EXHIBIT 10(a)
LOAN AGREEMENT
Dated as of March 1, 1998
among
XXXXXXXXXX ELECTRONICS, LTD.,
VARIOUS LENDING INSTITUTIONS,
and
AMERICAN NATIONAL BANK AND
TRUST COMPANY OF CHICAGO,
AS AGENT
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS. . . . . . . . . . . . . . . . . . . . .-1-
ARTICLE II THE CREDITS . . . . . . . . . . . . . . . . . -15-
2.1 Description of Facility. . . . . . . . . . . . . . -15-
2.2 Advances . . . . . . . . . . . . . . . . . . . . . -15-
2.2.1 Commitment . . . . . . . . . . . . . . . -15-
2.2.2 Termination. . . . . . . . . . . . . . . -16-
2.2.3 Ratable Loans. . . . . . . . . . . . . . -16-
2.2.4 Types of Advances. . . . . . . . . . . . -16-
2.2.5 Minimum Amount of Each Advance . . . . . -16-
2.2.6 Method of Selecting Types and Interest
Periods for New Advances. . . . . . . . . . . -16-
2.2.7 Conversion and Continuation of
Outstanding Advances. . . . . . . . . . . . . -17-
2.3 Facility Letters of Credit . . . . . . . . . . . . -17-
2.3.1 Obligation to Issue. . . . . . . . . . . -17-
2.3.2 Types and Amounts. . . . . . . . . . . . -17-
2.3.3 Conditions . . . . . . . . . . . . . . . -18-
2.3.4 Procedure for Issuance of Facility
Letters of Credit . . . . . . . . . . . . . . -18-
2.3.5 Reimbursement Obligations. . . . . . . . -19-
2.3.6 Participation. . . . . . . . . . . . . . -20-
2.3.7 Payment of Reimbursement Obligations . . -21-
2.4 General Facility Terms . . . . . . . . . . . . . . -22-
2.4.1 Fees . . . . . . . . . . . . . . . . . . -22-
2.4.1.2 Reductions in Aggregate Commitments . . . -22-
2.4.2 Optional Principal Payments; Mandatory
Principal Payments. . . . . . . . . . . . . . -23-
2.4.3 Applicable Margin. . . . . . . . . . . . -24-
2.4.4 Changes in Interest Rate, etc. . . . . . -24-
2.4.5 Rates Applicable After Default . . . . . -25-
2.4.6 Method of Payment. . . . . . . . . . . . -25-
2.4.7 Notes; Telephonic Notices. . . . . . . . -26-
2.4.8 Interest Payment Dates; Interest and Fee
Basis . . . . . . . . . . . . . . . . . . . . -26-
2.4.9 Notification of Advances, Interest
Rates, and
Prepayments . . . . . . . . . . . . . . . . . -26-
2.4.10 Lending Installations . . . . . . . . . . -26-
2.4.11 Non-Receipt of Funds by the Agent . . . . -27-
2.4.12 Withholding Tax Exemption . . . . . . . . -27-
ARTICLE III CHANGE IN CIRCUMSTANCES . . . . . . . . . . . -28-
3.1 Yield Protection . . . . . . . . . . . . . . . . . -28-
3.2 Changes in Capital Adequacy Regulations. . . . . . -28-
3.3 Availability of Types of Advances. . . . . . . . . -29-
3.4 Funding Indemnification. . . . . . . . . . . . . . -29-
3.5 Taxes. . . . . . . . . . . . . . . . . . . . . . . -29-
3.6 Lender Statements; Survival of Indemnity . . . . . -30-
ARTICLE IV CONDITIONS PRECEDENT. . . . . . . . . . . . . -31-
4.1 Initial Advance and Facility Letter of Credit. . . -31-
4.2 Each Advance and Facility Letter of Credit . . . . -32-
ARTICLE V REPRESENTATIONS AND WARRANTIES . . . . . . . . . . -33-
5.1 Corporate Existence and Standing . . . . . . . . . -33-
5.2 Authorization and Validity . . . . . . . . . . . . -33-
5.3 No Conflict; Government Consent. . . . . . . . . . -33-
5.4 Financial Statements . . . . . . . . . . . . . . . -34-
5.5 Material Adverse Change. . . . . . . . . . . . . . -34-
5.6 Taxes. . . . . . . . . . . . . . . . . . . . . . . -34-
5.7 Litigation and Contingent Obligations. . . . . . . -34-
5.8 Subsidiaries . . . . . . . . . . . . . . . . . . . -35-
5.9 ERISA. . . . . . . . . . . . . . . . . . . . . . . -35-
5.10 Accuracy of Information. . . . . . . . . . . . . . -35-
5.11 Regulation U . . . . . . . . . . . . . . . . . . . -35-
5.12 Material Agreements. . . . . . . . . . . . . . . . -35-
5.13 Compliance With Laws . . . . . . . . . . . . . . . -35-
5.14 Ownership of Properties. . . . . . . . . . . . . . -36-
5.15 Environmental Matters. . . . . . . . . . . . . . . -36-
5.16 Investment Company Act . . . . . . . . . . . . . . -36-
5.17 Public Utility Holding Company Act . . . . . . . . -36-
ARTICLE VI COVENANTS . . . . . . . . . . . . . . . . . . -36-
6.1 Financial Reporting. . . . . . . . . . . . . . . . -36-
6.2 Use of Proceeds. . . . . . . . . . . . . . . . . . -39-
6.3 Notice of Default. . . . . . . . . . . . . . . . . -39-
6.4 Conduct of Business. . . . . . . . . . . . . . . . -39-
6.5 Taxes. . . . . . . . . . . . . . . . . . . . . . . -39-
6.6 Insurance. . . . . . . . . . . . . . . . . . . . . -39-
6.7 Compliance with Laws . . . . . . . . . . . . . . . -39-
6.8 Maintenance of Properties. . . . . . . . . . . . . -39-
6.9 Inspection . . . . . . . . . . . . . . . . . . . . -40-
6.10 Financial Covenants. . . . . . . . . . . . . . . . -40-
6.10.1 Consolidated Tangible Net Worth. . . . . . -40-
6.10.2 Senior Funded Debt to Cash Flow Ratio. . . -40-
6.10.3 Adjusted Interest Coverage Ratio . . . . . -41-
6.11 Intentionally Omitted. . . . . . . . . . . . . . . -41-
6.12 Indebtedness . . . . . . . . . . . . . . . . . . . -41-
6.13 Merger . . . . . . . . . . . . . . . . . . . . . . -42-
6.14 Sale of Assets . . . . . . . . . . . . . . . . . . -42-
6.15 Investments and Acquisitions . . . . . . . . . . . -42-
6.16 Liens. . . . . . . . . . . . . . . . . . . . . . . -43-
6.17 Prohibition of Negative Pledge.. . . . . . . . . . -44-
6.18 Affiliates . . . . . . . . . . . . . . . . . . . . -44-
6.19 Amendments to Agreements . . . . . . . . . . . . . -44-
6.20 Sale of Accounts . . . . . . . . . . . . . . . . . -45-
6.21 Limit on Senior Funded Debt. . . . . . . . . . . . -45-
6.22 Fiscal Year. . . . . . . . . . . . . . . . . . . . -45-
6.23 Limitation on the Creation of Subsidiaries . . . . -45-
6.24 Subsidiary Dividends . . . . . . . . . . . . . . . -45-
6.25 Repayment of Subordinated Debt . . . . . . . . . . -45-
ARTICLE VII DEFAULTS. . . . . . . . . . . . . . . . . . . -46-
ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES -49-
8.1 Acceleration . . . . . . . . . . . . . . . . . . . -49-
8.2 Amendments . . . . . . . . . . . . . . . . . . . . -49-
8.3 Preservation of Rights . . . . . . . . . . . . . . -50-
ARTICLE IX GENERAL PROVISIONS. . . . . . . . . . . . . . -50-
9.1 Survival of Representations. . . . . . . . . . . . -50-
9.2 Governmental Regulation. . . . . . . . . . . . . . -50-
9.3 Taxes. . . . . . . . . . . . . . . . . . . . . . . -50-
9.4 Headings . . . . . . . . . . . . . . . . . . . . . -51-
9.5 Entire Agreement . . . . . . . . . . . . . . . . . -51-
9.6 Several Obligations; Benefits of this Agreement. . -51-
9.7 Expenses; Indemnification. . . . . . . . . . . . . -51-
9.8 Numbers of Documents . . . . . . . . . . . . . . . -51-
9.9 Accounting . . . . . . . . . . . . . . . . . . . . -52-
9.10 Severability of Provisions . . . . . . . . . . . . -52-
9.11 Nonliability of Lenders. . . . . . . . . . . . . . -52-
9.12 Confidentiality. . . . . . . . . . . . . . . . . . -52-
9.13 Nonreliance. . . . . . . . . . . . . . . . . . . . -52-
ARTICLE X THE AGENT . . . . . . . . . . . . . . . . . . -53-
10.1 Appointment; Nature of Relationship. . . . . . . . -53-
10.2 Powers . . . . . . . . . . . . . . . . . . . . . . -53-
10.3 General Immunity . . . . . . . . . . . . . . . . . -53-
10.4 No Responsibility for Loans, Recitals, etc.. . . . -53-
10.5 Action on Instructions of Lenders. . . . . . . . . -54-
10.6 Employment of Agents and Counsel . . . . . . . . . -54-
10.7 Reliance on Documents; Counsel . . . . . . . . . . -54-
10.8 Agent's Reimbursement and Indemnification. . . . . -54-
10.9 Notice of Default. . . . . . . . . . . . . . . . . -55-
10.10 Rights as a Lender. . . . . . . . . . . . . . -55-
10.11 Lender Credit Decision. . . . . . . . . . . . -55-
10.12 Successor Agent . . . . . . . . . . . . . . . -55-
ARTICLE XI SETOFF; RATABLE PAYMENTS. . . . . . . . . . . -56-
11.1 Setoff . . . . . . . . . . . . . . . . . . . . . . -56-
11.2 Ratable Payments . . . . . . . . . . . . . . . . . -56-
ARTICLE XII BENEFIT OF AGREEMENT; ASSIGNMENTS;
PARTICIPATION . . . . . . . . . . . . . . . . . . . . . -57-
12.1 Successors and Assigns . . . . . . . . . . . . . . -57-
12.2 Participation. . . . . . . . . . . . . . . . . . . -57-
12.2.1 Permitted Participants; Effect . . . . . . -57-
12.2.2 Voting Rights. . . . . . . . . . . . . . . -58-
12.2.3 Benefit of Setoff. . . . . . . . . . . . . -58-
12.3 Assignments. . . . . . . . . . . . . . . . . . . . -58-
12.3.1 Permitted Assignments. . . . . . . . . . . -58-
12.3.2 Effect; Effective Date . . . . . . . . . . -59-
12.4 Dissemination of Information . . . . . . . . . . . -59-
12.5 Tax Treatment. . . . . . . . . . . . . . . . . . . -59-
ARTICLE XIII NOTICES. . . . . . . . . . . . . . . . . . . . -60-
13.1 Notices. . . . . . . . . . . . . . . . . . . . . . -60-
13.2 Change of Address. . . . . . . . . . . . . . . . . -60-
ARTICLE XIV COUNTERPARTS . . . . . . . . . . . . . . . . . -60-
ARTICLE XV CHOICE OF LAW, CONSENT TO JURISDICTION,
WAIVER OF JURY TRIAL. . . . . . . . . . . . . . . . . . -60-
15.1 Choice of Law. . . . . . . . . . . . . . . . . . . -60-
15.2 Consent to Jurisdiction. . . . . . . . . . . . . . -61-
15.3 Waiver of Jury Trial . . . . . . . . . . . . . . . -61-
SCHEDULE 1 Lenders and Commitments
SCHEDULE 2 Lender Addresses
SCHEDULE 5.5 Material Adverse Changes since August 31,
1997
SCHEDULE 5.6 Exceptions to Tax Representations
SCHEDULE 5.7 Pending Litigation
SCHEDULE 5.8 Borrower's Subsidiaries
SCHEDULE 5.9 Exceptions to ERISA Representation with
respect to Plan Withdrawals
SCHEDULE 5.14 Exceptions to Representation Concerning
Ownership of Properties
SCHEDULE 5.15 Exceptions to Representation Concerning
Environmental Matters
SCHEDULE 6.12 Permitted Indebtedness
SCHEDULE 6.15(viii) Description of Existing
Investments
SCHEDULE 6.16 Description of Existing Liens
EXHIBIT A Form of Compliance Certificate
EXHIBIT B Form of Note
EXHIBIT C [Intentionally Omitted]
EXHIBIT D Form of Facility Letter of Credit Request
EXHIBIT E Form of Opinion of Outside Counsel For
Borrower
EXHIBIT F Form of Written Money Transfer Instructions
EXHIBIT G Form of Assignment and Assumption Agreement
LOAN AGREEMENT
This Loan Agreement (this "Agreement"), dated as of March 1,
1998, is among XXXXXXXXXX ELECTRONICS, LTD., a Delaware
corporation (the "Borrower"), the lenders listed from time to
time on Schedule I hereto (each a "Lender" and, collectively, the
"Lenders"), and AMERICAN NATIONAL BANK AND TRUST COMPANY OF
CHICAGO, as Agent. The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms shall have
the meanings herein specified unless the context otherwise
requires:
"Acquisition" means any transaction, or any series of
related transactions, consummated on or after the date of this
Agreement, by which the Borrower or any of its Subsidiaries (i)
acquires any going concern business or all or substantially all
of the assets of any firm, corporation or division thereof,
whether through the purchase of assets, merger or otherwise or
(ii) directly or indirectly acquires (in one transaction or as
the most recent transaction in a series of transactions) at least
a majority (in number of votes) of the securities of a
corporation which have ordinary voting power for the election of
directors (other than securities having such power only by reason
of the happening of a contingency) or a majority (by percentage
or voting power) of the outstanding partnership interests of a
partnership or membership interests in a limited liability
company.
"Adjusted Cash Flow" means, as at any date of determination
thereof, Total Cash Flow less Capital Expenditures.
"Adjusted Interest Coverage Ratio" means, as at any date of
determination thereof, the quotient of (i) Adjusted Cash Flow
over (ii) Interest Expense, in each case calculated for the
period of the trailing four consecutive fiscal quarters ending on
or most recently ended prior to such date of determination.
"Advance" means a borrowing hereunder (or, in the case of a
Eurodollar Advance, the conversion or continuation thereof)
consisting of the aggregate amount of the several Loans made by
some or all of the Lenders to the Borrower on the same Borrowing
Date (or date of conversion or continuation), of the same Type
and, in the case of a Eurodollar Advance, for the same Interest
Period.
"Affiliate" of any Person means any other Person directly or
indirectly controlling, controlled by or under common control
with such Person. A Person shall be deemed to control another
Person if the controlling Person owns 10% or more of any class of
voting securities (or other ownership interests) of the
controlled Person or possesses, directly or indirectly, the power
to direct or cause the direction of the management or policies of
the controlled Person, whether through ownership of stock, by
contract or otherwise.
"Agent" means American National Bank and Trust Company of
Chicago in its capacity as agent for the Lenders pursuant to
Article X, and not in its individual capacity as a Lender, and
any successor Agent appointed pursuant to Article X.
"Aggregate Available Loan Commitment" means, at any date of
determination thereof, the Aggregate Commitment minus the sum of
(i) the Facility Letter of Credit Obligations then outstanding
and (ii) the aggregate principal amount of all Advances then
outstanding.
"Aggregate Commitment" means the aggregate of the
Commitments of all the Lenders, as reduced from time to time
pursuant to the terms hereof.
"Agreement" means this loan agreement, as it may be amended
or modified and in effect from time to time.
"Alternate Base Rate" means, for any day, a rate of interest
per annum equal to the higher of (i) the Base Rate for such day
and (ii) the sum of the Federal Funds Effective Rate for such day
plus 1/2% per annum.
"ANB" means American National Bank and Trust Company of
Chicago in its individual capacity, and its successors.
"Applicable Margin" means, at any date of determination
thereof, the rate per annum calculated in accordance with Section
2.4.3.
"Article" means an article of this Agreement unless another
document is specifically referenced.
"Authorized Officer" means any of the Chairman, President,
Executive Vice President, Vice President and Chief Financial
Officer, Secretary and Treasurer of the Borrower, or any other
senior officer of the Borrower designated as such in writing to
the Agent by the Borrower, in each case acting singly.
"Base Rate" means a rate per annum equal to the base rate of
interest announced by ANB from time to time, changing when and as
said base rate changes. The Base Rate is a reference rate and
does not necessarily represent the lowest or best rate actually
charged to any customer. ANB may make commercial loans or other
loans at rates of interest at, above or below the Base Rate.
"Benefit Plan" means each employee benefit plan as defined
in Section 3(3) of ERISA.
"Borrower" means Xxxxxxxxxx Electronics, Ltd., a Delaware
corporation, and, subject to Section 8.2 herein, its successors
and assigns.
"Borrowing Date" means a date on which an Advance is made
hereunder.
"Business Day" means (i) with respect to any borrowing,
payment or rate selection of Eurodollar Advances, a day (other
than a Saturday or Sunday) on which banks generally are open in
Chicago and New York for the conduct of substantially all of
their commercial lending activities and on which dealings in
United States dollars are carried on in the London interbank
market and (ii) for all other purposes, a day (other than a
Saturday or Sunday) on which banks generally are open in Chicago
for the conduct of substantially all of their commercial lending
activities.
"Borrowing Notice" is defined in Section 2.2.6.
"Canadian Borrower" shall mean Burtek Systems, Inc., a
Canadian corporation.
"Canadian Credit Agreement" means that certain Credit
Agreement made as of February 18, 1997, between Xxxxxxxxxx
Electronics Acquisition Corp. and First Chicago NBD Bank, Canada,
as the same has been amended by (i) First Amending Agreement made
as of August 14, 1997 among Burtek Systems, Inc., First Chicago
NBD Bank, Canada and Xxxxxxxxxx Electronics, Ltd., (ii) Second
Amending Agreement made as of August 22, 1997, among Burtek
Systems, Inc., First Chicago NBD Bank, Canada, and Xxxxxxxxxx
Electronics, Ltd., and Third Amending Agreement made as of March
1, 1998 among Burtek Systems, Inc., First Chicago NBD Bank,
Canada and Xxxxxxxxxx Electronics, Ltd., and as the same may be
further amended or modified and in effect from time to time.
"Canadian Dollars" means lawful money of Canada.
"Canadian Guaranty" means that certain Guaranty originally
dated February 28, 1997, as amended, restated and delivered as of
March 1, 1998, executed by the Borrower in favor of First Chicago
NBD Bank, Canada, as the same may be amended or modified and in
effect from time to time.
"Canadian Lender" means First Chicago NBD Bank, Canada, and
its successors and assigns.
"Canadian Loan Documents" has the meaning attributed to the
term "Documents" in the Canadian Credit Agreement.
"Canadian Loans" has the meaning attributed to the term
"Loans" in the Canadian Credit Agreement.
