT OF BUSINESS. The Company will, and will cause each
Subsidiary to, carry on and conduct its business in substantially the same
manner and in substantially the same fields of enterprise as it is presently
conducted and do all things necessary to remain duly incorporated or organized,
validly existing and (to the extent such concept applies to such entity) in good
standing as a domestic corporation, partnership or limited liability company in
its jurisdiction of incorporation or organization, as the case may be, and
maintain all requisite authority to conduct its business in each jurisdiction in
which its business is conducted.
6.5 TAXES. The Company will, and will cause each Subsidiary to, timely
file complete and correct United States federal and applicable foreign, state
and local tax returns required by law and pay when due all taxes, assessments
and governmental charges and levies upon it or its income, profits or Property,
except those which are being contested in good faith by appropriate proceedings
and with respect to which adequate reserves have been set aside in accordance
with Agreement Accounting Principles and those which the failure to file or pay
would not reasonably be expected to have a Material Adverse Effect.
6.6 INSURANCE. The Company will, and will cause each Subsidiary to,
maintain with financially sound and reputable insurance companies insurance on
all their Property in such amounts and
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covering such risks as is consistent with sound business practice, and the
Company will furnish to any Lender upon request full information as to the
insurance carried.
6.7 COMPLIANCE WITH LAWS. The Company will, and will cause each
Subsidiary to, comply with all laws, rules, regulations, orders, writs,
judgments, injunctions, decrees or awards to which it may be subject including,
without limitation, all Environmental Laws, PROVIDED that it shall not be deemed
a violation of this Section 6.7 if any failure to comply with any of the
foregoing would not result in fines, penalties, remediation costs, other similar
liabilities or injunctive relief which in the aggregate would have a Material
Adverse Effect.
6.8 MAINTENANCE OF PROPERTIES. The Company will, and will cause each
Subsidiary to, do all things necessary to maintain, preserve, protect and keep
its Property in good repair, working order and condition (excepting ordinary
wear and tear), and make all necessary and proper repairs, renewals and
replacements so that its business carried on in connection therewith may be
properly conducted at all times.
6.9 INSPECTION. The Company will, and will cause each Subsidiary to,
permit the Agent and the Lenders, by their respective representatives and
agents, to inspect any of the Property, books and financial records of the
Company and each Subsidiary, to examine and make copies of the books of accounts
and other financial records of the Company and each Subsidiary, and to discuss
the affairs, finances and accounts of the Company and each Subsidiary with, and
to be advised as to the same by, their respective officers at such reasonable
times and intervals as the Agent or any Lender may designate, PROVIDED that each
Lender shall provide the Company and the Agent with reasonable notice prior to
any visit or inspection; PROVIDED further, so long as no Default or Unmatured
Default exists, such inspection by the Agent or any Lender shall not be more
frequent than once in any twelve month period. In the event any Lender desires
to conduct an inspection of the Company, such Lender shall make a reasonable
effort to conduct such inspection contemporaneously with any audit to be
performed by the Agent.
6.10 DIVIDENDS. The Company will not, nor will it permit any Subsidiary
to, declare or pay any dividends or make any distributions on its Capital Stock
(other than dividends payable in its own Capital Stock which is common stock) or
redeem, repurchase or otherwise acquire or retire any of its Capital Stock at
any time outstanding, except that (a) any Subsidiary may declare and pay
dividends or make distributions to the Company or to a Wholly-Owned Subsidiary
and (b) provided that no Default or Unmatured Default exists or would be caused
thereby, the Company may make such other dividends, redemptions or distributions
which do not exceed in the aggregate an amount equal to 50% of the Consolidated
Net Income of the Company and its Subsidiaries earned in the twelve-month period
immediately preceding the date of any such dividend, redemption or distribution,
plus other redemptions and repurchases in connection with the Company's share
repurchase program in an aggregate amount not exceeding $5,000,000 in any fiscal
year.
6.11 INDEBTEDNESS. The Company will not, nor will it permit any
Subsidiary to, create, incur or suffer to exist any Indebtedness, except:
(i) The Loans, the Facility Letters of Credit and the other
Obligations.
(ii) Indebtedness of the Company or any Subsidiary owing to the
Company or any of its Subsidiaries.
(iii) Contingent Obligations with respect to the endorsement of
instruments for deposit or collection in the ordinary course of business,
Contingent Obligations relating to Indebtedness which is otherwise permitted
under this Section 6.11 and Contingent Obligations with respect to
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performance guaranties given by the Company with respect to obligations of
Subsidiaries under contracts in the ordinary course of business.
(iv) Indebtedness of the Borrowers under Rate Hedging
Agreements.
(v) Indebtedness outstanding under the Senior Note Agreement.
(vi) Subordinated Indebtedness.
(vii) Indebtedness described on Schedule 6.11, provided that no
increase in the commitment or facility amount thereof shall be permitted.
(viii) Other Indebtedness; PROVIDED that, at the time of the
creation, incurrence or assumption of such other Indebtedness and after giving
effect thereto, no Default or Unmatured Default exists and the aggregate amount
of all such other Indebtedness of the Company and its Subsidiaries does not
exceed an amount equal to $2,000,000.
(ix) Any refunding or refinancing of any Indebtedness referred
to in clauses (ii) through (viii) above, PROVIDED that any such refunding or
refinancing of such Indebtedness does not increase the principal amount thereof,
shorten the maturities thereof or make any of the other terms or provisions
thereof materially more onerous on the Company or any of its Subsidiaries.
6.12 MERGER. The Company will not, nor will it permit any Subsidiary
to, merge or consolidate with or into any other Person, except that a Subsidiary
may merge into the Company or a Wholly-Owned Subsidiary and except as otherwise
permitted pursuant to Section 6.14.
6.13 SALE OF ASSETS. The Company will not, nor will it permit any
Subsidiary to, lease, sell or otherwise dispose of its Property to any other
Person, except:
(i) Sales of inventory in the ordinary course of business.
(ii) Sales or other dispositions in the ordinary course of
business of fixed assets for the purpose of replacing such fixed assets,
provided that such fixed assets are replaced within 180 days of such sale or
other disposition with other fixed assets which have a fair market value not
materially less than the fixed assets sold or otherwise disposed of.
(iii) Leases, sales or other dispositions of its Property
that, together with all other Property of the Company and its Subsidiaries
previously leased, sold or disposed of (other than inventory in the ordinary
course of business) as permitted by this Section during the twelve-month period
ending with the month in which any such lease, sale or other disposition occurs,
do not constitute a Substantial Portion of the Property of the Company and its
Subsidiaries.
(iv) Leases, sales or transfers of property (or portions
thereof or interests therein) from the Company to any Subsidiary, from any
Subsidiary to the Company or from any Subsidiary to any other Subsidiary,
provided that any Lien on such property existing under the Collateral Documents
shall continue to be a valid perfected first-priority Lien in favor of the
Collateral Agent after such transfer.
6.14 INVESTMENTS AND ACQUISITIONS. The Company will not, nor will it
permit any Subsidiary to, make or suffer to exist any Investments (including
without limitation, loans and advances to, and other Investments in,
Subsidiaries), or commitments therefor, or to create any Subsidiary or to become
or remain a partner in any partnership or joint venture, or to make any
Acquisition of any Person, except:
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(i) Cash Equivalent Investments.
(ii) Existing Investments in Subsidiaries and additional
Investments in Subsidiaries (including any newly created Subsidiary) not
constituting Acquisitions and not exceeding $100,000 in the aggregate for each
Subsidiary, Indebtedness of any Subsidiary to the Company permitted pursuant to
Section 6.11 and other Investments in existence on the date hereof and described
in Schedule 6.14.
