EXECUTION
CREDIT AGREEMENT
dated as of June 12, 1997
among
MSC INDUSTRIAL DIRECT CO., INC.
the Banks signatory hereto
and
FLEET BANK, NATIONAL ASSOCIATION
as Agent and as Issuing Bank
TABLE OF CONTENTS
Page
ARTICLE 1. DEFINITIONS; ACCOUNTING TERMS....................................................................... 2
Section 1.01. Definitions ..................................................................................... 2
Section 1.02. Accounting Terms................................................................................. 14
Section 1.03. Interpretation................................................................................... 14
ARTICLE 2. THE LOANS........................................................................................... 14
Section 2.01. The Loans Generally.............................................................................. 14
Section 2.02. The Notes ..................................................................................... 16
Section 2.03. Use of Proceeds.................................................................................. 16
Section 2.04. Borrowing Procedures for Pro Rata Loans.......................................................... 16
Section 2.05. Bid Procedure.................................................................................... 17
Section 2.06. Interest on Loans................................................................................ 19
Section 2.07. Reductions in Commitments........................................................................ 20
Section 2.08. Adjustments to Applicable Margin................................................................. 20
ARTICLE 2A. LETTERS OF CREDIT.................................................................................. 20
Section 2A.01. Agreement to Issue.............................................................................. 20
Section 2A.02. Amounts; Tenor.................................................................................. 20
Section 2A.03. Conditions ..................................................................................... 21
Section 2A.04. Issuance of Letters of Credit................................................................... 21
Section 2A.05. Letter of Credit Obligations; Duties of Issuing Bank............................................ 22
Section 2A.06. Participations.................................................................................. 23
Section 2A.07. Payment of Letter of Credit Reimbursement Obligations........................................... 24
Section 2A.08. Indemnification; Exoneration.................................................................... 25
Section 2A.09. Sid Tool Letters of Credit...................................................................... 26
ARTICLE 3. GENERAL CREDIT PROVISIONS; FEES AND PAYMENTS........................................................ 26
Section 3.01. Certain Notices.................................................................................. 26
Section 3.02. Prepayments ..................................................................................... 27
Section 3.03. Agency Fees ..................................................................................... 27
Section 3.04. Facility Fee..................................................................................... 27
Section 3.05. Compensation for Letters of Credit............................................................... 27
Section 3.06. Payments Generally............................................................................... 28
Section 3.07. Conversion and Continuation of Pro Rata Loans.................................................... 30
ARTICLE 4. YIELD PROTECTION, ETC............................................................................... 32
Section 4.01. Additional Costs................................................................................. 32
Section 4.02. Limitation on Types of Loans..................................................................... 34
Page
Section 4.03. Illegality ..................................................................................... 34
Section 4.04. Certain Loans Pursuant To Sections 4.01, 4.02 and 4.03........................................... 34
Section 4.05. Certain Compensation............................................................................. 35
ARTICLE 5. CONDITIONS PRECEDENT................................................................................ 36
Section 5.01. Documentary Conditions Precedent................................................................. 36
Section 5.02. Additional Conditions Precedent.................................................................. 38
ARTICLE 6. REPRESENTATIONS AND WARRANTIES...................................................................... 40
Section 6.01. Incorporation, Good Standing and Due Qualification; Compliance with Law.......................... 40
Section 6.02. Power and Authority; No Conflicts................................................................ 41
Section 6.03. Legally Enforceable Agreements................................................................... 41
Section 6.04. Litigation....................................................................................... 42
Section 6.05. Financial Statements............................................................................. 42
Section 6.06. Ownership and Liens.............................................................................. 42
Section 6.07. Taxes............................................................................................ 43
Section 6.08. ERISA............................................................................................ 43
Section 6.09. Subsidiaries and Ownership of Stock.............................................................. 43
Section 6.10. Credit Arrangements.............................................................................. 44
Section 6.11. Operation of Business............................................................................ 44
Section 6.12. No Default on Outstanding Judgments or Orders.................................................... 44
Section 6.13. No Defaults on Other Agreements.................................................................. 45
Section 6.14. Labor Disputes and Acts of God................................................................... 45
Section 6.15. Governmental Regulation.......................................................................... 45
Section 6.16. Partnerships..................................................................................... 45
Section 6.17. No Forfeiture Proceedings........................................................................ 45
Section 6.18. No Default or Event of Default................................................................... 46
Section 6.19. Solvency......................................................................................... 46
Section 6.20. Material Adverse Change.......................................................................... 46
Section 6.21. Name............................................................................................. 46
Section 6.22. Debt............................................................................................. 46
Section 6.23. Nature of Business............................................................................... 46
Section 6.24. Fiscal Year End.................................................................................. 46
ARTICLE 7. AFFIRMATIVE COVENANTS............................................................................... 47
Section 7.01. Maintenance of Existence......................................................................... 47
Section 7.02. Conduct of Business.............................................................................. 47
Section 7.03. Maintenance of Properties........................................................................ 48
Section 7.04. Maintenance of Records........................................................................... 48
Section 7.05. Maintenance of Insurance......................................................................... 48
Section 7.06. Compliance with Laws............................................................................. 48
Section 7.07. Right of Inspection.............................................................................. 48
Section 7.08. Reporting Requirements........................................................................... 48
Section 7.09. Payment of Obligations........................................................................... 51
Section 7.10. Subsidiary Guarantee............................................................................. 52
Section 7.11. Notices With Respect to Certain Debts............................................................ 52
Page
Section 7.12. Use of Proceeds.................................................................................. 52
Section 7.13. Solvency......................................................................................... 52
ARTICLE 8. NEGATIVE COVENANTS.................................................................................. 52
Section 8.01. Debt............................................................................................. 52
Section 8.02. Liens............................................................................................ 53
Section 8.03. Investments ..................................................................................... 54
Section 8.04. Sale of Assets................................................................................... 55
Section 8.05. Transactions with Affiliates..................................................................... 55
Section 8.06. Mergers, Etc..................................................................................... 56
Section 8.07. Acquisitions..................................................................................... 56
Section 8.08. No Activities Leading to Forfeiture.............................................................. 56
Section 8.09. Corporate Documents; Fiscal Year................................................................. 56
Section 8.10. Redemptions, Etc................................................................................. 56
Section 8.11. Creation of Subsidiaries, Etc.................................................................... 56
Section 8.12. Real Estate Loans to Affiliates.................................................................. 57
Section 8.13. Loans to Affiliates; Distributions............................................................... 57
Section 8.14. Broker's Fees.................................................................................... 57
Section 8.15. Dividends........................................................................................ 57
Section 8.16. Nature of Business............................................................................... 57
ARTICLE 9. FINANCIAL COVENANTS................................................................................. 57
Section 9.01. Minimum Effective Net Worth...................................................................... 57
Section 9.02. Current Ratio.................................................................................... 58
Section 9.03. Maximum Leverage................................................................................. 58
Section 9.04. Maximum Capital Expenditures..................................................................... 58
Section 9.05. Minimum Interest Coverage Ratio.................................................................. 58
Section 9.06. Positive Earnings................................................................................ 59
ARTICLE 10. EVENTS OF DEFAULT.................................................................................. 59
Section 10.01. Events of Default............................................................................... 59
Section 10.02. Remedies........................................................................................ 61
ARTICLE 11. THE AGENT AND THE ISSUING BANK; RELATIONS AMONG BANKS.............................................. 62
Section 11.01. Appointment, Powers and Immunities of Agent..................................................... 62
Section 11.02. Reliance by Agent and Issuing Bank.............................................................. 63
Section 11.03. Defaults........................................................................................ 63
Section 11.04. Rights of Agent and Issuing Bank................................................................ 64
Section 11.05. Indemnification of Agent........................................................................ 64
Section 11.06. Documents....................................................................................... 65
Section 11.07. Non-Reliance on Agent, Issuing Bank and Other Banks............................................. 65
Section 11.08. Failure of Agent or the Issuing Bank to Act..................................................... 66
Section 11.09. Resignation or Removal of Agent................................................................. 66
Section 11.10. Amendments Concerning Agency and Issuing Bank Function.......................................... 66
Page
Section 11.11. Liability of Agent, Issuing Bank and Banks...................................................... 67
Section 11.12. Transfer of Agency Function..................................................................... 67
Section 11.13. Non-Receipt of Funds by the Agent............................................................... 67
Section 11.14. Withholding Taxes............................................................................... 67
Section 11.15. Several Obligations and Rights of Banks......................................................... 68
Section 11.16. Pro Rata/Non Pro Rata Treatment of Loans........................................................ 69
Section 11.17. Sharing of Payments Among Banks................................................................. 69
ARTICLE 12. MISCELLANEOUS ..................................................................................... 70
Section 12.01. Amendments and Waivers.......................................................................... 70
Section 12.02. Usury........................................................................................... 71
Section 12.03. Expenses........................................................................................ 71
Section 12.04. Survival........................................................................................ 71
Section 12.05. Assignment; Participation....................................................................... 72
Section 12.06. Special Provisions with Respect to Permitted Acquisitions....................................... 73
Section 12.07. Notices......................................................................................... 73
Section 12.08. Setoff.......................................................................................... 74
Section 12.09. JURISDICTION; WAIVER OF JURY TRIAL; IMMUNITIES.................................................. 75
Section 12.10. Table of Contents; Headings..................................................................... 76
Section 12.11. Severability.................................................................................... 76
Section 12.12. Counterparts.................................................................................... 76
Section 12.13. Integration..................................................................................... 76
Section 12.14. Governing Law................................................................................... 76
Section 12.15. Treatment of Certain Information................................................................ 76
Section 12.16. Further Rights of the Agent..................................................................... 77
EXHIBITS
Exhibit A Form of Note
Exhibit B-1 Form of Bid Request
Exhibit B-2 Form of Bid
Exhibit B-3 Form of Bid Acceptance/Rejection
Exhibit C Form of Subsidiary Guarantee
Exhibit D [Intentionally Omitted]
Exhibit E-1 Form of Notice of Borrowing
Exhibit E-2 Form of Notice of Conversion/Continuation
Exhibit F Opinion of New York Counsel for the
Borrower and its Subsidiaries
SCHEDULES
Schedule 6.01 Good Standing
Schedule 6.02 Consents; Conflicts
Schedule 6.04 Litigation
Schedule 6.08 Unfunded Vested Liabilities
Schedule 6.09 Subsidiaries
Schedule 6.10 Indebtedness/Liens
Schedule 6.16 Partnerships
Schedule 6.17 Forfeiture Proceedings
Schedule 6.21 Names; Trade Styles
CREDIT AGREEMENT dated as of June 12, 1997, among MSC
INDUSTRIAL DIRECT CO., INC., a corporation organized under the laws of New York
(the "Borrower"), each of the banks now or hereafter parties hereto and FLEET
BANK, NATIONAL ASSOCIATION, a national banking association organized under the
laws of the United States of America, as agent for the Banks (in such capacity,
together with its successors in such capacity, the "Agent") and as issuing bank
(in such capacity, together with its successors in such capacity, the "Issuing
Bank").
W I T N E S S E T H:
WHEREAS, Sid Tool Co., Inc. ("Sid Tool") and certain of its
affiliates (the "Real Estate Borrowers"), certain banks parties thereto (the
"Sid Tool Banks") and the Agent entered into a Credit Agreement dated as of
April 27, 1992, as amended and restated by an Amended and Restated Credit
Agreement dated as of April 27, 1995, as further amended by the First Amendment
to Credit Agreement dated as of August 25, 1995, the Waiver and Second Amendment
to Credit Agreement dated as of December 12, 1995 and the Third Amendment to
Credit Agreement dated as of January 5, 1996 (as so amended, the "Sid Tool
Credit Agreement"), pursuant to which the Sid Tool Banks made certain financial
accommodations thereunder on the terms and subject to the conditions contained
therein; and
WHEREAS, the Borrower has completed the Reorganization (as
defined below) and initial public offering of its Class A common stock; and
WHEREAS, upon consummation of the Reorganization, Sid Tool
became a wholly-owned Subsidiary (as defined below) of the Borrower; and
WHEREAS, the Borrower intends to finance (i) the working
capital and Capital Expenditures needs of its Consolidated Subsidiaries (as
defined below) and (ii) Permitted Acquisitions by the Borrower and any of its
Acquisition Affiliates and (iii) to refinance revolving credit loans made to Sid
Tool, in each such case by obtaining Loans and the issuance of Letters of Credit
for the account of the Borrower and on behalf of the Borrower and its
Subsidiaries; and
WHEREAS, the Borrower has requested the Banks to provide a
commitment to make Loans to the Borrower and issue the aforementioned Letters of
Credit; and
WHEREAS, the Banks are willing to make such Loans and issue
such Letters of Credit on the terms and subject to the conditions contained
herein.
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE 1. DEFINITIONS; ACCOUNTING TERMS
Section 1.01. Definitions. As used in this Agreement the
following terms have the following meanings (terms defined in the singular to
have a correlative meaning when used in the plural and vice versa):
"Acquisition Affiliate" shall have the meaning given to that
term in Section 12.06 hereof.
"Additional Costs" shall have the meaning given to that term
in Article 4 hereof.
"Affiliate" means any Person: (a) which directly or indirectly
controls, or is controlled by, or is under common control with, the Borrower;
(b) which directly or indirectly beneficially owns or holds 5% or more of any
class of voting stock of the Borrower; (c) 5% or more of the voting stock of
which is directly or indirectly beneficially owned or held by the Borrower; or
(d) which is a partnership in which the Borrower is a general partner. The term
"control" means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of a Person, whether
through the ownership of voting securities, by contract, or otherwise.
"Aggregate Bid Loan Outstandings" means, at a particular time,
the aggregate principal amount of the Borrower's obligations to the Banks, or
any of them, in connection with Bid Loans.
"Aggregate Letter of Credit Outstandings" means, at a
particular time, the sum of (a) the aggregate maximum amount then available or
available in the future to be drawn under all Letters of Credit outstanding and
all Sid Tool Letters of Credit at such time plus (b) the aggregate amount of any
payments made by the Issuing Bank or any Bank under, or with respect to, any
Letter of Credit or Sid Tool Letter of Credit that has not theretofore been
reimbursed by or on behalf of the Borrower or one or more of its Subsidiaries.
"Aggregate Outstandings" means, without duplication, at a
particular time, the sum of (a) the Aggregate Letter of Credit Outstandings at
such time, plus (b) the Aggregate Pro Rata Loans Outstandings at such time, plus
(c) the Aggregate Bid Loan Outstandings at such time. plus (d) the Aggregate Sid
Tool Loan Outstandings.
"Aggregate Pro Rata Loans Outstandings" means, at a particular
time, the aggregate principal amount of the Borrower's obligations to the Banks,
or any of them, in connection with Pro Rata Loans.
"Aggregate Sid Tool Loan Outstandings" means, at a particular
time, the aggregate principal amount of Sid Tool's obligations to the Banks, or
any of them, in connection with the Sid Tool Loans.
"Agreement" means this Credit Agreement, as amended or
supplemented from time to time. References to Articles, Sections, Exhibits,
Schedules and the like refer to the Articles, Sections, Exhibits, Schedules and
the like of this Agreement unless otherwise indicated.
"Banking Day" means any day on which commercial banks are not
authorized or required to close in New York City and whenever such day relates
to a LIBOR Loan or notice with respect to any LIBOR Loan, a day on which
dealings in Dollar deposits are also carried out in the London interbank market.
"Banks" means each Bank listed on the signature pages hereof
under the caption "Banks" and any of their permitted assigns pursuant to Section
12.05 hereof, and any successors of any of the foregoing.
"BA Rate" means, with respect to any Borrowing consisting of
BA Rate Loans, the rate per annum quoted at approximately 11:00 a.m. (New York
time) by the Principal Office on the first day of the Interest Period for such
Borrowing for the acceptance of drafts by the Agent (in its capacity as a Bank)
having a maturity and in a face amount comparable to such Interest Period and
principal amount of the BA Rate Loan to be made by the Agent in its capacity as
a Bank with respect to such Borrowing.
"BA Rate Loan" means any Pro Rata Loan when and to the extent
the interest rate therefor is based on the BA Rate.
"Base Rate" means that rate of interest from time to time
announced by the Agent at the Principal Office as its base commercial lending
rate.
"Base Rate Loan" means any Loan when and to the extent the
interest rate therefor is based on the Base Rate.
"Bid" means an offer by a Bank to make a Bid Loan pursuant to
Section 2.05 hereof substantially in the form of Exhibit B-2 hereto.
"Bid Acceptance/Rejection" means a notification made by the
Borrower pursuant to Section 2.05 hereof substantially in the form of Exhibit
B-3 hereto.
"Bid Loan" means a Loan made pursuant to the bidding procedure
described in Section 2.05 hereof. Each Bid Loan shall be a Fixed Rate Loan
unless otherwise provided by Article 4, Article 10 or any other applicable
provisions of this Agreement.
"Bid Request" means a request made pursuant to Section 2.05
hereof substantially in the form of Exhibit B-1 hereto.
"Borrowing" means the aggregate amount of Pro Rata Loans to be
made by the Banks, or any of them, to the Borrower pursuant to any one Notice of
Borrowing.
"Capital Expenditures" means expenditures by the Borrower and
the Borrower's Consolidated Subsidiaries for any fixed assets or improvements,
replacements, substitutions, or additions thereto which have a useful life of
more than one (1) year and which would be treated as capital expenditures under
GAAP including, but not limited to, payments under any Capital Leases.
"Capital Lease" means any lease which has been capitalized on
the balance sheet of the lessee in accordance with GAAP.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Commitment" means, with respect to each Bank, the obligation
of such Bank to extend credit to the Borrower hereunder in the aggregate
principal amounts listed on the signature pages hereof with respect to such Bank
or in the assignment agreement pursuant to which such Bank became a "Bank"
hereunder in accordance with Section 12.05 hereof (as such amounts may be
reduced or otherwise modified from time to time as provided in this Agreement).
"Commitment Proportion" means, with respect to each Bank at
the time of determination, that proportion that its Commitment bears to the
Total Commitment.
"Consolidated Subsidiary" means any Subsidiary of any Person
the financial statements of which are, or should be, consolidated with the
financial statements of such Person in accordance with GAAP.
"Debt" means, with respect to any Person (without
duplication): (a) indebtedness of such Person for borrowed money;
(b) indebtedness for the deferred purchase price of property or
services; (c) Unfunded Vested Liabilities of such Person; (d) the face amount of
any outstanding letters of credit issued for the account of such Person and any
unreimbursed amounts owing with respect to any letters of credit; (e)
obligations arising under acceptance facilities; (f) guaranties, endorsements
(other than for collection in the ordinary course of business) and other
contingent obligations to purchase, to provide funds for payment, to supply
funds to invest in any Person, or otherwise to assure a creditor against loss;
(g) obligations secured by any Lien on property of such Person; (h) obligations
of such Person as lessee under Capital Leases; and (i) indebtedness
of such Person evidenced by a note, bond, indenture or similar instrument.
"Default" means any event which with the giving of notice or
lapse of time, or both, would become an Event of Default.
"Default Rate" means, with respect to any Loan, a rate per
annum equal to 2% above the rate of interest otherwise (assuming no Event of
Default has occurred and is continuing) applicable to the relevant Loan and,
with respect to each Letter of Credit, a rate per annum equal to 2% above the
rate of commission fee otherwise (assuming no Event of Default has occurred and
is continuing) applicable to such Letter of Credit.
"Dividends" means, for any period, dividends paid by the
Borrower, other than dividends payable solely in capital stock of the Borrower.
"Dollars" and the sign "$" mean lawful money of the
United States of America.
"EBIT" means, at any particular date, Net Income plus (i) all
taxes paid, accrued or payable to any government or government instrumentality
(other than real estate taxes, franchise taxes not in the nature of income
taxes, sales taxes, or use taxes), and (ii) all interest paid, accrued or
payable to the Banks or any other holder of Debt.
"Effective Date" means the date this Agreement has been
executed by the Borrower, the Banks, the Issuing Bank and the Agent.
"Effective Net Worth" means, at any particular date, (i) the
amount of the excess of Total Assets over Total Liabilities, excluding, however,
from the determination of Total Assets all intangible assets, including, without
limitation, organizational expenses, patents, trademarks, copyrights, goodwill,
covenants not to compete, research and developmental costs, training costs, and
deferred charges, and excluding, however, from the determination of Total
Liabilities the principal amount of, and the accrued interest with respect to,
any Debt referenced in Section 8.01(c) hereof, less (ii) all amounts due at any
time and from time to time from Affiliates (other than all amounts (the
"Amounts") due at any time and from time to time from any Affiliates which have
guaranteed the obligations of the Borrower to the Banks under the Facility
Documents in form and substance (with respect to such guarantee) reasonably
satisfactory to the Banks to the extent that such Amounts are included in the
determination of Total Assets) less (iii) all treasury stock.
"Environmental Law" has the meaning ascribed to such term in
the Second Amended and Restated Credit Agreement.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, including any rules and regulations
promulgated thereunder.
"ERISA Affiliate" means any corporation or trade or business
which is aggregated with the Borrower under Section 414(b), (c), (m) or (o) of
the Code or Section 4001 of ERISA.
"Eurocurrency Reserve Requirements" means, with respect to
each Interest Period for each LIBOR Loan, the aggregate (without duplication) of
the maximum rates (expressed as a decimal fraction) of reserve requirements
current on the date two Banking Days prior to the beginning of such Interest
Period (including, without limitation, basic, supplemental, marginal and
emergency reserves under any regulations of the Federal Reserve Board or other
governmental authority having jurisdiction with respect thereto), as now and/or
from time to time hereafter in effect, dealing with reserve requirements
prescribed for eurocurrency funding maintained by a member bank of such System.
"Event of Default" has the meaning ascribed to such
term in Section 10.01 hereof.
"Facility Documents" means this Agreement, the Notes, the
Subsidiary Guarantees and all other agreements, documents and instruments
executed in connection herewith or therewith including, but not limited to, all
documents and instruments executed by the Borrower or an Acquisition Affiliate
in connection with a Permitted Acquisition.
"Facility Fee" means the facility fee payable by the Borrower
to the Agent for the account of the Banks pursuant to Section 3.04 hereof.
"Federal Funds Rate" means, for any day, the rate per annum
(expressed on an actual number of days to 365/366 days basis of calculation)
equal to the weighted average of the rates on overnight federal funds
transactions as published by the
Federal Reserve Bank of New York for such day (or for any day that is not a
Banking Day, for the immediately preceding Banking Day).
"Federal Reserve Board" shall mean the Board of Governors of
the Federal Reserve Board, and its successors.
"Final Prospectus" means the final prospectus dated December
14, 1995, relating to the initial public offering of Class A Common Stock of the
Borrower.
"Fixed Rate" means, with respect to any Borrowing consisting
of Fixed Rate Loans, the rate of interest established by each Bank as the rate
of interest for the Bid Loan bearing interest at a fixed rate made or to be made
by such Bank pursuant to a Bid Request.
"Fixed Rate Loan" means each Bid Loan that bears interest at a
Fixed Rate.
"Forfeiture Proceeding" means the commencement of any action
or proceeding affecting the Borrower or any of its Subsidiaries before any
court, governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, which may result in the seizure or
forfeiture of any of their property which would cause a material adverse effect
upon the operations, business, properties or financial condition of the Borrower
and its Subsidiaries, taken as a whole, or, when the term (Forfeiture
Proceeding) is used in Section 6.17 hereof, on the ability of the Borrower or
any of its Subsidiaries to perform its obligations hereunder, or, when the term
(Forfeiture Proceeding) is used in Section 10.01(h) hereof, on the ability of
the Borrower and its Subsidiaries, taken as a whole, to perform their
obligations hereunder.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect from time to time, applied on a basis
consistent with those used in the preparation of the financial statements
referred to in Section 6.05.
"Hazardous Substance" has the meaning ascribed to such term in
the Second Amended and Restated Credit Agreement.
"Interest Expense" means the Borrower's interest expense as
reflected in its financial statements and calculated in accordance with GAAP.
"Interest Payment Date" means (i) in the case of LIBOR Loans
and BA Rate Loans, the last day of the Interest Period applicable thereto and,
in the case of an Interest Period for any BA Rate Loan longer than 90 days or an
Interest Period for any LIBOR Loan longer than three months, every 90 days and
every
three months, respectively, (ii) in the case of any Fixed Rate Loans and Base
Rate Loans, the last day of each calendar month, commencing June 30, 1997, (iii)
in the case of all Loans, no later than the Loan Maturity Date.
