BII\65377_6 11/04/96 14:12pm
EXECUTION COPY
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Exhibit 99.2
UNITED STATIONERS SUPPLY CO.
and
UNITED STATIONERS INC.
______________________________
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of October 31, 1996
(amending and restating the Credit Agreement
dated as of March 30, 1995)
______________________________
$540,000,000
THE CHASE MANHATTAN BANK,
as Agent
CHASE SECURITIES INC.,
as Arranger
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TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to
which it is attached but is inserted for convenience of reference
only.
Page
Section 1. Definitions and Accounting Matters 2
1.01 Certain Defined Terms 2
1.02 Accounting Terms and Determinations 37
1.03 Classes and Types of Loans 38
Section 2. Commitments, Loans and Prepayments 38
2.01 Loans 38
2.02 Borrowings 40
2.03 Letters of Credit 43
2.04 Changes of Commitments 49
2.05 Commitment Fee 50
2.06 Lending Offices 51
2.07 Several Obligations; Remedies Independent 51
2.08 Evidence of Debt; Registered Loans 51
2.09 Optional Prepayments and Conversions or Continuations of Loans 53
2.10 Mandatory Prepayments and Reductions of Commitments 53
Section 3. Payments of Principal and Interest 57
3.01 Repayment of Loans 57
3.02 Interest 58
Section 4. Payments; Pro Rata Treatment; Computations; Etc. 59
4.01 Payments 59
4.02 Pro Rata Treatment 60
4.03 Computations 61
4.04 Minimum Amounts 61
4.05 Certain Notices 62
4.06 Non-Receipt of Funds by the Agent 63
4.07 Sharing of Payments, Etc. 64
Section 5. Yield Protection, Etc. 66
5.01 Additional Costs 66
5.02 Limitation on Types of Loans 69
5.03 Illegality 69
5.04 Treatment of Affected Loans 70
5.05 Compensation 71
5.06 Additional Costs in Respect of Letters of
Credit 71
5.07 U.S. Taxes 72
Section 6. Guarantee 76
6.01 The Guarantee 76
6.02 Obligations Unconditional 76
6.03 Reinstatement 77
6.04 Subrogation 78
6.05 Remedies 78
6.06 Continuing Guarantee 78
Section 7. Conditions Precedent 78
7.01 Effectiveness 78
7.02 Initial and Subsequent Extensions of Credit 83
Section 8. Representations and Warranties 84
8.01 Corporate Existence 84
8.02 Financial Condition 84
8.03 Litigation 85
8.04 No Breach 85
8.05 Action 86
8.06 Approvals 86
8.07 Use of Credit 87
8.08 ERISA 87
8.09 Taxes 87
8.10 Investment Company Act 88
8.11 Public Utility Holding Company Act 88
8.12 Material Agreements and Liens 88
8.13 Environmental Matters 89
8.14 Capitalization 91
8.15 Subsidiaries, Etc. 92
8.16 Title to Assets 92
8.17 True and Complete Disclosure 92
8.18 Real Property 93
8.19 Security Documents 93
Section 9. Covenants of the Obligors 93
9.01 Financial Statements, Etc 94
9.02 Litigation 99
9.03 Existence, Etc. 99
9.04 Insurance 100
9.05 Prohibition of Fundamental Changes 102
9.06 Limitation on Liens 103
9.07 Indebtedness 106
9.08 Investments 107
9.09 Dividend Payments 108
9.10 Net Worth 111
9.11 Debt to Cash Flow Ratio 111
9.12 Fixed Charges Ratio 112
9.13 Interest Coverage Ratio 112
9.14 Capital Expenditures 113
9.15 Interest Rate Protection Agreements 113
9.16 Subordinated Indebtedness 114
9.17 Lines of Business 114
9.18 Transactions with Affiliates 114
9.19 Use of Proceeds 115
9.20 Modifications of Certain Documents 115
9.21 Ownership of the Company 116
9.22 Management Fees, Etc 116
9.23 Taxes; Tax Sharing Agreement 116
9.24 Subsidiary Guarantors; Additional Mortgaged Property 117
9.25 Termination of ERISA Plans. 118
Section 10. Events of Default 118
Section 11. The Agent 123
11.01 Appointment, Powers and Immunities 123
11.02 Reliance by Agent 124
11.03 Defaults 125
11.04 Rights as a Lender 125
11.05 Indemnification 126
11.06 Non-Reliance on Agent and Other Lenders 126
11.07 Failure to Act 127
11.08 Resignation or Removal of Agent 127
11.09 Consents under Other Basic Documents 128
11.10 Collateral Sub-Agents 128
Section 12. Miscellaneous 128
12.01 Waiver 128
12.02 Notices 128
12.03 Expenses, Etc. 129
12.04 Amendments, Etc. 131
12.05 Successors and Assigns 132
12.06 Assignments and Participations 132
12.07 Survival 136
12.08 Captions 136
12.09 Counterparts 136
12.10 Governing Law; Submission to Jurisdiction 136
12.11 Waiver of Jury Trial 137
12.12 Treatment of Certain Information; Confidentiality 137
12.13 Certain Tax Information 138
12.14 Consent to Receivables Financing. 138
SCHEDULE I - Indebtedness and Liens
SCHEDULE II - Environmental Matters
SCHEDULE III - Subsidiaries and Investments
SCHEDULE IV - Real Property
SCHEDULE V - Litigation
SCHEDULE VI - Capitalization
SCHEDULE VII - Target EBITDA
SCHEDULE VIII - Taxes
SCHEDULE IX - Terms of Receivables Financing
EXHIBIT A - Form of Borrowing Base Certificate
EXHIBIT B-1 - Form of Security Agreement
EXHIBIT B-2 - Form of Guarantee and Security Agreement
EXHIBIT C - Form of Pledge Agreement
EXHIBIT D - Form of Mortgage
EXHIBIT E-1 - Form of Opinion of General Counsel to the
Guarantor, to be delivered on the Effective Date
EXHIBIT E-2 - Form of Opinion of Louisiana Counsel to the
Obligors, to be delivered on the Effective Date
EXHIBIT F - Form of Opinion of Special New York Counsel to
the Agent to be delivered on the Effective Date
EXHIBIT G - Form of Confidentiality Agreement
EXHIBIT H - Form of Notice of Assignment
AMENDED AND RESTATED CREDIT AGREEMENT dated as of
October 31, 1996 (this "Agreement") among: UNITED STATIONERS
SUPPLY CO., a corporation duly organized and validly existing
under the laws of the State of Illinois (together with its
successors and assigns, the "Company"); UNITED STATIONERS INC., a
corporation duly organized and validly existing under the laws of
the State of Delaware (together with its successors and assigns,
the "Guarantor" and, together with the Company, the "Obligors");
each of the lenders that is a signatory hereto (together with its
successors and assigns in such capacity, a "Lender" and,
collectively with the Swingline Lender referred to below, the
"Lenders"); and THE CHASE MANHATTAN BANK, a New York state-
chartered banking corporation, as Swingline Lender hereunder (in
such capacity, together with its successors and assigns in such
capacity, the "Swingline Lender") and as agent for the Lenders
(in such capacity, together with its successors in such capacity,
the "Agent").
WHEREAS, the Company, the Guarantor, the Agent, and
certain of the Lenders are parties to a Credit Agreement dated as
of March 30, 1995 (as heretofore amended and supplemented and in
effect on the date hereof, the "Existing Credit Agreement") among
the Company (as successor by merger to Associated Stationers,
Inc.), the Guarantor (as successor by merger to Associated
Holdings, Inc. ("Associated Holdings")), The Chase Manhattan
Bank, as Agent for the lenders named therein, and certain of the
Lenders, providing, subject to the terms and conditions thereof
for extensions of credit (by the making of loans and issuing
letters of credit) to the Company in an aggregate principal
amount not exceeding $525,000,000;
WHEREAS, the Company has entered into an agreement
dated October 1, 1996 (the "Purchase Agreement") pursuant to
which the Company has agreed to acquire for cash 100% of the
issued and outstanding shares of capital stock of Xxxxxxx Bros.,
Inc., a Louisiana corporation whose headquarters are in New
Orleans, Louisiana ("Xxxxxxx") for a purchase price not exceeding
$54,000,000 (the "Xxxxxxx Acquisition");
WHEREAS, the Obligors have requested the Lenders to
amend and restate the Existing Credit Agreement such that the
aggregate amount of credit available to the Company thereunder
would be increased to $540,000,000 aggregate principal amount, a
portion of the proceeds of which will be used to finance the
Xxxxxxx Acquisition and to repay certain Indebtedness of Xxxxxxx;
and
WHEREAS, in order to enable the Company to consummate
the Xxxxxxx Acquisition and to finance certain amounts owing in
connection with the Xxxxxxx Acquisition, to repay certain
Indebtedness of Xxxxxxx and to provide on-going working capital
for the Company and its Subsidiaries, the Lenders and the
Obligors wish to amend and restate the Existing Credit Agreement
in its entirety, it being the intention of the parties hereto
that the loans and letters of credit outstanding under the
Existing Credit Agreement on the Effective Date (as hereinafter
defined) shall continue and remain outstanding and not be repaid
on the Effective Date (as so defined);
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Definitions and Accounting Matters.
1.01 Certain Defined Terms. As used herein, the
following terms shall have the following meanings (all terms
defined in this Section 1.01 or in other provisions of this
Agreement in the singular to have the same meanings when used in
the plural and vice versa):
"Accrued Warrant Liabilities" shall mean any
liabilities of the Guarantor under Section 7.02(c) of the Warrant
Agreement.
"ACS" shall mean Affiliated Computer Services, Inc.
"Acquisition" shall mean (a) the purchase by Associated
Holdings of 92.5% of the then outstanding shares of capital stock
of the Guarantor on March 30, 1995 pursuant to the Tender Offer
Documents (as defined in the Existing Credit Agreement) and
(b) the Mergers.
"Affiliate" shall mean, in respect of any Person (the
"Relevant Person"), any other Person that directly or indirectly
controls, or is under common control with, or is controlled by,
the Relevant Person and, if such other Person is an individual,
any member of the immediate family (including parents, spouse,
children and siblings) of such individual and any trust whose
principal beneficiary is such individual or one or more members
of such immediate family and any Person who is controlled by any
such member or trust. As used in this definition, "control"
(including, with its correlative meanings, "controlled by" and
"under common control with") shall mean possession, directly or
indirectly, of power to direct or cause the direction of
management or policies (whether through ownership of securities
or partnership or other ownership interests, by contract or other
wise), provided that, in any event, any Person that owns directly
or indirectly securities having 5% or more of the voting power
for the election of directors or other governing body of a cor
poration or 5% or more of the partnership or other ownership
interests of any other Person (other than as a limited partner of
such other Person) will be deemed to control such corporation or
other Person. Notwithstanding the foregoing, (a) no individual
shall be an Affiliate of any Relevant Person solely by reason of
his or her being a director, officer or employee of such Relevant
Person or any of its Subsidiaries, (b) none of the Subsidiaries
of the Guarantor shall be Affiliates of the Guarantor or of any
other Subsidiary of the Guarantor, (c) the Guarantor shall not be
an Affiliate of any of its Subsidiaries, (d) neither the Agent
nor any Lender shall be an Affiliate of the Guarantor or of any
Subsidiary of the Guarantor and (e) neither The Chase Manhattan
Corporation nor any of its Subsidiaries or Affiliates shall be an
Affiliate of the Guarantor or of any Subsidiary of the Guarantor.
"Applicable Lending Office" shall mean, for each Lender
and for each Type of Loan, the "Lending Office" of such Lender
(or of an affiliate of such Lender) designated for such Type of
Loan on the signature pages hereof or such other office of such
Lender (or of an affiliate of such Lender) as such Lender may
from time to time specify to the Agent and the Company as the
office by which its Loans of such Type are to be made and
maintained. The Swingline Loans shall be made and maintained at
the "Lending Office" of the Swingline Lender.
"Applicable Margin" shall mean, as of any date:
(a) for Tranche A Term Loans and Revolving Credit
Loans, 2.50% per annum for Eurodollar Loans and 1.25% per
annum for Base Rate Loans; provided that the Applicable
Margin for each Type of Tranche A Term Loan and Revolving
Credit Loan, for any period from and including the date on
which the Company shall have delivered a certificate
pursuant to clause (iii) of the last paragraph of Section
9.01 hereof demonstrating in reasonable detail (based upon
financial statements for the fiscal period of the Guarantor
most recently ended that have been delivered to the Lenders
pursuant to Section 9.01(b) or (c) hereof or, in connection
with the Xxxxxxx Acquisition, on the Effective Date) that
the Pricing Leverage Ratio, as of the end of the respective
quarterly fiscal period or fiscal year, is within one of the
ranges set forth below, to but excluding the date of
delivery of the next such certificate, shall equal the
percentage per annum set forth below for Tranche A Term
Loans and Revolving Credit Loans of such Type:
Base Rate Eurodollar
Ratio Loans Loans
Greater than 4.5 to 1 1.25% 2.50%
Less than or equal
to 4.5 to 1 but greater
than 4.0 to 1 1.00% 2.25%
Less than or equal
to 4.0 to 1 but greater
than 3.5 to 1 .75% 2.00%
Less than or equal
to 3.5 to 1 but greater
than 3.0 to 1 .50% 1.75%
Less than or equal
to 3.0 to 1 .25% 1.50%
(b) for Tranche B Term Loans, 3.00% per annum for
Eurodollar Loans and 1.75% per annum for Base Rate Loans;
provided that the Applicable Margin for each Type of
Tranche B Term Loan, for any period from and including the
date on which the Company shall have delivered a certificate
pursuant to clause (iii) of the last paragraph of Section
9.01 hereof demonstrating in reasonable detail (based upon
financial statements for the fiscal period of the Guarantor
most recently ended that have been delivered to the Lenders
pursuant to Section 9.01(b) or (c) hereof or, in connection
with the Xxxxxxx Acquisition, on the Effective Date) that
the Pricing Leverage Ratio, as of the end of the respective
quarterly fiscal period or fiscal year, is within one of the
ranges set forth below, to but excluding the date of
delivery of the next such certificate, shall equal the
percentage per annum set forth below for Tranche B Term
Loans of such Type:
Base Rate Eurodollar
Ratio Loans Loans
Greater than 4.5 to 1 1.75% 3.00%
Less than or equal
to 4.5 to 1 but greater
than 4.0 to 1 1.50% 2.75%
Less than or equal
to 4.0 to 1 1.25% 2.50%
provided that the "Applicable Margin", during any period
when an Event of Default or Default in delivery of the
certificate pursuant to clause (iii) of the last paragraph
of Section 9.01 hereof shall have occurred and be
continuing, shall be determined without reference to the
proviso to the foregoing clause (a) or (b).
"Bankruptcy Code" shall mean the Federal Bankruptcy
Code of 1978, as amended from time to time.
"Base Rate" shall mean, for any day, a rate per annum
equal to the higher of (a) the Federal Funds Rate for such day
plus 1/2 of 1% and (b) the Prime Rate for such day. Each change
in any interest rate provided for herein based upon the Base Rate
resulting from a change in the Base Rate shall take effect at the
time of such change in the Base Rate.
"Base Rate Loans" shall mean Loans (other than
Swingline Loans) that bear interest at rates based upon the Base
Rate.
"Basic Documents" shall mean, collectively, this
Agreement, the promissory notes (if any) delivered pursuant to
Section 2.08(d) hereof, the Letter of Credit Documents and the
Security Documents.
"BCOP" shall mean Boise Cascade Office Products
Corporation, a Delaware corporation.
"Boise" shall mean Boise Cascade Corporation, a
Delaware corporation.
"Borrowing Base" shall mean, as at any date, the sum of
(a) 80% of the aggregate amount of Eligible Receivables at said
date plus (b) 50% of Eligible Inventory at said date plus (c) the
aggregate amount of cover for Letter of Credit Liabilities held
by the Agent in the Collateral Account as contemplated in Section
2.10(h) hereof; provided that in no event shall the portion of
the Borrowing Base attributable to Eligible Inventory (i) at any
time from November 1 through February 28, exceed 65% of the
Borrowing Base and the Borrowing Base shall be reduced to the
extent such portion would otherwise exceed 65% and (ii) at any
other time, exceed 60% of the Borrowing Base and the Borrowing
Base shall be reduced to the extent such portion would otherwise
exceed 60%; and, provided, further, that the amount of the
Borrowing Base attributable to Eligible Inventory and Eligible
Receivables of Xxxxxxx shall not at any time exceed the aggregate
unpaid principal amount of Xxxxxxx Advances.
"Borrowing Base Certificate" shall mean a certificate
of a Responsible Officer of the Company, substantially in the
form of Exhibit A hereto and appropriately completed.
"Business Day" shall mean any day (a) on which
commercial banks are not authorized or required to close in New
York City and (b) if such day relates to a borrowing of, a
payment or prepayment of principal of or interest on, a
Conversion of or into, or an Interest Period for, a Eurodollar
Loan or a notice by the Company with respect to any such
borrowing, payment, prepayment, Conversion or Interest Period,
that is also a day on which dealings in Dollar deposits are
carried out in the London interbank market.
"Capital Expenditures" shall mean, without duplication,
for any period, expenditures (including, without limitation, the
aggregate amount of Capital Lease Obligations incurred during
such period) made by the Guarantor or any of its Subsidiaries to
acquire or construct fixed assets, plant and equipment (including
renewals, improvements and replacements, but excluding repairs)
during such period computed in accordance with GAAP.
"Capital Lease Obligations" shall mean, for any Person,
all obligations of such Person to pay rent or other amounts under
a lease of (or other agreement conveying the right to use)
Property to the extent such obligations are required to be
classified and accounted for as a capital lease on a balance
sheet of such Person under GAAP (including Statement of Financial
Accounting Standards No. 13 of the Financial Accounting Standards
Board); and, for purposes of this Agreement, the amount of such
obligations shall be the capitalized amount thereof, determined
in accordance with GAAP (including such Statement No. 13).
"Cash Flow" shall mean, for any period, for the
Guarantor and its Subsidiaries (determined on a consolidated
basis without duplication in accordance with GAAP), EBITDA for
such period minus Capital Expenditures made during such period,
(other than Capital Expenditures in excess of $15,000,000 unless
made pursuant to Section 9.14(c)(ii) hereof and provided that
Capital Lease Obligations shall be deducted only to the extent of
payments actually made during such period).
"Casualty Event" shall mean, with respect to any
Property of any Person, any loss of or damage to, or any
condemnation or other taking of, such Property for which such
Person or any of its Subsidiaries receives insurance proceeds, or
proceeds of a condemnation award or other compensation.
"Change of Control" shall mean (i) the Guarantor shall
cease to own and control, of record and beneficially, 100% of
each class of outstanding capital stock of the Company, (ii) the
Xxxxxxx Group (as defined below) shall cease to have the power,
directly or indirectly, to vote or direct the voting of
2,061,580.00 shares of the Common Stock of the Guarantor (such
number of shares to be increased or decreased, as appropriate, to
give effect to any stock dividends, split-up, revision or
reclassification after the Effective Date), (iii) any "person" or
"group" of "persons" (within the meaning of Section 13(d) of the
Exchange Act) shall have the power, directly or indirectly, to
vote or direct the voting of a greater number of securities than
the Xxxxxxx Group. The term "Xxxxxxx Group" shall mean Xxxxxxx
and, for so long as they are party to the Voting Trust Agreement,
dated as of January 31, 1992, as amended by the First Amendment
thereto dated as of March 30, 1995, among Xxxxxxx Partners, L.P.,
Xxxxxxx Partners II, L.P., Cumberland Capital Corporation, Good
Capital Co., Inc., ASI Partners, L.P., ASI Partners II, L.P. and
the other stockholders party thereto, and as amended by that
certain Joinder to Voting Trust Agreement, dated June 28, 1995
(pursuant to which ASI Partners III, L.P. became a member of the
Xxxxxxx Group) and such Voting Trust Agreement is in full force
and effect, Cumberland Capital Corporation, Good Capital Co.,
Inc., ASI Partners, L.P. and ASI Partners II, L.P.
"Chase" shall mean The Chase Manhattan Bank.
"Class" shall have the meaning assigned to such term in
Section 1.03 hereof.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"Collateral Account" shall have the meaning assigned to
such term in Section 4.01 of the Security Agreement.
"Collateral Auditing Agent" shall have the meaning
assigned to such term in Section 9.01(i) hereof.
"Commission" shall mean the Securities and Exchange
Commission, or any regulatory body that succeeds to the functions
thereof.
"Commitments" shall mean the Revolving Credit
Commitments and the Term Loan Commitments.
"Continue", "Continuation" and "Continued" shall refer
to the continuation pursuant to Section 2.09 hereof of a
Eurodollar Loan from one Interest Period to the next Interest
Period.
"Convert", "Conversion" and "Converted" shall refer to
a conversion pursuant to Section 2.09 hereof of one Type of Loans
into another Type of Loans, which may be accompanied by the
transfer by a Lender (at its sole discretion) of a Loan from one
Applicable Lending Office to another.
"date hereof" and "date of this Agreement" shall mean
October 31, 1996.
"Debt to Cash Flow Ratio" shall mean, as at any date,
the ratio of (a) the aggregate Indebtedness of the Guarantor and
its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP) as of such date to (b) Cash
Flow for the Reporting Period as of such date; provided that
Indebtedness (as used in this definition of "Debt to Cash Flow
Ratio") shall not include any undrawn amount under any letter of
credit for the account of the Company or its Subsidiaries; and
provided, further, that (i) upon the consummation of any
Permitted Acquisition (if the Person, line of business or
division so acquired has audited financial statements with
respect to the applicable Reporting Period or, if such audited
financial statements are not available for the entire Reporting
Period, the Guarantor has delivered to the Agent an income
statement and cash flow statement for such Person, line of
business or division for such Reporting Period (which may be
based in part on any audited financial statements available for
part of such Reporting Period) accompanied by a certificate of a
senior financial officer of the Guarantor stating that such
officer has reviewed the historical performance of such Person,
line of business or division and believes that such statements
fairly represent in all material respects the historical
performance of such entity) or (ii) the Xxxxxxx Acquisition, the
calculation of the Debt to Cash Flow Ratio (both with respect to
Cash Flow and Indebtedness) shall be calculated as if such
Permitted Acquisition or the Xxxxxxx Acquisition, as the case may
be, had occurred, and any Indebtedness incurred in connection
therewith had been incurred, on the first day of the Reporting
Period for the date of such Permitted Acquisition or the Xxxxxxx
Acquisition, as the case may be.
"Default" shall mean an Event of Default or an event
that with notice or lapse of time or both would become an Event
of Default.
"Disposition" shall mean any sale, assignment, transfer
or other disposition of any Property (whether now owned or
hereafter acquired) by the Company or any of its Subsidiaries to
any other Person excluding (i) any sale, assignment, transfer or
other disposition of any Property sold or disposed of in the
ordinary course of business and on ordinary business terms,
(ii) the licensing of general intangibles in the ordinary course
of business, (iii) the sale of overdue receivables in the
ordinary course of business, (iv) the sale of worn-out or
obsolete equipment in the ordinary course of business and (v) any
Disposition of Property in connection with any Casualty Event.
"Dividend Payment" shall mean, with respect to any
Person, dividends (in cash, Property or obligations) on, or other
payments or distributions on account of, or the setting apart of
money for a sinking or other analogous fund for, or the purchase,
redemption, retirement or other acquisition of, any shares of any
class of stock of such Person or of any warrants, options or
other rights to acquire the same (or to make any payments to any
Person, such as "phantom stock" payments, where the amount
thereof is calculated with reference to the fair market or equity
value of such Person or any of its Subsidiaries), but excluding
(i) dividends payable solely in shares of common stock of such
Person, (ii) in the case of the Guarantor, dividends of
additional shares of Guarantor Preferred Stock payable to the
holders of Guarantor Preferred Stock or (iii) any cancellation of
the Guarantor Note.
"Dollars" and "$" shall mean lawful money of the United
States of America.
"Domestic Subsidiary" shall mean any Subsidiary of the
Guarantor that is organized or created under the laws of the
United States of America, any State thereof or the District of
Columbia.
"EBITDA" shall mean, for any period, the sum, for the
Guarantor and its Subsidiaries (determined on a consolidated
basis without duplication in accordance with GAAP), of the
following: (a) net income for such period plus (b) Interest
Expense for such period, together with any original issue
discount to the extent deducted in calculating net income plus
(c) income taxes for such period plus (d) extraordinary and
unusual items of loss for such period, including any
restructuring charges incurred in connection with the Acquisition
not exceeding $15,000,000 (pre-tax) in the aggregate, plus
(e) losses attributable to equity in Affiliates for such period
plus (f) depreciation and amortization (to the extent deducted in
computing net income) for such period minus (g) extraordinary and
unusual items of income or gain for such period minus (h) gains
attributable to equity in Affiliates for such period plus (i) all
non-cash charges related to employee compensation to the extent
deducted in calculating net profits.
"Effective Date" shall mean the date on which the
conditions to the effectiveness of this Agreement set forth in
Section 7.01 hereof shall have been satisfied or waived.
"Eligible Inventory" shall mean, as at any date, with
respect to the Company and Xxxxxxx, the aggregate value of all
Inventory that as of the last day of the immediately preceding
month (a) is owned by the Company or Xxxxxxx and in the
possession or under the control of the Company, Xxxxxxx or the
Agent as at such date, (b) is (i) located in a jurisdiction in
the United States of America as to which appropriate Uniform
Commercial Code financing statements have been filed naming the
Company or Xxxxxxx, as the case may be, as "debtor" and the Agent
on behalf of the Secured Parties (as defined in the Security
Agreement) as "secured party" or (ii) covered by an on-board bill
of lading or other document of title issued in the name of the
Company, Xxxxxxx or the Agent and in the possession of the Agent,
(c) is in good and merchantable condition, (d) meets all
standards imposed by any governmental agency or department or
division thereof having regulatory authority over such Inventory,
its use or sale and (e) is currently saleable in the normal
course of business of the Company or Xxxxxxx without any notice
to, or consent of, any governmental agency or department or
division thereof (excluding however, except to the extent that
the Majority Revolving Credit Lenders otherwise agree with
respect to any specific customer, any such Inventory which has
been shipped to a customer of the Company or Xxxxxxx, even if on
a consignment or "sale or return" basis); provided that "Eligible
Inventory" shall in no event include the following:
(a) the value of any calendars, except that calendars
for the next succeeding calendar year shall not be excluded
from "Eligible Inventory" by reason of this clause (a) for
purposes of any determination of "Eligible Inventory" made
as of the last day of June, July, August, September,
October, November or December;
(b) the value of any catalogues;
(c) the value of any Inventory (other than New
Inventory), to the extent that such value exceeds 100% of
the Company's sales of such Inventory for the 12-month
period most recently ended prior to such date; and
(d) any Inventory intended for internal use by the
Company;
provided, further, that the Majority Revolving Credit Lenders
(through the Agent) may at any time exclude from Eligible
Inventory any type of Inventory that the Majority Revolving
Credit Lenders (in their reasonable determination) determine to
be unmarketable. The "value" of Eligible Inventory shall be
determined at the lower of cost or market in accordance with
GAAP, except that cost shall be determined on a
first-in-first-out basis.
"Eligible Receivables" shall mean, as at any date, the
sum of (a) all Receivables of the Company and Xxxxxxx as of the
last day of the immediately preceding month minus (b) all
Receivable Adjustments of the Company and Xxxxxxx, as the case
may be, as of the last day of the immediately preceding month
minus (c) the aggregate amount of Ineligible Receivables as of
the last day of the immediately preceding month.
"Environmental Claim" shall mean, with respect to any
Person, any written or oral notice, claim, demand or other
communication (collectively, a "claim") by any other Person
alleging or asserting such Person's liability for investigatory
costs, cleanup costs, governmental response costs, damages to
natural resources or other Property, personal injuries, fines or
penalties arising out of, based on or resulting from (i) the
presence, or Release, of any Hazardous Material at any location,
whether or not owned by such Person, or (ii) circumstances
forming the basis of any violation, or alleged violation, of any
Environmental Law. The term "Environmental Claim" shall include,
without limitation, any claim by any governmental authority for
enforcement, cleanup, removal, response, remedial or other
actions or damages pursuant to any applicable Environmental Law,
and any claim by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief
resulting from the presence of Hazardous Materials or arising
from alleged injury or threat of injury to health, safety or the
environment from Hazardous Materials.
"Environmental Laws" shall mean any and all applicable
Federal, state, local and foreign laws, rules or regulations, and
applicable and legally binding orders or decrees, in each case as
now or hereafter in effect, relating to the regulation or
protection of human health, safety or the environment or to
emissions, discharges, releases or threatened releases of
pollutants, contaminants, chemicals or toxic or hazardous
substances or wastes into the indoor or outdoor environment,
including, without limitation, ambient air, soil, surface water,
ground water, wetlands, land or subsurface strata, or otherwise
relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of
pollutants, contaminants, chemicals or toxic or hazardous
substances or wastes.
"Equity Issuance" shall mean (a) any issuance or sale
by the Guarantor or any of its Subsidiaries after the Initial
Borrowing Date of (i) any of its capital stock, (ii) any warrants
or options exercisable in respect of its capital stock or
(iii) any other security or instrument representing an equity
interest (or the right to obtain any equity interest) in the
Guarantor or any of its Subsidiaries or (b) the receipt by the
Guarantor or any of its Subsidiaries after the Initial Borrowing
Date of any capital contribution (whether or not evidenced by any
equity security issued by the recipient of such contribution);
provided that Equity Issuance shall not include (1) any such
issuance or sale by any Subsidiary of the Guarantor to the
Guarantor or any Wholly-Owned Subsidiary of the Guarantor,
(2) any capital contribution by the Guarantor or any Wholly-Owned
Subsidiary of the Guarantor to any Subsidiary of the Guarantor,
(3) any issuance, after the Initial Borrowing Date, by the
Guarantor of Guarantor Preferred Stock to the Company in exchange
for the Guarantor Note, (4) any cancellation of the Guarantor
Note after the Initial Borrowing Date or (5) any warrants or
options issued to directors, officers or employees of the
Guarantor or any of its Subsidiaries pursuant to employee benefit
plans, incentive plans or similar plans or programs established
in the ordinary course of business and any capital stock of the
Guarantor issued upon the exercise of such warrants or options.
"Equity Rights" shall mean, with respect to any Person,
any subscriptions, options, warrants, commitments, preemptive
rights or agreements of any kind (including, without limitation,
any stockholders' or voting trust agreements) for the issuance,
sale, registration or voting of, or securities convertible into,
any additional shares of capital stock of any class, or
partnership or other ownership interests of any type in, such
Person.
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended from time to time.
"ERISA Affiliate" shall mean any corporation or trade
or business that is a member of any group of organizations
(i) described in Section 414(b) or (c) of the Code of which
either Obligor is a member and (ii) solely for purposes of
potential liability under Section 302(c)(11) of ERISA and
Section 412(c)(11) of the Code and the lien created under
Section 302(f) of ERISA and Section 412(n) of the Code, described
in Section 414(m) or (o) of the Code of which either Obligor is a
member.
"Eurodollar Base Rate" shall mean, with respect to any
Eurodollar Loan for any Interest Period therefor, the arithmetic
mean (rounded upwards, if necessary, to the nearest 1/16 of 1%),
as determined by the Agent, of the rates per annum quoted by the
respective Reference Banks at approximately 11:00 a.m. London
time (or as soon thereafter as practicable) on the date two
Business Days prior to the first day of such Interest Period for
the offering by the respective Reference Banks to leading banks
in the London interbank market of Dollar deposits having a term
comparable to such Interest Period and in an amount comparable to
the principal amount of the Eurodollar Loan to be made by the
respective Reference Banks for such Interest Period. If any
Reference Bank is not participating in any Eurodollar Loans
during any Interest Period therefor, the Eurodollar Base Rate for
such Loans for such Interest Period shall be determined by
reference to the amount of such Loans that such Reference Bank
would have made or had outstanding had it been participating in
such Loan during such Interest Period.
"Eurodollar Loans" shall mean Loans that bear interest
at rates based on rates referred to in the definition of
"Eurodollar Base Rate" in this Section 1.01.
"Eurodollar Rate" shall mean, for any Eurodollar Loan
for any Interest Period therefor, a rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) determined by
the Agent to be equal to the Eurodollar Base Rate for such Loan
for such Interest Period divided by 1 minus the Reserve
Requirement (if any) for such Loan for such Interest Period.
"Event of Default" shall have the meaning assigned to
such term in Section 10 hereof.
"Excess Cash Flow" shall mean, for any period, the
excess of (a) Cash Flow for such period minus (b) the aggregate
amount of Fixed Charges for such period minus (c) any severance
payments incurred in connection with the Acquisition and paid in
cash during such period.
"Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended from time to time.
"Federal Funds Rate" shall mean, for any day, the rate
per annum (rounded upwards, if necessary, to the nearest 1/100 of
1%) equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business
Day next succeeding such day, provided that (a) if the day for
which such rate is to be determined is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Business Day as so published
on the next succeeding Business Day and (b) if such rate is not
so published for any Business Day, the Federal Funds Rate for
such Business Day shall be the average rate charged to Chase on
such Business Day on such transactions as determined by the
Agent.
"Fiscal Date" shall mean the last day of each fiscal
year of the Guarantor and the last day of each of the first
three fiscal quarters of the Guarantor.
"Fixed Charges" shall mean, for any Reporting Period,
the sum, for the Guarantor and its Subsidiaries (determined on a
consolidated basis without duplication in accordance with GAAP),
of the following: (a) all payments of principal of Indebtedness
scheduled to be made during such Reporting Period plus (b) all
Interest Expense for such Reporting Period plus (c) income taxes
paid in cash during such Reporting Period plus (d) all dividends
paid in cash to the Guarantor during such Reporting Period.
"Fixed Charges Ratio" shall mean, as at any date, the
ratio of (a) Cash Flow for the Reporting Period as of such date
to (b) Fixed Charges for such Reporting Period.
"GAAP" shall mean generally accepted accounting
principles applied on a basis consistent with those that, in
accordance with the last sentence of Section 1.02(a) hereof, are
to be used in making the calculations for purposes of determining
compliance with this Agreement in accordance with the
requirements of the Commission and the Emerging Issues Task Force
established by the Financial Accounting Standards Board.
"Guarantee" shall mean a guarantee, an endorsement, a
contingent agreement to purchase or to furnish funds for the
payment or maintenance of, or otherwise to be or become
contingently liable under or with respect to, the Indebtedness,
net worth, working capital or earnings of any Person, or a
guarantee of the payment of dividends or other distributions upon
the stock or equity interests of any Person, or an agreement to
purchase, sell or lease (as lessee or lessor) Property, products,
materials, supplies or services primarily for the purpose of
enabling a debtor to make payment of such debtor's obligations or
an agreement to assure a creditor against loss, and including,
without limitation, causing a bank or other financial institution
to issue a letter of credit or other similar instrument for the
benefit of another Person, but excluding endorsements for
collection or deposit in the ordinary course of business. The
terms "Guarantee" and "Guaranteed" used as a verb shall have a
correlative meaning.
"Guarantor Note" shall mean the promissory note
executed by the Guarantor and delivered to the Company under the
Existing Credit Agreement to evidence the loan made by the
Company to the Guarantor to finance the Tender Offer.
"Guaranteed Obligations" shall have the meaning
assigned to such term in Section 6.01 hereof.
"Guarantor Preferred Stock" shall mean the preferred
stock of the Guarantor described in Part A of Schedule VI hereto.
"Hazardous Material" shall mean, collectively, (a) any
petroleum or petroleum products, explosives, radioactive
materials, asbestos that is or could become friable, urea
formaldehyde foam insulation, and transformers or other equipment
that contain polychlorinated biphenyls in excess of 50 parts per
million ("PCB's"), (b) any chemicals or other materials or
substances that are now or hereafter become defined as or
included in the definition of "hazardous substances", "hazardous
wastes", "hazardous materials", "extremely hazardous wastes",
"restricted hazardous wastes", "toxic substances", "toxic
pollutants", "contaminants", "pollutants" or words of similar
import under any Environmental Law and (c) any other chemical or
other material or substance, exposure to which is now or
hereafter prohibited, limited or regulated under any
Environmental Law.
"Indebtedness" shall mean, for any Person:
(a) obligations created, issued or incurred by such Person for
borrowed money (whether by loan, the issuance and sale of debt
securities or the sale of Property to another Person subject to
an understanding or agreement, contingent or otherwise, to
repurchase such Property from such Person); (b) obligations of
such Person to pay the deferred purchase or acquisition price of
Property or services, other than trade accounts payable (other
than for borrowed money) arising, and accrued expenses incurred,
in the ordinary course of business so long as such trade accounts
payable are payable within 90 days of the date the respective
goods are delivered or the respective services are rendered;
(c) Indebtedness of others secured by a Lien on the Property of
such Person, whether or not the respective indebtedness so
secured has been assumed by such Person; (d) obligations of such
Person in respect of letters of credit or similar instruments
issued or accepted by banks and other financial institutions for
account of such Person; (e) Capital Lease Obligations of such
Person; (f) Indebtedness of others Guaranteed by such Person; and
(g) any Redeemable Capital Stock issued by the Guarantor or any
of its Subsidiaries after the Initial Borrowing Date; provided
that any Accrued Warrant Liabilities shall not constitute
"Indebtedness" hereunder. The amount of any Indebtedness of any
Person described in clause (c) above that is non-recourse to such
Person shall, for purposes of this Agreement, be deemed to be
equal to the lesser of (i) the aggregate unpaid amount of such
Indebtedness and (ii) the fair market value of the property or
asset encumbered, as determined by such Person in good faith.
The amount of any Indebtedness of any Person described in
clause (f) above shall, for purposes of this Agreement, be deemed
to be the aggregate amount of Indebtedness Guaranteed by such
Person (if a fixed amount) or the maximum reasonably anticipated
liability arising as a result of such Guarantee (if not a fixed
amount), determined by such Person in good faith.
"Indenture" shall mean the Indenture dated as of May 3,
1995, among the Company, the Guarantor and The Bank of New York,
as Trustee, pursuant to which the Senior Subordinated Notes were
issued.
"Ineligible Receivables" shall mean, as at any date,
the following:
(a) any Receivable not payable in Dollars, other than
Receivables in an aggregate amount not exceeding $10,000,000
that are payable in Canadian dollars;
(b) any Receivable (other than Receivables created in
connection with published promotional programs in the
ordinary course of business) that, at the date of issuance
of the billing statement therefor, was payable more than
60 days after the issuance of such billing statement;
(c) any Receivable payable by a Subsidiary or
Affiliate of the Company;
(d) any Receivable payable by an account debtor whose
principal place of business is located outside of the United
States of America or any of its possessions unless (1) such
Receivable is backed by U.S. Government insurance or a
letter of credit issued or confirmed by a bank organized
under the laws of the United States of America or a State
and having capital and surplus in excess of $500,000,000,
(2) such Receivable is payable by an account debtor whose
principal place of business is located in Canada to the
extent all such Receivables permitted by this clause (2) in
the aggregate do not exceed $10,000,000 or (3) such
Receivable is payable by an account debtor whose principal
place of business is located in a U.S. Territory or
Protectorate to the extent all such Receivables permitted by
this clause (3) in the aggregate do not exceed $5,000,000;
(e) any Receivable payable by an account debtor that
the Majority Revolving Credit Lenders (through the Agent)
have notified the Company, prior to the creation of such
Receivable, does not have a satisfactory credit standing (as
determined in the reasonable discretion of the Majority
Revolving Credit Lenders) or with respect to which,
subsequent to the creation of such Receivable, any event
described in Section 10(f) or (g) shall have occurred;
(f) any Receivable that remains unpaid for more than
90 days after the date of the issuance of the original
billing statement therefor;
(g) all Receivables payable by any account debtor if
more than 50% of the aggregate amount of the Receivables due
from such account debtor shall at the time have remained
unpaid for more than 90 days after the date of the issuance
of the original billing statements therefor;
(h) all Receivables payable by any account debtor
(other than BCOP or Boise) to the extent the Receivables
payable by such account debtor and its Subsidiaries and
Affiliates at the time exceed 10% of all Receivables then
payable to the Company;
(i) any Receivable as to which there is any unresolved
dispute with the respective account debtor (but only to the
extent of the amount thereof in dispute);
(j) any Receivable evidenced by an Instrument (as
defined in the Security Agreement or the Xxxxxxx Guarantee
and Security Agreement);
(k) any Receivable representing an obligation for
goods sold on consignment, approval or a sale-or-return
basis or subject to any other repurchase or return
arrangement (other than return arrangements in the ordinary
course of the Company's business consistent with past
practices of the business of the Company), except to the
extent the Majority Revolving Credit Lenders (through the
Agent) shall have otherwise agreed in writing;
(l) any Receivable arising from the sale of general
full-line catalogues, except that such Receivables shall not
constitute "Ineligible Receivables" by reason of this
clause (l) for purposes of any determination of "Ineligible
Receivables" made as of the last day of September, October,
November, December, January or February;
(m) any Receivable payable by any Federal, state,
municipal or other governmental department, commission,
board, bureau, agency or instrumentality, including any
state or local public college or university;
(n) any Receivable payable by any employee of the
Guarantor or any of its Subsidiaries or Affiliates; and
(o) any Receivable payable on a cash on delivery
basis.
"Initial Borrowing Date" shall mean March 30, 1995, the
date on which the initial Loans were made under the Existing
Credit Agreement.
"Interest Coverage Ratio" shall mean, as at any date,
the ratio of (a) EBITDA for the Reporting Period as of such date
to (b) Interest Expense for such Reporting Period.
"Interest Expense" shall mean, for any period, the sum,
for the Guarantor and its Subsidiaries (determined on a
consolidated basis without duplication in accordance with GAAP),
of the following: (a) all cash interest in respect of
Indebtedness (including, without limitation, the interest
component of any payments in respect of Capital Lease
Obligations) accrued during such period (whether or not actually
paid during such period) plus (b) the net amount payable (or
minus the net amount receivable) under Interest Rate Protection
Agreements during such period (whether or not actually paid or
received during such period).
"Interest Period" shall mean, with respect to any
Eurodollar Loan, each period commencing on the date such
Eurodollar Loan is made or Converted from a Base Rate Loan or the
last day of the next preceding Interest Period for such Loan and
ending on the numerically corresponding day in the first, second,
third or sixth calendar month thereafter, as the Company may
select as provided in Section 4.05 hereof, except that each
Interest Period that commences on the last Business Day of a
calendar month (or on any day for which there is no numerically
corresponding day in the appropriate subsequent calendar month)
shall end on the last Business Day of the appropriate subsequent
calendar month. Notwithstanding the foregoing: (i) no Interest
Period for any Revolving Credit Loan may end after the Revolving
Credit Commitment Termination Date; (ii) no Interest Period for
any Term Loan of any Class may commence before and end after any
Principal Payment Date for the Loans of such Class unless, after
giving effect thereto, the aggregate principal amount of the Term
Loans of such Class having Interest Periods that end after such
Principal Payment Date shall be equal to or less than the
aggregate principal amount of the Term Loans of such Class
scheduled to be outstanding after giving effect to the payments
of principal required to be made on such Principal Payment Date;
(iii) each Interest Period that would otherwise end on a day that
is not a Business Day shall end on the next succeeding Business
Day (or, if such next succeeding Business Day falls in the next
succeeding calendar month, on the next preceding Business Day);
and (iv) notwithstanding clauses (i) and (ii) above, no Interest
Period shall have a duration of less than one month and, if the
Interest Period for any Eurodollar Loan would otherwise be a
shorter period, such Loan shall not be available hereunder for
such period.
"Interest Rate Protection Agreement" shall mean, for
any Person, an interest rate swap, cap or collar agreement or
similar arrangement between such Person and one or more financial
institutions providing for the transfer or mitigation of interest
risks either generally or under specific contingencies.
"Inventory" shall mean office products, office
furniture, computer accessories, catalogues, janitorial or
sanitary maintenance and other readily marketable goods
(including specialty products) of a type sold by the Company or a
Subsidiary in the ordinary course of business.
"Investment" shall mean, for any Person: (a) the
acquisition (whether for cash, Property, services or securities
or otherwise) of capital stock, bonds, notes, debentures,
partnership or other ownership interests or other securities of
any other Person or any agreement to make any such acquisition
(including, without limitation, any "short sale" or any sale of
any securities at a time when such securities are not owned by
the Person entering into such sale but excluding any agreement
referred to above if the acquisition contemplated thereunder is
expressly conditioned upon the approval of the Lenders
hereunder); (b) the making of any deposit with, or advance, loan
or other extension of credit to, any other Person (including the
purchase of Property from another Person subject to an
understanding or agreement, contingent or otherwise, to resell
such Property to such Person), but excluding any such advance,
loan or extension of credit having a term not exceeding 90 days
arising in connection with the sale of inventory or supplies by
such Person in the ordinary course of business; (c) the entering
into of any Interest Rate Protection Agreement; or (d) the making
of any payment, on behalf of any other Person, with respect to
any obligation of such other Person.
"Issuing Bank" shall mean Chase, as the issuer of
Letters of Credit under Section 2.03 hereof, together with its
successors and assigns in such capacity.
"Xxxxxxx Advance" shall have the meaning assigned to
such term in Section 9.19(a) hereof.
"Xxxxxxx Guarantee and Security Agreement" shall mean
the Guarantee and Security Agreement, substantially in the form
of the Guarantee and Security Agreement attached hereto as
Exhibit B-2, between Xxxxxxx and the Agent, as the same may be
modified and supplemented and in effect from time to time.
"Letter of Credit" shall have the meaning assigned to
such term in Section 2.03 hereof.
"Letter of Credit Documents" shall mean, with respect
to any Letter of Credit, collectively, any application therefor
and any other agreements, instruments, guarantees or other
documents (whether general in application or applicable only to
such Letter of Credit) governing or providing for (a) the rights
and obligations of the parties concerned or at risk with respect
to such Letter of Credit or (b) any collateral security for any
of such obligations, each as the same may be modified and
supplemented and in effect from time to time.
"Letter of Credit Fee Rate" shall mean a rate per annum
equal to 2.50%; provided that (i) the Letter of Credit Fee Rate
for any period from and including the date on which the Company
shall have delivered to the Agent a certificate pursuant to
clause (iii) of the last paragraph of Section 9.01 hereof,
demonstrating in reasonable detail (based upon financial
statements for the fiscal period of the Guarantor most recently
ended that have been delivered to the Lenders pursuant to Section
9.01(b) or (c) hereof or, in connection with the Xxxxxxx
Acquisition, on the Effective Date) that the Pricing Leverage
Ratio, as of the end of the respective quarterly fiscal period or
fiscal year, is within one of the ranges set forth below to but
excluding the date of delivery of the next such certificate,
shall equal the percentage set forth below:
Pricing
Leverage Ratio Rate
Greater than 4.5 to 1 2.50%
Less than or equal to 4.5 to 1
but greater than 4.0 to 1 2.25%
Less than or equal to 4.0 to 1
but greater than 3.5 to 1 2.00%
Less than or equal to 3.5 to 1
but greater than 3.0 to 1 1.75%
Less than or equal to 3.0 to 1 1.50%
; (ii) the "Letter of Credit Fee Rate", during any period when an
Event of Default or Default in delivery of the certificate
pursuant to clause (iii) of the last paragraph of Section 9.01
hereof shall have occurred and be continuing, shall be determined
without reference to the immediately preceding proviso; and (iii)
the Letter of Credit Fee Rate for any Letter of Credit arising
out of the purchase of goods and requiring the presentation of a
bill of lading or other transportation document of title shall be
the rate per annum set forth above minus 1.00%.
"Letter of Credit Interest" shall mean, for each
Revolving Credit Lender, such Xxxxxx's participation interest
(or, in the case of the Issuing Bank, the Issuing Bank's retained
interest) in the Issuing Bank's liability under Letters of Credit
and such Xxxxxx's rights and interests in Reimbursement
Obligations and fees, interest and other amounts payable in
connection with Letters of Credit and Reimbursement Obligations.
"Letter of Credit Liability" shall mean, without
duplication, at any time and in respect of any Letter of Credit,
the sum of (a) the undrawn amount of such Letter of Credit plus
(b) the aggregate unpaid principal amount of all Reimbursement
Obligations of the Company at such time due and payable in
respect of all drawings made under such Letter of Credit. For
purposes of this Agreement, a Revolving Credit Lender (other than
the Issuing Bank) shall be deemed to hold a Letter of Credit
Liability in an amount equal to its participation interest in the
related Letter of Credit under Section 2.03 hereof, and the
Issuing Bank shall be deemed to hold a Letter of Credit Liability
in an amount equal to its retained interest in the related Letter
of Credit after giving effect to the acquisition by the Revolving
Credit Lenders other than the Issuing Bank of their participation
interests under said Section 2.03.
"Lien" shall mean, with respect to any Property, any
mortgage, lien, pledge, charge, security interest or encumbrance
of any kind in respect of such Property. For purposes of this
Agreement and the other Basic Documents, a Person shall be deemed
to own subject to a Lien any Property that it has acquired or
holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title
retention agreement (other than a lease evidencing an Operating
Lease Obligation) relating to such Property.
"Loans" shall mean the Revolving Credit Loans, the
Tranche A Term Loans, the Tranche B Term Loans and the Swingline
Loans.
"Majority Lenders" shall mean Lenders holding at least
51% of the sum of (a) the aggregate unused Commitments, (b) the
aggregate unpaid principal amount of the Loans (other than the
Swingline Loans) and (c) the aggregate amount of all Letter of
Credit Liabilities.
"Majority Revolving Credit Lenders" shall mean
Revolving Credit Lenders holding at least 51% of the aggregate
amount of the Revolving Credit Commitments or, if the Revolving
Credit Commitments shall have terminated, Lenders holding at
least 51% of the sum of (a) the aggregate unpaid principal amount
of the Revolving Credit Loans plus (b) the aggregate amount of
all Letter of Credit Liabilities.
"Majority Term Loan Lenders" shall mean Majority
Tranche A Term Loan Lenders and Majority Tranche B Term Loan
Lenders.
"Majority Tranche A Term Loan Lenders" shall mean
Tranche A Term Loan Lenders holding at least 51% of the aggregate
outstanding principal amount of the Tranche A Term Loans or, if
the Tranche A Term Loans shall not have been made, at least 51%
of the Tranche A Term Loan Commitments.
"Majority Tranche B Term Loan Lenders" shall mean
Tranche B Term Loan Lenders holding at least 51% of the aggregate
outstanding principal amount of the Tranche B Term Loans or, if
the Tranche B Term Loans shall not have been made, at least 51%
of the Tranche B Term Loan Commitments.
"Margin Stock" shall mean "margin stock" within the
meaning of Regulations G, U and X.
"Material Adverse Effect" shall mean a material adverse
effect on (a) the Property, business, operations, financial
condition, prospects, liabilities or capitalization of the
Guarantor and its Subsidiaries taken as a whole or the Company
and its Subsidiaries taken as a whole (b) the ability of any
Obligor to perform its obligations under any of the Basic
Documents to which it is a party, (c) the validity or
enforceability of any of the Basic Documents, (d) the rights and
remedies of the Lenders and the Agent under any of the Basic
Documents, (e) the consummation of the Xxxxxxx Acquisition or the
other transactions contemplated hereby or (f) the timely payment
of the principal of or interest on the Loans or the Reimbursement
Obligations or other amounts payable in connection therewith.
"Merger Agreement" shall mean the Agreement and Plan of
Merger dated as of February 13, 1995 between the Guarantor and
Associated Holdings.
"Mergers" shall mean the merger of Associated Holdings
with and into the Guarantor and the merger of Associated
Stationers, Inc. with and into the Company, each of which was
effected on March 30, 1995.
"Mortgages" shall mean, collectively, one or more
instruments of Mortgage, Assignment of Rents, Security Agreement
and Fixture Filing or Deed of Trust, Assignment of Rents,
Security Agreement and Fixture Filing executed by the Company in
favor of the Agent for the benefit of the Agent and the Lenders
(or, in the case of a Deed of Trust, to the Deed of Trust trustee
in favor of the Agent for the benefit of the Lenders),
substantially in the form of Exhibit D hereto (conformed to local
lending practices in the jurisdiction in which the relevant real
Property is located including, without limitation, additional
remedies available to lenders in such jurisdiction and, if
applicable, conformed to the extent necessary to secure a
tenant's interest in a ground lease) and covering the respective
owned and leasehold real Properties identified under the heading
"Mortgages" in Schedule IV hereto, as said instruments of
Mortgage, Assignment of Rents, Security Agreement and Fixture
Filing and Deed of Trust, Assignment of Rents, Security Agreement
and Fixture Filing shall be modified, amended, extended and
supplemented and in effect from time to time.
"Multiemployer Plan" shall mean a multiemployer plan
defined as such in Section 3(37) of ERISA to which contributions
have been made by the Guarantor or the Company or any
ERISA Affiliate and that is covered by Title IV of ERISA.
"Net Available Proceeds" shall mean:
(i) in the case of any Disposition, the amount of Net
Cash Payments received in connection with such Disposition;
(ii) in the case of any Equity Issuance, the aggregate
amount of all cash received by the Guarantor and its
Subsidiaries in respect of such Equity Issuance net of
reasonable expenses incurred in connection therewith
(including, without limitation, any underwriting, brokerage
or other customary selling commissions, all due diligence
costs or expenses paid for, or reimbursed by the Guarantor
or any of its Subsidiaries, attorneys fees and expenses paid
for or reimbursed by the Guarantor or any of its
Subsidiaries and other direct costs associated therewith);
and
(iii) in the case of any Casualty Event, the aggregate
amount of proceeds of insurance, condemnation awards and
other compensation received by the Company and its
Subsidiaries in respect of such Casualty Event net of
(A) reasonable expenses incurred by the Company and its
Subsidiaries in connection therewith (including, without
limitation, any legal, accounting, appraisal or expert fees
or expenses paid for by the Company or its Subsidiaries and
other direct costs associated therewith), (B) contractually
required repayments of Indebtedness to the extent secured by
a Lien on such Property, (C) any income and transfer taxes
payable by the Company or any of its Subsidiaries in respect
of such Casualty Event and (D) other payments contractually
required to be paid to lessors, sublessors, lessees and
sublessees and other holders (other than Affiliates) of
interests in the Property subject to such Casualty Event.
"Net Cash Payments" shall mean, with respect to any
Disposition, the aggregate amount of all cash payments (including
any cash payments with respect to non-cash consideration as
received) received by the Guarantor and its Subsidiaries directly
or indirectly in connection with such Disposition; provided that
(a) Net Cash Payments shall be net of (i) the amount of any
legal, title and recording tax expenses, commissions and other
fees and expenses paid by the Guarantor and its Subsidiaries in
connection with such Disposition, (ii) any Federal, state and
local income or other taxes estimated to be payable by the
Guarantor and its Subsidiaries as a result of such Disposition
(but only to the extent that such estimated taxes (other than
income taxes) are in fact paid to the relevant Federal, state or
local governmental authority within three months of the date of
such Disposition), (iii) brokerage or other customary selling
commissions and (iv) expenses incurred in preparing such asset
for sale and (b) Net Cash Payments shall be net of any repayments
by the Guarantor or any of its Subsidiaries of Indebtedness
(other than Indebtedness to the Lenders hereunder) to the extent
that (i) such Indebtedness is secured by a Lien on the Property
that is the subject of such Disposition and (ii) the transferee
of (or holder of a Lien on) such Property requires that such
Indebtedness be repaid as a condition to the purchase of such
Property.
"Net Income" shall mean, for any period, the
consolidated net income of the Guarantor and its Subsidiaries
determined in accordance with GAAP.
"Net Worth" shall mean, as at any date, the
consolidated net worth of the Guarantor and its Subsidiaries
(determined in accordance with GAAP) minus any write-up in the
book value of assets resulting from a revaluation thereof except
any such writeup relating to the Mergers plus any restructuring
charges incurred in connection with the Acquisition not exceeding
$15,000,000 (pre-tax) in the aggregate plus the aggregate book
value of all Guarantor Preferred Stock described in Schedule VI
hereto plus the aggregate book value of all warrants described in
Schedule VI hereto.
