SECOND AMENDMENT AND RESTATEMENT
OF
CREDIT AGREEMENT
Dated as of February 20, 1997
among
XXXX MANUFACTURING CO.
and
XXXX EUROPE LIMITED,
as Borrowers,
THE SUBSIDIARIES
FROM TIME TO TIME PARTY HERETO,
as Guarantors,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTY HERETO
AND
NATIONSBANK, N.A.,
as Agent
TABLE OF CONTENTS
SECTION 1 DEFINITIONS ...................................................... 1
1.1 Definitions ..................................................... 1
1.2 Computation of Time Periods ..................................... 28
1.3 Accounting Terms ................................................ 29
SECTION 2 CREDIT FACILITIES ................................................ 29
2.1 Revolving Loans ................................................. 29
2 2 Domestic Letter of Credit Subfacility ........................... 31
2.3 Competitive Loan Subfacility .................................... 36
2 4 Swingline Loan Subfacility ...................................... 39
2.5 Foreign Currency Loan Subfacility ............................... 42
2.6 Foreign Letter of Credit Subfacility ............................ 43
SECTION 3 OTHER PROVISIONS RELATING TO CREDIT FACILITIES ................... 49
3.1 Default Rate .................................................... 49
3.2 Extension and Conversion ........................................ 49
3.3 Prepayments ..................................................... 50
3.4 Termination and Reduction of Revolving Committed Amount ......... 52
3.5 Fees ............................................................ 53
3.6 Capital Adequacy ................................................ 54
3.7 Unavailability .................................................. 54
3.8 Illegality ...................................................... 55
3.9 Requirements of Law ............................................. 56
3.10 Taxes ........................................................... 57
3.11 Indemnity ....................................................... 60
3.12 Pro Rata Treatment .............................................. 61
3.13 Sharing of Payments ............................................. 62
3.14 Payments, Computations, Etc. .................................... 62
3.15 Mandatory Assignment ............................................ 64
SECTION 4 GUARANTY ......................................................... 64
4.1 The Guarantee ................................................... 64
4.2 Obligations Unconditional ....................................... 65
4.3 Reinstatement ................................................... 66
4.4 Certain Additional Waivers ...................................... 66
4.5 Remedies ........................................................ 66
4.6 Rights of Contribution .......................................... 67
4.7 Continuing Guarantee ............................................ 00
-x-
XXXXXXX 0 CONDITIONS
5.1 Closing Conditions .............................................. 68
5.2 Conditions to all Extensions of Credit .......................... 68
SECTION 6 REPRESENTATIONS AND WARRANTIES ................................... 70
6.1 Financial Condition ............................................. 70
6.2 No Change ....................................................... 71
6.3 Organization; Existence; Compliance with Law .................... 71
6.4 Power; Authorization; Enforceable Obligations ................... 71
6.5 No Legal Bar .................................................... 72
6.6 No Material Litigation .......................................... 72
6.7 No Default ...................................................... 72
6.8 Ownership of Property; Liens .................................... 72
6.9 Intellectual Property ........................................... 72
6.10 No Burdensome Restrictions ...................................... 73
6.11 Taxes ........................................................... 73
6.12 ERISA ........................................................... 73
6.13 Governmental Regulations, Etc. .................................. 75
6.14 Subsidiaries .................................................... 76
6.15 Purpose of Loans and Letters of Credit .......................... 76
6.16 Environmental Matters ........................................... 76
SECTION 7 AFFIRMATIVE COVENANTS ............................................ 77
7.1 Information Covenants ........................................... 77
7.2 Preservation of Existence and Franchises ........................ 80
7.3 Books and Record ................................................ 80
7.4 Compliance with Law ............................................. 80
7.5 Payment of Taxes and Other Indebtedness ......................... 81
7.6 Insurance ....................................................... 81
7.7 Maintenance of Property ......................................... 81
7.8 Performance of Obligations ...................................... 81
7.9 Use of Proceeds ................................................. 81
7.10 Audits/Inspections .............................................. 82
7.11 Financial Covenants ............................................. 82
7.12 Additional Credit Parties ....................................... 84
7.13 Ownership of Subsidiaries ....................................... 85
SECTION 8 NEGATIVE COVENANTS ............................................... 85
8.1 Indebtedness .................................................... 85
8.3 Nature of Business .............................................. 87
8.4 Consolidation, Merger, Sale or Purchase of Assets, etc. ......... 87
8.5 Advances, Investments, Loans, etc. .............................. 88
8.6 Restricted Payments ............................................. 88
-ii-
8.7 Prepayments of Indebtedness, etc. ............................... 88
8.8 Transactions with Affiliates .................................... 89
8.9 Fiscal Year ..................................................... 89
8.10 Limitation on Restrictions on Subsidiary Dividends
and Other Distributions, etc. .................................. 89
8.11 Issuance and Sale of Subsidiary Stock ........................... 89
8.12 Sale Leasebacks ................................................. 89
8.13 No Further Negative Pledges ..................................... 90
8.14 Operating Lease Obligations ..................................... 90
SECTION 9 EVENTS OF DEFAULT ................................................ 90
9.1 Events of Default ............................................... 90
9.2 Acceleration; Remedies .......................................... 93
SECTION 10 AGENCY PROVISIONS ............................................... 94
10.1 Appointment ..................................................... 94
10.2 Delegation of Duties ............................................ 94
10.3 Exculpatory Provisions .......................................... 94
10.4 Reliance on Communications ...................................... 95
10.5 Notice of Default ............................................... 95
10.6 Non-Reliance on Agent and Other Lenders ......................... 96
10.7 Indemnification ................................................. 96
10.8 Agent in its Individual Capacity ................................ 97
10.9 Successor Agent ................................................. 97
SECTION 11 MISCELLANEOUS ................................................... 97
11.1 Notices ......................................................... 97
11.2 Right of Set-Off ................................................ 99
11.3 Benefit of Agreement ............................................ 99
11.4 No Waiver; Remedies Cumulative .................................. 102
11.5 Payment of Expenses, etc ........................................ 102
11.6 Amendments, Waivers and Consents ................................ 102
11.7 Counterparts .................................................... 103
11.8 Headings ........................................................ 103
11.9 Survival of Indemnification ..................................... 103
11.10 Governing Law; Submission to Jurisdiction;
Venue; Arbitration ............................................. 103
11.11 Severability .................................................... 105
11.12 Entirely ........................................................ 105
11.13 Survival of Representations and Warranties ...................... 105
11.14 Binding Effect; Termination of Credit Agreement; etc ............ 105
11.15 Judgment Currency ............................................... 106
11.16 Confidentiality ................................................. 107
11.17 Source of Funds ................................................. 107
-iii-
SCHEDULES*
Schedule 1.1A Existing Letters of Credit
Schedule 1.1B Calculation of MLA Cost
Schedule 1.1C Form of Notice of Borrowing
Schedule 1.1D Form of Notice of Extension/Conversion
Schedule 1.1E Investments
Schedule 1.1F Liens
Schedule 2.1(a) Lenders
Schedule 2.1(e) Form of Revolving Note
Schedule 2.3(b)-l Form of Competitive Bid Request
Schedule 2.3(b)-2 Form of Notice of Receipt of Competitive Bid Request
Schedule 2.3(c) Form of Competitive Bid
Schedule 2.3(e) Form of Competitive Bid Accept/Reject Letter
Schedule 2.3(i) Form of Competitive Note
Schedule 2.4(d) Form of Swingline Note
Schedule 2.5(e) Form of Foreign Currency Note
Schedule 5.1(e) Form of English Counsel Opinion
Schedule 6.4 Required Consents, Authorizations, Notices and Filings
Schedule 6.9 Intellectual Property
Schedule 6.12 ERISA Disclosures
Schedule 6.14 Subsidiaries
Schedule 6.16 Environmental Disclosures
Schedule 7.1(c) Form of Officer's Compliance Certificate
Schedule 7.12 Form of Joinder Agreement
Schedule 8.1 Indebtedness
Schedule 11.3 Form of Assignment and Acceptance
* Certain schedules are omitted. The Company agrees to furnish supplementally
any omitted schedules upon request.
-iv-
SECOND AMENDMENT AND RESTATEMENT OF CREDIT AGREEMENT
THIS SECOND AMENDMENT AND RESTATEMENT OF CREDIT AGREEMENT dated as of
February 20, 1997 (the "Amendment"), is by and among XXXX MANUFACTURING CO., a
Pennsylvania corporation ("Xxxx"), XXXX EUROPE LIMITED, a U.K. corporation
("Xxxx Europe each of Xxxx and Xxxx Europe hereinafter may be referred to as a
"Borrower" or, collectively, as the "Borrowers"), the subsidiaries of Xxxx
identified on the signature pages hereto and such other subsidiaries of Xxxx as
may from time to time become a party hereto (the "Guarantors"), the several
lenders identified on the signature pages hereto and such other lenders as may
from time to time become a party hereto (the "Lenders") and NATIONSBANK, N.A.,
as agent for the Lenders (in such capacity, the "Agent").
W I T N E S S E T H
WHEREAS, Xxxx, the Guarantors. the Lenders and the Agent entered into
that certain Credit Agreement dated as of December 19, 1995 (as previously
amended, the "Existing Credit Agreement");
WHEREAS, the parties to the Existing Credit Agreement have agreed upon
a second amendment to the Existing Credit Agreement and for ease of reference
have agreed to set forth the entire agreement evidenced by the Existing Credit
Agreement, the amendment to the Existing Credit Agreement dated as of August 1,
1996 and such second amendment in this Amendment as a single document;
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
DEFINITIONS
1.1 Definitions.
As used in this Amendment, the following terms shall have the meanings
specified below unless the context otherwise requires:
"Additional Credit Party" means each Person that becomes a Guarantor
after the Closing Date by execution of a Joinder Agreement.
"Affiliate" means, with respect to any Person, any other Person (i)
directly or indirectly controlling or controlled by or under direct or indirect
common control with such Person or (ii) directly or indirectly owning or holding
five percent (5%) or more of the equity interest in such Person. For purposes of
this definition, "control" when used with respect to any Person means the power
to direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent" shall have the meaning assigned to such term in the heading
hereof.
"Agent's Fee Letter" means that certain letter agreement, dated as of
December 19, 1995, between the Agent and Xxxx, as amended, modified,
supplemented or replaced from time to time.
"Agent's Fees" shall have the meaning assigned to such term in Section
3.5(c).
"Alternative Asset " means, in connection with any proposed Asset Sale
pursuant to the terms of Section 8.4(b)(v)(B), assets (including stock or other
equity interests acquired in a transaction contemplated by and permitted under
Section 8.4(c) and whether new additional or replacement assets but exclusive of
assets acquired in the course of regular upkeep and maintenance) which are
similar in nature, purpose or business line to other assets owned or leased by
Xxxx and/or its Subsidiaries prior to or at the time of the acquisition of such
assets and useful in the conduct of the business of Xxxx and its Subsidiaries
as permitted to be conducted pursuant to Section 8.3.
"Amendment Effective Date" means February 20, 1997.
"Applicable Margin" means, for purposes of calculating the applicable
interest rate for any day for any Eurodollar Loan or the applicable rate of the
Facility Fee for any day for purposes of Section 3.5(a) or the applicable rate
of the Standby Letter of Credit Fee for any day for purposes of Section
3.5(b)(i), the appropriate applicable margin corresponding to the Consolidated
Leverage Ratio in effect as of the most recent Calculation Date:
2
================================================================================
Applicable Applicable
Consolidated Margin for Applicable Margin for
Pricing Leverage Eurodollar Margin for Standby Letter
Level Ratio Loans Facility Fee of Credit Fee
--------------------------------------------------------------------------------
I Equal to or less 27.5 bps 10.0 bps 27.5 bps
than 2.00 to 1.00
--------------------------------------------------------------------------------
II Greater than 2.00 35.0 bps 15.0 bps 35.0 bps
to 1.00 but equal
to or less than
2.50 to 1.00
--------------------------------------------------------------------------------
III Greater than 2.50 42.5 bps 20.0 bps 42.5 bps
to 1.00 but equal
to or less than
3.00 to 1.00
--------------------------------------------------------------------------------
IV Greater than 3.00 50.0 bps 25.0 bps 50.0 bps
to 1.00
================================================================================
Determination of the appropriate Applicable Margins based on the Consolidated
Leverage Ratio shall be made as of each Calculation Date. The Consolidated
Leverage Ratio in effect as of a Calculation Date shall establish the Applicable
Margins that shall be effective as of the date designated by the Agent as the
Applicable Margin Change Date. The Agent shall determine the Applicable Margins
as of each Calculation Date and shall promptly notify the Borrowers and the
Lenders of the Applicable Margins so determined and of the Applicable Margin
Change Date. Such determinations by the Agent of the Applicable Margins shall be
conclusive absent demonstrable error.
"Applicable Margin Change Date" means, with respect to any Calculation
Date, a date designated by the Agent that is not more than five (5) Business
Days after the date pursuant to the terms of Section 7.1(a) or (b), as
applicable, that the Required Financial Information for such Calculation Date is
required to be delivered to the Agent and the Lenders.
"Application Period" shall have the meaning assigned to such term in
Section 8.4(b)(v)(B)(I).
"Asset Sale" means any sale, lease, transfer or other disposition
(including any such transaction effected by way of merger, amalgamation or
consolidation) by Xxxx or any of its Subsidiaries subsequent to the Closing Date
of any asset (including stock in Subsidiaries of Xxxx), including without
limitation any sale leaseback transaction (whether or not involving a Capital
Lease), but excluding (a) the sale of inventory in the ordinary course of
business for fair consideration, (b) the sale or disposition of machinery and
equipment no longer used or useful in the conduct of such Person's business, (c)
the sale of any asset having a book value of less than $100,000, (d) the Fresno
Asset Sale and (e) any Equity Transaction.
3
"Attributed Principal Amount" means, on any day, with respect to any
Permitted Receivables Financing entered into by Xxxx, the aggregate amount (with
respect to any such transaction, the "Invested Amount") paid to, or borrowed by,
such Person as of such date under such Permitted Receivables Financing, minus
the aggregate amount received by the applicable Receivables Financier and
applied to the reduction of the Invested Amount under such Permitted Receivables
Financing.
"Available Reinvestment Amount" means, at any time, the aggregate
amount of the Excess Sale Proceeds of all asset sales made pursuant to Section
8.4(b)(v) with respect to which the related Application Period has not yet
expired, provided that such Excess Sale Proceeds (i) have not been applied to
the purchase, acquisition or construction of Alternative Assets as contemplated
by Section 8.4(b)(v)(B)(I) and (ii) have been applied to prepay the Loans as
contemplated by Section 8.4(b)(v)(B)(2) and Section 3.3(b)(iii).
"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the United
States Code, as amended, modified, succeeded or replaced from time to time.
"Bankruptcy Event" means, with respect to any Person, the occurrence of
any of the following with respect to such Person: (i) a court or governmental
agency having jurisdiction in the premises shall enter a decree or order for
relief in respect of such Person in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or after the Closing Date in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of such Person or for any substantial part of
its Property or ordering the winding up or liquidation of its affairs; or (ii)
there shall be commenced against such Person an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or after the Closing
Date in effect, or any case, proceeding or other action for the appointment of a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of such Person or for any substantial part of its Property or for the
winding up or liquidation of its affairs, and such involuntary case or other
case, proceeding or other action shall remain undismissed, undischarged or
unbonded for a period of sixty (60) consecutive days; or (iii) such Person shall
commence a voluntary case under any applicable bankruptcy, insolvency or other
similar law now or after the Closing Date in effect, or consent to the entry of
an order for relief in an involuntary case under any such law, or consent to the
appointment or taking possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of such Person or for any
substantial part of its Property or make any general assignment for the benefit
of creditors; or (iv) such Person shall be unable to, or shall admit in writing
its inability to, pay its debts generally as they become due.
4
"Xxxxxx Family" means the wife, children and descendants of such
children of the late Xxxxxx X. Xxxxxx III, their respective spouses and estates,
any trusts primarily for the benefit of any of the foregoing and the
administrators, executors and trustees of any such estates or trusts.
"Base Rate" means, for any day, the rate per annum (rounded upwards, if
necessary, to the nearest whole multiple of 1/100 of 1%) equal to the greater of
(a) the Federal Funds Rate in effect on such day plus 1/2 of 1% or (b) the Prime
Rate in effect on such day. If for any reason the Agent shall have determined
(which determination shall be conclusive absent manifest error) that it is
unable after due inquiry to ascertain the Federal Funds Rate for any reason,
including the inability or failure of the Agent to obtain sufficient quotations
in accordance with the terms of the Credit Agreement, the Base Rate shall be
determined without regard to clause (a) of the first sentence of this definition
until the circumstances giving rise to such inability no longer exist. Any
change in the Base Rate due to a change in the Prime Rate or the Federal Funds
Rate shall be effective on the effective date of such change in the Prime Rate
or the Federal Funds Rate, respectively.
"Base Rate Loan" means any Loan bearing interest at a rate determined
by reference to the Base Rate.
"Xxxxx" means Xxxxx Custom Furniture, Inc., an Alabama corporation and
a Wholly Owned Subsidiary of Xxxx.
"Borrower" or "Borrowers" means the Persons identified as such in the
heading hereof, together with any successors and permitted assigns.
"Borrowers' Obligations" means, collectively, the Xxxx Obligations and
the Xxxx Europe Obligations.
"Business Day" means a day other than a Saturday, Sunday or other day
on which commercial banks in Charlotte, North Carolina are authorized or
required by law to close, except that, (i) when used in connection with a
Revolving Loan that is a Eurodollar Loan, such day shall also be a day on which
dealings between banks are carried on in U.S. dollar deposits in London, England
and New York, New York and (ii) when used in connection with a Foreign Currency
Loan or a Foreign Letter of Credit, such day shall also be a day on which
dealings in Pounds Sterling are being carried on between banks in London,
England.
"Calculation Date" means the last day of each fiscal quarter of Xxxx.
"Capital Lease" means, as applied to any Person, any lease of any
Property (whether real, personal or mixed) by that Person as lessee which, in
accordance with GAAP is accounted for as a capital lease on the balance sheet of
that Person.
5
"Cash Equivalents" means (a) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more
than twelve months from the date of acquisition, (b) U.S. dollar denominated
time deposits and certificates of deposit of (i) any Lender, (ii) any domestic
commercial bank of recognized standing having capital and surplus in excess of
$500,000,000 or (iii) any bank whose short-term commercial paper rating from S&P
is at least A-1 or the equivalent thereof or from Xxxxx'x is at least P-1 or the
equivalent thereof (any such bank being an "Approved Lender"), in each case
with maturities of not more than 270 days from the date of acquisition, (c)
commercial paper and variable or fixed rate notes issued by any Approved Lender
(or by the parent company thereof) or any variable rate notes issued by, or
guaranteed by, any domestic corporation rated A-1 (or the equivalent thereof) or
better by S&P or P-1 (or the equivalent thereof) or better by Moody's and
maturing within six months of the date of acquisition, (d) repurchase agreements
entered into by a Person with a bank or trust company (including any of the
Lenders) or recognized securities dealer having capital and surplus in excess of
$500,000,000 for direct obligations issued by or fully guaranteed by the United
States of America in which such Person shall have a perfected first priority
security interest (subject to no other Liens) and having, on the date of
purchase thereof, a fair market value of at least 100% of the amount of the
repurchase obligations, (e) obligations of any State of the United States or any
political subdivision thereof, the interest with respect to which is exempt from
federal income taxation under Section 103 of the Code, having a long term rating
of at least AA-3 or AA- by Moody's or S&P, respectively, and maturing within
three years from the date of acquisition thereof, (f) Investments in municipal
auction preferred stock (i) rated AAA (or the equivalent thereof) or better by
S&P or AAA (or the equivalent thereof) or better by Moody's and (ii) with
dividends that reset at least once every 365 days and (g) Investments,
classified in accordance with GAAP as current assets, in money market investment
programs registered under the Investment Company Act of 1940, as amended, which
are administered by reputable financial institutions having capital of at least
$100,000,000 and the portfolios of which are limited to Investments of the
character described in the foregoing subdivisions (a), (b), (c), (e) and (f).
"Change of Control" means the occurrence of any of the following
events: (i) any Person or two or more Persons acting in concert, other than
members of the Xxxxxx Family, shall have acquired beneficial ownership, directly
or indirectly, of, or shall have acquired by contract or otherwise, or shall
have entered into a contract or arrangement that, upon consummation, will result
in its or their acquisition of, control over, Voting Stock of Xxxx (or other
securities convertible into such Voting Stock) representing 35% or more of the
combined voting power of all Voting Stock of Xxxx, or (ii) during any period of
up to 24 consecutive months, commencing after the Closing Date, individuals who
at the beginning of such 24 month period were directors of Xxxx (together with
any new director whose election by Xxxx'x Board of Directors or whose nomination
for election by Xxxx'x shareholders was approved by a vote of at least
two-thirds of the directors then still in office who either were directors at
the beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of the
directors of Xxxx then in office. As used herein, "beneficial ownership" shall
have the meaning provided in Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934.
6
"Closing Date" means December 19, 1995.
"Code" means the Internal Revenue Code of 1986, as amended, and any
successor thereto, as interpreted by the rules and regulations issued
thereunder, in each case as in effect from time to time. References to sections
of the Code shall be construed also to refer to any successor sections.
"Commitment" means (i) with respect to each Lender, the Revolving
Commitment of such Lender, (ii) with respect to the Swingline Lender, the
Swingline Commitment and (iii) with respect to the Issuing Lender, the LOC
Commitment.
"Commitment Percentage" means, for any Lender, the percentage
identified as its Commitment Percentage on Schedule 2.1(a), as such percentage
may be modified in connection with any assignment made in accordance with the
provisions of Section 11.3.
"Competitive Bid" means an offer by a Lender to make a Competitive Loan
pursuant to the terms of Section 2.3.
"Competitive Bid Rate" means, as to any Competitive Bid made by a
Lender in accordance with the provisions of Section 2.3, the fixed rate of
interest offered by the Lender making the Competitive Bid.
"Competitive Bid Request" means a request by Xxxx for Competitive Bids
in accordance with the provisions of Section 2.3(b).
"Competitive Bid Request Fee" shall have the meaning assigned to such
term in Section 3.5(d).
"Competitive Loan" means a loan made by a Lender in its discretion
pursuant to the provisions of Section 2.3.
"Competitive Loan Lenders" means, at any time, those Lenders which have
Competitive Loans outstanding.
"Competitive Loan Maximum Amount" shall have the meaning assigned to
such term in Section 2.3(a).
"Competitive Note" means a promissory note of Xxxx in favor of a Lender
delivered pursuant to Section 2.3(i) and evidencing the Competitive Loans, if
any, of such Lender, as such promissory note may be amended, modified, restated
or replaced from time to time.
7
"Consolidated Capital Expenditures" means, for any period, all capital
expenditures (exclusive of expenditures for acquisitions permitted pursuant to
the terms of Section 8.4(a) or (c)) of Xxxx and its consolidated Subsidiaries
for such period, as determined in accordance with GAAP.
"Consolidated Capitalization" means, at any time, the sum of (i)
Consolidated Net Worth at such time plus (ii) Consolidated Funded Indebtedness
at such time.
"Consolidated EBIT" means, for any period, the sum of (i) Consolidated
Net Income for such period but excluding (A) non-cash charges associated with
exercise of stock options, (B) unusual items, including but not limited to
refinancing, restructuring or reorganizational charges, (C) effects of changes
in accounting principles and (D) extraordinary items. plus (ii) an amount
which, in the determination of Consolidated Net Income for such period, has
been deducted for (A) Consolidated Interest Expense for such period and (B)
total Federal, state, local and foreign income taxes of Xxxx and its
consolidated Subsidiaries for such period.
"Consolidated EBITDA" means, for any period, the sum of (i)
Consolidated EBIT for such period, plus (ii) an amount which, in the
determination of Consolidated Net Income for such period, has been deducted for
consolidated depreciation and amortization expense of Xxxx and its consolidated
Subsidiaries for such period.
"Consolidated Fixed Charge Coverage Ratio" means, as of any Calculation
Date, the ratio of (i) Consolidated EBITDA for the four-quarter period ended as
of such Calculation Date minus Consolidated Capital Expenditures for the
four-quarter period ended as of such Calculation Date minus Restricted Payments
by Xxxx and its consolidated Subsidiaries for the four-quarter period ended as
of such Calculation Date, to (ii) Consolidated Interest Expense for the
four-quarter period ended as of such Calculation Date plus Consolidated
Scheduled Funded Indebtedness Payments for the four-quarter period ended as of
such Calculation Date.
"Consolidated Funded Indebtedness" means, at any time, the outstanding
principal amount of all Funded Indebtedness, without duplication, of Xxxx and
its consolidated Subsidiaries at such time.
"Consolidated Funded Indebtedness to Capitalization Ratio" means, as of
any Calculation Date, the ratio of (i) Consolidated Funded Indebtedness as of
such Calculation Date to (ii) Consolidated Capitalization as of such Calculation
Date.
"Consolidated Interest Coverage Ratio" means, for any period, the ratio
of (i) Consolidated EBIT for such period to (ii) Consolidated Interest Expense
for such period.
8
"Consolidated Interest Expense" means, for any period, all interest
expense of Xxxx and its consolidated Subsidiaries for such period, as determined
in accordance with GAAP but including in any event all imputed interest,
whether in the form of "yield", "discount" or other similar item, that accrues
in respect of the Attributed Principal Amount of any Permitted Receivables
Financing.
"Consolidated Leverage Ratio" means, as of any Calculation Date, the
ratio of (i) Consolidated Funded Indebtedness as of such Calculation Date at
such time to (ii) Consolidated EBITDA for the four fiscal-quarter period ended
as of such Calculation Date.
"Consolidated Net Income" means, for any period, net income after taxes
for such period for Xxxx, and its consolidated Subsidiaries, as determined in
accordance with GAAP.
"Consolidated Net Worth" means, as of any date, total shareholders'
equity of Xxxx and its consolidated Subsidiaries as of such date, as determined
in accordance with GAAP.
"Consolidated Scheduled Funded Indebtedness Payments" means, as of any
Calculation Date, the scheduled payments of principal on Funded Indebtedness for
Xxxx and its consolidated Subsidiaries for the twelve month period ending on
such Calculation Date.
"Consolidated Total Assets" means, at any time, all items which, in
accordance with GAAP, would be classified as assets on a consolidated balance
sheet of Xxxx as of such time minus the amount of Contingent Liabilities for
Receivables at such time as determined in accordance with GAAP.
"Contingent Liabilities for Receivables" means, at any time, the
aggregate amount of recourse (solely for defaulted or delinquent receivables)
against Xxxx and all of its Subsidiaries under all Permitted Receivables
Financings.
"Controlled Group" means (i) the controlled group of corporations as
defined in Section 414(b) of the Code and the applicable regulations thereunder,
or (ii) the group of trades or businesses under common control as defined in
Section 414(c) of the Code and the applicable regulations thereunder, of which
Xxxx or any of its Subsidiaries is a member.
"Credit Agreement" means the Existing Credit Agreement as amended and
restated by this Amendment.
"Credit Documents" means a collective reference to the Credit
Agreement, the Notes, the LOC Documents, each Joinder Agreement, the Agent's Fee
Letter and all other related agreements and documents issued or delivered
thereunder or pursuant thereto.
9
"Credit Party" means any of the Borrowers and the Guarantors.
"Default" means any event, act or condition which with notice or lapse
of time, or both, would constitute an Event of Default.
"Determination Date" means:
(a) the date two Business Days prior to the date any Foreign Currency
Loan is made or any Foreign Letter of Credit is issued;
(b) the date two Business Days prior to the date any Foreign Currency
Loan is continued from the current Interest Period for such Foreign Currency
Loan into a subsequent Interest Period;
(c) the date of any drawing under any Foreign Letter of Credit;
(d) the last Business Day of each March, June, September and December;
or
(e) the date of any reduction of the Revolving Committed Amount
pursuant to the terms of Section 3.4(a).
"Dollars" and "$" means dollars in lawful currency of the United States
of America.
"Dollar Amount" means (a) with respect to Dollars or an amount
denominated in Dollars, such amount and (b) with respect to an amount of Pounds
Sterling or an amount denominated in Pounds Sterling, the Dollar Equivalent of
such amount on the applicable date contemplated in this Amendment.
"Dollar Equivalent" means, on any date, with respect to an amount
denominated in Pounds Sterling, the amount of Dollars into which the Agent
could, in accordance with its practice from time to time in the interbank
foreign exchange market, convert such amount of Pounds Sterling at its spot rate
of exchange (inclusive of all reasonable related costs of conversion) applicable
to the relevant transaction at or about 10:00 A.M., Charlotte, North Carolina
time, on such date.
"Domestic Credit Party" means any one of Xxxx and each of the
Guarantors which is a Domestic Subsidiary of the Borrower.
"Domestic Letter of Credit" means (i) any letter of credit issued by
the Issuing Lender for the account of Xxxx in accordance with the terms of
Section 2.2 and (ii) each Existing Letter of Credit.
10
"Domestic LOC Committed Amount" shall have the meaning assigned to such
term in Section 2.2.
"Domestic LOC Obligations" means, at any time, the sum of (i) the
maximum amount which is, or at any time thereafter may become, available to be
drawn under Domestic Letters of Credit then outstanding, assuming compliance
with all requirements for drawings referred to in such Domestic Letters of
Credit plus (ii) the aggregate amount of all drawings under Domestic Letters of
Credit honored by the Issuing Lender but not theretofore reimbursed.
"Domestic Subsidiary" means, with respect to any Person, any Subsidiary
of such Person which is incorporated or organized under the Laws of any State of
the United States or the District of Columbia.
"Eligible Assignees" means (i) any Lender or any Affiliate or
Subsidiary of a Lender, and (ii) any other commercial bank, financial
institution or "accredited investor" (as defined in Regulation D of the
Securities and Exchange Commission) reasonably acceptable to the Agent and Xxxx.
"Environmental Laws" means any and all lawful and applicable Federal,
state, local and foreign statutes, laws, regulations, ordinances, rules,
judgments, orders, decrees, permits, concessions, grants, franchises, licenses,
agreements or other governmental restrictions relating to the environment or to
emissions, discharges releases or threatened releases of pollutants,
contaminants, chemicals, or industrial, toxic or hazardous substances or wastes
into the environment including, without limitation, ambient air, surface water,
ground water, or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport, or handling of
pollutants, contaminants, chemicals, or industrial, toxic or hazardous
substances or wastes.
"Equity Transaction" means any issuance by Xxxx or any of its
Subsidiaries of (A) shares of its capital stock, other than the issuance to Xxxx
of the capital stock of any of its Subsidiaries, (B) any shares of its capital
stock pursuant to the exercise of options or warrants or (C) any shares of its
capital stock pursuant to the conversion of any debt securities to equity.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute thereto, as interpreted by the rules and
regulations thereunder, all as the same may be in effect from time to time.
References to sections of ERISA shall be construed also to refer to any
successor sections.
"ERISA Affiliate" means an entity, whether or not incorporated, which
is under common control with any Credit Party within the meaning of Section
4001(a)(14) of ERISA, or is a member of a group which includes Xxxx and which is
treated as a single employer under Sections 414(b), (c), (m), or (o) of the
Code.
"Eurodollar Loan" means any Loan bearing interest at a rate determined
by reference to the Eurodollar Rate.
11
"Eurodollar Rate" means, for the Interest Period for each Eurodollar
Loan comprising part of the same borrowing (including conversions, extensions
and renewals), a per annum interest rate determined pursuant to the following
formula:
Eurodollar Rate = Interbank Offered Rate
---------------------------------
1 - Eurodollar Reserve Percentage
"Eurodollar Reserve Percentage" means for any day, that percentage
(expressed as a decimal) which is in effect from time to time under Regulation D
of the Board of Governors of the Federal Reserve System (or any successor), as
such regulation may be amended from time to time or any successor regulation, as
the maximum reserve requirement (including, without limitation. any basic,
supplemental, emergency, special, or marginal reserves) applicable with respect
to Eurocurrency liabilities as that term is defined in Regulation D (or against
any other category of liabilities that includes deposits by reference to which
the interest rate of Eurodollar Loans is determined), whether or not Lender has
any Eurocurrency liabilities subject to such reserve requirement at that time.
Eurodollar Loans shall be deemed to constitute Eurocurrency liabilities and as
such shall be deemed subject to reserve requirements without benefits of credits
for proration, exceptions or offsets that may be available from time to time to
a Lender. The Eurodollar Rate shall be adjusted automatically on and as of the
effective date of any change in the Eurodollar Reserve Percentage.
"Event of Default" means such term as defined in Section 9.1.
An "Excess Sale Even" shall be deemed to have occurred if either (1)
the net book value of all assets sold pursuant to the terms of Section 8.4(b)(v)
during the preceding twelve (12) months exceeds 15% of Consolidated Total Assets
as determined at the end of the immediately preceding fiscal year or (2) the net
book value of all assets sold pursuant to the terms of Section 8.4(b)(v) during
the preceding thirty-six (36) months exceeds 30% of Consolidated Total Assets as
determined at the end of the fiscal year nearest to the date thirty-six (36)
months prior to such sale of assets.
"Excess Sale Proceeds" means, with respect to any Excess Sale Event,
either (1) if an Excess Sale Event is deemed to occur pursuant to clause (1) of
the definition thereof, the amount by which the Net Proceeds of all such asset
sales made during the preceding twelve (12) months exceeds 15% of Consolidated
Total Assets as determined at the end of the immediately preceding fiscal year
or (2) if an Excess Sale Event is deemed to occur pursuant to clause (2) of the
definition thereof, the amount by which the Net Proceeds of all such asset sales
made during the preceding thirty-six (36) months exceeds 30% of Consolidated
Total Assets as determined at the end of the fiscal year nearest to the date
thirty-six (36) months prior to such sale of assets.
