================================================================================
AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of December 30, 1997
among
RAYOVAC CORPORATION,
VARIOUS FINANCIAL INSTITUTIONS
and
BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Administrative Agent
Arranged by
BANCAMERICA XXXXXXXXX XXXXXXXX
================================================================================
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
1.1 Certain Defined Terms..............................................1
1.2 Other Interpretive Provisions.....................................23
1.3 Accounting Principles.............................................24
1.4 Reallocation of Loans and Commitments.............................24
ARTICLE II
THE CREDITS
2.1 Amounts and Terms of Commitments..................................25
2.2 Loan Accounts.....................................................26
2.3 Procedure for Borrowing...........................................26
2.4 Conversion and Continuation Elections.............................27
2.5 Swingline Loans...................................................28
2.6 Termination or Reduction of Commitments...........................30
2.7 Optional Prepayments..............................................31
2.8 Mandatory Prepayments of Revolving Loans..........................32
2.9 Repayment.........................................................32
2.10 Interest..........................................................32
2.11 Fees..............................................................33
2.12 Computation of Fees and Interest..................................34
2.13 Payments by the Company...........................................34
2.14 Payments by the Lenders to the Administrative Agent...............34
2.15 Sharing of Payments, Etc..........................................35
ARTICLE III
THE LETTERS OF CREDIT
3.1 The Letter of Credit Subfacility; Existing Letters of Credit......36
3.2 Issuance, Amendment and Renewal of Letters of Credit..............37
3.3 Risk Participations, Drawings and Reimbursements..................39
3.4 Repayment of Participations.......................................41
3.5 Role of the Issuing Lender........................................41
-i-
3.6 Obligations Absolute..............................................42
3.7 Cash Collateral Pledge............................................43
3.8 Letter of Credit Fees.............................................43
3.9 Uniform Customs and Practice......................................44
3.10 Non-Dollar Letters of Credit......................................44
ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY
4.1 Taxes.............................................................45
4.2 Illegality........................................................47
4.3 Increased Costs and Reduction of Return...........................48
4.4 Funding Losses....................................................48
4.5 Inability to Determine Rates......................................49
4.6 Certificates of Lenders...........................................50
4.7 Substitution of Lenders...........................................50
4.8 Survival..........................................................50
ARTICLE V
CONDITIONS PRECEDENT
5.1 Conditions of Effectiveness.......................................50
5.2 Conditions to All Credit Extensions...............................52
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1 Corporate Existence and Power.....................................53
6.2 Corporate Authorization; No Contravention.........................53
6.3 Governmental Authorization........................................54
6.4 Binding Effect....................................................54
6.5 Litigation........................................................54
6.6 No Default........................................................54
6.7 ERISA Compliance..................................................54
6.8 Use of Proceeds; Margin Regulations...............................55
6.9 Title to Properties...............................................55
6.10 Taxes.............................................................55
6.11 Financial Condition...............................................56
6.12 Regulated Entities................................................56
6.13 No Burdensome Restrictions........................................56
6.14 Copyrights, Patents, Trademarks and Licenses, etc.................56
-ii-
6.15 Subsidiaries......................................................57
6.16 Insurance.........................................................57
6.17 Solvency, etc.....................................................57
6.18 Real Property; Mortgages..........................................57
6.19 Swap Obligations..................................................57
6.20 Senior Indebtedness...............................................58
6.21 Environmental Warranties..........................................58
6.22 Full Disclosure...................................................59
ARTICLE VII
AFFIRMATIVE COVENANTS
7.1 Financial Statements..............................................59
7.2 Certificates; Other Information...................................60
7.3 Notices...........................................................61
7.4 Preservation of Corporate Existence, etc..........................62
7.5 Maintenance of Property...........................................62
7.6 Insurance.........................................................63
7.7 Payment of Obligations............................................63
7.8 Compliance with Laws..............................................63
7.9 Compliance with ERISA.............................................63
7.10 Inspection of Property and Books and Records......................63
7.11 Environmental Covenant............................................64
7.12 Use of Proceeds...................................................64
7.13 Further Assurances................................................64
ARTICLE VIII
NEGATIVE COVENANTS
8.1 Limitation on Liens...............................................66
8.2 Disposition of Assets.............................................67
8.3 Consolidations and Mergers........................................68
8.4 Loans and Investments.............................................68
8.5 Limitation on Indebtedness........................................70
8.6 Transactions with Affiliates......................................71
8.7 Use of Proceeds...................................................71
8.8 Contingent Obligations............................................71
8.9 Joint Ventures....................................................72
8.10 Lease Obligations.................................................72
8.11 Minimum Interest Coverage Ratio...................................72
8.12 Maximum Leverage Ratio............................................72
8.13 Restricted Payments...............................................73
-iii-
8.14 ERISA.............................................................73
8.15 Limitations on Sale and Leaseback Transactions....................74
8.16 Inconsistent Agreements...........................................74
8.17 Change in Business................................................74
8.18 Amendments to Certain Documents...................................74
8.19 Limitation on Issuance of Guaranty Obligations....................74
ARTICLE IX
EVENTS OF DEFAULT
9.1 Event of Default..................................................75
9.2 Remedies..........................................................77
9.3 Rights Not Exclusive..............................................78
ARTICLE X
THE ADMINISTRATIVE AGENT
10.1 Appointment and Authorization.....................................78
10.2 Delegation of Duties..............................................79
10.3 Liability of Administrative Agent.................................79
10.4 Reliance by Administrative Agent..................................79
10.5 Notice of Default.................................................80
10.6 Credit Decision...................................................80
10.7 Indemnification...................................................81
10.8 Administrative Agent in Individual Capacity.......................81
10.9 Successor Administrative Agent....................................81
10.10 Withholding Tax...................................................82
10.11 Collateral Matters................................................84
ARTICLE XI
MISCELLANEOUS
11.1 Amendments and Waivers............................................85
11.2 Notices...........................................................86
11.3 No Waiver; Cumulative Remedies....................................87
11.4 Costs and Expenses................................................87
11.5 Company Indemnification...........................................87
11.6 Payments Set Aside................................................88
11.7 Successors and Assigns............................................88
11.8 Assignments, Participations, etc..................................88
11.9 Confidentiality...................................................90
-iv-
11.10 Set-off...........................................................91
11.11 Automatic Debits of Fees..........................................91
11.12 Notification of Addresses, Lending Offices, etc...................91
11.13 Counterparts......................................................91
11.14 Severability......................................................91
11.15 No Third Parties Benefited........................................91
11.16 Governing Law and Jurisdiction....................................92
11.17 Waiver of Jury Trial..............................................92
11.18 Entire Agreement..................................................93
-v-
SCHEDULES
Schedule 1.1 Pricing Schedule
Schedule 2.1 Commitments and Percentages
Schedule 3.1 Existing Letters of Credit
Schedule 6.5 Litigation
Schedule 6.11 Permitted Liabilities
Schedule 6.15 Subsidiaries and Minority Interests
Schedule 6.16 Insurance Matters
Schedule 6.18(a) Real Property
Schedule 6.18(b) Mortgages
Schedule 6.21 Environmental Matters
Schedule 8.1 Liens
Schedule 8.4 Permitted Investments
Schedule 8.8 Contingent Obligations
Schedule 11.2 Lending Offices; Addresses for Notices
EXHIBITS
Exhibit A Form of Notice of Borrowing
Exhibit B Form of Notice of Conversion/Continuation
Exhibit C Form of Compliance Certificate
Exhibit D Form of Promissory Note
Exhibit E Copy of Security Agreement
Exhibit F Copy of Guaranty
Exhibit G Copy of Company Pledge Agreement
Exhibit H-1 Copy of Subsidiary Pledge Agreement (U.K.)
Exhibit H-2 Copy of Subsidiary Pledge Agreement (Canada)
Exhibit H-3 Copy of Subsidiary Pledge Agreement (Hong Kong)
Exhibit H-4 Copy of Subsidiary Pledge Agreement (Netherlands)
Exhibit I Form of Confirmation and Omnibus Amendment
Exhibit J Form of Opinion of General Counsel to the Company
Exhibit K Form of Opinion of Special Counsel to the Administrative Agent
Exhibit L Form of Assignment and Acceptance
Exhibit M Form of Lender Certificate
-vi-
AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT dated as of
December 30, 1997, is among RAYOVAC CORPORATION (the "Company"), various
financial institutions, and BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as administrative agent for the Lenders.
WHEREAS, pursuant to the Credit Agreement dated as of
September 12, 1996 (the "Existing Agreement"), the Company borrowed $105,000,000
in term loans and obtained commitments for up to $65,000,000 in revolving loans
and letters of credit;
WHEREAS, the parties hereto have agreed to amend and restate
the Existing Agreement so as to, among other things, (a) reduce the principal
amount of the term loans thereunder to zero, (b) increase the amount of the
revolving credit facility to $90,000,000, (c) add an acquisition loan facility,
(d) amend the pricing, certain covenants and various other provisions of the
Existing Agreement and (e) revise in certain respects the composition of the
lender group; and
WHEREAS, the parties hereto intend that this Agreement and
the documents executed in connection herewith not effect a novation of the
obligations of the Company under the Existing Agreement, but merely a
restatement and, where applicable, an amendment of the terms governing such
obligations;
NOW, THEREFORE, in consideration of the mutual agreements
contained herein, the Existing Agreement is restated in its entirety, and the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Certain Defined Terms. The following terms have the
following meanings:
Acquisition means any transaction or series of related
transactions for the purpose of, or resulting directly or indirectly
in, (a) the acquisition of all or substantially all of the assets of a
Person, or of any business or division of a Person, (b) the acquisition
of in excess of 50% of the capital stock, partnership interests,
membership interests or equity of any Person, or otherwise causing any
Person to become a Subsidiary or (c) a merger or consolidation or any
other combination with another Person (other than a Person that is a
Subsidiary) provided that the Company or a Subsidiary is the surviving
entity.
-1-
Acquisition Commitment means, as to any Lender, the
commitment of such Lender to make Acquisition Loans pursuant to
subsection 2.1(b). The initial amount of each Lender's Acquisition
Commitment is set forth across from such Lender's name on Schedule 2.1.
Acquisition Commitment Amount means $70,000,000, as reduced
from time to time in accordance with the terms hereof.
Acquisition Loan - see subsection 2.1(b).
Administrative Agent means BofA in its capacity as
administrative agent for the Lenders hereunder, and any successor
administrative agent arising under Section 10.9.
Affiliate means, as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is under
common control with, such Person. A Person shall be deemed to control
another Person if the controlling Person possesses, directly or
indirectly, the power to direct or cause the direction of the
management and policies of such other Person, whether through the
ownership of voting securities or membership interests, by contract, or
otherwise. Without limiting the foregoing, any Person which is an
officer, director or shareholder of the Company, or a member of the
immediate family of any such officer, director or shareholder, shall be
deemed to be an Affiliate of the Company.
Agent-Related Persons means BofA and any successor
administrative agent arising under Section 10.9, together with its
Affiliates (including the Arranger), and the officers, directors,
employees, agents and attorneys-in-fact of such Persons and Affiliates.
Agent's Payment Office means the address for payments set
forth on Schedule 11.2 in relation to the Administrative Agent, or such
other address as the Administrative Agent may from time to time
specify.
Agreement means this Amended and Restated Credit Agreement.
Agreement Currency - see subsection 3.10(f).
Arranger means BancAmerica Xxxxxxxxx Xxxxxxxx, a Delaware
corporation.
Assignee - see subsection 11.8(a).
Assignment and Acceptance - see subsection 11.8(a).
Attorney Costs means and includes all reasonable and
documented fees and disbursements of any law firm or other external
counsel and, without duplication of
-2-
effort, the allocated cost of internal legal services and all
disbursements of internal counsel.
Bankruptcy Code means the Federal Bankruptcy Reform Act of
1978 (11 U.S.C. ss.101, et seq.).
Base Rate means, for any day, the higher of: (a) 0.50% per
annum above the latest Federal Funds Rate; and (b) the rate of interest
in effect for such day as publicly announced from time to time by BofA
in San Francisco as its "reference rate." (The "reference rate" is a
rate set by BofA based upon various factors including BofA's costs and
desired return, general economic conditions and other factors, and is
used as a reference point for pricing some loans, which may be priced
at, above or below such announced rate.) Any change in the reference
rate announced by BofA shall take effect at the opening of business on
the day specified in the public announcement of such change.
Base Rate Loan means a Loan that bears interest based on the
Base Rate.
BofA means Bank of America National Trust and Savings
Association, a national banking association.
Borrowing means a borrowing hereunder consisting of (a)
Revolving Loans or Acquisition Loans of the same Type made to the
Company on the same day by the Lenders and, in the case of Offshore
Rate Loans, having the same Interest Period, or (b) a Swingline Loan
made to the Company by the Swingline Lender, in each case pursuant to
Article II.
Borrowing Date means any date on which a Borrowing occurs
under Section 2.3.
Business Day means any day other than a Saturday, Sunday or
other day on which commercial banks in New York City, Chicago or San
Francisco are authorized or required by law to close and, if the
applicable Business Day relates to any Offshore Rate Loan, means such a
day on which dealings are carried on in the applicable offshore Dollar
interbank market.
Canadian Share Pledge Agreement means the Share Pledge
Agreement dated as of November 11, 1996 between ROV Holding and the
Administrative Agent, a copy of which is attached hereto as Exhibit
H-2.
Capital Adequacy Regulation means any guideline, request or
directive of any central bank or other Governmental Authority, or any
other law, rule or regulation, whether or not having the force of law,
in each case regarding capital adequacy of any bank or of any Person
controlling a bank.
-3-
Cash Collateralize means to pledge and deposit with or
deliver to the Administrative Agent, for the benefit of the
Administrative Agent, the Issuing Lender and the Lenders, as additional
collateral for the L/C Obligations, cash or deposit account balances
pursuant to documentation in form and substance satisfactory to the
Administrative Agent and the Issuing Lender (which documents are hereby
consented to by the Lenders). Derivatives of such term shall have
corresponding meanings. The Company hereby grants the Administrative
Agent, for the benefit of the Administrative Agent, the Issuing Lender
and the Lenders, a security interest in all such cash and deposit
account balances. Cash collateral shall be maintained in blocked,
non-interest bearing deposit accounts at BofA.
Cash Equivalent Investments shall mean (i) securities issued
or directly and fully guaranteed or insured by the United States of
America or guaranteed by a government that is a member of the OECD
("OECD Country") or any agency or instrumentality thereof (provided
that the full faith and credit of the United States of America or such
OECD Country, as applicable, is pledged in support thereof) having
maturities of not more than three years from the date of acquisition,
(ii) marketable direct obligations issued by any State of the United
States of America or any local government or other political
subdivision thereof rated (at the time of acquisition of such security)
at least AA by Standard & Poor's Ratings Service, a division of The
XxXxxx-Xxxx Companies, Inc. ("S&P") or the equivalent thereof by
Xxxxx'x Investors Service, Inc. ("Moody's") having maturities of not
more than one year from the date of acquisition, (iii) time deposits,
certificates of deposit and bankers' acceptances of (x) any Lender, (y)
any commercial bank that is a member of the Federal Reserve System or
an applicable central bank of an OECD Country having capital and
surplus in excess of $250,000,000 or (z) any bank whose short-term
commercial paper rating (at the time of acquisition of such security)
by S&P is at least A-1 or the equivalent thereof (any such bank, an
"Approved Bank"), in each case with maturities of not more than six
months from the date of acquisition, (iv) commercial paper and variable
or fixed rate notes issued by any Lender or Approved Bank or by the
parent company of any Lender or Approved Bank and commercial paper and
variable rate notes issued by, or guaranteed by, any industrial or
financial company with a short-term commercial paper rating (at the
time of acquisition of such security) of at least A-1 or the equivalent
thereof by S&P or at least P-1 or the equivalent thereof by Moody's, or
guaranteed by any industrial company with a long-term unsecured debt
rating (at the time of acquisition of such security) of at least AA or
the equivalent thereof by S&P or at least Aa or the equivalent thereof
by Moody's and in each case maturing within one year after the date of
acquisition and (v) repurchase agreements with any Lender or any
primary dealer maturing within one year from the date of acquisition
that are fully collateralized by investment instruments that would
otherwise be Cash Equivalent Investments; provided that the terms of
such repurchase agreements comply with the guidelines set forth in the
Federal Financial Institutions Examination Council Supervisory Policy
-- Repurchase Agreements of Depository Institutions With Securities
Dealers and Others, as adopted by the Comptroller of the Currency on
October 31, 1985.
-4-
CERCLA means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980.
Change of Control means the occurrence of any of the
following events: (i) a majority of the Board of Directors of the
Company shall not be Continuing Directors; (ii) any Person or group of
Persons (within the meaning of Section 13 or 14 of the Exchange Act,
but excluding Xxxxxx X. Xxx Company and its Affiliates) shall acquire
beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 25% or more of the outstanding shares of
Voting Stock of the Company; or (iii) while any Senior Subordinated
Notes are outstanding, any "Change of Control" as defined in the Senior
Subordinated Note Indenture.
Code means the Internal Revenue Code of 1986.
Collateral Document means the Security Agreement, each
Pledge Agreement, each Mortgage and any other document pursuant to
which collateral securing the liabilities of the Company or any
Guarantor under any Loan Document is granted or pledged to the
Administrative Agent for the benefit of itself, the Lenders and the
Qualified Foreign Lenders.
Commercial Letter of Credit means any Letter of Credit which
is drawable upon presentation of a sight draft and other documents
evidencing the sale or shipment of goods purchased by the Company or a
Subsidiary in the ordinary course of business.
Commitment means, as to each Lender, such Lender's Revolving
Commitment and/or Acquisition Commitment, as applicable.
Common Stock means the common stock, par value $.01 per
share, of the Company.
Company - see the Preamble.
Company Pledge Agreement means the Company Pledge Agreement
dated as of September 12, 1996 between the Company and the
Administrative Agent, a copy of which is attached hereto as Exhibit G.
Compliance Certificate means a certificate substantially in
the form of Exhibit C.
Computation Period means any period of four consecutive
fiscal quarters and in any case ending on the last day of a fiscal
quarter; provided that, solely for purposes of calculating the Interest
Coverage Ratio, the Computation Periods ending on March 31, 1998, June
30, 1998 and September 30, 1998 shall be the periods of one, two and
three fiscal quarters, respectively, ending on such dates.
-5-
Consolidated Net Income means, with respect to the Company
and its Subsidiaries for any period, the net income (or loss) of the
Company and its Subsidiaries for such period; provided that the net
income of any Subsidiary shall be excluded from Consolidated Net Income
to the extent that the declaration or payment of dividends or similar
distributions by such Subsidiary from such income is not at the time
permitted by the terms of its charter or by-laws or any judgment,
decree, order, law, statute, rule, regulation, agreement, indenture or
other instrument which is binding on such Subsidiary.
Contingent Liabilities means, at any time, the maximum
estimated amount of liabilities reasonably likely to result at such
time from pending litigation, asserted and unasserted claims and
assessments, guaranties, uninsured risks and other contingent
liabilities of each of the Company and of each Guarantor after giving
effect to the transactions contemplated by this Agreement (including
all fees and expenses related thereto).
Contingent Obligation means, as to any Person, any direct or
indirect liability of such Person, whether or not contingent, with or
without recourse: (a) with respect to any Indebtedness, lease,
dividend, letter of credit or other obligation (the "primary
obligation") of another Person (the "primary obligor"), including any
obligation of such Person (i) to purchase, repurchase or otherwise
acquire such primary obligation or any security therefor, (ii) to
advance or provide funds for the payment or discharge of any primary
obligation, or to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency or
any balance sheet item, level of income or financial condition of the
primary obligor, (iii) to purchase property, securities or services
primarily for the purpose of assuring the owner of any 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 holder of any primary obligation against loss in respect thereof
(each, a "Guaranty Obligation"); (b) with respect to any Surety
Instrument (other than any Letter of Credit) issued for the account of
such Person or as to which such Person is otherwise liable for
reimbursement of drawings or payments; (c) to purchase any materials,
supplies or other property from, or to obtain the services of, another
Person if the relevant contract or other related document or obligation
requires that payment for such materials, supplies or other property,
or for such services, shall be made regardless of whether delivery of
such materials, supplies or other property is ever made or tendered, or
such services are ever performed or tendered; or (d) in respect of any
Swap Contract. The amount of any Contingent Obligation shall, (1) in
the case of Guaranty Obligations, be deemed equal to the stated or
determinable amount of the primary obligation in respect of which such
Guaranty Obligation is made or, if not stated or if indeterminable, the
maximum reasonably anticipated liability in respect thereof, (2) in the
case of Swap Contracts, be equal to the Swap Termination Value and (3)
in the case of other Contingent Obligations, be equal to the maximum
reasonably anticipated liability in respect thereof.
-6-
Continuing Director means (A) any individual who was a
member of the Company's Board of Directors on the Effective Date and
(B) any individual who becomes a member of the Company's Board of
Directors whose nomination for election by the Company's shareholders
was approved by a vote of at least a majority of the Continuing
Directors on the date of such nomination.
Contractual Obligation means, as to any Person, any
provision of any security issued by such Person or of any agreement,
undertaking, contract, indenture, mortgage, deed of trust or other
instrument, document or agreement to which such Person is a party or by
which it or any of its property is bound.
Conversion/Continuation Date means any date on which, under
Section 2.4, the Company (a) converts Loans of one Type to the other
Type or (b) continues as Offshore Rate Loans, but with a new Interest
Period, Offshore Rate Loans having Interest Periods expiring on such
date.
Credit Extension means and includes (a) the making of any
Loan hereunder and (b) the Issuance of any Letter of Credit hereunder.
Dollar Equivalent means, in relation to an amount
denominated in a currency other than Dollars, the amount of Dollars
which could be purchased with such amount at the prevailing foreign
exchange spot rate.
Dollars and $ mean lawful money of the United States.
Dormant Subsidiaries means, so long as either such Person
does not have assets with a fair market value in the aggregate in
excess of $100,000 and transacts no business, Minera Vindaluz, Zoe-Phos
International and Vidor Battery; provided that no Subsidiary may be a
Dormant Subsidiary if the Company or any of its other Subsidiaries
provides any credit support thereto or is liable in any respect for the
liabilities thereof.
EBITDA means, for any Computation Period, the sum of (a)
Consolidated Net Income of the Company for such period excluding, to
the extent reflected in determining such Consolidated Net Income,
extraordinary gains for such period, plus to the extent deducted in
determining such Consolidated Net Income, Interest Expense, income tax
expense, depreciation and amortization for such period. For purposes of
calculating the Interest Coverage Ratio and the Leverage Ratio, EBITDA
shall be calculated for the relevant Computation Period on a pro forma
basis (as certified) by the Company to the Agent) assuming that all
Acquisitions made, and all divestitures completed, during such
Computation Period had been made on the first day of such Computation
Period (but without adjustment for expected cost savings or other
synergies).
Effective Amount means, with respect to any outstanding L/C
Obligations on any date, (i) the amount of such L/C Obligations on such
date after giving effect to any
-7-
Issuances of Letters of Credit occurring on such date, (ii) the amount
of any undrawn Commercial Letters of Credit which have expired less
than 25 days prior to such date and (iii) any other changes in the
aggregate amount of the L/C Obligations as of such date, including as a
result of any reimbursements of outstanding unpaid drawings under any
Letter of Credit or any reduction in the maximum amount available for
drawing under Letters of Credit taking effect on such date.
Effective Date means the date on which all conditions
precedent set forth in Sections 5.1 and 5.2 are satisfied or waived by
all Lenders in their sole discretion (or, in the case of subsection
5.1(e), waived by the Person entitled to receive the applicable
payment).
Eligible Assignee means (i) a commercial bank organized
under the laws of the United States, or any state thereof, and having a
combined capital and surplus of at least $500,000,000; (ii) a
commercial bank organized under the laws of any other country which is
a member of the OECD, or a political subdivision of any such country,
and having a combined capital and surplus of at least $500,000,000,
provided that such bank is acting through a branch or agency located in
the United States; (iii)(x) a Lender, (y) an Affiliate of a Lender that
is a Person of the type specified in clause (i), (ii) or (iv) of this
definition or (z) a Person that is primarily engaged in the business of
commercial banking and that is (A) a Subsidiary of a Lender, (B) a
Subsidiary of a Person of which a Lender is a Subsidiary or (C) a
Person of which a Lender is a Subsidiary; and (iv) an insurance
company, pension fund, mutual fund, commercial finance company or
similar financial institution having a net worth of at least
$250,000,000.
Employment Agreement means the Employment Agreement dated as
of September 12, 1996 between the Company and Xxxxx X. Xxxxx, as
amended from time to time in accordance with Section 8.18.
Environmental Claims means all claims, however asserted, by
any Governmental Authority or other Person alleging potential liability
under any Environmental Law or responsibility for violation of any
Environmental Law, or for release or injury to the environment.
Environmental Laws means CERCLA, RCRA and all other federal,
state or local laws, statutes, common law duties, rules, regulations,
ordinances and codes relating to pollution or protection of public or
employee health or the environment, together with all administrative
orders, consent decrees, licenses, authorizations and permits of any
Governmental Authority implementing them.
ERISA means the Employee Retirement Income Security Act of
1974.
ERISA Affiliate means any trade or business (whether or not
incorporated) under common control with the Company within the meaning
of Section 414(b) or (c) of
-8-
the Code (and Sections 414(m) and (o) of the Code for purposes of
provisions relating to Section 412 of the Code).
ERISA Event means: (a) a Reportable Event with respect to a
Pension Plan; (b) a withdrawal by the Company or any ERISA Affiliate
from a Pension Plan subject to Section 4063 of ERISA during a plan year
in which it was a substantial employer (as defined in Section
4001(a)(2) of ERISA) or a substantial cessation of operations which is
treated as such a withdrawal; (c) a complete or partial withdrawal by
the Company or any ERISA Affiliate from a Multiemployer Plan or
notification that a Multiemployer Plan is in reorganization; (d) the
filing of a notice of intent to terminate, the treatment of a Pension
Plan amendment as a termination under Section 4041 or 4041A of ERISA,
or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which might
reasonably be expected to constitute grounds under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to
administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon the
Company or any ERISA Affiliate.
Event of Default means any of the events or circumstances
specified in Section 9.1.
Exchange Act means the Securities Exchange Act of 1934.
Excluded Assets has the meaning assigned thereto in the
Security Agreement.
Excluded Taxes - see the definition of "Taxes."
Existing Agreement - see the recitals.
Existing Letters of Credit means the Letters of Credit
described in Section 3.1.
Fair Value means, at any time, the amount at which the
assets, in their entirety, of each of the Company and of each Guarantor
would likely change hands at such time as part of a going concern and
for continued use as part of a going concern between a willing buyer
and a willing seller, within a commercially reasonable period of time,
each having reasonable knowledge of the relevant facts, with neither
being under any compulsion to act.
Federal Funds Rate means, for any day, the rate set forth in
the weekly statistical release designated as H.15(519), or any
successor publication, published by the Federal Reserve Bank of New
York (including any such successor, "H.15(519)") on the preceding
Business Day opposite the caption "Federal Funds (Effective)"; or, if
for any relevant day such rate is not so published on any such
preceding Business Day, the rate
-9-
for such day will be the arithmetic mean as determined by the
Administrative Agent of the rates for the last transaction in overnight
Federal funds arranged prior to 9:00 a.m. (New York City time) on that
day by each of three leading brokers of Federal funds transactions in
New York City selected by the Administrative Agent.
Fee Letter - see subsection 2.11(a).
Foreign Subsidiary shall mean each Subsidiary of the Company
organized under the laws of any jurisdiction other than the United
States or any state thereof.
FRB means the Board of Governors of the Federal Reserve
System, and any Governmental Authority succeeding to any of its
principal functions.