"New Inventory" shall mean, at any time, any Inventory
that was offered by the Company for sale for the first time
within the preceding 12 months.
"Part A Property" shall mean any of the Property
described in Part A of Schedule IV hereto under the heading
"Dispositions".
"Part B Property" shall mean any of the Property
described in Part B of Schedule IV hereto under the heading
"Dispositions".
"PBGC" shall mean the Pension Benefit Guaranty
Corporation or any entity succeeding to any or all of its
functions under ERISA.
"Permitted Acquisition" shall mean any acquisition
after the date hereof by either Obligor of a Person, line of
business or division engaged in the same or substantially similar
line of business as the Company and its Subsidiaries is engaged
in on the date hereof, the purchase price of which acquisition,
together with the purchase price of all other Permitted
Acquisitions, does not exceed $50,000,000; provided that no such
acquisition effected pursuant to a tender offer under Section
14(d) of the Exchange Act shall qualify as a Permitted
Acquisition unless such tender offer has been authorized by the
Board of Directors of the Person to be acquired.
"Permitted Investments" shall mean: (a) direct
obligations of the United States of America, or of any agency
thereof, or obligations guaranteed as to principal and interest
by the United States of America, or of any agency thereof, in
either case maturing not more than 90 days from the date of
acquisition thereof; (b) certificates of deposit issued by any
bank or trust company organized under the laws of the United
States of America or any state thereof and having capital,
surplus and undivided profits of at least $500,000,000, maturing
not more than 90 days from the date of acquisition thereof; and
(c) commercial paper rated A-1 or better or P-1 by Standard &
Poor's Corporation or Xxxxx'x Investors Services, Inc.,
respectively, maturing not more than 90 days from the date of
acquisition thereof; in each case so long as the same (x) provide
for the payment of principal and interest (and not principal
alone or interest alone) and (y) are not subject to any
contingency regarding the payment of principal or interest.
"Person" shall mean any individual, corporation,
company, voluntary association, partnership, joint venture,
limited liability company, trust, unincorporated organization or
government (or any agency, instrumentality or political
subdivision thereof).
"Plan" shall mean an employee benefit or other plan
established or maintained by the Company or any ERISA Affiliate
and that is covered by Title IV of ERISA, other than a
Multiemployer Plan.
"Pledge Agreement" shall mean an Amended and Restated
Pledge Agreement, substantially in the form of Exhibit C hereto,
between the Guarantor and the Agent, as the same shall be
modified and supplemented and in effect from time to time.
"Post-Default Rate" shall mean, in respect of any
principal of any Loan, any Reimbursement Obligation or any other
amount under this Agreement or any other Basic Document that is
not paid when due (whether at stated maturity, by acceleration,
by optional or mandatory prepayment or otherwise), a rate per
annum during the period from and including the due date to but
excluding the date on which such amount is paid in full equal to
(a) in the case of any principal of any Loan or any interest
thereon, 2% plus the Applicable Margin with respect to such Loan
plus the Base Rate as in effect from time to time or (b) in the
case of any other such amount, 4.00% plus the Base Rate as in
effect from time to time (provided that, if the amount so in
default is principal of a Eurodollar Loan and the due date
thereof is a day other than the last day of the Interest Period
therefor, the "Post-Default Rate" for such principal shall be,
for the period from and including such due date to but excluding
the last day of such Interest Period, 2% plus the interest rate
for such Loan as provided in Section 3.02(b) hereof and,
thereafter, the rate provided for above in this definition).
"Pricing Leverage Ratio" shall mean, as at any date,
the ratio of (a) the aggregate Indebtedness of the Guarantor and
its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP) as of such date to
(b) EBITDA for the Reporting Period as of such date; provided
that Indebtedness (as used in this definition of "Pricing
Leverage Ratio") shall not include any undrawn amount under any
letter of credit for the account of the Company or its
Subsidiaries; and provided, further, that (i) upon the
consummation of any Permitted Acquisition of a Person (if the
Person, line of business or division so acquired has audited
financial statements with respect to the applicable Reporting
Period or, if such audited financial statements are not available
for the entire Reporting Period, the Guarantor has delivered to
the Agent an income statement and cash flow statement for such
Person, line of business or division for such Reporting Period
(which may be based in part on any audited financial statements
available for part of such Reporting Period) accompanied by a
certificate of a senior financial officer of the Guarantor
stating that such officer has reviewed the historical performance
of such Person, line of business or division and believes that
such statements fairly represent in all material respects the
historical performance of such entity) or (ii) the consummation
of the Xxxxxxx Acquisition, the calculation of the Pricing
Leverage Ratio (both with respect to EBITDA and Indebtedness)
shall be calculated as if such Permitted Acquisition or the
Xxxxxxx Acquisition, as the case may be, had occurred, and any
Indebtedness incurred in connection therewith had been incurred,
on the first day of the Reporting Period for the date of such
Permitted Acquisition or the Xxxxxxx Acquisition, as the case may
be.
"Primary Offering" shall mean the initial issuance
prior to September 30, 1997 by the Guarantor of additional shares
of its common stock.
"Prime Rate" shall mean the rate of interest from time
to time announced by Chase at the Principal Office as its prime
commercial lending rate.
"Principal Office" shall mean the principal office of
Chase, located on the date hereof at 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000.
"Principal Payment Date" shall mean each Quarterly Date
on which a principal payment in respect of the Term Loans is
required to be made pursuant to Section 3.01 hereof.
"Pro Forma Effect" shall mean, for any event, to
calculate the operating results for the Reporting Period in
respect of the date of such event as if such event had occurred
on the first day of such Reporting Period after giving effect to
any changes in the capital structure or Indebtedness (and
otherwise based upon the actual operating results for such
Reporting Period).
"Property" shall mean any right or interest in or to
property of any kind whatsoever, whether real, personal or mixed
and whether tangible or intangible.
"Quarterly Dates" shall mean March 31, June 30,
September 30 and December 31 of each year, beginning December 31,
1996; provided that, if any such date is not a Business Day, the
relevant Quarterly Date shall be the next succeeding Business
Day.
"Receivable Adjustments" shall mean (a) any current
liabilities of the Company arising because of any credits,
rebates or offsets owed to any customer, (b) any commissions
payable to third parties and (c) the aggregate amount of late
charges included in the Company's Receivables.
"Receivables" shall mean, as at any date, the unpaid
portion of the obligation, as stated on the respective billing
statement, of a customer of the Company or Xxxxxxx in respect of
Inventory sold and shipped by (or services performed by) the
Company or Xxxxxxx, as the case may be, to such customer.
"Redeemable Capital Stock" shall mean, with respect to
any Person, any capital stock of such Person that, either by its
terms or by the terms of any security into which it is
convertible or exchangeable or otherwise, is or upon the
happening of an event or passage of time would be, required to be
redeemed or is redeemable at the option of the holder thereof
prior to April 1, 2002, or is exchangeable for debt securities at
any time at the option of the holder thereof.
"Reference Banks" shall mean Chase, The First National
Bank of Chicago and PNC Bank, National Association (or their
respective Applicable Lending Offices, as the case may be).
"Registered Holder" shall have the meaning assigned to
such term in Section 5.07(a)(ii) hereof.
"Registered Loan" shall have the meaning assigned to
such term in Section 2.08(e) hereof.
"Regulations A, D, G, U and X" shall mean,
respectively, Regulations A, D, G, U and X of the Board of
Governors of the Federal Reserve System (or any successor), as
the same may be modified and supplemented and in effect from time
to time.
"Regulatory Change" shall mean, with respect to any
Lender, any change after the date hereof in applicable Federal,
state or foreign law or regulations (including, without
limitation, Regulation D) or the adoption or making after such
date of any interpretation, directive or request applying to a
class of banks including such Lender of or under any Federal,
state or foreign law or regulations (whether or not having the
force of law and whether or not failure to comply therewith would
be unlawful) by any court or governmental or monetary authority
charged with the interpretation or administration thereof.
"Reimbursement Obligations" shall mean, at any time,
the obligations of the Company then outstanding, or that may
thereafter arise in respect of all Letters of Credit then
outstanding, to reimburse amounts paid by the Issuing Bank in
respect of any drawings under a Letter of Credit.
"Release" shall mean any release, spill, emission,
leaking, pumping, injection, deposit, disposal, discharge,
dispersal, leaching or migration into the indoor or outdoor
environment.
"Reporting Period" shall mean, for any date, the period
of four consecutive fiscal quarters of the Guarantor ending (at
the close of business) on or most recently ended prior to such
date.
"Reserve Requirement" shall mean, for any Interest
Period for any Eurodollar Loan, the average maximum rate at which
reserves (including, without limitation, any marginal,
supplemental or emergency reserves) are required to be maintained
during such Interest Period under Regulation D by member banks of
the Federal Reserve System in New York City with deposits
exceeding one billion Dollars against "Eurocurrency liabilities"
(as such term is used in Regulation D). Without limiting the
effect of the foregoing, the Reserve Requirement shall include
any other reserves required to be maintained by such member banks
by reason of any Regulatory Change with respect to (i) any
category of liabilities that includes deposits by reference to
which the Eurodollar Base Rate is to be determined as provided in
the definition of "Eurodollar Base Rate" in this Section 1.01 or
(ii) any category of extensions of credit or other assets that
includes Eurodollar Loans.
"Responsible Officer" shall mean, with respect to any
Person, the Treasurer, Chief Financial Officer and Controller of
such Person and such other officers of the relevant Person as the
Agent may agree.
"Revolving Credit Commitment" shall mean, for each
Revolving Credit Lender, the obligation of such Lender to make
Revolving Credit Loans in an aggregate principal amount at any
one time outstanding up to but not exceeding the amount set forth
opposite the name of such Lender on the signature pages hereof
under the caption "Revolving Credit Commitment" (as the same may
be reduced from time to time pursuant to Section 2.04 hereof).
The aggregate principal amount of the Revolving Credit
Commitments under this Agreement on the date hereof is
$325,000,000.
"Revolving Credit Commitment Percentage" shall mean,
with respect to any Revolving Credit Lender, the ratio of (a) the
amount of the Revolving Credit Commitment of such Lender to
(b) the aggregate amount of the Revolving Credit Commitments of
all of the Lenders.
"Revolving Credit Commitment Termination Date" shall
mean October 31, 2001.
"Revolving Credit Lenders" shall mean (a) on the date
hereof, the Lenders having Revolving Credit Commitments on the
signature pages hereof and (b) thereafter, the Lenders from time
to time holding Revolving Credit Loans and Revolving Credit
Commitments after giving effect to any assignments thereof
permitted by Section 12.06(b) hereof.
"Revolving Credit Loans" shall mean the loans provided
for in Section 2.01(a) hereof, which may be Base Rate Loans
and/or Eurodollar Loans.
"Security Agreement" shall mean an Amended and Restated
Security Agreement, substantially in the form of Exhibit B-1
hereto, between the Company and the Agent, as the same shall be
modified and supplemented and in effect from time to time.
"Security Documents" shall mean, collectively, the
Security Agreement, the Xxxxxxx Guarantee and Security Agreement,
the Mortgages and the Pledge Agreement.
"Senior Subordinated Debt Documents" shall mean the
Senior Subordinated Notes and the Indenture, as the same shall,
subject to Section 9.20 hereof, be modified and supplemented and
in effect from time to time.
"Senior Subordinated Notes" shall mean the 12-3/4%
Senior Subordinated Notes due May 1, 2005 issued by the Company
pursuant to the Indenture.
"Sponsor Management Fees" shall have the meaning
assigned to such term in Section 9.22 hereof.
"Subordinated Indebtedness" shall mean, collectively,
(a) Senior Subordinated Notes and (b) other Indebtedness (i) for
which the Company is directly and primarily liable, (ii) in
respect of which none of its Subsidiaries is contingently or
otherwise obligated and (iii) that is subordinated to the
obligations of the Company to pay principal of and interest on
the Loans and Reimbursement Obligations hereunder on terms, and
pursuant to documentation containing other terms (including
interest, amortization, covenants and events of default), in form
and substance satisfactory to the Majority Lenders.
"Subsidiary" shall mean, with respect to any Person,
any corporation, partnership or other entity of which at least a
majority of the securities or other ownership interests having by
the terms thereof ordinary voting power to elect a majority of
the board of directors or other persons performing similar
functions of such corporation, partnership or other entity
(irrespective of whether or not at the time securities or other
ownership interests of any other class or classes of such
corporation, partnership or other entity shall have or might have
voting power by reason of the happening of any contingency) is at
the time directly or indirectly owned or controlled by such
Person or one or more Subsidiaries of such Person or by such
Person and one or more Subsidiaries of such Person.
"Supermajority Lenders" shall have the meaning assigned
to such term in Section 12.04 hereof.
"Swingline Commitment" shall mean the obligation of the
Swingline Lender to make Swingline Loans pursuant to Section
2.01(d) hereof in an aggregate amount at any one time outstanding
up to but not exceeding $20,000,000 (as the same may be reduced
at any time or from time to time pursuant to Section 2.04 or 2.10
hereof).
"Swingline Loans" shall mean the loans provided for by
Section 2.01(d) hereof.
"Swingline Rate" shall mean, for any day, the Base Rate
in effect for such date. Each change in any interest rate
provided for herein based upon the Swingline Rate resulting from
a change to the Swingline Rate shall take effect at the time of
such change in the Swingline Rate.
"Tax Sharing Agreement" shall have the meaning assigned
to such term in Section 9.23 hereof.
"Tender Offer" shall mean the offer by the Guarantor to
purchase for cash up to 17,201,839 United Shares pursuant to the
Tender Offer Documents (as defined in the Existing Credit
Agreement).
"Term Loan Commitment Termination Date" shall mean
November 15, 1996.
"Term Loan Commitments" shall mean the Tranche A Term
Loan Commitments and the Tranche B Term Loan Commitments.
"Term Loan Lenders" shall mean Tranche A Term Loan
Lenders and Tranche B Term Loan Lenders.
"Term Loans" shall mean the Tranche A Term Loans and
the Tranche B Term Loans.
"Tranche A Term Loan Commitment" shall mean, for each
Tranche A Term Loan Lender, the obligation of such Lender to make
a Tranche A Term Loan in the amount set forth opposite the name
of such Lender on the signature pages hereof under the caption
"Tranche A Term Loan Commitment" (as the same may be reduced from
time to time pursuant to Section 2.04 hereof). The aggregate
principal amount of the Tranche A Term Loan Commitments under
this Agreement on the date hereof is $150,000,000.
"Tranche A Term Loan Lenders" shall mean (a) on the
date hereof, the Lenders having Tranche A Term Loan Commitments
on the signature pages hereof and (b) thereafter, the Lenders
from time to time holding Tranche A Term Loans or Tranche A Term
Loan Commitments after giving effect to any assignments thereof
permitted by Section 12.06(b) hereof.
"Tranche A Term Loans" shall mean the loans provided
for by Section 2.01(b) hereof, which may be Base Rate Loans
and/or Eurodollar Loans.
"Tranche B Term Loan Commitment" shall mean, for each
Tranche B Term Loan Lender, the obligation of such Lender to make
a Tranche B Term Loan in the amount set forth opposite the name
of such Lender on the signature pages hereof under the caption
"Tranche B Term Loan Commitment" (as the same may be reduced from
time to time pursuant to Section 2.04 hereof). The aggregate
principal amount of the Tranche B Term Loan Commitments under
this Agreement on the date hereof is $65,000,000.
"Tranche B Term Loan Lenders" shall mean (a) on the
date hereof, the Lenders having Tranche B Term Loan Commitments
on the signature pages hereof and (b) thereafter, the Lenders
from time to time holding Tranche B Term Loans or Tranche B Term
Loan Commitments after giving effect to any assignments thereof
permitted by Section 12.06(b) hereof.
"Tranche B Term Loans" shall mean the loans provided
for by Section 2.01(c) hereof, which may be Base Rate Loans
and/or Eurodollar Loans.
"Transaction Documents" shall mean the Basic Documents
and the Purchase Agreement.
"Type" shall have the meaning assigned to such term in
Section 1.03 hereof.
"U.S. Person" shall mean a citizen or resident of the
United States of America, a corporation, partnership or other
entity created or organized in or under any laws of the United
States of America or any State thereof, or any estate or trust
the income of which is subject to Federal income taxation
regardless of its source.
"U.S. Taxes" shall mean any present or future tax,
assessment or other charge or levy imposed by or on behalf of the
United States of America or any taxing authority thereof.
"Warrant Agreement" shall mean the Warrant Agreement
dated as of January 31, 1992 among the Guarantor and the
Investors party thereto, as amended by Amendment No. 1 thereto,
dated as of October 27, 1992, and Amendment No. 2 thereto, dated
as of March 30, 1995, as the same shall be further modified and
supplemented and in effect from time to time.
"Wholly-Owned Subsidiary" shall mean, with respect to
any Person, any corporation, partnership or other entity of which
all of the equity securities or other ownership interests (other
than, in the case of a corporation, directors' qualifying shares)
are directly or indirectly owned or controlled 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.
"Xxxxxxx" shall mean (i) Xxxxxxx Partners, L.P.,
(ii) Xxxxxxx Partners II, L.P. and (iii) any other Person so long
as, in each such case, one of Xxxxxx X. Xxxxxxxx, Xxxxxxxx X.
Xxxx, Xx. and Xxxxx X. Xxxxxxx, Xx. have the power, directly or
indirectly, to vote or direct the voting of all securities of the
Guarantor held by such entity.
1.02 Accounting Terms and Determinations.
(a) Except as otherwise expressly provided herein, all
accounting terms used herein shall be interpreted, and all
financial statements and certificates and reports as to financial
matters required to be delivered to the Lenders hereunder shall
(unless otherwise disclosed to the Lenders in writing at the time
of delivery thereof in the manner described in subsection (b)
below) be prepared, in accordance with generally accepted
accounting principles applied on a basis consistent with those
used in the preparation of the latest financial statements
furnished to the Lenders hereunder (which, prior to the delivery
of the first financial statements under Section 9.01 hereof,
shall mean the audited consolidated financial statements of the
Guarantor as at December 31, 1995 referred to in
Section 8.02(a)(ii) hereof except for immaterial variations
thereto). All calculations made for the purposes of determining
compliance with this Agreement shall (except as otherwise
expressly provided herein) be made by application of generally
accepted accounting principles applied on a basis consistent with
those used in the preparation of the latest annual or quarterly
financial statements furnished to the Lenders pursuant to
Section 9.01 hereof (or, prior to the delivery of the first
financial statements under Section 9.01 hereof, used in the
preparation of the audited consolidated financial statements of
the Guarantor as at December 31, 1995 referred to in
Section 8.02(a)(ii) hereof) unless (i) the Company shall have
objected to determining such compliance on such basis at the time
of delivery of such financial statements or (ii) the Majority
Lenders shall so object in writing within 30 days after delivery
of such financial statements, in either of which events such
calculations shall be made on a basis consistent with those used
in the preparation of the latest financial statements as to which
such objection shall not have been made (which, if objection is
made in respect of the first financial statements delivered under
Section 9.01 hereof, shall mean the audited consolidated
financial statements of the Guarantor as at December 31, 1995
referred to in Section 8.02(a)(ii) hereof). Notwithstanding the
foregoing, all financial statements delivered to the Lenders
hereunder shall be prepared utilizing the last-in-first-out basis
of inventory valuation but all calculations made for the purpose
of determining compliance with this Agreement shall be prepared
utilizing the first-in-first-out basis of inventory valuation.
(b) The Company shall deliver to the Lenders at the
same time as the delivery of any annual or quarterly financial
statement under Section 9.01 hereof (i) a description in
reasonable detail of any material variation between the
application of accounting principles employed in the preparation
of such statement and the application of accounting principles
employed in the preparation of the next preceding annual or
quarterly financial statements as to which no objection has been
made in accordance with the last sentence of subsection (a) above
and (ii) reasonable estimates of the difference between such
statements arising as a consequence thereof.
(c) To enable the ready and consistent determination
of compliance with the covenants set forth in Section 9 hereof,
the Company will not change the last day of its fiscal year from
December 31, or the last days of the first three fiscal quarters
in each of its fiscal years from March 31, June 30 and
September 30 of each year, respectively.
1.03 Classes and Types of Loans. Loans hereunder are
distinguished by "Class" and by "Type". The "Class" of a Loan
(or of a Commitment to make a Loan) refers to whether such Loan
is a Revolving Credit Loan, a Tranche A Term Loan, a Tranche B
Term Loan or a Swingline Loan, each of which constitutes a Class.
The "Type" of a Loan refers to whether such Loan is a Base Rate
Loan or a Eurodollar Loan, each of which constitutes a Type.
Loans may be identified by both Class and Type.
Section 2. Commitments, Loans and Prepayments.
2.01 Loans.
(a) Revolving Credit Loans. Each Revolving Credit
Lender severally agrees, on the terms and conditions of this
Agreement, to make loans to the Company in Dollars during the
period from and including the Effective Date to but not including
the Revolving Credit Commitment Termination Date in an aggregate
principal amount at any one time outstanding up to but not
exceeding the amount of the Revolving Credit Commitment of such
Lender as in effect from time to time; provided that in no event
shall the aggregate outstanding principal amount of all Revolving
Credit Loans, together with the aggregate outstanding principal
amount of all Swingline Loans and the aggregate amount of all
Letter of Credit Liabilities, exceed the lesser of (i) the
Borrowing Base and (ii) the aggregate amount of the Revolving
Credit Commitments as in effect from time to time. Subject to
the terms and conditions of this Agreement, during such period
the Company may borrow, repay and reborrow the amount of the
Revolving Credit Commitments by means of Base Rate Loans and
Eurodollar Loans and may Convert Revolving Credit Loans of one
Type into Revolving Credit Loans of another Type (as provided in
Section 2.09 hereof) or Continue Revolving Credit Loans of one
Type as Revolving Credit Loans of the same Type (as provided in
Section 2.09 hereof).
(b) Tranche A Term Loans. Each Tranche A Term Loan
Lender severally agrees, on the terms and conditions of this
Agreement, to make a term loan to the Company in Dollars on the
Effective Date in an aggregate principal amount up to but not
exceeding the amount of the Tranche A Term Loan Commitment of
such Lender. Thereafter the Company may Convert Tranche A Term
Loans of one Type into Tranche A Term Loans of another Type (as
provided in Section 2.09 hereof) or Continue Tranche A Term Loans
of one Type as Tranche A Term Loans of the same Type (as provided
in Section 2.09 hereof).
(c) Tranche B Term Loans. Each Tranche B Term Loan
Lender severally agrees, on the terms and conditions of this
Agreement, to make a term loan to the Company in Dollars on the
Effective Date in an aggregate principal amount up to but not
exceeding the amount of the Tranche B Term Loan Commitment of
such Lender. Thereafter the Company may Convert Tranche B Term
Loans of one Type into Tranche B Term Loans of another Type (as
provided in Section 2.09 hereof) or Continue Tranche B Term Loans
of one Type as Tranche B Term Loans of the same Type (as provided
in Section 2.09 hereof).
(d) Swingline Loans. The Swingline Lender agrees, on
the terms and conditions of this Agreement, to make loans
("Swingline Loans") to the Company during the period from the
date hereof to but excluding the date five Business Days prior to
the Revolving Credit Commitment Termination Date in an aggregate
amount at any one time outstanding up to but not exceeding its
Swingline Commitment; provided that the aggregate principal
amount of all Revolving Credit Loans and Swingline Loans together
with all Letter of Credit Liabilities shall not at any time
outstanding exceed the lesser of (i) the Borrowing Base and (ii)
the aggregate amount of the Revolving Credit Commitments, as in
effect from time to time. Subject to the terms of this
Agreement, the Company may borrow, repay and reborrow the amount
of the Swingline Commitment by means of Loans that bear interest
at the Swingline Rate; provided that no Swingline Loan may be
borrowed to repay an outstanding Swingline Loan.
(e) Limit on Eurodollar Loans. No more than
seven separate Interest Periods in respect of Eurodollar Loans of
any Class from each Lender may be outstanding at any one time.
(f) Continuation of Loans under Existing Credit
Agreement. Notwithstanding anything herein to the contrary, any
"Loan" (as defined in the Existing Credit Agreement) that is
outstanding on the Effective Date and that is held by a "Lender"
(as so defined) under the Existing Credit Agreement that is also
a Lender hereunder shall be automatically, and without any
further action on the part of any Person, converted to a Loan of
the same Type hereunder of such Lender in the principal amount
and bearing interest at the rate provided for therein, and for
(if applicable) an Interest Period hereunder equal to the portion
of the "Interest Period" (as so defined) under the Existing
Credit Agreement remaining after the Effective Date; accrued
interest in respect of each such Loan shall be paid on the date
on which such interest would have been payable under the Existing
Credit Agreement had such Loan remained outstanding thereunder.
No amounts shall be payable under Section 5.05 of the Existing
Credit Agreement in respect of any Eurodollar Loans so converted.
The outstanding Loans of each "Lender" under the Existing Credit
Agreement shall be reallocated among Classes hereunder so that
such Loans shall first become Term Loans under this Agreement up
to such Xxxxxx's Term Loan Commitment hereunder, and then, to the
extent the aggregate principal amount of such Loans exceeds such
Xxxxxx's Term Loan Commitment hereunder, Revolving Credit Loans.
The principal of, interest on and all other amounts owing in
respect of any outstanding "Loan" (as so defined) under the
Existing Credit Agreement that is held by a "Lender" thereunder
that is not also a Lender hereunder, or that is held by a
"Lender" thereunder in excess of such Xxxxxx's pro rata share of
outstanding Loans of such Class hereunder, shall be repaid in
full on the Effective Date as provided in Section 7.01 hereof.
2.02 Borrowings.
(a) General. The Company shall give the Agent (which
shall promptly notify the relevant Lenders) or, in the case of
Swingline Loans, the Swingline Lender, notice of each borrowing
hereunder as provided in Section 4.05 hereof, which notice may be
delivered by telephone if followed promptly by notice in writing.
Not later than 2:00 p.m. New York time on the date specified for
each borrowing hereunder, each relevant Lender shall make
available the amount of the Loan or Loans to be made by it on
such date to the Agent, at any account designated by the Agent
with Chase at the Principal Office, in immediately available
funds, for account of the Company. The amount so received by the
Agent shall, subject to the terms and conditions of this
Agreement, be made available to the Company by depositing the
same, in immediately available funds, in an account of the
Company maintained with Chase at the Principal Office designated
by the Company or by repaying any then outstanding Swingline
Loan, as set forth in Section 2.02(b).
(b) Borrowings to Repay Swingline Loans. Unless the
Company has already given a notice of borrowing of Revolving
Credit Loans to repay a Swingline Loan, if any Swingline Loan
remains outstanding, at any time until the unpaid principal
amount of such Swingline Loan shall have been paid in full, the
Swingline Lender may, and the Company hereby irrevocably
authorizes and empowers (which power is coupled with an interest)
the Swingline Lender to, deliver, on behalf of the Company, to
the Agent under Section 2.02(a) hereof a notice of borrowing of
Revolving Credit Loans that are Base Rate Loans in an amount
equal to the then unpaid principal amount of such Swingline Loan.
In the event that the power of the Swingline Lender to give such
notice of borrowing on behalf of the Company is terminated for
any reason whatsoever (including, without limitation, a
termination resulting from the occurrence of an event specified
in clause (f) or (g) of Section 10 hereof with respect to the
Company), or the Swingline Lender is otherwise precluded for any
reason whatsoever from giving a notice of borrowing on behalf of
the Company as provided in the preceding sentence, each Lender
shall, upon notice from the Swingline Lender, promptly purchase
from the Swingline Lender a participation in (or, if and to the
extent specified by the Swingline Lender, an assignment of) such
Swingline Loan in the amount of the Base Rate Loan it would have
been obligated to make pursuant to such notice of borrowing.
Each Lender shall, not later than 4:00 p.m. New York time on the
Business Day on which such notice is given (if such notice is
given by 12:00 noon New York time) or 11:00 a.m. New York time on
the next succeeding Business Day (if such notice is given after
12:00 p.m., but before 5:00 p.m., New York time), make available
the amount of the Base Rate Loan to be made by it (or the amount
of the participation or assignment to be purchased by it, as the
case may be) to the Agent at the account specified in Section
2.02(a) hereof and the amount so received by the Agent shall
promptly be made available to the Swingline Lender by remitting
the same, in immediately available funds, to the Swingline
Lender. Promptly following its receipt of any payment in respect
of such Swingline Loans, the Swingline Lender shall pay to each
Lender that has acquired a participation in such Swingline Loan
such Lender's proportionate share of such payment. Anything in
this Agreement to the contrary notwithstanding (including,
without limitation, in Section 7.02 hereof), the obligation of
each Lender to make its Base Rate Loan (or purchase its
participation in or assignment of such Swingline Loan, as the
case may be) pursuant to this Section 2.02(b) is unconditional
under any and all circumstances whatsoever and shall not be
subject to set-off, counterclaim or defense to payment that such
Lender may have or have had against the Company, the Guarantor,
the Agent, the Swingline Lender or any other Lender and, without
limiting any of the foregoing, shall be unconditional
irrespective of (i) the occurrence of any Default, (ii) the
financial condition of the Company, any Subsidiary, the
Guarantor, the Agent, the Swingline Lender or any other Lender or
(iii) the termination or cancellation of the Commitments;
provided that no Lender shall be obligated to make any such Base
Rate Loan (or to purchase any such participation or direct
interest in the Swingline Loan) if (i) before the making of such
Swingline Loan, such Lender had notified the Swingline Lender
that a Default had occurred and was continuing and that such
Lender would not refinance such Swingline Loan or (ii) to the
extent (and only to the extent) that such Swingline Loan,
together with all Revolving Credit Loans then outstanding at the
time of the making of such Swingline Loan together with the
aggregate amount of all outstanding Letter of Credit Liabilities
exceeds the then aggregate amount of the Revolving Credit
Commitments at the time of the making of such Swingline Loan.
The Company agrees that any Lender so purchasing a participation
(or assignment) in such Swingline Loan may exercise all rights of
set-off, bankers' lien, counterclaim or similar rights with
respect to such participation as fully as if such Lender were a
direct holder of a Swingline Loan in the amount of such
participation. The Company hereby promises to pay the Agent for
account of the Swingline Lender the entire outstanding principal
amount of the Swingline Loans, and each such Swingline Loan shall
mature, on the Revolving Credit Commitment Termination Date.
2.03 Letters of Credit. Subject to the terms and
conditions of this Agreement, the Revolving Credit Commitments
may be utilized, upon the request of the Company, in addition to
the Revolving Credit Loans provided for by Section 2.01(a)
hereof, by the issuance by the Issuing Bank of letters of credit
(collectively, "Letters of Credit") for account of the Company or
any of its Subsidiaries (as specified by the Company) and payable
in Dollars, provided that in no event shall (i) the aggregate
amount of all Letter of Credit Liabilities plus the aggregate
outstanding principal amount of the Revolving Credit Loans and
the aggregate outstanding principal amount of the Swingline
Loans, exceed the lesser of (x) the Borrowing Base and (y) the
aggregate amount of the Revolving Credit Commitments as in effect
from time to time, (ii) the outstanding aggregate amount of all
Letter of Credit Liabilities exceed $90,000,000 and (iii) the
expiration date of any Letter of Credit extend beyond the earlier
of (I) the Revolving Credit Commitment Termination Date and
(II) except for any Letters of Credit issued to PNC Bank,
National Association, with respect to its obligations under
Letters of Credit A-301673 and A-301404 referred to in the Letter
of Credit Chart set forth in Schedule I hereto and Letters of
Credit replacing such letters of credit issued by PNC Bank,
National Association, the date twelve months following the
issuance of such Letter of Credit (or in the case of any renewal
or extension thereof, twelve months after such renewal or
extension). The following additional provisions shall apply to
Letters of Credit:
(a) The Company shall give the Agent at least
three Business Days' irrevocable prior notice (effective
upon receipt) specifying the Business Day (which shall be no
later than thirty days preceding the Revolving Credit
Commitment Termination Date) each Letter of Credit is to be
issued and the account party or parties therefor and
describing in reasonable detail the proposed terms of such
Letter of Credit (including the beneficiary thereof) and the
nature of the transactions or obligations proposed to be
supported thereby (including whether such Letter of Credit
is to be a commercial letter of credit or a standby letter
of credit). Upon receipt of any such notice, the Agent
shall advise the Issuing Bank of the contents thereof.
(b) On each day during the period commencing with the
issuance by the Issuing Bank of any Letter of Credit and
until such Letter of Credit shall have expired or been
terminated, the Revolving Credit Commitment of each
Revolving Credit Lender shall be deemed to be utilized for
all purposes of this Agreement in an amount equal to such
Xxxxxx's Revolving Credit Commitment Percentage of the then
undrawn amount of such Letter of Credit. Each Revolving
Credit Lender (other than the Issuing Bank) agrees that,
upon the issuance of any Letter of Credit hereunder, it
shall automatically acquire a participation in the Issuing
Bank's liability under such Letter of Credit in an amount
equal to such Xxxxxx's Revolving Credit Commitment
Percentage of such liability, and each Revolving Credit
Lender (other than the Issuing Bank) thereby shall
absolutely, unconditionally and irrevocably assume, as
primary obligor and not as surety, and shall be
unconditionally obligated to the Issuing Bank to pay and
discharge when due, its Revolving Credit Commitment
Percentage of the Issuing Bank's liability under such Letter
of Credit.
(c) Upon receipt from the beneficiary of any Letter of
Credit of any demand for payment under such Letter of
Credit, the Issuing Bank shall promptly notify the Company
(through the Agent) of the amount to be paid by the Issuing
Bank as a result of such demand and the date on which
payment is to be made by the Issuing Bank to such
beneficiary in respect of such demand. Notwithstanding the
identity of the account party of any Letter of Credit, the
Company hereby unconditionally agrees to pay and reimburse
the Agent for account of the Issuing Bank for the amount of
each demand for payment under such Letter of Credit that is
in substantial compliance with the provisions of such Letter
of Credit at or prior to the date on which payment is to be
made by the Issuing Bank to the beneficiary thereunder,
without presentment, demand, protest or other formalities of
any kind.
(d) Forthwith upon its receipt of a notice referred to
in paragraph (c) of this Section 2.03, the Company shall
advise the Agent whether or not the Company intends to
borrow hereunder to finance its obligation to reimburse the
Issuing Bank for the amount of the related demand for
payment and, if it does, submit a notice of such borrowing
as provided in Section 4.05 hereof. In the event that the
Company fails to so advise the Agent, or if the Company
fails to reimburse the Issuing Bank for a demand for payment
under a Letter of Credit by the date of such payment, the
Agent shall give each Revolving Credit Lender prompt notice
of the demand for payment, specifying such Xxxxxx's
Revolving Credit Commitment Percentage of the amount of the
related demand for payment.
(e) Each Revolving Credit Lender (other than the
Issuing Bank) shall pay to the Agent for account of the
Issuing Bank at the Principal Office in Dollars and in
immediately available funds, the amount of such Xxxxxx's
Revolving Credit Commitment Percentage of any payment under
a Letter of Credit upon notice by the Issuing Bank (through
the Agent) to such Revolving Credit Lender requesting such
payment and specifying such amount, unless such payment
under such Letter of Credit would not have been made but for
the gross negligence or willful misconduct of the Issuing
Bank. Each such Revolving Credit Lender's obligation to
make such payment to the Agent for account of the Issuing
Bank under this paragraph (e), and the Issuing Bank's right
to receive the same, shall, subject to the preceding
sentence, be absolute and unconditional and shall not be
affected by any circumstance whatsoever, including, without
limitation, the failure of any other Revolving Credit Lender
to make its payment under this paragraph (e), the financial
condition of any Obligor (or any other account party), the
existence of any Default or the termination of the
Commitments. Each such payment to the Issuing Bank shall be
made without any offset, abatement, withholding or reduction
whatsoever. If any Revolving Credit Lender shall default in
its obligation to make any such payment to the Agent for
account of the Issuing Bank, for so long as such default
shall continue the Agent may, at the request of the Issuing
Bank, withhold from any payments received by the Agent under
this Agreement for account of such Revolving Credit Lender
the amount so in default and, to the extent so withheld, pay
the same to the Issuing Bank in satisfaction of such
defaulted obligation.
(f) Upon the making of each payment by a Revolving
Credit Lender to the Issuing Bank pursuant to
paragraph (e) above in respect of any Letter of Credit, such
Lender shall, automatically and without any further action
on the part of the Agent, the Issuing Bank or such Lender,
acquire (i) a participation in an amount equal to such
payment in the Reimbursement Obligation owing to the Issuing
Bank by the Company hereunder and under the Letter of Credit
Documents relating to such Letter of Credit and (ii) a
participation in a percentage equal to such Xxxxxx's
Revolving Credit Commitment Percentage in any interest or
other amounts payable by the Company hereunder and under
such Letter of Credit Documents in respect of such
Reimbursement Obligation (other than the commissions,
charges, costs and expenses payable to the Issuing Bank
pursuant to paragraph (g) of this Section 2.03). Upon
receipt by the Issuing Bank from or for account of the
Company of any payment in respect of any Reimbursement
Obligation or any such interest or other amount (including
by way of setoff or application of proceeds of any
collateral security) the Issuing Bank shall promptly pay to
the Agent for account of each Revolving Credit Lender
entitled thereto, such Revolving Credit Lender's Revolving
Credit Commitment Percentage of such payment, each such
payment by the Issuing Bank to be made in the same money and
funds in which received by the Issuing Bank. In the event
any payment received by the Issuing Bank and so paid to the
Revolving Credit Lenders hereunder is rescinded or must
otherwise be returned by the Issuing Bank, each Revolving
Credit Lender shall, upon the request of the Issuing Bank
(through the Agent), repay to the Issuing Bank (through the
Agent) the amount of such payment paid to such Lender, with
interest at the rate specified in paragraph (j) of this
Section 2.03.
(g) The Company shall pay to the Agent for account of
each Revolving Credit Lender (ratably in accordance with
their respective Revolving Credit Commitment Percentages) a
letter of credit fee in respect of each Letter of Credit in
an amount equal to a rate per annum equal to the Letter of
Credit Fee Rate of the daily average undrawn amount of such
Letter of Credit for the period from and including the date
of issuance of such Letter of Credit (i) in the case of a
Letter of Credit that expires in accordance with its terms,
to and including such expiration date and (ii) in the case
of a Letter of Credit that is drawn in full or is otherwise
terminated other than on the stated expiration date of such
Letter of Credit, to but excluding the date such Letter of
Credit is drawn in full or is terminated (such fee to be
non-refundable, to be paid in arrears on each Quarterly Date
and on the Revolving Credit Commitment Termination Date and
to be calculated for any day after giving effect to any
payments made under such Letter of Credit on such day). In
addition, the Company shall pay to the Agent for account of
the Issuing Bank a fronting fee in respect of each Letter of
Credit in an amount equal to 1/4 of 1% per annum of the
daily average undrawn amount of such Letter of Credit for
the period from and including the date of issuance of such
Letter of Credit (i) in the case of a Letter of Credit that
expires in accordance with its terms, to and including such
expiration date and (ii) in the case of a Letter of Credit
that is drawn in full or is otherwise terminated other than
on the stated expiration date of such Letter of Credit, to
but excluding the date such Letter of Credit is drawn in
full or is terminated (such fee to be non-refundable, to be
paid in arrears on each Quarterly Date and on the Revolving
Credit Commitment Termination Date and to be calculated for
any day after giving effect to any payments made under such
Letter of Credit on such day) plus all commissions, charges,
costs and expenses in the amounts customarily charged by the
Issuing Bank from time to time in like circumstances with
respect to the issuance of each Letter of Credit and
drawings and other transactions relating thereto and as
shown in fee schedules provided by the Issuing Bank to the
Company.
(h) Promptly following the end of each calendar month,
the Issuing Bank shall deliver (through the Agent) to each
Revolving Credit Lender and the Company a notice describing
the aggregate amount of all Letters of Credit outstanding at
the end of the month. Upon the request of any Revolving
Credit Lender from time to time, the Issuing Bank shall
deliver any information reasonably requested by such Lender
with respect to each Letter of Credit then outstanding.
(i) The issuance by the Issuing Bank of each Letter of
Credit shall, in addition to the conditions precedent set
forth in Section 7 hereof, be subject to the conditions
precedent that (i) such Letter of Credit shall be in such
form, contain such terms and support such transactions as
shall be satisfactory to the Issuing Bank consistent with
its then current practices and procedures with respect to
letters of credit of the same type and (ii) the Company
shall have executed and delivered such applications,
agreements and other instruments relating to such Letter of
Credit as the Issuing Bank shall have reasonably requested
consistent with its then current practices and procedures
with respect to letters of credit of the same type, provided
that in the event of any conflict between any such
application, agreement or other instrument and the
provisions of this Agreement or any Security Document, the
provisions of this Agreement and the Security Documents
shall control.
(j) To the extent that any Revolving Credit Lender
shall fail to pay any amount required to be paid pursuant to
paragraph (e) or (f) of this Section 2.03 on the due date
therefor, such Lender shall pay interest to the Issuing Bank
(through the Agent) on such amount from and including such
due date to but excluding the date such payment is made at a
rate per annum equal to the Federal Funds Rate, provided
that if such Lender shall fail to make such payment to the
Issuing Bank within three Business Days of such due date,
then, retroactively to the due date, such Lender shall be
obligated to pay interest on such amount at the Post-Default
Rate.
(k) The issuance by the Issuing Bank of any
modification or supplement to any Letter of Credit hereunder
shall be subject to the same conditions applicable under
this Section 2.03 to the issuance of new Letters of Credit,
and no such modification or supplement shall be issued
hereunder unless either (i) the respective Letter of Credit
affected thereby would have complied with such conditions
had it originally been issued hereunder in such modified or
supplemented form or (ii) the Majority Revolving Credit
Lenders (if such conditions could have been amended with the
consent of the Majority Revolving Credit Lenders or all of
the Revolving Credit Lenders (if such conditions could only
have been amended with the consent of all Revolving Credit
Lenders) shall have consented thereto.
(l) Concurrently with the satisfaction of the
conditions precedent set forth in Section 7.01 hereof, all
letters of credit outstanding on the Effective Date under
the Existing Credit Agreement shall be deemed to be Letters
of Credit outstanding hereunder and the Revolving Credit
Lenders shall, automatically and without further action on
the part of the Agent, the Issuing Bank or such Revolving
Credit Lenders, acquire a participation interest in each
such letter of credit as if such letter of credit shall have
been issued hereunder.
The Company hereby indemnifies and holds harmless each Revolving
Credit Lender and the Agent from and against any and all claims,
damages, losses, liabilities, costs or expenses that such Lender
or the Agent may incur (or that may be claimed against such
Lender or the Agent by any Person whatsoever) by reason of or in
connection with the execution and delivery or transfer of or
payment or refusal to pay by the Issuing Bank under any Letter of
Credit; provided that the Company shall not be required to
indemnify any Lender or the Agent for any claims, damages,
losses, liabilities, costs or expenses to the extent, but only to
the extent, caused by (x) the willful misconduct or gross
negligence of the Issuing Bank in determining whether a request
presented under any Letter of Credit complied with the terms of
such Letter of Credit or (y) the Issuing Bank's failure to pay
under any Letter of Credit after the presentation to it of a
request strictly complying with the terms and conditions of such
Letter of Credit. Nothing in this Section 2.03 is intended to
limit the other obligations of the Company, any Lender, the
Issuing Bank or the Agent under this Agreement.
2.04 Changes of Commitments.
(a) The Company shall have the right at any time or
from time to time (i) to terminate or reduce the aggregate unused
amount of the Term Loan Commitments, (ii) so long as no Revolving
Credit Loans, Swingline Loans or Letter of Credit Liabilities are
outstanding, to terminate the Revolving Credit Commitments and
(iii) to reduce the aggregate unused amount of the Revolving
Credit Commitments (for which purpose use of the Revolving Credit
Commitments shall be deemed to include the aggregate amount of
Letter of Credit Liabilities); provided that (x) the Company
shall give notice of each such termination or reduction as
provided in Section 4.05 hereof, (y) each partial reduction shall
be in an aggregate amount at least equal to $5,000,000 (or a
larger multiple of $1,000,000) and (z) the aggregate amount of
the Revolving Credit Commitments shall at no time be less than
the aggregate outstanding principal amount of all Revolving
Credit Loans, Swing Line Loans and Letter of Credit Liabilities.
(b) Any portion of the Term Loan Commitments not used
on the Effective Date shall terminate automatically at the close
of business on the Effective Date.
(c) The Company shall have the right to terminate or
reduce the unused amount of the Swingline Commitment at any time
or from time to time on not less than three Business Days' prior
notice to the Agent (which shall promptly notify the Swingline
Lender and each Lender) of each such termination or reduction,
which notice shall specify the effective date thereof and the
amount of any such reduction (which shall be in integral
multiples of $100,000) and shall be irrevocable and effective
only upon receipt by the Agent.
(d) The Commitments of any Class (including the
Swingline Commitment) once terminated or reduced may not be
reinstated.
2.05 Commitment Fee. The Company shall pay to the
Agent for account of each Lender a commitment fee on the daily
average unused amount of each Term Loan Commitment and Revolving
Credit Commitment of such Lender (solely for which purpose the
aggregate amount of any Letter of Credit Liabilities shall be
deemed to be a pro rata (based on the Revolving Credit
Commitments) use of each Lender's Revolving Credit Commitment and
outstanding Swingline Loans shall not constitute the use of any
Lender's Revolving Credit Commitment other than the Swingline
Lender), for the period from and including the date of this
Agreement to but not including the earlier of the date such
Commitment terminates or is terminated, at a rate per annum for
any period from and including the date on which the Company shall
have delivered a certificate pursuant to clause (iii) of the last
paragraph of Section 9.01 hereof demonstrating in reasonable
detail (based upon financial statements for the fiscal period of
the Guarantor most recently ended that have been delivered to the
Lenders pursuant to Section 9.01(b) or (c) hereof or, in
connection with the Xxxxxxx Acquisition, on the Effective Date)
that the Pricing Leverage Ratio, as of the end of the respective
quarterly fiscal period or fiscal year, is within one of the
ranges set forth below, to but excluding the date of delivery of
the next such certificate, shall equal the percentage per annum
set forth below:
Ratio Commitment
Fee
Greater than 3.5 to 1 .50%
Less than or equal
to 3.5 to 1 .375%
; provided that, during any period when an Event of Default or
Default in delivery of the certificate pursuant to clause (iii)
of the last paragraph of Section 9.01 hereof shall have occurred
and be continuing, such rate per annum shall be .50%; and
provided, further, that until delivery of the first such
certificate such rate per annum shall be .50%.
Accrued commitment fees on each Commitment shall be payable
monthly on the last Business Day of each month and on the date
such Commitment terminates or is terminated.
2.06 Lending Offices. The Loans of each Class and
Type made by each Lender shall be made and maintained at such
Lender's Applicable Lending Office for Loans of such Class and
Type.
2.07 Several Obligations; Remedies Independent. The
failure of any Lender to make any Loan to be made by it on the
date specified therefor shall not relieve any other Lender of its
obligation to make its Loan on such date, but neither any Lender
nor the Agent shall be responsible for the failure of any other
Lender to make a Loan to be made by such other Lender, and
(except as otherwise provided in Section 4.06 hereof) no Lender
shall have any obligation to the Agent or any other Lender for
the failure by such Lender to make any Loan required to be made
by such Xxxxxx; provided that nothing in this sentence shall
limit the recourse of the Company against such Lender. The
amounts payable by the Company at any time hereunder to each
Lender shall be a separate and independent debt and each Lender
shall be entitled, subject to Section 10 hereof in the case of
any acceleration of Indebtedness hereunder or termination of any
Commitments, to protect and enforce its rights arising out of
this Agreement, and it shall not be necessary for any other
Lender or the Agent to consent to, or be joined as an additional
party in, any proceedings for such purposes.
2.08 Evidence of Debt; Registered Loans.
(a) Each Lender shall maintain in accordance with
its usual practice an account or accounts evidencing the
indebtedness of the Company to such Lender resulting from
each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from
time to time hereunder.
(b) The Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the
Class and Type thereof and the Interest Period (if any)
applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Company to
each Lender hereunder and (iii) the amount of any sum received by
the Agent hereunder for the account of the Lenders and each
Xxxxxx's share thereof.
(c) The entries made in the accounts maintained
pursuant to paragraph (a) or (b) of this Section shall (absent
manifest error) be prima facie evidence of the existence and
amounts of the obligations recorded therein; provided that the
failure of any Lender or the Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation
of the Company to repay the Loans in accordance with the terms of
this Agreement.
(d) Any Lender may request that Loans made by it be
evidenced by a promissory note. In such event, the Company shall
prepare, execute and deliver to such Lender a promissory note
payable to the order of such Lender (or, if requested by such
Lender, to such Lender and its registered assigns) and in a form
approved by the Agent. Thereafter, the Loans evidenced by such
promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 12.05) be
represented by one or more promissory notes in such form payable
to the order of the payee named therein (or, if such promissory
note is a registered note, to such payee and its registered
assigns).
(e) Notwithstanding the foregoing, any Term Loan
Lender that is not a U.S. Person and is not a "bank" within the
meaning of Section 881(c)(3)(A) of the Code may request the
Company (through the Agent), and the Company agrees thereupon, to
record on the Register referred to in Section 12.06(g) hereof any
Term Loans ("Registered Loans") held by such Lender under this
Agreement. A Term Loan once recorded on the Register may not be
removed from the Register so long as it remains outstanding.
(f) Each "Lender" under the Existing Credit Agreement
shall, as soon as practicable after the Effective Date, surrender
to the Company for cancellation any "Notes" (as defined in the
Existing Credit Agreement). No Loans hereunder shall be
evidenced by such Notes (which shall be deemed cancelled) and all
such Loans shall only be evidenced by the accounts referred to in
Section 2.08(a) hereof or the notes referred to in Section
2.08(d) hereof.
2.09 Optional Prepayments and Conversions or
Continuations of Loans. Subject to Section 4.04 hereof, the
Company shall have the right to prepay Loans, or to Convert
Revolving Credit Loans and Term Loans of one Type into Loans of
another Type or Continue Revolving Credit Loans and Term Loans of
one Type as Loans of the same Type, at any time or from time to
time, provided that: (a) the Company shall give the Agent (or,
in the case of the Swingline Loans, the Swingline Lender) notice
of each such prepayment, Conversion or Continuation as provided
in Section 4.05 hereof (and, upon the date specified in any such
notice of prepayment, the amount to be prepaid shall become due
and payable hereunder); (b) Eurodollar Loans may be Converted
only on the last day of an Interest Period for such Loans;
(c) prepayments by the Company of the Term Loans shall be applied
pro rata to the Tranche A Term Loans and the Tranche B Term
Loans; (d) prepayments by the Company of any Class of Term Loans
shall be applied to the remaining installments of such Term Loans
pro rata; (e) if any Swingline Loan is outstanding, the Revolving
Credit Loans may not be prepaid or converted; and (f) Swingline
Loans may not be Continued. Notwithstanding the foregoing, and
without limiting the rights and remedies of the Lenders under
Section 10 hereof, in the event that any Event of Default shall
have occurred and be continuing, the Agent may (and at the
request of the Majority Lenders shall) suspend the right of the
Company to Convert any Loan into a Eurodollar Loan, or to
Continue any Loan as a Eurodollar Loan, in which event all Loans
shall be Converted (on the last day(s) of the respective Interest
Periods therefor) or Continued, as the case may be, as Base Rate
Loans.
2.10 Mandatory Prepayments and Reductions of
Commitments.
(a) Borrowing Base. Until the Revolving Credit
Commitment Termination Date, the Company shall from time to time
prepay the Revolving Credit Loans and Swingline Loans (and/or
provide cover for Letter of Credit Liabilities as specified in
paragraph (h) below) in such amounts as shall be necessary so
that at all times the sum of the aggregate outstanding amount of
the Revolving Credit Loans, the aggregate outstanding amount of
Swingline Loans and the outstanding Letter of Credit Liabilities
shall not exceed the Borrowing Base, such amount to be applied,
first, to Swingline Loans outstanding and, second, to Revolving
Credit Loans outstanding and, third, as cover for Letter of
Credit Liabilities outstanding.
(b) Annual Cleanup. The Company shall from time to
time prior to the Revolving Credit Commitment Termination Date
prepay the Revolving Credit Loans and the Swingline Loans in such
amounts as shall be necessary so that, for a period of at least
30 consecutive days in each fiscal year of the Company, the
aggregate outstanding principal amount of the Revolving Credit
Loans together with the aggregate outstanding principal amount of
the Swingline Loans shall not exceed $250,000,000 or such other
greater amount as the Majority Lenders shall have agreed to,
after consideration thereof in good faith.
(c) Excess Cash Flow. Not later than the date 90 days
after the end of each fiscal year of the Company ending after the
date hereof, the Company shall prepay Loans (and/or provide cover
for Letter of Credit Liabilities as specified in paragraph (h)
below), and the Commitments shall be subject to automatic
reduction, without prepayment or commitment reduction premium
other than any amounts payable pursuant to Section 5.05 hereof,
in an aggregate amount equal to the excess of (A) the Required
Percentage (as defined below) of Excess Cash Flow for such fiscal
year over (B) the aggregate amount of prepayments of Term Loans
made during such fiscal year pursuant to Section 2.09 hereof and,
after the payment in full of the Term Loans, the aggregate amount
of voluntary reductions of Revolving Credit Commitments made
during such fiscal year pursuant to Section 2.04(c) hereof, such
prepayment and reduction to be effected in each case in the
manner and to the extent specified in paragraph (g) of this
Section 2.10. "Required Percentage" of Excess Cash Flow for any
fiscal year shall mean (i) if the Debt to Cash Flow Ratio as of
the last day of such fiscal year is less than 3 to 1, 50% and
(ii) otherwise, 75%.
(d) Equity Issuance. If, at any time after the
Effective Date, the Guarantor or any of its Subsidiaries shall
receive Net Available Proceeds from one or more Equity Issuances,
including all prior Equity Issuances as to which a prepayment has
not yet been made under this Section 2.10(d), the Company shall,
within three Business Days of receipt of such Net Available
Proceeds, prepay Loans (and/or provide cover for Letter of Credit
Liabilities as specified in paragraph (h) below), and the
Commitments shall be subject to automatic reduction, in an
aggregate amount equal to the aggregate amount of such Available
Equity Proceeds, such prepayment to be effected in each case in
the manner and to the extent specified in paragraph (g) of this
Section 2.10; provided that notwithstanding the foregoing, the
Guarantor may (x) within 90 days from the receipt thereof use up
to $50,000,000 (or such lesser amount as shall equal the
difference between $50,000,000 and the amount of Net Available
Proceeds received from any Equity Issuance (other than the
Primary Offering) not applied to a prepayment under this Section
2.10(d)) of Net Available Proceeds to finance Permitted
Acquisitions, (y) apply Net Available Proceeds from the Primary
Offering in accordance with Section 9.09(d) hereof and (z)
receive up to $15,000,000 in Net Available Proceeds from issuing
equity to satisfy its obligations under warrants and stock
options without having to prepay Loans.
(e) Sale of Assets. Without limiting the obligation
of the Company to obtain the consent of the Majority Lenders
pursuant to Section 9.05 hereof to any Disposition not otherwise
permitted hereunder, in the event that the Net Available Proceeds
of any Disposition (herein, the "Current Disposition"), and of
all prior Dispositions as to which a prepayment has not yet been
made under this Section 2.10(e), shall exceed $15,000,000 then,
no later than five Business Days prior to the occurrence of the
Current Disposition, the Company will deliver to the Lenders a
statement, certified by a Responsible Officer of the Company, in
form and detail satisfactory to the Agent, of the amount of the
anticipated Net Available Proceeds of the Current Disposition and
of all such prior Dispositions as to which a prepayment has not
yet been made under this Section 2.10(e) and will prepay, upon
receipt of such Net Available Proceeds, Loans (and/or provide
cover for Letter of Credit Liabilities as specified in
paragraph (h) below), and the Commitments shall be subject to
automatic reduction, in an aggregate amount equal to 100% of the
Net Available Proceeds of the Current Disposition and such prior
Dispositions as to which a prepayment has not been made under
this Section 2.10(e) in excess of $15,000,000, such prepayment
and reduction to be effected in each case in the manner and to
the extent specified in paragraph (g) of this Section 2.10.