(iii) Acquisitions, so long as (A) the Company or a Subsidiary
shall be the surviving or continuing corporation thereof, so long as any new
Subsidiary formed in connection with such Acquisition within sixty (60) days of
such Acquisition, either (x) is merged into the Company, or (y) executes a
Guaranty limited to the consideration paid by the Company or such Subsidiary in
connection with such Acquisition, (B) immediately before and after such merger
or Acquisition, no Default or Unmatured Default shall exist or shall have
occurred and be continuing and the representations and warranties contained in
Article V shall be true and correct on and as of the date thereof (both before
and after such Acquisition is consummated) as if made on the date such
Acquisition is consummated, (C) the aggregate amount paid or payable in cash for
(x) all such Acquisitions by the Company during any fiscal year does not exceed
$15,000,000, and (y) all such Acquisitions by the Company after the Effective
Date through March 31, 2002 does not exceed $30,000,000, (D) after giving effect
to such Acquisition, the Available Aggregate Commitment shall be not less than
$6,250,000, and (E) prior to the consummation of any such Acquisition which
would result in the total cash consideration paid or to be paid by the Company
for Acquisitions since the Effective Date exceeding $3,000,000, the Company
shall have provided to the Lenders a certificate of the chief financial officer
of the Company (attaching computations and pro forma financial statements to
demonstrate pro forma compliance with all financial covenants hereunder both
before and after such Acquisition has been completed), stating that (x) such
Acquisition complies with this Section 6.14 (y) the Leverage Ratio, both before
and after such Acquisition has been completed, does not exceed 3.0 to 1.0, and
(z) that any other conditions under this Agreement relating to such transaction
have been satisfied. For purposed of calculating consideration to be paid in
connection with any Acquisition, the amount of any earn-out which may be paid by
the Company in connection with such Acquisition shall be excluded.
(iv) Investments in joint ventures in an aggregate amount not
exceeding (A) $1,000,000 with respect to any joint venture, and (B) $3,000,000
in the aggregate.
6.15 LIENS. The Company will not, nor will it permit any Subsidiary to,
create, incur, or suffer to exist any Lien in, of or on the Property of the
Company or any of its Subsidiaries, except for the following ("Permitted
Liens"):
(i) Liens for taxes, assessments or governmental charges or
levies on its Property if the same shall not at the time be delinquent or
thereafter can be paid without penalty, or are being contested in good faith and
by appropriate proceedings and for which adequate reserves in accordance with
Agreement Accounting Principles shall have been set aside on its books.
(ii) Liens imposed by law, such as carriers', warehousemen's
and mechanics' liens and other similar liens arising in the ordinary course of
business which secure payment of obligations not more than 60 days past due or
which are being contested in good faith by appropriate proceedings and for which
adequate reserves shall have been set aside on its books.
(iii) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions, or other social
security or retirement benefits, or similar legislation.
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(iv) Utility easements, covenants, restrictions, easements,
agreements and reservations of record, if any, building restrictions and such
other encumbrances or charges against real property as are of a nature generally
existing with respect to properties of a similar character and which are not
violated by the Property and do not in any material way affect the marketability
of the same or interfere with the use thereof in the business of the Borrower or
its Subsidiaries.
(v) Liens existing on the date hereof and described in
Schedule 6.15.
(vi) Purchase money Liens securing Indebtedness otherwise
permitted pursuant to Section 6.11.
6.16 AFFILIATES. The Company will not, and will not permit any
Subsidiary to, enter into any transaction (including, without limitation, the
purchase or sale of any Property or service) with, or make any payment or
transfer to, any Affiliate except in the ordinary course of business and
pursuant to the reasonable requirements of the Company's or such Subsidiary's
business and upon fair and reasonable terms no less favorable to the Company or
such Subsidiary than the Company or such Subsidiary would obtain in a comparable
arms-length transaction.
6.17 FINANCIAL CONTRACTS. The Company will not, nor will it permit any
Subsidiary to, enter into or remain liable upon any Financial Contract for
purposes of financial speculation.
6.18 ADDITIONAL COVENANTS. Any covenants, terms, conditions or defaults
in the Senior Note Agreement as in effect on the date hereof (assuming the
effectiveness of the amendments thereto contained in that certain modification
letter dated the date hereof) not substantially provided for in this Agreement
or more favorable to the holders of Senior Note Agreement issued in connection
therewith are hereby incorporated by reference into this Agreement to the same
extent as if set forth fully herein, and no subsequent amendment, waiver,
termination or modification thereof shall effect any such covenants, terms,
conditions or defaults as incorporated herein.
6.19 FINANCIAL COVENANTS.
6.19.1. CONSOLIDATED FIXED CHARGE COVERAGE RATIO. The Company will not
permit the Consolidated Fixed Charge Coverage Ratio of the Company and its
Subsidiaries, determined as of the end of each of its fiscal quarters to be less
than (i) 1.4 to 1.0 for the quarters ending March 31, 2000 and June 30, 2000,
(ii) 1.45 to 1.0 for the quarter ending September 30, 2000, and (iii) 1.5 to 1.0
thereafter.
6.19.2. LEVERAGE RATIO. The Company will not permit the Consolidated
Leverage Ratio of the Company and its Subsidiaries, determined as of the end of
each of its fiscal quarters, to be greater than (i) 4.00 to 1.0 for the period
ending Xxxxx 00, 0000, (xx) 4.50 to 1.0 for the period ending June 30, 2000,
(iii) 4.60 to 1.0 for the period ending September 30, 2000, (iv) 4.25 to 1.0 for
the period ending December 31, 2000, and (v) 3.25 to 1.0 for the period ending
March 31, 2001 and thereafter.
6.19.3. MINIMUM CONSOLIDATED NET WORTH. The Company will at all times
maintain Consolidated Net Worth of not less than the sum of (i) $52,000,000,
plus (ii) 50% of Consolidated Net Income earned in each fiscal year beginning
with the year ending March 31, 2000 (without deduction for losses), provided,
however, that for purposes of this Section 6.19.3, there shall be added to the
Consolidated Net Worth of the Company unusual charges not in excess of
$2,000,000 recorded during the fiscal quarter ended March 31, 2000 relating to
legal fees or a reserve established therefor and the discontinuance of certain
product lines of the Company.
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6.20 ADDITIONAL SECURITY AND COLLATERAL. The Company will (i) cause
each Subsidiary of the Company that becomes a Significant Subsidiary of the
Company and that is not a Foreign Subsidiary and is not owned by a Foreign
Subsidiary from time to time to execute and deliver to the Collateral Agent,
within 30 days after such person becomes a Significant Subsidiary, a Subsidiary
Guaranty, together with other related documents described in Section 4.1, and
the Company shall pledge (or shall cause a Subsidiary to pledge) 100% of the
capital stock of each such Person becoming such a Significant Subsidiary within
30 days after such person becomes a Significant Subsidiary to the Collateral
Agent for the benefit of the Lenders and the Noteholders; and (ii) promptly
pledge 65% of the capital stock of each Foreign Subsidiary formed or acquired
after the Effective Date as a direct Subsidiary of the Company that is also a
Significant Subsidiary to the Collateral Agent for the benefit of the Lenders
and the Noteholders.
ARTICLE VII.
DEFAULTS
--------
The occurrence of any one or more of the following events shall
constitute a Default:
7.1 Any representation or warranty made or deemed made by or on behalf
of the Company or any of its Subsidiaries to the Lenders or the Agent under or
in connection with this Agreement, any Credit Extension, or any certificate or
information delivered in connection with this Agreement or any other Loan
Document shall be materially false on the date as of which made.
7.2 Nonpayment of principal of any Loan when due, nonpayment of any
Reimbursement Obligation within one Business Day after the same becomes due, or
nonpayment of interest upon any Loan or of any facility fee, LC Fee or other
obligations under any of the Loan Documents within five days after the same
becomes due.
7.3 The breach by any Borrower of any of the terms or provisions in
Sections 6.1, 6.2, 6.3, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.17, or 6.18.
7.4 The breach by any Borrower (other than a breach which constitutes a
Default under another Section of this Article VII) of any of the terms or
provisions of this Agreement which is not remedied within thirty days after
written notice from the Agent or any Lender.