Funded Debt means all indebtedness of the Company and its
Subsidiaries as determined in accordance with GAAP.
Further Taxes means any and all present or future taxes,
levies, assessments, imposts, duties, deductions, fees, withholdings or
similar charges (including net income taxes and franchise taxes), and
all liabilities with respect thereto, imposed by any jurisdiction on
account of amounts paid or payable pursuant to Section 4.1.
GAAP means generally accepted accounting principles set
forth from time to time in the opinions and pronouncements of the
Accounting Principles Board and the American Institute of Certified
Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board (or agencies with similar functions of
comparable stature and authority within the U.S. accounting
profession), which are applicable to the circumstances as of the date
of determination.
Governmental Authority means any nation or government, any
state or other political subdivision thereof, any central bank (or
similar monetary or regulatory authority) thereof, any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government, and any
corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
Guarantor means ROV Holding and each other Person which from
time to time executes and delivers a counterpart of the Guaranty.
Guaranty means the Guaranty dated as of September 12, 1996,
a copy of which is attached hereto as Exhibit F.
Guaranty Obligation has the meaning specified in the
definition of Contingent Obligation.
-10-
Hazardous Material means
(a) any "hazardous substance", as defined by
CERCLA;
(b) any "hazardous waste", as defined by RCRA;
(c) any petroleum product; or
(d) any pollutant or contaminant or hazardous,
dangerous or toxic chemical, material or substance within the meaning
of any other Environmental Law.
Hong Kong Charge means the Deed of Charge and Memorandum of
Deposit dated as of November 11, 1996 between ROV Holding and the
Administrative Agent, a copy of which is attached hereto as Exhibit
H-3.
Honor Date - see subsection 3.3(b).
Indebtedness of any Person means, without duplication: (a)
all indebtedness of such Person for borrowed money; (b) all obligations
issued, undertaken or assumed by such Person as the deferred purchase
price of property or services (other than trade payables entered into
and accrued expenses arising in the ordinary course of business on
ordinary terms); (c) all non-contingent reimbursement or payment
obligations with respect to Surety Instruments; (d) all obligations of
such Person evidenced by notes, bonds, debentures or similar
instruments; (e) all indebtedness of such Person created or arising
under any conditional sale or other title retention agreement, or
incurred as financing, in either case with respect to property acquired
by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to
repossession or sale of such property); (f) all obligations of such
Person with respect to capital leases; (g) all indebtedness referred to
in clauses (a) through (f) above secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien upon or in property (including accounts and
contract rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Indebtedness; and (h)
all Guaranty Obligations of such Person in respect of indebtedness or
obligations of others of the kinds referred to in clauses (a) through
(g) above.
Indemnified Liabilities - see Section 11.5.
Indemnified Person - see Section 11.5.
Independent Auditor - see subsection 7.1(a).
Insolvency Proceeding means, with respect to any Person, (a)
any case, action or proceeding with respect to such Person before any
court or other Governmental
-11-
Authority relating to bankruptcy, reorganization, insolvency,
liquidation, receivership, dissolution, winding-up or relief of debtors
or (b) any general assignment for the benefit of creditors,
composition, marshalling of assets for creditors, or other, similar
arrangement in respect of such Person's creditors generally or any
substantial portion of such creditors, in each case undertaken under
any U.S. Federal, State or foreign law, including the Bankruptcy Code.
Interest Coverage Ratio means, as of the last day of any
fiscal quarter, the ratio of (a) EBITDA for the Computation Period
ending on such day to (b) Interest Expense for such Computation Period;
provided that for the first three fiscal quarters of 1998, "Interest
Coverage Ratio" means (i) in the case of the fiscal quarter ending
March 31, 1998, the ratio of (a) EBITDA for the period of two
consecutive fiscal quarters ending on such date to (b) the product of
Interest Expense for the fiscal quarter ending on such date multiplied
by 2; (ii) in the case of the fiscal quarter ending June 30, 1998, the
ratio of (a) EBITDA for the period of three consecutive fiscal quarters
ending on such date to (b) the product of Interest Expense for the
period of two fiscal quarters ending on such date multiplied by 1.5;
and (iii) in the case of the fiscal quarter ending September 30, 1998,
the ratio of (a) EBITDA for the period of four consecutive fiscal
quarters ending on such date to (b) the product of Interest Expense for
the period of three fiscal quarters ending on such date multiplied by
1.33.
Interest Expense means for any period the consolidated
interest expense of the Company and its Subsidiaries for such period
(including all imputed interest on capital leases).
Interest Payment Date means (i) as to any Offshore Rate
Loan, the last day of each Interest Period applicable to such Loan and,
in the case of any Offshore Rate Loan with a six-month Interest Period,
the three-month anniversary of the first day of such Interest Period,
and (ii) as to any Base Rate Loan, the last Business Day of each
calendar quarter.
Interest Period means, as to any Offshore Rate Loan, the
period commencing on the Borrowing Date of such Loan or on the
Conversion/Continuation Date on which the Loan is converted into or
continued as an Offshore Rate Loan, and ending one, two, three or six
months thereafter, as selected by the Company in its Notice of
Borrowing or Notice of Conversion/Continuation; provided that:
(i) if any Interest Period would otherwise end on
a day that is not a Business Day, such Interest Period shall
be extended to the following 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 preceding Business Day;
-12-
(ii) any Interest Period 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 the calendar month at the end of such
Interest Period;
(iii) no Interest Period for an Acquisition Loan
or any portion thereof shall extend beyond any date upon
which scheduled principal payment is due in respect of the
Acquisition Loans unless the aggregate principal amount of
all Acquisition Loans which are Base Rate Loans, or are
Offshore Rate Loans having Interest Periods that will expire
on or before such date, equals or exceeds the amount of such
principal payment;
(iv) no Interest Period for a Revolving Loan or
any portion thereof shall extend beyond any Revolving
Commitment Reduction Date unless the aggregate principal
amount of all Revolving Loans which are Base Rate Loans or
Swingline Loans, or are Offshore Rate Loans having Interest
Periods that will expire before such Revolving Commitment
Reduction Date, plus the aggregate amount of all Letters of
Credit scheduled to expire before (or, in the case of
Commercial Letters of Credit, 25 days before) such Revolving
Commitment Reduction Date, plus the unused portion of the
Revolving Commitment Amount, equals or exceeds the amount of
the scheduled reduction of the Revolving Commitment Amount
on such Revolving Commitment Reduction Date; and
(v) no Interest Period for any Revolving Loan
shall extend beyond the Revolving Termination Date.
IP Subsidiary means a direct, Wholly-Owned Subsidiary of the
Company organized under the laws of California, and having a principal
place of business in the State of California, the primary business of
which is the ownership of intellectual property and the licensing of
such property to the Company and its other Subsidiaries.
IRB Debt means Indebtedness of the Company arising as a
result of the issuance of tax-exempt industrial revenue bonds or
similar tax-exempt public financing.
IRS means the Internal Revenue Service, and any Governmental
Authority succeeding to any of its principal functions under the Code.
Issuance Date - see subsection 3.1(a).
Issue means, with respect to any Letter of Credit, to issue
or to extend the expiry of, or to renew or increase the amount of, such
Letter of Credit; and the terms "Issued," "Issuing" and "Issuance" have
corresponding meanings.
-13-
Issuing Lender means BofA in its capacity as issuer of one
or more Letters of Credit hereunder, together with any replacement
letter of credit issuer arising under subsection 10.1(b) or Section
10.9.
Joint Venture means a corporation, partnership, limited
liability company, joint venture or other similar legal arrangement
(whether created by contract or conducted through a separate legal
entity) which is not a Subsidiary of the Company or any of its
Subsidiaries and which is now or hereafter formed by the Company or any
of its Subsidiaries with another Person in order to conduct a common
venture or enterprise with such Person.
Xxxxx Note means the $500,000 Full Recourse Promissory Note,
dated September 12, 1996, made by Xxxxx X. Xxxxx in favor of the
Company.
Judgment Currency - see subsection 3.10(f).
L/C Advance means each Lender's participation in any L/C
Borrowing in accordance with its Percentage.
L/C Amendment Application means an application form for
amendment of an outstanding standby or commercial documentary letter of
credit as shall at any time be in use at the Issuing Lender, as the
Issuing Lender shall request.
L/C Application means an application form for issuances of a
standby or commercial documentary letter of credit as shall at any time
be in use at the Issuing Lender, as the Issuing Lender shall request.
L/C Borrowing means an extension of credit resulting from a
drawing under any Letter of Credit which shall not have been reimbursed
on the date when made nor converted into a Borrowing of Revolving Loans
under subsection 3.3(c).
L/C Commitment means the commitment of the Issuing Lender to
Issue, and the commitments of the Lenders severally to participate in,
Letters of Credit (including the Existing Letters of Credit) from time
to time Issued or outstanding under Article III, in an aggregate amount
not to exceed on any date the lesser of $10,000,000 and the Revolving
Commitment Amount; it being understood that the L/C Commitment is a
part of the Revolving Commitments, rather than a separate, independent
commitment.
L/C Fee Rate means, at any time for any Letter of Credit,
the rate per annum determined pursuant to Schedule 1.1; provided that
such rate shall be increased by 2% at any time an Event of Default
exists.
-14-
L/C Obligations means at any time the sum of (a) the
aggregate undrawn amount of all Letters of Credit then outstanding,
plus (b) the amount of all unreimbursed drawings under all Letters of
Credit, including all outstanding L/C Borrowings.
L/C-Related Documents means the Letters of Credit, the L/C
Applications, the L/C Amendment Applications and any other document
relating to any Letter of Credit, including any of the Issuing Lender's
standard form documents for letter of credit issuances.
Lenders means the several financial institutions from time
to time party to this Agreement. References to the "Lenders" shall
include BofA in its capacity as the Issuing Lender and in its capacity
as Swingline Lender; for purposes of clarification only, to the extent
that the Issuing Lender or the Swingline Lender may have any rights or
obligations in addition to those of the other Lenders due to its status
as Issuing Lender or Swingline Lender, its status as such will be
specifically referenced.
Lending Office means, as to any Lender, the office or
offices of such Lender specified as its "Lending Office" or "Domestic
Lending Office" or "Offshore Lending Office", as the case may be, on
Schedule 11.2, or such other office or offices as such Lender may from
time to time specify to the Company and the Administrative Agent.
Letter of Credit means the Existing Letters of Credit and
any letter of credit (whether a standby letter of credit or commercial
documentary letter of credit) Issued by the Issuing Lender pursuant to
Article III.
Leverage Ratio means at, as of any date, the ratio of (i)
the aggregate outstanding principal amount of all Funded Debt as of
such date to (ii) EBITDA for the Computation Period most recently ended
on or before such date for which financial statements have been
delivered pursuant to Section 7.1.
Lien means any security interest, mortgage, deed of trust,
pledge, hypothecation, assignment, charge or deposit arrangement,
encumbrance, lien (statutory or other) or preferential arrangement of
any kind or nature whatsoever in respect of any property (including
those created by, arising under or evidenced by any conditional sale or
other title retention agreement, the interest of a lessor under a
capital lease, or any financing lease having substantially the same
economic effect as any of the foregoing, but not including the interest
of a lessor under an operating lease).
Loan means an extension of credit by a Lender to the Company
under Article II or Article III in the form of a Revolving Loan,
Acquisition Loan, Swingline Loan or L/C Advance.
-15-
Loan Documents means this Agreement, any Notes, the Fee
Letter, the L/CRelated Documents, the Guaranty, the Collateral
Documents and all other documents delivered to the Administrative Agent
or any Lender in connection herewith.
Management Agreement means the Management Agreement, dated
as of September 12, 1996, between Xxxxxx X. Xxx Company and the
Company, as amended from time to time in accordance with Section 8.19.
Margin means at any time the rate per annum determined
pursuant to Schedule 1.1.
Margin Stock means "margin stock" as such term is defined in
Regulation G, T, U or X of the FRB.
Material Adverse Effect means (a) a material adverse change
in, or a material adverse effect upon, the operations, business,
properties, condition (financial or otherwise) or prospects of the
Company and its Subsidiaries taken as a whole; (b) a material
impairment of the ability of the Company or any Guarantor to perform
any of its obligations under any Loan Document; or (c) a material
adverse effect upon the legality, validity, binding effect or
enforceability against the Company or any Guarantor of any Loan
Document.
Minera Vindaluz means Minera Vindaluz, S.A. de C.V., a
corporation organized under the laws of Mexico.
Mortgage means (a) each mortgage or deed of trust listed on
Schedule 6.19(b) and (b) any other mortgage, leasehold mortgage, deed
of trust or similar document granting a Lien on real property in
appropriate form for filing or recording in the applicable jurisdiction
and otherwise reasonably satisfactory to the Administrative Agent.
Multiemployer Plan means a "multiemployer plan", within the
meaning of Section 4001(a)(3) of ERISA, with respect to which the
Company or any ERISA Affiliate may have any liability.
Netherlands Share Pledge Agreement means the Deed of Pledge
dated as of November 11, 1996 between ROV Holding and the
Administrative Agent, a copy of which is attached hereto as Exhibit
H-4.
Non-Dollar Letter of Credit - see Section 3.10.
Non-Use Fee Rate means at any time the rate per annum
determined pursuant to Schedule 1.1.
-16-
Note means a promissory note executed by the Company in
favor of a Lender pursuant to subsection 2.2(b), in substantially the
form of Exhibit D.
Notice of Borrowing means a notice in substantially the form
of Exhibit A.
Notice of Conversion/Continuation means a notice in
substantially the form of Exhibit B.
Obligations means all advances, debts, liabilities,
obligations, covenants and duties arising under any Loan Document owing
by the Company to any Lender, the Administrative Agent, or any
Indemnified Person, whether direct or indirect (including those
acquired by assignment), absolute or contingent, due or to become due,
or now existing or hereafter arising.
OECD means the Organization for Economic Cooperation and
Development.
Offshore Rate means, for any Interest Period, with respect
to Offshore Rate Loans comprising part of the same Borrowing, the rate
of interest per annum (rounded upward, if necessary, to the next 1/16th
of 1%) determined by the Administrative Agent as follows:
Offshore Rate = IBOR
------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Reserve Percentage" means for any day for any
Interest Period the maximum reserve percentage (expressed as
a decimal, rounded upward, if necessary, to the next 1/100th
of 1%) in effect on such day (whether or not applicable to
any Lender) under regulations issued from time to time by
the FRB for determining the maximum reserve requirement
(including any emergency, supplemental or other marginal
reserve requirement) with respect to Eurocurrency funding
(currently referred to as "Eurocurrency liabilities"); and
"IBOR" means the rate of interest per annum determined by the
Administrative Agent as the rate at which Dollar deposits in
the approximate amount of BofA's Offshore Rate Loan for such
Interest Period would be offered by BofA's Grand Cayman
Branch, Grand Cayman B.W.I. (or such other office as may be
designated for such purpose by BofA), to major banks in the
offshore Dollar interbank market at their request at
approximately 11:00 a.m. (New York City time) two Business
Days prior to the commencement of such Interest Period.
-17-
The Offshore Rate shall be adjusted automatically as to all
Offshore Rate Loans then outstanding as of the effective date of any
change in the Eurodollar Reserve Percentage.
Offshore Rate Loan means a Loan that bears interest based on
the Offshore Rate.
Organization Documents means, (a) for any domestic
corporation, the certificate or articles of incorporation, the bylaws,
any certificate of determination or instrument relating to the rights
of preferred shareholders of such corporation, any shareholder rights
agreement, and all applicable resolutions of the board of directors (or
any committee thereof) of such corporation and (b) for any foreign
corporation, the equivalent documents.
Other Taxes means any present or future stamp, court or
documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or from the
execution, delivery, performance, enforcement or registration of, or
otherwise with respect to, this Agreement or any other Loan Document.
Overnight Rate - see subsection 3.10(g).
Participant - see subsection 11.8(c).
PBGC means the Pension Benefit Guaranty Corporation, or any
Governmental Authority succeeding to any of its principal functions
under ERISA.
Pension Plan means a pension plan (as defined in Section
3(2) of ERISA) subject to Title IV of ERISA with respect to which the
Company or any ERISA Affiliate may have any liability.
Percentage means, as to any Lender, the percentage which (a)
the amount of such Lender's Commitment is of (b) the aggregate amount
of all of the Lenders' Commitments (or, if the Commitments have
terminated, which the sum of such Lender's Loans plus such Lender's
participation interest in Swingline Loans and L/C Obligations is of the
aggregate amount of all Loans and L/C Obligations). The initial
Percentage for each Lender is set forth across from such Lender's name
on Schedule 2.1.
Permitted Liens - see Section 8.1.
Permitted Swap Obligations means all obligations (contingent
or otherwise) of the Company or any Subsidiary existing or arising
under Swap Contracts, provided that each of the following criteria is
satisfied: (a) such obligations are (or were) entered into by such
Person in the ordinary course of business for the purpose of directly
mitigating risks associated with liabilities, commitments or assets
held or reasonably anticipated by
-18-
such Person, or changes in the value of securities issued by such
Person in conjunction with a securities repurchase program not
otherwise prohibited hereunder, and not for purposes of speculation or
taking a "market view;" and (b) such Swap Contracts do not contain (i)
any provision ("walk-away" provision) exonerating the non-defaulting
party from its obligation to make payments on outstanding transactions
to the defaulting party or (ii) any provision creating or permitting
the declaration of an event of default, termination event or similar
event upon the occurrence of an Event of Default hereunder (other than
an Event of Default under subsection 9.1(a)).
Person means an individual, partnership, corporation,
limited liability company, business trust, joint stock company, trust,
unincorporated association, joint venture or Governmental Authority.
Plan means an employee benefit plan (as defined in Section
3(3) of ERISA) with respect to which the Company may have any
liability.
Pledge Agreement means the Company Pledge Agreement and each
Subsidiary Pledge Agreement.
Present Fair Saleable Value means, at any time, the amount
that could be obtained at such time by an independent willing seller
from an independent willing buyer if the assets of each of the Company
and each Guarantor are sold with reasonable promptness in an
arm's-length transaction under present conditions for the sale of
comparable assets.
Qualified Foreign Credit Facility means a credit facility
provided by a Lender or an Affiliate of a Lender to any Foreign
Subsidiary which (i) is guarantied by the Company, (ii) is permitted
under subsection 8.5(d), and (iii) the Company has specified (in a
written notice to the Administrative Agent) is entitled to the benefit
of the Guaranty and the Collateral Documents.
Qualified Foreign Lender means any Lender or any Affiliate
of a Lender which is a party to a Qualified Foreign Credit Facility.
RCRA means the Resource Conservation and Recovery Act, 42
U.S.C. Section 690, et seq.
Release means a "release", as such term is defined in
CERCLA.
Replacement Lender - see Section 4.7.
Reportable Event means any of the events set forth in
Section 4043(b) of ERISA or the regulations thereunder, other than any
such event for which the 30-day
-19-
notice requirement under ERISA has been waived in regulations issued by
the PBGC or administrative pronouncements.
Required Lenders means, at any time, Lenders having an
aggregate Percentage of 51% or more.
Requirement of Law means, as to any Person, any law
(statutory or common), treaty, rule or regulation or determination of
an arbitrator or of a 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 means the chief executive officer or the
president of the Company, or any other officer having substantially the
same authority and responsibility or the chief financial officer or the
treasurer of the Company, or any other officer having substantially the
same authority and responsibility.
Revolving Commitment means, as to any Lender, the commitment
of such Lender to make Revolving Loans pursuant to subsection 2.1(a).
The initial amount of each Lender's Revolving Commitment is set forth
across from such Lender's name on Schedule 2.1.
Revolving Commitment Amount means $90,000,000, as reduced
from time to time in accordance with the terms hereof.
Revolving Commitment Reduction Date - see subsection 2.6(a).
Revolving Loan - see subsection 2.1(a).
Revolving Outstandings means, at any time, the sum of the
principal amount of all outstanding Revolving Loans and Swingline Loans
plus the Effective Amount of all L/C Obligations.
Revolving Termination Date means the earlier to occur of (a)
December 31, 2002; and (b) the date on which the Revolving Commitments
terminate in accordance with the provisions of this Agreement.
ROV Holding means ROV Holding, Inc., a Delaware corporation
and a Subsidiary.
SEC means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal functions.
-20-
Security Agreement means the Security Agreement dated as of
September 12, 1996 among the Company, ROV Holding, any other Person
that becomes a party thereto and the Administrative Agent, a copy of
which is attached hereto as Exhibit E.
Senior Subordinated Notes means the 10-1/4% Senior
Subordinated Notes issued by the Company pursuant to the Senior
Subordinated Note Indenture.
Senior Subordinated Note Indenture means the Indenture dated
as of October 22, 1996 among the Company, ROV Holding and Marine
Midland Bank, as Trustee.
Senior Subordinated Note Prepayment means the prepayment by
the Company of $35,000,000 of principal of the Senior Subordinated
Notes (plus accrued and unpaid interest thereon and a redemption
premium of $3,237,500) on December 30, 1997.
Standby Letter of Credit means any Letter of Credit that is
not a Commercial Letter of Credit.
Stated Liabilities means, at any time, the recorded
liabilities (including Contingent Liabilities that would be recorded in
accordance with GAAP) of each of the Company and of each Guarantor at
such time after giving effect to the transactions contemplated under
this Agreement, determined in accordance with GAAP consistently
applied, together with the amount, without duplication, of all Loans
and Contingent Liabilities.
Subordinated Debt means (a) the Senior Subordinated Notes
and (b) all other unsecured Indebtedness of the Company for money
borrowed which is subject to, and is only entitled to the benefits of,
terms and provisions (including maturity, amortization, acceleration,
interest rate, sinking fund, covenant, default and subordination
provisions) satisfactory in form and substance to the Required Lenders,
in each case as evidenced by their written approval thereof (which may
be granted or withheld in their sole discretion).
Subsidiary of a Person means any corporation, association,
partnership, limited liability company, joint venture or other business
entity of which more than 50% of the voting stock, membership interests
or other equity interests is owned or controlled directly or indirectly
by such Person, or one or more of the Subsidiaries of such Person, or a
combination thereof. Unless the context otherwise clearly requires,
references herein to a "Subsidiary" refer to a Subsidiary of the
Company.
Subsidiary Pledge Agreement means the U.K. Charge, the Hong
Kong Charge, the Netherlands Share Pledge Agreement, the Canadian Share
Pledge Agreement and each other agreement pursuant to which any
Subsidiary pledges to the Administrative Agent shares of stock owned by
it or Indebtedness owing to it.
-21-
Surety Instruments means all letters of credit (including
standby and commercial), banker's acceptances, bank guaranties, surety
bonds and similar instruments.
Swap Contract means any agreement, whether or not in
writing, relating to any transaction that is a rate swap, basis swap,
forward rate transaction, commodity swap, commodity option, equity or
equity index swap or option, bond, note or xxxx option, interest rate
option, forward foreign exchange transaction, cap, collar or floor
transaction, currency swap, cross-currency rate swap, swaption,
currency option or any other, similar transaction (including any option
to enter into any of the foregoing) or any combination of the
foregoing, and, unless the context otherwise clearly requires, any
master agreement relating to or governing any or all of the foregoing.
Swap Termination Value means, in respect of any one or more
Swap Contracts, after taking into account the effect of any legally
enforceable netting agreement relating to such Swap Contracts, (a) for
any date on or after the date such Swap Contracts have been closed out
and termination value(s) determined in accordance therewith, such
termination value(s), and (b) for any date prior to the date referenced
in clause (a) the amount(s) determined as the xxxx-to-market value(s)
for such Swap Contracts, as determined based upon one or more
mid-market or other readily available quotations provided by any
recognized dealer in such Swap Contracts (which may include any
Lender).
Swingline Lender means BofA in its capacity as lender of
Swingline Loans together with any replacement lender of Swingline Loans
arising under Section 10.9.
Swingline Loan has the meaning specified in subsection
2.5(a).
Taxes means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, charges or withholdings, fees
or similar charges and all liabilities with respect thereto, excluding,
in the case of each Lender and the Administrative Agent, such taxes
(including income taxes, branch profit taxes or franchise taxes) as are
imposed on or measured by such Lender's or the Administrative Agent's,
as the case may be, net income by the jurisdiction (or any political
subdivision thereof) under the laws of which such Lender or the
Administrative Agent, as the case may be, is organized, maintains a
lending office or conducts business (collectively, "Excluded Taxes").
Type of Loan means the characterization of a Loan as a Base
Rate Loan or an Offshore Rate Loan.
U.K. Charge means the Deed of Charge and Memorandum of
Deposit dated September 12, 1996 between ROV Holding and the
Administrative Agent, a copy of which is attached hereto as Exhibit
H-1.
-22-
Unfunded Pension Liability means the excess of a Pension
Plan's benefit liabilities under Section 4001(a)(16) of ERISA, over the
current value of such Pension Plan's assets, determined in accordance
with the assumptions used for funding such Pension Plan pursuant to
Section 412 of the Code for the applicable plan year.
United States and U.S. each means the United States of
America.
Unmatured Event of Default means any event or circumstance
which, with the giving of notice, the lapse of time, or both, would (if
not cured or otherwise remedied during such time) constitute an Event
of Default.
Vidor Battery means Vidor Battery Company, a Wisconsin
corporation.
Voting Stock means, with respect to any corporation, the
capital stock of such corporation having general voting power under
ordinary circumstances to elect directors to the board of directors of
such corporation, but shall not include any capital stock that has or
would have such voting power solely by reason of the happening of any
contingency.
Wholly-Owned Subsidiary means any corporation in which
(other than director's qualifying shares or due to native ownership
requirements) 100% of the capital stock of each class is owned
beneficially and of record by the Company or by one or more other
Wholly-Owned Subsidiaries.
Zoe-Phos International means Zoe-Phos International N.V., a
corporation organized under the laws of the Netherlands Antilles.
1.2 Other Interpretive Provisions. (a) The meanings of
defined terms are equally applicable to the singular and plural forms
of the defined terms.
(b) The words "hereof", "herein", "hereunder" and similar
words refer to this Agreement as a whole and not to any particular provision of
this Agreement; and subsection, Section, Schedule and Exhibit references are to
this Agreement unless otherwise specified.
(c) (i) The term "documents" includes any and all
instruments, documents, agreements, certificates, indentures, notices and other
writings, however evidenced.
(ii) The term "including" is not limiting and means
"including without limitation."
(iii) In the computation of periods of time from a
specified date to a later specified date, the word "from" means "from
and including"; the words "to" and "until" each mean "to but
excluding"; and the word "through" means "to and including."
-23-
(d) Unless otherwise expressly provided herein, (i)
references to agreements (including this Agreement) and other contractual
instruments shall be deemed to include all subsequent amendments and other
modifications thereto, but only to the extent such amendments and other
modifications are not prohibited by the terms of any Loan Document and (ii)
references to any statute or regulation are to be construed as including all
statutory and regulatory provisions consolidating, amending, replacing,
supplementing or interpreting the statute or regulation.
(e) The captions and headings of this Agreement are for
convenience of reference only and shall not affect the interpretation of this
Agreement.
(f) This Agreement and the other Loan Documents may use
several different limitations, tests or measurements to regulate the same or
similar matters. All such limitations, tests and measurements are cumulative and
shall each be performed in accordance with their terms.
1.3 Accounting Principles.
(a) Unless the context otherwise clearly requires, all
accounting terms not expressly defined herein shall be construed, and all
financial computations required under this Agreement shall be made, in
accordance with GAAP, consistently applied; provided that if the Company
notifies the Administrative Agent that the Company wishes to amend any covenant
in Article VIII or any corresponding definition to eliminate the effect of any
change in GAAP on the operation of such covenant (or if the Administrative Agent
notifies the Company that the Required Lenders wish to amend Article VIII or any
corresponding definition for such purpose), then the Company's compliance with
such covenant shall be determined on the basis of GAAP in effect immediately
before the relevant change in GAAP became effective, until either such notice is
withdrawn or such covenant is amended in a manner satisfactory to the Company
and the Required Lenders.