12
"Existing Credit Agreement" shall have the meaning assigned to such
term in the preliminary statements hereto.
"Existing Letter of Credit" means any one of the letters of credit
described by date of issuance, letter of credit number, undrawn amount, name of
beneficiary and date of expiry on Schedule 1.1A.
"Facility Fee" shall have the meaning assigned to such term in Section
3.5(a).
"Facility Fee Calculation Period" shall have the meaning assigned to
such term in Section 3.5(a).
"Fees" means all fees payable pursuant to Section 3.5.
"Federal Funds Rate" means, for any day, the rate of interest per annum
(rounded upwards, if necessary, to the nearest whole multiple of 1/100 of 1%)
equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published by the Federal Reserve Bank of New York
on the Business Day next succeeding such day, provided that (A) if such day is
not a Business Day, the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Business Day and (B) if no such rate is
so published on such next succeeding Business Day, the Federal Funds Rate for
such day shall be the average rate quoted to the Agent on such day on such
transactions as determined by the Agent.
"Fiscal Year End" means, for any fiscal year of Xxxx and its
Subsidiaries, the Sunday nearest the last day of November.
"Foreign Currency Commitment Percentage" means, for any Lender, the
percentage identified as its Foreign Currency Commitment Percentage on Schedule
2.1 (a), as such percentage may be modified in connection with any assignment
made in accordance with the provisions of Section 11.3.
"Foreign Currency Committed Amount" shall have the meaning assigned to
such term in Section 2.5(a).
"Foreign Currency Equivalent" means, on any date, with respect to an
amount denominated in Dollars, the amount of Pounds Sterling into which the
Agent could, in accordance with its practice from time to time in the interbank
foreign exchange market, convert such amount of Dollars at its spot rate of
exchange (inclusive of all reasonable related costs of conversion) applicable to
the relevant transaction at or about 10:00 A.M., Charlotte, North Carolina time,
on such date.
13
"Foreign Currency Loans" shall have the meaning assigned to such term
in Section 2.5(a).
"Foreign Currency Note" means a promissory note of Xxxx Europe in favor
of a Lender delivered pursuant to Section 2.5(e) and evidencing the Foreign
Currency Loans of such Lender, as such promissory note may be amended, modified,
restated or replaced from time to time.
"Foreign Letter of Credit" means any letter of credit issued by the
Issuing Lender for the account of Xxxx Europe in accordance with the terms of
Section 2.6.
"Foreign LOC Committed Amount" shall have the meaning assigned to such
term in Section 2.6.
"Foreign LOC Obligations" means, at any time, the sum of (i) the
maximum amount which is, or at any time thereafter may become, available to be
drawn under Foreign Letters of Credit then outstanding, assuming compliance with
all requirements for drawings referred to in such Foreign Letters of Credit plus
(ii) the aggregate amount of all drawings under Foreign Letters of Credit
honored by the Issuing Lender but not theretofore reimbursed.
"Foreign Subsidiary means, with respect to any Person, any Subsidiary
of such Person which is not a Domestic Subsidiary.
"Fresno Asset Sale" means the sale by Xxxx of its former distribution
center and related assets located in Fresno, California and having a book value
of not more than $1,950,000.
"Funded Indebtedness" means, with respect to any Person, without
duplication, (i) all Indebtedness of such Person for borrowed money, (ii) all
purchase money Indebtedness of such Person, including without limitation the
principal portion of all obligations of such Person under Capital Leases, (iii)
all Guaranty Obligations of such Person with respect to outstanding Funded
Indebtedness of another Person, (iv) with respect to Xxxx, the outstanding
Attributed Principal Amount under any Permitted Receivables Financing and (v)
all Funded Indebtedness of another Person secured by a Lien on any Property of
such Person, whether or not such Funded Indebtedness has been assumed. The
Funded Indebtedness of any Person shall include the Funded Indebtedness of any
partnership or joint venture in which such Person is a general partner or joint
venturer.
"GAAP" means generally accepted accounting principles in the United
States applied on a consistent basis and subject to the terms of Section 1.3.
14
"Governmental Authority" means any Federal, state, local or foreign
court or governmental agency, authority, instrumentality or regulatory body.
"Guarantor" means:
(i) with respect to the Xxxx Obligations, (A) each of those Persons
identified as a "Guarantor" on the signature pages hereto and (B) each
Additional Credit Party which may hereafter execute a Joinder
Agreement, together with the successors and permitted assigns of any
such Person referred to in clause (A) or (B) of this clause (i); and
(ii) with respect to the Xxxx Europe Obligations, (A) Xxxx, (B) each
of those Persons identified as a "Guarantor" on the signature pages
hereto and (C) each Additional Credit Party which may hereafter execute
a Joinder Agreement, together with the successors and permitted assigns
of any such Person referred to in clause (A), (B) or (C) of this clause
(ii).
"Guaranty Obligations" means, with respect to any Person, without
duplication, any obligations of such Person (other than endorsements in the
ordinary course of business of negotiable instruments for depositor collection)
guaranteeing or intended to guarantee any Indebtedness of any other Person in
any manner, whether direct or indirect, and including without limitation any
obligation, whether or not contingent, (i) to purchase any such Indebtedness or
any Property constituting security therefor, (ii) to advance or provide funds or
other support for the payment or purchase of any such Indebtedness or to
maintain working capital, solvency or other balance sheet condition of such
other Person (including without limitation keep well agreements, maintenance
agreements, comfort letters issued to a creditor of any non-Affiliate or similar
agreements or arrangements) for the benefit of any holder of Indebtedness of
such other Person, (iii) to lease or purchase Property, securities or services
primarily for the purpose of assuring the holder of such Indebtedness, or (iv)
to otherwise assure or hold harmless the holder of such Indebtedness against
loss in respect thereof. The amount of any Guaranty Obligation under the Credit
Agreement shall (subject to any limitations set forth therein) be deemed to be
an amount equal to the outstanding principal amount (or maximum principal
amount, if larger) of the Indebtedness in respect of which such Guaranty
Obligation is made.
"Xxxx" shall have the meaning assigned to such term in the heading
hereof.
"Xxxx Data" means Xxxx Data Products, Inc., a Delaware corporation and
a Wholly Owned Subsidiary of Xxxx.
"Xxxx Europe" shall have the meaning assigned to such term in the
heading hereof.
15
"Xxxx Europe Obligations" means, without duplication, all of the
obligations of Xxxx Europe to the Lenders (including the Issuing Lender) and
the Agent, whenever arising, under the Credit Agreement, the Foreign Currency
Notes or any of the other Credit Documents.
"Xxxx Holding" means Xxxx Holdings, Inc., a Delaware corporation and a
Wholly Owned Subsidiary of Xxxx.
"Xxxx Obligations" means without duplication, all (i) of the
obligations of Xxxx to the Lenders (including the Issuing Lender) and the Agent,
whenever arising, under the Credit Agreement, the Notes or any of the other
Credit Documents and (ii) all liabilities and obligations, whenever arising,
owing from Xxxx to any Lender or any affiliate of a Lender arising under
interest rate protection agreements, foreign currency exchange agreements,
commodity purchase or option agreements or other interest or exchange rate or
commodity price hedging agreements.
"Xxxx X-Acto" means Xxxx X-Acto, Inc., a Pennsylvania corporation and a
Wholly Owned Subsidiary of Xxxx.
"Indebtedness" of any Person means (i) all obligations of such Person
for borrowed money, (ii) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, or upon which interest payments are
customarily made, (iii) all obligations of such Person under conditional sale or
other title retention agreements relating to Property purchased by such Person
(other than customary reservations or retentions of title under agreements with
suppliers entered into in the ordinary course of business), (iv) all obligations
of such Person issued or assumed as the deferred purchase price of Property or
services purchased by such Person (other than trade debt incurred in the
ordinary course of business and due within twelve (12) months of the incurrence
thereof) which would appear as liabilities on a balance sheet of such Person,
(v) all obligations of such Person under take-or-pay or similar arrangements or
under commodities agreements, (vi) all Indebtedness of others secured by (or for
which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on, or payable out of the proceeds of
production from, Property owned or acquired by such Person, whether or not the
obligations secured thereby have been assumed, (vii) all Guaranty Obligations of
such Person, (viii) the principal portion of all obligations of such Person
under Capital Leases, (ix) all obligations of such Person in respect of interest
rate protection agreements, foreign currency exchange agreements, commodity
purchase or option agreements or other interest or exchange rate or commodity
price hedging agreements, (x) the maximum amount of all letters of credit issued
or bankers' acceptances facilities created for the account of such Person and,
without duplication, all drafts drawn thereunder (to the extent unreimbursed),
(xi) with respect to Xxxx, the outstanding Attributed Principal Amount under any
Permitted Receivables Financing and (xii) all preferred stock issued by such
Person and required by the terms thereof to be redeemed, or for which mandatory
sinking fund payments are due, by a fixed date. The Indebtedness of any Person
shall include the Indebtedness of any partnership or joint venture in which
such Person is a general partner or a joint venturer.
16
"Interbank Offered Rate" means, for the Interest Period for each
Eurodollar Loan comprising part of the same borrowing (including conversions,
extensions and renewals), a per annum interest rate equal to (i) with respect to
any Revolving Loan that is a Eurodollar Loan, for the Interest Period applicable
thereto, the per annum rate of interest determined by the Agent on the basis of
the offered rates for deposits in Dollars (for a period of time corresponding to
such Interest Period and commencing on the first day of such Interest Period)
which appear on Telerate Page 3750 as of 11:00 a.m. (London time) two Business
Days before the first day of such Interest Period (provided that if at least two
such offered rates appear on Telerate Page 3750, the rate in respect of such
Interest Period will be the arithmetic mean of such offered rates), and (ii)
with respect to any Foreign Currency Loan, for the Interest Period applicable
thereto, the sum of (a) the per annum rate of interest determined by the Agent
on the basis of the offered rates for deposits in Pounds Sterling (for a period
of time corresponding to such Interest Period and commencing, on the first day
of such Interest Period) which appear on Telerate Page 3750 as of 11:00 a.m.
(London time) two Business Days before the first day of such Interest Period
(provided that if at least two such offered rates appear on Telerate Page 3750,
the rate in respect of such Interest Period will be the arithmetic mean of such
offered rates) plus (b) the applicable MLA Cost. If for any reason the foregoing
rates are unavailable from the Telerate service, then the Interbank Offered Rate
shall be a market rate for the applicable Loan for the applicable Interest
Period as determined by the Agent plus, in the case of any Foreign Currency
Loan, the applicable MLA Cost.
"Interest Payment Date" means (i) as to any Base Rate Loan, the last
day of each March, June, September and December, the date of repayment of
principal of such Loan and the Termination Date and (ii) as to any Eurodollar
Loan, the last day of each Interest Period for such Loan and on the Termination
Date, and in addition where the applicable Interest Period is more than 3
months, then also on the date 3 months from the beginning of the Interest
Period, and each 3 months thereafter. If an Interest Payment Date falls on a
date which is not a Business Day, such Interest Payment Date shall be deemed to
be the next succeeding Business Day, except that in the case of Eurodollar Loans
where the next succeeding Business Day falls in the next succeeding calendar
month, then on the next preceding Business Day.
"Interest Period" means (i) as to Eurodollar Loans, a period of one,
two, three or six month's duration, as the applicable Borrower may elect,
commencing in each case, on the date of the borrowing (including conversions,
extensions and renewals), (ii) as to Competitive Loans, a period commencing in
each case on the date of the borrowing and ending on the date specified in the
applicable Competitive Bid whereby the offer to make such Competitive Loan was
extended (such ending date in any event to be not less than 7 nor more than 180
days from the date of the borrowing) and (iii) as to Swingline Loans, a period
commencing in each case on the date of the borrowing and ending on the date
agreed to by Xxxx and the Swingline Lender in accordance with the provisions of
Section 2.4(b)(i) (such ending date in any event to be not more than seven (7)
Business Days from the date of borrowing); provided, however, (A) if any
Interest Period would end on a day which is not a Business Day, such Interest
Period shall be extended to the next succeeding Business Day (except that in the
case of Eurodollar Loans where the next succeeding Business Day falls in the
next succeeding calendar month, then on the next preceding Business Day), (B) no
Interest Period shall extend beyond the Termination Date, and (C) in the case of
Eurodollar Loans, where an Interest Period begins on a day for which there is no
numerically corresponding day in the calendar month in which the Interest Period
is to end, such Interest Period shall end on the last day of such calendar
month.
17
"Interim Foreign Currency Rate" means, for any day, with respect to any
Foreign Currency Loan or any unreimbursed drawing under a Foreign Letter of
Credit, a rate per annum equal to the sum of (i) the average rate at which
overnight deposits in Pounds Sterling and approximately equal in principal
amount to the applicable Foreign Currency Loan or unreimbursed drawing under a
Foreign Letter of Credit are obtainable by the Agent (or, in the case of any
Foreign Letter of Credit, the Issuing Lender) on such day in the interbank
market, adjusted to reflect any direct or indirect costs of obtaining such
deposits plus (ii) the applicable MLA Cost. The Interim Foreign Currency Rate
shall be determined for each day by the Agent or Issuing Lender, as appropriate,
and such determination shall be conclusive absent manifest error.
"Investment", in any Person, means any loan or advance to such Person,
any purchase or other acquisition of any capital stock, warrants, rights,
options, obligations or other securities of such Person, any capital
contribution to such Person or any other investment in such Person, including,
without limitation, any Guaranty Obligation incurred for the benefit of such
Person.
"Issuing Lender" means NationsBank.
"Issuing Lender Fees" shall have the meaning assigned to such term in
Section 3.5(b)(iii).
"Joinder Agreement" means a Joinder Agreement substantially in the form
of Schedule 7.12, executed and delivered by an Additional Credit Party in
accordance with the provisions of Section 7.12.
"Lenders" means each of the Persons identified as a "Lender" on the
signature pages hereto, and each Person which may become a Lender by way of
assignment in accordance with the terms of Section 11.3(b), together with their
successors and permitted assigns.
"Letter of Credit" means any Domestic Letter of Credit or any Foreign
Letter of Credit.
18
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, security interest, encumbrance, lien (statutory or otherwise),
preference, priority or charge of any kind (including any agreement to give any
of the foregoing, any conditional sale or other title retention agreement, any
financing or similar statement or notice filed under the Uniform Commercial Code
as adopted and in effect in the relevant jurisdiction or other similar recording
or notice statute, and any lease in the nature thereof).
"Loan" or "Loans" means the Revolving Loans (or a portion of any
Revolving Loan bearing interest at the Base Rate or the Eurodollar Rate and
referred to as a Base Rate Loan or a Eurodollar Loan), the Competitive Loans,
the Swingline Loans (or any Swingline Loan bearing interest at the Base Rate or
the Quoted Rate and referred to as a Base Rate Loan or a Quoted Rate Swingline
Loan) and/or the Foreign Currency Loans (or any Foreign Currency Loan referred
to as a Eurodollar Loan), individually or collectively, as appropriate.
"LOC Commitment" means the commitment of the Issuing Lender to (i)
issue Domestic Letters of Credit in an aggregate face amount at any time
outstanding (together with the amounts of any unreimbursed drawings thereon) of
up to the Domestic LOC Committed Amount and (ii) issue Foreign Letters of Credit
in an aggregate face amount at any time outstanding (together with the amounts
of any unreimbursed drawings thereon) of up to the Foreign LOC Committed Amount.
"LOC Documents" means, with respect to any Letter of Credit, such
Letter of Credit, any amendments thereto, any documents delivered in connection
therewith, any application therefor, and any agreements, instruments, guarantees
or other documents (whether general in application or applicable only to such
Letter of Credit) governing or providing for (i) the rights and obligations of
the parties concerned or at risk or (ii) any collateral security for such
obligations.
"LOC Obligations" means, collectively, the Domestic LOC Obligations and
the Foreign LOC Obligations.
"Material Adverse Effect" means a material adverse effect on (i) the
condition (financial or otherwise), operations, business, assets, liabilities or
prospects of Xxxx and its Subsidiaries taken as a whole, (ii) the ability of any
Credit Party to perform any material obligation under the Credit Documents or
(iii) the material rights and remedies of the Lenders under the Credit
Documents.
"Material Subsidiary" means (i) each of Xxxxx, Xxxx Data, Xxxx
Holdings, Xxxx X-Acto and Seal and (ii) any other direct or indirect Domestic
Subsidiary of Xxxx which at any time on or after the Closing Date has total
assets (as determined in accordance with GAAP) equal to or greater than
$1,000,000, provided that the aggregate total assets (as determined in
accordance with GAAP) at any time of all Subsidiaries of Xxxx excluded from this
definition of "Material Subsidiary" shall not exceed 10% of Consolidated Total
Assets as of the then most recent Calculation Date with respect to which the
Agent shall have received the Required Financial Information.
19
"Materials of Environmental Concern" means any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as such
in or under any Environmental Laws, including, without limitation, asbestos,
polychlorinated biphenyls and urea-formaldehyde insulation.
"MLA Cost" means, with respect to any Foreign Currency Loan made by any
Lender, the cost imputed to such Lender of compliance with the Mandatory Liquid
Assets requirements of the Bank of England during the Interest Period applicable
to such Foreign Currency Loan, expressed as a rate per annum and determined in
accordance with Schedule 1.1B.
"Moody's" means Xxxxx'x Investors Service, Inc., or any successor or
assignee of the business of such company in the business of rating securities.
"Multiemployer Plan" means a Plan which is a multiemployer plan as
defined in Sections 3(37) or 4001 (a)(3) of ERISA.
"Multiple Employer Plan" means a Plan which Xxxx, any Subsidiary of
Xxxx or any ERISA Affiliate and at least one employer other than Xxxx, any
Subsidiary of Xxxx or any ERISA Affiliate are contributing sponsors.
"NationsBank" means NationsBank, N.A. and its successors.
"Net Proceeds" means the gross proceeds received by Xxxx or any of its
Subsidiaries from time to time in connection with any Asset Sale or Equity
Transaction, net of (i) the out-of-pocket costs and expenses incurred by such
Person in connection with and attributable to such Asset Sale or Equity
Transaction, as applicable, and (ii) in the case of any Asset Sale, the amount
used to repay any Indebtedness that both (a) was incurred to finance the
acquisition or construction by Xxxx or any of its Subsidiaries of the related
asset (or incurred as a refinancing of any such acquisition or construction
Indebtedness) and (b) is secured by a Lien on such related asset.
"Non-Excluded Taxes" means such term as is defined in Section 3.10.
"Note" means any Revolving Note, any Competitive Note, the Swingline
Note or any Foreign Currency Note, as the context may require.
"Notice of Borrowing" means a written notice of borrowing in
substantially the form of Schedule 1.1C, as required by Section 2.1(b)(i) or
Section 2.5(b)(i).
"Notice of Extension/Conversion" means the written notice of extension
or conversion in substantially the form of Schedule 1.1D, as required Section
3.2.
20
"Operating Lease" means, as applied to any Person, any lease
(including, without limitation, leases which may be terminated by the lessee at
any time) of any Property (whether real, personal or mixed) which is not a
Capital Lease other than any such lease in which that Person is the lessor.
"Participation Interest" means, the extension of credit by a Lender by
way of a purchase of a participation in any Letters of Credit or LOC Obligations
as provided in Section 2.2(c) or Section 2.6(c), in Swingline Loans as provided
in Section 2.4(b)(iii) or in any Loans as provided in Section 3.13.
"PBGC" means the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA and any successor thereof.
"Permitted Investments" means Investments which are either (i) cash and
Cash Equivalents; (ii) accounts receivable created, acquired or made by Xxxx or
any of its Subsidiaries in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms; (iii) Investments
consisting of stock, obligations, securities or other property received by Xxxx
or any of its Subsidiaries in settlement of accounts receivable (created in the
ordinary course of business) from bankrupt obligors; (iv) Investments existing
as of the Closing Date and set forth in Schedule 1.1E; (v) Investments in Xxxx
Europe and any Subsidiary of Xxxx which is a Guarantor; (vi) Investments in any
Subsidiary of Xxxx which is not a Guarantor, provided that the aggregate
outstanding principal amount of all such Investments plus all investments made
pursuant to subsection (xv) of this definition shall not exceed, as of the date
made, 10% of Consolidated Net Worth as of the then most recent Calculation Date
with respect to which the Agent shall have received the Required Financial
Information; (vii) Guaranty Obligations permitted by Section 8.1; (viii)
acquisitions permitted by Section 6.15 and Section 8.4(c); (ix) transactions
permitted by Section 8.8; (x) loans to directors, officers, employees, agents,
customers or suppliers that do not exceed an aggregate principal amount of
$1,000,000 at any one time outstanding; (xi) Investments received as
consideration in connection with or arising by virtue of any merger,
consolidation, sale or other transfer of assets permitted under Section 8.4;
(xii) Investments by Xxxx in a Subsidiary or Affiliate in connection with a
Permitted Receivables Financing; (xiii) intercompany Indebtedness of Xxxxx, Seal
and Xxxx Europe to Xxxx incurred in the ordinary course of business and
consistent with the past practices of such Persons or for cash management
purposes and, in the case of Xxxx Europe, not exceeding $10,000,000 at any time
outstanding; (xiv) in the case of any Foreign Subsidiary of Xxxx, Investments
which may be denominated in a currency other than Dollars, having similar
liquidity, duration and credit quality of issuer as Investments of the types
described in the definition of "Cash Equivalents" set forth in this Section 1.1;
(xv) Investments in joint ventures and partnerships, provided that the aggregate
outstanding principal amount of all such Investments plus all Investments made
pursuant to subsection (vi) of this definition shall not exceed, as of the
date made, 10% of Consolidated Net Worth as of the then most recent Calculation
Date with respect to which the Agent shall have received the Required Financial
Information; and (xvi) other Investments of types not otherwise described under
subsections (i) - (xv) of this definition, provided that all such Investments
made pursuant to this subsection (xvi) shall not exceed an aggregate principal
amount of $2,000,000 at any one time outstanding.
21
"Permitted Liens" means:
(1) Liens in favor of the Agent on behalf of the Lenders;
(ii) Liens (other than Liens created or imposed under ERISA) for
taxes, assessments or governmental charges or levies not yet due or
Liens for taxes being contested in good faith by appropriate
proceedings for which adequate reserves determined in accordance with
GAAP have been established (and as to which the Property subject to any
such Lien is not yet subject to foreclosure, sale or loss on account
thereof);
(iii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and suppliers and other liens
imposed by law or pursuant to customary reservations or retentions of
title arising in the ordinary course of business, provided that such
Liens secure only amounts not yet due and payable or, if due and
payable, are being contested in good faith by appropriate proceedings
for which adequate reserves determined in accordance with GAAP have
been established (and as to which the Property subject to any such Lien
is not yet subject to foreclosure, sale or loss on account thereof);
(iv) Liens (other than Liens created or imposed under ERISA) incurred
or deposits made by Xxxx or any of its Subsidiaries in the ordinary
course of business in connection with workers' compensation,
unemployment insurance and other types of social security, or to secure
the performance of tenders, statutory obligations, bids, leases,
government contracts, performance and return-of-money bonds and other
similar obligations (exclusive of obligations for the payment of
borrowed money);
(v) Liens in connection with attachments or judgments (including
judgment or appeal bonds) provided that the judgments secured shall,
within 60 days after the entry thereof, have been discharged or
execution thereof stayed pending appeal, or shall have been discharged
within 30 days after the expiration of any such stay;
(vi) easements, rights-of-way, restrictions (including zoning
restrictions), minor defects or irregularities in title and other
similar charges or encumbrances not, in any material respect, impairing
the use of the encumbered Property for its intended purposes;
22
(vii) Liens on Property securing purchase money Indebtedness
(including Capital Leases) to the extent permitted under Section
8.1(c), provided that any such Lien attaches to such Property
concurrently with or within 90 days after the acquisition thereof;
(viii) leases or subleases granted to others not interfering in any
material respect with the business of any Credit Party;
(ix) any interest of title of a lessor under, and Liens arising from
UCC financing statements (or equivalent filings, registrations or
agreements in foreign jurisdictions) relating to, leases permitted by
the Credit Agreement;
(x) Liens created or deemed to exist in connection with a Permitted
Receivables Financing (including any related filings of any financing
statements), but only to the extent that any such Lien relates to
the applicable receivables and related property actually sold,
contributed or otherwise conveyed pursuant to such transaction;
(xi) normal and customary rights of setoff upon deposits of cash in
favor of banks or other depository institutions;
(xii) Liens existing as of the Closing Date and set forth on Schedule
1.1F; provided that (a) no such Lien shall at any time be extended to
or cover any property of any Credit Party other than the property
subject thereto on the Closing Date and (b) the principal amount of the
Indebtedness secured by such Liens shall not be increased; and
(xiii) other Liens; provided that the aggregate outstanding principal
amount of all Indebtedness secured by such Liens plus the aggregate
outstanding principal amount of all Indebtedness of all Subsidiaries of
Xxxx plus the aggregate outstanding obligations incurred in
transactions permitted by Section 8.12 shall not, at any time, exceed
20% of Consolidated Net Worth as of the then most recent Calculation
Date with respect to which the Agent shall have received the Required
Financial Information.
"Permitted Receivables Financing" means any transaction involving one
or more sales, contributions or other conveyances by Xxxx of any accounts
receivable to a Subsidiary or Affiliate of Xxxx (with respect to any such
transaction, the "Receivables Financing SPC"), which Receivables Financing SPC
then (x) sells (as determined in accordance with GAAP) any such receivables (or
an interest therein) to any Person that is not a Subsidiary or Affiliate of Xxxx
(with respect to any such transaction, the "Receivables Financier"), (y) borrows
from such Receivables Financier and secures such borrowings by a pledge of such
receivables or (z) otherwise finances its acquisition of such receivables and,
in connection therewith, conveys an interest in such receivables to the
Receivables Financier, provided that (i) the aggregate Attributed Principal
Amount for all such receivables financings shall not at any time exceed
$35,000,000, (ii) such receivables financing shall not involve any recourse to
Xxxx or any of its Subsidiaries for any reason other than (A) repurchases of
non-eligible receivables or (B) indemnifications for losses other than credit
losses related to the receivables sold in such financing, (iii) such receivables
financing shall not include any Guaranty Obligations of Xxxx or any of its
Subsidiaries, (iv) the Agent shall be reasonably satisfied with the structure of
and documentation for any such transaction and that the terms of such
transaction, including the discount at which receivables are sold and any
termination events, shall be (in the good faith understanding of the Agent)
consistent with those prevailing in the market for similar transactions
involving a receivables originator/servicer of similar credit quality and a
receivables pool of similar characteristics and (v) the documentation for such
transaction shall not be amended or modified without the prior written approval
of the Agent.
23
"Person" means any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other enterprise
(whether or not incorporated) or any Governmental Authority.
"Plan" means any employee benefit plan (as defined in Section 3(3) of
ERISA) which is covered by ERISA and with respect to which Xxxx, any Subsidiary
of Xxxx or any ERISA Affiliate is (or, if such plan were terminated at such
time, would under Section 4069 of ERISA be deemed to be) an "employer" within
the meaning of Section 3(5) of ERISA.
"Pounds Sterling" means the lawful currency of the United Kingdom.
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by NationsBank as its prime rate in effect at its principal
office in Charlotte, North Carolina, with each change in the Prime Rate being
effective on the date such change is publicly announced as effective (it being
understood and agreed that the Prime Rate is a reference rate used by
NationsBank in determining interest rates on certain loans and is not intended
to be the lowest rate of interest charged on any extension of credit by
NationsBank to any debtor).
"Pro Forma Basis" means, with respect to any transaction, that such
transaction shall be deemed to have occurred as of the first day of the four
fiscal-quarter period ending as of the most recent Calculation Date preceding
the date of such transaction with respect to which the Agent has received the
Required Financial Information. As used herein, "transaction" means (i) any
incurrence, assumption or retirement of Indebtedness as referred to in Section
8.1(i)(i), (ii) any sale or other disposition of assets as referred to in
Section 8.3(b)(iv) or (iii) any acquisition of capital stock or securities or
any purchase, lease or other acquisition of Property as referred to in Section
8.4(c). With respect to any transaction of the type described in clause (i)
above regarding Indebtedness which has a floating or formula rate, the implied
rate of interest for such Indebtedness for the applicable period for purposes of
this definition shall be determined by utilizing the rate which is or would be
in effect with respect to such Indebtedness as at the relevant date of
determination.
24
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible.
"Quoted Rate" means, with respect to any Quoted Rate Swingline Loan,
the fixed percentage rate per annum offered by the Swingline Lender and accepted
by Xxxx with respect to such Swingline Loan as provided in accordance with the
provisions of Section 2.4.
"Quoted Rate Swingline Loan" means a Swingline Loan bearing interest at
a Quoted Rate.
"Receivables Financier" shall have the meaning assigned to such term in
the definition of "Permitted Receivables Financing" set forth in this Section
1.1.
"Regulation G, T, U, or X" means Regulation G, T, U or X, respectively,
of the Board of Governors of the Federal Reserve System as from time to time in
effect and any successor to all or a portion thereof.
"Reimbursement Date" shall have the meaning assigned to such term in
Section 2.6(d).
"Reportable Event" means any of the events set forth in Section 4043(c)
of ERISA, other than those events as to which the post-event notice requirement
is waived under subsections .13, .14, .18, .19, or .20 of PBGC Reg. Section
2615.
"Required Financial Information" means, with respect to the applicable
Calculation Date, (i) the financial statements of Xxxx required to be delivered
pursuant to Section 7.1(a) or (b) for the fiscal period or quarter ending as of
such Calculation Date, and (ii) the certificate of the chief financial officer,
controller or treasurer of Xxxx required by Section 7.1(c) to be delivered with
the financial statements described in clause (i) above.
"Required Lenders" means, at any time, Lenders which are then in
compliance with their obligations under the Credit Agreement (as determined by
the Agent) and holding in the aggregate at least 51% of (i) the Commitments to
make Revolving Loans or (ii) if the Commitments have been terminated, the
outstanding Loans and Participation Interests.
"Requirement of Law" means, as to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its material property is subject.
25
"Restricted Payment" means (i) any dividend or other distribution,
direct or indirect, on account of any shares of any class of stock of Xxxx or
any of its Subsidiaries, now or after the Closing Date outstanding, (ii) any
redemption, retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any shares of any class of stock
of Xxxx or any of its Subsidiaries, now or after the Closing Date outstanding
and (iii) any payment made to retire, or to obtain the surrender of, any
outstanding warrants, options or other rights to acquire shares of any class of
stock of Xxxx or any of its Subsidiaries, now or after the Closing Date
outstanding.
"Revolving Commitment" means, with respect to each Lender, the
commitment of such Lender, in an aggregate principal amount at any time
outstanding of up to such Lender's Revolving Commitment Percentage of the
Revolving Committed Amount, (A) to make Revolving Loans in accordance with the
provisions of Section 2.1(a), (B) to purchase participation interests in
Domestic Letters of Credit in accordance with the provisions of Section 2.2(c),
(C) to purchase participation interests in the Swingline Loans in accordance
with the provisions of Section 2.4(c), (D) to make Foreign Currency Loans in
accordance with the provisions of Section 2.5(a) and (E) to purchase
participation interests in Foreign Letters of Credit in accordance with the
provisions of Section 2.6(c).
"Revolving Committed Amount" shall have the meaning assigned to such
term in Section 2.1 (a).
"Revolving Loans" shall have the meaning assigned to such term in
Section 2.1 (a).
"Revolving Note" means a promissory note of Xxxx in favor of a Lender
delivered pursuant to Section 2.1 (e) and evidencing the Revolving Loans of
such Lender, as such promissory note may be amended, modified, restated or
replaced from time to time.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw Hill,
Inc., or any successor or assignee of the business of such division in the
business of rating securities.
"Seal" means Seal Products, Inc., a Delaware corporation and a Wholly
Owned Subsidiary of Xxxx.
"Senior Note" means any of the 7.86% Senior Notes due August 1, 2011,
in an aggregate original principal amount of $50,000,000, issued by Xxxx in
favor of the Senior Noteholders pursuant to the Senior Note Agreement, as the
same may be amended, modified, supplemented or replaced from time to time.
26
"Senior Note Agreement" means that certain Note Purchase Agreement,
dated as of August 1, 1996, by and between Xxxx and the Senior Noteholders, as
the same may be amended, modified, supplemented or replaced from time to time.
"Senior Noteholder" means any of the holders from time to time of the
Senior Notes.
"Single Employer Plan" means any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Solvent" or "Solvency" means, with respect to any Person as of a
particular date, that on such date (i) such Person is able to realize upon its
assets and pay its debts and other liabilities, contingent obligations and other
commitments as they mature in the normal course of business, (ii) 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 in their ordinary course, (iii) such Person is not engaged in a business
or a transaction, and is not. about to engage in a business or a transaction,
for which such Person's Property would constitute unreasonably small capital
after giving due consideration to the prevailing practice in the industry in
which such Person is engaged or is to engage, (iv) the fair value of the
Property of such Person is greater than the total amount of liabilities,
including, without limitation, contingent liabilities, of such Person and (v)
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 as they become absolute and matured. In computing the amount of
contingent liabilities at any time, it is intended that such liabilities will be
computed at the amount which, in light of all the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability.
"Standby Letter of Credit Fee" shall have the meaning assigned to such
term in Section 3.5(b)(i).
