Exhibit 10.9
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CREDIT AGREEMENT
dated as of March 21, 2002
among
XXXXXXXX INDUSTRIES, INC.,
np aerospace limited,
xxxxxx xxxxxxx enterpriseS, inc.,
as Borrowers
VARIOUS FINANCIAL INSTITUTIONS
as Banks
and
LASALLE BANK NATIONAL ASSOCIATION
as Bank, Agent and Security Trustee
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TABLE OF CONTENTS
Page
i
SECTION 1 DEFINITIONS..................................................1
1.1 Definitions..................................................1
1.2 Other Interpretive Provisions...............................17
SECTION 2 COMMITMENTS OF THE BANKS; BORROWING, CONVERSION AND LETTER
OF CREDIT PROCEDURES........................................18
2.1 Commitments.................................................18
2.1.1 Revolving Loan Commitment.........................18
2.1.2 L/C Commitment....................................18
2.2 Loan Procedures.............................................18
2.2.1 Various Types of Loans............................18
2.2.2 Borrowing Procedures..............................18
2.2.3 Conversion and Continuation Procedures............18
2.2.4 Appointment of Borrower Representative............19
2.3 Letter of Credit Procedures.................................20
2.3.1 L/C Applications..................................20
2.3.2 Participations in Letters of Credit...............20
2.3.3 Reimbursement Obligations.........................20
2.3.4 Limitation on Obligations of Issuing Bank.........20
2.3.5 Funding by Banks to Issuing Bank..................21
2.4 Commitments Several.........................................21
2.5 Certain Conditions..........................................21
2.6 Joint and Several Nature of Loans...........................21
SECTION 3 NOTES EVIDENCING LOANS......................................21
3.1 Notes.......................................................21
3.2 Recordkeeping...............................................22
SECTION 4 INTEREST....................................................22
4.1 Interest Rates..............................................22
4.2 Interest Payment Dates......................................22
4.3 Setting and Notice of LIBOR Rates...........................22
4.4 Computation of Interest.....................................22
SECTION 5 FEES........................................................22
5.1 Letter of Credit Fees.......................................22
5.2 Closing Fees................................................23
5.3 Agent's Fees................................................23
SECTION 6 REDUCTION OR TERMINATION OF THE REVOLVING COMMITMENT
AMOUNT; PREPAYMENTS.........................................23
6.1 Reduction or Termination of the Revolving Commitment
Amount......................................................23
6.1.1 Voluntary Reduction or Termination of the
Revolving Commitment Amount.......................23
6.1.2 Mandatory Reductions of Revolving Commitment
Amount............................................23
6.1.3 All Reductions of the Revolving Commitment
Amount............................................23
6.2 Prepayments.................................................23
6.2.1 Voluntary Prepayments.............................23
6.2.2 Mandatory Prepayments.............................23
6.3 All Prepayments.............................................24
SECTION 7 MAKING AND PRORATION OF PAYMENTS; SETOFF; TAXES.............24
7.1 Making of Payments..........................................24
7.2 Application of Certain Payments.............................24
7.3 Due Date Extension..........................................25
7.4 Setoff......................................................25
7.5 Proration of Payments.......................................25
7.6 Taxes.......................................................25
SECTION 8 INCREASED COSTS; SPECIAL PROVISIONS FOR LIBOR LOANS.........26
8.1 Increased Costs.............................................26
8.2 Basis for Determining Interest Rate Inadequate or Unfair....27
8.3 Changes in Law Rendering LIBOR Loans Unlawful...............28
8.4 Funding Losses..............................................28
8.5 Right of Banks to Fund through Other Offices................28
8.6 Discretion of Banks as to Manner of Funding.................28
8.7 Mitigation of Circumstances; Replacement of Banks...........29
8.8 Conclusiveness of Statements; Survival of Provisions........30
SECTION 9 WARRANTIES..................................................30
9.1 Organization................................................30
9.2 Authorization; No Conflict..................................30
9.3 Validity and Binding Nature.................................30
9.4 Financial Condition.........................................30
9.5 No Material Adverse Change..................................30