Notwithstanding the foregoing, the Disposition for fair value of
any Part A Property shall not be a "Disposition" for purposes of
the preceding sentence. If, however, any Part B Property is
disposed of within one year prior to or after the Disposition of
Part A Property located in the same geographical area, the
Company shall, within one year of the last of such Dispositions,
apply the Net Available Proceeds of such Dispositions to (i) the
purchase or construction of a replacement facility or (ii) the
prepayment of the Loans (and/or the provision of cover for Letter
of Credit Liabilities as specified in paragraph (h) below) and
the reduction of Commitments as provided above.
(f) Casualty Events. After the occurrence of any
Casualty Event (other than any Casualty Event with respect only
to Property covered by the Mortgages) resulting in a loss in
excess of $500,000, the Company shall give prompt notice thereof
to the Agent and the Lenders. If no Default has occurred and is
continuing, the Company may, at its option, to be exercised by
delivery of notice to the Agent and the Lenders within four
months of such Casualty Event, elect to apply the Net Available
Proceeds of such Casualty Event to either (i) the repair or
replacement of the Property affected thereby or (ii) the
prepayment of the Loans (and/or the provision of cover for Letter
of Credit Liabilities as specified in paragraph (g) of this
Section 2.10). If a Default has occurred and is continuing, or
if the Company fails to make such an election within four months
from the date of any such Casualty Event, such Net Available
Proceeds shall automatically be applied to the prepayment of the
Loans (and/or the provision of cover for Letter of Credit
Liabilities as specified in paragraph (g) of this Section 2.10).
If the Company elects to so repair or replace the Property
subject to such Casualty Event, the Net Available Proceeds of
such Casualty Event in excess of $500,000 shall be held by the
Agent to be applied to such repair or replacement and advanced to
the Company in periodic installments upon compliance by the
Company with such reasonable conditions as may be imposed by the
Agent, including, but not limited to, reasonable retentions and
lien releases. Interest, if any, actually earned on any Net
Available Proceeds held by the Agent shall be credited to such
Net Available Proceeds, for the benefit of the Company.
(g) Application. Prepayments and reductions of
Commitments described in the above paragraphs of this
Section 2.10 (other than in paragraph (a) or (b) above) shall be
effected as follows:
(i) first, the amount of the prepayment specified in
such paragraphs shall be applied to the Term Loans, pro rata
between each Class of Term Loans and, as to each Class, pro
rata to the remaining installments thereof; and
(ii) second, the Revolving Credit Commitments shall be
automatically reduced in an amount equal to the amount by
which the aggregate amount of the prepayments and reductions
of Commitments provided for in paragraphs (c), (d), (e) and
(f) above exceed any excess over the amount referred to in
the foregoing clause (i) (and to the extent that, after
giving effect to such reduction of Commitments, the
aggregate principal amount of Revolving Credit Loans,
together with the aggregate principal amount of the
Swingline Loans and the aggregate amount of all Letter of
Credit Liabilities, would exceed the Revolving Credit
Commitments, the Company shall, first, prepay Swingline
Loans, second, prepay Revolving Credit Loans and, third,
provide cover for Letter of Credit Liabilities as specified
in paragraph (h) below, in an aggregate amount equal to such
excess).
(h) Cover for Letter of Credit Liabilities. In the
event that the Company shall be required pursuant to this
Section 2.10, or pursuant to Section 10 hereof, to provide cover
for Letter of Credit Liabilities, the Company shall effect the
same by paying to the Agent immediately available funds in an
amount equal to the required amount, which funds shall be
retained by the Agent in the Collateral Account (as provided
therein as collateral security in the first instance for the
Letter of Credit Liabilities) until such time as the Letters of
Credit shall have been terminated and all of the Letter of Credit
Liabilities paid in full.
Section 3. Payments of Principal and Interest.
3.01 Repayment of Loans.
(a) Revolving Credit Loans. The Company hereby
promises to pay to the Agent for account of each Revolving Credit
Lender the entire outstanding principal amount of such Xxxxxx's
Revolving Credit Loans, and each Revolving Credit Loan shall
mature, on the Revolving Credit Commitment Termination Date.
(b) Tranche A Term Loans. The Company hereby promises
to pay to the Agent for account of the Tranche A Term Loan
Lenders the aggregate principal amount of the Tranche A Term
Loans in twenty (20) consecutive installments payable on each
Quarterly Date, beginning on December 31, 1996, the first four
(4) of which shall each be in the aggregate amount of $5,625,000,
the next four (4) of which shall each be in the aggregate amount
of $6,250,000, the next four (4) of which shall each be in the
aggregate amount of $7,500,000, the next four (4) of which shall
each be in the aggregate amount of $8,750,000 and the last four
(4) of which shall each be in the aggregate amount of $9,375,000.
(c) Tranche B Term Loans. The Company hereby promises
to pay to the Agent for account of the Tranche B Term Loan
Lenders the aggregate principal amount of the Tranche B Term
Loans in twenty-eight (28) consecutive quarterly installments
payable on each Quarterly Date beginning December 31, 1996, the
first twenty (20) of which shall each be in the aggregate amount
of $250,000 and the last eight (8) of which shall each be in the
aggregate amount of $7,500,000.
3.02 Interest. The Company hereby promises to pay to
the Agent for account of each Lender interest on the unpaid
principal amount of each Loan (including any Swingline Loan) made
by such Lender for the period from and including the date of such
Loan to but excluding the date such Loan shall be paid in full,
at the following rates per annum:
(a) during such periods as such Loan is a Base Rate
Loan (other than a Swingline Loan), the Base Rate (as in
effect from time to time) plus the Applicable Margin,
(b) during such periods as such Loan is a Eurodollar
Loan, for each Interest Period relating thereto, the
Eurodollar Rate for such Loan for such Interest Period plus
the Applicable Margin, and
(c) if such Loan is a Swingline Loan, the Swingline
Rate (as in effect from time to time) plus the Applicable
Margin (determined as if such Swingline Loans were Revolving
Credit Loans that were Base Rate Loans).
Notwithstanding the foregoing, the Company hereby promises to pay
to the Agent for account of each Lender interest at the
applicable Post-Default Rate on any principal of any Loan made by
such Lender, on any Reimbursement Obligation owed to such Lender
and on any other amount payable by the Company hereunder to or
for account of such Lender, that shall not be paid in full when
due (whether at stated maturity, by acceleration, by mandatory
prepayment or otherwise), for the period from and including the
due date thereof to but excluding the date the same is paid in
full. Accrued interest on each Loan shall be payable (i) in the
case of a Base Rate Loan, quarterly on the Quarterly Dates,
(ii) in the case of a Eurodollar Loan, on the last day of each
Interest Period therefor and, if such Interest Period is longer
than three months, at three-month intervals following the first
day of such Interest Period, (iii) in the case of a Swingline
Loan, on the last day of each calendar month during which such
Swingline Loan shall be outstanding, and (iv) in the case of any
Loan (including any Swingline Loan), upon the payment or
prepayment thereof or the Conversion of such Loan to a Loan of
another Type (but only on the principal amount so paid, prepaid
or Converted), except that interest payable at the Post-Default
Rate shall be payable from time to time on demand. Promptly
after the determination of any interest rate provided for herein
or any change therein, the Agent shall give notice thereof to the
Lenders to which such interest is payable and to the Company.
Section 4. Payments; Pro Rata Treatment; Computations; Etc.
4.01 Payments.
(a) Except to the extent otherwise provided herein,
all payments of principal, interest, Reimbursement Obligations
and other amounts to be made by the Obligors under this
Agreement, and, except to the extent otherwise provided therein,
all payments to be made by the Obligors under any other Basic
Document, shall be made in Dollars, in immediately available
funds, without deduction, set-off or counterclaim, to the Agent
at an account designated by the Agent with Chase at the Principal
Office, not later than 1:00 p.m. New York time on the date on
which such payment shall become due (each such payment made after
such time on such due date to be deemed to have been made on the
next succeeding Business Day).
(b) Any Lender for whose account any such payment is
to be made may (but shall not be obligated to) debit the amount
of any such payment that is not made by such time to any ordinary
deposit account of either Obligor with such Lender (with notice
to such Obligor and the Agent).
(c) Each Obligor shall, at the time of making each
payment under this Agreement for account of any Lender, specify
to the Agent (which shall so notify the intended recipient(s)
thereof) the Loans, Reimbursement Obligations or other amounts
payable hereunder to which such payment is to be applied (and in
the event that such Obligor fails to so specify, or if an Event
of Default has occurred and is continuing, such payment shall be,
subject to Section 4.02 hereof, applied first to the Swingline
Lender (to the extent any amounts are then due and payable to the
Swingline Lender on account of any Swingline Loan) and then in
payment of amounts due under this Agreement in such manner as the
Agent or the Majority Lenders, subject to Section 4.02 hereof,
may determine to be appropriate).
(d) Except to the extent otherwise provided in the
last sentence of Section 2.03(e) hereof, each payment received by
the Agent under this Agreement for account of any Lender shall be
paid by the Agent promptly to such Lender, in immediately
available funds, for account of such Xxxxxx's Applicable Lending
Office for the Loan or other obligation in respect of which such
payment is made.
(e) Except to the extent otherwise provided herein, if
the due date of any payment under this Agreement would otherwise
fall on a day that is not a Business Day, such date shall be
extended to the next succeeding Business Day, and interest shall
be payable for any principal so extended for the period of such
extension.
4.02 Pro Rata Treatment. Except to the extent
otherwise provided herein: (a) each borrowing of Loans of a
particular Class from the Lenders under Section 2.01 hereof shall
be made from the relevant Lenders, each payment of commitment fee
under Section 2.05 hereof in respect of the Commitments of a
particular Class shall be made for account of the relevant
Lenders, and each termination or reduction of the amount of the
Commitments of a particular Class under Section 2.04 hereof shall
be applied to the respective Commitments of such Class of the
relevant Lenders, pro rata according to the amounts of their
respective Commitments of such Class; (b) except as otherwise
provided in Section 5.04 hereof, Eurodollar Loans of any Class
having the same Interest Period shall be allocated pro rata among
the relevant Lenders according to the amounts of their respective
Revolving Credit and Term Loan Commitments (in the case of the
making of Loans and Revolving Credit Loans made to refinance
Swingline Loans) or their respective Revolving Credit and Term
Loans (in the case of Conversions and Continuations of Loans);
(c) each payment or prepayment of principal of Loans of a
particular Class shall be made for account of the relevant
Lenders pro rata in accordance with the respective unpaid
principal amounts of the Loans of such Class held by them; and
(d) each payment of interest on Loans of a particular Class shall
be made for account of the relevant Lenders pro rata in
accordance with the amounts of interest on such Loans then due
and payable to the respective Lenders. Notwithstanding the
foregoing, borrowings, payments and prepayments of Swingline
Loans shall be made without regard to the foregoing provisions of
this Section 4.02.
4.03 Computations. Interest on Eurodollar Loans and
Reimbursement Obligations and commitment fees and letter of
credit fees shall be computed on the basis of a year of 360 days
and actual days elapsed (including the first day but, except as
otherwise provided in Section 2.03(g) hereof, excluding the last
day) occurring in the period for which payable and interest on
Base Rate Loans shall be computed on the basis of a year of 365
or 366 days, as the case may be, and actual days elapsed
(including the first day but excluding the last day) occurring in
the period for which payable. Notwithstanding the foregoing, for
each day that the Base Rate is calculated by reference to the
Federal Funds Rate, interest on Base Rate Loans shall be computed
on the basis of a year of 360 days and actual days elapsed.
4.04 Minimum Amounts. Except for mandatory
prepayments made pursuant to Section 2.10 hereof and Conversions
or prepayments made pursuant to Section 5.04 hereof, and each
borrowing, Conversion and partial prepayment of principal of
Loans (other than Swingline Loans and Revolving Credit Loans made
to refinance Swingline Loans) shall be in an aggregate amount at
least equal to $5,000,000 or a larger multiple of $1,000,000
(borrowings, Conversions or prepayments of or into Loans of
different Types or, in the case of Eurodollar Loans, having
different Interest Periods at the same time hereunder to be
deemed separate borrowings, Conversions and prepayments for
purposes of the foregoing, one for each Type or Interest Period),
provided that the aggregate principal amount of Eurodollar Loans
having the same Interest Period shall be in an amount at least
equal to $10,000,000 or a larger multiple of $1,000,000 and, if
any Eurodollar Loans would otherwise be in a lesser principal
amount for any period, such Loans shall be Base Rate Loans during
such period. Each borrowing of Swingline Loans pursuant to
Section 2.01(d) hereof shall be in an aggregate amount at least
equal to $500,000 or in multiples of $100,000 in excess thereof
and each partial prepayment of Swingline Loans shall be in an
aggregate amount at least equal to $100,000 or in multiples of
$100,000 in excess thereof.
4.05 Certain Notices. Notices by the Company to the
Agent of terminations or reductions of the Commitments, of
borrowings, Conversions, Continuations and optional prepayments
of Loans and of Classes of Loans, of Types of Loans and of the
duration of Interest Periods shall be irrevocable and shall be
effective only if received by the Agent (or the Swingline Lender,
as the case may be) not later than 11:00 a.m. (in the case of
notices in respect of Eurodollar Loans), 12:00 noon (in the case
of notices in respect of Base Rate Loans) and 2:00 p.m. (in the
case of notices in respect of Swingline Loans), New York time, on
the number of Business Days prior to the date of the relevant
termination, reduction, borrowing, Conversion, Continuation or
prepayment or the first day of such Interest Period specified
below:
Number of
Business
Notice Days Prior
Termination or reduction
of Commitments 3
Borrowing or prepayment of,
or Conversions into,
Base Rate Loans same day
Borrowing or prepayment of,
Conversions into, Continuations
as, or duration of Interest
Period for, Eurodollar Loans 3
Borrowing or prepayment of
Swingline Loans or termination
or reduction of Swingline
Commitment same day
Each such notice of termination or reduction shall specify the
amount and the Class of the Commitments to be terminated or
reduced. Each such notice of borrowing, Conversion, Continuation
or optional prepayment shall specify the Class of Loans to be
borrowed, Converted, Continued or prepaid and the amount (subject
to Section 4.04 hereof) and Type of each Loan to be borrowed,
Converted, Continued or prepaid and the date of borrowing,
Conversion, Continuation or optional prepayment (which shall be a
Business Day). Each such notice of the duration of an Interest
Period shall specify the Loans to which such Interest Period is
to relate. The Agent shall promptly notify the Lenders of the
contents of each such notice. In the event that the Company
fails to select the Type of Loan, or the duration of any Interest
Period for any Eurodollar Loan, within the time period and
otherwise as provided in this Section 4.05, such Loan (if
outstanding as a Eurodollar Loan) will be automatically Converted
into a Base Rate Loan on the last day of the then current
Interest Period for such Loan or (if outstanding as a Base Rate
Loan) will remain as, or (if not then outstanding) will be made
as, a Base Rate Loan.
4.06 Non-Receipt of Funds by the Agent. Unless the
Agent shall have been notified by a Lender or the Company (the
"Payor") prior to the date on which the Payor is to make payment
to the Agent of (in the case of a Lender) the proceeds of a Loan
to be made by such Lender hereunder or (in the case of the
Company) a payment to the Agent for account of one or more of the
Lenders hereunder (such payment being herein called the "Required
Payment"), which notice shall be effective upon receipt, that the
Payor does not intend to make the Required Payment to the Agent,
the Agent may assume that the Required Payment has been made and
may, in reliance upon such assumption (but shall not be required
to), make the amount thereof available to the intended
recipient(s) on such date; and, if the Payor has not in fact made
the Required Payment to the Agent, the recipient(s) of such
payment shall, on demand, 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 (the "Advance Date")
such amount was so made available by the Agent until the date the
Agent recovers such amount at a rate per annum equal to the
Federal Funds Rate for such day and, if such recipient(s) shall
fail promptly to make such payment, the Agent shall be entitled
to recover such amount, on demand, from the Payor, together with
interest as aforesaid, provided that if neither the recipient(s)
nor the Payor shall return the Required Payment to the Agent
within three Business Days of the Advance Date, then,
retroactively to the Advance Date, the Payor and the recipient(s)
shall each be obligated to pay interest on the Required Payment
as follows:
(i) if the Required Payment shall represent a payment
to be made by the Company to the Lenders, the Company and
the recipient(s) shall each be obligated retroactively to
the Advance Date to pay interest in respect of the Required
Payment at the Post-Default Rate (without duplication of the
obligation of the Company under Section 3.02 hereof to pay
interest on the Required Payment at the Post-Default Rate),
it being understood that the return by the recipient(s) of
the Required Payment to the Agent shall not limit such
obligation of the Company under said Section 3.02 to pay
interest at the Post-Default Rate in respect of the Required
Payment and
(ii) if the Required Payment shall represent proceeds
of a Loan to be made by the Lenders to the Company, the
Payor and the Company shall each be obligated retroactively
to the Advance Date to pay interest in respect of the
Required Payment pursuant to Section 3.02 hereof, it being
understood that the return by the Company of the Required
Payment to the Agent shall not limit any claim the Company
may have against the Payor in respect of such Required
Payment.
4.07 Sharing of Payments, Etc.
(a) Each Obligor agrees that, in addition to (and
without limitation of) any right of set-off, banker's lien or
counterclaim a Lender may otherwise have, each Lender shall be
entitled, at its option (to the fullest extent permitted by law),
to set off and apply any deposit (general or special, time or
demand, provisional or final), or other indebtedness, held by it
for the credit or account of such Obligor at any of its offices,
in Dollars or in any other currency, against any principal of or
interest on any of such Lender's Loans, Reimbursement Obligations
or any other amount payable to such Lender hereunder, that is not
paid when due (regardless of whether such deposit or other
indebtedness are then due to such Obligor), in which case it
shall promptly notify such Obligor and the Agent thereof,
provided that such Lender's failure to give such notice shall not
affect the validity thereof.
(b) If any Lender shall obtain from any Obligor
payment of any principal of or interest on any Loan of any Class
or Letter of Credit Liability owing to it or in respect of its
interest in any Swingline Loan or payment of any other amount
under this Agreement or any other Basic Document through the
exercise of any right of set-off, banker's lien or counterclaim
or similar right or otherwise (other than from the Agent as
provided herein), and, as a result of such payment, such Lender
shall have received a greater percentage of the principal of or
interest on the Loans of such Class or Letter of Credit
Liabilities or in respect of its interest in any Swingline Loan
or such other amounts then due hereunder or thereunder by such
Obligor to such Lender than the percentage received by any other
Lender, it shall promptly purchase from such other Lenders
participations in (or, if and to the extent specified by such
Lender, direct interests in) the Loans of such Class or Letter of
Credit Liabilities or such other amounts, respectively, owing to
such other Lenders (or in interest due thereon, as the case may
be) in such amounts, and make such other adjustments from time to
time as shall be equitable, to the end that all the Lenders shall
share the benefit of such excess payment (net of any expenses
that may be incurred by such Lender in obtaining or preserving
such excess payment) pro rata in accordance with the unpaid
principal of and/or interest on the Loans of such Class, interest
in the Swingline Loans or Letter of Credit Liabilities or such
other amounts, respectively, owing to each of the Lenders. To
such end all the Lenders shall make appropriate adjustments among
themselves (by the resale of participations sold or otherwise) if
such payment is rescinded or must otherwise be restored.
(c) Each Obligor agrees that any Lender so purchasing
such a participation (or direct interest) may exercise all rights
of set-off, banker's lien, counterclaim or similar rights with
respect to such participation as fully as if such Lender were a
direct holder of Loans or other amounts (as the case may be)
owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender
to exercise any such right or shall affect the right of any
Lender to exercise, and retain the benefits of exercising, any
such right with respect to any other indebtedness or obligation
of any Obligor. If, under any applicable bankruptcy, insolvency
or other similar law, any Lender receives a secured claim in lieu
of a set-off to which this Section 4.07 applies, such Lender
shall, to the extent practicable, exercise its rights in respect
of such secured claim in a manner consistent with the rights of
the Lenders entitled under this Section 4.07 to share in the
benefits of any recovery on such secured claim.
Section 5. Yield Protection, Etc.
5.01 Additional Costs.
(a) The Company shall pay directly to each Lender from
time to time such amounts as such Lender may determine to be
reasonably necessary to compensate such Lender for any costs that
such Lender determines, in good faith, are attributable to its
making or maintaining of any Eurodollar Loans or its obligation
to make any Eurodollar Loans hereunder, or any reduction in any
amount receivable by such Lender hereunder in respect of any of
such Eurodollar Loans or such obligation (such increases in costs
and reductions in amounts receivable being herein called
"Additional Costs"), resulting from any Regulatory Change that:
(i) shall subject any Lender (or its Applicable
Lending Office for any of such Loans) to any tax, duty or
other charge in respect of such Loans or changes the basis
of taxation of any amounts payable to such Lender under this
Agreement in respect of any of such Loans (excluding changes
in the rate of tax on the overall net income of such Lender
or of such Applicable Lending Office by the jurisdiction in
which such Lender has its principal office or such
Applicable Lending Office); or
(ii) imposes or modifies any reserve, special deposit
or similar requirements (other than the Reserve Requirement
utilized in the determination of the Eurodollar Rate for
such Loan) relating to any extensions of credit or other
assets of, or any deposits with or other liabilities of,
such Lender (including, without limitation, any of such
Loans or any deposits referred to in the definition of
"Eurodollar Base Rate" in Section 1.01 hereof), or any
commitment of such Lender (including, without limitation,
the Commitments of such Xxxxxx xxxxxxxxx); or
(iii) imposes any other condition affecting this
Agreement (or any of such extensions of credit or
liabilities) or its Commitments.
If any Lender requests compensation from the Company under this
Section 5.01(a), the Company may, by notice to such Lender (with
a copy to the Agent), suspend the obligation of such Lender
thereafter to make or Continue Eurodollar Loans, or to Convert
Base Rate Loans into Eurodollar Loans, until the Regulatory
Change giving rise to such request ceases to be in effect (in
which case the provisions of Section 5.04 hereof shall be
applicable), provided that such suspension shall not affect the
right of such Lender to receive the compensation so requested.
(b) Without limiting the effect of the provisions of
paragraph (a) of this Section 5.01 (but without duplication), in
the event that, by reason of any Regulatory Change, any Lender
either (i) incurs Additional Costs based on or measured by the
excess above a specified level of the amount of a category of
deposits or other liabilities of such Lender that includes
deposits by reference to which the interest rate on Eurodollar
Loans is determined as provided in this Agreement or a category
of extensions of credit or other assets of such Lender that
includes Eurodollar Loans or (ii) becomes subject to restrictions
on the amount of such a category of liabilities or assets that it
may hold, then, if such Lender so elects by notice to the Company
(with a copy to the Agent), the obligation of such Lender to make
or Continue, or to Convert Base Rate Loans into, Eurodollar Loans
hereunder shall be suspended until such Regulatory Change ceases
to be in effect (in which case the provisions of Section 5.04
hereof shall be applicable).
(c) Without limiting the effect of the foregoing
provisions of this Section 5.01 (but without duplication), the
Company shall pay directly to each Lender from time to time on
request such amounts as such Lender may determine to be necessary
to compensate such Lender (or, without duplication, the bank
holding company of which such Lender is a subsidiary) for any
costs that it determines are attributable to the maintenance by
such Lender (or any Applicable Lending Office or such bank
holding company), pursuant to any law or regulation or any
interpretation, directive or request (whether or not having the
force of law and whether or not failure to comply therewith would
be unlawful) of any court or governmental or monetary authority
(i) following any Regulatory Change or (ii) implementing any
risk-based capital guideline or other requirement (whether or not
having the force of law and whether or not the failure to comply
therewith would be unlawful) hereafter issued by any government
or governmental or supervisory authority implementing at the
national level the Basle Accord (including, without limitation,
the Final Risk-Based Capital Guidelines of the Board of Governors
of the Federal Reserve System (12 C.F.R. Part 208, Appendix A;
12 C.F.R. Part 225, Appendix A) and the Final Risk-Based Capital
Guidelines of the Office of the Comptroller of the Currency
(12 C.F.R. Part 3, Appendix A)), of capital in respect of its
Commitments or Loans (such compensation to include, without
limitation, an amount equal to any reduction of the rate of
return on assets or equity of such Lender (or any Applicable
Lending Office or such bank holding company) to a level below
that which such Lender (or any Applicable Lending Office or such
bank holding company) could have achieved but for such law,
regulation, interpretation, directive or request). For purposes
of this Section 5.01(c) and Section 5.06 hereof, "Basle Accord"
shall mean the proposals for risk-based capital framework
described by the Basle Committee on Banking Regulations and
Supervisory Practices in its paper entitled "International
Convergence of Capital Measurement and Capital Standards" dated
July 1988, as amended, modified and supplemented and in effect
from time to time or any replacement thereof.
(d) Each Lender shall notify the Company of any event
occurring after the date hereof entitling such Lender to
compensation under paragraph (a) or (c) of this Section 5.01 as
promptly as practicable, but in any event within 45 days, after
such Lender obtains actual knowledge thereof; provided that
(i) if any Lender fails to give such notice within 45 days after
it obtains actual knowledge of such an event, such Lender shall,
with respect to compensation payable pursuant to this
Section 5.01 in respect of any costs resulting from such event,
only be entitled to payment under this Section 5.01 for costs
incurred from and after the date 45 days prior to the date that
such Lender does give such notice and (ii) each Lender will
designate a different Applicable Lending Office for the Loans of
such Lender affected by such event if such designation will avoid
the need for, or reduce the amount of, such compensation and will
not, in the sole opinion of such Lender, be disadvantageous to
such Lender, except that such Lender shall have no obligation to
designate an Applicable Lending Office located in the United
States of America. Each Lender will furnish to the Company a
certificate setting forth the basis and amount of each request by
such Lender for compensation under paragraph (a) or (c) of this
Section 5.01. Determinations and allocations by any Lender for
purposes of this Section 5.01 of the effect of any Regulatory
Change pursuant to paragraph (a) or (b) of this Section 5.01, or
of the effect of capital maintained pursuant to paragraph (c) of
this Section 5.01, on its costs or rate of return of maintaining
Loans or its obligation to make Loans, or on amounts receivable
by it in respect of Loans, and of the amounts required to
compensate such Lender under this Section 5.01, shall be
conclusive, provided that such determinations and allocations are
made on a good faith reasonable basis.
5.02 Limitation on Types of Loans. Anything herein to
the contrary notwithstanding, if, on or prior to the
determination of any Eurodollar Base Rate for any Interest
Period:
(a) the Agent determines, which determination shall be
conclusive if made in good faith, that quotations of
interest rates for the relevant deposits referred to in the
definition of "Eurodollar Base Rate" in Section 1.01 hereof
are not being provided in the relevant amounts or for the
relevant maturities for purposes of determining rates of
interest for Eurodollar Loans as provided herein; or
(b) if the related Loans are Revolving Credit Loans,
the Majority Revolving Credit Lenders or, if the related
Loans are Term Loans, the Majority Term Lenders determine,
which determination shall be conclusive if made in good
faith, and notify the Agent that the relevant rates of
interest referred to in the definition of "Eurodollar Base
Rate" in Section 1.01 hereof upon the basis of which the
rate of interest for Eurodollar Loans for such Interest
Period is to be determined are not likely adequately to
cover the cost to such Lenders of making or maintaining
Eurodollar Loans for such Interest Period;
then the Agent shall give the Company and each Lender prompt
notice thereof and, so long as such condition remains in effect,
the Lenders shall be under no obligation to make additional
Eurodollar Loans, to Continue Eurodollar Loans or to Convert Base
Rate Loans into Eurodollar Loans, and the Company shall, on the
last day(s) of the then current Interest Period(s) for the
outstanding Eurodollar Loans, either prepay such Loans or Convert
such Loans into Base Rate Loans in accordance with Section 2.09
hereof.
5.03 Illegality. Notwithstanding any other provision
of this Agreement, in the event that it becomes unlawful for any
Lender or its Applicable Lending Office to honor its obligation
to make or maintain Eurodollar Loans hereunder (and, in the sole
opinion of such Lender, the designation of a different Applicable
Lending Office would either not avoid such unlawfulness or would
be disadvantageous to such Lender), then such Lender shall
promptly notify the Company thereof (with a copy to the Agent)
and such Xxxxxx's obligation to make or Continue, or to Convert
Loans of any other Type into, Eurodollar Loans shall be suspended
until such time as such Lender may again make and maintain
Eurodollar Loans (in which case the provisions of Section 5.04
hereof shall be applicable).
5.04 Treatment of Affected Loans. If the obligation
of any Lender to make Eurodollar Loans or to Continue, or to
Convert Base Rate Loans into, Eurodollar Loans shall be suspended
pursuant to Section 5.01 or 5.03 hereof, such Xxxxxx's Eurodollar
Loans shall be automatically Converted into Base Rate Loans on
the last day(s) of the then current Interest Period(s) for
Eurodollar Loans (or, in the case of a Conversion required by
Section 5.01(b) or 5.03 hereof, on such earlier date as such
Lender may specify to the Company with a copy to the Agent) and,
unless and until such Lender gives notice as provided below that
the circumstances specified in Section 5.01 or 5.03 hereof that
gave rise to such Conversion no longer exist:
(a) to the extent that such Xxxxxx's Eurodollar Loans
have been so Converted, all payments and prepayments of
principal that would otherwise be applied to such Lender's
Eurodollar Loans shall be applied instead to its Base Rate
Loans; and
(b) all Loans that would otherwise be made or
Continued by such Lender as Eurodollar Loans shall be made
or Continued instead as Base Rate Loans, and all Base Rate
Loans of such Lender that would otherwise be Converted into
Eurodollar Loans shall remain as Base Rate Loans.
If such Lender gives notice to the Company with a copy to the
Agent that the circumstances specified in Section 5.01 or 5.03
hereof that gave rise to the Conversion of such Xxxxxx's
Eurodollar Loans pursuant to this Section 5.04 no longer exist
(which such Xxxxxx agrees to do promptly upon such circumstances
ceasing to exist) at a time when Eurodollar Loans made by other
Lenders are outstanding, such Xxxxxx's Base Rate Loans shall be
automatically Converted, on the first day(s) of the next
succeeding Interest Period(s) for such outstanding Eurodollar
Loans, to the extent necessary so that, after giving effect
thereto, all Loans held by the Lenders holding Eurodollar Loans
and by such Lender are held pro rata (as to principal amounts,
Types and Interest Periods) in accordance with their respective
Commitments.
5.05 Compensation. The Company shall pay to the Agent
for account of each Lender, upon the request of such Lender
through the Agent, such amount or amounts as shall be sufficient
(in the reasonable opinion of such Lender) to compensate it for
any loss, cost or expense that such Lender determines is
attributable to:
(a) any payment, mandatory or optional prepayment or
Conversion of a Eurodollar Loan made by such Lender for any
reason (including, without limitation, the acceleration of
the Loans pursuant to Section 10 hereof) on a date other
than the last day of the Interest Period for such Loan; or
(b) any failure by the Company for any reason
(including, without limitation, the failure of any of the
conditions precedent specified in Section 7 hereof to be
satisfied) to borrow a Eurodollar Loan from such Lender on
the date for such borrowing specified in the relevant notice
of borrowing given pursuant to Section 2.02 hereof.
Without limiting the effect of the preceding sentence, such
compensation shall include an amount equal to the excess, if any,
of (i) the amount of interest that otherwise would have accrued
on the principal amount so paid, prepaid, Converted or not
borrowed for the period from the date of such payment,
prepayment, Conversion or failure to borrow to the last day of
the then current Interest Period for such Loan (or, in the case
of a failure to borrow, the Interest Period for such Loan that
would have commenced on the date specified for such borrowing) at
the applicable rate of interest for such Loan provided for herein
over (ii) the amount of interest that otherwise would have
accrued on such principal amount at a rate per annum equal to the
interest component of the amount such Lender would have bid in
the London interbank market for Dollar deposits of leading banks
in amounts comparable to such principal amount and with
maturities comparable to such period (as reasonably determined by
such Lender).
5.06 Additional Costs in Respect of Letters of Credit.
Without limiting the obligations of the Company under
Section 5.01 hereof (but without duplication), if as a result of
any Regulatory Change or any risk-based capital guideline or
other requirement heretofore or hereafter issued by any
government or governmental or supervisory authority implementing
at the national level the Basle Accord there shall be imposed,
modified or deemed applicable any tax, reserve, special deposit,
capital adequacy or similar requirement against or with respect
to or measured by reference to Letters of Credit issued or to be
issued hereunder and the result shall be to increase the cost to
any Lender or Lenders of issuing (or purchasing participations
in) or maintaining its obligation hereunder to issue (or purchase
participations in) any Letter of Credit hereunder or reduce any
amount receivable by any Lender hereunder in respect of any
Letter of Credit (which increases in cost, or reductions in
amount receivable, shall be the result of such Xxxxxx's or
Lenders' reasonable allocation of the aggregate of such increases
or reductions resulting from such event), then, upon demand by
such Lender or Lenders (through the Agent), the Company shall pay
immediately to the Agent for account of such Lender or Lenders,
from time to time as specified by such Lender or Lenders (through
the Agent), such additional amounts as shall be sufficient to
compensate such Lender or Lenders (through the Agent) for such
increased costs or reductions in amount. A statement as to such
increased costs or reductions in amount incurred by any such
Lender or Lenders, submitted by such Lender or Lenders to the
Company shall be conclusive if made in good faith and in the
absence of manifest error as to the amount thereof.
5.07 U.S. Taxes.
(a) The Company agrees to pay to each Lender that is
not a U.S. Person such additional amounts as are necessary in
order that the net payment of any amount due to such
non-U.S. Person hereunder after deduction for or withholding in
respect of any U.S. Taxes (other than U.S. Taxes attributable to
payments that are effectively connected with the conduct of a
trade or business within the United States of America, within the
meaning of Section 864 of the Code as in effect on the date
hereof, provided that the mere participation in the transactions
contemplated hereby by a foreign office of a Lender shall not
alone be deemed to result in income so connected) imposed with
respect to such payment (or, upon the failure of the Company
properly to make any such deduction or withholding required by
applicable law, payment by each Lender that is not a U.S. Person
of such U.S. Taxes that should have been deducted or withheld),
will not be less than the amount stated herein to be then due and
payable, provided that the foregoing obligation to pay such
additional amounts shall not apply:
(i) to any payment to any Lender hereunder (other than
in respect of any Registered Loan) unless such Lender is, on
the date hereof (or on the date it becomes a Lender
hereunder as provided in Section 12.06(b) hereof), on the
date of each payment hereunder and on the day after any
change in the Applicable Lending Office of such Lender,
entitled to submit either a Form 1001 (relating to such
Lender and entitling it to a complete exemption from
withholding on all interest to be received by it hereunder
in respect of the Loans) or a Form 4224 (relating to all
interest to be received by such Lender hereunder in respect
of the Loans), unless such inability is due to a change of
law (including but not limited to any change in any
applicable treaty, statute, regulation or ruling or judicial
or administrative interpretation of any of the foregoing)
after the date hereof (or the date it became a Lender
hereunder as provided in Section 12.06(b) hereof),
(ii) to any payment to any Lender hereunder in respect
of a Registered Loan (a "Registered Holder"), unless such
Registered Holder (or, if such Registered Holder is not the
beneficial owner of such Registered Loan, the beneficial
owner thereof) is, on the date hereof (or on the date such
Registered Holder becomes a Lender as provided in
Section 12.06(b) hereof), on the date of each payment
hereunder and on the day after any change in the Applicable
Lending Office of such Lender, entitled to submit a
Form W-8, together with an annual certificate stating that
(x) such Registered Holder (or beneficial owner, as the case
may be) is not a "bank" within the meaning of
Section 881(c)(3)(A) of the Code, is not a resident in a
foreign country specified in a notice published under
Sections 871(h)(6) or 881(c)(6) of the Code and is not a
10% shareholder of the Company within the meaning of
Section 881(c)(3)(B) of the Code, unless such Registered
Holder, or beneficial owner as the case may be, is not so
entitled by reason of a change of law (including but not
limited to any change in any applicable treaty, statute,
regulation or ruling, or judicial or administrative
interpretation of any of the foregoing) occurring after the
date hereof (or the date the Registered Holder or beneficial
owner, as the case may be, became a Registered Holder or
beneficial owner) and (y) such Registered Holder (or
beneficial owner, as the case may be) shall promptly notify
the Company if at any time, such Registered Holder (or
beneficial owner, as the case may be) determines that it is
no longer in a position to provide such certificate to the
Company (or any other form of certification adopted by the
relevant taxing authorities of the United States of America
for such purposes), or
(iii) to any U.S. Taxes imposed solely by reason of the
failure by such non-U.S. Person (or, if such non-U.S. Person
is not the beneficial owner of the relevant Loan, such
beneficial owner) to comply with (x) applicable
certification, information, documentation or other reporting
requirements concerning the nationality, residence, identity
or connections with the United States of America of such
non-U.S. Person (or beneficial owner, as the case may be) if
such compliance is required by statute or regulation of the
United States of America as a precondition to relief or
exemption from such U.S. Taxes and (y) this Section 5.07(a).
For the purposes of this Section 5.07(a), (A) "Form 1001" shall
mean Form 1001 (Ownership, Exemption, or Reduced Rate
Certificate) of the Department of the Treasury of the United
States of America, (B) "Form 4224" shall mean Form 4224
(Exemption from Withholding of Tax on Income Effectively
Connected with the Conduct of a Trade or Business in the United
States) of the Department of the Treasury of the United States of
America and (C) "Form W-8" shall mean Form W-8 (Certificate of
Foreign Status of the Department of Treasury of the United States
of America). Each of the Forms referred to in the foregoing
clauses (A), (B) and (C) shall include such successor and related
forms as may from time to time be adopted by the relevant taxing
authorities of the United States of America to document a claim
to which such Form relates.
(b) Within 30 days after paying any amount to the
Agent or any Lender from which it is required by law to make any
deduction or withholding, and within 30 days after it is required
by law to remit such deduction or withholding to any relevant
taxing or other authority, the Company shall deliver to the Agent
for delivery to such non-U.S. Person evidence reasonably
satisfactory to such Person of such deduction, withholding or
payment (as the case may be).
(c) If any Lender shall be entitled to compensation
under this Section 5.07, such Lender, within a reasonable time
after becoming entitled to such compensation, shall (unless
otherwise required by a governmental authority or as a result of
any law, rule, regulation, order or similar directive applicable
to such Lender) designate a different Applicable Lending Office
from that initially selected by such Lender to which payments are
to be made under the Basic Documents, if such designation would
avoid the need for (or reduce the amount of) such compensation
and would not, in the sole opinion of such Lender, be otherwise
disadvantageous to such Lender.
5.08 Replacement of Lenders. If any Lender defaults
in its obligation to make Loans under Section 2.01 hereof or
requests compensation pursuant to Section 5.01, 5.06 or 5.07
hereof, or any Lender's obligation to make or Continue, or to
Convert Loans of any Type into, any other Type of Loan shall be
suspended pursuant to Section 5.01 or 5.03 hereof (any such
Lender so defaulting or requesting such compensation or whose
obligations are so suspended, being herein called a "Relevant
Lender"), the Company, upon three Business Days notice given when
no Default shall have occurred and be continuing, may require
that such Relevant Lender transfer all of its right, title and
interest under this Agreement to any bank or other financial
institution identified by the Company that is satisfactory to the
Agent, in its discretion reasonably exercised (a "Proposed
Lender") if (i) such Proposed Xxxxxx agrees to assume all of the
obligations of such Relevant Lender hereunder, and to purchase
all of such Relevant Xxxxxx's Loans hereunder for consideration
equal to the aggregate outstanding principal amount of such
Relevant Xxxxxx's Loans, together with interest thereon to the
date of such purchase, and satisfactory arrangements are made for
payment to such Relevant Lender of all other amounts payable
hereunder to such Relevant Lender on or prior to the date of such
transfer (including any fees accrued hereunder and any amounts
that would be payable under Section 5.05 hereof as if all of such
Relevant Xxxxxx's Loans were being prepaid in full on such date)
and (ii) such Relevant Lender has requested compensation pursuant
to Section 5.01, 5.06 or 5.07 hereof, such Proposed Lender's
aggregate requested compensation, if any, paid pursuant to
Section 5.01, 5.06 or 5.07 hereof with respect to such Relevant
Xxxxxx's Loans is lower than that of the Relevant Lender.
Subject to the provisions of Section 12.06(b) hereof, such
Proposed Lender shall be a "Lender" for all purposes hereunder.
Without prejudice to the survival of any other agreement of the
Company hereunder, the agreements of the Company contained in
Sections 5.01, 5.06, 5.07 and 12 hereof (without duplication of
any payments made to such Relevant Lender by the company or the
Proposed Lender) shall survive for the benefit of such Relevant
Lender under this Section 5.08 with respect to the time prior to
such replacement.
Section 6. Guarantee.
6.01 The Guarantee. The Guarantor hereby guarantees
to each Lender and the Agent and their respective successors and
assigns the prompt payment in full when due (whether at stated
maturity, by acceleration or otherwise) of the principal of and
interest on the Loans made by the Lenders to the Company and all
other amounts from time to time owing to the Lenders or the Agent
by the Company under this Agreement and by the Company under any
of the other Basic Documents, and all obligations of the Company
to any Lender in respect of any Interest Rate Protection
Agreement, in each case strictly in accordance with the terms
thereof (such obligations being herein collectively called the
"Guaranteed Obligations"). The Guarantor hereby further agrees
that if the Company shall fail to pay in full when due (whether
at stated maturity, by acceleration or otherwise) any of the
Guaranteed Obligations, the Guarantor will promptly pay the same,
without any demand or notice whatsoever, and that in the case of
any extension of time of payment or renewal of any of the
Guaranteed Obligations, the same will be promptly paid in full
when due (whether at extended maturity, by acceleration or
otherwise) in accordance with the terms of such extension or
renewal.
6.02 Obligations Unconditional. The obligations of
the Guarantor under Section 6.01 hereof are absolute and
unconditional irrespective of the value, genuineness, validity,
regularity or enforceability of the obligations of the Company
under this Agreement or any other agreement or instrument
referred to herein or therein, or any substitution, release or
exchange of any other guarantee of or security for any of the
Guaranteed Obligations, and, to the fullest extent permitted by
applicable law, irrespective of any other circumstance whatsoever
that might otherwise constitute a legal or equitable discharge or
defense of a surety or guarantor, it being the intent of this
Section 6.02 that the obligations of the Guarantor hereunder
shall be absolute and unconditional under any and all
circumstances. Without limiting the generality of the foregoing,
it is agreed that the occurrence of any one or more of the
following shall not alter or impair the liability of the
Guarantor hereunder which shall remain absolute and unconditional
as described above:
(i) at any time or from time to time, without notice
to the Guarantor, the time for any performance of or
compliance with any of the Guaranteed Obligations shall be
extended, or such performance or compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions
of this Agreement or any other agreement or instrument
referred to herein or therein shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations
shall be accelerated, or any of the Guaranteed Obligations
shall be modified, supplemented or amended in any respect,
or any right under this Agreement or any other agreement or
instrument referred to herein or therein shall be waived or
any other guarantee of any of the Guaranteed Obligations or
any security therefor shall be released or exchanged in
whole or in part or otherwise dealt with; or
(iv) any lien or security interest granted to, or in
favor of, the Agent or any Lender or Lenders as security for
any of the Guaranteed Obligations shall fail to be
perfected.
The Guarantor hereby expressly waives diligence, presentment,
demand of payment, protest and all notices whatsoever, and any
requirement that the Agent or any Lender exhaust any right, power
or remedy or proceed against the Company under this Agreement or
any other agreement or instrument referred to herein or therein,
or against any other Person under any other guarantee of, or
security for, any of the Guaranteed Obligations.
6.03 Reinstatement. The obligations of the Guarantor
under this Section 6 shall be automatically reinstated if and to
the extent that for any reason any payment by or on behalf of any
Obligor in respect of the Guaranteed Obligations is rescinded or
must be otherwise restored by any holder of any of the Guaranteed
Obligations, whether as a result of any proceedings in bankruptcy
or reorganization or otherwise and the Guarantor agrees that it
will indemnify the Agent and each Lender on demand for all
reasonable costs and expenses (including, without limitation,
fees of counsel) incurred by the Agent or such Lender in
connection with such rescission or restoration, including any
such costs and expenses incurred in defending against any claim
alleging that such payment constituted a preference, fraudulent
transfer or similar payment under any bankruptcy, insolvency or
similar law.
6.04 Subrogation. The Guarantor hereby waives, until
payment in full of the Guaranteed Obligations, all rights of
subrogation or contribution, whether arising by contract or
operation of law (including, without limitation, any such right
arising under the Bankruptcy Code) or otherwise by reason of any
payment by it pursuant to the provisions of this Section 6.
6.05 Remedies. The Guarantor agrees that, as between
the Guarantor and the Lenders, the obligations of the Company
under this Agreement may be declared to be forthwith due and
payable as provided in Section 10 hereof (and shall be deemed to
have become automatically due and payable in the circumstances
provided in said Section 10) for purposes of Section 6.01 hereof
notwithstanding any stay, injunction or other prohibition
preventing such declaration (or such obligations from becoming
automatically due and payable) as against the Company and that,
in the event of such declaration (or such obligations being
deemed to have become automatically due and payable), such
obligations (whether or not due and payable by the Company) shall
forthwith become due and payable by the Guarantor for purposes of
said Section 6.01.
6.06 Continuing Guarantee. The guarantee in this
Section 6 is a continuing guarantee, and shall apply to all
Guaranteed Obligations whenever arising.
Section 7. Conditions Precedent.
7.01 Effectiveness. The effectiveness of this
Agreement (and the amendment and restatement of the Existing
Credit Agreement to be effected hereby) is subject to the receipt
by the Agent of the following documents, each of which shall be
satisfactory to the Agent (and to the extent specified below, to
each Lender) in form and substance:
(a) Corporate Documents. The following documents,
each certified as indicated below:
(i) for each of Xxxxxxx, the Company and the
Guarantor, a copy of the charter (or equivalent
documents) certified as of a date reasonably close to
the Effective Date by the Secretary of State of
Delaware, Illinois or Louisiana, as the case may be,
and a certificate from such Secretary of State dated as
of a date reasonably close to the Effective Date as to
the good standing of and charter documents filed by
such Person;
(ii) for each of Xxxxxxx, the Company and the
Guarantor, a certificate of the Secretary or an
Assistant Secretary of such Person, dated the Effective
Date and certifying (A) that attached thereto is a true
and complete copy of the by-laws of such Person as
amended and in effect at all times from the date on
which the resolutions referred to in clause (B) were
adopted, (B) that attached thereto is a true and
complete copy of resolutions duly adopted by the board
of directors of such Person authorizing the execution,
delivery and performance of such of the Basic Documents
to which such Person is or is intended to be a party
and the extensions of credit hereunder, and that such
resolutions have not been modified, rescinded or
amended and are in full force and effect, (C) that the
charter of such Person had not been amended since the
date of the certification thereto furnished pursuant to
clause (i) above, and (D) as to the incumbency and
specimen signature of each officer of such Person
executing such of the Basic Documents to which such
Person is intended to be a party and each other
document to be delivered by such Person from time to
time in connection therewith (and the Agent and each
Lender may conclusively rely on such certificate until
it receives notice in writing from such Person); and
(iii) for each of Xxxxxxx, the Company and the
Guarantor, a certificate of another officer of such
Person, dated the Effective Date, as to the incumbency
and specimen signature of the Secretary or Assistant
Secretary, as the case may be, of such Person at the
time of execution of the certificate referred to in
clause (ii) above.
(b) Officer's Certificate. A certificate of a senior
officer or Responsible Officer of the Guarantor, dated the
Effective Date, to the effect set forth in clauses (a) and
(b) of Section 7.02 hereof.
(c) Opinions of Counsel to the Obligors. Opinions,
dated the Effective Date, of (i) the General Counsel of the
Guarantor, substantially in the form of Exhibit E-1 hereto
and covering such other matters as the Agent or any Lender
may reasonably request (and each Obligor hereby instructs
such counsel to deliver such opinion to the Lenders and the
Agent) and (ii) Xxxxxx Xxxxxx, special Louisiana counsel to
the Obligors, substantially in the form of Exhibit E-2
hereto and covering such other matters as the Agent or any
Lender may reasonably request (and each Obligor hereby
instructs such counsel to deliver such opinion to the
Lenders and the Agent).
(d) Opinion of Special New York Counsel to the Agent.
An opinion, dated the Effective Date, of Milbank, Xxxxx,
Xxxxxx & XxXxxx, special New York counsel to the Agent,
substantially in the form of Exhibit F hereto.
(e) Security Agreement. The Security Agreement, duly
executed by the Company and the Agent.
(f) Pledge Agreement. The Pledge Agreement, duly
executed by the Guarantor and the Agent.
(g) Xxxxxxx Acquisition. Certified copies of the
Purchase Agreement and evidence that (i) the Purchase
Agreement shall have been duly authorized, executed and
delivered by the parties thereto and remains in full force
and effect and has not been amended as of the Effective
Date, (ii) all material governmental approvals and material
third-party consents and approvals (if any) in connection
with the Xxxxxxx Acquisition have been obtained and remain
in effect and all applicable waiting periods have expired
without any action being taken by any competent authority
that restricts, prevents or imposes materially adverse
conditions upon the making or consummation of the Xxxxxxx
Acquisition and (iii) the Xxxxxxx Acquisition shall have
been consummated in accordance with the Purchase Agreement.
(h) Xxxxxxx Guarantee and Security Agreement. The
Xxxxxxx Guarantee and Security Agreement, substantially in
the form of Exhibit B-2 hereto duly executed and delivered
by Xxxxxxx. In addition, the Company shall have taken such
other action (including, without limitation, delivering to
the Agent, (i) Uniform Commercial Code (or equivalent
Louisiana statute) searches for Xxxxxxx for each
jurisdiction in which Xxxxxxx conducts its business or in
which any of its respective Properties are located (or
otherwise as the Agent may reasonably request) and (ii) for
filing, appropriately completed and duly executed copies of
Uniform Commercial Code financing statements (or equivalent
Louisiana filings)) as the Agent shall have requested in
order to perfect the security interests created pursuant to
the Xxxxxxx Guarantee and Security Agreement.
(i) Pledge of Xxxxxxx Shares. The certificates
representing 100% of the issued and outstanding shares of
capital stock of Xxxxxxx (as purchased by the Company under
the Purchase Agreement) accompanied by undated stock powers
executed in blank. In addition, the Agent shall have
received a copy of each agreement, certificate, opinion of
counsel and other material writing delivered by or on behalf
of each party to the Purchase Agreement in connection with
the closing of the Xxxxxxx Acquisition, and a letter from
the Person delivering such opinion authorizing reliance
thereon by the Agent and the Lenders.
(j) UCC, Tax Lien and Judgment Searches. Reports
satisfactory to the Lenders listing the results of filing,
tax lien and judgment searches prepared by one or more firms
satisfactory to the Agent with respect to Xxxxxxx in each of
the jurisdictions deemed relevant by the Agent.
(k) Environmental Assessment. An environmental
assessment of all real Property owned or leased by Xxxxxxx
which will be covered by a Mortgage pursuant to Section
9.24(d) hereof in form and substance reasonably satisfactory
to the Majority Lenders.
(l) Solvency Certificates. A certificate of a
Responsible Officer of each of the Guarantor and the
Company, dated the Effective Date, to the effect that, as of
the Effective Date and after giving effect to the Xxxxxxx
Acquisition, the borrowings contemplated hereunder in the
full amount of the Commitments and the other transactions
contemplated hereby, neither Obligor, on a stand-alone or
consolidated basis, (i) will be insolvent or will be
rendered insolvent by the Indebtedness incurred in
connection therewith, (ii) will be left with unreasonably
small capital with which to conduct its business operations
as heretofore conducted, (iii) will have incurred debts
beyond its ability to pay such debts as they mature.
(m) Repayment of Existing Indebtedness. Evidence that
the principal of and interest on, and all other amounts
owing in respect of, the Indebtedness of Xxxxxxx (including,
without limitation, any contingent or other amounts payable
in respect of letters of credit) indicated on Schedule I
hereto that is to be repaid on the Effective Date shall have
been (or shall be simultaneously) paid in full, that any
commitments to extend credit under the agreements or
instruments relating to such Indebtedness shall have been
canceled or terminated and that all Guarantees in respect
of, and all Liens securing, any such Indebtedness shall have
been released (or arrangements for such release satisfactory
to the Majority Lenders shall have been made); in addition,
the Agent shall have received from any Person holding any
Lien securing any such Indebtedness, such Uniform Commercial
Code termination statements, mortgage releases and other
instruments, in each case in proper form for recording, as
the Agent shall have requested to release and terminate of
record the Liens securing such Indebtedness (or arrangements
for such release and termination satisfactory to the
Majority Lenders shall have been made).
(n) Litigation. A certificate of a senior officer of
each of the Company and Xxxxxxx to the effect that there
exists (i) no judgment, order, injunction or other restraint
issued or filed which prohibits the making of the Loans or
the consummation of the Xxxxxxx Acquisition, (ii) no action,
suit, litigation, or similar proceeding at law or in equity
or by or before any court or governmental or regulatory
authority with respect to the Xxxxxxx Acquisition or the
financing thereof and (iii) no actions, suits or proceedings
pending or threatened with respect to any such party that
could reasonably be expected to have a Material Adverse
Effect.
(o) Margin Regulations. Evidence satisfactory to the
Lenders that neither the making of Loans hereunder nor the
use of the proceeds thereof will violate Regulation G, U or
X.
(p) Contracts. Copies of all material contracts of
Xxxxxxx including, without limitation, all material supply
and purchase contracts of Xxxxxxx involving more than 5% of
the supplies to or purchases of Xxxxxxx.
(q) Other Documents. Such other documents as the
Agent or any Lender or special New York counsel to the Agent
reasonably request.
7.02 Initial and Subsequent Extensions of Credit. The
obligation of the Lenders to make any Loan or otherwise extend
any credit to either Obligor upon the occasion of each borrowing
or other extension of credit hereunder (including the initial
borrowings and continuation of the Term Loans and the Revolving
Credit Loans contemplated to occur on the Effective Date) is
subject to the further conditions precedent that, both
immediately prior to the making of such Loan or other extension
of credit and also after giving effect thereto and to the
intended use thereof:
(a) no Default shall have occurred and be continuing;
(b) the representations and warranties made by each
Obligor in Section 8 hereof and in each other Basic Document
to which such Obligor is a party, shall be true and complete
in all material respects on and as of the date of the making
of such Loan or other extension of credit (and after giving
effect thereto) with the same force and effect as if made on
and as of such date (or, if any such representation or
warranty is expressly stated to have been made as of a
specific date, as of such specific date); and
(c) to the extent there are Revolving Credit Loans or
Swingline Loans outstanding, the aggregate principal amount
of the Revolving Credit Loans and Swingline Loans together
with the aggregate amount of all Letter of Credit
Liabilities shall not exceed the Borrowing Base reflected on
the most recent Borrowing Base Certificate delivered
pursuant to Section 9.01(g) hereof (or, prior to delivery of
the first such certificate, Section 9.01(g) of the Existing
Credit Agreement).
Each notice of borrowing or request for the issuance of a Letter
of Credit by the Company hereunder shall constitute a
certification by the Company to the effect set forth in the
preceding sentence (both as of the date of such notice or request
and, unless the Company otherwise notifies the Agent prior to the
date of such borrowing or issuance, as of the date of such
borrowing or issuance).