"Capital Expenditures" means, without duplication, any
expenditures for any purchase or other acquisition of any asset
which would be classified as a fixed or capital asset on a
consolidated balance sheet of the Borrower and its Subsidiaries
prepared in accordance with GAAP.
"Capitalized Lease" of a Person means any lease of Property
by such Person as lessee which would be capitalized on a balance
sheet of such Person prepared in accordance with GAAP.
"Capitalized Lease Obligations" of a Person means the amount
of the obligations of such Person under Capitalized Leases which
would be shown as a liability on a balance sheet of such Person
prepared in accordance with GAAP.
"Change" means (i) any change after the date of this
Agreement in the Risk-Based Capital Guidelines or (ii) any
adoption of or change in any other law, governmental or quasi-governmental
rule, regulation, policy, guideline, interpretation,
or directive (whether or not having the force of law) after the
date of this Agreement which affects the amount of capital
required or expected to be maintained by any Lender or any
Lending Installation or any corporation controlling any Lender.
"Change in Control" means Xxxxxx X. Xxxxxxxxxx shall cease
to own (beneficially or of record), free and clear of any
prohibition or restriction on the transfer or exercise of any
voting rights in respect thereof other than such restrictions in
favor of the Agent and/or the Lenders, in the aggregate at least
the minimum number of outstanding shares of voting stock of the
Borrower required to elect a majority of the Borrower's Board of
Directors and control any amendment of the Borrower's bylaws in
an election in which all outstanding shares entitled to vote are
in fact voted.
"Code" means the Internal Revenue Code of 1986, as amended,
reformed or otherwise modified from time to time.
"Commercial Letter of Credit" means any Facility Letter of
Credit that is a commercial or trade Letter of Credit.
"Commitment" means, for each Lender, the obligation of such
Lender to make Loans and purchase participation in Facility
Letters of Credit in an aggregate amount not exceeding the amount
set forth opposite its name on Schedule 1 hereto or as set forth
in any Notice of Assignment relating to any assignment that has
become effective pursuant to Section 12.3.2, as such amount may
be modified from time to time pursuant to the terms hereof.
"Compliance Certificate" means a compliance certificate,
substantially in the form of Exhibit A hereto, signed by the
Chief Financial Officer or Treasurer of the Borrower, showing the
calculations necessary to determine compliance with this
Agreement and stating that no Default or Unmatured Default
exists, or if any Default or Unmatured Default exists, stating
the nature and status thereof.
"Condemnation" is defined in Section 7.8.
"Consolidated Tangible Net Worth" means, as at any date of
determination thereof, the consolidated stockholders' equity of
the Borrower and its Subsidiaries, plus Subordinated Debt and
less the sum of the consolidated Intangible Assets of the
Borrower and its Subsidiaries, all determined as of such date in
accordance with GAAP.
"Contingent Obligation" of a Person means, without
duplication, any agreement, undertaking or arrangement by which
such Person directly or indirectly assumes guarantees, endorses,
contingently agrees to purchase or provide funds for the payment
of, or otherwise becomes or is contingently liable upon, the
obligation or liability of any other Person, or agrees to
maintain the net worth or working capital or other financial
condition of any other Person, or otherwise assures any creditor
of such other Person against loss, including, without limitation,
any operating agreement, comfort letter, take-or-pay contract or
application or reimbursement agreement for a Letter of Credit but
excluding any endorsement of instruments for deposit or
collection in the ordinary course of business.
"Controlled Group" means all members of a controlled group
of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the
Borrower or any of its Subsidiaries, are treated as a single
employer under Section 414 of the Code.
"Conversion/Continuation Notice" is defined in Section
2.2.7.
"Credit Party" means the Borrower and each Subsidiary
Guarantor.
"Debentures" means the Borrower's 7-1/4% Convertible
Subordinated Debentures due December 15, 2006 and 8-1/4%
Convertible Senior Subordinated Debentures due June 15, 2006.
"Default" means an event described in Article VII.
"Designated Accounts" means accounts not over 60 days past
due owing by a Person (i) residing, located or having its
principal activities or place of business in the United States of
America or any province of Canada other than Quebec, and (ii)
subject to service of process within the continental United
States of America or any province of Canada other than Quebec;
provided that the amount of Designated Accounts owed from all
Persons located in Canada shall not exceed $8 million in Canadian
Dollars at any one time.
"Designated Inventory" means inventory located within the
continental United States of America or any province of Canada
other than Quebec; provided that the aggregate amount of
Designated Inventory located in Canada shall not exceed $4
million in Canadian Dollars (valued at cost) at any one time.
"Dollars", "U.S. Dollars" and "$" mean dollars in lawful
currency of the United States of America.
"Environmental Laws" means any and all federal, state, local
and foreign statutes, laws, judicial decisions, regulations,
ordinances, rules, judgments, orders, decrees, injunctions,
permits, grants, franchises, licenses, agreements and other
governmental restrictions relating to (i) the protection of the
environment, (ii) the effect of the environment on human health,
(iii) emissions, discharges or releases of pollutants,
contaminants, hazardous substances or wastes into surface water,
ground water or land, or (iv) the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, hazardous substances or
wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any rule or regulation
issued thereunder.
"Eurodollar Advance" means an Advance which bears interest
at a Eurodollar Rate.
"Eurodollar Base Rate" means, with respect to a Eurodollar
Advance for the relevant Eurodollar Interest Period, the rate
determined by the Agent to be the rate at which deposits in U.S.
Dollars are offered by ANB to first-class banks in the London
interbank market at approximately 11 a.m. (London time) two
Business Days prior to the first day of such Eurodollar Interest
Period, in the approximate amount of ANB's relevant Eurodollar
Loan.
"Eurodollar Interest Period" means, with respect to a
Eurodollar Advance, a period of one, two, three or six months
commencing on a Business Day selected by the Borrower pursuant to
this Agreement. Such Eurodollar Interest Period shall end on
(but exclude) the day which corresponds numerically to such date
one, two, three or six months thereafter, provided, however, that
if there is no such numerically corresponding day in such next,
second, third or sixth succeeding month, such Eurodollar Interest
Period shall end on the last Business Day of such next, second,
third or sixth succeeding month. If a Eurodollar Interest Period
would otherwise end on a day which is not a Business Day, such
Eurodollar Interest Period shall end on the next succeeding
Business Day, provided, however, that if said next succeeding
Business Day falls in a new calendar month, such Eurodollar
Interest Period shall end on the immediately preceding Business
Day. "Eurodollar Interest Period" may be amended by the written
consent of all of the Lenders and Borrower to include such other
periods not otherwise included above.
"Eurodollar Loan" means a Loan which bears interest at a
Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Eurodollar
Advance for the relevant Eurodollar Interest Period:
(A) for the period from March 1, 1998 to and including May
30, 1998, the sum of (i) the quotient of (a) the
Eurodollar Base Rate applicable to such Eurodollar
Interest Period, over (b) one minus the Reserve
Requirement (expressed as a decimal) applicable to such
Eurodollar Interest Period, plus (ii) one and one-quarter percent
(1.25%);
(B) for the period from May 31, 1998 until the last
Business Day on which a Eurodollar Interest Period may
commence hereunder, the sum of (i) the quotient of (a)
the Eurodollar Base Rate applicable to such Eurodollar
Interest Period, over (b) one minus the Reserve
Requirement (expressed as a decimal) applicable to such
Eurodollar Interest Period, plus (ii) the Applicable
Margin in effect two Business Days prior to the first
day of such Eurodollar Interest Period.
In all circumstances, the Eurodollar Rate shall be rounded to the
next higher multiple of 1/16 of 1% if the rate is not such a
multiple.
"Excluded Taxes" means, in the case of each Lender or
applicable Lending Installation and the Agent, taxes imposed on
its overall net income, and franchise taxes imposed on it, by (i)
the jurisdiction under the laws of which such Lender or the Agent
is incorporated or organized, or (ii) the jurisdiction in which
the Agent's or such Lender's principal executive office or such
Lender's applicable Lending Installation is located.
"Facility Letter of Credit Obligations" means, at any date
of determination thereof, all liabilities, whether actual or
contingent, of the Borrower in respect of the Facility Letters of
Credit, including, without limitation, the sum of (i)
Reimbursement Obligations and (ii) the aggregate undrawn face
amount of any outstanding Facility Letters of Credit.
"Facility Letter of Credit Request" is defined in Section
2.3.4.
"Facility Letters of Credit" means, collectively, the
Letters of Credit issued by the Issuer pursuant to Section 2.3.
"Facility Termination Date" means March 1, 2001 or any
earlier date on which the Aggregate Commitment is reduced to zero
or otherwise terminated pursuant to the terms hereof.
"Federal Funds Effective Rate" means, for any day, an
interest rate per annum equal to the weighted average of the
rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such
day, as published for such day (or, if such day is not a Business
Day, for the immediately preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the
quotations at approximately 10 a.m. (Chicago time) on such day on
such transactions received by the Agent from three Federal funds
brokers of recognized standing selected by the Agent in its sole
discretion.
"Fiscal Year" means, with respect to the Borrower or any of
its Subsidiaries, the fiscal period beginning on June 1 and
ending on May 31 of each calendar year.
"Floating Rate" means the Alternate Base Rate, changing when
and as the Alternate Base Rate changes.
"Floating Rate Advance" means an Advance which bears
interest at the Floating Rate.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect from time to time; it being
understood and agreed that determinations in accordance with GAAP
for purposes of Sections 2.4.3 and 6.10, including defined terms
as used therein, shall utilize accounting principles and policies
in effect at the time of the preparation of, and in conformity
with those used to prepare, the historical financial statements
delivered to the Lenders pursuant to Section 6.1.
"Gross Up Event" means the occurrence of any of the events
stated in Sections 3.1 or 3.2 hereof.
"Indebtedness" of a Person means such Person's (i)
obligations for borrowed money, (ii) obligations representing the
deferred purchase price of Property or services (other than
accounts payable arising in the ordinary course of such Person's
business payable on terms customary in the trade), (iii)
obligations, whether or not assumed, secured by Liens other than
Liens for inventory purchases arising in the normal course of
business which Liens are not evidenced by any filings (under the
UCC or otherwise) and do not secure an amount exceeding
$2,500,000 in the aggregate at any one time outstanding, or
payable out of the proceeds or production from property now or
hereafter owned or acquired by such Person, (iv) obligations
which are evidenced by notes, acceptances, or other instruments,
(v) Capitalized Lease Obligations, (vi) Rate Hedging Obligations,
(vii) Contingent Obligations and (viii) Subordinated Debt.
"Intangible Assets" means the amount (to the extent
reflected in determining consolidated stockholders' equity) of
(i) all write-ups in the book value of any asset owned or
acquired by the Borrower or a Subsidiary, (ii) all goodwill,
covenants not to compete, prepayments, deferred charges,
franchises, patents, trademarks, service marks, trade names,
brand names and copyrights, (iii) all deferred financing costs
(including, but not limited to, unamortized debt discount and
expense, organization expense and experimental and development
expenses, but excluding prepaid expenses), and (iv) leasehold
improvements not recoverable at the expiration of a lease.
"Interest Expense" means, for any period of calculation, all
interest expense on Indebtedness, calculated for such period for
the Borrower and its Subsidiaries on a consolidated basis in
accordance with GAAP.
"Interest Period" means a Eurodollar Interest Period.
"Investment" of a Person means any loan, advance (other than
commission, travel and similar advances to officers, employees
and sales agents made in the ordinary course of business),
extension of credit (other than accounts receivable arising in
the ordinary course of business on terms customary in the trade)
or contribution of capital by such Person, stocks, bonds, mutual
funds, partnership interests, notes, debentures or other
securities owned by such Person.
"Issuance Date" means, with respect to any Facility Letter
of Credit, the date on which such Facility Letter of Credit is
issued hereunder.
"Issuance Fee" means, with respect to any Facility Letter of
Credit on the Issuance Date thereof, such issuance fee as the
Borrower and the Issuer of such Facility Letter of Credit shall
have agreed upon in writing.
"Issuer" is defined in Section 2.3.1.
"Lender" is defined in the preamble to this Agreement.
"Lending Installation" means, with respect to a Lender or
the Agent, any office, branch, subsidiary or affiliate of such
Lender or the Agent.
"Letter of Credit" of a Person means a letter of credit or
similar instrument which is issued upon the application of such
Person or upon which such Person is an account party or for which
such Person is in any way liable.
"Level I Status" exists at any date if the Senior Funded
Debt to Cash Flow Ratio is greater than or equal to 2.01:1.00.
"Level II Status" exists at any date if the Senior Funded
Debt to Cash Flow Ratio is greater than or equal to 1.51:1.0 but
less than 2.01:1.00.
"Level III Status" exists at any date if the Senior Funded
Debt to Cash Flow Ratio is greater than or equal to 1.00:1.00 but
less than 1.51:1.00.
"Level IV Status" exists at any date if none of Level I
Status, Level II Status, or Level III Status exists at such date.
"Lien" means any lien (statutory or other), mortgage,
pledge, hypothecation, filed financing statement, assignment,
encumbrance or preference, priority or other security agreement
or preferential arrangement of any kind or nature whatsoever
(including, without limitation, the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other
title retention agreement).
"Loan" means, with respect to a Lender, a loan made by such
Lender pursuant to Article II (or any conversion or continuation
thereof).
"Loan Documents" means this Agreement, the Notes, and any
other documents and agreements contemplated hereby and executed
by the Borrower or a Subsidiary in favor of the Agent or any
Lender.
"Material Adverse Effect" means a material adverse effect on
(i) the business, Property, financial condition or results of
operations of the Borrower or any of its Subsidiaries, (ii) the
ability of the Borrower to perform its respective obligations
under any of the Loan Documents, or (iii) the validity or
enforceability of any of the Loan Documents or the rights or
remedies of the Agent or the Lenders thereunder.
"Material Indebtedness" is defined in Section 7.5.
"Multiemployer Plan" means a Plan defined in Section 3(37)
of ERISA to which the Borrower or any member of the Controlled
Group may have any liability.
"Net Income" shall mean, for any period, the net income (or
loss), after provision for taxes, of the Borrower and its
Subsidiaries on a consolidated basis for such period taken as a
single accounting period but excluding any unrealized losses and
gains for such period resulting from xxxx-to-market of Rate
Hedging Agreements.
"Note" means a promissory note, substantially in the form of
Exhibit B hereto, with appropriate insertions, duly executed and
delivered to the Agent by the Borrower for the account of a
Lender and payable to the order of such Lender in the amount of
its Commitment, including any amendment, modification, renewal or
replacement of such promissory note.
"Notice of Assignment" is defined in Section 12.3.2.
"Obligations" means all unpaid principal of and accrued and
unpaid interest on the Loans, all accrued and unpaid fees arising
under the Loan Documents, all Facility Letter of Credit
Obligations, and all expenses, reimbursements, indemnities and
other obligations of the Borrower to the Lenders or to any
Lender, the Agent or any indemnified party hereunder arising
under the Loan Documents.
"Other Taxes" is defined in Section 3.5(ii).
"Participants" is defined in Section 12.2.1.
"Payment Date" means the last Business Day of each of
February, May, August and November.
"Permitted Acquisition" means, at any time of determination,
any Acquisition by the Borrower or any Subsidiary of a business
or entity in substantially the same field of enterprise as the
Borrower or such Subsidiary with respect to which each of the
following requirements is then met:
(i) Such Acquisition has been approved and recommended
by the board of directors of the entity to be
acquired.
(ii) The Borrower or such Subsidiary shall have given
the Agent notice of such Acquisition within ten
(10) days prior to or following the consummation
thereof.
(iii) The aggregate consideration (including, without
limitation, the purchase price therefor and any
assumption of debt (other than accounts payable
and deferred revenue obligations arising in the
ordinary course of business)) for such Acquisition
(singly or together with a group of related
Acquisitions), less the amount of cash received by
the Borrower or such Subsidiary from the entity
being acquired in connection with such
Acquisition, does not exceed $15 million during
the Borrower's rolling four consecutive trailing
fiscal quarters.
(iv) Prior to and after giving effect to such
Acquisition, no Default or Unmatured Default shall
exist.
"Person" means any natural person, corporation, limited
liability company, firm, joint venture, partnership, association,
enterprise, trust or other entity or organization, or any
government or political subdivision or any agency, department or
instrumentality thereof.
"PBGC means the Pension Benefit Guaranty Corporation, or any
successor thereto.
"Plan" means an employee pension benefit plan which is
covered by Title IV of ERISA or subject to the minimum funding
standards under Section 302 of ERISA or Section 412 of the Code
as to which the Borrower or any member of the Controlled Group
may have any liability.
"Pro Rata Share" means, with respect to each Lender at any
time, the ratio such Lender's Commitment bears to the Aggregate
Commitment.
"Property" of a Person means any and all property, whether
real, personal, tangible, intangible, or mixed, of such Person,
or other assets owned, leased or operated by such Person.
"Purchasers" is defined in Section 12.3.1.
"Rate Hedging Agreement" means an agreement, device or
arrangement providing for payments which are related to
fluctuations of interest rates, exchange rates or forward rates.
including, but not limited to, dollar-denominated or cross-currency
interest rate exchange agreements, forward currency
exchange agreements, interest rate cap or collar protection
agreements, forward rate currency or interest rate options, puts
and warrants.
"Rate Hedging Obligations" of a Person means any and all
obligations of such Person, whether absolute or contingent and
howsoever and whensoever created, arising, evidenced or acquired
(including all renewals, extensions and modifications thereof and
substitutions therefor), under (i) any and all Rate Hedging
Agreements, and (ii) any and all cancellations, buy backs,
reversals, terminations or assignments of any Rate Hedging
Agreement.
"Regulation D" means Regulation D of the Board of Governors
of the Federal Reserve System as from time to time in effect and
any successor thereto or other regulation or official
interpretation of said Board of Governors relating to reserve
requirements applicable to member banks of the Federal Reserve
System.
"Regulation U" means Regulation U of the Board of Governors
of the Federal Reserve System as from time to time in effect and
any successor or other regulation or official interpretation of
said Board of Governors relating to the extension of credit by
banks for the purpose of purchasing or carrying margin stocks
applicable to member banks of the Federal Reserve System.
"Reimbursement Obligations" means, at any time, the
aggregate of the obligations of the Borrower to the Issuer and
the Lenders in respect of all unreimbursed payments or
disbursements made by the Issuer and the Lenders under or in
respect of drawings under the Facility Letters of Credit.
"Reportable Event" means a reportable event as defined in
Section 4043 of ERISA and the regulations issued under such
section, with respect to a Plan, excluding, however, such events
as to which the PBGC by regulation waived the requirement of
Section 4043(a) of ERISA that it be notified within 30 days of
the occurrence of such event, provided, however, that a failure
to meet the minimum funding standard of Section 412 of the Code
and of Section 302 of ERISA shall be a Reportable Event
regardless of the issuance of any such waiver of the notice
requirement in accordance with either Section 4043(a) of ERISA or
Section 412(d) of the Code.
"Required Lenders" means, at any time, Lenders in the
aggregate having at least 66-2/3% of the Aggregate Commitment or,
subsequent to the Facility Termination Date, Lenders in the
aggregate holding at least 66-2/3% of the sum of (i) the
aggregate unpaid principal amount of the outstanding Advances and
(ii) the Facility Letter of Credit Obligations.