9.6 Litigation and Contingent Liabilities.......................31
9.7 Ownership of Properties; Liens..............................31
9.8 Subsidiaries................................................31
9.9 Pension Plans...............................................31
9.10 Investment Company Act......................................32
9.11 Public Utility Holding Company Act..........................32
9.12 Regulation U................................................32
9.13 Taxes.......................................................32
9.14 Solvency, etc...............................................32
9.15 Environmental Matters.......................................32
9.16 Insurance...................................................34
9.17 Real Property...............................................34
9.18 Information.................................................34
9.19 Intellectual Property.......................................34
9.20 Burdensome Obligations......................................34
9.21 Labor Matters...............................................34
9.22 No Default..................................................34
SECTION 10 COVENANTS...................................................34
10.1 Reports, Certificates and Other Information.................34
10.1.1 Annual Audit Report...............................35
10.1.2 Interim Reports...................................35
10.1.3 Compliance Certificates...........................35
10.1.4 Reports to the SEC and to Shareholders............35
10.1.5 Notice of Default, Litigation and ERISA Matters...35
10.1.6 Borrowing Base Certificates.......................36
10.1.7 Accounts Trial Balance............................36
10.1.8 Management Reports................................36
10.1.9 Projections.......................................36
10.1.10 Subordinated Debt Notices.........................36
10.1.11 Valley Forge Litigation Updates...................36
10.1.12 Other Information.................................37
10.2 Books, Records and Inspections..............................37
10.3 Maintenance of Property; Insurance..........................37
10.4 Compliance with Laws; Payment of Taxes and Liabilities......39
10.5 Maintenance of Existence, etc...............................39
10.6 Financial Covenants.........................................39
10.6.1 Minimum Tangible Net Worth........................39
10.6.2 Leverage Ratio....................................39
10.6.3 Pre-Tax Earnings..................................39
10.6.4 Capital Expenditures..............................39
10.7 Limitations on Debt.........................................39
10.8 Liens.......................................................40
10.9 Operating Leases............................................41
10.10 Restricted Payments.........................................41
10.11 Mergers, Consolidations, Sales..............................41
10.12 Modification of Organizational Documents....................41
10.13 Use of Proceeds.............................................41
10.14 Further Assurances..........................................42
10.15 Transactions with Affiliates................................42
10.16 Employee Benefit Plans......................................42
10.17 Environmental Matters.......................................42
10.18 Unconditional Purchase Obligations..........................43
10.19 Inconsistent Agreements.....................................43
10.20 Business Activities.........................................43
10.21 Investments.................................................43
10.22 Restriction of Amendments to Certain Documents..............44
10.23 Fiscal Year.................................................44
10.24 Cancellation of Debt........................................44
10.25 Domestic Operating Accounts.................................44
10.26 Foreign Operating Accounts..................................44
10.27 Foreign Subsidiary Collateral...............................44
SECTION 11 EFFECTIVENESS; CONDITIONS OF LENDING, ETC...................44
11.1 Initial Credit Extension....................................44
11.1.1 Notes.............................................45
11.1.2 Resolutions.......................................45
11.1.3 Consents, etc.....................................45
11.1.4 Incumbency and Signature Certificates.............45
11.1.5 Security Agreement................................45
11.1.6 Pledge Agreement..................................45
11.1.7 Real Estate Documents.............................45
11.1.8 Opinions of Counsel...............................46
11.1.9 Insurance.........................................46
11.1.10 Payment of Fees...................................46
11.1.11 Solvency Certificate..............................46
11.1.12 Search Results; Lien Terminations.................46
11.1.13 Filings, Registrations and Recordings.............46