7.5 Failure of the Company or any of its Subsidiaries to pay when due
(beyond the applicable grace period with respect thereto, if any) any
Indebtedness aggregating in excess of $5,000,000 ("Material Indebtedness"); or
the default by the Company or any of its Subsidiaries in the performance (beyond
the applicable grace period with respect thereto, if any) of any term, provision
or condition contained in any agreement under which any such Material
Indebtedness was created or is governed, or any other event shall occur or
condition exist, the effect of which default or event is to cause, or to permit
the holder or holders of such Material Indebtedness to cause, such Material
Indebtedness to become due prior to its stated maturity; or any Material
Indebtedness of the Company or any of its Subsidiaries shall be declared to be
due and payable or required to be prepaid or repurchased (other than by a
regularly scheduled payment) prior to the stated maturity thereof; or the
Company or any of its Subsidiaries shall not pay, or admit in writing its
inability to pay, its debts generally as they become due.
7.6 The Company or any of its Subsidiaries shall (i) have an order for
relief entered with respect to it under the Federal bankruptcy laws as now or
hereafter in effect, (ii) make an assignment for the benefit of creditors, (iii)
apply for, seek, consent to, or acquiesce in, the appointment of a receiver,
custodian, trustee, examiner, liquidator or similar official for it or any
Substantial Portion of its Property,
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(iv) institute any proceeding seeking an order for relief under the Federal
bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a
bankrupt or insolvent, or seeking dissolution, winding up, liquidation,
reorganization, arrangement, adjustment or composition of it or its debts under
any law relating to bankruptcy, insolvency or reorganization or relief of
debtors or fail to file an answer or other pleading denying the material
allegations of any such proceeding filed against it, (v) take any corporate or
partnership action to authorize or effect any of the foregoing actions set forth
in this Section 7.6 or (vi) fail to contest in good faith any appointment or
proceeding described in Section 7.7.
7.7 Without the application, approval or consent of the Company or any
of its Subsidiaries, a receiver, trustee, examiner, liquidator or similar
official shall be appointed for the Company or any of its Subsidiaries or any
Substantial Portion of its Property, or a proceeding described in Section
7.6(iv) shall be instituted against the Company or any of its Subsidiaries and
such appointment continues undischarged or such proceeding continues undismissed
or unstayed for a period of 60 consecutive days.
7.8 Any court, government or governmental agency shall condemn, seize
or otherwise appropriate, or take custody or control of, all or any portion of
the Property of the Company and its Subsidiaries which, when taken together with
all other Property of the Company and its Subsidiaries so condemned, seized,
appropriated, or taken custody or control of, during the twelve-month period
ending with the month in which any such action occurs, constitutes a Substantial
Portion.
7.9 The Company or any of its Subsidiaries shall fail within 30 days to
pay, bond or otherwise discharge one or more (i) judgments or orders for the
payment of money in excess of $5,000,000 (or the equivalent thereof in
currencies other than U.S. Dollars) in the aggregate, or (ii) nonmonetary
judgments or orders which, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect, which judgment(s), in any such case,
is/are not stayed on appeal or otherwise being appropriately contested in good
faith.
7.10 The Unfunded Liabilities of all Single Employer Plans shall exceed
in the aggregate $1,000,000 or any Reportable Event shall occur in connection
with any Plan.
7.11 The Company or any of its Subsidiaries shall (i) be the subject of
any proceeding or investigation pertaining to the release by the Company, any of
its Subsidiaries or any other Person of any toxic or hazardous waste or
substance into the environment, or (ii) violate any Environmental Law, which, in
the case of an event described in clause (i) or clause (ii), could reasonably be
expected to have a Material Adverse Effect.
7.12 Any Guaranty shall fail to remain in full force or effect or any
action shall be taken to discontinue or to assert the invalidity or
unenforceability of any Guaranty, or any Guarantor shall deny that it has any
further liability under any Guaranty to which it is a party, or shall give
notice to such effect.
ARTICLE VIII.
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
----------------------------------------------
8.1 ACCELERATION; FACILITY LC COLLATERAL ACCOUNT.
(i) If any Default described in Section 7.6 or 7.7 occurs, the
obligations of the Lenders to make Loans hereunder and the obligation and power
of the LC Issuer to issue Facility LCs shall automatically terminate and the
Obligations shall immediately become due and payable without any
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election or action on the part of the Agent, the LC Issuer or any Lender and the
Borrowers will be and become thereby unconditionally obligated, without any
further notice, act or demand, to pay to the Agent an amount in immediately
available funds, which funds shall be held in the Facility LC Collateral
Account, equal to the difference of (x) the amount of LC Obligations at such
time, less (y) the amount on deposit in the Facility LC Collateral Account at
such time which is free and clear of all rights and claims of third parties and
has not been applied against the Obligations (such difference, the "Collateral
Shortfall Amount"). If any other Default occurs, the Required Lenders (or the
Agent with the consent of the Required Lenders) may (a) terminate or suspend the
obligations of the Lenders to make Loans hereunder and the obligation and power
of the LC Issuer to issue Facility LCs, or declare the Obligations to be due and
payable, or both, whereupon the Obligations shall become immediately due and
payable, without presentment, demand, protest or notice of any kind, all of
which each Borrower hereby expressly waives, and (b) upon notice to the Company
and in addition to the continuing right to demand payment of all amounts payable
under this Agreement, make demand on the Borrowers to pay, and the Borrowers
will, forthwith upon such demand and without any further notice or act, pay to
the Agent the Collateral Shortfall Amount, which funds shall be deposited in the
Facility LC Collateral Account.
(ii) If at any time while any Default is continuing, the Agent
determines that the Collateral Shortfall Amount at such time is greater than
zero, the Agent may make demand on the Borrowers to pay, and the Borrowers will,
forthwith upon such demand and without any further notice or act, pay to the
Agent the Collateral Shortfall Amount, which funds shall be deposited in the
Facility LC Collateral Account.
(iii) The Agent may at any time or from time to time after
funds are deposited in the Facility LC Collateral Account, apply such funds to
the payment of the Obligations and any other amounts as shall from time to time
have become due and payable by the Borrowers to the Lenders or the LC Issuer
under the Loan Documents.
(iv) Neither any Borrower nor any Person claiming on behalf of
or through the Borrower shall have any right to withdraw any of the funds held
in the Facility LC Collateral Account. After all of the Obligations have been
indefeasibly paid in full and the Aggregate Commitment has been terminated, any
funds remaining in the Facility LC Collateral Account shall be returned by the
Agent to the Company or paid to whomever may be legally entitled thereto at such
time.
8.2 AMENDMENTS.
Subject to the provisions of this Article VIII, the Required
Lenders (or the Agent with the consent in writing of the Required Lenders) and
the Borrowers may enter into agreements supplemental hereto for the purpose of
adding or modifying any provisions to the Loan Documents or changing in any
manner the rights of the Lenders or the Borrowers hereunder or waiving any
Default hereunder PROVIDED, HOWEVER, no such supplemental agreement shall, (i)
without the consent of the Required U.S. Lenders, allow the Company to obtain a
U.S. Revolving Credit Loan or U.S. Facility Letter of Credit if it would
otherwise be unable to do so absent such supplemental agreement, or (ii) without
the consent of the Required Canadian Lenders, allow the Canadian Borrower, to
obtain a Canadian Loan or Canadian Facility Letter of Credit if it would
otherwise be unable to do so absent such supplemental agreement; provided,
further, that no such supplemental agreement shall, without the consent of all
of the Lenders:
(a) Extend the final maturity of any Loan, or extend the
expiry date of any Facility LC to a date after the Facility Termination Date or
postpone any regularly scheduled payment of principal of any Loan or forgive all
or any portion of the principal amount thereof or any Reimbursement Obligation
related thereto, or reduce the rate or extend the time of payment of interest or
fees thereon or Reimbursement Obligations related thereto.
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(b) Reduce the percentage specified in the definition of
Required Lenders or Required Canadian Lenders.
(c) Extend the Facility Termination Date, or increase the
amount of the Aggregate Commitment, the Commitment of any Lender hereunder or
the commitment to issue Facility LCs, or permit the Borrower to assign its
rights under this Agreement.
(d) Amend this Section 8.2.
(e) Except as allowed in the Loan Documents, release any
Guarantor from its obligations under a Guaranty.
(f) Except as allowed in the Loan Documents, release any
substantial portion of the Collateral.
(g) Eliminate the Borrowing Base requirement or increase
either of the advance rates set forth in the definition of Borrowing Base.