"Subsidiary" means, as to any Person, (a) any corporation more than 50%
of whose stock of any class or classes having by the terms thereof ordinary
voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time, any class or classes of such
corporation shall have or might have voting power by reason of the happening of
any contingency) is at the time owned by such Person directly or indirectly
through Subsidiaries, and (b) any partnership, association, joint venture or
other entity in which such Person directly or indirectly through Subsidiaries
has more than 50% equity interest at any time.
"Swingline Commitment" means the commitment of the Swingline Lender to
make Swingline Loans in an aggregate principal amount at any time outstanding of
up to the Swingline Committed Amount.
27
"Swingline Committed Amount" shall have the meaning assigned to such
term in Section 2.4(a).
"Swingline Lender" means NationsBank.
"Swingline Loan" shall have the meaning assigned to such term in
Section 2.4(a).
"Swingline Note" means the promissory note of Xxxx in favor of the
Swingline Lender in the original principal amount of $2,000,000, as such
promissory note may be amended, modified, restated or replaced from time to
time.
"Termination Date" means December 31, 2000.
"Termination Event" means (i) with respect to any Plan, the occurrence
of a Reportable Event or the substantial cessation of operations (within the
meaning of Section 4062(e) of ERISA); (ii) the withdrawal by Xxxx, any
Subsidiary of Xxxx or any ERISA Affiliate from a Multiple Employer Plan during a
plan year in which it was a substantial employer (as such term is defined in
Section 4001(a)(2) of ERISA), or the termination of a Multiple Employer Plan;
(iii) the distribution of a notice of intent to terminate or the actual
termination of a Plan pursuant to Section 4041(a)(2) or 4041A of ERISA; (iv) the
institution of proceedings to terminate or the actual termination of a Plan by
the PBGC under Section 4042 of ERISA; (v) any event or conditon which might
constitute grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan; or (vi) the complete or
partial withdrawal of Xxxx, any subsidiary of Xxxx or any ERISA Affiliate from a
Multiemployer Plan.
"Trade Letter of Credit Fee" shall have the meaning assigned to such
term in Section 3.5(b)(ii).
"Voting Stock" means, with respect to any Person, capital stock issued
by such Person the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or persons
performing similar functions) of such Person, even though the right so to vote
has been suspended by the happening of such a contingency.
"Wholly Owned Subsidiary" of any Person means any Subsidiary 100% of
whose Voting Stock or other equity interests is at the time owned by such Person
directly or indirectly through other Wholly Owned Subsidiaries.
1.2 Computation of Time Periods.
For purposes of computation of periods of time hereunder, the word
"from" means "from and including" and the words "to" and "until" each mean "to
but excluding."
28
1.3 Accounting Terms.
Except as otherwise expressly provided herein, all accounting terms used
herein shall be interpreted, and all financial statements and certificates and
reports as to financial matters required to be delivered to the Lenders under
the Credit Agreement shall be prepared, in accordance with GAAP applied on a
consistent basis. All calculations made for the purposes of determining
compliance with the Credit Agreement shall (except as otherwise expressly
provided in the Credit Agreement) be made by application of GAAP applied on a
basis consistent with the most recent annual or quarterly financial statements
delivered pursuant to Section 7.1 (or, prior to the delivery of the first
financial statements pursuant to Section 7.1, consistent with the financial
statements as at December 3, 1995); provided, however, if (a) Xxxx shall object
to determining such compliance on such basis at the time of delivery of such
financial statements due to any change in or application of GAAP or the rules
promulgated with respect thereto or (b) the Agent or the Required Lenders shall
so object in writing within 30 days after delivery of such financial
statements, then such calculations shall be made on a basis consistent with the
most recent financial statements delivered by Xxxx to the Lenders as to which no
such objection shall have been made.
SECTION 2
CREDIT FACILITIES
-----------------
2.1 Revolving Loans.
(a) Revolving Commitment. Subject to the terms and conditions of the
Credit Agreement and in reliance upon the representations and warranties set
forth in the Credit Agreement, each Lender severally agrees to make available to
Xxxx such Lender's Commitment Percentage of revolving credit loans in Dollars
("Revolving Loans") from time to time from the Closing Date until the
Termination Date, or such earlier date as the Revolving Commitments shall have
been terminated as provided in the Credit Agreement for the purposes hereinafter
set forth; provided further, however, that the sum of the aggregate principal
amount of outstanding Revolving Loans shall not exceed SEVENTY-FIVE MILLION
DOLLARS (S75,000,000) (as such aggregate maximum amount may be reduced from time
to time as provided in Section 3.4, the "Revolving Committed Amount"); provided,
further, (i) with regard to each Lender individually, such Lender's outstanding
Revolving Loans shall not exceed such Lender's Commitment Percentage of the
Revolving Committed Amount, and (ii) with regard to the Lenders collectively,
the aggregate principal amount of outstanding Revolving Loans plus Domestic LOC
Obligations outstanding plus the aggregate principal amount of outstanding
Competitive Loans plus the aggregate principal amount of outstanding Swingline
Loans plus the Dollar Amount (as determined as of the most recent Determination
Date) of the aggregate principal amount of outstanding Foreign Currency Loans
plus the Dollar Amount (as determined as of the most recent Determination Date)
of Foreign LOC Obligations outstanding shall not exceed the Revolving Committed
29
Amount. Revolving Loans may consist of Base Rate Loans or Eurodollar Loans, or a
combination thereof, as Xxxx may request, and may be repaid and reborrowed in
accordance with the provisions of the Credit Agreement; provided, however, that
no more than 12 separate Eurodollar Loans shall be outstanding at any time. For
purposes of the Credit Agreement, Eurodollar Loans with different Interest
Periods and/or in different currencies shall be considered as separate
Eurodollar Loans, even if they begin on the same date, although borrowings,
extensions and conversions may, in accordance with the provisions of the Credit
Agreement, be combined at the end of existing Interest Periods to constitute a
new Eurodollar Loan with a single Interest Period and in the same currency.
(b) Revolving Loan Borrowings.
(i) Notice of Borrowing. Xxxx shall request a Revolving Loan
borrowing by written notice (or telephone notice promptly confirmed in
writing) to the Agent not later than 12:00 Noon (Charlotte, North
Carolina time) on the Business Day of the requested borrowing in the case
of Base Rate Loans, and on the third Business Day prior to the date of
the requested borrowing in the case of Eurodollar Loans. Each such
request for borrowing shall be irrevocable and shall specify (A) that a
Revolving Loan is requested, (B) the date of the requested borrowing
(which shall be a Business Day), (C) the aggregate principal amount to be
borrowed, and (D) whether the borrowing shall be comprised of Base Rate
Loans, Eurodollar Loans or a combination thereof, and if Eurodollar Loans
are requested, the Interest Period(s) therefor. If Xxxx shall fail to
specify in any such Notice of Borrowing (I) an applicable Interest Period
in the case of a Eurodollar Loan, then such notice shall be deemed to be
a request for an Interest Period of one month, or (II) the type of
Revolving Loan requested, then such notice shall be deemed to be a
request for a Base Rate Loan. The Agent shall give notice to each Lender
promptly upon receipt of each Notice of Borrowing pursuant to this
Section 2.1(b)(i), the contents thereof and each such Lender's share of
any borrowing to be made pursuant thereto.
(ii) Minimum Amounts. Each Eurodollar Loan or Base Rate Loan
that is a Revolving Loan shall be in a minimum aggregate amount of
$2,000,000 and integral multiples of $1,000,000 in excess thereof (or the
remaining amount of the Revolving Committed Amount, if less).
(iii) Advances. Each Lender will make its Commitment
Percentage of each Revolving Loan borrowing available to the Agent for
the account of Xxxx as specified in Section 3.14(b), or in such other
manner as the Agent may specify in writing, by 1:00 P.M. (Charlotte,
North Carolina time) on the date specified in the applicable Notice of
Borrowing in Dollars and in funds immediately available to the Agent.
Such borrowing will then be made available to Xxxx by the Agent by
crediting the account of Xxxx on the books of such office with the
aggregate of the amounts made available to the Agent by the Lenders and
in like funds as received by the Agent.
30
(c) Repayment. The principal amount of all Revolving Loans shall be due
and payable in full on the Termination Date.
(d) Interest. Subject to the provisions of Section 3.1, Revolving Loans
shall bear interest at a per annum rate equal to:
(i) Base Rate Loan. During such periods as Revolving Loans
shall be comprised of Base Rate Loans, the Base Rate.
(ii) Eurodollar Loan During such periods as Revolving Loans
shall be comprised of Eurodollar Loans, the Eurodollar Rate plus the
Applicable Margin.
Interest on Revolving Loans shall be payable in arrears on each Interest Payment
Date.
(e) Revolving, Notes. The Revolving Loans made by each Lender shall be
evidenced by a duly executed promissory note of Xxxx to each Lender in
substantially the form of Schedule 2.1 (e).
2.2 Domestic Letter of Credit Subfacility.
(a) Issuance. Subject to the terms and conditions of the
Credit Agreement and of the LOC Documents, if any, and any other terms
and conditions which the Issuing Lender may reasonably require, the
Lenders will participate in the issuance by the Issuing Lender, from time
to time and in Dollars, of such Domestic Letters of Credit from the
Closing Date until the Termination Date as Xxxx may request, in a form
acceptable to the Issuing Lender; provided, however, that (i) the
Domestic LOC Obligations outstanding shall not at any time exceed TEN
MILLION DOLLARS ($10,000,000) (the "Domestic LOC Committed Amount") and
(ii) the sum of the aggregate principal amount of outstanding Revolving
Loans plus Domestic LOC Obligations outstanding plus the aggregate
principal amount of outstanding Competitive Loans plus the aggregate
principal amount of outstanding Swingline Loans plus the Dollar Amount
(as determined as of the most recent Determination Date) of the aggregate
principal amount of outstanding Foreign Currency Loans plus the Dollar
Amount (as determined as of the most recent Determination Date) of
Foreign LOC Obligations outstanding shall not at any time exceed the
aggregate Revolving Committed Amount. No Domestic Letter of Credit shall
(x) have an original expiry date more than one year from the date of
issuance or (y) as originally issued or as extended, have an expiry date
extending beyond the Termination Date. Each Domestic Letter of Credit
shall comply with the related LOC Documents. The issuance and expiry date
of each Domestic Letter of Credit shall be a Business Day.
31
(b) Notice and Reports. The request for the issuance of a Domestic
Letter of Credit shall be submitted by Xxxx to the Issuing Lender at least three
(3) Business Days prior to the requested date of issuance. The Issuing Lender
will, at least quarterly and more frequently upon request, disseminate to each
of the Lenders and Xxxx a detailed report specifying the Domestic Letters of
Credit which are then issued and outstanding and any activity with respect
thereto which may have occurred since the date of the prior report, and
including therein, among other things, the beneficiary, the face amount, expiry
date as well as any payment or expirations which may have occurred.
(c) Participation. Each Lender, upon issuance of a Domestic Letter of
Credit (or, in the case of each Existing Letter of Credit, on the Closing
Date), shall be deemed to have purchased without recourse a risk participation
from the Issuing Lender in such Domestic Letter of Credit and the obligations
arising thereunder, in each case in an amount equal to its pro rata share of the
obligations under such Domestic Letter of Credit (based on the respective
Commitment Percentages of the Lenders) and shall absolutely, unconditionally and
irrevocably assume, as primary obligor and not as surety, and be obligated to
pay in Dollars to the Issuing Lender therefor and discharge when due, its pro
rata share of the obligations arising under such Domestic Letter of Credit.
Without limiting the scope and nature of each Lender's participation in any
Domestic Letter of Credit, to the extent that the Issuing Lender has not been
reimbursed as required under the Credit Agreement or under any such Domestic
Letter of Credit, each such Lender shall pay to the Issuing Lender in Dollars
its pro rata share of such unreimbursed drawing in same day funds on the day of
notification by the Issuing Lender of an unreimbursed drawing pursuant to the
provisions of subsection (d) below. The obligation of each Lender to so
reimburse the Issuing Lender shall be absolute and unconditional and shall not
be affected by the occurrence of a Default, an Event of Default or any other
occurrence or event. Any such reimbursement shall not relieve or otherwise
impair the obligation of Xxxx to reimburse the Issuing Lender under any Domestic
Letter of Credit, together with interest as hereinafter provided. As of the
Amendment Effective Date, each Existing Letter of Credit shall be deemed for all
purposes of the Credit Agreement and the other Credit Documents to be a Domestic
Letter of Credit.
(d) Reimbursement. In the event of any drawing under any Domestic Letter
of Credit, the Issuing Lender will promptly notify Xxxx. Unless Xxxx shall
immediately notify the Issuing Lender that Xxxx intends to otherwise reimburse
the Issuing Lender for such drawing, Xxxx shall be deemed to have requested that
the Lenders make a Revolving Loan in the amount of the drawing as provided in
subsection (e) below on the related Domestic Letter of Credit, the proceeds of
which will be used to satisfy the related reimbursement obligations. Xxxx
promises to reimburse the Issuing Lender (either with the proceeds of a
Revolving Loan obtained under the Credit Agreement or otherwise) on the day of
drawing under any Domestic Letter of Credit in an amount equal to such drawing
in same
32
day funds. If Xxxx shall fail to reimburse the Issuing Lender as provided
hereinabove, the unreimbursed amount of such drawing shall bear interest at a
per annum rate equal to the Base Rate plus two percent (2%). Xxxx'x
reimbursement obligations under the Credit Agreement shall be absolute and
unconditional under all circumstances irrespective of any rights of setoff,
counterclaim or defense to payment Xxxx may claim or have against the Issuing
Lender, the Agent, the Lenders, the beneficiary of the Domestic Letter of Credit
drawn upon or any other Person, including without limitation any defense based
on any failure of Xxxx or any other Credit Party to receive consideration or the
legality, validity, regularity or unenforceability of the Domestic Letter of
Credit. The Issuing Lender will promptly notify the other Lenders of the amount
of any unreimbursed drawing and each Lender shall promptly pay to the Agent for
the account of the Issuing Lender in Dollars and in immediately available funds,
the amount of such Lender's pro rata share of such unreimbursed drawing. Such
payment shall be made on the day such notice is received by such Lender from the
Issuing Lender if such notice is received at or before 2:00 P.M. (Charlotte,
North Carolina time) otherwise such payment shall be made at or before 12:00
Noon (Charlotte, North Carolina time) on the Business Day next succeeding the
day such notice is received. If such Lender does not pay such amount to the
Issuing Lender in full upon such request, such Lender shall, on demand, pay to
the Agent for the account of the Issuing Lender interest on the unpaid amount
during the period from the date of such drawing until such Lender pays such
amount to the Issuing Lender in full at a rate per annum equal to, if paid
within two (2) Business Days of the date of drawing, the Federal Funds Rate and
thereafter at a rate equal to the Base Rate. Each Lender's obligation to make
such payment to the Issuing Lender, and the right of the Issuing Lender to
receive the same, shall be absolute and unconditional, shall not be affected by
any circumstance whatsoever and without regard to the termination of the Credit
Agreement or the Commitments, the existence of a Default or Event of Default or
the acceleration of the obligations of Xxxx under the Credit Documents and shall
be made without any offset, abatement, withholding or reduction whatsoever.
Simultaneously with the making of each such payment by a Lender to the Issuing
Lender, such Lender shall, automatically and without any further action on the
part of the Issuing Lender or such Lender, acquire a participation in an amount
equal to such payment (excluding the portion of such payment constituting
interest owing to the Issuing Lender) in the related unreimbursed drawn portion
of the Domestic LOC Obligation and in the interest thereon and in the related
LOC Documents, and shall have a claim against Xxxx with respect thereto.
(e) Repayment with Revolving Loans. On any day on which Xxxx shall have
requested, or been deemed to have requested, a Revolving Loan advance to
reimburse a drawing under a Domestic Letter of Credit, the Agent shall give
notice to the Lenders that a Revolving Loan has been requested or deemed
requested by Xxxx to be made in connection with a drawing under a Domestic
Letter of Credit, in which case a Revolving Loan advance comprised
33
solely of Base Rate Loans shall be immediately made to Xxxx by all Lenders
(notwithstanding any termination of the Commitments pursuant to Section 9.2) pro
rata based on the respective Commitment Percentages of the Lenders (determined
before giving effect to any termination of the Commitments pursuant to Section
9.2) and the proceeds thereof shall be paid directly to the Issuing Lender for
application to the respective Domestic LOC Obligations. Each such Lender hereby
irrevocably agrees to make its pro rata share of each such Revolving Loan
immediately upon any such request or deemed request in the amount, in the manner
and on the date specified in the preceding sentence notwithstanding (i) the
amount of such borrowing may not comply with the minimum amount for advances of
Revolving Loans othewise required under the Credit Agreement, (ii) whether any
conditions specified in Section 5.2 are then satisfied, (iii) whether a Default
or an Event of Default then exists, (iv) failure for any such request or deemed
request for Revolving Loan to be made by the time otherwise required under the
Credit Agreement, (v) whether the date of such borrowing is a date on which
Revolving Loans are otherwise permitted to be made under the Credit Agreement or
(vi) any termination of the Commitments relating thereto immediately prior to or
contemporaneously with such borrowing. In the event that any Revolving Loan
cannot for any reason be made on the date otherwise required above (including,
without limitation, as a result of the commencement of a proceeding under the
Bankruptcy Code with respect to Xxxx or any other Credit Party), then each such
Lender hereby agrees that it shall forthwith purchase (as of the date such
borrowing would otherwise have occurred, but adjusted for any payments received
from Xxxx on or after such date and prior to such purchase) from the Issuing
Lender in Dollars such participation in the outstanding Domestic LOC Obligations
as shall be necessary to cause each such Lender to share in such Domestic LOC
Obligations ratably (based upon the respective Commitment Percentages of the
Lenders (determined before giving effect to any termination of the Commitments
pursuant to Section 9.2)), provided that at the time any purchase of
participation pursuant to this sentence is actually made, the purchasing Lender
shall be required to pay to the Issuing Lender, to the extent not paid to the
Issuer by Xxxx in accordance with the terms of subsection (d) above, interest on
the principal amount of participation purchased for each day from and including
the day upon which such borrowing would otherwise have occurred to but excluding
the date of payment for such participation, at the rate equal to, if paid within
two (2) Business Days of the date of the Revolving Loan advance, the Federal
Funds Rate, and thereafter at a rate equal to the Base Rate.
(f) Renewal, Extension. The renewal or extension of any Domestic Letter
of Credit shall, for purposes hereof, be treated in all respects the same as the
issuance of a new Domestic Letter of Credit under the Credit Agreement.
(g) Uniform Customs and Practices. The Issuing Lender may have the
Domestic Letters of Credit be subject to The Uniform Customs and Practice for
Documentary Credits, as published as of the date of issue by the International
34
Chamber of Commerce (the "UCP"), in which case the UCP may be incorporated
therein and deemed in all respects to be a part thereof.
(h) Indemnification; Nature of Issuing Lender's Duties. (i) In addition
to its other obligations under this Section 2.2, Xxxx hereby agrees to protect,
indemnify, pay and save the Issuing Lender harmless from and against any and all
claims, demands, liabilities, damages, losses, costs, charges and expenses
(including reasonable attorneys' fees) that the Issuing Lender may incur or be
subject to as a consequence, direct or indirect, of (A) the issuance of any
Domestic Letter of Credit or (B) the failure of the Issuing Lender to honor a
drawing under a Domestic 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
government or governmental authority (all such acts or omissions, herein called
"Government Acts").
(ii) As between Xxxx and the Issuing Lender, Xxxx shall
assume all risks of the acts, omissions or misuse of any Domestic Letter
of Credit by the beneficiary thereof. The Issuing Lender shall not be
responsible: (A) for the form, validity, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any party in
connection with the application for and issuance of any Domestic Letter
of Credit, even if it should in fact prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent or forged; (B) for the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any Domestic Letter of Credit or the
rights or benefits thereunder or proceeds thereof, in whole or in part,
that may prove to be invalid or ineffective for any reason; (C) for
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; (D) for any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under a
Domestic Letter of Credit or of the proceeds thereof; and (E) for any
consequences arising from causes beyond the control of the Issuing
Lender, including, without limitation, any Government Acts. None of the
above shall affect, impair, or prevent the vesting of the Issuing
Lender's rights or powers under the Credit Agreement.
(iii) In furtherance and extension and not in limitation of
the specific provisions hereinabove set forth, any action taken or
omitted by the Issuing Lender, under or in connection with any Domestic
Letter of Credit or the related certificates, if taken or omitted in good
faith, shall not put such Issuing Lender under any resulting liability to
Xxxx or any other Credit Party. It is the intention of the parties that
the Credit Agreement shall be construed and applied to protect and
indemnify the Issuing Lender against any and all risks involved in the
issuance of the Domestic Letters of Credit, all of which risks are hereby
assumed by Xxxx (on behalf of itself and each of the other Credit
Parties), including, without limitation,
35
any and all Government Acts. The Issuing Lender shall not, in any way, be
liable for any failure by the Issuing Lender or anyone else to pay any
drawing under any Domestic Letter of Credit as a result of any Government
Acts or any other cause beyond the control of the Issuing Lender.
(iv) Nothing in this subsection (h) is intended to limit the
reimbursement obligations of Xxxx contained in subsection (d) above. The
obligations of Xxxx under this subsection (h) shall survive the
termination of the Credit Agreement. No act or omissions of any current
or prior beneficiary of a Domestic Letter of Credit shall in any way
affect or impair the rights of the Issuing Lender to enforce any right,
power or benefit under the Credit Agreement.
(v) Notwithstanding anything to the contrary contained in
this subsection (h), Xxxx shall have no obligation to indemnify the
Issuing Lender in respect of any liability incurred by the Issuing Lender
(A) arising solely out of the gross negligence or willful misconduct of
the Issuing Lender or (B) caused by the Issuing Lender's unlawful failure
to pay under any Domestic Letter of Credit.
(i) Responsibility of Issuing Lender. It is expressly understood and
agreed that the obligations of the Issuing Lender under the Credit Agreement to
the Lenders are only those expressly set forth in the Credit Agreement and that
the Issuing Lender shall be entitled to assume that the conditions precedent set
forth in Section 5.2 have been satisfied unless it shall have acquired actual
knowledge that any such condition precedent has not been satisfied; provided,
however, that nothing set forth in this Section 2.2 shall be deemed to prejudice
the right of any Lender to recover from the Issuing Lender any amounts made
available by such Lender to the Issuing Lender pursuant to this Section 2.2 in
the event that it is determined by a court of competent jurisdiction that the
payment with respect to a Domestic Letter of Credit constituted gross negligence
or willful misconduct on the part of the Issuing Lender.
(j) Conflict with LOC Documents. In the event of any conflict between the
Credit Agreement and any LOC Document, the Credit Agreement shall control.
2.3 Competitive Loan Subfacility.
(a) Competitive Loans. Subject to the terms and conditions and relying
upon the representations and warranties set forth in the Credit Agreement, Xxxx
may, from time to time from the Closing Date until the Termination Date, request
and each Lender may, in its sole discretion, agree to make available to Xxxx
Competitive Loans in Dollars; provided further, however, that (i) the aggregate
principal amount of outstanding Competitive Loans shall not at any time exceed
the lesser of (a) SEVENTY-FIVE MILLION DOLLARS ($75,000,000) or (b) the
Revolving Committed Amount (the
36
"Competitive Loan Maximum Amount"), and (ii) the sum of the aggregate principal
amount of outstanding Revolving Loans plus Domestic LOC Obligations outstanding
plus the aggregate principal amount of outstanding Competitive Loans plus the
aggregate principal amount of outstanding Swingline Loans plus the Dollar Amount
(as determined as of the most recent Determination Date) of the aggregate
principal amount of outstanding Foreign Currency Loans plus the Dollar Amount
(as determined as of the most recent Determination Date) of Foreign LOC
Obligations outstanding shall not at any time exceed the Revolving Committed
Amount. Each Competitive Loan shall be not less than $5,000,000 in the aggregate
and integral multiples of $1,000,000 in excess thereof (or the remaining portion
of the Competitive Loan Maximum Amount, if less).
(b) Competitive Bid Requests. Xxxx may solicit Competitive Bids by
delivery of a Competitive Bid Request substantially in the form of Schedule
2.3(b)-l to the Agent by 12:00 Noon (Charlotte, North Carolina time) on a
Business Day not less than one (1) nor more than four (4) Business Days prior to
the date of a requested Competitive Loan borrowing. A Competitive Bid Request
shall specify (i) the date of the requested Competitive Loan borrowing (which
shall be a Business Day), (ii) the amount of the requested Competitive Loan
borrowing and (iii) the applicable Interest Periods requested and shall be
accompanied by payment of the Competitive Bid Request Fee. The Agent shall,
promptly following its receipt of a Competitive Bid Request under this
subsection (b), notify the affected Lenders of its receipt and the contents
thereof and invite the Lenders to submit Competitive Bids in response thereto. A
form of such notice is provided in Schedule 2.3(b)-2. No more than three (3)
Competitive Bid Requests (e.g., Xxxx may request Competitive Bids for no more
than three (3) different Interest Periods at a time) shall be submitted at any
one time and Competitive Bid Requests may be made no more frequently than once
every five (5) Business Days.
(c) Competitive Bid Procedure. Each Lender may, in its sole discretion,
make one or more Competitive Bids to Xxxx in response to a Competitive Bid
Request. Each Competitive Bid must be received by the Agent not later than 10:00
A.M. (Charlotte, North Carolina time) on the Business Day next succeeding the
date of receipt by the Agent of the related Competitive Bid Request. A Lender
may offer to make all or part of the requested Competitive Loan borrowing and
may submit multiple Competitive Bids in response to a Competitive Bid Request.
The Competitive Bid shall specify (i) the particular Competitive Bid Request as
to which the Competitive Bid is submitted, (ii) the minimum (which shall be not
less than $5,000,000 and integral multiples of $1,000,000 in excess thereof) and
maximum principal amounts of the requested Competitive Loan or Loans as to which
the Lender is willing to make, and (iii) the applicable interest rate or rates
and Interest Period or Periods therefor. A form of such Competitive Bid is
provided in Schedule 2.3(c). A Competitive Bid submitted by a Lender in
accordance with the provisions hereof shall be irrevocable. The Agent shall
promptly notify Xxxx of all Competitive Bids made and the terms thereof.
(d) Submission of Competitive Bids by Agent. If the Agent, in its
capacity as a Lender, elects to submit a Competitive Bid in response to any
Competitive Bid Request,
37
it shall submit such Competitive Bid directly to Xxxx one-half of an hour
earlier than the latest time at which the other Lenders are required to submit
their Competitive Bids to the Agent in response to such Competitive Bid Request
pursuant to subsection (c) above.
(e) Acceptance of Competitive Bids. Xxxx may, in its sole and absolute
discretion, subject only to the provisions of this subsection (e), accept or
refuse any Competitive Bid offered to it. To accept a Competitive Bid, Xxxx
shall give written notification (or telephone notice promptly confirmed in
writing) substantially in the form of Schedule 2.3(e) of its acceptance of any
or all such Competitive Bids to the Agent by 11:00 A.M. (Charlotte, North
Carolina time) on the date on which notice of the Competitive Bids is given to
Xxxx by the Agent; provided, however, (i) the failure by Xxxx to give timely
notice of its acceptance of a Competitive Bid shall be deemed to be a refusal
thereof, (ii) Xxxx may accept Competitive Bids only in ascending order of rates,
(iii) the aggregate amount of Competitive Bids accepted by Xxxx shall not exceed
the principal amount specified in the Competitive Bid Request, (iv) Xxxx may
accept a portion of a Competitive Bid in the event, and to the extent,
acceptance of the entire amount thereof would cause Xxxx to exceed the principal
amount specified in the Competitive Bid Request, subject however to the minimum
amounts provided herein (and provided that where two or more Lenders submit such
a Competitive Bid at the same Competitive Bid Rate, then pro rata between or
among such Lenders) and (v) no bid shall be accepted for a Competitive Loan
unless such Competitive Loan is in a minimum principal amount of $5,000,000 and
integral multiples of $1,000,000 in excess thereof, except that where a portion
of a Competitive Bid is accepted in accordance with the provisions of clause
(iv) above, then in a minimum principal amount of $5,000,000 and integral
multiples of $1,000,000 in excess thereof (but not in any event less than the
minimum amount specified in the Competitive Bid), and in calculating the pro
rata allocation of acceptances of portions of multiple bids at a particular
Competitive Bid Rate pursuant to clause (iv) above, the amounts shall be rounded
to integral multiples of $1,000,000 in a manner which shall be in the discretion
of Xxxx. A notice of acceptance of a Competitive Bid given by Xxxx in accordance
with the provisions hereof shall be irrevocable. The Agent shall, not later than
12:00 Noon (Charlotte, North Carolina time) on the date of receipt by the Agent
of a notification from Xxxx of its acceptance and/or refusal of Competitive
Bids, notify each affected Lender of its receipt and the contents thereof. Upon
its receipt from the Agent of notification of Xxxx'x acceptance of its
Competitive Bid in accordance with the terms of this subsection (e), each
successful bidding Lender will thereupon become bound, subject to the other
applicable conditions hereof, to make the Competitive Loan in respect of which
its bid has been accepted.
(f) Funding of Competitive Loans. Each Lender which is to make a
Competitive Loan shall make its Competitive Loan borrowing available to the
Agent for the account of Xxxx at the office of the Agent specified in Section
3.14(b), or at such other office as the Agent may designate in writing, by 1:30
P.M. (Charlotte, North Carolina time) on the date specified in the Competitive
Bid Request in Dollars and in funds immediately available to the Agent. Such
borrowing will then be made available to Xxxx by crediting the account of Xxxx
on the books of such office with the aggregate of
38
the amount made available to the Agent by the applicable Competitive Loan
Lenders and in like funds as received by the Agent.
(g) Maturity of Competitive Loans. Each Competitive Loan shall mature
and be due and payable in full on the last day of the Interest Period applicable
thereto. Unless Xxxx shall give notice to the Agent otherwise, Xxxx shall be
deemed to have requested a Revolving Loan borrowing in the amount of the
maturing Competitive Loan, the proceeds of which will be used to repay such
Competitive Loan.
(h) Interest on Competitive Loans. Subject to the provisions of Section
3.1, Competitive Loans shall bear interest in each case at the Competitive Bid
Rate applicable thereto. Interest on Competitive Loans shall be payable in
arrears on each Interest Payment Date.
(i) Competitive Loan Notes. The Competitive Loans made by each Lender
shall be evidenced by a duly executed promissory note of Xxxx to each such
Lender in an original principal amount equal to the Competitive Loan Maximum
Amount and substantially in the form of Schedule 2.3(i) (such promissory note,
as amended. modified. extended, renewed or replaced from time to time is
hereinafter referred to individually as a "Competitive Note" and collectively as
the "Competitive Notes").
2.4 Swingline Loan Subfacility.
(a) Swingline Commitment. Subject to the terms and conditions hereof and
in reliance upon the representations and warranties set forth in the Credit
Agreement, the Swingline Lender, in its individual capacity, agrees to make
available to Xxxx certain revolving credit loans in Dollars (each a "Swingline
Loan" and, collectively, the "Swingline Loans") from time to time from the
Closing Date until the Termination Date for the purposes hereinafter set forth;
provided further, however, that (i) the aggregate principal amount of Swingline
Loans outstanding at any time shall not exceed TWO MILLION DOLLARS
($2,000,000.00) (the "Swingline Committed Amount"), and (ii) the aggregate
principal amount of outstanding Revolving Loans plus Domestic LOC Obligations
outstanding plus the aggregate principal amount of outstanding Competitive Loans
plus the aggregate principal amount of outstanding Swingline Loans plus the
Dollar Amount (as determined as of the most recent Determination Date) of the
aggregate principal amount of outstanding Foreign Currency Loans plus the Dollar
Amount (as determined as of the most recent Determination Date) of Foreign LOC
Obligations outstanding shall not exceed the Revolving Committed Amount.
Swingline Loans shall be made as Base Rate Loans or Quoted Rate Swingline Loans
as Xxxx may request in accordance with the provisions of this Section 2.4, and
may be repaid and reborrowed in accordance with the provisions hereof.
39
(b) Swingline Loan Advances.
(i) Notices; Disbursement. Whenever Xxxx desires a Swingline Loan
advance it shall give written notice (or telephone notice promptly confirmed in
writing) to the Swingline Lender not later than 12:00 Noon (Charlotte, North
Carolina time) on the Business Day of the requested Swingline Loan advance. Each
such notice shall be irrevocable and shall specify (A) that a Swingline Loan
advance is requested, (B) the date of the requested Swingline Loan advance
(which shall be a Business Day) and (C) the principal amount of the Swingline
Loan advance requested. Each Swingline Loan shall be made as a Base Rate Loan or
a Quoted Rate Swingline Loan and shall have such maturity date as the Swingline
Lender and Xxxx shall agree upon receipt by the Swingline Lender of any such
notice from Xxxx. The Swingline Lender shall initiate the transfer of funds
representing the Swingline Loan advance to Xxxx by 3:00 P.M. (Charlotte, North
Carolina time) on the Business Day of the requested borrowing.
(ii) Minimum Amounts. Each Swingline Loan advance shall be in a minimum
principal amount of $100,000 and in integral multiples of $50,000 in excess
thereof (or the remaining amount of the Swingline Committed Amount, if less).