"Reserve Requirement" means, with respect to a Eurodollar
Interest Period, the maximum aggregate reserve requirement
(including all basic, supplemental, marginal and other reserves)
which is imposed under Regulation D on Eurocurrency liabilities.
"Risk-Based Capital Guidelines" means (i) the risk-based
capital guidelines in effect in the United States on the date of
this Agreement, including transition rules, and (ii) the
corresponding capital regulations promulgated by regulatory
authorities outside the United States implementing the July 1988
report of the Basle Committee on Banking Regulation and
Supervisory Practices Entitled "International Convergence of
Capital Measurements and Capital Standards," including transition
rules, and any amendments to such regulations adopted prior to
the date of this Agreement.
"Section" means a numbered section of this Agreement, unless
another document is specifically referenced.
"Senior Funded Debt" means the sum of all Indebtedness that
(i) is not Subordinated Debt and (ii) by its terms is or will
become interest bearing, including, but not limited to,
Capitalized Lease Obligations and the Obligations hereunder.
"Senior Funded Debt to Cash Flow Ratio" means, as at any
date of determination thereof, the ratio of (i) Senior Funded
Debt outstanding at the end of the fiscal quarter ending on or
most recently ended prior to such date of determination to (ii)
Total Cash Flow, in each case calculated as at such date of
determination for the Borrower and its Subsidiaries on a
consolidated basis in accordance with GAAP, and with respect to
Total Cash Flow calculated for the period of four consecutive
fiscal quarters ending on or most recently ended prior to such
date of determination.
"Single Employer Plan" means a Plan maintained by the
Borrower or any member of the Controlled Group for employees of
the Borrower or any member of the Controlled Group.
"Standby Letter of Credit" means any Facility Letter of
Credit that is an irrevocable standby Letter of Credit.
"Status" means, at any date of determination, whichever of
Level I Status, Level II Status, Level III Status or Level IV
Status exists at such time.
"Subordinated Debt" means the Debentures and any unsecured
Indebtedness of the Borrower (a) no part of the principal of
which is stated to be payable or is required to be paid (whether
by way of mandatory sinking fund, mandatory redemption, mandatory
prepayment or otherwise) prior to the Facility Termination Date,
and the payment of the principal of and interest on which and
other obligations of the Borrower in respect thereof are
subordinated to the prior payment in full of principal of and
interest (including post-petition interest) on the Notes and all
other obligations and liabilities of the Borrower to the Agent
and the Lenders hereunder on terms and conditions first approved
in writing by the Required Lenders and (b) otherwise containing
terms, covenants and conditions satisfactory in form and
substance to the Required Lenders, as evidenced by their prior
written approval thereof.
"Subsidiary" of any Person means (i) 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 stock of 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 (ii) any partnership,
association (including business trusts), joint venture, limited
liability company or other entity in which such Person directly
or indirectly through Subsidiaries, has more than 50% voting or
equity interest at the time.
"Substantial Portion" means, with respect to the Property of
the Borrower and its Subsidiaries, Property which (i) represents
more than five percent (5%) of the consolidated assets of the
Borrower and its Subsidiaries as at the last day of the calendar
month ending on or most recently ended prior to the date on which
such determination is made, or (ii) is responsible for more than
five percent (5%) of the consolidated net sales or of the
consolidated net income of the Borrower and its Subsidiaries for
the period of twelve complete consecutive calendar months ending
on or most recently ended prior to the date on which such
determination is made.
"Taxes" means any and all present or future taxes, duties,
levies, imposts, deductions, charges or withholdings, and any and
all liabilities with respect to the foregoing, but excluding
Excluded Taxes.
"Total Cash Flow" means, as at any date of determination
thereof, the sum of Net Income, Interest Expense, taxes,
depreciation and amortization in each case calculated as at such
date of determination for the Borrower and its Subsidiaries on a
consolidated basis in accordance with GAAP. Neither cash nor
non-cash charges reflecting extraordinary terms, unusual items,
or one time charges will be added back for the purpose of Total
Cash Flow calculation.
"Transferee" is defined in Section 12.4.
"Type" means, with respect to any Advance, its nature as a
Eurodollar Advance or a Floating Rate Advance.
"Unfunded Liabilities" means the amount (if any) by which
the present value of all vested and unvested accrued benefits
under all Single Employer Plans exceeds the fair market value of
all such Plan assets allocable to such benefits, all determined
as of the then most recent valuation date for such Plans as if
such Plans were terminating on such date under Section 4041 of
ERISA.
"Unmatured Default" means an event which but for the lapse
of time or the giving of notice, or both, would constitute a
Default.
"Wholly-Owned Subsidiary" of a Person means (i) any
Subsidiary all of the outstanding voting securities of which
shall at the time be owned or controlled, directly or indirectly,
by such Person or one or more Wholly-Owned Subsidiaries of such
Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (ii) any partnership,
association, joint venture or similar business organization 100%
of the ownership interests having ordinary voting power of which
shall at the time be so owned or controlled.
The foregoing definitions shall be equally applicable to
both the singular and plural forms of the defined terms.
ARTICLE II
THE CREDITS
2.1 Description of Facility. Upon the terms and subject to
the conditions set forth in this Agreement, the Lenders hereby
grant to the Borrower a revolving credit facility pursuant to
which: (i) each Lender severally agrees to make Loans to the
Borrower in accordance with Section 2.2; and (ii) each Lender
severally agrees to purchase participation in Facility Letters of
Credit in accordance with Section 2.3; provided, however, that in
no event may the sum of (1) the aggregate principal amount of all
outstanding Advances and (2) the Facility Letter of Credit
Obligations exceed the Aggregate Commitment.
2.2 Advances.
2.2.1 Commitment. From and including the date of
this Agreement and prior to the Facility Termination Date, each
Lender severally agrees, on the terms and conditions set forth in
this Agreement, to make Loans to the Borrower from time to time
in amounts not to exceed in the aggregate at any one time
outstanding (after giving effect to the intended use of proceeds
of any Loan used to repay any outstanding Reimbursement
Obligations) the amount of its Commitment. Subject to the terms
of this Agreement, the Borrower may borrow, repay, and reborrow
from each Lender at any time prior to the Facility Termination
Date. The Commitment of each Lender to lend hereunder shall
expire on the Facility Termination Date.
2.2.2 Termination. All outstanding Advances and
all other unpaid Obligations owing to each Lender shall be paid
in full by the Borrower on the Facility Termination Date.
2.2.3 Ratable Loans. Each Advance hereunder shall
consist of Loans made from the several Lenders ratably in
proportion to their respective Pro Rata Share.
2.2.4 Types of Advances. The Advances may be
Eurodollar Advances, Floating Rate Advances or a combination
thereof, selected by the Borrower in accordance with Sections
2.2.6 and 2.2.7.
2.2.5 Minimum Amount of Each Advance. Each
Eurodollar Advance shall be in the minimum amount of $1,000,000
(and in multiples of $100,000 if in excess thereof), and each
Floating Rate Advance shall be in the minimum amount of $300,000
(and in multiples of $100,000 if in excess thereof); provided,
however, that any Floating Rate Advance may be in the amount of
the unused Aggregate Available Loan Commitment should the
Aggregate Available Loan Commitment be less than $300,000.
2.2.6 Method of Selecting Types and Interest
Periods for New Advances. The Borrower shall select the Type of
Advance and, in the case of each Eurodollar Advance, the
Eurodollar Interest Period applicable to each such Eurodollar
Advance from time to time. The Borrower shall give the Agent
irrevocable notice (a "Borrowing Notice") not later than 10:00
a.m. (Chicago time) on the Borrowing Date of each Floating Rate
Advance and not later than 12:00 noon (Chicago time) at least
three (3) Business Days before the Borrowing Date for each
Eurodollar Advance, specifying:
(i) the Borrowing Date, which shall be a Business Day,
of such Advance;
(ii) the aggregate amount of such Advance;
(iii) the Type of Advance selected; and
(iv) in the case of each Eurodollar Advance, the
Eurodollar Interest Period applicable thereto
(which may not end after the Facility Termination
Date).
Not later than noon (Chicago time) on each Borrowing Date, each
Lender shall make available its Loan or Loans, in funds
immediately available in Chicago to the Agent at its address
specified pursuant to Article XIII. The Agent will make the
funds so received from the Lenders available to the Borrower at
the Agent's aforesaid address.
2.2.7 Conversion and Continuation of Outstanding
Advances. Floating Rate Advances shall continue as Floating Rate
Advances unless and until such Floating Rate Advances are
converted into Eurodollar Advances. Each Eurodollar Advance
shall continue as a Eurodollar Advance until the end of the then
applicable Eurodollar Interest Period therefor, at which time
such Eurodollar Advance shall be automatically converted into a
Floating Rate Advance unless the Borrower shall have given the
Agent a Conversion/Continuation Notice (as defined below)
requesting that, at the end of such Eurodollar Interest Period,
such Eurodollar Advance either continue as a Eurodollar Advance
for the same or another Eurodollar Interest Period or be
converted into a Floating Rate Advance. Subject to the terms of
Section 2.2.5, the Borrower may elect from time to time to
convert all or any part of an Advance of either Type into the
other Type of Advance; provided that any conversion of any
Eurodollar Advance shall be made on, and only on, the last day of
the Eurodollar Interest Period applicable thereto. The Borrower
shall give the Agent irrevocable notice (a
"Conversion/Continuation Notice") of each conversion of an
Advance or continuation of a Eurodollar Advance not later than
12:00 noon (Chicago time) (a) in the case of a conversion into a
Floating Rate Advance, at least one Business Day before the date
of the requested conversion, and (b) in the case of a conversion
into or continuation of a Eurodollar Advance, at least three
Business Days prior to the date of the requested conversion or
continuation, specifying:
(i) the requested date (which shall be a Business
Day) of such conversion or continuation;
(ii) the aggregate amount and Type of Advance(s)
which is to be converted or continued; and
(iii) the amount and Type(s) of Advance(s) into
which such Advance is to be converted or continued and, in
the case of a conversion into or continuation of a
Eurodollar Advance, the duration of the Eurodollar Interest
Period applicable thereto (which may not end after the
Facility Termination Date).
2.3 Facility Letters of Credit.
2.3.1 Obligation to Issue. From and including the
date of this Agreement and prior to the Business Day prior to the
Facility Termination Date, the Agent agrees, on the terms and
conditions set forth in this Agreement and on behalf of each of
the Lenders, to issue for the account of the Borrower one or more
Facility Letters of Credit in accordance with this Section 2.3
(the Agent in such capacity is referred to as the "Issuer").
2.3.2 Types and Amounts. The Issuer shall not have
any obligation to and shall not:
(i) issue any Facility Letter of Credit if the
aggregate maximum amount then available for drawing under
Letters of Credit issued by the Issuer, after giving effect
to the Facility Letter of Credit requested hereunder, shall
exceed any limit imposed by law or regulation upon the
Issuer;
(ii) issue any Facility Letter of Credit if, after
giving effect thereto, the sum of (a) the Facility Letter of
Credit Obligations and (b) the aggregate unpaid principal
balance of the Advances would exceed the Aggregate
Commitment;
(iii) issue any Facility Letter of Credit which has
an expiry date (a) later than twelve months after the
Issuance Date thereof or (b) after the Facility Termination
Date; or
(iv) issue any Facility Letter of Credit if, after
giving effect to such Facility Letter of Credit requested
hereunder, the Facility Letter of Credit Obligations would
exceed $5,000,000 in the aggregate.
2.3.3 Conditions. In addition to being subject to
the satisfaction of the conditions contained in Sections 4.1 and
4.2, the obligation of the Issuer to issue any Facility Letter of
Credit is subject to the satisfaction in full of each of the
following conditions:
(i) the Borrower shall have delivered to the
Issuer at such times and in such manner as the Issuer may
reasonably prescribe such documents and materials as may be
required pursuant to the terms of the requested Facility
Letter of Credit (it being understood that if any
inconsistency exists between the Issuer's Letter of Credit
documents and the Loan Documents, the terms of the Loan
Documents shall govern and control) and the requested
Facility Letter of Credit shall be reasonably satisfactory
to the Issuer as to form and content; and
(ii) as of the Issuance Date, no order, judgment
or decree of any court, arbitrator or governmental authority
shall purport by its terms to enjoin or restrain the Issuer
from issuing the requested Facility Letter of Credit and no
law, rule or regulation applicable to the Issuer and no
request or directive (whether or not having the force of
law) from any governmental authority with jurisdiction over
the Issuer shall prohibit or request that the Issuer refrain
from the issuance of Letters of Credit generally or the
issuance of such requested Facility Letter of Credit in
particular.
2.3.4 Procedure for Issuance of Facility Letters of
Credit.
(a) The Borrower shall give the Issuer written notice
not later than noon (Chicago time) at least three Business
Days before the Issuance Date of any requested Facility
Letter of Credit (each a "Facility Letter of Credit
Request") (except that, in lieu of such written notice, the
Borrower may give the Issuer notice of such request by
tested telex or other tested arrangement satisfactory to the
Issuer). Such Facility Letter of Credit Request shall be
irrevocable and shall specify:
(1) the stated amount of such requested Facility
Letter of Credit;
(2) the Issuance Date (which day shall be a Business
Day);
(3) the date on which such requested Facility Letter
of Credit is to expire (which date shall be a
Business Day and shall in no event be later than
the Facility Termination Date);
(4) the purpose for which such Facility Letter of
Credit is to be issued;
(5) the Person for whose benefit the requested
Facility Letter of Credit is to be issued; and
(6) whether the requested Facility Letter of Credit
will be a Commercial Letter of Credit or a Standby
Letter of Credit.
Prior to the issuance of the requested Facility Letter of
Credit, the Borrower shall provide the Issuer with a copy of
the form of the Facility Letter of Credit it is requesting
be issued. The Issuer will notify each Lender within a
reasonable time following the issuance of each Facility
Letter of Credit.
(b) Subject to the terms and conditions of this
Section 2.3.4 and provided that the applicable conditions
set forth in Sections 4.1 (in the case of the initial
Facility Letter of Credit), 4.2 and 2.3.3 have been
satisfied, the Issuer shall, on the applicable Issuance
Date, issue a Facility Letter of Credit on behalf of the
Borrower in accordance with the Issuer's usual and customary
business practices.
(c) The Issuer shall not extend or amend any Facility
Letter of Credit unless the requirements of Sections 2.3.2
and 2.3.4 are met.
2.3.5 Reimbursement Obligations.
(a) (i) The Issuer shall promptly notify the Borrower
of any draw under such Facility Letter of Credit. The
Borrower shall reimburse the Issuer for drawings under
Standby Letters of Credit (including the Issuer's issuing
costs) no later than the Business Day after the payment in
respect of such Standby Letter of Credit by the Issuer,
together with interest thereon at the Alternate Base Rate
from the date of payment on such Standby Letter of Credit by
the Issuer to and including the date on which the Issuer is
reimbursed for such payment by the Borrower. The Borrower
shall reimburse the Issuer for drawings under Commercial
Letters of Credit (including the Issuer's issuing costs) no
later than the Business Day after the payment in respect of
such Commercial Letter of Credit by the Issuer, together
with interest thereon at the Alternate Base Rate from the
date of payment on such Commercial Letter of Credit by the
Issuer to and including the date on which the Issuer is
reimbursed for such payment by the Borrower; and
(ii) Any Reimbursement Obligation with
respect to any Facility Letter of Credit which is not paid
on the date when due in accordance with Section 2.3.5(a)(i)
shall (A) if there is availability for such an Advance
pursuant to Section 2.2, be automatically converted on such
date into a Floating Rate Advance and shall bear interest at
the Floating Rate or (B) if there is no availability for an
Advance pursuant to Section 2.2, be payable on demand and
bear interest until paid at a rate per annum equal to the
sum of (a) the Floating Rate plus (b) 2% per annum.
(b) Any action taken or omitted to be taken by the
Issuer under or in connection with any Facility Letter of
Credit, if taken or omitted in the absence of willful
misconduct or gross negligence, shall not put the Issuer
under any resulting liability to any Lender or, assuming
that the Issuer has complied with the procedures specified
in Section 2.3.4(b) and such Lender has not given a notice
contemplated by Section 2.3.6(a) that continues in full
force and effect, relieve such Lender of its obligations
hereunder to the Issuer. In determining whether to pay
under any Facility Letter of Credit, the Issuer shall have
no obligation relative to the Lenders or the Borrower other
than to confirm that any documents required to be delivered
under such Facility Letter of Credit appear to comply on
their face with the requirements of such Facility Letter of
Credit.
2.3.6 Participation.
(a) Immediately upon issuance by the Issuer of any
Facility Letter of Credit in accordance with the procedures
set forth in Section 2.3.4, each Lender shall be deemed to
have irrevocably and unconditionally purchased and received
from the Issuer, without recourse or warranty, an undivided
interest and participation equal to its Pro Rata Share in
such Facility Letter of Credit (including, without
limitation, all obligations of the Borrower with respect
thereto) and any security therefor or guaranty pertaining
thereto; provided, that a Letter of Credit issued by the
Issuer shall not be deemed to be a Facility Letter of Credit
for purposes of this Section 2.3.6 if the Issuer shall have
received written notice from any Lender on or before 10:00
a.m. (Chicago time) on the Issuance Date of such Letter of
Credit that one or more of the conditions contained in
Section 4.2 is not then satisfied, and, in the event the
Issuer receives such a notice, it shall have no further
obligation to issue any Facility Letter of Credit until such
notice is withdrawn by such Lender or such condition has
been satisfied or has been effectively waived in accordance
with the provisions of this Agreement.
(b) In the event that the Issuer makes any payment
under any Facility Letter of Credit and the Borrower shall
not have repaid such amount to the Issuer pursuant to
Section 2.3.5, the Issuer shall promptly notify each Lender
of such failure, and each Lender shall promptly and
unconditionally pay to the Issuer for the Issuer's account
the amount of such Lender's Pro Rata Share of the
unreimbursed amount of any such payment. The failure of any
Lender to make available to the Issuer its Pro Rata Share of
the unreimbursed amount of any such payment shall not
relieve any other Lender of its obligation hereunder to make
available to the Issuer its Pro Rata Share of the
unreimbursed amount of any payment on the date such payment
is to be made, but no Lender shall be responsible for the
failure of any other Lender to make available to the Issuer
its Pro Rata Share of the unreimbursed amount of any payment
on the date such payment is to be made.
(c) Whenever the Issuer receives a payment on account
of a Reimbursement Obligation, including any interest
thereon, it shall promptly pay to the account of each Lender
which has funded its participating interest therein, in
immediately available funds, an amount equal to each such
Lender's Pro Rata Share thereof.
(d) The obligations of a Lender to make payments to
the Issuer with respect to a Facility Letter of Credit shall
be absolute, unconditional and irrevocable, not subject to
any counterclaim, set-off, qualification or exception
whatsoever and shall be made in accordance with the terms
and conditions of this Agreement under all circumstances.
