Ex 10.1
CONFORMED COPY
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XXXXXX, FARGO & CO.,
a Delaware corporation
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CREDIT AGREEMENT
dated as of January 24, 1997
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$115,000,000
Credit Facility
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XXXXXX COMMERCIAL PAPER INC.,
as Arranger, Syndication Agent and Documentation Agent,
NATIONSBANC CAPITAL MARKETS, INC.,
as Syndication Agent,
and
NATIONSBANK OF TEXAS, N.A.,
as Arranger and as Administrative Agent
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TABLE OF CONTENTS
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Page
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SECTION 1. DEFINITIONS..................................................... 2
1.1 Defined Terms................................................... 2
1.2 Other Definitional Provisions................................... 16
SECTION 2. AMOUNT AND TERMS COMMITMENTS.................................... 17
2.1 Revolving Credit Commitments.................................... 17
2.2 Procedure for Revolving Credit Borrowing........................ 17
2.3 Commitment Fee.................................................. 18
2.4 Termination or Reduction of Commitments......................... 18
2.5 Repayment of Loans; Evidence of Debt............................ 19
2.6 Optional Prepayments; Mandatory Prepayments and
Reduction of Commitments...................................... 19
2.7 Conversion and Continuation Options............................. 21
2.8 Minimum Amounts and Maximum Number of Tranches.................. 21
2.9 Interest Rates and Payment Dates................................ 21
2.10 Computation of Interest and Fees................................ 22
2.11 Inability to Determine Interest Rate............................ 22
2.12 Pro Rata Treatment and Payments................................. 23
2.13 Illegality...................................................... 23
2.14 Requirements of Law............................................. 24
2.15 Taxes........................................................... 25
2.16 Indemnity....................................................... 27
2.17 Replacement of Lenders.......................................... 27
2.18 Certain Fees.................................................... 28
2.19 Change of Lending Office........................................ 28
SECTION 3. LETTERS OF CREDIT............................................... 28
3.1 L/C Commitment.................................................. 28
3.2 Procedure for Issuance of Letters of Credit..................... 29
3.3 Fees, Commissions and Other Charges............................. 29
3.4 L/C Participation............................................... 30
3.5 Reimbursement Obligation of the Borrower........................ 31
3.6 Obligations Absolute............................................ 31
3.7 Letter of Credit Payments....................................... 31
3.8 Application..................................................... 32
SECTION 4. REPRESENTATIONS AND WARRANTIES.................................. 32
4.1 Financial Condition............................................. 32
4.2 No Change....................................................... 34
4.3 Corporate Existence; Compliance with Law........................ 34
4.4 Corporate Power; Authorization; Enforceable Obligations......... 34
4.5 No Legal Bar.................................................... 34
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4.6 No Material Litigation.......................................... 34
4.7 No Default...................................................... 35
4.8 Ownership of Property; Liens.................................... 35
4.9 Intellectual Property........................................... 35
4.10 Taxes........................................................... 35
4.11 Federal Regulations............................................. 35
4.12 ERISA........................................................... 36
4.13 Investment Company Act; Other Regulations....................... 36
4.14 Subsidiaries.................................................... 36
4.15 Purpose of Loans................................................ 36
4.16 Environmental Matters........................................... 36
4.17 Collateral Documents............................................ 37
4.18 Accuracy and Completeness of Information........................ 37
4.19 Solvency........................................................ 38
4.20 Labor Matters................................................... 38
4.21 Contribution Agreement.......................................... 38
SECTION 5. CONDITIONS PRECEDENT............................................ 38
5.1 Conditions to Initial Loans..................................... 38
5.2 Conditions to Each Extension of Credit.......................... 41
SECTION 6. AFFIRMATIVE COVENANTS........................................... 42
6.1 Financial Statements............................................ 42
6.2 Certificates; Other Information................................. 43
6.3 Payment of Obligations.......................................... 44
6.4 Conduct of Business and Maintenance of Existence................ 44
6.5 Maintenance of Property; Insurance.............................. 44
6.6 Inspection of Property; Books and Records; Discussions.......... 44
6.7 Notices......................................................... 45
6.8 Environmental Laws.............................................. 45
6.9 Further Assurances.............................................. 46
6.10 Additional Collateral........................................... 46
6.11 Interest Rate Protection........................................ 46
6.13 Foreign Jurisdictions........................................... 48
SECTION 7. NEGATIVE COVENANTS.............................................. 48
7.1 Financial Condition Covenants................................... 48
7.2 Limitation on Indebtedness...................................... 51
7.3 Limitation on Liens............................................. 52
7.4 Limitation on Guarantee Obligations............................. 53
7.5 Limitation on Fundamental Changes............................... 54
7.6 Limitation on Sale of Assets.................................... 54
7.7 Limitation on Leases............................................ 55
7.8 Limitation on Dividends......................................... 55
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7.9 Limitation on Capital Expenditures.............................. 56
7.10 Limitation on Investments, Loans and Advances................... 56
7.11 Limitation on Optional Payments and Modifications
of Debt Instruments........................................... 57
7.12 Limitation on Transactions with Affiliates...................... 57
7.13 Limitation on Sales and Leasebacks.............................. 58
7.14 Limitation on Changes in Fiscal Year............................ 58
7.15 Limitation on Negative Pledge Clauses........................... 58
7.16 Limitation on Lines of Business................................. 58
SECTION 8. EVENTS OF DEFAULT............................................... 58
SECTION 9. THE AGENTS; THE ARRANGERS....................................... 61
9.1 Appointment..................................................... 61
9.2 Delegation of Duties............................................ 61
9.3 Exculpatory Provisions.......................................... 62
9.4 Reliance by Agents.............................................. 62
9.5 Notice of Default............................................... 62
9.6 Non-Reliance on Agents and Other Lenders........................ 62
9.7 Indemnification................................................. 63
9.8 Agents, in Their Individual Capacities.......................... 63
9.9 Successor Administrative Agent.................................. 63
9.10 The Arrangers................................................... 64
SECTION 10. MISCELLANEOUS................................................... 64
10.1 Amendments and Waivers.......................................... 64
10.2 Notices......................................................... 65
10.3 No Waiver; Cumulative Remedies.................................. 67
10.4 Survival of Representations and Warranties...................... 67
10.5 Payment of Expenses and Taxes................................... 67
10.6 Successors and Assigns; Participation and Assignments........... 68
10.7 Adjustments; Set-off............................................ 70
10.8 Counterparts.................................................... 70
10.9 Severability.................................................... 71
10.10 Integration..................................................... 71
10.11 GOVERNING LAW................................................... 71
10.12 Submission To Jurisdiction; Waivers............................. 71
10.13 Acknowledgements................................................ 71
10.14 WAIVERS OF JURY TRIAL........................................... 72
10.15 Confidentiality................................................. 72
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EXHIBITS
Exhibit A Form of Note
Exhibit B Form of Guarantee and Collateral Agreement
Exhibit C Form of Mortgage
Exhibit D Form of Legal Opinion of Xxxx Xxxxxxx & Xxxxxx LLP
Exhibit E Form of Borrowing Certificate
Exhibit F Form of Certificate of Non-U.S. Lender
Exhibit G Form of Assignment and Acceptance
SCHEDULES
Schedule I Lenders and Commitments
Schedule II Pricing Grid
Schedule III Management Group
Schedule IV Real Property to be Mortgaged
Schedule V Contribution Documents
Schedule VI IRB Related Transactions
Schedule 4.4 Required Consents
Schedule 4.6 Material Litigation
Schedule 4.8 Real Property
Schedule 4.9 Intellectual Property Claims
Schedule 4.10 Taxes
Schedule 4.14 Subsidiaries
Schedule 4.17(b) Filing Jurisdictions
Schedule 7.2(g) Existing Indebtedness
Schedule 7.3(f) Existing Liens
Schedule 7.4 Existing Guarantee Obligations
Schedule 7.10(d) Officers
Schedule 7.10(g) Existing Investments
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CREDIT AGREEMENT, dated as of January 24, 1997, among XXXXXX, FARGO &
CO., a Delaware corporation (the "Borrower"), the several lenders from time to
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time parties hereto (the "Lenders"), XXXXXX COMMERCIAL PAPER INC. ("LCPI") and
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NATIONSBANK OF TEXAS, N.A. ("NationsBank"), as arrangers (in such capacity, the
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"Arrangers"), LCPI and NATIONSBANC CAPITAL MARKETS, INC., as syndication agents
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(in such capacity, the "Syndication Agents"), LCPI, as documentation agent (in
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such capacity, the "Documentation Agent") and NationsBank, as administrative
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agent for the Lenders (in such capacity, the "Administrative Agent").
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W I T N E S S E T H:
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WHEREAS, the Borrower is a party to the Contribution Agreement, dated
as of November 28, 1996 (the "Contribution Agreement"), by and among Xxxx-Xxxxxx
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Security Corporation, a Delaware corporation ("Xxxx-Xxxxxx"), Xxxxx Fargo
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Armored Service Corporation, a Delaware corporation and wholly-owned subsidiary
of Xxxx-Xxxxxx ("Xxxxx Fargo"), the Borrower, Loomis Holding Corporation, a
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Delaware corporation ("Loomis"), Xxxxxx Armored Inc., a Texas corporation and
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wholly-owned subsidiary of Loomis ("Xxxxxx Armored"), and the Loomis
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Stockholders Trust, a Delaware business trust (the "Loomis Stockholders Trust");
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WHEREAS, pursuant to the Contribution Agreement, on the Closing Date
(i) the Loomis Stockholders Trust will contribute to the Borrower the capital
stock of Loomis (the "Loomis Contribution") and (ii) Xxxxx Fargo will contribute
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to the Borrower substantially all of the assets and certain liabilities of Xxxxx
Fargo (the "Xxxxx Fargo Contribution"; together with the Loomis Contribution,
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the "Business Combination");
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WHEREAS, the consideration for the Loomis Contribution will be (i)
5,100,000 shares of common stock of the Borrower to be issued to the Loomis
Stockholders Trust, (ii) a cash payment of $7.2 million to be delivered to a
grantor trust established for the purpose of administering casualty and employee
claims of Loomis incurred prior to the Closing Date (the "Loomis Casualty and
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Employee Claims Trust"), (iii) a cash payment of approximately $5.4 million to
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be made to an indemnity trust to be established to satisfy indemnity claims of
the Borrower (the "Loomis Indemnity Trust"), (iv) a cash payment of
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approximately $2.6 million to be made to the Loomis Stockholders Trust or the
Loomis Casualty and Employee Claims Trust, and (v) a promissory note to be
issued to the Loomis Stockholders Trust in the original principal amount of $6.0
million (the "NOL Note");
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WHEREAS, the consideration for the Xxxxx Fargo Contribution will be
(i) 4,900,000 shares of common stock of the Borrower to be issued to Xxxxx Fargo
and (ii) a cash payment to be made to Xxxxx Fargo and related entities equal to
approximately $105.6 million (as adjusted based upon a formula set forth in the
Contribution Agreement);
WHEREAS, on the Closing Date, immediately following the Loomis
Contribution and the Xxxxx Fargo Contribution, the Borrower will: (i) file a
certificate of amendment to the certificate of incorporation of Loomis changing
its name to LFC Holding Corporation (the "Intermediate Holding Company"); (ii)
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file articles of amendment to the articles of incorporation of Xxxxxx Armored
changing its name to Xxxxxx, Fargo & Co., a Texas corporation, (the "Operating
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Subsidiary"); and (iii) contribute all of the assets acquired from Xxxxx Fargo
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in the Xxxxx Fargo Contribution to the Intermediate Holding Company, and the
Intermediate Holding Company will contribute all of such assets to the Operating
Subsidiary;
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WHEREAS, the Borrower has requested the Lenders to extend credit to
it (i) to finance a portion of the cash consideration to be paid in connection
with the Business Combination and (ii) for working capital and general corporate
purposes of the Borrower and its Subsidiaries after the Closing Date; and
WHEREAS, the Lenders are willing to extend such credit to the
Borrower upon and subject to the terms and conditions hereafter set forth;
NOW, THEREFORE, parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms
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shall have the following meanings:
"Adjustment Date": (a) the fifth day following the receipt by the
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Administrative Agent of the financial statements for the most recently
completed fiscal period furnished pursuant to subsection 6.1(a) or (b), as
the case may be, and the compliance certificate with respect to such
financial statements furnished pursuant to subsection 6.2(c). For purposes
of determining the Applicable Margin and the Commitment Fee Rate, the first
"Adjustment Date" shall mean the date on which the financial statements for
the fiscal quarter ended September 30, 1997 furnished pursuant to
subsection 6.1(b) and the related compliance certificate furnished pursuant
to subsection 6.2(c) are delivered to the Administrative Agent pursuant to
subsection 6.1(b) and 6.2(c), respectively.
"Affiliate": as to any Person, any other Person (other than a
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Subsidiary) which, directly or indirectly, is in control of, is controlled
by, or is under common control with, such Person. For purposes of this
definition, "control" of a Person means the power, directly or indirectly,
either to (a) vote 20% or more of the securities having ordinary voting
power for the election of directors of such Person or (b) direct or cause
the direction of the management and policies of such Person, whether by
contract or otherwise.
"Agents": the collective reference to the Syndication Agents, the
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Documentation Agent and the Administrative Agent.
"Aggregate Outstanding Extensions of Credit": as to any Lender at
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any time, an amount equal to the sum of (a) the aggregate principal amount
of all Loans made by such Lender then outstanding and (b) such Lender's
Commitment Percentage of the L/C Obligations then outstanding.
"Agreement": this Credit Agreement, as amended, supplemented or
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otherwise modified from time to time.
"Applicable Margin": at any time, the rates per annum set forth on
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Schedule II under the relevant column heading opposite the level of the
Debt Ratio most recently determined; provided that (a) the Applicable
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Margin commencing on the Closing Date shall be that set forth in Schedule
II opposite a Debt Ratio captioned "greater than or equal to 5.00" until
the first Adjustment Date, (b) the Applicable Margin determined for any
Adjustment Date (including the first Adjustment Date) shall remain in
effect until a subsequent Adjustment Date
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for which the Debt Ratio falls within a different level and (c) if the
financial statements and related compliance certificate for any fiscal
period are not delivered by the date due pursuant to subsections 6.1 and
6.2, the Applicable Margin shall be (i) for the first 35 days subsequent to
such due date, the Applicable Margin in effect prior to such due date and
(ii) thereafter, that set forth opposite a Debt Ratio captioned "greater
than or equal to 5.00", in either case, until the date of delivery of such
financial statements and compliance certificate.
"Application": an application, in such form as the Issuing Lender
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may specify from time to time, requesting the Issuing Lender to issue a
Letter of Credit.
"Asset Sale": any sale, sale-leaseback, or other disposition by the
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Borrower or any Subsidiary thereof of any of its property or assets,
including the stock of any Subsidiary of the Borrower, except sales and
dispositions permitted by subsection 7.6 other than subsection 7.6(b) or
(e).
"Assignee": as defined in subsection 10.6(c).
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"Available Commitment": as to any Lender, at any time, an amount
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equal to the excess, if any, of (a) such Lender's Commitment over (b) such
Lender's Aggregate Outstanding Extensions of Credit.
"Base Rate": for any day, a rate per annum (rounded upwards, if
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necessary, to the next 1/100 of 1%) equal to the greatest of (a) the Prime
Rate in effect on such day and (b) the Federal Funds Effective Rate in
effect on such day plus 1/2 of 1%. For purposes hereof: "Prime Rate"
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shall mean the rate of interest per annum publicly announced from time to
time by the Administrative Agent as its prime rate in effect at its
principal office in Dallas, Texas; and "Federal Funds Effective Rate" shall
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mean, for any day, the weighted average of the rates on overnight federal
funds transactions with members of the Federal Reserve System arranged by
federal funds brokers, as published on the next succeeding Business Day by
the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for the
day of such transactions received by the Administrative Agent from three
federal funds brokers of recognized standing selected by it. Any change in
the Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective as of the opening of business on the
effective day of such change in the Prime Rate or the Federal Funds
Effective Rate, respectively.
"Base Rate Loans": Loans the rate of interest applicable to which is
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based upon the Base Rate.
"Xxxx-Xxxxxx": as defined in the recitals to this Agreement.
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"Xxxx-Xxxxxx Principals": Xxxx-Xxxxxx and the Management Group.
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"Borrowing Date": any Business Day specified in a notice pursuant to
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subsection 2.2 as a date on which the Borrower requests the Lenders to make
Loans hereunder.
"Business": as defined in subsection 4.16.
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"Business Combination": as defined in the recitals to this Agreement.
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"Business Day": a day other than a Saturday, Sunday or other day on
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which commercial banks in Dallas, Texas or New York City are authorized or
required by law to close.
"Capital Expenditures" shall mean, for any fiscal period, the
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aggregate of all expenditures that, in conformity with GAAP, are or are
required to be included as additions during such period to property, plant
or equipment reflected on the consolidated balance sheet of the Borrower
and its Subsidiaries, excluding the Business Combination; provided that for
any calculation of Capital Expenditures for any fiscal period ending during
the first three full fiscal quarters following the Closing Date, Capital
Expenditures shall be deemed to be Capital Expenditures from February 1,
1997 to the last day of such period multiplied by a fraction the numerator
of which is 365 and the denominator of which is the number of days from
February 1, 1997 to the last day of such period.
"Capital Lease Obligations": of any Person as of the date of
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determination, the aggregate liability of such Person under Financing
Leases reflected on a balance sheet of such Person under GAAP.
"Capital Stock": any and all shares, interests, participation or
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other equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person (other than a
corporation) and any and all warrants or options to purchase any of the
foregoing.
"Cash Equivalents": (a) securities with maturities of one year or
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less from the date of acquisition issued or fully guaranteed or insured by
the United States Government or any agency thereof, (b) certificates of
deposit and time deposits with maturities of one year or less from the date
of acquisition and overnight bank deposits of any Lender or of any
commercial bank having capital and surplus in excess of $100,000,000, (c)
repurchase obligations of any Lender or of any commercial bank satisfying
the requirements of clause (b) of this definition, having a term of not
more than 90 days with respect to securities issued or fully guaranteed or
insured by the United States Government, (d) commercial paper of a domestic
issuer rated at least A-2 by Standard and Poor's Rating Group ("S&P") or P-
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2 by Xxxxx'x Investors Service, Inc. ("Moody's"), or carrying an equivalent
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rating by a nationally recognized rating agency if both of S&P and Moody's
cease publishing ratings of investments, (e) securities with maturities of
one year or less from the date of acquisition issued or fully guaranteed by
any state, commonwealth or territory of the United States, by any political
subdivision or taxing authority of any such state, commonwealth or
territory or by any foreign government, the securities of which state,
commonwealth, territory, political subdivision, taxing authority or foreign
government (as the case may be) are rated at least A by S&P or A by
Moody's, (f) securities with maturities of one year or less from the date
of acquisition backed by standby letters of credit issued by any Lender or
any commercial bank satisfying the requirements of clause (b) of this
definition or (g) shares of money market mutual or similar funds which
invest exclusively in assets satisfying the requirements of clauses (a)
through (f) of this definition, (h) money market accounts or funds with or
issued by Qualified Issuers, and (i) demand deposit accounts maintained in
the ordinary course of business with any Lender or with any bank that is
not a Lender not in excess of $100,000 in the aggregate on deposit with any
such bank.
"Change of Control": the occurrence of any of the following events:
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5
(i) the Principals or their Related Parties, as a whole, shall
at any time cease to own, directly or indirectly, 51% of the Capital
Stock of the Borrower, determined on a fully diluted basis; or
(ii) the Principals or their Related Parties, as a whole, shall
at any time cease to own, determined on a fully diluted basis,
sufficient shares of the Capital Stock of the Borrower, determined on
a fully diluted basis, to elect a majority of the Board of Directors
of the Borrower or otherwise cease to have the right or ability by
voting power, contract or otherwise to elect or designate for election
a majority of the Board of Directors of the Borrower; or
(iii) any Person (other than the Principals and/or their Related
Parties, as a whole), whether singly or in concert with one or more
Persons, shall, directly or indirectly, have acquired, or acquired the
power to vote or direct the voting of, more than 33% of the voting
stock of the Borrower; or
(iv) a "Change of Control" shall have occurred under the
Indenture.
"CIT Indemnity" the obligations of the Administrative Agent to The CIT
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Group/Business Credit, Inc., in connection with the repayment and
termination by Xxxxxx Armored of its outstanding credit facility with The
CIT Group/Business Credit, Inc., to indemnify The CIT Group/Business
Credit, Inc. for uncollected checks and other obligations arising under
lockbox and similar arrangements related to such credit facility.
"Closing Date": the date on which the conditions precedent set forth
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in subsection 5.1 shall be satisfied.
"Code": the Internal Revenue Code of 1986, as amended from time to
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time.
"Collateral": all assets of the Credit Parties, now owned or
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hereinafter acquired, upon which a Lien is purported to be created by any
Security Document.
"Commitment": as to any Lender, the obligation of such Lender to make
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Loans to and/or issue or participate in Letters of Credit issued on behalf
of the Borrower hereunder in an aggregate principal and/or face amount at
any one time outstanding not to exceed the amount set forth opposite such
Lender's name on Schedule I.
"Commitment Letter": the Commitment Letter, dated as of December 20,
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1996, among Xxxxx Fargo, Xxxxxx Armored, Loomis, the Borrower, LCPI,
NationsBanc Capital Markets, Inc. and NationsBank, as the same may be
amended, supplemented or otherwise modified from time to time.
"Commitment Fee Rate": at any time, the rates per annum set forth on
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Schedule II under the relevant column heading opposite the level of the
Debt Ratio most recently determined; provided that (a) the Commitment Fee
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Rate commencing on the Closing Date shall be that set forth in Schedule II
opposite a Debt Ratio captioned "greater than or equal to 5.00" until the
first Adjustment Date, (b) the Commitment Fee Rate determined for any
Adjustment Date (including the first Adjustment Date) shall remain in
effect until a subsequent Adjustment Date for which the Debt Ratio falls
within a different level and (c) if the financial statements and related
compliance certificate for any fiscal period are not delivered by the
6
date due pursuant to subsections 6.1 and 6.2, the Commitment Fee Rate shall
be (i) for the first 35 days subsequent to such due date, the Commitment
Fee Rate in effect prior to such due date and (ii) thereafter, that set
forth opposite a Debt Ratio captioned "greater than or equal to 5.00", in
either case, until the date of delivery of such financial statements and
compliance certificate.
"Commitment Percentage": as to any Lender at any time, the percentage
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which such Lender's Commitment then constitutes of the aggregate
Commitments (or, at any time after the Commitments shall have expired or
terminated, the percentage which the aggregate amount of such Lender's
Aggregate Outstanding Extensions of Credit constitutes of the aggregate
amount of the Aggregate Outstanding Extensions of Credit of all Lenders).
"Commitment Period": the period from and including the date hereof to
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but not including the Termination Date or such earlier date on which the
Commitments shall terminate as provided herein.
"Commonly Controlled Entity": an entity, whether or not incorporated,
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which is under common control with the Borrower within the meaning of
Section 4001 of ERISA or is part of a group which includes the Borrower and
which is treated as a single employer under Section 414 of the Code.
"Consolidated Cash Interest Expense": for any fiscal period, the
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aggregate amount of interest in respect of Consolidated Total Debt payable
in cash during such period as determined on a consolidated basis in
accordance with GAAP.
"Consolidated Debt Service": for any fiscal period, the sum, for the
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Borrower and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of (a) all regularly scheduled
payments of principal of Indebtedness (other than principal payments in
respect of the Loans) during such period plus (b) Consolidated Cash
Interest Expense for such period; provided that for any calculation of
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Consolidated Debt Service for any fiscal period ending during the first
three full Fiscal quarters following the Closing Date, Consolidated Debt
Service shall be deemed to be Consolidated Debt Service from February 1,
1997 to the last day of such period multiplied by a fraction the numerator
of which is 365 and the denominator of which is the number of days from
February 1, 1997 to the last day of such period.
"Consolidated EBITDA": for any fiscal period, Consolidated Net Income
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(excluding without duplication, (x) extraordinary gains and losses in
accordance with GAAP, (y) gains and losses in connection with asset
dispositions whether or not constituting extraordinary gains and losses and
(z) gains or losses on discontinued operations) for such period, plus (i)
Consolidated Interest Expense for such period, plus (ii) to the extent
deducted in computing such Consolidated Net Income, the sum of income
taxes, depreciation and amortization; provided that for any calculation of
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Consolidated EBITDA for any fiscal period ending during the first three
full fiscal quarters following the Closing Date, Consolidated EBITDA shall
be deemed to be Consolidated EBITDA from February 1, 1997 to the last day
of such period multiplied by a fraction the numerator of which is 365 and
the denominator of which is the number of days from the February 1, 1997 to
the last day of such period.
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"Consolidated Interest Expense": for any fiscal period, the amount of
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interest expense of the Borrower and its Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP.
"Consolidated Lease Expense": for any fiscal period, the aggregate
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rental obligations of the Borrower and its Subsidiaries determined on a
consolidated basis payable in respect of such period under leases of real
and/or personal property (net of income from sub-leases thereof, but
including taxes, insurance, maintenance and similar expenses which the
lessee is obligated to pay under the terms of said leases), whether or not
such obligations are reflected as liabilities or commitments on a
consolidated balance sheet of the Borrower and its Subsidiaries or in the
notes thereto, excluding, however, obligations under Financing Leases.
"Consolidated Net Income": for any fiscal period, net income of the
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Borrower and its Subsidiaries, determined on a consolidated basis in
accordance with GAAP; provided that for any calculation of Consolidated Net
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Income for any fiscal period ending during the first three full fiscal
quarters following the Closing Date, Consolidated Net Income shall be
deemed to be Consolidated Net Income from February 1, 1997 to the last day
of such period multiplied by a fraction the numerator of which is 365 and
the denominator of which is the number of days from February 1, 1997 to the
last day of such period.