No amendment of any provision of this Agreement relating to the Agent shall be
effective without the written consent of the Agent, and no amendment of any
provision relating to the LC Issuer shall be effective without the written
consent of the LC Issuer. The Agent may waive payment of the fee required under
Section 13.3.2 without obtaining the consent of any other party to this
Agreement.
8.3 PRESERVATION OF RIGHTS. No delay or omission of the Lenders, the LC
Issuer or the Agent to exercise any right under the Loan Documents shall impair
such right or be construed to be a waiver of any Default or an acquiescence
therein, and the making of a Credit Extension notwithstanding the existence of a
Default or the inability of the Borrower to satisfy the conditions precedent to
such Credit Extension shall not constitute any waiver or acquiescence. Any
single or partial exercise of any such right shall not preclude other or further
exercise thereof or the exercise of any other right, and no waiver, amendment or
other variation of the terms, conditions or provisions of the Loan Documents
whatsoever shall be valid unless in writing signed by the Lenders required
pursuant to Section 8.2, and then only to the extent in such writing
specifically set forth. All remedies contained in the Loan Documents or by law
afforded shall be cumulative and all shall be available to the Agent, the LC
Issuer and the Lenders until the Obligations have been paid in full.
ARTICLE IX.
GUARANTEE
---------
9.1 GUARANTEE.
(a) The Company hereby unconditionally and irrevocably
guarantees to the Agent and the Lenders and their respective successors,
endorsees, transferees and assigns, the prompt and complete payment and
performance by the Canadian Borrower when due (whether at the stated maturity,
by acceleration or otherwise) of the Obligations owing by the Canadian Borrower.
(b) The Company further agrees to pay any and all expenses
(including, without limitation, all reasonable fees and disbursements of
counsel) which are paid or incurred by the Agent, or any Lender in enforcing, or
obtaining advice of counsel in respect of, any rights with respect to, or
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collecting, any or all of the Obligations and/or enforcing any rights with
respect to, or collecting against, the Company under this Section. This Section
shall remain in full force and effect until the Obligations are paid in full and
the Commitments are terminated, notwithstanding that from time to time prior
thereto the Borrowers may be free from any Obligations.
(c) No payment or payments made by any Borrower or any other
Person or received or collected by the Agent or any Lender from any Borrower or
any other Person by virtue of any action or proceeding or any set-off or
appropriation or application, at any time or from time to time, in reduction of
or in payment of the Obligations shall be deemed to modify, reduce, release or
otherwise affect the liability of the Company hereunder which shall,
notwithstanding any such payment or payments, remain liable hereunder for the
Obligations until the Obligations are paid in full and the Commitments are
terminated.
(d) The Company agrees that whenever, at any time, or from
time to time, it shall make any payment to the Agent or any Lender on account of
its liability under this Section, it will notify the Agent and such Lender in
writing that such payment is made under this Section for such purpose.
9.2 NO SUBROGATION. Notwithstanding any payment or payments made by the
Company hereunder, or any set-off or application of funds of the Company by the
Agent or any Lender, the Company shall not be entitled to be subrogated to any
of the rights of the Agent or any Lender against the Canadian Borrower or
against any collateral security or guarantee or right of offset held by the
Agent or any Lender for the payment of the Obligations, nor shall the Company
seek or be entitled to seek any contribution or reimbursement from the Canadian
Borrower in respect of payments made by the Company hereunder, until all amounts
owing to the Agent and the Lenders by the Borrowers on account of the
Obligations are paid in full and the Commitments are terminated. If any amount
shall be paid to the Company on account of such subrogation rights at any time
when all of the Obligations shall not have been paid in full, such amount shall
be held by the Company in trust for the Agent and the Lenders, segregated from
other funds of the Company, and shall, forthwith upon receipt by the Company, be
turned over to the Agent in the exact form received by the Company (duly
endorsed by the Company to the Agent, if required), to be applied against the
Obligations, whether matured or unmatured, in such order as Agent may determine.
The provisions of this paragraph shall survive the termination of this Agreement
and the payment in full of the Obligations and the termination of the
Commitments.
9.3 AMENDMENTS, ETC. WITH RESPECT TO THE OBLIGATIONS; WAIVER OF RIGHTS.
The Company shall remain obligated hereunder notwithstanding that, without any
reservation of rights against the Company, and without notice to or further
assent by the Company, any demand for payment of any of the Obligations made by
the Agent or the Required Lenders may be rescinded by the Agent or the Required
Lenders, and any of the Obligations continued, and the Obligations, or the
liability of any other party upon or for any part thereof, or any collateral
security or guarantee therefor or right of offset with respect thereto, may,
from time to time, in whole or in part be renewed, extended, amended, modified,
accelerated, compromised, waived, surrendered or released by the Agent or the
Required Lenders, and any Loan Documents and any other documents executed and
delivered in connection therewith may be amended, modified, supplemented or
terminated, in whole or in part, in accordance with the provisions thereof as
the Agent (or the Required Lenders, as the case may be) may deem advisable from
time to time, and any collateral security, guarantee or right of offset at any
time held by the Agent or any Lender for the payment of the Obligations may be
sold, exchanged, waived, surrendered or released. None of the Agent or any
Lender shall have any obligation to protect, secure, perfect or insure any Lien
at any time held by it as security for the Obligations or for this Agreement or
any property subject thereto. When making any demand hereunder against the
Company, the Agent or any Lender may, but shall be under no obligation to, make
a similar demand on any other Borrower or any other guarantor, and any failure
by the Agent or any Lender to make any such demand or to collect any payments
from any other Borrower
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or any such other guarantor or any release of the Borrowers or such other
guarantor shall not relieve the Company of its obligations or liabilities
hereunder, and shall not impair or affect the rights and remedies, express or
implied, or as a matter of law, of the Agent or any Lender against the Company.
For the purposes hereof "demand" shall include the commencement and continuance
of any legal proceedings.
9.4 GUARANTEE ABSOLUTE AND UNCONDITIONAL. The Company waives any and
all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by the Agent or any Lender upon
this Agreement or acceptance of this Agreement; the Obligations, and any of
them, shall conclusively be deemed to have been created, contracted or incurred,
or renewed, extended, amended or waived, in reliance upon this Agreement; and
all dealings among the Borrowers, on the one hand, and the Agent and the
Lenders, on the other, shall likewise be conclusively presumed to have been had
or consummated in reliance upon this Agreement. The Company waives diligence,
presentment, protest, demand for payment and notice of default or nonpayment to
or upon the Canadian Borrower and the Company with respect to the Obligations.
This Article IX shall be construed as a continuing, absolute and unconditional
guarantee of payment without regard to (a) the validity, regularity or
enforceability of this Agreement, any other Loan Document, any of the
Obligations or any other collateral security therefor or guarantee or right of
offset with respect thereto at any time or from time to time held by the Agent
or any Lender, (b) any defense, set-off or counterclaim (other than a defense of
payment or performance by any Borrower) which may at any time be available to or
be asserted by any Borrower against the Agent or any Lender, or (c) any other
circumstance whatsoever (with or without notice to or knowledge of any Borrower)
which constitutes, or might be construed to constitute, an equitable or legal
discharge of the Borrowers for the Obligations, or of the Company under this
Section 9.4, in bankruptcy or in any other instance (other than a defense of
payment or performance by the Borrowers). When pursuing its rights and remedies
hereunder against the Company, the Agent and any Lender may, but shall be under
no obligation to, pursue such rights and remedies as it may have against any
Borrower or any other Person or against any collateral security or guarantee for
the Obligations or any right of offset with respect thereto, and any failure by
the Agent or any Lender to pursue such other rights or remedies or to collect
any payments from the Borrowers or any such other Person or to realize upon any
such collateral security or guarantee or to exercise any such right of offset,
or any release of the Borrowers or any such other Person or of any such
collateral security, guarantee or right of offset, shall not relieve the Company
of any liability hereunder, and shall not impair or affect the rights and
remedies, whether express, implied or available as a matter of law, of the Agent
or any Lender against the Company. This Article IX shall remain in full force
and effect and be binding in accordance with and to the extent of its terms upon
the Company and its successors and assigns, and shall inure to the benefit of
the Agent and the Lenders, and their respective successors, endorsees,
transferees and assigns, until all the Obligations and the obligations of the
Company under this Agreement shall have been satisfied by payment in full and
the Commitments shall be terminated, notwithstanding that from time to time
during the term of this Agreement the Borrowers may be free from any
Obligations.