(iii) Repayment of Swingline Loans. The principal amount of all
Swingline Loans shall be due and payable on the earlier of (A) the maturity date
agreed to by the Swingline Lender and Xxxx with respect to such Loan (which
maturity date shall not be a date more than seven (7) Business Days from the
date of advance thereof) or (B) the Termination Date. The Swingline Lender may,
at any time, in its sole discretion, by written notice to Xxxx and the Lenders,
demand repayment of its Swingline Loans by way of a Revolving Loan advance, in
which case Xxxx shall be deemed to have requested a Revolving Loan advance
comprised solely of Base Rate Loans in the amount of such Swingline Loans;
provided, however, that any such demand shall be deemed to have been given one
Business Day prior to the Termination Date and on the date of the occurrence of
any Event of Default described in Section 9.1 and upon acceleration of the
indebtedness under the Credit Documents and the exercise of remedies in
accordance with the provisions of Section 9.2. Each Lender hereby irrevocably
agrees to make its pro rata share of each such Revolving Loan in the amount, in
the manner and on the date specified in the preceding sentence notwithstanding
(I) the amount of such borrowing may not comply with the minimum amount for
advances of Revolving Loans otherwise required under the Credit Agreement, (II)
whether any conditions specified in Section 5.2 are then satisfied, (III)
whether a Default or an Event of Default then exists, (IV) failure of any such
request or deemed request for Revolving Loan to be made by the time otherwise
required under the Credit Agreement, (V) whether the date of such borrowing is a
date on which Revolving Loans are otherwise permitted to be made under the
Credit Agreement or (VI) any termination of the Commitments relating thereto
40
immediately prior to or contemporaneously with such borrowing. In the event that
any Revolving Loan cannot for any reason be made on the date otherwise required
above (including, without limitation, as a result of the commencement of a
proceeding under the Bankruptcy Code with respect to Xxxx or any other Credit
Party), then each Lender hereby agrees that it shall forthwith purchase (as of
the date such borrowing would otherwise have occurred, but adjusted for any
payments received from Xxxx on or after such date and prior to such purchase)
from the Swingline Lender such participations in the outstanding Swingline Loans
as shall be necessary to cause each such Lender to share in such Swingline Loans
ratably based upon its Commitment Percentage of the Revolving Committed Amount
(determined before giving effect to any termination of the Commitments pursuant
to Section 3.4), provided that (A) all interest payable on the Swingline Loans
shall be for the account of the Swingline Lender until the date as of which the
respective participation is purchased and (B) at the time any purchase of
participations pursuant to this sentence is actually made, the purchasing Lender
shall be required to pay to the Swingline Lender, to the extent not paid to
the Swingline Lender by Xxxx in accordance with the terms of subsection (c)(ii)
hereof, interest on the principal amount of participation purchased for each day
from and including the day upon which such borrowing would otherwise have
occurred to but excluding the date of payment for such participation, at the
rate equal to the Federal Funds Rate.
(c) Interest on Swingline Loans. (1) Subject to the provisions of
Section 3.1, each Swingline Loan shall bear interest at a per annum rate
(computed on the basis of the actual number of days elapsed over a year of 360
days) equal to:
(A) Base Rate Loans. If such Swingline Loan is a Base Rate Loan, the
Base Rate.
(B) Quoted Rate Swingline Loans. If such Swingline Loan is a Quoted
Rate Swingline Loan, Quoted Rate applicable thereto.
Notwithstanding any other provision to the contrary set forth in the Credit
Agreement, in the event that the principal amount of any Quoted Rate Swingline
Loan is not repaid on the last day of the Interest Period for such Loan, then
such Loan shall be automatically converted into a Base Rate Loan at the end of
such Interest Period.
(ii) Payment of Interest. Interest on Swingline Loans shall be
payable in arrears on each applicable Interest Payment Date (or at
such other times as may be specified in the Credit Agreement).
(d) Swingline Note. The Swingline Loans shall be evidenced by a duly
executed promissory note of Xxxx to the Swingline Lender in an original
principal amount equal to the Swingline Committed Amount substantially in the
form of Schedule
41
2.4(d)(such promissory note, as amended, modified, extended, renewed or replaced
from time to time is hereinafter referred to as the "Swingline Note").
2.5 Foreign Currency Loan Subfacility.
(a) Foreign Currency Commitment. Subject to the terms and conditions
hereof and in reliance upon the representations and warranties set forth in the
Credit Agreement, each Lender severally agrees to make available to Xxxx Europe
such Lender's Foreign Currency Commitment Percentage of revolving credit loans
in Pounds Sterling ("Foreign Currency Loans") from time to time from the date
five (5) Business Days subsequent to the Amendment Effective Date until the date
five (5) Business Days prior to the Termination Date, or such earlier date as
the Revolving Commitments shall have been terminated as provided in the Credit
Agreement for the purposes hereinafter set forth; provided, however, that the
Dollar Amount (as determined as of the most recent Determination Date) of the
aggregate amount of Foreign Currency Loans outstanding at any time shall not
exceed FIFTEEN MILLION DOLLARS ($15,000,000.00) (the "Foreign Currency Committed
Amount"); provided, further, (i) with regard to each Lender individually such
Lender's outstanding Foreign Currency Loans shall not exceed such Lender's
Foreign Commitment Percentage of the Foreign Currency Committed Amount, (ii)
with regard to the Lenders collectively, the sum of the Dollar Amount (as
determined as of the most recent Determination Date) of the aggregate principal
amount of outstanding Foreign Currency Loans plus the Dollar Amount (as
determined as of the most recent Determination Date) of Foreign LOC Obligations
outstanding shall not at any time exceed the aggregate Foreign Currency
Committed Amount and (iii) with regard to the Lenders collectively, the
aggregate principal amount of outstanding Revolving Loans plus Domestic LOC
Obligations outstanding plus the aggregate principal amount of outstanding
Competitive Loans plus the aggregate principal amount of outstanding Swingline
Loans plus the Dollar Amount (as determined as of the most recent Determination
Date) of the aggregate principal amount of outstanding Foreign Currency Loans
plus the Dollar Amount (as determined as of the most recent Determination Date)
of Foreign LOC Obligations outstanding shall not exceed the Revolving Committed
Amount. Foreign Currency Loans shall consist solely of Eurodollar Loans and may
be repaid and reborrowed in accordance with the provisions hereof; provided,
however, that no more than 12 separate Eurodollar Loans shall be outstanding at
any time. For purposes hereof, Eurodollar Loans with different Interest Periods
and/or in different currencies shall be considered as separate Eurodollar Loans,
even if they begin on the same date, although borrowings, extensions and
conversions may, in accordance with the provisions hereof, be combined at the
end of existing Interest Periods to constitute a new Eurodollar Loan with a
single Interest Period and in the same currency.
(b) Foreign Currency Loan Borrowings.
(i) Notice of Borrowing. Xxxx Europe shall request a Foreign
Currency Revolving Loan borrowing by written notice (or telephone
notice promptly confirmed in writing) to each office of the Agent
specified in Section
42
3.14(b) not later than 12:00 Noon, local time in the place where such
borrowing is to be made, on the third Business Day prior to the date of
the requested borrowing. Each such request for borrowing shall be
irrevocable and shall specify (A) that a Foreign Currency Loan is
requested, (B) the date of the requested borrowing (which shall be a
Business Day), (C) the aggregate principal amount to be borrowed, and
(D) the Interest Period(s) therefor. If Xxxx Europe shall fail to
specify in any such Notice of Borrowing an applicable Interest Period,
then such notice shall be deemed to be a request for an Interest Period
of one month. The Agent shall give notice to each Lender promptly upon
receipt of each Notice of Borrowing pursuant to this Section 2.5(b)(i),
the contents thereof and each such Lender's share of any borrowing to be
made pursuant thereto.
(ii) Minimum Amounts. Each Foreign Currency Loan shall be in a
minimum aggregate amount equal to the Foreign Currency Equivalent of
$500,000 and integral multiples of $250,000 in excess thereof (or the
remaining amount of the Foreign Currency Committed Amount, if less).
(iii) Advances. Each Lender will make its Foreign Currency
Commitment Percentage of each Foreign Currency Loan borrowing available
to the Agent as specified in Section 3.14(b), or in such other manner
as the Agent may specify in writing, by 1:00 P.M., local time in the
place where such deposit is required to be made, on the date specified
in the applicable Notice of Borrowing in Pounds Sterling and in funds
immediately available to the Agent. Such borrowing will then be made
available to Xxxx Europe by the Agent by crediting the account of Xxxx
Europe on the books of such office with the aggregate of the amounts
made available to the Agent by the Lenders and in like funds as received
by the Agent.
(c) Repayment. The principal amount of all Foreign Currency Loans shall
be due and payable in full in Pounds Sterling on the Termination Date.
(d) Interest. Subject to the provisions of Section 3.1, Foreign
Currency Loans shall bear interest at a per annum rate equal to the Eurodollar
Rate plus the Applicable Margin. Interest on Foreign Currency Loans shall be
payable (in Pounds Sterling) in arrears on each Interest Payment Date.
(e) Foreign Currency Notes. The Foreign Currency Loans made by each
Lender shall be evidenced by a duly executed promissory note of Xxxx Europe to
each Lender in substantially the form of Schedule 2.5(e).
2.6 Foreign Letter of Credit Subfacifily.
(a) Issuance. Subject to the terms and conditions hereof and of the LOC
Documents, if any, and any other terms and conditions which the Issuing Lender
may reasonably require, the Lenders will participate in the issuance by the
43
Issuing Lender, from time to time and in Pounds Sterling, of such Foreign
Letters of Credit from the date five (5) Business Days subsequent to the
Amendment Effective Date until the date five (5) Business Days prior to the
Termination Date as Xxxx Europe may request, in a form acceptable to the Issuing
Lender; provided, however, that (i) the Dollar Amount (as determined as of the
most recent Determination Date) of the Foreign LOC Obligations outstanding shall
not at any time exceed FIFTEEN MILLION DOLLARS ($15,000,000) (the "Foreign LOC
Committed Amount"), (ii) the sum of the Dollar Amount (as determined as of the
most recent Determination Date) of the aggregate principal amount of outstanding
Foreign Currency Loans plus the Dollar Amount (as determined as of the most
recent Determination Date) of Foreign LOC Obligations outstanding shall not at
any time exceed the aggregate Foreign Currency Committed Amount and (iii) the
sum of the aggregate principal amount of outstanding Revolving Loans plus
Domestic LOC Obligations outstanding plus the aggregate principal amount of
outstanding Competitive Loans plus the aggregate principal amount of outstanding
Swingline Loans plus the Dollar Amount (as determined as of the most recent
Determination Date) of the aggregate principal amount of outstanding Foreign
Currency Loans plus the Dollar Amount (as determined as of the most recent
Determination Date) of Foreign LOC Obligations outstanding shall not at any time
exceed the aggregate Revolving Committed Amount. No Foreign Letter of Credit
shall (x) have an original expiry date more than one year from the date of
issuance or (y) as originally issued or as extended, have an expiry date
extending beyond the Termination Date. Each Foreign Letter of Credit shall
comply with the related LOC Documents. The issuance and expiry date of each
Foreign Letter of Credit shall be a Business Day.
(b) Notice and Reports. The request for the issuance of a Foreign Letter
of Credit shall be submitted by Xxxx Europe to the Issuing Lender at least three
(3) Business Days prior to the requested date of issuance. The Issuing Lender
will, at least quarterly and more frequently upon request, disseminate to each
of the Lenders and Xxxx Europe a detailed report specifying the Foreign Letters
of Credit which are then issued and outstanding and any activity with respect
thereto which may have occurred since the date of the prior report, and
including therein, among other things, the beneficiary, the face amount, expiry
date as well as any payment or expirations which may have occurred.
(c) Participation. Each Lender, upon issuance of a Foreign Letter of
Credit, shall be deemed to have purchased without recourse a risk participation
from the Issuing Lender in such Foreign Letter of Credit and the obligations
arising thereunder, in each case in an amount equal to its pro rata share of the
obligations under such Foreign Letter of Credit (based on the respective
Commitment Percentages of the Lenders) and shall absolutely, unconditionally and
irrevocably assume, as primary obligor and not as surety, and be obligated to
pay in Pounds Sterling to the Issuing Lender therefor and discharge when due,
its pro rata share of the obligations arising under such Foreign Letter of
Credit.
44
Without limiting the scope and nature of each Lender's participation in any
Foreign Letter of Credit, to the extent that the Issuing Lender has not been
reimbursed as required under the Credit Agreement or under any such Foreign
Letter of Credit, each such Lender shall pay to the Issuing Lender in Pounds
Sterling its pro rata share of such unreimbursed drawing in same day funds on
the date five (5) Business Days after notification by the Issuing Lender of an
unreimbursed drawing pursuant to the provisions of subsection (d) hereof. The
obligation of each Lender to so reimburse the Issuing Lender shall be absolute
and unconditional and shall not be affected by the occurrence of a Default, an
Event of Default or any other occurrence or event. Any such reimbursement shall
not relieve or otherwise impair the obligation of Xxxx Europe to reimburse the
Issuing Lender under any Foreign Letter of Credit, together with interest as
hereinafter provided.
(d) Reimbursement. In the event of any drawing under any Foreign Letter
of Credit, the Issuing Lender will promptly notify Xxxx Europe. Xxxx Europe
promises to reimburse the Issuing Lender on or prior to the date that is three
(3) Business Days after the day of any drawing under any Foreign Letter of
Credit (the "Reimbursement Date") an amount equal to such drawing in same day
funds. Unless Xxxx Europe shall immediately notify the Issuing Lender that Xxxx
Europe intends to otherwise reimburse the Issuing Lender for such drawing, Xxxx
Europe shall be deemed to have requested that the Lenders make a Foreign
Currency Loan in the amount of the drawing as provided in subsection (f) hereof
on the related Foreign Letter of Credit on the applicable Reimbursement Date,
the proceeds of which will be used to satisfy the related reimbursement
obligations. The unreimbursed amount of any drawing under a Foreign Letter of
Credit shall, subject to the terms of Section 3.1, bear interest from and
including the date of drawing until but excluding the date of reimbursement at a
per annum rate equal to the Interim Foreign Currency Rate plus the Applicable
Margin applicable to Eurodollar Loans. Xxxx Europe's reimbursement obligations
under the Credit Agreement shall be absolute and unconditional under all
circumstances irrespective of any rights of setoff, counterclaim or defense to
payment Xxxx Europe may claim or have against the Issuing Lender, the Agent, the
Lenders, the beneficiary of the Foreign Letter of Credit drawn upon or any other
Person, including without limitation any defense based on any failure of Xxxx
Europe or any other Credit Party to receive consideration or the legality,
validity, regularity or unenforceability of the Foreign Letter of Credit. The
Issuing Lender will promptly notify the other Lenders of the amount of any
unreimbursed drawing and each Lender shall promptly pay, on the Reimbursement
Date, to the Agent for the account of the Issuing Lender in Pounds Sterling and
in immediately available funds, the amount of such Lender's pro rata share of
such unreimbursed drawing. If such Lender does not pay such amount to the
Issuing Lender in full upon such request, such Lender shall, on demand, pay to
the Agent for the account of the Issuing Lender interest on the unpaid amount
during the period from the Reimbursement Date until such Lender pays such amount
to the Issuing Lender in
45
full at a rate per annum equal to the Interim Foreign Currency Rate. Each
Lender's obligation to make such payment to the Issuing Lender, and the right of
the Issuing Lender to receive the same, shall be absolute and unconditional,
shall not be affected by any circumstance whatsoever and without regard to the
termination of the Credit Agreement or the Commitments, the existence of a
Default or Event of Default or the acceleration of the obligations of Xxxx
Europe under the Credit Documents and shall be made without any offset,
abatement, withholding or reduction whatsoever. Simultaneously with the making
of each such payment by a Lender to the Issuing Lender, such Lender shall,
automatically and without any further action on the part of the Issuing Lender
or such Lender, acquire a participation in an amount equal to such payment
(excluding the portion of such payment constituting interest owing to the
Issuing Lender) in the related unreimbursed drawn portion of the Foreign LOC
Obligation and in the interest thereon and in the related LOC Documents, and
shall have a claim against Xxxx Europe with respect thereto.
(e) Interim Interest. In the event of any drawing under any Foreign
Letter of Credit, unless Xxxx Europe shall reimburse the Issuing Lender for such
drawing in full on such date, the unpaid amount of such drawing shall bear
interest for the account of the Issuing Lender at the Interim Foreign Currency
Rate plus the Applicable Margin applicable to Eurodollar Loans. Interest shall
accrue for each day from and including the date of any drawing under any Foreign
Letter of Credit to, but excluding, the date of payment in full of such drawing
(including by way of a Foreign Currency Loan pursuant to subsection (f) hereof).
(f) Repayment with Foreign Currency Loans. On any day on which Xxxx
Europe shall have requested, or been deemed to have requested, a Foreign
Currency Loan advance to reimburse a drawing under a Foreign Letter of Credit,
the Agent shall give notice to the Lenders that a Foreign Currency Loan has been
requested or deemed requested by Xxxx Europe to be made in connection with a
drawing under a Foreign Letter of Credit, in which case a Foreign Currency Loan
advance shall be made to Xxxx Europe by all Lenders on the respective
Reimbursement Date (notwithstanding any termination of the Commitments pursuant
to Section 9.2) pro rata based on the respective Commitment Percentages of the
Lenders (determined before giving effect to any termination of the Commitments
pursuant to Section 9.2) and the proceeds thereof shall be paid directly to the
Issuing Lender for application to the respective Foreign LOC Obligations. Each
such Lender hereby irrevocably agrees to make its pro rata share of each such
Foreign Currency Loan immediately upon any such request or deemed request in the
amount, in the manner and on the date specified in the preceding sentence
notwithstanding (i) the amount of such borrowing may not comply with the minimum
amount for advances of Foreign Currency Loans otherwise required under the
Credit Agreement, (ii) whether any conditions specified in Section 5.2 are then
satisfied, (iii) whether a Default or an Event of Default then exists, (iv)
failure for any such request or deemed request for Foreign
46
Currency Loans to be made by the time otherwise required under the Credit
Agreement, (v) whether the date of such borrowing is a date on which Foreign
Currency Loans are otherwise permitted to be made under the Credit Agreement,
(vi) any rights that such Lender may have in respect of such Foreign Currency
Loans under Section 3.7, or (vii) any termination of the Commitments relating
thereto immediately prior to or contemporaneously with such borrowing. In the
event that any Foreign Currency Loan cannot for any reason be made on the date
otherwise required above (including, without limitation, as a result of the
commencement of a proceeding under the Bankruptcy Code with respect to Xxxx
Europe or any other Credit Party), then each such Lender hereby agrees that it
shall forthwith purchase (as of the date such borrowing would otherwise have
occurred, but adjusted for any payments received from Xxxx Europe on or after
such date and prior to such purchase) from the Issuing Lender in Pounds Sterling
such participation in the outstanding Foreign LOC Obligations as shall be
necessary to cause each such Lender to share in such Foreign LOC Obligations
ratably (based upon the respective Commitment Percentages of the Lenders
(determined before giving effect to any termination of the Commitments pursuant
to Section 9.2)), provided that at the time any purchase of participation
pursuant to this sentence is actually made, the purchasing Lender shall be
required to pay to the Issuing Lender, to the extent not paid to the Issuer by
Xxxx Europe in accordance with the terms of subsection (d) hereof, interest on
the principal amount of participation purchased for each day from and including
the day upon which such borrowing would otherwise have occurred to but excluding
the date of payment for such participation, at the rate equal to the Interim
Foreign Currency Rate.
(g) Renewal, Extension. The renewal or extension of any Foreign Letter
of Credit shall, for purposes hereof, be treated in all respects the same as the
issuance of a new Foreign Letter of Credit.
(h) Uniform Customs and Practices. The Issuing Lender may have the
Foreign Letters of Credit be subject to The Uniform Customs and Practice for
Documentary Credits, as published as of the date of issue by the International
Chamber of Commerce (the "UCP"), in which case the UCP may be incorporated
therein and deemed in all respects to be a part thereof.
(i) Indemnification; Nature of Issuing Lender's Duties. (i) In addition
to its other obligations under this Section 2.6, Xxxx Europe hereby agrees to
protect, indemnify, pay and save the Issuing Lender harmless from and against
any and all claims, demands, liabilities, damages, losses, costs, charges and
expenses (including reasonable attorneys' fees) that the Issuing Lender may
incur or be subject to as a consequence, direct or indirect, of (A) the issuance
of any Foreign Letter of Credit or (B) the failure of the Issuing Lender to
honor a drawing under a Foreign 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
47
government or governmental authority (all such acts or omissions, herein called
"Government Acts").
(ii) As between Xxxx Europe and the Issuing Lender, Xxxx Europe shall
assume all risks of the acts, omissions or misuse of any Foreign Letter of
Credit by the beneficiary thereof. The Issuing Lender shall not be responsible:
(A) for the form, validity, sufficiency, accuracy, genuineness or legal effect
of any document submitted by any party in connection with the application for
and issuance of any Foreign Letter of Credit, even if it should in fact prove to
be in any or all respects invalid, insufficient, inaccurate, fraudulent or
forged; (B) for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign any Foreign Letter of Credit or
the rights or benefits thereunder or proceeds thereof, in whole or in part, that
may prove to be invalid or ineffective for any reason; (C) for 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;
(D) for any loss or delay in the transmission or otherwise of any document
required in order to make a drawing under a Foreign Letter of Credit or of the
proceeds thereof, and (E) for any consequences arising from causes beyond the
control of the Issuing Lender, including, without limitation, any Government
Acts. None of the above shall affect, impair, or prevent the vesting of the
Issuing Lender's rights or powers under Credit Agreement.
(iii) In furtherance and extension and not in limitation of the specific
provisions hereinabove set forth, any action taken or omitted by the Issuing
Lender, under or in connection with any Foreign Letter of Credit or the related
certificates, if taken or omitted in good faith, shall not put such Issuing
Lender under any resulting liability to Xxxx Europe or any other Credit Party.
It is the intention of the parties that the Credit Agreement shall be construed
and applied to protect and indemnify the Issuing Lender against any and all
risks involved in the issuance of the Foreign Letters of Credit, all of which
risks are hereby assumed by Xxxx Europe (on behalf of itself and each of the
other Credit Parties), including, without limitation, any and all Government
Acts. The Issuing Lender shall not, in any way, be liable for any failure by the
Issuing Lender or anyone else to pay any drawing under any Foreign Letter of
Credit as a result of any Government Acts or any other cause beyond the control
of the Issuing Lender.
(iv) Nothing in this subsection (i) is intended to limit the
reimbursement obligations of Xxxx Europe contained in subsection (d) above. The
obligations of Xxxx Europe under this subsection (i) shall survive the
termination of the Credit Agreement. No act or omissions of any current or
prior beneficiary of a Foreign Letter of Credit shall in any way affect or
impair the rights of the Issuing Lender to enforce any right, power or benefit
under the Credit Agreement.
48
(v) Notwithstanding anything to the contrary contained in this
subsection (i), Xxxx Europe shall have no obligation to indemnify the Issuing
Lender in respect of any liability incurred by the Issuing Lender (A) arising
solely out of the gross negligence or willful misconduct of the Issuing Lender
or (B) caused by the Issuing Lender's unlawful failure to pay under any Foreign
Letter of Credit.
(j) Responsibility of Issuing Lender. It is expressly understood and
agreed that the obligations of the Issuing Lender under the Credit Agreement to
the Lenders are only those expressly set forth in the Credit Agreement and that
the Issuing Lender shall be entitled to assume that the conditions precedent set
forth in Section 5.2 have been satisfied unless it shall have acquired actual
knowledge that any such condition precedent has not been satisfied; provided,
however, that nothing set forth in this Section 2.6 shall be deemed to prejudice
the right of any Lender to recover from the Issuing Lender any amounts made
available by such Lender to the Issuing Lender pursuant to this Section 2.6 in
the event that it is determined by a court of competent jurisdiction that the
payment with respect to a Foreign Letter of Credit constituted gross negligence
or willful misconduct on the part of the Issuing Lender.
(k) Conflict with LOC Documents. In the event of any conflict between
the Credit Agreement and any LOC Document, the Credit Agreement shall control.
SECTION 3
OTHER PROVISIONS RELATING TO CREDIT FACILITIES
3.1 Default Rate.
Upon the occurrence, and during the continuance, of an Event of Default,
the principal of and, to the extent permitted by law, interest on the Loans and
any other amounts owing under the Credit Agreement or under the other Credit
Documents shall bear interest, payable on demand, at a per annum rate 2% greater
than the rate which would otherwise be applicable (or if no rate is applicable,
whether in respect of interest, fees or other amounts, then 2% greater than the
Base Rate).
3.2 Extension and Conversion.
Subject to the terms of Section 5.2, the Borrowers shall have the
option, on any Business Day, to extend existing Loans into a subsequent
permissible Interest Period or to convert Loans into Loans of another type;
provided, however, that (i) except as provided in Section 3.8, Revolving Loans
that are Eurodollar Loans may be converted into Base Rate Loans only on the last
day of the Interest Period applicable thereto, (ii) Eurodollar Loans may be
extended, and Revolving Loans that are Base Rate Loans may be converted into
Eurodollar Loans, only if no Default or Event of Default is in existence on the
date of extension or conversion, (iii) Loans
49
extended as, or Revolving Loans converted into, Eurodollar Loans shall be
subject to the terms of the definition of "Interest Period" set forth in Section
1.1 and shall be in such minimum amounts as provided in Section 2.1(b)(11), (iv)
no more than 12 separate Eurodollar Loans shall be outstanding under the Credit
Agreement at any time; provided, that for purposes hereof, Eurodollar Loans with
different Interest Periods and/or in different currencies shall be considered as
separate Eurodollar Loans, even if they begin on the same date, although
borrowings, extensions and conversions may, in accordance with the provisions
hereof, be combined at the end of existing Interest Periods to constitute a new
Eurodollar Loan with a single Interest Period and in the same currency, (v) any
request for extension or conversion of a Eurodollar Loan which shall fail to
specify an Interest Period shall be deemed to be a request for an Interest
Period of one month and (vi) Competitive Loans and Swingline Loans may not be
extended or converted pursuant to this Section 3.2. Each such extension or
conversion shall be effected by the appropriate Borrower by giving a Notice of
Extension/Conversion (or telephone notice promptly confirmed in writing) to the
Agent prior to 11:00 A.M., local time in the place where such Loan was initially
advanced, on the Business Day of, in the case of the conversion of a Revolving
Loan that is a Eurodollar Loan into a Base Rate Loan, and on the third Business
Day prior to, in the case of the extension of a Eurodollar Loan as, or
conversion of a Revolving Loan that is a Base Rate Loan into, a Eurodollar Loan,
the date of the proposed extension or conversion, specifying the date of the
proposed extension or conversion, the Loans to be so extended or converted, the
types of Loans into which such Loans are to be converted and, if appropriate,
the applicable Interest Periods with respect thereto. Each request for extension
or conversion shall constitute a representation and warranty by the requesting
Borrower of the matters specified in subsections (ii), (iii), (iv) and (v) of
Section 5.2(a). In the event a Borrower fails to request extension or conversion
of any Eurodollar Loan in accordance with this Section, or any such conversion
or extension is not permitted or required by this Section, then (i) in the case
of any Eurodollar Loan that is a Revolving Loan, such Loan shall be
automatically converted into a Base Rate Loan at the end of the Interest Period
applicable thereto and (ii) in the case of any Eurodollar Loan which is a
Foreign Currency Loan, such Loan shall be automatically continued as a
Eurodollar Loan for an Interest Period of one month. The Agent shall give each
Lender notice as promptly as practicable of any such proposed extension or
conversion affecting any Loan.
3.3 Prepayments.
(a) Voluntary Prepayments. The Borrowers shall have the right to
prepay Loans in whole or in part from time to time without premium or
penalty; provided, however, that (i) Eurodollar Loans may only be prepaid on
three Business Days' prior written notice to the Agent and specifying the
applicable Loans to be prepaid; (ii) any prepayment of Eurodollar Loans,
Competitive Loans or Quoted Rate Swingline Loans will be subject to Section
3.11; and (iii) each such partial prepayment of Loans shall be in a minimum
principal amount of (A) in the case of Revolving Loans, Competitive Loans
and Foreign Currency Loans, $2,000,000 (or the Foreign Currency Equivalent
thereof) and integral multiples of $1,000,000 (or the Foreign Currency
Equivalent thereof) in excess thereof and (B) in the case of Swingline
Loans, $100,000 and integral multiples of $50,000 in excess thereof. Subject
to the foregoing terms, amounts prepaid under the
50
Credit Agreement shall be applied as the prepaying Borrower may elect; provided
that, with respect to Revolving Loans, if Xxxx fails to specify a voluntary
prepayment then such prepayment shall be applied first to Base Rate Loans and
then to Eurodollar Loans in direct order of Interest Period maturities.
(b) Mandatory Prepayments.
(i) If at any time (including, without limitation, on any Determination
Date), (A) the sum of the aggregate amount of outstanding Revolving Loans plus
Domestic LOC Obligations outstanding plus the aggregate principal amount of
outstanding Competitive Loans plus the aggregate principal amount of outstanding
Swingline Loans plus the Dollar Amount (as determined as of the most recent
Determination Date) of the aggregate principal amount of outstanding Foreign
Currency Loans plus the Dollar Amount (as determined as of the most recent
Determination Date) of Foreign LOC Obligations outstanding shall exceed the
Revolving Committed Amount or (B) the aggregate principal amount of outstanding
Competitive Loans shall exceed the Competitive Loan Maximum Amount, Xxxx
promises to prepay, or cause Xxxx Europe to prepay, immediately the outstanding
principal balance on the Revolving Loans, Foreign Currency Loans, Swingline
Loans and/or Competitive Loans in an amount sufficient to eliminate such excess.
(ii) If on any Determination Date, the sum of the Dollar Amount of the
aggregate Foreign Currency Loans outstanding plus the Dollar Amount of Foreign
LOC Obligations outstanding exceeds (as the result of fluctuations in applicable
foreign exchange rates or otherwise) then Foreign Currency Committed Amount,
Xxxx Europe promises to make a mandatory prepayment of the Foreign Currency
Loans to the Agent in an aggregate Dollar Amount equal to the excess of
(x) the amount equal to the sum of the Dollar Amount of the
aggregate Foreign Currency Loans outstanding plus the Dollar Amount of
Foreign LOC Obligations outstanding
over
(y) the Foreign Currency Committed Amount.
(iii) (A) Upon the occurrence of any Excess Sale Event, Xxxx shall,
immediately following the related Application Pefiod, prepay the Loans in
an amount equal to the Excess Sale Proceeds not applied (or caused to be
applied) by Xxxx during the related Application Period to the purchase,
acquisition or construction of Alternative Assets as contemplated by the
terms of Section 8.4(b)(v)(B)(1) multiplied by the percentage determined
by dividing (1) the then current Revolving Committed Amount by (2) the
sum of (I) the then current Revolving Committed Amount plus (II) if the
Senior Noteholders shall require Xxxx to prepay the Senior Notes with any
such Excess Sale Proceeds, the aggregate then outstanding principal
amount of all Senior Notes.
51
(B) Immediately upon the occurrence of the Fresno Asset Sale, Xxxx shall
prepay the Loans in an amount equal to 50% of the Net Proceeds thereof in excess
of $900,000.
(iv) To the extent that the aggregate cumulative amount of cash
(including cash received in respect of non-cash consideration) Net Proceeds from
Equity Transactions received by Xxxx or any of its Subsidiaries during any
fiscal year exceeds $500,000, Xxxx shall, within 60 days of receipt of any such
Net Proceeds at any time that the Consolidated Leverage Ratio as of the most
recent fiscal quarter end with respect to which the Agent shall have received
the Required Financial Information is greater than 2.50 to 1.00, prepay the
Loans in an amount equal to 50% of the portion of such cash Net Proceeds
exceeding $500,000 not applied by Xxxx within such 60 day period to pay the
purchase price in connection with any acquisition permitted by the terms of
Section 8.4(c).
(c) General. All prepayments made pursuant to this Section 3.3 shall be
subject to Section 3.11, shall be applied first to Base Rate Loans and then to
Eurodollar Loans in direct order, shortest to longest, of Interest Period
maturities and shall be accompanied by accrued interest on the principal amount
being prepaid to the date of prepayment and all other amounts due and payable
under the Credit Agreement with respect to such Loans. Amounts prepaid may be
reborrowed in accordance with the provisions hereof.
3.4 Termination and Reduction of Revolving Committed Amount.
(a) Voluntary Reductions. Xxxx may from time to time permanently reduce
or terminate the Revolving Committed Amount in whole or in part (in minimum
aggregate amounts of $5,000,000 or in integral multiples of $1,000,000 in excess
thereof (or, if less, the full remaining amount of the then applicable Revolving
Committed Amount)) upon three Business Days' prior written notice to the Agent;
provided, however, no such termination or reduction shall be made which would
reduce the Revolving Committed Amount to an amount less than the aggregate
principal amount of outstanding Revolving Loans plus Domestic LOC Obligations
outstanding plus the aggregate principal amount of outstanding Competitive Loans
plus the aggregate principal amount of outstanding Swingline Loans plus the
Dollar Amount (as determined as of the most recent Determination Date) of the
aggregate principal amount of outstanding Foreign Currency Loans plus the Dollar
Amount (as determined as of the most recent Determination Date) of Foreign LOC
Obligations outstanding. The Agent shall promptly notify each of the Lenders of
receipt by the Agent of any notice from Xxxx pursuant to this Section 3.4(a).
(b) Mandatory Reductions.
(i) On any date that the Revolving Loans are required to be
prepaid or the Revolving Commitments are required to be reduced
pursuant to the terms of
52
Section 3.3(b)(iii) or (iv), the Revolving Committed Amount
automatically shall be permanently reduced by the amount of such
required prepayment.
(ii) On any date that Xxxx shall enter into a Permitted
Receivables Financing, the Revolving Committed Amount automatically
shall be permanently reduced by the facility commitment amount of such
Permitted Receivables Financing.