"Interest Period" means (a) in the case of LIBOR Loans, the
period commencing on the date a LIBOR Loan is made or deemed made pursuant to a
conversion or continuation and ending, as the Borrower may select, on the
numerically corresponding day in the first, second, third, or (as available)
fourth or sixth calendar month thereafter, (b) in the case of BA Rate Loans, the
period commencing on the date a BA Rate Loan is made or deemed made pursuant to
a conversion or continuation and ending, as the Borrower may select, on the
30th, 60th, 90th or (as available) 120th or 180th day thereafter, and (c) in the
case of Fixed Rate Loans, the period commencing on the date a Fixed Rate Loan is
made and ending such number of days thereafter (which shall be not less than 30
days or more than 180 days after the date such Fixed Rate Loan is made), as the
Borrower may select; provided that (x) if any Interest Period would otherwise
end on a day that is not a Banking Day, such Interest Period shall be extended
to the next succeeding Banking Day unless, in the case of an Interest Period
pertaining to a LIBOR Loan, the result of such extension would be to carry such
Interest Period into another calendar month, in which event such Interest Period
shall end on the immediately preceding Banking Day and (y) each such Interest
Period which commences on the last Banking Day of a calendar month, or on any
day for which there is no numerically corresponding day in the appropriate
subsequent calendar month, shall end on the last Banking Day of the appropriate
calendar month. In no event shall any Interest Period extend beyond the Loan
Maturity Date.
"Lending Office" means, for each Bank and for each type of
Loan, the lending office of such Bank (or of an affiliate of such Bank)
designated as such for such type of Loan on its signature page hereof or in an
assignment agreement pursuant to Section 12.05 hereof or such other office of
such Bank (or of an affiliate of such Bank) as such Bank may from time to time
specify to the Agent and the Borrower as the office by which its Loans of such
type are to be made and maintained.
"Letter of Credit" means any letter of credit (including,
without limitation, any Special Letter of Credit) issued by the Issuing Bank for
the account of the Borrower directly or as a financial accommodation for a
Subsidiary of the Borrower pursuant to the terms of this Agreement.
"Letter of Credit Commission Fee" means the letter of credit
commission fee payable by the Borrower to the Agent pursuant to Section 3.05(a)
hereof.
"L/C Subfacility" means that portion of the Total Commitment
available for the issuance by the Issuing Bank of Letters of Credit, in an
aggregate amount not to exceed $20,000,000 at any time.
"LIBOR" means with respect to any Borrowing consisting of
LIBOR Loans, the rate per annum (rounded upwards if necessary to the nearest
1/16 of 1%) quoted at approximately 11:00 a.m. London time by the principal
London office of the Agent two Banking Days prior to the first day of the
Interest Period for such Borrowing for the offering to leading banks in the
London interbank market of Dollar deposits in immediately available funds, for a
period, and in an amount, comparable to such Interest Period and principal
amount of the LIBOR Loan which shall be made by the Agent (in its capacity as a
Bank) with respect to such Borrowing.
"LIBOR Loan" means any Pro Rata Loan when and to the extent
the interest rate therefor is determined on the basis of Reserve Adjusted LIBOR
Rate.
"Lien" means any lien (statutory or otherwise), security
interest, mortgage, deed of trust, priority, pledge, charge, conditional sale,
title retention agreement, Capital Lease or other encumbrance or similar right
of others, or any agreement to give any of the foregoing.
"Loan" means any Pro Rata Loan or Bid Loan made by a Bank
pursuant to Article 2 hereof or any Sid Tool Loan.
"Loan Maturity Date" means the earlier of (a) the date on
which the (i) Loans shall be indefeasibly paid in full, (ii) Letters of Credit
shall be indefeasibly reimbursed in full, (iii) Commitments shall terminate
hereunder and (iv) obligations of the Borrower in connection with the Loans,
Letters of Credit and Commitments have been satisfied or (b) May 31, 2001;
provided that if such date is not a Banking Day, the Loan Maturity Date shall be
the next succeeding Banking Day (or, with respect to LIBOR Loans, if such next
succeeding Banking Day falls in the next calendar month, the next preceding
Banking Day).
"Margin" means, with respect to BA Rate Loans and LIBOR Loans,
(i) if the ratio of Total Liabilities to Effective Net Worth is less than
0.75:1.00, 0.45%; (ii) if the ratio of Total Liabilities to Effective Net Worth
is equal to or greater than 0.75:1.00 but less than 1.00:1.00, 0.50%; (iii) if
the ratio of Total Liabilities to Effective Net Worth is l.00:1.00 or greater
but less than 1.25:1.00, 0.625%; and (iv) if the ratio of Total Liabilities to
Effective Net Worth is 1.25:1.00 or greater, 0.75%. Nothing contained in this
definition of "Margin" shall affect the rights of the Banks under Article 10 of
this Agreement.
"Multiemployer Plan" means a Plan defined as such in Section
4001(a)(3) of ERISA to which contributions have been made by the Borrower, any
Subsidiary of the Borrower or any ERISA Affiliate and which is covered by Title
IV of ERISA.
"Net Income" means, with respect to any Person for any period,
such Person's and its Consolidated Subsidiaries' net income for such period
determined on a consolidated basis as reflected on such Person's consolidated
financial statements.
"Note" means a promissory note of the Borrower in the form of
Exhibit A hereto evidencing the Pro Rata Loans made or to be made by a Bank
hereunder and any other promissory note of the Borrower issued in addition
thereto or in substitution therefor.
"Notice of Borrowing" means an irrevocable notice,
substantially in the form of Exhibit E-1 hereto, given by the Borrower to the
Agent in connection with any Borrowing consisting of Pro Rata Loans.
"Notice of Conversion/Continuation" means an irrevocable
notice, substantially in the form of Exhibit E-2 hereto, given by the Borrower
to the Agent with respect to the conversion of Base Rate Loans to LIBOR Loans or
BA Rate Loans, BA Rate Loans to Base Rate Loans or LIBOR Loans or LIBOR Loans to
Base Rate Loans or BA Rate Loans, as the case may be, or a continuation of Base
Rate Loans, BA Rate Loans or LIBOR Loans as such, as the case may be.
"Obligations" means all present and future loans, advances,
liabilities, obligations, covenants, duties, and debts, owing by the Borrower to
the Agent, the Issuing Bank or any Bank, arising under or relating to this
Agreement or any other Facility Document, whether or not evidenced by any note,
or other instrument or document, whether arising from an extension of credit,
opening of a letter of credit, acceptance, loan, guaranty, indemnification or
otherwise, whether direct or indirect (including, without limitation, those
acquired by assignment from others, and any participation by the Banks in any of
the Borrower's debts owing to others), absolute or contingent, due or to become
due, primary or secondary, as principal or guarantor, and including, without
limitation, all interest, charges, expenses, fees, attorneys' fees, filing fees
and any other sums chargeable to the Borrower hereunder, under another Facility
Document, or under any other agreement or instrument with the Agent, the Issuing
Bank or any Bank.
"PBGC" means the Pension Benefit Guaranty Corporation and any
entity succeeding to any or all of its functions under ERISA.
"Permitted Acquisition" means an acquisition permitted by the
terms of Section 12.06 hereof.
"Permitted Assumed Acquisition Debt" means, with respect to
any Subsidiary that is acquired in a Permitted Acquisition, any of the following
Debt of such Subsidiary that was outstanding immediately prior to the closing of
such Permitted Acquisition, was not created or incurred by such Subsidiary in
contemplation of such Permitted Acquisition, remains outstanding Debt of such
Subsidiary on and after such closing or is assumed by the Borrower or an
Acquisition Affiliate, and does not breach (and does not cause or result in any
breach of) any term of this Agreement:
(a) Mortgage term loans secured by Liens on interests
in real estate owned by or leased to such Subsidiary;
(b) Debt in respect of industrial revenue bonds issued for the
benefit of, or issued to finance projects for the benefit of, such
Subsidiary, which Debt may be secured by Liens on interests in the
projects so financed and owned by or leased to such Subsidiary;
(c) Unsecured term debt evidenced by publicly-traded notes
issued by such Subsidiary pursuant to a trust indenture and subject to
the Trust Indenture Act of 1940, as amended; and
(d) Debt arising in respect of revolving credit facilities,
letter of credit facilities, bankers' acceptance facilities and other
similar credit facilities, which Debt may be secured by Liens on
current assets of such Subsidiary; provided, however, that (i) the
maximum amount of all Debt outstanding and available under all of the
foregoing facilities shall not exceed $10,000,000 in the aggregate at
any time, and (ii) within six months after the date of the closing of
such Permitted Acquisition, all of the foregoing facilities shall have
been terminated, all Debt thereunder shall have been repaid in full or
otherwise extinguished, and all Liens securing the same shall have been
released and extinguished.
"Permitted Liens" means those certain Liens defined in Section
8.02 hereof.
"Person" means an individual, partnership, corporation,
business trust, joint stock company, trust, unincorporated association, joint
venture, governmental authority or other entity of whatever nature.
"Plan" means any employee benefit or other plan established or
maintained, or to which contributions have been
made, by the Borrower or any ERISA Affiliate.
"Principal Office" means the principal office of the
Agent, presently located at 000 Xxxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000.
"Pro Rata Loan" means any Loan made by a Bank pursuant to
Section 2.01(a) hereof. Each Pro Rata Loan shall be a LIBOR Loan, a BA Rate Loan
or a Base Rate Loan, unless otherwise provided by Article 4, Article 10 or any
other applicable provisions of this Agreement.
"Regulation D" means Regulation D of the Federal Reserve Board
as the same may be amended or supplemented from time to time.
"Regulatory Change" means, with respect to any Bank, any
change in United States federal, state, municipal or foreign laws or regulations
(including Regulation D) or the adoption or making of any interpretations,
directives or requests applying to a class of banks including such Bank of or
under any United States, federal, state, municipal or foreign laws or
regulations (whether or not having the force of law) by any court or
governmental or monetary authority charged with the interpretation or
administration thereof.
"Reorganization" has the meaning given such term in the
Final Prospectus.
"Reportable Event" means any of the events set forth in
Section 4043(b) of ERISA as to which events the PBGC by regulation has not
waived the requirement of Section 4043(a) of ERISA that it be notified within 30
days of the occurrence of such event, provided that a failure to meet the
minimum funding standard of Section 412 of the Code or Section 302 of ERISA
shall be a Reportable Event regardless of any waivers given under Section 412(d)
of the Code.
"Required Banks" means, at any time, Banks having at least
66-2/3% of the aggregate amount of the Commitments and, if the Commitments have
been terminated, Banks having at least 66 2/3% of the Loans outstanding at such
time and participation interests in Aggregate Letter of Credit Outstandings at
such time.
"Reserve Adjusted LIBOR Rate" means, with respect to the
Interest Period for each LIBOR Loan, the rate per annum (rounded upwards to the
nearest whole multiple of 1/100th of one percent) equal to the following:
LIBOR
1.00 - Eurocurrency Reserve Requirements.
"Revolving Credit Facility" means the Revolving Credit
Facility provided for in Article 2 hereof.
"Second Amended and Restated Credit Agreement" means the Sid
Tool Credit Agreement as amended and restated by a Second Amended and Restated
Credit Agreement dated as of the date hereof among Mitchmar Delaware Properties
Inc., ESCO Management Corp., Sid Tool, Milford Industrial Tool Supply Co., Inc.,
the banks parties thereto and Fleet Bank, National Association, as agent for the
banks parties thereto.
"Sid Tool Letter of Credit" means all letters of credit issued
under the Sid Tool Credit Agreement and not returned to the Issuing Bank (as
defined in the Sid Tool Credit Agreement) and or prior to the date hereof.
"Sid Tool Loan" means each BA Rate Loan or LIBOR Loan which is
a Revolving Credit Loan (as each such term is defined in the Sid Tool Credit
Agreement) made under the Sid Tool Credit Agreement and which are outstanding on
the date hereof.
"Solvent" means, when used with respect to any Person on a
particular date, that on such date: (a) the fair saleable value of its assets is
in excess of the total amount of its liabilities, including, without limitation,
the reasonably expected amount of such Person's obligations with respect to
contingent liabilities, (b) the present fair saleable value of the assets of
such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts and liabilities as they become
absolute and matured, (c) such Person does not intend to, and does not believe
that it will, incur debts or liabilities beyond such Person's ability to pay as
such debts and liabilities mature and (d) such Person is not engaged in business
or a transaction for which such Person's property would constitute an
unreasonably small capital.
"Special Letter of Credit" means each standby Letter of Credit
issued to the respective beneficiary thereof by the Issuing Bank for the account
of the Borrower pursuant to the terms of this Agreement, having an expiration
date not more than one (1) year after the date of issuance thereof and having a
face amount which, when added to all Letters of Credit then outstanding or
issued contemporaneously therewith, would not exceed the L/C Subfacility.
"Special Letter of Credit Commission Fee" means the special
letter of credit commission fee payable by the Borrower to the Agent pursuant to
Section 3.05(c) hereof.
"Subordinated Debt" means unsecured Debt of the Borrower that
is subordinated on terms satisfactory to the Banks to the Borrower's obligations
to the Banks under this Agreement and the other Facility Documents.
"Subsidiary" means, as to any Person, any corporation or other
entity of which at least a majority of the securities or other ownership
interests having ordinary voting power (absolutely or contingently) for the
election of directors or other persons performing similar functions are at the
time owned directly or indirectly by such Person.
"Subsidiary Guarantee" means the guarantees of the Obligations
of the Borrower by each Subsidiary of the Borrower and in favor of the Agent and
the Banks in the form of Exhibit C, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with its terms and executed
as of the Effective Date or, if later, on the date of the Permitted Acquisition
pursuant to which a Person became a Subsidiary of the Borrower.
"Total Assets" means, at a particular date, all amounts which
would, in conformity with GAAP, be included as assets on a balance sheet of the
Borrower and its Consolidated Subsidiaries as at such date.
"Total Commitment" means, at any time, the aggregate of
the Commitments in effect at such time. On the Effective Date,
the Total Commitment is $80,000,000.
"Total Current Assets" means, at a particular time, all
amounts which would, in conformity with GAAP, be included as current assets on a
balance sheet of the Borrower and its Consolidated Subsidiaries as at such date.
"Total Current Liabilities" means, at a particular date, all
amounts which would, in conformity with GAAP, be included as current liabilities
on a balance sheet of the Borrower and its Consolidated Subsidiaries as at such
date and shall include, without limitation (a) all obligations payable on demand
or within one year after the date on which the determination is made, and (b)
all obligations of the Borrower under the Revolving Credit Facility.
"Total Liabilities" means, at a particular date, all amounts
which would, in conformity with GAAP, be included as liabilities on a balance
sheet of the Borrower and its Consolidated Subsidiaries as at such date.
"Unfunded Vested Liabilities" means, with respect to any Plan,
the amount (if any) by which the present value of all vested benefits under the
Plan exceeds the fair market value of
all Plan assets allocable to such benefits, as determined on the most recent
valuation date of the Plan and in accordance with the provisions of ERISA for
calculating the potential liability of the Borrower or any ERISA Affiliate to
the PBGC or the Plan under Title IV of ERISA.
Section 1.02. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with GAAP, and all
financial data required to be delivered hereunder shall be prepared in
accordance with GAAP.
Section 1.03. Interpretation. All references in this Agreement
to any other agreement or instrument shall include such other agreement or
instrument as the same may be amended, modified or supplemented from time to
time in accordance with this Agreement. In the computation of interest and fees
payable from a specified date to a later specified date, unless otherwise
indicated, the word "from" means "from and including" and the words "to" and
"until" both mean "to but not including." Wherever appropriate in the context,
terms used herein in the singular also include the plural, and vice versa, and
each masculine, feminine or neuter pronoun shall also include the other genders.
ARTICLE 2. THE LOANS
Section 2.01. The Loans Generally
(a) Subject to the terms and conditions of this Agreement
(including, but not limited to, the provisions of Section 11.16 hereof) and in
reliance upon the representations and warranties set forth herein and upon the
provisions of each Subsidiary Guarantee, each of the Banks severally agrees to
make revolving credit loans in Dollars on a pro rata basis based on its
Commitment Proportion (the "Pro Rata Loans") to the Borrower and to purchase on
a pro rata basis based on its Commitment Proportion participation interests in
Aggregate Letter of Credit Outstandings from time to time from and including the
Effective Date to but excluding the Loan Maturity Date up to but not exceeding
at any one time outstanding the amount of its Commitment; provided, that (i) at
no time shall any Pro Rata Loan be made if after giving effect to such Loan the
sum of the Aggregate Outstandings at the time of such Loan plus the aggregate
principal amount of Loans to be made pursuant to a Bid Acceptance/Rejection or a
Notice of Borrowing would exceed the Total Commitment in effect at such time and
(ii) at all times the outstanding aggregate principal amount of all Pro Rata
Loans and Sid Tool Loans made by each Bank shall equal the product of (a) its
Commitment Proportion times (b) the sum of (i) the aggregate outstanding
principal amount of all Pro Rata Loans and (ii) the aggregate outstanding
principal amount of all Sid Tool Loans.
Subject to the foregoing limits, the Borrower may borrow, repay and reborrow, on
or after the Effective Date and prior to the Loan Maturity Date, all or a
portion of the Commitments hereunder.
(b) Each Pro Rata Loan shall be made as part of a Borrowing
consisting of Loans made by the Banks ratably in accordance with their
respective Commitment; provided, however, that the failure of any Bank to make
any Pro Rata Loan shall not in itself relieve any other Bank of its obligation
to lend hereunder (it being understood, however, that no Bank shall be
responsible for the failure of any other Bank to make any Loan required to be
made by such other Bank). Each Bid Loan shall be made in accordance with the
procedures set forth in Section 2.05. Each Borrowing of Pro Rata Loans or Bid
Loans shall be (i) in the case of a Borrowing consisting of Bid Loans, in an
aggregate principal amount which is not less than $2,000,000 and not more than
$25,000,000 (or an aggregate principal amount equal to the remaining balance of
the Total Commitment) and (ii) in the case of a Borrowing consisting of Pro Rata
Loans, (A) with respect to BA Rate Loans, in an aggregate principal amount which
is an integral multiple of $100,000 and not less than $1,500,000, (B) with
respect to LIBOR Loans, in an aggregate principal amount which is an integral
multiple of $100,000 and not less than $2,500,000 and (C) with respect to Base
Rate Loans, in an aggregate principal amount which is not less than $250,000,
and, if greater than $250,000, which is an integral multiple of $100,000 (or an
aggregate principal amount equal to the remaining balance of the available
Commitments). Subject to the provisions of Article 3 and Article 10 hereof, the
Borrower shall pay the principal amount of each Pro Rata Loan and each Sid Tool
Loan in full on the Loan Maturity Date.
(c) Each Borrowing of Bid Loans shall be comprised entirely of
Fixed Rate Loans, and each Borrowing consisting of Pro Rata Loans shall be
comprised entirely of LIBOR Loans, BA Rate Loans or Base Rate Loans, as the
Borrower may request pursuant to Section 2.04 hereof. Borrowings of more than
one type of Loan may be outstanding at the same time. For purposes of the
foregoing, Loans having different Interest Periods, regardless of whether they
commence on the same date, shall be considered separate Loans.
Section 2.02. The Notes. The Pro Rata Loans of each Bank shall
be evidenced by a single Note in favor of such Bank, with appropriate
insertions, duly executed and completed by the Borrower. Each Bank is hereby
authorized to record the date and amount of each Pro Rata Loan, the date and
amount of each payment of principal thereof, and the principal amount subject
thereto and interest rate with respect thereto in such Bank's records and/or on
the schedules annexed to and constituting a part of its Note, and, absent
manifest error, any such recordation shall
constitute conclusive evidence of the information so recorded; provided that the
failure to make any such recordation shall not in any way affect the Borrower's
obligation to repay the Pro Rata Loans. Each Note (a) shall be dated the
Effective Date, (b) be stated to mature on the Loan Maturity Date and (c) shall
bear interest from and including the Effective Date on the unpaid principal
amount thereof from time to time outstanding as provided herein.
Section 2.03. Use of Proceeds. The Borrower shall use the
proceeds of the Loans solely to refinance the revolving credit loans made to Sid
Tool and outstanding on the date hereof under the Sid Tool Credit Agreement, to
finance the working capital and Capital Expenditures needs of its Consolidated
Subsidiaries and to finance Permitted Acquisitions by the Borrower and any of
its Acquisition Affiliates and to refinance any Loans made in connection with
any of the foregoing. No part of the proceeds of any of the Loans will be used
for any purpose which violates the provisions of Regulation G, T, U or X of the
Federal Reserve Board as in effect on the date of making such Loans.
Section 2.04. Borrowing Procedures for Pro Rata Loans. In
order to request Pro Rata Loans, the Borrower shall give the Agent a duly
completed Notice of Borrowing (i) for each Borrowing consisting of BA Rate Loans
or Base Rate Loans, not later than 10:00 a.m. (New York time) on the date of
such Borrowing; and (ii) for each Borrowing consisting of LIBOR Loans, not later
than 10:00 a.m. (New York time) two Banking Days before the date of such
Borrowing. Each such Notice of Borrowing shall specify: (i) the type of Loans
comprising such Borrowing; (ii) the amount of such Borrowing; (iii) the date of
such Borrowing, which shall be a Banking Day prior to the Loan Maturity Date;
and (iv) in the case of a Borrowing consisting of LIBOR Loans or BA Rate Loans,
the duration of the Interest Period applicable to the Loans comprising such
Borrowing, which shall be a period permitted by the definition of "Interest
Period" in Article 1 hereof. Each Borrowing consisting of Pro Rata Loans shall
be made ratably from the Banks in proportion to each Bank's Commitment
Proportion. Upon receipt by the Agent of a Notice of Borrowing as aforesaid, the
Agent shall promptly advise each Bank thereof (i) by telephone (confirmed in
writing), in the case of BA Rate Loans and Base Rate Loans and (ii) by telecopy,
in the case of LIBOR Loans. Not later than 11:00 a.m. (New York time) on the
date of such Borrowing, each Bank shall, through its Lending Office and subject
to the conditions of this Agreement, make the amount of the Pro Rata Loan to be
made by it on such day available to the Agent, at the Principal Office and in
immediately available funds for the account of the Borrower. The amount received
by the Agent shall, subject to the conditions of this Agreement, be made
available by the Agent to the Borrower, not later than 1:00 p.m. on such date,
in immediately available funds, by the Agent
crediting an account of the Borrower designated by the Borrower and maintained
with the Agent at 000 Xxxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000.
Section 2.05. Bid Procedure.
(a) In order to request Bid Loans, the Borrower shall hand
deliver or telecopy to the Agent a duly completed Bid Request, to be received by
the Agent not later than 10:00 a.m. (New York time) one Banking Day before such
proposed Borrowing. A Bid Request that does not conform substantially to the
format of Exhibit B-1 may be rejected in the Agent's sole discretion, and the
Agent shall promptly notify the Borrower of such rejection by telecopy. Each Bid
Request shall refer to this Agreement and specify (x) the date of such Borrowing
of Bid Loans (which shall be a Banking Day) and the aggregate principal amount
of such Borrowing which shall be in a minimum principal amount of $2,000,000 and
a maximum principal amount of $25,000,000, subject to the provisions of Section
2.05(d) hereof and (y) the Interest Period with respect thereto. In no event
shall the Aggregate Bid Loan Outstandings at any time exceed fifty percent (50%)
of the Total Commitment at such time. Promptly after its receipt of a Bid
Request that is not rejected as aforesaid, the Agent shall telecopy to the Banks
a copy of the Bid Request inviting the Banks to bid, on the terms and conditions
of this Agreement, to make Bid Loans.