Section 8. Representations and Warranties. Each
Obligor represents and warrants to the Agent and the Lenders
that:
8.01 Corporate Existence. Each Obligor and its
Subsidiaries (including, for purposes of this Section 8.01,
Xxxxxxx): (a) is a corporation, partnership or other entity duly
organized, validly existing and in good standing under the laws
of the jurisdiction of its organization; (b) has all requisite
corporate or other power, and has all material governmental
licenses, authorizations, consents and approvals necessary to own
its assets and carry on its business as now being or as proposed
to be conducted; and (c) is qualified to do business and is in
good standing in all jurisdictions in which the nature of the
business conducted by it makes such qualification necessary and
where failure so to qualify could (either individually or in the
aggregate) reasonably be expected to have a Material Adverse
Effect.
8.02 Financial Condition. (a) The Obligors have
heretofore furnished to each of the Lenders the following:
(i) the balance sheet of Xxxxxxx as at December 31,
1995 and the related statements of income, retained earnings
and cash flows of Xxxxxxx for the fiscal year ended on said
date, with the opinion thereon of XxXxxxx Xxxxx Xxxxx & Hand
and the unaudited balance sheet of Xxxxxxx as at June 30,
1996 and the related statements of income, retained earnings
and cash flows of Xxxxxxx for the six-month period ended on
such date; and
(ii) the consolidated balance sheet of the Guarantor
and its Subsidiaries as at December 31, 1995 and the related
consolidated statements of income, changes in stockholders'
investment and cash flows of the Guarantor and its
Subsidiaries for the fiscal year ended on said date, with
the opinion thereon of Ernst & Young LLP, and the unaudited
consolidated balance sheet of the Guarantor and its
Subsidiaries as at June 30, 1996 and the related
consolidated statements of income, changes in stockholders'
investment and cash flows of the Guarantor and its
Subsidiaries for the six-month period ended on such date.
(b) The financial statements referred to in clause (a)
above fairly present, in all material respects, the consolidated
financial position of Xxxxxxx or the Guarantor and its
Subsidiaries, as the case may be, as at said dates and the
consolidated results of their respective operations for the
fiscal years and periods ended on said dates, in accordance with
generally accepted accounting principles and practices applied on
a consistent basis (subject, in the case of the June 30, 1996
financial statements, to year-end audit adjustments). None of
the Guarantor or its Subsidiaries or Xxxxxxx has on the date
hereof any material contingent liabilities, liabilities for
taxes, unusual forward or long-term commitments or unrealized or
anticipated losses from any unfavorable commitments, except as
referred to or reflected or provided for in said balance sheets
as at said dates. Since June 30, 1996, there has been no
material adverse change in the consolidated financial condition,
operations, business or prospects taken as a whole of the
Guarantor and its Subsidiaries or Xxxxxxx from that set forth in
said financial statements as at said respective dates.
8.03 Litigation. Except as disclosed to the Lenders
in Schedule V hereto, there are no legal or arbitral proceedings,
or any proceedings by or before any governmental or regulatory
authority or agency, now pending or (to the knowledge of any
Obligor) threatened against either Obligor or any of its
Subsidiaries (including, for purposes of this Section 8.03,
Xxxxxxx) that, if adversely determined, could (either
individually or in the aggregate) reasonably be expected to have
a Material Adverse Effect.
8.04 No Breach. None of the making or performance of
this Agreement and the other Transaction Documents, the
consummation of the transactions herein and therein contemplated
or compliance with the terms and provisions hereof and thereof
will conflict with or result in a breach of, or require any
consent not already obtained under, the charter or by-laws of
either Obligor or any of its Subsidiaries (including, for
purposes of this Section 8.04, Xxxxxxx), or any applicable law or
regulation, or any order, writ, injunction or decree of any court
or governmental authority or agency, or any material agreement or
instrument to which either Obligor or any such Subsidiary is a
party or by which any of them or any of their Property is bound
or to which any of them is subject, or constitute a default under
any such agreement or instrument, or (except for the Liens
created pursuant to the Security Documents) result in the
creation or imposition of any Lien upon any Property of either
Obligor or any such Subsidiary pursuant to the terms of any such
agreement or instrument.
8.05 Action. Each Obligor and each of its
Subsidiaries (including, for purposes of this Section 8.05,
Xxxxxxx) has all necessary corporate power, authority and legal
right to execute, deliver and perform its obligations hereunder
and under each of the other Transaction Documents to which it is
a party; the execution, delivery and performance by each Obligor
and each such Subsidiary of each of the Transaction Documents to
which it is a party have been duly authorized by all necessary
corporate action on its part (including, without limitation, any
required shareholder approvals); and this Agreement has been duly
and validly executed and delivered by such Obligor and (assuming
the due authorization, execution and delivery thereof by the
Agent, the Lenders and the other parties (other than an Obligor)
thereto) constitutes, and each of the other Transaction Documents
to which it is a party when executed and delivered by such
Obligor or such Subsidiary will constitute, its legal, valid and
binding obligation, enforceable against such Obligor and/or such
Subsidiary, as the case may be, in accordance with its terms,
except as may be limited by bankruptcy, insolvency, reorganiza
tion, moratorium or similar laws relating to or affecting the
rights of creditors generally and except as such enforceability
may be limited by the application of general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
8.06 Approvals. Other than the Notification and
Report Form in respect of the Xxxxxxx Acquisition furnished to
the Department of Justice and the Federal Trade Commission
pursuant to the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976 (which Notification and Report Form has been duly given and
all applicable waiting periods have been terminated without any
action having been taken by any competent authority that
restricts, prevents or imposes conditions upon the Xxxxxxx
Acquisition), no authorizations, approvals or consents not
already duly obtained of, and no filings or registrations with,
any governmental or regulatory authority or agency, or any
securities exchange, are necessary for the execution, delivery or
performance by either Obligor or any of its Subsidiaries of the
Transaction Documents to which it is a party or for the legality,
validity or enforceability hereof or thereof, except for
(i) filings and recordings in respect of the Liens created
pursuant to the Security Documents and (ii) immaterial state and
municipal licenses such as business licenses, food sales
establishment licenses, required registrations with state revenue
departments and other similar ministerial licenses.
8.07 Use of Credit. Neither Obligor nor any of its
Subsidiaries (including, for purposes of this Section 8.07,
Xxxxxxx) is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose,
whether immediate, incidental or ultimate, of buying or carrying
Margin Stock. At the time of the making of any of the Term
Loans, the Revolving Credit Loans or the Swingline Loans, not
more than 25% of the value of the assets of either Obligor is
represented by Margin Stock. Neither the making of any of the
Loans hereunder nor the use of the proceeds thereof will violate
or be inconsistent with the provisions of Regulation G, U, or X.
8.08 ERISA. Each Plan and, to the knowledge of the
Company, each Multiemployer Plan, is in compliance in all
material respects with, and has been administered in all material
respects in compliance with, the applicable provisions of ERISA,
the Code and any other Federal or State law, and no event or
condition has occurred and is continuing as to which either
Obligor would be under an obligation to furnish a report to the
Lenders under Section 9.01(f) hereof. As of the date of this
Agreement, and for the year preceding the date of this Agreement,
neither Obligor nor, prior to the Xxxxxxx Acquisition, Xxxxxxx,
has contributed to any Multiemployer Plan.
8.09 Taxes. Except as set forth on Schedule VIII, the
Guarantor and its Subsidiaries are members of an affiliated group
of corporations filing consolidated returns for Federal income
tax purposes, of which the Guarantor is the "common parent"
(within the meaning of Section 1504 of the Code) of such group.
Except as set forth on Schedule VIII hereto, the Guarantor and
its Subsidiaries (including, for all purposes of this
Section 8.09 other than the first sentence hereof, Xxxxxxx) have
filed all Federal income tax returns and all other material tax
returns that are required to be filed by them and have paid all
taxes due pursuant to such returns or pursuant to any assessment
received by the Guarantor or any such Subsidiary, except for any
such tax the payment of which is being contested in good faith
and by proper proceedings and against which adequate reserves are
being maintained, provided that no such tax is being contested on
the Effective Date. The charges, accruals and reserves on the
books of the Guarantor and its Subsidiaries in respect of taxes
and other governmental charges are, in the opinion of the
Guarantors, adequate. Except as set forth in Schedule VIII
hereto, neither the Guarantor nor any of its Subsidiaries has
given or been requested to give a waiver of the statute of
limitations relating to the payment of any Federal, state, local
and foreign taxes or other impositions.
8.10 Investment Company Act. Neither the Guarantor
nor any of its Subsidiaries (including, for purposes of this
Section 8.10, Xxxxxxx) is an "investment company", or a company
"controlled" by an "investment company", within the meaning of
the Investment Company Act of 1940, as amended.
8.11 Public Utility Holding Company Act. Neither the
Guarantor nor any of its Subsidiaries (including, for purposes of
this Section 8.11, Xxxxxxx) is a "holding company", or an
"affiliate" of a "holding company" or a "subsidiary company" of a
"holding company", within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
8.12 Material Agreements and Liens.
(a) Parts A and B of Schedule I hereto are a complete
and correct list of each credit agreement, loan agreement,
indenture, purchase agreement, guarantee, letter of credit or
other arrangement providing for or otherwise relating to
Indebtedness of the Guarantor and its Subsidiaries and Xxxxxxx
outstanding on the date hereof, or that after giving effect to
the Xxxxxxx Acquisition will be outstanding on the Effective
Date, and the aggregate principal or face amount outstanding or
that may become outstanding under each such arrangement is
correctly described in Parts A and B of said Schedule I.
(b) Part C of Schedule I hereto is a complete and
correct list of each Lien securing Indebtedness of any Person
outstanding on the date hereof, or that (after giving effect to
the transactions contemplated to occur on or before the Effective
Date) will be outstanding on the Effective Date, the aggregate
principal or face amount of which equals or exceeds (or may equal
or exceed) $10,000 and covering any Property of the Guarantor or
any of its Subsidiaries, and the aggregate Indebtedness secured
(or which may be secured) by each such Lien and the Property
covered by each such Lien is correctly described in Part C of
said Schedule I.
8.13 Environmental Matters. Except as set forth on
Schedule II hereto,
(a) Each of the Guarantor and its Subsidiaries
(including for all purposes of this Section 8.13, Xxxxxxx)
has obtained all environmental, health and safety permits,
licenses and other authorizations required under all
Environmental Laws (collectively, "Environmental Permits")
to carry on its business as now being or as proposed to be
conducted, except to the extent failure to have any such
Environmental Permit would not (either individually or in
the aggregate) have a Material Adverse Effect. Each of such
Environmental Permits is in full force and effect and each
of the Guarantor and its Subsidiaries is in compliance with
the terms and conditions thereof, and is also in compliance
with all other applicable Environmental Laws, decrees,
judgments, and injunctions, except to the extent failure to
comply therewith would not (either individually or in the
aggregate) have a Material Adverse Effect.
(b) No notice, notification, demand, request for
information, citation, summons or order is pending, no
complaint is pending, no penalty has been assessed and is
outstanding and no investigation or review is pending or, to
the Guarantor's knowledge, threatened by any governmental or
other entity with respect to any alleged failure by the
Guarantor or any of its Subsidiaries to have any
Environmental Permit or with respect to any generation,
treatment, storage, recycling, transportation or any Release
of any Hazardous Materials generated by the Guarantor or any
of its Subsidiaries that could reasonably be expected to
result in a liability in excess of $10,000.
(c) Neither the Guarantor nor any of its respective
Subsidiaries owns, operates or leases a treatment, storage
or disposal facility requiring a permit under the Resource
Conservation and Recovery Act of 1976, as amended, or under
any comparable state or local statute.
(d) There is not now nor, to the Guarantor's
knowledge, has there been in the past any PCBs, asbestos
containing materials ("ACMs"), surface impoundments or
underground storage tanks at any real Property now or, to
the Guarantor's knowledged, previously owned, operated or
leased by the Guarantor or any of its Subsidiaries, the
presence of which could reasonably be expected to result in
a liability in excess of $10,000.
(e) No Hazardous Materials have been otherwise
Released at, on or under any site or facility now or
previously owned, operated or leased by the Guarantor or any
of its Subsidiaries that would (either individually or in
the aggregate) have a Material Adverse Effect.
(f) Neither the Guarantor nor any of its Subsidiaries
has received a notice alleging that it is a potentially
responsible party under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended
("CERCLA"), listed for possible inclusion on the National
Priorities List ("NPL") by the Environmental Protection
Agency in the Comprehensive Environmental Response and
Liability Information System, as provided for by
40 C.F.R. 300.5 ("CERCLIS"), or on any similar state or
local list.
(g) No written notification of a Release of a
Hazardous Material has been filed by or on behalf of the
Guarantor or any of its Subsidiaries and no site or facility
now or, to the Guarantor's knowledge, previously owned,
operated or leased by the Guarantor or any of its
Subsidiaries is listed or proposed for listing on the NPL,
CERCLIS or any similar state list of sites requiring
investigation or clean-up.
(h) No Liens exist under or pursuant to any
Environmental Laws on any real Property owned or operated by
the Guarantor or any of its Subsidiaries, and no government
action has been taken or is in process that could subject
any such site or facility to such Liens and, to the best
knowledge of the Guarantor, neither the Guarantor nor any of
its Subsidiaries would be required to place any notice or
restriction relating to the presence of Hazardous Materials
at any site or facility owned by it in any deed to the real
Property on which such site or facility is located.
(i) All environmental investigations, studies, audits,
tests, reviews or other analyses conducted by or that are in
the possession of the Guarantor or any of its Subsidiaries
in relation to facts, circumstances or conditions at or
affecting any site or facility now or previously owned,
operated or leased by the Guarantor or any of its
Subsidiaries and that could result in a Material Adverse
Effect have been made available to the Lenders.
8.14 Capitalization.
(a) Schedule VI hereto correctly sets forth the
authorized capital stock of the Guarantor and the capital stock
and equity securities owned of record as of the date hereof.
(b) On the date hereof, the authorized capital stock
of the Company consists of an aggregate of 890,000 shares of
$1.00 par value common stock. All of the issued and outstanding
shares of the Company on such date and at such time will be duly
and validly issued, fully paid and nonassessable. As of such
date and time, all of such shares will be owned beneficially and
of record by the Guarantor and (x) there will be no outstanding
Equity Rights with respect to the Company and (y) there will be
no outstanding obligations of the Company or the Guarantor or any
of their Subsidiaries to repurchase, redeem, or otherwise acquire
any shares of capital stock of the Company nor will there be any
outstanding obligations of the Company or the Guarantor or any of
their Subsidiaries to make payments to any Person, such as
"phantom stock" payments, where the amount thereof is calculated
with reference to the fair market value or equity value of the
Company or any of its Subsidiaries.
(c) On the date hereof, the authorized capital stock
of Xxxxxxx consists of an aggregate of 2,088 shares of common
stock. All of the issued and outstanding shares of Xxxxxxx on
such date and at such time will be duly and validly issued, fully
paid and nonassessable. As of such date and time, all of such
shares will be owned beneficially and of record by the Company
and (x) there will be no outstanding Equity Rights with respect
to Xxxxxxx and (y) there will be no outstanding obligations of
the Company or the Guarantor or any of their Subsidiaries to
repurchase, redeem, or otherwise acquire any shares of capital
stock of Xxxxxxx nor will there be any outstanding obligations of
the Company or the Guarantor or any of their Subsidiaries to make
payments to any Person, such as "phantom stock" payments, where
the amount thereof is calculated with reference to the fair
market value or equity value of Xxxxxxx.
8.15 Subsidiaries, Etc.
(a) On the date hereof, Xxxxxxx has no Subsidiaries.
Part A of Schedule III hereto sets forth all Subsidiaries of the
Guarantor as of the date hereof.
(b) Set forth in Part B of Schedule III hereto is a
complete and correct list of all Investments held by the
Guarantor or any of its Subsidiaries or Xxxxxxx on the date
hereof, and, for each such Investment, (x) the identity of the
Person or Persons holding such Investment and (y) the nature of
such Investment. Except as disclosed in Schedule III hereto,
each of the Guarantor, such Subsidiaries and Xxxxxxx owns on the
date hereof, free and clear of all Liens (other than Liens
created pursuant to the Security Documents), all such
Investments.
8.16 Title to Assets. Except as disclosed in the
footnote under the heading "Real Property Interests" in
Schedule IV hereto, each of the Guarantor and its Subsidiaries
and Xxxxxxx owns and has on the date hereof good and marketable
title (subject only to Liens permitted by Section 9.06 hereof) to
the Properties shown to be owned in the most recent financial
statements referred to in Section 8.02 hereof (other than
Properties disposed of in the ordinary course of business or
otherwise permitted to be disposed of pursuant to Section 9.05
hereof). Each of the Guarantor and its Subsidiaries and Xxxxxxx
owns and has on the date hereof, good and marketable title to,
and enjoys peaceful and undisturbed possession of, all Properties
(subject only to Liens permitted by Section 9.06 hereof) that are
necessary for the operation and conduct of its businesses.
8.17 True and Complete Disclosure. The information,
reports, financial statements, exhibits and schedules furnished
in writing by or on behalf of the Obligors to the Agent or any
Lender in connection with the negotiation, preparation or
delivery of this Agreement and the other Basic Documents or
included herein or therein or delivered pursuant hereto or
thereto, when taken as a whole, do not contain any untrue
statement of material fact or omit to state any material fact
necessary to make the statements herein or therein, in light of
the circumstances under which they were made, not misleading.
All written information furnished after the date hereof by the
Guarantor or any of its Subsidiaries to the Agent and the Lenders
in connection with this Agreement and the other Basic Documents
and the transactions contemplated hereby and thereby will be
true, complete and accurate in every material respect, or (in the
case of projections) based on estimates deemed in good faith to
be reasonable, on the date as of which such information is stated
or certified. There is no fact known to either Obligor that
could reasonably be expected to have a Material Adverse Effect
that has not been disclosed herein, in the other Basic Documents
or in a report, financial statement, exhibit, schedule,
disclosure letter or other writing furnished to the Lenders for
use in connection with the transactions contemplated hereby or
thereby.
8.18 Real Property. Set forth on Schedule IV hereto
under the heading "Real Property Interests of Xxxxxxx" is a list,
as of the date hereof and after giving effect to Xxxxxxx
Acquisition of all of the real Property interests held by
Xxxxxxx, indicating in each case whether the respective Property
is owned or leased, the identity of the owner or lessee and the
location of the respective Property.
8.19 Security Documents. The Security Documents
create, as security for the obligations purported to be secured
thereby, a valid and enforceable perfected interest in and Lien
on all of the Properties covered thereby in favor of the Agent,
superior to and prior to the right of all third Persons and
subject to no other Liens (other than Permitted Liens).
Section 9. Covenants of the Obligors. Each Obligor
covenants and agrees with the Lenders and the Agent that, so long
as any Commitment, Loan or Letter of Credit Liability is
outstanding and until payment in full of all amounts payable by
the Obligors hereunder:
9.01 Financial Statements, Etc. The Company (for
itself and on behalf of the Guarantor) shall deliver to each of
the Lenders:
(a) as soon as available and in any event within
30 days after the end of each month (other than March, June,
September and December), consolidated statements of income,
retained earnings and cash flows of the Guarantor and its
Subsidiaries for such period and for the period from the
beginning of the respective fiscal year to the end of such
period, and the related consolidated balance sheet as at the
end of such period, setting forth in each case in com
parative form the corresponding consolidated figures for the
corresponding periods in the preceding fiscal year;
(b) as soon as available and in any event within
45 days after the end of the first three quarterly fiscal
periods of each fiscal year of the Guarantor, consolidated
statements of income, retained earnings and cash flows of
the Guarantor and its Subsidiaries for such period and for
the period from the beginning of the respective fiscal year
to the end of such period, and the related consolidated
balance sheet as at the end of such period, setting forth in
each case in comparative form (i) the corresponding
consolidated figures for the corresponding periods in the
preceding fiscal year and (ii) the corresponding xxxxxxx
dated projected figures contained in the business plan
furnished under Section 9.01(h) hereof in respect of such
fiscal period (or in the quarterly business plan of the
Guarantor heretofore delivered to the Agent), accompanied by
a certificate of a Responsible Officer of the Guarantor,
which certificate shall (A) state that said consolidated
financial statements present fairly, in all material
respects, the consolidated financial position and results of
operations of the Guarantor and its Subsidiaries, in each
case in accordance with generally accepted accounting
principles, consistently applied, as at the end of, and for,
such period (subject to normal year-end audit adjustments
and excluding any footnotes thereto) and (B) contain an
explanation of any deviations in the results of operations
shown on such financial statements from the projected
figures contained in such business plan along with a
description of the action that either Obligor has taken or
proposes to take with respect to any adverse deviations, if
any;
(c) as soon as available and in any event within
90 days after the end of each fiscal year of the Guarantor,
consolidated statements of income, retained earnings and
cash flows of the Guarantor and its Subsidiaries, for such
fiscal year and the related consolidated balance sheet as at
the end of such fiscal year, setting forth in each case in
comparative form (i) the corresponding consolidated figures
for the preceding fiscal year and (ii) the corresponding
consolidated projected figures contained in the business
plan furnished under Section 9.01(h) hereof in respect of
such fiscal year (or in the quarterly business plan of the
Guarantor heretofore delivered to the Agent) and accompanied
by an opinion thereon of independent certified public
accountants of recognized national standing, which opinion
shall state that said consolidated financial statements
present fairly, in all material respects, the consolidated
financial position and results of operations of the
Guarantor and its Subsidiaries as at the end of, and for,
such fiscal year in accordance with generally accepted
accounting principles, and a certificate of such accountants
stating that, in making the examination necessary for their
opinion, they obtained no knowledge, except as specifically
stated, of any Default under any of Sections 9.09 through
9.14 hereof;
(d) promptly upon their becoming available, copies of
all registration statements and regular periodic reports and
other material reports, if any, which either Obligor shall
have filed with the Commission (or any governmental agency
substituted therefor) or any national securities exchange;
(e) promptly upon the mailing thereof to the
shareholders of either Obligor generally, copies of all
financial statements, reports and proxy statements so
mailed;
(f) as soon as possible, and in any event within
21 days after either Obligor knows or has reason to believe
that any of the events or conditions specified below with
respect to any Plan or Multiemployer Plan has occurred or
exists, a statement signed by a Responsible Officer of the
Company setting forth details respecting such event or
condition and the action, if any, that such Obligor or its
ERISA Affiliate proposes to take with respect thereto (and a
copy of any report or notice required to be filed with or
given to PBGC by such Obligor or an ERISA Affiliate with
respect to such event or condition):
(i) any reportable event, as defined in
Section 4043(b) of ERISA and the regulations issued
thereunder, with respect to a Plan, as to which PBGC
has not 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 that
a failure to meet the minimum funding standard of
Section 412 of the Code or Section 302 of ERISA,
including, without limitation, the failure to make on
or before its due date a required installment under
Section 412(m) of the Code or Section 302(e) of ERISA,
shall be a reportable event regardless of the issuance
of any waivers in accordance with Section 412(d) of the
Code); and any request for a waiver under
Section 412(d) of the Code for any Plan;
(ii) the distribution under Section 4041 of
ERISA of a notice of intent to terminate any Plan or
any action taken by either Obligor or an ERISA
Affiliate to terminate any Plan if the assets of such
Plan are insufficient to provide in full for all of the
benefit liabilities under such Plan as contemplated by
Section 4041(b) of ERISA;
(iii) the institution by PBGC of proceedings
under Section 4042 of ERISA for the termination of, or
the appointment of a trustee to administer, any Plan,
or the receipt by either Obligor or any ERISA Affiliate
of a notice from a Multiemployer Plan that such action
has been taken by PBGC with respect to such
Multiemployer Plan;
(iv) the complete or partial withdrawal from
a Multiemployer Plan by either Obligor or any
ERISA Affiliate that results in liability under
Section 4201 or 4204 of ERISA (including the obligation
to satisfy secondary liability as a result of a
purchaser default) or the receipt by either Obligor or
any ERISA Affiliate of notice from a Multiemployer Plan
that it is in reorganization or insolvency pursuant to
Section 4241 or 4245 of ERISA or that it intends to
terminate or has terminated under Section 4041A of
ERISA;
(v) the institution of a proceeding by a
fiduciary of any Multiemployer Plan against either
Obligor or any ERISA Affiliate to enforce Section 515
of ERISA, which proceeding is not dismissed within
30 days;
(vi) the adoption of an amendment to any Plan
that, pursuant to Section 401(a)(29) of the Code or
Section 307 of ERISA, would result in the loss of
tax-exempt status of the trust of which such Plan is a
part if either Obligor or an ERISA Affiliate fails to
timely provide security to the Plan in accordance with
the provisions of said Sections; and
(vii) the existence of any event or
circumstance which may reasonably be expected to
constitute grounds for either Obligor Company or any
ERISA Affiliate to incur liability under Section 4062,
4063, 4064 or 4069 of ERISA;
(g) as soon as available and in any event within
seven Business Days after the end of each month, a Borrowing
Base Certificate as at the last day of such month;
(h) no later than 15 days prior to the end of the
fiscal year of the Company, a quarterly business plan
covering the next succeeding year, in form and substance
satisfactory to the Majority Lenders (and, if requested by
the Majority Lenders prior to such date, an annual business
plan for the succeeding five-year period);
(i) as soon as available after the end of the first
and second six-month period in any fiscal year of the
Company, and at such other times as the Agent or the
Majority Revolving Credit Lenders may request, a report of
an independent collateral auditing agent ("Collateral
Auditing Agent") (which shall be satisfactory to the
Majority Revolving Credit Lenders in their reasonable
determination and which may be, or be affiliated with, one
of the Lenders and whose annual fees and expenses will not
exceed $40,000 plus reasonable out-of-pocket expenses) with
respect to, but not restricted to, the Receivables and
Inventory components included in the Borrowing Base as at
the end of such six-month period which report shall indicate
that, based upon a review by the Collateral Auditing Agent
of the Receivables (including, without limitation,
verification with respect to the amount, aging, identity and
credit of the respective account debtors and the billing
practices of the Company and Xxxxxxx) and Inventory
(including, without limitation, verification as to the
value, location and respective types), the information set
forth in the Borrowing Base Certificate delivered by the
Company as at the end of such six-month period is accurate
and complete in all material respects and in addition, as
soon as available and in any event within 90 days after the
end of each fiscal year of the Company, a like report of
independent certified public accountants with respect to the
Receivables and Inventory components included in the
Borrowing Base as at the end of such fiscal year;
(j) promptly after becoming aware thereof, written
notice of (i) the assertion of any Environmental Claim by
any Person against, or with respect to the activities of,
the Guarantor or any of its Subsidiaries and notice of any
alleged violation of or non-compliance with any
Environmental Laws or any permits, licenses or
authorizations, other than any Environmental Claims or
alleged violations which, if adversely determined, would not
have a Material Adverse Effect, (ii) any Environmental
Claim, inquiry, proceeding, investigation, or other action,
including a notice from any governmental authority of
potential environmental liability, or any Federal, state or
local environmental agency or board, that involves any
collateral security for the Loans or the Lenders' rights
with respect to any such collateral security, and (iii) any
Release of a non-de minimus quantity of Hazardous Materials
at any site or facility of the Guarantor or any Subsidiary;
(k) promptly after either Xxxxxxx knows or has reason
to believe that any Default has occurred, a notice of such
Default describing the same in reasonable detail and,
together with such notice or as soon thereafter as
reasonably possible, a description of any action that either
Xxxxxxx has taken or proposes to take with respect thereto;
and
(l) from time to time such other information regarding
the financial condition, operations, business or prospects
of the Guarantor or any of its Subsidiaries (including,
without limitation, any Plan or Multiemployer Plan and any
reports or other information required to be filed under
ERISA) as any Lender or the Agent may reasonably request.
The Company will furnish to each Lender, at the time it furnishes
each set of financial statements pursuant to paragraph (b) or (c)
above, a certificate of a Responsible Officer of the Company
(i) to the effect that, to the best of such Responsible Officer's
knowledge, no Default has occurred and is continuing (or, if any
Default has occurred and is continuing, describing the same in
reasonable detail and describing any action that either Obligor
has taken or proposes to take with respect thereto), (ii) setting
forth in reasonable detail the computations necessary to
determine whether the Obligors are in compliance with Sections
9.09 through 9.14 (inclusive) and 9.22 hereof as of the end of
the respective quarterly fiscal period or fiscal year and (iii)
setting forth in reasonable detail the Pricing Leverage Ratio as
of the end of the respective quarterly fiscal period or fiscal
year.
9.02 Litigation. Promptly upon becoming aware
thereof, the Company (for itself and on behalf of the Guarantor
and its Subsidiaries) will promptly give to each Lender notice of
all legal or arbitral proceedings, and of all proceedings by or
before any governmental or regulatory authority or agency, and
any material development in respect of such legal or other
proceedings, affecting the Guarantor or any of its Subsidiaries,
except proceedings that, if adversely determined, could not
(either individually or in the aggregate) reasonably be expected
to have a Material Adverse Effect.
9.03 Existence, Etc. The Guarantor will, and will
cause each of its Subsidiaries to:
(a) preserve and maintain its legal existence and all
of its material rights, privileges, licenses and franchises
(provided that nothing in this Section 9.03 shall prohibit
any transaction expressly permitted under Section 9.05
hereof);
(b) comply with the requirements of all applicable
laws, rules, regulations and orders of governmental or
regulatory authorities if failure to comply with such
requirements could (either individually or in the aggregate)
reasonably be expected to have a Material Adverse Effect;
(c) pay and discharge all material taxes, assessments
and governmental charges or levies imposed on it or on its
income or profits or on any of its Property prior to the
date on which penalties attach thereto, except for any such
tax, assessment, charge or levy the payment of which is
being contested in good faith and by proper proceedings and
against which adequate reserves are being maintained;
(d) maintain all of its Properties used or useful in
its business in good working order and condition, ordinary
wear and tear excepted;
(e) keep adequate records and books of account, in
which complete entries will be made in accordance with
generally accepted accounting principles consistently
applied; and
(f) permit representatives of any Lender or the Agent,
during normal business hours, to examine, copy and make
extracts from its books and records, to inspect any of its
Properties, and to discuss its business and affairs with its
officers and independent certified public accountants, all
to the extent reasonably requested by such Lender or the
Agent (as the case may be).
9.04 Insurance. The Guarantor will, and will cause
each of its Subsidiaries to, keep insured by financially sound
and reputable insurers all Property of a character usually
insured by corporations engaged in the same or similar business
similarly situated against loss, damage and liability of the
kinds and in the amounts customarily insured against by such
corporations, provided that in any event the Company will
maintain (with respect to itself and each of its Subsidiaries)
insurance against such risks and on such terms as the insurance
evidenced by the certificates delivered on the Initial Borrowing
Date pursuant to Section 7.01(s) of the Existing Credit Agreement
and such other insurance as may be reasonably requested by the
Majority Lenders.
Such insurance shall be written by financially
responsible companies selected by the Company, duly licensed to
do business in the states in which the relevant facilities are
located and having an A. M. Best rating of "A-" or better and
being in a financial size category of VIII or larger, or by other
companies acceptable to the Agent. The policies for any casualty
insurance required hereunder shall either name or contain an
endorsement naming the Agent as first mortgagee and loss payee
under a first mortgage clause or endorsement without contribution
substantially equivalent to the New York standard first mortgage
clause of endorsement. Each policy referred to in this
Section 9.04 shall provide that it will not be canceled or
reduced, or allowed to lapse without renewal, except after not
less than 30 days' notice to the Agent and shall also provide
that the interests of the Agent and the Lenders shall not be
invalidated by any act or negligence of the Obligor or any Person
having an interest in any Property covered by the Mortgage nor by
occupancy or use of any such Property for purposes more hazardous
than permitted by such policy nor by any foreclosure or other
proceedings relating to such Property and shall otherwise be in
form and substance satisfactory to each Lender. The Company will
advise the Agent promptly of any policy cancellation, reduction
or amendment.
By October 31 of each year, the Company will deliver to
the Agent the certificates of insurance evidencing that all
insurance required to be maintained by the Company hereunder will
be in effect for the 12 months beginning after the immediately
succeeding November 1, subject only to the payment of premiums as
they become due. The Company will not obtain or carry separate
insurance concurrent in form or contributing in the event of loss
with that required by this Section 9.04 unless the Agent, on
behalf of the Lenders, is named as first mortgagee and loss payee
as provided herein. The Company will immediately notify the
Agent whenever any such separate insurance is obtained and shall
deliver to the Agent the certificates evidencing the same.
Without limiting the obligations of the Company under
the foregoing provisions of this Section 9.04, in the event the
Company shall fail to maintain in full force and effect insurance
as required by the foregoing provisions of this Section 9.04,
then the Agent may, but shall have no obligation so to do,
procure insurance covering the interests of the Lenders and the
Agent in such amounts and against such risks as the Agent (or the
Majority Lenders) shall deem appropriate, and the Company shall
reimburse the Agent in respect of any premiums paid by the Agent
in respect thereof.
9.05 Prohibition of Fundamental Changes. The
Guarantor will not, nor will it permit any of its Subsidiaries
to, enter into any transaction of merger or consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer
any liquidation or dissolution).
The Guarantor will not, nor will it permit any of its
Subsidiaries to, acquire any business or Property from, or
capital stock of, or be a party to any acquisition of, any Person
except for (i) the Xxxxxxx Acquisition, (ii) purchases of
inventory and other Property to be sold or used in the ordinary
course of business, (iii) Investments permitted under
Section 9.08 hereof, (iv) Capital Expenditures permitted under
Section 9.14 hereof and (v) Permitted Acquisitions; provided that
after giving effect to any such Permitted Acquisition, and after
giving Pro Forma Effect thereto, no Default shall have occurred
and be continuing.
The Guarantor will not, nor will it permit any of its
Subsidiaries to, convey, sell, lease, transfer or otherwise
dispose of, in one transaction or a series of transactions, any
part of its business or Property, whether now owned or hereafter
acquired, including, without limitation, receivables and
leasehold interests, but excluding (i) obsolete or worn-out
Property, tools or equipment no longer used or useful in its
business, (ii) any inventory or other Property sold or disposed
of in the ordinary course of business and on ordinary business
terms, (iii) any Part A Property sold or disposed of for fair
value, (iv) any Part B Property sold or disposed of within one
year prior to or after the Disposition of any Part A Property
located in the same geographical area if the proceeds thereof are
applied as provided in Section 2.10(e) hereof, (v) shares in
United Business Computers, Inc. to be transferred as described in
Schedule III hereto and (vi) other Properties sold for fair value
provided that at least 85% of the proceeds of each such sale
shall be received in cash and the aggregate Net Available
Proceeds received from the sale of such Properties and all other
Properties sold pursuant to this clause (vi) shall not exceed
$15,000,000. Notwithstanding the foregoing provisions of this
Section 9.05:
(a) any Subsidiary of the Company may be merged or
consolidated with or into: (i) the Company if the Company
shall be the continuing or surviving corporation or (ii) any
other such Subsidiary; provided that (x) if any such
transaction shall be between a Subsidiary and a Wholly-Owned
Subsidiary, the Wholly-Owned Subsidiary shall be the
continuing or surviving corporation;
(b) any Subsidiary of the Company may sell, lease,
transfer or otherwise dispose of any or all of its Property
(upon voluntary liquidation or otherwise) to the Company or
a Wholly-Owned Subsidiary of the Company;
(c) the Company and its Subsidiaries may sell or
discount, in each case without recourse and in the ordinary
course of business, receivables more than 90 days overdue
and arising in the ordinary course of business, but only in
connection with the compromise or collection thereof
consistent with customary industry practice (and not as part
of any bulk sale or financing of receivables);
(d) the Company and its Subsidiaries may transfer
condemned Property to the respective governmental authority
or agency that has condemned the same (whether by deed in
lieu of condemnation or otherwise), and may transfer
Properties that have been subject to a casualty to the
respective insurer (or its designee) of such Property as
part of an insurance settlement;
(e) the Company and its Subsidiaries may license or
sublicense software, trademarks, and other intellectual
property in the ordinary course of business which do not
materially interfere with the business of the Company or any
Subsidiary; and
(f) the Company and its Subsidiaries may enter into
consignment arrangements (as consignor or consignee) or
similar arrangements for the sale of goods in the ordinary
course of business and consistent with the past practices of
the Company and its Subsidiaries.
9.06 Limitation on Liens. The Guarantor will not, nor
will it permit any of its Subsidiaries to, create, incur, assume
or suffer to exist any Lien upon any of its Property, whether now
owned or hereafter acquired, except:
(a) Liens created pursuant to the Security Documents;
(b) Liens in existence on the date hereof and
(i) listed in Part C of Schedule I hereto or (ii) listed in
any policy of title insurance delivered under the Existing
Credit Agreement;
(c) Xxxxx imposed by any governmental authority for
taxes, assessments or charges not yet due or that are being
contested in good faith and by appropriate proceedings if,
unless the amount thereof is not material with respect to it
or its financial condition, adequate reserves with respect
thereto are maintained on the books of the Guarantor or the
affected Subsidiaries, as the case may be, in accordance
with GAAP;
(d) carriers', warehousemen's, mechanics',
materialmen's, repairmen's, landlord's or other like Liens
arising in the ordinary course of business that are not
overdue for a period of more than 30 days or that are being
contested in good faith and by appropriate proceedings and
Liens securing judgments but only to the extent for an
amount and for a period not resulting in an Event of Default
under Section 10(h) hereof;
(e) pledges or deposits under worker's compensation,
unemployment insurance and other social security
legislation;
(f) deposits to secure the performance of bids, trade
contracts (other than for Indebtedness), leases, statutory
obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature incurred in the ordinary
course of business;
(g) easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of
business and encumbrances consisting of zoning restrictions,
easements, licenses, restrictions on the use of Property,
encroachments, protrusions or minor imperfections in title
thereto that, in the aggregate, are not material in amount,
and that do not in any case materially detract from the
value of the Property subject thereto or materially
interfere with the ordinary conduct of the business of the
Company or any of its Subsidiaries;
(h) Liens on Property of any corporation that becomes
a Subsidiary of the Guarantor after the Effective Date;
provided that such Liens are in existence at the time such
corporation becomes a Subsidiary of the Guarantor and were
not created in anticipation thereof;
(i) Liens upon Property acquired after the date hereof
(by purchase, construction or otherwise) by the Company or
any of its Subsidiaries, each of which Liens either
(A) existed on such Property before the time of its
acquisition and was not created in anticipation thereof or
(B) was created within 120 days of the acquisition or
completion of construction of such Property solely for the
purpose of securing Indebtedness representing, or incurred
to finance, refinance or refund, the cost (including the
cost of construction) of such Property; provided that (i) no
such Lien shall extend to or cover any Property of the
Company or such Subsidiary other than the Property so
acquired and improvements thereon and (ii) the principal
amount of Indebtedness secured by any such Lien shall at no
time exceed 100% of the fair market value (as determined in
good faith by a Responsible Officer of the Company) of such
Property at the time it was acquired (by purchase,
construction or otherwise);
(j) Liens in respect of Capital Lease Obligations to
the extent permitted by Sections 9.07 and 9.14 hereof;
(k) Liens securing the obligations of the Company
under Interest Rate Protection Agreements permitted by
Section 9.08(i) hereof;
(l) licenses, leases or subleases granted to others in
the ordinary course of business not materially interfering
with the conduct of the business of the Company and its
Subsidiaries taken as a whole;
(m) statutory and contractual landlords' liens under
leases to which the Company or any of its Subsidiaries is a
party;
(n) any interest or title of a lessor, sublessor,
licensee or licensor under any lease or license agreement
permitted by this Agreement;
(o) Liens in favor of a banking institution arising as
a matter of law encumbering deposits (including the right of
set-off) held by such banking institutions incurred in the
ordinary course of business and which are within the general
parameters customary in the banking industry;
(p) Liens in favor of customs and revenue authorities
arising as a matter of law to secure the payment of customs'
duties in connection with the importation of goods; and
(q) any extension, renewal or replacement of the
foregoing, provided, however, that the Liens permitted
hereunder shall not be spread to cover any additional
Indebtedness or Property (other than a substitution of like
Property).
9.07 Indebtedness. The Guarantor will not, nor will
it permit any of its Subsidiaries to, create, incur or suffer to
exist any Indebtedness except:
(a) Indebtedness to the Lenders hereunder and under
the other Basic Documents;
(b) the Guarantor Note and other Indebtedness
outstanding on the date hereof and listed in Schedule I
hereto;
(c) Indebtedness of any Wholly-Owned Subsidiary of the
Company (i) to the Company in an aggregate unpaid principal
amount of not more than $25,000,000, in the case of Xxxxxxx,
or $1,500,000, in the case of any other such Wholly-Owned
Subsidiary or (ii) to any other Wholly-Owned Subsidiary of
the Company;
(d) Indebtedness of the Company to any Wholly-Owned
Subsidiary of the Guarantor provided that all such
Indebtedness is subordinate on terms satisfactory to the
Majority Lenders to the Indebtedness to the Lenders
hereunder and under the other Basic Documents and is
evidenced by an intercompany promissory note which is
pledged to the Agent as collateral;
(e) Indebtedness of the Company or any Subsidiary as a
guarantor of the lessee under any lease pursuant to which
the Company or any Subsidiary of the Company is a lessee so
long as such lease is otherwise permitted hereunder;
(f) Indebtedness incurred on or after the Revolving
Credit Commitment Termination Date and after the payment in
full of all Revolving Credit Loans and all Letter of Credit
Liabilities for working capital or other general corporate
purposes of the Company and/or its Subsidiaries not to
exceed $300,000,000 in the aggregate and on terms
satisfactory to the Majority Lenders in their reasonable
discretion; and
(g) Indebtedness of the Company and its Subsidiaries
incurred after the Effective Date (including, without
limitation, Capital Lease Obligations and other Indebtedness
secured by Liens permitted under Sections 9.06(i) or 9.06(j)
hereof) up to but not exceeding, in the case of the Company,
$20,000,000 (less the amount of any outstanding Indebtedness
incurred since the Initial Borrowing Date by the Company or
any of its Subsidiaries that would not qualify as
Indebtedness under clauses (a) through (h) of Section 9.07
of the Existing Credit Agreement) and, in the case of any
Subsidiary of the Company, $500,000, at any one time
outstanding.
9.08 Investments. The Guarantor will not, nor will it
permit any of its Subsidiaries to, make or permit to remain
outstanding any Investments except:
(a) the Guarantor Note and other Investments
outstanding on the date hereof and identified in
Schedule III hereto;
(b) operating deposit accounts with banks;
(c) Permitted Investments;
(d) Investments by the Guarantor in the Company;
(e) Customer advances not to exceed $250,000 in the
aggregate at any one time outstanding;
(f) travel and relocation loans and advances to
employees in the ordinary course of business not to exceed
$1,000,000 in the aggregate at any one time outstanding;
(g) deposits permitted by Section 9.06(f) hereof;
(h) Investments received in settlement of defaulted
Receivables or in connection with the bankruptcy or
reorganization of suppliers and customers and in connection
with the settlement of other disputes with customers and
suppliers arising in the ordinary course of business;
(i) Interest Rate Protection Agreements, required by
Section 9.15 hereof;
(j) intercompany loans to the extent permitted by
Section 9.07(c) or (d) hereof;
(k) Permitted Acquisitions; and
(l) additional Investments up to but not exceeding
$1,000,000 in the aggregate less any Investment made by the
Guarantor or any of its Subsidiaries since the Initial
Borrowing Date that does not otherwise qualify as an
Investment under clauses (b) through (k) of Section 9.08 of
the Existing Credit Agreement.
9.09 Dividend Payments. (a) The Company will not,
nor will it permit any of its Subsidiaries to, declare or make
any Dividend Payment at any time; provided, however, that (1) any
Subsidiary of the Company may make any Dividend Payment to the
Company or any Wholly-Owned Subsidiary of the Company and (2) the
Company may declare and make Dividend Payments in cash in respect
of its common stock (i) to enable the Guarantor to pay any
income, franchise or like taxes to the extent permitted by the
Tax Sharing Agreement, (ii) to enable the Guarantor to pay its
operating expenses incurred in the ordinary course of business
and other corporate overhead costs and expenses (including,
without limitation, legal, accounting, reporting, listing and
similar expenses) in an aggregate amount not in excess of
$750,000 in any fiscal year, (iii) to enable the Guarantor to
acquire shares of capital stock to distribute to directors,
officers and other employees pursuant to employee benefit plans,
(iv) to enable the Guarantor to make cash payments of dividends
in respect of the Guarantor Preferred Stock or to pay Accrued
Warrant Liabilities, and (v) to enable the Guarantor to
repurchase its common stock from former employees of the Company
for an aggregate purchase price of no more than $600,000 in any
12-month period, subject, in the case of clauses (iii), (iv) and
(v) above, to the satisfaction of the following conditions on the
date of such Dividend Payment and after giving effect thereto and
to the application of any Excess Cash Flow then required to be
applied pursuant to Section 2.10(c) hereof:
(1) no Default shall have occurred and be
continuing;
(2) the Fixed Charges Ratio as at the last
day of the fiscal quarter of the Company most recently
ended prior to the date of such Dividend Payment shall
not be less than 1.2 to 1;
(3) the aggregate amount of such Dividend
Payments made in cash in any fiscal year of the Company
shall not exceed an amount equal to 25% of the Excess
Cash Flow for the fiscal year of the Company most
recently ended prior to the date of such Dividend
Payment;
(4) the average, for the immediately
preceding 90 days, of the excess of (i) the lesser of
(x) the Borrowing Base and (y) the aggregate Revolving
Credit Commitments over (ii) the sum of the outstanding
principal amount of Revolving Credit Loans, and the
Swingline Loans and the aggregate amount of Letter of
Credit Liabilities shall be an amount at least equal to
$50,000,000; and
(5) at least 10 Business Days (but not more
than 20 Business Days) prior to the date of each such
Dividend Payment, the Company shall have delivered to
each Lender a certificate of a Responsible Officer of
the Company stating that, both before and after giving
effect to the Dividend Payment to be made, no Default
exists and demonstrating compliance with the conditions
set forth in clauses (2), (3) and (4) of this
Section 9.09(a).
(b) The Guarantor will not declare or make any
Dividend Payment except (i) (subject to paragraph (c) below)
regularly scheduled Dividend Payments in respect of Guarantor
Preferred Stock and payments of Accrued Warrant Liabilities,
(ii) repurchases of common stock of the Guarantor from former
employees of the Company for an aggregate purchase price of no
more than $600,000 in any 12-month period, (iii) repurchases of
common stock of the Guarantor to distribute to directors,
officers and other employees pursuant to employee benefit plans,
(iv) repurchases of fractional shares of the common stock of the
Guarantor, provided the aggregate purchase price of all such
fractional shares so repurchased under this clause (iv) since the
Initial Borrowing Date does not exceed $10,000, (v) repurchases
of shares of the common stock of the Guarantor held by
shareholders holding fewer than 100 such shares provided the
aggregate purchase price of all such shares so repurchased under
this clause (v) since the Initial Borrowing Date does not exceed
$150,000 and (vi) the redemption of the Guarantor's Series A
Preferred Stock and/or Series C Preferred Stock in accordance
with Section 9.09(d).
(c) The Guarantor will not make any Dividend Payment
in respect of Guarantor Preferred Stock in cash, except to the
extent that the Company would then be permitted under
Section 9.09(a) hereof to make Dividend Payments in cash to the
Guarantor to fund the same or as is contemplated by Section
9.09(d).
(d) Notwithstanding anything to the contrary in this
Section 9.09 or Section 2.10(d) or (g) or 9.16, the Guarantor may
use the Net Available Proceeds of the Primary Offering to redeem
in whole or in part its Series A Preferred Stock and/or Series C
Preferred Stock to the extent set forth below, if, and only if,
the Net Available Proceeds from the Primary Offering are applied
as follows:
(i) First, an amount of such Net Available
Proceeds equal to (but not exceeding) $77,875,000 may
be applied at the discretion of the Obligors to the
partial or full redemption of the Guarantor's Series A
Preferred Stock and/or Series C Preferred Stock
(including the payments of all accrued dividends
thereon) and to the redemption of the Senior
Subordinated Notes in accordance with the Indenture
(and the payment of any premium on such Senior
Subordinated Notes due under such Indenture in
connection with such redemption); provided that (A) at
least $56,375,000 of such Net Available Proceeds must
be applied to such redemption of the Senior
Subordinated Notes (and the payment of any such premium
thereon) prior to the redemption of any of the
Guarantor's Series A Preferred Stock or Series C
Preferred Stock, (B) no more than $21,500,000 of such
Net Available Proceeds may be used to redeem any such
Series A Preferred Stock or Series C Preferred Stock,
(C) prior to redeeming such Series A Preferred Stock or
Series C Preferred Stock, the Guarantor shall have
received all applicable consents thereto, (D) any such
Series A Preferred Stock or Series C Preferred Stock so
redeemed shall be immediately retired, (E) such
redemption shall have taken place not more than 60 days
after the Guarantor has committed to such redemption
and (F) at the time the Guarantor shall have committed
to any such redemption, no Default shall have occurred
and be continuing; and
(ii) Second, the remaining amount of such
Net Available Proceeds in excess of $50,000 (including
any portion of the $77,875,000 available under the
preceding clause (i) to redeem the preferred stock of
the Guarantor and/or repurchase the Senior Subordinated
Notes that is not so applied) shall be applied to the
prepayment of the Term Loans pro rata between each
Class of Term Loans and, as to each Class, pro rata to
the remaining installments thereof; and
(iii) Finally, any such Net Available
Proceeds remaining thereafter may be used for general
corporate purposes.
9.10 Net Worth. The Guarantor will not permit Net
Worth to be less than the sum of (a) $70,000,000 plus (b) 75% of
the sum of Net Income (if positive) for each fiscal quarter of
the Guarantor commencing with the first full fiscal quarter
occurring after the Initial Borrowing Date plus (c) 100% of the
amount by which Net Worth shall have been increased as a result
of the Primary Offering minus (d) $3,750,000.
9.11 Debt to Cash Flow Ratio. The Guarantor will not
permit the Debt to Cash Flow Ratio to exceed the following
respective amounts at any time during the following respective
periods:
Period Ratio
From the date hereof
through December 30, 1996 5.25 to 1
From December 31, 1996
through June 29, 1997 5.00 to 1
From June 30, 1997
through December 30, 1997 4.75 to 1
From December 31, 1997
through December 30, 1998 4.50 to 1
From December 31, 1998
through December 30, 1999 4.00 to 1
From December 31, 1999
through December 30, 2000 3.75 to 1
From December 31, 2000
through December 30, 2001 3.50 to 1
From December 31, 2001 3.25 to 1
9.12 Fixed Charges Ratio. The Guarantor will not
permit the Fixed Charges Ratio to be less than the following
respective amounts at any time during the following respective
periods:
Period Ratio
From the date hereof
through December 30, 1998 1.05 to 1
From December 31, 1998
and thereafter 1.10 to 1
9.13 Interest Coverage Ratio. The Guarantor will not
permit the Interest Coverage Ratio to be less than the following
respective amounts at any time during the following respective
periods:
Period Ratio
From the date hereof
through December 30, 1998 2.00 to 1
From December 31, 1998
and thereafter 2.50 to 1
9.14 Capital Expenditures. (a) The Company will not
permit the aggregate amount of Capital Expenditures by the
Company and its Subsidiaries to exceed $15,000,000 in any fiscal
year.
(b) Notwithstanding anything to the contrary contained
in paragraph (a) above, to the extent that the aggregate amount
of Capital Expenditures made by the Company and its Subsidiaries
in any fiscal year are less than $15,000,000, the amount of such
difference may be carried forward to the next succeeding fiscal
year and used to make Capital Expenditures in such immediately
succeeding fiscal year of the Company; provided that in no event
may any such amount carried forward from a fiscal year exceed
$15,000,000 minus the amount of Capital Expenditures made by the
Company and its Subsidiaries in such fiscal year.
(c) In addition to the Capital Expenditures permitted
pursuant to the preceding paragraphs (a) and (b), the Company and
its Subsidiaries may make additional Capital Expenditures as
follows: (i) Capital Expenditures consisting of a reinvestment
of the Net Available Proceeds of any asset sales not required to
be applied to prepay the Loans pursuant to Section 2.10(e)
hereof; (ii) Capital Expenditures consisting of the reinvestment
of that portion of Excess Cash Flow generated during the prior
fiscal year and not required to be applied to prepay the Loans
pursuant to Section 2.01(c) hereof; (iii) the reinvestment of
insurance or condemnation proceeds payable by reason of theft,
loss, physical destruction or damage or any similar event or as a
result of condemnation or deed in lieu thereof and (iv) the
purchase price paid by the Guarantor or any of its Subsidiaries
in respect of Permitted Acquisitions.
9.15 Interest Rate Protection Agreements. The Company
will by March 31, 1997 effect one or more Interest Rate
Protection Agreements with one or more of the Lenders that
effectively enables the Company (in a manner satisfactory to the
Agent), as at any date, to protect itself against three-month
London interbank offered rates exceeding 8% per annum as to a
notional principal amount at least equal to $150,000,000 for a
period of at least three years after the Effective Date and shall
maintain such Interest Rate Protection Agreements in full force
and effect throughout such period.
9.16 Subordinated Indebtedness. The Guarantor will
not, nor will it permit any of its Subsidiaries to purchase,
redeem, retire or otherwise acquire for value, or set apart any
money for a sinking, defeasance or other analogous fund for the
purchase, redemption, retirement or other acquisition of, or make
any voluntary payment or prepayment of the principal of or
interest on, or any other amount owing in respect of, any
Subordinated Indebtedness, except for (i) regularly scheduled
payments or prepayments of principal and interest in respect
thereof required pursuant to the instruments evidencing such
Subordinated Indebtedness and (ii) the repayment of the Senior
Subordinated Notes from the Net Available Proceeds of the Primary
Offering, provided such Net Available Proceeds are applied in
accordance with Section 9.09(d) hereof.
9.17 Lines of Business. The Guarantor will not, nor
will it permit any of its Subsidiaries (including, without
limitation, the Company) to, engage to any substantial extent in
any line or lines of business activity other than the business of
the wholesale distribution and selling of office products,
computers, computer products, janitorial supplies and similar
products and the provision of fulfillment services.
9.18 Transactions with Affiliates. Except as
expressly permitted by this Agreement, the Guarantor will not,
nor will it permit any of its Subsidiaries to, directly or
indirectly: (a) make any Investment in an Affiliate;
(b) transfer, sell, lease, assign or otherwise dispose of any
Property to an Affiliate; (c) merge into or consolidate with or
purchase or acquire Property from an Affiliate; or (d) enter into
any other transaction (other than the payment of Sponsor
Management Fees permitted by Section 9.22 hereof) directly or
indirectly with or for the benefit of an Affiliate (including,
without limitation, Guarantees and assumptions of obligations of
an Affiliate); provided that (x) any Affiliate who is an
individual may serve as a director, officer, employee or
consultant of the Guarantor or any of its Subsidiaries and
receive reasonable compensation for his or her services in such
capacity and (y) the Company and its Subsidiaries may enter into
transactions (other than extensions of credit by the Company or
any of its Subsidiaries to an Affiliate) providing for the
leasing of Property, the rendering or receipt of services or the
purchase or sale of inventory and other Property in the ordinary
course of business if the monetary or business consideration
arising therefrom would be substantially as advantageous to the
Company and its Subsidiaries as the monetary or business
consideration that would obtain in a comparable transaction with
a Person not an Affiliate.
9.19 Use of Proceeds.
(a) The Company will use the proceeds of the Term
Loans (to the extent in excess of the Term Loans continued from
the Existing Credit Agreement) and the Revolving Credit Loans
solely (i) to consummate the Xxxxxxx Acquisition, (ii) to
refinance certain existing Indebtedness of Xxxxxxx listed in
Schedule I hereto, (iii) to make Permitted Acquisitions from time
to time not exceeding in the aggregate $25,000,000 and (iv) and
for general corporate purposes of the Company and its
Subsidiaries; provided that no such proceeds may be contributed
to Xxxxxxx and may only be loaned by the Company to Xxxxxxx
pursuant to an open account advance not evidenced by any
negotiable instrument (a "Xxxxxxx Advance").