(b) References herein to "fiscal year" and "fiscal quarter"
refer to such fiscal periods of the Company.
1.4 Reallocation of Loans and Commitments.
(a) The Company and each Lender agree that, effective on the
Effective Date, this Agreement amends and restates in its entirety the Existing
Agreement. On the Effective Date, the Commitments of the Lenders shall be
reallocated in accordance with the terms hereof and each Lender shall have a
direct or participation share equal to its Percentage of all outstanding Credit
Extensions.
(b) To facilitate the reallocation described in subsection
(a), on the Effective Date, (i) all loans under the Existing Agreement shall be
deemed to be Revolving Loans hereunder, (ii) each Lender which is a party to the
Existing Agreement shall transfer to the
-24-
Administrative Agent an amount equal to the excess, if any, of such Lender's
Percentage of all outstanding Revolving Loans hereunder (including any Revolving
Loans requested by the Company on the Effective Date) over the amount of all of
such Lender's loans under the Existing Agreement, (iii) each Lender which is not
a party to the Existing Agreement shall transfer to the Administrative Agent an
amount equal to such Lender's Percentage of all outstanding Revolving Loans
hereunder (including any Revolving Loans requested by the Company on the
Effective Date), (iv) the Administrative Agent shall apply the funds received
from the Lenders pursuant to clauses (ii) and (iii), first, on behalf of the
Lenders (pro rata according to the amount of the loans each is required to
purchase to achieve the reallocation described in subsection (a)), to purchase
from each Existing Lender which is not a party hereto the loans of such Existing
Lender under the Existing Agreement (and, if applicable to purchase from any
Existing Lender which is a party hereto but which has loans under the Existing
Agreement in excess of such Lender's Percentage of all then-outstanding
Revolving Loans hereunder (including any Revolving Loans requested by the
Company on the Effective Date), a portion of such loans equal to such excess),
second, to pay to each Existing Lender all interest, fees and other amounts
(including amounts payable to Section 4.4 of the Existing Agreement, assuming
for such purpose that the loans under the Existing Agreement were prepaid rather
than reallocated on the Effective Date) owed to such Existing Lender under the
Existing Agreement (whether or not otherwise then due) and, third, as the
Company shall direct, (v) the Company shall select new Interest Periods to apply
to all Revolving Loans hereunder (or, to the extent the Company fails to do so,
such Revolving Loans shall be Base Rate Loans).
ARTICLE II
THE CREDITS
2.1 Amounts and Terms of Commitments.
(a) The Revolving Facility. Each Lender severally agrees, on
the terms and conditions set forth herein, to make loans to the Company (each
such loan, a "Revolving Loan") from time to time on any Business Day during the
period from the Effective Date to the Revolving Termination Date, in an
aggregate amount not to exceed at any time outstanding such Lender's Percentage
of the Revolving Commitment Amount; provided that, after giving effect to any
Borrowing of Revolving Loans, the Revolving Outstandings shall not exceed the
Revolving Commitment Amount. Within the foregoing limits, and subject to the
other terms and conditions hereof, the Company may borrow under this subsection
2.1(a), prepay under Section 2.7 or 2.8 and reborrow under this subsection
2.1(a).
(b) The Acquisition Facility. Each Lender severally agrees,
on the terms and conditions set forth herein, to make loans to the Company (each
such loan, an "Acquisition Loan"), from time to time on any Business Day during
the period from the Effective Date to December 31, 1998, in an aggregate amount
not to exceed such Lender's Percentage of the Acquisition Commitment Amount as
in effect on such day.
-25-
2.2 Loan Accounts. (a) The Loans made by each Lender and the Letters of
Credit Issued by the Issuing Lender shall be evidenced by one or more accounts
or records maintained by such Lender or the Issuing Lender, as the case may be,
in the ordinary course of business. The accounts or records maintained by the
Administrative Agent, the Issuing Lender and each Lender shall be conclusive
(absent manifest error) as to the amount of the Loans made by the Lenders to the
Company and the Letters of Credit Issued for the account of the Company, and the
interest and payments thereon. Any failure to record or any error in doing so
shall not, however, limit or otherwise affect the obligation of the Company
hereunder to pay any amount owing with respect to any Loan or any Letter of
Credit.
(b) Upon the request of any Lender made through the
Administrative Agent, the Loans made by such Lender may be evidenced by one or
more Notes in addition to loan accounts. Each such Lender shall endorse on the
schedules annexed to its Note(s) the date, amount and maturity of each Loan made
by it and the amount of each payment of principal made by the Company with
respect thereto. Each such Lender is irrevocably authorized by the Company to
endorse its Note(s) and each Lender's record shall be conclusive absent manifest
error; provided, however, that the failure of a Lender to make, or an error in
making, a notation thereon with respect to any Loan shall not limit or otherwise
affect the obligations of the Company hereunder or under any Note to such
Lender.
2.3 Procedure for Borrowing. (a) Each Borrowing shall be made upon the
Company's irrevocable written notice delivered to the Administrative Agent in
the form of a Notice of Borrowing (which notice must be received by the
Administrative Agent (i) prior to 11:00 a.m. (Chicago time) three Business Days
prior to the requested Borrowing Date, in the case of Offshore Rate Loans and
(ii) prior to 11:00 a.m. (Chicago time) one Business Day prior to the requested
Borrowing Date, in the case of Base Rate Loans), specifying:
(A) the amount of the Borrowing, which shall be
in an amount of $1,000,000 or a higher integral multiple of
$250,000;
(B) the requested Borrowing Date, which shall be
a Business Day;
(C) the Type of Loans comprising the Borrowing;
and
(D) in the case of Offshore Rate Loans, the
duration of the Interest Period applicable to such
Borrowing.
(b) The Administrative Agent will promptly notify each
Lender of its receipt of any Notice of Borrowing and of the amount of such
Lender's share of the related Borrowing.
(c) Each Lender will make the amount of its share of each
Borrowing available to the Administrative Agent for the account of the Company
at the Agent's Payment Office by 1:00 p.m. (Chicago time) on the Borrowing Date
requested by the Company in funds
-26-
immediately available to the Administrative Agent. The proceeds of all Loans
will then be made available to the Company by the Administrative Agent at such
office by crediting the account of the Company on the books of BofA 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.
(d) After giving effect to any Borrowing, there may not be
more than twelve different Interest Periods in effect.
2.4 Conversion and Continuation Elections. (a) The Company may, upon
irrevocable written notice to the Administrative Agent in accordance with
subsection 2.4(b):
(i) elect to convert, on any Business Day, any Base Rate
Loans (in an aggregate amount of $1,000,000 or a higher integral
multiple of $250,000) into Offshore Rate Loans;
(ii) elect to convert, on the last day of the applicable
Interest Period, any Offshore Rate Loans (or any part thereof in an
aggregate amount of $1,000,000 or a higher integral multiple of
$250,000) into Base Rate Loans; or
(iii) elect to continue, as of the last day of the
applicable Interest Period, any Offshore Rate Loans having Interest
Periods expiring on such day (or any part thereof in an aggregate
amount of $1,000,000 or a higher integral multiple of $250,000);
provided that if at any time the aggregate amount of Offshore Rate Loans in
respect of any Borrowing shall have been reduced, by payment, prepayment or
conversion of part thereof, to be less than $1,000,000, such Offshore Rate Loans
shall automatically convert into Base Rate Loans.
(b) The Company shall deliver a Notice of
Conversion/Continuation to be received by the Administrative Agent not later
than (i) 11:00 a.m. (Chicago time) at least three Business Days in advance of
the Conversion/Continuation Date, if the Loans are to be converted into or
continued as Offshore Rate Loans and (ii) not later than 11:00 a.m. (Chicago
time) one Business Day prior to the Conversion/Continuation Date, if the Loans
are to be converted into Base Rate Loans, specifying:
(A) the proposed Conversion/Continuation Date;
(B) the aggregate principal amount of Loans to be
converted or continued;
(C) the Type of Loans resulting from the proposed
conversion or continuation; and
-27-
(D) in the case of conversions into Offshore Rate
Loans, the duration of the requested Interest Period.
(c) If upon the expiration of any Interest Period applicable
to Offshore Rate Loans, the Company has failed to select timely a new Interest
Period to be applicable to such Offshore Rate Loans, the Company shall be deemed
to have elected to convert such Offshore Rate Loans into Base Rate Loans
effective as of the expiration date of such Interest Period.
(d) The Administrative Agent will promptly notify each
Lender of its receipt of a Notice of Conversion/Continuation or, if no timely
notice is provided by the Company, the Administrative Agent will promptly notify
each Lender of the details of any automatic conversion. All conversions and
continuations shall be made ratably according to the Percentages of the Lenders.
(e) Unless the Required Lenders otherwise agree, during the
existence of an Event of Default or Unmatured Event of Default, the Company may
not elect to have a Loan converted into or continued as an Offshore Rate Loan.
(f) After giving effect to any conversion or continuation of
Loans, there may not be more than twelve different Interest Periods in effect.
2.5 Swingline Loans.
(a) Subject to the terms and conditions hereof, the
Swingline Lender may, in its sole discretion (subject to subsection 2.5(b)),
make a portion of the Revolving Commitments available to the Company by making
swingline loans (each such loan, a "Swingline Loan") to the Company on any
Business Day during the period from the Effective Date to the Revolving
Termination Date in accordance with the procedures set forth in this Section 2.5
in an aggregate principal amount at any one time outstanding not to exceed the
lesser of (x) the Revolving Commitment Amount and (y) $5,000,000,
notwithstanding the fact that such Swingline Loans, when aggregated with the
Swingline Lender's outstanding Revolving Loans and direct or participation
interest in Letters of Credit, may exceed the Swingline Lender's Percentage of
the Revolving Commitment Amount; provided that at no time shall Revolving
Outstandings exceed the Revolving Commitment Amount. Subject to the other terms
and conditions hereof, the Company may borrow under this subsection 2.5(a),
prepay pursuant to subsection 2.5(d) and reborrow pursuant to this subsection
2.5(a) from time to time; provided that the Swingline Lender shall not be
obligated to make any Swingline Loan.
(b) The Company shall provide the Administrative Agent and
the Swingline Lender irrevocable written notice (or notice by a telephone call
confirmed promptly by facsimile) of any Swingline Loan requested hereunder
(which notice must be received by the Swingline Lender and the Administrative
Agent prior to 12:00 p.m. (Chicago time) on the requested Borrowing Date)
specifying (i) the amount to be borrowed, and (ii) the requested
-28-
Borrowing Date, which must be a Business Day. Upon receipt of such notice, the
Swingline Lender will promptly confirm with the Administrative Agent (by
telephone or in writing) that the Administrative Agent has received a copy of
such notice from the Company and, if not, the Swingline Lender will provide the
Administrative Agent with a copy thereof. If and only if the Administrative
Agent notifies the Swingline Lender on the proposed Borrowing Date that it may
make available to the Company the amount of the requested Swingline Loan, then,
subject to the terms and conditions hereof, the Swingline Lender may make the
amount of the requested Swingline Loan available to the Company by crediting the
account of the Company on the books of BofA with the amount of such Swingline
Loan. The Administrative Agent will not so notify the Swingline Lender if the
Administrative Agent has knowledge that (A) the limitations set forth in the
proviso set forth in the first sentence of subsection 2.5(a) are being violated
or would be violated by such Swingline Loan or (B) one or more conditions
specified in Article V is not then satisfied. Each Swingline Loan shall be in an
aggregate principal amount equal to $100,000 or a higher integral multiple
thereof. The Swingline Lender will promptly notify the Administrative Agent of
the amount of each Swingline Loan.
(c) Principal of and accrued interest on each Swingline Loan
shall be due and payable (i) on demand made by the Swingline Lender at any time
upon one Business Day's prior notice to the Company furnished at or before 10:45
a.m. (Chicago time), and (ii) in any event on the Revolving Termination Date. In
addition, interest on each Swingline Loan shall be due and payable on each
Interest Payment Date. Interest on Swingline Loans shall be for the sole account
of the Swingline Lender (except to the extent that the other Lenders have funded
the purchase of participations therein pursuant to subsection 2.5(e)).
(d) The Company may, from time to time on any Business Day,
make a voluntary prepayment, in whole or in part, of the outstanding principal
amount of any Swingline Loan, without incurring any premium or penalty; provided
that
(i) each such voluntary prepayment shall require
prior written notice given to the Administrative Agent and the
Swingline Lender no later than 1:00 p.m. (Chicago time) on the day on
which the Company intends to make a voluntary prepayment, and
(ii) each such voluntary prepayment shall be in
an amount equal to $100,000 or a higher integral multiple thereof.
Voluntary prepayments of Swingline Loans shall be made by the Company
to the Swingline Lender at such office as the Swingline Lender may designate by
notice to the Company from time to time. All such payments shall be made in
Dollars and in immediately available funds no later than 4:00 p.m. (Chicago
time) on the date specified by the Company pursuant to clause (i) above (and any
payment received later than such time shall be deemed to have been received on
the next Business Day). The Swingline Lender will promptly notify the
Administrative Agent of the amount of each prepayment of Swingline Loans.
-29-
(e) If (i) any Swingline Loan shall remain outstanding at
11:00 a.m. (Chicago time) on the Business Day immediately prior to a Business
Day on which Swingline Loans are due and payable pursuant to subsection 2.5(c)
and by such time on such Business Day the Administrative Agent shall have
received neither (A) a Notice of Borrowing delivered pursuant to Section 2.3
requesting that Revolving Loans be made pursuant to subsection 2.1(a) on such
following Business Day in an amount at least equal to the aggregate principal
amount of such Swingline Loans, nor (B) any other notice indicating the
Company's intent to repay such Swingline Loans with funds obtained from other
sources, or (ii) any Swingline Loans shall remain outstanding during the
existence of an Unmatured Event of Default or Event of Default and the Swingline
Lender shall in its sole discretion notify the Administrative Agent that the
Swingline Lender desires that such Swingline Loans be converted into Revolving
Loans, then the Administrative Agent shall be deemed to have received a Notice
of Borrowing from the Company pursuant to Section 2.3 requesting that Base Rate
Loans be made pursuant to subsection 2.1(a) on the following Business Day in an
amount equal to the aggregate amount of such Swingline Loans, and the procedures
set forth in subsections 2.3(b) and 2.3(c) shall be followed in making such Base
Rate Loans; provided that such Base Rate Loans shall be made notwithstanding the
Company's failure to comply with Section 5.2; and provided, further, that if a
Borrowing of Revolving Loans becomes legally impractical and if so required by
the Swingline Lender at the time such Revolving Loans are required to be made by
the Lenders in accordance with this subsection 2.5(e), each Lender agrees that
in lieu of making Revolving Loans as described in this subsection 2.5(e), such
Lender shall purchase a participation from the Swingline Lender in the
applicable Swingline Loans in an amount equal to such Lender's Percentage of
such Swingline Loans, and the procedures set forth in subsections 2.3(b) and
2.3(c) shall be followed in connection with the purchases of such
participations. The proceeds of such Base Rate Loans (or participations
purchased) shall be delivered by the Administrative Agent to the Swingline
Lender to repay such Swingline Loans (or as payment for such participations). A
copy of each notice given by the Administrative Agent to the Lenders pursuant to
this subsection 2.5(e) with respect to the making of Loans, or the purchases of
participations, shall be promptly delivered by the Administrative Agent to the
Company. Each Lender's obligation in accordance with this Agreement to make the
Revolving Loans, or purchase the participations, as contemplated by this
subsection 2.5(e), shall be absolute and unconditional and shall not be affected
by any circumstance, including (1) any set-off, counterclaim, recoupment,
defense or other right which such Lender may have against the Swingline Lender,
the Company or any other Person for any reason whatsoever; (2) the occurrence or
continuance of an Unmatured Event of Default, an Event of Default or a Material
Adverse Effect; or (3) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing.
2.6 Termination or Reduction of Commitments.
(a) Scheduled Reductions of Revolving Commitment Amount. The
Revolving Commitment Amount shall be reduced on each of the following dates
(each a "Revolving Commitment Reduction Date") by the amount set forth opposite
such date:
-30-
Revolving Commitment Reduction
Reduction Date Amount
-------------------- ----------
December 31, 1999 $10,000,000
December 31, 2000 $15,000,000
December 31, 2001 $15,000,000.
(b) Reduction of Acquisition Commitment Amount. On each date
that the Company borrows Acquisition Loans, the Acquisition Commitment Amount
shall be reduced by the aggregate amount of such Acquisition Loans.
(c) Termination of the Acquisition Commitment Amount. At the
close of business on December 31, 1998, the Acquisition Commitment Amount shall
be reduced to zero and the Lenders shall have no further obligation to make
Acquisition Loans.
(d) Voluntary Reduction or Termination of Commitments. The
Company may, upon not less than three Business Days' prior written notice to the
Administrative Agent, (i) permanently reduce the Revolving Commitment Amount to
an amount which is not less than the Revolving Outstandings or (ii) permanently
reduce the Acquisition Commitment Amount. Any such reduction shall be in an
aggregate amount of $2,000,000 or a higher integral multiple of $1,000,000. The
Company may at any time on like notice (i) terminate the Revolving Commitments
upon payment in full of all Revolving Loans and Swingline Loans and Cash
Collateralization in full of all L/C Obligations or (ii) terminate the
Acquisition Commitments.
(e) All Reductions or Terminations of Commitments. Once
reduced in accordance with this Section, neither the Revolving Commitment Amount
nor the Acquisition Commitment Amount may be increased without the consent of
all Lenders. Any reduction of the Revolving Commitments or the Acquisition
Commitments shall be applied to the Revolving Commitment or the Acquisition
Commitment, as the case may be, of each Lender according to its Percentage. All
accrued commitment fees to, but not including, the effective date of any
reduction or termination of the Revolving Commitments or the Acquisition
Commitments shall be paid on the effective date of such reduction or
termination.
2.7 Optional Prepayments. (a) Subject to Section 4.4, the Company may,
from time to time, upon irrevocable written notice to the Administrative Agent
(which notice must be received by 11:00 a.m. (Chicago time) one Business Day
prior to the requested day of prepayment in the case of Base Rate Loans and
11:00 a.m. (Chicago time) three Business Days prior to the date of prepayment in
the case of Offshore Rate Loans), prepay any Borrowing of Revolving Loans or
Acquisition Loans in whole or in part, without premium or penalty, in an
aggregate amount of $1,000,000 or a higher integral multiple of $250,000.
(b) Each notice of prepayment shall specify the date and
amount of such prepayment and the Loans to be prepaid. The Administrative Agent
will promptly notify each Lender of its receipt of any such notice and of such
Lender's share of such prepayment. If any
-31-
such notice is given by the Company, the Company shall make such prepayment and
the payment amount specified in such notice shall be due and payable on the date
specified therein, together with accrued interest to such date on the amount
prepaid and any amounts required pursuant to Section 4.4. All prepayments of
Acquisition Loans shall be applied, at the Company's election (expressed in
writing to the Administrative Agent no later than one Business Day prior to such
prepayment), (x) against one or both of the next two unpaid principal
installments of the Acquisition Loans, (y) pro rata to the unpaid installments
of the Acquisition Loans or (z) in such combination of the alternatives
expressed in clauses (x) and (y) as the Company shall specify in writing to the
Administrative Agent (it being understood that if the Company fails to give any
notice as to application of such prepayment, such prepayment will be applied as
set forth in clause (y)).
2.8 Mandatory Prepayments of Revolving Loans. If, on any Revolving
Commitment Reduction Date, the Revolving Outstandings exceed the Revolving
Commitment Amount (after giving effect to the reduction of the Revolving
Commitment Amount on such date), the Company shall immediately prepay an
outstanding principal amount of the Revolving Loans, Swingline Loans and/or L/C
Advances in an amount equal to such excess (and any such prepayment shall be
subject to the provisions of Section 4.4).
2.9 Repayment.
(a) The Acquisition Facility Credit. The Company shall repay
the Acquisition Loans in quarterly installments on the last day of each calendar
quarter, commencing on March 31, 1999, in an amount equal to the applicable
percentage set forth below of the total amount of the Acquisition Loans
outstanding on December 31, 1998:
Date Percentage
---- ----------
3/31/99 through 12/31/00 5.0%
3/31/01 through 12/31/02 7.5%.
(b) The Revolving Facility. The Company shall pay to the
Administrative Agent, for the account of the Lenders, on the Revolving
Termination Date the aggregate principal amount of all Revolving Loans
outstanding on such date.
2.10 Interest. (a) Each Revolving Loan and Acquisition Loan shall bear
interest on the outstanding principal amount thereof from the applicable
Borrowing Date at a rate per annum equal to the Base Rate or the Offshore Rate,
as the case may be (and subject to the Company's right to convert to the other
Type of Loans under Section 2.4), plus, in the case of Offshore Rate Loans, the
Margin. Each Swingline Loan shall bear interest on the outstanding principal
amount thereof from the applicable Borrowing Date at a rate per annum equal to
the Base Rate.
(b) Interest on each Loan shall be paid in arrears on each
Interest Payment Date therefor. Interest shall also be paid on the date of any
prepayment of Offshore Rate Loans
-32-
under Section 2.7 or 2.8 for the portion of the Loans so prepaid and upon
payment (including prepayment) in full thereof.
(c) Notwithstanding subsection (a) of this Section, during
the existence of any Event of Default, the Company shall pay interest (after as
well as before entry of judgment thereon to the extent permitted by law) on the
principal amount of all outstanding Loans and, to the extent permitted by
applicable law, on any other amount payable hereunder or under any other Loan
Document, at a rate per annum equal to the rate otherwise applicable thereto
pursuant to the terms hereof or such other Loan Document (or, if no such rate is
specified, the Base Rate) plus 2%. All such interest shall be payable on demand.
(d) Anything herein to the contrary notwithstanding, the
obligations of the Company to any Lender hereunder shall be subject to the
limitation that payments of interest shall not be required for any period for
which interest is computed hereunder to the extent (but only to the extent) that
contracting for or receiving such payment by such Lender would be contrary to
the provisions of any law applicable to such Lender limiting the highest rate of
interest that may be lawfully contracted for, charged or received by such
Lender, and in such event the Company shall pay such Lender interest at the
highest rate permitted by applicable law.
2.11 Fees. In addition to certain fees described in Section 3.8:
(a) Arranger and Agency Fees. The Company shall pay
arrangement fees to the Arranger for the Arranger's own account and agency fees
to the Administrative Agent for the Administrative Agent's own account, in each
case as required by the letter agreement (the "Fee Letter") among the Company,
the Arranger and the Administrative Agent dated as of November 4, 1997.
(b) Commitment Fees. The Company shall pay to the
Administrative Agent for the account of each Lender a commitment fee calculated
at a rate per annum equal to the Non-Use Fee Rate on the average daily unused
portion of such Lender's Percentage of the Revolving Commitment Amount and the
Acquisition Commitment Amount, computed on a quarterly basis in arrears on the
last Business Day of each calendar quarter based upon the daily utilization for
that quarter as calculated by the Administrative Agent. For purposes of
calculating utilization under this subsection, the Revolving Commitment Amount
shall be deemed used to the extent of the principal amount of all Revolving
Loans then outstanding (but Swingline Loans shall not constitute usage of the
Revolving Commitment Amount) plus the Effective Amount of all L/C Obligations
then outstanding. Such commitment fee shall accrue from the Effective Date to
the Revolving Termination Date (or, if later, the date on which the Acquisition
Commitment Amount is reduced to zero) and shall be due and payable quarterly in
arrears on the last Business Day of each calendar quarter, with the final
payment to be made on the Revolving Termination Date (or such later date on
which the Acquisition Commitment Amount is reduced to zero). The commitment fees
provided in this subsection shall accrue at all times after the Effective Date,
including at any time during which one or more conditions in Article V are not
met.
-33-
2.12 Computation of Fees and Interest. (a) All computations of interest
for Base Rate Loans when the Base Rate is determined by BofA's "reference rate"
shall be made on the basis of a year of 365 or 366 days, as the case may be, and
actual days elapsed. All other computations of interest and fees shall be made
on the basis of a 360-day year and actual days elapsed. Interest and fees shall
accrue during each period during which interest or such fees are computed from
the first day thereof to the last day thereof.
(b) Each determination of an interest rate by the
Administrative Agent shall be conclusive and binding on the Company and the
Lenders in the absence of manifest error. The Administrative Agent will, at the
request of the Company or any Lender, deliver to the Company or such Lender, as
the case may be, a statement showing the quotations used by the Administrative
Agent in determining any interest rate and the resulting interest rate.
2.13 Payments by the Company. (a) All payments to be made by the
Company shall be made without set-off, recoupment or counterclaim. Except as
otherwise expressly provided herein, all payments by the Company shall be made
to the Administrative Agent for the account of the Lenders at the Agent's
Payment Office, and shall be made in Dollars and in immediately available funds,
no later than 1:00 p.m. (Chicago time) on the date specified herein. Except as
expressly otherwise provided herein, the Administrative Agent will promptly
distribute, in like funds as received, to each Lender its Percentage (or other
applicable portion) of such payment. Any payment received by the Administrative
Agent later than 1:00 p.m. (Chicago time) shall be deemed to have been received
on the following Business Day and any applicable interest or fee shall continue
to accrue.
(b) Whenever any payment is due on a day other than a
Business Day, such payment shall be made on the following Business Day (unless,
in the case of an Offshore Rate Loan, such following Business Day is in another
calendar month, in which case such payment shall be made on the preceding
Business Day), and such extension of time shall in such case be included in the
computation of interest or fees, as the case may be.
(c) Unless the Administrative Agent receives notice from the
Company prior to the date on which any payment is due to the Lenders that the
Company will not make such payment in full as and when required, the
Administrative Agent may assume that the Company has made such payment in full
to the Administrative Agent on such date in immediately available funds and the
Administrative Agent may (but shall not be so required), in reliance upon such
assumption, distribute to each Lender on such due date an amount equal to the
amount then due such Lender. If and to the extent the Company has not made such
payment in full to the Administrative Agent, each Lender shall repay to the
Administrative Agent on demand such amount distributed to such Lender, together
with interest thereon at the Federal Funds Rate for each day from the date such
amount is distributed to such Lender until the date repaid.
2.14 Payments by the Lenders to the Administrative Agent. (a) Unless
the Administrative Agent receives notice from a Lender on or prior to the
Effective Date, or, with
-34-
respect to any Borrowing after the Effective Date, at least one Business Day
prior to the date of such Borrowing, that such Lender will not make available as
and when required hereunder to the Administrative Agent for the account of the
Company the amount of such Lender's Percentage of such Borrowing, the
Administrative Agent may assume that each Lender has made such amount available
to the Administrative Agent in immediately available funds on the Borrowing Date
and the Administrative Agent may (but shall not be required to), in reliance
upon such assumption, make available to the Company on such date a corresponding
amount. If and to the extent any Lender shall not have made its full amount
available to the Administrative Agent in immediately available funds and the
Administrative Agent in such circumstances has made available to the Company
such amount, such Lender shall on the Business Day following such Borrowing Date
make such amount available to the Administrative Agent, together with interest
at the Federal Funds Rate for each day during such period. A notice of the
Administrative Agent submitted to any Lender with respect to amounts owing under
this subsection (a) shall be conclusive, absent manifest error. If such amount
is so made available, such payment to the Administrative Agent shall constitute
such Lender's Loan on the date of Borrowing for all purposes of this Agreement.