Nothing contained in this Section 2.3.6(d) shall impair or
adversely affect any claim any Lender may have against the
Issuer or any other Lender with respect to any gross
negligence or willful misconduct of the Issuer or such other
Lender in respect of any Facility Letter of Credit.
2.3.7 Payment of Reimbursement Obligations.
(a) The Borrower agrees to pay to the Issuer the
amount of all Reimbursement Obligations, interest and other
amounts payable to the Issuer under or in connection with
each Facility Letter of Credit immediately when due,
irrespective of any claim, set-off, defense or other right
which the Borrower or any Subsidiary may have at any time
against the Issuer, the Agent or any other Person, under all
circumstances, including without limitation, any of the
following circumstances:
(i) any lack of validity or enforceability
of this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, setoff,
defense or other right which the Borrower or any Subsidiary
may have at any time against a beneficiary named in a
Facility Letter of Credit or any transferee of any Facility
Letter of Credit (or any Person for whom any such transferee
may be acting), the Issuer, any Lender, or any other Person,
whether in connection with this Agreement, any Facility
Letter of Credit, the transactions contemplated herein or
any unrelated transactions (including any underlying
transactions between the Borrower or any Subsidiary and the
beneficiary named in any Facility Letter of Credit);
(iii) any draft, certificate or any other
document presented under the Facility Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in
any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) the surrender or impairment of any
security for the performance or observance of any of the
terms of any of the Loan Documents;
(v) the occurrence of any Default or
Unmatured Default.
(b) In the event any payment by the Borrower or any
Subsidiary received by the Issuer with respect to a Facility
Letter of Credit and distributed to the Lenders on account
of their participation is thereafter set aside, avoided or
recovered from the Agent in connection with any
receivership, liquidation, reorganization or bankruptcy
proceeding, each Lender which received such distribution
shall, upon demand by the Issuer, contribute such Lender's
Pro Rata Share of the amount set aside, avoided or recovered
together with interest at the rate required to be paid by
the Issuer upon the amount required to be repaid by it.
2.4 General Facility Terms.
2.4.1 Fees; Reductions in Aggregate Commitment.
2.4.1.1 Fees. The Borrower agrees to pay to the
Agent the following fees
(i) Facility Fee. For the account of each
Lender in proportion to such Lender's Pro Rata Share, an
annual facility fee equal to the product of (a) twelve and
one-half (12.5) basis points, and (b) the Aggregate
Commitment, which annual facility fee shall be computed and
earned in its entirety on the date of this Agreement and
each March 1 thereafter prior to the Facility Termination
Date. The annual Facility Fee shall be payable annually in
four equal installments in arrears on May 31, 1998 and on
the last Business Day of each August, November, February and
May thereafter prior to the Facility Termination Date with
the outstanding unpaid balance of such fee due on the
Facility Termination Date. Such facility fee shall in no
circumstances be refundable to the Borrower, provided
however that such Facility Fee shall be prorated for the
actual days of any year (commencing January 1) in which a
Facility Termination Date occurs solely because of
Borrower's irrevocable payoff of all Loans on account of a
breach by Lenders of Section 10.12 hereof or the occurrence
of a Gross Up Event.
(ii) Agent Fees. For the Agent's own
account, such fees as the Borrower and the Agent shall have
agreed upon pursuant to that certain letter agreement dated
December 22, 1997 between the Borrower and the Agent, or as
otherwise agreed upon from time to time.
(iii) Standby Letter of Credit Commission.
For the account of each Lender, a Standby Letter of Credit
Fee payable quarterly on the last Business Day of each
February, May, August and November at a per annum rate equal
to the product of the then Applicable Margin and the average
amount of Standby Letters of Credit outstanding during the
immediately preceding fiscal quarter of the Company.
(iv) Issuance Fee. The Borrower shall pay to
the Issuer on or before the Issuance Date of each Facility
Letter of Credit (or such later date as the Borrower and the
Issuer shall agree upon in writing), solely for the account
of the Issuer, the Issuance Fee in respect of such Facility
Letter of Credit and shall also pay from time to time, upon
written demand from Issuer, the Issuer's reasonable and
customary costs of issuing and servicing such Facility
Letter of Credit.
(v) Canadian Credit Agreement Facility
Participation Fee. For the account of each Lender, in
consideration of each Lender's agreement to participate as
risk participants or otherwise in the Canadian Credit
Agreement, which participation inures to the benefit of the
Borrower, the Borrower will pay the Agent for the ratable
account of the Lenders, a facility participation fee equal
to 0.125% of the Commitment ("Commitment" as defined in the
Canadian Loan Agreement) which fee will be payable in
quarterly installments in arrears on the last Business Day
of each August, November, February, and May. Such facility
participation fee shall in no circumstances be refundable to
the Borrower or the Canadian Borrower.
2.4.1.2 Reductions in Aggregate Commitments.
The Borrower may permanently reduce the Aggregate Commitment
in whole, or in part ratably among the Lenders in integral
multiples of $5,000,000, upon at least three Business Days'
written notice to the Agent, which notice shall specify the
amount of any such reduction, provided, however, that the
amount of the Aggregate Commitment may not be reduced below
an amount equal to the sum of (a) the aggregate principal
amount of the outstanding Advances plus (b) the Facility
Letter of Credit Obligations.
2.4.2 Optional Principal Payments; Mandatory
Principal Payments. The Borrower may from time to time pay all
outstanding Advances, or, pay in a minimum aggregate amount of
$300,000 or any integral multiple of $100,000 in excess thereof,
(i) without penalty or premium, any portion of the outstanding
Floating Rate Advances upon prior notice to the Agent not later
than 10:30 a.m. (Chicago time) at least one (1) Business Day
before the date of such prepayment or (ii) subject to the
indemnity provisions of Section 3.4, any portion of the
outstanding Eurodollar Advances upon prior notice to the Agent
not later than 10:30 a.m. (Chicago time) at least two (2)
Business Days prior to the date of such prepayment. Any
Eurodollar Advance paid prior to the last day of its applicable
Interest Period shall be subject to the indemnity provisions of
Section 3.4. Notwithstanding anything in this Section 2.4.2 to
the contrary, if at any time the sum of the aggregate unpaid
principal balance of the Advances plus the Facility Letter of
Credit Obligations exceeds the Aggregate Commitment, the Borrower
shall, subject to the indemnity provisions of Section 3.4, make
an immediate mandatory payment on the Advances equal to such
excess.
2.4.3 Applicable Margin. The Applicable Margin set
forth below shall be subject to adjustment (upwards or downwards,
as appropriate) based on the Borrower's Status as at the end of
each fiscal quarter in accordance with the table set forth below.
The Borrower's Status as at the last day of each fiscal quarter
shall be determined from the then most recent annual or quarterly
financial statements of the Borrower delivered by the Borrower
pursuant to Section 6.1(i) or 6.1(ii) and the Compliance
Certificate delivered by the Borrower pursuant to Section
6.1(iv). The adjustment, if any, to the Applicable Margin shall
be effective commencing five (5) days after the delivery to the
Lenders of such financial statements and Compliance Certificate.
In the event that the Borrower shall at any time fail to furnish
to the Lenders such financial statements and Compliance
Certificate within the time limitations specified by Section 6.1,
then the maximum Applicable Margin shall apply from the date of
such failure until the fifteenth (15th) day after such financial
statements and Compliance Certificate are so delivered.
Notwithstanding anything to the contrary contained herein, the
Borrower's Status from the date of this Agreement to and
including the later of (i) May 30, 1998 or (ii) five (5) days
after the delivery to the Lender of the May 31, 1998 annual
financial statements of the Borrower accompanied by a current
Compliance Certificate, shall be deemed to be Level II Status.
Applicable Margin Table
Status
Applicable Margin
(basis points)
Level I 150.0
Level II 125.0
Level III 100.0
Level IV 75.0
2.4.4 Changes in Interest Rate, etc. Each Floating
Rate Advance shall bear interest on the outstanding principal
amount thereof, for each day from and including the date such
Floating Rate Advance is made or is converted from a Eurodollar
Advance into a Floating Rate Advance pursuant to Section 2.2.6 to
but excluding the date it becomes due or is converted into a
Eurodollar Advance pursuant to Section 2.2.6 at a rate per annum
equal to the Floating Rate for such day. Changes in the rate of
interest on that portion of any Advance maintained as a Floating
Rate Advance will take effect simultaneously with each change in
the Alternate Base Rate. Each Eurodollar Advance shall bear
interest on the outstanding principal amount thereof from and
including the first day of the Interest Period applicable thereto
to (but not including) the last day of such Interest Period at
the interest rate determined as applicable to such Eurodollar
Advance.
2.4.5 Rates Applicable After Default.
Notwithstanding anything to the contrary contained in Section
2.2.5 or 2.2.6, during the continuance of a Default or Unmatured
Default the Required Lenders may, at their option, by notice to
the Borrower (which notice may be revoked at the option of the
Required Lenders notwithstanding any provision of Section 8.2
requiring unanimous consent of the Lenders to changes in interest
rates), declare that no Advance may be made as, converted into or
continued as a Eurodollar Advance. During the continuance of a
Default the Required Lenders may, at their option, by notice to
the Borrower (which notice may be revoked at the option of the
Required Lenders notwithstanding any provision of Section 8.2
requiring unanimous consent of the Lenders to changes in interest
rates), declare that (i) each Eurodollar Advance shall bear
interest for the remainder of the applicable Interest Period at
the rate otherwise applicable to such Interest Period plus, to
the extent permitted by law, 2% per annum and (ii) each Floating
Rate Advance shall bear interest at a rate per annum equal to the
Floating Rate otherwise applicable to the Floating Rate Advance
plus, to the extent permitted by law, 2% per annum, provided
that, during the continuance of a Default under Section 7.6 or
7.7 the interest rates set forth in clauses (i) and (ii) above
shall be applicable to all Advances without any election or
action on the part of the Agent or any Lender.
2.4.6 Method of Payment. All payments of the
Obligations hereunder shall be made, without setoff, deduction,
or counterclaim, in immediately available funds to the Agent at
the Agent's address specified pursuant to Article XIII, or at any
other Lending Installation of the Agent specified in writing by
the Agent to the Borrower, by noon (local time at the relevant
Lending Installation) on the date when due and the Agent will
promptly distribute to each Lender its ratable share of each such
payment received by the Agent for the account of the Lenders;
provided, however, that if on any date the Borrower shall pay
less than the full amount of Obligations owing on such date, such
payment shall be distributed to the Lenders ratably based upon
the ratio of the aggregate amount of Obligations owing to each
such Lender on such date to the aggregate amount of Obligations
owing to all the Lenders on such date. Each payment delivered to
the Agent for the account of any Lender shall be delivered
promptly by the Agent to such Lender in the same type of funds
that the Agent received at its address specified pursuant to
Article XIII or at any Lending Installation specified in a notice
received by the Agent from such Lender. The Agent is hereby
authorized to charge the account of the Borrower maintained with
ANB for each payment of principal, interest and fees as it
becomes due hereunder.
2.4.7 Notes; Telephonic Notices. Each Lender is
hereby authorized to record the principal amount of each of its
Loans and each repayment on the schedule attached to its
applicable Note(s), and such entries shall be prima facie
evidence of the existence and the amounts of the Obligations
therein recorded; provided, however, that neither the failure to
so record nor any error in such recordation shall affect the
Borrower's obligations under any such Note. The Borrower hereby
authorizes the Lenders and the Agent to extend, convert or
continue Advances, effect selections of Types of Advances and to
transfer funds and issue Facility Letters of Credit in each case
based on telephonic notices made by any Authorized Officer or
Authorized Officers the Agent or any Lender in good faith
believes to be acting on behalf of the Borrower. The Borrower
agrees to deliver promptly to the Agent a written confirmation if
such confirmation is requested by the Agent or any Lender, of
each telephonic notice signed by an Authorized Officer. If the
written confirmation differs in any material respect from the
action taken by the Agent and the Lenders, the records of the
Agent and the Lenders shall govern absent manifest error.
2.4.8 Interest Payment Dates; Interest and Fee
Basis. Interest accrued on each Floating Rate Advance shall be
payable on each Payment Date, commencing with the first such date
to occur after the date hereof, on any date on which such
Floating Rate Advance is prepaid, whether due to acceleration or
otherwise, and at maturity. Interest accrued on that portion of
the outstanding principal amount of any Floating Rate Advance
optionally prepaid or converted into a Eurodollar Advance, in
each case on a day other than a Payment Date, shall be payable on
the Payment Date next succeeding the date of such prepayment or
conversion, as the case may be. Interest accrued on each
Eurodollar Advance shall be payable on the last day of its
applicable Interest Period, on any date on which the Eurodollar
Advance is prepaid, whether by acceleration or otherwise, and at
maturity. Interest accrued on each Eurodollar Advance having an
Interest Period longer than three months shall also be payable on
the last day of each three-month interval during such Interest
Period. Interest on all Types of Advances and fees shall be
calculated for actual days elapsed on the basis of a 360-day
year. Interest shall be payable for the day an Advance is made
but not for the day of any payment on the amount paid if payment
is received prior to noon (local time) at the place of payment.
If any payment of principal of or interest on an Advance shall
become due on a day which is not a Business Day, such payment
shall be made on the next succeeding Business Day and, in the
case of a principal payment, such extension of time shall be
included in computing interest in connection with such payment.
2.4.9 Notification of Advances, Interest Rates, and
Prepayments. Promptly after receipt thereof, the Agent will
notify each Lender of the contents of each Borrowing Notice,
Facility Letter of Credit Request, Conversion/Continuation Notice
and repayment notice received by it hereunder. The Agent will
notify each Lender of the interest rate applicable to each
Eurodollar Advance promptly upon determination of such interest
rate and will give each Lender notice of each change in the
Alternate Base Rate.
2.4.10 Lending Installations. Each Lender may book
its Loans at any Lending Installation selected by such Lender and
may change its Lending Installation from time to time. All terms
of this Agreement shall apply to any such Lending Installation
and the Notes shall be deemed held by each Lender for the benefit
of such Lending Installation. Each Lender may, by written or
telex notice to the Agent and the Borrower, designate a Lending
Installation through which Loans will be made by it and for whose
account Loan payments are to be made.
2.4.11 Non-Receipt of Funds by the Agent. Unless
the Borrower or a Lender, as the case may be, notifies the Agent
prior to the date on which it is scheduled to make payment to the
Agent of (i) in the case of a Lender, the proceeds of a Loan or
(ii) in the case of the Borrower, a payment of principal,
interest or fees to the Agent for the account of the Lenders,
that it does not intend to make such payment, the Agent may
assume that such payment has been made. The Agent may, but shall
not be obligated to, make the amount of such payment available to
the intended recipient in reliance upon such assumption. If such
Lender or the Borrower, as the case may be, has not in fact made
such payment to the Agent, the recipient of such payment shall,
on demand by the Agent, repay to the Agent the amount so made
available together with interest thereon in respect of each day
during the period commencing on the date such amount was so made
available by the Agent until the date the Agent recovers such
amount at a rate per annum equal to (i) in the case of repayment
by a Lender, the Federal Funds Effective Rate for such day or
(ii) in the case of repayment by the Borrower, the interest rate
applicable to the relevant Advance.
2.4.12 Withholding Tax Exemption. At least five
Business Days prior to the first date on which interest or fees
are payable hereunder for the account of any Lender, each Lender
that is not incorporated under the laws of the United States of
America, or a state thereof, agrees that it will deliver to each
of the Borrower and the Agent two duly completed copies of United
States Internal Revenue Service Form 1001 or 4224, certifying in
either case that such Lender is entitled to receive payments
under this Agreement and the Notes without deduction or
withholding of any United States federal income taxes. Each
Lender which so delivers a Form 1001 or 4224 further undertakes
to deliver to each of the Borrower and the Agent two additional
copies of such form (or a successor form) on or before the date
that such form expires (currently, three successive calendar
years for Form 1001 and one calendar year for Form 4224) or
becomes obsolete or after the occurrence of any event requiring a
change in the most recent forms so delivered by it, and such
amendments thereto or extensions or renewals thereof as may be
reasonably requested by the Borrower or the Agent, in each case
certifying that such Lender is entitled to receive payments under
this Agreement and the Notes without deduction or withholding of
any United States federal income taxes, unless an event
(including without limitation any change in treaty, law or
regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such Lender from duly
completing and delivering any such form with respect to it and
such Lender advises the Borrower and the Agent that it is not
capable of receiving payments without any deduction or
withholding of United States federal income tax.
ARTICLE III
CHANGE IN CIRCUMSTANCES
3.1 Yield Protection. If any law or any governmental or
quasi-governmental rule, regulation, policy, guideline or
directive (whether or not having the force of law) adopted,
enacted, modified or otherwise becoming effective after the date
hereof, or any interpretation thereof, or the compliance of any
Lender therewith,
(i) subjects any Lender or any applicable Lending
Installation to any tax, duty, charge or withholding on or
from payments due from the Borrower (excluding federal and
state taxation of the overall net income of any Lender or
applicable Lending Installation), or changes the basis of
taxation of payments to any Lender in respect of its Loans,
the Facility Letters of Credit or other amounts due it
hereunder, or
(ii) imposes or increases or deems applicable any
reserve, assessment, insurance charge, special deposit or
similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender or any
applicable Lending Installation (other than reserves and
assessments taken into account in determining the interest
rate applicable to Eurodollar Advances), or
(iii) imposes any other condition the result of
which is to increase the cost to any Lender or any
applicable Lending Installation of making, funding,
maintaining, issuing or participating in loans or Letters of
Credit or reduces any amount receivable by any Lender or any
applicable Lending Installation in connection with loans or
Letters of Credit, or requires any Lender or any applicable
Lending Installation to make any payment calculated by
reference to the amount of loans held, Letters of Credit
issued or participated in or interest received by it, in
each case by an amount deemed material by such Lender,
then, within 15 days of demand by such Lender, the Borrower shall
pay such Lender that portion of such increased expense incurred
or reduction in an amount received which such Lender reasonably
determines is attributable to making, funding and maintaining its
Loans and its Commitment.
3.2 Changes in Capital Adequacy Regulations. If a Lender
determines the amount of capital required or expected to be
maintained by such Lender, any Lending Installation of such
Lender or any corporation controlling such Lender is increased as
a result of a Change, then, within 15 days of demand by such
Lender, the Borrower shall pay such Lender the amount necessary
to compensate for any shortfall in the rate of return on the
portion of such increased capital which such Lender determines is
attributable to this Agreement, its Loans or its obligation to
make Loans hereunder (after taking into account such Lender's
policies as to capital adequacy).
3.3 Availability of Types of Advances. If any Lender
reasonably determines that maintenance of its Eurodollar Loans
would violate any applicable law, rule, regulation or directive,
whether or not having the force of law, or if the Required
Lenders determine that (i) deposits of a type and maturity
appropriate to match fund Eurodollar Advances are not available
or (ii) the interest rate applicable to a Eurodollar Advance does
not accurately reflect the cost of making or maintaining such
Eurodollar Advance, then the Agent shall suspend the availability
of the Eurodollar Rate and require any Eurodollar Advances to be
repaid or converted into a Floating Rate Advance, such repayment
or conversion to occur on the last day of the applicable Interest
Period (or such earlier date as may be required to comply with
any applicable law).