(b) Each Bank may, in its sole discretion, make one or more
Bids to the Borrower responsive to such Borrower's Bid Request. Each Bid by a
Bank must be received by the Agent by telecopy not later than 10:00 a.m. (New
York time) on the day of such proposed Borrowing. Multiple Bids will be accepted
by the Agent. Bids that do not conform substantially to the format of Exhibit
B-2 may be rejected by the Agent, and the Agent shall notify the Bank making
such nonconforming bid of such rejection as soon as practicable. Each Bid shall
refer to this Agreement and specify (x) the principal amount (which shall be in
a minimum principal amount of $2,000,000 and a maximum principal amount of
$25,000,000 and which may equal the entire principal amount of the Bid Loans
requested) of the Bid Loan or Bid Loans that the Bank is willing to make, (y)
the Fixed Rate or Fixed Rates at which the Bank is prepared to make the Bid Loan
or Bid Loans and (z) the Interest Period and the last day thereof. If any Bank
invited to bid shall elect not to make a Bid, such Bank shall so notify the
Agent by telecopy not later than 10:00 a.m. (New York time) on the day of such
proposed Borrowing; provided, however, that failure by any Bank to give such
notice shall be deemed to be an election not to make a Bid, and such failure
shall accordingly not cause such Bank to be obligated to make any Bid Loan as
part of such Borrowing.
(c) The Agent shall promptly notify the Borrower, by
telecopy, of all the conforming Bids made, the Fixed Rate and the principal
amount of each Bid Loan in respect of which a Bid was made and the identity of
the Bank that made each Bid. The Agent shall send a copy of all Bids to the
Borrower for its records as
soon as practicable after completion of the bidding process set forth in this
Section 2.05.
(d) The Borrower may in its sole and absolute discretion,
subject only to the provisions of this paragraph (d), accept or reject any Bid
referred to in paragraph (c) above. The Borrower shall notify the Agent by
telephone, confirmed by telecopy in the form of a Bid Acceptance/Rejection,
whether and to what extent it has decided to accept or reject any of or all the
bids referred to in paragraph (c) above not more than one hour after it shall
have been notified of such bids by the Agent pursuant to such paragraph (c);
provided, however, that (i) the failure of the Borrower to give such notice
shall be deemed to be a rejection of all the Bids referred to in paragraph (c)
above, (ii) the Borrower shall not accept a Bid made at a particular Fixed Rate
if it has decided to reject a Bid made at a lower Fixed Rate, (iii) the
aggregate amount of the Bids accepted by the Borrower shall not exceed the
principal amount specified in the Bid Request, (iv) if the Borrower shall accept
a Bid or Bids made at a particular Fixed Rate but the amount of such Bid or Bids
shall cause the total amount of Bids to be accepted to exceed the amount
specified in the Bid Request, then the Borrower shall accept a portion of such
Bid or Bids in an amount equal to the amount specified in the Bid Request less
the amount of all other Bids accepted with respect to such Bid Request, which
acceptance, in the case of multiple Bids at such Fixed Rate, shall be made pro
rata in accordance with the amount of each such bid at such Fixed Rate, and (v)
except pursuant to clause (iv) above, no Bid shall be accepted for a Bid Loan
unless such Bid Loan is in a minimum principal amount of $2,000,000 and a
maximum principal amount of $25,000,000 provided further, however, that if a Bid
Loan must be in an amount less than $2,000,000 because of the provisions of
clause (iv) above, such Bid Loan shall be for a minimum of $1,000,000, and in
calculating the pro rata allocation of acceptances of portions of multiple Bids
at a particular Fixed Rate pursuant to clause (iv) the amounts shall be rounded
to integral multiples of $1,000,000 in a manner which shall be in the discretion
of the Agent.
(e) The Agent shall promptly notify each bidding Bank whether
or not its Bid has been accepted (and if so, in what amount and at what Fixed
Rate) by telecopy, and each successful bidder will thereupon become bound,
subject to the other applicable conditions hereof, to make the Bid Loan in
respect of which its bid has been accepted.
(f) No Bid Loan shall be requested or made hereunder
if after giving effect thereto any of the conditions set forth in clauses (i)
or (ii) of Section 2.01(a) would not be met.
(g) If the Agent shall elect to submit a Bid in its capacity
as a Bank, it shall submit such Bid directly to the
Borrower one quarter of an hour earlier than the latest time at which the other
Banks are required to submit their bids to the Agent pursuant to paragraph (b)
above.
(h) All notices, submissions and other communications
pursuant to this Section 2.05 shall be irrevocable.
(i) Subject to the provisions of Article 3 and Article 10
hereof, the Borrower shall pay the principal amount of each Bid Loan in full on
the last day of the Interest Period thereof.
Section 2.06. Interest on Loans.
(a) Subject to the provisions of subsection (e) of this
Section 2.06, LIBOR Loans and BA Rate Loans shall bear interest (computed on the
basis of the actual number of days elapsed over a year of 360 days) at a rate
per annum equal to the LIBOR Rate or BA Rate, as the case may be, for the
Interest Period in effect for such Loan plus the Margin from time to time in
effect.
(b) Subject to the provisions of subsection (e), Base Rate
Loans shall bear interest (computed on the basis of the actual number of days
elapsed over a year of 360 days) at a rate per annum equal to the Base Rate.
Each change in the interest rate for any Base Rate Loans shall take effect
simultaneously with the corresponding change in the Base Rate.
(c) Subject to the provisions of subsection (e), each Fixed
Rate Loan shall bear interest at a rate per annum (computed on the basis of the
actual number of days elapsed over a year of 360 days) equal to the fixed rate
of interest offered by the Bank making such Loan and accepted by the Borrower
pursuant to Section 2.05.
(d) Interest on each Loan shall be payable on each Interest
Payment Date applicable to such Loan except as otherwise provided in this
Agreement. The applicable BA Rate for each Interest Period applicable to BA Rate
Loans shall be determined by the Agent, and such determination shall be
conclusive absent manifest error.
(e) Any amount not paid when due (at maturity, on
acceleration, or otherwise) shall bear interest thereafter until paid at the
Default Rate. Such interest shall be payable on demand.
Section 2.07. Reductions in Commitments.
(a) At any time after the date twelve (12) months after the
date of this Agreement, the Borrower shall have the right on three Banking Days
prior written notice to reduce or
terminate the amount of the unused Total Commitment, provided that: (i) the
Borrower shall give notice of each such reduction or termination to the Agent as
provided in Section 3.01; and (ii) each partial reduction shall be in an
aggregate amount at least equal to $10,000,000 or, if greater, in integral
multiples of $1,000,000.
(b) The Total Commitment, once reduced or terminated,
may not be reinstated or increased.
(c) Each reduction in the Total Commitment pursuant to this
Section 2.07 shall reduce each Bank's obligation to make Loans proportionately
in accordance with its Commitment Proportion.
Section 2.08. Adjustments to Applicable Margin. The applicable
Margin shall be reset quarterly for the next succeeding fiscal quarter, based
upon the Borrower's ratio of Total Liabilities to Effective Net Worth, as
reflected in the Borrower's quarterly and year-end financial statements,
effective, in each case, as of the date such financial statements are required
to be delivered hereunder.
ARTICLE 2A. LETTERS OF CREDIT
Section 2A.01. Agreement to Issue. Subject to the terms and
conditions of this Agreement and in reliance upon the representations and
warranties of the Borrower herein set forth and upon the provisions of each
Subsidiary Guarantee, the Issuing Bank hereby agrees to issue for the account of
the Borrower and as a financial accommodation for the Borrower's Subsidiaries,
or any of them, one or more Letters of Credit in accordance with this Article
2A, from time to time during the period commencing on the Effective Date and
ending on the Loan Maturity Date.
Section 2A.02. Amounts; Tenor. The Issuing Bank shall
not have any obligation to issue any Letter of Credit at any
time:
(a) if, after giving effect to the issuance of the requested
Letter of Credit, (i) the sum of the Aggregate Letter of Credit Outstandings of
the Borrower would exceed the L/C Sub-facility then in effect, or (ii) the
Aggregate Outstandings would exceed the Total Commitment; or
(b) (i) in the case of any Special Letter of Credit, if such
Letter of Credit has an expiration date more than one (1) year after the date of
issuance thereof, and (ii) in the case of any other Letter of Credit, if such
Letter of Credit has an expiration date more than 180 days after the date of
issuance thereof.
Section 2A.03. Conditions. In addition to being subject to the
satisfaction of the conditions precedent contained in Article 5 hereof, the
obligation of the Issuing Bank to issue any Letter of Credit is subject to the
following conditions precedent having been satisfied in a manner satisfactory to
the Issuing Bank and the Agent:
(a) The Borrower shall have delivered to the Issuing Bank at
such times and in such manner as the Issuing Bank may prescribe an application
in form and substance satisfactory to the Issuing Bank for the issuance of the
Letter of Credit and such documents as may be required pursuant to the terms
thereof, and the form and terms of the proposed Letter of Credit shall be
satisfactory to the Agent and the Issuing Bank;
(b) as of the date of issuance, no order of any court,
arbitrator or public authority having jurisdiction or authority over the
proposed issuer shall purport by its terms to enjoin or restrain money center
banks generally from issuing letters of credit of the type and in the amount of
the proposed Letter of Credit and no law, rule or regulation applicable to money
center banks generally and no request or directive (whether or not having the
force of law) from any public authority with jurisdiction over money center
banks generally shall prohibit, or request that the Issuing Bank refrain from,
the issuance of letters of credit generally or the issuance of such Letter of
Credit, as the case may be; and
(c) the Borrower shall have appointed the Agent as its
attorney, with full power and authority: (i) to sign and/or endorse the
Borrower's name upon any warehouse or other receipts or Letter of Credit
applications; (ii) to sign the Borrower's name on bills of lading; (iii) to
clear inventory through U.S. Customs in the Borrower's name or the name of the
Agent, and to sign and deliver to U.S. Customs officials powers of attorney in
the Borrower's name for such purpose; (iv) to complete in the Borrower's name or
Agent's name any order, sale or transaction, obtain the necessary documents in
connection therewith and collect the proceeds thereof; and (v) to do such other
acts and things as are necessary to carry out the terms of this Agreement in
order to enable the Agent to obtain payment of all obligations of the Borrower
hereunder.
Section 2A.04. Issuance of Letters of Credit.
(a) Request for Issuance. The Borrower shall give the
Agent written notice, no later than one (1) Banking Day prior to the proposed
date of issuance of the Letter of Credit, containing the original signature of
an authorized officer of the Borrower, of the Borrower's request for the
issuance of a Letter of Credit. Such notice shall be irrevocable and shall
specify the face
amount of the Letter of Credit requested, the effective date (which date shall
be a Banking Day) of issuance of such requested Letter of Credit, the date on
which such requested Letter of Credit is to expire (which date shall be a
Banking Day), the purpose for which such Letter of Credit is to be issued, the
beneficiary of the requested Letter of Credit, whether such Letter of Credit may
be drawn in a single or in partial draws and whether such Letter of Credit is to
be issued to replace a letter of credit (including letters of credit issued
other than pursuant to this Agreement). The Borrower shall attach to such notice
the form of the Letter of Credit that the Borrower requests that the Issuing
Bank issue.
(b) Responsibilities of the Agent; Issuance. The Agent shall
determine, as of the Banking Day immediately preced- ing the requested effective
date of issuance of the Letter of Credit set forth in the notice from the
Borrower, the amount of the unused L/C Subfacility and the unused Total
Commitment as of such date. If (i) the form of the Letter of Credit delivered
by the Borrower to the Agent is acceptable to the Agent in its reasonable
discretion, (ii) the undrawn face amount of the requested Letter of Credit is
less than or equal to each of such unused L/C Subfacility and the unused Total
Commitment, and (iii) the applicable conditions set forth in Article 5 hereof
have been satisfied, then the Agent shall direct the Issuing Bank to issue such
Letter of Credit for the account of the Borrower.
Section 2A.05. Letter of Credit Obligations; Duties of
Issuing Bank.
(a) Reimbursement. Notwithstanding any provisions to the
contrary in any document or documents delivered pursuant to Section 2A.03
hereof, the Borrower shall reimburse the Issuing Bank for any drawings or
payments (whether partial or full) under any Letter of Credit immediately after
the payment by the Issuing Bank. Any drawings not paid when due under the terms
of such Letter of Credit or any document pertaining thereto shall bear interest,
payable on demand, at the Default Rate until the Issuing Bank is reimbursed in
full.
(b) Duties of Issuing Bank. Any action taken or omitted to be
taken by the Issuing Bank under or in connection with any Letter of Credit, if
taken or omitted in the absence of gross negligence or willful misconduct, shall
not put the Issuing Bank under any resulting liability to any Bank, or relieve
any Bank of its obligations hereunder to the Issuing Bank. In determining
whether to pay under any Letter of Credit, the Issuing Bank shall have no
obligation relative to any Bank other than to confirm that any documents
required to have been delivered under such Letter of Credit appear to comply
on their face with the requirements of such Letter of Credit.
Section 2A.06. Participations.
(a) Purchase of Participations. Immediately upon issuance by
the Issuing Bank of any Letter of Credit in accordance with Section 2A.04
hereof, each Bank shall be deemed to have irrevocably and unconditionally
purchased and received, without recourse or warranty, an undivided interest and
participation in such Letter of Credit equal to such Bank's Commitment
Proportion of the face amount thereof (including, without limitation, all
obligations of the Borrower with respect thereto, other than amounts owing to
the Issuing Bank under Section 3.05 hereof, and any security therefor or
guaranty pertaining thereto).
(b) Sharing of Letter of Credit Payments. In the event that
the Issuing Bank makes a payment under any Letter of Credit and the Issuing Bank
shall not have been repaid such amount pursuant to Section 2A.07 hereof, the
Agent shall notify each Bank, and each Bank shall unconditionally pay to the
Agent at its principal office for the account of the Issuing Bank, as and when
provided hereinbelow, an amount equal to such Bank's Commitment Proportion of
the amount of such payment in Dollars and in immediately available funds. If the
Agent so notifies the Banks by not later than 11:00 a.m. (New York time) on any
Banking Day, each Bank shall make available to the Agent the amount of such
payment, as provided in the immediately preceding sentence, on such Banking Day.
If the Agent so notifies the Banks after 11:00 a.m. (New York time) on any
Banking Day, each Bank shall make available to the Agent the amount of such
payment, as provided in the second preceding sentence, together with interest
thereon at the Federal Funds Rate, by not later than 11:00 a.m. (New York time)
on the next Banking Day. Such amounts paid by the Banks to the Agent shall
constitute Loans which shall be deemed to have been requested by the Borrower
pursuant to Article 2 hereof.
(c) Sharing of Reimbursement Obligation Payments. Whenever the
Agent receives a payment from the Borrower on account of a reimbursement
obligation as to which the Agent has previously received for the account of the
Issuing Bank payment from a Bank pursuant to this Section 2A.06, the Agent shall
promptly pay to such Bank, such Bank's Commitment Proportion of such payment
from the Borrower in Dollars. Each such payment shall be made by the Agent on
the Banking Day on which the Agent receives immediately available funds paid to
such Person pursuant to the immediately preceding sentence, if received prior to
11:00 a.m. (New York time) on such Banking Day and otherwise on the next
succeeding Banking Day.
(d) Obligations Irrevocable. The obligations of each Bank to
make payments to the Agent with respect to any Letter of Credit or with respect
to any guaranty or reimbursement obligation of the Agent with respect to any
Letter of Credit, and the obligations
of the Borrower to make payments to the Agent, for the account of the Banks,
shall be irrevocable, not subject to any qualification or exception whatsoever
and shall be made in accordance with the terms and conditions of this Agreement
(assuming, in the case of the obligations of the Banks to make such payments,
that the Agent has caused such Letter of Credit to be issued in accordance with
Section 2A.04 hereof), including, without limitation, any of the following
circumstances:
(i) Any lack of validity or enforceability
of this Agreement or any of the other Facility Documents;
(ii) The existence of any claim, set-off, defense or
other right which the Borrower may have at any time against a
beneficiary named in a Letter of Credit or any transferee of any Letter
of Credit (or any Person for whom any such transferee may be acting),
any Bank, the Issuing Bank, or any other Person, whether in connection
with this Agreement, any Letter of Credit, the transactions
contemplated herein or any unrelated transactions (including any
underlying transactions between the Borrower or any other Person and
the beneficiary named in any Letter of Credit) or any failure of the
Agent to notify a Bank of the issuance, extension or renewal of a
Letter of Credit;
(iii) Any draft, certificate or any other document
presented under any Letter of Credit upon which payment has been made
in good faith and according to its terms proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect;
(iv) The surrender or impairment of any
security for the performance or observance of any of
the terms of any of the Facility Documents; or
(v) The occurrence of any Default or Event
of Default.
Section 2A.07. Payment of Letter of Credit
Reimbursement Obligations.
(a) Payment to Issuing Bank. The Borrower absolutely and
unconditionally agrees to pay to the Agent the amount of all Letter of Credit
reimbursement obligations and other amounts payable to the Issuing Bank under
or in connection with any Letter of Credit immediately when due in immediately
available funds, irrespective of any claim, set-off, defense or other right
which the Borrower may have at any time against the Issuing Bank
or any other Person. The obligation of the Borrower to reimburse or pay the
Agent, the Issuing Bank or the Banks as provided hereunder in respect of
drawings under Letters of Credit shall rank pari passu with the obligation of
the Borrowers to repay the Loans hereunder, and shall be absolute and
unconditional under any and all circumstances. Without limiting the generality
of the foregoing, the obligation of the Borrower to reimburse the Agent in
respect of drawings under Letters of Credit shall not be subject to any defense
based on the non-application or misapplication by the beneficiary of any of the
proceeds of any such payment or the legality, validity, regularity or
enforceability of the Letters of Credit or any related document or any dispute
between or among the Borrowers, the beneficiary of any Letter of Credit or any
financing institution or other party to which any Letter of Credit may be
transferred.
(b) Recovery or Avoidance of Payments. In the event any
payment by or on behalf of the Borrower received by the Agent with respect to
any Letter of Credit (or any guaranty or reimbursement obligation relating
thereto) and distributed by the Agent to the Banks on account of their
respective participations therein is thereafter set aside, avoided or recovered
from the Agent or the Issuing Bank in connection with any receivership,
liquidation or bankruptcy proceeding, the Banks shall, upon demand by the Agent,
pay to the Agent, for its account or the account of the Issuing Bank, their
respective Commitment Proportions of such amount set aside, avoided or recovered
together with interest at the rate required to be paid by the Agent or the
Issuing Bank upon the amount required to be repaid by it.
Section 2A.08. Indemnification; Exoneration.
(a) Indemnification. In addition to amounts payable as
elsewhere provided in this Article 2A, the Borrower agrees to protect,
indemnify, pay and save the Banks, the Issuing Bank and the Agent harmless from
and against any and all claims, demands, liabilities, damages, losses, costs,
charges and expenses (including reasonable attorneys' fees) which any Bank, the
Issuing Bank or the Agent may incur or be subject to as a consequence, directly
or indirectly, of (i) the issuance of any Letter of Credit other than as a
result of its gross negligence or willful misconduct, or (ii) the failure of the
Issuing Bank to honor a drawing under any Letter of Credit as a result of any
act or omission, whether rightful or wrongful, of any present or future de jure
or de facto public authority (all such acts or omissions being hereinafter
referred to collectively as "Government Acts").
(b) Assumption of Risk by the Borrower. As among the
Borrower, the Banks, the Issuing Bank and the Agent, the Borrower assumes all
risks of the acts and omissions of, or misuse of any Letter of Credit by, the
respective beneficiaries of such Letter
of Credit. In furtherance and not in limitation of the foregoing, subject to the
provisions of the applications for the issuance of Letters of Credit, the Banks,
the Issuing Bank and the Agent shall not be responsible for: (i) the form,
validity, sufficiency, accuracy, genuineness or legal effect of any document
submitted by any Person in connection with the application for and issuance of
and presentation of drafts with respect to any of the Letters of Credit, even if
it should prove to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged; (ii) the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign any Letter of
Credit or the rights or benefits thereunder or proceeds thereof, in whole or in
part, which may prove to be invalid or ineffective for any reason; (iii) errors,
omissions, interruptions or delays in transmission or delivery of any messages,
by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher;
(iv) errors in interpretation of technical terms; (v) any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under any Letter of Credit or of the proceeds thereof; (vi) the misapplication
by the beneficiary of any Letter of Credit or the proceeds of any drawing under
any Letter of Credit; or (vii) any consequences arising from causes beyond the
control of the Banks, the Issuing Bank or the Agent, including, without
limitation, any Government Acts. None of the foregoing shall affect, impair or
prevent the vesting of any of the Issuing Bank's, the Agent's or any Bank's
rights or powers under this Section 2A.08.
(c) Exoneration. In furtherance and extension, and not in
limitation, of the specific provisions set forth above, any action taken or
omitted by the Agent or Issuing Bank under or in connection with any Letter of
Credit or any related certificates, if taken or omitted in good faith, shall not
put any Bank, the Issuing Bank or the Agent under any resulting liability to the
Borrower or relieve the Borrower of any of its obligations hereunder to any such
Person.
Section 2A.09. Sid Tool Letters of Credit. In the event that
any Sid Tool Letter of Credit is outstanding on the date hereof, all provisions
of Section 2A.05, 2A.06, 2A.07, 2A.08 and 10.02 hereof shall apply to each such
Sid Tool Letter of Credit to the same extent as if it were a Letter of Credit
issued pursuant to the terms of this Agreement and, for purposes of determining
the available L/C Subfacility at any time, the face amount of such Sid Tool
Letters of Credit shall be added to the face amount of all Letters of Credit
then outstanding or to be issued at such time.
ARTICLE 3. GENERAL CREDIT PROVISIONS;
FEES AND PAYMENTS; NOTICE OF CONVERSION/CONTINUATION
Section 3.01. Certain Notices. Notices by the Borrower to the
Agent of each Borrowing pursuant to Section 2.04 or Section 2.05 hereof, each
Notice of Conversion/Continuation pursuant to Section 3.07 hereof, each
prepayment pursuant to Section 3.02 hereof and each reduction or termination of
Commitments pursuant to Section 2.07 hereof shall be in writing and shall be
irrevocable. The Agent shall promptly notify the Banks of the contents of each
such notice.
Section 3.02. Prepayments.
(a) Mandatory Prepayment on Reduction of Total Commitment. On
the date of any reduction of the Commitments as provided in Section 2.07, the
Borrower shall pay or prepay so much of the Loans and the Aggregate Letter of
Credit Outstandings as shall be necessary in order that the Aggregate
Outstandings will not exceed the Total Commitment after giving effect to such
reduction. Such prepayment shall be accompanied by any and all amounts related
thereto under Article 4 hereof.
(b) Application of Mandatory Prepayments. All
prepayments required by paragraph (a) above shall be applied pro
rata to Loans outstanding and Aggregate Letter of Credit Outstandings.
(c) Accrued Interest. All prepayments made pursuant
to this Section 3.02 shall be accompanied by the payment of all accrued
interest on the amount so prepaid.
Section 3.03. Agency Fees.
(a) The Borrower shall pay to the Agent, for the Agent's own
account, the agency fees set forth in the letter agreement dated April 4, 1995,
as the same has been or hereafter may be amended, supplemented, restated or
otherwise modified, between the Borrower and the Agent.
Section 3.04. Facility Fee. The Borrower shall pay to the
Agent for the account of each Bank a facility fee for the period from and
including the Effective Date to the Loan Maturity Date equal to such Bank's
Commitment Proportion of one-eighth of one percent (0.125%) of the average daily
difference of (a) the Total Commitment minus (b) the Aggregate Outstandings. The
facility fee shall be calculated on the basis of a year of 360 days for the
actual number of days elapsed. The facility fee shall be due and payable monthly
in arrears on the last day of each calendar month in respect of such calendar
month, commencing June 30, 1997, and on the Loan Maturity Date. The facility fee
shall be earned as accrued and be non-refundable when paid.
Section 3.05. Compensation for Letters of Credit.
(a) In connection with the establishment of each Letter of
Credit which is not also a Special Letter of Credit, the Borrower agrees to pay
to the Agent, for the sole account of the Issuing Bank, such fees and other
charges as are charged by the Issuing Bank for Letters of Credit issued by it,
including, without limitation, its standard fees for issuing, administering,
amending, renewing, paying and cancelling letters of credit, as and when
assessed.
(b) Notwithstanding subsection (a) of this Section 3.05 and
except as otherwise provided in subsection (c) of this Section 3.05, commission
fees on Letters of Credit (e.g., payment commissions) which are less than or
equal to the normal and customary minimum payment commission charged by the
Agent shall be allocated by the Agent to the Banks as follows:
(i) the portion of the minimum fee paid by the Borrower equal
to the actual payment commission shall be allocated by the Agent to the
Banks pro rata in accordance with their respective Commitment
Proportions; and
(ii) that portion of the minimum fee paid by the Borrower over
the actual payment commission shall be retained by the Agent for its
own account.