If such amount is not made available to the Administrative Agent on the Business
Day following the Borrowing Date, the Administrative Agent will notify the
Company of such failure to fund and, upon demand by the Administrative Agent,
the Company shall pay such amount to the Administrative Agent for the
Administrative Agent's account, together with interest thereon for each day
elapsed since the date of such Borrowing, at a rate per annum equal to the
interest rate applicable at the time to the Loans comprising such Borrowing.
(b) The failure of any Lender to make any Loan on any
Borrowing Date shall not relieve any other Lender of any obligation hereunder to
make a Loan on such Borrowing Date, but no Lender shall be responsible for the
failure of any other Lender to make the Loan to be made by such other Lender on
any Borrowing Date.
2.15 Sharing of Payments, Etc. If, other than as expressly provided
elsewhere herein, any Lender shall obtain on account of the Loans made by it any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) in excess of its ratable share of such payment
(determined in accordance with the provisions of this Agreement), such Lender
shall immediately (a) notify the Administrative Agent of such fact and (b)
purchase from the other Lenders such participations in the Loans made by them as
shall be necessary to cause such purchasing Lender to share the excess payment
pro rata with each other Lender; provided, however, that if all or any portion
of such excess payment is thereafter recovered from the purchasing Lender, such
purchase shall to that extent be rescinded and each other Lender shall repay to
the purchasing Lender the purchase price paid therefor, together with an amount
equal to such paying Lender's ratable share (according to the proportion of (i)
the amount of such paying Lender's required repayment to (ii) the total amount
so recovered from the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered.
The Company agrees that any Lender so purchasing a participation from another
Lender may, to the fullest extent permitted by law, exercise all its rights of
payment (including the right of set-off, but subject to Section 11.10) with
respect to such participation as fully as if such Lender were the direct
creditor of the Company in the
-35-
amount of such participation. The Administrative Agent will keep records (which
shall be conclusive and binding in the absence of manifest error) of
participations purchased under this Section and will in each case notify the
Lenders following any such purchases or repayments.
ARTICLE III
THE LETTERS OF CREDIT
3.1 The Letter of Credit Subfacility; Existing Letters of Credit. (a)
On the terms and conditions set forth herein: (i) the Issuing Lender agrees, (A)
from time to time on any Business Day during the period from the Effective Date
to the Revolving Termination Date to issue Letters of Credit for the account of
the Company, and to amend or renew Letters of Credit previously issued by it, in
accordance with subsections 3.2(c) and 3.2(d), and (B) to honor properly drawn
drafts under the Letters of Credit issued by it; and (ii) the Lenders severally
agree to participate in Letters of Credit Issued for the account of the Company;
provided that the Issuing Lender shall not be obligated to Issue, and no Lender
shall be obligated to participate in, any Letter of Credit if as of the date of
Issuance of such Letter of Credit (the "Issuance Date") (1) the Revolving
Outstandings exceed the Revolving Commitment Amount, (2) the Effective Amount of
all L/C Obligations exceeds the amount of the L/C Commitment or (3) the sum of
the participation of any Lender in the Effective Amount of all L/C Obligations
and Swingline Loans plus the outstanding principal amount of the Revolving Loans
of such Lender shall exceed such Lender's Revolving Commitment. Within the
foregoing limits, and subject to the other terms and conditions hereof, the
Company's ability to obtain Letters of Credit shall be fully revolving, and,
accordingly, the Company may, during the foregoing period, obtain Letters of
Credit to replace Letters of Credit which have expired or which have been drawn
upon and reimbursed.
(b) The Issuing Lender shall not be under any obligation to
Issue any Letter of Credit if:
(i) any order, judgment or decree of any
Governmental Authority or arbitrator shall by its terms purport to
enjoin or restrain the Issuing Lender from Issuing such Letter of
Credit, or any Requirement of Law applicable to the Issuing Lender or
any request or directive (whether or not having the force of law) from
any Governmental Authority with jurisdiction over the Issuing Lender
shall prohibit, or request that the Issuing Lender refrain from, the
Issuance of letters of credit generally or such Letter of Credit in
particular or shall impose upon the Issuing Lender with respect to such
Letter of Credit any restriction, reserve or capital requirement (for
which the Issuing Lender is not otherwise compensated hereunder) not in
effect on the Effective Date, or shall impose upon the Issuing Lender
any unreimbursed loss, cost or expense which was not applicable on the
Effective Date and which the Issuing Lender in good xxxxx xxxxx
material to it;
-36-
(ii) the Issuing Lender has received written
notice from any Lender, the Administrative Agent or the Company, on or
prior to the Business Day prior to the requested date of Issuance of
such Letter of Credit, that one or more of the applicable conditions
contained in Article V is not then satisfied;
(iii) the expiry date of such Letter of Credit is
after the Revolving Termination Date, or, in the case of a Commercial
Letter of Credit, the expiry date of such Letter of Credit is less than
25 days prior to the Revolving Termination Date, unless all of the
Lenders have approved such expiry date in writing;
(iv) such Letter of Credit does not provide for
drafts, or is not otherwise in form and substance acceptable to the
Issuing Lender, or the Issuance of such Letter of Credit shall violate
any applicable policies of the Issuing Lender; or
(v) except as provided in Section 3.10, such
Letter of Credit is denominated in a currency other than Dollars.
(c) On and after the Effective Date, the Existing Letters of
Credit shall be deemed for all purposes to be Letters of Credit outstanding
under this Agreement. Each Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Issuing Lender on the Effective
Date a participation in each Existing Letter of Credit and each drawing
thereunder in an amount equal to the product of (i) such Lender's Percentage
times (ii) the maximum amount available to be drawn under such Letter of Credit
and the amount of such drawing, respectively.
3.2 Issuance, Amendment and Renewal of Letters of Credit. (a) Each
Letter of Credit shall be issued upon the irrevocable written request of the
Company received by the Issuing Lender and the Administrative Agent at least
four Business Days (or such shorter time as the Issuing Lender and the
Administrative Agent may agree in a particular instance in their sole
discretion) prior to the proposed date of issuance. Each such request for
issuance of a Letter of Credit shall be by facsimile, confirmed immediately in
an original writing, in the form of an L/C Application, and shall specify in
form and detail satisfactory to the Issuing Lender: (i) the face amount of the
Letter of Credit; (ii) the expiry date of the Letter of Credit; (iii) the name
and address of the beneficiary thereof; (iv) the documents to be presented by
the beneficiary of the Letter of Credit in case of any drawing thereunder; (v)
the full text of any certificate to be presented by the beneficiary in case of
any drawing thereunder; and (vi) such other matters as the Issuing Lender may
require.
(b) At least two Business Days prior to the Issuance of any
Letter of Credit, the Issuing Lender will confirm with the Administrative Agent
(by telephone or in writing) that the Administrative Agent has received a copy
of the L/C Application or L/C Amendment Application from the Company and, if
not, the Issuing Lender will provide the Administrative Agent with a copy
thereof. If and only if the Administrative Agent notifies the Issuing Lender on
or before the Business Day immediately preceding the proposed date of
-37-
Issuance of a Letter of Credit that the Issuing Lender may Issue such Letter of
Credit, then, subject to the terms and conditions hereof, the Issuing Lender
shall, on the requested date, Issue such Letter of Credit for the account of the
Company in accordance with the Issuing Lender's usual and customary business
practices. The Administrative Agent shall not give such notice if the
Administrative Agent has knowledge that (A) such Issuance is not then permitted
under subsection 3.1(a) as a result of the limitations set forth in clause (1)
or (2) thereof or (B) the Issuing Lender has received a notice described in
subsection 3.1(b)(ii). The Administrative Agent will promptly notify the Lenders
of any Letter of Credit Issuance hereunder.
(c) From time to time while a Letter of Credit is
outstanding and prior to the Revolving Termination Date, the Issuing Lender
will, upon the written request of the Company received by the Issuing Lender
(with a copy sent by the Company to the Administrative Agent) at least four
Business Days (or such shorter time as the Issuing Lender and the Administrative
Agent may agree in a particular instance in their sole discretion) prior to the
proposed date of amendment, amend any Letter of Credit issued by it. Each such
request for amendment of a Letter of Credit shall be made by facsimile,
confirmed immediately in an original writing, made in the form of an L/C
Amendment Application and shall specify in form and detail satisfactory to the
Issuing Lender: (i) the Letter of Credit to be amended; (ii) the proposed date
of amendment of such Letter of Credit (which shall be a Business Day); (iii) the
nature of the proposed amendment; and (iv) such other matters as the Issuing
Lender may require. The Issuing Lender shall not have any obligation to amend
any Letter of Credit if: (A) the Issuing Lender would have no obligation at such
time to Issue such Letter of Credit in its amended form under the terms of this
Agreement; or (B) the beneficiary of such Letter of Credit does not accept the
proposed amendment to such Letter of Credit.
(d) The Issuing Lender and the Lenders agree that, while a
Letter of Credit is outstanding and prior to the Revolving Termination Date, at
the option of the Company and upon the written request of the Company received
by the Issuing Lender (with a copy sent by the Company to the Administrative
Agent) at least four Business Days (or such shorter time as the Issuing Lender
and the Administrative Agent may agree in a particular instance in their sole
discretion) prior to the proposed date of notification of renewal, the Issuing
Lender shall be entitled, with the approval of the Administrative Agent, to
authorize the automatic renewal of any Letter of Credit issued by it. Each such
request for renewal of a Letter of Credit shall be made by facsimile, confirmed
immediately in an original writing, in the form of an L/C Amendment Application,
and shall specify in form and detail satisfactory to the Issuing Lender: (i) the
Letter of Credit to be renewed; (ii) the proposed date of notification of
renewal of such Letter of Credit (which shall be a Business Day); (iii) the
revised expiry date of such Letter of Credit (which, unless all Lenders
otherwise consent in writing, shall be prior to the Revolving Termination Date);
and (iv) such other matters as the Issuing Lender may require. The Issuing
Lender shall not be under any obligation to renew any Letter of Credit if: (A)
the Issuing Lender would have no obligation at such time to issue or amend such
Letter of Credit in its renewed form under the terms of this Agreement; or (B)
the beneficiary of such Letter of Credit does not accept the proposed renewal of
such Letter of Credit. If any outstanding Letter of Credit shall provide that it
shall be automatically renewed unless the beneficiary thereof receives notice
from
-38-
the Issuing Lender that such Letter of Credit shall not be renewed, and if at
the time of renewal the Issuing Lender would be entitled to authorize the
automatic renewal of such Letter of Credit in accordance with this subsection
3.2(d) upon the request of the Company but the Issuing Lender shall not have
received any L/C Amendment Application from the Company with respect to such
renewal or other written direction by the Company with respect thereto, the
Issuing Lender shall nonetheless be permitted to allow such Letter of Credit to
renew, subject to the approval of the Administrative Agent, and the Company and
the Lenders hereby authorize such renewal, and, accordingly, the Issuing Lender
shall be deemed to have received an L/C Amendment Application from the Company
requesting such renewal.
(e) The Issuing Lender may, at its election (or as required
by the Administrative Agent at the direction of the Required Lenders), deliver
any notices of termination or other communications to any Letter of Credit
beneficiary or transferee, and take any other action as necessary or
appropriate, at any time and from time to time, in order to cause the expiry
date of such Letter of Credit to be a date not later than the Revolving
Termination Date.
(f) This Agreement shall control in the event of any
conflict with any L/C-Related Document (other than any Letter of Credit).
(g) The Issuing Lender will deliver to the Administrative
Agent, concurrently or promptly following its delivery of a Letter of Credit, or
amendment to or renewal of a Letter of Credit, to an advising bank or a
beneficiary, a true and complete copy of each such Letter of Credit or amendment
to or renewal of a Letter of Credit.
3.3 Risk Participations, Drawings and Reimbursements. (a) Immediately
upon the Issuance of each Letter of Credit, each Lender shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from the Issuing
Lender a participation in such Letter of Credit and each drawing thereunder in
an amount equal to the product of (i) such Lender's Percentage times (ii) the
maximum amount available to be drawn under such Letter of Credit and the amount
of such drawing, respectively.
(b) In the event of any request for a drawing under a Letter
of Credit by the beneficiary or transferee thereof, the Issuing Lender will
promptly notify the Company and the Administrative Agent. The Company shall
reimburse the Issuing Lender prior to 10:30 a.m. (Chicago time), on each date
that any amount is paid by the Issuing Lender under any Letter of Credit (each
such date, an "Honor Date") in an amount equal to the amount so paid by the
Issuing Lender; provided that, to the extent that the Issuing Lender accepts a
drawing under a Letter of Credit after 10:30 a.m. (Chicago time), the Company
will not be obligated to reimburse the Issuing Lender until the next Business
Day and the "Honor Date" for such Letter of Credit shall be such next Business
Day. If the Company fails to reimburse the Issuing Lender for the full amount of
any drawing under any Letter of Credit by 10:30 a.m. (Chicago time) on the Honor
Date, the Issuing Lender will promptly notify the Administrative Agent and the
Administrative Agent will promptly notify each Lender thereof, and the Company
shall be
-39-
deemed to have requested that Base Rate Loans be made by the Lenders to be
disbursed on the Honor Date under such Letter of Credit, subject to the amount
of the unutilized portion of the Revolving Commitment Amount and subject to the
conditions set forth in Section 5.3 other than Section 5.3(a). Any notice given
by the Issuing Lender or the Administrative Agent pursuant to this subsection
3.3(b) may be oral if immediately confirmed in writing (including by facsimile);
provided that the lack of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice.
(c) Each Lender shall upon any notice pursuant to subsection
3.3(b) make available to the Administrative Agent for the account of the Issuing
Lender an amount in Dollars and in immediately available funds equal to its
Percentage of the amount of the drawing, whereupon the participating Lenders
shall (subject to subsection 3.3(d)) each be deemed to have made a Revolving
Loan consisting of a Base Rate Loan to the Company in such amount. If any Lender
so notified fails to make available to the Administrative Agent for the account
of the Issuing Lender the amount of such Lender's Percentage of the amount of
such drawing by no later than 1:00 p.m. (Chicago time) on the Honor Date, then
interest shall accrue on such Lender's obligation to make such payment, from the
Honor Date to the date such Lender makes such payment, at a rate per annum equal
to the Federal Funds Rate in effect from time to time during such period. The
Administrative Agent will promptly give notice of the occurrence of the Honor
Date, but failure of the Administrative Agent to give any such notice on the
Honor Date or in sufficient time to enable any Lender to effect such payment on
such date shall not relieve such Lender from its obligations under this Section
3.3.
(d) With respect to any unreimbursed drawing that is not
converted into Revolving Loans consisting of Base Rate Loans in whole or in
part, because of the Company's failure to satisfy the conditions set forth in
Section 5.3 (other than Section 5.3(a), which need not be satisfied) or for any
other reason, the Company shall be deemed to have incurred from the Issuing
Lender an L/C Borrowing in the amount of such drawing, which L/C Borrowing shall
be due and payable on demand (together with interest) and shall bear interest at
a rate per annum equal to the sum of the Base Rate plus 2%, and each Lender's
payment to the Issuing Lender pursuant to subsection 3.3(c) shall be deemed
payment in respect of its participation in such L/C Borrowing and shall
constitute an L/C Advance from such Lender in satisfaction of its participation
obligation under this Section 3.3.
(e) Each Lender's obligation in accordance with this
Agreement to make Revolving Loans or L/C Advances, as contemplated by this
Section 3.3, as a result of a drawing under a Letter of Credit, shall be
absolute and unconditional and without recourse to the Issuing Lender and shall
not be affected by any circumstance, including (i) any set-off, counterclaim,
recoupment, defense or other right which such Lender may have against the
Issuing Lender, the Company or any other Person for any reason whatsoever, (ii)
the occurrence or continuance of an Event of Default, an Unmatured Event of
Default or a Material Adverse Effect or (iii) any other circumstance, happening
or event whatsoever, whether or not similar to any of the foregoing; provided
that each Lender's obligation to make Revolving Loans under this Section 3.3 is
subject to the conditions set forth in Section 5.3.
-40-
3.4 Repayment of Participations. (a) Upon (and only upon) receipt by
the Administrative Agent for the account of the Issuing Lender of immediately
available funds from the Company (i) in reimbursement of any payment made by the
Issuing Lender under a Letter of Credit with respect to which any Lender has
paid the Administrative Agent for the account of the Issuing Lender for such
Lender's participation in such Letter of Credit pursuant to Section 3.3 or (ii)
in payment of interest thereon, the Administrative Agent will pay to each
Lender, in like funds as those received by the Administrative Agent for the
account of the Issuing Lender, the amount of such Lender's Percentage of such
funds, and the Issuing Lender shall receive the amount of the Percentage of such
funds of any Lender that did not so pay the Administrative Agent for the account
of the Issuing Lender.
(b) If the Administrative Agent or the Issuing Lender is
required at any time to return to the Company, or to a trustee, receiver,
liquidator or custodian, or to any official in any Insolvency Proceeding, any
portion of any payment made by the Company to the Administrative Agent for the
account of the Issuing Lender pursuant to subsection 3.4(a) in reimbursement of
a payment made under a Letter of Credit or interest or fee thereon, each Lender
shall, on demand of the Administrative Agent, forthwith return to the
Administrative Agent or the Issuing Lender the amount of its Percentage of any
amount so returned by the Administrative Agent or the Issuing Lender plus
interest thereon from the date such demand is made to the date such amount is
returned by such Lender to the Administrative Agent or the Issuing Lender, at a
rate per annum equal to the Federal Funds Rate in effect from time to time.
3.5 Role of the Issuing Lender. (a) Each Lender and the Company agree
that, in paying any drawing under a Letter of Credit, the Issuing Lender shall
not have any responsibility to obtain any document (other than any sight draft
and certificate expressly required by such Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document.
(b) None of any Agent-Related Person, the Issuing Lender or
any of their respective correspondents, participants or assignees shall be
liable to any Lender for: (i) any action taken or omitted in connection herewith
at the request or with the approval of the Lenders (including the Required
Lenders, as applicable); (ii) any action taken or omitted in the absence of
gross negligence or willful misconduct; or (iii) the due execution,
effectiveness, validity or enforceability of any L/C-Related Document.
(c) The Company hereby assumes all risks of the acts or
omissions of any beneficiary or transferee with respect to its use of any Letter
of Credit; provided that this assumption is not intended to, and shall not,
preclude the Company's pursuing such rights and remedies as it may have against
the beneficiary or transferee at law or under this Agreement or any other
agreement. None of any Agent-Related Person, the Issuing Lender or any of their
respective correspondents, participants or assignees shall be liable or
responsible for any of the matters described in clauses (i) through (vii) of
Section 3.6; provided that, anything in such clauses to the contrary
notwithstanding, the Company may have a claim against the Issuing Lender, and
the Issuing Lender may be liable to the Company, to the extent, but only to the
-41-
extent, of any direct, as opposed to consequential or exemplary, damages
suffered by the Company which the Company proves were caused by the Issuing
Lender's willful misconduct or gross negligence or the Issuing Lender's willful
or grossly negligent failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and certificate(s)
strictly complying with the terms and conditions of such Letter of Credit. In
furtherance and not in limitation of the foregoing: (i) the Issuing Lender may
accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary; and (ii) the Issuing Lender shall not be
responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may prove
to be invalid or ineffective for any reason.
3.6 Obligations Absolute. The obligations of the Company under this
Agreement and any L/C-Related Document to reimburse the Issuing Lender for a
drawing under a Letter of Credit, and to repay any L/C Borrowing and any drawing
under a Letter of Credit converted into Revolving Loans, shall be unconditional
and irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement and each such other L/C-Related Document under all circumstances,
including the following:
(i) any lack of validity or enforceability of
this Agreement or any L/C- Related Document;
(ii) any change in the time, manner or place of
payment of, or in any other term of, all or any of the obligations of
the Company in respect of any Letter of Credit or any other amendment
or waiver of or any consent to departure from all or any of the
L/C-Related Documents;
(iii) the existence of any claim, set-off,
defense or other right that the Company may have at any time against
any beneficiary or any transferee of any Letter of Credit (or any
Person for whom any such beneficiary or any such transferee may be
acting), the Issuing Lender or any other Person, whether in connection
with this Agreement, the transactions contemplated hereby or by the
L/C-Related Documents or any unrelated transaction;
(iv) any draft, demand, certificate or other
document presented under any Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect or any loss or delay
in the transmission or otherwise of any document required in order to
make a drawing under any Letter of Credit;
(v) any payment by the Issuing Lender under any
Letter of Credit against presentation of a draft or certificate that
does not strictly comply with the terms of such Letter of Credit; or
any payment made by the Issuing Lender under any Letter of Credit to
any Person purporting to be a trustee in bankruptcy,
debtor-in-possession,
-42-
assignee for the benefit of creditors, liquidator, receiver or other
representative of or successor to any beneficiary or any transferee of
any Letter of Credit, including any arising in connection with any
Insolvency Proceeding;
(vi) any exchange, release or non-perfection of
any collateral, or any release or amendment or waiver of or consent to
departure from any guarantee, for all or any of the obligations of the
Company in respect of any Letter of Credit; or
(vii) any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing, including
any other circumstance that might otherwise constitute a defense
available to, or a discharge of, the Company or a guarantor.
3.7 Cash Collateral Pledge. If any Letter of Credit remains outstanding
and partially or wholly undrawn as of the Revolving Termination Date, then the
Company shall immediately Cash Collateralize the L/C Obligations in an amount
equal to the maximum amount then available to be drawn under all Letters of
Credit.
3.8 Letter of Credit Fees. (a) The Company shall pay to the
Administrative Agent for the account of each Lender a letter of credit fee with
respect to each Letter of Credit at a rate per annum equal to the L/C Fee Rate
on the average daily maximum amount available to be drawn on such Letter of
Credit, computed on a quarterly basis in arrears on the last Business Day of
each calendar quarter.
(b) The Company shall pay to the Issuing Lender a letter of
credit fronting fee for each Letter of Credit Issued equal to 0.25% per annum of
the average daily maximum amount available to be drawn on such Letter of Credit,
computed on the last Business Day of each calendar quarter and on the Revolving
Termination Date (or such later date on which such Letter of Credit shall expire
or be fully drawn).
(c) The letter of credit fees payable under subsection
3.8(a) and the fronting fees payable under subsection 3.8(b) shall be due and
payable quarterly in arrears on the last Business Day of each calendar quarter
during which Letters of Credit are outstanding, commencing on the first such
quarterly date to occur after the Effective Date, through the Revolving
Termination Date (or such later date upon which all outstanding Letters of
Credit shall expire or be fully drawn), with the final payment to be made on the
Revolving Termination Date (or such later date). For purposes of calculating the
fees payable under subsection 3.8(a) and subsection 3.8(b), any undrawn
Commercial Letters of Credit should be considered outstanding and available to
be drawn upon for 25 days after its expiry date.
(d) The Company shall pay to the Issuing Lender from time to
time on demand the normal issuance, presentation, amendment and other processing
fees, and other standard costs and charges, of the Issuing Lender relating to
letters of credit as from time to time in effect.
-43-
3.9 Uniform Customs and Practice. The Uniform Customs and Practice for
Documentary Credits as published by the International Chamber of Commerce most
recently at the time of issuance of any Letter of Credit shall (unless otherwise
expressly provided in such Letter of Credit) apply to each Letter of Credit.
3.10 Non-Dollar Letters of Credit. (a) The Company, the Administrative
Agent, the Issuing Lender and the Lenders (i) agree that the Issuing Lender may
(in its sole discretion) issue Letters of Credit ("Non-Dollar Letters of
Credit") in currencies other than Dollars and (ii) further agree as follows with
respect to such Non-Dollar Letters of Credit:
(b) The Company agrees that its reimbursement obligation
under subsection 3.3(b) and any resulting L/C Borrowing, in each case in respect
of a drawing under any Non-Dollar Letter of Credit, (i) shall be payable in
Dollars at the Dollar Equivalent of such obligation in the currency in which
such Non-Dollar Letter of Credit was issued (determined on the date of payment)
and (ii) shall bear interest at a rate per annum equal to the sum of the
Overnight Rate plus the Margin plus 3% for each day from and including the Honor
Date to but excluding the date such obligation is paid in full (it being
understood that any payment received after 10:30 a.m., Chicago time, on any day
shall be deemed received on the following Business Day).
(c) Each Lender agrees that its obligation to make Revolving
Loans under subsection 3.3(b) and to make L/C Advances for any unpaid
reimbursement obligation or L/C Borrowing in respect of a drawing under any
Non-Dollar Letter of Credit shall be payable in Dollars at the Dollar Equivalent
of such obligation in the currency in which such Non-Dollar Letter of Credit was
issued (calculated on the date of payment) (and any such amount which is not
paid when due shall bear interest at a rate per annum equal to the Overnight
Rate plus, beginning on the third Business Day after such amount was due, the
Margin.
(d) For purposes of determining whether there is
availability for the Company to request, continue or convert any Loan, or
request, extend or increase the face amount of any Letter of Credit, the Dollar
Equivalent of the Effective Amount of each Non- Dollar Letter of Credit shall be
calculated on the date such Loan is to be made, continued or converted or such
Letter of Credit is to be issued, extended or increased.
(e) For purposes of determining (i) the amount of the unused
portion of the Revolving Commitment Amount under subsection
2.11(b), (ii) the
letter of credit fee under subsection 3.8(a) and (iii) the letter of credit
fronting fee under subsection 3.8(b), the Dollar Equivalent of the Effective
Amount of any Non-Dollar Letter of Credit shall be determined on each of (1) the
date of an issuance, extension or change in the face amount of such Non-Dollar
Letter of Credit, (2) the date of any payment by the Issuing Lender in respect
of a drawing under such Non-Dollar Letter of Credit, (3) the last day of each
calendar month and (4) each day on which the Revolving Commitment Amount is
reduced.
-44-
(f) If, on the last day of any calendar month or any day on
which the Revolving Commitment Amount is reduced, the sum of the principal
amount of all Revolving Loans and Swingline Loans plus the Effective Amount of
all Letters of Credit (valuing the Effective Amount of, and all reimbursement
obligations and L/C Borrowings of the Company in respect of, any Non-Dollar
Letter of Credit at the Dollar Equivalent thereof as of such day) would exceed
the Revolving Commitment Amount, then the Company will immediately eliminate
such excess by prepaying Revolving Loans and/or Swingline Loans and/or causing
one or more Letters of Credit to be reduced or terminated.
(g) If, for the purposes of obtaining judgment in any court,
it is necessary to convert a sum due in respect of any Non-Dollar Letter of
Credit in one currency into another currency, the rate of exchange used shall be
that at which in accordance with normal banking procedures the Issuing Lender
could purchase the first currency with such other currency on the Business Day
preceding that on which final judgment is given. The obligation of the Company
in respect of any such sum due from it to the Issuing Lender or any Lender
hereunder shall, notwithstanding any judgment in a currency (the "Judgment
Currency") other than that in which such sum is denominated in accordance with
the applicable provisions of the applicable Non- Dollar Letter of Credit (the
"Agreement Currency"), be discharged only to the extent that on the Business Day
following receipt by the Issuing Lender or such Lender of any sum adjudged to be
so due in the Judgment Currency, the Issuing Lender or such Lender may in
accordance with normal banking procedures purchase the Agreement Currency with
the Judgment Currency. If the amount of the Agreement Currency so purchased is
less than the sum originally due to the Issuing Lender or such Lender in the
Agreement Currency, the Company agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Issuing Lender or such
Lender, as applicable, against such loss. If the amount of the Agreement
Currency so purchased is greater than the sum originally due to the Issuing
Lender or such Lender in such currency, the Issuing Lender and each other Lender
agrees to return the amount of any excess to the Company (or to any other Person
who may be entitled thereto under applicable law).