3.4 Funding Indemnification. If any payment of a
Eurodollar Advance occurs on a date which is not the last day of
the applicable Interest Period, whether because of acceleration,
prepayment or otherwise, or a Eurodollar Advance is not made on
the date specified by the Borrower for any reason other than
default by the Lenders, the Borrower will indemnify each Lender
for any loss or cost incurred by it resulting therefrom,
including, without limitation, any loss or cost in liquidating or
employing deposits acquired to fund or maintain the Eurodollar
Advance.
3.5 Taxes. (i) All payments by the Borrower to or for the
account of any Lender or the Agent hereunder or under any Note
shall be made free and clear of and without deduction for any and
all Taxes. If the Borrower shall be required by law to deduct
any Taxes from or in respect of any sum payable hereunder to any
Lender or the Agent, (a) the sum payable shall be increased as
necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this
Section 3.5) such Lender or the Agent (as the case may be)
receives an amount equal to the sum it would have received had no
such deductions been made, (b) the Borrower shall make such
deductions, (c) the Borrower shall pay the full amount deducted
to the relevant authority in accordance with applicable law and
(d) the Borrower shall furnish to the Agent the original copy of
a receipt evidencing payment thereof within 30 days after such
payment is made.
(ii) In addition, the Borrower hereby agrees to pay any
present or future stamp or
documentary taxes and any other excise or property taxes, charges
or similar levies which
arise from any payment made hereunder or under any Note or from
the execution or delivery
of, or otherwise with respect to, this Agreement or any Note
("Other Taxes").
(iii) The Borrower hereby agrees to indemnify the Agent and
each Lender for the full
amount of Taxes or Other Taxes (including, without limitation,
any Taxes or Other Taxes
imposed on amounts payable under this Section 3.5) paid by the
Agent or such Lender and
any liability (including penalties, interest and expenses)
arising therefrom or with respect
thereto. Payments due under this indemnification shall be made
within 30 days of the date
the Agent or such Lender makes demand therefor pursuant to
Section 3.6.
(iv) Each Lender that is not incorporated under the laws of
the United States of
America or a state thereof (each a "Non-U.S. Lender") agrees that
it will, not less than ten
Business Days after the date of this Agreement, (i) deliver to
each of the Borrower and the
Agent two duly completed copies of United States Internal Revenue
Service Form 1001 or
4224, certifying in either case that such Lender is entitled to
receive payments under this
Agreement without deduction or withholding of any United States
federal income taxes, and
(ii) deliver to each of the Borrower and the Agent a United
States Internal Revenue Form W-
8 or W-9, as the case may be, and certify that it is entitled to
an exemption from United
States backup withholding tax. Each Non-U.S. Lender further
undertakes to deliver to each
of the Borrower and the Agent (x) renewals or additional copies
of such form (or any
successor form) on or before the date that such form expires or
becomes obsolete, and (y)
after the occurrence of any event requiring a change in the most
recent forms so delivered by
it, such additional forms or amendments thereto as may be
reasonably requested by the
Borrower or the Agent. All forms or amendments described in the
preceding sentence shall
certify that such Lender is entitled to receive payments under
this Agreement without
deduction or withholding of any United States federal income
taxes, unless an event
(including without limitation any change in treaty, law or
regulation) has occurred prior to
the date on which any such delivery would otherwise be required
which renders all such
forms inapplicable or which would prevent such Lender from duly
completing and delivering
any such form or amendment with respect to it and such Lender
advises the Borrower and
the Agent that it is not capable of receiving payments without
any deduction or withholding
of United States federal income tax.
(v) For any period during which a Non-U.S. Lender has failed
to provide the
Borrower with an appropriate form pursuant to clause (iv), above
(unless such failure is due
to a change in treaty, law or regulation, or any change in the
interpretation or administration
thereof by any governmental authority, occurring subsequent to
the date on which a form
originally was required to be provided), such Non-U.S. Lender
shall not be entitled to
indemnification under this Section 3.5 with respect to Taxes
imposed by the United States;
provided that, should a Non-U.S. Lender which is otherwise exempt
from or subject to a
reduced rate of withholding tax become subject to Taxes because
of its failure to deliver a
form required under clause (iv), above, the Borrower shall take
such steps as such Non-U.S.
Lender shall reasonably request to assist such Non-U.S. Lender to
recover such Taxes.
(vi) Any Lender that is entitled to an exemption from or
reduction of withholding tax
with respect to payments under this Agreement or any Note
pursuant to the law of any
relevant jurisdiction or any treaty shall deliver to the Borrower
(with a copy to the Agent), at
the time or times prescribed by applicable law, such properly
completed and executed
documentation prescribed by applicable law as will permit such
payments to be made without
withholding or at a reduced rate.
3.6 Lender Statements; Survival of Indemnity. To the
extent reasonably possible, each Lender shall designate an
alternate Lending Installation with respect to its Eurodollar
Loans to reduce any liability of the Borrower to such Lender
under Sections 3.1, 3.2 and 3.5 or to avoid the unavailability of
Eurodollar Advances under Section 3.3, so long as such
designation is not, in the judgment of such Lender,
disadvantageous to such Lender. Each Lender shall deliver a
written statement of such Lender to the Borrower (with a copy to
the Agent) as to the amount due, if any, under Section 3.1, 3.2,
3.4 or 3.5. Such written statement shall set forth in reasonable
detail the calculations upon which such Lender determined such
amount and shall be final, conclusive and binding on the
Borrower. Unless otherwise provided herein, the amount specified
in the written statement of any Lender shall be payable on demand
after receipt by the Borrower of such written statement. The
obligations of the Borrower under Sections 3.1, 3.2 and 3.4 shall
survive for a period of one year after the later of the payment
in full of the Obligations and the termination of this Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
4.1 Initial Advance and Facility Letter of Credit. The
Lenders shall not be required to make the initial Advance
hereunder and, if the initial Advance shall not have been made,
the Issuer shall not be required to issue the initial Facility
Letter of Credit hereunder unless the Borrower has furnished to
the Agent with sufficient copies for the Lenders the following,
each dated as of the initial Borrowing Date or Issuance Date, as
the case may be (or such earlier date as shall be acceptable to
the Agent):
(i) Copies of the certificate of incorporation of
each Credit Party, together with all amendments thereto, and
certificates of good standing of each Credit Party from each
jurisdiction in which such Credit Party is qualified to do
business, all certified by the appropriate governmental
officers in their respective jurisdiction.
(ii) Copies, certified by the Secretary or an
Assistant Secretary of each Credit Party, of their
respective by-laws and of Board of Directors' resolutions
(and resolutions of other bodies, if any are deemed
necessary by counsel for the Agent) authorizing the
execution of each of the Loan Documents to which such Credit
Party is a party.
(iii) Incumbency certificates, executed by the
Secretary or an Assistant Secretary of each Credit Party,
which shall identify by name and title and bear the
signature of the officers of such Credit Party authorized to
sign the Loan Documents to which it is a party and, with
respect to the Borrower, to make borrowings hereunder, upon
which certificates the Agent and the Lenders shall be
entitled to rely until informed of any change in writing by
the Borrower.
(iv) A certificate, signed by the chief financial
officer of the Borrower, stating that on the initial
Borrowing Date no Default or Unmatured Default has occurred
and is continuing.
(v) A written opinion of Xxxx & Xxxxxxx, outside
counsel to the Credit Parties, addressed to the Agent and
the Lenders in substantially the form of Exhibit E hereto.
(vi) Notes payable to the order of each of the
Lenders.
(vii) Written money transfer instructions, in
substantially the form of Exhibit F hereto addressed to the
Agent and signed by an Authorized Officer, together with
such other related money transfer authorizations as the
Agent may have reasonably requested.
(viii) Evidence satisfactory to the Agent that (a)
the Borrower shall have paid, or concurrently with the
making of the initial Advance or the issuance of the initial
Facility Letter of Credit shall pay, in full, all fees
required to be paid pursuant to Section 2.4.1 on or before
the initial Borrowing Date or Issuance Date, as the case may
be.
(ix) A field audit of the Borrower's La Fox,
Illinois facility to be completed by the Agent which shall
be acceptable to the Agent and all Lenders.
(x) Execution and delivery of the Canadian Credit
Agreement (as amended).
(xi) Consent by the Canadian Borrower to the
Canadian Lender's sale of participations in the Canadian
Credit Agreement to the Lenders.
(xii) Such other documents as any Lender or its
counsel may have reasonably requested.
4.2 Each Advance and Facility Letter of Credit. The
Lenders shall not be required to make any Advance (other than an
Advance that, after giving effect thereto and to the application
of the proceeds thereof, does not increase the aggregate amount
of outstanding Advances) and the Issuer shall not be required to
issue any Facility Letter of Credit, unless on the applicable
Borrowing Date or Issuance Date, as the case may be:
(i) There exists no Default or Unmatured Default.
(ii) The representations and warranties contained
in Article V are true and correct as of such Borrowing Date
except to the extent any such representation or warranty is
stated to relate solely to an earlier date, in which case
such representation or warranty shall be true and correct on
and as of such earlier date.
Each Borrowing Notice with respect to each such Advance and each
Facility Letter of Credit Request with respect to each such
Facility Letter of Credit shall constitute a representation and
warranty by the Borrower that the conditions contained in
Sections 4.2(i) and (ii) have been satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
5.1 Corporate Existence and Standing. The Borrower is a
corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware, and each
Subsidiary is a corporation duly incorporated, validly existing
and in good standing under the laws of its respective state of
incorporation; and each of the Borrower and the Subsidiaries is
duly qualified and in good standing as a foreign corporation
authorized to do business in each jurisdiction where such
qualification is required because of the nature of its activities
or properties and where the failure to maintain such
qualification would singly or in the aggregate cause a Material
Adverse Effect.
5.2 Authorization and Validity. The Borrower has the
corporate power and authority and legal right to execute and
deliver the Loan Documents to which it is a party and to perform
its obligations thereunder. The execution and delivery by the
Borrower of the Loan Documents and the performance of its
obligations thereunder have been duly authorized by proper
corporate proceedings, and the Loan Documents constitute legal,
valid and binding obligations of the Borrower, enforceable
against the Borrower in accordance with the terms thereof, except
as enforceability may be limited by bankruptcy, insolvency or
similar laws or general principles of equity relating to remedies
affecting or relating to the enforcement of creditors' rights
generally.
5.3 No Conflict; Government Consent. Neither the execution
and delivery by the Borrower of the Loan Documents, nor the
consummation of the transactions therein contemplated, nor
compliance with the provisions thereof will violate any law,
rule, regulation, order, writ, judgment, injunction, decree or
award binding on the Borrower or any of its Subsidiaries, or
violate the Borrower's or any Subsidiary's certificate of
incorporation or by-laws or the provisions of any indenture,
instrument or agreement to which the Borrower or any of its
Subsidiaries is a party or is subject, or by which it or its
Property is bound, or conflict with or constitute a default
thereunder, or result in the creation or imposition of any Lien
in, of or on the Property of the Borrower or a Subsidiary
pursuant to the terms of any such indenture, instrument or
agreement. No order, consent, approval, license authorization, or
validation of, or filing, recording or registration with, or
exemption by, or other action in respect of any governmental or
public body or authority, or any subdivision thereof, is required
to authorize, or is required in connection with the execution,
delivery and performance of, or the legality, validity, binding
effect of, any of the Loan Documents, except as may be applicable
because of any Lender, the Agent or an Issuer being a party
thereto or except as may be required with respect to particular
Facility Letters of Credit.
5.4 Financial Statements. The August 31, 1997 consolidated
financial statements of the Borrower and its Subsidiaries
heretofore delivered to the Lenders were prepared in accordance
with GAAP in effect on the date such statements were prepared and
fairly present the consolidated financial condition and
operations of the Borrower and its Subsidiaries at such date and
the consolidated results of their operations for the period then
ended.
5.5 Material Adverse Change. Except as set forth as of the
date of this Agreement on Schedule 5.5 hereto, since August 31,
1997, there has been no change in the business, Property,
financial condition or results of operations of the Borrower or
any of its Subsidiaries which could reasonably be expected to
have a Material Adverse Effect.
5.6 Taxes. Except as set forth as of the date of this
Agreement on Schedule 5.6 hereto, the Borrower and its
Subsidiaries have filed all United States federal tax returns and
all other tax returns which are required to be filed and have
paid all taxes due pursuant to said returns or pursuant to any
assessment received by the Borrower or any of its Subsidiaries,
except such taxes, if any, as are being contested in good faith
and as to which adequate reserves have been provided in
accordance with GAAP and as to which no Lien exists, except for
failures to file or pay which could not be reasonably expected to
have a Material Adverse Effect. The United States income tax
returns of the Borrower and its Subsidiaries have been audited by
the Internal Revenue Service through the Fiscal Year ended May
31, 1995. No tax liens have been filed and no claims are being
asserted with respect to any such taxes. The charges, accruals
and reserves on the books of the Borrower and its Subsidiaries in
respect of any taxes or other governmental charges are adequate.
5.7 Litigation and Contingent Obligations. Except as set
forth as of the date of this Agreement on Schedule 5.7 hereto,
there is no litigation, arbitration, governmental investigation,
proceeding or inquiry pending or, to the best knowledge of any of
their officers, threatened against or affecting the Borrower or
any of its Subsidiaries which could be reasonably expected to
have a Material Adverse Effect or which seeks to prevent, enjoin
or delay the making of the Loans or Advances. Other than any
liability incidental to such litigation, arbitration or
proceedings, neither the Borrower nor any Subsidiary has any
material contingent obligations not provided for or disclosed in
the financial statements referred to in Section 5.4.
5.8 Subsidiaries. Except as otherwise disclosed to the
Lenders in writing on or prior to the date hereof, Schedule 5.8
hereto contains an accurate list of all Subsidiaries of the
Borrower as of the date of this Agreement, setting forth their
respective jurisdictions of incorporation and the percentage of
their respective capital stock owned by the Borrower or other
Subsidiaries. All of the issued and outstanding shares of capital
stock of such Subsidiaries have been duly authorized and issued
and those shares which are owned by Borrower or one or more of
its Subsidiaries are fully paid and non-assessable.
5.9 ERISA. The Unfunded Liabilities of all Single Employer
Plans do not in the aggregate exceed $500,000. Neither the
Borrower nor any other member of the Controlled Group has
incurred, or is reasonably expected to incur, any withdrawal
liability to Multiemployer Plans in excess of $500,000 in the
aggregate. Each Plan complies in all material respects with all
applicable requirements of law and regulations, no Reportable
Event has occurred with respect to any Plan, neither the Borrower
nor any other members of the Controlled Group has withdrawn from
any Plan, except as set forth as of the date of this Agreement on
Schedule 5.9 hereto, or initiated steps to do so, and no steps
have been taken to reorganize or terminate any Plan. Each
Benefit Plan is in substantial compliance with ERISA and the Code
and neither the Borrower or any Controlled Group member has
received any notice asserting that any Benefit Plan is not in
compliance with either ERISA or the Code.
5.10 Accuracy of Information. No information, exhibit or
report furnished by the Borrower or any of its Subsidiaries to
the Agent or to any Lender in connection with the negotiation of,
or compliance with, the Loan Documents contained any material
misstatement of fact or omitted to state a material fact or any
fact necessary to make the statements contained therein not
misleading.
5.11 Regulation U. Margin stock (as defined in Regulation
U) constitutes less than 25% of those assets of the Borrower and
each of its Subsidiaries which are subject to any limitation on
sale, pledge, or other restriction hereunder.
5.12 Material Agreements. Neither the Borrower nor any
Subsidiary is a party to any agreement or instrument or subject
to any charter or other corporate restriction which could
reasonably be expected to have a Material Adverse Effect. Neither
the Borrower nor any Subsidiary is in default in the performance,
observance or fulfillment of any of the obligations, covenants or
conditions contained in any agreement to which it is a party,
except such default which could not reasonably be expected to
have a Material Adverse Effect.
5.13 Compliance With Laws. The Borrower and each of its
Subsidiaries have complied with all applicable statutes, rules,
regulations, orders and restrictions of any domestic or foreign
government or any instrumentality or agency thereof, having
jurisdiction over the conduct of their respective businesses or
the ownership of their respective Property except for any failure
to comply with any of the foregoing which could not reasonably be
expected to have a Material Adverse Effect.
5.14 Ownership of Properties. Except as set forth on
Schedule 5.14 hereto, on the date of this Agreement, the Borrower
and its Subsidiaries will have good title, free of all Liens
(other than those permitted by Section 6.16), to all of the
Property and assets reflected in the Borrower's most recent
consolidated financial statements provided to the Agent as owned
by it.
5.15 Environmental Matters. Except as set forth as of the
date of this Agreement on Schedule 5.15 hereto, in the ordinary
course of its business, the officers of the Borrower consider the
effect of Environmental Laws on the business of the Borrower and
its Subsidiaries, in the course of which they identify and
evaluate potential risks and liabilities accruing to the Borrower
due to Environmental Laws. On the basis of this consideration,
the Borrower has concluded that Environmental Laws cannot
reasonably be expected to have a Material Adverse Effect.
Neither the Borrower nor any Subsidiary has any reason to believe
that its operations are not in material compliance with any of
the requirements of applicable Environmental Laws or are the
subject of any federal or state investigation evaluating whether
any remedial action is needed to respond to a release of any
toxic or hazardous waste or substance into the environment, which
non-compliance or remedial action could reasonably be expected to
have a Material Adverse Effect.
5.16 Investment Company Act. Neither the Borrower nor any
Subsidiary thereof is an "investment company" or a company
"controlled" by an "investment company", within the meaning of
the Investment Company Act of 1940, as amended.
5.17 Public Utility Holding Company Act. Neither the
Borrower nor any Subsidiary is a "holding company" or a
"subsidiary company" of a "holding company", or an "affiliate" of
a "holding company" or of a "subsidiary company" of a "holding
company", within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required
Lenders shall otherwise consent in writing:
6.1 Financial Reporting. The Borrower will maintain, for
itself and each Subsidiary, a system of accounting established
and administered in accordance with GAAP, and furnish to the
Lenders:
(i) Within 90 days after the close of each of its
Fiscal Years, (a) an unqualified audit report certified by
independent certified public accountants, reasonably
acceptable to the Agent, prepared in accordance with GAAP on
a consolidated basis for itself and its Subsidiaries,
including balance sheets as of the end of such period,
related profit and loss and reconciliation of surplus
statements, and a statement of cash flows, and accompanied
by a certificate of said accountants that, in the course of
their examination necessary for their certification of the
foregoing, they have obtained no knowledge of any Default or
Unmatured Default, or if, in the opinion of such
accountants, any Default or Unmatured Default shall exist,
stating the nature and status thereof, and (b) the
Borrower's annual 10-K financial statement.