9.5 REINSTATEMENT. This Article IX shall continue to be effective, or
be reinstated, as the case may be, if at any time payment, or any part thereof,
of any of the Obligations is rescinded or must otherwise be restored or returned
by the Agent or any Lender upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of any Borrower or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or Trustee or similar
officer for, any Borrower or any substantial part of its property, or otherwise,
all as though such payments had not been made.
9.6 PAYMENTS. The Company hereby agrees that all payments required to
be made by it hereunder will be made to the Agent without set-off or
counterclaim in accordance with the terms of the Obligations, including, without
limitation, in the currency in which payment is due.
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ARTICLE X.
GENERAL PROVISIONS
------------------
10.1 SURVIVAL OF REPRESENTATIONS. All representations and warranties of
the Borrowers contained in this Agreement shall survive the making of the Credit
Extensions herein contemplated.
10.2 GOVERNMENTAL REGULATION. Anything contained in this Agreement to
the contrary notwithstanding, neither the LC Issuer not any Lender shall be
obligated to extend credit to any Borrower in violation of any limitation or
prohibition provided by any applicable statute or regulation.
10.3 HEADINGS. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any of
the provisions of the Loan Documents.
10.4 ENTIRE AGREEMENT. The Loan Documents embody the entire agreement
and understanding among the Borrowers, the Agent, the LC Issuer and the Lenders
and supersede all prior agreements and understandings among the Borrower, the
Agent, the LC Issuer and the Lenders relating to the subject matter thereof
other than the fee letter described in Section 10.13.
10.5 SEVERAL OBLIGATIONS; BENEFITS OF THIS AGREEMENT. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other (except to the extent to which the
Agent is authorized to act as such). The failure of any Lender to perform any of
its obligations hereunder shall not relieve any other Lender from any of its
obligations hereunder. This Agreement shall not be construed so as to confer any
right or benefit upon any Person other than the parties to this Agreement and
their respective successors and assigns, provided, however, that the parties
hereto expressly agree that the Arranger shall enjoy the benefits of the
provisions of Sections 10.6, 10.10 and 11.11 to the extent specifically set
forth therein and shall have the right to enforce such provisions on its own
behalf and in its own name to the same extent as if it were a party to this
Agreement.
10.6 EXPENSES; INDEMNIFICATION.
(i) The Borrowers shall reimburse the Agent and the Arranger
for any costs, internal charges and out-of-pocket expenses (including reasonable
attorneys' fees and time charges of attorneys for the Agent, which attorneys may
be employees of the Agent) paid or incurred by the Agent or the Arranger in
connection with the preparation, negotiation, execution, delivery, syndication,
review, amendment, modification, and administration of the Loan Documents. The
Borrowers also agree to reimburse the Agent, the Arranger, the LC Issuer and the
Lenders for any costs, internal charges and out-of-pocket expenses (including
reasonable attorneys' fees and reasonable time charges of attorneys for the
Agent, the Arranger, the LC Issuer and the Lenders, which attorneys may be
employees of the Agent, the Arranger, the LC Issuer or the Lenders) paid or
incurred by the Agent, the Arranger, the LC Issuer or any Lender in connection
with the collection and enforcement of the Loan Documents.
(ii) The Borrowers hereby further agree to indemnify the
Agent, the Arranger, the LC Issuer and each Lender, its directors, officers and
employees against all losses, claims, damages, penalties, judgments, liabilities
and expenses (including, without limitation, all reasonable expenses of
litigation or preparation therefor whether or not the Agent, the Arranger, the
LC Issuer or any Lender is a party thereto) which any of them may pay or incur
arising out of or relating to this Agreement, the other Loan Documents, the
transactions contemplated hereby or the direct or indirect application or
proposed application of the proceeds of any Credit Extension hereunder except to
the extent that they are determined in a final non-appealable judgment by a
court of competent jurisdiction to have resulted from
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the gross negligence or willful misconduct of the party seeking indemnification.
The obligations of the Borrowers under this Section 10.6 shall survive the
termination of this Agreement.
10.7 NUMBERS OF DOCUMENTS. All statements, notices, closing documents,
and requests hereunder shall be furnished to the Agent with sufficient
counterparts so that the Agent may furnish one to each of the Lenders.
10.8 ACCOUNTING. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement Accounting
Principles, except that any calculation or determination which is to be made on
a consolidated basis shall be made for the Company and all its Subsidiaries,
including those Subsidiaries, if any, which are unconsolidated on the Company's
audited financial statements.
10.9 SEVERABILITY OF PROVISIONS. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
10.10 NONLIABILITY OF LENDERS. The relationship between the Borrowers
on the one hand and the Lenders, the LC Issuer and the Agent on the other hand
shall be solely that of borrower and lender. Neither the Agent, the Arranger,
the LC Issuer nor any Lender shall have any fiduciary responsibilities to any
Borrower. Neither the Agent, the Arranger, the LC Issuer nor any Lender
undertakes any responsibility to any Borrower to review or inform any Borrower
of any matter in connection with any phase of the Borrower's business or
operations. Each Borrower agrees that neither the Agent, the Arranger, the LC
Issuer nor any Lender shall have liability to any Borrower (whether sounding in
tort, contract or otherwise) for losses suffered by any Borrower in connection
with, arising out of, or in any way related to, the transactions contemplated
and the relationship established by the Loan Documents, or any act, omission or
event occurring in connection therewith, unless it is determined in a final
non-appealable judgment by a court of competent jurisdiction that such losses
resulted from the gross negligence or willful misconduct of the party from which
recovery is sought. Neither the Agent, the Arranger, the LC Issuer nor any
Lender shall have any liability with respect to, and each Borrower hereby
waives, releases and agrees not to xxx for, any special, indirect or
consequential damages suffered by the Borrowers in connection with, arising out
of, or in any way related to the Loan Documents or the transactions contemplated
thereby.
10.11 CONFIDENTIALITY. Each Lender agrees to hold any confidential
information which it may receive from any Borrower pursuant to this Agreement in
confidence, except for disclosure (i) to its Affiliates and to other Lenders and
their respective Affiliates, (ii) to legal counsel, accountants, and other
professional advisors to such Lender or to a Transferee, (iii) to regulatory
officials, (iv) to any Person as requested pursuant to or as required by law,
regulation, or legal process, (v) to any Person in connection with any legal
proceeding to which such Lender is a party, (vi) to such Lender's direct or
indirect contractual counterparties in swap agreements or to legal counsel,
accountants and other professional advisors to such counterparties, and (vii)
permitted by Section 13.4.
10.12 NONRELIANCE. Each Lender hereby represents that it is not relying
on or looking to any margin stock (as defined in Regulation U of the Board of
Governors of the Federal Reserve System) for the repayment of the Credit
Extensions provided for herein.
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ARTICLE XI.
THE AGENT
---------
11.1 APPOINTMENT; NATURE OF RELATIONSHIP. Bank One, Michigan is hereby
appointed by each of the Lenders as its contractual representative (herein
referred to as the "Agent") hereunder and under each other Loan Document, and
each of the Lenders irrevocably authorizes the Agent to act as the contractual
representative of such Lender with the rights and duties expressly set forth
herein and in the other Loan Documents. The Agent agrees to act as such
contractual representative upon the express conditions contained in this Article
XI. Notwithstanding the use of the defined term "Agent," it is expressly
understood and agreed that the Agent shall not have any fiduciary
responsibilities to any Lender by reason of this Agreement or any other Loan
Document and that the Agent is merely acting as the contractual representative
of the Lenders with only those duties as are expressly set forth in this
Agreement and the other Loan Documents. In its capacity as the Lenders'
contractual representative, the Agent (i) does not hereby assume any fiduciary
duties to any of the Lenders, (ii) is a "representative" of the Lenders within
the meaning of Section 9-105 of the Uniform Commercial Code and (iii) is acting
as an independent contractor, the rights and duties of which are limited to
those expressly set forth in this Agreement and the other Loan Documents. Each
of the Lenders hereby agrees to assert no claim against the Agent on any agency
theory or any other theory of liability for breach of fiduciary duty, all of
which claims each Lender hereby waives.