(h) For purposes of this Section, "Overnight Rate" means,
for any day, the rate of interest per annum at which overnight deposits in the
applicable currency, in an amount approximately equal to the amount with respect
to which such rate is being determined, would be offered for such day by the
London Branch of BofA to major banks in the London or other applicable offshore
interbank market. The Overnight Rate for any day which is not a Business Day (or
on which dealings are not carried on in the applicable offshore interbank
market) shall be the Overnight Rate for the immediately preceding Business Day.
ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY
4.1 Taxes. (a) Any and all payments by the Company to each Lender or
the Administrative Agent under this Agreement and any other Loan Document shall
be made free
-45-
and clear of, and without deduction or withholding for, any Taxes. In addition,
the Company shall pay all Other Taxes.
(b) The Company agrees to indemnify and hold harmless each
Lender and the Administrative Agent for the full amount of Taxes, Other Taxes
and Further Taxes paid by such Lender in the amount necessary to preserve the
after-tax yield such Lender would have received if such Taxes, Other Taxes or
Further Taxes had not been imposed, and any liability (including penalties,
interest, additions to tax and reasonable out-of-pocket expenses) arising
therefrom or with respect thereto, whether or not such Taxes, Other Taxes or
Further Taxes were correctly or legally asserted; provided, however, that no
participant of any Lender shall be entitled to receive any greater payment under
this subsection 4.1(b) than such Lender would have been entitled to receive with
respect to the rights participated; and provided further that the Company shall
not indemnify any Lender (or participant thereof) or the Administrative Agent
for Taxes, Other Taxes, Further Taxes, penalties, additions to tax, interest and
expenses arising as a result of any of their own willful misconduct or gross
negligence. Payment under this subsection 4.1(b) shall be made within 30 days
from the date such Lender or the Administrative Agent (as the case may be) makes
written demand therefor, including with such demand an identification of the
Taxes, Other Taxes or Further Taxes (together with the amounts thereof) with
respect to which such demand for indemnification is being made.
(c) If the Company shall be required by law to deduct or
withhold any Taxes, Other Taxes or Further Taxes from or in respect of any sum
payable hereunder to any Lender or the Administrative Agent, then:
(i) the sum payable shall be increased as
necessary so that, after making all required deductions and
withholdings (including deductions and withholdings applicable to
additional sums payable under this Section), such Lender or the
Administrative Agent, as the case may be, receives and retains an
amount equal to the sum it would have received and retained had no such
deductions or withholdings been made;
(ii) the Company shall make such deductions and
withholdings; and
(iii) the Company shall pay the full amount
deducted or withheld to the relevant taxing authority or other
authority in accordance with applicable law.
(d) Within 10 days after the date the Company receives any
receipt for the payment of Taxes, Other Taxes or Further Taxes, the Company
shall furnish to each Lender and the Administrative Agent the original or a
certified copy of such receipt evidencing payment thereof, or other evidence of
payment satisfactory to such Lender or the Administrative Agent.
(e) If the Company is required to pay additional amounts to
any Lender or the Administrative Agent pursuant to subsection (b) of this
Section or Section 4.3, then such Lender shall use reasonable efforts
(consistent with legal and regulatory restrictions) to change
-46-
the jurisdiction of its Lending Office so as to reduce or eliminate any such
additional payment by the Company which may thereafter accrue, if such change in
the sole judgment of such Lender is not otherwise disadvantageous to such
Lender.
(f) If a Lender (or participant thereof) or the
Administrative Agent shall become aware that it is entitled to receive a refund
(including interest and penalties, if any) in respect of Taxes, Other Taxes or
Further Taxes as to which it has been indemnified by the Company pursuant to
this Section 4.1, it shall promptly notify the Company in writing of the
availability of such refund (including interest and penalties, if any) and
shall, within 30 days after receipt of a request by the Company, apply for such
refund. If any Lender (or participant thereof) or the Administrative Agent
receives a refund (including interest and penalties, if any) in respect of any
Taxes, Other Taxes or Further Taxes as to which it has been indemnified by the
Company pursuant to this Section 4.1, it shall promptly notify the Company of
the receipt of such refund and shall, within 15 days of receipt, repay such
refund (to the extent of amounts that have been paid by the Company under this
Section 4.1 with respect to such refund and not previously reimbursed) to the
Company, net of all reasonable out-of-pocket expenses of such Lender or the
Administrative Agent and without any interest (other than the interest, if any,
included in such refund).
4.2 Illegality. (a) After the date hereof, if any Lender determines
that the introduction of any Requirement of Law, or any change in any
Requirement of Law, or in the interpretation or administration of any
Requirement of Law, has made it unlawful, or that any central bank or other
Governmental Authority has asserted that it is unlawful, for such Lender or its
applicable Lending Office to make Offshore Rate Loans, then, on notice thereof
by the Lender to the Company through the Administrative Agent, any obligation of
such Lender to make Offshore Rate Loans shall be suspended until such Lender
notifies the Administrative Agent and the Company that the circumstances giving
rise to such determination no longer exist.
(b) After the date hereof, if a Lender determines that it is
unlawful to maintain any Offshore Rate Loan, the Company shall, upon its receipt
of notice of such fact and demand from such Lender (with a copy to the
Administrative Agent), prepay in full such Offshore Rate Loan, together with
interest accrued thereon and any amount required under Section 4.4, either on
the last day of the Interest Period thereof, if such Lender may lawfully
continue to maintain such Offshore Rate Loan to such day, or on such earlier
date on which such Lender may no longer lawfully continue to maintain such
Offshore Rate Loan (as determined by such Lender). If the Company is required to
so prepay any Offshore Rate Loan, then concurrently with such prepayment, the
Company shall borrow from the affected Lender, in the amount of such repayment,
a Base Rate Loan.
(c) If the obligation of any Lender to make or maintain
Offshore Rate Loans has been terminated or suspended pursuant to subsection (a)
or (b) above, all Loans which would otherwise be made by such Lender as Offshore
Rate Loans shall be instead Base Rate Loans.
-47-
(d) Before giving any notice to the Administrative Agent or
demand upon the Company under this Section, the affected Lender shall designate
a different Lending Office with respect to its Offshore Rate Loans if such
designation will avoid the need for giving such notice or making such demand and
will not, in the judgment of such Lender, be illegal or otherwise
disadvantageous to such Lender.
4.3 Increased Costs and Reduction of Return. (a) After the date hereof,
if any Lender determines that, due to either (i) the introduction of or any
change (other than any change by way of imposition of or increase in reserve
requirements included in the calculation of the Offshore Rate) in or in the
interpretation of any law or regulation or (ii) compliance by such Lender with
any guideline or request from any central bank or other Governmental Authority
(whether or not having the force of law), there shall be any increase in the
cost to such Lender of agreeing to make or making, funding or maintaining any
Offshore Rate Loan or participating in Letters of Credit or, in the case of the
Issuing Lender, any increase in the cost to the Issuing Lender of agreeing to
issue, issuing or maintaining any Letter of Credit or of agreeing to make or
making, funding or maintaining any unpaid drawing under any Letter of Credit,
then the Company shall be liable for, and shall from time to time, upon demand
(with a copy of such demand to be sent to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender, additional amounts as are
sufficient to compensate such Lender for such increased costs.
(b) After the date hereof, if any Lender shall have
determined that (i) the introduction of any Capital Adequacy Regulation, (ii)
any change in any Capital Adequacy Regulation, (iii) any change in the
interpretation or administration of any Capital Adequacy Regulation by any
central bank or other Governmental Authority charged with the interpretation or
administration thereof, or (iv) compliance by such Lender (or its Lending
Office) or any corporation controlling such Lender with any Capital Adequacy
Regulation, affects or would affect the amount of capital required or expected
to be maintained by such Lender or any corporation controlling such Lender and
(taking into consideration such Lender's or such corporation's policies with
respect to capital adequacy and such Lender's desired return on capital)
determines that the amount of such capital is increased as a consequence of any
of its Commitments, Loans or obligations under this Agreement, then, upon demand
of such Lender to the Company through the Administrative Agent, the Company
shall pay to such Lender, from time to time as specified by such Lender,
additional amounts sufficient to compensate such Lender for such increase.
(c) This Section 4.3 shall not require the Company to
reimburse the Administrative Agent or any Lender for any Taxes which are
otherwise covered by the indemnity set forth in Section 4.1 or any Excluded
Taxes.
4.4 Funding Losses. The Company shall reimburse each Lender and hold
each Lender harmless from any loss or expense which such Lender may sustain or
incur as a consequence of:
-48-
(a) the failure of the Company to make on a timely basis any
payment of principal of any Offshore Rate Loan;
(b) the failure of the Company to borrow, continue or
convert a Loan after the Company has given (or is deemed to have given) a Notice
of Borrowing or a Notice of Conversion/ Continuation;
(c) the failure of the Company to make any prepayment in
accordance with any notice delivered under Section 2.7;
(d) the prepayment (including pursuant to Section 2.8) or
other payment (including after acceleration thereof) of an Offshore Rate Loan on
a day that is not the last day of the relevant Interest Period; or
(e) the automatic conversion under subsection 2.4(a) of any
Offshore Rate Loan to a Base Rate Loan on a day that is not the last day of the
relevant Interest Period;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its Offshore Rate Loans or from fees payable
to terminate the deposits from which such funds were obtained. For purposes of
calculating amounts payable by the Company to the Lenders under this Section and
under subsection 4.3(a), each Offshore Rate Loan made by a Lender (and each
related reserve, special deposit or similar requirement) shall be conclusively
deemed to have been funded at the IBOR used in determining the Offshore Rate for
such Offshore Rate Loan by a matching deposit or other borrowing in the
interbank eurodollar market for a comparable amount and for a comparable period,
whether or not such Offshore Rate Loan is in fact so funded.
4.5 Inability to Determine Rates. If the Administrative Agent
determines that for any reason adequate and reasonable means do not exist for
determining the Offshore Rate for any requested Interest Period with respect to
a proposed Offshore Rate Loan, or the Required Lenders determine (and notify the
Administrative Agent) that the Offshore Rate applicable pursuant to subsection
2.10(a) for any requested Interest Period with respect to a proposed Offshore
Rate Loan does not adequately and fairly reflect the cost to such Lenders of
funding such Loan, the Administrative Agent will promptly so notify the Company
and each Lender. Thereafter, the obligation of the Lenders to make or maintain
Offshore Rate Loans hereunder shall be suspended until the Administrative Agent,
with the consent of the Required Lenders, revokes such notice in writing. Upon
receipt of such notice, the Company may revoke any Notice of Borrowing or Notice
of Conversion/Continuation then submitted by it. If the Company does not revoke
such Notice, the Lenders shall make, convert or continue the Loans, as proposed
by the Company, in the amount specified in the applicable notice submitted by
the Company, but such Loans shall be made, converted or continued as Base Rate
Loans instead of Offshore Rate Loans.
-49-
4.6 Certificates of Lenders. Any Lender claiming reimbursement or
compensation under this Article IV shall deliver to the Company (with a copy to
the Administrative Agent) a certificate setting forth in reasonable detail the
basis for such claim and a calculation of the amount payable to such Lender and
such certificate shall be conclusive and binding on the Company in the absence
of manifest error.
4.7 Substitution of Lenders. In the event the Company becomes obligated
to pay additional amounts to any Lender pursuant to Sections 4.1(b) or (c) or
Section 4.3, or if it becomes illegal for any Lender to continue to fund or to
make Offshore Rate Loans pursuant to Section 4.2, as a result of any condition
described in any such Section, then, unless such Lender has theretofore taken
steps to remove or cure, and has removed or cured, the conditions creating the
cause for such obligation to pay such additional amounts or for such illegality,
the Company may designate another Lender which is acceptable to the
Administrative Agent, the Issuing Lender and the Swingline Lender in their sole
discretion (such Lender being herein called a "Replacement Lender") to purchase
the Loans of such Lender and such Lender's rights hereunder, without recourse to
or warranty by, or expense to, such Lender for a purchase price equal to the
outstanding principal amount of the Loans payable to such Lender plus any
accrued but unpaid interest on such Loans and accrued but unpaid commitment fees
in respect of such Lender's Commitments and any other amounts payable to such
Lender under this Agreement, and to assume all the obligations of such Lender
hereunder, and, upon such purchase, such Lender shall no longer be a party
hereto or have any rights hereunder and shall be relieved from all obligations
to the Company hereunder, and the Replacement Lender shall succeed to the rights
and obligations of such Lender hereunder.
4.8 Survival. The agreements and obligations of the Company in this
Article IV shall survive the payment of all other Obligations.
ARTICLE V
CONDITIONS PRECEDENT
5.1 Conditions of Effectiveness. This Agreement shall become effective
(and the Existing Agreement shall be deemed to have been amended and restated
hereby) on the date that (i) the Effective Date shall have occurred on or before
January 31, 1998; (ii) the conditions precedent to the making of a Credit
Extension set forth in Section 5.2 shall be satisfied; and (iii) the
Administrative Agent shall have received all of the following, in form and
substance satisfactory to the Administrative Agent and each Lender, and (except
for any Notes) in sufficient copies for each Lender.
(a) Credit Agreement and Notes. This Agreement and the Notes
(if any) executed by each party thereto.
-50-
(b) Resolutions and Incumbency.
(i) Copies of resolutions of the board of
directors of the Company and each Guarantor authorizing the
transactions contemplated hereby, certified as of the Effective Date by
the Secretary or an Assistant Secretary of such Person; and
(ii) A certificate of the Secretary or an
Assistant Secretary of the Company and each Guarantor certifying the
names and true signatures of the officers of such Person authorized to
execute, deliver and perform this Agreement and the other Documents to
be delivered by it hereunder.
(c) Organization Documents; Good Standing. Each of the
following documents:
(i) for the Company and each Guarantor, the
articles or certificate of incorporation and the bylaws of each such
Person, as the case may be, as in effect on the Effective Date,
certified by the Secretary or Treasurer of such Person, as of the
Effective Date; and
(ii) a good standing certificate for the Company
and each Guarantor from the Secretary of State (or similar applicable
Governmental Authority) of the jurisdiction of its organization.
(d) Legal Opinions.
(i) An opinion of Xxxxx X. Xxxxxxxxx, Vice
President and General Counsel of the Company, substantially in the form
of Exhibit J, and
(ii) An opinion of Xxxxx, Xxxxx & Xxxxx, special
counsel to the Administrative Agent, substantially in the form of
Exhibit K.
(e) Payment of Fees. Evidence of payment by the Company of
all accrued and unpaid fees, costs and expenses to the extent then due and
payable on the Effective Date, together with Attorney Costs of the
Administrative Agent and the Arranger to the extent invoiced prior to or on the
Effective Date, plus such additional amounts of Attorney Costs as shall
constitute the Administrative Agent's reasonable estimate of Attorney Costs
incurred or to be incurred by it through the closing proceedings (it being
understood that such estimate shall not thereafter preclude final settling of
accounts between the Company and the Administrative Agent), including any such
costs, fees and expenses arising under or referenced in Section 2.11 or 11.4.
(f) Certificate. A certificate signed by a Responsible
Officer, dated as of the Effective Date, stating that:
-51-
(i) the representations and warranties contained
in Article VI are true and correct on and as of such date, as though
made on and as of such date;
(ii) no Event of Default or Unmatured Event of
Default exists or will result from the effectiveness hereof; and
(iii) no event or circumstance has occurred since
September 30, 1997 that has resulted, or would reasonably be expected
to result, in a Material Adverse Effect.
(g) Confirmation. A Confirmation and Omnibus Amendment,
substantially in the form of Exhibit I, executed by the Company and each
Guarantor.
(h) Other Documents. Such other approvals, opinions,
documents or materials as the Administrative Agent or any Lender may reasonably
request.
5.2 Conditions to All Credit Extensions. The obligation of each Lender
to make any Loan to be made by it and the obligation of the Issuing Lender to
Issue any Letter of Credit is subject to the satisfaction of the following
conditions precedent on the relevant Borrowing Date or Issuance Date:
(a) Notice, Application. In the case of any Loan, the
Administrative Agent shall have received a Notice of Borrowing, and in the case
of any Issuance of any Letter of Credit, the Issuing Lender and the
Administrative Agent shall have received an L/C Application or L/C Amendment
Application, as required under Section 3.2.
(b) Continuation of Representations and Warranties. The
representations and warranties in Article VI shall be true and correct in all
material respects on and as of the date of such Credit Extension with the same
effect as if made on and as of such date (except to the extent such
representations and warranties expressly refer to an earlier date, in which case
they shall be true and correct as of such earlier date).
(c) No Existing Default. No Event of Default or Unmatured
Event of Default shall exist or shall result from such Credit Extension.
Each Notice of Borrowing and L/C Application or L/C Amendment Application
submitted by the Company hereunder shall constitute a representation and
warranty by the Company hereunder, as of the date of such notice and as of the
applicable Borrowing Date or Issuance Date, that the conditions in this Section
5.2 are satisfied.
-52-
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to each Agent and each Lender that:
6.1 Corporate Existence and Power. The Company and each of its
Subsidiaries (other than any Dormant Subsidiary):
(a) is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation;
(b) has the power and authority and all governmental
licenses, authorizations, consents and approvals (i) to own its assets and to
carry on its business and (ii) to execute, deliver and perform its obligations
under the Loan Documents;
(c) is duly qualified as a foreign corporation and is
licensed 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 or license; and
(d) is in compliance with all Requirements of Law;
except, in each case referred to in clause (b)(i), (c) or (d), to the extent
that the failure to do so would not reasonably be expected to have a Material
Adverse Effect.
6.2 Corporate Authorization; No Contravention. The execution and
delivery by the Company of this Agreement and each other Loan Document to which
it is a party, the Borrowings hereunder, the execution and delivery by each
Guarantor of each Loan Document to which it is a party and the performance by
each of the Company and each Guarantor of its obligations under each Loan
Document to which it is a party (i) are within the corporate powers of the
Company and each Guarantor, as applicable, (ii) have been duly authorized by all
necessary corporate action on the part of the Company and each Guarantor
(including any necessary shareholder action) and (iii) do not and will not:
(a) contravene the terms of any of the Organization
Documents of the Company or any Guarantor;
(b) conflict with or result in a breach or contravention of,
or the creation of any Lien under, any document evidencing any Contractual
Obligation to which the Company or any Guarantor is a party or any order,
injunction, writ or decree of any Governmental Authority to which the Company,
any Guarantor or any of their properties are subject; or
(c) violate any Requirement of Law.
-53-
6.3 Governmental Authorization. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, the Company of
this Agreement or any other Loan Document to which it is a party or any
Guarantor with respect to each Loan Document to which it is a party, except, in
each case, for filings required to perfect Liens in favor of the Administrative
Agent granted under the Loan Documents.
6.4 Binding Effect. This Agreement and each other Loan Document to
which the Company is a party constitutes the legal, valid and binding obligation
of the Company, enforceable against the Company in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency, or
similar laws affecting the enforcement of creditors' rights generally or by
equitable principles relating to enforceability; and with respect to each
Guarantor, each Loan Document to which such Guarantor is a party constitutes the
legal, valid and binding obligation of such Guarantor, enforceable against such
Guarantor in accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, or similar laws affecting the enforcement
of creditors' rights generally and by equitable principles relating to
enforceability.
6.5 Litigation. Except as specifically disclosed in Schedule 6.5, there
are no actions, suits, proceedings, claims or disputes pending or, to the best
knowledge of the Company, threatened or contemplated, at law, in equity, in
arbitration or before any Governmental Authority, against the Company or any
Subsidiary or any of their respective properties which: purport to affect or
pertain to this Agreement or any other Loan Document, or any of the transactions
contemplated hereby or thereby; or would reasonably be expected to have a
Material Adverse Effect. No injunction, writ, temporary restraining order or
other order of any nature has been issued by any court or other Governmental
Authority purporting to enjoin or restrain the execution, delivery or
performance of this Agreement or any other Loan Document, or directing that the
transactions provided for herein or therein not be consummated as herein or
therein provided.
6.6 No Default. No Event of Default or Unmatured Event of Default
exists or would result from the incurring of any Obligations by the Company. As
of the Effective Date, neither the Company nor any Subsidiary is in default
under or with respect to any Contractual Obligation in any respect which,
individually or together with all such defaults, would reasonably be expected to
have a Material Adverse Effect, or that would, if such default had occurred
after the Effective Date, create an Event of Default under subsection 9.1(e).
6.7 ERISA Compliance.
(a) Each Plan is in compliance in all material respects with
the applicable provisions of ERISA, the Code and other federal or state law.
Each Plan which is intended to qualify under Section 401(a) of the Code has
received a favorable determination letter from the IRS and, to the best
knowledge of the Company, nothing has occurred which would cause the
-54-
loss of such qualification. The Company and each ERISA Affiliate has made all
required contributions to any Plan subject to Section 412 of the Code, and no
application for a funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code has been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of the
Company, threatened claims, actions or lawsuits, or actions by any Governmental
Authority, with respect to any Plan which has resulted or would reasonably be
expected to result in a Material Adverse Effect. There has been no prohibited
transaction or violation of the fiduciary responsibility rules with respect to
any Plan which has resulted or would reasonably be expected to result in a
Material Adverse Effect.
(c) No ERISA Event has occurred or is reasonably expected to
occur that would reasonably be expected to have a Material Adverse Effect; no
contribution failure has occurred with respect to a Pension Plan sufficient to
give rise to a Lien under Section 302(f) of ERISA; neither the Company nor any
ERISA Affiliate has incurred, or reasonably expects to incur, any liability to
the PBGC under Title IV of ERISA with respect to any Pension Plan; neither the
Company nor any ERISA Affiliate has incurred, or reasonably expects to incur,
any liability (and no event has occurred which, with the giving of notice under
Section 4219 of ERISA, would result in such liability) under Section 4201 or
4243 of ERISA with respect to any Multiemployer Plan that would reasonably be
expected to have a Material Adverse Effect; and neither the Company nor any
ERISA Affiliate has engaged in a transaction that could be subject to Section
4069 or 4212(c) of ERISA.
6.8 Use of Proceeds; Margin Regulations. The proceeds of the Loans are
to be used solely for the purposes set forth in and permitted by Sections 7.12
and 8.7. Neither the Company nor any Subsidiary is generally engaged in the
business of purchasing or selling Margin Stock or extending credit for the
purpose of purchasing or carrying Margin Stock.
6.9 Title to Properties. Each of the Company and each Subsidiary has
good record and marketable title in fee simple to, or a valid leasehold interest
in, all real property necessary or used in the ordinary conduct of its
businesses, except for such defects in title as would not, individually or in
the aggregate, have a Material Adverse Effect. Each of the Company and each
Subsidiary has good title to all their other respective material properties and
assets (except for those assets disposed of not in violation of this Agreement
and the other Loan Documents). As of the Effective Date, the property of the
Company and its Subsidiaries is subject to no Liens, other than Permitted Liens.
6.10 Taxes. The Company and its Subsidiaries have filed all Federal and
State income tax returns and all other material tax returns and reports required
to be filed, and have paid all Federal and State income taxes and all other
material taxes, assessments, fees and other governmental charges levied or
imposed upon them or their properties, income or assets otherwise due and
payable, except those which are being contested in good faith by appropriate
proceedings and for which adequate reserves have been provided in accordance
with GAAP.
-55-
There is no written, and, to the best of the Company's knowledge, there is no
oral, proposed tax assessment against the Company or any Subsidiary that would,
if made, have a Material Adverse Effect.
6.11 Financial Condition. (a) The audited consolidated financial
statements of the Company dated September 30, 1997, and the related consolidated
statements of income or operations, shareholders' equity and cash flows for the
fiscal year then ended:
(i) were prepared in accordance with GAAP;
(ii) present fairly the financial condition of the Company
and its Subsidiaries as of the date thereof and the results of
operations for the period covered thereby; and
(iii) except as specifically disclosed in Schedule 6.11,
show all material indebtedness and other liabilities, direct or
contingent, of the Company and its Subsidiaries as of the date thereof,
including liabilities for taxes, material commitments and Contingent
Obligations.
(b) Since September 30, 1997 there has been no Material
Adverse Effect.
6.12 Regulated Entities. None of the Company or any Subsidiary is an
"investment company" within the meaning of the Investment Company Act of 1940.
None of the Company or any Subsidiary is subject to regulation under the Public
Utility Holding Company Act of 1935, the Federal Power Act, the Interstate
Commerce Act, any state public utilities code, or any other Federal or state
statute or regulation limiting its ability to incur Indebtedness.
6.13 No Burdensome Restrictions. Neither the Company nor any Subsidiary
is a party to or bound by any Contractual Obligation or subject to any
restriction in any Organization Document or any Requirement of Law which would
reasonably be expected to have a Material Adverse Effect.
6.14 Copyrights, Patents, Trademarks and Licenses, etc. The Company and
its Subsidiaries own or are licensed or otherwise have the right to use all of
the patents, trademarks, service marks, trade names, copyrights and other
similar rights that are reasonably necessary for the operation of their
respective businesses, without conflict with the rights of any other Person. To
the best knowledge of the Company, no slogan or other advertising device,
product, process, method, substance, part or other material now employed, or now
contemplated to be employed, by the Company or any Subsidiary infringes upon any
valid rights held by any other Person. Except as specifically disclosed in
Schedule 6.5, no claim or litigation regarding any of the foregoing is pending
or threatened against the Company or any Subsidiary, and no patent, invention,
device, application, principle or any statute, law, rule, regulation, standard
or code, relating in each case to intellectual property, is, to the knowledge of
the Company, pending or proposed, which, in either case, would reasonably be
expected to have a Material Adverse Effect.
-56-
6.15 Subsidiaries. As of the Effective Date, the Company has no
Subsidiaries other than those specifically disclosed in part (a) of Schedule
6.15 hereto and has no equity investments in any other corporation or entity
other than those specifically disclosed in part (b) of Schedule 6.15. As of the
Effective Date, none of Minera Vindaluz, Zoe-Phos International or Vidor Battery
has assets with a fair market value in excess of $100,000 or conducts any
business. As of the Effective Date, none of the Company or any of its
Subsidiaries provides any credit support to, or is liable in any manner for any
liabilities of, Minera Vindaluz, Zoe-Phos International or Vidor Battery.
6.16 Insurance. Except as specifically disclosed in Schedule 6.16, the
properties of the Company and its Subsidiaries are insured with financially
sound and reputable insurance companies not Affiliates of the Company, in such
amounts, with such deductibles and covering such risks as are customarily
carried by companies engaged in similar businesses and owning similar properties
in localities where the Company or such Subsidiary operates.
6.17 Solvency, etc. On the Effective Date (or, in the case of any
Person that becomes a Guarantor after the Effective Date, on the date such
Person becomes a Guarantor), and immediately prior to and after giving effect to
each Credit Extension and the use of the proceeds thereof, each of the Company
and each Guarantor will not have an unreasonably small capital (meaning that for
the period from the date of determination through December 31, 2002, each of the
Company and each Guarantor, after consummation of the transactions contemplated
by this Agreement, is a going concern and has sufficient capital to ensure that
it will be able to pay its debts and liabilities as they mature and continue to
be a going concern in the business in which such entities are engaged and
proposed to be engaged for such period), each of the Company's and each
Guarantor's assets will exceed its liabilities, each of the Company and each
Guarantor will be solvent, will be able to pay its Stated Liabilities as they
mature (meaning that each of the Company and such Guarantor will have sufficient
assets and cash flow to pay their respective Stated Liabilities as those
liabilities mature or otherwise become payable in the normal course of business)
and both the Fair Value and Present Fair Saleable Value of the assets of the
Company and each Guarantor exceeds the Stated Liabilities, respectively, of each
of the Company and each Guarantor.
6.18 Real Property; Mortgages. (a) Set forth on Schedule 6.18(a) is a
complete and accurate list, as of the date of this Agreement, of the address of
any real property owned or leased by the Company or any Subsidiary, together
with, in the case of leased property, the last known name and mailing address of
the lessor of such property; and (b) each Mortgage listed on Schedule 6.18(b)
creates a valid Lien in favor of the Administrative Agent on the property
subject thereto.