(c) Termination Date. The Commitments of the Lenders and the Issuing
Lender shall automatically terminate on the Termination Date.
3.5 Fees.
(a) Facility Fee. In consideration of the Revolving Commitments of the
Lenders, Xxxx agrees to pay to the Agent for the account of each Lender a fee
(the "Facility Fee") on such Lender's Commitment Percentage of the Revolving
Committed Amount (regardless of usage, but taking into account any permanent
reductions in the Revolving Committed Amount) computed at a per annum rate for
each day during the applicable Facility Fee Calculation Period (hereinafter
defined) at a rate equal to the Applicable Margin in effect from time to time.
The Facility Fee shall commence to accrue on the Closing Date and shall be due
and payable in arrears on the fifteenth (15th) day of each January, April, July
and October (and the Termination Date) for the immediately preceding fiscal
quarter (or portion thereof) (each such fiscal quarter or portion thereof for
which the Facility Fee is payable under the Credit Agreement being referred to
as an "Facility Fee Calculation Period"), beginning with the first of such dates
to occur after the Closing Date.
(b) Letter of Credit Fees.
(i) Issuance Fee. In consideration of the issuance of
standby Letters of Credit, each Borrower promises to pay to the Agent
for the account of the Lenders a fee (the "Standby Letter of Credit
Fee") on the average daily maximum amount available to be drawn under
each such standby Letter of Credit computed at a per annum rate for each
day from the date of issuance to the date of expiration equal to the
Applicable Margin for the Standby Letter of Credit Fee. The Standby
Letter of Credit Fee will be payable quarterly in arrears on the last
day of each March, June, September and December for the immediately
preceding fiscal quarter (or a portion thereof).
(ii) Trade Letter of Credit Drawing Fee. In consideration of the
issuance of trade Letters of Credit, each Borrower promises to pay to
the Agent for the account of the Lenders a fee (the "Trade Letter of
Credit Fee") of 15 basis points on the amount of each drawing under any
such trade Letter of Credit. The Trade Letter of Credit Fee will be
payable on each date of drawing under a trade Letter of Credit.
53
(iii) Issuing Lender Fees. In addition to the Standby Letter of
Credit Fee payable pursuant to clause (i) above and the Trade Letter of
Credit Fee payable pursuant to clause (ii) above, each Borrower promises
to pay to the Issuing Lender for its own account without sharing by the
other Lenders the letter of credit fronting and negotiation fees agreed
to by such Borrower and the Issuing Lender from time to time and the
customary charges from time to time of the Issuing Lender with respect
to the issuance, amendment, transfer, administration, cancellation and
conversion of, and drawings under, such Letters of Credit (collectively,
the "Issuing Lender Fees").
(c) Administrative Fee. Xxxx agrees to pay to the Agent, for its own
account and for the account of NationsBanc Capital Markets, Inc., as applicable,
the fees referred to in the Agent's Fee Letter (collectively, the "Agent's
Fees").
(d) Competitive Bid Request Fee. Xxxx shall make payment to the Agent
for each Competitive Bid Request of a Competitive Bid administrative fee (the
"Competitive Bid Request Fee") of $1500 concurrently with delivery of any
Competitive Bid Request (whether or not any Competitive Bid is offered by a
Lender or accepted by Xxxx and whether or not any Competitive Loan is extended
by any Lender in connection with such Competitive Bid Request).
3.6 Capital Adequacy.
If, after the Closing Date, any Lender has determined that the adoption
or the becoming effective of, or any change in, or any change by any
Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof in the interpretation or administration
of, any applicable law, rule or regulation regarding capital adequacy, or
compliance by such Lender with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such authority, central
bank or comparable agency, has or would have the effect of reducing the rate of
return on such Lender's capital or assets as a consequence of its commitments or
obligations under the Credit Agreement to a level below that which such Lender
could have achieved but for such adoption, effectiveness, change or compliance
(taking into consideration such Lender's policies with respect to capital
adequacy), then, upon notice and detailed explanation from such Lender to the
applicable Borrower, such Borrower shall be obligated to pay to such Lender such
additional amount or amounts as will compensate such Lender for such reduction.
Each determination by any such Lender of amounts owing under this Section shall,
absent manifest error, be conclusive and binding on the parties hereto.
3.7 Unavailability.
(a) If prior to the first day of any Interest Period, the Agent
shall have determined (which determination shall be conclusive and
binding upon the Borrowers) that, by reason of circumstances affecting
the relevant market, adequate and reasonable
54
means do not exist for ascertaining the Eurodollar Rate for such Interest
Period, the Agent shall give telecopy or telephonic notice thereof to the
Borrowers and the Lenders as soon as practicable thereafter. If such notice is
given (i) in respect of any Eurodollar Loans which are Revolving Loans, (A) such
Loans requested to be made on the first day of such Interest Period shall be
made as Base Rate Loans, (B) any such Loans that were to have been converted on
the first day of such Interest Period to or continued as Eurodollar Loans shall
be converted to or continued as Base Rate Loans and (C) any such Loans which are
Revolving Loans shall be converted, on the first day of such Interest Period, to
Base Rate Loans and (ii) in respect of any Eurodollar Loans which are Foreign
Currency Loans, (A) any such Loans requested to be made on the first day of such
interest Period shall be deemed rescinded and (B) any such Loans shall be repaid
in full by Xxxx Europe on the first day of such Interest Period. Until such
notice has been withdrawn by the Agent, no further Eurodollar Loans shall be
made or continued as such, nor shall Xxxx have the right to convert Base Rate
Loans to Eurodollar Loans.
(b) If prior to the first day of any Interest Period, the Agent shall
have determined (which determination shall be conclusive and binding upon the
Borrowers) that deposits in Pounds Sterling are not available in the relevant
market to any Lender, the Agent shall give telecopy or telephonic notice thereof
to Xxxx Europe and the Lenders as soon as practicable thereafter. If such notice
is given, (i) any Foreign Currency Loans requested to be made on the first day
of such Interest Period shall be deemed rescinded and (ii) any outstanding
Foreign Currency Loans shall be repaid in full by Xxxx Europe on the first day
of such Interest Period. Until such notice has been withdrawn by the Agent, no
further Foreign Currency Loans shall be made or continued.
(c) If prior to the issuance of any Foreign Letter of Credit, the Agent
shall have determined (which determination shall be conclusive and binding upon
Xxxx Europe) that, with respect to the requested Foreign Letter of Credit,
Pounds Sterling in the amount of any Lender's participation interest in such
Foreign Letter of Credit are not, and/or during the term of such Foreign Letter
of Credit will not be, available to any such Lender, then (i) the Agent shall
notify Xxxx Europe and the Lenders of such circumstances and (ii) the Issuing
Lender shall have no obligation to issue, and the Lenders shall have no
obligation to participate in, such Foreign Letter of Credit.
3.8 Illegality.
(a) Notwithstanding any other provision in the Credit Agreement, if (i)
the adoption of or any change in any Requirement of Law or in the interpretation
or application thereof occurring after the Closing Date shall make it unlawful
for any Lender to make or maintain Eurodollar Loans or Foreign Currency Loans or
(ii) there shall have occurred any change in national or international
financial, political or economic conditions (including the imposition of or any
change in exchange controls) or currency exchange rates which would make it
impracticable for any Lender to make Loans denominated in Pounds Sterling to
Xxxx Europe, as contemplated by the Credit
55
Agreement, then, by written notice to the Borrowers and the Agent (which notice
shall be withdrawn whenever such circumstances no longer exist):
(A) such Lender may declare that Eurodollar Loans or Foreign Currency
Loans, as the case may be, will not thereafter (for the duration of such
unlawfulness or impracticability) be made by such Lender under the Credit
Agreement, whereupon any request for a Eurodollar Loan or Foreign Currency Loan,
as the case may be, shall, as to such Lender only, (1) if such Loan is not a
Foreign Currency Loan, be deemed a request for a Base Rate Loan, unless such
declaration shall be subsequently withdrawn and (2) if such Loan is a Foreign
Currency Loan, be deemed to have been withdrawn, unless such declaration shall
be subsequently withdrawn; and
(B) such Lender may require that all outstanding Eurodollar Loans or
Foreign Currency Loans, as the case may be, made by it be (1) if such Loans are
not Foreign Currency Loans, converted to Base Rate Loans, in which event all
such Eurodollar Loans shall be automatically converted to Base Rate Loans as of
the effective date of such notice as provided in paragraph (b) below or (2) if
such Loans are Foreign Currency Loans, repaid immediately, in which event all
such Foreign Currency Loans shall be required to be repaid in full by Xxxx
Europe as of the effective date of such notice as provided in paragraph (b)
below.
(b) If any such conversion of a Eurodollar Loan occurs on a day which is
not the last day of the then current Interest Period with respect thereto, the
affected Borrower(s) shall pay to such Lender such amounts, if any, as may be
required pursuant to Section 3.11.
3.9 Requirements of Law.
If the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof applicable to any Lender, or compliance by
any Lender with any request or directive (whether or not having the force of
law) from any central bank or other Governmental Authority, in each case made
subsequent to the Closing Date (or, if later, the date on which such Lender
becomes a Lender):
(a) shall subject such Lender to any tax of any kind whatsoever with
respect to any Letter of Credit, any Eurodollar Loans made by it or its
obligation to make Eurodollar Loans, or change the basis of taxation of payments
to such Lender in respect thereof (except for Non-Excluded Taxes covered by
Section 3.10 (including Non-Excluded Taxes imposed solely by reason of any
failure of such Lender to comply with its obligations under Section 3.10(b))
and changes in taxes measured by or imposed upon the overall net income, or
franchise tax (imposed in lieu of such net income tax), of such Lender or its
applicable lending office, branch, or any affiliate thereof);
(b) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by, deposits
or other
56
liabilities in or for the account of, advances, loans or other extensions of
credit by, or any other acquisition of funds by, any office of such Lender which
is not otherwise included in the determination of the Eurodollar Rate under the
Credit Agreement; or
(c) shall impose on such Lender any other condition (excluding any tax
of any kind whatsoever);
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or issuing or participating in
Letters of Credit or to reduce any amount receivable under the Credit Agreement
in respect thereof, then, in any such case, upon notice to the applicable
Borrower from such Lender, through the Agent, in accordance therewith, the
applicable Borrower shall be obligated to promptly pay such Lender, upon its
demand, any additional amounts necessary to compensate such Lender for such
increased cost or reduced amount receivable, provided that, in any such case,
Xxxx may elect to convert the Revolving Loans which are Eurodollar Loans and
made by such Lender under the Credit Agreement to Base Rate Loans by giving the
Agent at least one Business Day's notice of such election, in which case Xxxx
shall promptly pay to such Lender, upon demand, without duplication, such
amounts, if any, as may be required pursuant to Section 3.11. If any Lender
becomes entitled to claim any additional amounts pursuant to this subsection, it
shall provide prompt notice thereof to the applicable Borrower, through the
Agent, certifying (x) that one of the events described in this paragraph (a) has
occurred and describing in reasonable detail the nature of such event, (y) as to
the increased cost or reduced amount resulting from such event and (z) as to the
additional amount demanded by such Lender and a reasonably detailed explanation
of the calculation thereof. Such a certificate as to any additional amounts
payable pursuant to this subsection submitted by such Lender, through the Agent,
to a Borrower shall be conclusive and binding on the parties hereto in the
absence of manifest error. This covenant shall survive the termination of the
Credit Agreement and the payment of the Loans and all other amounts payable
under the Credit Agreement.
3.10 Taxes.
(a) Except as provided below in this subsection, all payments
made by a Borrower under the Credit Agreement and any Notes shall be
made free and clear of, and without deduction or withholding for or on
account of, any present or future income, stamp or other taxes, levies,
imposts, duties, charges, fees, deductions or withholdings, now or after
the Closing Date imposed, levied, collected, withheld or assessed by any
court, or governmental body, agency or other official, excluding taxes
measured by or imposed upon the overall net income of any Lender or its
applicable lending office, or any branch or affiliate thereof, and all
franchise taxes, branch taxes, taxes on doing business or taxes on the
overall capital or net worth of any Lender or its applicable lending
office, or any branch or affiliate thereof, in each case imposed in lieu
of net income taxes, imposed: (i) by the jurisdiction under the laws of
which such Lender, applicable lending office, branch or affiliate is
organized or is located, or in which its principal executive office is
located, or any nation within which such jurisdiction is
57
located or any political subdivision thereof; or (ii) by reason of any
connection between the jurisdiction imposing such tax and such Lender,
applicable lending office, branch or affiliate other than a connection arising
solely from such Lender having executed, delivered or performed its obligations,
or received payment under or enforced, the Credit Agreement or any Notes. If any
such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") are required to be withheld from any amounts
payable to the Agent or any Lender under the Credit Agreement or under any
Notes, (A) the amounts so payable to the Agent or such Lender shall be increased
to the extent necessary to yield to the Agent or such Lender (after payment of
all Non-Excluded Taxes) interest or any such other amounts payable under the
Credit Agreement at the rates or in the amounts specified in the Credit
Agreement and any Notes, provided, however, that each Borrower shall be entitled
to deduct and withhold any Non-Excluded Taxes and shall not be required to
increase any such amounts payable to any Lender that is not organized under the
laws at the United States of America or a state thereof if such Lender fails to
comply with the requirements of paragraph (b) of this subsection whenever any
Non-Excluded Taxes are payable by a Borrower, and (B) as promptly as possible
thereafter the applicable Borrower shall send to the Agent for its own account
or for the account of such Lender, as the case may be, a certified copy of an
original official receipt received by such Borrower showing payment thereof. If
a Borrower fails to pay any Non-Excluded Taxes when due to the appropriate
taxing authority or fails to remit to the Agent the required receipts or other
required documentary evidence, such Borrower shall indemnify the Agent and the
Lenders for any incremental taxes, interest or penalties that may become payable
by the Agent or any Lender as a result of any such failure. The agreements in
this subsection shall survive the termination of the Credit Agreement and the
payment of the Loans and all other amounts payable under the Credit Agreement.
(b) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof shall:
(X)(i) on or before the date of any payment by a Borrower under
the Credit Agreement or Notes to such Lender, deliver to Xxxx and the
Agent (A) two (2) duly completed copies of United States Internal
Revenue Service Form 1001 or 4224, or successor applicable form, as the
case may be, certifying that it is entitled to receive payments under
the Credit Agreement and any Notes without deduction or withholding of
any United States federal income taxes and (B) an Internal Revenue
Service Form W-8 or W-9, or successor applicable form, as the case may
be, certifying that it is entitled to an exemption from United States
backup withholding tax;
(ii) deliver to Xxxx and the Agent two (2) further copies of any
such form or certification on or before the date that any such form or
certification expires or becomes obsolete and after the occurrence of
any event requiring a change in the most recent form previously
delivered by it to Xxxx; and
58
(iii) obtain such extensions of time for filing and complete such
forms or certifications as may reasonably be requested by Xxxx or the
Agent; or
(Y) in the case of any such Lender that is not a "bank" within the
meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (i) represent to
Xxxx (for the benefit of Xxxx and the Agent) that it is not a bank within the
meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (ii) agree to
furnish to Xxxx on or before the date of any payment by Xxxx, with a copy to the
Agent two (2) accurate and complete original signed copies of Internal Revenue
Service Form W-8, or successor applicable form certifying to such Lender's legal
entitlement at the date of such certificate to an exemption from U.S.
withholding tax under the provisions of Section 881(c) of the Internal Revenue
Code with respect to payments to be made under the Credit Agreement and any
Notes (and to deliver to Xxxx and the Agent two (2) further copies of such form
on or before the date it expires or becomes obsolete and after the occurrence of
any event requiring a change in the most recently provided form and, if
necessary, obtain any extensions of time reasonably requested by Xxxx or the
Agent for filing and completing such forms), and (iii) agree, to the extent
legally entitled to do so, upon reasonable request by Xxxx, to provide to Xxxx
(for the benefit of Xxxx and the Agent) such other forms as may be reasonably
required in order to establish the legal entitlement of such Lender to an
exemption from withholding with respect to payments under the Credit Agreement
and any Notes;
unless in any such case any change in treaty, law or regulation has occurred
after the date such Person becomes a Lender under the Credit Agreement which
renders all such forms inapplicable or which would prevent such Lender from duly
completing and delivering any such form with respect to it and such Lender so
advises Xxxx and the Agent.
(c) Each Lender shall, as soon as is reasonably practicable after the
Closing Date, file a form FD 13 with the United States Internal Revenue Service
in relation to payments made or to be made by Xxxx Europe under this Credit
Agreement and any Foreign Currency Notes. If the United States Internal Revenue
Service determines that the form FD 13 filed by such Lender does not establish
that the Lender is entitled to receive payments made by Xxxx Europe under this
Credit Agreement and the Foreign Currency Notes as at the date of delivery
thereof without deduction or withholding of United Kingdom withholding taxes or,
if the UK Inland Revenue requires proof of such entitlement, such Lender shall,
within forty-five (45) days after a written request from Xxxx Europe, offer such
reasonable assistance as Xxxx Europe may request in order to establish such
Lender's entitlement (if any) to receive payments made by Xxxx Europe under this
Credit Agreement and any Foreign Currency Notes without deduction or withholding
of United Kingdom withholding taxes. Xxxx Europe shall not be required to pay
any amounts to any Lender in respect of any deduction or withholding of United
Kingdom withholding taxes otherwise payable under this Section 3.10 (and Xxxx
Europe, if required by law to do so, shall be entitled to withhold such amounts
and pay such amounts to the government of the United Kingdom) if the obligation
to pay such
59
additional amounts would not have arisen but for a failure by such Lender to
provide Xxxx Europe with the requested forms or other reasonable assistance.
(d) Each Lender agrees to make a good faith effort to minimize
any Non-Excluded Taxes by making, funding or maintaining its Foreign
Currency Loans through another lending office located in another
jurisdiction so long as the making, funding or maintenance of such
Foreign Currency Loans through such other office does not, in the
reasonable judgment of such Lender, materially affect such Lender;
provided that any Lender which is unable or unwilling to fund its
Foreign Currency Loans through a branch of such Lender in the United
Kingdom will so notify the Borrowers.
(e) Each Person that shall become a Lender or a participant of a
Lender pursuant to subsection 11.3 shall, upon the effectiveness of the
related transfer, be required to provide all of the forms,
certifications and statements required pursuant to this subsection,
provided that in the case of a participant of a Lender the obligations
of such participant of a Lender pursuant to subsection (b) shall be
determined as if the participant of a Lender were a Lender except that
such participant of a Lender shall furnish all such required forms,
certifications and statements to the Lender from which the related
participation shall have been purchased.
3.11 Indemnity.
Xxxx promises to indemnify each Lender and to hold each Lender harmless
from any loss or expense which such Lender may sustain or incur (other than
through such Lender's gross negligence or willful misconduct) as a consequence
of (a) default by a Borrower in making a borrowing of, conversion into or
continuation of Eurodollar Loans or Quoted Rate Swingline Loans after such
Borrower has given a notice requesting the same in accordance with the
provisions of the Credit Agreement, (b) default by a Borrower in making any
prepayment of a Eurodollar Loan or Quoted Rate Swingline Loan after such
Borrower has given a notice thereof in accordance with the provisions of the
Credit Agreement or (c) the making by a Borrower of a prepayment of Eurodollar
Loans or Quoted Rate Swingline Loans on a day which is not the last day of an
Interest Period with respect thereto. With respect to Eurodollar Loans, such
indemnification may include an amount equal to the excess, if any, of (i) the
amount of interest which would have accrued on the amount so prepaid, or not so
borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
the applicable Interest Period (or, in the case of a failure to borrow, convert
or continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Eurodollar
Loans provided for in the Credit Agreement (excluding, however, the Applicable
Margin included therein, if any) over (ii) the amount of interest (as reasonably
determined by such Lender) which would have accrued to such Lender on such
amount by placing such amount on deposit for a comparable period with leading
banks in the interbank Eurodollar market. The covenants of Xxxx set forth in
this Section 3.11 shall survive the termination of the Credit Agreement and the
payment of the Loans and all other amounts payable under the Credit Agreement.
60
3.12 Pro Rata Treatment.
Except to the extent otherwise provided in the Credit Agreement:
(a) Loans. Each Loan, each payment or prepayment of principal of
any Loan or reimbursement obligations arising from drawings under
Letters of Credit, each payment of interest on the Loans or
reimbursement obligations arising from drawings under Letters of Credit,
each payment of Facility Fees, each payment of the Standby Letter of
Credit Fee, each payment of the Trade Letter of Credit Fee, each
reduction of the Revolving Committed Amount and each conversion or
extension of any Loan, shall be allocated pro rata among the Lenders in
accordance with the respective principal amounts of their outstanding
Loans and Participation Interests. With respect to Competitive Loans, if
Xxxx fails to specify the particular Competitive Loan or Loans as to
which any payment or other amount should be applied and it is not
otherwise clear as to the particular Competitive Loan or Loans to which
such payment or other amounts relate, or any such payment or other
amount is to be applied to Competitive Loans without regard to any such
direction by Xxxx, then each payment or prepayment of principal on
Competitive Loans and each payment of interest or other amount on or in
respect of Competitive Loans, shall be allocated pro rata among the
relevant Competitive Loan Lenders in accordance with the then
outstanding amounts of their respective Competitive Loans.
(b) Advances. Unless the Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not
make the amount that would constitute its Commitment Percentage of such
borrowing available to the Agent, the Agent may assume that such Lender
is making such amount available to the Agent, and the Agent may, in
reliance upon such assumption, make available to the appropriate
Borrower a corresponding amount. If such amount is not made available to
the Agent by such Lender within the time period specified therefor under
the Credit Agreement, such Lender shall pay to the Agent, on demand,
such amount with interest thereon at a rate equal to the Federal Funds
Rate (or, in the case of Pounds Sterling, the Interim Foreign Currency
Rate) for the period until such Lender makes such amount immediately
available to the Agent. A certificate of the Agent submitted to any
Lender with respect to any amounts owing under this subsection shall be
conclusive in the absence of manifest error. If such Lender's Commitment
Percentage of such borrowing is not made available to the Agent by such
Lender within two Business Days of the date of the related borrowing,
(i) the Agent shall notify the appropriate Borrower of the failure of
such Lender to make such amount available to the Agent and the Agent
shall also be entitled to recover such amount with interest thereon at
the rate per annum applicable to Base Rate Loans under the Credit
Agreement (except in the case of any Foreign Currency Loan, in which
case, at the rate per annum applicable to Foreign Currency Loans), on
demand, from the appropriate Borrower and (ii) then the applicable
Borrower may, without waiving any rights it may have against such
Lender, borrow a like amount on an unsecured basis from any commercial
bank for a period ending on the date upon which such Lender does in fact
make such borrowing available, provided that at the time such
61
borrowing is made and at all times while such amount is outstanding the
applicable Borrower would be permitted to borrow such amount pursuant
to Section 2.1 or Section 1.5, as applicable.
3.13 Sharing of Payments.
The Lenders agree among themselves that, in the event that any Lender
shall obtain payment in respect of any Loan, LOC Obligations or any other
obligation owing to such Lender under the Credit Agreement through the exercise
of a right of setoff, banker's lien or counterclaim, or pursuant to a secured
claim under Section 506 of Title 11 of the United States Code or other security
or interest arising from, or in lieu of, such secured claim, received by such
Lender under any applicable bankruptcy, insolvency or other similar law or
otherwise, or by any other means, in excess of its pro rata share of such
payment as provided for in the Credit Agreement, such Lender shall promptly
purchase from the other Lenders a participation in such Loans, LOC Obligations
and other obligations in such amounts, and make such other adjustments from time
to time, as shall be equitable to the end that all Lenders share such payment in
accordance with their respective ratable shares as provided for in the Credit
Agreement. The Lenders further agree among themselves that if payment to a
Lender obtained by such Lender through the exercise of a right of setoff,
banker's lien, counterclaim or other event as aforesaid shall be rescinded or
must otherwise be restored, each Lender which shall have shared the benefit of
such payment shall, by repurchase of a participation theretofore sold, return
its share of that benefit (together with its share of any accrued interest
payable with respect thereto) to each Lender whose payment shall have been
rescinded or otherwise restored. The Borrowers agree that any Lender so
purchasing such a participation may, to the fullest extent permitted by law,
exercise all rights of payment, including setoff, banker's lien or counterclaim,
with respect to such participation as fully as if such Lender were a holder of
such Loan, LOC Obligations or other obligation in the amount of such
participation. Except as otherwise expressly provided in the Credit Agreement,
if any Lender or the Agent shall fail to remit to the Agent or any other Lender
an amount payable by such Lender or the Agent to the Agent or such other Lender
pursuant to the Credit Agreement on the date when such amount is due, such
payments shall be made together with interest thereon for each date from the
date such amount is due until the date such amount is paid to the Agent or such
other Lender at a rate per annum equal to the Federal Funds Rate (or, in the
case of Pounds Sterling, the Interim Foreign Currency Rate). If under any
applicable bankruptcy, insolvency or other similar law, any Lender receives a
secured claim in lieu of a setoff to which this Section 3.13 applies, such
Lender shall, to the extent practicable, exercise its rights in respect of such
secured claim in a manner consistent with the rights of the Lenders under this
Section 3.13 to share in the benefits of any recovery on such secured claim.
3.14 Payments, Computations, Etc.
(a) Currency of Payments. Each payment on account of an amount
due from any Credit Party under the Credit Agreement or under any other
Credit Document shall be made by such Credit Party to the Agent for the
pro rata account of the Lenders entitled to receive such payment as
provided in the Credit Agreement in the currency in which
62
such amount is denominated. Without limiting the terms of the preceding
sentence, accrued interest on any Foreign Currency Loans and all fees
owing with respect to Foreign Letters of Credit shall be payable in
Pounds Sterling. Upon request, the Agent will give the Credit Parties a
statement showing the computation used in calculating such amount, which
statement shall be conclusive in the absence of manifest error. The
obligation of each Credit Party to make each payment on account of such
amount in the currency in which such amount is denominated shall not be
discharged or satisfied by any tender, or any recovery pursuant to any
judgment, which is expressed in or converted into any other currency,
except to the extent such tender or recovery shall result in the actual
receipt by the Agent of the full amount in the appropriate currency
payable under the Credit Agreement. Each Credit Party agrees that its
obligation to make each payment on account of such amount in the
currency in which such amount is denominated shall be enforceable as an
additional or alternative claim for recovery in such currency of the
amount (if any) by which such actual receipt shall fall short of the
full amount of such currency payable under the Credit Agreement, and
shall not be affected by judgment being obtained for such amount.
(b) Place and Manner of Payments. Except as otherwise
specifically provided in the Credit Agreement, all payments under the
Credit Agreement shall be made to the Agent in immediately available
funds, without offset, deduction, counterclaim or withholding of any
kind, prior to 2:00 P.M., local time in the place where such payment is
required to be made pursuant to this subsection (b), on the date due at
the office of the Agent: at 000 X. Xxxxx Xxxxxx, Xxxxxxxxxxxx Center,
15th Floor, NC1-001-15-01, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 with respect
to payments in Dollars; at 00 Xxx Xxxxx Xxxxxx, XX0-000-00-00, Xxxxxx,
Xxxxxxx XX0X 0XX with respect to payments in British Pounds Sterling; or
at such other place as may be designated by the Agent to the Borrowers
in writing. Payments received after such time shall be deemed to have
been received on the next succeeding Business Day. 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 Borrowers
maintained with the Agent (with notice to the Borrowers). Each Borrower
shall, at the time it makes any payment under the Credit Agreement,
specify to the Agent the Loans, LOC Obligations, Fees, interest or other
amounts payable by such Borrower under the Credit Agreement to which
such payment is to be applied (and in the event that it fails so to
specify, or if such application would be inconsistent with the terms of
the Credit Agreement, the Agent shall distribute such payment to the
Lenders in such manner as the Agent may determine to be appropriate in
respect of obligations owing by such Borrower under the Credit
Agreement, subject to the terms of Section 3.12(a)). The Agent will
distribute such payments to such Lenders, if any such payment is
received prior to 12:00 Noon (Charlotte, North Carolina time) on a
Business Day in like funds as received prior to the end of such Business
Day and otherwise the Agent will distribute such payment to such Lenders
on the next succeeding Business Day. Whenever any payment under the
Credit Agreement shall be stated to be due on a day which is not a
Business Day, the due date thereof shall be extended to the next
succeeding Business Day (subject to accrual of interest and Fees for the
period of such extension), except that in the case of Eurodollar Loans,
if the extension would cause
63
the payment to be made in the next following calendar month, then such
payment shall instead be made on the next preceding Business Day. Except
as expressly provided otherwise in the Credit Agreement, all
computations of interest and fees shall be made on the basis of actual
number of days elapsed over a year of 360 days, except with respect to
computation of interest on Foreign Currency Loans and Base Rate Loans
which (unless the Base Rate is determined by reference to the Federal
Funds Rate) shall be calculated based on a year of 365 or 366 days, as
appropriate. Interest shall accrue from and include the date of
borrowing, but exclude the date of payment.
3.15 Mandatory Assignment.
In the event any Lender delivers to either Borrower any notice in
accordance with Section 3.6 or any Lender requests payment by any Borrower of
any additional amounts pursuant to Section 3.10, then, provided that no Default
or Event of Default has occurred and is continuing at such time, Xxxx may, at
its own expense (such expense to include any transfer fee payable to the Agent
under Section 11.3(b)), and in its sole discretion require such Lender to
transfer and assign in whole or in part, without recourse (in accordance with
and subject to the terms and conditions of Section 11.3(b)), all or part of
its interests, rights and obligations under the Credit Agreement to an Eligible
Assignee which shall assume such assigned obligations, provided that (i) such
assignment shall not conflict with any law, rule or regulation or order of any
court or other Governmental Authority and (ii) the Borrowers or such assignee
shall have paid to the assigning Lender in immediately available funds the
principal of and interest accrued to the date of such payment on the Loans made
by it under the Credit Agreement and all other amounts owed to it under the
Credit Agreement.
SECTION 4
GUARANTY
4.1 The Guarantee.
Each of the Guarantors hereby jointly and severally guarantees to each
Lender and the Agent as hereinafter provided the prompt payment of the
Borrowers' Obligations in full when due (whether at stated maturity, as a
mandatory prepayment, by acceleration, a mandatory cash collateralization or
otherwise) strictly in accordance with the terms thereof. The Guarantors hereby
further agree that if any of the Borrowers' Obligations are not paid in full
when due (whether at stated maturity, as a mandatory prepayment, by
acceleration, as mandatory cash collateralization or otherwise), the Guarantors
will, jointly and severally, promptly pay the same, without any demand or notice
whatsoever, and that in the case of any extension of time of payment or renewal
of any of the Borrowers' Obligations, the same will be promptly paid in full
when due (whether at extended maturity, as a mandatory prepayment, by
acceleration or otherwise) in accordance with the terms of such extension or
renewal.
64
Notwithstanding any provision to the contrary contained in any of the
Credit Documents, to the extent the obligations of a Guarantor shall be
adjudicated to be invalid or unenforceable for any reason (including, without
limitation, because of any applicable state or federal law relating to
fraudulent conveyances or transfers) then the obligations of each Guarantor
under the Credit Agreement shall be limited to the maximum amount that is
permissible under applicable law (whether federal or state and including,
without limitation, the Bankruptcy Code).
4.2 Obligations Unconditional.
The obligations of the Guarantors under Section 4.1 are joint and
several, absolute and unconditional, irrespective of the value, genuineness,
validity, regularity or enforceability of any of the Credit Documents, or any
other agreement or instrument referred to therein, or any substitution, release
or exchange of any other guarantee of or security for any of the Borrowers'
Obligations, and, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever which might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor,
it being the intent of this Section 4.2 that the obligations of the Guarantors
under the Credit Agreement shall be absolute and unconditional under any and all
circumstances. Each Guarantor agrees that such Guarantor shall have no right of
subrogation, indemnity, reimbursement or contribution against either Borrower
or any other Guarantor of the Borrowers' Obligations for amounts paid under this
Guaranty until such time as the Lenders have been paid in full, all Commitments
under the Credit Agreement have been terminated and no Person or Governmental
Authority shall have any right to request any return or reimbursement of funds
from the Lenders in connection with monies received under the Credit Documents.
Without limiting the generality of the foregoing, it is agreed that, to the
fullest extent permitted by law, the occurrence of any one or more of the
following shall not alter or impair the liability of any Guarantor under the
Credit Agreement which shall remain absolute and unconditional as described
above:
(i) at any time or from time to time, without notice to any
Guarantor, the time for any performance of or compliance with any of the
Borrowers' Obligations shall be extended, or such performance or
compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of any
of the Credit Documents or any other agreement or instrument referred to
therein shall be done or omitted;
(iii) the maturity of any of the Borrowers' Obligations shall be
accelerated, or any of the Borrowers' Obligations shall be modified,
supplemented or amended in any respect, or any right under any of the
Credit Documents or any other agreement or instrument referred to
therein shall be waived or any other guarantee of any of the Borrowers'
Obligations or any security therefor shall be released or exchanged in
whole or in part or otherwise dealt with;
(iv) any Lien granted to, or in favor of, the Agent or any
Lender or Lenders as security for any of the Borrowers' Obligations
shall fail to attach or be perfected; or
65
(v) any of the Borrowers' Obligations shall be determined to be
void or voidable (including, without limitation, for the benefit of any
creditor of any Guarantor) or shall be subordinated to the claims of any
Person (including, without limitation, any creditor of any Guarantor).