(ii) Within 45 days after the close of each
quarterly period of each of its Fiscal Years, for itself and
its Subsidiaries, (a) consolidated and consolidating
unaudited balance sheets as at the close of each such period
and consolidated and consolidating profit and loss and
reconciliation of surplus statements and a statement of cash
flows for the period from the beginning of such Fiscal Year
to the end of such quarter, all prepared in accordance with
GAAP and certified by the chief financial officer of the
Borrower; and (b) its quarterly 10-Q financial statements.
(iii) Within 45 days after the close of each of the
Canadian Borrower's fiscal quarters, for itself and its
Subsidiaries, consolidated unaudited balance sheets as at
the close of each such period and consolidated profit and
loss and reconciliation of surplus statements and a
statement of cash flows for the period from the beginning of
the Canadian Borrower's fiscal year to the end of such
quarter, all prepared in accordance with GAAP and certified
by the chief financial officer of the Canadian Borrower.
(iv) Together with the financial statements
required under Sections 6.1(i) and (ii), a Compliance
Certificate.
(v) If the Borrower or any member of the
Controlled Group maintains a Single Employer Plan, within
270 days after the close of each Fiscal Year, a statement of
the Unfunded Liabilities of each Single Employer Plan, if
any, certified as correct by a plan administrator enrolled
under ERISA.
(vi) As soon as possible and in any event within
10 days after the Borrower knows that any Reportable Event
has occurred with respect to any Plan, a statement, signed
by the chief financial officer of the Borrower, describing
said Reportable Event and the action which the Borrower
proposes to take with respect thereto.
(vii) As soon as possible and in any event within
10 days after the Borrower or any Controlled Group member
withdraws from a Multiemployer Plan.
(viii) As soon as possible and in any event within
10 days after the Borrower or any Controlled Group member
terminates a Single Employer Plan under Section 4041 of
ERISA.
(ix) As soon as possible and in any event within
10 days after receipt by the Borrower that any Benefit Plan
or Borrower or Controlled Group Member has violated the
provisions of ERISA or the Code, which violation could
result in liability to the Borrower in excess of $250,000.
(x) As soon as possible and in any event within
10 days after receipt by the Borrower, a copy of (a) any
notice or claim to the effect that the Borrower or any of
its Subsidiaries is or may be liable to any Person as a
result of the release by the Borrower, any of its
Subsidiaries, or any other Person of any toxic or hazardous
waste or substance into the environment, and (b) any notice
alleging any violation of any federal, state or local
environmental, health or safety law or regulation by the
Borrower or any of its Subsidiaries, which, in either case,
could reasonably be expected to have a Material Adverse
Effect.
(xi) Promptly upon the furnishing thereof to the
shareholders of the Borrower, copies of all financial
statements, reports and proxy statements so furnished.
(xii) Promptly upon the filing thereof, copies of
all registration statements and annual, quarterly, monthly
or other regular reports which the Borrower or any of its
Subsidiaries files with the Securities and Exchange
Commission.
(xiii) Concurrently with (and in no event later than
two Business Days after) the delivery thereof to the
Canadian Lender, copies of (i) all financial statements and
other similar information in respect of the Borrower and the
Canadian Borrower and (ii) such other financial information
and reports in respect of the Borrower and the Canadian
Borrower which, in each case, the Borrower or the Canadian
Borrower delivers, or causes to be delivered, to the
Canadian Lender and which have not previously been delivered
to the Lenders pursuant to this Section 6.1 or otherwise.
(xiv) On or before September 30 of each of the
Borrower's Fiscal Years, projected statements of income and
cash flow and a projected balance sheet for the Borrower
covering the period to and including May 31, 2001.
(xv) Within thirty days following delivery to the
Borrower, a copy of each of the Borrower's auditor's
management letters, if prepared.
(xvi) Within forty-five days following the end of
each of the Borrower's fiscal quarters, a report of the
amount of Designated Inventory and Designated Accounts in
form and substance acceptable to the Required Lenders which
report shall contain a calculation showing compliance with
Section 6.21 hereof.
(xvii) Such other information (including non-financial
information) as the Agent or any Lender may from
time to time reasonably request.
6.2 Use of Proceeds. The Borrower will, and will cause
each Subsidiary to, use the proceeds of the Advances and the
Facility Letters of Credit for working capital and for general
corporate purposes. The Borrower will not, nor will it permit
any Subsidiary to, use any of the proceeds of the Advances or the
Facility Letters of Credit to purchase or carry any "margin
stock" (as defined in Regulation U).
6.3 Notice of Default. The Borrower will give prompt
notice in writing to the Lenders of the occurrence of (i) any
Default or Unmatured Default and (ii) any other development,
financial or otherwise, which development could reasonably be
expected to have a Material Adverse Effect.
6.4 Conduct of Business. The Borrower will, and will cause
each Subsidiary to, carry on and conduct its business in
substantially the same manner and in substantially the same
fields of enterprise as it is presently conducted and to do all
things necessary to remain duly incorporated, validly existing
and in good standing as a domestic corporation in its
jurisdiction of incorporation and maintain all requisite
authority to conduct its business in each jurisdiction in which
its business is conducted unless failure to maintain such
authority could not reasonably be expected to have a Material
Adverse Effect.
6.5 Taxes. The Borrower will, and will cause each
Subsidiary to, timely file complete and correct United States
federal and applicable foreign, state and local tax returns
required by law and pay when due all taxes, assessments and
governmental charges and levies upon it or its income, profits or
Property, except those which are being contested in good faith by
appropriate proceedings and with respect to which adequate
reserves have been set aside in accordance with GAAP, and except
to the extent that nonpayment could not reasonably be expected to
have a Material Adverse Effect.
6.6 Insurance. The Borrower will, and will cause each
Subsidiary to, maintain with financially sound and reputable
insurance companies insurance on all their Property in such
amounts and covering such risks as is consistent with sound
business practice, and the Borrower will furnish to any Lender
upon request full information as to the insurance carried.
6.7 Compliance with Laws. The Borrower will, and will
cause each Subsidiary to, comply with all laws, rules,
regulations, orders, writs, judgments, injunctions, decrees or
awards to which it may be subject including, without limitation,
all Environmental Laws, except to the extent that noncompliance
could not reasonably be expected to have a Material Adverse
Effect.
6.8 Maintenance of Properties. The Borrower will, and will
cause each Subsidiary to, do all things necessary to maintain,
preserve, protect and keep its Property in good repair, working
order and condition, and make all necessary and proper repairs,
renewals and replacements so that its business carried on in
connection therewith may be properly conducted at all times,
except to the extent that failure to make such repair could not
reasonably be expected to have a Material Adverse Effect.
6.9 Inspection. The Borrower will, and will cause each
Subsidiary to, permit the Agent and any Lender, by their
respective representatives and agents, to inspect any of the
Property, corporate books and financial records of the Borrower
and each Subsidiary, to examine and make copies of the books of
accounts and other financial records of the Borrower and each
Subsidiary, and to discuss the affairs, finances and accounts of
the Borrower and each Subsidiary with, and to be advised as to
the same by, their respective officers at such reasonable times
and intervals as the Agent or any Lender may designate.
6.10 Financial Covenants. The financial covenants referred
to in this Section 6.10 shall each be computed at the end of each
fiscal quarter by the Borrower, and such calculations shall be
included in the Compliance Certificate referred to in Section
6.1(iv).
6.10.1 Consolidated Tangible Net Worth. The
Borrower will maintain, at all times during the period set forth
below, a Consolidated Tangible Net Worth of not less than the
amount set forth below opposite each such period:
Period Amount
On or prior to 5/30/98 $115,000,000
From 5/31/98 to and $120,000,000
including 5/30/99
On or after 5/31/99 $130,000,000
6.10.2 Senior Funded Debt to Cash Flow Ratio. The
Borrower will maintain, at all times during the periods set forth
below, a Senior Funded Debt to Cash Flow Ratio of not greater
than the ratio set forth below opposite each such period:
Period Ratio
On or prior to 5/30/98 2.50:1.00
From 5/31/98 to and 2.25:1.00
including 5/30/99
On or after 5/31/99 2.15:1.00
6.10.3 Adjusted Interest Coverage Ratio. The
Borrower will maintain, at all times during the periods set forth
below, an Adjusted Interest Coverage Ratio of not less than the
ratio set forth below opposite each such period:
Period Ratio
On or prior to 5/30/98 1.70:1.00
From 5/31/98 to and 2.10:1.00
including 5/30/99
On or after 5/31/99 2.50:1.00
6.11 [Intentionally Omitted].
6.12 Indebtedness. The Borrower will not, nor will it
permit any Subsidiary to, create, incur or suffer to exist any
Indebtedness, except:
(i) Advances and Facility Letter of Credit
Obligations hereunder.
(ii) The Canadian Loans.
(iii) The Canadian Guaranty.
(iv) Indebtedness which (a) exists on the date
hereof, (b) is described in Schedule 6.12 hereto, and (c)
has been previously approved by the Agent.
(v) Subordinated Debt with terms and conditions
which in the sole opinion of the Required Lenders are no
more restrictive (with respect to Senior Funded Debt) than
Subordinated Debt in existence on the date hereof.
(vi) Indebtedness incurred to refinance existing
Indebtedness permitted pursuant to this Section 6.12;
provided, however, that the maturity date of such new
Indebtedness is no earlier than the maturity date of the
Indebtedness being refinanced and the terms of such new
Indebtedness (including, but not limited to, the amount, the
term, the amount of the annual loan payment or provision for
collateral or additional collateral) are no more
disadvantageous to the Lenders, the Borrower and its
Subsidiaries than the terms of the Indebtedness being
refinanced.
(vii) Contingent Obligations not exceeding $500,000
at any one time outstanding.
(viii) Intercompany Indebtedness permitted under
Section 6.15.
6.13 Merger. The Borrower will not, nor will it permit any
Subsidiary to, merge or consolidate with or into any other
Person, except that (i) a Subsidiary may amalgamate, merge or
consolidate with or into the Borrower or a Wholly-Owned
Subsidiary and (ii) the Borrower or any Subsidiary (other than a
Subsidiary Guarantor) may merge, amalgamate or consolidate with
any other Person pursuant to a Permitted Acquisition, provided
that (a) the Borrower or such Subsidiary shall be the surviving
entity and (b) after giving effect thereto, no Default or
Unmatured Default shall exist.
6.14 Sale of Assets. The Borrower will not, nor will it
permit any Subsidiary to, lease, sell or otherwise dispose of
Property, to any other Person, except:
(i) Sales of inventory in the ordinary course of
business.
(ii) Leases, sales or other dispositions of
Property that, together with all other Property of the
Borrower and its Subsidiaries previously leased, sold or
disposed of (other than inventory in the ordinary course of
business) as permitted by this Section during the
twelve-month period ending with the month in which any such
lease, sale or other disposition occurs, do not constitute a
Substantial Portion of the Property of the Borrower and its
Subsidiaries.
6.15 Investments and Acquisitions. The Borrower will not,
nor will it permit any Subsidiary to, make or suffer to exist any
Investments (including without limitation, loans and advances to,
and other Investments in, Subsidiaries), or commitments therefor,
or to become or remain a partner in any partnership or joint
venture, or member in a limited liability company, or to make any
Acquisition of any Person, except:
(i) Short-term obligations of, or fully
guaranteed by, the United States of America.
(ii) Commercial paper rated A-1 or better by
Standard and Poor's Corporation or P-1 or better by Xxxxx'x
Investors Service, Inc.
(iii) Demand deposit accounts maintained in the
ordinary course of business.
(iv) Certificates of deposit issued by and time
deposits with commercial banks (whether domestic or foreign)
having capital and surplus in excess of $100,000,000.
(v) Investments not to exceed $5 million in the
aggregate at any one time outstanding in the common stock
and investment grade bonds of publicly
held corporations which stock and bonds are traded on the
New York, American or NASDAQ stock exchanges.
(vi) Loans to employees of the Borrower or of any
of its Subsidiaries which do not exceed, in the aggregate
for all such employees at any one time outstanding,
$750,000.
(vii) Permitted Acquisitions.
(viii) Existing Investments which (a) are in
existence on the date hereof, (b) are described in Schedule
6.15 (viii) hereto and (c) have been previously approved by
the Agent and the Lenders.
(ix) Loans and advances to and other Investments
in Borrower's Subsidiaries in the ordinary course of
business not exceeding at any time outstanding for each
Subsidiary, an amount which is the greater of (i) fifteen
percent (15%) greater than the amount of such loans,
advances and other Investments in each such Subsidiary
stated in the Borrower's financial statement dated on or
about the immediately preceding November 30 (the "November
Statement"), or (ii) one million dollars ($1,000,000) plus
the amount of such loans, advances and other Investments in
each such Subsidiary stated in the November Statement;
provided that in no event shall such loans, advances and
other Investments exceed for all of Borrower's Subsidiaries
in the aggregate at any time outstanding $10,000,000 plus
the aggregate amount of such loans, advances and other
Investments stated in the November Statement.
6.16 Liens. The Borrower will not, nor will it permit any
Subsidiary to create, incur, or suffer to exist any Lien in, of
or on the Property of the Borrower or any of its Subsidiaries,
except:
(i) Liens for taxes, assessments or governmental
charges or levies on its Property if the same shall not at
the time be delinquent or thereafter can be paid without
penalty, or are being contested in good faith and by
appropriate proceedings and for which adequate reserves in
accordance with generally accepted principles of accounting
shall have been set aside on its books.
(ii) Liens imposed by law, such as carriers',
warehousemen's and mechanics' liens and other similar liens
arising in the ordinary course of business which secure
payment of obligations not more than 60 days past due and
which are being contested in good faith by appropriate
proceedings and for which adequate reserves shall have been
set aside on its books.
(iii) Liens arising out of pledges or deposits
under worker's compensation laws, unemployment insurance,
old age pensions, or other social security or retirement
benefits, or similar legislation.
(iv) Liens arising from a judgment rendered or
claim filed, not in excess, singly or in the aggregate, of
$250,000 against the Borrower or any of its Subsidiaries
which the Borrower or such Subsidiary shall be contesting
diligently in good faith by proper legal proceedings.
(v) Liens which exist on the date hereof incurred
by Borrower or its Subsidiaries in the ordinary course of
business securing Indebtedness less than $100,000 in the
aggregate.
(vi) Liens securing obligations which are excluded
from Subsection (iii) of the definition of Indebtedness
herein.
(vii) Any extension, renewal or substitution of or
for any of the foregoing Liens described in this Section
6.16, provided in each case that (a) the Indebtedness or
other obligation or liability secured by the applicable Lien
shall not exceed the Indebtedness or other obligation or
liability existing immediately prior to such extension,
renewal or substitution and (b) the Lien securing such
Indebtedness or other obligation or liability shall be
limited to the Property which, immediately prior to such
extension, renewal or substitution, secured such
Indebtedness or other obligation or liability, and
improvements on or additions to such Property.
(viii) A Lien upon Borrower's funds not exceeding $1
million on deposit with the French government to secure the
payment by the Borrower of value added tax owed (if any) to
the French government.
6.17 Prohibition of Negative Pledge. The Borrower will not,
nor will it permit any of its Subsidiaries to agree, covenant,
warrant, represent, pledge or otherwise commit with or to any
entity other than the Agent, to not incur, create, assume or
permit to exist, any mortgage, pledge, lien charge or other
encumbrance of any nature whatsoever on all or any of its assets
now or hereafter owned, except for such pledge made directly in
connection with the purchase of inventory in the ordinary course
of business, with a value of such inventory (valued at the cost
of such inventory) owned by Borrower and its Subsidiaries not
exceeding $2.5 million in the aggregate at any time.
6.18 Affiliates. The Borrower will not, nor will it permit
any Subsidiary to, enter into any transaction (including, without
limitation, the purchase or sale of any Property or service)
with, or make any payment or transfer to, any Affiliate except in
the ordinary course of business and pursuant to the reasonable
requirements of the Borrower's or such Subsidiary's business and
upon fair and reasonable terms no less favorable to the Borrower
or such Subsidiary than the Borrower or such Subsidiary would
obtain in a comparable arms-length transaction.
6.19 Amendments to Agreements. The Borrower will not, nor
will it permit any Subsidiary to, amend any term or provision of
the Canadian Credit Agreement, the Canadian Guaranty, any other
Canadian Loan Document or the Debentures except with the consent
of the Required Lenders and all Lenders for the type of
amendments which would require the consent of the Required
Lenders and all Lenders respectively under Section 8.2 hereof.
The Borrower shall deliver to the Agent all amendments to the
Canadian Loan Documents within five (5) days of such amendment.
6.20 Sale of Accounts. The Borrower will not, nor will it
permit any Subsidiary to, sell or otherwise dispose of any notes
receivable or accounts receivable, with or without recourse,
except for accounts which are past due in an aggregate amount not
exceeding $2 million for each of the Company's fiscal years
placed with a collection agent for collection at a commission not
exceeding twenty percent (20%) of the amount of such notes or
accounts recovered.
6.21 Limit on Senior Funded Debt. The Borrower will not
permit at any time the amount of the Borrower's and its
Subsidiaries' consolidated Senior Funded Debt to exceed the sum
of 80% of the value of Designated Accounts plus 50% of the value
of Designated Inventory (valued at the lower of cost or market
value), such Designated Accounts and Designated Inventory as in
existence at the end of the Borrower's most recently completed
fiscal quarter.
6.22 Fiscal Year. The Borrower will not, nor will it permit
any Subsidiary to, change its Fiscal Year.
6.23 Limitation on the Creation of Subsidiaries.
Notwithstanding anything to the contrary contained in this
Agreement, the Borrower will not, and will not permit any of its
Subsidiaries to, establish, create or acquire any Subsidiary;
provided that the Borrower and its Wholly-Owned Subsidiaries
shall be permitted to establish or create Wholly-Owned
Subsidiaries so long as at least 30 days' prior written notice
thereof (or such lesser notice as is acceptable to the Agent in
its sole discretion) is given to the Agent.
6.24 Subsidiary Dividends. The Borrower's Subsidiaries
shall not in any manner either directly or indirectly incur or be
bound by any restrictions on dividends from such Subsidiaries to
the Borrower, other than those restrictions required by
applicable law.
6.25 Repayment of Subordinated Debt. The Borrower's and its
Subsidiaries' amounts of Subordinated Debt which become due and
remain unpaid plus the amount of the Borrower's and its
Subsidiaries' actual payment of Subordinated Debt, shall not
exceed $2.5 million in the aggregate for any immediately
preceding four fiscal quarter trailing period of the Borrower.
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events
shall constitute a Default:
7.1 Any representation or warranty made (or deemed made
pursuant to Article IV) by or on behalf of the Borrower or any of
its Subsidiaries to the Lenders or the Agent under or in
connection with this Agreement, any Loan, any Facility Letter of
Credit or any certificate or information delivered in connection
with this Agreement or any other Loan Document shall be
materially false on the date as of which made (or deemed made).
7.2 Nonpayment of principal of any Note or of any
Reimbursement Obligation when due (or in the case of any
Reimbursement Obligation due upon demand, upon demand), or
nonpayment of interest upon any Note or of any facility fee,
agent fee, Issuance Fee or other obligations (other than
Reimbursement Obligations which have been converted into Floating
Rate Advances pursuant to Section 2.3.6) under any of the Loan
Documents within five (5) days after the same becomes due.