"Consolidated Net Worth": at any date, cumulative Consolidated Net
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Income from February 1, 1997 to such date; provided that Consolidated Net
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Worth shall be computed without giving effect to depreciation and
amortization of purchase accounting adjustments (computed on an after-tax
basis) (x) arising from the Business Combination or (y) recorded on the
books of Loomis prior to the Business Combination.
"Consolidated Total Debt": at any date, all Indebtedness of the
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Borrower and its Subsidiaries outstanding on such date for borrowed money
or the deferred purchase price of property, including, without limitation,
Indebtedness in respect of the NOL Note and in respect of Financing Leases
but excluding Indebtedness permitted pursuant to subsection 7.2(j).
"Consolidated Working Capital": at any date, the excess of (a) the
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sum of all amounts (other than cash and cash equivalents) that would, in
accordance with GAAP, be set forth opposite the caption "total current
assets" (or any like caption) on a consolidated balance sheet of the
Borrower and its Subsidiaries at such date over (b) all amounts that would,
in accordance with GAAP, be set forth opposite the caption "total current
liabilities" (or any like caption) on a consolidated balance sheet of the
Borrower and its Subsidiaries on such date (excluding, to the extent it
would otherwise be included under current liabilities, any short-term
Consolidated Total Debt and the current portion of any long-term
Consolidated Total Debt).
"Contribution Agreement": as defined in the recitals to this
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Agreement.
"Contribution Documents": the Contribution Agreement, the Schedules
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thereto and the documents set forth on Schedule V.
"Contractual Obligation": as to any Person, any provision of any
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security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
8
"Credit Documents": this Agreement, the Notes and the Applications
----------------
and the Security Documents.
"Credit Parties": the Borrower, Xxxxx Fargo, the Loomis Stockholders
--------------
Trust, and each Subsidiary of the Borrower which is a party to a Credit
Document.
"Debt Ratio": as at the last day of any fiscal quarter, the ratio of
----------
(a) Consolidated Total Debt on such date to (b) Consolidated EBITDA for the
four consecutive fiscal quarters ended on such date.
"Default": any of the events specified in Section 8, whether or not
-------
any requirement for the giving of notice, the lapse of time, or both, or
any other condition, has been satisfied.
"Dollars" and "$": dollars in lawful currency of the United States of
------- -
America.
"Environmental Laws": any and all laws, rules, orders, regulations,
------------------
statutes, ordinances, guidelines, codes, decrees, or other legally
enforceable requirement (including, without limitation, common law) of any
foreign government, the United States, or any state, local, municipal or
other governmental authority, regulating, relating to or imposing liability
or standards of conduct concerning protection of the environment or of
human health as affected by the environment as has been, is now, or may at
any time hereafter be, in effect.
"Environmental Permits": any and all permits, licenses,
---------------------
registrations, notifications, exemptions and any other authorization
required under any Environmental Law.
"ERISA": the Employee Retirement Income Security Act of 1974, as
-----
amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to a
---------------------------------
Eurodollar Loan, the aggregate (without duplication) of the rates
(expressed as a decimal fraction) of reserve requirements in effect on such
day (including, without limitation, basic, supplemental, marginal and
emergency reserves under any regulations of the Board of Governors of the
Federal Reserve System or other Governmental Authority having jurisdiction
with respect thereto) dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities"
in Regulation D of such Board) maintained by a member bank of such System.
"Eurodollar Base Rate": with respect to each day during each Interest
--------------------
Period pertaining to a Eurodollar Loan, the rate per annum determined by
the Administrative Agent to be the arithmetic mean (rounded to the nearest
1/100th of 1%) of the offered rates for deposits in Dollars with a term
comparable to such Interest Period that appears on the Telerate British
Bankers Assoc. Interest Settlement Rates Page (as defined below) at
approximately 11:00 A.M., London time, on the second full Business Day
preceding the first day of such Interest Period; provided, however, that if
-------- -------
there shall at any time no longer exist a Telerate British Bankers Assoc.
Interest Settlement Rates Page, "Eurodollar Base Rate" shall mean, with
respect to each day during each Interest Period pertaining to a Eurodollar
Loan, the rate per annum equal to the rate at which NationsBank is offered
Dollar deposits at or about 9:00 A.M., Dallas, Texas time, two Business
Days prior to the beginning of such Interest Period in the interbank
eurodollar market where the eurodollar and foreign currency and exchange
operations in respect of its Eurodollar Loans are then being conducted for
9
delivery on the first day of such Interest Period for the number of days
comprised therein and in an amount comparable to the amount of its
Eurodollar Loan to be outstanding during such Interest Period. "Telerate
--------
British Bankers Assoc. Interest Settlement Rates Page" shall mean the
-----------------------------------------------------
display designated as Page 3750 on the Telerate System Incorporated Service
(or such other page as may replace such page on such service for the
purpose of displaying the rates at which Dollar deposits are offered by
leading banks in the London interbank deposit market).
"Eurodollar Loans": Loans the rate of interest applicable to which is
----------------
based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest
---------------
Period pertaining to a Eurodollar Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward to the
nearest 1/100th of 1%):
Eurodollar Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Event of Default": any of the events specified in Section 8,
----------------
provided that any requirement for the giving of notice, the lapse of time,
--------
or both, or any other condition, has been satisfied.
"Excess Cash Flow": for any fiscal year of the Borrower, the excess
----------------
of (a) the sum, without duplication, of (i) Consolidated Net Income
(excluding utilization of net operating losses relating to the NOL Note)
for such fiscal year, (ii) the net decrease, if any, in Consolidated
Working Capital during such fiscal year, (iii) to the extent deducted in
computing such Consolidated Net Income, non-cash interest expense,
depreciation and amortization for such fiscal year, (iv) extraordinary non-
cash losses during such fiscal year subtracted in the determination of
Consolidated Net Income for such fiscal year, (v) deferred income tax
expense of the Borrower for such fiscal year, (vi) non-cash losses in
connection with asset dispositions whether or not constituting
extraordinary losses, and (vii) non-cash ordinary losses over (b) the sum,
----
without duplication, of (i) the aggregate amount of permitted cash Capital
Expenditures made by the Borrower and its Subsidiaries during such fiscal
year, (ii) the net increase, if any, in Consolidated Working Capital during
such fiscal year, (iii) the aggregate amount of payments of principal in
respect of any Indebtedness not prohibited hereunder during such fiscal
year (other than (A) prepayments of Revolving Credit Loans not accompanied
by reductions of the Commitments, (B) repayments of the NOL Note and (C)
mandatory prepayments pursuant to subsection 2.5(b)(i), (ii) and (iii)),
(iv) deferred income tax credit of the Borrower for such fiscal year, (v)
extraordinary non-cash gains during such fiscal year added in the
determination of Consolidated Net Income for such fiscal year, (vi) non-
cash gains in connection with asset dispositions whether or not
constituting extraordinary gains and (vii) non-cash ordinary gains.
"Excess Cash Flow Payment Date": in respect of any fiscal year, the
-----------------------------
date on which the Borrower is required to deliver audited financial
statements for such fiscal year to each Lender pursuant to subsection
6.1(a).
"Financing Lease": any lease of property, real or personal, the
---------------
obligations of the lessee in respect of which are required in accordance
with GAAP to be capitalized on a balance sheet of the lessee.
10
"GAAP": generally accepted accounting principles in the United States
----
of America in effect from time to time.
"Governmental Authority": any nation or government, any state or
----------------------
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guarantee Obligation": as to any Person (the "guaranteeing person"),
-------------------- -------------------
any obligation of (a) the guaranteeing person or (b) another Person
(including, without limitation, any bank under any letter of credit) to
induce the creation of which the guaranteeing person has issued a
reimbursement, counterindemnity or similar obligation, in either case
guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends
or other obligations (the "primary obligations") of any other third Person
-------------------
(the "primary obligor") in any manner, whether directly or indirectly,
---------------
including, without limitation, any obligation of the guaranteeing person,
whether or not contingent, (i) to purchase any such primary obligation or
any property constituting direct or indirect security therefor, (ii) to
advance or supply funds (1) for the purchase or payment of any such primary
obligation or (2) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase property, securities or services
primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such
primary obligation or (iv) otherwise to assure or hold harmless the owner
of any such primary obligation against loss in respect thereof; provided,
--------
however, that the term Guarantee Obligation shall not include endorsements
-------
of instruments for deposit or collection in the ordinary course of
business. The amount of any Guarantee Obligation of any guaranteeing
person shall be deemed to be the lower of (a) an amount equal to the stated
or determinable amount of the primary obligation in respect of which such
Guarantee Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the instrument
embodying such Guarantee Obligation, unless such primary obligation and the
maximum amount for which such guaranteeing person may be liable are not
stated or determinable, in which case the amount of such Guarantee
Obligation shall be such guaranteeing person's maximum reasonably
anticipated liability in respect thereof as determined by the Borrower in
good faith.
"Guarantee and Collateral Agreement": the Guarantee and Collateral
----------------------------------
Agreement, substantively in the form of Exhibit B, to be executed and
delivered by the Borrower and its Subsidiaries, as the same may be amended,
supplemented or otherwise modified.
"Indebtedness": of any Person at any date, (a) all indebtedness of
------------
such Person for borrowed money or for the deferred purchase price of
property or services (other than current trade liabilities incurred in the
ordinary course of business and payable in accordance with customary
practices and accrued expenses incurred in the ordinary course of
business), (b) any other indebtedness of such Person which is evidenced by
a note, bond, debenture or similar instrument, (c) all obligations of such
Person under Financing Leases, (d) all obligations of such Person in
respect of acceptances issued or created for the account of such Person and
(e) all liabilities secured by any Lien on any property owned by such
Person even though such Person has not assumed or otherwise become liable
for the payment thereof.
"Indenture": the Indenture between the Borrower and Marine Midland
---------
Bank, as trustee, pursuant to which the Subordinated Notes are issued.
11
"Insolvency": with respect to any Multiemployer Plan, the condition
----------
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
---------
"Interest Payment Date": (a) as to any Base Rate Loan, the last day
---------------------
of each March, June, September and December, (b) as to any Eurodollar Loan
having an Interest Period of three months or less, the last day of such
Interest Period, and (c) as to any Eurodollar Loan having an interest
period longer than three months, each day which is three months or a whole
multiple thereof, after the first day of such Interest Period and the last
day of such Interest Period.
"Interest Period": with respect to any Eurodollar Loan:
---------------
(v) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such Eurodollar
Loan and ending one, two, three or six months thereafter, as selected
by the Borrower in its notice of borrowing or notice of conversion, as
the case may be, given with respect thereto; and
(vi) thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such Eurodollar Loan and
ending one, two, three or six months thereafter, as selected by the
Borrower by irrevocable notice to the Administrative Agent not less
than three Business Days prior to the last day of the then current
Interest Period with respect thereto;
provided that, all of the foregoing provisions relating to Interest Periods
--------
are subject to the following:
(1) if any Interest Period pertaining to a Eurodollar Loan would
otherwise end on a day that is not a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless
the result of such extension would be to carry such Interest Period
into another calendar month in which event such Interest Period shall
end on the immediately preceding Business Day;
(2) any Interest Period that would otherwise extend beyond the
Termination Date shall end on the Termination Date; and
(3) any Interest Period pertaining to a Eurodollar Loan that
begins on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar month
at the end of such Interest Period) shall end on the last Business Day
of a calendar month.
"Interest Rate Agreement": any interest rate swap agreement, interest
-----------------------
rate cap agreement, interest rate collar agreement or other similar
agreement or arrangement.
"Interest Rate Agreement Obligations": the obligations of the
-----------------------------------
Borrower or any of its Subsidiaries to make payments to counterparties
under Interest Rate Agreements in the event of the occurrence of a
termination event thereunder.
"Intermediate Holding Company": as defined in the recitals to this
----------------------------
Agreement.
12
"IRB Related Transactions": the transactions referred to in Schedule
------------------------
VI.
"Issuing Lender": NationsBank of Texas, N.A., in its capacity as
--------------
issuer of any Letter of Credit.
"L/C Commitment": (a) during the period from the Closing Date to the
--------------
first anniversary of the Closing Date, $40,000,000, (b) during the period
from the first anniversary of the Closing Date to the second anniversary of
the Closing Date, $45,000,000 and (c) thereafter, $50,000,000.
"L/C Fee Payment Date": the last day of each March, June, September
--------------------
and December.
"L/C Obligations": at any time, an amount equal to the sum of (a) the
---------------
aggregate then undrawn and unexpired amount of the then outstanding Letters
of Credit and (b) the aggregate amount of drawings under Letters of Credit
which have not then been reimbursed pursuant to subsection 3.5.
"L/C Participants": the collective reference to all the Lenders other
----------------
than the Issuing Lender.
"Letters of Credit": as defined in subsection 3.1.
-----------------
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
----
arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement
or preferential arrangement of any kind or nature whatsoever (including,
without limitation, any conditional sale or other title retention agreement
and any Financing Lease having substantially the same economic effect as
any of the foregoing).
"Loan": any loan made by any Lender pursuant to this Agreement.
----
"Loomis": as defined in the recitals to this Agreement.
------
"Xxxxxx Armored": as defined in the recitals to this Agreement.
--------------
"Xxxxxx Casualty and Employee Claims Trust": as defined in the
-----------------------------------------
recitals to this Agreement.
"Xxxxxx Indemnity Trust": as defined in the recitals to this
----------------------
Agreement.
"Xxxxxx Stockholders Trust": as defined in the recitals to this
-------------------------
Agreement.
"Management Group": the individuals listed as such on Schedule III.
----------------
"Material Adverse Effect": a material adverse effect on (a) the
-----------------------
business, assets, operations, property, condition (financial or otherwise)
or prospects of the Borrower and its Subsidiaries taken as a whole or (b)
the validity or enforceability of this or any of the other Credit Documents
or the rights or remedies of the Agents or the Lenders hereunder or
thereunder.
13
"Materials of Environmental Concern": any hazardous or toxic
----------------------------------
substances, materials or wastes, defined or regulated as such in or under,
or that could give rise to liability under, any applicable Environmental
Law, including, without limitation, asbestos, polychlorinated biphenyls,
urea-formaldehyde insulation, gasoline or petroleum (including crude oil or
any fraction thereof) or petroleum products.
"Mortgages": the collective reference to the mortgages and deeds of
---------
trust to be executed and delivered by the Borrower or the appropriate
Subsidiary, substantially in the form of Exhibit C (with such changes
therein as may be required to reflect different laws and practices in the
various jurisdictions in which the Mortgages are to be recorded), covering
the parcels of real property identified in Schedule IV, as the same may be
amended, supplemented or otherwise modified from time to time.
"Multiemployer Plan": a Plan which is a multiemployer plan as defined
------------------
in Section 4001(a)(3) of ERISA.
"Net Proceeds": the aggregate cash proceeds received by the Borrower
------------
or any of its Subsidiaries in respect of:
(a) any issuance by the Borrower or any of its Subsidiaries of
Indebtedness after the Closing Date;
(b) any Asset Sale; and
(c) any cash payments received in respect of promissory notes
delivered to the Borrower or such Subsidiary in respect of an Asset
Sale;
in each case net of (without duplication) (A), in the case of an Asset
Sale, the amount required to repay any Indebtedness (other than the Loans)
secured by a Lien on any assets of the Borrower or a Subsidiary of the
Borrower that are sold or otherwise disposed of in connection with such
Asset Sale, (B) the reasonable expenses (including legal fees and brokers'
and underwriters' commissions, lenders fees, credit enhancement fees,
accountants' fees, investment banking fees, survey costs, title insurance
premiums and other customary fees, in any case, paid to third parties or,
to the extent permitted hereby, Affiliates) incurred in effecting such
issuance or sale and (C) any taxes reasonably attributable to such sale and
reasonably estimated by the Borrower or such Subsidiary to be actually
payable.
"NOL Note": as defined in the recitals to this Agreement.
--------
"Non-Excluded Taxes": as defined in subsection 2.15.
------------------
"Non-U.S. Lender": as defined in subsection 2.15(b).
---------------
"Note": as defined in subsection 2.5(e).
----
"Obligations": as defined in the Guarantee and Collateral Agreement.
-----------
"Operating Subsidiary": as defined in the recitals to this Agreement.
--------------------
"Participant": as defined in subsection 10.6(b).
-----------
14
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
----
to Subtitle A of Title IV of ERISA.
"Permitted Liens": Liens permitted to exist under subsection 7.3.
---------------
"Permitted Restricted Payments": (a) the issuance by the Borrower of
-----------------------------
shares of Capital Stock as dividends on issued and outstanding Capital
Stock of the same class of the Borrower or pursuant to any dividend
reinvestment plan, (b) the issuance by the Borrower of options or other
equity securities of the Borrower to outside directors, members of
management or employees of the Borrower, and the repurchase of such equity
securities in an amount not exceeding $250,000 per year, (c) the issuance
of equity securities as dividends on equity securities of the same class
permitted hereunder and under the Security Documents, (d) the issuance to
the Borrower by the Intermediate Holding Company of its Capital Stock or
the issuance to the Borrower or the Intermediate Holding Company by any
Subsidiary of any of their respective Capital Stock, in each case with
respect to this clause (d) to the extent such Capital Stock is pledged to
the Administrative Agent pursuant to the relevant Pledge Agreement, and (e)
cash payments made in lieu of issuing fractional shares of Borrower common
stock or preferred stock, in an aggregate amount not to exceed $50,000.
"Person": an individual, partnership, corporation, business trust,
------
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which is
----
covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Principals": the collective reference, without duplication, to the
----------
Xxxx-Xxxxxx Principals and the Xxxxxxx Principals.
"Pro Forma Balance Sheet": as defined in subsection 4.1(e).
-----------------------
"Properties": as defined in subsection 4.17.
----------
"Qualified Issuer": any commercial bank (a) which has capital and
----------------
surplus in excess of $100,000,000 and (b) the outstanding long-term debt
securities of which are rated at least A-2 by S&P or at least P-2 by
Xxxxx'x, or carry an equivalent rating by a nationally recognized rating
agency if both of S&P and Xxxxx'x cease publishing ratings of investments.
"Register": as defined in subsection 10.6(d).
--------
"Regulation U": Regulation U of the Board of Governors of the Federal
------------
Reserve System as in effect from time to time.
"Reimbursement Obligation": the obligation of the Borrower to
------------------------
reimburse the Issuing Lender pursuant to subsection 3.5 for amounts drawn
under Letters of Credit.
15
"Related Party": with respect to either the Xxxxxxx Principals or the
-------------
Xxxx-Xxxxxx Principals, (a) any controlling stockholder, 80% (or more)
owned Subsidiary, or spouse or immediate family member (in the case of an
individual) of such principal or (b) a trust, corporation, partnership or
other entity, the beneficiaries, stockholders, partners, owners or Persons
beneficially holding an 80% or more controlling interest of which consist
of the Xxxx-Xxxxxx Principals, the Xxxxxxx Principals and/or such other
Persons referred to in the immediately preceding clause (a).
"Reorganization": with respect to any Multiemployer Plan, the
--------------
condition that such plan is in reorganization within the meaning of Section
4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(c) of
----------------
ERISA, other than those events as to which the thirty day notice period is
waived under subsections .13, .14, .16, .18, .19 or .20 of PBGC Reg. (S)
2615.
"Required Lenders": at any time, Lenders the Commitment Percentages
----------------
of which aggregate more than 50%.
"Requirement of Law": as to any Person, the Certificate of
------------------
Incorporation and By-Laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"Responsible Officer": the chief executive officer, the president or
-------------------
vice president of the Borrower or, with respect to financial matters, the
chief financial officer or vice president-finance of the Borrower.
"Revolving Credit Loans": as defined in subsection 2.1(a).
----------------------
"Security Documents": the collective reference to the Guarantee and
------------------
Collateral Agreement, the Mortgages and all other security documents
hereafter delivered to the Administrative Agent granting a Lien on any
asset or assets of any Person to secure the obligations and liabilities of
the Borrower hereunder and under any of the other Credit Documents or to
secure any guarantee of any such obligations and liabilities.
"Single Employer Plan": any Plan which is covered by Title IV of
--------------------
ERISA, but which is not a Multiemployer Plan.
"Stockholders Agreement": the Stockholders Agreement, dated as of
----------------------
January 24, 1997, by and among the Borrower, Xxxxx Fargo, the Loomis
Stockholders Trust, Xxxxxxx Partners, L.P. and any other party that may
from time to time become a party thereto as provided therein, as the same
may be amended, supplemented or otherwise modified from time to time.
"Subordinated Debt": indebtedness outstanding under the Subordinated
-----------------
Notes.
"Subordinated Debt Documents": the Indenture and the Subordinated
---------------------------
Notes.
16
"Subordinated Notes": the Borrower's 10% Senior Subordinated Notes,
------------------
due 2004 (the "Initial Subordinated Notes"), issued on the Closing Date,
--------------------------
and the subordinated notes of the Borrower, having the same terms as the
Initial Subordinated Notes, issued in exchange for the Initial Subordinated
Notes as contemplated by the Initial Subordinated Notes.
"Subsidiary": as to any Person, a corporation, partnership or other
----------
entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests
having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through
one or more intermediaries, or both, by such Person. Unless otherwise
qualified, all references to a "Subsidiary" or to "Subsidiaries" in this
Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower.
"Termination Date": the earlier of (i) January 24, 2002 and (ii) such
----------------
other earlier date on which the Commitments shall terminate hereunder.
"Tranche": the collective reference to Eurodollar Loans the then
-------
current Interest Periods with respect to all of which begin on the same
date and end on the same later date (whether or not such Loans shall
originally have been made on the same day); Tranches may be identified as
"Eurodollar Tranches".
--------------------
"Transferee": as defined in subsection 10.6(h).
----------
"Type": as to any Loan, its nature as a Base Rate Loan or a
----
Eurodollar Loan.
"Uniform Customs": the Uniform Customs and Practice for Documentary
---------------
Credits (1993 Revision), International Chamber of Commerce Publication
No. 500, as the same may be amended from time to time.
"U.S. Taxes": any tax, assessment, or other charge or levy and any
----------
liabilities with respect thereto, including any penalties, additions to
tax, fines or interest thereon, imposed by or on behalf of the United
States or any taxing authority thereof.
"Xxxxx Fargo": as defined in the recitals to this Agreement.
-----------
"Xxxxxxx Principals": Xxxxxxx Partners, L.P., Xxxxxxx Affiliates,
------------------
L.P. and the Management Group.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
-----------------------------
therein, all terms defined in this Agreement shall have the defined meanings
when used in any Notes or any certificate or other document made or delivered
pursuant hereto.
(b) As used herein and in any Notes, and any certificate or other
document made or delivered pursuant hereto, accounting terms relating to the
Borrower and its Subsidiaries not defined in subsection 1.1 and accounting terms
partly defined in subsection 1.1, to the extent not defined, shall have the
respective meanings given to them under GAAP; provided that, if the Borrower
--------
notifies the Administrative Agent that the Borrower requests an amendment to any
provision hereof to eliminate the effect of any change occurring after the date
hereof in GAAP or in the application thereof on the operation of such provision
(or if the Administrative Agent notifies the Borrower that
17
the Required Lenders request an amendment to any provision hereof for such
purpose), regardless of whether any such notice is given before or after such
change in GAAP or in the application thereof, then such provision shall be
interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section, subsection,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Revolving Credit Commitments. (a) Subject to the terms and
----------------------------
conditions hereof, each Lender severally agrees to make revolving credit loans
("Revolving Credit Loans") to the Borrower from time to time during the
----------------------
Commitment Period in an aggregate principal amount at any one time outstanding
which, when added to such Lender's Commitment Percentage of the then outstanding
L/C Obligations, does not exceed the amount of such Lender's Commitment. During
the Commitment Period the Borrower may use the Commitments by borrowing,
prepaying the Revolving Credit Loans in whole or in part, and reborrowing, all
in accordance with the terms and conditions hereof.
(b) The Revolving Credit Loans may from time to time be
(i) Eurodollar Loans, (ii) Base Rate Loans or (iii) a combination thereof, as
determined by the Borrower and notified to the Administrative Agent in
accordance with subsections 2.2 and 2.7, provided that no Revolving Credit Loan
--------
shall be made as a Eurodollar Loan after the day that is one month prior to the
Termination Date.
2.2 Procedure for Revolving Credit Borrowing. The Borrower may
----------------------------------------
borrow under the Commitments during the Commitment Period on any Business Day,
provided that the Borrower shall give the Administrative Agent irrevocable
--------
notice (which notice must be received by the Administrative Agent prior to
(a) 12:00 P.M., Noon, Dallas, Texas time, three Business Days prior to the
requested Borrowing Date, if all or any part of the requested Revolving Credit
Loans are to be initially Eurodollar Loans or (b) 10:00 A.M., Dallas, Texas
time, on the requested Borrowing Date, otherwise), specifying (i) the amount to
be borrowed, (ii) the requested Borrowing Date, (iii) whether the borrowing is
to be of Eurodollar Loans, Base Rate Loans or a combination thereof and (iv) if
the borrowing is to be entirely or partly of Eurodollar Loans, the respective
amounts of such Type of Loan and the respective lengths of the initial Interest
Periods therefor. Each borrowing under the Commitments shall be in an amount
equal to (x) in the case of Base Rate Loans, $1,000,000 or a whole multiple of
$250,000 in excess thereof (or, if the then Available Commitments are less than
$1,000,000, such lesser amount) and (y) in the case of Eurodollar Loans,
$3,000,000 or a whole multiple of $250,000 in excess thereof. Upon receipt of
any such notice from the Borrower, the Administrative Agent shall promptly
notify each Lender thereof. Each Lender will make the amount of its pro rata
share of each borrowing available to the Administrative Agent for the account of
the Borrower at the office of the Administrative Agent specified in subsection
10.2 prior to 11:00 A.M., Dallas, Texas time (in the case of Eurodollar Loans)
or 2:00 P.M., Dallas, Texas time (in the case of
18
Base Rate Loans), on the Borrowing Date requested by the Borrower in funds
immediately available to the Administrative Agent. Such borrowing will then be
made available to the Borrower by the Administrative Agent crediting the account
of the Borrower on the books of such office with the aggregate of the amounts
made available to the Administrative Agent by the Lenders and in like funds as
received by the Administrative Agent. All notices given by the Borrower under
this subsection 2.2 may be made by telephonic notice promptly confirmed in
writing.