Commission fees on Letters of Credit (e.g., payment commissions) in excess of
the normal and customary minimum payment commission charged by the Agent shall
be allocated by the Agent to the Banks pro rata in accordance with their
respective Commitment Proportions.
(c) In connection with the establishment of each Special
Letter of Credit, the Borrower agrees to pay to the Agent a commission fee (the
"Special Letter of Credit Commission Fee") equal to one percent (1.0%) per annum
of the undrawn face amount of such Special Letter of Credit. The Special Letter
of Credit Commission Fee shall be payable in advance (i) upon the issuance of
each Special Letter of Credit for the number of days remaining in the month
during which such Special Letter of Credit was issued and (ii) thereafter,
monthly, on the first day of each month or part thereof during which such
Special Letter of Credit remains outstanding. The Letter of Credit Fee shall be
computed on the basis of a 360-day year for the actual number of days elapsed
and shall be allocated by the Agent to the Banks pro rata in accordance with
their respective Commitment Proportions.
Section 3.06. Payments Generally.
(a) Unless otherwise specified in this Agreement, all
payments under this Agreement or the Notes, other than payments of fees and
expenses with respect to Letters of Credit which shall be made directly by the
Borrower to the Issuing Bank pursuant to the procedures and requirements of
the Issuing Bank
and the terms of this Agreement, shall be made in Dollars in immediately
available funds not later than 1:00 p.m. (New York time) on the relevant dates
specified above (each such payment made after such time on such due date to be
deemed to have been made on the next succeeding Banking Day) to the Agent, at
000 Xxxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000 for the benefit of the applicable
Lending Office of each Bank. The Borrower will notify each of the Banks of any
payment to the Agent pursuant to the provisions of this section at the same time
it makes any such payment and will notify the Agent of any payment to the
Issuing Bank of any amounts payable with respect to a Letter of Credit hereunder
at the same time it makes any such payment. The Agent may (but shall not be
obligated to) debit the amount of any such payment which is not made by such
time to any ordinary deposit account of the Borrower with the Agent and the
Agent may (but shall not be obligated to) require each of the Banks to debit its
pro rata portion (subject to Section 11.16 hereof) of the amount of any such
payment which is not made by such time to any ordinary deposit account of the
Borrower with any such Bank; provided, however, that no Bank shall be required
to debit any funds which are not available to the Borrower other than on an
overdraft basis. The Borrower shall, at the time of making each payment under
this Agreement or the Notes, specify to the Agent the principal or other amount
payable by the Borrower under this Agreement or the Notes to which such payment
is to be applied; provided, however, that in the event that the Borrower fails
to so specify, or if (x) a Default has occurred and is continuing, or (y) an
Event of Default pursuant to any of Section 10.01(a), Section 10.01(b) (only if
due to fraud), any of Sections 10.01(c)(i)(A)-(B), Section 10.01(e) or Section
10.01(h) of this Agreement has occurred, or (z) an Event of Default pursuant to
any of Section 10.01(b) (only if not due to fraud), any of Sections
10.01(c)(i)(C) or (ii), Section 10.01(d), Section 10.01(f), Section 10.01(g),
Section 10.01(i) or Section 10.01(j) of this Agreement has occurred and is
continuing, the Agent shall apply such payment as it may elect in its sole
discretion (subject to Section 11.16 hereof). If the due date of any payment
under this Agreement or the Notes would otherwise fall on a day which is not a
Banking Day, such date shall be extended to the next succeeding Banking Day and
interest shall be payable for any principal so extended for the period of such
extension. Each payment received by the Agent hereunder or under any Note for
the account of a Bank or the Issuing Bank shall be paid promptly to such Bank or
to the Issuing Bank, as the case may be, in immediately available funds, for the
account of such Bank's Lending Office or for the account of the office specified
by the Issuing Bank to the Agent, as the case may be.
(b) All payments made by the Borrower under this Agreement,
the Notes or the other Facility Documents shall be made free and clear of, and
without deduction or withholding for
or on account of, any present or future income, stamp or other taxes, levies,
imposts, duties, charges, fees, deductions or withholdings, now or hereafter
imposed, levied, collected, withheld or assessed by any governmental or taxing
authority of any jurisdiction located outside of the United States, excluding,
in the case of the Agent, the Issuing Bank and each Bank, income taxes and
franchise taxes (imposed in lieu of income taxes) imposed on the Agent, the
Issuing Bank or such Bank, as the case may be, as a result of a connection
between the jurisdiction of the government or the taxing authority imposing
such tax and the Agent, the Issuing Bank or such Bank (excluding a connection
arising solely from the Agent, the Issuing Bank or such Bank having executed,
delivered, or performed its obligations or received a payment under, or
enforced, this Agreement, the Notes or the other Facility Documents) or any
political subdivision or taxing authority thereof or therein (all such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions and
withholdings being hereinafter called "Taxes"). If any Taxes are withheld from
any amounts payable to the Agent, the Issuing Bank or any Bank hereunder or
under the Facility Documents, the amounts so payable to the Agent, the Issuing
Bank or such Bank shall be increased to the extent necessary to yield to the
Agent, the Issuing Bank or such Bank (after payment of all Taxes) interest or
any such other amounts payable hereunder at the rates or in the amounts
specified in this Agreement, the Notes and the other Facility Documents.
Whenever any Taxes are payable by the Borrower, as promptly as possible
thereafter, the Borrower shall send to the Agent, the Issuing Bank for its own
account or for the account of the Issuing Bank or such Bank, as the case may be,
a certified copy of an original official receipt received by such entity showing
payment thereof. If the Borrower fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to the Agent the required
receipts or other required documentary evidence, the Borrower shall indemnify
the Agent, the Issuing Bank and the Banks for any incremental taxes, interest or
penalties that may become payable by the Agent, the Issuing Bank or any Bank as
a result of any such failure.
Section 3.07. Conversion and Continuation of Pro Rata Loans.
The Borrower shall have the right at any time upon prior irrevocable notice to
the Agent (i) not later than 10:00 a.m. (New York time) on the day of the
conversion, to convert all or any part of any Borrowing consisting of LIBOR
Loans or BA Rate Loans into a Borrowing consisting of Base Rate Loans and (ii)
not later than 10:00 a.m. (New York time) two Banking Days prior to conversion
or continuation, to convert any Borrowing consisting of Base Rate Loans into a
Borrowing consisting of LIBOR Loans or BA Rate Loans, to convert any Borrowing
consisting of BA Rate Loans or LIBOR Loans into a Borrowing consisting of LIBOR
Loans or BA Rate Loans, respectively, or to continue any Borrowing consisting of
LIBOR Loans or BA Rate Loans for an additional Interest Period, subject in each
case to the following:
(a) if less than all the outstanding principal amount of any
Borrowing shall be converted into or continued (i) as BA Rate Loans, the
aggregate principal amount of the Borrowing so converted or continued as BA Rate
Loans shall be an integral multiple of $100,000 and not less than $1,500,000,
(ii) as LIBOR Loans, the aggregate principal amount of the Borrowing so
converted or continued as LIBOR Loans shall be an integral multiple of $100,000
and not less than $2,500,000 or (iii) as Base Rate Loans, the aggregate
principal amount of the Borrowing so converted or continued as Base Rate Loans
shall be not less than $250,000, and, if greater than $250,000, shall be an
integral multiple of $100,000;
(b) accrued interest on a Borrowing (or portion thereof)
being converted shall be paid by the Borrower at the time of conversion;
(c) if any Borrowing consisting of LIBOR Loans or BA Rate
Loans is converted at a time other than the end of the Interest Period
applicable thereto, the Borrower shall pay, upon demand, any amounts due to the
Banks pursuant to Article 4;
(d) (i) any portion of a Borrowing maturing or required to be
repaid in less than one month may not be converted into or continued as a
Borrowing consisting of LIBOR Loans and (ii) any portion of a Borrowing maturing
or required to be repaid in less than 30 days may not be converted into or
continued as a Borrowing consisting of BA Rate Loans;
(e) any portion of a Borrowing consisting of LIBOR Loans or BA
Rate Loans which cannot be continued as such by reason of clause (d) above shall
be automatically converted at the end of the Interest Period in effect for such
Borrowing into a Borrowing consisting of Base Rate Loans;
(f) no Interest Period may be selected for any Borrowing
consisting of LIBOR Loans or BA Rate Loans that would end later than the Loan
Maturity Date except with the prior written consent of all Banks;
(g) all conversions and continuations shall be subject
to the provisions of Section 4.04 hereof; and
(h) no conversion of any Borrowing consisting of Base Rate
Loans into a Borrowing consisting of LIBOR Loans or BA Rate Loans and no
continuation of any Borrowing consisting of LIBOR Loans or BA Rate Loans shall
be effective if a Default or Event of Default has occurred and is continuing.
Each notice pursuant to this Section 3.07 shall be irrevocable
and shall refer to this Agreement and specify (i) the
identity and amount of the Borrowing to be converted or continued, (ii) whether
such Borrowing is to be converted to or continued as a Borrowing consisting of
LIBOR Loans, BA Rate Loans or Base Rate Loans, (iii) if such notice requests a
conversion, the date of such conversion (which shall be a Banking Day) and (iv)
if such Borrowing is to be converted to or continued as a Borrowing consisting
of LIBOR Loans or BA Rate Loans, the Interest Period with respect thereto. If no
Interest Period is specified in any such notice with respect to any conversion
to or continuation as a Borrowing consisting of LIBOR Loans or BA Rate Loans,
the Borrower shall be deemed to have selected an Interest Period of one month's
duration, in the case of LIBOR Loans, or 30 days' duration, in the case of BA
Rate Loans. If no notice shall have been given in accordance with this Section
3.07 to convert or continue any Borrowing, such Borrowing shall, at the end of
the Interest Period applicable thereto (unless repaid pursuant to the terms
hereof), automatically be continued as a Borrowing consisting of Base Rate
Loans.
ARTICLE 4. YIELD PROTECTION, ETC.
Section 4.01. Additional Costs.
(a) The Borrower shall pay directly to the Issuing Bank and
each Bank from time to time, within two days of the demand of the Issuing Bank
or such Bank, as the case may be, such amounts as the Issuing Bank or such Bank
may reasonably determine to be necessary to compensate it for any costs which
the Issuing Bank or such Bank reasonably determines are attributable to its
issuing or making or maintaining any BA Rate Loans, Fixed Rate Loans, LIBOR
Loans or Letters of Credit under this Agreement or its Note or its obligation
under any such Loans or Letters of Credit hereunder, or any reduction in any
amount receivable by the Issuing Bank or such Bank hereunder in respect of any
such Loans or Letters of Credit or such obligation (such increases in costs and
reductions in amounts receivable being herein called "Additional Costs"),
resulting from any Regulatory Change which: (i) changes the basis of taxation of
any amounts payable to the Issuing Bank or such Bank under this Agreement or its
Note in respect of any of such Loans or Letters of Credit or obligations (other
than taxes imposed on the overall net income of the Issuing Bank or such Bank or
of its Lending Office for any of such Loans or Letters of Credit by the
jurisdiction in which the Issuing Bank or such Bank has its principal office or
such Lending Office); or (ii) imposes or modifies any reserve, special deposit,
deposit insurance or assessment, minimum capital, capital ratio or similar
requirements relating to any extensions of credit or other assets of, or any
deposits with or other liabilities of, the Issuing Bank or such Bank (including
any of such Loans or any deposits referred to in the definition of "LIBOR" in
Section 1.01); or (iii) imposes any other condition affecting this Agreement,
any Note (or any of such extensions of credit or liabilities) or any Letter of
Credit. The Issuing Bank and each Bank will notify the Agent of any event
occurring after the date of this Agreement which will entitle the Issuing Bank
or such Bank to compensation pursuant to this Section 4.01(a) as promptly as
practicable after it obtains knowledge thereof and determines to request such
compensation and the Agent on behalf of the Issuing Bank or such Bank will
promptly notify the Borrower of such event. If the Issuing Bank or any Bank
requests compensation from the Borrower under this Section 4.01(a), or under
Section 4.01(c), the Borrower may, by notice to the Agent (with a copy to the
Issuing Bank or such Bank), suspend the obligation of the Issuing Bank to issue
Letters of Credit or the obligation of such Bank to make Loans (but not to
purchase participation interests in reimbursement obligations under Letters of
Credit) or to otherwise extend credit of the type with respect to which such
compensation is requested (in which case the provisions of Section 4.04 shall be
applicable) provided that the provisions of this sentence shall not relieve the
Borrower of its obligation to make payments pursuant to this Section 4.01;
provided further that if at any time subsequent to such suspension, the causes
therefor cease to exist, the Issuing Bank or such Bank shall so notify the
Borrower and the obligation
of the Issuing Bank to issue Letters of Credit, or such Bank's obligation to
make Loans of the applicable type, as the case may be, shall, subject to the
provisions of this Agreement, be reinstated.
(b) Without limiting the effect of the foregoing provisions of
this Section 4.01, in the event that, by reason of any Regulatory Change, any
Bank either (i) incurs Additional Costs based on or measured by the excess above
a specified level of the amount of a category of deposits or other liabilities
of such Bank which includes deposits by reference to which the interest rate on
LIBOR Loans is determined as provided in this Agreement or a category of
extensions of credit or other assets of such Bank which includes LIBOR Loans or
(ii) becomes subject to restrictions on the amount of such a category of
liabilities or assets which it may hold, then, if such Bank so elects by notice
to the Agent (with a copy to the Borrower), the obligation of such Bank to make
LIBOR Loans hereunder shall be suspended until the date such Regulatory Change
ceases to be in effect (in which case the provisions of Section 4.04 shall be
applicable).
(c) Without limiting the effect of the foregoing provisions of
this Section 4.01 (but without duplication), the Borrower shall pay directly to
the Issuing Bank and to each Bank from time to time on request such amounts as
the Issuing Bank or such Bank may reasonably determine to be necessary to
compensate the Issuing Bank or such Bank for any costs which it reasonably
determines are attributable to the maintenance by it or any of its affiliates
pursuant to any law or regulation of any jurisdiction or any interpretation,
directive or request (whether or not having the force of law and whether in
effect on the date of this Agreement or thereafter) of any court or governmental
or monetary authority of capital in respect of the Letters of Credit (or any
reimbursement obligations with respect thereto) or any Loans or other
obligations hereunder (such compensation to include, without limitation, an
amount equal to any reduction in return on assets or equity of the Issuing Bank
or such Bank to a level below that which it could have achieved but for such
law, regulation, interpretation, directive or request). The Issuing Bank and
each Bank will notify the Agent if it is entitled to compensation pursuant to
this Section 4.01(c) as promptly as practicable after it determines to request
such compensation, and the Agent on behalf of the Issuing Bank or such Bank will
promptly notify the Borrower.
(d) Determinations and allocations by the Issuing Bank or a
Bank for purposes of this Section 4.01 of the effect of any Regulatory Change
pursuant to subsections (a) or (b), or of the effect of capital maintained
pursuant to subsection (c), on its costs of making or maintaining Loans or
Letters of Credit (or any reimbursement obligations with respect thereto) or its
obligation to make Loans or Letters of Credit (or any reimbursement obligations
with respect thereto), or on amounts receivable by,
or the rate of return to, it in respect of Loans or Letters of Credit (or any
reimbursement obligations with respect thereto), and of the additional amounts
required to compensate the Issuing Bank or such Bank under this Section 4.01,
shall be conclusive absent manifest error.
Section 4.02. Limitation on Types of Loans. Anything
herein to the contrary notwithstanding, if:
(a) the Agent determines (which determination shall be
conclusive) that quotations of interest rates for the relevant deposits referred
to in the definitions of "BA Rate" or "LIBOR" in Section 1.01 are not being
provided in the relevant amounts or for the relevant maturities for purposes of
determining the rate of interest for any BA Rate Loans or LIBOR Loans, as the
case may be, as provided in this Agreement; or
(b) any Bank determines (which determination shall be
conclusive absent manifest error) and notifies the Agent that the relevant rates
of interest referred to in the definitions of "BA Rate" or "LIBOR" in Section
1.01 upon the basis of which the rate of interest for any type of BA Rate Loans
or LIBOR Loans, as the case may be, is to be determined do not adequately cover
the cost to such Bank of making or maintaining such Loans; then the Agent shall
give the Borrower and each other Bank prompt notice thereof, and so long as such
condition remains in effect, such Bank shall be under no obligation to make BA
Rate Loans or LIBOR Loans, as the case may be.
Section 4.03. Illegality. Notwithstanding any other provision
in this Agreement, in the event that it becomes unlawful for the Issuing Bank to
issue any Letters of Credit or for any Bank or its Lending Office to honor its
obligation to make or maintain BA Rate Loans or LIBOR Loans hereunder, then the
Issuing Bank or such Bank shall promptly notify the Agent thereof (with a copy
to the Borrower) and the Issuing Bank's obligation to issue Letters of Credit,
or such Bank's obligation to make or maintain BA Rate Loans or LIBOR Loans
hereunder shall be suspended until such time as the Issuing Bank may again issue
Letters of Credit or such Bank may again make and maintain such affected Loans
in which case the provisions of Section 4.04 shall be applicable, and any such
request for a Borrowing consisting of LIBOR Loans or BA Rate Loans, as the case
may be, shall, with respect to such Bank, be deemed a request for a Base Rate
Loan from such Bank.
Section 4.04. Certain Loans Pursuant To Sections 4.01, 4.02
and 4.03. If an event referred to in Section 4.01(b), 4.02 or 4.03 has occurred
with respect to any Bank and such Bank so requests by notice to the Agent (with
a copy to the Borrower), all BA Rate Loans, Fixed Rate Loans or LIBOR Loans, as
the case may be, of such Bank then outstanding shall be automatically
converted into Base Rate Loans on the date specified by such Bank in such
notice, and, to the extent that BA Rate Loans, Fixed Rate Loans or LIBOR Loans,
as the case may be, are so made as (or converted into) Base Rate Loans, all
payments of principal which would otherwise be applied to such Bank's BA Rate
Loans, Fixed Rate Loans or LIBOR Loans, as the case may be, shall be applied
instead to its Base Rate Loans. In the event of any conversion of any BA Rate
Loan, Fixed Rate Loan or LIBOR Loan to a Base Rate Loan pursuant to this Section
4.04 prior to the maturity date with respect to such BA Rate Loan, Fixed Rate
Loan or LIBOR Loan, the Borrower shall pay to the Agent for the account of the
relevant Bank all amounts required to be paid pursuant to Section 4.05 hereof.
Section 4.05. Certain Compensation. The Borrower shall pay to
any Bank for the account of such Bank, within two days after the demand of any
such Bank through the Agent, such amount or amounts as shall be sufficient (in
the reasonable opinion of such Bank) to compensate it for any loss, cost or
expense which such Bank determines is attributable to:
(a) any prepayment or conversion (on a date other than the
maturity date with respect to BA Rate Loans, Fixed Rate Loans or LIBOR Loans) by
the Borrower of any such Loans made by such Bank (whether by reason of the
mandatory or voluntary prepayment provisions of this Agreement or otherwise) or
any failure by the Borrower to pay principal or interest on any such Loan made
by such Bank when due or any conversion of any such Loan pursuant to Section
3.07 or Section 4.04 hereof; or
(b) any failure by the Borrower to borrow or continue any BA
Rate Loan, Fixed Rate Loan or LIBOR Loan to be made by such Bank on the date
specified therefor in the relevant notice under this Agreement; or
(c) any failure by the Borrower to prepay any BA Rate Loan,
Fixed Rate Loan or LIBOR Loan on the date specified therefor in the relevant
notice under Section 3.02.
Without limiting the foregoing, such compensation shall include an amount equal
to the excess, if any, of: (i) the amount of interest which otherwise would have
accrued on the principal amount so paid, or converted or not borrowed for the
period from and including the date of such payment or conversion or failure to
borrow to, but excluding the maturity date or the Loan Maturity Date, as
applicable, in the case of BA Rate Loans, Fixed Rate Loans or LIBOR Loans (or,
in the case of a failure to borrow, to but excluding the maturity date or the
Loan Maturity Date, as applicable, in the case of any other BA Rate Loans, Fixed
Rate Loans or LIBOR Loans which would have commenced on the date specified
therefor in the relevant notice) at the applicable rate of interest for such
Loan provided for herein; over (ii) the
amount of interest (as reasonably determined by such Bank) such Bank would have
bid in the London interbank market (if such Loan is a LIBOR Loan) or, if
relevant, such other applicable market (if such Loan is a BA Rate Loan or Fixed
Rate Loan) for Dollar deposits for amounts comparable to such principal amount
and maturities comparable to such period. A determination of any Bank as to the
amounts payable pursuant to this Section 4.05 shall be conclusive absent
manifest error provided that such determination is made on a reasonable basis
and provided further that such Bank provides the Borrower with copies of the
calculations made by such Bank in making such determination.
ARTICLE 5. CONDITIONS PRECEDENT
Section 5.01. Documentary Conditions Precedent. The
obligations of the Banks to make the Loans constituting the
initial Borrowing are subject to the conditions precedent that:
(a) the Agent shall have received on or before the date of
such Loans each of the following, in form and substance reasonably satisfactory
to the Agent and its counsel:
(i) the Notes duly executed by the Borrower;
(ii) the return, from the respective
beneficiaries thereof, of all letters of credit, if any,
issued under the Sid Tool Credit Agreement that are to be
returned to the Issuing Bank (as defined in the Sid Tool
Credit Agreement) on or before the date of the initial
Borrowing;
(iii) a certificate of the Secretary or
Assistant Secretary of the Borrower and of each Subsidiary of
the Borrower, dated the Effective Date, attesting to all
corporate action taken by such Person, including resolutions
of its respective Board of Directors authorizing, as
applicable, the execution, delivery and performance of the
Facility Documents and each other document to be delivered
pursuant to this Agreement, together with certified copies of
the certificate or articles of incorporation and the by-laws
of the Borrower and each Subsidiary of the Borrower; and, such
certificate shall state that the resolutions and corporate
documents thereby certified have not been amended, modified,
revoked or rescinded as of the date of such certificate;
(iv) a certificate of the Secretary or
Assistant Secretary of the Borrower and of each Subsidiary of
the Borrower, dated the Effective Date, certifying the names
and true signatures of the officers of such entity authorized
to sign the Facility
Documents and the other documents to be delivered by such
entity under this Agreement;
(v) a certificate of a duly authorized officer
of the Borrower and each Subsidiary of the Borrower dated the
Effective Date, stating that (i) the representations and
warranties in Article 6 are true and correct on such date as
though made on and as of such date, (ii) no Default or Event
of Default (as such terms are defined in the Sid Tool Credit
Agreement) has occurred or is continuing under the Sid Tool
Credit Agreement and (iii) no Default or Event of Default has
occurred or is continuing or would occur as a result of the
making of any Loan or the issuance of any Letter of Credit;
(vi) favorable opinions of counsel for the
Borrower and each Subsidiary of the Borrower, dated the
Effective Date, in substantially the form of Exhibit F;
(vii) evidence that the Borrower and each of
the Subsidiaries of the Borrower is duly organized,
validly existing and in good standing under the laws of
its jurisdiction of incorporation;
(viii) an audited consolidated and consolidating
balance sheet of the Borrower and its Consolidated
Subsidiaries as at August 31, 1996, and a consolidated income
statement and statement of cash flows of the Borrower and its
Consolidated Subsidiaries for the fiscal year then ended, all
prepared in accordance with GAAP together with unaudited
interim consolidated and consolidating financial statements of
the Borrower and its Consolidated Subsidiaries as of and for
the period ending February 28, 1997;
(ix) a Subsidiary Guarantee duly executed by
each Subsidiary of the Borrower;
(x) a copy of the Final Prospectus relating
to the issuance of the Class A Common Stock of the
Borrower;
(xi) such other documents, financial
statements, instruments, approvals, opinions and evidence as
the Agent may reasonably require.