11.2 POWERS. The Agent shall have and may exercise such powers under
the Loan Documents as are specifically delegated to the Agent by the terms of
each thereof, together with such powers as are reasonably incidental thereto.
The Agent shall have no implied duties to the Lenders, or any obligation to the
Lenders to take any action thereunder except any action specifically provided by
the Loan Documents to be taken by the Agent.
11.3 GENERAL IMMUNITY. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable to the Borrowers, the Lenders or
any Lender for any action taken or omitted to be taken by it or them hereunder
or under any other Loan Document or in connection herewith or therewith except
to the extent such action or inaction is determined in a final non-appealable
judgment by a court of competent jurisdiction to have arisen from the gross
negligence or willful misconduct of such Person.
11.4 NO RESPONSIBILITY FOR LOANS, RECITALS, ETC. Neither the Agent nor
any of its directors, officers, agents or employees shall be responsible for or
have any duty to ascertain, inquire into, or verify (a) any statement, warranty
or representation made in connection with any Loan Document or any borrowing
hereunder; (b) the performance or observance of any of the covenants or
agreements of any obligor under any Loan Document, including, without
limitation, any agreement by an obligor to furnish information directly to each
Lender; (c) the satisfaction of any condition specified in Article IV, except
receipt of items required to be delivered solely to the Agent; (d) the existence
or possible existence of any Default or Unmatured Default; (e) the validity,
enforceability, effectiveness, sufficiency or genuineness of any Loan Document
or any other instrument or writing furnished in connection therewith; (f) the
value, sufficiency, creation, perfection or priority of any Lien in any
collateral security; or (g) the financial condition of any Borrower or any
guarantor of any of the Obligations or of any of the Borrower's or any such
guarantor's respective Subsidiaries. The Agent shall have no duty to disclose to
the Lenders information that is not required to be furnished by the Borrower to
the Agent at such time, but is voluntarily furnished by the Borrowers to the
Agent (either in its capacity as Agent or in its individual capacity).
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11.5 ACTION ON INSTRUCTIONS OF LENDERS. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, hereunder and under any
other Loan Document in accordance with written instructions signed by the
Required Lenders, and such instructions and any action taken or failure to act
pursuant thereto shall be binding on all of the Lenders. The Lenders hereby
acknowledge that the Agent shall be under no duty to take any discretionary
action permitted to be taken by it pursuant to the provisions of this Agreement
or any other Loan Document unless it shall be requested in writing to do so by
the Required Lenders. The Agent shall be fully justified in failing or refusing
to take any action hereunder and under any other Loan Document unless it shall
first be indemnified to its satisfaction by the Lenders pro rata against any and
all liability, cost and expense that it may incur by reason of taking or
continuing to take any such action.
11.6 EMPLOYMENT OF AGENTS AND COUNSEL. The Agent may execute any of its
duties as Agent hereunder and under any other Loan Document by or through
employees, agents, and attorneys-in-fact and shall not be answerable to the
Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Agent shall be entitled to advice of
counsel concerning the contractual arrangement between the Agent and the Lenders
and all matters pertaining to the Agent's duties hereunder and under any other
Loan Document.
11.7 RELIANCE ON DOCUMENTS; COUNSEL. The Agent shall be entitled to
rely upon any Note, notice, consent, certificate, affidavit, letter, telegram,
statement, paper or document believed by it to be genuine and correct and to
have been signed or sent by the proper person or persons, and, in respect to
legal matters, upon the opinion of counsel selected by the Agent, which counsel
may be employees of the Agent.
11.8 AGENT'S REIMBURSEMENT AND INDEMNIFICATION. The Lenders agree to
reimburse and indemnify the Agent ratably in proportion to their respective
Commitments (or, if the Commitments have been terminated, in proportion to their
Commitments immediately prior to such termination) (i) for any amounts not
reimbursed by the Borrowers for which the Agent is entitled to reimbursement by
the Borrowers under the Loan Documents, (ii) for any other reasonable expenses
incurred by the Agent on behalf of the Lenders, in connection with the
preparation, execution, delivery, administration and enforcement of the Loan
Documents (including, without limitation, for any expenses incurred by the Agent
in connection with any dispute between the Agent and any Lender or between two
or more of the Lenders) and (iii) for any liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind and nature whatsoever which may be imposed on, incurred by or
asserted against the Agent in any way relating to or arising out of the Loan
Documents or any other document delivered in connection therewith or the
transactions contemplated thereby (including, without limitation, for any such
amounts incurred by or asserted against the Agent in connection with any dispute
between the Agent and any Lender or between two or more of the Lenders), or the
enforcement of any of the terms of the Loan Documents or of any such other
documents, provided that (i) no Lender shall be liable for any of the foregoing
to the extent any of the foregoing is found in a final non-appealable judgment
by a court of competent jurisdiction to have resulted from the gross negligence
or willful misconduct of the Agent and (ii) any indemnification required
pursuant to Section 3.5(vii) shall, notwithstanding the provisions of this
Section 11.8, be paid by the relevant Lender in accordance with the provisions
thereof. The obligations of the Lenders under this Section 11.8 shall survive
payment of the Obligations and termination of this Agreement.
11.9 NOTICE OF DEFAULT. The Agent shall not be deemed to have knowledge
or notice of the occurrence of any Default or Unmatured Default hereunder unless
the Agent has received written notice from a Lender or the Borrower referring to
this Agreement describing such Default or Unmatured Default
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and stating that such notice is a "notice of default". In the event that the
Agent receives such a notice, the Agent shall give prompt notice thereof to the
Lenders.
11.10 RIGHTS AS A LENDER. In the event the Agent is a Lender, the Agent
shall have the same rights and powers hereunder and under any other Loan
Document with respect to its Commitment and its Loans as any Lender and may
exercise the same as though it were not the Agent, and the term "Lender" or
"Lenders" shall, at any time when the Agent is a Lender, unless the context
otherwise indicates, include the Agent in its individual capacity. The Agent and
its Affiliates may accept deposits from, lend money to, and generally engage in
any kind of trust, debt, equity or other transaction, in addition to those
contemplated by this Agreement or any other Loan Document, with the Company or
any of its Subsidiaries in which the Company or such Subsidiary is not
restricted hereby from engaging with any other Person.
11.11 LENDER CREDIT DECISION. Each Lender acknowledges that it has,
independently and without reliance upon the Agent, the Arranger or any other
Lender and based on the financial statements prepared by the Borrowers and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and the other Loan
Documents. Each Lender also acknowledges that it will, independently and without
reliance upon the Agent, the Arranger 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 and the other Loan Documents.
11.12 SUCCESSOR AGENT. The Agent may resign at any time by giving
written notice thereof to the Lenders and the Company, such resignation to be
effective upon the appointment of a successor Agent or, if no successor Agent
has been appointed, forty-five days after the retiring Agent gives notice of its
intention to resign. The Agent may be removed at any time with or without cause
by written notice received by the Agent from the Required Lenders, such removal
to be effective on the date specified by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint, on
behalf of the Company and the Lenders, a successor Agent. If no successor Agent
shall have been so appointed by the Required Lenders within thirty days after
the resigning Agent's giving notice of its intention to resign, then the
resigning Agent may appoint, on behalf of the Company and the Lenders, a
successor Agent. Notwithstanding the previous sentence, the Agent may at any
time without the consent of the Company or any Lender, appoint any of its
Affiliates which is a commercial bank as a successor Agent hereunder. If the
Agent has resigned or been removed and no successor Agent has been appointed,
the Lenders may perform all the duties of the Agent hereunder and the Borrowers
shall make all payments in respect of the Obligations to the applicable Lender
and for all other purposes shall deal directly with the Lenders. No successor
Agent shall be deemed to be appointed hereunder until such successor Agent has
accepted the appointment. Any such successor Agent shall be a commercial bank
having capital and retained earnings of at least $100,000,000. 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 or removed Agent. Upon
the effectiveness of the resignation or removal of the Agent, the resigning or
removed Agent shall be discharged from its duties and obligations hereunder and
under the Loan Documents. After the effectiveness of the resignation or removal
of an Agent, the provisions of this Article XI shall continue in effect for the
benefit of such Agent in respect of any actions taken or omitted to be taken by
it while it was acting as the Agent hereunder and under the other Loan
Documents. In the event that there is a successor to the Agent by merger, or the
Agent assigns its duties and obligations to an Affiliate pursuant to this
Section 11.12, then the term "Prime Rate" as used in this Agreement shall mean
the prime rate, base rate or other analogous rate of the new Agent.