2.3 Commitment Fee. The Borrower agrees to pay to the Administrative
--------------
Agent for the account of each Lender a commitment fee for the period from and
including the first day of the Commitment Period to and including the
Termination Date, computed at the Commitment Fee Rate on the average daily
amount of the Available Commitment of such Lender during the period for which
payment is made, payable quarterly in arrears on the last day of each March,
June, September and December and on the Termination Date, commencing on the
first of such dates to occur after the date hereof.
2.4 Termination or Reduction of Commitments. (a) The Borrower shall
---------------------------------------
have the right, upon not less than five Business Days' notice to the
Administrative Agent, to terminate the Commitments or, from time to time, to
reduce the amount of the Commitments provided that no such termination or
--------
reduction shall be permitted if, after giving effect thereto and to any
prepayments of the Loans made on the effective date thereof, the aggregate
principal amount of the Loans then outstanding, when added to the then
outstanding L/C Obligations, would exceed the Commitments then in effect. Any
such reduction shall be in an amount equal to $500,000 or a whole multiple of
$100,000 in excess thereof and shall reduce permanently the Commitments then in
effect.
(b) The total amount of the Commitments on the Closing Date shall be
$115,000,000, and shall be reduced on each of the dates specified below by the
amount set forth opposite such date or such lesser amount equal to the aggregate
Commitments then in effect on such date:
Date Amount
---- ------
March 31, 1998 2,500,000
June 30, 1998 2,500,000
September 30, 1998 2,500,000
December 31, 1998 2,500,000
March 31, 1999 3,750,000
June 30, 1999 3,750,000
September 30, 1999 3,750,000
December 31, 1999 3,750,000
March 31, 2000 4,375,000
June 30, 2000 4,375,000
September 30, 2000 4,375,000
December 31, 2000 4,375,000
March 31, 2001 4,375,000
June 30, 2001 4,375,000
September 30, 2001 31,875,000
January 31, 2002 31,875,000
19
2.5 Repayment of Loans; Evidence of Debt. (a) The Borrower hereby
------------------------------------
unconditionally promises to pay to the Administrative Agent for the account of
each Lender the then unpaid principal amount of each Loan of such Lender on the
Termination Date (or such earlier date on which the Loans become due and payable
pursuant to Section 8). The Borrower hereby further agrees to pay interest on
the unpaid principal amount of the Loans from time to time outstanding from the
date hereof until payment in full thereof at the rates per annum, and on the
dates, set forth in subsection 2.9.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing indebtedness of the Borrower to such Lender
resulting from each Loan of such Lender from time to time, including the amounts
of principal and interest payable and paid to such Lender from time to time
under this Agreement.
(c) The Administrative Agent shall maintain the Register pursuant to
subsection 10.6(d), and a subaccount therein for each Lender, in which shall be
recorded (i) the amount of each Loan made hereunder, the Type thereof and each
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder and (iii) both the amount of any sum received by the Administrative
Agent hereunder from the Borrower and each Lender's share thereof.
(d) The entries made in the Register and the accounts of each Lender
maintained pursuant to subsection 2.5(b) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
----- -----
obligations of the Borrower therein recorded; provided, however, that the
-------- -------
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of the Borrower to repay (with applicable interest) the Loans made to
such Borrower by such Lender in accordance with the terms of this Agreement.
(e) The Borrower agrees that, upon the request to the Administrative
Agent by any Lender, the Borrower will execute and deliver to such Lender a
promissory note of the Borrower evidencing the Loans of such Lender,
substantially in the form of Exhibit A with appropriate insertions as to date
and principal amount (a "Note"). A Note and the Obligation evidenced thereby
----
may be assigned or otherwise transferred in whole or in part only by
registration of such assignment or transfer of such Note and the Obligation
evidenced thereby in the Register (and each Note shall expressly so provide).
Any assignment or transfer of all or part of an Obligation evidenced by a Note
shall be registered in the Register only upon surrender for registration of
assignment or transfer of the Note evidencing such Obligation, duly endorsed by
(or accompanied by a written instrument of assignment or transfer duly executed
by) the holder thereof, and thereupon one or more new Notes shall be issued to
the designated Assignee and the old Note shall be returned by the Administrative
Agent to the Borrower marked "cancelled." No assignment of a Note and the
Obligation evidenced thereby shall be effective unless it shall have been
recorded in the Register by the Administrative Agent as provided in this
subsection 2.5(e).
2.6 Optional Prepayments; Mandatory Prepayments and Reduction of
------------------------------------------------------------
Commitments. (a) The Borrower may on the last day of any Interest Period with
-----------
respect thereto, in the case of Eurodollar Loans, or at any time and from time
to time, in the case of Base Rate Loans, prepay the Loans, in whole or in part,
without premium or penalty, upon irrevocable notice to the Administrative Agent
prior to 10:00 A.M., Dallas, Texas time, three Business Days prior to the date
of prepayment,
20
specifying the date and amount of prepayment and whether the prepayment is of
Eurodollar Loans, Base Rate Loans or a combination thereof, and, if of a
combination thereof, the amount allocable to each. Upon receipt of any such
notice the Administrative Agent shall promptly notify each Lender thereof. If
any such notice is given, the amount specified in such notice shall be due and
payable on the date specified therein, together with any amounts payable
pursuant to subsection 2.16. Partial prepayments shall be in an aggregate
principal amount of $500,000 or a whole multiple of $100,000 in excess thereof.
(b)(i) If, subsequent to the Closing Date, the Borrower or any of its
Subsidiaries shall incur or permit the incurrence of any Indebtedness (other
than Indebtedness permitted pursuant to subsection 7.2) and the Debt Ratio
calculated as of the last day of the most recently ended fiscal quarter and
after giving pro forma effect to such incurrence of Indebtedness shall exceed
--- -----
3.00 to 1.00, 100% of the Net Proceeds thereof shall be promptly applied toward
the prepayment of the Loans and permanent reduction of the Commitments as set
forth in clause (iv) of this subsection 2.6(b), provided that the aggregate Net
--------
Proceeds so applied pursuant to this subsection 2.6(b)(i) shall not exceed
$75,000,000 in the aggregate. Nothing in this paragraph (b) shall be deemed to
permit any Indebtedness not permitted by subsection 7.2.
(ii) If, subsequent to the Closing Date, the Borrower or any of its
Subsidiaries shall receive Net Proceeds from any Asset Sale, such Net Proceeds
shall be promptly applied toward the prepayment of the Loans and permanent
reduction of the Commitments as set forth in clause (iv) of this
subsection 2.6(b); provided that Net Proceeds from any Asset Sales shall not be
--------
required to be so applied to the extent that such Net Proceeds are used to
acquire assets to be employed in the business of the Borrower or its
Subsidiaries within 365 days of receipt thereof, but if such Net Proceeds are
not so used, such Net Proceeds shall be applied toward the prepayment of the
Loans and the permanent reduction of the Commitments as set forth in clause
(iv) of this subsection 2.6(b) on the earlier of (x) the 366th day after receipt
of such Net Proceeds and (y) the date on which the Borrower has determined that
such Net Proceeds shall not be so used.
(iii) If there is Excess Cash Flow for fiscal year 1997, the lesser
of (A) 50% of such Excess Cash Flow and (B) $5,000,000, shall be applied toward
the prepayment of the Loans and the permanent reduction of the Commitments as
set forth in clause (iv) of this subsection 2.6(b) on the Excess Cash Flow
Payment Date for such fiscal year. If there is Excess Cash Flow for any fiscal
year after 1997 and the Debt Ratio as of the last day of such fiscal year is
greater than 4.0 to 1.0, 75% of such Excess Cash Flow shall be applied toward
the prepayment of the Loans and the permanent reduction of the commitments as
set forth in clause (iv) of this subsection 2.6(b) on the Excess Cash Flow
Payment Date for such fiscal year. If there is Excess Cash Flow for any fiscal
year after 1997 and the Debt Ratio as of the last day of such fiscal year is
greater than 3.0 to 1.0 but less than 4.0 to 1.0, 50% of such Excess Cash Flow
shall be applied toward the prepayment of the Loans and the permanent reduction
of the Commitments as set forth in clause (iv) of this subsection 2.6(b) on the
Excess Cash Flow Payment Date for such fiscal year.
(iv) Commitment reductions made pursuant to subsections 2.6(b)(i),
(ii) and (iii), shall be applied toward scheduled Commitment reductions under
subsection 2.4(b) pro rata according to the amounts of such scheduled reductions
--- ----
and shall reduce permanently the Commitments.
(v) If after giving effect to any reduction of the Commitments
under subsection 2.4 or 2.5 the aggregate outstanding principal amount of Loans
plus the aggregate outstanding amount of L/C Obligations shall exceed the
aggregate amount of the Commitments, such reduction shall be accompanied by
prepayment of the Loans in the amount of such excess (together with any amounts
21
payable under subsection 4.16)) provided that if the aggregate principal amount
--------
of Loans then outstanding is less than the amount of such excess (because
Letters of Credit constitute a portion of such excess), the Borrower shall
immediately, without notice or demand, to the extent of the balance of such
excess, replace outstanding Letters of Credit and/or deposit an amount in cash
collateral account satisfactory to the Administrative Agent established for the
benefit of the Lenders.
2.7 Conversion and Continuation Options. (a) The Borrower may elect
-----------------------------------
from time to time to convert Eurodollar Loans to Base Rate Loans, by giving the
Administrative Agent at least one Business Day's prior irrevocable notice of
such election, provided that any such conversion of Eurodollar Loans may only be
--------
made on the last day of an Interest Period with respect thereto. The Borrower
may elect from time to time to convert Base Rate Loans to Eurodollar Loans by
giving the Administrative Agent at least three Business Days' prior irrevocable
notice of such election. Any such notice of conversion to Eurodollar Loans
shall specify the length of the initial Interest Period or Interest Periods
therefor. Upon receipt of any such notice the Administrative Agent shall
promptly notify each Lender thereof. All or any part of outstanding Eurodollar
Loans and Base Rate Loans may be converted as provided herein, provided that
--------
(i) no Loan may be converted into a Eurodollar Loan when any Event of Default
has occurred and is then continuing and the Administrative Agent has or the
Required Lenders have determined that such a conversion is not appropriate and
(ii) no Loan may be converted into a Eurodollar Loan after the date that is one
month prior to the Termination Date. All notices given by Borrower under this
subsection 2.7 may be made by telephonic notice promptly confirmed in writing.
(b) Any Eurodollar Loans may be continued as such upon the expiration
of the then current Interest Period with respect thereto by the Borrower giving
notice to the Administrative Agent, in accordance with the applicable provisions
of the term "Interest Period" set forth in subsection 1.1, of the length of the
next Interest Period to be applicable to such Loans, provided that no Eurodollar
--------
Loan may be continued as such (i) when any Event of Default has occurred and is
then continuing and the Administrative Agent has or the Required Lenders have
determined that such a continuation is not appropriate or (ii) after the date
that is one month prior to the Termination Date and provided, further, that if
-------- -------
the Borrower shall fail to give such notice or if such continuation is not
permitted such Loans shall be automatically converted to Base Rate Loans on the
last day of such then expiring Interest Period.
2.8 Minimum Amounts and Maximum Number of Tranches. All borrowings,
----------------------------------------------
conversions and continuations of Loans hereunder and all selections of Interest
Periods hereunder shall be in such amounts and be made pursuant to such
elections so that, after giving effect thereto, the aggregate principal amount
of the Loans comprising each Eurodollar Tranche shall be equal to $3,000,000 or
a whole multiple of $250,000 in excess thereof. In no event shall there be more
than 10 Eurodollar Tranches outstanding at any time.
2.9 Interest Rates and Payment Dates. (a) Each Eurodollar Loan
--------------------------------
shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such day
plus the Applicable Margin.
(b) Each Base Rate Loan shall bear interest at a rate per annum equal
to the Base Rate plus the Applicable Margin.
(c) If all or a portion of (i) any principal of any Loan, (ii) any
interest payable thereon, (iii) any commitment fee or (iv) any other amount
payable hereunder shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), the principal of the Loans and any
22
such overdue interest, commitment fee or other amount shall bear interest at a
rate per annum which is (x) in the case of principal, the rate that would
otherwise be applicable thereto pursuant to the foregoing provisions of this
subsection plus 2% or (y) in the case of any such overdue interest, commitment
fee or other amount, the rate described in paragraph (b) of this subsection plus
2%, in each case from the date of such non-payment until such overdue principal,
interest, commitment fee or other amount is paid in full (as well after as
before judgment).
(d) Interest shall be payable in arrears on each Interest Payment
Date and on the Termination Date, provided that interest accruing pursuant to
--------
paragraph (c) of this subsection shall be payable from time to time on demand.
2.10 Computation of Interest and Fees. (a) Interest on Base Rate
--------------------------------
Loans shall be calculated on the basis of a 365- (or 366-, as the case may be)
day year for the actual days elapsed; and, otherwise, all fees and interest
shall be calculated on the basis of a 360-day year for the actual days elapsed.
The Administrative Agent shall as soon as practicable notify the Borrower and
the Lenders of each determination of a Eurodollar Rate. Any change in the
interest rate on a Loan resulting from a change in the Base Rate or the
Eurocurrency Reserve Requirements shall become effective as of the opening of
business on the day on which such change becomes effective. The Administrative
Agent shall as soon as practicable notify the Borrower and the Lenders of the
effective date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Borrower and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of the Borrower, deliver to the
Borrower a statement showing the quotations used by the Administrative Agent in
determining any interest rate pursuant to subsection 2.9(a) or (c).
2.11 Inability to Determine Interest Rate. If prior to the first day
------------------------------------
of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that, by
reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for such
Interest Period, or
(b) the Administrative Agent shall have received notice from the
Required Lenders that the Eurodollar Rate determined or to be determined
for such Interest Period will not adequately and fairly reflect the cost to
such Lenders (as conclusively certified by such Lenders) of making or
maintaining their affected Loans during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the Lenders as soon as practicable thereafter. If such notice is
given (x) any Eurodollar Loans requested to be made on the first day of such
Interest Period shall be made as Base Rate Loans, (y) any Loans that were to
have been converted on the first day of such Interest Period to Eurodollar Loans
shall be converted to or continued as Base Rate Loans and (z) any outstanding
Eurodollar Loans shall be converted, on the first day of such Interest Period,
to Base Rate Loans. Until such notice has been withdrawn in writing by the
Administrative Agent (which the Administrative Agent agrees to do when the
Administrative Agent has determined, or has been instructed by the Required
Lenders that, the circumstances that prompted the delivery of such notice no
longer exist), no further Eurodollar Loans
23
shall be made or continued as such, nor shall the Borrower have the right to
convert Loans to Eurodollar Loans.
2.12 Pro Rata Treatment and Payments. (a) Each borrowing by the
-------------------------------
Borrower from the Lenders hereunder, each payment by the Borrower on account of
any commitment fee hereunder and any reduction of the Commitments of the Lenders
shall be made pro rata according to the respective Commitment Percentages of the
Lenders. Each payment (including each prepayment) by the Borrower on account of
principal of and interest on the Loans shall be made pro rata according to the
respective outstanding principal amounts of the Loans then held by the Lenders.
All payments (including prepayments) to be made by the Borrower hereunder,
whether on account of principal, interest, Reimbursement Obligations, fees or
otherwise, shall be made without set off or counterclaim and shall be made prior
to 12:00 Noon, Dallas, Texas time, on the due date thereof to the Administrative
Agent, for the account of the Lenders, at the Administrative Agent's office
specified in subsection 10.2, in Dollars and in immediately available funds.
The Administrative Agent shall distribute such payments to the Lenders promptly
upon receipt in like funds as received. If any payment hereunder becomes due
and payable on a day other than a Business Day, such payment shall be extended
to the next succeeding Business Day, and, with respect to payments of principal,
interest thereon shall be payable at the then applicable rate during such
extension.
(b) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its Commitment Percentage of such borrowing
available to the Administrative Agent, the Administrative Agent may assume that
such Lender is making such amount available to the Administrative Agent on such
Borrowing Date, and the Administrative Agent may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. If such
amount is not made available to the Administrative Agent by the required time on
the Borrowing Date therefor, such Lender shall pay to the Administrative Agent,
on demand, such amount with interest thereon at a rate equal to the daily
average Federal Funds Effective Rate for the period until such Lender makes such
amount immediately available to the Administrative Agent. A certificate of the
Administrative Agent submitted to any Lender with respect to any amounts owing
under this subsection shall be conclusive in the absence of manifest error. If
such Lender's Commitment Percentage of such borrowing is not made available to
the Administrative Agent by such Lender within three Business Days of such
Borrowing Date, the Administrative Agent shall also be entitled to recover such
amount with interest thereon at the rate per annum applicable to Base Rate Loans
hereunder, on demand, from the Borrower. The failure of any Lender to make any
Loan to be made by it shall not relieve any other Lender of its obligation
hereunder to make its Loan on such Borrowing Date.
2.13 Illegality. Notwithstanding any other provision herein, if the
----------
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof shall make it unlawful for any Lender to make or maintain
Eurodollar Loans as contemplated by this Agreement, (a) the commitment of such
Lender hereunder to make Eurodollar Loans, continue Eurodollar Loans as such and
convert Base Rate Loans to Eurodollar Loans shall forthwith be cancelled and
(b) such Lender's Loans then outstanding as Eurodollar Loans, if any, shall be
converted automatically to Base Rate Loans on the respective last days of the
then current Interest Periods with respect to such Loans or within such earlier
period as required by law; provided that before making any such demand, each
--------
Lender agrees to use reasonable efforts (consistent with its internal policy and
legal and regulatory restrictions and so long as such efforts would not be
disadvantageous to it, in its reasonable discretion, in any legal, economic or
regulatory manner) to designate a different lending office if the making of such
a designation would allow the Lender or its lending office to continue to
perform its obligations to make Eurodollar Loans and avoid the need for, or
materially reduce the amount of,
24
such increased cost. If any such conversion of a Eurodollar Loan occurs on a day
which is not the last day of the then current Interest Period with respect
thereto, the Borrower shall pay to such Lender such amounts, if any, as may be
required pursuant to subsection 2.16. If circumstances subsequently change so
that any affected Lender shall determine that it is no longer so affected, such
Lender will promptly notify the Borrower and the Administrative Agent, and upon
receipt of such notice, the obligations of such Lender to make or continue
Eurodollar Loans or to convert Base Rate Loans into Eurodollar Loans shall be
reinstated.
2.14 Requirements of Law. (a) If the adoption of or any change in
-------------------
any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever
with respect to this Agreement, any Note, any Letter of Credit, any
Application or any Eurodollar Loan made by it, or change the basis of
taxation of payments to such Lender in respect thereof (except for Non-
Excluded Taxes covered by subsection 2.15 and changes in the rate of net
income taxes or franchise taxes (imposed in lieu of net income taxes) of
such Lender);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets held
by, deposits or other liabilities in or for the account of, advances, loans
or other extensions of credit by, or any other acquisition of funds by, any
office of such Lender which is not otherwise included in the determination
of the Eurodollar Rate hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or issuing or participating in
Letters of Credit or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the Borrower shall promptly pay such Lender
upon written demand such additional amount or amounts as will compensate such
Lender for such increased cost or reduced amount receivable, provided that
--------
before making any such demand, each Lender agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions and
so long as such efforts would not be disadvantageous to it, in its reasonable
discretion, in any legal, economic or regulatory manner) to designate a
different Eurodollar lending office if the making of such designation would
allow the Lender or its Eurodollar lending office to continue to perform its
obligations to make Eurodollar Loans or to continue to fund or maintain
Eurodollar Loans and avoid the need for, or materially reduce the amount of,
such increased cost. If any Lender becomes entitled to claim any additional
amounts pursuant to this subsection, it shall promptly notify the Borrower,
through the Administrative Agent, of the event by reason of which it has become
so entitled. If the Borrower so notifies the Administrative Agent within five
Business Days after any Lender notifies the Borrower of any increased cost
pursuant to the foregoing provisions of this Section, the Borrower may convert
all Eurodollar Loans of such Lender then outstanding into Base Rate Loans in
accordance with the terms hereof. Each Lender shall notify the Borrower within
90 days after it becomes aware of the imposition of such costs provided that if
--------
such Lender fails to so notify the Borrower within such 90-day period, such
Lender shall not be entitled to claim any additional amounts pursuant to this
subsection for any period ending on a date which is prior to 90 days before such
notification.
25
(b) If any Lender shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder or under any Letter of Credit to a
level below that which such Lender or such corporation could have achieved but
for such adoption, change or compliance (taking into consideration such Lender's
or such corporation's policies with respect to capital adequacy) by an amount
deemed by such Lender to be material, then from time to time, after submission
by such Lender to the Borrower (with a copy to the Administrative Agent) of a
prompt written request therefor, the Borrower shall promptly pay to such Lender
such additional amount or amounts as will compensate such Lender for such
reduction.
(c) If any Lender becomes entitled to claim any additional amounts
pursuant to this subsection, it shall promptly notify the Borrower (with a copy
to the Administrative Agent) of the event by reason of which it has become so
entitled. A certificate as to any additional amounts payable pursuant to this
subsection submitted by such Lender to the Borrower (with a copy to the
Administrative Agent) shall be conclusive in the absence of manifest error. The
agreements in this subsection shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
2.15 Taxes. (a) Except as provided in this subsection 2.15, all
-----
payments made by the Borrower under this Agreement and any Notes shall be made
free and clear of, and without deduction or withholding for or on account of,
any present or future income, stamp or other taxes, levies, imposts, duties,
charges, fees, deductions or withholdings, now or hereafter imposed, levied,
collected, withheld or assessed by any Governmental Authority, excluding net
income taxes and franchise taxes (imposed in lieu of net income taxes) imposed
on any Agent or any Lender as a result of a present or former connection between
any Agent or such Lender and the jurisdiction of the Governmental Authority
imposing such tax or any political subdivision or taxing authority thereof or
therein (other than any such connection arising solely from such Agent or such
Lender having executed, delivered or performed its obligations or received a
payment under, or enforced, this Agreement or any Note). If any such non-
excluded taxes, levies, imposts, duties, charges, fees deductions or
withholdings ("Non-Excluded Taxes") are required to be withheld from any amounts
------------------
payable to any Agent or any Lender hereunder or under any Note, the amounts so
payable to such Agent or such Lender shall be increased to the extent necessary
to yield to such Agent or such Lender (after payment of all Non-Excluded Taxes)
interest or any such other amounts payable hereunder at the rates or in the
amounts specified in this Agreement, provided, however, that the Borrower shall
-------- -------
not be required to increase any such amounts payable to any Lender that is not
organized under the laws of the United States of America or a state thereof if
such Lender fails to comply with the requirements of paragraph (b) of this
subsection. Whenever any Non-Excluded Taxes are payable by the Borrower, as
promptly as possible thereafter the Borrower shall send to the relevant Agent
for its own account or for the account of such Lender, as the case may be, a
certified copy of an original official receipt received by the Borrower showing
payment thereof. If the Borrower fails to pay any Non-Excluded Taxes when due
to the appropriate taxing authority or fails to remit to the relevant Agent the
required receipts or other required documentary evidence, the Borrower shall
indemnify the Agents and the Lenders for any incremental taxes, interest or
penalties that may become payable by any Agent or any Lender as a result of any
such failure. The agreements in this subsection shall survive the termination
of this Agreement and the payment of the Loans and all other amounts payable
hereunder.
26
(b) Each Lender, Assignee and Participant that is not a citizen or
resident of the United States of America, a corporation, partnership created or
organized in or under the laws of the United States of America, any estate that
is subject to U.S. federal income taxation regardless of the source of its
income or any trust which is subject to the supervision of a court within the
United States and the control of a United States fiduciary as described in
Section 7701(a)(30) of the Code (a "Non-U.S. Lender") shall deliver to the
---------------
Borrower and the Administrative Agent, and if applicable, the assigning Lender
(or, in the case of a Participant, to the Lender from which the related
participation shall have been purchased) on or before the date on which it
becomes a party to this Agreement (or, in the case of a Participant, on or
before the date on which such Participant purchases the related participation)
either:
(A) (x) two duly completed and signed copies of either Internal
Revenue Service Form 1001 (relating to such Non-U.S. Lender and entitling
it to a complete exemption from withholding of U.S. Taxes on all amounts to
be received by such Non-U.S. Lender pursuant to this Agreement and the
other Credit Documents) or Form 4224 (relating to all amounts to be
received by such Non-U.S. Lender pursuant to this Agreement and the other
Credit Documents), or successor and related applicable forms, as the case
may be, and (y) two duly completed and signed copies of Internal Revenue
Service Form W-8 or W-9, or successor and related applicable forms, as the
case may be; or
(B) in the case of a Non-U.S. Lender that is not a "bank" within the
meaning of Section 881(c)(3)(A) of the Code and that does not comply with
the requirements of clause (A) hereof, (x) a statement in the form of
Exhibit F (or such other form of statement as shall be reasonably requested
by the Borrower from time to time) to the effect that such Non-U.S. Lender
is eligible for a complete exemption from withholding of U.S. Taxes under
Code Section 871(h) or 881(c), and (y) two duly completed and signed copies
of Internal Revenue Service Form W-8 or successor and related applicable
form (it being understood and agreed that no Participant and, without the
prior written consent of the Borrower described in clause (B) of the
proviso to the first sentence of subsection 10.6(c), no Assignee shall be
entitled to deliver any forms or statements pursuant to this clause (B),
but rather shall be required to deliver forms pursuant to clause (A) of
this subsection 2.15(b)).