With respect to its obligations under the Credit Agreement, each Guarantor
hereby expressly waives diligence, presentment, demand of payment, protest and
all notices whatsoever, and any requirement that the Agent or any Lender exhaust
any right, power or remedy or proceed against any Person under any of the Credit
Documents or any other agreement or instrument referred to therein, or against
any other Person under any other guarantee of, or security for, any of the
Borrowers' Obligations.
4.3 Reinstatement.
The obligations of the Guarantors under this Section 4 shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of any Person in respect of the Borrowers' Obligations is rescinded
or must be otherwise restored by any holder of any of the Borrowers'
Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and each Guarantor agrees that it will indemnify
the Agent and each Lender on demand for all reasonable costs and expenses
(including, without limitation, fees and expenses of counsel) incurred by the
Agent or such Lender in connection with such rescission or restoration,
including any such costs and expenses incurred in defending against any claim
alleging that such payment constituted a preference, fraudulent transfer or
similar payment under any bankruptcy, insolvency or similar law.
4.4 Certain Additional Waivers.
Without limiting the generality of the provisions of this Section 4,
each Guarantor hereby specifically waives the benefits of N.C. Gen. Stat.
Sections 26-7 through 26-9, inclusive. Each Guarantor further agrees that such
Guarantor shall have no right of recourse to security for the Borrowers'
Obligations.
4.5 Remedies.
The Guarantors agree that, to the fullest extent permitted by law, as
between the Guarantors, on the one hand, and the Agent and the Lenders, on the
other hand, the Borrowers' Obligations may be declared to be forthwith due and
payable as provided in Section 9.2 (and shall be deemed to have become
automatically due and payable in the circumstances provided in said Section 9.2)
for purposes of Section 4.1 notwithstanding any stay, injunction or other
prohibition preventing such declaration (or preventing the Borrowers'.
Obligations from becoming automatically due and payable) as against any other
Person and that, in the event of such declaration (or the Borrowers' Obligations
being deemed to have become automatically due and payable), the Borrowers'
Obligations (whether or not due and payable by any other Person) shall forthwith
become due and payable by the Guarantors for purposes of said Section 4.1.
66
4.6 Rights of Contribution.
The Guarantors hereby agree, as among themselves, that if any Guarantor
shall become an Excess Funding Guarantor (as defined below), each other
Guarantor shall, on demand of such Excess Funding Guarantor (but subject to the
next sentence hereof and to subsection (b) below), pay to such Excess Funding
Guarantor an amount equal to such Guarantor's Pro Rata Share (as defined below
and determined, for this purpose, without reference to the properties, assets,
liabilities and debts of such Excess Funding Guarantor) of such Excess Payment
(as defined below). The payment obligation of any Guarantor to any Excess
Funding Guarantor under this Section 4.6 shall be subordinate and subject in
right of payment to the prior payment in full of the obligations of such
Guarantor under the other provisions of this Section 4, and such Excess Funding
Guarantor shall not exercise any right or remedy with respect to such excess
until payment and satisfaction in full of all of such obligations. For purposes
hereof, (i) "Excess Funding Guarantor" shall mean, in respect of any obligations
arising under the other provisions of this Section 4 (hereafter, the "Guaranteed
Obligations"), a Guarantor that has paid an amount in excess of its Pro Rata
Share of the Guaranteed Obligations; (ii) "Excess Payment" shall mean, in
respect of any Guaranteed Obligations, the amount paid by an Excess Funding
Guarantor in excess of its Pro Rata Share of such Guaranteed Obligations; and
(iii) "Pro Rata Share", for the purposes of this Section 4.6, shall mean, for
any Guarantor, the ratio (expressed as a percentage) of (a) the amount by which
the aggregate present fair saleable value of all of its assets and properties
exceeds the amount of all debts and liabilities of such Guarantor (including
contingent, subordinated, unmatured, and unliquidated liabilities, but excluding
the obligations of such Guarantor under the Credit Agreement) to (b) the amount
by which the aggregate present fair saleable value of all assets and other
properties of the applicable Borrower and all of the applicable Guarantors
exceeds the amount of all of the debts and liabilities (including contingent,
subordinated, unmatured, and unliquidated liabilities, but excluding the
obligations of such Borrower and Guarantors under the Credit Agreement) of such
Borrower and Guarantors, all as of the Closing Date (if any Guarantor becomes a
party hereto subsequent to the Closing Date, then for the purposes of this
Section 4.6 such subsequent Guarantor shall be deemed to have been a Guarantor
as of the Closing Date and the information pertaining to, and only pertaining
to, such Guarantor as of the date such Guarantor became a Guarantor shall be
deemed true as of the Closing Date).
4.7 Continuing Guarantee.
The guarantee in this Section 4 is a continuing guarantee, and shall
apply to all Borrowers' Obligations whenever arising.
67
SECTION 5
CONDITION
5.1 Closing Conditions.
The obligation of the Lenders to enter into this Amendment shall be
subject to satisfaction of the following conditions (in form and substance
acceptable to the Lenders):
(a) The Agent shall have received original counterparts of this
Amendment executed by each of the parties hereto;
(b) The Agent shall have received an appropriate original
Revolving Note for each Lender, executed by Xxxx;
(c) The Agent shall have received an appropriate original
Foreign Currency Note for each Lender, executed by Xxxx Europe;
(d) The Agent shall have received all documents it may
reasonably request relating to the existence and good standing of Xxxx
Europe, the corporate or other necessary authority for and the validity
of this Amendment and the Notes, and any other matters relevant thereto,
all in form and substance reasonably satisfactory to the Agent;
(e) The Agent shall have received a legal opinion of special
United Kingdom counsel for Xxxx Europe, dated as of the Amendment
Effective Date and substantially in the form of Schedule 5.1(c), and
(f) The Agent shall have received such other documents,
agreements or information which may be reasonably requested by the
Agent.
5.2 Conditions to all Extensions of Credit.
The obligations of each Lender to make, convert or extend any Loan and
of the Issuing Lender to issue or extend Letters of are subject to satisfaction
of the following conditions in addition to satisfaction of the conditions set
forth in Section 5.1:
(i) The applicable Borrower shall have delivered (A) in the case
of any Revolving Loan or any Foreign Currency Loan, an appropriate
Notice of Borrowing or Notice of Extension/Conversion or (B) in the case
of any Letter of Credit, the Issuing Lender shall have received an
appropriate request for issuance in accordance with the provisions of
Section 2.2(b) or of Section 2.6(b);
(ii) The representations and warranties set forth in Section 6
shall be, subject to the limitations set forth therein, true and correct
in all material respects as of such date (except for those which
expressly relate to an earlier date);
68
(iii) There shall not have been commenced against either
Borrower or any Guarantor an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or after the Closing
Date in effect, or any case, proceeding or other action for the
appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of such Person or for any substantial
part of its Property or for the winding up or liquidation of its
affairs, and such involuntary case or other case, proceeding or other
action shall remain undismissed, undischarged or unbonded;
(iv) No Default or Event of Default shall exist and be
continuing either prior to or after giving effect thereto;
(v) No material adverse change shall have occurred since
December 3, 1995 in the condition (financial or otherwise), business,
management or prospects of Xxxx and its Subsidiaries taken as a whole;
and
(vi) Immediately after giving effect to the making of such Loan
(and the application of the proceeds thereof) or to the issuance of such
Letter of Credit, as the case may be, (A) the sum of the aggregate
principal amount of outstanding Revolving Loans plus Domestic LOC
Obligations outstanding plus the aggregate principal amount of
outstanding Competitive Loans plus the aggregate principal amount of
outstanding Swingline Loans plus the Dollar Amount (as determined as of
the most recent Determination Date) of the aggregate principal amount of
outstanding Foreign Currency Loans p1us the Dollar Amount (as determined
as of the most recent Determination Date) of Foreign LOC Obligations
outstanding shall not exceed the aggregate Revolving Committed Amount,
(B) the sum of the Dollar Amount (as determined as of the most recent
Determination Date) of the aggregate principal amount of outstanding
Foreign Currency Loans plus the Dollar Amount (as determined as of the
most recent Determination Date) of Foreign LOC Obligations outstanding
shall not exceed the aggregate Foreign Currency Committed Amount and (C)
the Domestic LOC Obligations shall not exceed the Domestic LOC Committed
Amount.
The delivery of each Notice of Borrowing, each Notice of Extension/Conversion
and each request for a Letter of Credit pursuant to Section 2.2(b) or Section
2.6(b) shall constitute a representation and warranty by the requesting Borrower
of the correctness of the matters specified in subsections (ii), (iii), (iv),
(v) and (vi) above.
69
SECTION 6
REPRESENTATIONS AND WARRANTIES
The Credit Parties hereby represent to the Agent and each Lender that:
6.1 Financial Condition.
(a) The audited consolidated balance sheet of Xxxx and its
consolidated Subsidiaries as of December 3, 1995 and the audited
consolidated statements of earnings and statements of cash flows for the
years ended November 27, 1994 and December 3, 1995 have heretofore been
furnished to each Lender. Such financial statements (including the notes
thereto) (i) have been audited by Coopers; & Xxxxxxx, (ii) have been
prepared in accordance with GAAP consistently, applied throughout the
periods covered thereby and (iii) present fairly in all material
respects (on the basis disclosed in the footnotes to such financial
statements) the consolidated financial position, results of operations
and cash flows of Xxxx and its consolidated Subsidiaries as of such date
and for such periods. The unaudited interim balance sheets of Xxxx and
its consolidated Subsidiaries as at the end of, and the related
unaudited interim statements of earnings and of cash flows for, each
fiscal quarterly period ended after December 3, 1995 and prior to the
Closing Date have heretofore been furnished to each Lender. Such interim
financial statements for each such quarterly period, (i) have been
prepared in accordance with the requirements of the Securities and
Exchange Commission for Form 10-Q and (ii) present fairly in all
material respects (on the basis disclosed in the footnotes to such
financial statements) the consolidated financial position, results of
operations and cash flows of Xxxx and its consolidated Subsidiaries as
of such date and for such periods. During the period from December 3,
1995 to and including the Amendment Effective Date, there has been no
sale, transfer or other disposition by Xxxx or any of its Subsidiaries
of any material part of the business or property of Xxxx and its
consolidated Subsidiaries, taken as a whole, and no purchase or other
acquisition by any of them of any business or property (including any
capital stock of any other person) material in relation to the
consolidated financial condition of Xxxx and its consolidated
Subsidiaries, taken as a whole, in each case, which, is not reflected in
the foregoing financial statements or in the notes thereto and has not
otherwise been disclosed in writing to the Lenders on or prior to the
Closing Date.
(b) The projected balance sheets and income statements of Xxxx
and its consolidated Subsidiaries for fiscal years 1997, 1998, 1999 and
2000, copies of which have heretofore been furnished to each Lender, are
based upon reasonable assumptions made known to the Lenders and upon
information not known to be incorrect or misleading in any material
respect.
70
6.2 No Change.
Since December 3, 1995, (a) there has been no development or event
relating to or affecting Xxxx or any of its Subsidiaries which has had or would
be reasonably expected to have a Material Adverse Effect and (b) except as
permitted under the Credit Agreement, no dividends or other distributions have
been declared, paid or made upon the capital stock or other equity interest in
Xxxx or any of its Subsidiaries nor, except as otherwise permitted under the
Credit Agreement, has any of the capital stock or other equity interest in Xxxx
or any of its Subsidiaries been redeemed, retired, purchased or otherwise
acquired for value by such Person.
6.3 Organization; Existence; Compliance with Law.
Xxxx and each of its Subsidiaries (a) is a corporation duly organized,
validly existing and is in good standing under the laws of the jurisdiction of
its incorporation or organization, (b) has the corporate or other necessary
power and authority, and the legal right, to own and operate its property, to
lease the property it operates as lessee and to conduct the business in which it
is currently engaged, except to the extent that the failure to have such legal
right would not be reasonably expected to have a Material Adverse Effect, (c) is
duly qualified as a foreign entity and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property or the conduct
of its business requires such qualification, other than in such jurisdictions
where the failure to be so qualified and in good standing would not be
reasonably expected to have a Material Adverse Effect, and (d) is in compliance
with all material Requirements of Law, except to the extent that the failure to
comply therewith would not, in the aggregate, be reasonably expected to have a
Material Adverse Effect.
6.4 Power; Authorization; Enforceable Obligations.
Each of the Credit Parties has the corporate or other necessary power
and authority, and the legal right, to make, deliver and perform the Credit
Documents to which it is a party, and, in the case of the Borrowers, to borrow
under the Credit Agreement, and has taken all necessary corporate action to
authorize the borrowings on the terms and conditions of the Credit Agreement and
to authorize the execution, delivery and performance of the Credit Documents to
which it is a party. As of the Closing Date, no consent or authorization of,
filing with, notice to or other similar act by or in respect of, any
Governmental Authority or any other Person is required to be obtained or made by
or on behalf of any Credit Party in connection with the borrowings under the
Credit Agreement or with the execution, delivery, performance, validity or
enforceability of the Credit Documents to which such Credit Party is a party,
except for consents, authorizations, notices and filings described in Schedule
6.4 (which was provided by Xxxx on and as of the Closing Date), all of which
have been obtained or made or have the status described in such Schedule 6.4.
This Amendment, the Credit Agreement and each other Credit Document to which any
Credit Party is a party have been duly executed and delivered on behalf of the
Credit Parties. Each of this Amendment, the Credit Agreement and the other
Credit Document to which any Credit Party is a party constitutes a legal, valid
and binding obligation of such Credit Party enforceable against such party in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
71
affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity or
at law).
6.5 No Legal Bar.
The execution, delivery and performance of the Credit Documents by the
Credit Parties, the borrowings under the Credit Agreement and the use of the
proceeds thereof (a) will not violate any Requirement of Law or contractual
obligation of Xxxx or any of its Subsidiaries in any respect that would
reasonably be expected to have a Material Adverse Effect, (b) will not result
in, or require, the creation or imposition of any Lien on any of the properties
or revenues of Xxxx or any of its Subsidiaries pursuant to any such Requirement
of Law or contractual obligation and (c) will not violate or conflict with any
provision of any Credit Party's articles of incorporation or by-laws.
6.6 No Material Litigation.
No litigation, investigation or proceeding of or before any arbitrator
or Governmental Authority is pending or, to the best knowledge of the Credit
Parties, threatened by or against Xxxx or any of its Subsidiaries or against any
of their respective properties or revenues which (a) relates to any of the
Credit Documents or any of the transactions contemplated thereby or (b) would be
reasonably expected to have a Material Adverse Effect.
6.7 No Default.
Neither Xxxx nor any of its Subsidiaries is in default under or with
respect to any of its contractual obligations in any respect which would be
reasonably expected to have a Material Adverse Effect. No Default or Event of
Default has occurred and is continuing.
6.8 Ownership of Property; Liens.
Each of Xxxx and its Subsidiaries has good record and marketable title
in fee simple to, or a valid leasehold interest in, all its material real
property, and good title to, or a valid leasehold interest in, all its other
material property, and none of such property is subject to any Lien, except for
Permitted Liens.
6.9 Intellectual Property.
Each of Xxxx and its Subsidiaries owns, or has the legal right to use,
all United States trademarks, tradenames, copyrights, technology, know-how and
processes necessary for each of them to conduct its business as currently
conducted (the "Intellectual Property") except for those the failure to own or
have such legal right to use would not be reasonably expected to have a Material
Adverse Effect. Except as provided on Schedule 6.9 (which was provided by Xxxx
on and as of the Closing Date), no claim has been asserted and is pending by any
Person challenging or questioning the use of any such Intellectual Property or
the validity or effectiveness of any such Intellectual Property, nor does any
Credit Party know of any such claim, and the use of such
72
Intellectual Property by Xxxx or any of its Subsidiaries does not infringe on
the rights of any Person, except for such claims and infringements that in the
aggregate, would not be reasonably expected to have a Material Adverse Effect.
6.10 No Burdensome Restrictions.
Except as previously disclosed in writing to the Lenders on or prior
to the Closing Date, no Requirement of Law or contractual obligation of Xxxx or
any of its Subsidiaries would be reasonably expected to have a Material Adverse
Effect.
6.11 Taxes.
(a) Each of Xxxx and its Subsidiaries has filed or caused to be
filed all United States federal income tax returns and all other
material tax returns which, to the best knowledge of the Credit Parties,
are required to be filed and has paid (a) all taxes shown to be due and
payable on said returns or (b) all taxes shown to be due and payable on
any assessments of which it has received notice made against it or any
of its property and all other taxes, fees or other charges imposed on it
or any of its property by any Governmental Authority (other than any (i)
taxes, fees or other charges with respect to which the failure to pay,
in the aggregate, would not have a Material Adverse Effect or (ii)
taxes, fees or other charges the amount or validity of which are
currently being contested and with respect to which reserves in
conformity with GAAP have been provided on the books of such Person),
and no tax Lien has been filed, and, to the best knowledge of the Credit
Parties, no claim is being asserted, with respect to any such tax, fee
or other charge.
(b) There are no income, stamp or other taxes, levies, imposts,
duties, charges, fees, deductions or withholdings, imposed, levied,
collected, withheld or assessed by any English court, or governmental
body, agency or other official either (i) on or by virtue of the
execution or delivery of the Credit Agreement, the Foreign Currency
Notes or any other Credit Document or (ii) on any payment to be made by
the Borrowers under the Credit Agreement, the Foreign Currency Notes or
any other Credit Document.
6.12 ERISA.
Except as set forth in Schedule 6.12 (which was provided by Xxxx on and
as of the Closing Date) or as could not reasonably be expected to have a
Material Adverse Effect:
(a) During the five-year period prior to the date on which this
representation is made or deemed made: (i) no Termination Event has
occurred, and, to the best knowledge of the Credit Parties, no event or
condition has occurred or exists as a result of which any Termination
Event could reasonably be expected to occur, with respect to any Plan;
(ii) no "accumulated funding deficiency," as such term is defined in
Section 302 of ERISA and Section 412 of the Code, whether or not waived,
has occurred with respect to any Plan; (iii) each Plan has been
maintained, operated, and funded in compliance with its
73
own terms and in material compliance with the applicable provisions of
ERISA, the Code, and any other applicable federal or state laws; and
(iv) no lien in favor of the PBGC or a Plan has arisen or is reasonably
likely to arise on account of any Plan.
(b) The actuarial present value of all "benefit liabilities"
under each Single Employer Plan (determined within the meaning of
Section 401(a)(2) of the Code, utilizing the actuarial assumptions used
to fund such Plans), whether or not vested, did not, as of the last
annual valuation date prior to the date on which this representation is
made or deemed made, exceed the current value of the assets of such Plan
allocable to such accrued liabilities.
(c) Neither Xxxx, any of the Subsidiaries of Xxxx nor any ERISA
Affiliate has incurred, or, to the best knowledge of the Credit
Parties, could be reasonably expected to incur, any withdrawal
liability under ERISA to any Multiemployer Plan or Multiple Employer
Plan. Neither Xxxx, any of the Subsidiaries of Xxxx nor any ERISA
Affiliate would become subject to any withdrawal liability under ERISA
if Xxxx, any of the Subsidiaries of Xxxx or any ERISA Affiliate were to
withdraw completely from all Multlemployer Plans and Multiple Employer
Plans as of the valuation date most closely preceding the date on which
this representation is made or deemed made. Neither Xxxx, any of the
Subsidiaries of Xxxx nor any ERISA Affiliate has received any
notification that any Multiemployer Plan is in reorganization (within
the meaning of Section 4241 of ERISA), is insolvent (within the meaning
of Section 4245 of ERISA), or has been terminated (within the meaning of
Title IV of ERISA), and no Multiemployer Plan is, to the best knowledge
of the Credit Parties, reasonably expected to be in reorganization,
insolvent, or terminated.
(d) No prohibited transaction (within the meaning of Section 406
of ERISA or Section 4975 of the Code) or breach of fiduciary
responsibility has occurred with respect to a Plan which has subjected
or may subject Xxxx, any of the Subsidiaries of Xxxx or any ERISA
Affiliate to any liability under Sections 406, 409, 502(i), or 502(l) of
ERISA or Section 4975 of the Code, or under any agreement or other
instrument pursuant to which Xxxx, any of the Subsidiaries of Xxxx or
any ERISA Affiliate has agreed or is required to indemnify any person
against any such liability.
(e) Each Plan which is a welfare plan (as defined in Section
3(l) of ERISA) to which Sections 601-609 of ERISA and Section 4980B of
the Code apply has been administered in compliance in all material
respects with such sections.
(f) Neither the execution and delivery of this Agreement nor the
consummation of the financing transactions contemplated thereunder will
involve any transaction which is subject to the prohibitions of Section
406 of ERISA or in connection with which a tax could be imposed pursuant
to Section 4975 of the Code. The representation by the Credit Parties in
the preceding sentence is made in reliance upon and subject to the
accuracy of the Lenders' representation in Section 11.17 with respect
to their source of funds and is subject, in the event that the source of
the funds used by the
74
Lenders in connection with this transaction is an insurance company's
general asset account, to the continued validity of Department of Labor
Interpretative Bulletin 75-2, 29 C.F.R. Section 2509.75-2(b) (November
13, 1986) or the issuance of any other similar relief or prohibited
transaction exemption, to the effect that assets in an insurance
company's general asset account do not constitute assets of an "employee
benefit plan" within the meaning of Section 3(3) of ERISA or a "plan"
within the meaning of Section 4975(e)(1) of the Code.
6.13 Governmental Regulations, Etc.
(a) No part of the proceeds of the Loans will be used, directly
or indirectly, for the purpose of purchasing or carrying any "margin
stock" within the meaning of Regulation G or Regulation U, or for the
purpose of purchasing or carrying or trading in any securities. If
requested by any Lender or the Agent, each of the Borrowers will furnish
to the Agent and each Lender a statement to the foregoing effect in
conformity with the requirements of FR Form U-1 referred to in said
Regulation U. No indebtedness being reduced or retired out of the
proceeds of the Loans was or will be incurred for the purpose of
purchasing or carrying any margin stock within the meaning of Regulation
U or any "margin security" within the meaning of Regulation T. "Margin
stock" within the meanings of Regulation U does not constitute more than
25% of the value of the consolidated assets of Xxxx and its Subsidiaries
or more than 25% of the value of the consolidated assets of Xxxx Europe
and its Subsidiaries. None of the transactions contemplated by the
Credit Agreement (including, without limitation, the direct or indirect
use of the proceeds of the Loans) will violate or result in a violation
of the Securities Act of 1933, as amended, or the Securities Exchange
Act of 19334, as amended, or regulations issued pursuant thereto, or
Regulation G, T, U or X.
(b) Neither Xxxx nor any of its Subsidiaries is subject to
regulation under the Public Utility Holding Company Act of 1935, the
Federal Power Act or the Investment Company Act of 1940, each as
amended. In addition, neither Xxxx nor any of its Subsidiaries is (i) an
"investment company" registered or required to be registered under the
Investment Company Act of 1940, as amended, and is not controlled by
such a company, or (ii) a "holding company", or a "subsidiary company"
of a "holding company", or an "affiliate" of a "holding company" or of a
"subsidiary" of a "holding company", within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
(c) As of the Closing Date, no director, executive officer or
principal shareholder of Xxxx or any of its Subsidiaries is a director,
executive officer or principal shareholder of any Lender. For the
purposes hereof the terms "director", "executive officer" and "principal
shareholder" (when used with reference to any Lender) have the
respective meanings assigned thereto in Regulation 0 issued by the Board
of Governors of the Federal Reserve System.
75
(d) Each of Xxxx and its Subsidiaries has obtained all material
licenses, permits, franchises or other governmental authorizations
necessary to the ownership of its respective Property and to the conduct
of its business.
(e) Neither Xxxx nor any of its Subsidiaries is in violation of
any applicable statute, regulation or ordinance of the United States of
America, or of any state, city, town, municipality, county or any other
jurisdiction, or of any agency thereof (including without limitation,
environmental laws and regulations), which violation could reasonably be
expected to have a Material Adverse Effect.
(f) Each of Xxxx and its Subsidiaries is current with all
material reports and documents, if any, required to be filed with any
state or federal securities commission or similar agency and is in full
compliance in all material respects with all applicable rules and
regulations of such commissions.
6.14 Subsidiaries.
Schedule 6.14 sets forth all the Subsidiaries of Xxxx at the Closing
Date, the jurisdiction of their incorporation and the direct or indirect
ownership interest of Xxxx therein.
6.15 Purpose of Loans and Letters of Credit.
The proceeds of the Loans (other than the Foreign Currency Loans) under
the Credit Agreement shall be used solely by Xxxx (i) to refinance the existing
Indebtedness of Xxxx under the Existing Credit Agreement, (ii) for the working
capital and general corporate purposes of Xxxx and its Domestic Subsidiaries and
(iii) to finance acquisitions by Xxxx. The proceeds of the Foreign Currency
Loans under the Credit Agreement shall be used solely by Xxxx Europe (i) to
refinance certain existing Indebtedness of Xxxx Europe, (ii) for working capital
and general corporate purposes of Xxxx Europe and (iii) to finance acquisitions
by Xxxx Europe. The Letters of Credit shall be used only for or in connection
with appeal bonds, reimbursement obligations arising in connection with surety
and reclamation bonds, reinsurance, domestic or international trade transactions
and obligations not otherwise aforementioned relating to transactions entered
into by the Borrowers in the ordinary course of business.
6.16 Environmental Matters.
Except as set forth in Schedule 6.16 (which was provided by Xxxx on and
as of the Closing Date) or as could not reasonably be expected to have a
Material Adverse Effect:
(a) Each of the facilities and properties owned, leased or operated by
Xxxx or any of its Domestic Subsidiaries (the "Properties") and all operations
at the Properties are in compliance with all applicable Environmental Laws, and
there is no violation of any Environmental Law with respect to the Properties or
the businesses operated by Xxxx or any of its Domestic Subsidiaries (the
"Businesses"), and there are no conditions relating to the Businesses or
Properties that could give rise to liability under any applicable Environmental
Laws.
76
(b) None of the Properties contains, or has previously contained, any
Materials of Environmental Concern at, on or under the Properties in amounts or
concentrations that constitute a violation of, or could give rise to liability
under, Environmental Laws.
(c) Neither Xxxx nor any of its Domestic Subsidiaries has received any
written notice of, or inquiry from any Governmental Authority regarding, any
violation, alleged violation, non-compliance, liability or potential liability
regarding environmental matters or compliance with Environmental Laws with
regard to any of the Properties or the Businesses that remains unresolved, nor
does Xxxx or any of its Domestic Subsidiaries have knowledge or reason to
believe that any such notice will be received or is being threatened.
(d) Materials of Environmental Concern have not been transported or
disposed of from the Properties, or generated, treated, stored or disposed of
at, on or under any of the Properties or, to the best knowledge of the Credit
Parties, any other location, in each case by or on behalf of Xxxx or any of its
Domestic Subsidiaries in violation of, or in a manner that would be reasonably
likely to give rise to liability under, any applicable Environmental Law.
(e) No judicial proceeding or governmental or administrative action is
pending or, to the best knowledge of any Credit Party, threatened, under any
Environmental Law to which Xxxx or any of its Domestic Subsidiaries is or will
be named as a party, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other administrative
or judicial requirements outstanding under any Environmental Law with respect to
Xxxx or any of its Domestic Subsidiaries, the Properties or the Businesses.
(f) There has been no release or, threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or related to
the operations (including, without limitation, disposal) of Xxxx or any of its
Domestic Subsidiaries in connection with the Properties or otherwise in
connection with the Businesses, in violation of Environmental Laws.
SECTION 7
AFFIRMATIVE COVENANTS
Each Credit Party hereby covenants and agrees that so long as the Credit
Agreement is in effect or any amounts payable under the Credit Agreement or
under any other Credit Document shall remain outstanding, and until all of the
Commitments shall have terminated:
7.1 Information Covenants.
Xxxx will furnish, or cause to be furnished, to the Agent:
(a) Annual Financial Statements. As soon as available, and in
any event within 90 days after the close of each fiscal year of Xxxx and
its Subsidiaries, a
77
consolidated balance sheet and income statement of Xxxx and its
Subsidiaries, as of the end of such fiscal year, together with related
consolidated statements of operations and retained earnings and of cash
flows for such fiscal year, setting forth in comparative form
consolidated figures for the preceding fiscal year, all such financial
information described above to be in reasonable form and detail and
audited by independent certified public accountants of recognized
national standing reasonably acceptable to the Agent and whose opinion
shall be to the effect that such financial statements have been prepared
in accordance with GAAP (except for changes with which such accountants
concur) and shall not be limited as to the scope of the audit or
qualified as to the status of Xxxx and its Subsidiaries as a going
concern; provided that, the delivery within the time period specified
above of Xxxx'x Annual Report on Form 10-K for any fiscal year prepared
in compliance with the requirements therefor and filed with the
Securities and Exchange Commission shall be deemed to satisfy the
requirements of this subsection (a) for such period.
(b) Quarterly Financial Statements. As soon as available, and in
any event within 45 days after the close of each fiscal quarter of
Xxxx and its Subsidiaries (other than the fourth fiscal quarter, in
which case 90 days after the end thereof) a consolidated balance sheet
and income statement of Xxxx and its Subsidiaries, as of the end of such
fiscal quarter, together with related consolidated statements of
operations and retained earnings and of cash flows for such fiscal
quarter in each case setting forth in comparative form consolidated
figures for the corresponding period of the preceding fiscal year, all
such financial information described above to be in reasonable form and
detail and reasonably acceptable to the Agent, and accompanied by a
certificate of the chief financial officer of Xxxx to the effect that
such quarterly financial statements fairly present in all material
respects the financial position of Xxxx and its Subsidiaries and have
been prepared in accordance with GAAP, subject to changes resulting from
audit and normal year-end audit adjustments; provided that, the delivery
within the time period specified above of Xxxx'x Annual Report on Form
10-Q for any fiscal quarter prepared in compliance with the requirements
therefor and filed with the Securities and Exchange Commission shall be
deemed to satisfy the requirements of this subsection (a) for such
period.
(c) Officer's Certificate. At the time of delivery of the
financial statements provided for in Sections 7.1(a) and 7.1(b) above, a
certificate of the chief financial officer of Xxxx; substantially in the
form of Schedule 7.1(c), (i) demonstrating compliance with the financial
covenants contained in Section 7.11 by calculation thereof as of the end
of each such fiscal period and (ii) stating that no Default or Event of
Default exists, or if any Default or Event of Default does exist,
specifying the nature and extent thereof and what action Xxxx proposes
to take with respect thereto.
(d) Annual Business Plan and Budgets. At least 90 days after the
end of each fiscal year of Xxxx, beginning with the fiscal year ending
December 1, 1996, an annual business plan and budget of Xxxx containing,
among other things, projected financial statements for the next fiscal
year.
78
(e) Accountant's Certificate. Within the period for delivery of
the annual financial statements provided in Section 7.1(a), a
certificate of the accountants conducting the annual audit stating that
they have reviewed Section 7.11 of the Credit Agreement and stating
further whether, in the course of their audit, they have become aware of
any Default or Event of Default under such Section 7.11 and, if any such
Default or Event of Default exists, specifying the nature and extent
thereof.
(f) Auditor's Reports. Promptly upon receipt thereof, a copy of
any other report or "management letter" submitted by independent
accountants to Xxxx or any of its Subsidiaries in connection with any
annual, interim or special audit of the books of such Person.
(g) Reports. Promptly upon transmission or receipt thereof, (i)
copies of any filings and registrations with, and reports to or, if
material, from, the Securities and Exchange Commission, or any successor
agency, and copies of all financial statements, proxy statements,
notices and reports as Xxxx or any of its Subsidiaries shall send to its
shareholders or to a holder of any Indebtedness owed by Xxxx or any of
its Subsidiaries in its capacity as such a holder and (ii) upon the
request of the Agent, all reports and written information to and from
the United States Environmental Protection Agency, or any state or local
agency responsible for environmental matters, the United States
Occupational Health and Safety Administration, or any state or local
agency responsible for health and safety matters, or any successor
agencies or authorities concerning environmental, health or safety
matters.
(h) Notices. Upon a Credit Party obtaining knowledge thereof,
Xxxx will give written notice to the Agent immediately of (a) the
occurrence of an event or condition consisting of a Default or Event of
Default, specifying the nature and existence thereof and what action the
Credit Parties propose to take with respect thereto, and (b) the
occurrence of any of the following with respect to Xxxx or any of its
Subsidiaries (i) the pendency or commencement of any litigation,
arbitral or governmental proceeding against such Person which if
adversely determined is likely to have a Material Adverse Effect, (ii)
the institution of any proceedings against such Person with respect to,
or the receipt of notice by such Person of potential liability or
responsibility for violation, or alleged violation of any federal, state
or local law, rule or regulation, including but not limited to,
Environmental Laws, the violation of which would likely have a Material
Adverse Effect, or (iii) any notice or determination concerning the
imposition of any withdrawal liability by a multiemployer Plan against
such Person or any ERISA Affiliate, the determination that a
Multiemployer Plan is, or is expected to be, in reorganization within
the meaning of Title IV of ERISA or the termination of any Plan.