(b) The use of the proceeds of the Loans by the
Company shall be in compliance with all applicable legal and
regulatory requirements, including, without limitation,
Regulations G, U and X, the Securities Act of 1933, as amended,
and the Exchange Act and the regulations thereunder; provided
that neither the Agent nor any Lender shall have any
responsibility as to the use of any of such proceeds.
9.20 Modifications of Certain Documents. (a) Without
the prior consent of the Agent (with the approval of the Majority
Lenders), neither Obligor will consent to any modification,
supplement or waiver of (i) any of the provisions of the Senior
Subordinated Debt Documents (except any supplemental indenture
contemplated by Section 1017(a) or (c) of the Indenture) or (ii)
the Guarantor Preferred Stock or the Warrant Agreement to the
extent such modification, supplement or waiver would increase the
amount of regularly scheduled Dividend Payments in respect of
Guarantor Preferred Stock or the amount of Accrued Warrant
Liabilities.
(b) The Guarantor will not take any action to modify
or supplement the Articles of Incorporation of the Company, other
than modifications that do not adversely affect the interests of
the Lenders, without the prior approval of the Majority Lenders.
9.21 Ownership of the Company. The Guarantor will at
all times hold not less than 100% of the issued and outstanding
capital stock of the Company.
9.22 Management Fees, Etc. (a) Neither Obligor will
pay to any Sponsor any management, consultant, financial advisor,
director or similar fees ("Sponsor Management Fees"), except that
the Obligors may pay (1) Sponsor Management Fees of not more than
$70,834 in any month (the "Monthly Management Fees") plus (2) up
to an additional $150,000 of Sponsor Management Fees for any
fiscal year (the "Annual Management Fee") if, giving effect to
the payment of all Monthly Management Fees and to the payment of
such Annual Management Fee (solely for which purpose such Annual
Management Fee shall be deemed to have been paid in such fiscal
year), EBITDA of the Company for such fiscal year is not less
than EBITDA of the Company as set forth opposite such fiscal year
in Schedule VII hereto; provided that no Annual Management Fee
for any fiscal year shall be paid until each Lender has received
the financial statements of the Company for such fiscal year
required to be delivered to such Lender pursuant to Section
9.01(c) hereof; and provided, further, that, in any event, no
Annual Management Fee shall be paid if, at the time of such
payment and after giving effect thereto, any Event of Default
shall have occurred and be continuing; and provided, further,
that any Annual Management Fees that shall not be paid because of
the occurrence and continuance of any Event of Default shall
continue to accrue.
(b) Neither Obligor nor any of its Subsidiaries shall
pay any severance payments or fees or other amounts to any
officer or director of Xxxxxxx in connection with or as a result,
directly or indirectly, of the Xxxxxxx Acquisition except
pursuant to a schedule delivered to the Agent prior to the
Effective Date and in form and substance satisfactory to the
Agent.
9.23 Taxes; Tax Sharing Agreement. The Guarantor and
its Subsidiaries will file consolidated Federal income tax
returns. Prior to filing any Federal income tax returns or
paying any Federal income tax after the Xxxxxxx Acquisition,
Xxxxxxx will become a party to the tax allocation agreement (the
"Tax Sharing Agreement") among the Guarantor and its
Subsidiaries.
9.24 Subsidiary Guarantors; Additional Mortgaged
Property.
(a) In the event that the Guarantor shall, after the
Effective Date, directly or indirectly hold or acquire any
Domestic Subsidiary, the Company will notify the Lenders (through
the Agent) and will, and will cause each of its other
Subsidiaries to, cause such Domestic Subsidiary (i) to execute
and deliver a written guarantee of the Guaranteed Obligations and
a security agreement in substantially the form of Exhibit B-2
hereto, mutatis mutandis, (ii) at the request of the Majority
Lenders, to enter into a Mortgage covering all of the interests
in material real Property owned by such Domestic Subsidiary and
(iii) to deliver such proof of corporate action, incumbency of
officers, opinions of counsel and other documents as are
consistent with those delivered by the Company pursuant to
Section 7.01 hereof on the Initial Borrowing Date or as the Agent
shall have reasonably requested.
(b) If (x) the Company repays any Indebtedness
described in any of items 1 and 3 of Part C of Schedule I hereto
or (y) the Company or any of its Subsidiaries acquires or leases
any material real Property after the Effective Date, other than
any real Property encumbered by Liens permitted by Section
9.06(i) hereof, the Company or such Subsidiary will promptly
execute a Mortgage covering the Property securing such repaid
Indebtedness or such newly-acquired Property, as the case may be,
together with such surveys, title insurance policies and
endorsements, certificates of occupancy and such other
agreements, estoppels and consents (including agreements with
lessors) as the Agent may reasonably require. In addition, at
the request of the Agent, the Company shall, or shall cause
Xxxxxxx to, execute a Mortgage covering any Property that is
owned or leased by Xxxxxxx on the date hereof for which a
Mortgage was not delivered on the Effective Date, together with
such surveys, title insurance policies and endorsements,
certificates of occupancy and such other agreements, estoppels
and consents (including agreements with lessors) as the Agent may
reasonably require with respect to such Property and which are
available upon the exercise by the Company and Xxxxxxx of
commercially reasonable efforts.
(c) The Company will (i) prior to November 10, 1996,
execute and deliver to the Agent an amendment or other
modification to each Mortgage covering Property of the Company
located in any of the States of Colorado, Florida (other than the
leasehold property of the Company in Florida), Louisiana,
Michigan, New Jersey, New York, North Carolina and Ohio and (ii)
cause the applicable title company to, prior to January 31, 1997,
deliver to the Agent endorsements of the mortgagee policies of
title insurance delivered by such title company under the
Existing Credit Agreement (or, if such endorsements are not
available, new mortgage policies of title in sequence) with
respect to Properties covered by the Mortgages (other than any
such Properties located in the State of Texas and the leasehold
Property of the Company located in the State of Florida) each
such amendment or modification and endorsement to be in form and
substance satisfactory to the Agent.
(d) The Company will cause Xxxxxxx to execute and
deliver, prior to November 10, 1996, a Mortgage covering the real
Property of Xxxxxxx located at 0000 Xxxxxx Xxxxxx, Xxx Xxxxxxx,
Xx., as identified under the heading "Mortgages" in Schedule IV
hereto, in each case duly executed and delivered by Xxxxxxx in
recordable form (and in such number of copies as the Agent shall
have reasonably requested).
9.25 Termination of ERISA Plans. The Company will not
and will not permit any Subsidiary to withdraw from any
Multiemployer Plan or permit any employee benefit plan maintained
by it to be terminated if such withdrawal or termination could
result in withdrawal liability (as described in Part 1 of
Subtitle E of Title IV of ERISA) or the imposition of a Lien on
any Property of the Company or any Subsidiary pursuant to
Section 4068 of ERISA.
9.26 Limitations on Restrictions. The Guarantor will
not and will not permit any of its Subsidiaries to enter into any
agreement or arrangement that would prohibit, prevent or
otherwise limit or impede the Guarantor or such Subsidiary from
encumbering any of its respective assets for the benefit of the
Lenders (other than any such assets subject to a Lien permitted
by Section 9.06(i) or (j)).
Section 10. Events of Default. If one or more of the
following events (herein called "Events of Default") shall occur
and be continuing:
(a) Either Obligor shall (i) default in the payment
when due (whether at stated maturity or upon mandatory or
optional prepayment) of any principal of any Loan or any
Reimbursement Obligation or (ii) default in the payment when
due of any interest on any Loan or any Reimbursement
Obligation or any fee or any other amount payable by it
hereunder or under any other Basic Document and such default
shall continue unremedied for three or more Business Days;
or
(b) Either Obligor or any of their respective
Subsidiaries (the Obligors and such Subsidiaries herein
collectively called the "Relevant Parties") shall default in
the payment when due of any principal of or interest on any
of its Indebtedness aggregating $5,000,000 or more, or in
the payment when due of any amount under any Interest Rate
Protection Agreement for a notional principal amount
exceeding $5,000,000; or any event specified in any note,
agreement, indenture or other document evidencing or
relating to any such Indebtedness or any event specified in
any Interest Rate Protection Agreement shall occur if the
effect of such event is to cause, or (with the giving of any
notice or the lapse of time or both) to permit the holder or
holders Indebtedness (or a trustee or agent on behalf of
such holder or holders) to cause, Indebtedness to become
due, or to be prepaid in full (whether by redemption,
purchase, offer to purchase or otherwise), prior to its
stated maturity or to have the interest rate thereon reset
to a level so that securities evidencing such Indebtedness
trade at a level specified in relation to the par value
thereof or, in the case of an Interest Rate Protection
Agreement, to permit the payments owing under such Interest
Rate Protection Agreement to be liquidated; or
(c) Any representation, warranty or certification made
or deemed made herein or in any Transaction Document
hereunder or any Transaction Document as defined in the
Existing Credit Agreement (or in any modification or
supplement hereto or thereto) by any party thereto, or any
certificate furnished to any Lender or the Agent pursuant to
the provisions of any Basic Document, shall prove to have
been false or misleading as of the time made or furnished in
any material respect; or
(d) The Company, the Guarantor or Xxxxxxx (as
applicable) shall default in the performance of any of its
obligations under any of Sections 9.01(g), 9.01(k), 9.05
through 9.16, inclusive, 9.18 through 9.22, inclusive, and
9.26 hereof or either the Company or the Guarantor shall
default in the performance of any of its obligations under
Section 4.02, 5.02 or 5.07 of the Security Agreement or the
equivalent provisions under the Xxxxxxx Guarantee and
Security Agreement, Section 4.02 or 4.07 of the Pledge
Agreement or any provisions of any Mortgage (or any Domestic
Subsidiary shall default in the performance of its
obligations under the equivalent provisions in any Guarantee
and Security Agreement delivered pursuant to Section 9.24
hereof); or any Obligor shall default in the performance of
any of its other obligations in this Agreement or any other
Basic Document and such default shall continue unremedied
for a period of ten or more days after notice thereof to the
Company by the Agent or any Lender (through the Agent); or
(e) Any Relevant Party shall admit in writing its
inability to, or be generally unable to, pay its debts as
such debts become due; or
(f) Any Relevant Party shall (i) apply for or consent
to the appointment of, or the taking of possession by, a
receiver, custodian, trustee, examiner or liquidator of
itself or of all or a substantial part of its Property,
(ii) make a general assignment for the benefit of its
creditors, (iii) commence a voluntary case under the
Bankruptcy Code, (iv) file a petition seeking to take
advantage of any other law relating to bankruptcy,
insolvency, reorganization, liquidation, dissolution,
arrangement or winding-up, or composition or readjustment of
debts, (v) fail to controvert in a timely and appropriate
manner, or acquiesce in writing to, any petition filed
against it in an involuntary case under the Bankruptcy Code
or (vi) take any corporate action for the purpose of
effecting any of the foregoing; or
(g) A proceeding or case shall be commenced, without
the application or consent of the affected Relevant Party,
in any court of competent jurisdiction, seeking (i) its
reorganization, liquidation, dissolution, arrangement or
winding-up, or the composition or readjustment of its debts,
(ii) the appointment of a receiver, custodian, trustee,
examiner, liquidator or the like of such Relevant Party or
of all or any substantial part of its Property or
(iii) similar relief in respect of such Relevant Party under
any law relating to bankruptcy, insolvency, reorganization,
winding-up, or composition or adjustment of debts, and such
proceeding or case shall continue undismissed, or an order,
judgment or decree approving or ordering any of the
foregoing shall be entered and continue unstayed and in
effect, for a period of 60 or more days; or an order for
relief against any Relevant Party shall be entered in an
involuntary case under the Bankruptcy Code; or
(h) A final judgment or judgments for the payment of
money in excess of $5,000,000 in the aggregate (exclusive of
judgment amounts fully covered by insurance where the
insurer has admitted liability in respect of such judgment)
shall be rendered by one or more courts, administrative
tribunals or other bodies having jurisdiction against any
Relevant Party and the same shall not be discharged (or
provision shall not be made for such discharge), or a stay
of execution thereof shall not be procured, within 30 days
from the date of entry thereof and such Relevant Party shall
not, within said period of 30 days, or such longer period
during which execution of the same shall have been stayed,
appeal therefrom and cause the execution thereof to be
stayed during such appeal; or
(i) An event or condition specified in Section 9.01(f)
hereof shall occur or exist with respect to any Plan or
Multiemployer Plan and, as a result of such event or
condition, together with all other such events or
conditions, the Company or any ERISA Affiliate shall incur
or in the reasonable opinion of the Majority Lenders shall
be reasonably likely to incur a liability to a Plan, a
Multiemployer Plan or the PBGC (or any combination of the
foregoing) that, in the determination of the Majority
Lenders, could (either individually or in the aggregate)
reasonably be expected to have a Material Adverse Effect; or
(j) A reasonable basis shall exist for the assertion
against the Company or any of its Subsidiaries, or any
predecessor in interest of the Company or any of its
Subsidiaries or Affiliates, of (or there shall have been
asserted against the Company or any of its Subsidiaries) an
Environmental Claim that, in the judgment of the Majority
Lenders is reasonably likely to be determined adversely to
the Company or any of its Subsidiaries, and the amount
thereof (either individually or in the aggregate) is
reasonably likely to have a Material Adverse Effect (insofar
as such amount is payable by the Company or any of its
Subsidiaries but after deducting any portion thereof that is
reasonably expected to be paid by other creditworthy Persons
jointly and severally liable therefor); or
(k) Any Change of Control shall have occurred; or
(l) Except for expiration in accordance with its terms
or a voluntary release by the Agent on behalf of the Agent
and the Lenders, the Liens created by the Security Documents
shall at any time not constitute a valid and perfected Lien
on the collateral intended to be covered thereby (to the
extent perfection by filing, registration, recordation or
possession is required herein or therein) in favor of the
Agent, free and clear of all other Liens (other than Liens
permitted under Section 9.06 hereof or under the respective
Security Documents), or, except for expiration in accordance
with its terms, any of the Security Documents shall for
whatever reason be terminated or cease to be in full force
and effect, or the enforceability thereof shall be contested
by either Obligor or Xxxxxxx;
THEREUPON: (1) in the case of an Event of Default other than one
referred to in clause (f) or (g) of this Section 10 with respect
to any Obligor, the Agent shall, at the direction of the Majority
Lenders (or, with respect to Swingline Loans, upon request of the
Swingline Lender), by notice to the Obligors, terminate the
Commitments and/or declare the principal amount then outstanding
of, and the accrued interest on, the Loans (including the
Swingline Loans), the Reimbursement Obligations and all other
amounts payable by the Obligors hereunder (including, without
limitation, any amounts payable under Section 5.05 or 5.06
hereof) to be forthwith due and payable (provided that if so
requested by the Majority Revolving Credit Lenders, the Agent
shall terminate the Revolving Credit Commitments), whereupon such
amounts shall be immediately due and payable without presentment,
demand, protest or other formalities of any kind, all of which
are hereby expressly waived by each Obligor; and (2) in the case
of the occurrence of an Event of Default referred to in
clause (f) or (g) of this Section 10 with respect to any Obligor,
the Commitments shall automatically be terminated and the
principal amount then outstanding of, and the accrued interest
on, the Loans, the Swingline Loans, the Reimbursement Obligations
and all other amounts payable by the Obligors hereunder
(including, without limitation, any amounts payable under
Section 5.05 or 5.06 hereof) shall automatically become
immediately due and payable without presentment, demand, protest
or other formalities of any kind, all of which are hereby
expressly waived by each Obligor.
In addition, upon the occurrence and during the
continuance of any Event of Default (if the Agent has declared
the principal amount then outstanding of, and accrued interest
on, the Revolving Credit Loans and all other amounts payable by
the Company hereunder to be due and payable), the Company agrees
that it shall, if requested by the Agent or the Majority
Revolving Credit Lenders through the Agent (and, in the case of
any Event of Default referred to in clause (f) or (g) of this
Section 10 with respect to either Obligor, forthwith, without any
demand or the taking of any other action by the Agent or such
Lenders) provide cover for the Letter of Credit Liabilities by
paying to the Agent immediately available funds in an amount
equal to the then aggregate undrawn face amount of all Letters of
Credit, which funds shall be held by the Agent in the Collateral
Account as collateral security in the first instance for the
Letter of Credit Liabilities and be subject to withdrawal only as
therein provided.
Section 11. The Agent.
11.01 Appointment, Powers and Immunities. Each Lender
hereby appoints and authorizes the Agent to act as its agent
hereunder and under the other Basic Documents with such powers as
are specifically delegated to the Agent by the terms of this
Agreement and of the other Basic Documents, together with such
other powers as are reasonably incidental thereto. The Agent
(which term as used in this sentence and in Section 11.05 and the
first sentence of Section 11.06 hereof shall include reference to
its affiliates and its own and its affiliates' officers,
directors, employees and agents):
(a) shall have no duties or responsibilities except
those expressly set forth in this Agreement and in the other
Basic Documents, and shall not by reason of this Agreement
or any other Basic Document be a trustee for any Lender;
(b) shall not be responsible to the Lenders for any
recitals, statements, representations or warranties
contained in this Agreement or in any other Basic Document,
or in any certificate or other document referred to or
provided for in, or received by any of them under, this
Agreement or any other Basic Document, or for the value,
validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Basic Document or
any other document referred to or provided for herein or
therein or for any failure by the Company or any other
Person to perform any of its obligations hereunder or
thereunder;
(c) shall not, except to the extent expressly
instructed by the Majority Lenders with respect to
collateral security under the Security Documents, be
required to initiate or conduct any litigation or collection
proceedings hereunder or under any other Basic Document; and
(d) shall not be responsible for any action taken or
omitted to be taken by it hereunder or under any other Basic
Document or under any other document or instrument referred
to or provided for herein or therein or in connection
herewith or therewith, except for its own gross negligence
or willful misconduct.
The Agent may employ agents and attorneys-in-fact and shall not
be responsible for the negligence or misconduct of any such
agents or attorneys-in-fact selected by it in good faith. The
Agent may deem and treat the payee (or Registered Holder, as the
case may be) of a Loan as the holder thereof for all purposes
hereof unless and until a notice of the assignment or transfer
thereof shall have been filed with the Agent, together with the
consent of the Company to such assignment or transfer (to the
extent provided in Section 12.06(b) hereof).
11.02 Reliance by Agent. The Agent shall be entitled
to rely upon any certification, notice or other communication
(including, without limitation, any thereof by telephone,
telecopy, telegram or cable) believed by it to be genuine and
correct and to have been signed or sent by or on behalf of the
proper Person or Persons, and upon advice and statements of legal
counsel, independent accountants and other experts selected by
the Agent. As to any matters not expressly provided for by this
Agreement or any other Basic Document, the Agent shall in all
cases be fully protected in acting, or in refraining from acting,
hereunder or thereunder in accordance with instructions given by
the Majority Lenders or, if provided herein, in accordance with
the instructions given by the Majority Revolving Credit Lenders,
the Majority Term Lenders or all of the Lenders as is required in
such circumstance, and such instructions of such Lenders and any
action taken or failure to act pursuant thereto shall be binding
on all of the Lenders.
11.03 Defaults. The Agent shall not be deemed to have
knowledge or notice of the occurrence of a Default unless the
Agent has received notice from a Lender or the Company specifying
such Default and stating that such notice is a "Notice of
Default". In the event that the Agent receives such a notice of
the occurrence of a Default, the Agent shall give prompt notice
thereof to the Lenders. The Agent shall (subject to
Section 11.07 hereof) take such action with respect to such
Default as shall be directed by the Majority Lenders or, if
provided herein, the Majority Revolving Credit Lenders or the
Majority Term Lenders, provided that, unless and until the Agent
shall have received such directions, the Agent may (but shall not
be obligated to) take such action, or refrain from taking such
action, with respect to such Default as it shall deem advisable
in the best interest of the Lenders except to the extent that
this Agreement expressly requires that such action be taken, or
not be taken, only with the consent or upon the authorization of
the Majority Lenders, the Majority Revolving Credit Lenders, the
Majority Term Lenders or all of the Lenders.
11.04 Rights as a Lender. With respect to its
Commitments, its Swingline Commitment and the Loans made by it,
Chase (and any successor acting as Agent) in its capacity as a
Lender or the Swingline Lender hereunder shall have the same
rights and powers hereunder as any other Lender and may exercise
the same as though it were not acting as the Agent, and the term
"Lender" or "Lenders" or "Swingline Lender" shall, unless the
context otherwise indicates, include the Agent in its individual
capacity. Chase (and any successor acting as Agent) and its
affiliates may (without having to account therefor to any Lender)
accept deposits from, lend money to make investments in and
generally engage in any kind of banking, trust or other business
with the Obligors (and any of their Subsidiaries or Affiliates)
as if it were not acting as the Agent, and Chase (and any such
successor) and its affiliates may accept fees and other
consideration from the Obligors for services in connection with
this Agreement or otherwise without having to account for the
same to the Lenders or the Swingline Lender.
11.05 Indemnification. The Lenders agree to indemnify
the Agent (to the extent not reimbursed under Section 12.03
hereof, but without limiting the obligations of the Obligors
under said Section 12.03, and including in any event any payments
under any indemnity that the Agent is required to issue to any
bank referred to in Section 4.02 of the Security Agreement to
which remittances in respect of Accounts, as defined therein, are
to be made) ratably in accordance with the aggregate principal
amount of the Loans and Reimbursement Obligations held by the
Lenders (or, if no Loans or Reimbursement Obligations are at the
time outstanding, ratably in accordance with their respective
Commitments), for any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever that may be
imposed on, incurred by or asserted against the Agent (including
by any Lender) arising out of or by reason of any investigation
in or in any way relating to or arising out of this Agreement or
any other Basic Document or any other documents contemplated by
or referred to herein or therein or the transactions contemplated
hereby or thereby (including, without limitation, the costs and
expenses that the Obligors are obligated to pay under
Section 12.03 hereof, and including also any payments under any
indemnity that the Agent is required to issue to any bank
referred to in Section 4.02 of the Security Agreement to which
remittances in respect of Accounts, as defined therein, are to be
made, but excluding, unless a Default has occurred and is
continuing, normal administrative costs and expenses incident to
the performance of its agency duties hereunder) or the
enforcement of any of the terms hereof or thereof or of any such
other documents, 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 party to be indemnified.
11.06 Non-Reliance on Agent and Other Lenders. Each
Lender agrees that it has, independently and without reliance on
the Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own credit
analysis of the Guarantor and its Subsidiaries and decision to
enter into this Agreement and 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 analysis and decisions in
taking or not taking action under this Agreement or under any
other Basic Document. The Agent shall not be required to keep
itself informed as to the performance or observance by any
Obligor of this Agreement or any of the other Basic Documents or
any other document referred to or provided for herein or therein
or to inspect the Properties or books of the Guarantor or any of
its Subsidiaries. Except for notices, reports and other
documents and information expressly required to be furnished to
the Lenders by the Agent hereunder or under the Security
Documents, the Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information
concerning the affairs, financial condition or business of the
Guarantor or any of its Subsidiaries (or any of their affiliates)
that may come into the possession of the Agent or any of its
affiliates.
11.07 Failure to Act. Except for action expressly
required of the Agent hereunder and under the other Basic
Documents, the Agent shall in all cases be fully justified in
failing or refusing to act hereunder and thereunder unless it
shall receive further assurances to its satisfaction from the
Lenders of their indemnification obligations under Section 11.05
hereof against any and all liability and expense that may be
incurred by it by reason of taking or continuing to take any such
action.
11.08 Resignation or Removal of Agent. Subject to the
appointment and acceptance of a successor Agent as provided
below, the Agent may resign at any time by giving notice thereof
to the Lenders and the Obligors, and the Agent may be removed at
any time with or without cause by the Majority Lenders. Upon any
such resignation or removal, the Majority Lenders shall have the
right to appoint a successor Agent. If no successor Agent shall
have been so appointed by the Majority Lenders and shall have
accepted such appointment within 30 days after the retiring
Agent's giving of notice of resignation or the Majority Lenders'
removal of the retiring Agent, then the retiring Agent may, on
behalf of the Lenders, appoint a successor Agent, that shall be a
bank with a combined capital and surplus and undivided profits of
at least $300,000,000. 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 retiring Agent, and the
retiring Agent shall be discharged from its duties and
obligations hereunder. After any retiring Agent's resignation or
removal hereunder as Agent, the provisions of this Section 11
shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as
the Agent.
11.09 Consents under Other Basic Documents. Except as
otherwise provided in Section 12.04 hereof with respect to this
Agreement, the Agent may, with the prior consent of the Majority
Lenders (but not otherwise), consent to any modification,
supplement or waiver under any of the Basic Documents, provided
that, without the prior consent of each Lender, the Agent shall
not (except as provided herein or in the Security Documents)
release any collateral or otherwise terminate any Lien under any
Basic Document providing for collateral security, or agree to
additional obligations being secured by such collateral security,
except that no such consent shall be required, and the Agent is
hereby authorized, to release any Lien covering (i) Property that
is the subject of a disposition of Property permitted hereunder
or (ii) Receivables to the extent such Receivables secure other
Indebtedness expressly permitted by the Majority Revolving Credit
Lenders, Majority Tranche A Term Loan Lenders and Majority
Tranche B Term Loan Lenders.
11.10 Collateral Sub-Agents. Each Lender by its
execution and delivery of this Agreement agrees, as contemplated
by Section 4.03 of the Security Agreement, that, in the event it
shall hold any Permitted Investments referred to therein, such
Permitted Investments shall be held in the name and under the
control of such Lender, and such Lender shall hold such Permitted
Investments as a collateral sub-agent for the Agent thereunder.
The Obligors by their execution and delivery of this Agreement
hereby consent to the foregoing.
Section 12. Miscellaneous.
12.01 Waiver. No failure on the part of the Agent or
any Lender to exercise and no delay in exercising, and no course
of dealing with respect to, any right, power or privilege under
this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, power or privilege under
this Agreement preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. The
remedies provided herein are cumulative and not exclusive of any
remedies provided by law.
12.02 Notices. Except as otherwise expressly provided
herein or in the Security Documents, all notices, requests and
other communications provided for herein and under the Security
Documents (including, without limitation, any modifications of,
or waivers, requests or consents under, this Agreement) shall be
given or made in writing (including, without limitation, by
telecopy) delivered to the intended recipient at the "Address for
Notices" specified below its name on the signature pages hereof
(below the name of the Company, in the case of the Guarantor);
or, as to any party, at such other address as shall be designated
by such party in a notice to each other party. Except as
otherwise provided in this Agreement, all such communications
shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed
notice, upon receipt, in each case given or addressed as
aforesaid.
12.03 Expenses, Etc. The Obligors agree, jointly and
severally, to pay or reimburse each of the Lenders and the Agent
for: (a) all reasonable out-of-pocket costs and expenses of the
Agent (including, without limitation, the reasonable fees and
expenses of Milbank, Tweed, Xxxxxx & XxXxxx, special New York
counsel to Chase) in connection with (i) the negotiation,
preparation, execution and delivery of this Agreement and the
other Basic Documents and the extension of credit hereunder and
(ii) the negotiation or preparation of any modification,
supplement or waiver of any of the terms of this Agreement or any
of the other Basic Documents (whether or not consummated);
(b) all reasonable out-of-pocket costs and expenses of the
Lenders and the Agent (including, without limitation, the
reasonable fees and expenses of legal counsel for the Agent and
one legal counsel for the Lenders) in connection with (i) any
Default and any enforcement or collection proceedings resulting
therefrom, including, without limitation, all manner of
participation in or other involvement with (x) bankruptcy,
insolvency, receivership, foreclosure, winding up or liquidation
proceedings, (y) judicial or regulatory proceedings and
(z) workout, restructuring or other negotiations or proceedings
(whether or not the workout, restructuring or transaction
contemplated thereby is consummated) and (ii) the enforcement of
this Section 12.03; (c) all transfer, stamp, documentary or other
similar taxes, assessments or charges levied by any governmental
or revenue authority in respect of this Agreement or any of the
other Basic Documents or any other document referred to herein or
therein and all costs, expenses, taxes, assessments and other
charges incurred in connection with any filing, registration,
recording or perfection of any security interest contemplated by
any Basic Document or any other document referred to therein; and
(d) all costs, expenses and other charges in respect of title
insurance procured with respect to the Liens created pursuant to
the Mortgages.
The Obligors hereby agree, jointly and severally, to
indemnify the Agent and each Lender and their respective
directors, officers, employees, attorneys and agents from, and
hold each of them harmless against, any and all losses,
liabilities, claims, damages or expenses incurred by any of them
(including, without limitation, any and all losses, liabilities,
claims, damages or expenses incurred by the Agent to any Lender,
whether or not the Agent or any Lender is a party thereto)
arising out of or by reason of any investigation or litigation or
other proceedings (including any threatened investigation or
litigation or other proceedings) relating to the extensions of
credit hereunder or any actual or proposed use by the Guarantor
or any of its Subsidiaries of the proceeds of any of the
extensions of credit hereunder, including, without limitation,
the reasonable fees and disbursements of counsel incurred in
connection with any such investigation or litigation or other
proceedings (but excluding any such losses, liabilities, claims,
damages or expenses incurred by reason of the gross negligence or
willful misconduct of the Person to be indemnified or solely by
reason of a breach of this Agreement by such Person). Without
limiting the generality of the foregoing, the Obligors will
(x) indemnify the Agent for any payments that the Agent is
required to make under any indemnity issued to any bank referred
to in Section 4.02 of the Security Agreement to which remittances
in respect to Accounts, as defined therein, are to be made and
(y) indemnify the Agent and each Lender from, and hold the Agent
and each Lender harmless against, any losses, liabilities,
claims, damages or expenses described in the preceding sentence
(including any Lien filed against any Property covered by the
Mortgages or any part of the thereunder in favor of any
governmental entity, but excluding, as provided in the preceding
sentence, any loss, liability, claim, damage or expense incurred
by reason of the gross negligence or willful misconduct of the
Person to be indemnified) arising under any Environmental Law as
a result of the past, present or future operations of the Company
or any of its Subsidiaries (or any predecessor in interest to the
Company or any of its Subsidiaries), or the past, present or
future condition of any site or facility owned, operated or
leased at any time by the Company or any of its Subsidiaries (or
any such predecessor in interest), or any Release or threatened
Release of any Hazardous Materials at or from any such site or
facility, including any such Release or threatened Release that
shall occur during any period when the Agent or any Lender shall
be in possession of any such site or facility following the
exercise by the Agent or any Lender of any of its rights and
remedies hereunder or under any of the Security Documents.
12.04 Amendments, Etc. Except as otherwise expressly
provided in this Agreement, any provision of this Agreement may
be modified or supplemented only by an instrument in writing
signed by the Guarantor, the Company and the Majority Lenders, or
by the Guarantor, the Company and the Agent acting with the
consent of the Majority Lenders, and any provision of this
Agreement may be waived by the Majority Lenders or by the Agent
acting with the consent of the Majority Lenders; provided that
(a) no modification, supplement or waiver shall, unless by an
instrument signed by all of the Lenders or by the Agent acting
with the consent of all of the Lenders: (i) increase, or extend
the term of any of the Commitments or the Swingline Commitment,
or extend the time or waive any requirement for the reduction or
termination of any of the Commitments or the Swingline
Commitment, (ii) extend the date fixed for the payment of
principal of or interest on any Loan, the Reimbursement
Obligations or any fee hereunder, (iii) reduce the amount of any
such payment of principal, (iv) reduce the rate at which interest
is payable thereon or any fee is payable hereunder, (v) alter the
rights or obligations of the Company to prepay Loans (except in
connection with any transaction contemplated by clause (ii) to
the proviso to Section 11.09 hereof), (vi) alter the terms of
Section 11.09 hereof or this Section 12.04, (vii) modify the
definition of the term "Majority Lenders", "Majority Revolving
Credit Lenders" or "Majority Term Lenders", or modify in any
other manner the number or percentage of the Lenders required to
make any determinations or waive any rights hereunder or to
modify any provision hereof, (viii) waive any of the conditions
precedent set forth in Section 7.01 or 7.02 hereof or (ix)
release the Guarantor from any of its obligations under Section 6
hereof or Xxxxxxx from any of its obligations under Section 3 of
the Xxxxxxx Guarantee and Security Agreement; (b) no
modification, supplement or waiver shall (i) modify in any manner
any of Sections 2.01(a), 2.03, 9.01(g), 9.01(i), and 9.01(l)
hereof or (ii) modify the definition of the term "Borrowing
Base", "Borrowing Base Certificate", "Eligible Inventory",
"Ineligible Receivable", "Inventory", "Letter of Credit
Documents", "Letter of Credit Interest", "Letter of Credit
Liability", "Receivable Adjustments" or "Receivables", without
the consent of the Majority Revolving Credit Lenders; (c) no
waiver or modification with respect to clause (i) of Section 1402
or 1502 of the Indenture or any similar provision in any
agreement or instrument evidencing Subordinated Indebtedness
shall be effective without the consent of the Lenders holding at
least 66 2/3% of the sum of (i) the aggregate unused Commitments,
(ii) the aggregate unpaid principal amount of the Loans (other
than the Swingline Loans) and (iii) the aggregate amount of all
Letter of Credit Liabilities (the "Supermajority Lenders"); (d)
any modification of any of the rights or obligations of the Agent
or the Issuing Bank hereunder (including, without limitation, any
of the provisions of Section 11.08 hereof) shall require the
consent of the Agent or the Issuing Bank (as the case may be);
and (e) no modification, supplement or waiver with respect to any
provision of Section 2.01(d) or 2.02(b) hereof shall be effective
without the concurrence of the Swingline Bank and, if at the time
any Swingline Loans shall be outstanding, no modification,
supplement or waiver with respect to any provision of Section 9
or 10 hereof shall be effective without the concurrence of the
Swingline Lender.
12.05 Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns.
12.06 Assignments and Participations.
(a) No Obligor may assign any of its rights or
obligations hereunder without the prior consent of all of the
Lenders and the Agent.
(b) Each Lender may assign any of its Loans, its
Commitments, and, if such Lender is a Revolving Credit Lender,
its Letter of Credit Interest and its interest acquired under
Section 2.01(d) hereof in Swingline Loans (but only with the
consent of, in the case of its outstanding Commitments, the
Company and the Agent and, in the case of the Revolving Credit
Commitment or a Letter of Credit Interest, the Issuing Bank);
provided that
(i) no such consent by the Company or the Agent shall
be required in the case of any assignment to another Lender;
(ii) except to the extent the Company and the Agent
shall otherwise consent, any such partial assignment (other
than to another Lender) shall be in an amount at least equal
to $5,000,000 (or, if less, the aggregate unpaid principal
amount of the Loans and the aggregate Commitments of such
Lender);
(iii) each such assignment by a Lender of its Revolving
Credit Loans, Revolving Credit Commitment or Letter of
Credit Interest shall be made in such manner so that the
same portion of its Revolving Credit Loans, Revolving Credit
Commitment and Letter of Credit Interest is assigned to the
respective assignee;
(iv) each such assignment by a Lender of its Term Loans
or Term Loan Commitment shall be made in such manner so that
the same portion of its Term Loans and Term Loan Commitment,
as the case may be, is assigned to the respective assignee;
(v) upon each such assignment, the assignor and
assignee shall deliver to the Company, the Agent and the
Issuing Bank a Notice of Assignment in the form of Exhibit H
hereto; and
(vi) no consent required of the Company or the Agent
under this Section 12.06(b) shall be unreasonably withheld
or delayed.
Upon execution and delivery by the assignor and the assignee to
the Company, the Agent and the Issuing Bank of such Notice of
Assignment, and upon consent thereto by the Company, the Agent
and the Issuing Bank to the extent required above, the assignee
shall have, to the extent of such assignment (unless otherwise
consented to by the Company, the Agent and the Issuing Bank), the
obligations, rights and benefits of a Lender hereunder holding
the Commitment(s), Loans and, if applicable, Letter of Credit
Interest (or portions thereof) assigned to it and specified in
such Notice of Assignment (in addition to the Commitment(s),
Loans and Letter of Credit Interest, if any, theretofore held by
such assignee) and the assigning Lender shall, to the extent of
such assignment, be released from the Commitment(s) (or
portion(s) thereof) so assigned. Upon each such assignment the
assigning Xxxxxx shall pay the Agent an assignment fee of $3,000;
provided that in the case of any such assignment to a Proposed
Lender (as defined in Section 5.08 hereof), such assignment fee
shall be paid by the Company.
(c) A Lender may sell or agree to sell to one or more
other Persons a participation in all or any part of any Loans or
Letter of Credit Interest held by it, or in its Commitments, in
which event each purchaser of a participation (a "Participant")
shall be entitled to the rights and benefits of the provisions of
Section 9.01(m) hereof with respect to its participation in such
Loans, Letter of Credit Interest and Commitments as if (and the
Company shall be directly obligated to such Participant under
such provisions as if) such Participant were a "Lender" for
purposes of said Section, but, except as otherwise provided in
Section 4.07(c) hereof, shall not have any other rights or
benefits under this Agreement or any other Basic Document (the
Participant's rights against such Lender in respect of such
participation to be those set forth in the agreements executed by
such Lender in favor of the Participant). All amounts payable by
the Company to any Lender under Section 5 hereof in respect of
Loans, Letter of Credit Interest held by it, and its Commitments,
shall be determined as if such Lender had not sold or agreed to
sell any participations in such Loans, Letter of Credit Interest
and Commitments, and as if such Lender were funding each of such
Loan, Letter of Credit Interest and Commitments in the same way
that it is funding the portion of such Loan, Letter of Credit
Interest and Commitments in which no participations have been
sold. In no event shall a Lender that sells a participation
agree with the Participant to take or refrain from taking any
action hereunder or under any other Basic Document except that
such Lender may agree with the Participant that it will not,
without the consent of the Participant, agree to (i) increase or
extend the term, or extend the time or waive any requirement for
the reduction or termination, of such Lender's related
Commitment, (ii) extend the date fixed for the payment of
principal of or interest on the related Loan or Loans,
Reimbursement Obligations or any portion of any fee hereunder
payable to the Participant, (iii) reduce the amount of any such
payment of principal, (iv) reduce the rate at which interest is
payable thereon, or any fee hereunder payable to the Participant,
to a level below the rate at which the Participant is entitled to
receive such interest or fee, (v) alter the rights or obligations
of the Company to prepay the related Loans or (vi) consent to any
modification, supplement or waiver hereof or of any of the other
Basic Documents to the extent that the same, under Section 11.09
or 12.04 hereof, requires the consent of each Lender.
(d) In addition to the assignments and participations
permitted under the foregoing provisions of this Section 12.06,
any Lender may (without notice to the Company, the Agent or any
other Lender and without payment of any fee) (i) assign and
pledge all or any portion of its Loans to any Federal Reserve
Bank as collateral security pursuant to Regulation A and any
Operating Circular issued by such Federal Reserve Bank and (ii)
assign all or any portion of its rights under this Agreement and
its Loans to an affiliate. No such assignment shall release the
assigning Lender from its obligations hereunder.
(e) A Lender may furnish any information concerning
the Obligors or any of their respective Subsidiaries in the
possession of such Lender from time to time to assignees and
participants (including prospective assignees and participants),
subject, however, to the provisions of Section 12.12(b) hereof.
(f) Anything in this Section 12.06 to the contrary
notwithstanding, no Lender may assign or participate any interest
in any Loan or Reimbursement Obligation held by it hereunder to
the Company or any of its Affiliates or Subsidiaries without the
prior consent of each Lender.
(g) At the request of any Lender that is not a
U.S. Person and is not a "bank" within the meaning of
Section 881(c)(3)(A) of the Code, the Company shall maintain, or
cause to be maintained, a register (the "Register") that, at the
request of the Company, shall be kept by the Agent on behalf of
the Company at no charge to the Company at the address to which
notices to the Agent are to be sent hereunder, on which it enters
the name of such Lender as the registered owner of each
Registered Loan held by such Xxxxxx. A Registered Loan may only
be assigned or otherwise transferred in whole or in part by
registration of such assignment or transfer on the Register. Any
assignment or transfer of all or part of such Loan shall be
effected by registration of such assignment or transfer on the
Register. Prior to the registration of assignment or transfer of
any Registered Loan, the Company shall treat the Person in whose
name such Loan is registered as the owner thereof for the purpose
of receiving all payments thereon and for all other purposes,
notwithstanding notice to the contrary.
(h) The Register shall be available for inspection by
the Company and any Lender that is a Registered Holder at any
reasonable time upon reasonable prior notice.
12.07 Survival. The obligations of the Obligors under
the last paragraph of Section 2.03 hereof and under Sections
5.01, 5.05, 5.06, 5.07 and 12.03 hereof and under Section 6.03 of
the Security Agreement, Section 7.03 of the Xxxxxxx Guarantee and
Security Agreement, and Section 4.13 of the Pledge Agreement, the
obligations of the Guarantor under Section 6.03 hereof, and the
obligations of the Lenders under Section 11.05 hereof, shall
survive the repayment of the Loans and Reimbursement Obligations
and the termination of the Commitments and, in the case of any
Lender that may assign any interest in its Commitments, Loans or
Letter of Credit Interest hereunder, shall survive the making of
such assignment, notwithstanding that such assigning Lender may
cease to be a "Lender" hereunder. In addition, each
representation and warranty made, or deemed to be made by a
notice of any extension of credit (whether by means of a Loan or
a Letter of Credit), herein or pursuant hereto shall survive the
making of such representation and warranty, and no Lender shall
be deemed to have waived, by reason of making any extension of
credit hereunder (whether by means of a Loan or a Letter of
Credit), any Default that may arise by reason of such
representation or warranty proving to have been false or
misleading, notwithstanding that such Lender or the Agent may
have had notice or knowledge or reason to believe that such
representation or warranty was false or misleading at the time
such extension of credit was made.
12.08 Captions. The table of contents and captions
and section headings appearing herein are included solely for
convenience of reference and are not intended to affect the
interpretation of any provision of this Agreement.
12.09 Counterparts. This Agreement may be executed in
any number of counterparts, all of which taken together shall
constitute one and the same instrument and any of the parties
hereto may execute this Agreement by signing any such
counterpart.
12.10 Governing Law; Submission to Jurisdiction. This
Agreement shall be governed by, and construed in accordance with,
the law of the State of New York. Each Obligor hereby submits to
the nonexclusive jurisdiction of the United States District Court
for the Southern District of New York and of the Supreme Court of
the State of New York sitting in New York County (including its
Appellate Division), and of any other appellate court in the
State of New York, for the purposes of all legal proceedings
arising out of or relating to the Basic Documents or the
transactions contemplated hereby. Each Obligor hereby
irrevocably waives, to the fullest extent permitted by applicable
law, any objection that it may now or hereafter have to the
laying of the venue of any such proceeding brought in such a
court and any claim that any such proceeding brought in such a
court has been brought in an inconvenient forum.
12.11 Waiver of Jury Trial. EACH OF THE OBLIGORS, THE
AGENT AND THE LENDERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THE
BASIC DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY.
12.12 Treatment of Certain Information;
Confidentiality.
(a) Each Obligor acknowledges that from time to time
financial advisory, investment banking and other services may be
offered or provided to such Obligor or one or more of its
Subsidiaries (in connection with this Agreement or otherwise) by
any Lender or by one or more subsidiaries or affiliates of such
Lender and each Obligor hereby authorizes each Lender to share
any information delivered to such Lender by such Obligor and its
Subsidiaries pursuant to this Agreement, or in connection with
the decision of such Lender to enter into this Agreement, with
any such subsidiary or affiliate, it being understood that any
such subsidiary or affiliate receiving such information shall be
bound by the provisions of paragraph (b) below as if it were a
Lender hereunder. Such authorization shall survive the repayment
of the Loans and Reimbursement Obligations and the termination of
the Commitments.
(b) Each Lender and the Agent agrees (on behalf of
itself and each of its affiliates, directors, officers, employees
and representatives) to use reasonable precautions to keep
confidential, in accordance with their customary procedures for
handling confidential information of the same nature and in
accordance with safe and sound banking practices, any non-public
information supplied to it by any Obligor pursuant to this
Agreement that is identified by such Person as being confidential
at the time the same is delivered to the Lenders or the Agent,
provided that nothing herein shall limit the disclosure of any
such information (i) to the extent required by statute, rule,
regulation or judicial process, (ii) to counsel for any of the
Lenders or the Agent, (iii) to regulatory personnel, auditors or
accountants, (iv) to the Agent or any other Lender (or to Chase
Securities, Inc.), (v) in connection with any litigation related
to the Acquisition, the Xxxxxxx Acquisition or the transactions
contemplated by the Credit Agreement or the other Basic Documents
to which the Agent or any of the Lenders is a party, (vi) to a
subsidiary or affiliate of such Lender as provided in
paragraph (a) above or (vii) to any assignee or participant (or
prospective assignee or participant) so long as such assignee or
participant (or prospective assignee or participant) first
executes and delivers to the respective Lender a Confidentiality
Agreement substantially in the form of Exhibit G hereto (or
executes and delivers to such Lender an acknowledgement to the
effect that it is bound by the provisions of this
Section 12.12(b), which acknowledgement may be included as part
of the respective assignment or participation agreement pursuant
to which such assignee or participant acquires an interest in the
Loans or Letter of Credit Interest hereunder); provided, further,
that in no event shall any Lender or the Agent be obligated or
required to return any materials furnished by any Obligor. The
obligations of any assignee that has executed a Confidentiality
Agreement in the form of Exhibit H hereto shall be superseded by
this Section 12.12 upon the date upon which such assignee becomes
a Lender hereunder pursuant to Section 12.06(b) hereof.
12.13 Certain Tax Information. The Company shall
provide in writing to the Lenders on a timely basis such
information, if any, required by Treasury Regulation
Section 1.1275-2(e).
12.14 Consent to Receivables Financing. Notwith-
standing anything to the contrary in Section 9.05, 9.06 or 9.07
hereof, but subject to their reasonable satisfaction with final
documentation related thereto, the Lenders agree and consent to
the Company entering into a transaction substantially on the
terms set forth in Schedule IX hereto (the "Receivables
Transaction"), provided that the Revolving Credit Commitments
shall be reduced by an amount equal to the aggregate principal
amount of the commitments of purchasers to purchase Receivables,
or to finance the purchase of Receivables, in connection with the
Receivables Transaction.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the day and
year first above written.
UNITED STATIONERS SUPPLY CO.
By
Title:
Address for Notices:
0000 Xxxx Xxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxx 00000-1267
Attention: Chief Financial Officer
(with a copy to the General
Counsel's Office)
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000 x0000
UNITED STATIONERS INC.
By
Title:
Address for Notices:
0000 Xxxx Xxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxx 00000-1267
Attention: Chief Financial Officer
(with a copy to the General
Counsel's Office)
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000 x0000
LENDERS
Revolving Credit Commitment THE CHASE MANHATTAN BANK
Tranche A Term
Loan Commitment By
Title:
Tranche B Term Lending Office for all Loans:
Loan Commitment
The Chase Manhattan Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Address for Notices:
The Chase Manhattan Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
THE CHASE MANHATTAN BANK,
as Agent
By
Title:
Address for Notices to
Chase as Agent:
The Chase Manhattan Bank
New York Agency
000 Xxxx 00xx Xxxxxx -- 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Agent Bank Services
Telecopier No.: (000) 000-0000
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_ _ SCHEDULE I
INDEBTEDNESS AND LIENS
Existing Indebtedness of Guarantor, Supply and its Subsidiaries
outstanding on the Effective Date:
Credit Agreement dated March 30, 1995 among United Stationers
Supply Co., United Stationers, Inc., the lenders party
thereto and The Chase Manhattan Bank (National Association),
as Agent (as modified and supplemented and in effect from
time to time, the "Existing Credit Agreement").
Indebtedness of $150,000,000.00, 12 3/4% Senior Subordinated
Notes due 2005 pursuant to the Indenture date as of May 3,
1995 among United Stationers Supply Co., United Stationers
Inc., and The Bank of New York, as Trustee.
Indebtedness pursuant to the Loan and Security Agreement dated as
of December 3, 1993 between United Stationers Supply Co. and
the CIT Group/Equipment Financing, Inc. (the "CIT Loan
Agreement") and the related guarantees by United Stationers
Inc. Outstanding Principal Amount $964,986.49.
Indebtedness pursuant to the Master Lease Agreement dated as of
November 23, 1992 between United Stationers Supply Co. and
The CIT Group/Equipment Financing, Inc. (the "CIT Lease
Agreement") and the related guarantees by United Stationers
Inc. Outstanding Principal Amount $1,036,133.72.
Industrial Development Bond Loan in the amount of $7,500,000 as
evidenced by (i) Loan Agreement dated as of October 1, 1990
between the Development Authority of Gwinett County, Georgia
("Georgia") and Supply; (ii) the Promissory Note dated
December 7, 1982 executed by Supply in favor of Georgia in
the amount of $7,500,000; (iii) Trust Indenture dated as of
October 1, 1990 between Georgia and PNC (or its successor in
interest); (iv) Reimbursement, Credit and Security Agreement
dated as of October 1, 1990 between Supply and PNC (0000
Xxxx Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxx). Outstanding Principal
Amount $7,500,000.
Industrial Development Bond Loan in the amount of $7,500,000 as
evidenced by (i) Mortgage Note dated December 1, 1983
executed by Supply in favor of the City of Des Plaines,
Illinois ("Illinois") and Supply; (ii) Assignment of Rents
and Leases dated December 1, 1983 executed by Supply in
favor of PNC (as successor in interest); (iii) Indenture of
Trust dated as of December 1, 1983 between Illinois and PNC
(as successor in trust); (iv) Guarantee and Indemnification
Agreement dated December 1, 1983 between United and PNC,
successor in interest (as supplemented) (2200 E. Golf Road)
and guaranteed by United. Outstanding Principal Amount
$7,500,000.
Industrial Development Bond Loan in the amount of $8,000,000 as
evidenced by (i) Loan and Security Agreement dated December
1, 1984 between Xxxx Arundel County, Maryland ("Maryland")
and Supply; (ii) Promissory Note in the amount of $8,000,000
dated December 27, 1984 executed by Supply in favor of
Maryland; and (iii) Indenture of Trust dated December 1,
1984 between Maryland and PNC (as successor in interest);
Guarantee and Indemnification Agreement between United, PNC
(as successor in interest) and Maryland (as supplemented)
(0000 Xxxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxx). Outstanding
Principal Amount $8,000,000.
Industrial Development Bond Loan in the amount of $6,800,000 as
evidenced by (i) Loan Agreement dated December 1, 1986
between the City of Twinsburg, Ohio ("Ohio") and Supply;
(ii) Indenture of Trust dated December 1, 1986 between Ohio
and Bank of New York (as successor in interest) (as
supplemented); and (iii) Guaranty Agreement dated December
1, 1986 between United and Bank of New York (as successor in
interest) (Twinsburg, Ohio). Outstanding Principal Amount
$6,800,000.
A Deed of Trust dated August 21, 1979 executed by Supply in favor
of Xxxx Xxxxxxx Mutual Life Insurance Company covering
property located in Dallas, Texas (119 Regal Row), which
secures a note in the amount of $3,000,000. Outstanding
Principal Amount $2,088,240.14.
Loan from Illinois Department of Commerce and Community Affairs
providing financing for infrastructure development on
facility located at 0000 Xxxx Xxxxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxx. Outstanding Principal Amount $174,974.13.
Intercompany Indebtedness of United to Supply evidenced by the
promissory note delivered to the Agent on the Initial
Borrowing Date. Outstanding Principal Amount
[$88,796,000.00].
Intercompany Indebtedness of Supply to United Stationers Hong
Kong Limited and United Worldwide Limited in the amount of
$127,418.
Intercompany Indebtedness of SAH, Inc. to Supply in the amount of
$263,074.00.
United has guaranteed the obligations of Supply under the leases
for its facilities located at (i) 0000 Xxxxxxxxxx Xxx,
Xxxxxxxxxx, Xxxxxxxxxx, and (ii) 0000 Xxxxxxxxxx Xxxxxx, Xx.
Lauderdale, Florida.
Supply has guaranteed the obligations of Xxxxxxx under the lease,
as amended, for its facilities located at 0000 Xxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxx.
The letters of credit set forth on the Letters of Credit Chart
(attached hereto) issued on behalf of United and its
Subsidiaries to remain outstanding or backstopped.
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_ _ _
LETTERS OF CREDIT CHART
LC N ISSUER APPLICAN ISSUE EXPIRY BENEFICIARY OUTSTANDI BACKSTOP (B)
T DATE DATE NG OUTSTANDING
BALANCE (O)
NORWEST
1. Sanwa USSC 9/30/96 6/30/97 Norwest $3,500,000.00 B
663/470/00372
2
2.(SEE ATTACHED [Norwest] USSC/UWL See See See List $xx,xxx.x O
SCHEDULE) List List x
CHASE
1. PG754785 CHASE USSC 3-30-95 4-6-97 PNC 7,684,932.00 B
(Gwimet Co.,
GA IRB)
2. PG754786 CHASE USSC 3-30-95 4-1-99 BANK OF NY 6,960,000.00 B
(Twinsburg,
OH IRB)
3. PG754787 CHASE USSC 3-30-95 3-29-97 PNC 8,120,000.00 O
(Xxxx Xxxxxxx
Co., MD IRB)
4. PG754788 CHASE USSC 3-30-95 3-29-97 PNC 7,612,500.00 O
(City of Des
Plaines, IL
IRB)
5. PG754789 CHASE USSC 3-30-95 3-31-97 AMERICAN 16,379,026.74 O
(Employee NATL.
Benefit
Trust)
PNC
1. A-301673 PNC USSC 12/14/90 01/01/97 PNC, Paying $7,684,932.00 O
(Gwinnett Agent
Co., GA IRB)
2. A-301404 PNC USSC 12/13/86 12/27/98 Bank of New $6,960,000.00 O
(Twinsburg, York OH IRB)
WORKER COMP. AND AUTO LIABILITY
1. 663/470/00332 Sanwa USSC Origina 12/01/96 American $4,500,000.00 O
5 l Motorists
11/01/94 Insurance
Company, et
Latest al.
Amendme
nt
3/5/96
Part C: Existing Indebtedness of Xxxxxxx [to be Repaid on the
Initial Borrowing Date (or, as indicated, by ______________):
Cross-default and Cross-collateralization Agreement dated
December 29, 1995 by and between Hibernia National Bank and
Xxxxxxx in connection with a $12.4 million dollar loan.
Outstanding Principal Amount [$5,500,000.]
Cross-default and Cross-collateralization Agreement dated
December 29, 1995 by and between Hibernia National Bank and
Xxxxxxx in connection with an $878,971.71 dollar loan.
Outstanding Principal Amount [$320,657.]
[Obligations relating to miscellaneous building improvements for
the premises located at 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx
Xxxxxx, XX, in the amount of $25,000. Xxxxxxx expects to
pay this debt in full prior to October 31, 1996.]
Liens Securing Indebtedness Remaining Outstanding (Guarantor
and Subsidiaries and Xxxxxxx):
[A Deed of Trust and Assignment of Rents dated June 3, 1985,
executed by Supply for the benefit of State Farm Life
Insurance Company (as assigned from First Interstate
Mortgage Company) covering property located in the City of
Industry, California (000 Xxxxx Xxxxxxx Xxxxxx), which
secures a note in the amount of $6,000,000 (to be released
on or about July 31, 1995).]
[Liens pursuant to the Mortgage in favor of PNC Bank, National
Association (Twinsburg, Ohio).]
Liens pursuant to Mortgage and Loan Agreement in favor of the
City of Des Plaines, Illinois (0000 X. Xxxx Xxxx).
The following UCC financing statements with respect to purchase
money and/or lease obligations:
FILING DEBTOR SECURED PARTY UCC-1 DATE
JURISDICTION FILING UCC-1
NUMBER FILED
UNITED STATIONERS SUPPLY CO.