6.19 Swap Obligations. Neither the Company nor any of its Subsidiaries
has incurred any outstanding obligations under any Swap Contracts, other than
Permitted Swap Obligations. The Company has undertaken its own independent
assessment of its consolidated assets, liabilities and commitments and has
considered appropriate means of mitigating and
-57-
managing risks associated with such matters and has not relied on any swap
counterparty or any Affiliate of any swap counterparty in determining whether to
enter into any Swap Contract.
6.20 Senior Indebtedness. The Company's obligation to pay the
Obligations, including interest thereon and all fees, costs, expenses and
indemnities related thereto, constitute "Designated Senior Debt" of the Company
as such term is defined in the Senior Subordinated Note Indenture. The Guaranty
Obligations of each Subsidiary party to the guaranty of the Senior Subordinated
Notes are subordinated to the prior payment in full in cash of such Subsidiary's
Guaranty Obligations under the Guaranty. The Company acknowledges that the
Lenders and the Administrative Agent have entered into this Agreement, and have
extended Commitments, in reliance upon the subordination provisions in the
Senior Subordinated Note Indenture and in the Subsidiary guaranties thereof.
6.21 Environmental Warranties. Except as set forth in Schedule 6.21:
(a) all facilities and property (including underlying
groundwater) owned or leased by the Company or any of its Subsidiaries are in
compliance with all Environmental Laws, except for such non-compliance as would
not reasonably be expected to result in a Material Adverse Effect;
(b) there are no pending or threatened Environmental Claims,
except for such Environmental Claims that are not reasonably likely, either
singly or in the aggregate, to result in a Material Adverse Effect;
(c) there have been no Releases of Hazardous Materials at,
on or under any property now or, to the best of the Company's knowledge,
previously owned or leased by the Company or any of its Subsidiaries that,
singly or in the aggregate, have, or may reasonably be expected to have, a
Material Adverse Effect;
(d) the Company and its Subsidiaries have been issued and
are in compliance with all permits, certificates, approvals, licenses and other
authorizations relating to environmental matters and necessary or desirable for
their businesses, except to the extent that the failure to have or comply with
such permits, certificates, approvals, licenses and other authorizations
relating to environmental matters would not be reasonably likely to have a
Material Adverse Effect;
(e) no property now or, to the best of the Company's
knowledge, previously owned or leased by the Company or any of its Subsidiaries
is listed or proposed for listing (with respect to owned property only) on the
National Priorities List pursuant to CERCLA, or, to the best of the Company's
knowledge, is on the Comprehensive Environmental Response Compensation Liability
Information List or on any similar state list of sites requiring investigation
or clean-up, except, in each case, for any such listing that, singly or in the
aggregate, would not reasonably be expected to have a Material Adverse Effect;
and
-58-
(f) to the best of the Company's knowledge, neither the
Company nor any Subsidiary of the Company has directly transported or directly
arranged for the transportation of any Hazardous Material to any location which
is listed or proposed for listing on the National Priorities List pursuant to
CERCLA, or which is the subject of federal, state or local enforcement actions
or other investigations which may lead to Environmental Claims against the
Company or such Subsidiary except, in each case, to the extent that the
foregoing would not reasonably be expected to have a Material Adverse Effect.
6.22 Full Disclosure. None of the representations or warranties made by
the Company or any Subsidiary in the Loan Documents as of the date such
representations and warranties are made or deemed made and none of the written
statements contained in any exhibit, report, statement or certificate furnished
by or on behalf of the Company or any Subsidiary in connection with the Loan
Documents, considering each of the foregoing taken as a whole and in the context
in which it was made and together with all other representations, warranties and
written statements taken as a whole theretofore furnished by the Company and its
Subsidiaries to the Administrative Agent and the Lenders in connection with the
Loan Documents, contains any untrue statement of a material fact or omits any
material fact required to be stated therein or necessary to make such
representation, warranty or written statement, in light of the circumstances
under which it is made, not misleading as of the time when made or delivered;
provided that the Company's representation and warranty as to any forecast,
projection or other statement regarding future performance, future financial
results or other future development is limited to the fact that such forecast,
projection or statement was prepared in good faith on the basis of information
and assumptions that the Company believed to be reasonable as of the date such
material was provided (it being understood that projections are subject to
significant uncertainties and contingencies, many of which are beyond the
Company's control, and that no assurance can be given that the projections will
be realized).
ARTICLE VII
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan
or other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, unless the Required Lenders waive compliance in
writing:
7.1 Financial Statements. The Company shall deliver to the
Administrative Agent, in form and detail satisfactory to the Required Lenders:
(a) as soon as available, but not later than 90 days after
the end of each fiscal year, a copy of the audited consolidated balance sheet of
the Company and its Subsidiaries as at the end of such year and the related
consolidated statements of income or operations, shareholders' equity and cash
flows for such year, setting forth in each case in comparative form the figures
for the previous fiscal year, and accompanied by the opinion of a
-59-
nationally-recognized independent public accounting firm (the "Independent
Auditor"), which report (x) shall state that such consolidated financial
statements present fairly the consolidated financial position of the Company and
its Subsidiaries for the periods indicated in conformity with GAAP applied on a
basis consistent with prior years and (y) shall not be qualified or limited
because of a restricted or limited examination by the Independent Auditor of any
material portion of the Company's or any Subsidiary's (other than a Dormant
Subsidiary's) records;
(b) promptly when available, and in any event within 45 days
after the end of each fiscal quarter (other than the last fiscal quarter of each
fiscal year), a copy of the unaudited consolidated balance sheet of the Company
and its Subsidiaries as of the end of such quarter, and the related consolidated
statements of income, shareholders' equity and cash flows for such quarter and
for the period beginning with the first day of the applicable fiscal year and
ending on the last day of such quarter, including a comparison with the
corresponding quarter and period of the previous fiscal year and a comparison
with the budget for such quarter and for such period of the current fiscal year,
together with a certificate of the chief executive officer or the chief
financial officer of the Company that each such statement fairly presents the
financial condition and results of operations of the Company and its
Subsidiaries (subject to normal year-end audit adjustments) and has been
prepared in accordance with the management policies consistently applied; and
(c) not later than 90 days after the end of each fiscal year
(beginning with the fiscal year ended September 30, 1998), a copy of the
projections of the Company of the consolidated operating budget and cash flow
budget of the Company and its Subsidiaries for the succeeding fiscal year, such
projections to be accompanied by a certificate of the chief financial officer of
the Company to the effect that (i) such projections were prepared by the Company
in good faith, (ii) the Company has a reasonable basis for the assumptions
contained in such projections and (iii) such projections have been prepared
according to such assumptions.
7.2 Certificates; Other Information. The Company shall furnish to the
Administrative Agent:
(a) concurrently with the delivery of the financial
statements referred to in subsection 7.1(a), a certificate of the Independent
Auditor stating that in making the examination necessary therefor no knowledge
was obtained of any Event of Default or Unmatured Event of Default, except as
specified in such certificate;
(b) concurrently with the delivery of the financial
statements referred to in subsection 7.1(a) and each set of quarterly statements
referred to in subsection 7.1(b), a Compliance Certificate executed by a
Responsible Officer;
(c) promptly, copies of all financial statements and reports
that the Company sends to its shareholders, and copies of all financial
statements and regular, periodic or special reports (including Forms 10K, 10Q
and 8K) that the Company or any Subsidiary may make to, or file with, the SEC;
-60-
(d) promptly from time to time, any notices (including
without limitation notices of default or acceleration thereunder) received from
any holder or trustee of, under or with respect to any Subordinated Debt; and
(e) promptly, such additional information regarding the
business, financial or corporate affairs of the Company or any Subsidiary as the
Administrative Agent, at the request of any Lender, may from time to time
reasonably request.
7.3 Notices. Promptly upon a Responsible Officer obtaining knowledge
thereof, the Company shall notify the Administrative Agent (and the
Administrative Agent will promptly distribute such notice to the Lenders) of:
(a) the occurrence of any Event of Default or Unmatured
Event of Default;
(b) any matter that has resulted or would reasonably be
expected to result in a Material Adverse Effect, including, if applicable, any
breach or non-performance of, or any default under, a Contractual Obligation of
the Company or any Subsidiary, any dispute, litigation, investigation,
proceeding or suspension between the Company or any Subsidiary and any
Governmental Authority or the commencement of, or any material development in,
any litigation or proceeding affecting the Company or any Subsidiary;
(c) the occurrence of any of the following events affecting
the Company or any ERISA Affiliate (but in no event more than ten days after
such event, provided that the Company shall notify the Administrative Agent
(which shall promptly inform each Lender thereof) not less than ten days before
the occurrence of any event described in clause (ii) below), and deliver to the
Administrative Agent (which shall promptly deliver to each Lender a copy
thereof) a copy of any notice with respect to such event that is filed with a
Governmental Authority and any notice delivered by a Governmental Authority to
the Company or any ERISA Affiliate with respect to such event:
(i) an ERISA Event;
(ii) a contribution failure with respect to a
Pension Plan sufficient to give rise to a Lien under Section 302(f) of
ERISA;
(iii) a material increase in Unfunded Pension
Liabilities;
(iv) the adoption of, or the commencement of
contributions to, any Plan subject to Section 412 of the Code by the
Company or any ERISA Affiliate; or
(v) the adoption of any amendment to a Plan
subject to Section 412 of the Code, if such amendment results in a
material increase in contributions or Unfunded Pension Liabilities;
-61-
(d) any material change in accounting policies or financial
reporting practices by the Company or any of its consolidated Subsidiaries;
(e) any proposed payment of or on Subordinated Debt (other
than the Senior Subordinated Note Prepayment) prior to the making thereof; and
(f) upon the request from time to time of the Administrative
Agent, the Swap Termination Values, together with a description of the method by
which such values were determined, relating to any then-outstanding Swap
Contracts to which the Company or any of its Subsidiaries is party.
Each notice under clause(a), (b) or (c) of this Section shall be
accompanied by a written statement by a Responsible Officer setting forth
details of the occurrence referred to therein and stating what action the
Company or any affected Subsidiary proposes to take with respect thereto and at
what time. Each notice under subsection 7.3(a) shall describe with particularity
any and all clauses or provisions of this Agreement or any other Loan Document
that have been breached or violated.
7.4 Preservation of Corporate Existence, etc. The Company shall, and
shall cause each Subsidiary (other than a Dormant Subsidiary) to:
(a) preserve and maintain in full force and effect its
corporate existence and good standing under the laws of its state or
jurisdiction of incorporation except a Subsidiary need not be in compliance with
the foregoing to the extent such Subsidiary is sold pursuant to Section 8.2 or
merged or consolidated unto another Person pursuant to Section 8.3;
(b) preserve and maintain in full force and effect all
governmental rights, privileges, qualifications, permits, licenses and
franchises, in each case which are material and which are necessary or desirable
in the normal conduct of its business, except in connection with transactions
permitted by Section 8.3 and dispositions of assets permitted by Section 8.2;
and
(c) preserve or renew all of its registered patents,
copyrights, trademarks, trade names and service marks, the non-preservation of
which would reasonably be expected to have a Material Adverse Effect.
7.5 Maintenance of Property. The Company shall, and shall cause each
Subsidiary (other than a Dormant Subsidiary) to, maintain and preserve all
property material to the normal conduct of its business in good working order
and condition, ordinary wear and tear excepted, other than obsolete, worn out or
surplus equipment; provided, however, that nothing in this Section 7.5 shall
prevent the Company or any of its Subsidiaries from discontinuing the operation
and the maintenance of any of its properties or any Dormant Subsidiary if such
discontinuance is, in the opinion of the Board of Directors or senior management
of the Company, desirable in the conduct of its business and not disadvantageous
in any material respect to the Lenders.
-62-
7.6 Insurance. The Company shall, and shall cause each Subsidiary
(other than a Dormant Subsidiary) to, maintain with financially sound and
reputable independent insurers, insurance with respect to its properties and
business against loss or damage of the kinds customarily insured against by
Persons engaged in the same or similar business, of such types and in such
amounts as are customarily carried under similar circumstances by such other
Persons.
7.7 Payment of Obligations. The Company shall, and shall cause each
Subsidiary to, pay and discharge as the same shall become due and payable all of
its material obligations and liabilities, including:
(a) all material tax liabilities, assessments and
governmental charges or levies upon it or its properties or assets unless the
same are being contested in good faith by appropriate proceedings and adequate
reserves in accordance with GAAP are being maintained by the Company or such
Subsidiary; and
(b) all lawful claims which, if unpaid, would by law become
a Lien upon its property.
7.8 Compliance with Laws. The Company shall, and shall cause each
Subsidiary to, comply in all material respects with all material Requirements of
Law of any Governmental Authority having jurisdiction over it or its business
(including the Federal Fair Labor Standards Act), except such as may be
contested in good faith or as to which a bona fide dispute may exist.
7.9 Compliance with ERISA. The Company shall, and shall cause each of
its ERISA Affiliates to: (a) maintain each Plan in compliance in all material
respects with the applicable provisions of ERISA, the Code and other federal or
state law; (b) cause each Plan which is qualified under Section 401(a) of the
Code to maintain such qualification; and (c) make all required contributions to
any Plan subject to Section 412 of the Code.
7.10 Inspection of Property and Books and Records. The Company shall,
and shall cause each Subsidiary to, maintain proper books of record and account,
in which full, true and correct entries in conformity with GAAP consistently
applied shall be made of all financial transactions and matters involving the
assets and business of the Company and such Subsidiary. The Company shall
permit, and shall cause each Subsidiary to permit, representatives and
independent contractors of the Administrative Agent or any Lender to visit and
inspect any of their respective properties, to examine their respective
corporate, financial and operating records, and to make copies thereof or
abstracts therefrom, and to discuss their respective affairs, finances and
accounts with their respective directors, officers, and independent public
accountants and to inspect any of their inventory and equipment, to perform
appraisals of any of their equipment, and to inspect, audit, check and make
copies and/or extracts from the books, records, computer data and records,
computer programs, journals, orders, receipts, correspondence and other data
relating to inventory, accounts receivable, contract rights, general
intangibles, equipment and any other collateral, or relating to any other
transactions between the parties hereto; at such
-63-
reasonable times during normal business hours and as often as may be reasonably
desired, upon reasonable advance notice to the Company; provided, however, that
when an Event of Default exists, the Administrative Agent or any Lender may do
any of the foregoing without advance notice. After the occurrence and during the
continuance of any Event of Default, any such inspection shall be at the
Company's expense.
7.11 Environmental Covenant. The Company will, and will cause each of
its Subsidiaries to,
(a) use and operate all of its facilities and properties in
material compliance with all Environmental Laws, keep all necessary permits,
approvals, certificates, licenses and other authorizations relating to
environmental matters in effect and remain in material compliance therewith, and
handle all Hazardous Materials in material compliance with all applicable
Environmental Laws;
(b) promptly notify the Administrative Agent and provide
copies of all written Environmental Claims, and shall act in a diligent and
prudent fashion to address such Environmental Claims, including Environmental
Claims that allege that the Company or any of its Subsidiaries is not in
compliance with Environmental Laws; and
(c) provide such information and certifications which the
Administrative Agent may reasonably request from time to time to evidence
compliance with this Section 7.12.
7.12 Use of Proceeds. The Company shall use the proceeds of the
Revolving Loans and Swingline Loans and the Letters of Credit (i) to make the
Senior Subordinated Note Prepayment and (ii) for working capital and other
general corporate purposes not in contravention of any Requirement of Law or of
any Loan Document; and the Company shall use the proceeds of the Acquisition
Loans solely to consummate Acquisitions permitted by subsection 8.4(i).
7.13 Further Assurances. (a) The Company shall, and shall cause each
Subsidiary to, take such actions, and to execute, acknowledge, deliver, record,
file and register any and all such security agreements, mortgages, assignments,
estoppel certificates, financing statements and continuations thereof, notices
of assignment and other documents and instruments, as the Administrative Agent
or the Required Lenders may reasonably request from time to time in order (i) to
ensure that (x) the obligations of the Company hereunder and under the other
Loan Documents are secured by substantially all assets of the Company (provided
that, unless otherwise reasonably required by the Required Lenders, the pledge
of the capital stock of a Foreign Subsidiary shall be limited to 65% of the
outstanding capital stock of such Subsidiary and, so long as ROV Holding owns no
substantial business assets other than stock of Foreign Subsidiaries, the pledge
of stock of ROV Holding shall be limited to 65% of the outstanding capital stock
of ROV Holding) other than stock of Dormant Subsidiaries and guaranteed,
pursuant to the Guaranty, by all Subsidiaries (other than Foreign Subsidiaries
and Dormant Subsidiaries) (including, promptly upon the acquisition or creation
thereof, any Subsidiary
-64-
acquired or created after the date hereof) and (y) the obligations of each
Subsidiary under the Guaranty are secured by substantially all of the assets of
such Subsidiary other than stock of Dormant Subsidiaries (provided that, unless
reasonably required by the Required Lenders, the pledge of the capital stock of
a Foreign Subsidiary shall be limited to 65% of the outstanding capital stock of
such Subsidiary), (b) to perfect and maintain the validity, effectiveness and
priority of any of the Collateral Documents and the Liens intended to be created
thereby and (c) to better assure, convey, grant, assign, transfer, preserve,
protect and confirm to the Administrative Agent and the Lenders the rights
granted or now or hereafter intended to be granted to the Administrative Agent
and the Lenders under any Loan Document or under any other document executed in
connection therewith. Contemporaneously with the execution and delivery of any
document referred to above, the Company shall, and shall cause each Subsidiary
to, deliver all resolutions, opinions and corporate documents as the
Administrative Agent or the Required Lenders may reasonably request to confirm
the enforceability of such document and the perfection of the security interest
created thereby, if applicable. Notwithstanding the foregoing provisions of this
subsection (a), (A) the IP Subsidiary shall not be obligated to guaranty the
obligations of the Company hereunder or under the other Loan Documents or to
xxxxx x Xxxx on any of its property to the Administrative Agent or any Lender;
and (B) unless the Required Lenders otherwise request in writing (in which case
the Company will, or will cause the applicable Subsidiary to, promptly comply
with such request), neither the Company nor any Subsidiary shall have any
obligation to (i) perfect the Lien of the Administrative Agent on (x) any motor
vehicle which is subject to a certificate of title statute or (y) any note,
shares of stock or other security taken in settlement of claim so long as the
aggregate value of all such notes, shares and other securities not pledged to
(or otherwise subject to a perfected Lien in favor of) the Administrative Agent
does not exceed $250,000; or (ii) xxxxx x Xxxx to the Administrative Agent on
its real property located at 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx, 0000
Xxx Xxxx Xxxx, Xxxxxxx, Xxxxxxxxx or 0000 Xxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxx.
(b) If any Subsidiary that on the date hereof is a Dormant
Subsidiary ceases to be a Dormant Subsidiary, the Company shall promptly pledge
or cause to be pledged, pursuant to documentation in form and substance
satisfactory to the Administrative Agent,(so long as such Subsidiary is not
owned by a Foreign Subsidiary), (ii) in connection with such pledge, deliver or
cause to be delivered to the Administrative Agent such certificates and opinions
of counsel as requested by the Administrative Agent, and (iii) deliver or cause
to be delivered to the Administrative Agent the stock certificates (if any) to
be pledged thereunder, together with undated stock powers duly executed in
blank.
ARTICLE VIII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan
or other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, unless the Required Lenders waive compliance in
writing:
-65-
8.1 Limitation on Liens. The Company shall not, and shall not permit
any Subsidiary to, directly or indirectly, make, create, incur, assume or suffer
to exist any Lien upon or with respect to any part of its property, whether now
owned or hereafter acquired, other than the following ("Permitted Liens"):
(a) any Lien existing on property of the Company or any
Subsidiary on the Effective Date and set forth on Schedule 8.1 securing
Indebtedness outstanding on such date;
(b) any Lien created under any Loan Document;
(c) Liens for taxes, fees, assessments or other governmental
charges which are not delinquent or remain payable without penalty, or to the
extent that non-payment thereof is permitted by Section 7.7, provided that no
notice of lien has been filed or recorded under the Code;
(d) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other similar Liens arising in the ordinary course
of business which are not delinquent or which are being contested in good faith
and by appropriate proceedings, which proceedings have the effect of preventing
the forfeiture or sale of the property subject thereto;
(e) Liens (other than any Lien imposed by ERISA) consisting
of pledges or deposits required in the ordinary course of business in connection
with workers' compensation, unemployment insurance and other social security
legislation;
(f) Liens on property of the Company or any Subsidiary
securing the non-delinquent performance of bids, trade contracts (other than for
borrowed money), leases, statutory obligations, surety bonds (excluding appeal
bonds and other bonds posted in connection with court proceedings or judgments)
and other non-delinquent obligations of a like nature, in each case, incurred in
the ordinary course of business; provided that all such Liens in the aggregate
would not (even if enforced) cause a Material Adverse Effect;
(g) Liens consisting of judgment or judicial attachment
Liens and Liens securing contingent obligations on appeal bonds and other bonds
posted in connection with court proceedings or judgments, provided that the
enforcement of such Liens is effectively stayed and all such Liens in the
aggregate at any time outstanding for the Company and its Subsidiaries do not
exceed $5,000,000;
(h) easements, rights-of-way, restrictions and other similar
encumbrances 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 from the value of the property subject thereto or interfere
with the ordinary conduct of the businesses of the Company and its Subsidiaries
taken as a whole;
-66-
(i) purchase money security interests on any property
acquired by the Company or any Subsidiary in the ordinary course of business,
securing Indebtedness incurred or assumed for the purpose of financing all or
any part of the cost of acquiring such property, provided that any such Lien
attaches to such property concurrently with or within 90 days after the
acquisition thereof, such Lien attaches solely to the property so acquired in
such transaction, the principal amount of the Indebtedness secured thereby does
not exceed 100% of the cost of such property and the principal amount of the
Indebtedness secured by all such purchase money security interests shall not at
any time exceed $5,000,000;
(j) Liens securing obligations in respect of capital leases
on assets subject to such leases, provided that such capital leases are
otherwise permitted hereunder;
(k) Liens arising solely by virtue of any statutory or
common law provision relating to banker's liens, rights of set-off or similar
rights and remedies as to deposit accounts or other funds maintained with a
creditor depository institution, provided that such deposit account is not a
dedicated cash collateral account and is not subject to restrictions against
access by the Company in excess of those set forth by regulations promulgated by
the FRB and such deposit account is not intended by the Company or any
Subsidiary to provide collateral to the depository institution;
(l) extensions, renewals and replacements of Liens referred
to in clauses (a) through (k) above; provided that any such extension, renewal
or replacement Lien is limited to the property or assets covered by the Lien
extended, renewed or replaced and does not secure any Indebtedness in addition
to that secured immediately prior to such extension, renewal or replacement;
(m) Liens relating to IRB Debt permitted by subsection
8.5(k) covering only those capital improvements financed by such IRB Debt; and
(n) Liens securing other Indebtedness of the Company and its
Subsidiaries not expressly permitted by clauses (a) through (m) above; provided
that the aggregate amount of the Indebtedness secured by Liens permitted
pursuant to this clause (n) does not exceed $5,000,000 in the aggregate;
provided that no Lien (other than as set forth in clause (b) above) may attach
to (i) any Excluded Assets or (ii) any assets of the IP Subsidiary.
8.2 Disposition of Assets. The Company shall not, and shall not permit
any Subsidiary to, directly or indirectly, sell, assign, lease, convey, transfer
or otherwise dispose of (whether in one or a series of transactions) any
property (including accounts and notes receivable, with or without recourse) or
enter into any agreement to do any of the foregoing, except:
-67-
(a) dispositions of inventory, or used, worn-out or surplus
equipment, all in the ordinary course of business;
(b) the sale of equipment to the extent that such equipment
is exchanged for credit against the purchase price of similar replacement
equipment, or the proceeds of such sale are reasonably promptly applied to the
purchase price of such replacement equipment;
(c) dispositions not otherwise permitted hereunder
(including the disposition of all of the capital stock of any operating
Subsidiary and including a disposition pursuant to a sale and lease-back
transaction) which are made for fair market value if the fair market value of
all assets so disposed of by the Company and its Subsidiaries under this clause
(c) does not exceed $10,000,000 in the aggregate; provided that (i) at the time
of any disposition, no Event of Default or Unmatured Event of Default shall
exist or will result from such disposition and (ii) at least 75% of the
consideration received by the Company or such Subsidiary from such disposition
is in cash or Cash Equivalent Investments;
(d) mergers expressly permitted by Section 8.3 or transfers
by any Wholly- Owned Subsidiary of the Company of its assets upon its
liquidation to the Company or any of its Wholly-Owned Subsidiaries;
(e) the sale of patents, trademarks and other intellectual
property to the IP Subsidiary pursuant to documentation reasonably acceptable to
the Required Lenders; and
(f) in addition to any other disposition permitted by this
Section 8.2, the sale or disposition of any assets (including the disposition of
all of the capital stock of any operating Subsidiary and including a disposition
pursuant to a sale and lease-back transaction) if the fair market value of all
assets so disposed of by the Company and its Subsidiaries under this clause (f)
does not exceed $1,000,000 in the aggregate; provided that at the time of any
disposition, no Event of Default or Unmatured Event of Default shall exist or
will result from such disposition.
8.3 Consolidations and Mergers. The Company shall not, and shall not
permit any Subsidiary to, merge or consolidate with or into any other Person,
except that (a) any Subsidiary may merge with the Company (provided that the
Company shall be the continuing or surviving corporation) or with any one or
more Wholly-Owned Subsidiaries (provided that a Wholly-Owned Subsidiary shall be
the continuing or surviving corporation); and (b) the Company or any Subsidiary
may merge or consolidate in connection with any Acquisition permitted by
subsection 8.4(i).
8.4 Loans and Investments. The Company shall not, and shall not permit
any Subsidiary to, purchase or acquire, or make any commitment to purchase or
acquire, any capital stock, equity interest or other obligations or securities
of, or any interest in, any other Person, or make or commit to make any
Acquisition, or make or commit to make any advance, loan,
-68-
extension of credit or capital contribution to or any other investment in, any
other Person, except for:
(a) investments in Cash Equivalent Investments;
(b) extensions of credit in the nature of accounts
receivable or notes receivable arising from the sale or lease of goods or
services in the ordinary course of business;
(c) investments by the Company in its Wholly-Owned
Subsidiaries or by any Subsidiary in any Wholly-Owned Subsidiary, in the form of
contributions to capital or loans or advances; provided that, immediately before
and after giving effect to such investment, no Event of Default or Unmatured
Event of Default shall have occurred and be continuing and the aggregate amount
invested in Foreign Subsidiaries after the Effective Date (excluding investments
which constitute Guaranty Obligations) shall not exceed $20,000,000;
(d) loans or advances made by any Subsidiary to the Company;
(e) loans and advances to employees in the ordinary course
of business (such as travel advances and including the Xxxxx Note) in an
aggregate amount not at any time exceeding $3,000,000;
(f) investments by the Company and its Subsidiaries in Joint
Ventures in the form of contributions of capital, loans, advances or Contingent
Obligations; provided that, immediately before and after giving effect to such
investment, (x) no Event of Default or Unmatured Event of Default shall have
occurred and be continuing, including without limitation pursuant to Section
8.9, and (y) the aggregate amount of all investments pursuant to this clause (f)
shall not exceed $5,000,000 in the aggregate (with all such investments valued
at the time of investment at the cash amount thereof, if in cash, the fair
market value thereof as determined by the board of directors of the Company, if
in property, and at the maximum amount thereof if in Contingent Obligations);
(g) investments constituting Permitted Swap Obligations or
payments or advances under Swap Contracts relating to Permitted Swap
Obligations;
(h) investments existing on the Effective Date and set forth
on Schedule 8.4;
(i) Investments incurred in order to consummate
Acquisitions, provided that (i) no Unmatured Event of Default or Event of
Default exists or will result therefrom, (ii) the acquired Person is engaged in,
or the acquired assets will be used in, a line of business engaged in by the
Company and its Subsidiaries on the date of this agreement or a business or
activity that is substantially similar, related or incidental thereto or which
constitutes a reasonable extension of product lines of the Company in existence
on the date of this Agreement, (iii) after giving effect to such Acquisition,
the Company would have been in compliance on a pro forma basis, after giving
effect to such Acquisition (as if such Acquisition had occurred, and any
-69-
related Indebtedness had been assumed or incurred, on the first day of the most
recently-ended Computation Period, but without adjustment for expected cost
savings and other synergies) with Sections 8.11 and 8.12 as of such most
recently-ended Computation Period; provided that for purposes of testing
compliance herewith, the "Permitted Ratio" for the applicable period as set
forth in Section 8.12 shall be reduced by 0.25 to 1, (iv) the board of directors
of any entity proposed to be acquired has not announced that it will oppose such
Acquisition and has not commenced any litigation which alleges that such
Acquisition violates, or will violate, any Requirement of Law or any Contractual
Obligation of such entity, and (v) if the total consideration to be paid in
connection with such proposed Acquisition exceeds $3,000,000, the Company shall
have delivered to the Agent a certificate setting forth calculations
demonstrating compliance with the requirements set forth in clause (iii) above;
and
(j) other investments in an aggregate amount not exceeding
$5,000,000 during the term of this Agreement (with all such investments valued
at the time of investment at the cash amount thereof, if in cash, the fair
market value thereof as determined by the board of directors of the Company, if
in property, and at the maximum amount thereof if in Contingent Obligations).