7.3 The breach by the Borrower of any of the terms or
provisions of Article VI.
7.4 The breach by the Borrower (other than a breach which
constitutes a Default under Section 7.1, 7.2 or 7.3) of any of
the terms or provisions of this Agreement which is not remedied
within fifteen (15) days after written notice from the Agent.
7.5 Failure of the Borrower or any of its Subsidiaries to
pay when due any Indebtedness to any of the Lenders or any other
Indebtedness in excess of, singly or in the aggregate, $1,000,000
(any such Indebtedness being herein defined as "Material
Indebtedness"); or the default by the Borrower or any of its
Subsidiaries in the performance of any term, provision or
condition contained in any agreement under which any such
Material Indebtedness was created or is governed, or any other
event shall occur or condition exist, the effect of which is to
cause, or to permit the holder or holders of such Material
Indebtedness to cause, such Material Indebtedness to become due
prior to its stated maturity; or any Material Indebtedness of the
Borrower or any of its Subsidiaries shall be declared to be due
and payable or required to be prepaid or repurchased (other than
by a regularly scheduled payment) prior to the stated maturity
thereof; or the Borrower or any of its Subsidiaries shall not
pay, or admit in writing its inability to pay, its debts
generally as they become due.
7.6 The Borrower or any of its Subsidiaries shall (i) have
an order for relief entered with respect to it under the Federal
bankruptcy laws or the laws of any other jurisdiction relating to
bankruptcy, insolvency, reorganization or relief of debtors as
now or hereafter in effect, (ii) make an assignment for the
benefit of creditors, (iii) apply for, seek, consent to, or
acquiesce in, the appointment of a receiver, custodian, trustee,
examiner, liquidator or similar official for it or any
Substantial Portion of its Property, (iv) institute any
proceeding seeking an order for relief under the Federal
bankruptcy laws or the laws of any other jurisdiction relating to
bankruptcy, insolvency, reorganization or relief of debtors as
now or hereafter in effect or seeking to adjudicate it a bankrupt
or insolvent, or seeking dissolution, winding up, liquidation,
reorganization, arrangement, adjustment or composition of it or
its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors or fail to file an answer or
other pleading denying the material allegations of any such
proceeding filed against it, (v) take any corporate action to
authorize or effect any of the foregoing actions set forth in
this Section 7.6 or (vi) fail to contest in good faith any
appointment or proceeding described in Section 7.7.
7.7 Without the application, approval or consent of the
Borrower or any of its Subsidiaries, a receiver, trustee,
examiner, liquidator or similar official shall be appointed for
the Borrower or any of its Subsidiaries or any Substantial
Portion of its Property, or a proceeding described in Section
7.6(iv) shall be instituted against the Borrower or any of its
Subsidiaries and such appointment continues undischarged or such
proceeding continues undismissed or unstayed for a period of 60
consecutive days.
7.8 Any court, government or governmental agency shall
condemn, seize or otherwise appropriate, or take custody or
control of (each a "Condemnation"), all or any portion of the
Property of the Borrower and its Subsidiaries which, when taken
together with all other Property of the Borrower and its
Subsidiaries so condemned, seized, appropriated, or taken custody
or control of, during the twelve-month period ending with the
month in which any such Condemnation occurs, constitutes a
Substantial Portion.
7.9 The Borrower or any of its Subsidiaries shall fail
within 60 days to pay, bond or otherwise discharge any judgment
or order for the payment of money in excess of, singly or in the
aggregate, $500,000, which is not stayed on appeal or otherwise
being appropriately contested in good faith.
7.10 The Unfunded Liabilities of all Single Employer Plans
shall exceed in the aggregate $500,000 or any Reportable Event
shall occur in connection with any Plan.
7.11 The Borrower or any other member of the Controlled
Group shall have been notified by the sponsor of a Multiemployer
Plan that it has incurred withdrawal liability to such
Multiemployer Plan in an amount which, when aggregated with all
other amounts required to be paid to Multiemployer Plans by the
Borrower or any other member of the Controlled Group as
withdrawal liability (determined as of the date of such
notification), exceeds $500,000.
7.12 The Borrower or any other member of the Controlled
Group shall have been notified by the sponsor of a Multiemployer
Plan that such Multiemployer Plan is in reorganization or is
being terminated, within the meaning of Title IV of ERISA, if as
a result of such reorganization or termination the aggregate
annual contributions of the Borrower and the other members of the
Controlled Group (taken as a whole) to all Multiemployer Plans
which are then in reorganization or being terminated have been or
will be increased over the amounts contributed to such
Multiemployer Plans for the respective plan years of each such
Multiemployer Plan immediately preceding the plan year in which
the reorganization or termination occurs by an amount exceeding
$500,000.
7.13 The Borrower or any other member of the Controlled
Group shall terminate a Single Employer Plan resulting in
Unfunded Liabilities to the Borrower in excess of $500,000.
7.14 The Borrower or any other member of the Controlled
Group shall incur liability for a violation of ERISA or the Code
with respect to any Benefit Plan which exceeds $250,000.
7.15 The Borrower or any of its Subsidiaries shall be the
subject of any proceeding or investigation pertaining to the
release by the Borrower or any of its Subsidiaries, or any other
Person of any toxic or hazardous waste or substance into the
environment, or any violation of any federal, state or local
environmental, health or safety law or regulation, which, in
either case, could have a Material Adverse Effect.
7.16 Any Change in Control shall occur, except such Change
in Control consented to by the Agent and all Lenders.
7.17 Nonpayment by the Borrower or any of its Subsidiaries
of any Rate Hedging Obligation when due or the default or breach
by the Borrower or any of its Subsidiaries of any term, provision
or condition contained in any Rate Hedging Agreement, which
default or breach continues (without being waived) beyond any
period of grace therein provided.
7.18 The occurrence of any "default", as defined in any Loan
Document (other than this Agreement or the Notes) or the breach
of any of the terms or provisions of any Loan Document (other
than this Agreement), which default or breach continues beyond
any period of grace therein provided and has not been waived.
7.19 The occurrence of any "Default", as defined in the
Canadian Credit Agreement, the Canadian Guaranty or any other
Canadian Loan Document or the breach of any of the terms or
provisions of the Canadian Credit Agreement, the Canadian
Guaranty or any other Canadian Loan Document, which default or
breach continues beyond any period of grace therein provided and
has not been waived.
7.20 The occurrence and continuance of any default or Event
of Default as defined in the Debentures.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1 Acceleration. If any Default described in Section 7.6
or 7.7 occurs with respect to the Borrower, the obligations of
the Lenders to make Loans and to participate in Facility Letters
of Credit hereunder, and the obligation of the Issuer to issue
Facility Letters of Credit hereunder, shall automatically
terminate and the Obligations shall immediately become due and
payable without any election or action on the part of the Agent,
the Issuer or any Lender. If any other Default occurs, the
Required Lenders (or the Agent with the consent of the Required
Lenders) (i) may terminate or suspend the obligations of the
Lenders to make Loans and to purchase participation in Facility
Letters of Credit hereunder, (ii) may terminate or suspend the
obligations of the Issuer to issue Facility Letters of Credit
hereunder, and/or (iii) declare the Obligations to be due and
payable, whereupon the Obligations shall become immediately due
and payable, without presentment, demand, protest or notice of
any kind, all of which the Borrower hereby expressly waives.
If, within 15 days after (x) acceleration of the maturity of
the Obligations, (y) termination of the obligations of the Issuer
to issue Facility Letters of Credit hereunder or (z) termination
of the obligations of the Lenders to make Loans hereunder as a
result of any Default (other than any Default as described in
Section 7.6 or 7.7 with respect to the Borrower) and before any
judgment or decree for the payment of the Obligations due shall
have been obtained or entered, the Required Lenders (in their
sole discretion) shall so direct, the Agent shall, by notice to
the Borrower, rescind and annul such acceleration and/or
termination.
8.2 Amendments. Subject to the provisions of this Article
VIII, the Required Lenders (or the Agent with the consent in
writing of the Required Lenders) and the Borrower may enter into
agreements supplemental hereto or to any other Loan Document for
the purpose of adding or modifying any provisions to the Loan
Documents or changing in any manner the rights of the Lenders or
the Borrower hereunder or thereunder or waiving any Default
hereunder or thereunder; provided, however, that no such
supplemental agreement shall, without the consent of each of the
Lenders:
(i) Extend the maturity of any Loan, or extend
the expiry date of any Facility Letter of Credit beyond the
Facility Termination Date, or forgive all or any portion of
the principal amount of any Loan or Facility Letter of
Credit Obligation, or reduce the rate or extend the time of
payment of Reimbursement Obligations, interest or fees
hereunder, or release any collateral securing the
Obligations or any Subsidiary Guaranty;
(ii) Reduce the percentage specified in the
definition of Required Lenders;
(iii) Extend the Facility Termination Date or
increase the amount of the Commitment of any Lender
hereunder, or permit the Borrower to assign its rights under
this Agreement; or
(iv) Amend this Section 8.2 or the provisions of
any other section of this Agreement which designate a
certain number of Lenders required to consent to or compel
actions.
No amendment of any provision of this Agreement relating to the
Agent shall be effective without the written consent of the
Agent. The Agent may waive payment of the fee required under
Section 2.4.1(ii) or 12.3.2 without obtaining the consent of any
other party to this Agreement.
8.3 Preservation of Rights. No delay or omission of the
Lenders, the Issuer or the Agent to exercise any right under the
Loan Documents shall impair such right or be construed to be a
waiver of any Default or an acquiescence therein, and the making
of a Loan or issuance of a Facility Letter of Credit
notwithstanding the existence of a Default or the inability of
the Borrower to satisfy the conditions precedent to such Loan
shall not constitute any waiver or acquiescence. Any single or
partial exercise of any such right shall not preclude other or
further exercise thereof or the exercise of any other right, and
no waiver, amendment or other variation of the terms, conditions
or provisions of the Loan Documents whatsoever shall be valid
unless in writing signed by the Lenders required pursuant to
Section 8.2, and then only to the extent in such writing
specifically set forth. All remedies contained in the Loan
Documents or by law afforded shall be cumulative and all shall be
available to the Agent, the Issuer and the Lenders until the
Obligations have been paid in full.
ARTICLE IX
GENERAL PROVISIONS
9.1 Survival of Representations. All representations and
warranties of the Borrower contained in this Agreement shall
survive delivery of the Notes and the making of the Loans and the
issuance of the Facility Letters of Credit herein contemplated.
9.2 Governmental Regulation. Anything contained in this
Agreement to the contrary notwithstanding, no Lender shall be
obligated to extend credit to the Borrower or participate in
Facility Letters of Credit in violation of any limitation or
prohibition provided by any applicable statute or regulation.
9.3 Taxes. Any taxes (excluding federal income taxes on
the overall net income of any Lender) or other similar
assessments or charges made by any governmental or revenue
authority in respect of the Loan Documents shall be paid by the
Borrower, together with interest and penalties, if any.
9.4 Headings. Section headings in the Loan Documents are
for convenience of reference only, and shall not govern the
interpretation of any of the provisions of the Loan Documents.
9.5 Entire Agreement. The Loan Documents embody the entire
agreement and understanding among the Borrower, the Agent, the
Issuer, and the Lenders and supersede all prior agreements and
understandings among the Borrower, the Agent, the Issuer and the
Lenders relating to the subject matter thereof.
9.6 Several Obligations; Benefits of this Agreement. The
respective obligations of the Lenders hereunder are several and
not joint and no Lender shall be the partner or agent of any
other (except to the extent to which the Agent is authorized to
act as such). The failure of any Lender to perform any of its
obligations hereunder shall not relieve any other Lender from any
of its obligations hereunder. This Agreement shall not be
construed so as to confer any right or benefit upon any Person
other than the parties to this Agreement and their respective
successors and assigns.
9.7 Expenses; Indemnification. The Borrower shall
reimburse the Agent for any costs, internal charges and
out-of-pocket expenses (including reasonable attorneys' fees and
time charges of attorneys for the Agent, which attorneys may be
employees of the Agent) paid or incurred by the Agent in
connection with the preparation, negotiation, execution,
delivery, review, amendment, modification, and administration of
the Loan Documents. The Borrower also agrees to reimburse the
Agent, the Issuer and the Lenders for any costs, internal charges
and out-of-pocket expenses (including reasonable attorneys' fees
and time charges of attorneys for the Agent and the Lenders which
attorneys may be employees of the Agent or the Lenders) paid or
incurred by the Agent, the Issuer or any Lender in connection
with the collection and enforcement of the Loan Documents. The
Borrower further agrees to indemnify the Agent, the Issuer, and
each Lender and their respective directors, officers and
employees against all losses, claims, damages, penalties,
judgments, liabilities and expenses (including, without
limitation, all expenses of litigation or preparation therefor
whether or not the Agent, the Issuer or any Lender is a party
thereto) which any of them may pay or incur arising out of or
relating to this Agreement, the other Loan Documents, the
transactions contemplated hereby or thereby or the direct or
indirect application or proposed application of the proceeds of
any Loan or the direct or indirect use or intended use of any
Facility Letter of Credit hereunder except to the extent that
they have resulted from the gross negligence or willful
misconduct of the party seeking indemnification. The obligations
of the Borrower under this Section shall survive the termination
of this Agreement.
9.8 Numbers of Documents. All originally executed
statements, notices, closing documents (other than the Notes),
and requests hereunder shall be furnished to the Agent with
sufficient counterparts so that the Agent may furnish one to each
of the Lenders.
9.9 Accounting. Except as provided to the contrary herein,
all accounting terms used herein shall be interpreted and all
accounting determinations hereunder shall be made in accordance
with GAAP, except that any calculation or determination which is
to be made on a consolidated basis shall be made for the Borrower
and all its Subsidiaries, including those Subsidiaries, if any,
which are unconsolidated on the Borrower's audited financial
statements.
9.10 Severability of Provisions. Any provision in any Loan
Document that is held to be inoperative, unenforceable, or
invalid in any jurisdiction shall, as to that jurisdiction, be
inoperative, unenforceable, or invalid without affecting the
remaining provisions in that jurisdiction or the operation,
enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan
Documents are declared to be severable.
9.11 Nonliability of Lenders. The relationship between the
Borrower and the Lenders shall be solely that of borrower and
lender. Neither the Agent nor any Lender shall have any
fiduciary responsibilities to the Borrower. Neither the Agent
nor any Lender undertakes any responsibility to the Borrower to
review or inform the Borrower of any matter in connection with
any phase of the Borrower's business or operations. The Borrower
agrees that none of the Agent, the Issuer or any Lender shall
have liability to the Borrower (whether sounding in tort,
contract or otherwise) for losses suffered by the Borrower in
connection with, arising out of, or in any way related to, the
transactions contemplated and the relationship established by the
Loan Documents, or any act, omission or event occurring in
connection therewith, unless it is determined by a court of
competent jurisdiction in a final and non-appealable order that
such losses resulted from the gross negligence or willful
misconduct of the party from which recovery is sought.
9.12 Confidentiality. Each Lender agrees to hold any
confidential information which it may receive from the Borrower
pursuant to this Agreement in confidence, except for disclosure
(i) to its Affiliates and to other Lenders and their respective
Affiliates, (ii) to legal counsel, accountants, and other
professional advisors to that Lender or to a Transferee or
prospective Transferee, (iii) to regulatory officials, (iv) to
any Person as requested pursuant to or as required by law,
regulation, or legal process, (v) to any Person in connection
with any legal proceeding to which that Lender is a party, and
(vi) permitted by Section 12.4.
9.13 Nonreliance. Each Lender hereby represents that it is
not relying on or looking to any margin stock (as defined in
Regulation U of the Board of Governors of the Federal Reserve
System) for the repayment of the Loans provided for herein.
ARTICLE X
THE AGENT
10.1 Appointment; Nature of Relationship. American National
Bank and Trust Company of Chicago is hereby appointed by the
Lenders as the Agent hereunder and under each other Loan
Document, and each of the Lenders irrevocably authorizes the
Agent to act as the contractual representative of such Lender
with the rights and duties expressly set forth herein and in the
other Loan Documents. The Agent agrees to act as such
contractual representative upon the express conditions contained
in this Article X. Notwithstanding the use of the defined term
"Agent," it is expressly understood and agreed that the Agent
shall not have any fiduciary responsibilities to any Lender by
reason of this Agreement or any other Loan Document and that the
Agent is merely acting as the representative of the Lenders with
only those duties as are expressly set forth in this Agreement
and the other Loan Documents. In its capacity as the Lenders'
contractual representative, the Agent (i) does not hereby assume
any fiduciary duties to any of the Lenders, (ii) is a
"representative" of the Lenders within the meaning of Section 9-105 of
the Uniform Commercial Code and (iii) is acting as an
independent contractor, the rights and duties of which are
limited to those expressly set forth in this Agreement and the
other Loan Documents. Each of the Lenders hereby agrees to
assert no claim against the Agent for breach of fiduciary duty,
all of which claims each Lender hereby waives.
10.2 Powers. The Agent shall have and may exercise such
powers under the Loan Documents as are specifically delegated to
the Agent by the terms of each thereof, together with such powers
as are reasonably incidental thereto. The Agent shall have no
implied duties to the Lenders, or any obligation to the Lenders
to take any action thereunder except any action specifically
provided by the Loan Documents to be taken by the Agent.
10.3 General Immunity. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable to the
Borrower, the Lenders or any Lender for any action taken or
omitted to be taken by it or them hereunder or under any other
Loan Document or in connection herewith or therewith except to
the extent such action or inaction is determined in a final non-appealable
judgment by a court of competent jurisdiction to have
arisen from the gross negligence or willful misconduct of such
Person.
10.4 No Responsibility for Loans, Recitals, etc. Neither
the Agent nor any of its directors, officers, agents or employees
shall be responsible for or have any duty to ascertain, inquire
into, or verify: (i) any statement, warranty or representation
made in connection with any Loan Document or any borrowing or
issuance of a Facility Letter of Credit hereunder; (ii) the
performance or observance of any of the covenants or agreements
of any obligor under any Loan Document, including, without
limitation, any agreement by an obligor to furnish information
directly to each Lender; (iii) the satisfaction of any condition
specified in Article IV, except receipt of items required to be
delivered to the Agent; (iv) the validity, enforceability,
effectiveness, sufficiency or genuineness of any Loan Document or
any other instrument or writing furnished in connection
therewith; or (v) the value, sufficiency, creation, perfection or
priority of any interest in any collateral security. The Agent
shall have no duty to disclose to the Lenders information that is
not required to be furnished by the Borrower to the Agent at such
time, but is voluntarily furnished by the Borrower to the Agent
(either in its capacity as Agent or in its individual capacity).