(i) ERISA. Upon any of the Credit Parties obtaining knowledge
thereof, Xxxx will give written notice to the Agent promptly (and in any
event within five business days) of: (i) of any event or condition,
including, but not limited to, any Reportable Event, that constitutes,
or might reasonably lead to, a Termination Event; (ii)
79
with respect to any Multiemployer Plan, the receipt of notice as
prescribed in ERISA or otherwise of any withdrawal liability assessed
against Xxxx or any of its ERISA Affiliates, or of a determination that
any Multiemployer Plan is in reorganization or insolvent (both within
the meaning of Title IV of ERISA); (iii) the failure to make full
payment on or before the due date (including extensions) thereof of all
amounts which Xxxx, any of the Subsidiaries of Xxxx or any ERISA
Affiliate is required to contribute to each Plan pursuant to its terms
and as required to meet the minimum funding standard set forth in ERISA
and the Code with respect thereto; or (iv) any change in the funding
status of any Plan that reasonably could be expected to have a Material
Adverse Effect; together, with a description of any such event or
condition or a copy of any such notice and a statement by the principal
financial officer of Xxxx briefly setting forth the details regarding
such event, condition, or notice, and the action, if any, which has been
or is being taken or is proposed to be taken by the Credit Parties with
respect thereto. Promptly upon request, Xxxx shall furnish the Agent and
the Lenders with such additional information concerning any Plan as may
be reasonably requested, including, but not limited to, copies of each
annual report/return (Form 5500 series), as well as all schedules and
attachments thereto required to be filed with the Department of Labor
and/or the Internal Revenue Service pursuant to ERISA and the Code,
respectively, for each "plan year" (within the meaning of Section 3(39)
of ERISA).
(j) Other Information. With reasonable promptness upon any such
request, such other information regarding the business, properties or
financial condition of Xxxx or any of its Subsidiaries as the Agent or
the Required Lenders may reasonably request.
7.2 Preservation of Existence and Franchises.
Except as otherwise permitted pursuant to the terms of Section 8.4, Xxxx
will, and will cause each of its Subsidiaries to, do all things necessary to
preserve and keep in full force and effect its existence, material rights and
franchises and authority.
7.3 Books and Records.
Xxxx will, and will cause each of its Subsidiaries to, keep complete and
accurate books and records of its transactions in accordance with GAAP.
7.4 Compliance with Law.
Xxxx will, and will cause each of its Subsidiaries to, comply with all
laws, rules, regulations and orders, and all applicable restrictions imposed by
all Governmental Authorities, applicable to it and its property if
noncompliance with any such law, rule, regulation, order or restriction would
have a Material Adverse Effect.
80
7.5 Payment of Taxes and Other Indebtedness.
Xxxx will, and will cause each of its Subsidiaries to, pay and discharge
(i) all taxes, assessments and governmental charges or levies imposed upon it,
or upon its income or profits, or upon any of its properties, before they shall
become delinquent, (ii) all lawful claims (including claims for labor, materials
and supplies) which, if unpaid, might give rise to a Lien upon any of its
properties, and (iii) except as prohibited under the Credit Agreement, all of
its other Indebtedness as it shall become due; provided, however, that Xxxx and
its Subsidiaries shall not be required to pay any such tax, assessment, charge,
levy, claim or Indebtedness which is being contested in good faith by
appropriate proceedings and as to which adequate accruals therefor have been
established in accordance with GAAP, unless the failure to make any such payment
(i) would give rise to an immediate right to foreclose on a Lien securing such
amounts or (ii) would have a Material Adverse Effect.
7.6 Insurance.
Xxxx will, and will cause each of its Subsidiaries to, at all times
maintain in full force and effect insurance including worker's compensation
insurance, liability insurance, casualty, insurance and business interruption
insurance) in such amounts, covering such risks and liabilities and with such
deductibles or self-insurance retentions as are in accordance with normal
industry practice.
7.7 Maintenance of Property.
Xxxx will, and will cause each of its Subsidiaries to, maintain and
preserve its properties and equipment material to the conduct of its business in
good repair, working order and condition, normal wear and tear excepted, and
will make, or cause to be made, in such properties and equipment from time to
time all repairs, renewals, replacements, extensions, additions, betterments and
improvements thereto as may be needed or proper, to the extent and in the manner
customary for companies in similar businesses.
7.8 Performance of Obligations.
Xxxx will, and will cause each of its Subsidiaries to, perform in all
material respects all of its obligations under the terms of all material
agreements, indentures, mortgages, security agreements or other debt instruments
to which it is a party or by which it is bound.
7.9 Use of Proceeds.
The Borrowers will use the proceeds of the Loans and will use the
Letters of Credit solely for the purposes set forth in Section 6.15.
81
7.10 Audits/Inspections.
Upon reasonable notice and during normal business hours, Xxxx will, and
will cause each of its Subsidiaries to, permit representatives appointed by the
Agent, including, without limitation, independent accountants, agents,
attorneys, and appraisers to visit and inspect its property, including its books
and records, its accounts receivable and inventory, its facilities and its other
business assets, and to make photocopies or photographs thereof and to write
down and record any information such representative obtains and shall permit the
Agent or its representatives to investigate and verify the accuracy of
information provided to the Lenders and to discuss all such matters with the
officers, employees and representatives of such Person.
7.11 Financial Covenants.
(a) Consolidated Net Worth. Consolidated Net Worth at all times
shall be no less than $45,000,000, increased on a cumulative basis as of
the last day of each fiscal year commencing with the last day of fiscal
year 1996, by an amount equal to 30% of Consolidated Net Income for the
fiscal year then ended.
(b) Consolidated Leverage Ratio. The Consolidated Leverage Ratio
at each Calculation Date shall be no greater than the following
proportions:
Period Ratio
------ -----
For the last day of 3.25 to 1.00
fiscal year 1996 of Xxxx
For any first fiscal 3.00 to 1.00
quarter period, second
fiscal quarter period or
fourth fiscal quarter
period occurring from
the first day of fiscal
year 1997 of Xxxx through
the last day of such
fiscal year
For any third fiscal 3.50 to 1.00
quarter period occurring
from the first day of
fiscal year 1997 of Xxxx
through the last day of
such fiscal year
82
For any first fiscal 2.75 to 1.00
quarter period, second
fiscal quarter period
or fourth fiscal quarter
period occurring from
the first day of fiscal
year 1998 of Xxxx through
the last day of such
fiscal year
For any third fiscal 3.25 to 1.00
quarter period occurring
from the first day of
fiscal year 1998 of Xxxx
through the last day of
such fiscal year
For any first fiscal 2.50 to 1.00
quarter period, second
fiscal quarter period or
fourth fiscal quarter
period occurring from
the first day of fiscal
year 1999 of Xxxx and
thereafter
For any third fiscal 3.00 to 1.00
quarter period occurring
from the first day of
fiscal year 1999 of Xxxx
and thereafter
(c) Consolidated Fixed Charge Coverage Ratio. The Consolidated
Fixed Charge Coverage Ratio at each Calculation Date shall be no less
than 1.30 to 1.00.
(d) Consolidated Interest Coverage Ratio. The Consolidated
Interest Coverage Ratio at each Calculation Date shall be no less than
2.00 to 1.00.
(e) Consolidated Funded Indebtedness to Capitalization Ratio.
The Consolidated Funded Indebtedness to Capitalization Ratio at each
Calculation Date shall be no greater than the following proportions:
83
Period Ratio
------ -----
For any fiscal quarter 0.70 to 1.00
period occurring from
the Amendment Effective
Date through the last day of
fiscal year 1997 of Xxxx
For any fiscal quarter 0.65 to 1.00
occurring from the first
day of fiscal year 1998 of
Xxxx through the last day
of such fiscal year
For any fiscal quarter 0.60 to 1.00
period occurring from the
first day of fiscal year
1999 of Xxxx and thereafter
7.12 Additional Credit Parties.
Within thirty (30) days of any Person becoming a Material Subsidiary of
Xxxx or in the event that Xxxx elects to cause any other present or future
direct or indirect Subsidiary of Xxxx to become a Guarantor under the Credit
Agreement, Xxxx shall so notify the Agent and shall cause such Person to (a)
execute a Joinder Agreement in substantially the same form as Schedule 7.12 and
(b) deliver such other documentation as the Agent may reasonably request in
connection with the foregoing, including, without limitation, certified
corporate resolutions and other corporate documents of such Person and favorable
opinions of counsel to such Person (which shall cover, among other things, the
legality, validity, binding effect and enforceability of the documentation
referred to above), all in form, content and scope reasonably satisfactory to
the Agent.
Notwithstanding any provision of the Credit Agreement to the contrary,
in the event that any Guarantor shall not be or that any Guarantor shall cease
to be a Material Subsidiary in accordance with the terms of the Credit
Agreement, then, upon written request of Xxxx to the Agent and provided that no
Default or Event of Default shall exist at such time (1) such Guarantor,
automatically and without further act on the part of the Agent or the Lenders,
shall cease to be a Guarantor and shall be released from its obligations under
the Credit Agreement and (2) the Agent (on behalf of the Lenders) shall
thereupon execute such documents and take such other action reasonably requested
by Xxxx to cause such Guarantor to be released from its obligations arising
under the Credit Agreement.
84
7.13 Ownership of Subsidiaries.
Except to the extent otherwise provided in Section 8.4(b), Section 8.5
and clause (xv) of the definition of "Permitted Investments" set forth in
Section 1.1 and Section 8.11. Xxxx shall, directly or indirectly, own at all
times 100% of the capital stock of each of its Subsidiaries.
SECTION 8
NEGATIVE COVENANTS
Each Credit Party hereby covenants and agrees that, so long as the
Credit Agreement is in effect or any amounts payable under the Credit Agreement
or under any other Credit Document shall remain outstanding, and until all of
the Commitments shall have terminated:
8.1 Indebtedness.
Xxxx will not, nor will it permit any of its Subsidiaries to, contract,
create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness arising under the Credit Agreement and the
other Credit Documents;
(b) Indebtedness of Xxxx and any of its Subsidiaries existing as
of the Closing Date and set forth in Schedule 8.1. (which was provided
by Xxxx on and as of the Closing Date), and renewals, refinancings and
extensions thereof on terms and conditions no less favorable to such
Person than such existing Indebtedness;
(c) purchase money Indebtedness (including Capital Leases)
incurred after the Closing Date by Xxxx or any of its Foreign
Subsidiaries to finance the purchase of fixed assets provided that (i)
the aggregate principal amount of such Indebtedness plus the aggregate
outstanding principal amount of Indebtedness permitted pursuant to
clause (b) above and clause (i)(i) below shall not exceed $10,000,000 at
any time, (ii) such Indebtedness when incurred shall not exceed the
purchase price of the asset(s) financed and (iii) no such Indebtedness
shall be refinanced for a principal amount in excess of the principal
balance outstanding thereon at the time of such refinancing;
(d) unsecured Indebtedness of Xxxx or any of its Foreign
Subsidiaries with respect to letters of credit (other than Letters of
Credit issued under the Credit Agreement) provided that the aggregate
maximum amount available to be drawn under all such letters of credit,
together with all unreimbursed drawings with respect thereto, shall not
exceed $10,000,000 at any time outstanding;
(e) obligations of Xxxx in respect of interest rate protection
agreements, foreign currency exchange, commodity purchase or option
agreements or other interest or
85
exchange rate or commodity price hedging agreements entered into in
order to manage existing or anticipated interest rate, exchange rate or
commodity price risks and not for speculative purposes;
(f) obligations in connection with any Permitted Receivables
Financing;
(g) intercompany Indebtedness of Xxxxx, Seal and Xxxx Europe
owing to Xxxx to the extent permitted by the definition of "Permitted
Investments" set forth in Section 1.1;
(h) Indebtedness arising under the Senior Note Agreement and the
Senior Notes in an aggregate principal amount of up to $50,000,000; and
(i) in addition to the Indebtedness otherwise permitted by this
Section 8.1,
(i) other Indebtedness incurred after the Closing Date by
Xxxx or any of its Foreign Subsidiaries provided that (A) in the
case of any such Indebtedness incurred by the Borrowers, the
loan documentation with respect to such Indebtedness shall not
contain covenants or default provisions relating to Xxxx and its
Subsidiaries that are more restrictive than the covenants and
default provisions contained in the Credit Documents, (B) on the
date of incurrence of such Indebtedness after giving effect on a
Pro Forma Basis to the incurrence of such Indebtedness and to
the concurrent retirement of any other Indebtedness of Xxxx or
any of its Subsidiaries, no Default or Event of Default would
exist under the Credit Agreement and (C) the aggregate principal
amount of such Indebtedness plus the aggregate outstanding
principal amount of Indebtedness permitted pursuant to clauses
(b) and (c) above shall not exceed $10,000,000 at any time; and
(ii) (A) Guaranty Obligations of Xxxx with respect to any
Indebtedness of a Foreign Subsidiary permitted under this
Section 8.1 and (B) Guaranty Obligations of any Subsidiary of
Xxxx that is a Guarantor with respect to any Indebtedness of
Xxxx permitted under this Section 8.1.
Notwithstanding the foregoing of this Section 8.1, the aggregate
outstanding principal amount of all Indebtedness incurred after the
Closing Date by any Subsidiaries of Xxxx (other than Indebtedness
permitted under subsection (a), (b) or (g) hereof) plus the aggregate
outstanding principal amount of all Indebtedness secured by Liens
permitted under subsection (xiii) of the definition of "Permitted Liens"
plus the aggregate outstanding obligations incurred in transactions
permitted by Section 8.12 shall not exceed, at any time, 20% of
Consolidated Net Worth as of the then most recent Calculation Date with
respect to which the Agent shall have received the Required Financial
Information.
86
8.2 Liens.
Xxxx will not, nor will it permit any of its Subsidiaries to, contract,
create, incur, assume or permit to exist any Lien with respect to any of their
Property, whether now owned or after acquired, except for Permitted Liens.
8.3 Nature of Business.
Neither Xxxx nor any of its Subsidiaries will substantively alter the
character or conduct of the business conducted by any such Person as of the
Closing Date.
8.4 Consolidation, Merger, Sale or Purchase of Assets, etc.
Xxxx will not, nor will it permit any of its Subsidiaries to:
(a) dissolve, liquidate or wind up their affairs, or enter into
any transaction of merger or consolidation; provided, however, that, so
long as no Default or Event of Default would be directly or indirectly
caused as a result thereof, (i) Xxxx may merge or consolidate with any
of its Subsidiaries provided that Xxxx is the surviving corporation;
(ii) any Domestic Subsidiary of Xxxx may merge or consolidate with any
other Domestic Subsidiary of Xxxx; (iii) any Domestic Subsidiary of Xxxx
may merge or consolidate with any Foreign Subsidiary of Xxxx provided
that such Domestic Subsidiary is the surviving corporation; (iv) any
Foreign Subsidiary of Xxxx may merge or consolidate with any other
Foreign Subsidiary of Xxxx; and (v) any Wholly-Owned Subsidiary of Xxxx
may dissolve, liquidate or wind up its affairs at any time;
(b) sell, lease, transfer or otherwise dispose of any Property
(including without limitation pursuant to any sale and leaseback
transaction) other than (i) the sale of inventory in the ordinary course
of business for fair consideration, (ii) the sale or disposition of
machinery and equipment no longer used or useful in the conduct of such
Person's business, (iii) in a Permitted Receivables Financing, (iv) the
Fresno Asset Sale, provided that Xxxx shall (A) immediately repay or
prepay in full the industrial revenue bond financing in an outstanding
principal amount as of the Closing Date of approximately $1,600,000
relating to such assets and (B) prepay the Loans in connection with such
asset sale to the extent required by Section 3.3(b)(iii)(B) and (v)
other sales of assets, provide that (A) after giving effect on a Pro
Forma Basis to such sale or other disposition, no Default or Event of
Default would exist under the Credit Agreement and (B) Xxxx shall give
notice to the Agent and each of the Lenders specifying the anticipated
or actual date of such asset sale, briefly describing the assets sold or
to be sold and setting forth the net book value of such assets and
the aggregate consideration and Net Proceeds to be received for such
assets in connection with such asset sale, and thereafter Xxxx shall (1)
within the period of twelve months following the consummation of such
asset sale (with respect to any such asset sale, the "Application
Period"), apply (or cause an applicable Subsidiary to apply) an amount
equal to the Excess Sale Proceeds of such asset sale to the purchase,
acquisition or, in the case of real property, construction of
87
Alternative Assets in a transaction complying with all of the terms and
conditions of the Credit Agreement or (2) prepay the Loans in connection
with such asset sale to the extent required by Section 3.3(b)(iii); or
(c) acquire all or any portion of the capital stock or
securities of any other Person or purchase, lease or otherwise acquire
(in a single transaction or a series of related transactions) all or any
substantial part of the Property of any other Person unless (1) such
Property or Person represents operations similar to those Xxxx and its
Subsidiaries, (ii) no Default or Event of Default exists, and (iii)
after giving effect to such transaction, no Default or Event of Default
would exist.
8.5 Advances, Investments, Loans. etc.
Xxxx will not, nor will it permit any of its Subsidiaries to, make
Investments in or to any Person, except for Permitted Investments.
8.6 Restricted Payments.
Xxxx not, nor will it permit any of its Subsidiaries to, directly or
indirectly declare, order, make or set apart any sum for or pay any Restricted
Payment, except (1) to make (A) dividends payable solely in the same class of
capital stock of such Person and (B) other Restricted Payments payable solely in
common stock of such Person, (ii) to make dividends or other distributions
payable to Xxxx (directly or indirectly through Subsidiaries of Xxxx), (iii) as
permitted by Section 8.7 and (iv) so long as no Default or Event of Default
exists, other Restricted Payments made by Xxxx.
8.7 Prepayments of Indebtedness, etc.
Xxxx will not, nor will it permit any of its Subsidiaries to, (i) if any
Default or Event of Default has occurred and is continuing or would be directly
or indirectly caused as a result thereof, make (or give any notice with respect
thereto) any voluntary or optional payment or prepayment or redemption or
acquisition for value of (including without limitation, by way of depositing
money or securities with the trustee with respect thereto before due for the
purpose of paying when due), refund, refinance or exchange of any other
Indebtedness (other than Subordinated Indebtedness) or (ii) make (or give any
notice with respect thereto) any voluntary or optional payment or prepayment or
redemption or acquisition for value of (including without limitation, by way of
depositing money or securities with the trustee with respect thereto before due
for the purpose of paying when due), refund, refinance or exchange of any
Indebtedness subordinated to the obligations of the Borrowers or the Guarantors
under the Credit Agreement or (iii) amend, modify or change its articles of
incorporation (or corporate charter or other similar organizational document) or
bylaws (or other similar document) where such change would have a Material
Adverse Effect.
88
8.8 Transactions with Affiliates.
Xxxx will not, nor will it permit any of its Subsidiaries to, enter into
or permit to exist any transaction or series of transactions with any officer,
director, shareholder, Subsidiary or Affiliate of such Person other than (a)
advances of working capital to Xxxx, (b) transfers of cash and assets to Xxxx,
(c) transactions permitted by Section 8.1(g), Section 8.4(a), Section 8.5 or
Section 8.6, (d) normal compensation and reimbursement of expenses of officers
and directors and (e) except as otherwise specifically limited in the Credit
Agreement, other transactions which are entered into in the ordinary course of
such Person's business on terms and conditions substantially as favorable to
such Person as would be obtainable by it in a comparable arms-length
transactions with a Person other than an officer, director, shareholder,
Subsidiary or Affiliate.
8.9 Fiscal Year.
Without the prior written approval of the Agent, Xxxx will not, nor will
it permit any of its Subsidiaries to, change its fiscal year.
8.10 Limitation on Restrictions on Subsidiary Dividends and Other
Distributions, etc.
Xxxx will not, nor will it permit any of its Subsidiaries to, directly
or indirectly, create or otherwise cause, incur, assume, suffer or permit to
exist or become effective any consensual encumbrance or restriction of any kind
on the ability of any such Person to (a) pay dividends or make any other
distribution on any of such Person's capital stock, (b) subject to subordination
provisions, pay any Indebtedness owed to the Borrowers or any other Credit
Party, (c) make loans or advances to any other Credit Party or (d) transfer any
of its Property to any other Credit Party, except for encumbrances or
restrictions existing under or by reason of (i) customary nonassignment
provisions in any lease governing a leasehold interest and (ii) the Credit
Agreement and the other Credit Documents.
8.11 Issuance and Sale of Subsidiary Stock.
Xxxx will not, nor will it permit any of its Subsidiaries to, except to
qualify directors where required by applicable law and except as otherwise
permitted under the terms of Section 8.4(b), sell, transfer or otherwise dispose
of, any shares of capital stock of any of its Subsidiaries or permit any of its
Subsidiaries to issue, sell or otherwise dispose of, any shares of capital stock
of any of its Subsidiary.
8.12 Sale Leasebacks.
Xxxx will not, nor will it permit any of its Subsidiaries to, directly
or indirectly, become or remain liable as lessee or as guarantor or other surety
with respect to any lease, whether an Operating Lease or a Capital Lease, of any
Property (whether real or personal or mixed), whether now owned or acquired
after the Closing Date, (i) which such Person has sold or transferred or is to
sell or transfer to any other Person other than Xxxx or (ii) which such Person
intends to use for
89
substantially the same purpose as any other Property which has been sold or is
to be sold or transferred by such Person to any other Person in connection with
such lease that would cause the aggregate outstanding obligations of Xxxx and
its Subsidiaries in respect of all such transactions plus the aggregate
outstanding principal amount of all Indebtedness secured by Liens permitted
under subsection (xiii) of the definition of "Permitted Liens" plus the
aggregate outstanding principal amount of all Indebtedness of all Subsidiaries
of Xxxx to exceed, at any time, 20% of Consolidated Net Worth as of the then
most recent Calculation Date with respect to which the Agent shall have received
the Required Financial Information.
8.13 No Further Negative Pledges.
Xxxx will not, nor will it permit any of its Subsidiaries to, enter
into, assume or become subject to any agreement prohibiting or otherwise
restricting the creation or assumption of any Lien upon its properties or
assets, whether now owned or acquired after the Closing Date, or requiring the
grant of any security for such obligation if security is given for some other
obligation, other than (i) pursuant to the Senior Note Agreement and the Senior
Notes, in each case as in effect as of August 1, 1996, and (ii) prohibitions
against other encumbrances on specific Property encumbered to secure payment of
particular Indebtedness (which Indebtedness relates solely to such specific
Property, and improvements and accretions thereto, and is otherwise permitted
hereby).
8.14 Operating Lease Obligations.
Xxxx will not, nor will it permit any of its Subsidiaries to, enter
into, assume or permit to exist any obligations for the payment of rental under
Operating Leases which in the aggregate for all such Persons would exceed
$10,000,000 in any fiscal year.
SECTION 9
EVENTS OF DEFAULT
9.1 Events of Default.
An Event of Default shall exist upon the occurrence of any of the
following specified events (each an "Event of Default"):
(a) Payment. Any Credit Party shall
(i) default in the payment when due of any principal of
any of the Loans or of any reimbursement obligations arising
from drawings under Letters of Credit, or
(ii) default, and such defaults shall continue for five
(5) or more days, in the payment when due of any interest on the
Loans or on any
90
reimbursement obligations arising from drawings under Letters of
Credit, or of any Fees or other amounts owing under the Credit
Agreement, under any of the other Credit Documents or in
connection therewith; or
(b) Representations. Any representation, warranty or statement
made or deemed to be made by any Credit Party in any of the Credit
Documents, or in any statement or certificate delivered or required to
be delivered pursuant thereto shall prove untrue in any material respect
on the date as of which it was deemed to have been made; or
(c) Covenants. Any Credit Party shall
(i) default in the due performance or observance of any
term, covenant or agreement contained in Sections 7.2, 7.9,
7.11, 7.12, 7.13 or 8.1 through 8.14, inclusive, or
(ii) default in the due performance or observance by it
of any term, covenant or agreement (other than those referred to
in subsections (a), (b) or (c)(i) or this Section 9.1) contained
in the Credit Agreement and such default shall continue
unremedied for a period of at least 30 days after the earlier of
a responsible officer of a Credit Party becoming aware of such
default or notice thereof by the Agent; or
(d) Other Credit Document. (1) Any Credit Party shall default in
the due performance or observance of any term, covenant or agreement in
any of the other Credit Documents (subject to applicable grace or cure
periods, if any), or (ii) any Credit Document shall fail to be in full
force and effect or to give the Agent and/or the Lenders the liens,
rights, powers and privileges purported to be created thereby; or
(e) Guaranties. The guaranty given by any Guarantor under the
Credit Agreement (including any Additional Credit Party) or any
provision thereof shall cease to be in full force and effect, or any
Guarantor (including any Additional Credit Party) under the Credit
Agreement or any Person acting by or on behalf of such Guarantor shall
deny or disaffirm such Guarantor's obligations under such guaranty, or
any Guarantor shall default in the due performance or observance of any
term, covenant or agreement on its part to be performed or observed
pursuant to any guaranty; or
(f) Bankruptcy Event. Any Bankruptcy Event shall occur with
respect to Xxxx or any of its Subsidiaries; or
(g) Defaults under Other Agreements. With respect to any
Indebtedness (other than Indebtedness outstanding under the Credit
Agreement) in excess of $10,000,000 in the aggregate for Xxxx and its
Subsidiaries taken as a
91
whole, (i) Xxxx or any of its Subsidiaries shall (A) default in any
payment (beyond the applicable grace period with respect thereto, if
any) with respect to any such Indebtedness, or (B) default in the
observance or performance relating to such Indebtedness or contained in
any instrument or agreement evidencing, securing or relating thereto, or
any other event or condition shall occur or condition exist, the effect
of which default or other event or condition is to cause, or permit, the
holder or holders of such Indebtedness (or trustee or agent on behalf of
such holders) to cause (determined without regard to whether any notice
or lapse of time is required), any such Indebtedness to become due prior
to its stated maturity; or (ii) any such Indebtedness shall be declared
due and payable, or required to be prepaid other than by a regularly
scheduled required prepayment, prior to the stated maturity thereof; or
(h) Judgments. One or more judgments or decrees shall be entered
against Xxxx or any of its Subsidiaries involving a liability of
$10,000.000 or more in the aggregate (to the extent not paid or fully
covered by insurance provided by a carrier who has acknowledged
coverage) and any such judgments or decrees shall not have been
vacated, discharged or stayed or bonded pending appeal within 30 days
from the entry thereof; or
(i) ERISA. Any of the following events or conditions, if such
event or condition could have a Material Adverse Effect: (1) any
"accumulated funding deficiency," as such term is defined in Section 302
of ERISA and Section 412 of the Code, whether or not waived, shall exist
with respect to any Plan, or any lien shall arise on the assets of Xxxx,
any Subsidiary of Xxxx or any ERISA Affiliate in favor of the PBGC or a
Plan; (2) a Termination Event shall occur with respect to a Single
Employer Plan, which is, in the reasonable opinion of the Agent, likely
to result in the termination of such Plan for purposes of Title IV of
ERISA; (3) a Termination Event shall occur with respect to a
Multiemployer Plan or Multiple Employer Plan, which is, in the
reasonable opinion of the Agent, likely to result in (i) the termination
of such Plan for purposes of Title IV of ERISA, or (ii) Xxxx, any
Subsidiary of Xxxx or any ERISA Affiliate incurring any liability in
connection with a withdrawal from, reorganization of (within the meaning
of Section 4241 of ERISA), or insolvency or (within the meaning of
Section 4245 of ERISA) such Plan; or (4) any prohibited transaction
(within the meaning of Section 406 of ERISA or Section 4975 of the Code)
or breach of fiduciary responsibility shall occur which may subject
Xxxx, any Subsidiary of Xxxx or any ERISA Affiliate to any liability
under Sections 406, 409, 502(i), or 502(l) of ERISA or Section 4975 of
the Code, or under any agreement or other instrument pursuant to which
Xxxx, any Subsidiary of Xxxx or any ERISA Affiliate has agreed or is
required to indemnify any person against any such liability; or
(j) Ownership. There shall occur a Change of Control; or
92
(k) Senior Note Agreement. There shall occur and be continuing
any Event of Default under and as defined in the Senior Note Agreement.
9.2 Acceleration; Remedies.
Upon the occurrence of an Event of Default, and at any time thereafter
unless and until such Event of Default has been waived by the Required Lenders
or cured to the satisfaction of the Required Lenders (pursuant to the voting
procedures in Section 11.6), the Agent shall, upon the request and direction of
the Required Lenders, by written notice to the Credit Parties take any of the
following actions without prejudice to the rights of the Agent or any Lender to
enforce its claims against the Credit Parties, except as otherwise specifically
provided for in the Credit Agreement:
(i) Termination of Commitments. Declare the Commitments terminated
whereupon the Commitments shall be immediately terminated.
(ii) Acceleration. Declare the unpaid principal of and any accrued
interest in respect of all Loans, any reimbursement obligations arising
from drawings under Letters of Credit and any and all other indebtedness
or obligations of any and every kind owing by the Borrowers to any of
the Lenders under the Credit Agreement to be due whereupon the same
shall be immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by
each of the Borrowers.
(iii) Cash Collateral. Direct (A) Xxxx to pay (and Xxxx agrees that upon
receipt of such notice, or upon the occurrence of an Event of Default
under Section 9.1(f), it will immediately pay) to the Agent additional
cash, to be held by the Agent, for the benefit of the Lenders, in a cash
collateral account as additional security for the Domestic LOC
Obligations in respect of subsequent drawings under all then outstanding
Domestic Letters of Credit in an amount equal to the maximum aggregate
amount which may be drawn under all Domestic Letters of Credits then
outstanding and/or (B) Xxxx Europe to pay (and Xxxx Europe agrees that
upon receipt of such notice, or upon the occurrence of an Event of
Default under Section 9.1(f), it will immediately pay) to the Agent
additional cash, to be held by the Agent, for the benefit of the
Lenders, in a cash collateral account as additional security for the
Foreign LOC Obligations in respect of subsequent drawings under all then
outstanding Foreign Letters of Credit in an amount equal to the maximum
aggregate amount which may be drawn under all Foreign Letters of Credits
then outstanding.
(iv) Enforcement of Rights. Enforce any and all rights and interests
created and existing under the Credit Documents and all rights of
set-off.
Notwithstanding the foregoing, if an Event of Default specified in
Section 9.1(f) shall occur, then the Commitments shall automatically terminate
and all Loans, all reimbursement
93
obligations arising from drawings under Letters of Credit, all accrued interest
in respect thereof, all accrued and unpaid Fees and other indebtedness or
obligations owing to the Lenders under the Credit Agreement automatically shall
immediately become due and payable without the giving of any notice or other
action by the Agent.
SECTION 10
AGENCY PROVISIONS
10.1 Appointment.
Each Lender hereby designates and appoints NationsBank of North
Carolina, N.A. as administrative agent (in such capacity as Agent under the
Credit Agreement, the "Agent") of such Lender to act as specified in the Credit
Documents, and each such Lender hereby authorizes the Agent as the agent for
such Lender, to take such action on its behalf under the provisions of the
Credit Agreement and the other Credit Documents and to exercise such powers and
perform such duties as are expressly delegated by the terms of the Credit
Agreement and of the other Credit Documents, together with such other powers as
are reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in the Credit Agreement and in the other Credit Documents, the Agent
shall not have any duties or responsibilities, except those expressly set forth
in the Credit Agreement and therein, or any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into the Credit Agreement or any of the
other Credit Documents, or shall otherwise exist against the Agent. Except as
otherwise expressly provided in the Credit Agreement, the provisions of this
Section are solely for the benefit of the Agent and the Lenders and none of the
Credit Parties shall have any rights as a third party beneficiary of the
provisions of the Credit Agreement. In performing its functions and duties under
the Credit Agreement and the other Credit Documents, the Agent shall not act
solely as agent of the Lenders and does not assume and shall not be deemed to
have assumed any obligation or relationship of agency or trust with or for any
Credit Party.
10.2 Delegation of Duties.
The Agent may execute any of their respective duties under the Credit
Agreement or under the other Credit Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.
10.3 Exculpatory Provisions.
Neither the Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates shall be (i) liable for any action lawfully
taken or omitted to be taken by it or such Person under or in connection with
the Credit Agreement or in connection with any of the other
94
Credit Documents (except for its or such Person's own gross negligence or
willful misconduct), or (ii) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by any of the
Credit Parties contained in the Credit Agreement or in any of the other Credit
Documents or in any certificate, report, document, financial statement or other
written or oral statement referred to or provided for in, or received by the
Agent under or in connection with the Credit Agreement or in connection with the
other Credit Documents, or enforceability or sufficiency therefor of any of the
other Credit Documents, or for any failure of any Credit Party to perform its
obligations thereunder. The Agent shall not be responsible to any Lender for the
effectiveness, genuineness, validity, enforceability, collectibility or
sufficiency of the Credit Agreement, or any of the other Credit Documents or for
any representations, warranties, recitals or statements made therein or made by
either Borrower or any Credit Party in any written or oral statement or in any
financial or other statements, instruments, reports, certificates or any other
documents in connection therewith furnished or made by the Agent to the Lenders
or by or on behalf of the Credit Parties to the Agent or any Lender or be
required to ascertain or inquire as to the performance or observance of any of
the terms, conditions, provisions, covenants or agreements contained therein or
as to the use of the proceeds of the Loans or the use of the Letters of Credit
or of the existence or possible existence of any Default or Event of Default or
to inspect the properties, books or records of the Credit Parties.
10.4 Reliance on Communications.
The Agent shall be entitled to rely, and shall be fully protected in
relying, upon any note, writing, resolution, notice, consent, certificate,
affidavit, letter, cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person or
Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to any of the Credit Parties, independent accountants and
other experts selected by the Agent with reasonable care). The Agent may deem
and treat the Lenders as the owner of their respective interests under the
Credit Agreement for all purposes unless a written notice of assignment,
negotiation or transfer thereof shall have been filed with the Agent in
accordance with Section 11.3(b). The Agent shall be fully justified in failing
or refusing to take any action under the Credit Agreement or under any of the
other Credit Documents unless it shall first receive such advice or concurrence
of the Required Lenders as it deems appropriate or it shall first be indemnified
to its satisfaction by the Lenders against any and all liability and expense
which may be incurred by it by reason of taking or continuing to take any such
action. The Agent shall in all cases be fully protected in acting, or in
refraining from acting, under any of the Credit Documents in accordance with a
request of the Required Lenders (or to the extent specifically provided in
Section 11.6, all the Lenders) and such request and any action taken or failure
to act pursuant thereto shall be binding upon all the Lenders (including their
successors and assigns).