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11.13 AGENT'S FEE. The Company agrees to pay to the Agent, for its own
account, the fees agreed to by the Company and the Agent from time to time.
11.14 DELEGATION TO AFFILIATES. The Company and the Lenders agree that
the Agent may delegate any of its duties under this Agreement to any of its
Affiliates. Any such Affiliate (and such Affiliate's directors, officers, agents
and employees) which performs duties in connection with this Agreement shall be
entitled to the same benefits of the indemnification, waiver and other
protective provisions to which the Agent is entitled under Articles X and XI.
ARTICLE XII.
SETOFF; RATABLE PAYMENTS
------------------------
12.1 SETOFF. In addition to, and without limitation of, any rights of
the Lenders under applicable law, if any Borrower becomes insolvent, however
evidenced, or any Default occurs, any and all deposits (including all account
balances, whether provisional or final and whether or not collected or
available) and any other Indebtedness at any time held or owing by any Lender or
any Affiliate of any Lender to or for the credit or account of any Borrower may
be offset and applied toward the payment of the Obligations owing to such
Lender, whether or not the Obligations, or any part hereof, shall then be due.
12.2 RATABLE PAYMENTS. If any Lender, whether by setoff or otherwise,
has payment made to it upon its Outstanding Credit Exposure (other than payments
received pursuant to Section 3.1, 3.2, 3.4 or 3.5) in a greater proportion than
that received by any other Lender, such Lender agrees, promptly upon demand, to
purchase a portion of the Aggregate Outstanding Credit Exposure held by the
other Lenders so that after such purchase each Lender will hold its Pro Rata
Share of the Aggregate Outstanding Credit Exposure. If any Lender, whether in
connection with setoff or amounts which might be subject to setoff or otherwise,
receives collateral or other protection for its Obligations or such amounts
which may be subject to setoff, such Lender agrees, promptly upon demand, to
take such action necessary such that all Lenders share in the benefits of such
collateral ratably in proportion to their respective Pro Rata Shares of the
Aggregate Outstanding Credit Exposure. In case any such payment is disturbed by
legal process, or otherwise, appropriate further adjustments shall be made.
ARTICLE XIII.
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
-------------------------------------------------
13.1 SUCCESSORS AND ASSIGNS. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrowers and
the Lenders and their respective successors and assigns, except that (i) the
Borrowers shall not have the right to assign their rights or obligations under
the Loan Documents and (ii) any assignment by any Lender must be made in
compliance with Section 13.3. Notwithstanding clause (ii) of this Section, any
Lender may at any time, without the consent of the Borrowers or the Agent,
assign all or any portion of its rights under this Agreement and any Note to a
Federal Reserve Bank; provided, however, that no such assignment to a Federal
Reserve Bank shall release the transferor Lender from its obligations hereunder.
The Agent may treat the Person which made any Loan or which holds any Note as
the owner thereof for all purposes hereof unless and until such Person complies
with Section 13.3 in the case of an assignment thereof or, in the case of any
other transfer, a written notice of the transfer is filed with the Agent. Any
assignee or transferee of the rights to any Loan or any Note agrees by
acceptance of such transfer or assignment to be bound by all the
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terms and provisions of the Loan Documents. Any request, authority or consent of
any Person, who at the time of making such request or giving such authority or
consent is the owner of the rights to any Loan (whether or not a Note has been
issued in evidence thereof), shall be conclusive and binding on any subsequent
holder, transferee or assignee of the rights to such Loan.
13.2 PARTICIPATIONS.
13.2.1. PERMITTED PARTICIPANTS; EFFECT. Any Lender may, in the ordinary
course of its business and in accordance with applicable law, at any time sell
to one or more banks or other entities ("Participants") participating interests
in any Outstanding Credit Exposure owing to such Lender, any Note held by such
Lender, any Commitment of such Lender or any other interest of such Lender under
the Loan Documents. In the event of any such sale by a Lender of participating
interests to a Participant, such Lender's obligations under the Loan Documents
shall remain unchanged, such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, such Lender shall remain
the owner of its Outstanding Credit Exposure and the holder of any Note issued
to it in evidence thereof for all purposes under the Loan Documents, all amounts
payable by the Borrowers under this Agreement shall be determined as if such
Lender had not sold such participating interests, and the Borrowers and the
Agent shall continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under the Loan Documents.
13.2.2. VOTING RIGHTS. Each Lender shall retain the sole right to
approve, without the consent of any Participant, any amendment, modification or
waiver of any provision of the Loan Documents other than any amendment,
modification or waiver with respect to any Credit Extension or Commitment in
which such Participant has an interest which forgives principal, interest, fees
or any Reimbursement Obligation or reduces the interest rate or fees payable
with respect to any such Credit Extension or Commitment, extends the Facility
Termination Date, postpones any date fixed for any regularly-scheduled payment
of principal of or interest on any Loan in which such Participant has an
interest, or any regularly scheduled payment of fees on any such Credit
Extension or Commitment, releases any guarantor of any such Credit Extension or
releases any collateral held in the Facility LC Collateral Account (except in
accordance with the terms hereof) or all or substantially all of any other
collateral, if any, securing any such Credit Extension.
13.2.3. BENEFIT OF SETOFF. Each Borrower agrees that each Participant
shall be deemed to have the right of setoff provided in Section 12.1 in respect
of its participating interest in amounts owing under the Loan Documents to the
same extent as if the amount of its participating interest were owing directly
to it as a Lender under the Loan Documents, provided that each Lender shall
retain the right of setoff provided in Section 12.1 with respect to the amount
of participating interests sold to each Participant. The Lenders agree to share
with each Participant, and each Participant, by exercising the right of setoff
provided in Section 12.1, agrees to share with each Lender, any amount received
pursuant to the exercise of its right of setoff, such amounts to be shared in
accordance with Section 12.2 as if each Participant were a Lender.
13.3 ASSIGNMENTS.
13.3.1. PERMITTED ASSIGNMENTS. Any Lender may, in the ordinary course
of its business and in accordance with applicable law, at any time assign to one
or more banks or other entities ("Purchasers") all or any part of its rights and
obligations under the Loan Documents. Such assignment shall be substantially in
the form of EXHIBIT F or in such other form as may be agreed to by the parties
thereto. The consent of the Company and the Agent shall be required prior to an
assignment becoming effective with respect to a Purchaser which is not a Lender
or an Affiliate thereof; provided, however, that if a Default has occurred and
is continuing, the consent of the Company shall not be required. Such consent
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shall not be unreasonably withheld or delayed. Each such assignment with respect
to a Purchaser which is not a Lender or an Affiliate thereof shall (unless each
of the Company and the Agent otherwise consents) be in an amount not less than
the lesser of (i) $5,000,000 and in integral multiples of $1,000,000 thereafter,
or (ii) the remaining amount of the assigning Lender's Commitment (calculated as
at the date of such assignment) or outstanding Loans (if the applicable
Commitment has been terminated).
13.3.2. EFFECT; EFFECTIVE DATE. Upon (i) delivery to the Agent of an
assignment, together with any consents required by Section 13.3.1, and (ii)
payment of a $3,500 fee to the Agent for processing such assignment (unless such
fee is waived by the Agent), such assignment shall become effective on the
effective date specified in such assignment. The assignment shall contain a
representation by the Purchaser to the effect that none of the consideration
used to make the purchase of the Commitment and Outstanding Credit Exposure
under the applicable assignment agreement constitutes "plan assets" as defined
under ERISA and that the rights and interests of the Purchaser in and under the
Loan Documents will not be "plan assets" under ERISA. On and after the effective
date of such assignment, such Purchaser shall for all purposes be a Lender party
to this Agreement and any other Loan Document executed by or on behalf of the
Lenders and shall have all the rights and obligations of a Lender under the Loan
Documents, to the same extent as if it were an original party hereto, and no
further consent or action by the Company, the Lenders or the Agent shall be
required to release the transferor Lender with respect to the percentage of the
Aggregate Commitment and Outstanding Credit Exposure assigned to such Purchaser.