Further, each Non-U.S. Lender agrees (i) to deliver to the Borrower and the
Administrative Agent, and if applicable, the assigning Lender (or, in the case
of a Participant, to the Lender from which the related participation shall have
been purchased) two further duly completed and signed copies of such Forms 1001,
4224, W-8 or W-9, as the case may be, or successor and related applicable forms,
on or before the date that any such form expires or becomes obsolete and
promptly after the occurrence of any event requiring a change from the most
recent form(s) previously delivered by it to the Borrower (or, in the case of a
Participant, to the Lender from which the related participation shall have been
purchased) in accordance with applicable U.S. laws and regulations and (ii) in
the case of a Non-U.S. Lender that delivers a statement in the form of Exhibit F
(or such other form of statement as shall have been requested by the Borrower),
to deliver to the Borrower and the Administrative Agent, and if applicable, the
assigning Lender, such statement on an annual basis on the anniversary of the
date on which such Non-U.S. Lender became a party to this Agreement and to
deliver promptly to the Borrower and the Administrative Agent, and if
applicable, the assigning Lender, such additional statements and forms as shall
be reasonably requested by the Borrower from time to time unless, in any such
case, any change in law or regulation has occurred subsequent to the date such
Lender became a party to this Agreement (or in the case of a Participant, the
date on which such Participant purchased the related participation) which
renders all such forms inapplicable or which would prevent such Lender (or
Participant) from properly completing and executing any such form with respect
to it
27
and such Lender promptly notifies the Borrower and the Administrative Agent (or,
in the case of a Participant, the Lender from which the related participation
shall have been purchased) if it is no longer able to deliver, or if it is
required to withdraw or cancel, any form or statement previously delivered by it
pursuant to this subsection 2.15(b). Each Non-U.S. Lender agrees to indemnify
and hold harmless the Borrower from and against any taxes, penalties, interest
or other costs or losses (including, without limitation, reasonable attorneys'
fees and expenses) incurred or payable by the Borrower as a result of the
failure of the Borrower to comply with its obligations to deduct or withhold any
U.S. Taxes from any payments made pursuant to this Agreement to such Non-U.S.
Lender or the Administrative Agent which failure resulted from the Borrower's
reliance on any form, statement, certificate or other information provided to it
by such Non-U.S. Lender pursuant to clause (B) or clause (ii) of this subsection
2.15(b). The Borrower hereby agrees that for so long as a Non-U.S. Lender
complies with this subsection 2.15(b), the Borrower shall not withhold any
amounts from any payments made pursuant to this Agreement to such Non-U.S.
Lender, unless the Borrower reasonably determines that it is required by law to
withhold or deduct any amounts from any payments made to such Non-U.S. Lender
pursuant to this Agreement. A Non-U.S. Lender shall not be required to deliver
any form or statement pursuant to the immediately preceding sentences in this
subsection 2.15(b) that such Non-U.S. Lender is not legally able to deliver (it
being understood and agreed that the Borrower shall withhold or deduct such
amounts from any payments made to such Non-U.S. Lender that the Borrower
reasonably determines are required by law and that payments resulting from a
failure to comply with this paragraph (b) shall not be subject to payment or
indemnity by the Borrower pursuant to subsection 2.15(a)). If any Credit Party
other than the Borrower makes any payment to any Non-U.S. Lender under any
Credit Document, the foregoing provisions of this subsection 2.15 shall apply to
such Non-U.S. Lender and such Credit Party as if such Credit Party were the
Borrower (but a Non-U.S. Lender shall not be required to provide any form or
make any statement to any such Credit Party unless such Non-U.S. Lender has
received a request to do so from such Credit Party and has a reasonable time to
comply with such request).
2.16 Indemnity. The Borrower agrees to indemnify each Lender and to
---------
hold each Lender harmless from any loss or expense which such Lender may sustain
or incur as a consequence of (a) default by the Borrower in making a borrowing
of, conversion into or continuation of Eurodollar Loans after the Borrower has
given a notice requesting the same in accordance with the provisions of this
Agreement, (b) default by the Borrower in making any prepayment after the
Borrower has given a notice thereof in accordance with the provisions of this
Agreement or (c) the making of a prepayment of Eurodollar Loans on a day which
is not the last day of an Interest Period with respect thereto (but excluding
loss of margin). Such indemnification under this subsection 2.16 may include an
amount equal to the excess, if any, of (i) the amount of interest which would
have accrued on the amount so prepaid, or not so borrowed, converted or
continued, for the period from the date of such prepayment or of such failure to
borrow, convert or continue to the last day of such Interest Period (or, in the
case of a failure to borrow, convert or continue, the Interest Period that would
have commenced on the date of such failure) in each case at the applicable rate
of interest for such Loans provided for herein (excluding, however, the
Applicable Margin included therein, if any) over (ii) the amount of interest (as
reasonably determined by such Lender) which would have accrued to such Lender on
such amount by placing such amount on deposit for a comparable period with
leading banks in the interbank eurodollar market. This covenant shall survive
the termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder.
2.17 Replacement of Lenders. If at any time (a) the Borrower becomes
----------------------
obligated to pay additional amounts described in subsections 2.13, 2.14 or 2.15
as a result of any condition described in such subsections or any Lender ceases
to make Eurodollar Loans pursuant to subsection 2.13, (b) any Lender becomes
insolvent and its assets become subject to a receiver, liquidator,
28
trustee, custodian or other Person having similar powers or (c) any Lender
becomes a "Nonconsenting Lender" (hereinafter defined), then the Borrower may,
on ten Business Days' prior written notice to the Administrative Agent and such
Lender, replace such Lender by causing such Lender to (and such Lender shall)
assign pursuant to subsection 10.6 all of its rights and obligations under this
Agreement to a Lender or other entity selected by the Borrower and acceptable to
the Administrative Agent for a purchase price equal to the outstanding principal
amount of such Lender's Loans and all accrued interest and fees and other
amounts payable hereunder (including amounts payable under subsection 2.16 as
though such Loans were being paid instead of being purchased); provided that
--------
(i) the Borrower shall have no right to replace the Administrative Agent,
(ii) neither the Administrative Agent nor any Lender shall have any obligation
to the Borrower to find a replacement Lender or other such entity, (iii) in the
event of a replacement of a Nonconsenting Lender or a Lender to which the
Borrower becomes obligated to pay additional amounts pursuant to this subsection
2.17, in order for the Borrower to be entitled to replace such a Lender, such
replacement must take place no later than 180 days after (A) the date the
Nonconsenting Lender shall have notified the Borrower and the Administrative
Agent of its failure to agree to any requested consent, waiver or amendment or
(B) the Lender shall have demanded payment of additional amounts under one of
the subsections described in this subsection 2.17, as the case may be, and (iv)
in no event shall the Lender hereby replaced be required to pay or surrender to
such replacement Lender or other entity any of the fees received by such Lender
hereby replaced pursuant to this Agreement. In the case of a replacement of a
Lender to which the Borrower becomes obligated to pay additional amounts
pursuant to this subsection 2.17, the Borrower shall pay such additional amounts
to such Lender prior to such Lender being replaced and the payment of such
additional amounts shall be a condition to the replacement of such Lender. In
the event that (x) the Borrower or the Administrative Agent has requested the
Lenders to consent to a departure or waiver of any provisions of the Credit
Documents or to agree to any amendment thereto, (y) the consent, waiver or
amendment in question requires the agreement of all Lenders in accordance with
the terms of subsection 10.1 and (z) the Required Lenders have agreed to such
consent, waiver or amendment, then any Lender who does not agree to such
consent, waiver or amendment shall be deemed a "Nonconsenting Lender."
--------------------
2.18 Certain Fees. The Company agrees to pay to the Administrative
------------
Agent, for its own account, a non-refundable administration fee in an amount
previously agreed to with the Administrative Agent, payable in advance on the
Closing Date and annually in advance on each anniversary thereof prior to the
Termination Date and the payment in full of all amounts owing under this
Agreement.
2.19 Change of Lending Office. Each Lender agrees that if it makes
------------------------
any demand for payment under subsection 2.14 or 2.15(a), or if any adoption or
change of the type described in subsection 2.13 shall occur with respect to it,
it will use reasonable efforts (consistent with its internal policy and legal
and regulatory restrictions and so long as such efforts would not be
disadvantageous to it, as determined in its sole discretion) to designate a
different lending office if the making of such a designation would reduce or
obviate the need for the Borrower to make payments under subsection 2.14 or
2.15(a), or would eliminate or reduce the effect of any adoption or change
described in subsection 2.13.
SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment. (a) Subject to the terms and conditions
--------------
hereof, the Issuing Lender, in reliance on the agreements of the other Lenders
set forth in subsection 3.4(a), agrees to issue letters of credit ("Letters of
----------
Credit") for the account of the Borrower on any Business Day
------
29
during the Commitment Period in such form as may be approved from time to time
by the Issuing Lender; provided that the Issuing Lender shall have no obligation
--------
to issue any Letter of Credit if, after giving effect to such issuance, (i) the
L/C Obligations would exceed the L/C Commitment or (ii) the Available Commitment
of all Lenders would be less than zero.
(b) Each Letter of Credit shall (i) be denominated in Dollars, (ii)
be (x) a standby letter of credit issued to support obligations of the Borrower
or any of its Subsidiaries, contingent or otherwise, or to finance the working
capital and business needs of the Borrower or any of its Subsidiaries in the
ordinary course of business or (y) a commercial letter of credit issued in
respect of the purchase of goods or services by the Borrower and its
Subsidiaries in the ordinary course of business and (iii) expire no later than
the earlier of (x) the date that is 12 months after the date of its issuance and
(y) the fifth Business Day prior to the Termination Date; provided that any
--------
Letter of Credit with an expiration date occurring up to twelve months after
such Letter of Credit's date of issuance may be automatically renewable for
subsequent 12-month periods (but in no event later than the fifth Business Day
prior to the Termination Date).
(c) Each Letter of Credit shall be subject to the Uniform Customs
and, to the extent not inconsistent therewith, the laws of the State of New
York.
(d) The Issuing Lender shall not at any time be obligated to issue
any Letter of Credit hereunder if such issuance would conflict with, or cause
the Issuing Lender or any L/C Participant to exceed any limits imposed by, any
applicable Requirement of Law.
3.2 Procedure for Issuance of Letters of Credit. The Borrower may
-------------------------------------------
from time to time request that the Issuing Lender issue a Letter of Credit at
any time prior to the fifth Business Day prior to the Termination Date by
delivering to the Issuing Lender at its address for notices specified herein an
Application therefor, completed to the satisfaction of the Issuing Lender, and
such other certificates, documents and other papers and information as the
Issuing Lender may reasonably request. Upon receipt of any Application, the
Issuing Lender will process such Application and the certificates, documents and
other papers and information delivered to it in connection therewith in
accordance with its customary procedures and shall promptly issue the Letter of
Credit requested thereby (but in no event shall the Issuing Lender be required
to issue any Letter of Credit earlier than three Business Days after its receipt
of the Application therefor and all such other certificates, documents and other
papers and information relating thereto) by issuing the original of such Letter
of Credit to the beneficiary thereof or as otherwise may be agreed by the
Issuing Lender and the Borrower. The Issuing Lender shall furnish a copy of
such Letter of Credit to the Borrower promptly following the issuance thereof.
3.3 Fees, Commissions and Other Charges. (a) The Borrower shall pay
-----------------------------------
to the Administrative Agent, for the account of the Issuing Lender and the L/C
Participants, a letter of credit fee with respect to each Letter of Credit,
computed for the period from and including the date of issuance of such Letter
of Credit to the expiration date of such Letter of Credit at a rate per annum
equal to the Applicable Margin then in effect for Eurodollar Loans, of the
aggregate face amount of Letters of Credit outstanding, payable in arrears on
each L/C Fee Payment Date and on the Termination Date. Such fee shall be
payable to the Administrative Agent to be shared ratably among the Lenders in
accordance with their respective Commitment Percentages. In addition, the
Borrower shall pay to the Administrative Agent, for the account of the Issuing
Lender, a fee equal to (x) if the Debt Ratio (as calculated for the most
recently ended fiscal quarter) shall exceed 3.00 to 1.00, 0.1875% per annum of
the aggregate face amount of outstanding Letters of Credit and (y) if the Debt
Ratio (as calculated for most recently ended fiscal quarter) shall be less than
or equal to 3.00 to 1.00,
30
0.1250% per annum of the aggregate face amount of outstanding Letters of Credit
payable quarterly in arrears on each L/C Fee Payment Date and on the Termination
Date.
(b) In addition to the foregoing fees and commissions, the Borrower
shall pay or reimburse the Issuing Lender for such normal and customary costs
and expenses as are incurred or charged by the Issuing Lender in issuing,
effecting payment under, amending or otherwise administering any Letter of
Credit.
(c) The Administrative Agent shall, promptly following its receipt
thereof, distribute to the Issuing Lender and the L/C Participants all fees and
commissions received by the Administrative Agent for their respective accounts
pursuant to this subsection.
3.4 L/C Participation. (a) The Issuing Lender irrevocably agrees to
-----------------
grant and hereby grants to each L/C Participant, and, to induce the Issuing
Lender to issue Letters of Credit hereunder, each L/C Participant irrevocably
agrees to accept and purchase and hereby accepts and purchases from the Issuing
Lender, on the terms and conditions hereinafter stated, for such L/C
Participant's own account and risk an undivided interest equal to such L/C
Participant's Commitment Percentage from time to time in effect in the Issuing
Lender's obligations and rights under each Letter of Credit issued hereunder and
the amount of each draft paid by the Issuing Lender thereunder. Each L/C
Participant unconditionally and irrevocably agrees with the Issuing Lender that,
if a draft is paid under any Letter of Credit for which the Issuing Lender is
not reimbursed in full by the Borrower in accordance with the terms of this
Agreement, such L/C Participant shall pay to the Issuing Lender upon demand at
the Issuing Lender's address for notices specified herein an amount equal to
such L/C Participant's then Commitment Percentage of the amount of such draft,
or any part thereof, which is not so reimbursed; provided that, if such demand
--------
is made prior to 12:00 Noon, Dallas, Texas time, on a Business Day, such L/C
Participant shall make such payment to the Issuing Lender prior to the end of
such Business Day and otherwise such L/C Participant shall make such payment on
the next succeeding Business Day.
(b) If any amount required to be paid by any L/C Participant to the
Issuing Lender pursuant to paragraph 3.4(a) in respect of any unreimbursed
portion of any payment made by the Issuing Lender under any Letter of Credit is
paid to the Issuing Lender within three Business Days after the date such
payment is due, such L/C Participant shall pay to the Issuing Lender on demand
an amount equal to the product of (i) such amount, times (ii) the daily average
Federal funds rate, as quoted by the Issuing Lender, during the period from and
including the date such payment is required to the date on which such payment is
immediately available to the Issuing Lender, times (iii) a fraction the
numerator of which is the number of days that elapse during such period and the
denominator of which is 360. If any such amount required to be paid by any L/C
Participant pursuant to subsection 3.4(a) is not in fact made available to the
Issuing Lender by such L/C Participant within three Business Days after the date
such payment is due, the Issuing Lender shall be entitled to recover from such
L/C Participant, on demand, such amount with interest thereon calculated from
such due date at the rate per annum applicable to Base Rate Loans hereunder. A
certificate of the Issuing Lender submitted to any L/C Participant with respect
to any amounts owing under this subsection shall be conclusive in the absence of
manifest error.
(c) Whenever, at any time after the Issuing Lender has made payment
under any Letter of Credit and has received from any L/C Participant its pro
rata share of such payment in accordance with subsection 3.4(a), the Issuing
Lender receives any payment related to such Letter of Credit (whether directly
from the Borrower or otherwise, including proceeds of collateral applied thereto
by the Issuing Lender), or any payment of interest on account thereof, the
Issuing Lender
31
will, if such payment is received prior to 12:00 Noon, Dallas, Texas time, on a
Business Day, distribute to such L/C Participant its pro rata share thereof
prior to the end of such Business Day and otherwise the Issuing Lender will
distribute such payment on the next succeeding Business Day; provided, however,
-------- -------
that in the event that any such payment received by the Issuing Lender and
distributed to the L/C Participants shall be required to be returned by the
Issuing Lender, each such L/C Participant shall return to the Issuing Lender the
portion thereof previously distributed by the Issuing Lender to it.
3.5 Reimbursement Obligation of the Borrower. (a) The Borrower
----------------------------------------
agrees to reimburse the Issuing Lender on the same Business Day on which the
Issuing Lender notifies the Borrower of the date and amount of a draft presented
under any Letter of Credit and paid by the Issuing Lender. The Issuing Lender
shall provide notice to the Borrower on each Business Day on which a draft is
presented and paid by the Issuing Lender indicating the amount of (i) such draft
so paid and (ii) any taxes, fees, charges or other costs or expenses incurred by
the Issuing Lender in connection with such payment. Each such payment shall be
made to the Issuing Lender at its address for notices specified herein in lawful
money of the United States of America and in immediately available funds.
(b) Interest shall be payable on any and all amounts remaining unpaid
by the Borrower under this subsection from the date a draft presented under any
Letter of Credit is paid by the Issuing Lender until payment in full (i) at the
rate which would be payable on any Loans that are Base Rate Loans at such time
until such payment is required to be made pursuant to subsection 3.5(a), and
(ii) thereafter, at the rate which would be payable on any Loans that are Base
Rate Loans at such time which were then overdue.
3.6 Obligations Absolute. (a) The Borrower's obligations under
--------------------
subsection 3.5(a) shall be absolute and unconditional under any and all
circumstances and irrespective of any set-off, counterclaim or defense to
payment which the Borrower may have or have had against the Issuing Lender, any
L/C Participant or any beneficiary of a Letter of Credit.
(b) The Borrower also agrees with the Issuing Lender that the Issuing
Lender shall not be responsible for, and the Borrower's Reimbursement
Obligations under subsection 3.5(a) shall not be affected by, among other
things, (i) the validity or genuineness of documents or of any endorsements
thereon, even though such documents shall in fact prove to be invalid,
fraudulent or forged, or (ii) any dispute between or among the Borrower and any
beneficiary of any Letter of Credit or any other party to which such Letter of
Credit may be transferred or (iii) any claims whatsoever of the Borrower against
any beneficiary of such Letter of Credit or any such transferee.
(c) Neither the Issuing Lender nor any L/C Participant shall be
liable for any error, omission, interruption or delay in transmission, dispatch
or delivery of any message or advice, however transmitted, in connection with
any Letter of Credit, except for errors or omissions caused by the Issuing
Lender's gross negligence or willful misconduct.
(d) The Borrower agrees that any action taken or omitted by the
Issuing Lender under or in connection with any Letter of Credit or the related
drafts or documents, if done in the absence of gross negligence or willful
misconduct and in accordance with the standards of care specified in the Uniform
Commercial Code of the State of New York, shall be binding on the Borrower and
shall not result in any liability of the Issuing Lender or any L/C Participant
to the Borrower.
32
3.7 Letter of Credit Payments. If any draft shall be presented for
-------------------------
payment under any Letter of Credit, the Issuing Lender shall promptly notify the
Borrower and the Administrative Agent of the date and amount thereof. If any
draft shall be presented for payment under any Letter of Credit, the
responsibility of the Issuing Lender to the Borrower in connection with such
draft shall, in addition to any payment obligation expressly provided for in
such Letter of Credit, be limited to determining that the documents (including
each draft) delivered under such Letter of Credit in connection with such
presentment appear on their face to be in conformity with such Letter of Credit.
3.8 Application. To the extent that any provision of any Application
-----------
related to any Letter of Credit is inconsistent with the provisions of this
Section 3, the provisions of this Section 3 shall apply.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Agents, the Issuing Lender and the Lenders to enter into
this Agreement and to make the Loans and issue or participate in the Letters of
Credit, the Borrower hereby represents and warrants to the Agents, the Issuing
Lender and each Lender that:
4.1 Financial Condition. (a) The consolidated audited balance
-------------------
sheets of Xxxxx Fargo and its consolidated Subsidiaries as at December 31, 1993,
December 31, 1994 and December 31, 1995 and the related consolidated statements
of operations and of cash flows for the fiscal year ended on each such date,
audited by Deloitte & Touche LLP, copies of which have heretofore been furnished
to each Lender, present fairly in accordance with GAAP the consolidated
financial condition of Xxxxx Fargo and its consolidated Subsidiaries as at such
date, and the consolidated results of their operations and their consolidated
cash flows for the fiscal year then ended. All such financial statements have
been prepared in accordance with GAAP applied consistently throughout the
periods involved (except as approved by such accountants and as disclosed
therein). Neither Xxxxx Fargo nor any of its consolidated Subsidiaries had, at
the date of each balance sheet referred to above, any material Guarantee
Obligation, contingent liability or liability for taxes, or any long-term lease
or unusual forward or long-term commitment, including, without limitation, any
material interest rate or foreign currency swap or exchange transaction, which
is not reflected in the foregoing statements or in the notes thereto or
expressly permitted to be incurred hereunder. During the period from December
31, 1995 to and including the date hereof there has been no sale, transfer or
other disposition by Xxxxx Fargo or any of its consolidated Subsidiaries of any
material part of its business or property (except as disclosed in the
Contribution Documents) other than pursuant to the Business Combination and no
purchase or other acquisition of any business or property (including any capital
stock of any other Person) material in relation to the consolidated financial
condition of Xxxxx Fargo and its consolidated Subsidiaries at December 31, 1995.
(b) The consolidated audited balance sheets of Xxxxxx and its
consolidated Subsidiaries as at June 30, 1994, June 30, 1995 and June 30, 1996
and the related consolidated statements of operations and of cash flows for the
fiscal year ended on each such date, audited by Ernst & Young LLP, copies of
which have heretofore been furnished to each Lender, present fairly in
accordance with GAAP the consolidated financial condition of Xxxxxx and its
consolidated Subsidiaries as at such date, and the consolidated results of their
operations and their consolidated cash flows for the fiscal year then ended.
All such financial statements have been prepared in accordance with GAAP applied
consistently throughout the periods involved (except as approved by such
accountants and as disclosed therein). Neither Xxxxxx nor any of its
consolidated Subsidiaries had, at the date of the most recent balance sheet
referred to above, any material Guarantee
33
Obligation, contingent liability or liability for taxes, or any long-term lease
or unusual forward or long-term commitment, including, without limitation, any
material interest rate or foreign currency swap or exchange transaction, which
is not reflected in the foregoing statements or in the notes thereto or
expressly permitted to be incurred hereunder. During the period from June 30,
1996 to and including the date hereof, there has been no sale, transfer or other
disposition (other than the Business Combination) by Xxxxxx or any of its
consolidated Subsidiaries of any material part of its business or property other
than pursuant to the Business Combination and no purchase or other acquisition
of any business or property (including any capital stock of any other Person)
material in relation to the consolidated financial condition of Xxxxxx and its
consolidated Subsidiaries at June 30, 1996.
(c) The unaudited consolidated balance sheet of Xxxxx Fargo and its
consolidated Subsidiaries as at September 30, 1996, certified by a Responsible
Officer of Xxxxx Fargo, copies of which have heretofore been furnished to each
Lender, presents fairly in all material respects in accordance with GAAP the
financial position of Xxxxx Fargo and its consolidated Subsidiaries as at such
date (subject to normal year end audit adjustments and the absence of schedules
and notes). Such balance sheet has been prepared in accordance with GAAP
(except as approved by such Responsible Officer and disclosed therein) (subject
to normal year end audit adjustments and the absence of schedules and notes).
Xxxxx Fargo and its consolidated Subsidiaries did not have at the date of such
balance sheet, any material Guarantee Obligation, contingent liability or
liability for taxes, or any long-term lease or unusual forward or long-term
commitment, including, without limitation, any interest rate or foreign currency
exchange transaction, which is not reflected in such balance sheets. During the
period from September 30, 1996 to the Closing Date, except in connection with
the Business Combination and the transactions related thereto, no dividends or
other distributions have been declared, paid or made upon the Capital Stock of
Xxxxx Fargo or any of its consolidated Subsidiaries nor has any of the Capital
Stock of Xxxxx Fargo or any of its consolidated Subsidiaries been redeemed,
retired, purchased or otherwise acquired for value by Xxxxx Fargo or any of its
consolidated Subsidiaries, respectively.
(d) The unaudited consolidated balance sheet of Xxxxxx and its
consolidated Subsidiaries as at September 30, 1996, certified by a Responsible
Officer of Xxxxxx, copies of which have heretofore been furnished to each
Lender, presents fairly in all material respects in accordance with GAAP the
financial position of Xxxxxx and its consolidated Subsidiaries as at such date
(subject to normal year end audit adjustments and the absence of schedules and
notes). Such balance sheet has been prepared in accordance with GAAP (except as
approved by such Responsible Officer and disclosed therein) (subject to normal
year end audit adjustments and the absence of schedules and notes). Xxxxxx and
its consolidated Subsidiaries did not have at the date of such balance sheet,
any material Guarantee Obligation, contingent liability or liability for taxes,
or any long-term lease or unusual forward or long-term commitment, including,
without limitation, any interest rate or foreign currency exchange transaction,
which is not reflected in such balance sheets. During the period from September
30, 1996 to the Closing Date, except in connection with the Business Combination
and the transactions related thereto, no dividends or other distributions have
been declared, paid or made upon the Capital Stock of Xxxxxx or any of its
consolidated Subsidiaries nor has any of the Capital Stock of Xxxxxx or any of
its consolidated Subsidiaries been redeemed, retired, purchased or otherwise
acquired for value by Xxxxxx or any of its consolidated Subsidiaries,
respectively.
(e) The unaudited consolidated pro forma balance sheet of the
--- -----
Borrower and its consolidated Subsidiaries, as at September 30, 1996, certified
by a Responsible Officer (the "Pro Forma Balance Sheet"), copies of which have
-----------------------
been furnished to each Lender, is the unaudited balance sheet of the Borrower
and its consolidated Subsidiaries as at September 30, 1996, adjusted to give
34
effect (as if such events had occurred on such date) to (i) the Business
Combination and each of the transactions contemplated by the Contribution
Agreement, (ii) the incurrence of the Loans and the issuance of the Letters of
Credit to be incurred or issued, as the case may be, on the Closing Date and
(iv) the incurrence of the Subordinated Debt and all other Indebtedness that the
Borrower and its consolidated Subsidiaries expect to incur, and the payment of
all amounts the Borrower and its consolidated Subsidiaries expect to pay, in
connection with the Business Combination. The Pro Forma Balance Sheet was
prepared based on good faith assumptions in accordance with GAAP and is based on
the best information available to the Borrower, as of the date of delivery
thereof, and reflects on a pro forma basis the financial position of the
--- -----
Borrower and its consolidated Subsidiaries, as at September 30, 1996, as
adjusted, as described above, assuming that the events specified in the
preceding sentence has actually occurred as at September 30, 1996.