1. Arizona United Hewlett-Packard 619420 04/30/90
Secretary Stationers Company
of State Supply Co. ("Hewlett")
("Supply")
2. Arizona Supply Hewlett 642697 11/06/90
Secretary
of State
3. California Supply Hewlett 90122489 05/11/90
Secretary
of State
4. Illinois Supply Hewlett 3133482 06/14/93
Secretary
of State
5. Illinois Supply Hewlett 3133483 06/14/93
Secretary
of State
6. Illinois Supply Hewlett 3133484 06/14/93
Secretary
of State
7. Illinois Supply Hewlett 3133485 06/14/93
Secretary
of State
8. Illinois Supply Hewlett 3133480 06/14/93
Secretary
of State
9. Illinois Supply Hewlett 3133479 06/14/93
Secretary
of State
10. Illinois Supply Hewlett 3133486 06/14/93
Secretary
of State
11. Illinois Supply Hewlett 3133481 06/14/93
Secretary
of State
12. Illinois Supply Hewlett 3133489 06/14/93
Secretary
of State
13. Illinois Supply AT&T Systems 3195446 12/03/93
Secretary Leasing
of State Corporation
("AT&T")
14. Illinois Supply Xxxxxx 3367676 02/23/95
Secretary Corporation
of State ("Xxxxxx")
15. Illinois Supply Hewlett 3133492 06/14/93
Secretary
of State
16. Illinois Supply Hewlett 3133490 06/14/93
Secretary
of State
17. Illinois Supply Hewlett 3133488 06/14/93
Secretary
of State
18. Illinois Supply Hewlett 3133478 06/14/93
Secretary
of State
19. Illinois Supply Hewlett 3133487 06/14/93
Secretary
of State
20. Illinois Supply Hewlett 3133491 06/14/93
Secretary
of State
21. Illinois Supply Hewlett 3072171 01/12/93
Secretary
of State
22. Illinois Supply Hewlett 3072172 01/12/93
Secretary
of State
23. Illinois Supply Hewlett 3072173 01/12/93
Secretary
of State
24. Illinois Supply Hewlett 3133477 06/14/93
Secretary
of State
25. Illinois Supply Hewlett 3072170 01/12/93
Secretary
of State
26. Illinois Supply Hewlett 3072168 01/12/93
Secretary
of State
27. Illinois Supply Hewlett 3072169 01/12/93
Secretary
of State
28. Illinois Supply AT&T 3055286 11/23/92
Secretary
of State
29. Illinois Supply Xxxxxx 2853517 06/21/91
Secretary
of State
30. Illinois Supply Illinois 2591158 06/26/89
Secretary Department of Continued
of State Commerce and :
Community 3229674 03/08/94
Affairs
31. Illinois Supply Hewlett 3072176 01/12/93
Secretary
of State
32. Illinois Supply Hewlett 3072175 01/12/93
Secretary
of State
33. Illinois Supply Hewlett 3095899 03/12/93
Secretary
of State
34. Illinois Supply Hewlett 3133476 06/14/93
Secretary
of State
35. Illinois Supply Hewlett 3133476 06/14/93
Secretary
of State
36. Illinois Supply Hewlett 3133474 06/14/93
Secretary
of State
37. Illinois Supply Hewlett 3133475 06/14/93
Secretary
of State
38. Illinois Supply Hewlett 3133473 06/14/93
Secretary
of State
39. Illinois Supply Hewlett 3133471 06/14/93
Secretary
of State
40. Illinois Supply AT&T 3102814 06/14/93
Secretary
of State
41. Illinois Supply Hewlett 3133472 06/14/93
Secretary
of State
42. Illinois Supply NCNB Texas 83-U- 12/28/83
Cook assignee, 46464
County Republic Bank Continued
Dallas ("NCNB : 12/21/88
Texas") 88-U-
31507
43. Illinois Supply NCNB Texas 83-U- 12/28/83
Cook 46465
County Continued
: 12/21/88
88-U-
31508
44. Louisiana, Supply Hewlett 26163747 11/08/90
Xxxxxxxxx
Xxxxxx
45. Maryland, Xxxx Supply Xxxx Commercial Vol. 594, 05/21/93
Arundel County Credit Page 111
Corporation (289051)
46. Maryland Supply Norlease, Inc. 60838313- 03/24/86
Secretary ("Norlease") 2799/0544
of State
47. Maryland Supply Norlease 131328048- 05/12/93
Secretary 3509/0927
of State
48. Maryland Supply Norlease 60628390- 03/03/86
Secretary 2793/1412
of State
49. Maryland Supply Norlease 60218145- 01/21/86
Secretary 2782/0099
of State
50. Maryland Supply Norlease 53647930- 12/30/85
Secretary 2777/2410
of State
51. Maryland Supply Norlease 52638099- 09/20/85
Secretary 2748/0404
of State
52. Maryland Supply Norlease 53647931- 12/30/85
Secretary 2777/2411
of State
53. Michigan Supply Hovinga C879018 08/30/94
Secretary Business
of State Systems, Inc.
54. New Jersey Supply Marine Bank, as 0000000 01/09/87
Secretary of Trustee
State (assignee of
New Jersey
Economic
Development
Authority)
55. New Jersey Supply Xxxxx Financial 1470504 08/20/92
Secretary of Corporation
State
56. New Jersey Supply Canon Financial 1461968 06/26/92
Secretary of Services
State
57. New Jersey Supply Marine Bank, as 1885 #72 01/07/87
Middlesex Trustee Continued
County (assignee of :
New Jersey 1908 12/30/91
Economic #3165
Development
Authority)
58. New York Supply Manufacturers 89-1059* 05/28/89
Xxxxxx Bank (assignee (Please
County of LaSalle note that
Computer the above
Corporation) filing
has
lapsed
but is
still on
file with
County
Clerk.)
59. Ohio Supply Pittsburgh Y0006540 01/21/87
Secretary National Bank
of State ("Pittsburgh")
60. Ohio Supply Pittsburgh 391845 01/21/87
Summit
County
61. Oklahoma Supply Hewlett 058037 10/11/88
Oklahoma
County
62. Oklahoma Supply Hewlett 012279 03/06/89
Oklahoma
County
63. Texas Supply Hewlett 90-172791 05/10/90
Secretary
of State
64. Texas Supply Hewlett 90-172792 08/10/90
Secretary
of State
65. Texas Supply Hewlett 90-103710 05/10/90
Secretary
of State
66. Texas Supply Hewlett 90-234645 11/06/90
Secretary
of State
67. Texas Supply Xxxx Xxxxxxx 79-130599 08/24/79
Secretary Mutual Life
of State Insurance Xxxxx
Company nued:
05/29
/94
07/28
/89
07/05
/94
68. Texas Supply Hewlett 91-105310 05/30/91
Secretary
of State
69. Texas Supply Hewlett 90-083999 04/16/90
Secretary
of State
70. Texas Supply Hewlett 90-094155 04/30/90
Secretary
of State
71. Utah Supply Hewlett 265684 11/06/90
Secretary
of State
UNITED STATIONERS INC.
72. Illinois United Refrigeration 2794650 12/13/90
Secretary Stationers Inc. Systems of
of State ("USI") Illinois
73. Missouri USI M.W.M., Inc. J321703 05/24/93
Xxxxxxx
County
74. New Jersey USI Xxxxx Financial 1480009 10/27/92
Secretary Corporation
of State ("Xxxxx")
75. New Jersey USI Xxxxx 1557901 03/08/94
Secretary
of State
76. Oregon USI The Xxxxxxx S39900 02/11/95
Secretary Funding Group,
of State Inc. (as
assignee to
Datagraphics
Northwest)
77. Tennessee USI Hewlett-Packard 886372 05/31/91
Secretary Company
of State ("Hewlett")
78. Texas USI Xxxxx 90-244414 11/20/90
Secretary
of State
79. Texas USI Xxxxx 90-244415 11/21/90
Secretary
of State
80. Texas USI Pitney Bowes 91-155006 08/08/91
Secretary Credit Corp.
of State
81. Texas USI Crown Credit 94-082354 04/28/94
Secretary Company
of State
Xxxxxxx Bros.,
Inc.
82. California Xxxxxxx Bros. Hibernia 91-034984 2/19/91
Secretary Inc. National Bank
of State ("Xxxxxxx") ("Hibernia") con't
.
8/28/95
83. Florida Xxxxxxx Hibernia 910000039 2/19/91
Secretary 584
of State 950000174 con't
016 .
8/29/95
84. Xxxxxxx Xxxxxxx Hibernia 752361 2/4/91
Xxxxxx
County con't
.
8/25/95
85. Illinois Xxxxxxx Hibernia 2987532 8/10/94
Secretary
of State
86. Illinois Xxxxxxx Xxxxxxx Leasing 3519723 3/21/96
Corp.
87. Louisiana Xxxxxxx Hibernia 36-52771 2/1/91
Orleans 36-97727
Parish
88. Louisiana Xxxxxxx Lease-America 36-63042 1/27/92
Orleans
Parish
89. Louisiana Xxxxxxx AT&T Credit 36-103170 2/27/96
Orleans Corporation
Parish
90. Louisiana Xxxxxxx Hibernia 36-76724 8/30/93
Orleans
Parish
91. Louisiana Xxxxxxx Hibernia 36-104137 3/19/96
Orleans
Parish
92. Louisiana Xxxxxxx Hibernia 36-107006 6/7/96
Orleans
Parish
93. Louisiana Xxxxxxx Hibernia 26-204103 12/29/95
Xxxxxxxxx
Xxxxxx
94. North Carolina Lagasse Hibernia 0754955 2/4/91
Secretary of 1262841
State con't
9/13/95
95. Texas Xxxxxxx Hibernia 191018254 2/1/91
Secretary
of State con't
.
8/28/95
96. Washington Xxxxxxx Hibernia 94-220- 8/8/94
Secretary of 0446
State
97. Indiana Xxxxxxx Hibernia 1931666 8/10/94
Secretary
of State
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_ _ SCHEDULE II
ENVIRONMENTAL MATTERS
The Guarantor under state direction has investigated
the presence of petroleum contamination at its facility in
Edison, N.J. While Guarantor is not responsible for the
contamination, i.e., did not cause it, it could be required to
undertake certain corrective action to minimize the adverse
effects.
None of the facilities owned or operated by Guarantor
or its Subsidiaries is a treatment, storage or disposal facility
under the Resource Conservation and Recovery Act ("RCRA").
Several of the facilities, however, generate hazardous wastes,
which, although not prompting permitting obligations, requires
the registration and procurement of an EPA identification number.
Many of the facilities currently and historically
owned, operated or leased by the Guarantor or its Subsidiaries
contain asbestos-containing building materials ("ACM"), e.g.,
floor tiles and ceiling materials. These materials are
manageable and Guarantor does not believe that the existence of
ACM at any individual facility is reasonably likely to give rise
to environmental liabilities in excess of $10,000 unless for some
reason the ACM had to be removed. For specific locations that
contain ACM, Guarantor incorporates by reference the asbestos-
related information contained in Environmental Reports listed on
Attachment A.
It is possible that some of the electrical equipment
located either in the Guarantor's facilities or on real estate
owned or leased by Guarantor currently contain or historically
contained PCB-containing oils. For the most part, the electrical
equipment is owned by the local utility company in the area. The
Guarantor does not believe that the current or historic presence
of PCBs at any individual facility is reasonably likely to give
rise to environmental liabilities in excess of $10,000.
Guarantor incorporates by reference those portions of the
Environmental Reports on Attachment A that identify the
facilities that have or may have PCB-containing equipment.
There are underground storage tanks ("USTs") located
at, on or under some of the real property owned, operated, or
leased by the Guarantor and its Subsidiaries, and there
previously were some USTs located at the Company's facilities,
which have been removed or closed in place. Guarantor is not
aware of any current leaks or spills from any individual UST that
is reasonably likely to give rise to an environmental claim in
excess of $10,000. To the extent any of the USTs need to be
closed, the cost of closure could exceed $10,000. Guarantor
incorporates by reference those portions of the Environmental
Reports on Attachment A that identify the facilities that have or
previously had USTs.
ENVIRONMENTAL SURVEYS
UNITED STATIONERS SUPPLY CO.
Date of
Property How Held Survey Type of Survey
898 Xxxxx Court Leased 10/11/89 Report Transmittal
Carol Stream, Illinois Environmental
Assessment (Two
parcels 160 and 110
acres) between
Fullerton Avenue and
Xxxxxxx Road, DuPage
County, Illinois)
Hazardous Wastes
Questionnaire by ASI
as proposed tenant,
Hazardous Materials
List
0000 Xxxxxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx Xxxxxxxxxx
Xxxx
Xxxxxxxx, Xxxxxxxx
0000 Xxxxxx Xxxxx Xxxx Leased 01/04/93 Phase I Environmental
North Highlands, Assessment
California
18910-00 Xxx Xxxx Xxxxxx Leased 02/16/95 Final Report Phase I
City of Industry, Environmental Site
California Assessment
000 Xxxxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxx
0000 Xxxxxxxx Xxxxx Leased 12/02/91 Report of Phase I
Columbus, Ohio Environmental Site
Assessment and
Asbestos Survey of
Limited Scope
000 Xxxxxxx Xxxx Xxxxx Leased 12/02/91 Report of Phase I
Pittsburgh, Pennsylvania Environmental Site
Assessment and
Asbestos Survey of
Limited Scope
0000 X.X. 000xx Xxxxxx Leased 12/02/91 Report of Phase I
Hialeah, Florida Environmental Site
Assessment and
Asbestos Survey of
Limited Scope
07/13/93 Report of Limited
Soil and Groundwater
Testing Program
0000 X.X. 000 Xxxxxx Leased 12/02/91 Report of Phase I
Hialeah, Florida Environmental Site
Assessment and
Asbestos Survey of
Limited Scope
07/13/93 Report of a Limited
Soil and Groundwater
Testing Program
000 Xxxxxxx Xxxxx Leased 12/02/91 Report of Phase I
Nashville, Tennessee Environmental Site
(48,000 square feet) Assessment and
Asbestos Survey of
Limited Scope
04/23/93 UST Closure
Regulatory Records
Review
724 Xxxxxxx Drive Leased 12/02/91 Report of Phase I
Nashville, Tennessee Environmental Site
(18,000 square feet) Assessment and
Asbestos Survey of
Limited Scope
04/23/93 UST Closure
Regulatory Records
Review
0000 Xxxxxxxx Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
601 Raritan Way Owned 12/02/91 Report of Phase I
Denver, Colorado Environmental Site
Assessment and
Asbestos Survey of
Limited Scope
0000 Xxxx 00xx Xxxxxx Owned 12/02/91 Report of Phase I
Jacksonville, Florida with a Environmental Site
partial Assessment and
sublet Asbestos Survey of
to a Limited Scope
third
party
0000 Xxxxxx Xxxx Xxxxx Owned 12/02/91 Report of Phase I
Tampa, Florida Environmental Site
Assessment and
Asbestos Survey of
Limited Scope
07/16/93 Report of Results of
Phase II
Environmental
Assessment
11/23/93 Report of Results of
Battery Wastewater
Assessment
4800 Highlands Parkway Owned 12/02/91 Report of Phase I
Smyrna, Georgia Environmental Site
Assessment and
Asbestos Survey of
Limited Scope
0000 Xxxxx Xxxxxx, Xxxxx Owned 12/02/91 Report of Phase I
Brooklyn Park, Minnesota Environmental Site
Assessment and
Asbestos Survey of
Limited Scope
01/17/95 Report of
Neutralization Sump
Sampling and Wash
Basin Residue
Sampling
9755 International Owned 11/09/00 Xxxxxxxxxxxxx Xxxx
Xxxxxxxxx Xxxxxxxxxx
Xxxxxxxxxx, Xxxx
01/19/95 Report of Wastewater
Sampling
0000 Xxxxx Xxxxx Owned 12/02/91 Report of Phase I
Valley View, Ohio Environmental Site
Assessment and
Asbestos Survey of
Limited Scope
02/15/88 Environmental Audit
for Rite Aid
Distribution Center
on Xxxxx Road
07/18/88 Analytical Report
from Wadsworth/Alert
Laboratories
0000 Xxxx Xxxx Xxxxxx Owned 12/02/91 Report of Phase I
Milwaukee, Wisconsin Environmental Site
Assessment and
Asbestos Survey of
Limited Scope
01/17/95 Report of Soil
Sampling
0000 Xxxx 00xx Xxxxxx Owned 11/26/91 Report of Phase I
Indianapolis, Indiana Environmental Site
Assessment and
Asbestos Survey of
Limited Scope
01/17/95 UST Records Review
and Report of Phase
II Environmental Site
Assessment
Commerce Park III Owned 12/02/91 Report of Phase I
1400 Westinghouse Environmental Site
Boulevard Assessment and
Charlotte, North Carolina Asbestos Survey of
Limited Scope
01/18/95 Report of Preliminary
Ground-Water and Soil
Assessment
Commerce Park III
0000 Xxxxxxxxxxxx
Xxxxxxxxx
Xxxxxxxxx, Xxxxx
Xxxxxxxx
Owned
II. XXXXXXX BROS., INC.
0000 Xxxxxx Xxxxxx Xxxxx 00/23/96 Environmental Report
Harahan, LA 70123
There was also delivered a copy of the Operations and Maintenance
Program for Asbestos-Containing Materials in United Stationers
Distribution Warehouses prepared by Law Engineering, Inc. dated
November 23, 1993.
UNITED REPORTS PREPARED BY LAW
UNITED STATIONERS SUPPLY/TEMPE, AZ
UNITED STATIONERS SUPPLY/INDUSTRY, CA
UNITED STATIONERS SUPPLY/ANTELOPE, SACRAMENTO CO., CA
UNITED STATIONERS SUPPLY/DENVER, CO
UNITED STATIONERS SUPPLY/FORT LAUDERDALE, FL
UNITED STATIONERS SUPPLY/NORCROSS, GA
UNITED STATIONERS SUPPLY/FOREST PARK, IL
UNITED STATIONERS SUPPLY/HARAHAN, LA
UNITED STATIONERS SUPPLY/HANOVER, MD
UNITED STATIONERS SUPPLY/WOBURN, MA
UNITED STATIONERS SUPPLY/LIVONIA, MI
UNITED STATIONERS SUPPLY/EAGAN, MN
UNITED STATIONERS SUPPLY/NORTH KANSAS CITY, MO
UNITED STATIONERS SUPPLY/GREENVILLE, IL
UNITED STATIONERS SUPPLY/COXSACKIE, NY
UNITED STATIONERS SUPPLY/EDISON, NJ
UNITED STATIONERS SUPPLY/CHARLOTTE, NC
UNITED STATIONERS SUPPLY/SPRING XXXX, OH
UNITED STATIONERS SUPPLY/TWINSBURG, OH
UNITED STATIONERS SUPPLY/TULSA, OK
UNITED STATIONERS SUPPLY/PORTLAND, OR
UNITED STATIONERS SUPPLY/PENNSAUKEN, NJ
UNITED STATIONERS SUPPLY/MEMPHIS, TN
UNITED STATIONERS SUPPLY/NASHVILLE, TN
UNITED STATIONERS SUPPLY/DALLAS, TX
UNITED STATIONERS SUPPLY/HOUSTON, TX
UNITED STATIONERS SUPPLY/LUBBOCK, TX
UNITED STATIONERS SUPPLY/SAN ANTONIO, TX
UNITED STATIONERS SUPPLY/SALT LAKE CITY, UT
UNITED STATIONERS SUPPLY/TUKWILA, WA
UNITED STATIONERS SUPPLY/BOLT, FT. WORTH, TX
UNITED STATIONERS SUPPLY/MOCKINGBIRD LANE, DALLAS, TX
UNITED STATIONERS SUPPLY/JESSUP, MD
UNITED STATIONERS SUPPLY/CITY OF INDUSTRY
DAFS02...:\33\78533\0001\6517\SCH0296R.010
Do not delete this box or the codes above it; do not type above
this box.
_ _ _ Text should begin immediately below this line. _
_ _ SCHEDULE III
SUBSIDIARIES AND INVESTMENTS
Part A
- United Stationers Supply Co.
- United Business Computers, Inc. ("UBC")1
- United Stationers Hong Kong Limited
- United Worldwide Limited
- SAH, Inc.
- CJS/GT Corp.
- Xxxxxxx Bros., Inc.
Part B
Guarantor:
None
Supply:
- $500,000 Revolving Credit Loan Agreement dated
July 1, 1993 between United Business Computers, Inc.,
as Borrower, and Supply, as Lender
- $1,244,874 net in CJS/GT Corp. CJS/GT Corp. is a
general partner of a partnership that owns a building
located at 0000 Xxxxxxxxxxxx Xxxx, Xxxxxxxxx, XX. The
building is presently fully leased.
Xxxxxxx:
NONE
DAFS02...:\33\78533\0001\6517\SCH0296R.070
SCHEDULE IV
Real Property
I. DISPOSITIONS
The Company currently contemplates disposing of the real
property interest and all personal property (including furniture
and equipment) and fixtures at the locations listed below. All
facilities are warehouse space, except as otherwise noted.
PART A
California
- City of Industry (Los Angeles area) - 18960 E. San
Xxxx Avenue (Lease)
- North Highland (Sacramento area) - 3030 Orange
Grove (Lease)
- Sacramento - 0000 Xxxxxxxxxx Xxx (Lease)
Colorado
- Denver - 000 Xxxxxxx Xxx (Fee)
- Denver - 0000-X Xxxx 0xx Xxx. (Lease)
- Denver - 0000 X. 0xx Xxx. (Lease)
Florida
- Hialeah (Miami area) - 0000 XX 000xx Xxxxxx
(Lease) [VACATED]
0000 XX 000xx Xxxxxx (Lease)
[VACATED]
Georgia
- Smyrna (Atlanta) - 4800 Highlands Parkway (Fee)
[CLOSED]
- Doraville - 0000 Xxxxxxxxxxxx Xxxx (this property
is not a facility and was acquired in satisfaction of a
debt owed to Supply) (Fee)
Illinois
- Des Plaines (Chicago area) - 0000 Xxxx Xxxx Xxxx
(Corporate headquarters) (Fee)
- Forest Park (Chicago area) - 1900 South Des
Plaines Road (Fee)
- Forest Park (Chicago area) - 7750 Industrial -
Annex (Lease)
- Forest Park (Chicago area) - 7725 Industrial Drive
(Lease)
- Xxxxx Stream (Chicago area) - 898 Xxxxx Court
(Lease)
- Bensenville (Chicago area) - 0000 Xxxxx Xxxxxx
(Lease)2
Louisiana
- New Orleans - 000 Xxxxx Xxxxxx (Fee)
Maryland
- Elkridge (Baltimore area) - 6725 Business Parkway
(Lease) [VACATED]
Minnesota
- Brooklyn Park (St. Xxxx area) - 0000 Xxxxx Xxxxxx
(Fee)
- Eagan (Minneapolis area) - 1720 Alexander Road
(Fee)
North Carolina
- Charlotte - 00000-X X. Xxxxxxxx Xxxx. (Lease)
Ohio
- Valley View (Cleveland area) - 0000 Xxxxx Xxxxx
(Fee) [CLOSED]
- Springdale (Cincinnati area) - 000 X.
Xxxxxxxxxxxxx Xxxx (Lease)
Tennessee
- Nashville - 000 Xxxxxxx Xxxxx (entire facility)
0000 Xxxxxxxxxxx Xxxx (Lease)
Texas
- Fort Worth (DFW area) - 0000 Xxxx Xxxx Xxxxxx (Old
SDC corporate office building) (Fee) [SOLD]
Wisconsin
- Milwaukee - 0000 Xxxx Xxxxx Xxxxxx
PART B
California
- Sacramento - 000 Xxxxxxx Xxxxxx [VACATED]
Colorado
- Denver - 0000X Xxxx 0xx Xxxxxx/0000 X. 0xx Xxxxxx
(Leasehold)
Illinois
- Itasca (Chicago area) - 0000 Xxxxxxxx Xxxxx
(Leasehold) [CLOSED]
- Mount Prospect (Chicago area) - 0000 Xxxxxxxxxxx
Xxxxx (Leasehold)
North Carolina
- Charlotte - 1949-2001 Freedom Drive (Leasehold)
Ohio
- Twinsburg (Cleveland area) - 0000 Xxxxxxxx Xxxx (Fee)
Tennessee
- Memphis - 0000 Xxxxxx Xxxxxx (Leasehold)3
Texas
- Dallas (DFW area) - 613-00 Xxxxxxxxxxx Xxxx/0000
Xxxxxx Xxxxxxxxx
REAL PROPERTY INTERESTS
United Stationers Supply Co.
Arizona
Leasehold
- Tempe - 0000 Xxxx Xxxxxxx Xxxxx
California
Fee Owned
- City of Industry (Los Angeles area) - 000 Xxxxx
Xxxxxxx Xxxxxx
Leasehold
- City of Industry (Los Angeles area) - 18305-000
Xxx Xxxx Xxxxxx
- Xxxx xx Xxxxxxxx - 00000 X. Xxx Xxxx Xxxxxx
[VACATED]
- North Highland - 3030 Orange Grove
- Sacramento - 000 Xxxxxxx Xxxxxx [VACATED]
- Sacramento - 0000 Xxxxxxxxxx Xxx
Colorado
Fee Owned
- Denver - 000 Xxxxxxx Xxx
Leasehold
- Denver - 0000X Xxxx 0xx Xxxxxx
- Xxxxxx - 0000 X. 0xx Xxxxxx
Xxxxxxxxxxx
Leasehold
- North Branford - 104-5 Branford
Florida
Fee Owned
- Jacksonville - 0000 Xxxx 00xx Xxxxxx
- Xxxxx - 0000 Xxxxx Xxxx Xxxxx
Leasehold
- Ft. Lauderdale - 0000 Xxxxxxxxxx Xxxxxx
- Xxxxxxx - 0000 XX 000xx Xxxxxx [VACATED]
- Hialeah - 0000 XX 000xx Xxxxxx [VACATED]
- Orlando - 0000 X. 00xx Xxxxxx
Georgia
Fee Owned
- Norcross (Atlanta area) - 6448 Best Friend Road
- Doraville - 0000 Xxxxxxxxxxxx Xxxx (CJS/GT Corp.,
a subsidiary of Supply is a general partner in a
partnership that owns this building. The building is
presently fully leased.)
- Smyrna - 0000 Xxxxxxxxx Xxxxxxx [SOLD]
Illinois
Fee Owned
- Des Plaines - 0000 Xxxx Xxxx Xxxx0
- Forest Park - 1900 South Des Plaines Road
- Greenville (St. Louis area) - 2000 Wolf Business
Park
Leasehold
- Xxxxx Stream - 898 Xxxxx Court
- Forest Park - 7750 Industrial - Annex
- Forest Park - 0000 Xxxxxxxxxx Xxxxx
- Itasca - 0000 Xxxxxxxx Xxxxx [CLOSED]
- Mount Prospect - 0000 Xxxxxxxxxxx Xxxxx
- Woodale - 000 Xxxx Xxxxx
Indiana
Fee Owned
- Indianapolis - 0000 Xxxx 00xx Xxxxxx
Louisiana
Leasehold
- Lafayette - 223 I.B. Street
- Harahan - 0000 Xxxxxxx Xxxxxx
- Xxx Xxxxxxx - 000 Xxxxxxx Xxxxxx and Bevin Street
Maryland
Fee Owned
- Hanover (Baltimore area) - 0000 Xxxxxxxxxx Xxxx
Leasehold
- Elkridge - 6725 Business Parkway [VACATED]
- Hanover - 0000 Xxxxxxxxxx Xxxx (the property is
subleased to Xxxxxxx Office Supply)
- Jessup - 0000 Xxxxxxx Xxxxx [CLOSED]
Massachusetts
Fee Owned
- Woburn (Boston area) - 000 Xxxxxxxx Xxxxxx
Michigan
Fee Owned
- Livonia (Detroit area) - 00000 Xxxxxxx Xxxxx
Leasehold
- Livonia (Detroit area) - 00000 Xxxxxxxx Xxxx
- Wyoming - 900 47th Street S.W.
Minnesota
Fee Owned
- Brooklyn Park (St. Xxxx area) - 0000 Xxxxx Xxxxxx
- Eagan (Minneapolis area) - 0000 Xxxxxxxxx Xxxx
Missouri
Leasehold
- Kansas City - 0000 Xxxx Xxxxxx
New Jersey
Fee Owned
- Edison (New York area) - 00 Xxxxxxxxx Xxxxxx
- Xxxxxxxxxx (Xxxxxxxxxxxx area) - 0000 Xxxxxxxxxx
Xxxxxxx
Leasehold
- Edison - 000 Xxxxxx Xxxx
- Xxxxxxxxxx - 0000 Xxxxxxxxxx Xxxxxxx
New York
Fee Owned
- Coxsackie (Albany area) - Route 9W and Wolf Road
Leasehold
- Manhattan - 000-00 X. 00xx Xxxxxx/000-00 X. 00xx
Xxxxxx [VACATED]
North Carolina
Fee Owned
- Charlotte - 00000-X X. Xxxxxxxx Xxxx.
Leasehold
- Charlotte - 1949-2001 Freedom Drive [VACATED]
Ohio
Fee Owned
- Sharonville (Cincinnati area) - 0000 Xxxxxxxxxxxxx
Xxxxx
- Twinsburg (Cleveland area) - 0000 Xxxxxxxx Xxxx
- Xxxxxx Xxxx - 0000 Xxxxx Xxxxx [CLOSED]
Leasehold
- Columbus - 0000 Xxxxxxxx Xxxxx
- Springdale - 000 X. Xxxxxxxxxxxxx Xxxx
Oklahoma
Fee Owned
- Tulsa - 1870 North 000xx Xxxx Xxxxxx
Leasehold
- Tulsa - 00000 Xxxx Xxxx Xxxxxx
Oregon
Leasehold
- Portland - 4409 S.E. 24th Street
- Portland - 0000 X.X. 24th Street
Pennsylvania
Leasehold
- Pittsburgh - 000 Xxxxxxx Xxxx Xxxxx [VACATED]
- Warrendale (Pittsburgh area) - 000 Xxxxxxxxxxxx
Xxxxx
Tennessee
Leasehold
- Memphis - 0000 Xxxxxx Xxxxxx
- Nashville - 0000 Xxxxxxxxxxx Xxxx
- Xxxxxxxxx - 000 Xxxxxxx Xxxxx - 48,000 sq. ft.
- Nashville - 000 Xxxxxxx Xxxxx - 18,000 sq. ft.
Texas
Fee Owned
- Dallas - 119 Regal Row
- Fort Worth - 0000 Xxxx Xxxx Xxxxxx [SOLD]
Leasehold
- Dallas - 000-00 Xxxxxxxxxxx Xxxx
- Xxxxxx - 0000 Xxxxxx Xxxx.
- Houston - 0000 Xxxxxx Xxxx
- Houston - 0000 Xxxxxx Xxxx
- Lubbock - 000 Xxxxxx Xxxx
- Xxx Xxxxxxx - 0000 Xxxxxxxxx Xxxxx
Utah
Leasehold
- Salt Lake City - 888/890 West 2600
- Salt Lake City - 889 W. 0000 Xxxxx Xxxxxx
- Xxxx Xxxx Xxxx - 0000 S. 900 West (Lease expires
May 1, 1995) [VACANT]
Washington
Leasehold
- Tukwila - 00000 Xxxxxxx Xxxxxx Xxxxx, Building 255
- Tukwila - 00000 Xxxxxxxxxxx Xxxxxxx
Wisconsin
Fee Owned
- Milwaukee - 0000 Xxxx Xxxxx Xxxxxx
Xxxxxxx Bros., Inc.
California
Leasehold
- Hayward - 00000 Xxxxxxx Xxxx
- Union City (San Francisco area) -
00000 Xxxxxxx Xxxx
- Xxxx (Xxx Xxxxxxx area) - 5650 Bandini Blvd
Florida
- Dania (Miami area) - 0000 Xxxxxxxx Xxxx
- Xxxxx - 0000-00 Xxxxxxxxxxxx Drive
Georgia
- Atlanta - 0000-X Xxxxxxxx Xxxxx
Illinois
- Bensenville (Chicago area) - 0000 Xxxxx Xxxxxx
Indiana
- Indianapolis - 0000 X. Xxxxx Xxxx Xxx.
Louisiana
Fee Owned
- New Orleans - 000 Xxxxx Xxxxxx
Leasehold
- Harahan (New Orleans area) - 0000 Xxxxxx Xxxxxx
North Carolina
- Charlotte - 0000 Xxxxxxxxxx XxXxxxxx Xx.
Ohio
- Valley View (Cleveland area) - 0000 Xxxxxxx Xxxxx
Texas
- Dallas - 0000 Xxxxxxxx Xxxxxx
- Houston - 0000 Xxxxxx Xxxx
- Xxx Xxxxxxx - 0000 Xxxxx Xxxxxx
Washington
- Kent (Seattle area) - 00000 Xxxx Xxxxxx Xxxxxxx
III. MORTGAGES
United Stationers Supply Co.
Fee Owned
California
- City of Industry (Los Angeles area) - 000 Xxxxx
Xxxxxxx Xxxxxx
Colorado
- Denver - 000 Xxxxxxx Xxx****
Florida
- Jacksonville - 0000 Xxxx 00xx Xxxxxx*
- Tampa - 0000 Xxxxx Xxxx Xxxxx*
Illinois
- Des Plaines - 0000 Xxxx Xxxx Xxxx
- Forest Park - 1900 South Des Plaines Road
- Greenville (St. Louis area) - 2000 Wolf Business
Park
Indiana
- Indianapolis - 0000 Xxxx 00xx Xxxxxx
Maryland
- Hanover (Baltimore area) - 0000 Xxxxxxxxxx Xxxx*
Massachusetts
- Woburn (Boston area) - 000 Xxxxxxxx Xxxxxx
Michigan
- Livonia (Detroit area) - 00000 Xxxxxxx Xxxxx
Minnesota
- Brooklyn Park (St. Xxxx area) - 0000 Xxxxx Xxxxxx
North*
- Eagan (Minneapolis area) - 1720 Alexander Road*
New Jersey
- Pennsauken (Philadelphia area) - 0000 Xxxxxxxxxx
Xxxxxxx
New York
- Coxsackie (Albany area) - Route 9W and Wolf Road*
North Carolina
- Charlotte - 0000 Xxxxxxxxxxxx Xxxx.
Ohio
- Sharonville (Cincinnati area) - 0000 Xxxxxxxxxxxxx
Xxxxx
Texas
- Dallas - 119 Regal Row
Wisconsin
- Milwaukee - 0000 Xxxx Xxxxx Xxxxxx
Leasehold
Arizona
- Tempe - 1005-0000 Xxxx Xxxxxxx Xxxxx
California
- Sacramento - 0000 Xxxxxxxxxx Xxx
Illinois
- Xxxxx Stream - 898 Xxxxx Stream
Louisiana
- New Orleans - 300 Xxxxxxx Street and Bevin Street
Tennessee
- Memphis - 0000 Xxxxxx Xxxxxx0*
- Nashville - 000 Xxxxxxx Xxxxx*
Texas
- San Antonio - 3615 Highpoint
Washington
- Tukwila - 00000 Xxxxxxx Xxxxxx Xxxxx, Building 255
Xxxxxxx Bros. Inc.
Fee Owned
[NONE]
Leasehold
Louisiana
- Harahan (New Orleans area) - 0000 Xxxxxx Xxxxxx
DAFS02...:\33\78533\0001\6517\SCH0296R.150
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_ _ SCHEDULE V
LITIGATION
Guarantor:
None
Supply and it subsidiaries:
None
Xxxxxxx
None
SCHEDULE VI
CAPITALIZATION
[SEE ATTACHED]
Schedule VI
Outstanding as
of
Class of Stock: Authorized: Effective Date:
Common Stock,
par value $0.10 per 11,446,306.04
share 40,000,000.00
Nonvoting Common
Stock,
par value $0.01 per 5,000,000.00 758,993.90
share
Preferred Stock,
par value $0.01 per 1,500,000.00 26,697.44
share
The following series of preferred stock have been designated pursuant to a
certificate of designations, rights and preferences dated March 30, 1995
Issued and Outstanding
Series of Stock: Designated: as of the Effective Date:
Series A Preferred Stock,
par value $0.01 per 15,000.00 15,000.00 1
share
Series C Preferred Stock,
par value $0.01 per 15,000.00 11,697.4398
share
1 Dividends accrued, but not issued are 3,087.5001
The following represent warrants issued pursuant to the Warrant Agreements
mentioned in Section 8.15
Issued and Outstanding
Warrant type: as of the Effective Date:
Lender Warrants 1,227,438.05
Preferred B Warrants 182,188.74
The following represent options authorized and issued by the Guarantor
Outstanding as of
Option Authorized: Effective Date:
Plan/Agreement:
United Stationers Inc.
Management Stock 2,605,924.28 2,515,120.00
Option Plan
Xxxxxxx X. Xxxxxx 14,648.00 14,648.00
SCHEDULE VII
TARGET EBITDA
Fiscal Year
Ended EBITDA
1995 $ 80,000,000
1996 $135,000,000
1997 $140,000,000
1998 $142,500,000
1999 $145,000,000
2000 $145,000,000
2001 $145,000,000
SCHEDULE VIII
TAXES
Guarantor:
None
Supply and its Subsidiaries:
- United Stationers Hong Kong Limited does not join in filing
consolidated returns.
- There is a federal income tax refund controversy pending in
federal district court for the 1986 year.
- There is a federal income tax refund controversy pending
with respect to the 1988 through 1990 taxable years in
federal district court.
- The statute of limitations for fiscal years ended August 31,
1991 and August 31, 1992 have been extended to June 30,
1997. Certain issues in both taxable years were "unagreed"
at the agent level and are being appealed. Based on an
initial meeting with an appeals officer, a favorable outcome
is anticipated.
Xxxxxxx
None
SCHEDULE IX
UNITED STATIONERS INC.
ACCOUNTS RECEIVABLE FUNDING PROGRAM
Structural Overview
The proposed transaction involves a two tier structure. In the
first tier, United Stationers ("US") will establish United
Stationers Funding Corporation ("USFC"), a wholly owned, special
purpose bankruptcy remote subsidiary that will purchase, on a
revolving basis, all of the trade receivables (the "Receivables")
generated by US. In the second tier, the purchase by USFC will
be financed by the sale of an undivided percentage interest in
the Receivables. The sale by US will be structured as a true
sale for bankruptcy purposes, which will ensure that the assets
and liabilities of USFC will not be substantively consolidated
with those of US. In addition, reserve levels and other
structural enhancements will be established that are consistent
with an investment grade rating.
Purchase/Transferor: USFC, a bankruptcy remote, special-purpose
corporation wholly owned by US.
Seller: US
Servicer: Seller or any successor servicer
Program Description: Seller will sell to USFC all Receivables
at a Purchase Price equal to their fair
market value. USFC will purchase the
Receivables with a combination of cash and
obligations under a Subordinated Note.
USFC will derive the cash from the sales
of undivided percentage interests in the
Receivables.
Initial Contribution from Seller: Receivables that would have
a fair market value of $xx million shall
be contributed in the form of equity.
Bankruptcy-remote Characteristics: USFC will have at least two
independent directors and its by-laws will
require the consent of all independent
directors for the filing of a voluntary
bankruptcy petition by USFC or an
amendment of its by-laws. The program
documents will include other provisions
relating to independent operations of USFC
customary in programs of this nature.
Use of Proceeds: USFC will sell undivided interests in the
Receivables pursuant to a receivables
sales agreement and will use the proceeds
to fund the purchase of additional
Receivables or to repay the Subordinated
Note. The undivided interests in the
Receivables shall be evidenced by the
issuance of Certificates.
Aggregate Program: An amount up to $150,000,000
Expiration Date: The Receivables sales agreement will have
a maturity equal to or longer than that of
the existing Revolver, subject to earlier
termination of the program in accordance
with the terms of the program documents.
Purchase: A purchase of an interest or an additional
interest in the Receivables whether by
increasing the Purchaser's Investment or
by applying the Purchaser's Interest in
Collections as a reinvestment in the
Purchaser's Investment.
Security: An assignment of a first priority,
perfected ownership interest in USFC's
valid first priority, perfected ownership
interest in the Receivables, any related
security and proceeds thereof.
Sale of Receivables (Seller to USFC)
Receivable: All trade receivables generated by Seller
in the ordinary course of business.
Eligible Receivable: Usual and customary for transactions of
this type.
Purchase Price: The purchase price for the Receivables
conveyed to USFC shall be a dollar amount
equal to the aggregate unpaid balance of
the Eligible Receivables, less a discount
representing the sum of (i) a market rate
of interest, (ii) the cost of servicing
the receivables, and (iii) a percentage
representing historical losses.
Sales of Interests in the Receivables (USFC to Purchasers)
Purchaser's Investment: The aggregate purchase price for the
Receivables less any amounts paid by USFC
as a reduction to the Purchaser's
Investment.
Purchaser's Interest: The Purchaser's percentage interest in the
Receivables shall equal the Purchaser's
Investment plus the Reserve (as defined
below), expressed as a percentage of the
Eligible Pool Balance.
Reserve: The Reserve shall be in the form of an
overcollateralization of Receivables. The
Reserve will be a percentage of the
Purchaser's Interest calculated in manner
that is usual and customary for a
transaction of this type.
Eligible Pool Balance:The Eligible Pool Balance shall mean at
any date the outstanding unpaid principal
balance of all Eligible Receivables
reduced by the aggregate amount by which
the unpaid principal balance of Eligible
Receivables of an obligor exceed the
Concentration Limit.
Payment of the Purchase Price: The Purchaser will pay for the
purchase of undivided interests in the
Receivables in cash.
Reinvestments: Prior to the Expiration Date, USFC may
sell additional interests in the
Receivables for a purchase price equal to
the Purchaser's Interest in Collections
received on such day and not otherwise
required to be paid to or set aside for
the benefit of the Purchaser.
Concentration Limit: The aggregate amount of Receivables with
respect to a single obligor and such
obligor's subsidiaries and affiliates may
not constitute more than xx% of the
aggregate amount of the Receivables.
Collection Procedures and Lockbox: Cash collections on
Receivables will be remitted to a lockbox
in the name of USFC.
Reporting Requirements: Usual and customary for transactions
of this type.
EXHIBIT A
[Form of Borrowing Base Certificate]
BORROWING BASE CERTIFICATE
Monthly Accounting Period ended ____________, _____
Reference is made to the Credit Agreement dated as of
March 30, 1995 (as amended and restated as of October 31, 1996
and thereafter as modified and supplemented and in effect from
time to time, the "Credit Agreement"), between United Stationers
Supply Co. (together with its successors and assigns, the
"Company"), United Stationers Inc. as parent guarantor (together
with its successors and assigns, the "Guarantor"), the lenders
named therein, and The Chase Manhattan Bank, as Agent. Terms
defined in the Credit Agreement are used herein as defined
therein.
Pursuant to Section 9.01(g) of the Credit Agreement,
the undersigned, a Responsible Officer of the Company, hereby
certifies that, to the best of [his/her] knowledge, attached
hereto as Annex 1 is a true and accurate calculation of the
Borrowing Base as at the end of the monthly accounting period
ended ____________, _____ determined in accordance with the
requirements of the Credit Agreement.
To the best of my knowledge, all Inventory covered by
this Certificate has been produced in compliance with all
applicable laws, including, without limitation, the minimum wage
and overtime requirements of the Fair Labor Standards Act of
1938, as amended.
IN WITNESS WHEREOF, the undersigned has caused this
certificate to be duly executed on behalf of the Company and not
individually as of the __________ day of ____________, ______.
By:____________________________
Name
Title:
Annex 1
UNITED STATIONERS SUPPLY CO.
Borrowing Base Certificate
(000's omitted)
************************************************************
Receivables as of the last day of the
immediately preceding month ______
Less: Receivable Adjustments as of the
last day of the preceding Monthly
Accounting Period (______)
Subtotal: ______
Less: Ineligible Receivables as of the
last day of the preceding Monthly
Accounting Period (determined without
duplication):
Receivables not payable in Dollars (______)
(other than up to $10,000,000 Canadian
dollars)
Receivables (other than in connection
with a published promotional program)
payable more than 60 days after the
issuance of the billing statement
therefor (______)
Receivables due from Subsidiaries and
Affiliates (______)
Export Receivables (other than (1)
Receivables of account debtors located
in Canada and not exceeding
$10,000,000 and (2) Receivables of
account debtors located in a U.S.
Territory or Protectorate and not
exceeding $5,000,000) (______)
Receivables from creditors with
unsatisfactory credit standing (as
determined by the Majority Lenders)
or with respect to which, subsequent
to the creation of such Receivable,
an event described in Section 10(f)
or (g) of the Credit Agreement shall
have occurred (______)
Receivables over 90 days from issuance
of original billing statement
date (______)
Receivables with excess of 50% of
balances past 90 days from
invoice date (______)
Receivables exceeding concentration of
10% of aggregate Receivables (______)
Receivables subject to dispute (______)
Receivables evidenced by Instruments (______)
Receivables arising out of sale or
return transactions (______)
Catalogue Receivables6 (______)
Government Receivables including
state and local public universities (______)
Receivables from employees (______)
Receivables payable on COD basis (______)
Total Ineligible Receivables (______)
Total Eligible Receivables ______
Annex 1 to
Borrowing Base
Certificate of the Company
UNITED STATIONERS SUPPLY CO.
Borrowing Base Certificate
(000's omitted)
ELIGIBLE INVENTORY
Inventory at lower of cost or market
covered by appropriate filings: ______
[Less: Calendars7 (______)
Catalogs (______)
In excess of 100% of prior
12 months' sales (______)
New Inventory (to extent
value exceeds $25,000,000) (______)
Inventory for internal use] (______)
Less: (______)
Total Eligible Inventory ______
Annex 1 to
Borrowing Base
Certificate of the Company
UNITED STATIONERS SUPPLY CO.
Borrowing Base Certificate
(000's omitted)
BORROWING BASE
Borrowing Base:
80% of Eligible Receivables ______
Plus: 50% of Eligible Inventory ______
Plus: Cover for Letter of Credit
Liabilities ______
Subtotal ______
Less: Eligible Inventory in excess
of [65]%8 of Borrowing Base: (______)
Less: Any portion of the above
attributable to Eligible
Receivables and Eligible
Inventory of Xxxxxxx that
is in excess of the outstanding
amount of Xxxxxxx Advances (______)
Borrowing Base: ______
Revolving Credit Loans and Letter of
Credit Liabilities (______)
Unused Borrowing Base: ______
EXECUTION COPY
AMENDED AND RESTATED SECURITY AGREEMENT
AMENDED AND RESTATED SECURITY AGREEMENT dated as of
October 31, 1996 between UNITED STATIONERS SUPPLY CO., a
corporation duly organized and validly existing under the laws of
the State of Illinois (together with its successors and assigns,
the "Company"); and THE CHASE MANHATTAN BANK, as agent for the
lenders party to the Credit Agreement referred to below (in such
capacity, together with its successors in such capacity, the
"Agent").
The Company, United Stationers Inc., the parent
corporation of the Company and a corporation duly organized and
validly existing under the laws of the State of Delaware
(together with its successors and assigns, the "Guarantor");
certain lenders; and the Agent are parties to a Credit Agreement
dated as of March 30, 1995 (as amended and restated as of October
31 and thereafter modified and supplemented and in effect from
time to time, the "Credit Agreement"), providing, subject to the
terms and conditions thereof, for extensions of credit (by making
of loans and issuing letters of credit) to be made by said
lenders to the Company in an aggregate principal amount not
exceeding on the date hereof $540,000,000.
To induce said lenders to enter into the Credit
Agreement and to extend credit thereunder, and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Company has agreed to pledge and grant a
security interest in the Collateral (as hereinafter defined) as
security for the Secured Obligations (as hereinafter defined).
Accordingly, the parties hereto agree as follows:
Section 1. Definitions. Terms defined in the Credit
Agreement are used herein as defined therein. In addition, as
used herein:
"Accounts" shall have the meaning ascribed thereto in
Section 3(c) hereof.
"Collateral" shall have the meaning ascribed thereto in
Section 3 hereof.
"Collateral Account" shall have the meaning ascribed
thereto in Section 4.01 hereof.
"Copyright Collateral" shall mean all Copyrights,
whether now owned or hereafter acquired by the Company,
including each Copyright identified in Annex 2 hereto.
"Copyrights" shall mean all copyrights, copyright
registrations and applications for copyright registrations,
including, without limitation, all renewals and extensions
thereof, the right to recover for all past, present and
future infringements thereof, and all other rights of any
kind whatsoever accruing thereunder or pertaining thereto.
"Documents" shall have the meaning ascribed thereto in
Section 3(i) hereof.
"Equipment" shall have the meaning ascribed thereto in
Section 3(g) hereof.
"Foreign Subsidiary" shall mean any Subsidiary of the
Company that is not organized or created under the laws of
the United States of America, any State thereof or the
District of Columbia.
"Instruments" shall have the meaning ascribed thereto
in Section 3(d) hereof.
"Intellectual Property" shall mean, collectively, all
Copyright Collateral, all Patent Collateral and all
Trademark Collateral, together with (a) all inventions,
processes, production methods, proprietary information,
know-how and trade secrets; (b) all licenses or user or
other agreements granted to the Company with respect to any
of the foregoing, in each case whether now or hereafter
owned or used including, without limitation, the licenses or
other agreements with respect to the Copyright Collateral,
the Patent Collateral or the Trademark Collateral, listed in
Annex 4 hereto, except to the extent that a security
interest therein may not be granted without the consent of a
licensor; (c) all information, customer lists,
identification of suppliers, data, plans, blueprints,
specifications, designs, drawings, recorded knowledge,
surveys, engineering reports, test reports, manuals,
materials standards, processing standards, performance
standards, catalogs, computer and automatic machinery
software and programs; (d) all field repair data, sales data
and other information relating to sales or service of
products now or hereafter manufactured; (e) all accounting
information and all media in which or on which any
information or knowledge or data or records may be recorded
or stored and all computer programs used for the compilation
or printout of such information, knowledge, records or data;
(f) all licenses, consents, permits, variances,
certifications and approvals of governmental agencies now or
hereafter held by the Company, except to the extent that a
security interest therein may not be granted without the
consent of a licensor; and (g) all causes of action, claims
or warranties now or hereafter owned or acquired by the
Company in respect of any of the items listed above.
"Inventory" shall have the meaning ascribed thereto in
Section 3(e) hereof.
"Motor Vehicles" shall mean motor vehicles, tractors,
trailers and other like property, whether or not the title
thereto is governed by a certificate of title or ownership.
"Patent Collateral" shall mean all Patents, whether now
owned or hereafter acquired by the Company, including each
Patent identified in Annex 3 hereto.
"Patents" shall mean all patents and patent
applications, including, without limitation, the inventions
and improvements described and claimed therein together with
the reissues, divisions, continuations, renewals, extensions
and continuations-in-part thereof, all income, royalties,
damages and payments now or hereafter due and/or payable
under and with respect thereto, including, without
limitation, damages and payments for past or future
infringements thereof, the right to sue for past, present
and future infringements thereof, and all rights
corresponding thereto throughout the world.
"Pledged Stock" shall have the meaning ascribed thereto
in Section 3(a) hereof.
"Secured Obligations" shall mean, collectively, (a) the
principal of and interest on the Loans made by the Lenders
to, and the Note(s) held by each Lender of, the Company and
all other amounts from time to time owing to the Lenders or
the Agent by the Company under the Basic Documents
including, without limitation, all Reimbursement Obligations
and interest thereon, (b) the Interest Rate Protection
Obligations required by Section 9.15 of the Credit Agreement
and (c) all obligations of the Company to the Lenders and
the Agent hereunder.
"Trademark Collateral" shall mean all Trademarks,
whether now owned or hereafter acquired by the Company,
including each Trademark identified in Annex 4 hereto.
Notwithstanding the foregoing, the Trademark Collateral does
not and shall not include any Trademark that would be
rendered invalid, abandoned, void or unenforceable by reason
of its being included as part of the Trademark Collateral.
"Trademarks" shall mean all trade names, trademarks and
service marks, logos, trademark and service mark
registrations, and applications for trademark and service
mark registrations, including, without limitation, all
renewals of trademark and service mark registrations, all
rights corresponding thereto throughout the world, the right
to recover for all past, present and future infringements
thereof, all other rights of any kind whatsoever accruing
thereunder or pertaining thereto, together, in each case,
with the product lines and goodwill of the business
connected with the use of, and symbolized by, each such
trade name, trademark and service mark.
"Uniform Commercial Code" shall mean the Uniform
Commercial Code as in effect from time to time in the State
of New York.
Section 2. Representations and Warranties. The
Company represents and warrants to the Lenders and the Agent
that:
(a) The Company is (or, at the time that the Company
acquires any interest therein, will be) the sole beneficial
owner of the Collateral and no Lien exists or will exist
upon the Collateral at any time (and no right or option to
acquire the same exists in favor of any other Person),
except for Liens permitted under Section 9.06 of the Credit
Agreement and except for the pledge and security interest in
favor of the Agent for the benefit of the Lenders created or
provided for herein, which pledge and security interest
constitute a perfected pledge and security interest in and
to all of the Collateral (other than Intellectual Property
registered or otherwise located outside of the United States
of America), subject to no equal or prior security interest
or pledge except as permitted under Section 9.06 of the
Credit Agreement.
(b) The Pledged Stock represented by the certificates
identified in Annex 1 hereto is, and all other Pledged Stock
in which the Company shall hereafter grant a security
interest pursuant to Section 3 hereof will be, duly
authorized, validly existing, fully paid and non-assessable
and none of such Pledged Stock is or will be subject to any
contractual restriction, or any restriction under the
charter or by-laws of the relevant issuer thereof, upon the
transfer of such Pledged Stock (except for any such
restriction contained herein or in the Credit Agreement).
(c) The Pledged Stock represented by the certificates
identified in Annex 1 hereto constitutes all of the issued
and outstanding shares of capital stock of each class of
each issuer thereof on the date hereof (or, in the case of
any Foreign Subsidiary, not less than 65% of the issued and
outstanding shares of capital stock of each class of such
Foreign Subsidiary on the date hereof), and said Annex 1
correctly identifies, as at the date hereof, the respective
class and par value of the shares comprising such Pledged
Stock, the respective number of shares represented by each
such certificate, and the respective beneficial and
registered owner of such shares.
(d) Annexes 2, 3 and 4 hereto, respectively, set forth
a complete and correct list of all Copyrights, Patents and
Trademarks owned by the Company on the date hereof; except
pursuant to licenses and other user agreements entered into
by the Company in the ordinary course of business, that are
listed in Annex 5 hereto, the Company owns and possesses the
right to use, and has done nothing to authorize or enable
any other Person to use, any Copyright, Patent or Trademark
listed in said Annexes 2, 3 and 4, and all registrations
listed in said Annexes 2, 3 and 4 are valid and in full
force and effect; except as may be set forth in said
Annex 5, the Company owns and possesses the right to use all
Copyrights, Patents and Trademarks.
(e) Annex 5 hereto sets forth a complete and correct
list of all licenses and other user agreements included in
the Intellectual Property on the date hereof.
(f) To the Company's knowledge, (i) except as set
forth in Annex 5 hereto, there is no violation by others of
any right of the Company with respect to any Copyright,
Patent or Trademark listed in Annexes 2, 3 and 4 hereto,
respectively, and (ii) the Company is not infringing in any
respect upon any Copyright, Patent or Trademark of any other
Person; and no proceedings have been instituted or are
pending against the Company or, to the Company's knowledge,
threatened, and no claim against the Company has been
received by the Company, alleging any such violation, except
as may be set forth in said Annex 5.
(g) The Company does not own any Trademarks registered
in the United States of America to which the last sentence
of the definition of Trademark Collateral applies.
(h) Any goods now or hereafter produced by the Company
or any of its Subsidiaries included in the Collateral have
been and will be produced in compliance with the
requirements of the Fair Labor Standards Act, as amended.