(b) the Borrower shall have paid or caused to be paid all fees
required to be paid hereunder or in connection herewith and all accrued fees and
expenses of the Agent, the Issuing Bank and each of the Banks (subject to the
limitations set forth herein) in connection with the preparation, execution and
delivery of this Agreement, and the other Facility Documents and the
consummation of the transactions contemplated thereby;
(c) all amounts due and payable under the Sid Tool Credit
Agreement as of the Effective Date and the amount of accrued but unpaid facility
fees pursuant to Section 4.04 of the Sid Tool Credit Agreement shall have been
paid in full;
(d) the Borrower and each of the Subsidiaries of the Borrower
shall have obtained all consents, permits and approvals required in connection
with the execution, delivery and performance by the Borrower and such
Subsidiaries of their obligations hereunder and such consents, permits and
approvals shall continue in full force and effect;
(e) all legal matters in connection with this financing shall
be reasonably satisfactory to the Issuing Bank, the Banks and their respective
counsel;
(f) no material adverse change in the business, condition
(financial or otherwise), operations, performance or properties of the Borrower
and its Subsidiaries taken as a whole, shall have occurred since August 31,
1996;
(g) there shall exist no action, suit, investigation,
litigation or proceeding pending or threatened in any court or before any
arbitrator or governmental instrumentality that could (i) have a material
adverse effect on the business, condition (financial or otherwise), operations,
performance, properties or prospects of the Borrower and its Subsidiaries, taken
as a whole, or (ii) impair the Borrower or any such Subsidiary's ability to
perform satisfactorily under the Facility Documents to which it is a party;
(h) the Agent, the Issuing Bank and the Banks shall have
received reasonably satisfactory evidence that (i) neither the Borrower nor any
of its Subsidiaries is in default with respect to any contractual obligations to
which it is a party, the effect of which may be material and adverse to the
Borrower and the Subsidiaries of the Borrower, taken as a whole, or to the
ability of the Borrower or any such Subsidiary to perform its respective
obligations hereunder or under the other Facility Documents, (ii) no Default or
Event of Default (as such terms are defined in the Sid Tool Credit Agreement)
has occurred or is continuing under the Sid Tool Credit Agreement and (iii) no
Default or Event of Default has occurred or is continuing or would occur as a
result of the making of any Loan or the issuance of any Letter of Credit; and
(i) all conditions precedent with respect to the effectiveness
of the Second Amended and Restated Credit Agreement shall have been satisfied in
full.
Section 5.02. Additional Conditions Precedent. The obligations
of the Banks to make any Loan or of the Issuing Bank to issue any Letter of
Credit shall be subject to the further conditions precedent (which shall be in
addition to, and shall not be deemed to limit or modify, any of the other terms
and conditions hereunder) that on the date of the making of such Loan or the
issuance of such Letter of Credit:
(a) the following statements shall be true:
(i) (A) with respect to any Loan made to,
and any Letter of Credit issued for the account of, the Borrower on the
Effective Date, the representations and warranties contained in Article 6 hereof
are true and correct on and as of the date, (B) and with respect to any Loan
made and any Letter of Credit issued after the Effective Date, the
representations and warranties contained in Article 6 hereof are true and
correct in all material respects on and as of the date of such Loan or Letter of
Credit, as the case may be, as though made on and as of such date; provided that
for the purposes of this Section 5.02(a)(i)(B) only, (x) whenever any of the
representations or warranties contained in Article 6 hereof are qualified by the
phrase "material adverse effect on the operations, business, property or
financial condition of the Borrower or any Subsidiary of the Borrower or on the
ability of the Borrower or Subsidiary of the Borrower to perform its obligations
hereunder" or by any phrase having a substantially similar meaning, any such
phrase shall be deemed deleted and the phrase "material adverse effect on the
operations, business, property or financial condition of the Borrower and its
Subsidiaries, taken as a whole, or on the ability of the Borrower and its
Subsidiaries, taken as a whole, to perform their obligations hereunder" or a
phrase of substantially similar meaning shall be deemed inserted in lieu
thereof, and (y) the representation/ warranty contained in Section 6.19 hereof
shall be deemed deleted and in lieu thereof "The Borrower and its Subsidiaries,
taken as a whole, are Solvent." shall be deemed inserted.
(ii) no Default has occurred and is
continuing or would result from any such Loan or Letter of Credit, no Event of
Default pursuant to any of Section 10.01(a), Section 10.01(b) (only if due to
fraud), any of Sections 10.01(c)(i)(A)-(B), Section 10.01(e) or Section 10.01(h)
of this Agreement has occurred or would result from any such Loan or Letter of
Credit and no Event of Default pursuant to any of Section 10.01(b) (only if not
due to fraud), any of Sections 10.01(c)(i)(C) or (ii), Section 10.01(d), Section
10.01(f), Section 10.01(g), Section 10.01(i) or Section 10.01(j) of this
Agreement has occurred and is continuing or would result from such Loan or
Letter of Credit; and
(iii) no material adverse change shall have
occurred in the business, financial condition or operations of the Borrower and
its Subsidiaries, taken as a whole, or, with respect to any Loan made to, or any
Letter of Credit issued on behalf of, the Borrower on the Effective Date, in the
ability of the Borrower or any such Subsidiary to perform any of its obligations
under this Agreement or under any of the Facility Documents (the phrase "under
this Agreement or under any of the Facility Documents" is hereinafter,
"hereunder") or, with respect to any Loan made and any Letter of Credit issued
after the Effective Date, in the ability of the Borrower and its Consolidated
Subsidiaries, taken as a whole, to perform their obligations hereunder, since
the date of the most recent financial statements of the Borrower and its
Subsidiaries delivered to the Agent hereunder or in connection herewith; and
(b) the Agent shall have received such approvals, opinions,
documents or instruments as the Agent, the Issuing Bank or any Bank may
reasonably request.
Section 5.03. No Default Certificate and Deemed
Representations. Each notice of a Loan shall be accompanied by a certificate
of the president or chief financial officer of the Borrower certifying that the
statements contained in Section 5.02(a) are true and correct on the date of such
notice or submission and, unless the Borrower otherwise notifies the Agent prior
to such Borrowing or issuance of any Letter of Credit, the acceptance by the
Borrower of the proceeds of any Loan thereof and the request by such Borrower
for any Letter of Credit shall constitute a representation and warranty that
such statements are true and correct as of the date of such Loan or Letter of
Credit, as the case may be.
ARTICLE 6. REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants that:
Section 6.01. Incorporation, Good Standing and Due
Qualification; Compliance with Law. Except as set forth in Schedule 6.01, the
Borrower and each of its Subsidiaries is duly incorporated, validly existing and
in good standing under the laws of the jurisdiction of its incorporation, has
the corporate power and authority to own its assets and to transact the business
in which it is now engaged or presently proposes to be engaged, and is duly
qualified as a foreign corporation and in good standing under the laws of each
other jurisdiction in which such qualification is required except where the
failure to so qualify and/or be in good standing would not in any case or in the
aggregate, have a material adverse effect on the operations, business, property
or financial condition of the Borrower or such any Subsidiary or on the ability
of the Borrower or any such
Subsidiary to perform its obligations hereunder or under its respective
Subsidiary Guarantee, as the case may be. In addition, the Borrower and each of
its Subsidiaries is in compliance with all laws, treaties, rules or regulations,
or determination of an arbitration or a court or other governmental authority,
in each case applicable to or binding upon it or any of its material property or
to which it or any of its material property is subject, except to the extent
that the failure to so comply would not, in any case or in the aggregate, have a
material adverse effect on the operations, business, property or financial
condition of the Borrower or any such Subsidiary or on the ability of the
Borrower or any such Subsidiary to perform its obligations hereunder or under
its respective Subsidiary Guarantee, as the case may be.
Section 6.02. Power and Authority; No Conflicts. Except as set
forth in Schedule 6.02, the execution, delivery and performance by the Borrower
of each of the Facility Documents to which it is a party and by each Subsidiary
of the Borrower of its respective Subsidiary Guarantee have been duly authorized
by all necessary corporate action and do not and will not: (a) require any
consent or approval of its stockholders; (b) contravene its charter or by-laws;
(c) violate any provision of, or require any filing, registration, consent or
approval under, any law, rule, regulation (including, without limitation, the
provisions of Regulation G, T, U or X of the Federal Reserve Board as in effect
from time to time), order, writ, judgment, injunction, decree, determination or
award presently in effect having applicability to the Borrower or any such
Subsidiary; (d) result in a breach of or constitute a default or require any
consent under any indenture or loan or credit agreement or any other agreement,
lease or instrument to which the Borrower or any Subsidiary of the Borrower is a
party or by which any of its properties may be bound or affected; (e) result in
or require the creation or imposition of any Lien upon or with respect to any of
the properties now owned or hereafter acquired by the Borrower or any of its
Subsidiaries except in favor of the Agent for the benefit of the Banks and the
Issuing Bank as herein provided; or (f) cause the Borrower or any of its
Subsidiaries to be in default under any such rule, regulation, order, writ,
judgment, injunction, decree, determination or award or any such indenture,
agreement, lease or instrument, except, in the case of clauses (c), (d), (e) and
(f) above, where such violation, failure to satisfy such requirement, breach,
default, failure to obtain consent or creation or imposition of a Lien, as the
case may be, would not, in any case or in the aggregate, have a material adverse
effect upon the operations, business, property or financial condition of the
Borrower or any of its Subsidiaries or on the ability of the Borrower or any of
its Subsidiaries to perform its obligations hereunder or under its respective
Subsidiary Guarantee, as the case may be.
Section 6.03. Legally Enforceable Agreements. Each Facility
Document to which the Borrower or any Subsidiary of the Borrower is a party is,
or when delivered under this Agreement will be, a legal, valid and binding
obligation of the Borrower or such Subsidiary, as the case may be, enforceable
against the Borrower or such Subsidiary, as the case may be, in accordance with
its respective terms, except to the extent that such enforcement may be limited
by applicable bankruptcy, insolvency and other similar laws affecting creditors'
rights generally.
Section 6.04. Litigation. Except as set forth in Schedule
6.04, there are no actions, suits or proceedings pending or, to the knowledge of
the Borrower or any of its Subsidiaries, threatened, against or affecting the
Borrower or any of its Subsidiaries before any court, governmental agency or
arbitrator, which may, in any one case or in the aggregate, materially adversely
affect the financial condition, operations, properties or business of the
Borrower or on the ability of the Borrower or any such Subsidiary to perform its
obligations hereunder or under its respective Subsidiary Guarantee, as the case
may be.
Section 6.05. Financial Statements. The balance sheet
of the Borrower and its Consolidated Subsidiaries as at August 31, 1996, and the
related income statements and statements of cash flow of the Borrower and its
Consolidated Subsidiaries for the fiscal year then ended, and the accompanying
notes, together with the opinion thereon, of Xxxxxx Xxxxxxxx & Co., independent
certified public accountants, and the interim financial statements of the
Borrower and its Consolidated Subsidiaries as at and as of (as the case may be)
November 30, 1996, copies of which have been furnished to the Issuing Bank and
each of the Banks, are complete and correct in all material respects and fairly
present the financial condition of the Borrower and its Consolidated
Subsidiaries as at such date and the results of the operations of the Borrower
and its Consolidated Subsidiaries for the periods covered by such statements,
all in accordance with GAAP consistently applied (subject, in the case of
interim financial statements, to year-end adjustments and except, in the case of
such interim financial statements, for the absence of GAAP notes thereto). As of
the date hereof, there are no liabilities of the Borrower or any of its
Consolidated Subsidiaries, fixed or contingent, which are material but are not
reflected in the financial statements referred to above, or in the notes
thereto, other than liabilities arising in the ordinary course of business since
August 31, 1996, and the liabilities created by this Agreement and the
Subsidiary Guarantees. No information, exhibit or report furnished by the
Borrower or any Subsidiary of the Borrower to the Issuing Banks or the Banks in
connection with the negotiation of this Agreement contained any material
misstatement of fact or omitted to state any fact necessary to make the
statements contained therein not materially misleading. Since the date of the
most recent financial
statements delivered to the Banks hereunder, there has been no material adverse
change in the condition (financial or otherwise), business or operations of the
Borrower and its Subsidiaries, taken as a whole.
Section 6.06. Ownership and Liens. The Borrower and each of
its Subsidiaries has title to, or valid leasehold interests in, all of its
material properties and assets, real and personal, including the properties and
assets, and leasehold interests reflected in the financial statements referred
to in Section 6.05, and none of the property in which the Borrower or its
Subsidiaries, or any of them, has any right, title or interest and none of their
leasehold interests is subject to any Lien, except as disclosed in Schedule 6.10
or Permitted Liens.
Section 6.07. Taxes. Each of the Borrower, its Subsidiaries
and their respective Affiliates has filed all tax returns (federal, state and
local) required to be filed except where the failure to file would not, in any
case, or in the aggregate, have a material adverse effect upon the operations,
business, property or financial condition of the Borrower and its Subsidiaries,
taken as a whole, or on the ability of the Borrower or any of its Subsidiaries
to perform its obligations hereunder or under its respective Subsidiary
Guarantee, as the case may be and each of the Borrower, its Subsidiaries and
their respective Affiliates has paid all taxes, assessments and governmental
charges and levies shown thereon to be due, including interest and penalties,
other than taxes, assessments and governmental charges and levies being
contested in good faith by appropriate proceedings and with respect to which
adequate reserves in conformity with GAAP shall have been provided on the books
of the Borrower, its Subsidiaries or their respective Affiliates, as the case
may be.
Section 6.08. ERISA. Each of the Borrower, its Subsidiaries
and their respective Affiliates is in compliance in all material respects with
all applicable provisions of ERISA and the employee benefit provisions of the
Code (including, without limitation, any provisions of the Code, compliance with
which is necessary for any intended favorable tax treatment). No Reportable
Event has occurred with respect to any Plan; no notice of intent to terminate a
Plan has been filed nor has any Plan subject to Title IV of ERISA been
terminated; no circumstance exists which constitutes grounds under Section 4042
of ERISA entitling the PBGC to institute proceedings to terminate, or appoint a
trustee to administer, a Plan, nor has the PBGC instituted any such proceedings;
neither the Borrower, its Subsidiaries nor any ERISA Affiliate has completely or
partially withdrawn under Sections 4201 or 4204 of ERISA from a Multiemployer
Plan and the liability thereof in the event of a withdrawal from all
Multiemployer Plans would not exceed $3,000,000; each of the Borrower, its
Subsidiaries and each of
their ERISA Affiliates has met its minimum funding requirements under ERISA with
respect to all of its Plans and except as otherwise set forth on Schedule 6.08,
there are no Unfunded Vested Liabilities; and neither the Borrower, its
Subsidiaries nor any ERISA Affiliate has incurred any liability to the PBGC
under ERISA; and except as otherwise set forth on Schedule 6.08, neither the
Borrower, its Subsidiaries nor any its Affiliates have liability for welfare
plan coverage of employees after termination of employment except as may be
required by the Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended.
Section 6.09. Subsidiaries and Ownership of Stock. The
Borrower has no Subsidiaries except for those Subsidiaries set forth on Schedule
6.09 and other Subsidiaries which, after the date hereof, shall have been
established pursuant to Section 8.11 hereof and which shall have been
theretofore disclosed in writing to the Agent and the Banks.
Section 6.10. Credit Arrangements. Schedule 6.10 is a
complete and correct list of all material credit agreements, indentures,
purchase agreements (other than agreements for the purchase or sale of inventory
entered into in the ordinary course of business), guaranties, Capital Leases and
other investments, agreements and arrangements in effect on the date of this
Agreement providing for or relating to extensions of credit to the Borrower, its
Subsidiaries, or any of them (including agreements and arrangements for the
issuance of letters of credit or for acceptance financing but excluding the
Facility Documents) in respect of which the Borrower, its Subsidiaries, or any
of them, is in any manner directly or contingently obligated (collectively,
"Debt Agreements"); and the maximum principal or face amounts of the credit in
question, outstanding and which can be outstanding, are correctly stated, and
all Liens of any nature given or agreed to be given as security therefor are
correctly described or indicated in such Schedule. For the purposes of this
Section 6.10, a Debt Agreement shall be deemed material if it either has a
noncancellable term which exceeds one (1) year in length or requires payments by
the Borrower, its Subsidiaries or any of them in an aggregate amount of $100,000
or more. The aggregate amount of payments by the Borrower, its Subsidiaries or
any of them required under all Debt Agreements which are not material Debt
Agreements does not exceed $1,000,000.
Section 6.11. Operation of Business. Each of the Borrower and
its Subsidiaries possesses all licenses, permits, franchises, patents,
copyrights, trademarks and trade names, or rights thereto, to conduct its
business substantially as now conducted and as presently proposed to be
conducted except where the failure to do so would not, in any case or in the
aggregate, have a material adverse effect upon the operations, business,
property or financial condition of the Borrower and its
Subsidiaries, taken as a whole, or on the ability of the Borrower or any
Subsidiary to perform its obligations hereunder or under its respective
Subsidiary Guarantee, as the case may be.
Section 6.12. No Default on Outstanding Judgments or Orders.
Each of the Borrower and its Subsidiaries has satisfied all judgments and none
of the Borrower nor any of its Subsidiaries is in default with respect to any
judgment, writ, injunction, decree, rule or regulation of any court, arbitrator
or federal, state, municipal or other governmental authority, commission, board,
bureau, agency or instrumentality, domestic or foreign except to the extent that
such defaults would not, in any case or in the aggregate, have a material
adverse effect on the operations, business, property or financial condition of
the Borrower and its Subsidiaries, taken as a whole, or on the ability of the
Borrower or any of its Subsidiaries to perform its obligations hereunder or
under the respective Subsidiary Guarantee, as the case may be.
Section 6.13. No Defaults on Other Agreements. Neither the
Borrower nor any of its Subsidiaries is a party to any indenture, loan or credit
agreement or any lease or other agreement or instrument or subject to any
charter or corporate restriction which would in any case or in the aggregate
have a material adverse effect on the business, properties, assets, operations
or condition, financial or otherwise, of the Borrower or any of its Subsidiaries
or on the ability of the Borrower or any of its Subsidiaries to perform its
obligations hereunder or under its respective Subsidiary Guarantee, as the case
may be. Neither the Borrower nor any of its Subsidiaries is in default in any
respect in the performance, observance or fulfillment of any of the obligations,
covenants or conditions contained in any agreement or instrument material to its
business to which it is a party except where such default would not, in any case
or in the aggregate, have a material adverse effect on the business, properties,
assets, operations or condition, financial or otherwise of the Borrower or any
of its Subsidiaries or on the ability of the Borrower or any of its Subsidiaries
to perform its obligations hereunder or under its respective Subsidiary
Guarantee, as the case may be.
Section 6.14. Labor Disputes and Acts of God. Neither the
business nor the properties of the Borrower or of any of its Subsidiaries are
affected by any fire, explosion, accident, strike, lockout or other labor
dispute, drought, storm, hail, earthquake, embargo, act of God or of the public
enemy or other casualty (whether or not covered by insurance), materially and
adversely affecting such business or properties or the operations of the
Borrower and its Subsidiaries, taken as a whole, or the ability of the Borrower
or any of its Subsidiaries to perform its obligations hereunder or under its
respective Subsidiary Guarantee, as the case may be.
Section 6.15. Governmental Regulation. Neither the Borrower
nor any of its Subsidiaries is subject to regulation under the Public Utility
Holding Company Act of 1935, the Investment Company Act of 1940 or any other
statute or regulation limiting its ability to incur indebtedness for money
borrowed as contemplated hereby.
Section 6.16. Partnerships. Except as disclosed on
Schedule 6.16 hereto, neither the Borrower nor any of its Subsidiaries is a
partner in any partnership.
Section 6.17. No Forfeiture Proceedings. Neither the Borrower
nor any of its Subsidiaries is engaged in nor proposes to be engaged in the
conduct of any business or activity which is likely to result in a Forfeiture
Proceeding and no Forfeiture Proceeding against any of them is pending or, to
the best knowledge of the Borrower or any of its Subsidiaries, threatened,
except as set forth on Schedule 6.17.
Section 6.18. No Default or Event of Default. No Default or
Event of Default has occurred and is continuing.
Section 6.19. Solvency. The Borrower is Solvent. Each of
the Borrower's Subsidiaries, before and after giving effect to its respective
Subsidiary Guarantee, is Solvent.
Section 6.20. Material Adverse Change.
(a) No event or series of events (including without limitation
the Reorganization) has occurred which would result in a material adverse effect
on the operations, business, property or financial condition of the Borrower and
its Subsidiaries, taken as a whole, or on the ability of the Borrower or any of
its Subsidiaries to perform its obligations hereunder or under the other
Facility Documents to which it is a party.
Section 6.21. Name. During the five years prior to the
Effective Date, neither the Borrower nor any of its Subsidiaries has been known
under, or transacted business using, any name or trade style except for the name
set forth above such entity's signature on this Agreement and except insofar as
such entity has used trade styles all of which are described on Schedule 6.21.
The Borrower possesses valid and enforceable rights to use (without payment)
each of the foregoing names and trade styles within the respective jurisdictions
in which such names or trade styles are currently being used and the Borrower
has no reason to believe that any of such names or trade styles conflict with
any rights of others.
Section 6.22. Debt. The Borrower and its Subsidiaries
have no Debt, except (a) the Obligations, (b) the Debt described
on Schedule 6.10 and (c) other Debt permitted by Section 8.01
hereof.
Section 6.23. Nature of Business. The Borrower has no
business except its business as a holding company and any business in
connection with the transactions contemplated by this Agreement.
Section 6.24. Fiscal Year End. (a) Except as
otherwise provided in Section 6.24(b) hereof, the Borrower's
fiscal years set forth below will end on the dates set forth below opposite such
fiscal year:
Fiscal Year Ending Date
1996 August 31, 1996
1997 August 30, 1997
1998 August 29, 1998
1999 August 28, 1999
2000 September 2, 2000
2001 September 1, 2001
(b) The Borrower may, with the prior written consent of the
Agent (which consent shall not be withheld unreasonably), change its fiscal year
end dates set forth in Section 6.24(a) hereof for either or both of fiscal years
2000 and 2001, subject to the following conditions: and limitations:
(i) The Borrower shall notify the Agent that it proposes to
make such proposed change not later than the last day of fiscal year
1998, in the case of a change respecting fiscal year 2000, and not
later than the last day of fiscal year 1999, in the case of a change
respecting fiscal year 2001;
(ii) The change of fiscal year end date for either such year shall
not result in the new fiscal year end date being more than ten days
prior or subsequent to the date set forth in Section 6.24(a) hereof for
such fiscal year; and
(iii) In the event that the Borrower elects to change the fiscal
year end date for either of such fiscal years, the certificates
required to be delivered to the Agent, the Issuing Bank and each of the
Banks pursuant to Section 7.08 hereof demonstrating compliance with the
covenants contained herein for such fiscal period shall, at the
election of the Borrower or upon the request of the Agent or the
Required Banks, include calculations setting forth the adjustments
necessary to demonstrate how the Borrower is in compliance with the
financial covenants based upon the fiscal year end date set forth in
Section 6.24(a) hereof for such fiscal
year.
ARTICLE 7. AFFIRMATIVE COVENANTS
So long as any of the Notes shall remain unpaid, or any Bank
shall have any Commitment under this Agreement or any Aggregate Letter of Credit
Outstandings shall be outstanding, the Borrower shall and shall cause each of
its Subsidiaries to:
Section 7.01. Maintenance of Existence. Except as otherwise
provided in this Agreement, preserve and maintain, its corporate existence and
remain in good standing in the jurisdiction of its organization, and qualify and
remain qualified, as a foreign corporation in each jurisdiction in which such
qualification is required except where the failure to so qualify and/or be in
good standing would not in any case or in the aggregate have a material adverse
effect on the operations, business, property or financial condition of the
Borrower or such Subsidiary or on the ability of the Borrower or such Subsidiary
to perform its obligations hereunder or under the other Facility Documents to
which it is a party.
Section 7.02. Conduct of Business. Continue to engage
in the business conducted by it (or related businesses) on the date hereof.
Section 7.03. Maintenance of Properties. Maintain, keep and
preserve, all of its properties (tangible and intangible) necessary or useful in
the proper conduct of its business in good working order and condition, ordinary
wear and tear excepted, except where to do so would not in any case or in the
aggregate have a material adverse effect on the operations, business, property
or financial condition of the Borrower or such Subsidiary or on the ability of
the Borrower or such Subsidiary to perform its obligations hereunder or under
the other Facility Documents to which it is a party.