4.2 No Change. Since December 31, 1995 there has been no development
---------
or event which has had or could reasonably be expected to have a Material
Adverse Effect.
4.3 Corporate Existence; Compliance with Law. Each of the Borrower
----------------------------------------
and its Subsidiaries (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (b) has the
corporate power and authority, and the legal right, to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is, or will be on or before the
date set forth in subsection 6.13, duly qualified as a foreign corporation and
in good standing under the laws of each jurisdiction where its ownership, lease
or operation of property or the conduct of its business requires such
qualification, except to the extent that the failure to so qualify could not, in
the aggregate, reasonably be expected to have a Material Adverse Effect and (d)
is in compliance with all Requirements of Law except to the extent that the
failure to comply therewith could not, in the aggregate, reasonably be expected
to have a Material Adverse Effect.
4.4 Corporate Power; Authorization; Enforceable Obligations. Each of
-------------------------------------------------------
the Borrower and its Subsidiaries has the corporate power and authority, and the
legal right, to make, deliver and perform the Credit Documents to which it is a
party and, in the case of the Borrower, to borrow hereunder and has taken all
necessary corporate action to authorize the borrowings on the terms and
conditions of this Agreement and to authorize the execution, delivery and
performance of the Credit Documents. No consent or authorization of, filing
with, notice to or other act by or in respect of, any Governmental Authority or
any other Person is required in connection with the borrowings hereunder or with
the execution, delivery, performance, validity or enforceability of the Credit
Documents to which the Borrower and each other Credit Party is a party, except
those set forth on Schedule 4.4. This Agreement has been, and each other Credit
Document will be, duly executed and delivered on behalf of the Borrower and each
other Credit Party. This Agreement constitutes, and each other Credit Document
to which it is a party when executed and delivered will constitute, a legal,
valid and binding obligation of each Credit Party thereto enforceable against
each such Credit Party, as the case may be, in accordance with its terms,
subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing.
4.5 No Legal Bar. The execution, delivery and performance of each
------------
Credit Document, the borrowing and use of the proceeds of the Loans and the
consummation of the transactions contemplated by the Contribution Agreement, the
Credit Documents and the Subordinated Debt Documents, (a) will not violate any
Requirement of Law or any Contractual Obligation applicable to or binding upon
each of the Borrower or any Subsidiary of the Borrower or any of their
35
respective properties or assets and (b) will not result in the creation or
imposition of any Lien on any of its properties or assets pursuant to any
Requirement of Law applicable to it or any of its Contractual Obligations,
except for the Liens arising under the Security Documents.
4.6 No Material Litigation. Except as set forth on Schedule 4.6, no
----------------------
litigation by, investigation by, or proceeding of or before any arbitrator or
any Governmental Authority is pending or, to the knowledge of the Borrower,
overtly threatened by or against the Borrower or any of its Subsidiaries or
against any of its or their respective properties or revenues (including after
giving effect to the Business Combination) with respect to any Credit Document
or any of the transactions contemplated hereby or which could reasonably be
expected to have a Material Adverse Effect.
4.7 No Default. Neither the Borrower nor any of its Subsidiaries is
----------
in default under or with respect to any of its Contractual Obligations in any
respect which could reasonably be expected to have a Material Adverse Effect.
No Default or Event of Default has occurred and is continuing.
4.8 Ownership of Property; Liens. Each of the Borrower and its
----------------------------
Subsidiaries (i) has good record and indefeasible title in fee simple to all the
real property listed on Part A to Schedule 4.8, (ii) within 30 days of the
Closing Date, shall have good record and indefeasible title in fee simple to all
the real property listed on Part B to Schedule 4.8, (iii) has good record and
indefeasible title in fee simple to, or a valid leasehold interest in, all its
other real property, (iv) has good title to, or a valid leasehold interest in,
all its other property and (v) none of such property in clauses (i) through (iv)
is or shall be subject to any Lien except as permitted by subsection 7.3. The
Borrower expects to dispose of, within one year after the Closing Date, each
property listed in Schedule 4.8 which (i) has a book or appraised value in
excess of $250,000 and (ii) is not listed on Schedule IV.
4.9 Intellectual Property. The Borrower and each of its Subsidiaries
---------------------
owns, or is licensed to use, all trademarks, tradenames, copyrights, technology,
know-how and processes necessary for the conduct of its business as currently
conducted except for those the failure to own or license which could not
reasonably be expected to have a Material Adverse Effect (the "Intellectual
------------
Property"). To the best of the Borrower's knowledge, and except as set forth on
--------
Schedule 4.9, no claim has been asserted and is pending by any Person
challenging or questioning the use of any such Intellectual Property or the
validity or effectiveness of any such Intellectual Property, nor does the
Borrower know of any valid basis for any such claim which could reasonably be
expected to have a Material Adverse Effect. The use of such Intellectual
Property by the Borrower and its Subsidiaries does not infringe on the rights of
any Person, except for such claims and infringements that, in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.
4.10 Taxes. Except as set forth on Schedule 4.10, each of the
-----
Borrower and its Subsidiaries has filed or caused to be filed all tax returns
which, to the knowledge of the Borrower, are required to be filed and has paid
all taxes shown to be due and payable on said returns or on any assessments made
against it or any of its property and all other material taxes, fees or other
charges imposed on it or any of its property by any Governmental Authority
(other than any the amount or validity of which are currently being contested in
good faith by appropriate proceedings and with respect to which reserves in
conformity with GAAP have been provided on the books of the Borrower or its
Subsidiaries, as the case may be); no tax Lien has been filed, and, to the
knowledge of the Borrower, no claim is being asserted, with respect to any such
tax, fee or other charge.
36
4.11 Federal Regulations. No part of the proceeds of any Loans will
-------------------
be used for "purchasing" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulation G or Regulation U of the
Board of Governors of the Federal Reserve System as now and from time to time
hereafter in effect. If requested by any Lender or the Administrative Agent,
the Borrower will furnish to the Administrative Agent and each Lender a
statement to the foregoing effect in conformity with the requirements of FR Form
G-1 or FR Form U-1 referred to in said Regulation G or Regulation U, as the case
may be.
4.12 ERISA. Neither a Reportable Event nor an "accumulated funding
-----
deficiency" (within the meaning of Section 412 of the Code or Section 302 of
ERISA) has occurred during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Single Employer Plan,
and each Plan has complied in all material respects with the applicable
provisions of ERISA and the Code (except that with respect to any Multiemployer
Plan, such representation is deemed made only to the knowledge of the Borrower).
No termination of a Single Employer Plan has occurred, and no Lien in favor of
the PBGC or a Plan has arisen, during such five-year period. The present value
of all accrued benefits under each Single Employer Plan (based on those
assumptions used to fund such Plans) did not, as of the last annual valuation
date prior to the date on which this representation is made or deemed made,
exceed the value of the assets of such Plan allocable to such accrued benefits.
Neither the Borrower nor any Commonly Controlled Entity has had a complete or
partial withdrawal from any Multiemployer Plan for which there is any
outstanding liability, and neither the Borrower nor any Commonly Controlled
Entity would become subject to any liability under ERISA if the Borrower or any
such Commonly Controlled Entity were to withdraw completely from all
Multiemployer Plans as of the valuation date most closely preceding the date on
which this representation is made or deemed made in an amount which would be
reasonably likely to have a Material Adverse Effect. No such Multiemployer Plan
is in Reorganization or Insolvent.
4.13 Investment Company Act; Other Regulations. The Borrower is not
-----------------------------------------
an "investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. The
Borrower is not subject to regulation under any Federal or State statute or
regulation (other than Regulation X of the Board of Governors of the Federal
Reserve System) which limits its ability to incur Indebtedness.
4.14 Subsidiaries. After giving effect to the consummation of the
------------
Business Combination, the Subsidiaries of the Borrower and their jurisdiction of
incorporation shall be as set forth on Schedule 4.14.
4.15 Purpose of Loans. The proceeds of the Loans shall be used by
----------------
the Borrower (i) to finance a portion of the Business Combination and related
fees and expenses in an aggregate amount not to exceed $80,000,000 and (ii) for
working capital purposes in the ordinary course of business of the Borrower and
its Subsidiaries.
4.16 Environmental Matters.
---------------------
Except insofar as any exception to any of the following, or any
aggregation of such exceptions, is not reasonably likely to result in a Material
Adverse Effect:
(a) The facilities and properties owned, leased or operated by the
Borrower or any of its Subsidiaries (the "Properties") do not contain, and
----------
have not previously contained, any Materials of Environmental Concern in
amounts or concentrations which (i) constitute or
37
constituted a violation of, or (ii) could reasonably be expected to give
rise to liability under, any applicable Environmental Law.
(b) Neither the Borrower nor any of its Subsidiaries has received any
notice of violation, alleged violation, non-compliance, liability or
potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Properties or the Business,
nor does the Borrower have knowledge or reason to believe that any such
notice will be received or is being threatened.
(c) Materials of Environmental Concern have not been transported or
disposed of from the Properties in violation of, or in a manner or to a
location which could reasonably be expected to give rise to liability
under, any applicable Environmental Law, nor have any Materials of
Environmental Concern been generated, treated, stored or disposed of at, on
or under any of the Properties in violation of, or in a manner that could
reasonably be expected to give rise to liability under, any applicable
Environmental Law.
(d) No judicial proceeding or governmental or administrative action
is pending or, to the knowledge of the Borrower, threatened, under any
Environmental Law to which the Borrower or any Subsidiary is or will be
named as a party or with respect to the Properties or the Business, nor are
there any consent decrees or other decrees, consent orders, administrative
orders or other orders, or other administrative or judicial requirements
outstanding under any Environmental Law with respect to the Properties or
the Business.
(e) There has been no release or threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or related
to the operations of the Borrower or any Subsidiary in connection with the
Properties or otherwise in connection with the Business, in violation of or
in amounts or in a manner that could reasonably give rise to liability
under any applicable Environmental Laws.
(f) The Properties and all operations at the Properties are in
compliance, and have in the last 3 years been in compliance, in all
material respects with all applicable Environmental Laws, and there is no
contamination at, under or about the Properties or violation of any
applicable Environmental Law with respect to the Properties or the business
operated by the Borrower or any of its Subsidiaries (the "Business") which
--------
could materially interfere with the continued operation of the Properties
or materially impair the fair saleable value thereof.
4.17 Collateral Documents. (a) Upon execution and delivery thereof
--------------------
by the parties thereto, the Guarantee and Collateral Agreement will be effective
to create in favor of the Administrative Agent, for the ratable benefit of the
Lenders, a legal, valid and enforceable security interest in the pledged stock
described therein and, when stock certificates representing or constituting the
pledged stock described therein are delivered to the Administrative Agent, such
security interest shall constitute a perfected first lien on, and security
interest in, all right, title and interest of the pledgor party thereto in the
pledged stock described therein.
(b) Upon execution and delivery thereof by the parties thereto, the
Guarantee and Collateral Agreement will be effective to create in favor of the
Administrative Agent, for the ratable benefit of the Lenders, a legal, valid and
enforceable security interest in the collateral described therein. Uniform
Commercial Code financing statements have been filed in each of the
jurisdictions
38
listed on Schedule 4.17(b), or arrangements have been made for such filing in
such jurisdictions, and upon such filing, and upon the taking of possession by
the Administrative Agent of any such collateral the security interests in which
may be perfected only by possession, such security interests will, subject to
the existence of Permitted Liens, constitute perfected first priority liens on,
and security interests in, all right, title and interest of the debtor party
thereto in the collateral described therein, except to the extent that a
security interest cannot be perfected therein by the filing of a financing
statement or the taking of possession under the Uniform Commercial Code of the
relevant jurisdiction.
4.18 Accuracy and Completeness of Information. No fact is known to
----------------------------------------
the Borrower or any of its Subsidiaries (other than general economic conditions,
which conditions are commonly known and affect businesses generally) which has
had or could reasonably be expected to have a Material Adverse Effect, which has
not been disclosed to the Lenders by the Borrower or such Subsidiary in writing
prior to the date hereof. No document furnished or statement made in writing to
the Lenders by the Borrower, any Subsidiary or any party to the Contribution
Agreement in connection with the negotiation, preparation or execution of this
Agreement or any of the other Credit Documents (but excluding all projections
and pro forma financial statements which shall have been prepared in good faith
and based upon reasonable assumptions) contains any untrue statement of a
material fact or omits to state any such material fact necessary in order to
make the statements contained therein not misleading in the context in which
such statements are made.
4.19 Solvency. On the Closing Date and after giving effect to the
--------
borrowings hereunder on such date and to all other Indebtedness and Guarantee
Obligations being incurred on such date, (a) the property, at a fair valuation,
of the Borrower will exceed the Borrower's debts, (b) the present fair salable
value of the assets of the Borrower is not less than the amount that will be
required to pay the probable liabilities of the Borrower as such debts become
absolute and matured, and (c) the Borrower does not intend to, and does not
believe it will, incur debts or liabilities beyond the Borrower's ability to pay
as such debts and liabilities mature. For purposes of this subsection, "debt"
means "liability on a claim" and "claim" means any (i) right to payment, whether
or not such a right is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured,
or unsecured or (ii) right to an equitable remedy for breach of performance if
such breach gives rise to a right to payment, whether or not such right to an
equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured,
disputed, undisputed, secured, or unsecured.
4.20 Labor Matters. There are no strikes pending or, to the
-------------
Borrower's knowledge, overtly threatened against the Borrower or any of its
Subsidiaries which, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect. The hours worked and payments made
to employees of the Borrower and each of its Subsidiaries have not been in
violation of the Fair Labor Standards Act or any other applicable Requirement of
Law, except to the extent such violations could not, or in the aggregate, be
reasonably expected to have a Material Adverse Effect.
4.21 Contribution Agreement. The representations and warranties
----------------------
contained in the Contribution Documents, taken as a whole, are true and correct
in all material respects as of the Closing Date. On the Closing Date, the
Business Combination will have been consummated in accordance with the
Contribution Documents.
39
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Initial Loans. The agreement of each Lender to
---------------------------
make the initial extension of credit requested to be made by it is subject to
the satisfaction, immediately prior to or concurrently with the making of such
extension of credit on the Closing Date, of the following conditions precedent:
(a) Credit Documents. The Administrative Agent shall have received
----------------
(i) this Agreement, executed and delivered by a duly authorized officer of
the Borrower, with a counterpart for each Lender and (ii) the Guarantee and
Collateral Agreement, executed and delivered by a duly authorized officer
of each party thereto, with a counterpart or a conformed copy for each
Lender.
(b) Related Agreements. The Administrative Agent shall have
------------------
received, with a copy for each Lender, true and correct copies, certified
as to authenticity by the Borrower, of the Contribution Agreement, the
Stockholders Agreement, the Subordinated Debt Documents and such other
documents or instruments as may be reasonably requested by the
Administrative Agent, including, without limitation, a copy of any debt
instrument, security agreement or other material contract to which the
Borrower or its Subsidiaries may be a party (after giving effect to the
Business Combination).
(c) Business Combination. The Business Combination shall have been
--------------------
consummated pursuant to the Contribution Agreement, and no material
provision of the Contribution Agreement shall have been amended,
supplemented, waived or otherwise modified without the prior written
consent of the Agents. The Agents shall have received evidence reasonably
satisfactory to them that the aggregate amount of fees and expenses payable
by the Borrower and its Subsidiaries in connection with the transactions
contemplated hereby will not exceed $8,000,000.
(d) Capitalization; Capital Structure (i) After giving effect to
---------------------------------
the Business Combination, the Borrower shall have the capital structure set
forth in the Pro Forma Balance Sheet.
(ii) The Subordinated Debt Documents shall have been executed and
delivered by the parties thereto (and shall be in form and substance
satisfactory to the Lenders) shall be in full force and effect and none of
the provisions thereof shall have been amended, waived, supplemented or
otherwise modified without the prior written consent of the Agents; and the
Borrower shall have issued the Subordinated Debt in a principal amount of
$85,000,000.
(iii) The NOL Note, in form and substance satisfactory to the
Agents, shall have been issued to the Xxxxxx Stockholders Trust.
(e) Fees. The Agents, the Arrangers and the Lenders shall have
----
received all fees, expenses and other consideration required to be paid on
or before the Closing Date.
(f) Lien Searches. The Administrative Agent shall have received the
-------------
results of a search of Uniform Commercial Code, tax and judgment filings
made with respect to each of the Borrower and its Subsidiaries (after
giving effect to the Business Combination) and, without duplication, Xxxxx
Fargo and Xxxxxx-Armored, in the jurisdictions set forth on Schedule
4.18(b) together with copies of financing statements disclosed by such
searches, and
40
such searches shall disclose no Liens on any assets encumbered by any
Security Document, except for Liens permitted hereunder or, if unpermitted
Liens are disclosed, the Administrative Agent shall have received
satisfactory evidence of the release of such Liens.
(g) Consents, Authorizations and Filings, etc. Except for the
------------------------------------------
financing statements contemplated by the Security Documents, all consents,
authorizations and filings, if any, required in connection with the
execution, delivery and performance by the Credit Parties, and the validity
and enforceability against the Credit Parties, of the Credit Documents to
which any of them is a party, shall have been obtained or made, and such
consents, authorizations and filings shall be in full force and effect,
except such consents, authorizations and filings, the failure to obtain
which would not have a Material Adverse Effect.
(h) Insurance. The Lenders shall have received (i) a satisfactory
---------
schedule describing all insurance maintained by the Borrower and its
Subsidiaries (after giving effect to the Business Combination) pursuant to
subsection 6.5, and (ii) binders (or other customary evidence as to the
obtaining and maintenance by the Borrower of such insurance) for each
policy set forth on such schedule insuring against casualty and other usual
and customary risks.
(i) Litigation. On the Closing Date, there shall be no actions,
----------
suits or proceedings pending or threatened against any Credit Party (a)
with respect to this Agreement or any other Credit Document or the
transactions contemplated hereby or thereby (including the Business
Combination) or (b) which the Agents or the Required Lenders shall
determine could reasonably be expected to have a Material Adverse Effect.
(j) Borrowing Certificate. The Administrative Agent shall have
---------------------
received, with a counterpart for each Lender, a certificate of the
Borrower, dated the Closing Date, substantially in the form of Exhibit D,
with appropriate insertions and attachments, satisfactory in form and
substance to the Administrative Agent, executed by the President or any
Vice President and the Secretary or any Assistant Secretary of the
Borrower.
(k) Corporate Proceedings of the Borrower. The Administrative Agent
-------------------------------------
shall have received, with a counterpart for each Lender, a copy of the
resolutions, in form and substance satisfactory to the Administrative
Agent, of the Board of Directors of the Borrower authorizing (i) the
execution, delivery and performance of the Credit Documents to which it is
a party, (ii) the borrowings contemplated hereunder and (iii) the granting
by it of the Liens created pursuant to the Security Documents, certified by
the Secretary or an Assistant Secretary of the Borrower as of the Closing
Date, which certificate shall be in form and substance satisfactory to the
Administrative Agent and shall state that the resolutions thereby certified
have not been amended, modified, revoked or rescinded.
(l) Borrower Incumbency Certificate. The Administrative Agent shall
-------------------------------
have received, with a counterpart for each Lender, a Certificate of the
Borrower, dated the Closing Date, as to the incumbency and signature of the
officers of the Borrower executing any Credit Document satisfactory in form
and substance to the Administrative Agent, executed by the President or any
Vice President and the Secretary or any Assistant Secretary of the
Borrower.
(m) Corporate Proceedings of Subsidiaries. The Administrative Agent
-------------------------------------
shall have received, with a counterpart for each Lender, a copy of the
resolutions, in form and substance satisfactory to the Administrative
Agent, of the Board of Directors of each Subsidiary of the
41
Borrower which is a party to a Credit Document authorizing (i) the
execution, delivery and performance of the Credit Documents to which it is
a party and (ii) the granting by it of the Liens created pursuant to the
Security Documents to which it is a party, certified by the Secretary or an
Assistant Secretary of each such Subsidiary as of the Closing Date, which
certificate shall be in form and substance satisfactory to the
Administrative Agent and shall state that the resolutions thereby certified
have not been amended, modified, revoked or rescinded.
(n) Subsidiary Incumbency Certificates. The Administrative Agent
----------------------------------
shall have received, with a counterpart for each Lender, a certificate of
each Subsidiary of the Borrower which is a Credit Party, dated the Closing
Date, as to the incumbency and signature of the officers of such
Subsidiaries executing any Credit Document, satisfactory in form and
substance to the Administrative Agent, executed by the President or any
Vice President and the Secretary or any Assistant Secretary of each such
Subsidiary.
(o) Corporate Documents. The Administrative Agent shall have
-------------------
received, with a counterpart for each Lender, true and complete copies of
the certificate of incorporation and by-laws of each Credit Party,
certified as of the Closing Date as complete and correct copies thereof by
the Secretary or an Assistant Secretary of the such Credit Party.
(p) Legal Opinions. The Administrative Agent shall have received,
--------------
with a counterpart for each Lender, the following executed legal opinions:
(i) the executed legal opinion of Weil, Gotshal & Xxxxxx
LLP, counsel to the Borrower and the other Credit Parties,
substantially in the form of Exhibit D; and
(ii) the executed legal opinions of each of Weil, Gotshal &
Xxxxxx LLP and Prickett, Jones, Xxxxxxx, Xxxxxxx & Xxxxxx, counsel to
Xxxxxx, and Xxxxx Xxxx & Xxxxxxxx, counsel to Xxxxx Fargo, delivered
pursuant to the Contribution Agreement, each accompanied by a reliance
letter in favor of the Lenders;
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Agents may reasonably
require.
(q) Pledged Stock; Stock Powers. The Administrative Agent shall have
---------------------------
received the certificates representing the shares pledged pursuant to each
of the Security Documents together with an undated stock power for each
such certificate executed in blank by a duly authorized officer of the
pledgor thereof.
(r) Actions to Perfect Liens. The Administrative Agent shall have
------------------------
received evidence in form and substance reasonably satisfactory to it that
all filings, recordings, registrations and other actions, including,
without limitation, the filing of duly executed financing statements on
form UCC-1, necessary or, in the opinion of the Administrative Agent,
desirable to perfect the Liens created by the Security Documents shall have
been completed.
(s) Solvency Opinion. The Administrative Agent shall have received,
----------------
with a counterpart for each Lender, a solvency opinion reasonably
satisfactory to the Agents from an independent valuation firm reasonably
satisfactory to the Agents which shall document the solvency of the
Borrower and its Subsidiaries after giving effect to the Business
Combination,
42
the making of the Loans, the issuance of the Subordinated Debt
and the other transactions contemplated hereby.
(t) Environmental Report. The Administrative Agent shall have
--------------------
received an environmental report prepared by Xxxxxx X. Kitchen Associates
dated December 6, 1996 regarding the Borrower and its Subsidiaries, and a
letter that entitles the Administrative Agent, the other Agents and the
Lenders to rely on such report as if prepared for and addressed to each of
them.
5.2 Conditions to Each Extension of Credit. The agreement of each
--------------------------------------
Lender to make any Loan extension of credit requested to be made by it on any
date (including, without limitation, its initial Loan) is subject to the
satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the representations and
------------------------------
warranties made by the Borrower and each Credit Party in or pursuant to the
Credit Documents shall be true and correct in all material respects on and
as of such date as if made on and as of such date, except for any
representation and warranty which is expressly made as of an earlier date,
which representation and warranty shall have been true and correct in all
material respects as of such earlier date.
(b) No Default. No Default or Event of Default shall have occurred
----------
and be continuing on such date or after giving effect to the extensions of
credit requested to be made on such date.
(c) Additional Matters. All corporate and other proceedings, and all
------------------
documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement and the other Credit Documents
shall be satisfactory in form and substance to the Agents, and the
Administrative Agent shall have received such other documents and legal
opinions in respect of any aspect or consequence of the transactions
contemplated hereby or thereby as it shall reasonably request.