Upon the consummation of any assignment to a Purchaser pursuant to this Section
13.3.2, the transferor Lender, the Agent and the Company shall, if the
transferor Lender or the Purchaser desires that its Loans be evidenced by Notes,
make appropriate arrangements so that new Notes or, as appropriate, replacement
Notes are issued to such transferor Lender and new Notes or, as appropriate,
replacement Notes, are issued to such Purchaser, in each case in principal
amounts reflecting their respective Commitments, as adjusted pursuant to such
assignment.
13.4 DISSEMINATION OF INFORMATION. The Borrower authorizes each Lender
to disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "Transferee") and any
prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Company and its Subsidiaries, including
without limitation any information contained in any Reports; provided that each
Transferee and prospective Transferee agrees to be bound by Section 10.11 of
this Agreement.
13.5 TAX TREATMENT. If any interest in any Loan Document is transferred
to any Transferee which is organized under the laws of any jurisdiction other
than the United States or any State thereof, the transferor Lender shall cause
such Transferee, concurrently with the effectiveness of such transfer, to comply
with the provisions of Section 3.5(iv).
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ARTICLE XIV.
NOTICES
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14.1 NOTICES. Except as otherwise permitted by Section 2.14 with
respect to borrowing notices, all notices, requests and other communications to
any party hereunder shall be in writing (including electronic transmission,
facsimile transmission or similar writing) and shall be given to such party:
(x) in the case of the Borrowers or the Agent, at its address or facsimile
number set forth on the signature pages hereof, (y) in the case of any Lender,
at its address or facsimile number set forth in its administrative
questionnaire, or (z) in the case of any party, at such other address or
facsimile number as such party may hereafter specify for the purpose by notice
to the Agent and the Borrower in accordance with the provisions of this Section
14.1. Each such notice, request or other communication shall be effective (i) if
given by facsimile transmission, when transmitted to the facsimile number
specified in this Section and confirmation of receipt is received, (ii) if given
by mail, 72 hours after such communication is deposited in the mails with first
class postage prepaid, addressed as aforesaid, or (iii) if given by any other
means, when delivered (or, in the case of electronic transmission, received) at
the address specified in this Section; provided that notices to the Agent under
Article II shall not be effective until received.
14.2 CHANGE OF ADDRESS. The Borrower, the Agent and any Lender may each
change the address for service of notice upon it by a notice in writing to the
other parties hereto.
ARTICLE XV.
COUNTERPARTS
------------
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the Borrowers, the
Agent, the LC Issuer and the Lenders and each party has notified the Agent by
facsimile transmission or telephone that it has taken such action.
ARTICLE XVI.
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
------------------------------------------------------------
16.1 CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF MICHIGAN.
16.2 WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT, THE ISSUER AND EACH
LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY
OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN
ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE
RELATIONSHIP ESTABLISHED THEREUNDER.
16.3 SUBMISSION TO JURISDICTION; WAIVERS.
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(a) Each Borrower hereby irrevocably and unconditionally:
(i) submits for itself and its property in any legal
action or proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of any United States
federal or Michigan state court sitting in Detroit, Michigan and appellate
courts from any thereof;
(ii) consents that any such action or proceeding may
be brought in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or that
such action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(iii) agrees that service of process in any such
action or proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage prepaid, to
the Company or the Canadian Borrower, as the case may be, at the address
specified in Section 14.1, or at such other address of which the Agent shall
have been notified pursuant thereto;
(iv) agrees that nothing herein shall affect the
right to effect service of process in any other manner permitted by law or shall
limit the right to xxx in any other jurisdiction; and
(v) waives, to the maximum extent not prohibited by
law, any right it may have to claim or recover in any legal action or proceeding
referred to in this subsection any special, exemplary, punitive or consequential
damages.
(b) The Canadian Borrower hereby irrevocably appoints the
Company as its agent for service of process in any proceeding referred to in
Section 16.3(i) and agrees that service of process in any such proceeding may be
made by mailing or delivering a copy thereof to it care of Company at its
address for notices set forth in Section 14.1.
16.4 ACKNOWLEDGMENTS. Each Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;
(b) none of the Agent or any Lender has any fiduciary
relationship with or duty to such Borrower arising out of or in connection with
this Agreement or any of the other Loan Documents, and the relationship between
the Agent and the Lenders, on the one hand, and the Borrowers, on the other
hand, in connection herewith or therewith is solely that of debtor and creditor;
and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated hereby
among the Lenders or among the Borrowers and the Lenders.
16.5 POWER OF ATTORNEY. The Canadian Borrower hereby grants to the
Company an irrevocable power of attorney to act as its attorney-in-fact with
regard to matters relating to this Agreement and each other Loan Document,
including, without limitation, execution and delivery of any amendments,
supplements, waivers or other modifications hereto or thereto, receipt of any
notices hereunder or thereunder and receipt of service of process in connection
herewith or therewith. The Canadian Borrower hereby explicitly acknowledges that
the Agent and each Lender have executed and delivered this Agreement and each
other Loan Document to which it is a party, and has performed its
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obligations under this Agreement and each other Loan Document to which it is a
party, in reliance upon the irrevocable grant of such power of attorney pursuant
to this subsection. The power of attorney granted by the Canadian Borrower
hereunder is coupled with an interest.
16.6 JUDGMENT.
(a) If for the purpose of obtaining judgment in any court it
is necessary to convert a sum due hereunder in one currency into another
currency, the parties hereto agree, to the fullest extent that they may
effectively do so, under applicable law that the rate of exchange used shall be
that at which in accordance with normal banking procedures the Agent could
purchase the first currency with such other currency in the city in which it
normally conducts its foreign exchange operation for the first currency on the
Business Day preceding the day on which final judgment is given.
(b) The obligation of each Borrower in respect of any sum due
from it to any Lender hereunder shall, notwithstanding any judgment in a
currency (the "JUDGMENT CURRENCY") other than that in which such sum is
denominated in accordance with the applicable provisions of this Agreement (the
"AGREEMENT CURRENCY"), be discharged only to the extent that on the Business Day
following receipt by such Lender of any sum adjudged to be so due in the
Judgment Currency such Lender may in accordance with normal banking procedures
purchase the Agreement Currency with the Judgment Currency; if the amount of
Agreement Currency so purchased is less than the sum originally due to such
Lender in the Agreement Currency, such Borrower agrees notwithstanding any such
judgment to indemnify such Lender against such loss, and if the amount of the
Agreement Currency so purchased exceeds the sum originally due to any Lender,
such Lender agrees to remit to such Borrower such excess.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Borrower, the Lenders, the LC Issuer and the
Agent have executed this Agreement as of the date first above written.
CORRPRO COMPANIES, INC.
By:
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Its:
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Address:
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Attention:
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Telephone:
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Fax:
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CSI COATING SYSTEMS INC.
By:
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Its:
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Address:
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Attention:
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Telephone:
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Fax:
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BANK ONE, MICHIGAN
as LC Issuer. as Agent and individually as a Lender
By:
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Its:
-------------------------------------------
Address:
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention:
-----------------------------------------
Telephone:
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Fax:
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1
69
PNC BANK, NATIONAL ASSOCIATION
By:
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Its:
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Address:
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Attention:
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Telephone:
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Fax:
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KEY BANK
By:
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Its:
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Address:
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Attention:
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Telephone:
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Fax:
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FIRSTMERIT BANK, N.A.
By:
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Its:
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Address:
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Attention:
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Telephone:
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Fax:
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2
70
COMERICA BANK
By:
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Its:
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Address:
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Attention:
-----------------------------------------
Telephone:
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Fax:
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FIFTH THIRD BANK, NORTHEASTERN OHIO
By:
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Its:
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Address:
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Attention:
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Telephone:
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Fax:
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