Section 3. Collateral. As collateral security for the
prompt payment in full when due (whether at stated maturity, by
acceleration or otherwise) of the Secured Obligations, the
Company hereby pledges and grants to the Agent, for the benefit
of the Lenders as hereinafter provided, a security interest in
all of the Company's right, title and interest in the following
Property, whether now owned by the Company or hereafter acquired
and whether now existing or hereafter coming into existence (all
being collectively referred to herein as "Collateral"):
(a) all shares of capital stock of whatever class of
each Subsidiary of the Company (other than United Business
Computors, Inc., a Delaware corporation ("UBC"), for so long
as, and to the extent, the Stockholders' Agreement dated
July 1, 1993 between the Company, Xxxxxxxx X. Xxxxxx and
United Business Computers, Inc. prohibits transfer of the
shares of UBC, as described in Annex III to the Credit
Agreement) now or hereafter owned by the Company or any
other Subsidiary of the Company, including, without
limitation, from and after the effectiveness of the Mergers,
the shares of stock represented by the certificates
identified in Annex 1 hereto, in each case together with the
certificates representing the same (collectively, the
"Pledged Stock");
(b) all shares, securities, moneys or Property
representing a dividend on any of the Pledged Stock, or
representing a distribution or return of capital upon or in
respect of the Pledged Stock, or resulting from a split-up,
revision, reclassification or other like change of the
Pledged Stock or otherwise received in exchange therefor,
and any subscription warrants, rights or options issued to
the holders of, or otherwise in respect of, the Pledged
Stock;
(c) all accounts and general intangibles (each as
defined in the Uniform Commercial Code) of the Company
constituting any right to the payment of money, including
(but not limited to) all moneys due and to become due to the
Company in respect of any loans or advances or for Inventory
or Equipment or other goods sold or leased or for services
rendered, all moneys due and to become due to the Company
under any guarantee (including a letter of credit) of the
purchase price of Inventory or Equipment sold by the Company
and all tax refunds (such accounts, general intangibles and
moneys due and to become due being herein called
collectively "Accounts");
(d) all instruments, chattel paper or letters of
credit (each as defined in the Uniform Commercial Code) of
the Company evidencing, representing, arising from or
existing in respect of, relating to, securing or otherwise
supporting the payment of, any of the Accounts, including
(but not limited to) promissory notes, drafts, bills of
exchange and trade acceptances (herein collectively called
"Instruments");
(e) all inventory (as defined in the Uniform
Commercial Code) of the Company, all goods obtained by the
Company in exchange for such inventory, and any products
made or processed from such inventory including all
substances, if any, commingled therewith or added thereto
(herein collectively called "Inventory");
(f) all Intellectual Property and all other accounts or
general intangibles not constituting Intellectual Property
or Accounts;
(g) all equipment (as defined in the Uniform
Commercial Code) of the Company, including all Motor
Vehicles (herein collectively called "Equipment");
(h) each contract and other agreement of the Company
relating to the sale or other disposition of Inventory or
Equipment;
(i) all documents of title (as defined in the Uniform
Commercial Code) or other receipts of the Company covering,
evidencing or representing Inventory or Equipment (herein
collectively called "Documents");
(j) all rights, claims and benefits of the Company
against any Person arising out of, relating to or in
connection with Inventory or Equipment purchased by the
Company, including, without limitation, any such rights,
claims or benefits against any Person storing or
transporting such Inventory or Equipment;
(k) the balance from time to time in the Collateral
Account; and
(l) all other tangible and intangible personal
Property and fixtures of the Company, including, without
limitation, all proceeds, products, accessions, rents,
profits, income, benefits, substitutions and replacements of
and to any of the property of the Company described in the
preceding clauses of this Section 3 (including, without
limitation, any proceeds of insurance thereon and all causes
of action, claims and warranties now or hereafter held by
the Company in respect of any of the items listed above)
and, to the extent related to any Property described in said
clauses or such proceeds, products and accessions, all
books, correspondence, credit files, records, invoices and
other papers, including without limitation all tapes, cards,
computer runs and other papers and documents in the
possession or under the control of the Company or any
computer bureau or service company from time to time acting
for the Company;
provided that Collateral shall not include (i) shares of capital
stock of any class issued by any Foreign Subsidiary to the extent
that the percentage of issued and outstanding shares of capital
stock of such class subject to the Lien of this Agreement would
constitute more than 65% of the issued and outstanding shares of
capital stock of such class and (ii) any tangible personal
Property located outside the United States of America.
Section 4. Cash Proceeds of Collateral.
4.01 Collateral Account. The Agent shall establish
with Chase a cash collateral account (the "Collateral Account")
in the name and under the control of the Agent into which there
shall be deposited from time to time the cash proceeds of any of
the Collateral (including proceeds of insurance thereon) required
to be delivered to the Agent pursuant hereto and into which the
Company may from time to time deposit any additional amounts that
it wishes to pledge to the Agent for the benefit of the Lenders
as additional collateral security hereunder or that, as provided
in Sections 2.10 and 10 of the Credit Agreement, it is required
to pledge as additional collateral security hereunder. The
balance from time to time in the Collateral Account shall
constitute part of the Collateral hereunder and shall not
constitute payment of the Secured Obligations until applied as
hereinafter provided. As promptly as possible after any amount
is deposited into the Collateral Account pursuant to the second
or third sentence of Section 4.02 hereof, the Agent shall remit
the balance of such amount (if any) to the Company's account
(#910-2-668754) with Chase. However, the Agent may (and, if
instructed by the Lenders of the Credit Agreement shall) at any
time in its (or their) discretion apply or cause to be applied
the balance from time to time outstanding to the credit of the
Collateral Account to the repayment of the principal of the
Revolving Credit Loans outstanding, to accrued interest on the
principal so repaid, and to the payment of any commitment fees
with respect to the Revolving Credit Commitments, in each case in
accordance with the Credit Agreement. Notwithstanding the above,
at any time following the occurrence and during the continuance
of an Event of Default, the Agent may (and, if instructed by the
Lenders as specified in Section 11.03 of the Credit Agreement,
shall) in its (or their) discretion apply or cause to be applied
(subject to collection) the balance from time to time standing to
the credit of the Collateral Account to the payment of the
Secured Obligations in the manner specified in Section 5.09
hereof. The balance from time to time in the Collateral Account
shall be subject to withdrawal only as provided herein.
4.02 Proceeds of Accounts. The Company shall
within 90 days of the Closing Date instruct all account debtors
and other Persons obligated in respect of all Accounts to make
all payments in respect of the Accounts either (a) directly to
the Agent (by instructing that such payments be remitted to a
post office box which shall be in the name and under the control
of the Agent) or (b) to one or more other banks in the United
States of America (by instructing that such payments be remitted
to a post office box which shall be in the name and under the
control of such other bank(s)) under arrangements, in form and
substance satisfactory to the Agent pursuant to which the Company
shall have irrevocably instructed such other bank(s) (and such
other bank(s) shall have agreed) to remit all proceeds of such
payments directly to the Agent for deposit into the Collateral
Account. All payments made to the Agent, as provided in the
preceding sentence, shall be immediately deposited in the
Collateral Account. In addition to the foregoing, the Company
agrees that if the proceeds of any Collateral hereunder
(including the payments made in respect of Accounts) shall be
received by it, the Company shall as promptly as possible deposit
such proceeds into the Collateral Account. Until so deposited,
all such proceeds shall be held in trust by the Company for and
as the property of the Agent and shall not be commingled with any
other funds or property of the Company.
4.03 Investment of Balance in Collateral Account.
Amounts on deposit in the Collateral Account shall be invested
from time to time in such Permitted Investments as the Company
(or, after the occurrence and during the continuance of an Event
of Default, the Agent) shall determine, which Permitted
Investments shall be held in the name and be under the control of
the Agent, provided that (i) at any time after the occurrence and
during the continuance of an Event of Default, the Agent may
(and, if instructed by the Lenders as specified in Section 11.03
of the Credit Agreement, shall) in its (or their) discretion at
any time and from time to time elect to liquidate any such
Permitted Investments and to apply or cause to be applied the
proceeds thereof to the payment of the Secured Obligations in the
manner specified in Section 5.09 hereof and (ii) if requested by
the Company, such Permitted Investments may be held in the name
and under the control of one or more of the Lenders (and in that
connection each Lender, pursuant to Section 11.10 of the Credit
Agreement, has agreed that such Permitted Investments shall be
held by such Xxxxxx as a collateral sub-agent for the Agent
hereunder).
4.04 Cover for Letter of Credit Liabilities. Amounts
deposited into the Collateral Account as cover for Letter of
Credit Liabilities under the Credit Agreement pursuant to
Section 2.10(h) or Section 10 thereof shall be held by the Agent
in a separate sub-account (designated "Letter of Credit
Liabilities Sub-Account") and all amounts held in such
sub-account shall constitute collateral security first for the
Letter of Credit Liabilities outstanding from time to time and
second as collateral security for the other Secured Obligations
hereunder.
Section 5. Further Assurances; Remedies. In
furtherance of the grant of the pledge and security interest
pursuant to Section 3 hereof, the Company hereby agrees with each
Lender and the Agent as follows:
5.01 Delivery and Other Perfection. The Company
shall:
(a) if any of the shares, securities, moneys or other
Property required to be pledged by the Company under
clauses (a) and (b) of Section 3 hereof are received by the
Company, forthwith either (x) transfer and deliver to the
Agent such shares or securities so received by the Company
(together with the certificates for any such shares and
securities duly endorsed in blank or accompanied by undated
stock powers duly executed in blank), all of which
thereafter shall be held by the Agent, pursuant to the terms
of this Agreement, as part of the Collateral or (y) take
such other action as the Agent shall deem necessary or
appropriate to duly record the Lien created hereunder in
such shares, securities, moneys or Property in said
clauses (a) and (b);
(b) deliver and pledge to the Agent any and all
Instruments, endorsed and/or accompanied by such instruments
of assignment and transfer in such form and substance as the
Agent may request; provided, that so long as no Event of
Default shall have occurred and be continuing, the Company
may retain for collection in the ordinary course any
Instruments received by the Company in the ordinary course
of business and the Agent shall, promptly upon request of
the Company, make appropriate arrangements for making any
Instrument pledged by the Company available to the Company
for purposes of presentation, collection or renewal (any
such arrangement to be effected, to the extent deemed
appropriate by the Agent, against trust receipt or like
document);
(c) give, execute, deliver, file and/or record any
financing statement, notice, instrument, document, agreement
or other papers that may be necessary or desirable (in the
judgment of the Agent) to create, preserve, perfect or
validate the security interest granted pursuant hereto or to
enable the Agent to exercise and enforce its rights
hereunder with respect to such pledge and security interest,
including, without limitation, after the occurrence of an
Event of Default, causing any or all of the Stock Collateral
to be transferred of record into the name of the Agent or
its nominee (and the Agent agrees that if any Stock
Collateral is transferred into its name or the name of its
nominee, the Agent will thereafter promptly give to the
Company copies of any notices and communications received by
it with respect to the Stock Collateral), provided that
notices to account debtors in respect of any Accounts or
Instruments shall be subject to the provisions of clause (i)
below;
(d) without limiting the obligations of the Company
under Section 5.04(c) hereof, upon the acquisition after the
date hereof by the Company of any Equipment covered by a
certificate of title or ownership, cause the Agent to be
listed as the lienholder on such certificate of title and
within 120 days of the acquisition thereof deliver evidence
of the same to the Agent;
(e) keep full and accurate books and records relating
to the Collateral, and stamp or otherwise mark such books
and records in such manner as the Agent may reasonably
require in order to reflect the security interests granted
by this Agreement;
(f) furnish to the Agent from time to time (but,
unless an Event of Default shall have occurred and be
continuing, no more frequently than quarterly) statements
and schedules further identifying and describing the
Copyright Collateral, the Patent Collateral and the
Trademark Collateral, respectively, and such other reports
in connection with the Copyright Collateral, the Patent
Collateral and the Trademark Collateral, as the Agent may
reasonably request, all in reasonable detail;
(g) promptly upon request of the Agent, following
receipt by the Agent of any statements, schedules or reports
pursuant to clause (f) above, modify this Agreement by
amending Annexes 2, 3 and/or 4 hereto, as the case may be,
to include any Copyright, Patent or Trademark that becomes
part of the Collateral under this Agreement;
(h) permit representatives of the Agent, upon
reasonable notice, at any time during normal business hours
to inspect and make abstracts from its books and records
pertaining to the Collateral, and permit representatives of
the Agent to be present at the Company's place of business
to receive copies of all communications and remittances
relating to the Collateral, and forward copies of any
notices or communications received by the Company with
respect to the Collateral, all in such manner as the Agent
may require; and
(i) upon the occurrence and during the continuance of
any Event of Default, upon request of the Agent, promptly
notify (and the Company hereby authorizes the Agent so to
notify) each account debtor in respect of any Accounts or
Instruments that such Collateral has been assigned to the
Agent hereunder, and that any payments due or to become due
in respect of such Collateral are to be made directly to the
Agent.
5.02 Other Financing Statements and Liens. Except for
financing statements securing Liens expressly permitted by
Section 9.06 of the Credit Agreement and protective filings filed
against the Company in respect of equipment, furniture or
fixtures leased to or Property consigned with the Company,
without the prior written consent of the Agent (granted with the
authorization of the Lenders as specified in Section 11.09 of the
Credit Agreement), the Company shall not file or suffer to be on
file, or authorize or permit to be filed or to be on file, in any
jurisdiction, any financing statement or like instrument with
respect to the Collateral in which the Agent is not named as the
sole secured party for the benefit of the Lenders.
5.03 Preservation of Rights. The Agent shall not be
required to take steps necessary to preserve any rights against
prior parties to any of the Collateral.
5.04 Special Provisions Relating to Certain
Collateral.
(a) Stock Collateral.
(1) The Company will cause the Pledged Stock to
constitute at all times 100% (or, with respect to any issuer that
is a Foreign Subsidiary, at least 65%) of the total number of
shares of each class of capital stock of each Subsidiary of the
Company then outstanding.
(2) Unless an Event of Default shall have occurred and
be continuing and the Agent shall have given notice to the
Company of its intention to exercise rights arising hereunder or
under any other Basic Document with respect to the Pledged Stock,
the Company shall have the right to exercise all voting,
consensual and other powers of ownership pertaining to the
Pledged Stock for all purposes not inconsistent with the terms of
this Agreement, the Credit Agreement, the Notes or any other
instrument or agreement referred to herein or therein, provided
that the Company agrees that it will not vote the Collateral in
any manner that is inconsistent with the terms of this Agreement,
the Credit Agreement, the Notes or any such other instrument or
agreement; and the Agent shall execute and deliver to the Company
or cause to be executed and delivered to the Company all such
proxies, powers of attorney, dividend and other orders, and all
such instruments, without recourse, as the Company may reasonably
request for the purpose of enabling the Company to exercise the
rights and powers that it is entitled to exercise pursuant to
this Section 5.04(a)(2).
(3) Unless and until an Event of Default has occurred
and is continuing, the Company shall be entitled to receive and
retain any dividends on the Collateral paid in cash out of earned
surplus.
(4) If any Event of Default shall have occurred, then
so long as such Event of Default shall continue, and whether or
not the Agent or any Lender exercises any available right to
declare any Secured Obligation due and payable or seeks or
pursues any other relief or remedy available to it under
applicable law or under this Agreement, the Credit Agreement, the
Notes or any other agreement relating to such Secured Obligation,
all dividends and other distributions on the Pledged Stock shall
be paid directly to the Agent and retained by it as part of the
Collateral, subject to the terms of this Agreement, and, if the
Agent shall so request in writing, the Company agrees to execute
and deliver to the Agent appropriate additional dividend,
distribution and other orders and documents to that end, provided
that if such Event of Default is cured, any such dividend or
distribution theretofore paid to the Agent shall, upon request of
the Company (except to the extent theretofore applied to the
Secured Obligations), be returned by the Agent to the Company.
(b) Intellectual Property.
(1) For the purpose of enabling the Agent to exercise
rights and remedies under Section 5.05 hereof at such time as the
Agent shall be lawfully entitled to exercise such rights and
remedies, and for no other purpose, the Company hereby grants to
the Agent, to the extent assignable, an irrevocable,
non-exclusive license (exercisable without payment of royalty or
other compensation to the Company) to use, assign, license or
sublicense any of the Intellectual Property now owned or
hereafter acquired by the Company, wherever the same may be
located, including in such license reasonable access to all media
in which any of the licensed items may be recorded or stored and
to all computer programs used for the compilation or printout
thereof.
(2) Notwithstanding anything contained herein to the
contrary, but subject to the provisions of Section 9.05 of the
Credit Agreement that limit the right of the Company to dispose
of its Property, so long as no Event of Default shall have
occurred and be continuing, the Company will be permitted to
exploit, use, enjoy, protect, license, sublicense, assign, sell,
dispose of or take other actions with respect to the Intellectual
Property in the ordinary course of the business of the Company.
In furtherance of the foregoing, unless an Event of Default shall
have occurred and be continuing the Agent shall from time to
time, upon the request of the Company, execute and deliver any
instruments, certificates or other documents, in the form so
requested, that the Company shall have certified are appropriate
(in its judgment) to allow it to take any action permitted above
(including relinquishment of the license provided pursuant to
clause (1) immediately above as to any specific Intellectual
Property). Further, upon the payment in full of all of the
Secured Obligations and cancellation or termination of the
Commitments and Letter of Credit Liabilities or earlier
expiration of this Agreement or release of the Collateral, the
license granted pursuant to clause (1) immediately above shall
expire by its own terms without further action on the part of the
Company or the Agent. The exercise of rights and remedies under
Section 5.05 hereof by the Agent shall not terminate the rights
of the holders of any licenses or sublicenses theretofore granted
by the Company in accordance with the first sentence of this
clause (2).
(c) Motor Vehicles. At any time after the occurrence
and during the continuance of an Event of Default, the Company
shall, upon the request of the Agent, deliver to the Agent
originals of the certificates of title or ownership for the Motor
Vehicles owned by it with the Agent listed as lienholder and take
such other action as the Agent shall deem appropriate to perfect
the security interest created hereunder in all such Motor
Vehicles.
5.05 Events of Default, Etc. During the period during
which an Event of Default shall have occurred and be continuing:
(a) the Company shall, at the request of the Agent,
assemble the Collateral owned by it at such place or places,
reasonably convenient to both the Agent and the Company,
designated in its request;
(b) the Agent may make any reasonable compromise or
settlement deemed desirable with respect to any of the
Collateral and may extend the time of payment, arrange for
payment in installments, or otherwise modify the terms of,
any of the Collateral;
(c) the Agent shall have all of the rights and
remedies with respect to the Collateral of a secured party
under the Uniform Commercial Code (whether or not said Code
is in effect in the jurisdiction where the rights and
remedies are asserted) and such additional rights and
remedies to which a secured party is entitled under the laws
in effect in any jurisdiction where any rights and remedies
hereunder may be asserted, including, without limitation,
the right, to the maximum extent permitted by law, to
exercise all voting, consensual and other powers of
ownership pertaining to the Collateral as if the Agent were
the sole and absolute owner thereof (and the Company agrees
to take all such action as may be appropriate to give effect
to such right);
(d) the Agent in its discretion may, in its name or in
the name of the Company or otherwise, demand, sue for,
collect or receive any money or other Property at any time
payable or receivable on account of or in exchange for any
of the Collateral, but shall be under no obligation to do
so; and
(e) the Agent may, upon ten business days' prior
written notice to the Company of the time and place, with
respect to the Collateral or any part thereof that shall
then be or shall thereafter come into the possession,
custody or control of the Agent, the Lenders or any of their
respective agents, sell, lease, assign or otherwise dispose
of all or any part of such Collateral, at such place or
places as the Agent deems best, and for cash or for credit
or for future delivery (without thereby assuming any credit
risk), at public or private sale, without demand of
performance or notice of intention to effect any such
disposition or of the time or place thereof (except such
notice as is required above or by applicable statute and
cannot be waived), and the Agent or any Lender or anyone
else may be the purchaser, lessee, assignee or recipient of
any or all of the Collateral so disposed of at any public
sale (or, to the extent permitted by law, at any private
sale) and thereafter hold the same absolutely, free from any
claim or right of whatsoever kind, including any right or
equity of redemption (statutory or otherwise), of the
Company, any such demand, notice and right or equity being
hereby expressly waived and released. In the event of any
sale, assignment, or other disposition of any of the
Trademark Collateral, the goodwill connected with and
symbolized by the Trademark Collateral subject to such
disposition shall be included, and the Company shall supply
to the Agent or its designee, for inclusion in such sale,
assignment or other disposition, all Intellectual Property
relating to such Trademark Collateral. The Agent may,
without notice or publication, adjourn any public or private
sale or cause the same to be adjourned from time to time by
announcement at the time and place fixed for the sale, and
such sale may be made at any time or place to which the sale
may be so adjourned.
The proceeds of each collection, sale or other disposition under
this Section 5.05, including by virtue of the exercise of the
license granted to the Agent in Section 5.04(b) hereof, shall be
applied in accordance with Section 5.09 hereof.
The Company recognizes that, by reason of certain
prohibitions contained in the Securities Act of 1933, as amended,
and applicable state securities laws, the Agent may be compelled,
with respect to any sale of all or any part of the Collateral, to
limit purchasers to those who will agree, among other things, to
acquire the Collateral for their own account, for investment and
not with a view to the distribution or resale thereof. The
Company acknowledges that any such private sales may be at prices
and on terms less favorable to the Agent than those obtainable
through a public sale without such restrictions, and,
notwithstanding such circumstances, agrees that any such private
sale shall be deemed to have been made in a commercially
reasonable manner and that the Agent shall have no obligation to
engage in public sales and no obligation to delay the sale of any
Collateral for the period of time necessary to permit the
respective issuer thereof to register it for public sale.
5.06 Deficiency. If the proceeds of sale, collection
or other realization of or upon the Collateral pursuant to
Section 5.05 hereof are insufficient to cover the costs and
expenses of such realization and the payment in full of the
Secured Obligations, the Company shall remain liable for any
deficiency.
5.07 Removals, Etc. Without at least 30 days' prior
written notice to the Agent, the Company shall not (i) maintain
any of its books and records with respect to the Collateral at
any office or maintain its principal place of business at any
place, or permit any Inventory or Equipment to be located
anywhere, other than at 0000 Xxxx Xxxx Xxxx, Xxx Xxxxxxx,
Xxxxxxxx, 00000-0000 or at one of the locations identified in
Annex 6 hereto or in transit from one of such locations to
another or (ii) change its name, or the name under which it does
business, from the name shown on the signature pages hereto.
5.08 Private Sale. The Agent and the Lenders shall
incur no liability as a result of the sale of the Collateral, or
any part thereof, at any private sale pursuant to Section 5.05
hereof conducted in a commercially reasonable manner. The
Company hereby waives any claims against the Agent or any Lender
arising by reason of the fact that the price at which the
Collateral may have been sold at such a private sale was less
than the price that might have been obtained at a public sale or
was less than the aggregate amount of the Secured Obligations,
even if the Agent accepts the first offer received and does not
offer the Collateral to more than one offeree.
5.09 Application of Proceeds. Except as otherwise
herein expressly provided and except as provided below in this
Section 5.09, the proceeds of any collection, sale or other
realization of all or any part of the Collateral pursuant hereto,
and any other cash at the time held by the Agent under Section 4
hereof or this Section 5, shall be applied by the Agent:
First, to the payment of the costs and expenses of such
collection, sale or other realization, including reasonable
out-of-pocket costs and expenses of the Agent and the fees
and expenses of its agents and counsel, and all expenses
incurred and advances made by the Agent in connection
therewith;
Next, to the payment in full of the Secured
Obligations, in each case equally and ratably in accordance
with the respective amounts thereof then due and owing or as
the Lenders holding the same may otherwise agree; and
Finally, to the payment to the Company, or its
successors or assigns, or as a court of competent
jurisdiction may direct, of any surplus then remaining.
Notwithstanding the foregoing, the proceeds of any cash or other
amounts held in the "Letter of Credit Liabilities Sub-Account" of
the Collateral Account pursuant to Section 4.04 hereof shall be
applied first to the Letter of Credit Liabilities outstanding
from time to time and second to the other Secured Obligations in
the manner provided above in this Section 5.09.
As used in this Section 5, "proceeds" of Collateral
shall mean cash, securities and other Property realized in
respect of, and distributions in kind of, Collateral, including
any thereof received under any reorganization, liquidation or
adjustment of debt of the Company or any issuer of or obligor on
any of the Collateral.
5.10 Attorney-in-Fact. Without limiting any rights or
powers granted by this Agreement to the Agent while no Event of
Default has occurred and is continuing, upon the occurrence and
during the continuance of any Event of Default the Agent is
hereby appointed the attorney-in-fact of the Company for the
purpose of carrying out the provisions of this Section 5 and
taking any action and executing any instruments that the Agent
may deem necessary or advisable to accomplish the purposes
hereof, which appointment as attorney-in-fact is irrevocable and
coupled with an interest. Without limiting the generality of the
foregoing, so long as the Agent shall be entitled under this
Section 5 to make collections in respect of the Collateral, the
Agent shall have the right and power to receive, endorse and
collect all checks made payable to the order of the Company
representing any dividend, payment or other distribution in
respect of the Collateral or any part thereof and to give full
discharge for the same.
5.11 Perfection. Prior to or concurrently with the
execution and delivery of this Agreement, the Company shall
(i) file such financing statements and other documents in such
offices as the Agent may request to perfect the security
interests granted by Section 3 of this Agreement and (ii), at the
request of the Agent, cause the Agent to be listed as the
lienholder on all certificates of title or ownership relating to
Motor Vehicles owned by the Company
5.12 Termination. When all Secured Obligations shall
have been paid in full and the Commitments of the Lenders under
the Credit Agreement and all Letter of Credit Liabilities shall
have expired or been terminated, this Agreement shall terminate,
and the Agent shall forthwith cause to be assigned, transferred
and delivered, against receipt but without any recourse, warranty
or representation whatsoever, any remaining Collateral and money
received in respect thereof, to or on the order of the Company
and to be released and canceled all licenses and rights referred
to in Section 5.04(b) hereof. The Agent shall also execute and
deliver to the Company upon such termination such Uniform
Commercial Code termination statements, certificates for
terminating the Liens on the Motor Vehicles and such other
documentation as shall be reasonably requested by the Company to
effect the termination and release of the Liens on the
Collateral.
5.13 Further Assurances. The Company agrees that,
from time to time upon the written request of the Agent, the
Company will execute and deliver such further documents and do
such other acts and things as the Agent may reasonably request in
order fully to effect the purposes of this Agreement.
5.14 Release of Motor Vehicles. So long as no Event
of Default shall have occurred and be continuing, upon the
request of the Company, the Agent shall execute and deliver to
the Company such instruments as the Company shall reasonably
request to remove the notation of the Agent as lienholder on any
certificate of title for any Motor Vehicle; provided that any
such instruments shall be delivered, and the release effective
only upon receipt by the Agent of a certificate from the Company
stating that the Motor Vehicle the lien on which is to be
released is to be sold or has suffered a casualty loss (with
title thereto passing to the casualty insurance company (or its
designee) therefor in settlement of the claim for such loss) and
any proceeds of such sale or casualty loss to the extent required
by the Credit Agreement being paid to the Agent hereunder.
Section 6. Miscellaneous.
6.01 No Waiver. No failure on the part of the Agent
or any Lender to exercise, and no course of dealing with respect
to, and no delay in exercising, any right, power or remedy
hereunder shall operate as a waiver thereof; nor shall any single
or partial exercise by the Agent or any Lender of any right,
power or remedy hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or remedy. The
remedies herein are cumulative and are not exclusive of any
remedies provided by law.
6.02 Notices. All notices, requests, consents and
demands hereunder shall be in writing and telecopied or delivered
to the intended recipient at its "Address for Notices" specified
pursuant to Section 12.02 of the Credit Agreement and shall be
deemed to have been given at the times specified in said
Section 12.02.
6.03 Expenses. The Company agrees to reimburse each
of the Lenders and the Agent for all reasonable costs and
expenses of the Lenders and the Agent (including, without
limitation, the reasonable fees and expenses of legal counsel) in
connection with (i) any Default and any enforcement or collection
proceeding resulting therefrom, including, without limitation,
all manner of participation in or other involvement with (w)
performance by the Agent of any obligations of the Company in
respect of the Collateral that the Company has failed or refused
to perform, (x) bankruptcy, insolvency, receivership,
foreclosure, winding up or liquidation proceedings, or any actual
or attempted sale, or any exchange, enforcement, collection,
compromise or settlement in respect of any of the Collateral, and
for the care of the Collateral and defending or asserting rights
and claims of the Agent in respect thereof, by litigation or
otherwise, including expenses of insurance, (y) judicial or
regulatory proceedings and (z) workout, restructuring or other
negotiations or proceedings (whether or not the workout,
restructuring or transaction contemplated thereby is consummated)
and (ii) the enforcement of this Section 6.03, and all such costs
and expenses shall be Secured Obligations entitled to the
benefits of the collateral security provided pursuant to
Section 3 hereof.
6.04 Amendments, Etc. The terms of this Agreement may
be waived, altered or amended only by an instrument in writing
duly executed by the Company and the Agent (with the consent of
the Lenders as specified in Section 11.09 of the Credit
Agreement). Any such amendment or waiver shall be binding upon
the Agent and each Lender each holder of any of the Secured
Obligations and the Company.
6.05 Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the respective
successors and assigns of the Company, the Agent, the Lenders and
each holder of any of the Secured Obligations (provided, however,
that the Company shall not assign or transfer its rights
hereunder without the prior written consent of the Agent).
6.06 Captions. The captions and section headings
appearing herein are included solely for convenience of reference
and are not intended to affect the interpretation of any
provision of this Agreement.
6.07 Counterparts. This Agreement may be executed in
any number of counterparts, all of which taken together shall
constitute one and the same instrument and either of the parties
hereto may execute this Agreement by signing any such
counterpart.
6.08 Governing Law. This Agreement shall be governed
by, and construed in accordance with, the law of the State of New
York.
6.09 Agents and Attorneys-in-Fact. The Agent may
employ agents and attorneys-in-fact in connection herewith and
shall not be responsible for the negligence or misconduct of any
such agents or attorneys-in-fact selected by it in good faith.
6.10 Severability. If any provision hereof is invalid
and unenforceable in any jurisdiction, then, to the fullest
extent permitted by law, (i) the other provisions hereof shall
remain in full force and effect in such jurisdiction and shall be
liberally construed in favor of the Agent and the Lenders in
order to carry out the intentions of the parties hereto as nearly
as may be possible and (ii) the invalidity or unenforceability of
any provision hereof in any jurisdiction shall not affect the
validity or enforceability of such provision in any other
jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this
Security Agreement to be duly executed and delivered as of the
day and year first above written.
UNITED STATIONERS SUPPLY CO.
By
Title:
THE CHASE MANHATTAN BANK,
as Agent
By
Title:
EXECUTION COPY
GUARANTEE AND SECURITY AGREEMENT
GUARANTEE AND SECURITY AGREEMENT dated as of
October 31, 1996 between XXXXXXX BROS., INC., a corporation duly
organized and validly existing under the laws of the State of
Louisiana (the "Subsidiary Guarantor"); and THE CHASE MANHATTAN
BANK, as agent for the lenders party to the Credit Agreement
referred to below (in such capacity, together with its successors
in such capacity, the "Agent").
United Stationers Supply Co. (the "Company"), United
Stationers Inc., the parent corporation of the Company and a
corporation duly organized and validly existing under the laws of
the State of Delaware (together with its successors and assigns,
the "Parent Guarantor" and, together with the Company, the
"Obligors"), certain lenders and the Agent are parties to an
Amended and Restated Credit Agreement dated as of October 31,
1996 (as modified and supplemented and in effect from time to
time, the "Credit Agreement"), providing, subject to the terms
and conditions thereof, for extensions of credit (by making of
loans and issuing letters of credit) to be made by said lenders
to the Company in an aggregate principal amount not exceeding on
the date hereof $540,000,000. Under the term of the Credit
Agreement, up to $25,000,000 aggregate principal amount of the
proceeds of such extensions of credit may from time to time be
made available to the Subsidiary Guarantor by the making of
advances from the Company to the Subsidiary Guarantor pursuant to
an open account not evidenced by a negotiable instrument (each
such advance, a "Subsidiary Advance").
To induce said lenders to enter into the Credit
Agreement and to extend credit thereunder, and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Subsidiary Guarantor has agreed to
guarantee the Guaranteed Obligations (as hereinafter defined),
and to pledge and grant a security interest in the Collateral (as
hereinafter defined) as security for the Secured Obligations (as
hereinafter defined). Accordingly, the parties hereto agree as
follows:
Section 1. Definitions. Terms defined in the Credit
Agreement are used herein as defined therein. In addition, as
used herein:
"Accounts" shall have the meaning ascribed thereto in
Section 4(d) hereof.
"Collateral" shall have the meaning ascribed thereto in
Section 4 hereof.
"Copyright Collateral" shall mean all Copyrights,
whether now owned or hereafter acquired by the Subsidiary
Guarantor, including each Copyright identified in Annex 2
hereto.
"Copyrights" shall mean all copyrights, copyright
registrations and applications for copyright registrations,
including, without limitation, all renewals and extensions
thereof, the right to recover for all past, present and
future infringements thereof, and all other rights of any
kind whatsoever accruing thereunder or pertaining thereto.
"Documents" shall have the meaning ascribed thereto in
Section 4(j) hereof.
"Equipment" shall have the meaning ascribed thereto in
Section 4(h) hereof.
"Foreign Subsidiary" shall mean any Subsidiary of the
Subsidiary Guarantor that is not organized or created under
the laws of the United States of America, any State thereof
or the District of Columbia.
"Guaranteed Obligations" shall have the meaning
ascribed thereto in Section 3.01 hereof.
"Instruments" shall have the meaning ascribed thereto
in Section 4(e) hereof.
"Intellectual Property" shall mean, collectively, all
Copyright Collateral, all Patent Collateral and all
Trademark Collateral, together with (a) all inventions,
processes, production methods, proprietary information,
know-how and trade secrets; (b) all licenses or user or
other agreements granted to the Subsidiary Guarantor with
respect to any of the foregoing, in each case whether now or
hereafter owned or used including, without limitation, the
licenses or other agreements with respect to the Copyright
Collateral, the Patent Collateral or the Trademark
Collateral, listed in Annex 5 hereto, except to the extent
that a security interest therein may not be granted without
the consent of a licensor; (c) all information, customer
lists, identification of suppliers, data, plans, blueprints,
specifications, designs, drawings, recorded knowledge,
surveys, engineering reports, test reports, manuals,
materials standards, processing standards, performance
standards, catalogs, computer and automatic machinery
software and programs; (d) all field repair data, sales data
and other information relating to sales or service of
products now or hereafter manufactured; (e) all accounting
information and all media in which or on which any
information or knowledge or data or records may be recorded
or stored and all computer programs used for the compilation
or printout of such information, knowledge, records or data;
(f) all licenses, consents, permits, variances,
certifications and approvals of governmental agencies now or
hereafter held by the Subsidiary Guarantor, except to the
extent that a security interest therein may not be granted
without the consent of a licensor; and (g) all causes of
action, claims or warranties now or hereafter owned or
acquired by the Company in respect of any of the items
listed above.
"Inventory" shall have the meaning ascribed thereto in
Section 4(f) hereof.
"Issuers" shall mean, collectively, the respective
corporations identified on Annex 1 hereto under the caption
"Issuer".
"Xxxxxxx Collateral Account" shall have the meaning
ascribed thereto in Section 5.01 hereof.
"Motor Vehicles" shall mean motor vehicles, tractors,
trailers and other like Property, whether or not the title
thereto is governed by a certificate of title or ownership.
"Patent Collateral" shall mean all Patents, whether now
owned or hereafter acquired by the Subsidiary Guarantor,
including each Patent identified in Annex 3 hereto.
"Patents" shall mean all patents and patent
applications, including, without limitation, the inventions
and improvements described and claimed therein together with
the reissues, divisions, continuations, renewals, extensions
and continuations-in-part thereof, all income, royalties,
damages and payments now or hereafter due and/or payable
under and with respect thereto, including, without
limitation, damages and payments for past or future
infringements thereof, the right to sue for past, present
and future infringements thereof, and all rights
corresponding thereto throughout the world.
"Pledged Stock" shall have the meaning ascribed thereto
in Section 4(a) hereof.
"Secured Obligations" shall mean, collectively, (a) the
Guaranteed Obligations, which include the principal of and
interest on the Loans made by the Lenders to the Company and
all other amounts from time to time owing to the Lenders or
the Agent by the Company under the Basic Documents
including, without limitation, all Reimbursement Obligations
and interest thereon, (b) the Interest Rate Protection
Obligations required under Section 9.15 of the Credit
Agreement and (c) all obligations of the Subsidiary
Guarantor hereunder and under the other Basic Documents
(including, without limitation, in respect of the guarantee
under Section 3 hereof).
"Stock Collateral" shall mean, collectively, the
Collateral described in clauses (a) through (c) of Section 4
hereof and the proceeds of and to any such Property and, to
the extent related to any such Property or such proceeds,
all books, correspondence, credit files, records, invoices
and other papers.
"Trademark Collateral" shall mean all Trademarks,
whether now owned or hereafter acquired by the Subsidiary
Guarantor, including each Trademark identified in Annex 4
hereto. Notwithstanding the foregoing, the Trademark
Collateral does not and shall not include any Trademark that
would be rendered invalid, abandoned, void or unenforceable
by reason of its being included as part of the Trademark
Collateral.
"Trademarks" shall mean all trade names, trademarks and
service marks, logos, trademark and service mark
registrations, and applications for trademark and service
mark registrations, including, without limitation, all
renewals of trademark and service mark registrations, all
rights corresponding thereto throughout the world, the right
to recover for all past, present and future infringements
thereof, all other rights of any kind whatsoever accruing
thereunder or pertaining thereto, together, in each case,
with the product lines and goodwill of the business
connected with the use of, and symbolized by, each such
trade name, trademark and service mark.
"Uniform Commercial Code" shall mean the Uniform
Commercial Code as in effect from time to time in the State
of New York.
Section 2. Representations and Warranties. The
Subsidiary Guarantor represents and warrants to the Lenders and
the Agent that:
2.01 No Breach. None of the execution and delivery of
this Agreement, the making of the Subsidiary Advances, the
consummation of the transactions herein contemplated or
compliance with the terms and provisions hereof will conflict
with or result in a breach of, or require any consent under, any
applicable law or regulation, or an order, writ, injunction or
decree of any court or governmental authority or agency, or any
agreement or instrument to which the Subsidiary Guarantor or any
of its Subsidiaries is a party or by which any of them is bound
or to which any of them is subject, or constitute a default under
any such agreement or instrument, or (except for the Liens
created hereunder) result in the creation or imposition of any
Lien upon any Property of the Subsidiary Guarantor or any such
Subsidiary pursuant to the terms of any such agreement or
instrument.
2.02 Action. This Agreement has been duly and validly
executed and delivered by the Subsidiary Guarantor and
constitutes its legal, valid and binding obligation, enforceable
in accordance with its terms.
2.03 Approvals. No authorizations, approvals or
consents of, and no filings or registrations with, any
governmental or regulatory authority or agency, or any securities
exchange are necessary for the execution, delivery or performance
by the Subsidiary of this Agreement or for the validity or
enforceability hereof or for the making of the Subsidiary
Advances.
2.04 Taxes. The Subsidiary Guarantor and its
Subsidiaries have filed all Federal income tax returns and all
material tax returns that are required to be filed by the
Subsidiary Guarantor and its Subsidiaries and have paid all taxes
due pursuant to such returns or pursuant to any assessment
received by the Subsidiary Guarantor or any of its Subsidiaries.
2.05 Collateral.
(a) The Subsidiary Guarantor is (or, at the time that
the Subsidiary Guarantor acquires any interest therein, will
be) the sole beneficial owner of the Collateral and no Lien
exists or will exist upon the Collateral at any time (and no
right or option to acquire the same exists in favor of any
other Person), except for Liens permitted under Section 9.06
of the Credit Agreement and except for the pledge and
security interest in favor of the Agent for the benefit of
the Lenders created or provided for herein, which pledge and
security interest constitute a perfected pledge and security
interest in and to all of the Collateral (other than
Intellectual Property registered or otherwise located
outside of the United States of America), subject to no
equal or prior security interest or pledge except as
permitted under Section 9.06 of the Credit Agreement.
(b) The Pledged Stock represented by the certificates
identified in Annex 1 hereto is, and all other Pledged Stock
in which the Subsidiary Guarantor shall hereafter grant a
security interest pursuant to Section 3 hereof will be, duly
authorized, validly existing, fully paid and non-assessable
and none of such Pledged Stock is or will be subject to any
contractual restriction, or any restriction under the
charter or by-laws of the relevant issuer thereof, upon the
transfer of such Pledged Stock (except for any such
restriction contained herein or in the Credit Agreement).
(c) The Pledged Stock represented by the certificates
identified in Annex 1 hereto constitutes all of the issued
and outstanding shares of capital stock of each class of
each issuer thereof on the date hereof (or, in the case of
any Foreign Subsidiary, not less than 65% of the issued and
outstanding shares of capital stock of each class of such
Foreign Subsidiary on the date hereof), and said Annex 1
correctly identifies, as at the date hereof, the respective
class and par value of the shares comprising such Pledged
Stock, the respective number of shares represented by each
such certificate, and the respective beneficial and
registered owner of such shares.
(d) Annexes 2, 3 and 4 hereto, respectively, set forth
a complete and correct list of all Copyrights, Patents and
Trademarks owned by the Subsidiary Guarantor on the date
hereof; except pursuant to licenses and other user
agreements entered into by the Subsidiary Guarantor in the
ordinary course of business, that are listed in Annex 5
hereto, the Subsidiary Guarantor owns and possesses the
right to use, and has done nothing to authorize or enable
any other Person to use, any Copyright, Patent or Trademark
listed in said Annexes 2, 3 and 4, and all registrations
listed in said Annexes 2, 3 and 4 are valid and in full
force and effect; except as may be set forth in said
Annex 5, the Subsidiary Guarantor owns and possesses the
right to use all Copyrights, Patents and Trademarks.
(e) Annex 5 hereto sets forth a complete and correct
list of all licenses and other user agreements included in
the Intellectual Property on the date hereof.
(f) To the Subsidiary Guarantor's knowledge,
(i) except as set forth in Annex 5 hereto, there is no
violation by others of any right of the Subsidiary Guarantor
with respect to any Copyright, Patent or Trademark listed in
Annexes 2, 3 and 4 hereto, respectively, and (ii) the
Subsidiary Guarantor is not infringing in any respect upon
any Copyright, Patent or Trademark of any other Person; and
no proceedings have been instituted or are pending against
the Subsidiary Guarantor or, to the Subsidiary Guarantor's
knowledge, threatened, and no claim against the Subsidiary
Guarantor has been received by the Subsidiary Guarantor,
alleging any such violation, except as may be set forth in
said Annex 5.
(g) The Subsidiary Guarantor does not own any
Trademarks registered in the United States of America to
which the last sentence of the definition of Trademark
Collateral applies.
(h) Any goods now or hereafter produced by the
Subsidiary Guarantor or any of its Subsidiaries included in
the Collateral have been and will be produced in compliance
with the requirements of the Fair Labor Standards Act, as
amended.
Section 3. The Guarantee.
3.01 The Guarantee. The Subsidiary Guarantor hereby
guarantees to each Lender and the Agent and their respective
successors and assigns the prompt payment in full when due
(whether at stated maturity, by acceleration or otherwise) of the
principal of and interest on the Loans made by the Lenders to the
Company and all other amounts from time to time owing to the
Lenders or the Agent by the Company under the Credit Agreement
and by the Company under any if the other Basic Documents, and
all obligations of the Company to any Lender in respect of any
Interest Rate Protection Agreement and all Reimbursement
Obligations and interest thereon, in each case strictly in
accordance with the terms thereof (such obligations being herein
collectively called the "Guaranteed Obligations"). The
Subsidiary Guarantor hereby further agrees that if the Company
shall fail to pay in full when due (whether at stated maturity,
by acceleration or otherwise) any of the Guaranteed Obligations,
the Subsidiary Guarantor will promptly pay the same, without any
demand or notice whatsoever, and that in the case of any
extension of time of payment or renewal of any of the Guaranteed
Obligations, the same will be promptly paid in full when due
(whether at extended maturity, by acceleration or otherwise) in
accordance with the terms of such extension or renewal.
3.02 Obligations Unconditional. The obligations of
the Subsidiary Guarantor under Section 3.01 hereof are absolute
and unconditional irrespective of the value, genuineness,
validity, regularity or enforceability of the obligations of the
Company under the Credit Agreement or any other agreement or
instrument referred to herein or therein, or any substitution,
release or exchange of any other guarantee of or security for any
of the Guaranteed Obligations, and, to the fullest extent
permitted by applicable law, irrespective of any other
circumstance whatsoever that might otherwise constitute a legal
or equitable discharge or defense of a surety or guarantor, it
being the intent of this Section 3.02 that the obligations of the
Subsidiary Guarantor hereunder shall be absolute and
unconditional under any and all circumstances. Without limiting
the generality of the foregoing, it is agreed that the occurrence
of any one or more of the following shall not alter or impair the
liability of the Subsidiary Guarantor hereunder which shall
remain absolute and unconditional as described above:
(i) at any time or from time to time, without notice
to the Subsidiary Guarantor, the time for any performance of
or compliance with any of the Guaranteed Obligations shall
be extended, or such performance or compliance shall be
waived;
(ii) any of the acts mentioned in any of the
provisions of the Credit Agreement or any other agreement or
instrument referred to herein or therein shall be done or
omitted;
(iii) the maturity of any of the Guaranteed
Obligations shall be accelerated, or any of the Guaranteed
Obligations shall be modified, supplemented or amended in
any respect, or any right under the Credit Agreement or any
other agreement or instrument referred to herein or therein
shall be waived or any other guarantee of any of the
Guaranteed Obligations or any security therefor shall be
released or exchanged in whole or in part or otherwise dealt
with; or
(iv) any lien or security interest granted to, or in
favor of, the Agent or any Lender or Lenders as security for
any of the Guaranteed Obligations shall fail to be
perfected.
The Subsidiary Guarantor hereby expressly waives diligence,
presentment, demand of payment, protest and all notices
whatsoever, and any requirement that the Agent or any Lender
exhaust any right, power or remedy or proceed against the Company
under the Credit Agreement or any other agreement or instrument
referred to herein or therein, or against any other Person under
any other guarantee of, or security for, any of the Guaranteed
Obligations.
3.03 Reinstatement. The obligations of the Subsidiary
Guarantor under this Section 3 shall be automatically reinstated
if and to the extent that for any reason any payment by or on
behalf of any Obligor in respect of the Guaranteed Obligations is
rescinded or must be otherwise restored by any holder of any of
the Guaranteed Obligations, whether as a result of any
proceedings in bankruptcy or reorganization or otherwise, and the
Subsidiary Guarantor agrees that it will indemnify the Agent and
each Lender on demand for all reasonable costs and expenses
(including, without limitation, fees of counsel) incurred by the
Agent or such Lender in connection with such rescission or
restoration, including any such costs and expenses incurred in
defending against any claim alleging that such payment
constituted a preference, fraudulent transfer or similar payment
under any bankruptcy, insolvency or similar law.
3.04 Subrogation. The Subsidiary Guarantor hereby
waives, until payment in full of the Guaranteed Obligations, all
rights of subrogation or contribution, whether arising by
contract or operation of law (including, without limitation, any
such right arising under the Federal Bankruptcy Code) or
otherwise by reason of any payment by it pursuant to the
provisions of this Section 3.
3.05 Remedies. The Subsidiary Guarantor agrees that,
as between the Subsidiary Guarantor and the Lenders, the
obligations of the Company under the Credit Agreement may be
declared to be forthwith due and payable as provided in
Section 10 of the Credit Agreement (and shall be deemed to have
become automatically due and payable in the circumstances
provided in said Section 10) for purposes of Section 3.01 hereof
notwithstanding any stay, injunction or other prohibition
preventing such declaration (or such obligations from becoming
automatically due and payable) as against the Company and that,
in the event of such declaration (or such obligations being
deemed to have become automatically due and payable), such
obligations (whether or not due and payable by the Company) shall
forthwith become due and payable by the Subsidiary Guarantor for
purposes of said Section 3.01.
3.06 Continuing Guarantee. The guarantee in this
Section 3 is a continuing guarantee, and shall apply to all
Guaranteed Obligations whenever arising.
3.07 General Limitation on Guarantee Obligations. The
obligations of the Subsidiary Guarantor under Section 3.01 hereof
shall be limited to the sum of (i) the aggregate outstanding
amount of Xxxxxxx Advances and (ii) the amount, if any,
recoverable by any holders of Senior Subordinated Debt pursuant
to any guarantee by the Subsidiary Guarantor of such Senior
Subordinated Debt. In addition, in any action or proceeding
involving any state corporate law, or any state or Federal
bankruptcy, insolvency, reorganization or other law affecting the
rights of creditors generally, if the obligations of the
Subsidiary Guarantor under Section 3.01 hereof would otherwise be
held or determined to be void, invalid or unenforceable, or
subordinated to the claims of any other creditors, on account of
the amount of its liability under said Section 3.01, then,
notwithstanding any other provision hereof to the contrary, the
amount of such liability shall, without any further action by
such Subsidiary Guarantor, any Lender, the Agent or any other
Person, be automatically limited and reduced to the highest
amount that is valid and enforceable and not subordinated to the
claims of other creditors as determined in such action or
proceeding.
Section 4. Collateral. As collateral security for the
prompt payment in full when due (whether at stated maturity, by
acceleration or otherwise) of the Secured Obligations, the
Subsidiary Guarantor hereby pledges and grants to the Agent, for
the benefit of the Lenders as hereinafter provided, a security
interest in all of the Subsidiary Guarantor's right, title and
interest in the following Property, whether now owned by the
Subsidiary Guarantor or hereafter acquired and whether now
existing or hereafter coming into existence (all being
collectively referred to herein as "Collateral"):
(a) the shares of common/preferred stock of the
Issuers represented by the certificates identified in
Annex 1 hereto and all other shares of capital stock of
whatever class of the Issuers, now or hereafter owned by the
Subsidiary Guarantor, in each case together with the
certificates evidencing the same (collectively, the "Pledged
Stock");
(b) all shares, securities, moneys or Property
representing a dividend on any of the Pledged Stock, or
representing a distribution or return of capital upon or in
respect of the Pledged Stock, or resulting from a split-up,
revision, reclassification or other like change of the
Pledged Stock or otherwise received in exchange therefor,
and any subscription warrants, rights or options issued to
the holders of, or otherwise in respect of, the Pledged
Stock;
(c) without affecting the obligations of the
Subsidiary Guarantor under any provision prohibiting such
action hereunder or under the Credit Agreement, in the event
of any consolidation or merger in which an Issuer is not the
surviving corporation, all shares of each class of the
capital stock of the successor corporation (unless such
successor corporation is the Subsidiary Guarantor itself)
formed by or resulting from such consolidation or merger
(the Pledged Stock, together with all other certificates,
shares, securities, properties or moneys as may from time to
time be pledged hereunder pursuant to clause (a) or (b)
above and this clause (c) being herein collectively called
the "Stock Collateral");
(d) all accounts and general intangibles (each as
defined in the Uniform Commercial Code) of the Subsidiary
Guarantor constituting any right to the payment of money,
including (but not limited to) all moneys due and to become
due to the Subsidiary Guarantor in respect of any loans or
advances or for Inventory or Equipment or other goods sold
or leased or for services rendered, all moneys due and to
become due to the Subsidiary Guarantor under any guarantee
(including a letter of credit) of the purchase price of
Inventory or Equipment sold by the Subsidiary Guarantor and
all tax refunds (such accounts, general intangibles and
moneys due and to become due being herein called
collectively "Accounts");
(e) all instruments, chattel paper or letters of
credit (each as defined in the Uniform Commercial Code) of
the Subsidiary Guarantor evidencing, representing, arising
from or existing in respect of, relating to, securing or
otherwise supporting the payment of, any of the Accounts,
including (but not limited to) promissory notes, drafts,
bills of exchange and trade acceptances (herein collectively
called "Instruments");
(f) all inventory (as defined in the Uniform
Commercial Code) of the Subsidiary Guarantor, all goods
obtained by the Subsidiary Guarantor in exchange for such
inventory, and any products made or processed from such
inventory including all substances, if any, commingled
therewith or added thereto (herein collectively called
"Inventory");
(g) all Intellectual Property and all other accounts or
general intangibles not constituting Intellectual Property
or Accounts;
(h) all equipment (as defined in the Uniform
Commercial Code) of the Subsidiary Guarantor, including all
Motor Vehicles (herein collectively called "Equipment");
(i) each contract and other agreement of the
Subsidiary Guarantor relating to the sale or other
disposition of Inventory or Equipment;
(j) all documents of title (as defined in the Uniform
Commercial Code) or other receipts of the Subsidiary
Guarantor covering, evidencing or representing Inventory or
Equipment (herein collectively called "Documents");
(k) all rights, claims and benefits of the Subsidiary
Guarantor against any Person arising out of, relating to or
in connection with Inventory or Equipment purchased by the
Subsidiary Guarantor, including, without limitation, any
such rights, claims or benefits against any Person storing
or transporting such Inventory or Equipment;
(l) the balance from time to time in the Xxxxxxx
Collateral Account; and
(m) all other tangible and intangible personal
Property and fixtures of the Subsidiary Guarantor,
including, without limitation, all proceeds, products,
offspring, accessions, rents, profits, income, benefits,
substitutions and replacements of and to any of the Property
of the Subsidiary Guarantor described in the preceding
clauses of this Section 4 (including, without limitation,
any proceeds of insurance thereon and all causes of action,
claims and warranties now or hereafter held by the
Subsidiary Guarantor in respect of any of the items listed
above) and, to the extent related to any Property described
in said clauses or such proceeds, products and accessions,
all books, correspondence, credit files, records, invoices
and other papers, including without limitation all tapes,
cards, computer runs and other papers and documents in the
possession or under the control of the Subsidiary Guarantor
or any computer bureau or service company from time to time
acting for the Subsidiary Guarantor.
provided that Collateral shall not include (i) shares of capital
stock of any class issued by any Foreign Subsidiary to the extent
that the percentage of issued and outstanding shares of capital
stock of such class subject to the Lien of this Agreement would
constitute more than 65% of the issued and outstanding shares of
capital stock of such class and (ii) any tangible personal
Property located outside the United States of America.
Section 5. Cash Proceeds of Collateral.
5.01 Xxxxxxx Collateral Account. The Agent shall
establish with Chase a cash collateral account (the "Xxxxxxx
Collateral Account") in the name and under the control of the
Agent into which there shall be deposited from time to time the
cash proceeds of any of the Collateral (including proceeds of
insurance thereon) and into which the Subsidiary Guarantor may
from time to time deposit any additional amounts that it wishes
to pledge to the Agent for the benefit of the Lenders as
additional collateral security hereunder or that, as provided in
Sections 2.10 and 10 of the Credit Agreement, the Company is
required to pledge as additional collateral security hereunder.
The balance from time to time in the Xxxxxxx Collateral Account
shall constitute part of the Collateral hereunder and shall not
constitute payment of the Secured Obligations until applied as
hereinafter provided. As promptly as possible after any amount
is deposited into the Xxxxxxx Collateral Account pursuant to the
second or third sentence of Section 5.02 hereof, the Agent shall
remit the balance of such amount (if any) to the Subsidiary
Guarantor's account with Chase. However, the Agent may (and, if
instructed by the Lenders of the Credit Agreement shall) at any
time in its (or their) discretion apply or cause to be applied
the balance from time to time outstanding to the credit of the
Xxxxxxx Collateral Account to the repayment of the principal of
the Revolving Credit Loans outstanding, to accrued interest on
the principal so repaid, and to the payment of any commitment
fees with respect to the Revolving Credit Commitments, in each
case the Credit Agreement and to the extent of the Subsidiary
Guarantor's obligations hereunder. Notwithstanding the above, at
any time following the occurrence and during the continuance of
an Event of Default, the Agent may (and, if instructed by the
Lenders as specified in Section 11.03 of the Credit Agreement,
shall) in its (or their) discretion apply or cause to be applied
(subject to collection) the balance from time to time standing to
the credit of the Xxxxxxx Collateral Account to the payment of
the Secured Obligations in the manner specified in Section 6.09
hereof. The balance from time to time in the Xxxxxxx Collateral
Account shall be subject to withdrawal only as provided herein.