Each borrowing by, and Letter of Credit issued on behalf of, the Borrower
hereunder shall constitute a representation and warranty by the Borrower as of
the date thereof that the conditions contained in this subsection have been
satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain in
effect or any amount is owing to any Lender or any Agent hereunder or under any
other Credit Document, the Borrower shall and (except in the case of delivery of
financial information, reports and notices) shall cause each of its Subsidiaries
to:
6.1 Financial Statements. Furnish to each Lender:
--------------------
(a) as soon as available, but in any event within 90 days after the
end of each fiscal year of the Borrower, a copy of the consolidated balance
sheet of the Borrower and its consolidated Subsidiaries as at the end of
such year and the related consolidated statements of income and retained
earnings and of cash flows for such year, setting forth in each case in
comparative form the figures for the previous year, reported on without a
"going concern" or
43
like qualification or exception, or qualification arising out of the scope
of the audit, by independent certified public accountants of nationally
recognized standing;
(b) as soon as available, but in any event not later than 45 days
after the end of each of the first three quarterly periods of each fiscal
year of the Borrower, the unaudited consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at the end of such quarter
and the related unaudited consolidated statements of income and retained
earnings and of cash flows of the Borrower and its consolidated
Subsidiaries for such quarter and the portion of the fiscal year through
the end of such quarter, setting forth in each case in comparative form the
figures for the previous year, certified by a Responsible Officer as being
fairly stated in all material respects (subject to normal year-end audit
adjustments); and
(c) as soon as practicable, and in any event within 30 days after the
end of each calendar month of each year (other than a month the last day of
which coincides with the last day of any fiscal quarter), commencing with
the first full month ended following the Closing Date, the unaudited
consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as at the end of such month and the related unaudited
consolidated statements of income and retained earnings and of cash flows
of the Borrower and its Consolidated Subsidiaries for such month and for
the portion of the fiscal year of the Borrower through such date setting
forth in each case in comparative form the consolidated figures for the
corresponding month of, and year to date portion of, the previous year and
the figures for such periods in the budget prepared by the Borrower and
furnished to the Administrative Agent, certified by a Responsible Officer
of the Borrower as being fairly stated in all material respects;
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
6.2 Certificates; Other Information. Furnish to each Lender:
-------------------------------
(a) concurrently with the delivery of the financial statements
referred to in subsection 6.1(a), a certificate of the independent
certified public accountants reporting on such financial statements stating
that in making the examination necessary therefor no knowledge was obtained
of any Default or Event of Default relating to the covenants contained in
subsection 7.1, except as specified in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in subsections 6.1(a) and (b), a certificate of a Responsible
Officer stating that, to the best of such Officer's knowledge, during such
period (i) no Subsidiary has been formed or acquired (or, if any such
Subsidiary has been formed or acquired, the Borrower has complied with the
requirements of subsection 6.10 with respect thereto), (ii) neither the
Borrower nor any of its Subsidiaries has changed its name, its principal
place of business, its chief executive office or the location of any
material item of tangible Collateral without complying with the
requirements of this Agreement and the Security Documents with respect
thereto and (iii) such Officer has obtained no knowledge of any Default or
Event of Default except as specified in such certificate;
44
(c) concurrently with the delivery of financial statements pursuant
to subsection 6.1(a) or (b), a certificate of the chief financial officer
of the Borrower setting forth, in reasonable detail, the computations, as
applicable, of (i) the Debt Ratio, (ii) Excess Cash Flow and (iii) the
financial covenants set forth in subsection 7.1, as of such last day or for
the fiscal period then ended, as the case may be;
(d) not later than 30 days after the end of each fiscal year of the
Borrower, a copy of the projections by the Borrower of the operating budget
and cash flow budget of the Borrower and its Subsidiaries for the
succeeding fiscal year, such projections to be accompanied by a certificate
of a Responsible Officer to the effect that such projections have been
prepared on the basis of sound financial planning practice and that such
Officer has no reason to believe they are incorrect or misleading in any
material respect;
(e) within five days after the same are sent, copies of all financial
statements and reports which the Borrower sends to its stockholders, and
within five days after the same are filed, copies of all financial
statements and reports which the Borrower may make to, or file with, the
Securities and Exchange Commission or any successor or analogous
Governmental Authority; and
(f) promptly, such additional financial and other information as any
Lender may from time to time reasonably request.
6.3 Payment of Obligations. Pay, discharge or otherwise satisfy at
----------------------
or before maturity or before they become delinquent, as the case may be, all its
obligations of whatever nature, except where the amount or validity thereof is
currently being contested in good faith by appropriate proceedings and reserves
in conformity with GAAP with respect thereto have been provided on the books of
the Borrower or its Subsidiaries, as the case may be; provided that,
--------
notwithstanding the foregoing, the Borrower and each of its Subsidiaries shall
have the right to pay any such obligation and in good faith contest, by proper
legal actions or proceedings, the invalidity or amount of such claims.
6.4 Conduct of Business and Maintenance of Existence. Except as
------------------------------------------------
provided in subsection 7.5, continue to engage in business of the same general
type as now conducted by it (after giving effect to the Business Combination)
and preserve, renew and keep in full force and effect its corporate existence
and take all reasonable action to maintain all rights, privileges and franchises
necessary or desirable in the normal conduct of its business except if (i) in
the reasonable business judgment of the Borrower or such Subsidiary, as the case
may be, it is in its best economic interest not to preserve and maintain such
rights, privileges or franchises, and (ii) such failure to preserve and maintain
such privileges, rights or franchises would not materially adversely affect the
rights of the Lenders hereunder or the value of the Collateral, and except as
otherwise permitted pursuant to subsection 7.5; comply with all Contractual
Obligations and Requirements of Law except to the extent that failure to comply
therewith could not, in the aggregate, be reasonably expected to have a Material
Adverse Effect.
6.5 Maintenance of Property; Insurance. Keep all property useful and
----------------------------------
necessary in its business in good working order and condition; maintain with
financially sound and reputable insurance companies insurance on all its
property in at least such amounts and against at least such risks (but including
in any event public liability, cargo loss and business interruption) as are
usually insured against in the same general area by companies engaged in the
same or a similar business; and furnish to each Lender, upon written request,
full information as to the insurance carried except to the
45
extent that the failure to do any of the foregoing with respect to any such
property could not reasonably be expected to materially adversely affect the
value or usefulness of such property.
6.6 Inspection of Property; Books and Records; Discussions. Keep
------------------------------------------------------
proper books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities; and permit
representatives of any Lender to visit and inspect any of its properties and
examine and make abstracts from any of its books and records at any reasonable
time on a Business Day and as often as may reasonably be desired and to discuss
the business, operations, properties and financial and other condition of the
Borrower and its Subsidiaries with officers and employees of the Borrower and
its Subsidiaries and with its independent certified public accountants, provided
--------
that the Administrative Agent or such Lender shall notify the Borrower prior to
any contact with such accountants and give the Borrower the opportunity to
participate in such discussions; provided, further, that the Borrower shall
-------- -------
notify the Administrative Agent of any such visits, inspections or discussions
prior to each occurrence thereof.
6.7 Notices. Promptly give notice to the Administrative Agent and
-------
each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries or (ii) litigation,
investigation or proceeding which may exist at any time between the
Borrower or any of its Subsidiaries and any Governmental Authority, which
in either case, if not cured or if adversely determined, as the case may
be, could reasonably be expected to have a Material Adverse Effect;
(c) any litigation or proceeding affecting the Borrower or any of its
Subsidiaries in which the amount involved is $1,500,000 or more and not
covered by insurance or in which injunctive or similar relief is sought;
(d) the following events, as soon as possible and in any event within
45 days after the Borrower knows or has reason to know thereof: (i) the
occurrence or expected occurrence of any Reportable Event with respect to
any Plan (other than a Multiple Employer Plan), a failure to make any
required contribution to a Plan, the creation of any Lien in favor of the
PBGC or a Plan or any withdrawal from, or the termination, Reorganization
or Insolvency of, any Multiemployer Plan or (ii) the institution of
proceedings or the taking of any other action by the PBGC or the Borrower
or any Commonly Controlled Entity or any Multiemployer Plan with respect to
the withdrawal from, or the terminating, Reorganization or Insolvency of,
any Single Employer Plan or Multiemployer Plan; and
(e) any development or event which has had or could reasonably be
expected to have a Material Adverse Effect.
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Borrower proposes to take with respect thereto.
6.8 Environmental Laws. (a)(i) Comply with all Environmental Laws
------------------
applicable to it, and obtain, comply with and maintain any and all Environmental
Permits necessary for its operations as conducted and as planned; and (ii) take
all reasonable efforts to ensure that all of its
46
tenants, subtenants, contractors, subcontractors, and invitees comply with all
Environmental Laws, and obtain, comply with and maintain any and all
Environmental Permits, applicable to any of them except to the extent that
failure to do so could not be reasonably expected to have a Material Adverse
Effect. Notwithstanding the foregoing, upon learning of any actual or suspected
noncompliance, the Borrower and each of its Subsidiaries shall promptly
undertake all reasonable efforts to achieve material compliance.
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all lawful
orders and directives of all Governmental Authorities regarding Environmental
Laws except to the extent that the same are being contested in good faith by
appropriate proceedings and the pendency of such proceedings could not be
reasonably expected to have a Material Adverse Effect.
6.9 Further Assurances. Upon the request of the Administrative
------------------
Agent, promptly perform or cause to be performed any and all acts and execute or
cause to be executed any and all documents (including, without limitation,
financing statements and continuation statements) for filing under the
provisions of the Uniform Commercial Code or any other Requirement of Law which
are necessary or advisable to maintain in favor of the Administrative Agent, for
the benefit of the Lenders, Liens on the Collateral that are duly perfected in
accordance with all applicable Requirements of Law.
6.10 Additional Collateral. (a) Subject to subsection 6.12 with
---------------------
respect to the mortgages, with respect to any assets acquired after the Closing
Date by the Borrower or any of its Subsidiaries that are intended to be subject
to the Lien created by any of the Security Documents but which are not so
subject (other than (x) any assets described in paragraph (b) of this subsection
and (y) immaterial assets a Lien on which cannot be perfected by filing UCC-1
financing statements), promptly (and in any event within 30 days after the
acquisition thereof): (i) execute and deliver to the Administrative Agent such
amendments to the relevant Security Documents or such other documents as the
Administrative Agent shall deem necessary or advisable to grant to the
Administrative Agent, for the benefit of the Lenders, a Lien on such assets,
(ii) take all actions necessary or advisable to cause such Lien to be duly
perfected in accordance with all applicable Requirements of Law, including,
without limitation, the filing of financing statements in such jurisdictions as
may be requested by the Administrative Agent, and (iii) if requested by the
Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described in clauses (i) and (ii) immediately preceding,
which opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the Administrative Agent.
(b) With respect to any Person that, subsequent to the Closing Date,
becomes a Subsidiary, promptly: (i) execute and deliver to the Administrative
Agent, for the benefit of the Lenders, such amendments to the Guarantee and
Collateral Agreement as the Administrative Agent shall deem necessary or
advisable to grant to the Administrative Agent, for the benefit of the Lenders,
a Lien on the Capital Stock of such Subsidiary which is owned by the Borrower or
any of its Subsidiaries, (ii) deliver to the Administrative Agent the
certificates representing such Capital Stock, together with undated stock powers
executed and delivered in blank by a duly authorized officer of the Borrower or
such Subsidiary, as the case may be, (iii) cause such new Subsidiary (A) to
become a party to the Guarantee and Collateral Agreement, in each case pursuant
to documentation which is in form and substance satisfactory to the
Administrative Agent, and (B) to take all actions necessary or advisable to
cause the Lien created by the Guarantee and Collateral Agreement to be duly
perfected in accordance with all applicable Requirements of Law, including,
without limitation, the filing of
47
financing statements in such jurisdictions as may be requested by the
Administrative Agent and (iv) if requested by the Administrative Agent, deliver
to the Administrative Agent legal opinions relating to the matters described in
clauses (i), (ii) and (iii) immediately preceding, which opinions shall be in
form and substance, and from counsel, reasonably satisfactory to the
Administrative Agent.
6.11 Interest Rate Protection. Within 180 days after the Closing
------------------------
Date, obtain interest rate protection for a period through January 31, 1999 for
a notional amount of at least $30,000,000 on terms and conditions satisfactory
to the Agents.
6.12 Mortgages; Legal Opinions; Fixture Filings. (a) As promptly as
------------------------------------------
practicable, but in any event within 120 days following the Closing Date,
deliver to the Administrative Agent (i) each Mortgage, each executed and
delivered by a duly authorized officer of the mortgagor party thereto, with a
counterpart or a conformed copy for each Lender and (ii) legal opinions from
local counsel in the jurisdictions of such Mortgage relating to such Mortgage
and the perfection of Liens created by the Security Documents on personal
property located in such jurisdiction, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the Agents.
(b) As promptly as practicable, but in any event within 120 days
following the Closing Date, deliver to the Administrative Agent and the title
insurance company issuing the policy referred to in subsection 6.12(c) (the
"Title Insurance Company") maps or plats of an as-built survey of the sites of
-----------------------
the property covered by each Mortgage certified to the Administrative Agent and
the Title Insurance Company in a manner satisfactory to them, dated a date
satisfactory to the Administrative Agent and the Title Insurance Company by an
independent professional licensed land surveyor satisfactory to the
Administrative Agent and the Title Insurance Company, which maps or plats and
the surveys on which they are based shall be made in accordance with the Minimum
Standard Detail Requirements for Land Title Surveys jointly established and
adopted by the American Land Title Association and the American Congress on
Surveying and Mapping in 1962, and, without limiting the generality of the
foregoing, there shall be surveyed and shown on such maps, plats or surveys the
following: (i) the locations on such sites of all the buildings, structures and
other improvements and the established building setback lines; (ii) the lines of
streets abutting the sites and width thereof; (iii) all access and other
easements appurtenant to the sites or necessary or desirable to use the sites;
(iv) all roadways, paths, driveways, easements, encroachments and overhanging
projections and similar encumbrances affecting the site, whether recorded,
apparent from a physical inspection of the sites or otherwise known to the
surveyor; (v) any encroachments on any adjoining property by the building
structures and improvements on the sites; and (vi) if the site is described as
being on a filed map, a legend relating the survey to said map.
(c) As promptly as practicable, but in any event within 120 days
following the Closing Date, deliver to the Administrative Agent in respect of
each parcel covered by each Mortgage a mortgagee's title policy (or policies) or
marked up unconditional binder for such insurance dated a date satisfactory to
the Administrative Agent. Each such policy shall (i) be in an amount
satisfactory to the Administrative Agent; (ii) be issued at ordinary rates;
(iii) insure that the Mortgage insured thereby creates a valid first Lien on
such parcel free and clear of all defects and encumbrances, except such as may
be approved by the Administrative Agent; (iv) name the Administrative Agent for
the benefit of the Lenders as the insured thereunder; (v) be in the form of ALTA
Loan Policy - 1970 (Amended 10/17/70); (vi) contain such endorsements and
affirmative coverage as the Administrative Agent may request and (vii) be issued
by title companies satisfactory to the Administrative Agent (including any such
title companies acting as co-insurers or reinsurers, at the option of the
Administrative Agent). The Administrative Agent shall have received evidence
satisfactory to it that
48
all premiums in respect of each such policy, and all charges for mortgage
recording tax, if any, have been paid.
(d) As promptly as practicable, but in any event within 120 days
following the Closing Date, if required pursuant to Regulation H of the Board of
Governors of the Federal Reserve System ("Regulation H"), deliver to the
------------
Administrative Agent (i) a policy of flood insurance which (A) covers any parcel
of improved real property which is encumbered by any Mortgage, (B) is written in
an amount not less than the outstanding principal amount of the indebtedness
secured by such Mortgage which is reasonably allocable to such real property or
the maximum limit of coverage made available with respect to the particular type
of property under the National Flood Insurance Act of 1968, whichever is less,
and (C) has a term ending not earlier than the maturity of the indebtedness
secured by such Mortgage and (ii) confirmation that the Borrower has received
the notice required pursuant to Section 208(e)(3) of Regulation H.
(e) As promptly as practicable, but in any event within 120 days
following the Closing Date, deliver to the Administrative Agent a copy of all
recorded documents referred to, or listed as exceptions to title in, the title
policy or policies referred to in subsection 6.12(c) and a copy, certified by
such parties as the Administrative Agent may deem appropriate, of all other
documents affecting the property covered by each Mortgage.
(f)(i) With respect to any parcel of real property owned in fee by the
Borrower or any Subsidiary on which fixtures having an aggregate book value
exceeding $100,000 are located, take all actions that the Administrative Agent
may reasonably require, including (if such property is not covered by a recorded
Mortgage) the filing of UCC fixture filing financing statements, to cause the
security interest created by the Guarantee and Collateral Agreement in such
fixtures to be perfected within 120 days after the Closing Date and (ii) with
respect to any parcel of real property leased by the Borrower or any Subsidiary
on which fixtures having an aggregate book value exceeding $100,000 are located,
use commercially reasonable efforts to obtain the consent of the landlord of
such property to the filing of UCC fixture filing financing statements within
120 days after the Closing Date, and make such filings if such consent is
obtained.
6.13 Foreign Jurisdictions. Within 60 days following the Closing
---------------------
Date, (i) be duly qualified as a foreign corporation and in good standing under
the laws of each jurisdiction where its ownership, lease or operation of
property or the conduct of its business requires such qualification, except to
the extent that the failure to so qualify could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect, and (ii) deliver to
the Administrative Agent certificates of good standing issued by the secretary
of state of each jurisdiction referred to in clause (i) of this subsection 6.13.
SECTION 7. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain in
effect or any amount is owing to any Lender or the Agents hereunder or under any
other Credit Document, the Borrower shall not, and (except with respect to
subsection 7.1, shall not permit any of its Subsidiaries to, directly or
indirectly:
49
7.1 Financial Condition Covenants.
-----------------------------
(a) Maintenance of Net Worth. Permit Consolidated Net Worth at the
------------------------
last day of any fiscal quarter set forth below to be less than the amount
set forth opposite such fiscal quarter below:
Fiscal Quarter Ending Amount
--------------------- ------
June 30, 1997 $ 0
September 30, 1997 0
December 31, 1997 0
March 31, 1998 1,000,000
June 30, 1998 2,500,000
September 30, 1998 3,500,000
December 31, 1998 6,000,000
March 31, 1999 7,000,000
June 30, 1999 9,000,000
September 30, 1999 11,000,000
December 31, 1999 13,000,000
March 31, 2000 15,000,000
June 30, 2000 17,500,000
September 30, 2000 20,000,000
December 31, 2000 23,000,000
March 31, 2001 25,000,000
June 30, 2001 27,000,000
September 30, 2001 30,000,000
December 31, 2001 36,000,000
Termination Date 36,000,000
(b) Consolidated EBITDA. Permit Consolidated EBITDA for the period of
-------------------
four consecutive fiscal quarters ending on the last day of any fiscal
quarter set forth below to be less than the amount set forth opposite such
fiscal quarter below:
Fiscal Quarter Ending Amount
--------------------- ------
June 30, 1997 $23,000,000
September 30, 1997 27,500,000
December 31, 1997 30,000,000
March 31, 1998 30,000,000
June 30, 1998 30,000,000
September 30, 1998 30,000,000
December 31, 1998 32,500,000
50
March 31, 1999 32,500,000
June 30, 1999 32,500,000
September 30, 1999 35,000,000
December 31, 1999 37,500,000
March 31, 2000 37,500,000
June 30, 2000 37,500,000
September 30, 2000 40,000,000
December 31, 2000 42,500,000
March 31, 2001 42,500,000
June 30, 2001 42,500,000
September 30, 2001 45,000,000
December 31, 2001 50,000,000
Termination Date 50,000,000
(c) Debt Ratio. Permit the Debt Ratio at the last day of any fiscal
----------
quarter set forth below to be greater than the ratio set forth below for
such fiscal quarter:
Fiscal Quarter Ending Ratio
--------------------- -----
June 30, 1997 6.00
September 30, 1997 5.50
December 31, 1997 5.25
March 31, 1998 5.25
June 30, 1998 5.25
September 30, 1998 4.75
December 31, 1998 4.00
March 31, 1999 4.00
June 30, 1999 4.00
September 30, 1999 3.75
December 31, 1999 3.25
March 31, 2000 3.25
June 30, 2000 3.25
September 30, 2000 2.75
December 31, 2000 2.50
March 31, 2001 2.50
June 30, 2001 2.50
September 30, 2001 2.25
December 31, 2001 2.00
Termination Date 2.00
(d) Fixed Charge Coverage. Permit for any period of four consecutive
---------------------
fiscal quarters ending during any "Test Period" set forth below the ratio
of (i) Consolidated EBITDA for
51
such period minus Capital Expenditures for such period to (ii) Consolidated
-----
Debt Service for such period to be less than the ratio set forth opposite
such period below (such ratio, the "Fixed Charge Coverage Ratio"):
---------------------------
Test Period Fixed Charge Coverage Ratio
----------- ---------------------------
4/1/97 - 6/30/97 1.00
7/1/97 - 9/30/97 1.00
10/1/97 - 12/31/97 1.00
1/1/98 - 3/31/98 1.00
4/1/98 - 6/30/98 1.00
7/1/98 - 9/30/98 1.00
10/1/98 - 12/31/98 1.00
1/1/99 - 3/31/99 1.00
4/1/99 - 6/30/99 1.00
7/1/99 - 9/30/99 1.10
10/1/99 - 12/31/99 1.25
1/1/00 - 3/31/00 1.25
4/1/00 - 6/30/00 1.25
7/1/00 - 9/30/00 1.35
10/1/00 - 12/31/00 1.50
1/1/01 - 3/31/01 1.50
4/1/01 - 6/30/01 1.50
7/1/01 - 9/30/01 1.75
10/1/01 and thereafter 2.00
;provided that for purposes of calculating the Fixed Charge Coverage Ratio for
--------
any Test Period ending during 1997, annualized Capital Expenditures shall be
deemed to be reduced by $5,000,000 (not to be reduced below $0).
7.2 Limitation on Indebtedness. Create, incur, assume or suffer to
--------------------------
exist any Indebtedness, except:
(a) Indebtedness of the Borrower under this Agreement;
(b) Indebtedness of the Borrower to the Operating Subsidiary and of
the Operating Subsidiary to the Borrower;
(c) Indebtedness of the Borrower and the Operating Subsidiary
incurred to finance the acquisition of fixed or capital assets (whether
pursuant to a loan, a Financing Lease or otherwise) in an aggregate
principal amount not exceeding as to the Borrower and the Operating
Subsidiary $5,000,000 at any time outstanding;
(d) Indebtedness of a corporation which becomes a Subsidiary after
the date hereof, provided that (i) such indebtedness existed at the time
--------
such corporation became a Subsidiary
52
and was not created in anticipation thereof and (ii) immediately after
giving effect to the acquisition of such corporation by the Borrower no
Default or Event of Default shall have occurred and be continuing;
(e) additional Indebtedness of the Borrower not exceeding $5,000,000
in aggregate principal amount at any one time outstanding;
(f) Indebtedness of the Borrower in respect of (x) not more than
$85,000,000 principal amount of Subordinated Debt issued on the Closing
Date and (y) the NOL Note;
(g) the Indebtedness of the Borrower and its Subsidiaries outstanding
on the Closing Date and reflected on Schedule 7.2(g), and refundings or
refinancings thereof, provided that no such refunding or refinancing shall
--------
shorten the maturity or increase the principal amount of the original
Indebtedness;
(h) Indebtedness in respect of the Interest Rate Agreements required
by subsection 6.11;
(i) Guarantee Obligations permitted by subsection 7.4;
(j) Indebtedness to any insurance company of the Borrower or any
Subsidiary in connection with insurance premiums payable in the following
twelve (12) months;
(k) Indebtedness secured by Permitted Liens; and
(l) Indebtedness incurred or assumed pursuant to the IRB Related
Transactions.
7.3 Limitation on Liens. Create, incur, assume or suffer to exist
-------------------
any Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being contested in good
faith by appropriate proceedings, provided that adequate reserves with
--------
respect thereto are maintained on the books of the Borrower or its
Subsidiaries, as the case may be, in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
or other like Liens arising in the ordinary course of business which are
not overdue for a period of more than 60 days or which are being contested
in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation and deposits
securing liability to insurance carriers under insurance or self-insurance
arrangements;
(d) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business;
(e) easements, rights-of-way, zoning restrictions, other restrictions
and other similar encumbrances previously or hereafter incurred in the
ordinary course of business which, in the aggregate, are not substantial in
amount and which do not in any case materially detract
53
from the value of the property subject thereto or materially interfere with
the ordinary conduct of the business of the Borrower or such Subsidiary, or
which are set forth in title insurance policies or commitments delivered to
Administrative Agent pursuant to the terms of this Agreement;
(f) Liens in existence on the date hereof listed on Schedule 7.3(f),
securing Indebtedness permitted by subsection 7.2(g), provided that no such
--------
Lien is spread to cover any additional property (other than after acquired
title in or on such property and proceeds of the existing collateral in
accordance with the instrument creating such Lien) after the Closing Date
and that the amount of Indebtedness secured thereby is not increased and
extensions, renewals or replacements thereof provided that no such
extension, renewal or replacement shall shorten the fixed maturity or
increase the principal amount of the original Indebtedness; and provided,
--------
further, that the assets of the Borrower and its Subsidiaries encumbered by
-------
such Liens are existing equipment and other existing tangible assets;
(g) Liens securing Indebtedness of the Borrower and its Subsidiaries
permitted by subsection 7.2(c) incurred to finance the acquisition of
fixed or capital assets, provided that (i) such Liens shall be created
--------
substantially simultaneously with the acquisition of such fixed or capital
assets, (ii) such Liens do not at any time encumber any property other than
the property financed by such Indebtedness (other than after acquired title
in or on such property and proceeds of the existing collateral in
accordance with the instrument creating such Lien) and (ii) the principal
amount of Indebtedness secured by any such Lien shall at no time exceed
100% of the original purchase price of such property of such property at
the time it was acquired;
(h) Liens on the property or assets of a corporation which becomes a
Subsidiary after the date hereof securing Indebtedness permitted by
subsection 7.2(d), provided that (i) such Liens existed at the time such
--------
corporation became a Subsidiary and were not created in anticipation
thereof, (ii) any such Lien is not spread to cover any property or assets
of such corporation after the time such corporation becomes a Subsidiary
(other than after acquired title in or on such property and proceeds of the
existing collateral in accordance with the instrument creating such Lien),
and (iii) the amount of Indebtedness secured thereby is not increased;
(i) Liens (not otherwise permitted hereunder) which secure
obligations not exceeding (as to the Borrower and all Subsidiaries)
$2,500,000 in aggregate amount at any time outstanding;
(j) Liens created pursuant to the Security Documents;
(k) Liens on the property of the Borrower or any of its Subsidiaries
in favor of landlords securing licenses, subleases or leases entered into
in the ordinary course of business;
(l) licenses, leases or subleases permitted hereunder granted to
other Persons not interfering in any material respect in the business of
the Borrower or any of its Subsidiaries;
(m) so long as no Default or Event of Default shall have occurred and
be continuing under Section 8(h), attachment or judgment Liens (other than
judgment Liens paid or fully covered by insurance which are not outstanding
for more than sixty days) in an aggregate amount outstanding at any one
time not in excess of $1,000,000;
54
(n) Liens arising from precautionary Uniform Commercial Code
financing statement filings with respect to operating leases or consignment
arrangements entered into by the Borrower, or any of its subsidiaries in
the ordinary course of business;
(o) Liens in favor of a banking institution arising by operation of
law encumbering deposits (including the right of set-off) held by such
banking institutions incurred in the ordinary course of business and which
are within the general parameters customary in the banking industry; and
(p) Liens incurred or assumed pursuant to the IRB Related
Transactions.