Section 7.04. Maintenance of Records. Keep adequate records
and books of account, in which complete entries, reflecting all financial
transactions of such entity, will be made.
Section 7.05. Maintenance of Insurance. Maintain insurance
with financially sound and reputable insurance companies or associations in such
amounts and covering such risks as are usually carried by companies engaged in
the same or a similar business and similarly situated and as are required by the
Facility Documents. The Borrower shall provide the Agent notice that such
policies have been paid in full and shall deliver the policy or policies of such
insurance or certificates of insurance to the Agent if the Agent so requests
and, in any event, at least once per calendar year.
Section 7.06. Compliance with Laws. Comply with all applicable
laws, rules, regulations and orders ("Laws"), except to the extent that the
failure to so comply would not have a material adverse effect on the operations,
business, property or financial condition of the Borrower or such Subsidiary or
on the ability of the Borrower or such Subsidiary to perform its obligations
hereunder or under the other Facility Documents to which it is a party; and
cause to be conducted, at the sole cost of the Borrower or its Subsidiaries, or
any of them, any real estate appraisals that may be required to be conducted
pursuant to any applicable Laws.
Section 7.07. Right of Inspection. Subject to the provisions
of Section 12.15 hereof, at any reasonable time upon reasonable notice during
normal business hours and from time to time, permit the Agent, the Issuing Bank
or any Bank or any agent or representative thereof, to examine and make copies
and abstracts from the records and books of account of, and visit the properties
of, such entity and to discuss the affairs, finances and accounts of such entity
with any of its officers and directors and such entity's independent
accountants.
Section 7.08. Reporting Requirements. Furnish
directly to the Agent, the Issuing Bank and each of the Banks:
(a) as soon as available and in any event within 105 days
after the end of each fiscal year of the Borrower, audited consolidated and
unaudited consolidating financial statements of the Borrower and its
Consolidated Subsidiaries which shall include a balance sheet of the Borrower
and its Consolidated Subsidiaries as of the end of such fiscal year, together
with a consolidated and consolidating income statement, and statement of cash
flows of the Borrower and its Consolidated Subsidiaries for such fiscal year and
such other reports as the Agent, on behalf of the Issuing Bank and the Banks,
shall reasonably require, all in reasonable detail and stating in comparative
form the respective figures for the corresponding date and period in the prior
fiscal year and all prepared in accordance with GAAP and accompanied by an
unqualified opinion thereon by Xxxxxx Xxxxxxxx & Co., or other independent
certified public accountants reasonably acceptable to the Agent and the Required
Banks together with an executive summary of the management letter prepared by
such independent certified public accountants; provided, however, that if a
Default or Event of Default has occurred and is continuing, the full text of
such management letter shall be provided to the Agent, the Issuing Bank and the
Banks;
(b) as soon as available and in any event within 60 days after
the end of each fiscal quarter of the Borrower, an unaudited consolidated and
consolidating balance sheet of the Borrower and its Consolidated Subsidiaries as
of the end of such quarter, together with a consolidated and consolidating
income statement of the Borrower and its Consolidated Subsidiaries for the
period commencing at the end of the previous fiscal year and ending with the end
of such quarter, all in reasonable detail and stating in comparative form (with
respect to the first two financial statements to be furnished hereunder only)
the respective figures for the corresponding date and period in the previous
fiscal year and all (with respect to all financial statements to be furnished
hereunder, including the first two) prepared in accordance with GAAP (subject to
year-end adjustments and except for the absence of GAAP notes thereto) and
attested to by the president or chief financial officer of the Borrower, each in
form and substance reasonably satisfactory to the Agent;
(c) simultaneously with the delivery of the financial
statements referred to in Sections 7.08(a) and (b) above, a certificate of the
president or chief financial officer of the Borrower (i) certifying that to the
best of his knowledge no Default or Event of Default has occurred and is
continuing or, if a Default or Event of Default has occurred and is continuing,
a statement as to the nature thereof and the action which is proposed to be
taken with respect thereto, and (ii) with computations demonstrating compliance
with the covenants contained in Article 9;
(d) simultaneously with the delivery of the annual financial
statements referred to in Section 7.08(a), a certificate of the independent
public accountants who audited such statements to the effect that, in making the
examination necessary for the audit of such statements, they have obtained no
knowledge of any condition or event which constitutes a Default or Event of
Default, or if such accountants shall have obtained knowledge of any such
condition or event, specifying in such certificate each such condition or event
of which they have knowledge and the nature and status thereof;
(e) as soon as available and in any event not more than 120
days after the end of each fiscal year of the Borrower, copies of the Borrower's
consolidated annual financial projections in form similar to those provided to
the Agent, the Issuing Bank and the Banks prior to the Effective Date for the
then current fiscal year, for information purposes only;
(f) promptly after the Borrower or any of its Subsidiaries
becomes aware of the commencement thereof, notice of all actions, suits, and
proceedings before any court or governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, affecting the Borrower
or any Subsidiary of the Borrower which could (i) have a material adverse effect
on the business, condition (financial or otherwise), operations, performance or
properties of the Borrower and its Subsidiaries, taken as a whole, (ii) impair
the Borrower or any such Subsidiary's ability to perform under the Facility
Documents to which it is a party, or (iii) subject the Borrower or any
Subsidiary to monetary liability in an amount of $100,000 or more;
(g) as soon as possible and in any event within five days
after any of (i) a Default has occurred and is continuing, or (ii) an Event of
Default pursuant to any of Section 10.01(a), Section 10.01(b) (only if due to
fraud), any of Sections 10.01(c)(i)(A)-(B), Section 10.01(e) or Section 10.01(h)
of this Agreement has occurred, or (iii) an Event of Default pursuant to any of
Section 10.01(b) (only if not due to fraud), any of Sections 10.01(c)(i)(C) or
(ii), Section 10.01(d), Section 10.01(f), Section 10.01(g), Section 10.01(i) or
Section 10.01(j) of this Agreement has occurred and is continuing, a written
notice setting forth the details of such Default or Event of Default and the
action which is proposed to be taken by the Borrower with respect thereto;
(h) as soon as possible and in any event within five days
after the Borrower or any of its Subsidiaries knows or has reason to know that
any of the events or conditions specified below with respect to any Plan or
Multiemployer Plan have occurred or exist, a statement signed by a senior
financial officer of the Borrower or such Subsidiary setting forth details
respecting such event or condition and the action, if any, which the Borrower,
such Subsidiary or any ERISA Affiliate proposes to take with respect thereto
(and a copy of any report or notice required to be filed with or given to PBGC
by the Borrower, any of its Subsidiaries or an ERISA Affiliate with respect to
such event or condition):
(i) any Reportable Event;
(ii) the filing under Section 4041 of ERISA
of a notice of intent to terminate any Plan or the
termination of any Plan;
(iii) the institution by PBGC of proceedings
under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan, or the
receipt by the Borrower, or any of its Subsidiaries or any
ERISA Affiliate of a notice from a Multiemployer Plan that
such action has been taken by PBGC with respect to such
Multiemployer Plan;
(iv) the complete or partial withdrawal by the
Borrower, any of its Subsidiaries or any ERISA Affiliate under
Section 4201 or 4204 of ERISA from a Multiemployer Plan, or
the receipt by the Borrower, any of its Subsidiaries or any
ERISA Affiliate of notice from a Multiemployer Plan that it is
in reorganization or insolvency pursuant to Section 4241 or
4245 of ERISA or that it intends to terminate or has
terminated under Section 4041A of ERISA; and
(v) the institution of a proceeding by a
fiduciary or any Multiemployer Plan against the Borrower, any
of its Subsidiaries or any ERISA Affiliate to enforce Section
515 of ERISA, which proceeding is not dismissed within 30
days;
(i) promptly after the furnishing thereof, copies of any
statement or report furnished to any other party pursuant to the terms of any
indenture, loan or credit or similar agreement and not otherwise required to be
furnished to the Agent, the Banks and the Issuing Bank pursuant to any other
clause of this Section 7.08;
(j) promptly after the commencement thereof or promptly after
the Borrower or any of its Subsidiaries know of the commencement or threat
thereof, notice of any Forfeiture Proceeding;
(k) promptly after the sending or filing thereof, copies of
all reports which Borrower sends to its security holders generally, and copies
of all reports and registration
statements which Borrower or any of its Subsidiaries files with the Securities
and Exchange Commission or any national securities exchange; and
(l) such other information respecting the condition or
operations, financial or otherwise of the Borrower, any of its Subsidiaries or
any Affiliates of any of the foregoing as the Agent may from time to time
reasonably request.
Section 7.09. Payment of Obligations. Pay, discharge or
otherwise satisfy at or before maturity or before they become delinquent, as the
case may be, all of its material Debt and other material obligations of whatever
nature (including any obligation for taxes or wages), except for any Debt or
other material obligation which is being contested in good faith and with
respect to which, on a consolidated basis, adequate reserves in conformity with
GAAP shall have been provided on the books of the Borrower or the applicable
Subsidiary.
Section 7.10. Subsidiary Guarantee. In the event that
aggregate loans, Dividends or other distributions from the Borrower or any of
its Subsidiaries to any Affiliate thereof (excluding Dividends made by the
Borrower to any of its shareholders in accordance with Section 8.15 hereof)
exceed $5,000,000 in principal amount at any time, the Borrower shall cause such
Affiliate to immediately, and in any event, within 10 Banking Days thereafter,
execute and deliver to the Agent a guarantee of the Debt of the Borrower
hereunder, which guarantee shall be substantially in a form approved by the
Agent and the Required Banks.
Section 7.11. Notices With Respect to Certain Debts. Promptly
notify each of the Banks of the failure of any of the Borrower, any Subsidiary
or any Acquisition Affiliate to (a) pay any Debt or Debts when due and payable,
after giving effect to any applicable grace period, in the aggregate (with
respect to the Borrower, its Subsidiaries and the Acquisition Affiliates) amount
of $250,000 or more, or (b) perform or observe any term, covenant or condition
on the part of any of the foregoing entities to be performed or observed under
any agreement or instrument relating to any such Debt or Debts.
Section 7.12. Use of Proceeds. Use the proceeds of
the Loans only for the purposes enumerated in Section 2.03
hereof, in the case of the Borrower.
Section 7.13. Solvency. The Borrower shall continue
to be Solvent and ensure that it and each of its Subsidiaries continues to be
Solvent.
Section 7.14. Subsidiary Guarantees After Effective Date. The
Borrower shall cause each Person which becomes a
Subsidiary of the Borrower after the Effective Date hereof to execute and
deliver a Subsidiary Guarantee to the Agent.
ARTICLE 8. NEGATIVE COVENANTS
So long as any of the Notes shall remain unpaid or any Bank
shall have any Commitment under this Agreement or any Aggregate Letter of Credit
Outstandings shall be outstanding, the Borrower shall not and shall not permit
its Subsidiaries to:
Section 8.01. Debt. Create, incur, assume or suffer
to exist any Debt, except:
(a) The Obligations;
(b) Debt described in Schedule 6.10, and any renewals,
extensions or refinancings thereof provided, that such renewals, extensions or
refinancings are on terms no less favorable to the Borrower or the relevant
Subsidiary of the Borrower than the original terms of such Debt; provided,
however, that neither the Borrower nor its Subsidiaries shall cause or permit
any letter of credit or other financial accommodation to be issued for its
account on or after December 1, 1997, under either of the credit facilities
described in Items 10 and 11 of Schedule 6.10;
(c) Subordinated Debt;
(d) Debt incurred in connection with operating leases entered
into by the Borrower or its Subsidiaries, or any of them, consistent with past
practice or in the ordinary course of business;
(e) Debt of the Borrower or its Subsidiaries, or any
of them, secured by Permitted Liens;
(f) Current liabilities in respect of taxes, assessments and
governmental charges and levies incurred, or claims for labor, materials,
inventory, services, supplies and rentals incurred, or for goods or services
purchased, incurred in the ordinary course of business;
(g) Capital Leases, provided that the aggregate
initial present value of such Capital Leases does not exceed
$1,000,000 in any fiscal year;
(h) Debt of the Borrower to any Subsidiary, or of any
Subsidiary to the Borrower or any other Subsidiary;
(i) Permitted Assumed Acquisition Debt, but only so
long as such Debt remains Permitted Assumed Acquisition Debt; and
(j) Additional unsecured Debt not contemplated by
clauses (a) through (i) above, so long as such Debt shall not exceed $5,000,000
in the aggregate for the Borrower and all Subsidiaries at any one time
outstanding.
Section 8.02. Liens. Create, incur, assume or suffer to
exist any Lien, upon or with respect to any of its property, now owned or
hereafter acquired, except the following Liens ("Permitted Liens"):
(a) Liens in favor of the Agent (on behalf and for the
ratable benefit of the Banks) securing the Loans hereunder;
(b) Liens for taxes or assessments or other government charges
or levies if not yet due and payable or if due and payable if they are being
contested in good faith by appropriate proceedings and for which appropriate
reserves are maintained in conformity with GAAP;
(c) Liens imposed by law, such as mechanic's, materialmen's,
landlord's, warehousemen's and carrier's Liens, and other similar Liens,
securing obligations incurred in the ordinary course of business which are not
past due for more than 30 days, or which are being contested in good faith by
appropriate proceedings and for which appropriate reserves in accordance with
GAAP have been established;
(d) Liens under workers' compensation unemployment
insurance, social security or similar legislation (other than
ERISA);
(e) Liens, deposits or pledges to secure the performance of
bids, tenders, contracts (other than contracts for the payment of money),
leases, public or statutory obligations, surety, stay, appeal, indemnity,
performance or other similar bonds, or other similar obligations arising in the
ordinary course of business;
(f) judgment and other similar Liens arising in connection
with court proceedings; provided that the execution or other enforcement of such
Liens is effectively stayed and the claims secured thereby are being actively
contested in good faith and by appropriate proceedings;
(g) easements, rights-of-way, restrictions and other similar
encumbrances which, in the aggregate, do not materially interfere with the
occupation, use and enjoyment by the Borrower or any of its Subsidiaries of the
property or assets encumbered thereby in the normal course of its business or
materially impair the value of the property subject thereto;
(h) purchase money Liens on any personal property heretofore
or hereafter acquired or the assumption of any Lien on
property existing at the time of such acquisition, or a Lien incurred in
connection with any conditional sale or other title retention agreement or a
Capital Lease; provided, that such Liens attach only to the property as acquired
and do not extend to any additional property of the Borrower or of any of its
Subsidiaries;
(i) Liens securing Permitted Assumed Acquisition Debt to the
extent described in the definition of Permitted Assumed Acquisition Debt; and
(j) Liens existing on the date hereof and described on
Schedule 6.10 hereto.
Section 8.03. Investments. Make any loan or advance to any
person or purchase or otherwise acquire, any capital stock, assets, obligations
or other securities of, make any capital contribution to, or otherwise invest
in, or acquire any interest in any Person (each of the foregoing, an
"Investment"). Notwithstanding the foregoing, the Borrower and its Subsidiaries
shall be entitled to make loans and advances to their vendors in an amount up to
$500,000 in the aggregate at any one time outstanding, loans and other
distributions to Affiliates in accordance with Section 8.13 hereof, Investments
in Acquisition Affiliates in accordance with Section 12.06 hereof and
Investments in Subsidiaries existing on the date hereof; and the Borrower and
each of its Subsidiaries shall be entitled to make the following Investments:
(i) obligations issued or guaranteed by states or municipalities within the
United States of America; (ii) obligations issued or guaranteed by the United
States of America or any agency or subdivision thereof; (iii) certificates of
deposit, time deposits, Eurodollar certificates of deposit, bankers acceptances
and other "money market instruments" issued by any bank, trust company or
financial institution organized under the laws of the United States of America
or any state thereof (or, in the case of Eurodollar certificates of deposit, a
branch of any such bank, trust company or financial institution) having capital
and surplus in an aggregate amount not less than $100,000,000; (iv) commercial
paper rated at least Prime-1 by Xxxxx'x Investors Service, Inc. or A-1 by
Standard & Poor's Ratings Group; (v) repurchase agreements entered into with any
bank, trust company or financial institution organized under the laws of the
United States of America or any state thereof having capital and surplus in an
aggregate amount not less than $100,000,000 and relating to any of the
obligations referred to in clauses (i), (ii) and (iii) above; in each case
maturing or being due or payable in full not more than one year after the
Borrower's or such Subsidiary's acquisition thereof; and (vi) other prudent
investments in readily-marketable publicly-traded securities, provided that the
amount of cash and other property invested in such other investments does not
exceed $5,000,000 in the aggregate and the making of such other investments has
been
approved by the outside directors on the Borrower's Board of directors.
Section 8.04. Sale of Assets. Sell, lease, assign, transfer or
otherwise dispose of, any of its now owned or hereafter acquired assets, except:
(a) for assets disposed of in the ordinary course of business; (b) the sale or
other disposition of assets no longer used or useful in the conduct of its
business; (c) sales or dispositions of assets in arm's length transactions,
provided that the aggregate net proceeds of any such sale, when added to all
other sales made by the Borrower and its Subsidiaries in any fiscal year, shall
not exceed $500,000 in such fiscal year.
Section 8.05. Transactions with Affiliates. Enter into any
transaction, including, without limitation, the purchase, sale or exchange of
property or the rendering of any service, with any Affiliate, except (a) (unless
elsewhere restricted hereunder) in the ordinary course of and pursuant to the
reasonable requirements of the Borrower's or its relevant Subsidiary's business
and (except with respect to intercompany transfer pricing transactions between
the Borrower and a Subsidiary or between two Subsidiaries) upon fair and
reasonable terms no less favorable to the Borrower or its relevant Subsidiary,
as the case may be, than would be obtained in a comparable arm's length
transaction with a Person not an Affiliate, (b) transactions described in the
Final Prospectus, and (c) Debt transactions permitted pursuant to Section
8.01(e). Additionally, and subject to the other provisions of this Agreement
(including, but not limited to, Section 8.03 hereof), the Borrower and its
Subsidiaries may continue to lease its existing facilities from the relevant
Real Estate Borrowers; the Borrower may make loans, Dividends and other
distributions in accordance with Sections 8.13 and 8.15 hereof; and the Borrower
and its Subsidiaries may engage in transactions with the Acquisition Affiliates
as provided in Section 12.06 hereof.
Section 8.06. Mergers, Etc. (a) Merge or consolidate with, or
sell, assign, lease or otherwise dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to, any Person, except for mergers, consolidations,
sales, assignments, leases or other dispositions described in the Final
Prospectus or (b) acquire all or substantially all of the assets or the business
of any Person (or enter into any agreement to do any of the foregoing), except
for Permitted Acquisitions.
Section 8.07. Acquisitions. Acquire or commit or agree to
acquire any material portion of the stock, securities or assets of any other
Person, except in the context of a Permitted Acquisition or except as
contemplated in the Final Prospectus.
Section 8.08. No Activities Leading to Forfeiture.
Engage in the conduct of any business or activity which would be
likely to result in a Forfeiture Proceeding.
Section 8.09. Corporate Documents; Fiscal Year. Amend, modify
or supplement its certificate or articles of incorporation or by-laws in any way
which would materially adversely affect the ability of the Borrower or such
Subsidiary to perform its obligations hereunder or under its respective
Subsidiary Guarantee, as the case may be, or change its fiscal year.
Section 8.10. Redemptions, Etc. Notwithstanding Section 8.15
hereof, (a) purchase or redeem any of its stock or other securities, or retire
any of its stock, or take any action which would have an effect equivalent to
any of the foregoing or (b) pay any cash Dividends, make any capital
distribution in cash or other property or take any action which would have an
effect equivalent to any of the foregoing, if a Default or Event of Default has
occurred and is continuing or would result therefrom.
Section 8.11. Creation of Subsidiaries, Etc. Except as
permitted by Section 12.06 hereof, create any direct or indirect subsidiary or
divest itself of any material assets by transferring them to any existing or
future subsidiary or by entering into a partnership, joint venture or similar
arrangement, or make any material change to its capital structure or enter into
any management contract permitting any third party to have management rights
with respect to its business.
Section 8.12. Real Estate Loans to Affiliates. Make any loan
or otherwise extend credit to any Affiliate to provide funds to permit such
Affiliate to purchase real property.
Section 8.13. Loans to Affiliates; Distributions. Except as
permitted by Section 8.15 hereof in the case of the Borrower, permit loans or
Dividends or other distributions from the Borrower or any of its Subsidiaries to
any Affiliate thereof to exceed $500,000 at any time with respect to such
Affiliate, unless such Affiliate shall have executed a guarantee of the
obligations of the Borrower in accordance with Section 7.10 hereof.
Section 8.14. Broker's Fees. Pay any broker or finder
any compensation for services rendered with respect to the
transactions contemplated by this Agreement or any other Facility
Document.
Section 8.15. Dividends. Subject to Section 8.10
hereof, the Borrower shall not (a) declare or pay in any fiscal
year Dividends in excess of the sum of (i) fifty percent (50%) of
the accrued net income reflected in the immediately preceding
fiscal year's financial statements plus (ii) $10,000,000, or (b) pay in any
fiscal year Dividends in excess of the sum of (i) fifty percent (50%) of the
accrued net income reflected in the immediately preceding fiscal year's
financial statements plus (ii) all Dividends declared in accordance with clause
(a) above in respect of any prior fiscal year to the extent not previously paid
plus (iii) $10,000,000.
Section 8.16. Nature of Business. In the case of the Borrower,
enter into any business other than the business contemplated by Section 6.23
hereof, and in the case of each Subsidiary, enter into any business except such
business except such business which is comparable to the business in which Sid
Tool is engaged as of the Effective Date.
ARTICLE 9. FINANCIAL COVENANTS
So long as any of the Notes shall remain unpaid, or any Bank
shall have any Commitment or any Aggregate Letter of Credit Outstandings shall
be outstanding under this Agreement:
Section 9.01. Minimum Effective Net Worth. The Borrower and
its Consolidated Subsidiaries shall maintain at all times during each of the
periods set forth below, an Effective Net Worth of not less than the amount set
forth below opposite such period:
========================================================================================================================
Period Amount
------------------------------------------------------------------------------------------------------------------------
From and including the Effective $115,000,000
Date through and including the day
immediately preceding the last day
of fiscal year 1996
------------------------------------------------------------------------------------------------------------------------
From and including the last day of $130,000,000
fiscal year 1996 through and
including the day immediately
preceding the last day of fiscal
year 1997
------------------------------------------------------------------------------------------------------------------------
From and including the last day of $145,000,000
fiscal year 1997 through and
including the day immediately
preceding the last day of fiscal
year 1998
------------------------------------------------------------------------------------------------------------------------
From and including the last day of $160,000,000
fiscal year 1998 through and
including the Loan Maturity Date
========================================================================================================================
Section 9.02. Current Ratio. The Borrower and its
Consolidated Subsidiaries shall maintain at all times a ratio of Total Current
Assets to Total Current Liabilities (which shall include any and all Aggregate
Outstandings for purposes of this Section 9.02) of not less than 1.25:1.00.
Section 9.03. Maximum Leverage. The Borrower and its
Consolidated Subsidiaries shall maintain at all times a ratio of
Total Liabilities to Effective Net Worth of not more than
1.25:1.0.
Section 9.04. Maximum Capital Expenditures. The Borrower and
its Consolidated Subsidiaries shall not be permitted to make Capital
Expenditures averaging, on a cumulative basis through September 2, 2000 in
excess of $25,000,000 with respect to any fiscal year commencing September 1,
1996; provided, however, that if it is determined that Capital Expenditures in
an amount in excess of $25,000,000 have been made by the Borrower and its
Consolidated Subsidiaries for the fiscal year ending August 30, 1997, the amount
of such excess shall be subtracted from the amount of Capital Expenditures
otherwise permitted to be made by this Section 9.04.
Section 9.05. Minimum Interest Coverage Ratio. The Borrower
and its Consolidated Subsidiaries shall maintain at all times a ratio of EBIT to
Interest Expense of at least 2.50 to 1.0, as determined at the end of each
fiscal quarter for the then preceding four fiscal quarters.
Section 9.06. Positive Earnings. The Borrower and its
Consolidated Subsidiaries shall maintain at all times positive Net Income (after
taxes, dividends and other distributions and excluding the effect of
extraordinary items and any changes in accounting policies), as determined at
the end of each fiscal quarter for the then preceding four fiscal quarters.