8.5 Limitation on Indebtedness. The Company shall not, and shall not
permit any Subsidiary to, create, incur, assume, suffer to exist, or
otherwise
become or remain directly or indirectly liable with respect to, any
Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement and the
Guaranty;
(b) Subordinated Debt;
(c) Indebtedness consisting of Contingent Obligations
permitted pursuant to Section 8.8;
(d) Indebtedness of Foreign Subsidiaries to Persons other
than the Company and its Subsidiaries in an aggregate amount not at any time
exceeding $25,000,000;
(e) Indebtedness of Subsidiaries to the Company or
Wholly-Owned Subsidiaries;
(f) Indebtedness secured by Liens permitted by subsection
8.1(i);
(g) Indebtedness incurred in connection with leases
permitted
pursuant to Section 8.10;
(h) Indebtedness of the Company or any Subsidiary of the
Company in connection with guaranties resulting from endorsement of negotiable
instruments in the ordinary course of business;
-70-
(i) surety bonds and appeal bonds required in the ordinary
course of business or in connection with the enforcement of rights or claims of
the Company or in connection with judgments that do not result in an Unmatured
Event of Default or an Event of Default;
(j) IRB Debt in a principal amount not to exceed $10,000,000
at any one time outstanding; and
(k) other Indebtedness (excluding Indebtedness of Foreign
Subsidiaries) in an aggregate amount not at any time exceeding $5,000,000.
Notwithstanding the foregoing, the IP Subsidiary shall not incur any
Indebtedness other than Indebtedness to the Company.
8.6 Transactions with Affiliates. The Company shall not, and shall not
permit any Subsidiary to, enter into any transaction with any Affiliate of the
Company (other than a Subsidiary), except upon fair and reasonable terms no less
favorable to the Company or such Subsidiary than would be obtainable in a
comparable arm's-length transaction with a Person not an Affiliate of the
Company; it being understood that the Management Agreement, the Xxxxx Note and
the Employment Agreement shall not violate this Section.
8.7 Use of Proceeds. The Company shall not, and shall not permit any
Subsidiary to, use any portion of the proceeds of any Loan or any Letter of
Credit, directly or indirectly, to purchase or carry Margin Stock, to repay or
otherwise refinance indebtedness of the Company or others incurred to purchase
or carry Margin Stock, to extend credit for the purpose of purchasing or
carrying any Margin Stock or acquire any security in any transaction that is
subject to Section 13 or 14 of the Exchange Act.
8.8 Contingent Obligations. The Company shall not, and shall not permit
any Subsidiary to, create, incur, assume or suffer to exist any Contingent
Obligation except:
(a) endorsements for collection or deposit in the ordinary
course of business;
(b) Permitted Swap Obligations;
(c) Contingent Obligations of the Company and its
Subsidiaries existing as of the Effective Date and listed in Schedule 8.8;
(d) Guaranty Obligations by the Company relating to
Indebtedness of Wholly-Owned Subsidiaries which is permitted hereunder;
(e) Contingent Obligations arising under the Loan Documents;
and
(f) Contingent Obligations with respect to Joint Ventures to
the extent permitted by Section 8.9; and
-71-
(g) Guaranty Obligations of ROV Holding (and any other
Subsidiary which is required to execute a guaranty pursuant to Section 4.16 or
4.17 of the Senior Subordinated Note Indenture as in effect on the date hereof)
of the obligations of the Company under the Senior Subordinated Notes.
8.9 Joint Ventures. The Company shall not, and shall not permit any
Subsidiary to, enter into any Joint Venture, except that the Company or any
Subsidiary may enter into any Joint Venture so long as the aggregate amount
invested by the Company and its Subsidiaries in all Joint Ventures in any form
(including without limitation by capital contribution, incurrence of
Indebtedness by any such Joint Venture to the Company or any Subsidiary or the
incurrence of Contingent Obligations by the Company or any Subsidiary with
respect to any such Joint Venture), during the term of this Agreement does not
exceed $5,000,000; provided, however, that for purposes of determining the
aggregate amount invested in Joint Ventures hereunder (x) any return of
principal or equity received in cash on any amount invested hereunder and (y)
the fair market value of any other property received in exchange for any amount
invested hereunder shall be deducted.
8.10 Lease Obligations. The Company shall not, and shall not permit any
Subsidiary to, create or suffer to exist any obligations for the payment of rent
for any property under lease or agreement to lease, except for:
(a) leases of the Company and its Subsidiaries in existence
on the Effective Date and any renewal, extension or refinancing thereof;
(b) operating leases entered into by the Company or any
Subsidiary after the Effective Date in the ordinary course of business; and
(c) capital leases entered into by the Company to finance
the acquisition of equipment; provided that no Event of Default or Unmatured
Event of Default has occurred and is continuing or will result from the
incurrence of the obligations of the Company contemplated thereby.
8.11 Minimum Interest Coverage Ratio. The Company will not permit the
Interest Coverage Ratio for any Computation Period to be less than 3.0 to 1.
8.12 Maximum Leverage Ratio. The Company will not permit the Leverage
Ratio for any Computation Period to exceed the ratio set forth below opposite
the period in which such Computation Period ends:
-72-
Period Ratio
------ -----
12/31/97 - 09/30/99 3.75:1.0
12/31/99 - 09/30/00 3.50:1.0
12/31/00 and thereafter 3.25:1.0.
8.13 Restricted Payments. The Company shall not, and shall not permit
any Subsidiary to, (i) declare or make any dividend payment or other
distribution of assets, properties, cash, rights, obligations or securities on
account of any shares of any class of its capital stock, or purchase, redeem or
otherwise acquire for value any shares of its capital stock or any warrants,
rights or options to acquire such shares, now or hereafter outstanding (any of
the foregoing, a "Distribution"), or (ii) make any redemption, prepayment,
defeasance, purchase or repurchase of any Subordinated Debt except that:
(a) any Subsidiary may declare and pay dividends to the
Company or a Wholly-Owned Subsidiary;
(b) the Company may declare and make dividend payments or
other distributions payable solely in Common Stock;
(c) the Company or any of its Subsidiaries may purchase
Common Stock or options with respect to Common Stock held by employees or
management of the Company or any of its Subsidiaries in connection with the
termination of employment of any such employees or management, provided that all
such payments do not exceed $5,000,000 in the aggregate, and the price paid for
such Common Stock or options does not exceed the market value of such Common
Stock or options at the time paid; and
(d) so long as no Event of Default or Unmatured Event of
Default has occurred and is continuing or would result therefrom (i) the Company
may make the Senior Subordinated Note Prepayment and (ii) the Company may make
Distributions in an aggregate amount not exceeding (at the time of such
Distribution) 25% of the Company's Consolidated Net Income during the period
from October 1, 1997 through the most recent date for which the Company has
delivered financial statements pursuant to Section 7.1(a) or (b).
8.14 ERISA. The Company shall not, and shall not permit any of its
ERISA Affiliates to: engage in a prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan which has resulted or
would reasonably be expected to result in liability of the Company in an
aggregate amount in excess of $1,000,000 at any time; or engage in a transaction
that could be subject to Section 4069 or 4212(c) of ERISA.
-73-
8.15 Limitations on Sale and Leaseback Transactions. The Company shall
not, and shall not permit any Subsidiary to, enter into any arrangement with any
Person providing for the leasing by the Company or any Subsidiary of any real or
personal property, which property is or has been sold or transferred by the
Company or any Subsidiary to such Person in contemplation of taking back a lease
thereof in an aggregate amount in excess of $10,000,000.
8.16 Inconsistent Agreements. The Company will not, and will not permit
any Subsidiary to, enter into any agreement containing any provision which would
be violated or breached by any borrowing by the Company hereunder or by the
performance by the Company or any Subsidiary of their respective obligations
hereunder or under any other Loan Document.
8.17 Change in Business. The Company shall not, and shall not permit
any Subsidiary to, engage in any business other than those lines of business
carried on by the Company and its Subsidiaries on the date hereof, any business
or activities that are substantially similar, related or incidental thereto and
reasonable extensions of product lines of the Company in existence on the date
hereof.
8.18 Amendments to Certain Documents. The Company shall not make or
agree to any amendment to or modification of, or waive any of its rights under,
any of the terms of (a) the Management Agreement or (b) the Subordinated Note
Indenture, unless such amendment is not adverse in any respect to the Lenders.
8.19 Limitation on Issuance of Guaranty Obligations. The Company will
not permit any Subsidiary to create, incur, assume, suffer to exist, or
otherwise become or remain directly or indirectly liable with respect to any
Guaranty Obligation relating to any Indebtedness of the Company unless
(i) such Subsidiary, if it is not already a party to the
Guaranty, simultaneously executes and delivers to the Administrative
Agent a counterpart of the Guaranty, together with such supporting
documentation as the Administrative Agent may reasonably request,
notwithstanding Section 7.14,
(ii) if such Indebtedness is by its terms subordinated to
the Obligations, any such assumption, guaranty or other liability of
such Subsidiary with respect to such Indebtedness shall be
subordinated, in form and substance satisfactory to the Administrative
Agent, to such Subsidiary's Guaranty Obligation with respect to the
Obligations to the same extent as such Indebtedness is subordinated to
the Obligations (provided that such Subsidiary's Guaranty Obligation of
such Indebtedness of the Company shall be subordinated to the full
amount of such Subsidiary's Guaranty Obligation under the Guaranty
without giving effect to any reduction thereto necessary to render the
Guaranty Obligation of such Subsidiary thereunder not voidable under
applicable law relating to fraudulent conveyance or fraudulent
transfer), and
-74-
(iii) such Subsidiary waives and will not in any manner
whatsoever claim or take the benefit or advantage of, any right of
reimbursement, indemnity or subrogation or any other rights against the
Company or any other Subsidiary as a result of any payment by such
Subsidiary under such Guaranty Obligation.
ARTICLE IX
EVENTS OF DEFAULT
9.1 Event of Default. Any of the following shall constitute an "Event
of Default":
(a) Non-Payment. The Company fails to pay, when and as
required to be paid herein, any amount of principal of any Loan or of any L/C
Obligation, or, within three Business Days after the same becomes due, any
amount of interest or any fees or other amounts payable hereunder or under any
other Loan Document.
(b) Representation or Warranty. Any representation or
warranty by the Company or any Subsidiary made or deemed made herein or in any
other Loan Document, or which is contained in any certificate, document or
financial or other statement by the Company, any Subsidiary or any Responsible
Officer furnished at any time under this Agreement or any other Loan Document,
is incorrect in any material respect on or as of the date made or deemed made.
(c) Specific Defaults. The Company fails to perform or
observe any term, covenant or agreement contained in any of Section 7.3 or
Article VIII.
(d) Other Defaults. The Company or any Guarantor party
thereto fails to perform or observe any other term or covenant contained in this
Agreement or any other Loan Document, and such default shall continue unremedied
for a period of 30 days after the earlier of the date upon which a Responsible
Officer knew or reasonably should have known of such failure or the date upon
which written notice thereof is given to the Company by the Administrative Agent
or any Lender.
(e) Cross-Default. The Company or any Guarantor fails to
make any payment in respect of any Indebtedness or Contingent Obligation (other
than in respect of Swap Contracts) having an aggregate principal amount
(including undrawn committed or available amounts and including amounts owing to
all creditors under any combined or syndicated credit arrangement) of more than
$3,000,000 when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise but subject to any applicable grace period)
or fails to perform or observe any other condition or covenant, or any other
event shall occur or condition shall exist, under any agreement or instrument
relating to any such Indebtedness or Contingent Obligation, if the effect of
such failure, event or condition is to cause, or to permit the holder or holders
of such Indebtedness or beneficiary or beneficiaries of such Indebtedness
-75-
(or a trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, such Indebtedness to be declared to be due and payable
prior to its stated maturity, or such Contingent Obligation to become payable,
or cash collateral in respect thereof to be demanded or there occurs under any
Swap Contract an Early Termination Date (as defined in such Swap Contract)
resulting from any event of default under such Swap Contract as to which the
Company or any Subsidiary is the Defaulting Party (as defined in such Swap
Contract) or any Termination Event (as so defined) as to which the Company or
any Subsidiary is an Affected Party (as so defined), and, in either event, the
Swap Termination Value owed by the Company or such Subsidiary as a result
thereof is greater than $3,000,000.
(f) Insolvency; Voluntary Proceedings. The Company or any
Subsidiary (other than a Dormant Subsidiary): ceases or fails to be solvent, or
generally fails to pay, or admits in writing its inability to pay, its debts as
they become due; voluntarily ceases to conduct its business in the ordinary
course; commences any Insolvency Proceeding with respect to itself; or takes any
action to effectuate or authorize any of the foregoing.
(g) Involuntary Proceedings. Any involuntary Insolvency
Proceeding is commenced or filed against the Company or any Subsidiary (other
than a Dormant Subsidiary), or any writ, judgment, warrant of attachment,
warrant of execution or similar process is issued or levied against a
substantial part of the Company's or any Subsidiary's properties, and such
proceeding or petition shall not be dismissed, or such writ, judgment, warrant
of attachment, warrant of execution or similar process shall not be released,
vacated or fully bonded within 60 days after commencement, filing or levy; the
Company or any Subsidiary (other than a Dormant Subsidiary) admits the material
allegations of a petition against it in any Insolvency Proceeding, or an order
for relief (or similar order under non-U.S. law) is ordered in any Insolvency
Proceeding; or the Company or any Subsidiary (other than a Dormant Subsidiary)
acquiesces in the appointment of a receiver, trustee, custodian, conservator,
liquidator, mortgagee in possession (or agent therefor) or other similar Person
for itself or a substantial portion of its property or business.
(h) ERISA. One or more ERISA Events shall occur with respect
to a Pension Plan or Multiemployer Plan which has resulted or could reasonably
be expected to result in liability of the Company under Title IV of ERISA to the
Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of
$3,000,000; a contribution failure shall have occurred with respect to a Pension
Plan sufficient to give rise to a Lien under Section 302(f) of ERISA; the
aggregate amount of Unfunded Pension Liability among all Pension Plans at any
time exceeds $3,000,000; or the Company or any ERISA Affiliate shall fail to pay
when due, after the expiration of any applicable grace period, one or more
installment payments with respect to its withdrawal liability under Section 4201
of ERISA under a Multiemployer Plan which results in an aggregate withdrawal
liability in excess of $3,000,000.
(i) Monetary Judgments. One or more judgments, orders,
decrees or arbitration awards is entered against the Company or any Subsidiary
involving in the aggregate a liability (to the extent not covered by independent
third-party insurance as to which the insurer
-76-
does not dispute coverage), as to any single or related series of transactions,
incidents or conditions, of $3,000,000 or more, and the same shall remain
undischarged, unvacated and unstayed pending appeal for a period of 30 days
after the entry thereof, or the Company or any Subsidiary shall enter into any
agreement to settle or compromise any pending or threatened litigation (to the
extent not covered by independent third party insurance as to which the insurer
does not dispute coverage), as to any single or related series of claims,
involving payment by the Company or any Subsidiary of $3,000,000 or more.
(j) Non-Monetary Judgments. Any non-monetary judgment, order
or decree is entered against the Company or any Subsidiary which has or would
reasonably be expected to have a Material Adverse Effect, and there shall be any
period of 30 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be in
effect.
(k) Change of Control. Any Change of Control occurs.
(l) Guarantor Defaults. The Guaranty shall cease to be in
full force and effect with respect to any Guarantor (other than as expressly
permitted hereunder), any Guarantor shall fail to comply with or to perform any
applicable provision of the Guaranty, or any Guarantor (or any Person acting by,
through or on behalf of such Guarantor) shall contest in any manner the
validity, binding nature or enforceability of the Guaranty with respect to such
Guarantor.
(m) Collateral Documents, etc. Any Collateral Document shall
cease to be in full force and effect with respect to the Company or any
Guarantor (other than as expressly permitted hereunder), the Company or any
Guarantor shall fail to comply with or to perform any applicable provision of
any Collateral Document, or the Company or any Guarantor (or any Person acting
by, through or on behalf of the Company or any Guarantor) shall contest in any
manner the validity, binding nature or enforceability of any Collateral
Document.
9.2 Remedies. If any Event of Default occurs, the Administrative Agent
shall, at the request of, or may, with the consent of, the Required Lenders do
any or all of the following:
(a) declare the commitment of each Lender to make Loans and
any obligation of the Issuing Lender to Issue Letters of Credit to be
terminated, whereupon such commitments and obligations shall be terminated;
(b) declare an amount equal to the maximum aggregate amount
that is or at any time thereafter may become available for drawing under any
outstanding Letter of Credit (whether or not any beneficiary shall have
presented, or shall be entitled at such time to present, the drafts or other
documents required to draw under such Letter of Credit) to be immediately due
and payable, and declare the unpaid principal amount of all outstanding Loans,
all interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Company; and
-77-
(c) exercise on behalf of itself and the Lenders all rights
and remedies available to it and the Lenders under the Loan Documents or
applicable law;
provided, however, that upon the occurrence of any Event of Default specified in
subsection 9.1(f) or (g), the obligation of each Lender to make Loans and the
obligation of the Issuing Lender to Issue Letters of Credit shall automatically
terminate and the unpaid principal amount of all outstanding Loans and all
interest and other amounts as aforesaid shall automatically become due and
payable without further act of the Administrative Agent, the Issuing Lender or
any other Lender.
9.3 Rights Not Exclusive. The rights provided for in this Agreement and
the other Loan Documents are cumulative and are not exclusive of any other
rights, powers, privileges or remedies provided by law or in equity, or under
any other instrument, document or agreement now existing or hereafter arising.
ARTICLE X
THE ADMINISTRATIVE AGENT
10.1 Appointment and Authorization.
(a) Each Lender hereby irrevocably (subject to Section 10.9)
appoints, designates and authorizes the Administrative Agent to take such action
on its behalf under the provisions of this Agreement and each other Loan
Document and to exercise such powers and perform such duties as are expressly
delegated to it by the terms of this Agreement or any other Loan Document,
together with such powers as are reasonably incidental thereto. Notwithstanding
any provision to the contrary contained elsewhere in this Agreement or in any
other Loan Document, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, nor shall the
Administrative Agent have or be deemed to have 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 Loan
Document or otherwise exist against the Administrative Agent. Without limiting
the generality of the foregoing sentence, the use of the term "agent" in this
Agreement and in the other Loan Documents with reference to the Administrative
Agent is not intended to connote any fiduciary or other implied (or express)
obligation arising under agency doctrine of any applicable law. Instead, such
term is used merely as a matter of market custom, and is intended to create or
reflect only an administrative relationship between independent contracting
parties.
(b) The Issuing Lender shall act on behalf of the Lenders
with respect to any Letters of Credit Issued by it and the documents associated
therewith until such time and except for so long as the Administrative Agent may
agree at the request of the Required Lenders to act for the Issuing Lender with
respect thereto; provided, however, that the Issuing Lender shall have all of
the benefits and immunities provided to the Administrative Agent in this Article
X
-78-
with respect to any acts taken or omissions suffered by the Issuing Lender in
connection with Letters of Credit Issued by it or proposed to be Issued by it
and the applications and agreements for letters of credit pertaining to the
Letters of Credit as fully as if the term "Administrative Agent", as used in
this Article X, included the Issuing Lender with respect to such acts or
omissions and as additionally provided in this Agreement with respect to the
Issuing Lender.
(c) The Swingline Lender shall act on behalf of the Lenders
with respect to any Swingline Loan until such time and except for so long as the
Administrative Agent may agree at the request of the Required Lenders to act for
the Swingline Lender with respect thereto; provided, however, that the Swingline
Lender shall have all of the benefits and immunities provided to the
Administrative Agent in this Article X with respect to any acts taken or
omissions suffered by the Issuing Lender in connection with Swingline Loans made
or proposed to be made by it as fully as if the term "Administrative Agent", as
used in this Article X, included the Swingline Lender with respect to such acts
or omissions and as additionally provided in this Agreement with respect to the
Swingline Lender.
10.2 Delegation of Duties. The Administrative Agent may execute any of
its duties under this Agreement or any other Loan Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects with reasonable care.
10.3 Liability of Administrative Agent. None of the Agent-Related
Persons shall be liable for any action taken or omitted to be taken by any of
them under or in connection with this Agreement or any other Loan Document or
the transactions contemplated hereby (except for its own gross negligence or
willful misconduct) or be responsible in any manner to any of the Lenders for
any recital, statement, representation or warranty made by the Company or any
Subsidiary or Affiliate of the Company, or any officer thereof, contained in
this Agreement or in any other Loan Document, or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Administrative Agent under or in connection with, this Agreement or any other
Loan Document, or the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document, or the existence,
creation, validity, attachment, perfection, enforceability, value or sufficiency
of any collateral security for the Obligations or for any failure of the Company
or any other party to any Loan Document to perform its obligations hereunder or
thereunder. No Agent-Related Person 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 Loan
Document, or to inspect the properties, books or records of the Company or any
of the Company's Subsidiaries or Affiliates.
10.4 Reliance by Administrative Agent. (a) The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
writing, resolution, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, statement or other document or
conversation believed by it to be genuine and correct and to have been signed,
-79-
sent or made by the proper Person or Persons, and upon advice and statements of
legal counsel (including counsel to the Company), independent accountants and
other experts selected by the Administrative Agent. The Administrative Agent
shall be fully justified in failing or refusing to take any action under this
Agreement or any other Loan Document unless it shall first receive such advice
or concurrence of the Required Lenders as it deems appropriate and, if it so
requests, 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 Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement or any other Loan Document in accordance with a request or
consent of the Required Lenders and such request and any action taken or failure
to act pursuant thereto shall be binding upon all of the Lenders.
(b) For purposes of determining compliance with the
conditions specified in Sections 5.1 and 5.2, each Lender that has executed this
Agreement shall be deemed to have consented to, approved or accepted, or to be
satisfied with, each document or other matter either sent by the Administrative
Agent to such Lender for consent, approval, acceptance or satisfaction, or
required thereunder to be consented to or approved by or acceptable or
satisfactory to such Lender.
10.5 Notice of Default. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Event of Default or Unmatured
Event of Default, except with respect to defaults in the payment of principal,
interest and fees required to be paid to the Administrative Agent for the
account of the Lenders, unless the Administrative Agent shall have received
written notice from a Lender or the Company referring to this Agreement,
describing such Event of Default or Unmatured Event of Default and stating that
such notice is a "notice of default". The Administrative Agent will notify the
Lenders of its receipt of any such notice. The Administrative Agent shall take
such action with respect to such Event of Default or Unmatured Event of Default
as may be requested by the Required Lenders in accordance with Article IX;
provided, however, that unless and until the Administrative Agent has received
any such request, the Administrative Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such Event
of Default or Unmatured Event of Default as it shall deem advisable or in the
best interest of the Lenders.
10.6 Credit Decision. Each Lender acknowledges that none of the
Agent-Related Persons has made any representation or warranty to it, and that no
act by the Administrative Agent hereafter taken, including any review of the
affairs of the Company and its Subsidiaries, shall be deemed to constitute any
representation or warranty by any Agent-Related Person to any Lender. Each
Lender represents to the Administrative Agent that it has, independently and
without reliance upon any Agent-Related Person and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, operations, property, financial and
other condition and creditworthiness of the Company and its Subsidiaries, and
all applicable bank regulatory laws relating to the transactions contemplated
hereby, and made its own decision to enter into this Agreement and to extend
credit to the Company hereunder. Each Lender also represents that it will,
independently
-80-
and without reliance upon any Agent-Related Person 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 Loan Documents, and to make such
investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Company. Except for notices, reports and other documents
expressly herein required to be furnished to the Lenders by the Administrative
Agent, the Administrative Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the business,
prospects, operations, property, financial and other condition or
creditworthiness of the Company which may come into the possession of any of the
Agent-Related Persons.
10.7 Indemnification. Whether or not the transactions contemplated
hereby are consummated, the Lenders shall indemnify upon demand the
Administrative Agent and the Agent-Related Persons (to the extent not reimbursed
by or on behalf of the Company and without limiting the obligation of the
Company to do so), pro rata, from and against any and all Indemnified
Liabilities; provided, however, that no Lender shall be liable for the payment
to the Administrative Agent or any Agent-Related Person of any portion of the
Indemnified Liabilities resulting solely from such Person's gross negligence or
willful misconduct. Without limitation of the foregoing, each Lender shall
reimburse the Administrative Agent upon demand for its ratable share of any
costs or out-of-pocket expenses (including Attorney Costs) incurred by the
Administrative Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, any other Loan Document, or
any document contemplated by or referred to herein, to the extent that the
Administrative Agent is not reimbursed for such expenses by or on behalf of the
Company. The undertaking in this Section shall survive the payment of all
Obligations hereunder and the resignation or replacement of the Administrative
Agent.
10.8 Administrative Agent in Individual Capacity. BofA and its
Affiliates may make loans to, issue letters of credit for the account of, accept
deposits from, acquire equity interests in and generally engage in any kind of
banking, trust, financial advisory, underwriting or other business with the
Company and its Subsidiaries and Affiliates as though BofA were not the
Administrative Agent hereunder and without notice to or consent of the Lenders.
The Lenders acknowledge that, pursuant to such activities, BofA or its
Affiliates may receive information regarding the Company or its Affiliates
(including information that may be subject to confidentiality obligations in
favor of the Company or such Affiliates) and acknowledge that the Administrative
Agent shall be under no obligation to provide such information to them. With
respect to its Loans, BofA and any Affiliate thereof shall have the same rights
and powers under this Agreement as any other Lender and may exercise the same as
though BofA were not the Administrative Agent.