7.4 Limitation on Guarantee Obligations. Create, incur, assume or
-----------------------------------
suffer to exist any Guarantee Obligation except:
(a) Guarantee Obligations in existence on the date hereof and listed
on Schedule 7.4 and extensions, renewals and replacements thereof,
provided, however, that no such extension, renewal or replacement shall
-------- -------
shorten the fixed maturity or increase the principal amount of the
Indebtedness guaranteed by the original guarantee;
(b) Guarantee Obligations incurred after the date hereof in an
aggregate amount not to exceed $4,000,000 at any one time outstanding for
the Borrower and its Subsidiaries;
(c) guarantees made by the Subsidiaries of the Borrower pursuant to
the Subordinated Debt Documents;
(d) Guarantee Obligations under this Agreement and the Security
Documents;
(e) the L/C Obligations;
(f) Guarantee Obligations of the Borrower or any Subsidiary in
respect of obligations of a Subsidiary permitted to be incurred by such
Subsidiary by this Agreement;
(g) Guarantee Obligations in respect of surety bonds issued in
respect of obligations of the type described in subsection 7.3(d),
provided, that surety bonds not backed by Letters of Credit or collateral
--------
shall not exceed $5,000,000 at any time;
(h) indemnities in favor of the companies issuing title insurance
policies insuring the Mortgages to induce such issuance; and
(i) indemnities made in the Commitment Letter, the Credit Documents,
and the Contribution Documents and in the corporate charter and/or bylaws
of the Borrower and its Subsidiaries.
7.5 Limitation on Fundamental Changes. Enter into any merger,
---------------------------------
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all of its property, business or
assets, or make any material change in its present method of conducting
business, except:
(a) any Subsidiary of the Borrower other than the Operating
Subsidiary may be merged or consolidated with or into the Borrower
(provided that the Borrower shall be the
--------
55
continuing or surviving corporation) or with or into any one or more wholly
owned Subsidiaries of the Borrower (provided that the wholly owned
--------
Subsidiary or Subsidiaries shall be the continuing or surviving
corporation);
(b) any wholly owned Subsidiary other than the Operating Subsidiary
may sell, lease, transfer or otherwise dispose of any or all of its assets
(upon voluntary liquidation or otherwise) to the Borrower or any other
wholly owned Subsidiary of the Borrower; and
(c) the Business Combination.
7.6 Limitation on Sale of Assets. Convey, sell, lease, assign,
----------------------------
transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, receivables and leasehold interests), whether
now owned or hereafter acquired, or, in the case of any Subsidiary, issue
or sell any shares of such Subsidiary's Capital Stock to any Person other than
the Borrower or any wholly owned Subsidiary, except:
(a) the sale or other disposition of obsolete or worn out property in
the ordinary course of business;
(b) any Asset Sale; provided that the Net Proceeds thereof shall be
--------
applied to the prepayment of the Loans and the reduction of the Commitments
pursuant to subsection 2.6(b)(ii), provided, further, that non-cash
-------- -------
consideration received from Asset Sales under this paragraph (b) shall not
exceed $3,000,000 at any time outstanding;
(c) as permitted by subsection 7.5(b);
(d) the sale, transfer or exchange of inventory in the ordinary
course of business;
(e) transfers resulting from any casualty or condemnation of property
or assets;
(f) any sale or other transfer of any property or assets constituting
fixed assets for cash, provided that the aggregate net cash proceeds of the
--------
sales and transfers made pursuant to this paragraph (f) in the aggregate do
not exceed (i) $2,000,000 in fiscal year 1997 or (ii) $6,000,000 over the
entire Commitment Period;
(g) intercompany sales or transfers of assets made in the ordinary
course of business;
(h) licenses, leases or subleases of tangible property in the
ordinary course of business;
(i) any consignment arrangements or similar arrangements for the sale
of assets in the ordinary course of business; and
(j) the sale or discount of overdue accounts receivable arising in
the ordinary course of business, but only in connection with the compromise
or collection thereof.
7.7 Limitation on Leases. Permit Consolidated Lease Expense during
--------------------
any of the fiscal years of the Borrower set forth below to exceed the amount set
forth opposite such fiscal year below:
56
Fiscal Year Amount
----------- ------
1997 $15,000,000
1998 16,500,000
1999 18,000,000
2000 20,000,000
2001 and thereafter 22,000,000
7.8 Limitation on Dividends. Declare or pay any dividend (other than
-----------------------
dividends payable solely in common stock of the Borrower) on, or make any
payment on account of, or set apart assets for a sinking or other analogous fund
for, the purchase, redemption, defeasance, retirement or other acquisition of,
any shares of any class of Capital Stock of the Borrower or any warrants or
options to purchase any such Capital Stock, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either directly
or indirectly, whether in cash or property or in obligations of the Borrower or
any Subsidiary, except that Permitted Restricted Payments may be made.
7.9 Limitation on Capital Expenditures. Make or commit to make (by
----------------------------------
way of the acquisition of securities of a Person or otherwise) any expenditure
in respect of the purchase or other acquisition of fixed or capital assets
(excluding any such asset acquired in connection with normal replacement and
maintenance programs properly charged to current operations) except for
expenditures in the ordinary course of business not exceeding, in the aggregate
for the Borrower and its Subsidiaries during any of the fiscal years of the
Borrower set forth below, the amount set forth opposite such fiscal year below:
Fiscal Year Amount
----------- ------
1997 $22,000,000
1998 23,000,000
1999 25,000,000
2000 27,000,000
2001 and thereafter 29,000,000
; provided, that up to (x) $5,000,000 for the 1997 Fiscal Year, and (y)
--------
$2,500,000 for each fiscal year from and including 1998 and thereafter, of any
such amount if not so expended in the fiscal year for which it is permitted
above may be carried over for expenditure in the next following fiscal year.
7.10 Limitation on Investments, Loans and Advances. Make any
---------------------------------------------
advance, loan, extension of credit or capital contribution to, or purchase any
stock, bonds, notes, debentures or other securities of or any assets
constituting a business unit of, or make any other investment in, any Person
("Investments"), except :
-----------
(a) extensions of trade credit in the ordinary course of business;
(b) investments in Cash Equivalents;
(c) loans to officers of the Borrower listed on Schedule 7.10(d) in
aggregate principal amounts outstanding not to exceed the respective
amounts set forth for such officers on said Schedule;
57
(d) loans and advances to employees of the Borrower or its
Subsidiaries for travel, entertainment and relocation expenses in the
ordinary course of business in an aggregate amount for the Borrower and its
Subsidiaries not to exceed $500,000 at any one time outstanding;
(e) investments by the Borrower in its Subsidiaries and investments
by such Subsidiaries in the Borrower and in other Subsidiaries;
(f) loans by the Borrower to its employees in connection with
management incentive plans in an aggregate amount not to exceed $500,000;
(g) loans, advances or Investments in existence on the Closing Date
set forth on Schedule 7.10(g) and extensions, renewals, modifications or
restatements or replacements thereof, provided that no such extension,
--------
renewal, modification or restatement shall increase the amount of the
original loan, advance or investment;
(h) promissory notes and other similar non-cash consideration
received by the Borrower and its Subsidiaries in connection with the
dispositions permitted by subsection 7.6(b);
(i) Investments required by subsection 6.11;
(j) Investments (including debt obligations and Capital Stock)
received in connection with the bankruptcy or reorganization of suppliers
and customers and in settlement of delinquent obligations of, and other
disputes with, customers and suppliers arising in the ordinary course of
business;
(k) loans and advances in the ordinary course of business to
employees of the Borrower or its Subsidiaries for equipment used by such
employees for business not to exceed $2,000,000;
(l) the IRB Related Transactions; and
(m) in addition to the foregoing, investments in an aggregate amount
not exceeding $2,000,000 (at cost, without regard to any write down or
write up thereof) at any one time outstanding.
7.11 Limitation on Optional Payments and Modifications of Debt
---------------------------------------------------------
Instruments. (a) Make any optional payment or prepayment on or redemption or
-----------
purchase of, or deliver any funds to any trustee for the prepayment, redemption
or defeasance of, any Subordinated Debt or the NOL Note or, (b) amend, modify or
change, or consent or agree to any amendment, modification or change to any of
the material terms of any such Subordinated Debt or NOL Note (other than any
such amendment, modification or change which would extend the maturity or reduce
the amount of any payment of principal thereof or which would reduce the rate or
extend the date for payment of interest thereon).
7.12 Limitation on Transactions with Affiliates. (a) Enter into any
------------------------------------------
transaction, including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service, with any Affiliate unless
such transaction is (a) otherwise permitted under this Agreement, (b) in the
ordinary course of the Borrower's or such Subsidiary's business and (c) upon
58
fair and reasonable terms no less favorable to the Borrower or such Subsidiary,
as the case may be, than it would obtain in a comparable arm's length
transaction with a Person which is not an Affiliate.
(b) In addition, notwithstanding the foregoing, the Borrower and its
Subsidiaries shall be entitled to make the following payments and/or to enter
into the following transactions:
(i) the payment of reasonable and customary fees and
reimbursement of expenses payable to directors of the Borrower;
(ii) the employment arrangements with respect to the procurement
of services of directors, officers and employees in the ordinary course of
business and the payment of reasonable fees in connection therewith;
(iii) payments to directors and officers of the Borrower and
its Subsidiaries in respect of the indemnification of such Persons in such
respective capacities from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements, as the case may be, pursuant to the Charter, By-
laws or other corporate action of the Borrower or its Subsidiaries,
respectively, or pursuant to applicable law;
(iv) transactions described in the Contribution Documents; and
(iv) the IRB Related Transactions.
7.13 Limitation on Sales and Leasebacks. Enter into any arrangement
----------------------------------
with any Person providing for the leasing by the Borrower or any Subsidiary of
real or personal property which has been or is to be sold or transferred by the
Borrower or such Subsidiary to such Person or to any other Person to whom funds
have been or are to be advanced by such Person on the security of such property
or rental obligations of the Borrower or such Subsidiary.
7.14 Limitation on Changes in Fiscal Year. Permit the fiscal year of
------------------------------------
the Borrower to end on a day other than December 31.
7.15 Limitation on Negative Pledge Clauses. Enter into with any
-------------------------------------
Person any agreement, other than (a) this Agreement, (b) the Subordinated Debt
Documents and (c) any industrial revenue bonds, purchase money mortgages or
Financing Leases permitted by this Agreement (in which cases, any prohibition or
limitation shall only be effective against the assets financed thereby other
than after acquired title in or on such property and proceeds of the existing
collateral in accordance with the instrument creating such Lien), which
prohibits or limits the ability of the Borrower or any of its Subsidiaries to
create, incur, assume or suffer to exist any Lien upon any of its property,
assets or revenues, whether now owned or hereafter acquired.
7.16 Limitation on Lines of Business. Enter into any business,
-------------------------------
either directly or through any Subsidiary, except for those businesses in which
the Borrower and its Subsidiaries are engaged on the date of this Agreement
(after giving effect to the Business Combination) or which are directly related
thereto.
59
SECTION 8. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan or any
Reimbursement Obligation when due in accordance with the terms thereof or
hereof; or the Borrower shall fail to pay any interest on any Loan, or any
other amount payable hereunder, within five days after any such interest or
other amount becomes due in accordance with the terms thereof or hereof; or
(b) Any representation or warranty made or deemed made by the
Borrower or any other Credit Party herein or in any other Credit Document
or which is contained in any certificate, document or financial or other
statement furnished by it at any time under or in connection with this
Agreement or any such other Credit Document shall prove to have been
incorrect in any material respect on or as of the date made or deemed made;
or
(c) The Borrower or any other Credit Party shall default in the
observance or performance of any agreement contained in Section 7 or
Sections 5.6, 5.9(a), 5.10(b) and 5.10(d) of the Guarantee and Collateral
Agreement; or
(d) The Borrower or any other Credit Party shall default in the
observance or performance of any other agreement contained in this
Agreement or any other Credit Document (other than as provided in
paragraphs (a) through (c) of this Section), and such default shall
continue unremedied for a period of 30 days; or
(e) The Borrower or any of its Subsidiaries shall (i) default (x) in
any payment of principal of or interest of any Indebtedness (other than the
Loans, the L/C Obligations and any intercompany debt) or Interest Rate
Agreement Obligation or (y) in the payment of any Guarantee Obligation
(excluding any guaranties of the Obligations), beyond the period of grace,
if any, provided in the instrument or agreement under which such
Indebtedness, Interest Rate Agreement Obligation or Guarantee Obligation
was created; or (ii) default in the observance or performance of any other
agreement or condition relating to any such Indebtedness, Interest Rate
Agreement Obligation or Guarantee Obligation or contained in any instrument
or agreement evidencing, securing or relating thereto, or any other event
shall occur or condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such Guarantee Obligation
(or a trustee or agent on behalf of such holder or holders or beneficiary
or beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity or such Guarantee
Obligation to become payable; provided, however, that no Default or Event
-------- -------
of Default shall exist under this paragraph unless the aggregate amount of
Indebtedness, Interest Rate Agreement Obligations and/or Guarantee
Obligations in respect of which any default or other event or condition
referred to in this paragraph shall have occurred shall be equal to at
least $2,000,000; or
(f) (i) The Borrower or any of its Subsidiaries or the Xxxxxx
Stockholders Trust or Xxxxx Fargo shall commence any case, proceeding or
other action (A) under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency, reorganization or
relief of debtors, seeking to have an order for relief entered with respect
to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it
60
or its debts, or (B) seeking appointment of a receiver, trustee, custodian,
conservator or other similar official for it or for all or any substantial
part of its assets, or the Borrower or any of its Subsidiaries or the
Xxxxxx Stockholders Trust or Xxxxx Fargo shall make a general assignment
for the benefit of its creditors; or (ii) there shall be commenced against
the Borrower or any of its Subsidiaries or the Xxxxxx Stockholders Trust or
Xxxxx Fargo any case, proceeding or other action of a nature referred to in
clause (i) above which (A) results in the entry of an order for relief or
any such adjudication or appointment or (B) remains undismissed,
undischarged or unbonded for a period of 60 days; or (iii) there shall be
commenced against the Borrower or any of its Subsidiaries or the Xxxxxx
Stockholders Trust or Xxxxx Fargo any case, proceeding or other action
seeking issuance of a warrant of attachment, execution, distraint or
similar process against all or any substantial part of its assets which
results in the entry of an order for any such relief which shall not have
been vacated, discharged, or stayed or bonded pending appeal within 60 days
from the entry thereof; or (iv) the Borrower or any of its Subsidiaries or
the Xxxxxx Stockholders Trust or Xxxxx Fargo shall take any action in
furtherance of, or indicating its consent to, approval of, or acquiescence
in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v)
the Borrower or any of its Subsidiaries or the Xxxxxx Stockholders Trust or
Xxxxx Fargo shall generally not, or shall be unable to, or shall admit in
writing its inability to, pay its debts as they become due; or
(g) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302
of ERISA), whether or not waived, shall exist with respect to any Plan or
any Lien in favor of the PBGC or a Plan shall arise on the assets of the
Borrower or any Commonly Controlled Entity, (iii) a Reportable Event shall
occur with respect to, or proceedings shall commence to have a trustee
appointed, or a trustee shall be appointed, to administer or to terminate,
any Single Employer Plan, which Reportable Event or commencement of
proceedings or appointment of a trustee is, in the reasonable opinion of
the Required Lenders, likely to result in the termination of such Plan for
purposes of Title IV of ERISA, (iv) any Single Employer Plan shall
terminate for purposes of Title IV of ERISA, (v) the Borrower or any
Commonly Controlled Entity shall, or in the reasonable opinion of the
Required Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer
Plan or (vi) any other event or condition shall occur or exist with respect
to a Plan; and in each case in clauses (i) through (vi) above, such event
or condition, together with all other such events or conditions, if any,
could reasonably be expected to have a Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered against the
Borrower or any of its Subsidiaries involving in the aggregate a liability
(not paid or fully covered by insurance) of $1,500,000 or more, and all
such judgments or decrees shall not have been vacated, discharged, stayed
or bonded pending appeal within 60 days from the entry thereof; or
(i) (i) Any of the Security Documents shall cease, for any reason, to
be in full force and effect (unless released by the Administrative Agent at
the direction of Lenders or as otherwise permitted under this Agreement or
the other Loan Documents), or the Borrower or any other Credit Party which
is a party to any of the Security Documents shall so assert or (ii) the
Lien created by any of the Security Documents shall cease to be enforceable
and of the same effect and priority purported to be created thereby (and,
if such invalidity is such so as to be amenable to cure without materially
disadvantaging the position of the Administrative
61
Agent and the Lenders, or the Borrower, as the case may be, as secured
parties thereunder, the Credit Party shall have failed to cure such
invalidity within 30 days after notice from the Administrative Agent or
such shorter time period as specified by the Administrative Agent in such
notice and is reasonable in the circumstances); or
(j) There shall have occurred a Change in Control;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (a) or (b) of paragraph (f) of this Section above with respect to the
Borrower, automatically the Commitments shall immediately terminate and the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement (including, without limitation, all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters of
Credit shall have presented the documents required thereunder) and the Notes
shall immediately become due and payable, and (B) if such event is any other
Event of Default, either or both of the following actions may be taken: (i) with
the consent of the Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders, the Administrative Agent shall, by notice to
the Borrower declare the Commitments to be terminated forthwith, whereupon the
Commitments shall immediately terminate; and (ii) with the consent of the
Required Lenders, the Administrative Agent may, or upon the request of the
Required Lenders, the Administrative Agent shall, by notice of default to the
Borrower, declare the Loans hereunder (with accrued interest thereon) and all
other amounts owing under this Agreement (including, without limitation, all
amounts of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required
thereunder) and the Notes to be due and payable forthwith, whereupon the same
shall immediately become due and payable.
With respect to all Letters of Credit with respect to which
presentment for honor shall not have occurred at the time of an acceleration
pursuant to the preceding paragraph, the Borrower shall at such time deposit in
a cash collateral account opened by the Administrative Agent an amount equal to
the aggregate then undrawn and unexpired amount of such Letters of Credit. The
Borrower hereby grants to the Administrative Agent, for the benefit of the
Issuing Lender and the L/C Participants, a security interest in such cash
collateral to secure all obligations of the Borrower under this Agreement and
the other Credit Documents. Amounts held in such cash collateral account shall
be applied by the Administrative Agent to the payment of drafts drawn under such
Letters of Credit, and the unused portion thereof after all such Letters of
Credit shall have expired or been fully drawn upon, if any, shall be applied to
repay other obligations of the Borrower hereunder and under the Notes. After all
such Letters of Credit shall have expired or been fully drawn upon, all
Reimbursement Obligations shall have been satisfied and all other obligations of
the Borrower hereunder and under the Notes shall have been paid in full, the
balance, if any, in such cash collateral account shall be returned to the
Borrower. The Borrower shall execute and deliver to the Administrative Agent,
for the account of the Issuing Lender and the L/C Participants, such further
documents and instruments as the Administrative Agent may request to evidence
the creation and perfection of the within security interest in such cash
collateral account.
Except as expressly provided above in this Section, presentment,
demand, protest and all other notices of any kind are hereby expressly waived.
62
SECTION 9. THE AGENTS; THE ARRANGERS
9.1 Appointment. Each Lender hereby irrevocably designates and
-----------
appoints each of the Agents as the agent of such Lender under this Agreement and
the other Credit Documents, and each such Lender irrevocably authorizes each of
the Agents, in such capacity, to take such action on its behalf under the
provisions of this Agreement and the other Credit Documents and to exercise such
powers and perform such duties as are expressly delegated to such Agents by the
terms of this Agreement and the other Credit Documents, together with such other
powers as are reasonably incidental thereto. Notwithstanding any provision to
the contrary elsewhere in this Agreement, none of the Agents shall have any
duties or responsibilities, except those expressly set forth herein, or any
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Credit Document or otherwise exist against any of the
Agents.
9.2 Delegation of Duties. The Agents may execute any of their duties
--------------------
under this Agreement and the other Credit Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. None of the Agents shall be responsible for
the negligence or misconduct of any agents or attorneys in-fact selected by it
with reasonable care.
9.3 Exculpatory Provisions. Neither any of the Agents nor any of
----------------------
their officers, directors, employees, agents, attorneys-in-fact or Affiliates
shall be (i) liable for any action lawfully taken or omitted to be taken by it
or such Person under or in connection with this Agreement or any other Credit
Document (except for its or such Person's own gross negligence or willful
misconduct) or (ii) responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by the Borrower or any
officer thereof contained in this Agreement or any other Credit Document or in
any certificate, report, statement or other document referred to or provided for
in, or received by such Agent under or in connection with, this Agreement or any
other Credit Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Credit Document or
for any failure of the Borrower to perform its obligations hereunder or
thereunder. None of the Agents shall be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Credit
Document, or to inspect the properties, books or records of the Borrower.
9.4 Reliance by Agents. The Agents shall be entitled to rely, and
------------------
shall be fully protected in relying, upon any Note, writing, resolution, notice,
consent, certificate, affidavit, letter, telecopy, telex or teletype message,
statement, order or other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person or
Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to the Borrower), independent accountants and other experts
selected by such Agent. The Agents may deem and treat the payee of any Note as
the owner thereof for all purposes unless a written notice of assignment,
negotiation or transfer thereof shall have been filed with such Agent. The
Agents shall be fully justified in failing or refusing to take any action under
this Agreement or any other Credit Document unless it shall first receive such
advice or concurrence of the Required Lenders as it deems appropriate or it
shall first be indemnified to its satisfaction by the Lenders against any and
all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Agents shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement and the
other Credit Documents in accordance with a request of the Required
63
Lenders, and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders and all future holders of the
Loans.
9.5 Notice of Default. No Agent shall be deemed to have knowledge or
-----------------
notice of the occurrence of any Default or Event of Default hereunder unless
such Agent has received notice from a Lender or the Borrower referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a "notice of default". In the event that any Agent receives such a
notice, such Agent shall give notice thereof to the Lenders. Each Agent shall
take such action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Lenders; provided that unless and until such
--------
Agent shall have received such directions, such Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best
interests of the Lenders.
9.6 Non-Reliance on Agents and Other Lenders. Each Lender expressly
----------------------------------------
acknowledges that neither any of the Agents nor any of their officers,
directors, employees, agents, attorneys-in-fact or Affiliates has made any
representations or warranties to it and that no act by any of the Agents
hereafter taken, including any review of the affairs of the Borrower, shall be
deemed to constitute any representation or warranty by any of the Agents to any
Lender. Each Lender represents to each of the Agents that it has, independently
and without reliance upon any of the Agents or any other Lender, and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Borrower and made its
own decision to make its Loans hereunder and enter into this Agreement. Each
Lender also represents that it will, independently and without reliance upon any
of the Agents 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
analysis, appraisals and decisions in taking or not taking action under this
Agreement and the other Credit Documents, and to make such investigation as it
deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Borrower. Except for
notices, reports and other documents expressly required to be furnished to the
Lenders by any of the Agents hereunder, none of the Agents shall have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of the Borrower which may come into
the possession of such Agent or any of its officers, directors, employees,
agents, attorneys-in-fact or Affiliates.
9.7 Indemnification. The Lenders agree to indemnify each of the
---------------
Agents in their respective capacities as such (to the extent not reimbursed by
the Borrower and without limiting the obligation of the Borrower to do so),
ratably according to their respective Commitment Percentages in effect on the
date on which indemnification is sought, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the Loans)
be imposed on, incurred by or asserted against any of the Agents in any way
relating to or arising out of, the Commitments, this Agreement, any of the other
Credit Documents or any documents contemplated by or referred to herein or
therein or the transactions contemplated hereby or thereby or any action taken
or omitted by any of the Agents under or in connection with any of the foregoing
(including, without limitation, any liabilities of the Administrative Agent
pursuant to the CIT Indemnity) provided that no Lender shall be liable for the
--------
payment of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
solely from such Agent's gross negligence or willful misconduct. The
64
agreements in this subsection shall survive the payment of the Loans and all
other amounts payable hereunder.
9.8 Agents, in Their Individual Capacities. The Agents and their
--------------------------------------
respective Affiliates may make loans to, accept deposits from and generally
engage in any kind of business with the Borrower as though the Agents were not
acting in such capacities hereunder and under the other Credit Documents. With
respect to the Loans made or renewed by it and any Note issued to it and with
respect to any Letter of Credit issued or participated in by it, each Agent
shall have the same rights and powers under this Agreement and the other Credit
Documents as any Lender and may exercise the same as though it were not an
Agent, and the terms "Lender" and "Lenders" shall include the Agents in their
individual capacities.
9.9 Successor Administrative Agent, Syndication Agents and
------------------------------------------------------
Documentation Agent. The Administrative Agent or a Syndication Agent or the
-------------------
Documentation Agent may resign as Administrative Agent or a Syndication Agent or
the Documentation Agent, as the case may be, upon 30 days' notice to the
Lenders. If the Administrative Agent shall resign as Administrative Agent under
this Agreement and the other Credit Documents or if a Syndication Agent or the
Documentation Agent shall resign as a Syndication Agent or the Documentation
Agent under this Agreement and the other Credit Documents, then the Required
Lenders shall appoint from among the Lenders a successor agent for the Lenders,
which successor agent (provided that it shall have been approved by the
Borrower), shall succeed to the rights, powers and duties of the Administrative
Agent or a Syndication Agent or the Documentation Agent, as the case may be,
hereunder. Effective upon such appointment and approval, the term
"Administrative Agent" or a "Syndication Agent" or "Documentation Agent", as the
case may be, shall mean or include such successor agent, and the former
Administrative Agent's or Syndication Agent's or Documentation Agent's, as the
case may be, rights, powers and duties as Administrative Agent or Syndication
Agent or Documentation Agent, as the case may be, shall be terminated, without
any other or further act or deed on the part of such former Administrative Agent
or Syndication Agent or Documentation Agent, as the case may be, or any of the
parties to this Agreement or any holders of the Loans. After any retiring
Administrative Agent's or Syndication Agent's or Documentation Agent's
resignation as Administrative Agent or Syndication Agent or Documentation Agent,
as the case may be, the provisions of this Section 9 shall inure to its benefit
as to any actions taken or omitted to be taken by it while it was Administrative
Agent or Collateral and Documentation Agent, as the case may be, under this
Agreement and the other Credit Documents.