Compliance with all of the financial covenants contained in
this Article 9 shall be determined by reference to the financial statements of
the Borrower delivered to the Banks in accordance with Section 7.08 hereof. All
financial covenants shall be applicable at all times and shall be tested on a
quarterly basis and on a combined (not combining) basis.
ARTICLE 10. EVENTS OF DEFAULT
Section 10.01. Events of Default. Any of the following
events shall be an "Event of Default":
(a) The Borrower or any Subsidiary or any Acquisition
Affiliate shall: (i) fail to pay the principal of or interest on any Loan as and
when due and payable or (ii) fail to pay any fee or other amount (including,
without limitation, any unreimbursed
amount with respect to any Letter of Credit) due hereunder as and when due and
payable; if any such failure referred to in this clause (ii) shall continue for
two consecutive Banking Days after delivery to the Borrower of notice (pursuant
to Section 12.07 hereof) of such failure;
(b) Any representation or warranty made or deemed made by the
Borrower, any Subsidiary or any Acquisition Affiliate in this Agreement or in
any other Facility Document or which is contained in any certificate, document,
opinion, financial or other statement furnished at any time under or in
connection with any Facility Document shall prove to have been incorrect in any
material respect on or as of the date made or deemed made;
(c) The Borrower, any Subsidiary or any Acquisition Affiliate
shall: (i) fail to perform or observe any term, covenant or agreement contained
in any of (A) Section 2.03, (B) Article 9 hereof or (C) any Facility Document
(with respect to any such Facility Documents, other than the obligations
specifically referred to in Section 10.01(a) hereof, and in any event, after the
expiration of any applicable grace period provided in any such Facility
Document); or (ii) fail to perform or observe any term, covenant or agreement on
its part to be performed or observed (other than the obligations specifically
referred to in any of Section 10.01(a), Section 10.01(b), Section 10.01(c)(i) or
any of Sections 10.01(d)-(j) hereof) in this Agreement and (in the case of this
Section 10.01(c)(ii) only) such failure shall continue for 30 consecutive days;
(d) The Borrower or any Subsidiary or any Acquisition
Affiliate shall: (i) fail to pay any Debt or Debts for borrowed money (other
than the payment obligations described in (a) above or under the Second Amended
and Restated Credit Agreement) in the aggregate amount of $500,000 or more, as
the case may be, or any interest or premium thereon, when due (whether by
scheduled maturity, required prepayment, acceleration, demand or otherwise)
after giving effect to any applicable grace period; or (ii) fail to perform or
observe any term, covenant or condition on its part to be performed or observed,
including the obligation to make payment, under any agreement or instrument
relating to any Debt or Debts (other than the payment obligations described in
(a) above and other than certain failures which exist at the date hereof and
described in Schedule 6.02) in the aggregate amount of $500,000 or more, when
required to be performed or observed, and the effect of such failure to perform
or observe is to accelerate the maturity of such Debt, after giving effect to
any applicable grace period;
(e) The Borrower, any Subsidiary or any Acquisition Affiliate
(i) shall generally not, or be unable to, or shall admit in writing its or their
inability to, pay its or their debts as such debts become due; or (ii) shall
make an assignment
for the benefit of creditors, petition or apply to any tribunal for the
appointment of a custodian, receiver or trustee for it or a substantial part of
its assets; or (iii) shall commence any proceeding under any bankruptcy,
reorganization, arrangement, readjustment of debt, dissolution or liquidation
law or statute of any jurisdiction, whether now or hereafter in effect; or (iv)
shall have had any such petition or application filed or any such proceeding
shall have been commenced, against it or them, in which an adjudication or
appointment is made or order for relief is entered, or which petition,
application or proceeding remains undismissed for a period of 45 days or more;
or shall be the subject of any proceeding under which its assets may be subject
to seizure, forfeiture or divestiture (other than a proceeding in respect of a
Permitted Lien under Section 8.02(b)); or (v) by any act or omission shall
indicate its consent to, approval of or acquiescence in any such petition,
application or proceeding or order for relief or the appointment of a custodian,
receiver or trustee for all or any substantial part of its property; (vi) shall
suffer any such custodianship, receivership or trusteeship to continue
discharged for a period of 30 days or more; or (vii) the Borrower, its
Subsidiaries and the Acquisition Affiliates, taken as a whole, shall cease to be
Solvent;
(f) One or more judgments, decrees or orders for the payment
of money in excess of $500,000 in the aggregate shall be rendered against the
Borrower and/or any Subsidiary and/or any Acquisition Affiliate and such
judgments, decrees or orders shall continue unsatisfied and in effect for a
period of 45 consecutive days without being vacated, discharged, satisfied or
stayed or bonded pending appeal;
(g) An event or condition specified in Section 7.08(h) hereof
shall occur or exist with respect to any Plan or Multiemployer Plan and, as a
result of such event or condition, together with all other such events or
conditions and all other events or conditions relating to a Plan or
Multiemployer Plan, the Borrower or any Subsidiary or any Acquisition Affiliate
or any ERISA Affiliate shall incur or in the opinion of the Required Banks shall
be reasonably likely to incur a liability to a Plan, a Multiemployer Plan, the
Internal Revenue Service or PBGC (or any combination of the foregoing) in excess
of $2,000,000 in the aggregate;
(h) Any Forfeiture Proceeding shall have been commenced
against the Borrower, any Subsidiary or any Acquisition Affiliate unless such
Borrower, Subsidiary or Acquisition Affiliate, as the case may be, timely
contests any such proceeding in good faith by appropriate proceedings and such
proceeding is dismissed within 30 days after the commencement thereof; provided,
however, that until such proceeding is dismissed as aforesaid, and
notwithstanding anything contained in this Agreement to the contrary, the Banks
will be under no
obligation to make Loans available to, and the Issuing Bank will be under no
obligation to issue Letters of Credit for the account of, the Borrower after the
commencement of any such proceeding unless and until such time as any such
proceeding shall have been dismissed pursuant to the foregoing provisions;
(i) (i) Any of the Subsidiaries shall fail to perform or
observe any term, covenant or agreement contained in the Subsidiary Guarantee;
or (ii) any Subsidiary Guarantee or any provision of any Subsidiary Guarantee
shall cease to be in full force and effect for any reason; or
(j) Sid Tool Co., Inc. shall cease to be a wholly-owned
direct Subsidiary of the Borrower for any reason.
Section 10.02. Remedies. If any Event of Default pursuant to
any of Section 10.01(a), Section 10.01(b) (only if due to fraud) or any of
Sections 10.01(c)(i)(A)-(B) hereof shall occur, or if any Event of Default
pursuant to any of Section 10.01(b) (only if not due to fraud), any of Sections
10.01(c)(i)(C) or (ii), Section 10.01(d), Section 10.01(f), Section 10.01(g),
Section 10.01(i) or Section 10.01(j) hereof shall occur and be continuing the
Agent, after it has received notice or has become aware of any such Event of
Default, shall notify the Banks of the same, and if instructed by the Required
Banks, the Agent shall, by notice to the Borrower, (i) declare the Commitments
to be terminated, whereupon the same shall forthwith terminate, and (ii) declare
the outstanding principal of the Loans, all interest thereon and all other
amounts payable under this Agreement and the Notes (including, without
limitation, amounts payable in respect of any Letter of Credit) to be forthwith
due and payable, whereupon the Loans, all such interest and all such amounts
shall become and be forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly waived
by the Borrower; provided that, in the case of an Event of Default referred to
in Section 10.01(e) or Section 10.01(h) above, the Commitments shall be
immediately terminated, and the Loans, all interest thereon and all other
amounts payable under this Agreement and the Notes (including amounts payable in
respect of any Letter of Credit) shall be immediately due and payable without
notice, presentment, demand, protest or other formalities of any kind, all of
which are hereby expressly waived by the Borrower. With respect to all Letters
of Credit that shall not have matured or with respect to which presentment for
honor shall not have occurred, the Borrower shall deposit in a cash collateral
account opened by the Agent an amount equal to the aggregate undrawn amount of
Letters of Credit, and the unused portion thereof, if any, shall be returned to
the Borrower after the respective expiration dates of the Letters of Credit and
after all obligations of the Borrower hereunder and under the Facility Documents
are paid in full. Furthermore, if an Event of
Default pursuant to any of Section 10.01(a), Section 10.01(b) (only if due to
fraud), any of Sections 10.01(c)(i)(A)-(B), Section 10.01(e) or Section 10.01(h)
of this Agreement has occurred, or if an Event of Default pursuant to any of
Section 10.01(b) (only if not due to fraud), any of Sections 10.01(c)(i)(C) or
(ii), Section 10.01(d), Section 10.01(f), Section 10.01(g), Section 10.01(i) or
Section 10.01(j) of this Agreement has occurred and is continuing, interest and
each Letter of Credit Commission Fee and Special Letter of Credit Commission Fee
payable hereunder in connection with Loans, Letters of Credit and Special
Letters of Credit shall automatically be increased to the Default Rate.
ARTICLE 11. THE AGENT AND THE ISSUING BANK;
RELATIONS AMONG BANKS
Section 11.01. Appointment, Powers and Immunities of Agent.
Each Bank and the Issuing Bank hereby irrevocably (but subject to removal by the
Required Banks pursuant to Section 11.09) appoint and authorize the Agent to act
as its agent hereunder and under any other Facility Document with such powers as
are specifically delegated to the Agent or any similar Person by the terms of
this Agreement and any other Facility Document, together with such other powers
as are reasonably incidental thereto. Neither the Agent nor the Issuing Bank
shall have any duties or responsibilities except those expressly set forth in
this Agreement and any other Facility Document, and shall not by reason of this
Agreement be a trustee for any Bank. Neither the Agent nor the Issuing Bank
shall be responsible to the Banks for any recitals, statements, representations
or warranties made by the Borrower or any Subsidiary or any officer or official
of the Borrower, any Subsidiary or any other Person contained in this Agreement
or any other Facility Document, or in any certificate or other document or
instrument referred to or provided for in, or received by any of them under,
this Agreement or any other Facility Document, or for the value, legality,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Facility Document or any other document or instrument
referred to or provided for herein or therein, or for any failure by the
Borrower or its Subsidiaries, or any of them, to perform any of their or its
respective obligations hereunder or thereunder. The Agent and the Issuing Bank
may employ agents and attorneys-in-fact and shall not be responsible, except as
to money or securities received by it or its authorized agents, for the
negligence or misconduct of any such agents or attorneys-in-fact selected by it
with reasonable care. Neither the Agent, nor the Issuing Bank, nor any of their
respective directors, officers, employees or agents shall be liable or
responsible for any action taken or omitted to be taken by it or them hereunder
or under any other Facility Document or in connection herewith or therewith,
except for its or their own gross negligence or willful misconduct.
Section 11.02. Reliance by Agent and Issuing Bank. Each of the
Agent and the Issuing Bank shall be entitled to rely upon any certification,
notice or other communication (including any thereof by telephone, telex,
telegram, telecopier or cable) believed by it to be genuine and correct and to
have been signed or sent by or on behalf of the proper Person or Persons, and
upon advice and statements of legal counsel, independent accountants and other
experts selected by the Agent or the Issuing Bank, as the case may be. Each of
the Agent and the Issuing Bank may deem and treat each Bank as the holder of the
Loans made by it for all purposes hereof unless and until a notice of the
assignment or transfer thereof reasonably satisfactory to the Agent and the
Issuing Bank signed by such Bank shall have been furnished to the Agent and the
Issuing Bank but neither the Agent nor the Issuing Bank shall be required to
deal with any Person who has acquired a participation in any Loan from a Bank.
As to any matters not expressly provided for by this Agreement or any other
Facility Document, the Agent and the Issuing Bank shall in all cases be fully
protected in acting, or in refraining from acting, hereunder in accordance with
instructions signed by the Required Banks, and such instructions of the Required
Banks and any action taken, or failure to act, pursuant thereto shall be binding
on all of the Banks and any other holder of all or any portion of any Loan.
Section 11.03. Defaults. Neither the Agent nor the Issuing
Bank shall be deemed to have knowledge of the occurrence of a Default or Event
of Default (other than, in the case of the Agent, the non-payment of principal
of or interest on the Loans to the extent the same is required to be paid to the
Agent for the account of the Banks and other than, in the case of the Issuing
Bank, the non-payment of any reimbursement obligation under a Letter of Credit)
unless the Agent or the Issuing Bank, as the case may be, has actual knowledge
of such Default or Event of Default or has received notice from a Bank or the
Borrower specifying such Default or Event of Default and stating that such
notice is a "Notice of Default." In the event that the Agent or the Issuing
Bank, as the case may be, has actual knowledge of an Event of Default or
receives such a notice of the occurrence of a Default or Event of Default, the
Agent or the Issuing Bank shall give prompt notice thereof to the Banks (and
shall give each Bank prompt notice of each such non-payment). The Agent shall
(subject to Section 12.08) take such action with respect to such Default or
Event of Default which is continuing as shall be directed by the Required Banks;
provided that, unless and until the Agent shall have received such directions,
the Agent may take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best
interest of the Banks and the Issuing Bank; and provided further that the Agent
shall not be required to take any such action which it determines to be contrary
to law.
Section 11.04. Rights of Agent and Issuing Bank. With
respect to its Commitment and the Loans made by it, the Agent and the Issuing
Bank in its capacity as a Bank hereunder shall have the same rights and powers
hereunder as any other Bank and may exercise the same as though it were not
acting as the Agent or the Issuing Bank, and the term "Bank" or "Banks" shall,
unless the context otherwise indicates, include the Agent and the Issuing Bank
in its capacity as a Bank. The Agent, the Issuing Bank or any Bank and their
respective Affiliates may (without having to account therefor to any other Bank)
accept deposits from, lend money to (on a secured or unsecured basis), and
generally engage in any kind of banking, trust or other business
with, the Borrower or any Subsidiaries of the Borrower (and any of their
respective Affiliates). In the case of the Agent or the Issuing Bank, it may do
so as if it were not acting as the Agent or the Issuing Bank, respectively, and
the Agent and the Issuing Bank may accept fees and other consideration from the
Borrower or any Subsidiaries of the Borrower for services in connection with
this Agreement or otherwise without having to account for the same to the Banks.
Although the Agent, the Issuing Bank or a Bank or any of their respective
Affiliates may in the course of such relationships and relationships with other
Persons acquire information about the Borrower or any Subsidiaries of the
Borrower, their respective Affiliates and such other Persons, neither the Agent,
the Issuing Bank nor such Bank shall have any duty to disclose such information
to the other Banks except as required under this Agreement or the Facility
Documents.
Section 11.05. Indemnification of Agent. The Banks (including
the Agent and the Issuing Bank in its capacity as a Bank) agree to indemnify the
Agent and the Issuing Bank (to the extent not reimbursed under Section 12.03 or
under the applicable provisions of any other Facility Document, but without
limiting the obligations of the Borrower under Section 12.03 or such
provisions), ratably in accordance with the aggregate unpaid principal amount of
the Loans made by the Banks (without giving effect to any participation, in all
or any portion of such Loans, sold by them to any other Person) (or, if no Loans
are at the time outstanding, ratably in accordance with their respective
Commitments), for any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind and nature whatsoever which may be imposed on, incurred by or asserted
against the Agent or the Issuing Bank relating to or arising out of this
Agreement, any other Facility Document or any other documents contemplated by or
referred to herein or the transactions contemplated hereby or thereby
(including, without limitation, the costs and expenses which the Borrower is
obligated to pay under Section 12.03 or under the applicable provisions of any
other Facility Document but excluding, unless a Default or Event of Default has
occurred, normal administrative costs and expenses incidental to the
performance of its agency duties hereunder) or the enforcement of any of the
terms hereof or thereof or of any such other documents or instruments; provided
that no Bank shall be liable for any of the foregoing to the extent they arise
from the gross negligence or willful misconduct of the party to be indemnified.
Section 11.06. Documents. The Agent will forward to the
Issuing Bank and each Bank, promptly after the Agent's receipt thereof, a copy
of each report, notice or other document required by this Agreement or any other
Facility Document to be delivered to the Agent for such Bank, to the extent not
otherwise delivered to the Issuing Bank or such Bank pursuant to this Agreement
or any other Facility Document.
Section 11.07. Non-Reliance on Agent, Issuing Bank and Other
Banks. Each Bank agrees that it has, independently and without reliance on the
Agent, the Issuing Bank or any other Bank, and based on such documents and
information as it has deemed appropriate, made its own credit analysis of the
Borrower, its Subsidiaries and their respective Affiliates and decision to enter
into this Agreement and that it will, independently and without reliance upon
the Agent, the Issuing Bank or any other Bank, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
analysis and decisions in taking or not taking action under this Agreement or
any other Facility Document. Neither the Agent nor the Issuing Bank shall be
required to keep itself informed as to the performance or observance by the
Borrower or any of its Subsidiaries of this Agreement or any other Facility
Document or any other document referred to or provided for herein or therein or
to inspect the properties or books of the Borrower or any Affiliate. Except for
notices, reports and other documents and information expressly required to be
furnished to the Banks by the Agent or the Issuing Bank hereunder, neither the
Agent nor the Issuing Bank shall have any duty or responsibility to provide any
Bank with any credit or other information concerning the affairs, financial
condition or business of the Borrower or any of its Subsidiaries (or any of
their respective Affiliates) which may come into the possession of the Agent,
the Issuing Bank or any of their respective Affiliates. Neither the Agent nor
the Issuing Bank shall be required to file this Agreement, any other Facility
Document or any document or instrument referred to herein or therein, for record
or give notice of this Agreement, any other Facility Document or any document or
instrument referred to herein or therein, to anyone except as specifically
provided in this Agreement.
Section 11.08. Failure of Agent or the Issuing Bank to Act.
Except for action expressly required of the Agent or the Issuing Bank
hereunder, the Agent and the Issuing Bank shall in all cases be fully justified
in failing or refusing to act hereunder unless it shall have received further
assurances (which may include cash collateral) of the indemnification
obligations of the Banks under Section 11.05 in respect of any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action.
Section 11.09. Resignation or Removal of Agent. Subject to the
appointment and acceptance of a successor Agent as provided below, the Agent may
resign at any time by giving written notice thereof to the Issuing Bank, the
Banks and the Borrower, and the Agent may be removed at any time with or without
cause by Banks having at least 60% of the aggregate amount of the Commitments
(the "Special Purpose Required Banks"); provided that the Borrower, the Issuing
Bank and the other Banks
shall be promptly notified thereof. Upon any such resignation or removal, the
Special Purpose Required Banks shall have the right to appoint a successor
Agent. If no successor Agent shall have been so appointed by the Special Purpose
Required Banks and shall have accepted such appointment within 30 days after the
retiring Agent's giving of notice of resignation or the Special Purpose Required
Banks' removal of the retiring Agent, then the retiring Agent may, on behalf of
the Banks, appoint a successor Agent, which shall be a commercial bank which has
an office in New York, New York having a minimum capital and surplus of
$500,000,000. The Special Purpose Required Banks or the retiring Agent, as the
case may be, shall upon the appointment of a successor Agent promptly so notify
the Borrower, the Issuing Bank and the other Banks. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Agent, and the retiring Agent shall be discharged
from and after the date of such succession from its duties and obligations
hereunder. After any retiring Agent's resignation or removal hereunder as Agent,
the provisions of this Article 11 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
the Agent. The retiring Agent shall pay to the successor Agent its pro-rated
portion of any agency fee that had been paid for such year.
Section 11.10. Amendments Concerning Agency and Issuing Bank
Function. Neither the Agent nor the Issuing Bank shall be bound by any waiver,
amendment, supplement or modification of this Agreement or any other Facility
Document which affects its respective rights or obligations hereunder or
thereunder unless it shall have given its prior consent thereto.
Section 11.11. Liability of Agent, Issuing Bank and Banks.
Neither the Agent, the Issuing Bank nor any Bank shall have any liabilities or
responsibilities to the Borrower, any Subsidiary of the Borrower or any other
Person on account of the failure of any other Bank to perform its obligations
hereunder or to any other Bank on account of the failure of the Borrower or any
of the Borrower's Subsidiaries to perform their obligations hereunder or under
any other Facility Document.
Section 11.12. Transfer of Agency Function. Without the
consent of the Borrower, any Subsidiary of the Borrower, the Issuing Bank, or
any Bank, the Agent may at any time or from time to time transfer its functions
as Agent hereunder to any of its United States offices wherever located,
provided that the Agent shall promptly notify the Borrower and the Banks
thereof.
Section 11.13. Non-Receipt of Funds by the Agent. Unless the
Agent shall have been notified by (i) a Bank or (ii) the Borrower (the "Payor")
prior to the date on which such Bank is to make payment hereunder to the Agent
of the proceeds of a Loan or the Borrower is to make any payment hereunder to
the Agent, as the case may be (either such payment being a "Required Payment"),
which notice shall be effective upon receipt, that the Payor does not intend to
make the Required Payment to the Agent, the Agent may assume that the Required
Payment has been made and may, in reliance upon such assumption (but shall not
be required to), make the amount thereof available to the intended recipient on
such date and, if the Payor has not in fact made the Required Payment to the
Agent, the recipient of such payment (and, if such recipient is the Borrower and
the Payor Bank fails to pay the amount thereof to the Agent forthwith upon
demand, the Borrower) shall, on demand, repay to the Agent the amount made
available to it together with interest thereon for the period from the date such
amount was so made available by the Agent until the date the Agent recovers such
amount at a rate per annum equal to the average daily Federal Funds Rate for
such period.
Section 11.14. Withholding Taxes. Each Bank represents that it
is entitled to receive any payments to be made to it hereunder without the
withholding of any tax and will furnish to the Agent such forms, certifications,
statements and other documents as the Agent may request from time to time to
evidence such Bank's exemption from the withholding of any tax imposed by any
jurisdiction or to enable the Agent to comply with any applicable laws or
regulations relating thereto. Without limiting the effect of the foregoing, if
any Bank is not created or organized under the laws of the United States of
America or any state thereof, in the event that the payment of interest by the
Borrower is treated for U.S. income tax purposes as derived in whole or in part
from sources from within the U.S., such Bank will furnish to the Agent Form 4224
or Form 1001 of the Internal Revenue Service, or such other forms,
certifications, statements or documents, duly executed and completed by such
Bank as evidence of such Bank's exemption from the withholding of U.S. tax with
respect thereto. The Agent shall not be obligated to make any payments hereunder
to such Bank in respect of any Loan or such Bank's Commitment until such Bank
shall have furnished to the Agent the requested form, certification, statement
or document.
Section 11.15. Several Obligations and Rights of Banks. The
failure of any Bank to make any Loan to be made by it on the date specified
therefor or to perform any of its other obligations hereunder (including,
without limitation, its obligations to participate in any reimbursement
obligations under a Letter of Credit) shall not relieve any other Bank of its
obligation to make its Loan on such date or to perform its other obligations
hereunder (including, without limitation, its
obligation to participate in any reimbursement obligations under a Letter of
Credit), but no Bank shall be responsible for the failure of any other Bank to
make a Loan to be made by such other Bank or to perform any of such other
obligations. If any Bank shall default in its obligations hereunder or under the
Facility Documents, (i) such Bank shall not be entitled to (x) receive any
payments to which it would otherwise be entitled hereunder, or (y) give any
consent, instruction, approval or waiver hereunder (including, without
limitation, pursuant to Section 10.02 and Section 12.01 hereof) or under any
other Facility Document, and the Commitment Proportion of such Bank shall not be
given any effect with respect to any such consent, instruction, approval or
waiver and (ii) the Borrower and the non-defaulting Banks will endeavor in good
faith to arrange for another lender or lenders to replace the defaulting Bank,
which replacement lender or lenders must agree to participate in the Commitment
to the extent of the defaulting Bank's obligations hereunder on the same terms
and conditions applicable to such defaulting Bank at the time of such default
and to purchase all of such defaulting Bank's Loans hereunder; provided,
however, that none of such non-defaulting Banks will be deemed to have incurred
or assumed any liabilities or obligations pursuant to this sentence if any
replacement lender does not elect to participate as referenced above for any
reason whatsoever. The amounts payable at any time hereunder to each Bank shall
be a separate and independent debt and upon the written consent of the Required
Banks, the Banks shall be entitled to protect and enforce their rights arising
out of this Agreement, absent a waiver of any such rights in accordance with
Section 12.01 hereof, in any proceeding in which all Banks are joined for any
such purpose; provided, however, that the Agent shall be entitled to protect and
enforce the rights of the Banks arising out of this Agreement, in accordance
with this Agreement, and it shall not be necessary for any other Bank to be
joined as an additional party in any proceeding for such purpose (though nothing
shall preclude such joinder).