10.5 Action on Instructions of Lenders. The Agent shall in
all cases be fully protected in acting, or in refraining from
acting, hereunder and under any other Loan Document in accordance
with written instructions signed by such of the Lenders as is
required under the terms of this Agreement, and such instructions
and any action taken or failure to act pursuant thereto shall be
binding on all of the Lenders and on all holders of Notes. The
Lenders hereby acknowledge that the Agent shall be under no duty
to take any discretionary action permitted to be taken by it
pursuant to the provisions of this Agreement or any other Loan
Document unless it shall be requested in writing to do so by the
Required Lenders. The Agent shall be fully justified in failing
or refusing to take any action hereunder and under any other Loan
Document unless it shall first be indemnified to its satisfaction
by the Lenders pro rata against any and all liability, cost and
expense that it may incur by reason of taking or continuing to
take any such action.
10.6 Employment of Agents and Counsel. The Agent may
execute any of its duties as Agent hereunder and under any other
Loan Document by or through employees, agents, and
attorneys-in-fact and shall not be answerable to the Lenders,
except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care. The Agent
shall be entitled to advice of counsel concerning all matters
pertaining to the agency hereby created and its duties hereunder
and under any other Loan Document.
10.7 Reliance on Documents; Counsel. The Agent shall be
entitled to rely upon any Note, notice, consent, certificate,
affidavit, letter, telegram, statement, paper or document
believed by it to be genuine and correct and to have been signed
or sent by the proper person or persons, and, in respect to legal
matters, upon the opinion of counsel selected by the Agent, which
counsel may be employees of the Agent.
10.8 Agent's Reimbursement and Indemnification. The Lenders
agree to reimburse and indemnify the Agent ratably in proportion
to their respective Commitments (or, if subsequent to the
Facility Termination Date, in proportion to their Commitments
immediately prior to such date), without relieving the Borrower
of any of its Obligations hereunder, (i) for any amounts not
reimbursed by the Borrower for which the Agent is entitled to
reimbursement by the Borrower under the Loan Documents, (ii) for
any other expenses incurred by the Agent on behalf of the
Lenders, in connection with the preparation, execution, delivery,
administration and enforcement of the Loan Documents and (iii)
for any liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of
any kind and nature whatsoever which may be imposed on, incurred
by or asserted against the Agent in any way relating to or
arising out of the Loan Documents or any other document delivered
in connection therewith or the transactions contemplated thereby,
or the enforcement of any of the terms thereof or of any such
other documents, provided that no Lender shall be liable for any
of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the Agent. The obligations of
the Lenders under this Section 10.8 shall survive payment of the
Obligations and termination of this Agreement.
10.9 Notice of Default. The Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or
Unmatured Default hereunder unless the Agent has received written
notice from a Lender or the Borrower referring to this Agreement
describing such Default or Unmatured Default 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.
10.10 Rights as a Lender. In the event the Agent is a
Lender, the Agent shall have the same rights and powers hereunder
and under any other Loan Document as any Lender and may exercise
the same as though it were not the Agent, and the term "Lender"
or "Lenders" shall, at any time when the Agent is a Lender,
unless the context otherwise indicates, include the Agent in its
individual capacity. The Agent may accept deposits from, lend
money to, and generally engage in any kind of trust, debt, equity
or other transaction, in addition to those contemplated by this
Agreement or any other Loan Document, with the Borrower or any of
its Subsidiaries in which the Borrower or such Subsidiary is not
restricted hereby from engaging with any other Person.
10.11 Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance upon the Agent or
any other Lender and based on the financial statements prepared
by the Borrower and such other documents and information as it
has deemed appropriate, made its own credit analysis and decision
to enter into this Agreement and the other Loan Documents. Each
Lender also acknowledges that it will, independently and without
reliance upon the Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not
taking action under this Agreement and the other Loan Documents.
10.12 Successor Agent. The Agent may resign at any time
by giving written notice thereof to the Lenders and the Borrower,
such resignation to be effective upon the appointment of a
successor Agent or, if no successor Agent has been appointed,
forty-five days after the retiring Agent gives notice of its
intention to resign. The Agent may be removed at any time with
or without cause by written notice received by the Agent from the
Required Lenders, such removal to be effective on the date
specified by the Required Lenders. Upon any such resignation or
removal, the Required Lenders shall have the right to appoint,
with the consent of the Borrower, which consent shall not be
unreasonably withheld or delayed, on behalf of the Borrower and
the Lenders, a successor Agent; provided, however, that if a
Default or Unmatured Default shall have occurred and be
continuing at the time of such resignation or removal, the
consent of the Borrower shall not be so required. If no
successor Agent shall have been so appointed by the Required
Lenders, and, to the extent required pursuant to the immediately
preceding sentence, consented to by the Borrower, and shall have
accepted such appointment, within thirty days after
the resigning Agent's giving notice of its intention to resign,
then the resigning Agent may appoint, on behalf of the Borrower
and the Lenders, a successor Agent. If the Agent has resigned or
been removed and no successor Agent has been appointed, the
Lenders may perform all the duties of the Agent hereunder and the
Borrower shall make all payments in respect of the Obligations to
the applicable Lender and for all other purposes shall deal
directly with the Lenders. No successor Agent shall be deemed to
be appointed hereunder until such successor Agent has accepted
the appointment. Any such successor Agent shall be a commercial
bank having capital and retained earnings of at least
$50,000,000. Upon the acceptance of any appointment as Agent
hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the resigning or removed Agent.
Upon the effectiveness of the resignation or removal of the Agent
the resigning or removed Agent shall be discharged from its
duties and obligations hereunder and under the Loan Documents.
After the effectiveness of the resignation or removal of an
Agent, the provisions of this Article X shall continue in effect
for the benefit of such Agent in respect of any actions taken or
omitted to be taken by it while it was acting as the Agent
hereunder and under the other Loan Documents. In the event that
there is a successor to the Agent by merger, or the Agent assigns
its duties and obligations to an Affiliate pursuant to this
Section 10.12, then the term "Corporate Base Rate" as used in
this Agreement shall mean the prime rate, base rate or other
analogous rate of the new Agent.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1 Setoff. In addition to, and without limitation of, any
rights of the Lenders under applicable law, if the Borrower
becomes insolvent, however evidenced or any Default occurs, any
and all deposits (including all account balances, whether
provisional or final and whether or not collected or available)
and any other Indebtedness at any time held or owing by any
Lender to or for the credit or account of the Borrower may be
offset and applied toward the payment of the Obligations owing to
such Lender, whether or not the Obligations, or any part hereof,
shall then be due.
11.2 Ratable Payments. If any Lender, whether by setoff or
otherwise, has payment made to it upon the Obligations owing to
it (other than payments received pursuant to Section 3.1, 3.2,
3.4 or 3.5) in a greater proportion than that received by any
other Lender, such Lender agrees, promptly upon demand, to
purchase a portion of the Obligations held by the other Lenders
so that after such purchase each Lender will hold its Pro Rata
Share of the Obligations. If any Lender, whether in connection
with setoff or amounts which might be subject to setoff or
otherwise, receives collateral or other protection for its
Obligations or such amounts which may be subject to setoff, such
Lender agrees, promptly upon demand, to take such action
necessary such that all Lenders share in the benefits of such
collateral ratably in proportion to their outstanding
Obligations. In case any such payment is disturbed by legal
process, or otherwise, appropriate further adjustments shall be
made.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATION
12.1 Successors and Assigns. The terms and provisions of
the Loan Documents shall be binding upon and inure to the benefit
of the Borrower, the Agent, and the Lenders and their respective
successors and assigns, except that (i) the Borrower shall not
have the right to assign their respective rights or obligations
under the Loan Documents and (ii) any assignment by any Lender
must be made in compliance with Section 12.3. Notwithstanding
clause (ii) of this Section, any Lender may at any time, without
the consent of the Borrower or the Agent, assign all or any
portion of its rights under this Agreement and its Notes to a
Federal Reserve Bank; provided, however, that no such assignment
to a Federal Reserve Bank shall release the transferor Lender
from its obligations hereunder. The Agent may treat the payee of
any Note as the owner thereof for all purposes hereof unless and
until such payee complies with Section 12.3 in the case of an
assignment thereof or, in the case of any other transfer, a
written notice of the transfer is filed with the Agent. Any
assignee or transferee of a Note agrees by acceptance thereof to
be bound by all the terms and provisions of the Loan Documents.
Any request, authority or consent of any Person, who at the time
of making such request or giving such authority or consent is the
holder of any Note, shall be conclusive and binding on any
subsequent holder, transferee or assignee of such Note or of any
Note or Notes issued in exchange therefor.
12.2 Participation.
12.2.1 Permitted Participants; Effect. Any Lender
may subject to the provisions of this Section 12.2.1, in the
ordinary course of its business and in accordance with
applicable law, at any time sell to one or more banks or
other entities ("Participants") participating interests in
any Loan owing to such Lender, any Note held by such Lender,
any Facility Letter of Credit participated in by such
Lender, any Commitment of such Lender or any other interest
of such Lender under the Loan Documents, provided that such
Participants are consented to in advance by the Borrower,
such consent not to be unreasonably withheld or delayed. In
the event of any such sale by a Lender of participating
interests to a Participant, such Participant shall have no
direct rights hereunder, such Lender's obligations under the
Loan Documents shall remain unchanged, such Lender shall
remain solely responsible to the other parties hereto for
the performance of such obligations, such Lender shall
remain the holder of any such Note for all purposes under
the Loan Documents, all amounts payable by the Borrower
under this Agreement shall be determined as if such Lender
had not sold such participating interests, and the Borrower
and the Agent shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and
obligations under the Loan Documents.
12.2.2 Voting Rights. Each Lender shall retain the
sole right to approve, without the consent of any
Participant, any amendment, modification or waiver of any
provision of the Loan Documents other than any amendment,
modification or waiver with respect to any Loan, Facility
Letter of Credit or Commitment in which such Participant has
an interest which forgives principal, interest or fees or
reduces the interest rate or fees payable with respect to
any such Loan, Facility Letter of Credit or Commitment,
postpones any date fixed for any regularly-scheduled payment
of principal of, or interest or fees on, any such Loan,
Facility Letter of Credit or Commitment, releases any
guarantor of any such Loan or releases any substantial
portion of collateral, if any, securing any such Loan or
Facility Letter of Credit.
12.2.3 Benefit of Setoff. The Borrower agrees that
each Participant shall be deemed to have the right of setoff
provided in Section 11.1 in respect of its participating
interest in amounts owing under the Loan Documents to the
same extent as if the amount of its participating interest
were owing directly to it as a Lender under the Loan
Documents, provided that each Lender shall retain the right
of setoff provided in Section 11.1 with respect to the
amount of participating interests sold to each Participant.
The Lenders agree to share with each Participant, and each
Participant, by exercising the right of setoff provided in
Section 11.1, agrees to share with each Lender, any amount
received pursuant to the exercise of its right of setoff,
such amounts to be shared in accordance with Section 11.2 as
if each Participant were a Lender.
12.3 Assignments.
12.3.1 Permitted Assignments. Any Lender may, in
the ordinary course of its business and in accordance with
applicable law, at any time assign to one or more banks or
other entities other than the Borrower or any of its
Affiliates ("Purchasers") all or any part of its rights and
obligations under the Loan Documents. Such assignment shall
be substantially in the form of Exhibit G hereto or in such
other form as may be agreed to by the parties thereto. The
consent of the Borrower, and the Agent shall be required
prior to an assignment becoming effective with respect to a
Purchaser which is not a Lender or an Affiliate thereof;
provided, however, that if a Default has occurred and is
continuing, the consent of the Borrower shall not be
required. Such consents shall not be unreasonably withheld
or delayed. Each such assignment shall be in an amount not
less than the lesser of (i) $5 million, and (ii) the
remaining amount of the assigning Lender's Commitment
(calculated as at the date of such assignment).
12.3.2 Effect; Effective Date. Upon (i) delivery to
the Agent of a notice of assignment, substantially in the
form attached to Exhibit G hereto (a "Notice of
Assignment"), together with any consents required by Section
12.3.1, duly executed by the Purchaser, and (ii) payment by
one or more of the parties to such assignment (other than
the Borrower) of a $3,000 fee to the Agent for processing
such assignment, such assignment shall become effective on
the effective date specified in such Notice of Assignment.
The Notice of Assignment shall contain a representation by
the Purchaser to the effect that none of the consideration
used to make the purchase of the Commitment and Loans under
the applicable assignment agreement are "plan assets" as
defined under ERISA and that the rights and interests of the
Purchaser in and under the Loan Documents will not be "plan
assets" under ERISA. On and after the effective date of
such assignment, such Purchaser shall for all purposes be a
Lender party to this Agreement and any other Loan Document
executed by the Lenders and shall have all the rights and
obligations of a Lender under the Loan Documents, to the
same extent as if it were an original party hereto, and no
further consent or action by the Borrower, the Lenders or
the Agent shall be required to release the transferor Lender
with respect to the percentage of the Aggregate Commitment,
Loans and interests in Facility Letters of Credit assigned
to such Purchaser. Upon the consummation of any assignment
to a Purchaser pursuant to this Section 12.3.2, the
transferor Lender, the Agent and the Borrower shall make
appropriate arrangements so that (i) replacement Notes are
issued to such transferor Lender and new Notes or, as
appropriate, replacement Notes, are issued to such
Purchaser, in each case in principal amounts reflecting
their Commitment, as adjusted pursuant to such assignment
and (ii) Schedule 1 hereto is amended to reflect such
assignment.
12.4 Dissemination of Information. The Borrower authorizes
each Lender to disclose to any Participant or Purchaser or any
other Person acquiring an interest in the Loan Documents by
operation of law (each a "Transferee") and any prospective
Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Borrower and its
Subsidiaries; provided that each Transferee and prospective
Transferee agrees to be bound by Section 9.12 of this Agreement.
12.5 Tax Treatment. If any interest in any Loan Document is
transferred to any Transferee which is organized under the laws
of any jurisdiction other than the United States or any State
thereof, the transferor Lender shall cause such Transferee,
concurrently with the effectiveness of such transfer, to comply
with the provisions of Section 2.4.12.
ARTICLE XIII
NOTICES
13.1 Notices. Except as otherwise permitted by Section
2.4.7 with respect to borrowing notices, all notices, requests
and other communications to any party hereunder shall be in
writing (including bank wire, telex, facsimile transmission or
similar writing) and shall be given to such party: (x) in the
case of the Borrower, at its address, facsimile number or telex
number set forth on the signature pages hereof, (y) in the case
of the Agent or any Lender, at its address, facsimile number or
telex number set forth on Schedule 2 hereto or (z) in the case of
any party, such other address, facsimile number or telex number
as such party may hereafter specify for the purpose by notice to
the Agent and the Borrower. Each such notice, request or other
communication shall be effective (i) if given by telex, when such
telex is transmitted to the telex number specified in this
Section and the appropriate answerback is received, (ii) if given
by facsimile transmission, when transmitted to the facsimile
number specified in this Section and confirmation of receipt is
received, (iii) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage
prepaid, addressed as aforesaid or (iv) if given by any other
means, when delivered at the address specified in this Section;
provided that notices to the Agent under Article II shall not be
effective until received.
13.2 Change of Address. The Borrower, the Agent and any
Lender may each change the address for service of notice upon it
by a notice in writing to the other parties hereto.
ARTICLE XIV
COUNTERPARTS
This Agreement may be executed in any number of counterparts
and by the different parties hereto on separate counterparts,
each of which when so executed and delivered shall be an
original, but all of which shall together constitute one and the
same instrument. This Agreement shall be effective when it has
been executed by the Borrower, the Agent and the Lenders and each
party has notified the Agent by telex or telephone, that it has
taken such action. A complete set of counterparts executed by
all the parties hereto shall be lodged with each of the Borrower
and the Agent.
ARTICLE XV
CHOICE OF LAW, CONSENT TO JURISDICTION, WAIVER OF JURY TRIAL
15.1 Choice of Law. THE LOAN DOCUMENTS (OTHER THAN THOSE
CONTAINING A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW
OF CONFLICTS) OF THE STATE OF ILLINOIS, BUT GIVING EFFECT TO
FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
15.2 Consent to Jurisdiction. THE PARTIES HERETO HEREBY
IRREVOCABLY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF ANY
UNITED STATES FEDERAL OR ILLINOIS STATE COURT SITTING IN CHICAGO
IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY
LOAN DOCUMENTS AND THE PARTIES HERETO HEREBY IRREVOCABLY AGREE
THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE
HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVE ANY
OBJECTION ANY OF THEM MAY NOW OR HEREAFTER HAVE AS TO THE VENUE
OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR
THAT SUCH COURT IS AN INCONVENIENT FORUM. ANY JUDICIAL
PROCEEDING BY THE BORROWER AGAINST THE AGENT, THE ISSUER OR ANY
LENDER OR ANY AFFILIATE OF THE AGENT, THE ISSUER OR ANY LENDER
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING
OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE
BROUGHT ONLY IN A COURT IN CHICAGO, ILLINOIS.
15.3 Waiver of Jury Trial. THE PARTIES HERETO HEREBY WAIVE
TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR
OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED
WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED
THEREUNDER.
IN WITNESS WHEREOF, the Borrower, the Lenders, the Issuer
and the Agent have executed this Agreement as of the date first
above written.
XXXXXXXXXX ELECTRONICS, LTD.
By:
Print Name:
Title:
Address:
Attention:
Telephone No.:
Telecopier No.:
AMERICAN NATIONAL BANK AND TRUST
COMPANY OF CHICAGO, Individually
and as Agent and as Issuer
By:
Print Name:
Title:
XXXXXX TRUST AND SAVINGS BANK
By:
Print Name:
Title:
MELLON BANK
By:
Print Name:
Title:
PROMISSORY NOTE
Amount
Date
Xxxxxxxxxx Electronics, Ltd., a Delaware corporation (the
"Borrower"), promises to pay to the order of
(the "Lender") the lesser of the principal sum of
Dollars
($__________) or the aggregate unpaid principal amount of all
Loans made by the Lender to the Borrower pursuant to Section 2.2
of the Loan Agreement (as hereinafter defined), in
immediately available funds at the main office of American
National Bank and Trust Company of Chicago, as Agent, in Chicago,
Illinois, together with interest on the unpaid principal
amount hereof at the rates and on the dates set forth in the Loan
Agreement. The Borrower shall pay the principal of and accrued
and unpaid interest on the Loans in full on the Facility
Termination Date in respect of such Lender (or on such earlier
date as may be required in accordance with the terms of the Loan
Agreement).
The Lender shall, and is hereby authorized to, record on the
schedule attached hereto, or to otherwise record in accordance
with its usual practice, the date and amount of each Loan
and the date and amount of each principal payment hereunder.
This Note is one of the Notes issued pursuant to, and is
entitled to the benefits of, the Loan Agreement dated as of March
1, 1998 (which, as it may be amended or modified and in
effect from time to time, is herein called the "Loan Agreement")
among the Borrower, the lenders party thereto, including the
Lender, and American National Bank and Trust Company
of Chicago, as Agent, to which Loan Agreement reference is hereby
made for a statement of the terms and conditions governing this
Note, including the terms and conditions under which
this Note may be prepaid or its maturity date accelerated.
Capitalized terms used herein and not otherwise defined herein
shall have the meanings attributed to such terms in the Loan
Agreement.
Xxxxxxxxxx Electronics, Ltd.
By:__________________________________
Print
Name:___________________________
Title:________________________________