9.10 The Arrangers. Except as expressly set forth herein, each
-------------
Arranger, in its capacity as such, shall have no duties or responsibilities, and
shall incur no liabilities, under this Agreement or the other Credit Documents.
SECTION 10. MISCELLANEOUS
10.1 Amendments and Waivers. Neither this Agreement nor any other
----------------------
Credit Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this subsection. The
Required Lenders may, or, with the written consent of the Required Lenders, the
Administrative Agent may, from time to time, (a) enter into with the Borrower
written amendments, supplements or modifications hereto and to the other Credit
Documents for the purpose of adding any provisions to this Agreement or the
other Credit Documents or changing in any manner the rights of the Lenders or of
the Borrower hereunder or thereunder or (b) waive, on such terms and conditions
as the Required Lenders or the Administrative Agent, as the
65
case may be, may specify in such instrument, any of the requirements of this
Agreement or the other Credit Documents or any Default or Event of Default and
its consequences; provided, however, that no such waiver and no such amendment,
-------- -------
supplement or modification shall (i) reduce the amount or extend the scheduled
date of maturity of any Loan, or reduce the stated rate of any interest or fee
payable hereunder or extend the scheduled date of any payment thereof, in each
case without the consent of each Lender affected thereby, or increase the
Commitment of any Lender without the consent of such Lender, or (ii) amend,
modify or waive any provision of this subsection or reduce the percentage
specified in the definition of Required Lenders, or consent to the assignment or
transfer by the Borrower of any of its rights and obligations under this
Agreement and the other Credit Documents or release any Guarantor, in each case
without the written consent of all the Lenders, or (iii) release any Collateral
having a book value in excess of $5,000,000 without the consent of Lenders whose
Commitment Percentage aggregate at least 66 2/3%, or release all or
substantially all of the Collateral without the consent of all Lenders, or (iv)
increase the aggregate amount of the Commitments to an amount exceeding
$140,000,000 without the consent of each Lender, or (v) amend, modify or waive
any provision of Section 9 without the written consent of the then Agents, or
(vi) amend, modify or waive any provision of this Agreement or any other Credit
Document which would directly and adversely affect the Arrangers or the Agents
or the Issuing Lender without the written consent of the Arranger, the Agents or
the Issuing Lender, as the case may be. Any such waiver and any such amendment,
supplement or modification shall apply equally to each of the Lenders and shall
be binding upon the Borrower, the Lenders, the Agents and the Issuing Lender and
all future holders of the Loans. Any extension of a Letter of Credit by the
Issuing Lender shall be treated hereunder as issuance of a new Letter of Credit.
In the case of any waiver, the Borrower, the Lenders and the Agents and the
Issuing Lender shall be restored to their former positions and rights hereunder
and under the other Credit Documents, and any Default or Event of Default waived
shall be deemed to be cured and not continuing; no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any right
consequent thereon.
10.2 Notices. All notices, requests and demands to or upon the
-------
respective parties hereto to be effective shall be in writing (including by
facsimile transmission) and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made (a) in the case of delivery by hand,
when delivered, (b) in the case of delivery by mail, three days after being
deposited in the mails, postage prepaid, or (c) in the case of delivery by
facsimile transmission, when sent and receipt has been confirmed, addressed as
follows in the case of the Borrower, the Administrative Agent, the Syndication
Agents and the Documentation Agent, and as set forth in Schedule I in the case
of the other parties hereto, or to such other address as may be hereafter
notified by the respective parties hereto:
The Borrower or
any of its
Subsidiaries: Xxxxxx, Fargo & Co.
00000 Xxxx Xxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Xx.
Fax: (000) 000-0000
66
with copies to: Xxxxxxx Partners, L.P.
000 X. Xx. Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxxxx X. Xxxx, Xx.
Fax: (000) 000-0000
and
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
Xxxxx X. Xxxx, Esq.
Fax: (000) 000-0000
The Administrative
Agent: with respect to notices, requests or demands
pursuant to subsection 2.2, 2.4, 2.6, 2.7, 2.12 or
3.2:
NationsBank of Texas, N.A.
000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx Xxxxxxxx
Fax: (000) 000-0000
and with respect to all other notices, requests and
demands:
NationsBank of Texas, N.A.
Corporate Finance Group
000 Xxxxxxxxx
Xxxxxxx, Xxxxx 00000-0000
Attention: Xxxxx Xxxxxxxx
Fax: (000) 000-0000
The Documentation
Agent: Xxxxxx Commercial Paper Inc.
3 World Financial Center, 9th Floor
New York, New York 10285
Attention: Xxxxxxxx Xxxxxxx
Fax: (000) 000-0000
67
The Syndication
Agents: Xxxxxx Commercial Paper Inc.
3 World Financial Center, 9th Floor
New York, New York 10285
Attention: Xxxxxxxx Xxxxxxx
Fax: (000) 000-0000
NationsBanc Capital Markets, Inc.
NationsBank Corporate Center
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Xx.
Fax: (000) 000-0000
provided that any notice, request or demand to or upon the Administrative Agent
--------
or the Lenders pursuant to subsection 2.2, 2.4, 2.6, 2.7, 2.12 or 3.2 shall not
be effective until received.
10.3 No Waiver; Cumulative Remedies. No failure to exercise and no
------------------------------
delay in exercising, on the part of any Agent or any Lender, any right, remedy,
power or privilege hereunder or under the other Credit Documents shall operate
as a waiver thereof; nor shall any single or partial exercise of any right,
remedy, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or privilege. The
rights, remedies, powers and privileges herein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.
10.4 Survival of Representations and Warranties. All representations
------------------------------------------
and warranties made hereunder, in the other Credit Documents and in any
document, certificate or statement delivered pursuant hereto or in connection
herewith shall survive the execution and delivery of this Agreement and the
making of the Loans hereunder.
10.5 Payment of Expenses and Taxes. The Borrower agrees (a) to pay
-----------------------------
or reimburse each of the Agents for all its reasonable out-of-pocket costs and
expenses incurred in connection with the development, preparation and execution
of, and any amendment, supplement or modification to, this Agreement and the
other Credit Documents and any other documents prepared in connection herewith
or therewith, and the consummation and administration of the transactions
contemplated hereby and thereby, including, without limitation, the reasonable
fees and disbursements of counsel to any of the Agents, (b) to pay or reimburse
each Lender and each Agent for all its costs and expenses incurred in connection
with the enforcement or preservation of any rights under this Agreement, the
other Credit Documents and any such other documents, including, without
limitation, the fees and disbursements of counsel to each Lender and of counsel
to any Agent, (c) to pay, indemnify, and hold each Lender and each Agent and the
Issuing Lender harmless from, any and all recording and filing fees and any and
all liabilities with respect to, or resulting from any delay in paying, stamp,
excise and other similar taxes, if any, which may be payable or determined to be
payable in connection with the execution and delivery of, or consummation or
administration of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
this Agreement, the other Credit Documents and any such other documents, (d) to
pay or reimburse the Administrative Agent on demand for any amounts paid by it
under the CIT Indemnity, and (e) to pay, indemnify, and hold each Lender and
each Arranger, each Agent and the
68
Issuing Lender harmless from and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever with respect to the
execution, delivery, enforcement, performance and administration of this
Agreement or the other Credit Documents or the use of the proceeds of the Loans
in connection with the Business Combination, including, without limitation, any
of the foregoing relating to the violation of, noncompliance with or liability
under, any Environmental Law applicable to the operations of the Borrower, any
of its Subsidiaries or any of the Properties (all the foregoing in this clause
(e), collectively, the "indemnified liabilities"), provided that the Borrower
--------
shall have no obligation hereunder to any Agent or the Issuing Lender or any
Lender with respect to indemnified liabilities arising from the gross negligence
or willful misconduct of such Agent or the Issuing Lender or any such Lender;
provided further, that the Borrower shall have no obligation hereunder to the
-------- -------
Agents, the Arrangers or the Issuing Lender or any Lender with respect to any
indemnified liabilities incurred by any Agents, Arranger or the Issuing Lender
or any Lender as a result of any Hazardous Materials that are first
manufactured, emitted, generated, treated, released, spilled stored or disposed
of on, at or from the Mortgaged Property or any violation of any Environmental
Law, which in either case first occurs on or with respect to the Mortgaged
Property after the Mortgaged Property is transferred to any Agent, Arranger,
Issuing Lender or any Lender or their successors or assigns by foreclosure sale,
deed in lieu of foreclosure, for similar transfer except to the extent such
manufacture, emission, spill, generation, treatment, release, storage or
disposal is actually caused by Borrower or any Affiliate thereof, any of their
tenants or subtenants, or any of their employees, agents, representatives, or
invitees. The agreements in this subsection shall survive repayment of the Loans
and all other amounts payable hereunder.
10.6 Successors and Assigns; Participation and Assignments. (a)
-----------------------------------------------------
This Agreement shall be binding upon and inure to the benefit of the Borrower,
the Lenders, the Agents and their respective successors and assigns, except that
the Borrower may not assign or transfer any of its rights or obligations under
this Agreement without the prior written consent of each Lender.
(b) 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 Loan owing to such
------------
Lender or any other interest of such Lender hereunder and under the other Credit
Documents. In the event of any such sale by a Lender of a participating
interest to a Participant, such Lender's obligations under this Agreement to the
other parties to this Agreement shall remain unchanged, such Lender shall remain
solely responsible for the performance thereof, such Lender shall remain the
holder of any such Loan for all purposes under this Agreement and the other
Credit Documents, and the Borrower and the Agents shall continue to deal solely
and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Credit Documents. No Lender
shall be entitled to create in favor of any Participant, in the participation
agreement pursuant to which such Participant's participating interest shall be
created or otherwise, any right to vote on, consent to or approve any matter
relating to this Agreement or any other Credit Document except for those
specified in clauses (i) and (ii) of the proviso to subsection 10.1. The
Borrower agrees that if amounts outstanding under this Agreement are due or
unpaid, or shall have been declared or shall have become due and payable upon
the occurrence of an Event of Default, each Participant shall, to the maximum
extent permitted by applicable law, be deemed to have the right of setoff in
respect of its participating interest in amounts owing under this Agreement to
the same extent as if the amount of its participating interest were owing
directly to it as a Lender under this Agreement, provided that, in purchasing
--------
such participating interest, such Participant shall be deemed to have agreed to
share with the Lenders the proceeds thereof as provided in subsection 10.7(a) as
fully as if it were a Lender hereunder. The Borrower also agrees that each
Participant shall be entitled to the benefits of subsections 2.14, 2.15 and 2.16
with respect to its participation in
69
the Letters of Credit, the Commitments and the Loans outstanding from time to
time as if it was a Lender; provided that in the case of subsection 2.15, such
--------
Participant shall have complied with the requirements of said subsection and
provided, further, that no Participant shall be entitled to receive any greater
-------- -------
amount pursuant to any such subsection than the transferor Lender would have
been entitled to receive in respect of the amount of the participation
transferred by such transferor Lender to such Participant had no such transfer
occurred.
(c) Any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time and from time to time assign to any
Lender or any affiliate thereof or, with the consent of the Borrower and the
Agents (which in each case shall not be unreasonably withheld), to an additional
bank or financial institution (an "Assignee") all or any part of its rights and
--------
obligations under this Agreement and the other Credit Documents pursuant to an
Assignment and Acceptance, substantially in the form of Exhibit F, executed by
such Assignee, such assigning Lender (and, in the case of an Assignee that is
not then a Lender or an affiliate thereof, by the Borrower and the Agents) and
delivered to the Administrative Agent for its acceptance and recording in the
Register with a copy to the Syndication Agent, provided that, in the case of any
--------
such assignment to an additional bank or financial institution, (A) the sum of
the aggregate principal amount of the Loans, the aggregate amount of the L/C
Obligations and the aggregate amount of the unused Commitments being assigned
and, if such assignment is of less than all of the rights and obligations of the
assigning Lender, the sum of the aggregate principal amount of the Loans, the
aggregate amount of the L/C Obligations and the aggregate amount of the unused
Commitments remaining with the assigning Lender are each not less than
$5,000,000 (or such lesser amount as may be agreed to by the Borrower and the
Agents) and (B) each Assignee which is a Non-U.S. Lender shall comply with the
provisions of clause (A) of subsection 2.15(b) hereof, or, with the prior
written consent of the Borrower, which shall not be unreasonably withheld, the
provisions of clause (B) of subsection 2.15(b) hereof (and, in either case, with
all of the other provisions of subsection 2.15(b) hereof). Upon such execution,
delivery, acceptance and recording, from and after the effective date determined
pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be
a party hereto and, to the extent provided in such Assignment and Acceptance,
have the rights and obligations of a Lender hereunder with a Commitment as set
forth therein and (y) the assigning Lender thereunder shall, to the extent
provided in such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all or the remaining portion of an assigning Lender's rights and obligations
under this Agreement, such assigning Lender shall cease to be a party hereto).
Notwithstanding any provision of this paragraph (c) and paragraph (f) of this
subsection, the consent of the Borrower shall not be required for any assignment
which occurs at any time when any of the events described in Section 8(f) shall
have occurred and be continuing.
(d) The Administrative Agent, on behalf of the Borrower, shall
maintain at the address of the Administrative Agent referred to in subsection
10.2 a copy of each Assignment and Acceptance delivered to it and a register
(the "Register") for the recordation of the names and addresses of the Lenders
--------
and Commitments of and principal amounts of the Loans owing to, each Lender from
time to time and the registered owners of the Obligations evidenced by the
Notes. The entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrower, the Administrative Agent and the Lenders may
(and, in the case of any Loan or other Obligation hereunder not evidenced by a
Note, shall) treat each Person whose name is recorded in the Register as the
owner of a Loan, a Note or other Obligation hereunder as the owner thereof for
all purposes of this Agreement and the other Credit Documents, notwithstanding
any notice to the contrary. Any assignment of any Loan or other obligation
evidenced by a Note shall be effective only upon appropriate entries with
respect thereto being made in the Register. Any assignment or transfer of all
70
or part of an Obligation evidenced by a Note shall be registered in the Register
only upon surrender for registration of assignment or transfer of the Note
evidencing such Obligation, duly endorsed by (or accompanied by a written
instrument of assignment or transfer duly executed by) the holder thereof, and
thereupon one or more new Notes shall be issued to the designated Assignee and
the old Note shall be returned by the Administrative Agent to the Borrower
marked "cancelled."
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Assignee (and, in the case of an Assignee that is not
then a Lender or an affiliate thereof, by the Borrower and the Agents) together
with payment to the Administrative Agent of a registration and processing fee of
$3,500 (provided that no such payment shall be required whenever Xxxxxx
--------
Commercial Paper Inc. or NationsBank is the assigning Lender), the
Administrative Agent shall (i) promptly accept such Assignment and Acceptance
and (ii) on the effective date determined pursuant thereto record the
information contained therein in the Register and give notice of such acceptance
and recordation to the Lenders and the Borrower.
(f) The Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective Transferee,
----------
subject to the provisions of subsection 10.15, any and all financial information
in such Lender's possession concerning the Borrower and its Affiliates which has
been delivered to such Lender by or on behalf of the Borrower pursuant to this
Agreement or which has been delivered to such Lender by or on behalf of the
Borrower in connection with such Lender's credit evaluation of the Borrower and
its Affiliates prior to becoming a party to this Agreement.
(g) If, pursuant to this subsection 10.6, any interest in this
Agreement or any Loan is transferred to any Transferee which would be a Non-U.S.
Lender upon the effectiveness of such transfer, the assigning Lender shall cause
such Transferee, concurrently with the effectiveness of such transfer, (i) to
represent to the assigning Lender (for the benefit of the assigning Lender, the
Administrative Agent and the Borrower) that under applicable law and treaties no
U.S. Taxes will be required to be withheld by the Administrative Agent, the
Borrower or the assigning Lender with respect to any payments to be made to such
Transferee in respect of the Loans, (ii) to furnish to the assigning Lender
(and, in the case of any Assignee registered in the Register, the Administrative
Agent and the Borrower such Internal Revenue Service Forms required to be
furnished pursuant to subsection 2.15(b) and (iii) to agree (for the benefit of
the assigning Lender, the Administrative Agent and the Borrower) to be bound by
the provisions of subsection 2.15(b).
(h) For avoidance of doubt, the parties to this Agreement acknowledge
that the provisions of this subsection concerning assignments of Loans and Notes
relate only to absolute assignments and that such provisions do not prohibit
assignments creating security interests, including, without limitation, any
pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank
in accordance with applicable law.
10.7 Adjustments; Set-off. (a) If any Lender (a "benefitted
-------------------- ----------
Lender") shall at any time receive any payment of all or part of its Loans or
------
the Reimbursement Obligations owing to it, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by set-off,
pursuant to events or proceedings of the nature referred to in Section 8(f), or
otherwise), in a greater proportion than any such payment to or collateral
received by any other Lender, if any, in respect of such other Lender's Loans or
the Reimbursement Obligations owing to it, or interest thereon, such benefitted
Lender shall purchase for cash from the other Lenders a participating interest
in such portion of each such other Lender's Loans or the Reimbursement
Obligations owing to it, or shall provide such other Lenders with the benefits
of any such collateral, or the proceeds thereof, as
71
shall be necessary to cause such benefitted Lender to share the excess payment
or benefits of such collateral or proceeds ratably with each of the Lenders;
provided, however, that if all or any portion of such excess payment or benefits
-------- -------
is thereafter recovered from such benefitted Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided
by law, each Lender shall have the right, without prior notice to the Borrower,
any such notice being expressly waived by the Borrower to the extent permitted
by applicable law, upon any amount becoming due and payable by the Borrower
hereunder (whether at the stated maturity, by acceleration or otherwise) to set-
off and appropriate and apply against such amount any and all deposits (general
or special, time or demand, provisional or final), in any currency, and any
other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by such Lender or any branch or agency thereof to or for the
credit or the account of the Borrower. Each Lender agrees promptly to notify the
Borrower and the Administrative Agent after any such set-off and application
made by such Lender, provided that the failure to give such notice shall not
--------
affect the validity of such set-off and application.
10.8 Counterparts. This Agreement may be executed by one or more of
------------
the parties to this Agreement on any number of separate counterparts (including
by facsimile transmission), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. A set of the copies of this
Agreement signed by all the parties shall be lodged with the Borrower and the
Administrative Agent.
10.9 Severability. Any provision of this Agreement which is
------------
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.10 Integration. This Agreement and the other Credit Documents
-----------
represent the agreement of the Borrower, the Agents and the Lenders with respect
to the subject matter hereof, and there are no promises, undertakings,
representations or warranties by any Agent or any Lender relative to subject
matter hereof not expressly set forth or referred to herein or in the other
Credit Documents.
10.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
-------------
OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
10.12 Submission To Jurisdiction; Waivers. The Borrower hereby
-----------------------------------
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Credit 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 the Courts of
the State of New York, the courts of the United States of America for the
Southern District of New York, and appellate courts from any thereof;
72
(b) 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;
(c) 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
Borrower at its address set forth in subsection 10.2 or at such other
address of which the Administrative Agent shall have been notified pursuant
thereto;
(d) 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
(e) 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.
10.13 Acknowledgements. The Borrower hereby acknowledges that:
----------------
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Credit Documents;
(b) none of the Arrangers, the Agents nor any Lender has any
fiduciary relationship with or duty to the Borrower arising out of or in
connection with this Agreement or any of the other Credit Documents, and
the relationship between any of the Agents and the Lenders, on one hand,
and the Borrower, 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 Credit
Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Lenders or among the Borrower and the Lenders.
10.14 WAIVERS OF JURY TRIAL. THE BORROWER, THE AGENTS, THE
---------------------
ARRANGERS, THE LENDERS AND THE OTHER PARTIES HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
10.15 Confidentiality. Each Lender agrees to keep confidential all
---------------
non-public information provided to it by the Borrower pursuant to this Agreement
that is designated by the Borrower in writing as confidential; provided that
--------
nothing herein shall prevent any Lender from disclosing any such information (i)
to any Agent or any other Lender, (ii) to any Transferee which receives such
information having been made aware of the confidential nature thereof, (iii) to
its employees, directors, agents, attorneys, accountants and other professional
advisors, (iv) upon the request or demand of any Governmental Authority having
jurisdiction over such Lender, (v) in response to any order of any court or
other Governmental Authority or as may otherwise be required pursuant to any
Requirement of Law, (vi) which has been publicly disclosed other than in breach
of this Agreement, or (vii) in connection with the exercise of any remedy
hereunder.
73
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
XXXXXX, FARGO & CO.
By: /s/ Xxxxx X. Xxxxxxxx, Xx.
----------------------------------------------
Title: Executive Vice President
XXXXXX COMMERCIAL PAPER INC.,
as Documentation Agent, a Syndication Agent,
an Arranger and as a Lender
By: /s/ Xxxxxx X. Xxx
----------------------------------------------
Title: Authorized Signatory
NATIONSBANK OF TEXAS, N.A.,
as Administrative Agent, an Arranger
and as a Lender
By: /s/ Forest X. Xxxxxxxx
----------------------------------------------
Title: Senior Vice President
NATIONSBANC CAPITAL MARKETS, INC.,
as a Syndication Agent
By: /s/ Xxx X. Xxxxxxxx
----------------------------------------------
Title: Associate
74
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxx Xxxxxx
----------------------------------------------
Title: Vice President - Structured Finance
75
THE FIRST NATIONAL BANK OF BOSTON
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------------------
Title: Managing Director
76
THE FUJI BANK, LIMITED, HOUSTON AGENCY
By: /s/ P.C. Xxxxxxxx III
----------------------------------------------
Title: Vice President & Joint Manager
77
SANWA BUSINESS CREDIT CORPORATION
By: /s/ Xxxx X. Xxxxxxxxxxx
----------------------------------------------
Title: Vice President
78
THE SUMITOMO BANK, LIMITED
By: /s/ Xxxx X. X'Xxxxx
----------------------------------------------
Title: Vice President & Managing
By: /s/ Xxxxx Xxxxxxxx
----------------------------------------------
Title: Vice President
79
COMERICA BANK
By: /s/ Xxx X. Xxxxxxxx
----------------------------------------------
Title: Vice President
80
GIROCREDIT BANK
By: /s/ Xxxx Xxxxxxxxxx
----------------------------------------------
Title: Assistant Vice President
By: /s/ Xxxxxxx Xxxxx
----------------------------------------------
Title: First Vice President
81
BANK OF TOKYO - MITSUBISHI TRUST COMPANY
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------------
Title: Vice President
00
XXXXX XXXX XX XXXXXXXXXX, N.A.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------------
Title: Credit Officer
By: /s/ Xxxx Xxxxx
----------------------------------------------
Title: Vice President
Schedule I
to Credit Agreement
-------------------
Commitments and Addresses
-------------------------
Lender/Address for Notices Commitment
-----------------------------------------------------------
XXXXXX COMMERCIAL PAPER INC. $12,500,000.00
3 World Financial Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxxx
Telecopy: (000) 000-0000
NATIONSBANK OF TEXAS, N.A. $12,500,000.00
000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx Xxxxxxxx
Telecopy: (000) 000-0000
GENERAL ELECTRIC CAPITAL CORPORATION $12,500,000.00
0000 XXX Xxxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Telecopy: (000) 000-0000
and
000 Xxxx Xxxxx Xx.
Xxxxxxxx X, 0xx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxx Persav
Telecopy: (000) 000-0000
THE FIRST NATIONAL BANK OF BOSTON $11,500,000.00
Diversifed Finance MS 01-08-05
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxx,
and Xxxxxx Xxxxxxxx
Telecopy: (000) 000-0000
and
2
Lender/Address for Notices Commitment
-----------------------------------------------------------
Commercial Loan Services
000 Xxxxxxx Xxxxxx
XX 00-00-00
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx and Xxxxxxxx Xxxxxxx
Telecopy: (000) 000-0000
THE FUJI BANK, LIMITED, HOUSTON AGENCY $11,500,000.00
0000 XxXxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxx and Xxxxx Xxx
Telecopy: (000) 000-0000 and (000) 000-0000
SANWA BUSINESS CREDIT CORPORATION $11,500,000.00
0 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxx Xxxxx and Xxxxxxx Xxxxxx
Telecopy: (000) 000-0000
THE SUMITOMO BANK, LIMITED $11,500,000.00
Houston Center Xxxxxx
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxxxxx and Xxxxx Xxxxxxx
Telecopy: (000) 000-0000
COMERICA BANK $10,000,000.00
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxx X. Xxxxxxxx
Telecopy: (000) 000-0000
and
000 Xxxxxxxx
XX 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Telecopy: (000) 000-0000
3
Lender/Address for Notices Commitment
-----------------------------------------------------------
GIROCREDIT BANK $10,000,000.00
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx Xxxxx Xxxxxx and Xxxx Xxxxxx
Telecopy: (000) 000-0000
BANK OF TOKYO - MITSUBISHI TRUST COMPANY $5,750,000.00
1251 Avenue of the Americas, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx Xxxxx and Xxxxxxx Xx
Telecopy: (000) 000-0000 and (000) 000-0000
UNION BANK OF CALIFORNIA, N.A. $5,750,000.00
000 Xxxxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX
Attention: Xxxxxx Xxxxxx
Telecopy: (000) 000-0000
and
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX
Attention: Xxxxx Xxxxxx
Telecopy: (000) 000-0000
Schedule II
to Credit Agreement
-------------------
Applicable
Eurodollar Applicable Base Commitment
Debt Ratio Margin Rate Margin Fee
greater than or equal to 5.00 2.250% 1.250% 0.500%
greater than or equal to 4.25 1.875% 0.875% 0.450%
but less than 5.00
greater than or equal to 3.75 1.625% 0.625% 0.375%
but less than 4.25
greater than or equal to 3.25 1.375% 0.375% 0.375%
but less than 3.75
less than 3.25 1.125% 0.125% 0.375%