10.9 Successor Administrative Agent. The Administrative Agent may, and
at the request of the Required Lenders shall, resign as Administrative Agent
upon 30 days' notice to the Lenders and the Company. If the Administrative Agent
resigns under this Agreement, the
-81-
Required Lenders shall have the right, with the consent of the Company so long
as no Event of Default or Unmatured Event of Default has occurred and is
continuing (which consent shall not be unreasonably withheld or delayed), to
appoint from among the Lenders a successor agent for the Lenders. If no
successor agent is appointed prior to the effective date of the resignation of
the Administrative Agent, the Administrative Agent may appoint, after consulting
with the Lenders and the Company, a successor agent from among the Lenders. Upon
the acceptance of its appointment as successor agent hereunder, such successor
agent shall succeed to all the rights, powers and duties of the retiring
Administrative Agent and the term "Administrative Agent" shall mean such
successor agent and the retiring Administrative Agent's appointment, powers and
duties as Administrative Agent shall be terminated. After any retiring
Administrative Agent's resignation hereunder as Administrative Agent, the
provisions of this Article X and Sections 11.4 and 11.5 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement. If no successor agent has accepted
appointment as Administrative Agent by the date which is 30 days following a
retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become effective
and the Lenders shall perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Required Lenders appoint a successor
agent as provided for above. Notwithstanding the foregoing, however, BofA may
not be removed as the Administrative Agent at the request of the Required
Lenders unless BofA and any Affiliate thereof acting as the Issuing Lender or
Swingline Lender hereunder shall also simultaneously be replaced as the Issuing
Lender and Swingline Lender pursuant to documentation in form and substance
reasonably satisfactory to BofA (and, if applicable, such Affiliate).
10.10 Withholding Tax. (a) If any Lender is a "foreign corporation,
partnership or trust" within the meaning of the Code and such Lender claims
exemption from, or a reduction of, U.S. withholding tax under Section 1441 or
1442 of the Code, such Lender shall deliver to the Administrative Agent and the
Company:
(i) if such Lender claims an exemption from, or a reduction
of, withholding tax under a United States tax treaty, properly
completed IRS Forms 1001 and W-8 before the payment of any interest in
the first calendar year and before the payment of any interest in each
third succeeding calendar year during which interest may be paid under
this Agreement;
(ii) if such Lender claims that interest paid under this
Agreement is exempt from United States withholding tax because it is
effectively connected with a United States trade or business of such
Lender, two properly completed and executed copies of IRS Form 4224
before the payment of any interest is due in the first taxable year of
such Lender and in each succeeding taxable year of such Lender during
which interest may be paid under this Agreement, and IRS Form W-9;
(iii) if such Lender is not a "bank" within the meaning of
Section 881(c)(3)(A) of the Code and cannot deliver either Internal
Revenue Service Form 1001 or 4224, such
-82-
Lender shall deliver (A) a certificate substantially in the form of
Exhibit M and (B) two properly completed and signed copies of Internal
Revenue Service Form W-8 certifying that such Lender is entitled to an
exemption from United States withholding tax with respect to payments
of interest to be made under this Agreement and any Note; and
(iv) such other form or forms as may be required under the
Code or other laws of the United States as a condition to exemption
from, or reduction of, United States withholding tax.
Each such Lender agrees to promptly notify the Administrative Agent and the
Company of any change in circumstances which would modify or render invalid any
claimed exemption or reduction.
(b) If any Lender claims exemption from, or reduction of,
withholding tax under a United States tax treaty by providing IRS Form 1001 and
such Lender sells, assigns, grants a participation in, or otherwise transfers
all or part of the Obligations of the Company to such Lender, such Lender agrees
to notify the Administrative Agent and the Company of the percentage amount in
which it is no longer the beneficial owner of Obligations of the Company to such
Lender. To the extent of such percentage amount, the Administrative Agent and
the Company will treat such Lender's IRS Form 1001 as no longer valid.
(c) If any Lender claiming exemption from United States
withholding tax by filing IRS Form 4224 with the Administrative Agent and the
Company sells, assigns, grants a participation in, or otherwise transfers all or
part of the Obligations of the Company to such Lender, such Lender agrees to
undertake sole responsibility for complying with the withholding tax
requirements imposed by Sections 1441 and 1442 of the Code.
(d) If any Lender is entitled to a reduction in the
applicable withholding tax, the Administrative Agent or the Company, as the case
may be, may withhold from any interest payment to such Lender an amount
equivalent to the applicable withholding tax after taking into account such
reduction. If the forms or other documentation required by subsection (a) of
this Section are not timely delivered to the Administrative Agent, or the
Company, as the case may be, then the Administrative Agent or the Company, as
the case may be, may withhold from any interest payment to such Lender not
providing such forms or other documentation an amount equivalent to the
applicable withholding tax without deduction.
(e) If the IRS or any other Governmental Authority of the
United States or other jurisdiction asserts a claim that the Administrative
Agent or the Company did not properly withhold tax from amounts paid to or for
the account of any Lender (because the appropriate form was not delivered or was
not properly executed, or because such Lender failed to notify the
Administrative Agent or the Company of a change in circumstances which rendered
the exemption from, or reduction of, withholding tax ineffective, or for any
other reason) such Lender shall indemnify the Administrative Agent or the
Company, as the case may be, fully for all amounts paid, directly or indirectly,
by the Administrative Agent or the Company, as the case
-83-
may be, as Tax or otherwise, including penalties and interest, and including any
Taxes imposed by any jurisdiction on the amounts payable to the Administrative
Agent or the Company, as the case may be, under this Section, together with all
costs and expenses (including Attorney Costs). The obligation of the Lenders
under this subsection shall survive the payment of all Obligations and the
resignation or replacement of the Administrative Agent.
(f) If any Lender claims exemption from, or reduction of,
withholding tax under the Code by providing IRS Form W-8 and a certificate in
the form of Exhibit M and such Lender sells, assigns, grants a participation in,
or otherwise transfers all or part of the Obligations of the Company to such
Lender, such Lender agrees to notify the Administrative Agent and the Company of
the percentage amount in which it is no longer the beneficial owner of
Obligations of the Company to such Lender. To the extent of such percentage
amount, the Administrative Agent and the Company will treat such Lender's IRS
Form W-8 and certificate in the form of Exhibit M as no longer valid.
10.11 Collateral Matters.
(a) The Administrative Agent is authorized on behalf of all
the Lenders, without the necessity of any notice to or further consent from the
Lenders, from time to time to take any action with respect to any collateral or
the Collateral Documents which may be necessary to perfect and maintain
perfected the security interest in and Liens upon the collateral granted
pursuant to the Collateral Documents.
(b) The Lenders irrevocably authorize the Administrative
Agent, at its option and in its discretion, to release any Lien granted to or
held by the Administrative Agent upon any collateral: (i) upon termination of
the Commitments and payment in full of all Loans and all other obligations known
to the Administrative Agent and payable under this Agreement or any other Loan
Document; (ii) constituting property sold or to be sold or disposed of as part
of or in connection with any disposition permitted hereunder; (iii) constituting
property in which the Company or any Subsidiary owned no interest at the time
the Lien was granted or at any time thereafter; (iv) constituting property
leased to the Company or any Subsidiary under a lease which has expired or been
terminated in a transaction permitted under this Agreement or is about to expire
and which has not been, and is not intended by the Company or such Subsidiary to
be, renewed or extended; (v) consisting of an instrument evidencing Indebtedness
or other debt instrument, if the indebtedness thereby has been paid in full; or
(vi) if approved, authorized or ratified in writing by the Required Lenders or,
if required by Section 11.1(f), all the Lenders. Upon request by the
Administrative Agent at any time, the Lenders will confirm in writing the
Administrative Agent's authority to release particular types or items of
collateral pursuant to this subsection 10.11(b).
(c) Each Lender agrees with and in favor of each other
(which agreement shall not be for the benefit of the Company or any Subsidiary)
that any security interest in real property collateral received by a Lender in
connection with the extension of any loan or financial commitment between such
Lender and the Company or any of its Affiliates and not related to the
-84-
transactions contemplated hereby shall not constitute collateral for the
Company's obligations under this Agreement or any other Loan Document.
ARTICLE XI
MISCELLANEOUS
11.1 Amendments and Waivers. No amendment or waiver of any provision of
this Agreement or any other Loan Document, and no consent with respect to any
departure by the Company therefrom, shall be effective unless the same shall be
in writing and signed by the Required Lenders and the Company and acknowledged
by the Administrative Agent, and then any such amendment, waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided that no such amendment, waiver or consent:
(a) shall increase or extend any Commitment of any Lender
(or reinstate any Commitment terminated pursuant to Section 9.2) without the
written consent of such Lender;
(b) shall postpone or delay any date fixed by this Agreement
or any other Loan Document for any payment of principal of or interest on any
Loan without the written consent of the Lender holding such Loan;
(c) shall reduce the principal of, or the rate of interest
specified herein on, any Loan without the written consent of the Lender holding
such Loan;
(d) shall reduce any fees payable hereunder or under any
other Loan Document, or postpone or delay any date fixed by this Agreement or
any other Loan Document for the payment of fees or any other amounts due to any
Lender hereunder or under any other Loan Document, without the written consent
of the Person to whom such fee or other amount is to be paid;
(e) shall change the Percentage of the Lenders which is
required for any waiver, amendment or consent hereunder, or amend the definition
of "Required Lenders", without the written consent of all Lenders;
(f) shall release the Guaranty or any Guarantor or release
all or substantially all of the collateral securing the Obligations without the
written consent of all Lenders;
(g) shall amend or waive any provision of this Section or
Section 2.15, or any other provision herein providing for consent or other
action by all Lenders, without the written consent of all Lenders;
-85-
(h) shall, unless in writing and signed by the Issuing
Lender in addition to the Required Lenders or all Lenders, as the case may be,
affect the rights or duties of the Issuing Lender under this Agreement or any
L/C-Related Document;
(i) shall, unless in writing and signed by the Swingline
Lender in addition to the Required Lenders or all Lenders, as the case may be,
affect the rights and duties of the Swingline Lender under this Agreement; and
(j) shall, unless in writing and signed by the
Administrative Agent in addition to the Required Lenders or all Lenders, as the
case may be, affect the rights or duties of the Administrative Agent under this
Agreement or any other Loan Document.
11.2 Notices. (a) All notices, requests and other communications
hereunder shall be in writing (including, unless the context expressly otherwise
provides, by facsimile transmission, provided that any matter transmitted by the
Company by facsimile (i) shall be immediately confirmed by a telephone call to
the recipient at the number specified on Schedule 11.2, and (ii) shall be
followed promptly by delivery of a hard copy original thereof) and mailed, faxed
or delivered to the address or facsimile number specified for notices on
Schedule 11.2 or (x) in the case of the Company or the Administrative Agent, to
such other address as shall be designated by such party in a written notice to
the other parties and (y) in the case of any other party, at such other address
as shall be designated by such party in a written notice to the Company and the
Administrative Agent.
(b) All such notices, requests and communications shall, if
transmitted by overnight delivery, or faxed, be effective when delivered, or
transmitted in legible form by facsimile machine, respectively, or if mailed, on
the third Business Day after the date deposited into the U.S. mail; except that
notices to the Administrative Agent pursuant to Article II, III or X shall not
be effective until actually received by the Administrative Agent, and notices
pursuant to Article III to the Issuing Lender shall not be effective until
actually received by the Issuing Lender.
(c) Any agreement of the Administrative Agent and the
Lenders herein to receive certain notices by telephone or facsimile is solely
for the convenience and at the request of the Company. The Administrative Agent
and the Lenders shall be entitled to rely on the authority of any Person
purporting to be a Person authorized by the Company to give such notice and the
Administrative Agent and the Lenders shall not have any liability to the Company
or any other Person on account of any action taken or not taken by the
Administrative Agent or the Lenders in reliance upon such telephonic or
facsimile notice. The obligation of the Company to repay the Loans and L/C
Obligations shall not be affected in any way or to any extent by any failure of
the Administrative Agent and the Lenders to receive written confirmation of any
telephonic or facsimile notice or the receipt by the Administrative Agent and
the Lenders of a confirmation which is at variance with the terms understood by
the Administrative Agent and the Lenders to be contained in the telephonic or
facsimile notice.
-86-
11.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent or any Lender, any
right, remedy, power or privilege hereunder 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.
11.4 Costs and Expenses. The Company shall:
(a) whether or not the transactions contemplated hereby are
consummated, pay or reimburse the Administrative Agent and its Affiliates
(including the Arranger) within five Business Days after demand (subject to
subsection 5.1(e)) for all reasonable and documented costs and expenses incurred
by the Administrative Agent and its Affiliates in connection with the
preparation, delivery, administration and execution of, and any amendment,
supplement, waiver or modification to (in each case, whether or not
consummated), this Agreement, any other Loan Document and any other document
prepared in connection herewith or therewith, and the consummation of the
transactions contemplated hereby and thereby, including Attorney Costs incurred
by the Administrative Agent and the Arranger with respect thereto; and
(b) pay or reimburse the Administrative Agent and each
Lender within five Business Days after demand (subject to subsection 5.1(e)) for
all costs and expenses (including Attorney Costs) incurred by them in connection
with the enforcement, attempted enforcement or preservation of any right or
remedy under this Agreement or any other Loan Document during the existence of
an Event of Default or after acceleration of the Loans (including in connection
with any "workout" or restructuring regarding the Loans and including in any
Insolvency Proceeding or appellate proceeding).
11.5 Company Indemnification. Whether or not the transactions
contemplated hereby are consummated, the Company shall indemnify and hold the
Agent-Related Persons and each Lender and each of their respective officers,
directors, employees, counsel, agents and attorneys-in-fact (each an
"Indemnified Person") harmless from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
charges, expenses and disbursements (including Attorney Costs) of any kind or
nature whatsoever which may at any time (including at any time following
repayment of the Loans, the termination of the Letters of Credit and the
termination, resignation or replacement of the Administrative Agent or
replacement of any Lender) be imposed on, incurred by or asserted against any
such Person in any way relating to or arising out of this Agreement or any
document contemplated by or referred to herein, or the transactions contemplated
hereby or thereby, or any action taken or omitted by any such Person under or in
connection with any of the foregoing, including with respect to any
investigation, litigation or proceeding (including any Insolvency Proceeding or
appellate proceeding or any investigation, litigation or proceeding related to
any environmental cleanup, audit, compliance or other matter relating to the
protection of the environment or the Release by the Company or any of its
Subsidiaries of any Hazardous Material) related to or arising out of this
Agreement or the Loans or Letters of Credit or the use of the proceeds thereof,
whether or not any Indemnified Person is a party thereto (all the foregoing,
collectively, the
-87-
"Indemnified Liabilities"); provided that the Company shall have no obligation
hereunder to any Indemnified Person with respect to Indemnified Liabilities
resulting solely from the gross negligence or willful misconduct of such
Indemnified Person. The agreements in this Section shall survive payment of all
other Obligations. Each Agent-Related Person and each Lender agrees that if any
investigation, litigation or proceeding is asserted or threatened in writing or
instituted against it or any other Indemnified Person, or any remedial, removal
or response action is requested of it or any other Indemnified Party, for which
such Agent-Related Person or such Lender may desire indemnity or defense
hereunder, such Agent-Related Person or such Lender shall notify the Company in
writing of such event; provided that failure to so notify the Company shall not
affect the right of any Agent-Related Person or Lender to seek indemnification
under this Section.
11.6 Payments Set Aside. To the extent that the Company makes a payment
to the Administrative Agent or any Lender, or the Administrative Agent or any
Lender exercises its right of set-off, and such payment or the proceeds of such
set-off or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent or such Lender in its
discretion) to be repaid to a trustee or receiver, or any other party, in
connection with any Insolvency Proceeding or otherwise, then (a) to the extent
of such recovery, the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such set-off had not occurred and (b) each Lender
severally agrees to pay to the Administrative Agent upon demand its pro rata
share of any amount so recovered from or repaid by the Administrative Agent.
11.7 Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that the Company may not assign or transfer any
of its rights or obligations under this Agreement without the prior written
consent of the Administrative Agent and each Lender.
11.8 Assignments, Participations, etc. (a) Any Lender may, with the
written consent of the Company (at all times other than during the existence of
an Event of Default), the Administrative Agent, the Issuing Lender and the
Swingline Lender, which consents shall not be unreasonably withheld or delayed,
at any time assign and delegate to one or more Eligible Assignees (provided that
no written consent of the Company, the Administrative Agent, the Issuing Lender
or the Swingline Lender shall be required in connection with any assignment and
delegation by a Lender to a Person described in clause (iii) of the definition
of Eligible Assignee) (each, an "Assignee") all, or a ratable part of all, of
the Loans, the Commitments, the L/C Obligations and the other rights and
obligations of such Lender hereunder, in a minimum amount of $5,000,000 (or, if
less, all of such Lender's remaining rights and obligations hereunder); provided
that (A) the Company, the Administrative Agent, the Issuing Lender and the
Swingline Lender may continue to deal solely and directly with such Lender in
connection with the interest so assigned to an Assignee until (i) written notice
of such assignment, together with payment instructions, addresses and related
information with respect to the Assignee shall have been given to the Company
and the Administrative Agent by such Lender and the Assignee, (ii) such
-88-
Lender and the Assignee shall have delivered to the Company and the
Administrative Agent an Assignment and Acceptance in the form of Exhibit L (an
"Assignment and Acceptance") together with any Note or Notes subject to such
assignment and (iii) the assignor Lender or the Assignee shall have paid to the
Administrative Agent a processing fee in the amount of $3,500 and (B) the
Company shall not, as a result of any assignment by any Lender to any of such
Lender's Affiliates, incur any increased liability for Taxes, Other Taxes or
Further Taxes pursuant to Section 4.1. The Company designates the Administrative
Agent as its agent for maintaining a book entry record of ownership identifying
the Lenders and the amount of the respective Loans and Notes which they own. The
foregoing provisions are intended to comply with the registration requirements
in Treasury Regulation Section 5f.103-1 so that the Loans and Notes are
considered to be in "registered form" pursuant to such regulation.
(b) From and after the date that the Administrative Agent
notifies the assignor Lender that it has provided its consent, and received the
consents of the Swingline Lender, the Issuing Lender and (if applicable) the
Company, with respect to an executed Assignment and Acceptance and payment of
the above-referenced processing fee, (i) the Assignee thereunder shall be a
party hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance, shall have the rights
and obligations of a Lender under the Loan Documents, and (ii) the assignor
Lender shall, to the extent that rights and obligations hereunder and under the
other Loan Documents have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights and be released from its obligations under the
Loan Documents.
(c) Any Lender may at any time sell to one or more
commercial banks or other Persons not Affiliates of the Company (a
"Participant") participating interests in any Loan, the Commitments of such
Lender and the other interests of such Lender (the "originating Lender")
hereunder and under the other Loan Documents; provided, however, that (i) the
originating Lender's obligations under this Agreement shall remain unchanged,
(ii) the originating Lender shall remain solely responsible for the performance
of such obligations, (iii) the Company, the Swingline Lender, the Issuing Lender
and the Administrative Agent shall continue to deal solely and directly with the
originating Lender in connection with the originating Lender's rights and
obligations under this Agreement and the other Loan Documents and (iv) no Lender
shall transfer or grant any participating interest under which the Participant
has rights to approve any amendment to, or any consent or waiver with respect
to, this Agreement or any other Loan Document, except to the extent such
amendment, consent or waiver would require unanimous consent of the Lenders or
the consent of a particular Lender, in each case as described in the proviso to
Section 11.1. In the case of any such participation, the Participant shall be
entitled to the benefit of Sections 4.1, 4.3 and 11.5 as though it were also a
Lender hereunder (provided, with respect to Sections 4.1 and 4.3, the Company
shall not be required to pay any amount which it would not have been required to
pay if no participating interest had been sold), and if amounts outstanding
under this Agreement are due and unpaid, or shall have been declared or shall
have become due and payable upon the occurrence of an Event of Default, the
Participant shall be deemed to have the right of set-off in respect of its
participating interest in amounts owing under this Agreement to the same extent
as if the amount
-89-
of its participating interest were owing directly to it as a Lender under this
Agreement. Each Lender may furnish any information concerning the Company and
its Subsidiaries in the possession of such Lender from time to time to
participants and prospective participants and may furnish information in
response to credit inquiries consistent with general banking practice. Each
Lender which sells a participation will maintain a book entry record of
ownership identifying the Participant(s) and the amount of such participation(s)
owned by such Participant(s). Such book entry record of ownership shall be
maintained by the Lender as agent for the Company and the Administrative Agent.
This provision is intended to comply with the registration requirements in
Treasury Regulation Section 5f.103-1 so that the Loans and Notes are considered
to be in "registered form" pursuant to such regulation.
(d) Notwithstanding any other provision of this Agreement,
any Lender may at any time create a security interest in, or pledge all or any
portion of, its rights under and interest in this Agreement and any Note held by
it in favor of any Federal Reserve Bank in accordance with Regulation A of the
FRB or U.S. Treasury Regulation 31 CFR ss.203.14, and such Federal Reserve Bank
may enforce such pledge or security interest in any manner permitted under
applicable law.
11.9 Confidentiality. Each Lender agrees to take, and to cause its
Affiliates to take, normal and reasonable precautions and exercise due care to
maintain the confidentiality of all non-public information provided to it by the
Company or any Subsidiary, or by the Administrative Agent on the Company's or
any Subsidiary's behalf, under this Agreement or any other Loan Document, and
neither such Lender nor any of its Affiliates shall use any such information
other than in connection with or in enforcement of this Agreement and the other
Loan Documents or in connection with other business now or hereafter existing or
contemplated with the Company or any Subsidiary, except to the extent such
information (i) was or becomes generally available to the public other than as a
result of disclosure by such Lender or (ii) was or becomes available on a
non-confidential basis from a source other than the Company (provided that such
source is not bound by a confidentiality agreement with the Company or any
Subsidiary known to such Lender); provided, however, that any Lender may
disclose such information (A) at the request or pursuant to any requirement of
any Governmental Authority to which such Lender is subject or in connection with
an examination of such Lender by any such authority, (B) pursuant to subpoena or
other court process, (C) when required to do so in accordance with the
provisions of any applicable Requirement of Law, (D) to the extent reasonably
required in connection with any litigation or proceeding to which the
Administrative Agent or any Lender or any of their respective Affiliates may be
party, (E) to the extent reasonably required in connection with the exercise of
any remedy hereunder or under any other Loan Document, (F) to such Lender's
independent auditors and other professional advisors, (G) to any Participant or
Assignee, actual or potential, provided that such Person agrees in writing to
keep such information confidential to the same extent required of the Lenders
hereunder, (H) as to any Lender or its Affiliate, as expressly permitted under
the terms of any other document or agreement regarding confidentiality to which
the Company or any Subsidiary is party or is deemed party with such Lender or
such Affiliate and (I) to its Affiliates.
-90-
11.10 Set-off. In addition to any right or remedy of the Lenders
provided by law, if an Event of Default exists, or the Loans have been
accelerated, each Lender is authorized at any time and from time to time,
without prior notice to the Company, any such notice being waived by the Company
to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held by, and other indebtedness at any time owing by, such Lender to or for the
credit or the account of the Company against any and all Obligations owing to
such Lender, now or hereafter existing, irrespective of whether or not the
Administrative Agent or such Lender shall have made demand under this Agreement
or any other Loan Document and although such Obligations may be contingent or
unmatured. Each Lender agrees promptly to notify the Company 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.
11.11 Automatic Debits of Fees. With respect to any commitment fee,
arrangement fee, agency fee, letter of credit fee or other fee, or any other
cost or expense (including Attorney Costs) due and payable to the Administrative
Agent, the Swingline Lender or the Issuing Lender under the Loan Documents, the
Company hereby irrevocably authorizes BofA to debit any deposit account of the
Company with BofA in an amount such that the aggregate amount debited from all
such deposit accounts does not exceed such fee or other cost or expense. If
there are insufficient funds in such deposit accounts to cover the amount of the
fee or other cost or expense then due, such debits will be reversed (in whole or
in part, in BofA's sole discretion) and such amount not debited shall be deemed
to be unpaid. No such debit under this Section shall be deemed a set-off.
11.12 Notification of Addresses, Lending Offices, etc. Each Lender
shall notify the Administrative Agent in writing of any change in the address to
which notices to such Lender should be directed, of addresses of any Lending
Office, of payment instructions in respect of all payments to be made to it
hereunder and of such other administrative information as the Administrative
Agent shall reasonably request.
11.13 Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which, when so executed, shall be deemed an
original, and all of which taken together shall constitute but one and the same
instrument.
11.14 Severability. The illegality or unenforceability of any provision
of this Agreement or any instrument or agreement required hereunder shall not in
any way affect or impair the legality or enforceability of the remaining
provisions of this Agreement or such instrument or agreement.
11.15 No Third Parties Benefited. This Agreement is made and entered
into for the sole protection and legal benefit of the Company, the Lenders, the
Administrative Agent and the Agent-Related Persons, and their permitted
successors and assigns, and no other Person shall be a direct or indirect legal
beneficiary of, or have any direct or indirect cause of action or claim in
connection with, this Agreement or any other Loan Document.
-91-
11.16 Governing Law and Jurisdiction. (a) THIS AGREEMENT AND ANY NOTES
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAW OF THE
STATE OF NEW YORK; PROVIDED THAT THE ADMINISTRATIVE AGENT AND THE LENDERS SHALL
RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE
OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND
BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE COMPANY, THE
ADMINISTRATIVE AGENT AND THE LENDERS CONSENTS, FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF SUCH COURTS. EACH OF THE COMPANY,
THE ADMINISTRATIVE AGENT AND THE LENDERS IRREVOCABLY WAIVES ANY OBJECTION,
INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM
NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION
OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT
RELATED HERETO. THE COMPANY, THE ADMINISTRATIVE AGENT AND THE LENDERS EACH WAIVE
PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE
BY ANY OTHER MEANS PERMITTED BY NEW YORK LAW.
11.17 Waiver of Jury Trial. THE COMPANY, THE LENDERS AND THE
ADMINISTRATIVE AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS
AGREEMENT, THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY
ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY AGENT-RELATED PERSON,
PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS OR
OTHERWISE. THE COMPANY, THE LENDERS AND THE ADMINISTRATIVE AGENT EACH AGREE THAT
ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A
JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR
RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO
ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART,
TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENT, RENEWAL, SUPPLEMENT OR MODIFICATION TO THIS AGREEMENT AND
THE OTHER LOAN DOCUMENTS.
-92-
11.18 Entire Agreement. This Agreement, together with the other Loan
Documents, embodies the entire agreement and understanding among the Company,
the Lenders and the Administrative Agent, and supersedes all prior or
contemporaneous agreements and understandings of such Persons, verbal or
written, relating to the subject matter hereof and thereof.
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.
RAYOVAC CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
Title: Vice President
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as
Administrative Agent, Issuing
Lender, Swingline Lender and a
Lender
By: /s/ Xxxx X. Xxxxxxxx
Title: Managing Director
BANQUE NATIONALE DE PARIS
By: /s/ Xxxxxxx X. Xxxxxxx
Title: Vice President and Manager
BANK OF TOKYO - MITSUBISHI TRUST COMPANY
By: /s/ Xxxxx Xxxxxx
Title: Assistant Vice President
-93-
FIRSTAR BANK MILWAUKEE, N.A.
By: /s/ Xxxxx X. Xxxxxx
Title: Vice President
FLEET NATIONAL BANK
By: /s/ Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
THE LONG-TERM CREDIT BANK OF JAPAN, LTD.
CHICAGO BRANCH
By: /s/ Xxxxx X. Xxxxx
Title: Senior Vice President
M&I XXXXXXXX & ILSLEY BANK
By: /s/ Xxxxx X. XxXxxxxx
Title:
DG BANK
By: /s/ Xxxxx XxXxxx /s/ Xxxx Xxxxxxxx
Title: Senior Vice President/
Assistant Vice President
XXXXXX TRUST AND SAVINGS BANK
By: /s/ Xxxxxx X. Xxxxx
Title: Vice President
-00-
XXX XXXX XX XXX XXXX
By: /s/ Xxxxxxx X'Xxxx
Title: Vice President
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By: /s/ Xxxxx Xxxxxxxx
Title: Chief Manager
-95-