5.02 Proceeds of Accounts. The Subsidiary Guarantor
shall within 90 days of the Effective Date instruct all account
debtors and other Persons obligated in respect of all Accounts to
make all payments in respect of the Accounts either (a) directly
to the Agent (by instructing that such payments be remitted to a
post office box which shall be in the name and under the control
of the control of the Agent) or (b) to one or more other banks in
the United States of America (by instructing that such payments
be remitted to a post office box which shall be in the name and
under the control of such other bank(s)) under arrangements, in
form and substance satisfactory to the Agent pursuant to which
the Subsidiary Guarantor shall have irrevocably instructed such
other bank (and such other bank shall have agreed) to remit all
proceeds of such payments directly to the Agent for deposit into
the Xxxxxxx Collateral Account. All payments made to the Agent,
as provided in the preceding sentence, shall be immediately
deposited in the Xxxxxxx Collateral Account. In addition to the
foregoing, the Subsidiary Guarantor agrees that if the proceeds
of any Collateral hereunder (including the payments made in
respect of Accounts) shall be received by it, the Subsidiary
Guarantor shall as promptly as possible deposit such proceeds
into the Xxxxxxx Collateral Account. Until so deposited, all
such proceeds shall be held in trust by the Subsidiary Guarantor
for and as the Property of the Agent and shall not be commingled
with any other funds or Property of the Subsidiary Guarantor.
5.03 Investment of Balance in Xxxxxxx Collateral
Account. Amounts on deposit in the Xxxxxxx Collateral Account
shall be invested from time to time in such Permitted Investments
as the Subsidiary Guarantor (or, after the occurrence and during
the continuance of a Default, the Agent) shall determine, which
Permitted Investments shall be held in the name and be under the
control of the Agent, provided that (i) at any time after the
occurrence and during the continuance of an Event of Default, the
Agent may (and, if instructed by the Lenders as specified in
Section 11.03 of the Credit Agreement, shall) in its (or their)
discretion at any time and from time to time elect to liquidate
any such Permitted Investments and to apply or cause to be
applied the proceeds thereof to the payment of the Secured
Obligations in the manner specified in Section 6.09 hereof and
(ii) if requested by the Subsidiary Guarantor, such Permitted
Investments may be held in the name and under the control of one
or more of the Lenders (and in that connection each Lender,
pursuant to Section 11.10 of the Credit Agreement) has agreed
that such Permitted Investments shall be held by such Xxxxxx as a
collateral sub-agent for the Agent hereunder).
5.04 Cover for Letter of Credit Liabilities. Amounts
deposited into the Xxxxxxx Collateral Account as cover for Letter
of Credit Liabilities under the Credit Agreement pursuant to
Section 2.10(h) or Section 10 of the Credit Agreement shall be
held by the Agent in a separate sub-account (designated "Letter
of Credit Liabilities Sub-Account") and all amounts held in such
sub-account shall constitute collateral security first for the
Letter of Credit Liabilities outstanding from time to time and
second as collateral security for the other Secured Obligations
hereunder.
Section 6. Further Assurances; Remedies. In
furtherance of the grant of the pledge and security interest
pursuant to Section 4 hereof, the Subsidiary Guarantor hereby
agrees with each Lender and the Agent as follows:
6.01 Delivery and Other Perfection. The Subsidiary
Guarantor shall:
(a) if any of the shares, securities, moneys or
Property required to be pledged by the Subsidiary Guarantor
under clauses (a), (b) and (c) of Section 4 hereof are
received by the Subsidiary Guarantor, forthwith either
(x) transfer and deliver to the Agent such shares or
securities so received by the Subsidiary Guarantor (together
with the certificates for any such shares and securities
duly endorsed in blank or accompanied by undated stock
powers duly executed in blank), all of which thereafter
shall be held by the Agent, pursuant to the terms of this
Agreement, as part of the Collateral or (y) take such other
action as the Agent shall deem necessary or appropriate to
duly record the Lien created hereunder in such shares,
securities, moneys or Property in said clauses (a), (b)
and (c);
(b) deliver and pledge to the Agent any and all
Instruments, endorsed and/or accompanied by such instruments
of assignment and transfer in such form and substance as the
Agent may request; provided, that so long as no Default
shall have occurred and be continuing, the Subsidiary
Guarantor may retain for collection in the ordinary course
any Instruments received by the Subsidiary Guarantor in the
ordinary course of business and the Agent shall, promptly
upon request of the Subsidiary Guarantor, make appropriate
arrangements for making any Instrument pledged by the
Subsidiary Guarantor available to the Subsidiary Guarantor
for purposes of presentation, collection or renewal (any
such arrangement to be effected, to the extent deemed
appropriate by the Agent, against trust receipt or like
document);
(c) give, execute, deliver, file and/or record any
financing statement, notice, instrument, document, agreement
or other papers that may be necessary or desirable (in the
judgment of the Agent) to create, preserve, perfect or
validate the security interest granted pursuant hereto or to
enable the Agent to exercise and enforce its rights
hereunder with respect to such pledge and security interest,
including, without limitation, after the occurrence of an
Event of Default, causing any or all of the Stock Collateral
to be transferred of record into the name of the Agent or
its nominee (and the Agent agrees that if any Stock
Collateral is transferred into its name or the name of its
nominee, the Agent will thereafter promptly give to the
Subsidiary Guarantor copies of any notices and
communications received by it with respect to the Stock
Collateral), provided that notices to account debtors in
respect of any Accounts or Instruments shall be subject to
the provisions of clause (i) below;
(d) without limiting the obligations of the Subsidiary
Guarantor under Section 6.04(c) hereof, upon the acquisition
after the date hereof by the Subsidiary Guarantor of any
Equipment covered by a certificate of title or ownership,
cause the Agent to be listed as the lienholder on such
certificate of title and within 120 days of the acquisition
thereof deliver evidence of the same to the Agent;
(e) keep full and accurate books and records relating
to the Collateral, and stamp or otherwise mark such books
and records in such manner as the Agent may reasonably
require in order to reflect the security interests granted
by this Agreement;
(f) furnish to the Agent from time to time (but,
unless a Default shall have occurred and be continuing, no
more frequently than quarterly) statements and schedules
further identifying and describing the Copyright Collateral,
the Patent Collateral and the Trademark Collateral,
respectively, and such other reports in connection with the
Copyright Collateral, the Patent Collateral and the
Trademark Collateral, as the Agent may reasonably request,
all in reasonable detail;
(g) promptly upon request of the Agent, following
receipt by the Agent of any statements, schedules or reports
pursuant to clause (f) above, modify this Agreement by
amending Annexes 2, 3 and/or 4 hereto, as the case may be,
to include any Copyright, Patent or Trademark that becomes
part of the Collateral under this Agreement;
(h) permit representatives of the Agent, upon
reasonable notice, at any time during normal business hours
to inspect and make abstracts from its books and records
pertaining to the Collateral, and permit representatives of
the Agent to be present at the Subsidiary Guarantor's place
of business to receive copies of all communications and
remittances relating to the Collateral, and forward copies
of any notices or communications received by the Subsidiary
Guarantor with respect to the Collateral, all in such manner
as the Agent may require; and
(i) upon the occurrence and during the continuance of
any Default, upon request of the Agent, promptly notify (and
the Subsidiary Guarantor hereby authorizes the Agent so to
notify) each account debtor in respect of any Accounts or
Instruments that such Collateral has been assigned to the
Agent hereunder, and that any payments due or to become due
in respect of such Collateral are to be made directly to the
Agent.
6.02 Other Financing Statements and Liens. Except for
financing statements securing Liens expressly permitted by
Section 9.06 of the Credit Agreement and protective filings filed
against the Company in respect of equipment, furniture or
fixtures leased to or Property consigned with the Subsidiary
Guarantor, the Subsidiary Guarantor shall not file or suffer to
be on file, or authorize or permit to be filed or to be on file,
in any jurisdiction, any financing statement or like instrument
with respect to the Collateral in which the Agent is not named as
the sole secured party for the benefit of the Lenders.
6.03 Preservation of Rights. The Agent shall not be
required to take steps necessary to preserve any rights against
prior parties to any of the Collateral.
6.04 Special Provisions Relating to Certain
Collateral.
(a) Stock Collateral.
(1) The Subsidiary Guarantor will cause the Stock
Collateral to constitute at all times 100% (or, with respect to
any issuer that is a Foreign Subsidiary, at least 65%) of the
total number of shares of each class of capital stock of each
Issuer then outstanding.
(2) Unless an Event of Default shall have occurred and
be continuing, and the Agent shall have given notice to the
Company of its intention to exercise rights arising hereunder or
under any other Basic Document with respect to the Stock
Collateral, the Subsidiary Guarantor shall have the right to
exercise all voting, consensual and other powers of ownership
pertaining to the Stock Collateral for all purposes not
inconsistent with the terms of this Agreement, the Credit
Agreement or any other instrument or agreement referred to herein
or therein, provided that the Subsidiary Guarantor agrees that it
will not vote the Stock Collateral in any manner that is
inconsistent with the terms of this Agreement, the Credit
Agreement or any such other instrument or agreement; and the
Agent shall execute and deliver to the Subsidiary Guarantor or
cause to be executed and delivered to the Subsidiary Guarantor
all such proxies, powers of attorney, dividend and other orders,
and all such instruments, without recourse, as the Subsidiary
Guarantor may reasonably request for the purpose of enabling the
Subsidiary Guarantor to exercise the rights and powers that it is
entitled to exercise pursuant to this Section 6.04(a)(2).
(3) Unless and until an Event of Default has occurred
and is continuing, the Subsidiary Guarantor shall be entitled to
receive and retain any dividends on the Stock Collateral paid in
cash out of earned surplus.
(4) If any Event of Default shall have occurred, then
so long as such Event of Default shall continue, and whether or
not the Agent or any Lender exercises any available right to
declare any Secured Obligation due and payable or seeks or
pursues any other relief or remedy available to it under
applicable law or under this Agreement, the Credit Agreement or
any other agreement relating to such Secured Obligation, all
dividends and other distributions on the Stock Collateral shall
be paid directly to the Agent and retained by it as part of the
Stock Collateral, subject to the terms of this Agreement, and, if
the Agent shall so request in writing, the Subsidiary Guarantor
agrees to execute and deliver to the Agent appropriate additional
dividend, distribution and other orders and documents to that
end, provided that if such Event of Default is cured, any such
dividend or distribution theretofore paid to the Agent shall,
upon request of the Subsidiary Guarantor (except to the extent
theretofore applied to the Secured Obligations), be returned by
the Agent to the Subsidiary Guarantor.
(b) Intellectual Property.
(1) For the purpose of enabling the Agent to exercise
rights and remedies under Section 6.05 hereof at such time as the
Agent shall be lawfully entitled to exercise such rights and
remedies, and for no other purpose, the Subsidiary Guarantor
hereby grants to the Agent, to the extent assignable, an
irrevocable, non-exclusive license (exercisable without payment
of royalty or other compensation to the Subsidiary Guarantor) to
use, assign, license or sublicense any of the Intellectual
Property now owned or hereafter acquired by the Subsidiary
Guarantor, wherever the same may be located, including in such
license reasonable access to all media in which any of the
licensed items may be recorded or stored and to all computer
programs used for the compilation or printout thereof.
(2) Notwithstanding anything contained herein to the
contrary, but subject to the provisions of Section 9.05 of the
Credit Agreement that limit the right of the Subsidiary Guarantor
to dispose of its Property, so long as no Event of Default shall
have occurred and be continuing, the Subsidiary Guarantor will be
permitted to exploit, use, enjoy, protect, license, sublicense,
assign, sell, dispose of or take other actions with respect to
the Intellectual Property in the ordinary course of the business
of the Subsidiary Guarantor. In furtherance of the foregoing,
unless an Event of Default shall have occurred and be continuing
the Agent shall from time to time, upon the request of the
Subsidiary Guarantor, execute and deliver any instruments,
certificates or other documents, in the form so requested, that
the Subsidiary Guarantor shall have certified are appropriate (in
its judgment) to allow it to take any action permitted above
(including relinquishment of the license provided pursuant to
clause (1) immediately above as to any specific Intellectual
Property). Further, upon the payment in full of all of the
Secured Obligations and cancellation or termination of the
Commitments and Letter of Credit Liabilities or earlier
expiration of this Agreement or release of the Collateral, the
license granted pursuant to clause (1) immediately above shall
expire by its own terms without further action on the part of the
Company or the Agent. The exercise of rights and remedies under
Section 6.05 hereof by the Agent shall not terminate the rights
of the holders of any licenses or sublicenses theretofore granted
by the Subsidiary Guarantor in accordance with the first sentence
of this clause (2).
(c) Motor Vehicles. At any time after the occurrence
and during the continuance of an Event of Default, the Subsidiary
Guarantor shall, upon the request of the Agent, deliver to the
Agent originals of the certificates of title or ownership for the
Motor Vehicles owned by it with the Agent listed as lienholder
and take such other action as the Agent shall deem appropriate to
perfect the security interest created hereunder in all such Motor
Vehicles.
6.05 Events of Default, Etc. During the period during
which an Event of Default shall have occurred and be continuing:
(a) the Subsidiary Guarantor shall, at the request of
the Agent, assemble the Collateral owned by it at such place
or places, reasonably convenient to both the Agent and the
Subsidiary Guarantor, designated in its request;
(b) the Agent may make any reasonable compromise or
settlement deemed desirable with respect to any of the
Collateral and may extend the time of payment, arrange for
payment in installments, or otherwise modify the terms of,
any of the Collateral;
(c) the Agent shall have all of the rights and
remedies with respect to the Collateral of a secured party
under the Uniform Commercial Code (whether or not said Code
is in effect in the jurisdiction where the rights and
remedies are asserted) and such additional rights and
remedies to which a secured party is entitled under the laws
in effect in any jurisdiction where any rights and remedies
hereunder may be asserted, including, without limitation,
the right, to the maximum extent permitted by law, to
exercise all voting, consensual and other powers of
ownership pertaining to the Collateral as if the Agent were
the sole and absolute owner thereof (and the Subsidiary
Guarantor agrees to take all such action as may be
appropriate to give effect to such right);
(d) the Agent in its discretion may, in its name or in
the name of the Subsidiary Guarantor or otherwise, demand,
sue for, collect or receive any money or Property at any
time payable or receivable on account of or in exchange for
any of the Collateral, but shall be under no obligation to
do so; and
(e) the Agent may, upon ten business days' prior
written notice to the Subsidiary Guarantor of the time and
place, with respect to the Collateral or any part thereof
that shall then be or shall thereafter come into the
possession, custody or control of the Agent, the Lenders or
any of their respective agents, sell, lease, assign or
otherwise dispose of all or any part of such Collateral, at
such place or places as the Agent deems best, and for cash
or for credit or for future delivery (without thereby
assuming any credit risk), at public or private sale,
without demand of performance or notice of intention to
effect any such disposition or of the time or place thereof
(except such notice as is required above or by applicable
statute and cannot be waived), and the Agent or any Lender
or anyone else may be the purchaser, lessee, assignee or
recipient of any or all of the Collateral so disposed of at
any public sale (or, to the extent permitted by law, at any
private sale) and thereafter hold the same absolutely, free
from any claim or right of whatsoever kind, including any
right or equity of redemption (statutory or otherwise), of
the Subsidiary Guarantor, any such demand, notice and right
or equity being hereby expressly waived and released. In
the event of any sale, assignment, or other disposition of
any of the Trademark Collateral, the goodwill connected with
and symbolized by the Trademark Collateral subject to such
disposition shall be included, and the Subsidiary Guarantor
shall supply to the Agent or its designee, for inclusion in
such sale, assignment or other disposition, all Intellectual
Property relating to such Trademark Collateral. The Agent
may, without notice or publication, adjourn any public or
private sale or cause the same to be adjourned from time to
time by announcement at the time and place fixed for the
sale, and such sale may be made at any time or place to
which the sale may be so adjourned.
The proceeds of each collection, sale or other disposition under
this Section 6.05, including by virtue of the exercise of the
license granted to the Agent in Section 6.04(b) hereof, shall be
applied in accordance with Section 6.09 hereof.
The Subsidiary Guarantor recognizes that, by reason of
certain prohibitions contained in the Securities Act of 1933, as
amended, and applicable state securities laws, the Agent may be
compelled, with respect to any sale of all or any part of the
Collateral, to limit purchasers to those who will agree, among
other things, to acquire the Collateral for their own account,
for investment and not with a view to the distribution or resale
thereof. The Subsidiary Guarantor acknowledges that any such
private sales may be at prices and on terms less favorable to the
Agent than those obtainable through a public sale without such
restrictions, and, notwithstanding such circumstances, agrees
that any such private sale shall be deemed to have been made in a
commercially reasonable manner and that the Agent shall have no
obligation to engage in public sales and no obligation to delay
the sale of any Collateral for the period of time necessary to
permit the respective Issuer or issuer thereof to register it for
public sale.
6.06 Deficiency. If the proceeds of sale, collection
or other realization of or upon the Collateral pursuant to
Section 6.05 hereof are insufficient to cover the costs and
expenses of such realization and the payment in full of the
Secured Obligations, the Subsidiary Guarantor shall remain liable
for any deficiency.
6.07 Removals, Etc. Without at least 30 days' prior
written notice to the Agent, the Subsidiary Guarantor shall not
(i) maintain any of its books and records with respect to the
Collateral at any office or maintain its principal place of
business at any place, or permit any Inventory or Equipment to be
located anywhere, other than at the address indicated beneath the
signature of the Company to the Credit Agreement or at one of the
locations identified in Annex 6 hereto or in transit from one of
such locations to another or (ii) change its name, or the name
under which it does business, from the name shown on the
signature pages hereto.
6.08 Private Sale. The Agent and the Lenders shall
incur no liability as a result of the sale of the Collateral, or
any part thereof, at any private sale pursuant to Section 6.05
hereof conducted in a commercially reasonable manner. The
Subsidiary Guarantor hereby waives any claims against the Agent
or any Lender arising by reason of the fact that the price at
which the Collateral may have been sold at such a private sale
was less than the price that might have been obtained at a public
sale or was less than the aggregate amount of the Secured
Obligations, even if the Agent accepts the first offer received
and does not offer the Collateral to more than one offeree.
6.09 Application of Proceeds. Except as otherwise
herein expressly provided and except as provided below in this
Section 6.09, the proceeds of any collection, sale or other
realization of all or any part of the Collateral pursuant hereto,
and any other cash at the time held by the Agent under Section 5
hereof or this Section 6, shall be applied by the Agent:
First, to the payment of the costs and expenses of such
collection, sale or other realization, including reasonable
out-of-pocket costs and expenses of the Agent and the fees
and expenses of its agents and counsel, and all expenses
incurred and advances made by the Agent in connection
therewith;
Next, to the payment in full of the Secured
Obligations, in each case equally and ratably in accordance
with the respective amounts thereof then due and owing or as
the Lenders holding the same may otherwise agree; and
Finally, to the payment to the Subsidiary Guarantor, or
its successors or assigns, or as a court of competent
jurisdiction may direct, of any surplus then remaining.
Notwithstanding the foregoing, the proceeds of any cash or other
amounts held in the "Letter of Credit Liabilities Sub-Account" of
the Xxxxxxx Collateral Account pursuant to Section 5.04 hereof
shall be applied first to the Letter of Credit Liabilities
outstanding from time to time and second to the other Secured
Obligations in the manner provided above in this Section 6.09.
As used in this Section 6, "proceeds" of Collateral
shall mean cash, securities and other Property realized in
respect of, and distributions in kind of, Collateral, including
any thereof received under any reorganization, liquidation or
adjustment of debt of the Subsidiary Guarantor or any issuer of
or obligor on any of the Collateral.
6.10 Attorney-in-Fact. Without limiting any rights or
powers granted by this Agreement to the Agent while no Event of
Default has occurred and is continuing, upon the occurrence and
during the continuance of any Event of Default the Agent is
hereby appointed the attorney-in-fact of the Subsidiary Guarantor
for the purpose of carrying out the provisions of this Section 6
and taking any action and executing any instruments that the
Agent may deem necessary or advisable to accomplish the purposes
hereof, which appointment as attorney-in-fact is irrevocable and
coupled with an interest. Without limiting the generality of the
foregoing, so long as the Agent shall be entitled under this
Section 6 to make collections in respect of the Collateral, the
Agent shall have the right and power to receive, endorse and
collect all checks made payable to the order of the Subsidiary
Guarantor representing any dividend, payment or other
distribution in respect of the Collateral or any part thereof and
to give full discharge for the same.
6.11 Perfection. Prior to or concurrently with the
execution and delivery of this Agreement, the Subsidiary
Guarantor shall (i) file such financing statements and other
documents in such offices as the Agent may request to perfect the
security interests granted by Section 4 of this Agreement,
(ii) at the request of the Agent, cause the Agent to be listed as
the lienholder on all certificates of title or ownership relating
to Motor Vehicles owned by the Subsidiary Guarantor and (iii)
deliver to the Agent all certificates identified in Annex 1
hereto, accompanied by undated stock powers duly executed in
blank.
6.12 Termination. When all Secured Obligations shall
have been paid in full and the Commitments of the Lenders under
the Credit Agreement and all Letter of Credit Liabilities shall
have expired or been terminated, this Agreement shall terminate,
and the Agent shall forthwith cause to be assigned, transferred
and delivered, against receipt but without any recourse, warranty
or representation whatsoever, any remaining Collateral and money
received in respect thereof, to or on the order of the Subsidiary
Guarantor and to be released and canceled all licenses and rights
referred to in Section 6.04(b) hereof. The Agent shall also
execute and deliver to the Subsidiary Guarantor upon such
termination such Uniform Commercial Code termination statements,
certificates for terminating the Liens on the Motor Vehicles and
such other documentation as shall be reasonably requested by the
Subsidiary Guarantor to effect the termination and release of the
Liens on the Collateral.
6.13 Further Assurances. The Subsidiary Guarantor
agrees that, from time to time upon the written request of the
Agent, the Subsidiary Guarantor will execute and deliver such
further documents and do such other acts and things as the Agent
may reasonably request in order fully to effect the purposes of
this Agreement.
6.14 Release of Motor Vehicles. So long as no Default
shall have occurred and be continuing, upon the request of the
Subsidiary Guarantor, the Agent shall execute and deliver to the
Subsidiary Guarantor such instruments as the Subsidiary Guarantor
shall reasonably request to remove the notation of the Agent as
lienholder on any certificate of title for any Motor Vehicle;
provided that any such instruments shall be delivered, and the
release effective only upon receipt by the Agent of a certificate
from the Subsidiary Guarantor stating that the Motor Vehicle the
lien on which is to be released is to be sold or has suffered a
casualty loss (with title thereto passing to the casualty
insurance company (or its designee) therefor in settlement of the
claim for such loss) and any proceeds of such sale or casualty
loss being paid to the Agent hereunder.
Section 7. Miscellaneous.
7.01 No Waiver. No failure on the part of the Agent
or any Lender to exercise, and no course of dealing with respect
to, and no delay in exercising, any right, power or remedy
hereunder shall operate as a waiver thereof; nor shall any single
or partial exercise by the Agent or any Lender of any right,
power or remedy hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or remedy. The
remedies herein are cumulative and are not exclusive of any
remedies provided by law.
7.02 Notices. All notices, requests, consents and
demands hereunder shall be in writing and telecopied or delivered
to the intended recipient at its "Address for Notices" specified
pursuant to Section 12.02 of the Credit Agreement and shall be
deemed to have been given at the times specified in said
Section 12.02.
7.03 Expenses. The Subsidiary Guarantor agrees to
reimburse each of the Lenders and the Agent for all reasonable
costs and expenses of the Lenders and the Agent (including,
without limitation, the reasonable fees and expenses of legal
counsel) in connection with (i) any Default and any enforcement
or collection proceeding resulting therefrom, including, without
limitation, all manner of participation in or other involvement
with (w) performance by the Agent of any obligations of the
Subsidiary Guarantor in respect of the Collateral that the
Subsidiary Guarantor has failed or refused to perform, (x)
bankruptcy, insolvency, receivership, foreclosure, winding up or
liquidation proceedings, or any actual or attempted sale, or any
exchange, enforcement, collection, compromise or settlement in
respect of any of the Collateral, and for the care of the
Collateral and defending or asserting rights and claims of the
Agent in respect thereof, by litigation or otherwise, including
expenses of insurance, (y) judicial or regulatory proceedings and
(z) workout, restructuring or other negotiations or proceedings
(whether or not the workout, restructuring or transaction
contemplated thereby is consummated) and (ii) the enforcement of
this Section 7.03, and all such costs and expenses shall be
Secured Obligations entitled to the benefits of the collateral
security provided pursuant to Section 4 hereof.
7.04 Amendments, Etc. The terms of this Agreement may
be waived, altered or amended only by an instrument in writing
duly executed by the Subsidiary Guarantor and the Agent (with the
consent of the Lenders as specified in Section 11.09 of the
Credit Agreement). Any such amendment or waiver shall be binding
upon the Agent and each Lender, each holder of any of the Secured
Obligations and the Subsidiary Guarantor.
7.05 Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the respective
successors and assigns of the Subsidiary Guarantor, the Agent,
the Lenders and each holder of any of the Secured Obligations
(provided, however, that the Subsidiary Guarantor shall not
assign or transfer its rights hereunder without the prior written
consent of the Agent).
7.06 Captions. The captions and section headings
appearing herein are included solely for convenience of reference
and are not intended to affect the interpretation of any
provision of this Agreement.
7.07 Counterparts. This Agreement may be executed in
any number of counterparts, all of which taken together shall
constitute one and the same instrument and either of the parties
hereto may execute this Agreement by signing any such
counterpart.
7.08 Governing Law. This Agreement shall be governed
by, and construed in accordance with, the law of the State of New
York.
7.09 Agents and Attorneys-in-Fact. The Agent may
employ agents and attorneys-in-fact in connection herewith and
shall not be responsible for the negligence or misconduct of any
such agents or attorneys-in-fact selected by it in good faith.
7.10 Severability. If any provision hereof is invalid
and unenforceable in any jurisdiction, then, to the fullest
extent permitted by law, (i) the other provisions hereof shall
remain in full force and effect in such jurisdiction and shall be
liberally construed in favor of the Agent and the Lenders in
order to carry out the intentions of the parties hereto as nearly
as may be possible and (ii) the invalidity or unenforceability of
any provision hereof in any jurisdiction shall not affect the
validity or enforceability of such provision in any other
jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this
Guarantee and Security Agreement to be duly executed and
delivered as of the day and year first above written.
XXXXXXX BROS., INC.
By _________________________
Title:
THE CHASE MANHATTAN BANK
as Agent
By _________________________
Title:
ANNEX 1
Pledged Stock
[See Section 4.05(b) and (c)]
None.
ANNEX 2
LIST OF COPYRIGHTS, COPYRIGHT REGISTRATIONS AND
APPLICATIONS FOR COPYRIGHT REGISTRATIONS
[See Section 4.05(d)]
Title Date Filed Registration No. Effective Date
ANNEX 3
LIST OF PATENTS AND PATENT APPLICATIONS
[See Section 4.05(d)]
File Patent Country Registration No. Date
ANNEX 4
LIST OF TRADE NAMES, TRADEMARKS, SERVICES MARKS,
TRADEMARK AND SERVICE MARK REGISTRATIONS AND
APPLICATIONS FOR TRADEMARK AND SERVICE MARK REGISTRATIONS
[See Section 4.05(d)]
U.S. Trademarks
Application (A)
Registration (R) Registration
Mark or Series No. (S) or Filing Date
Foreign Trademarks
Application (A) Registration or
Mark Registration (R) Country Filing Date (F)
ANNEX 5
LIST OF CONTRACTS, LICENSES AND OTHER AGREEMENTS
[See Section 4.05(d), (e) and (f)]
ANNEX 6
LIST OF LOCATIONS
[See Section 6.07]
EXECUTION COPY
AMENDED AND RESTATED PLEDGE AGREEMENT
AMENDED AND RESTATED PLEDGE AGREEMENT dated as of
October 31, 1996 between UNITED STATIONERS INC., a corporation
duly organized and validly existing under the laws of the State
of Delaware (together with its successors and assigns, the
"Pledgor"); and THE CHASE MANHATTAN BANK, as agent for the
lenders (the "Lenders") party to the Credit Agreement referred to
below (in such capacity, together with its successors in such
capacity, the "Agent").
WHEREAS, United Stationers Supply Co. (as successor by
merger to Associated Stationers, Inc.), a wholly-owned subsidiary
of the Pledgor and a corporation duly organized and validly
existing under the laws of the State of Illinois (the "Company"),
the Pledgor, the Lenders and the Agent are parties to a Credit
Agreement dated as of March 30, 1995 (as amended and restated as
of October 31, 1996 and as further modified and supplemented and
in effect from time to time, the "Credit Agreement"), providing,
subject to the terms and conditions thereof, for extensions of
credit to be made by the Lenders to the Company in an aggregate
principal amount not exceeding on the date hereof, $540,000,000;
WHEREAS, to induce said lenders to enter into the
Credit Agreement and to extend credit thereunder, and for other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Pledgor has agreed to pledge
and grant a security interest in the Collateral (as hereinafter
defined) as security for the Secured Obligations (as hereinafter
defined).
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Definitions. Terms defined in the Credit
Agreement are used herein as defined therein. In addition, as
used herein:
"Collateral" shall have the meaning ascribed thereto in
Section 3 hereof.
"Foreign Subsidiary" shall mean any Subsidiary of the
Pledgor that is not organized or created under the laws of
the United States of America, any State thereof or the
District of Columbia.
"Pledged Stock" shall have the meaning ascribed thereto
in Section 3(a) hereof.
"Secured Obligations" shall mean, collectively, (a) the
Guaranteed Obligations, which include the principal of and
interest on the Loans made by the Lenders to, and the
Note(s) held by each Lender of, the Company and all other
amounts from time to time owing to the Lenders or the Agent
by the Company under the Basic Documents including, without
limitation, all Reimbursement Obligations and interest
thereon, (b) all obligations of the Pledgor under the Credit
Agreement and the other Basic Documents (including, without
limitation, in respect of its Guarantee under Section 6 of
the Credit Agreement) and (c) all obligations of the Pledgor
to the Lenders and the Agent hereunder.
"Uniform Commercial Code" shall mean the Uniform
Commercial Code as in effect from time to time in the State
of New York.
Section 2. Representations and Warranties. The
Pledgor represents and warrants to the Lenders and the Agent
that:
(a) The Pledgor is (or at the time that the Pledgor
acquires any interest therein, will be) the sole beneficial
owner of the Collateral and no Lien exists or will exist
upon the Collateral at any time (and no right or option to
acquire the same exists in favor of any other Person),
except for the pledge and security interest in favor of the
Agent for the benefit of the Lenders created or provided for
herein, which pledge and security interest constitute a
first priority perfected pledge and security interest in and
to all of the Collateral.
(b) The Pledged Stock represented by certificates
identified in Annex 1 hereto is, and all other Pledged Stock
in which the Pledgor shall hereafter grant a security
interest pursuant to Section 3 hereof will be, duly
authorized, validly existing, fully paid and non-assessable
and none of such Pledged Stock is or will be subject to any
contractual restriction, or any restriction under the
charter or by-laws of the Company, upon the transfer of such
Pledged Stock (except for any such restriction contained
herein or in the Credit Agreement).
(c) The Pledged Stock represented by certificates
identified in Annex 1 hereto constitutes all of the issued
and outstanding shares of capital stock of any class of the
Company beneficially owned by the Pledgor on the date hereof
(whether or not registered in the name of the Pledgor) and
said Xxxxx 1 correctly identifies, as at the date hereof,
the respective class and par value of the shares represented
by such certificate and, the Pledgor is the registered owner
of all such shares.
Section 3. The Pledge. As collateral security for the
prompt payment in full when due (whether at stated maturity, by
acceleration or otherwise) of the Secured Obligations, the
Pledgor hereby pledges and grants to the Agent, for the benefit
of the Lenders as hereinafter provided, a security interest in
all of the Pledgor's right, title and interest in the following
Property, whether now owned by the Pledgor or hereafter acquired
and whether now existing or hereafter coming into existence (all
being collectively referred to herein as "Collateral"):
(a) the shares of common stock of the Company
represented by the certificates identified in Annex 1 hereto
and all other shares of capital stock of whatever class of
the Company or any other Subsidiary of the Pledgor, now or
hereafter owned by the Pledgor, in each case together with
the certificates representing the same (collectively, the
"Pledged Stock");
(b) all shares, securities, moneys or Property
representing a dividend on any of the Pledged Stock, or
representing a distribution or return of capital upon or in
respect of the Pledged Stock, or resulting from a split-up,
revision, reclassification or other like change of the
Pledged Stock or otherwise received in exchange therefor,
and any subscription warrants, rights or options issued to
the holders of, or otherwise in respect of, the Pledged
Stock;
(c) without affecting the obligations of the Pledgor
under any provision prohibiting such action hereunder or
under the Credit Agreement, in the event of any
consolidation or merger in which the Company is not the
surviving corporation, all shares of each class of the
capital stock of the successor corporation (unless such
successor corporation is the Company itself) formed by or
resulting from such consolidation or merger; and
(d) all proceeds of and to any of the Property of the
Pledgor described in the preceding clauses of this Section 3
(including, without limitation, all causes of action, claims
and warranties now or hereafter held by the Pledgor in
respect of any of the items listed above) and, to the extent
related to any Property described in said clauses or such
proceeds, all books, correspondence, credit files, records,
invoices and other papers;
provided that Collateral shall not include shares of capital
stock of any class issued by any Foreign Subsidiary to the extent
that the percentage of issued and outstanding shares of capital
stock of such class subject to the Lien of this Agreement would
constitute more than 65% of the issued and outstanding shares of
capital stock of such class.
Section 4. Further Assurances; Remedies. In
furtherance of the grant of the pledge and security interest
pursuant to Section 3 hereof, the Pledgor hereby agrees with each
Lender and the Agent as follows:
4.01 Delivery and Other Perfection. The Pledgor
shall:
(a) if any of the shares, securities, moneys or other
Property required to be pledged by the Pledgor under
clauses (a), (b) and (c) of Section 3 hereof are received by
the Pledgor, forthwith either (x) transfer and deliver to
the Agent such shares or securities so received by the
Pledgor (together with the certificates representing any
such shares and securities duly endorsed in blank or
accompanied by undated stock powers duly executed in blank),
all of which thereafter shall be held by the Agent, pursuant
to the terms of this Agreement, as part of the Collateral or
(y) take such other action as the Agent shall deem necessary
or appropriate to duly record the Lien created hereunder in
such shares, securities, moneys or other Property in said
clauses (a), (b) and (c);
(b) give, execute, deliver, file and/or record any
financing statement, notice, instrument, document, agreement
or other papers that may be necessary or desirable (in the
judgment of the Agent) to create, preserve, perfect or
validate the security interest granted pursuant hereto or to
enable the Agent to exercise and enforce its rights
hereunder with respect to such pledge and security interest,
including, without limitation, following the occurrence of
an Event of Default, causing any or all of the Collateral to
be transferred of record into the name of the Agent or its
nominee (and the Agent agrees that if any Collateral is
transferred into its name or the name of its nominee, the
Agent will thereafter promptly give to the Pledgor copies of
any notices and communications received by it with respect
to the Collateral);
(c) keep full and accurate books and records relating
to the Collateral, and stamp or otherwise mark such books
and records in such manner as the Agent may reasonably
require in order to reflect the security interests granted
by this Agreement; and
(d) permit representatives of the Agent, upon
reasonable notice, at any time during normal business hours
to inspect and make abstracts from its books and records
pertaining to the Collateral, and permit representatives of
the Agent to be present at the Pledgor's place of business
to receive copies of all communications and remittances
relating to the Collateral, and forward copies of any
notices or communications received by the Pledgor with
respect to the Collateral, all in such manner as the Agent
may require.
4.02 Other Financing Statements and Liens. The
Pledgor shall not file or suffer to be on file, or authorize or
permit to be filed or to be on file, in any jurisdiction, any
financing statement or like instrument with respect to the
Collateral in which the Agent is not named as the sole secured
party for the benefit of the Lenders.
4.03 Preservation of Rights. The Agent shall not be
required to take steps necessary to preserve any rights against
prior parties to any of the Collateral.
4.04 Collateral.
(a) The Pledgor will cause the Collateral to
constitute at all times 100% (or, with respect to any issuer that
is a Foreign Subsidiary, at least 65%) of the total number of
shares of each class of capital stock of the Company and each
other Subsidiary of the Pledgor then outstanding.
(b) Unless an Event of Default shall have occurred and
be continuing and the Agent shall have given notice to the
Pledgor of its intention to exercise rights arising hereunder or
under any other Basic Document with respect to the Pledged Stock,
the Pledgor shall have the right to exercise all voting,
consensual and other powers of ownership pertaining to the
Collateral for all purposes not inconsistent with the terms of
this Agreement, the Credit Agreement, the Notes or any other
instrument or agreement referred to herein or therein, provided
that the Pledgor agrees that it will not vote the Collateral in
any manner that is inconsistent with the terms of this Agreement,
the Credit Agreement, the Notes or any such other instrument or
agreement; and the Agent shall execute and deliver to the Pledgor
or cause to be executed and delivered to the Pledgor all such
proxies, powers of attorney, dividend and other orders, and all
such instruments, without recourse, as the Pledgor may reasonably
request for the purpose of enabling the Pledgor to exercise the
rights and powers that it is entitled to exercise pursuant to
this Section 4.04(b).
(c) Unless and until an Event of Default has occurred
and is continuing, and subject to the provisions of Section 9.09
of the Credit Agreement, the Pledgor shall be entitled to receive
and retain any dividends on the Collateral paid in cash out of
earned surplus.
(d) If any Event of Default shall have occurred, then
so long as such Event of Default shall continue, and whether or
not the Agent or any Lender exercises any available right to
declare any Secured Obligation due and payable or seeks or
pursues any other relief or remedy available to it under
applicable law or under this Agreement, the Credit Agreement, the
Notes or any other agreement relating to such Secured Obligation,
all dividends and other distributions on the Collateral shall be
paid directly to the Agent and retained by it as part of the
Collateral, subject to the terms of this Agreement, and, if the
Agent shall so request in writing, the Pledgor agrees to execute
and deliver to the Agent appropriate additional dividend,
distribution and other orders and documents to that end, provided
that if such Event of Default is cured, any such dividend or
distribution theretofore paid to the Agent shall, upon request of
the Pledgor (except to the extent theretofore applied to the
Secured Obligations), be returned by the Agent to the Pledgor.
4.05 Events of Default, Etc. During the period during
which an Event of Default shall have occurred and be continuing:
(a) the Agent shall have all of the rights and
remedies with respect to the Collateral of a secured party
under the Uniform Commercial Code (whether or not said Code
is in effect in the jurisdiction where the rights and
remedies are asserted) and such additional rights and
remedies to which a secured party is entitled under the laws
in effect in any jurisdiction where any rights and remedies
hereunder may be asserted, including, without limitation,
the right, to the maximum extent permitted by law, to
exercise all voting, consensual and other powers of
ownership pertaining to the Collateral as if the Agent were
the sole and absolute owner thereof (and the Pledgor agrees
to take all such action as may be appropriate to give effect
to such right);
(b) the Agent in its discretion may, in its name or in
the name of the Pledgor or otherwise, demand, sue for,
collect or receive any money or property at any time payable
or receivable on account of or in exchange for any of the
Collateral, but shall be under no obligation to do so; and
(c) the Agent may, upon ten business days' prior
written notice to the Pledgor of the time and place, with
respect to the Collateral or any part thereof that shall
then be or shall thereafter come into the possession,
custody or control of the Agent, the Lenders or any of their
respective agents, sell, lease, assign or otherwise dispose
of all or any part of such Collateral, at such place or
places as the Agent deems best, and for cash or for credit
or for future delivery (without thereby assuming any credit
risk), at public or private sale, without demand of
performance or notice of intention to effect any such
disposition or of the time or place thereof (except such
notice as is required above or by applicable statute and
cannot be waived), and the Agent or any Lender or anyone
else may be the purchaser, lessee, assignee or recipient of
any or all of the Collateral so disposed of at any public
sale (or, to the extent permitted by law, at any private
sale) and thereafter hold the same absolutely, free from any
claim or right of whatsoever kind, including any right or
equity of redemption (statutory or otherwise), of the
Pledgor, any such demand, notice and right or equity being
hereby expressly waived and released. The Agent may,
without notice or publication, adjourn any public or private
sale or cause the same to be adjourned from time to time by
announcement at the time and place fixed for the sale, and
such sale may be made at any time or place to which the sale
may be so adjourned.
The proceeds of each collection, sale or other disposition under
this Section 4.05 shall be applied in accordance with
Section 4.09 hereof.
The Pledgor recognizes that, by reason of certain
prohibitions contained in the Securities Act of 1933, as amended,
and applicable state securities laws, the Agent may be compelled,
with respect to any sale of all or any part of the Collateral, to
limit purchasers to those who will agree, among other things, to
acquire the Collateral for their own account, for investment and
not with a view to the distribution or resale thereof. The
Pledgor acknowledges that any such private sales may be at prices
and on terms less favorable to the Agent than those obtainable
through a public sale without such restrictions, and,
notwithstanding such circumstances, agrees that any such private
sale shall be deemed to have been made in a commercially
reasonable manner and that the Agent shall have no obligation to
engage in public sales and no obligation to delay the sale of any
Collateral for the period of time necessary to permit the
respective issuer thereof to register it for public sale.
4.06 Deficiency. If the proceeds of sale, collection
or other realization of or upon the Collateral pursuant to
Section 4.05 hereof are insufficient to cover the costs and
expenses of such realization and the payment in full of the
Secured Obligations, the Pledgor shall remain liable for any
deficiency.
4.07 Removals, Etc. Without at least 30 days' prior
written notice to the Agent, the Pledgor shall not (i) maintain
any of its books and records with respect to the Collateral at
any office or maintain its principal place of business at any
place other than at 0000 Xxxx Xxxx Xxxx, Xxx Xxxxxxx, Xxxxxxxx
00000-1267 or (ii) change its name, or the name under which it
does business, from the name shown on the signature pages hereto.
4.08 Private Sale. The Agent and the Lenders shall
incur no liability as a result of the sale of the Collateral, or
any part thereof, at any private sale pursuant to Section 4.05
hereof conducted in a commercially reasonable manner. The
Pledgor hereby waives any claims against the Agent or any Lender
arising by reason of the fact that the price at which the
Collateral may have been sold at such a private sale was less
than the price that might have been obtained at a public sale or
was less than the aggregate amount of the Secured Obligations,
even if the Agent accepts the first offer received and does not
offer the Collateral to more than one offeree.
4.09 Application of Proceeds. Except as otherwise
herein expressly provided, the proceeds of any collection, sale
or other realization of all or any part of the Collateral
pursuant hereto, and any other cash at the time held by the Agent
under this Section 4, shall be applied by the Agent:
First, to the payment of the costs and expenses of such
collection, sale or other realization, including reasonable
out-of-pocket costs and expenses of the Agent and the fees
and expenses of its agents and counsel, and all expenses
incurred and advances made by the Agent in connection
therewith;
Next, to the payment in full of the Secured
Obligations, in each case equally and ratably in accordance
with the respective amounts thereof then due and owing or as
the Lenders holding the same may otherwise agree; and
Finally, to the payment to the Pledgor, or its
successors or assigns, or as a court of competent
jurisdiction may direct, of any surplus then remaining.
As used in this Section 4, "proceeds" of Collateral
shall mean cash, securities and other property realized in
respect of, and distributions in kind of, Collateral, including
any thereof received under any reorganization, liquidation or
adjustment of debt of the Pledgor or any issuer of or obligor on
any of the Collateral.
4.10 Attorney-in-Fact. Without limiting any rights or
powers granted by this Agreement to the Agent while no Event of
Default has occurred and is continuing, upon the occurrence and
during the continuance of any Event of Default the Agent is
hereby appointed the attorney-in-fact of the Pledgor for the
purpose of carrying out the provisions of this Section 4 and
taking any action and executing any instruments that the Agent
may deem necessary or advisable to accomplish the purposes
hereof, which appointment as attorney-in-fact is irrevocable and
coupled with an interest. Without limiting the generality of the
foregoing, so long as the Agent shall be entitled under this
Section 4 to make collections in respect of the Collateral, the
Agent shall have the right and power to receive, endorse and
collect all checks made payable to the order of the Pledgor
representing any dividend, payment or other distribution in
respect of the Collateral or any part thereof and to give full
discharge for the same.
4.11 Perfection. Prior to or concurrently with the
execution and delivery of this Agreement, the Pledgor shall
deliver to the Agent all certificates identified in Section 3(a)
hereof, accompanied by undated stock powers duly executed in
blank.
4.12 Termination. When all Secured Obligations shall
have been paid in full and the Commitments of the Lenders under
the Credit Agreement and all Letter of Credit Liabilities shall
have expired or been terminated, this Agreement shall terminate,
and the Agent shall forthwith cause to be assigned, transferred
and delivered, against receipt but without any recourse, warranty
or representation whatsoever, any remaining Collateral and money
received in respect thereof, to or on the order of the Pledgor.
4.13 Expenses. The Pledgor agrees to pay to the Agent
all out-of-pocket expenses (including reasonable expenses for
legal services of every kind) of, or incident to, the enforcement
of any of the provisions of this Section 4, or performance by the
Agent of any obligations of the Pledgor in respect of the
Collateral which the Pledgor has failed or refused to perform, or
any actual or attempted sale, or any exchange, enforcement,
collection, compromise or settlement in respect of any of the
Collateral, and for the care of the Collateral and defending or
asserting rights and claims of the Agent in respect thereof, by
litigation or otherwise, and all such expenses shall be Secured
Obligations to the Agent secured under Section 3 hereof.
4.14 Further Assurances. The Pledgor agrees that,
from time to time upon the written request of the Agent, the
Pledgor will execute and deliver such further documents and do
such other acts and things as the Agent may reasonably request in
order fully to effect the purposes of this Agreement.
Section 5. Miscellaneous.
5.01 No Waiver. No failure on the part of the Agent
or any Lender to exercise, and no course of dealing with respect
to, and no delay in exercising, any right, power or remedy
hereunder shall operate as a waiver thereof; nor shall any single
or partial exercise by the Agent or any Lender of any right,
power or remedy hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or remedy. The
remedies herein are cumulative and are not exclusive of any
remedies provided by law.
5.02 Notices. All notices, requests, consents and
demands hereunder shall be in writing and telecopied or delivered
to the intended recipient at its "Address for Notices" specified
pursuant to Section 12.02 of the Credit Agreement and shall be
deemed to have been given at the times specified in said
Section 12.02.
5.03 Amendments, Etc. The terms of this Agreement may
be waived, altered or amended only by an instrument in writing
duly executed by the Pledgor and the Agent (with the consent of
the Lenders as specified in Section 11.09 of the Credit
Agreement).
5.05 Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the respective
successors and assigns of the Pledgor, the Agent, the Lenders and
each holder of any of the Secured Obligations (provided, however,
that the Pledgor shall not assign or transfer its rights
hereunder without the prior written consent of the Agent).
5.06 Captions. The captions and section headings
appearing herein are included solely for convenience of reference
and are not intended to affect the interpretation of any
provision of this Agreement.
5.07 Counterparts. This Agreement may be executed in
any number of counterparts, all of which taken together shall
constitute one and the same instrument and either of the parties
hereto may execute this Agreement by signing any such
counterpart.
5.08 Governing Law. This Agreement shall be governed
by, and construed in accordance with, the law of the State of New
York.
5.09 Agents and Attorneys-in-Fact. The Agent may
employ agents and attorneys-in-fact in connection herewith and
shall not be responsible for the negligence or misconduct of any
such agents or attorneys-in-fact selected by it in good faith.
5.10 Severability. If any provision hereof is invalid
and unenforceable in any jurisdiction, then, to the fullest
extent permitted by law, (i) the other provisions hereof shall
remain in full force and effect in such jurisdiction and shall be
liberally construed in favor of the Agent and the Lenders in
order to carry out the intentions of the parties hereto as nearly
as may be possible and (ii) the invalidity or unenforceability of
any provision hereof in any jurisdiction shall not affect the
validity or enforceability of such provision in any other
jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this
Pledge Agreement to be duly executed and delivered as of the day
and year first above written.
UNITED STATIONERS INC.
By
Title:
THE CHASE MANHATTAN BANK,
as Agent
By
Title:
EXHIBIT G
[Form of Confidentiality Agreement]
CONFIDENTIALITY AGREEMENT
[Date]
[Insert Name and
Address of Prospective
Participant or Assignee]
Re: Credit Agreement dated as of March 30,
1995 (the "Credit Agreement" as amended and
restated as of October 31, 1996), among United
Stationers Supply Co. (as successor by merger to
Associated Stationers, Inc., the "Company"),
United Stationers Inc. (as successor by merger to
Associated Holdings, Inc.), as parent guarantor,
the lenders named therein and The Chase Manhattan
Bank, as Agent.
Dear Ladies and Gentlemen:
As a Lender party to the Credit Agreement, we have
agreed with the Company pursuant to Section 12.12 of the Credit
Agreement to use reasonable precautions to keep confidential,
except as otherwise provided therein, all non-public information
identified by the Company as being confidential at the time the
same is delivered to us pursuant to the Credit Agreement.
As provided in said Section 12.12, we are permitted to
provide you, as a prospective [holder of a participation in the
Loans (as defined in the Credit Agreement)] [assignee Lender],
with certain of such non-public information subject to the
execution and delivery by you, prior to receiving such non-public
information, of a Confidentiality Agreement in this form. Such
information will not be made available to you until your
execution and return to us of this Confidentiality Agreement.
Accordingly, in consideration of the foregoing, you
agree (on behalf of yourself and each of your affiliates,
directors, officers, employees and representatives) that (A) such
information will not be used by you except in connection with the
proposed [participation][assignment] mentioned above and (B) you
shall use reasonable precautions, in accordance with your
customary procedures for handling confidential information and in
accordance with safe and sound practices, to keep such
information confidential, provided that nothing herein shall
limit the disclosure of any such information (i) to the extent
required by statute, rule, regulation or judicial process,
(ii) to your counsel or to counsel for any of the Lenders or the
Agent, (iii) to regulatory personnel, auditors or accountants,
(iv) to the Agent or any other Lender (or to Chase Securities,
Inc.), (v) in connection with any litigation related to the
Acquisition or the transactions contemplated by the Credit
Agreement or the other Basic Documents to which you or any one or
more of the Lenders or the Agent is a party, or (vi) to a
subsidiary or affiliate of yours as provided in Section 12.12(a)
of the Credit Agreement; and provided that in no event shall you
be obligated to return any materials furnished to you pursuant to
this Confidentiality Agreement.
Please indicate your agreement to the foregoing by
signing as provided below the enclosed copy of this
Confidentiality Agreement and returning the same to us.
Very truly yours,
[INSERT NAME OF XXXXXX]
By_________________________
The foregoing is agreed to
as of the date of this letter.
[INSERT NAME OF PROSPECTIVE
PARTICIPANT OR ASSIGNEE]
By_________________________
EXHIBIT H
[Form of Notice of Assignment]
NOTICE OF ASSIGNMENT
[Date]
United Stationers Supply Co.
0000 Xxxx Xxxx Xxxx
Xxx Xxxxxxx, XX 00000-0000
The Chase Manhattan Bank, as Agent
4 Chase Metrotech Center -- 13th Floor
Brooklyn, New York 11245
Attention: New York Agency
[Name of Issuing Bank]
_________________________
_________________________
Attention: _____________
Re: Credit Agreement dated as of March 30,
1995 (the "Credit Agreement" as amended and
restated as of October 31, 1996), among United
Stationers Supply Co., as successor by merger to
Associated Stationers, Inc. (the "Company"),
United Stationers Inc., as successor by merger to
Associated Holdings, Inc., as parent guarantor,
the lenders named therein and The Chase Manhattan
Bank, as Agent.
Dear Ladies and Gentlemen:
We hereby give notice that, effective as of the date
hereof, [Name of Assignor] (the "Assignor") has assigned its
rights and obligations with respect to % (representing
$_____________) of the Assignor's outstanding [[Revolving Credit]
[Tranche A Term Loan] [Tranche B Term Loan] Commitment and]
[[Revolving Credit] [Tranche A Term] [Tranche B Term] Loans]
(such interest in such rights and obligations being hereinafter
referred to as the "Assigned Interest") under the Credit
Agreement to [Name of Assignee] (the "Assignee"). The Assignee
hereby agrees (i) to become a "Lender" pursuant to
Section 12.06(b) of the Credit Agreement (if not already a Lender
under the Credit Agreement) and (ii) agrees to assume all the
obligations of the Assignor thereunder with respect to the
Assigned Interest.
The address for notices, lending office(s) and payment
instructions for the Assignee are as follows:
Address for Notices:
Attention:
Telephone:
Telecopier:
Lending Office for Base Rate
Loans:
Lending Office for Loans other
than Base Rate Loans:
Payment Instructions:
[We hereby request the Company to record on the
Register referred to in Section 12.06(g) of the Credit Agreement
the [[Tranche A] [Tranche B]] Term Loans assigned hereunder.]9
Please sign and return the enclosed copy of this letter
to the undersigned to indicate your receipt hereof, and your
consent to or notice of (as applicable) the above-mentioned
assignment and assumption, and your agreement to the release of
the Assignor from its obligations under the Credit Agreement with
respect to the Assigned Interest. As a condition to the
effectiveness of the above-mentioned assignment and assumption,
the Assignee hereby agrees to pay to the Agent on the date hereof
an assignment fee of $3,500.
Very truly yours,
[NAME OF ASSIGNOR]
By
Title:
[NAME OF ASSIGNEE]
By
Title:
ACKNOWLEDGED OR CONSENTED TO
(AS APPLICABLE):
UNITED STATIONERS SUPPLY CO.
By
Title:
THE CHASE MANHATTAN BANK,
as Agent
By
Title:
[NAME OF ISSUING BANK],
as Issuing Bank
By
Title:
_______________________________
1Supply owns 77 of the 122 issued and outstanding shares. It
owns 55 shares outright and 22 are held in escrow. Xxxxxxxx X.
Xxxxxx ("Xxxxxx") owns the remaining 45 shares which are issued
and outstanding. The Supply and Xxxxxx have entered into that
certain Stockholders' Agreement dated as of July 1, 1993 (the
"Stockholder's Agreement") to govern the shares. The escrowed
shares will be earned by and delivered to Xxxxxx as certain
performance standards are met. So long as the Delaware General
Corporation Law does not prohibit it from doing so, the
Stockholders' Agreement provides that the Supply shall purchase
from Xxxxxx his stock upon his termination by United Business
Computers, Inc. In addition, Xxxxxx may, at the times and at the
prices determined as set forth in the Stockholders' Agreement,
purchase the Supply's stock in UBC. The Stockholders' Agreement
provides that neither shareholder may pledge the stock.
2 Xxxxxxx property acquired as part of the Xxxxxxx
Acquisition.
3 The Company is considering consolidating the Memphis
and Nashville operations in a new location which may service
both markets.
4 On or about March 16, 1995, Supply was notified of an
action filed by The Illinois State Toll Highway Authority to
condemn approximately 4,336 square feet of land and to obtain a
temporary construction easement for a period of three years
across and upon approximately 24,090 square feet of land
constituting a part of the property.
**** This mortgage secures the Tranche A Term Loans and the
Tranche B Term Loans only.
[5. The facility will be mortgaged post-closing.]
* This Mortgage secures the Tranche A Term Loans and the
Tranche B Term Loans only.
6 Catalogue Receivables shall not constitute Ineligible
Receivables (unless they so constitute for other reasons)
for purposes of determinations made as of the last day of
September, October, November, December, January or February.
7 Calendars shall not be excluded from Eligible Inventory for
purposes of any determination of "Eligible Inventory" made
as of the last day of June, July, August, September,
October, November or December.
8 At any time after February 28 but before November 1, this
percentage shall be 60% (not 65%).
9 Insert this language if Assignee will acquire
Registered Loans hereunder.