10.5 Notice of Default.
The Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default unless the Agent has received
notice from a Lender or a Credit Party
95
referring to the Credit Document, describing such Default or Event of Default
and stating that such notice is a "notice of default." In the event that the
Agent receives such a notice, the Agent shall give prompt notice thereof to the
Lenders. The Agent shall take such action with respect to such Default or Event
of Default as shall be reasonably directed by the Required Lenders.
10.6 Non-Reliance on Agent and Other Lenders.
Each Lender expressly acknowledges that neither the Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates has made
any representations or warranties to it and that no act by the Agent or any
affiliate thereof taken after the Closing Date, including any review of the
affairs of any Credit Party, shall be deemed to constitute any representation or
warranty by the Agent to any Lender. Each Lender represents to the Agent that it
has, independently and without reliance upon the Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made its
own appraisal of and investigation into the business, assets, operations,
property, financial and other conditions, prospects and creditworthiness of the
Borrowers and the other Credit Parties and made its own decision to make its
Loans and enter into the Credit Agreement. Each Lender also represents that it
will, independently and without reliance upon the Agent or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under the Credit Agreement, and to make such
investigation as it deems necessary to inform itself as to the business, assets,
operations, property, financial and other conditions, prospects and
creditworthiness of the Borrowers and the other Credit Parties. Except for
notices, reports and other documents expressly required to be furnished to the
Lenders by the Agent under the Credit Agreement, the Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, assets, property, financial or
other conditions, prospects or creditworthiness of the Borrowers and the other
Credit Parties which may come into the possession of the Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates.
10.7 Indemnification.
The Lenders agree to indemnify the Agent in its capacity as such (to the
extent not reimbursed by the Borrowers and without limiting the obligation of
the Borrowers to do so), ratably according to their respective Commitments (or
if the Commitments have expired or been terminated, in accordance with the
respective principal amounts of outstanding Loans and Participation Interests of
the Lenders), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever which may at any time (including without limitation at
any time following the final payment of all of the obligations of the Borrowers
under the Credit Documents) be imposed on, incurred by or asserted against the
Agent in its capacity as such in any way relating to or arising out of the
Credit Agreement or the other Credit Documents or any documents contemplated by
or referred to therein or the transactions contemplated thereby or any action
taken or omitted by the Agent under or in connection with any of the foregoing;
provided that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions,
96
judgments, suits, costs, expenses or disbursements resulting from the gross
negligence or willful misconduct of the Agent. If any indemnity furnished to the
Agent for any purpose shall, in the opinion of the Agent, be insufficient or
become impaired, the Agent may call for additional indemnity and cease, or not
commence, to do the acts indemnified against until such additional indemnity is
furnished. The agreements in this Section shall survive the repayment of the
Loans, LOC Obligations and other obligations under the Credit Documents and the
termination of the Commitments.
10.8 Agent in its Individual Capacity.
The Agent and its affiliates may make loans to, accept deposits from and
generally engage in any kind of business with any Credit Party as though the
Agent were not Agent under the Credit Agreement. With respect to the Loans made
by and all obligations of the Borrowers under the Credit Documents owing to it,
the Agent shall have the same rights and powers under the Credit Agreement as
any Lender and may exercise the same as though they were not Agent, and the
terms "Lender" and "Lenders" shall include the Agent in its individual capacity.
10.9 Successor Agent.
The Agent may, at any time, resign upon 20 days' written notice to the
Lenders and Xxxx, and be removed with or without cause by the Required Lenders
upon 30 days' written notice to the Agent. Upon any such resignation or removal,
the Required Lenders shall have the right, with the prior consent of Xxxx, to
appoint a successor Agent. If no successor Agent shall have been so appointed by
the Required Lenders, and shall have accepted such appointment, within 30 days
after the notice of resignation or notice of removal, as appropriate, then the
retiring Agent, with the prior consent of Xxxx, shall select a successor Agent
provided such successor is a Lender under the Credit Agreement or a commercial
bank organized under the laws of the United States of America or of any State
thereof and has a combined capital and surplus of at least $400,000.000. Upon
the acceptance of any appointment as Agent under the Credit Agreement by a
successor, 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 its duties and obligations as Agent,
as appropriate, under the Credit Agreement and the other Credit Documents and
the provisions of this Section 10.9 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under the Credit
Agreement.
SECTION 11
MISCELLANEOUS
11.1 Notices.
Except as otherwise expressly provided in the Credit Agreement, all
notices and other communications shall have been duly given and shall be
effective (i) when delivered, (ii) when
97
transmitted via telecopy (or other facsimile device) to the number set out
below, (iii) the day following the day on which the same has been delivered
prepaid to a reputable national overnight air courier service, or (iv) the third
Business Day following the day on which the same is sent by certified or
registered mail, postage prepaid, in each case to the respective parties at the
address, in the case of the Borrowers, Guarantors and the Agent, set forth
below, and, in the case of the Lenders. set forth on Schedule 2.1(a), or at such
other address as such party may specify by written notice to the other parties
to the Credit Agreement:
if to Xxxx or the Guarantors:
Xxxx Manufacturing Co.
One Commerce Square
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attn: Xx. Xxxxxxx X. Xxxxxxxx
Chief Financial Officer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
if to Xxxx Europe:
Xxxx Europe Limited
Xxxxxxx Xxxx Xxxx
Xxxxxxxx, Xxxxx, Xxxxxxx SS143BG
Attn: Xx. Xxxxx Xxxxxx
Telephone: 000-00-0000-000-000
Telecopy: 011-44-1268-527-211
if to the Agent:
NationsBank, N.A.
Independence Center, 15th Floor
NC1-001-15-04
000 X. Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Agency Services
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
98
with a copy to:
NationsBank, N.A.
NationsBank Corporate Center, 8th Floor
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: M. Xxxxxxx Xxxxxx
Senior Vice President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
11.2 Right of Set-Off.
In addition to any rights now or after the Closing Date granted under
applicable law or otherwise, and not by way of limitation of any such rights,
upon the occurrence of an Event of Default, each Lender is authorized at any
time and from time to time, without presentment, demand, protest or other notice
of any kind (all of which rights being hereby expressly waived), to set-off and
to appropriate and apply any and all deposits (general or special) and any other
indebtedness at any time held or owing by such Lender (including, without
limitation branches, agencies or Affiliates of such Lender wherever located) to
or for the credit or the account of any Credit Party against obligations and
liabilities of such Credit Party to such Lender under the Credit Agreement, the
Notes, the other Credit Documents or otherwise, irrespective of whether such
Lender shall have made any demand under the Credit Agreement and although such
obligations, liabilities or claims of such Lender to such Credit Party, or any
of them, may be contingent or unmatured, and any such set-off shall be deemed to
have been made immediately upon the occurrence of an Event of Default even
though such charge is made or entered on the books of such Lender subsequent
thereto. Each of the Credit Parties hereby agrees that any Person purchasing a
participation in the Loans and Commitments pursuant to Section 11.3(c) or
Section 3.13 may exercise all rights of set-off with respect to its
participation interest as fully as if such Person were a Lender under the
Credit Agreement.
11.3 Benefit of Agreement.
(a) Generally. The Credit Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective successors
and assigns of the parties to the Credit Agreement; provided that none
of the Credit Parties may assign and transfer any of its interests
without prior written consent of the Lenders and Xxxx; provide further
that the rights of each Lender to transfer, assign or grant
participations in its rights and/or obligations under the Credit
Agreement shall be limited as set forth in this Section 11.3, provided
however that nothing in the Credit Agreement shall prevent or prohibit
any Lender from (i) pledging its Loans to a Federal Reserve Bank in
support of borrowings made by such Lender from such Federal Reserve
Bank, or (ii) granting assignments or participation in such Lender's
Loans and/or Commitments to its parent company and/or to any
99
affiliate of such Lender which is at least 50% owned by such Lender or
its parent company.
(b) Assignments. Each Lender may assign all or a portion of its
rights and obligations under the Credit Agreement pursuant to an
assignment agreement substantially in the form of Schedule 11.3(b) to
one or more Eligible Assignees, provided that any such assignment shall
be in a minimum aggregate amount of $5,000,000 of the Commitments and in
integral multiples of $1,000,000 above such amount. Any assignment under
this Section 11.3(b) shall be effective upon delivery to the Agent of
written notice of the assignment together with a transfer fee of $3,500
payable to the Agent for its own account. The assigning Lender will give
prompt notice to the Agent and Xxxx of any such assignment. Upon the
effectiveness of any such assignment (and after notice to Xxxx as
provided in the Credit Agreement), the assignee shall become a "Lender"
for all purposes of the Credit Agreement and the other Credit Documents
and, to the extent of such assignment, the assigning Lender shall be
relieved of its obligations under the Credit Agreement to the extent of
the Loans and Commitment components being assigned. Along such lines the
Borrowers agree that upon notice of any such assignment and surrender of
the appropriate Note or Notes, each of them will promptly provide to the
assigning Lender and to the assignee separate promissory notes in the
amount of their respective interests substantially in the form of the
original Note (but with notation thereon that it is given in
substitution for and replacement of the original Note or any replacement
notes thereof). By executing and delivering an assignment agreement in
accordance with this Section 11.3(b), the assigning Lender thereunder
and the assignee thereunder shall be deemed to confirm to and agree with
each other and the other parties to the Credit Agreement as follows: (i)
such assigning Lender warrants that it is the legal and beneficial owner
of the interest being assigned thereby free and clear of any adverse
claim; (ii) except as set forth in clause (i) above, such assigning
Lender makes no representation or warranty and assumes no responsibility
with respect to any statements, warranties or representations made in or
in connection with the Credit Agreement, any of the other Credit
Documents or any other instrument or document furnished pursuant
thereto, or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement, any of the
other Credit Documents or any other instrument or document furnished
pursuant thereto or the financial condition of any Credit Party or the
performance or observance by any Credit Party of any of its obligations
under the Credit Agreement, any of the other Credit Documents or any
other instrument or document furnished pursuant thereto; (iii) such
assignee represents and warrants that it is legally authorized to enter
into such assignment agreement; (iv) such assignee confirms that it has
received a copy of the Credit Agreement, the other Credit Documents and
such other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into such assignment
agreement; (v) such assignee will independently and without reliance
upon the Agent, such assigning Lender or any other Lender, and based on
such
100
documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under the Credit Agreement and the other Credit Documents; (vi) such
assignee appoints and authorizes the Agent to take such action on its
behalf and to exercise such powers under the Credit Agreement or any
other Credit Document as are delegated to the Agent by the terms
thereof, together with such powers as are reasonably incidental thereto;
and (vii) such assignee agrees that it will perform in accordance with
their terms all the obligations which by the terms of the Credit
Agreement and the other Credit Documents are required to be performed by
it as a Lender.
(c) Participations. Each Lender may sell, transfer, grant or
assign participations in all or any part of such Lender's interests and
obligations under the Credit Agreement; provided that (i) such selling
Lender shall remain a "Lender" for all purposes under the Credit
Agreement (such selling Lender's obligations under the Credit Documents
remaining unchanged) and the participant shall not constitute a Lender
under the Credit Agreement, (ii) no such participant shall have, or be
granted, rights to approve any amendment or waiver relating to the
Credit Agreement or the other Credit Documents except to the extent any
such amendment or waiver would (A) reduce the principal of or rate of
interest on or Fees in respect of any Loans in which the participant is
participating, (B) postpone the date fixed for any payment of principal
(including extension of the Termination Date or the date of any
mandatory prepayment), interest or Fees in which the participant is
participating, or (C) release any Guarantor from its guaranty
obligations under the Credit Agreement (except as expressly provided in
the Credit Documents), (iii) sub-participations by the participant
(except to an affiliate, parent company or affiliate of a parent company
of the participant) shall be prohibited and (iv) any such participations
shall be in a minimum aggregate amount of $5,000,000 of the Commitments
and in integral multiples of $1,000,000 in excess thereof. In the case
of any such participation, the participant shall not have any rights
under the Credit Agreement or the other Credit Documents (the
participant's rights against the selling Lender in respect of such
participation to be those set forth in the participation agreement with
such Lender creating such participation) and all amounts payable by the
Borrowers under the Credit Agreement shall be determined as if such
Lender had not sold such participation, provided, however, that such
participant shall be entitled to receive additional amounts under
Sections 3.6, 3.9, 3.10 and 3.11 on the same basis as if it were a
Lender, except that all claims and petitions for payment and all
payments made pursuant to such sections shall be made through such
selling Lender and except that a participant shall not be entitled to
receive pursuant to such provisions an amount larger than its share of
the amount of which the selling Lender would have been entitled.
101
11.4 No Waiver; Remedies Cumulative.
No failure or delay on the part of the Agent or any Lender in exercising
any right, power or privilege under any Credit Document and no course of dealing
between any of the Credit Parties shall operate as a waiver thereof; nor shall
any single or partial exercise of any right, power or privilege under any Credit
Document preclude any other or further exercise thereof or the exercise of any
other right, power or privilege thereunder. The rights and remedies provided in
the Credit Agreement are cumulative and not exclusive of any rights or remedies
which the Agent or any Lender would otherwise have. No notice to or demand on
any Credit Party in any case shall entitle the Borrowers or any other Credit
Party to any other or further notice or demand in similar or other circumstances
or constitute a waiver of the rights of the Agent or the Lenders to any other or
further action in any circumstances without notice or demand.
11.5 Payment of Expenses, etc.
Xxxx agrees to: (i) pay all reasonable out-of-pocket costs and expenses
of the Agent in connection with the negotiation, preparation, execution and
delivery and administration of the Credit Documents and the documents and
instruments referred to therein (including, without limitation, the reasonable
fees and expenses of Xxxxx & Xxx Xxxxx, special counsel to the Agent) and any
amendment, waiver or consent relating thereto including, but not limited to, any
such amendments, waivers or consents resulting from or related to any work-out,
renegotiation or restructure relating to the performance by the Credit Parties
under the Credit Agreement and of the Agent and the Lenders in connection with
enforcement of the Credit Documents and the documents and instruments referred
to therein (including, without limitation, in connection with any such
enforcement, the reasonable fees and disbursements of counsel for the Agent and
each of the Lenders); (ii) pay and hold each of the Lenders harmless from and
against any and all present and future stamp and other similar taxes with
respect to the foregoing matters and save each of the Lenders harmless from and
against any and all liabilities with respect to or resulting from any delay or
omission (other than to the extent attributable to such Lender) to pay such
taxes; and (iii) indemnify each Lender, its officers, directors, employees,
representatives and agents from and hold each of them harmless against any and
all losses, liabilities, claims, damages or expenses incurred by any of them as
a result of, or arising out of, or in any way related to, or by reason of, any
investigation, litigation or other proceeding (whether or not any Lender is a
party thereto) related to the entering into and/or performance of any Credit
Document or the use of proceeds of any Loans (including other extensions of
credit) or the consummation of any other transactions contemplated in any Credit
Document, including, without limitation, the reasonable fees and disbursements
of counsel incurred in connection with any such investigation, litigation or
other proceeding (but excluding any such losses, liabilities, claims, damages or
expenses to the extent incurred by reason of gross negligence or willful
misconduct on the part of the Person to be indemnified).
11.6 Amendments, Waivers and Consents.
Neither the Credit Agreement nor any other Credit Document nor any of
the terms thereof may be amended, changed, waived, discharged or terminated
unless such amendment, change,
102
waiver, discharge or termination is in writing entered into by, or approved in
writing by, the Required Lenders, providad that no such amendment, change,
waiver, discharge or termination shall, without the consent of each Lender, (i)
extend the scheduled maturities (including the final maturity and any mandatory
prepayments) of any Loan, or any portion thereof, or reduce the rate or extend
the time of payment of interest (other than as a result of waiving the
applicability of any post-default increase in interest rates) thereon or fees
under the Credit Agreement or reduce the principal amount thereof, or increase
the Commitments of the Lenders over the amount thereof in effect (it being
understood and agreed that a waiver of any Default or Event of Default or of a
mandatory reduction in the total commitments shall not constitute a change in
the terms of any Commitment of any Lender), (ii) release any Guarantor from its
guaranty obligations under the Credit Agreement (except as expressly provided in
the Credit Documents), (iii) amend, modify or waive any provision of this
Section or Section 3.6, 3.10, 3.11, 3.12, 3.13, 5.1, 5.2, 9.1(a), 11.2, 11.3,
11.5 or 11.9, (iv) reduce any percentage specified in, or otherwise modify, the
definition of "Foreign Currency Equivalent," "Determination Date," "Dollar
Amount," "Dollar Equivalent," or "Required Lenders" or (v) consent to the
assignment or transfer by any Borrower (or Guarantor) of any of its rights and
obligations under (or in respect of) the Credit Agreement. No provision of
Section 2.2 or Section 2.6 may be amended without the consent of the Issuing
Lender, no provision of Section 2.4 may be amended without the consent of the
Swingline Lender and no provision of Section 10 may be amended without the
consent of the Agent.
11.7 Counterparts.
This Amendment may be executed in any number of counterparts, each of
which where so executed and delivered shall be an original, but all of which
shall constitute one and the same instrument. It shall not be necessary in
making proof of the Credit Agreement to produce or account for more than one
such counterpart.
11.8 Headings.
The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of
any provision of hereof.
11.9 Survival of Indemnification.
All indemnities set forth in the Credit Agreement, including, without
limitation, in Section 2.2(h), 2.6(i), 3.9, 3.11, 10.7 or 11.5 shall survive the
making of the Loans, the issuance of the Letters of Credit, the repayment of the
Loans, LOC Obligations and other obligations under the Credit Documents and the
termination of the Commitments under.
11.10 Governing Law; Submission to Jurisdiction; Venue; Arbitration.
(a) THE CREDIT DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES THEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA. Any legal
action or
103
proceeding with respect to the Credit Agreement or any other Credit Document may
be brought in the courts of the State of North Carolina in Mecklenburg County,
or of the United States for the Western District of North Carolina, and, by
execution and delivery of the Credit Agreement, each of the Credit Parties
hereby irrevocably accepts for itself and in respect of its property, generally
and unconditionally, the jurisdiction of such courts. Each of the Credit Parties
further irrevocably consents to the service of process out of any of the
aforementioned courts in any such action or proceeding by the mailing of copies
thereof by registered or certified mail, postage prepaid, to it at the address
set out notices pursuant to Section 11.1, such service to become effective 30
days after such mailing. Nothing in the Credit Agreement shall affect the right
of the Agent to serve process in any other manner permitted by law or to
commence legal proceedings or to otherwise proceed against any Credit Party in
any other jurisdiction.
(b) Each of the Credit Parties hereby irrevocably waives any objection
which it may now or after the Closing Date have to the laying of venue of any
of the aforesaid actions or proceedings arising out of or in connection with the
Credit Agreement or any other Credit Document brought in the courts referred to
in subsection (a) hereof and hereby further irrevocably waives and agrees not to
plead or claim in any such court that any such action or proceeding brought in
any such court has been brought in an inconvenient forum.
(c) EACH OF THE AGENTS, EACH OF THE LENDERS AND EACH OF THE CREDIT
PARTIES HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THE CREDIT DOCUMENTS OR
THE TRANSACTIONS CONTEMPLATED THEREBY.
(d) (i) Without limiting the generality of subsections (a), (b) and (c)
of this Section 11.10, Xxxx Europe agrees that any controversy or claim with
respect to it arising out of or relating to the Credit Agreement or any of the
other Credit Documents may, at the option of the Agent and the Lenders, be
settled immediately by submitting the same to binding arbitration in the City of
Charlotte, North Carolina (or such other place as the parties may agree) in
accordance with the Commercial Arbitration Rules then obtaining of the American
Arbitration Association. Upon the request and submission of any controversy or
claim for arbitration under the Credit Agreement, the Agent shall give Xxxx
Europe not less than 45 days written notice of the request for arbitration, the
nature of the controversy or claim, and the time and place set for arbitration.
Xxxx Europe agrees that such notice is reasonable to enable it sufficient time
to prepare and present its case before the arbitration panel. Judgment on the
award rendered by the arbitration panel may be entered in any court in which any
action could have been brought or maintained, including without limitation any
court of the State of North Carolina or any Federal court sitting in the State
of North Carolina. The expenses of arbitration shall be paid by Xxxx Europe.
104
(ii) The provisions of subsection (d)(i) above are intended to comply
with the requirements of the Convention on the Recognition and Enforcement of
Foreign Arbitral Awards (the "Convention"). To the extent that any provisions of
such subsection (d)(i) are not consistent with or fail to conform to the
requirements set out in the Convention, such subsection (d)(i) shall be deemed
amended to conform to the requirements of the Convention.
(iii) Xxxx Europe hereby specifically consents and submits to the
jurisdiction of the courts of the State of North Carolina and courts of the
United States located in the State of North Carolina for purposes of entry of a
judgment or arbitration award entered by the arbitration panel.
(iv) Xxxx Europe hereby irrevocably appoints Xxxx as process agent in
its name, place and stead (the "North Carolina Process Agent") to receive and
forward service of any and all writs, summonses and other legal process in any
suit, action or proceding brought in the State of North Carolina, agrees that
such service in any such suit, action or proceeding may be made upon the North
Carolina Process Agent and agrees to take all such action as may be necessary to
continue said appointment in full force and effect or to appoint another agent
so that Xxxx Europe will at all times have an agent in the State of North
Carolina for service of process for the above purposes.
11.11 Severability.
If any provision of any of the Credit Documents is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable and
the remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions.
11.12 Entirety.
The Credit Documents represent the entire agreement of the parties
thereto, and supersede all prior agreements and understandings, oral or written,
if any, including any commitment letters or correspondence relating to the
Credit Documents or the transactions contemplated therein.
11.13 Survival of Representations and Warranties.
All representations and warranties made by the Credit Parties in the
Credit Agreement shall survive delivery of the Notes and the making of the Loans
and the issuance of the Letters of Credit.
11.14 Binding Effect; Termination of Credit Agreement; etc.
(a) The Credit Agreement shall be deemed to have become effective
at such time on or after the Closing Date when it shall have been executed by
the Borrowers, the
105
Guarantors and the Agent, and the Agent shall have received copies thereof
(telefaxed or otherwise) which, when taken together, bear the signatures of each
Lender, and thereafter the Credit Agreement shall be binding upon and inure to
the benefit of the Borrowers, the Guarantors, the Agent and each Lender and
their respective successors and assigns.
(b) The term of the Credit Agreement shall be until no Loans, LOC
Obligations or any other amounts payable under any of the Credit Documents shall
remain outstanding and until all of the Commitments shall have expired or been
terminated.
(c) This Amendment shall become effective at such time on or after
the Amendment Effective Date when it shall have been executed by the Borrowers,
the Guarantors and the Agent, and the Agent shall have received copies hereof
(telefaxed or otherwise) which, when taken together, bear the signatures of each
Lender, and thereafter the Credit Agreement shall be binding upon and inure to
the benefit of the Borrowers, the Guarantors, the Agent and each Lender and
their respective successors and assigns.
(d) At such time as this Amendment shall have become effective
pursuant to the terms of Section 11.14(c), the promissory notes executed in
connection with the Existing Credit Agreement shall be replaced with the Notes
executed in connection with this Amendment.
11.15 Judgment Currency.
(a) Each Credit Party's obligations under the Credit Agreement to make
payments in Dollars or in Pounds Sterling (the "Obligation Currency") shall not
be discharged or satisfied by any tender or recovery pursuant to any judgment
expressed in or converted into any currency other than the Obligation Currency,
except to the extent that such tender or recovery results in the effective
receipt by the Agent or a Lender of the full amount of the Obligation Currency
expressed to be payable to the Agent or such Lender under the Credit Agreement.
If, for the purpose of obtaining or enforcing judgment against any Credit Party
in any court or in any jurisdiction, it becomes necessary to convert into or
from any currency other than the Obligation Currency (such other currency being
hereinafter referred to as the "Judgment Currency") an amount due in the
Obligation Currency, the conversion shall be made, at the Dollar Equivalent or
the Foreign Currency Equivalent, as applicable, determined in each case as of
the Business Day immediately preceding the day on which the judgment is given
(such Business Day being hereinafter referred to as the "Judgment Currency
Conversion Date").
(b) If there is a change in the rate of exchange prevailing between the
Judgment Currency Conversion Date and the date of actual payment of the amount
due, such amount payable by the applicable Credit Party shall be reduced or
increased, as applicable, such that the amount paid in the Judgment Currency,
when converted at the rate of exchange prevailing on the date of payment, will
produce the amount of the Obligation Currency which could have been purchased
with the amount of Judgment
106
Currency stipulated in the judgment or judicial award at the rate of exchange
prevailing on the Judgment Currency Conversion Date.
11.16 Confidentiality.
The Agent and the Lenders agree to keep confidential (and to cause their
respective affiliates, officers, directors, employees, agents and
representatives to keep confidential) all information, materials and documents
furnished to the Agent or any such Lender by or on behalf of Xxxx or any of its
Subsidiaries (whether before or after the Closing Date) which relates to Xxxx or
any of its Subsidiaries (the "Information"). Notwithstanding the foregoing, the
Agent and each Lender shall be permitted to disclose Information (i) to its
affiliates, officers, directors, employees, agents and representatives who have
a need to know such Information in connection with their work on any of the
transactions evidenced by the Credit Agreement or any other Credit Documents or
the administration of the Credit Agreement or any other Credit Documents; (ii)
to the extent required by applicable laws and regulations or by any subpoena or
similar legal process, or requested by any Governmental Authority; (iii) to the
extent such Information (A) becomes publicly available other than as a result of
a breach of the Credit Agreement or any agreement entered into pursuant to
clause (iv) below, (B) becomes available to the Agent or such Lender on a
non-confidential basis from a source other than Xxxx or any of its Subsidiaries
or (C) was available to the Agent or such Lender on a non-confidential basis
prior to its disclosure to the Agent or such Lender by Xxxx or any of its
Subsidiaries; (iv) to any assignee or participant (or prospective assignee or
participant) so long as such assignee or participant (or prospective assignee or
participant) first specifically agrees in a writing furnished to and for the
benefit of Xxxx and its Subsidiaries to be bound by the terms of this Section
11.16; or (v) to the extent that Xxxx shall have consented in writing to such
disclosure. Nothing set forth in this Section 11.16 shall obligate the Agent or
any Lender to return any materials furnished by Xxxx or any of its Subsidiaries.
11.17 Source of Funds.
Each of the Lenders hereby represents and warrants to the Borrowers that
at least one of the following statements is an accurate representation as to the
source of funds to be used by such Lender in connection with the financing under
the Credit Agreement:
(a) no part of such funds constitutes assets allocated to any
separate account maintained by such Lender in which any employee
benefit plan (or its related trust) has any interest;
(b) to the extent that any part of such funds constitutes assets
allocated to any separate account maintained by such Lender, such
Lender has disclosed to the Borrowers the name of each employee
benefit plan whose assets in such account exceed 10% of the total
assets of such account as of the date of such purchase (and, for
purposes of this subsection (b), all employee benefit plans
maintained by the same employee or employee organization are
deemed to be a single plan); or
107
(c) such funds constitute assets of one or more specific benefit
plans which such Lender has identified in writing to the
Borrowers.
As used in this Section 11.17, the terms "employee benefit plan" and "separate
account" shall have the respective meanings assigned to such terms in Section 3
of ERISA.
[Signature Page to Follow]
108
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Second Amendment and Restatement of Credit Agreement to be duly executed
and delivered as of the date first above written.
BORROWERS: XXXX MANUFACTURING CO.
---------
By Xxxxxxx X. Xxxxxxxx
---------------------------------------
Title Sr. Vice President - Finance & CFO
---------------------------------------
XXXX EUROPE LIMITED
By Xxxxxx Xxxxxxx
---------------------------------------
Title Director
---------------------------------------
GUARANTORS: XXXXX CUSTOM FURNITURE, INC.
-----------
By Xxxxxxx X. Xxxxxxxx
---------------------------------------
Title Sr. Vice President and Asst. Secretary
---------------------------------------
XXXX DATA PRODUCTS, INC.
By Xxxxxxx X. Xxxxxxxx
---------------------------------------
Title Sr. Vice President
---------------------------------------
XXXX HOLDINGS, INC.
By Xxxxxxx X. Xxxxxxxx
---------------------------------------
Title Vice President & Treasurer
---------------------------------------
[Signatures Continue]
S-1
XXXX X-ACTO, INC.
By Xxxxxxx X. Xxxxxxxx
-------------------------------------------
Title Sr. Vice President, Treasurer and Secretary
-------------------------------------------
SEAL PRODUCTS, INC.
By Xxxxxxx X. Xxxxxxxx
---------------------------------------
Title Sr. Vice President & Secretary
---------------------------------------
[Signatures Continue]
S-2
LENDERS: NATIONSBANK, N.A.,
------- individually in its capacity as a
Lender and in its capacity as Agent
By Xxxxxx Xxxx
-----------------------------------
Title Vice President
-----------------------------------
[Signatures Continue]
S-3
BANQUE PARIBAS
By Xxxxx Xxxxxxxxx
-----------------------------------
Title Vice President
-----------------------------------
By Xxxx X. Xxxxxxxx
-----------------------------------
Title Group Vice President
-----------------------------------
(Signatures Continue]
S-4
CORESTATES BANK, N.A.
By Xxxxx Leaf
-----------------------------------
Title Vice President
-----------------------------------
(Signatures Continue]
S-5
FIRST UNION NATIONAL BANK
By Xxxxxx X. Xxxxxx
-----------------------------------
Title Senior Vice President
-----------------------------------
[Signatures Continue]
S-6
MELLON BANK, N.A.
By Xxxx Xxxxxxxxx
-----------------------------------
Title Vice President
-----------------------------------
S-7
Schedule 1.1B
-------------
CALCULATION OF MLA COSTS
(a) The MLA Cost for any Foreign Currency Loan made by any Lender is calculated
in accordance with the following formula:
BY + L(Y-X) + S(Y-Z) % per annum = MLA Cost
--------------------
100 - (B+S)
where on the day of application of the formula:
B is the percentage of such Lender's eligible liabilities which the Bank
of England requires such Lender to hold on a non-interest-bearing
deposit account in accordance with its cash ratio requirements;
Y is the Interbank Offered Rate (excluding any MLA Cost included in the
calculation thereof) applicable to such Foreign Currency Loan;
L is the percentage of eligible liabilities which the Bank of England
requires such Lender to maintain as secured money with members of the
London Discount Market Association and/or as secured call money with
certain money brokers and gilt-edged primary market makers;
X is the rate at which secured Pounds Sterling deposits in the relevant
amount may be placed by such Lender with members of the London Discount
Market Association and/or as secured call money with certain money
brokers and gilt-edged primary market makers at or about 11:00 a.m. on
that day for the relevant period;
S is the percentage of such Lender's eligible liabilities which the Bank
of England requires such Lender to place as a special deposit; and
Z is the interest rate per annum allowed by the Bank of England on special
deposits.
(b) For the purposes of this Schedule 1.1B:
(i) "eligible liabilities" and "special deposits" have the meanings given
to them at the time of application of the formula by the Bank of
England;
(ii) "relevant period" means:
(A) in relation to any Foreign Currency Loan bearing interest on the
basis of the Eurodollar Rate, (1) if its Interest Period is 3
months or less, that Interest Period and (2) if its Interest Period
is more than three months, each successive period of three months
and any necessary shorter period comprised in that Interest Period;
or
(B) in relation to any Foreign Currency Loan bearing interest on the
basis of the Interim Foreign Currency Rate, each day that such
Foreign Currency Loan is outstanding.
(c) In application of the formula, B, Y, L, X, S and Z are included in the
formula as figures and not as percentages, e.g. if B=0.5% and Y=15%, BY is
calculated as 0.5 x 15.
(d) (i) The formula is applied (A) in relation to any Foreign Currency
Loan bearing interest on the basis of the Eurodollar Rate, on the
first day of each Interest Period of such Foreign Currency Loan and
(B) in relation to any Foreign Currency Loan bearing interest on
the basis of the Interim Foreign Currency Rate, on each day.
(ii) Each rate calculated in accordance with the formula is, if
necessary, rounded upward to four decimal places.
(e) If the Agent determines that a change in circumstances has rendered, or will
render, the formula inappropriate, the Agent shall notify Xxxx Europe of the
manner in which the MLA Cost will subsequently be calculated. The manner of
calculation so notified by the Agent shall, in the absence of manifest
error, be binding on all the parties.
Schedule 2.1(a)
---------------
LENDERS
================================================================================
Revolving Commitment
Name and Address of Lender Commitment Percentage
------------------------- ---------- ----------
--------------------------------------------------------------------------------
NationsBank, N.A.
Independence Center, 15th Floor
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Agency Services $20,000,000.00 26.66666667%
--------------------------------------------------------------------------------
Banque Paribas
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxx Xxxxxxxxx $10,000,000.00 13.33333333%
--------------------------------------------------------------------------------
Corestates Bank, N.A.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Ms. Xxxxx Leaf $15,000,000.00 20.00000000%
--------------------------------------------------------------------------------
First Union National Bank
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Xx. Xxxx X. Xxxxxxxxxxxx $15,000,000.00 20.00000000%
--------------------------------------------------------------------------------
Mellon Bank, N.A.
Plymouth Meeting Executive Campus
000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 000
Plymouth Meeting, Pennsylvania 79642
Attn: Xx. Xxxx Xxxxxxxxx $15,000,000.00 20.00000000%
================================================================================