Section 11.16. Pro Rata/Non Pro Rata Treatment of Loans.
(a) Subject to the provisions of Article 3 and Article
4, each payment or prepayment of principal of any Borrowing consisting of Pro
Rata Loans, each payment of interest on any Borrowing consisting of Pro Rata
Loans, each payment of the Facility Fee, each reimbursement obligation under a
Letter of Credit, each reduction of the Commitments and each refinancing or
conversion of any Borrowing with a Borrowing consisting of Pro Rata Loans of any
type, shall be allocated pro rata among Banks in accordance with their
respective Commitments (or, if such Commitments shall have expired or been
terminated, in accordance with the respective principal amounts of their
outstanding Pro Rata Loans). Each payment of principal of any Borrowing
consisting of Bid Loans shall be allocated pro rata among the
Banks participating in such Borrowing in accordance with the respective
principal amounts of their outstanding Bid Loans comprising such Borrowing. Each
payment of interest on any Borrowing consisting of Bid Loans shall be allocated
pro rata among the Banks participating in such Borrowing in accordance with the
respective amounts of accrued and unpaid interest on their outstanding Bid Loans
comprising such Borrowing. For purposes of determining the available Commitments
of the Banks at any time, each outstanding Borrowing consisting of Bid Loans
shall be deemed to have utilized the Commitments of the Banks (including those
Banks which shall not have made Loans as part of such Borrowing consisting of
Bid Loans) pro rata in accordance with such respective Commitments. Each Bank
agrees that in computing such Bank's portion of any Borrowing to be made
hereunder, the Agent may, in its discretion, round each Bank's percentage of
such Borrowing to the next higher or lower whole dollar amount.
(b) Each reduction or termination of the amount of the
Commitments under Section 2.07 hereof shall be applied to the Commitments of the
Banks pro rata in accordance with their respective Commitment Proportions.
Section 11.17. Sharing of Payments Among Banks. If a Bank
shall obtain payment of any principal of or interest on any Pro Rata Loan made
or extended by it through the exercise of any right of setoff, banker's lien,
counterclaim, or by any other means, it shall promptly purchase from the other
Banks participations in (or, if and to the extent specified by such Bank, direct
interests in) the Pro Rata Loans made by the other Banks in such amounts, and
make such other adjustments from time to time as shall be equitable to the end
that all the Banks shall share the benefit of such payment (net of any expenses
which may be incurred by such Bank in obtaining or preserving such benefit) pro
rata in accordance with the unpaid principal and interest on the Pro Rata Loans
held by each of them. To such end the Banks shall make appropriate adjustments
among themselves (by the sale of participations or otherwise) if such payment is
rescinded or must otherwise be restored. The Borrower agrees that any Bank so
purchasing a participation (or direct interest) in the Pro Rata Loans made by
other Banks may exercise all rights of setoff, banker's lien, counterclaim or
similar rights with respect to such participation (or direct interest). Nothing
contained herein shall require any Bank to exercise any such right or shall
affect the right of any Bank to exercise, and retain the benefits of exercising,
any such right with respect to any other indebtedness of the Borrower. In the
event that a Bank has both Bid Loans and Pro Rata Loans outstanding, such Bank
shall deem and treat all payments obtained by it as payments of principal of or
interest on such Pro Rata Loans and the excess of such payments, if any, as
payments of principal of or interest on such Bid Loans.
ARTICLE 12. MISCELLANEOUS
Section 12.01. Amendments and Waivers. Except as otherwise
expressly provided in this Agreement, any provision of this Agreement may be
amended or modified only by an instrument in writing signed by the Borrower and
the Required Banks (and, if the rights, obligations or duties of the Agent or
the Issuing Bank are affected thereby, by the Agent or the Issuing Bank, as the
case may be), and any provision of this Agreement may be waived by the Borrower
(if such provision requires performance by the Agent, the Issuing Bank or the
Banks, or any of them) or by an instrument signed by the Required Banks (if such
provision requires performance by the Borrower), including, but not limited to,
any Event of Default; provided that no amendment, modification or waiver of any
provision of Section 8.01 or Section 8.02 shall, unless by an instrument signed
by Banks having at least 75% of the aggregate amount of the Commitments at such
time and, if the Commitments have been terminated, Banks having at least 75% of
the Loans outstanding at such time and participation interests in Aggregate
Letter of Credit Outstandings at such time, affect any provision of Section 8.01
or Section 8.02 hereof; and provided further that no amendment, modification or
waiver shall, unless by an instrument signed by all of the Banks: (a) increase
or extend the term, or extend the time or waive any requirement for the
reduction or termination of the Commitments, (b) extend the date fixed for the
payment of principal of or interest on any Loan, (c) reduce the amount of any
payment of principal thereof or the rate at which interest is payable thereon or
any fee payable hereunder, (d) alter the terms of this Section 12.01 or of
Section 12.06 hereof, (e) amend the definition of the term "Required Banks", (f)
change the Commitment of any Bank or the fees payable to any Bank except as
otherwise provided herein, (g) permit the Borrower to transfer or assign any of
its obligations hereunder or under the Facility Documents, (h) amend the
provisions of Article 11 hereof, (i) amend the provisions of Section 3.07(f)
hereof or any guarantee delivered pursuant to the terms hereof or the provisions
of any Subordinated Debt agreement relating to subordination, or (j) release any
guarantee delivered pursuant to the terms hereof. No failure on the part of the
Agent, the Issuing Bank or any Bank to exercise, and no delay in exercising, any
right hereunder shall operate as a waiver thereof or preclude any other or
further exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
Section 12.02. Usury. Anything herein to the contrary
notwithstanding, the obligations of the Borrower under this Agreement and the
Notes shall be subject to the limitation that payments of interest shall not be
required to the extent that
receipt thereof would be contrary to provisions of law applicable to a Bank
limiting rates of interest which may be charged or collected by such Bank.
Section 12.03. Expenses. The Borrower shall reimburse the
Agent and the Issuing Bank on demand for all reasonable costs, expenses, and
charges (including, without limitation, reasonable fees and charges of external
legal counsel for the Agent and the Issuing Bank) incurred by the Agent or the
Issuing Bank or by the Agent on behalf of the Banks in connection with the
preparation, execution and delivery of this Agreement and the Facility
Documents. In addition, the Borrower shall reimburse the Agent, the Issuing Bank
and each Bank for all of its reasonable costs and expenses (including, without
limitation, reasonable fees and charges of external legal counsel for each such
Person) in connection with the enforcement or preservation of any rights under
this Agreement, the Notes or the other Facility Documents. The Borrower agrees
to indemnify the Agent, the Issuing Bank and each Bank and their respective
directors, officers, employees and agents from, and hold each of them harmless
against, any and all losses, liabilities, claims, damages or expenses incurred
by any of them arising out of or by reason of any investigation or litigation or
other proceedings (including any threatened investigation or litigation or other
proceedings) relating to any actual or proposed use by the Borrower or any of
its Affiliates of the Letters of Credit or the proceeds of the Loans, or to the
failure of the Borrower or any of its Subsidiaries to perform or observe any of
the terms, covenants or conditions on its part to be performed or observed under
this Agreement or any of the Facility Documents including, without limitation,
the reasonable fees and disbursements of counsel incurred in connection with any
such investigation or litigation or other proceedings (but excluding any such
losses, liabilities, claims, damages or expenses incurred by reason of the gross
negligence, willful misconduct or bad faith of the Person to be indemnified).
Section 12.04. Survival. The obligations of the Borrower
under Section 2A.08, Section 3.06, Article 4 and Section 12.03 shall survive the
repayment of the Loans and the termination of the Commitments for a period
corresponding to the maximum applicable statute of limitations in effect in the
State of New York from time to time.
Section 12.05. Assignment; Participation. This Agreement shall
be binding upon, and shall inure to the benefit of, the Borrower, the Agent, the
Issuing Bank, the Banks and their respective successors and assigns, except that
the Borrower may not assign or transfer its rights or obligations hereunder.
Each Bank may, (x) with the prior written consent of the Agent and the Borrower
(which consents shall not be unreasonably withheld) and the Issuing Bank (which
consent may be given or
withheld in the sole and absolute discretion of the Issuing Bank) (except that
with respect to assignments made by a Bank to an Affiliate thereof, no such
consent of either the Agent or the Issuing Bank shall be required) assign or (y)
sell participations in, all or any part of its Loans and its Commitment to
another bank or other entity, in which event (a) in the case of an assignment,
upon notice thereof by the Bank to the Borrower with a copy of the assignment
agreement to the Agent, the assignee shall have, to the extent of such
assignment (unless otherwise provided in the applicable assignment agreement),
the same rights, benefits and obligations as it would have if it were a Bank
hereunder; and (b) in the case of a participation, the participant shall have no
rights under the Facility Documents, and all amounts payable by the Borrower
under Article 3 shall be determined as if such Bank had not sold such
participation. Such Bank may furnish any information concerning the Borrower and
its Subsidiaries in the possession of such Bank from time to time to assignees
and participants (including prospective assignees and participants); provided
that such Bank shall require any such prospective assignee or such participant
(prospective or otherwise) to agree in writing to maintain the confidentiality
of such information on substantially the terms set forth in Section 12.15
hereof. The right of a Bank to assign or participate all or part of its
Commitment to a third party shall be subject to the following limitations: (i)
each assignment or participation shall be made pro rata between the Commitment
and the Bid Loans, (ii) each assignee shall be a commercial bank having minimum
capital and surplus of $500,000,000, (iii) each Bank (other than the Agent, in
its capacity as a Bank) shall be permitted to make only one assignment and the
Agent, in its capacity as a Bank, shall be permitted to make two assignments
during the term of the Revolving Credit Facility provided that any such assignee
shall also be an assignee under Section 11.05 of the Second Amended and Restated
Credit Agreement concurrently with such assignment and such assignment shall be
in the same ratable proportion as the assignment of the interests under Section
11.05 of the MSC Credit Agreement and provided further that the Agent by reason
of any assignment shall not cease to be a Bank or Agent hereunder, and (iv) the
holder of any participation shall not be entitled to any voting rights under
this Agreement. There shall be no limit on the number of participations that
may be granted by any Bank. Any permitted assignees or participants shall be
bound by, and shall be subject to, the provisions of Section 12.01 hereof.
Notwithstanding the foregoing, each Bank shall be permitted to assign all or
part of its Commitment hereunder to any Federal Reserve Bank in connection with
any collateral assignment thereto in the ordinary course of any such Bank's
business.
Section 12.06. Special Provisions with Respect to
Permitted Acquisitions.
(a) By Affiliates of the Borrower. Subject to the
limitations set forth below, affiliated companies (the "Acquisition
Affiliates") may be established by the Borrower and the Borrower may make loans
to such affiliates to permit them to acquire equity interests in Persons and
other assets provided that such Acquisition Affiliates and any Subsidiaries
acquired by such Acquisition Affiliates shall have guaranteed the obligations of
the Borrower to the Banks under the Facility Documents, in form and substance
(with respect to such guarantee) reasonably satisfactory to the Agent and the
Required Banks.
(b) Limitations. No acquisition shall be permitted at any time
pursuant to clause (a) unless (i) the aggregate purchase price and assumed
liabilities for all such acquisitions is not greater than twenty-five percent
(25%) of Effective Net Worth as reflected in the Borrower's most recent audited
consolidated and consolidating financial statements available at such time and
provided to the Banks, (ii) no Default or Event of Default shall have occurred
and be continuing or would result from such acquisition, (iii) each acquired
entity (or the assets being acquired, as the case may be) shall be engaged in
(or, in the case of acquired assets, shall be used in) a business comparable to
the business in which Sid Tool is engaged as of the Effective Date, (iv) the
acquisition shall not be hostile and (v) the acquisition shall have been duly
authorized by the acquired entity or the entity selling such assets, as the case
may be. In the event that any acquisition is consummated, the Borrower shall be
required to provide consolidated and consolidating financial statements
reasonably acceptable to the Banks. Under no circumstances shall the Borrower or
any Acquisition Affiliate of the Borrower be permitted to make any acquisition
pursuant to this Section 12.06 if such acquisition includes an acquisition of
real property unless, to the best knowledge of the Borrower and/or such
Acquisition Affiliate, after reasonable investigation, such real property has
not been used for conducting any manufacturing, industrial, commercial or retail
business which involved in any way the introduction, manufacture, generation,
processing or storage of any Hazardous Substance which is the subject of any
Environmental Law.
Section 12.07. Notices. Unless the party to be notified
otherwise notifies the other party in writing as provided in this Section, and
except as otherwise provided in this Agreement, notices shall be given to the
Agent or the Issuing Bank by telephonic communication directly with Xxxxxxxxxxx
X. Xxxxxxxxxx or any other person designated for such purpose by notice from the
Agent or the Issuing Bank to the Borrower, confirmed by telecopy or other
writing (with a copy of any such notice to be sent simultaneously by telecopy to
Xxxx X. Xxxxxxxxxxxx, Esq. at (000) 000-0000, and to the Banks and to the
Borrower by certified or registered mail or by recognized overnight delivery
services to such party at its address on the signature page of this Agreement;
provided, however, that
notwithstanding the foregoing to the contrary, notices to the Borrower shall be
effective if delivered at the following address: 000 Xxxxxxxxx Xxxxxxxxx,
Xxxxxxxxx, Xxx Xxxx 00000, Attention: President. Notices shall be effective: (a)
if given by registered or certified mail, 72 hours after deposit in the mails
with postage prepaid, addressed as aforesaid; or (b) if given by recognized
overnight delivery service, on the business day following deposit with such
service addressed as aforesaid; or (c) if given by telecopy, when the telecopy
is transmitted to the telecopy number as aforesaid and confirmed with a
confirmation receipt (with a copy of any such notice to be sent simultaneously
to Xxxxxx X. Xxxxxxx, Esq., at Rosenman & Colin, 000 Xxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Telecopy No. (000) 000-0000; provided, however, that
notwithstanding the foregoing to the contrary, all notices to the Agent, the
Issuing Bank, the Banks, or any of them, shall only be effective upon receipt by
all of the Agent, the Issuing Bank and the Banks pursuant to the other
provisions of this Section, except that notice to any Bank other than a Bank
which is a signatory hereto shall be effective upon receipt by the Agent of
notice pursuant to the other provisions of this section; and further provided,
however, that notwithstanding the foregoing to the contrary, notices to the
Borrower pursuant to Section 10.01(a) hereof shall be effective upon delivery,
by hand, of any such notice to the Borrower at the following address: 000
Xxxxxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxx Xxxx 00000, Attention: Xxxxxxxx Xxxxxxxx,
Xxxxxx Xxxxxxxxx and Xxxxxxx Xxxxx. In addition, any such notices shall also be
given simultaneously by telephonic communication directly with either Xxxxxxxx
Xxxxxxxx, Xxxxxx Xxxxxxxxx or Xxxxxxx Xxxxx at (000) 000-0000, provided,
however, that delivery of any notice to the Borrower pursuant to Section
10.01(a) hereof shall be effective upon hand-delivery of any such notice as
aforesaid, whether or not such telephonic communication is completed with any of
the foregoing individuals. Furthermore, a copy of any such notice shall also be
sent simultaneously by telecopy to Xxxxxx X. Xxxxxxx, Esq. at (000) 000-0000,
provided, however, that delivery of any notice to the Borrower pursuant to
Section 10.01(a) hereof shall be effective upon hand-delivery of any such notice
as aforesaid.
Section 12.08. Setoff. The Borrower agrees that, in
addition to (and without limitation of) any right of setoff, banker's lien or
counterclaim a Bank or the Issuing Bank may otherwise have, each Bank and the
Issuing Bank shall be entitled, at its option without any prior notice to the
Borrower (any such notice being expressly waived by the Borrower to the extent
permitted by applicable law), to offset balances (general or special, time or
demand, provisional or final) held by it for the account of the Borrower at any
of such Bank's or the Issuing Bank's, as the case may be, offices, in Dollars or
in any other currency, against any amount payable by the Borrower to such Bank
or the Issuing Bank, as the case may be, under this Agreement or
such Bank's Note which is not paid when due (regardless of whether such balances
are then due to the Borrower), in which case it shall promptly notify the
Borrower and the Agent thereof; provided that such Bank's or the Issuing Bank's,
as the case may be, failure to give such notice shall not affect the validity
thereof. Payments by the Borrower hereunder shall be made without setoff or
counterclaim.
Section 12.09. JURISDICTION; WAIVER OF JURY TRIAL;
IMMUNITIES.
(a) THE BORROWER HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY NEW YORK STATE OR UNITED STATES FEDERAL COURT SITTING IN NEW
YORK COUNTY OVER ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT, THE NOTES OR THE OTHER FACILITY DOCUMENTS, AND THE BORROWER HEREBY
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY
BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURT. THE BORROWER
IRREVOCABLY CONSENTS TO THE SERVICE OF ANY AND ALL PROCESS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING (BY CERTIFIED OR REGISTERED MAIL) OF COPIES OF SUCH
PROCESS TO THE BORROWER AT THE ADDRESS SPECIFIED IN SECTION 12.07. THE BORROWER
AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY LAW. THE BORROWER FURTHER WAIVES ANY OBJECTION
TO VENUE IN SUCH STATE AND ANY OBJECTION TO AN ACTION OR PROCEEDING IN SUCH
STATE ON THE BASIS OF FORUM NON CONVENIENS. THE BORROWER FURTHER AGREES THAT ANY
ACTION OR PROCEEDING BROUGHT AGAINST THE AGENT OR THE ISSUING BANK SHALL BE
BROUGHT ONLY IN NEW YORK STATE OR UNITED STATES FEDERAL COURT SITTING IN NEW
YORK COUNTY.
(b) THE AGENT, THE ISSUING BANK, EACH OF THE BANKS AND THE
BORROWER WAIVE ANY RIGHT THEY MAY HAVE TO JURY TRIAL WITH RESPECT TO THIS
AGREEMENT AND THE OTHER FACILITY DOCUMENTS.
(c) NOTHING IN THIS SECTION 12.09 SHALL AFFECT THE RIGHT OF
THE AGENT, THE ISSUING BANK OR ANY BANK TO SERVE LEGAL PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR AFFECT THE RIGHT OF THE AGENT, THE ISSUING BANK OR
ANY BANK TO BRING ANY ACTION OR PROCEEDING AGAINST THE BORROWER OR ITS PROPERTY
IN THE COURTS OF ANY OTHER JURISDICTIONS.
(d) TO THE EXTENT THAT THE BORROWER HAS OR HEREAFTER MAY
ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS
(WHETHER FROM SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID
OF EXECUTION, EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, IT
HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS
AGREEMENT AND THE NOTES.
Section 12.10. Table of Contents; Headings. Any table
of contents and the headings and captions hereunder are for convenience only and
shall not affect the interpretation or construction of this Agreement.
Section 12.11. Severability. The provisions of this Agreement
are intended to be severable. If for any reason any provision of this Agreement
shall be held invalid or unenforceable in whole or in part in any jurisdiction,
such provision shall, as to such jurisdiction, be ineffective to the extent of
such invalidity or unenforceability without in any manner affecting the validity
or enforceability thereof in any other jurisdiction or the remaining provisions
hereof in any jurisdiction.
Section 12.12. Counterparts. This Agreement may be executed in
any number of counterparts, all of which taken together shall constitute one and
the same instrument, and any party hereto may execute this Agreement by signing
any such counterpart.
Section 12.13. Integration. The Facility Documents set forth
the entire agreement among the parties hereto relating to the transactions
contemplated thereby and supersede any prior oral or written statements or
agreements with respect to such transactions.
SECTION 12.14. GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY, AND INTERPRETED AND CONSTRUED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK.
Section 12.15. Treatment of Certain Information. The
Borrower (a) acknowledges that services may be offered or provided to it (in
connection with this Agreement or otherwise) by each Bank or the Issuing Bank or
by one or more of their respective Subsidiaries or Affiliates and (b)
acknowledges that information delivered to each Bank or the Issuing Bank by such
entity may be provided to each such Affiliate. Notwithstanding the foregoing,
the Banks and the Issuing Bank agree to maintain and to endeavor to cause its
Subsidiaries and Affiliates to maintain all non-public information which is
furnished to them hereunder or under or in connection with any Facility Document
in confidence and not to disclose any such information to third parties (except
as provided in the preceding sentence); provided, however that neither Bank nor
the Issuing Bank will be liable to the Borrower or to any of its Subsidiaries or
Affiliates for the failure to cause such Bank's or the Issuing Bank's, as the
case may be, Subsidiaries and Affiliates to maintain in confidence and not
disclose any such information, in the absence of gross negligence or willful
misconduct on the part of any such Bank or the Issuing Bank, as the case may be;
and further provided, however, that the Banks, the Issuing Bank and their
Affiliates referred to above may disclose such information (i) to their
legal counsel, auditors, appraisers or consultants in connection with the
transactions contemplated hereby (provided that such persons are advised of the
confidential nature of such information and of the Banks' and the Issuing Bank's
confidentiality obligations hereunder), (ii) to any regulatory authority having
jurisdiction over them, (iii) to prospective participants or assignees of the
Commitments (provided that such prospective participants or assignees execute a
confidentiality agreement on substantially the terms hereof), (iv) as required
by law or (v) in response to credit inquiries, provided that with respect to
Section 12.15 (v) only, the Borrower has consented in writing to such
disclosure.
Section 12.16. Further Rights of the Agent.
(a) The Borrower appoints such person or persons as Agent may
designate as their attorney-in-fact to, upon and during the continuance of an
Event of Default, to do all things necessary to carry out this Agreement and the
Facility Documents. The powers granted herein, being coupled with an interest,
are irrevocable, and the Borrower approves and ratifies all acts of the
attorney-in-fact. Neither the Agent nor the attorney-in-fact shall be liable for
any act or omission, error in judgment or mistake of law so long as the same is
not willful misconduct or grossly negligent.
(b) In the event that the Borrower or any of its Subsidiaries
shall fail to purchase or maintain insurance (where applicable), or to pay any
tax, assessment, government charge or levy, except as the same may be otherwise
permitted hereunder, or in the event that any Lien prohibited hereby shall not
be paid in full or discharged, or in the event that the Borrower or any of its
Subsidiaries shall fail to perform or comply with any other covenant, promise or
obligation to the Banks hereunder or under any Facility Document, the Agent may,
but shall not be required to, perform, pay, satisfy, discharge or bond the same
for the account of the Borrower and all monies so paid by the Agent, including
reasonable attorneys' fees, shall be treated as an advance to the Borrower.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
BORROWER:
MSC INDUSTRIAL DIRECT CO., INC.
By: ____________________________
Name:
Title:
Address for Notices:
MSC Industrial Direct Co., Inc.
c/o Sid Tool Co., Inc.
000 Xxxxxxxxx Xxxx.
Xxxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxxxxx Xxxxxxxx
President
Telephone No.: (000) 000-0000,
Ext. 1223
Telecopier No.: (000) 000-0000
AGENT and ISSUING BANK:
FLEET BANK, NATIONAL ASSOCIATION
By: ____________________________
Name:
Title:
Lending Office and
Address for Notices:
Fleet Bank, National Association
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxxxx X.
Xxxxxxxxxx
Vice President
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
BANKS:
FLEET BANK, NATIONAL ASSOCIATION
By: ____________________________
Name:
Title:
Lending Office and
Address for Notices:
Fleet Bank, National Association
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxxxx X.
Xxxxxxxxxx
Vice President
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Commitment:
$40,000,000
THE CHASE MANHATTAN BANK
By: ____________________________
Name:
Title:
Lending Office and
Address for Notices:
The Chase Manhattan Bank
Corporate Banking Group
000 Xxxxx Xxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx
Vice President
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Commitment:
$30,000,000
MELLON BANK
By: ____________________________
Name:
Title:
Lending Office and
Address for Notices:
Mellon Bank
165 EAB Plaza
West Tower - 0xx Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxx
Vice President
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Commitment:
$10,000,000