11.1.14 Closing Certificate...............................46
11.1.15 Borrowing Base Certificate........................46
11.1.16 Other.............................................46
11.2 Conditions..................................................46
11.2.1 Compliance with Warranties, No Default, etc.......46
11.2.2 Confirmatory Certificate..........................46
SECTION 12 EVENTS OF DEFAULT AND THEIR EFFECT..........................47
12.1 Events of Default...........................................47
12.1.1 Non-Payment of the Loans, etc.....................47
12.1.2 Non-Payment of Other Debt.........................47
12.1.3 Other Material Obligations........................47
12.1.4 Bankruptcy, Insolvency, etc.......................47
12.1.5 Non-Compliance with Loan Documents................47
12.1.6 Warranties........................................47
12.1.7 Pension Plans.....................................47
12.1.8 Judgments.........................................48
12.1.9 Invalidity of Guaranty, etc.......................48
12.1.10 Invalidity of Collateral Documents, etc...........48
12.1.11 Invalidity of Subordination Provisions, etc.......48
12.1.12 Change of Control.................................48
12.1.13 Material Adverse Effect...........................48
12.2 Effect of Event of Default..................................48
SECTION 13 THE AGENT...................................................49
13.1 Appointment and Authorization...............................49
13.1.1 ..................................................49
13.1.2 Delegation of Duties..............................49
13.1.3 Liability of Agent................................49
13.2 Reliance by Agent...........................................50
13.3 Notice of Default...........................................50
13.4 Credit Decision.............................................50
13.5 Indemnification.............................................50
13.6 Agent in Individual Capacity................................51
13.7 Successor Agent.............................................51
13.8 Collateral Matters..........................................51
13.9 Security Trustee............................................52
13.10 Successor Security Trustee..................................52
13.11 Protection of Security Trustee..............................53
SECTION 14 GENERAL.....................................................53
14.1 Waiver; Amendments..........................................53
14.2 Confirmations...............................................53
14.3 Notices.....................................................53
14.4 Computations................................................54
14.5 Regulation U................................................54
14.6 Costs, Expenses and Taxes...................................54
14.7 Subsidiary References.......................................54
14.8 Captions....................................................54
14.9 Assignments; Participations.................................54
14.9.1 Assignments.......................................55
14.9.2 Participations....................................56
14.10 Governing Law...............................................56
14.11 Counterparts................................................56
14.12 Successors and Assigns......................................56
14.13 Indemnification by the Borrowers............................56
14.14 Nonliability of Lenders.....................................57
SECTION 15 GUARANTIES..................................................59
15.1 Guaranty....................................................59
15.2 Unconditional Obligation....................................59
15.3 Period in Force.............................................60
15.4 WAIVER......................................................60
15.5 Effect of Stay..............................................60
15.6 Subordination...............................................60
SCHEDULES
Pricing Schedule
SCHEDULE 2.1 Banks and Pro Rata Shares
SCHEDULE 9.6 Litigation and Contingent Liabilities
SCHEDULE 9.8 Subsidiaries
SCHEDULE 9.15 Environmental Matters
SCHEDULE 9.16 Insurance
SCHEDULE 9.17 Real Property
SCHEDULE 9.21 Labor Matters
SCHEDULE 10.7 Existing Debt
SCHEDULE 10.8 Existing Liens
SCHEDULE 10.21 Investments
SCHEDULE 11.1 Debt to be Repaid
SCHEDULE 14.3 Addresses for Notices
EXHIBITS
EXHIBIT A Form of Note (Section 3.1)
EXHIBIT B Form of Compliance Certificate (Section 10.1.3)
EXHIBIT C Form of Guaranty (Section 1.1)
EXHIBIT D Form of Security Agreement (Section 1.1)
EXHIBIT E Form of Pledge Agreement (Section 1.1)
EXHIBIT F Form of Borrowing Base Certificate (Section 1.1)
EXHIBIT G Form of Assignment Agreement (Section 14.9.1)
EXHIBIT H Form of Opinion of Counsel (Section 11.1.8)
EXHIBIT I Form of Solvency Certificate (Section 11.1.11)
CREDIT AGREEMENT
THIS CREDIT AGREEMENT dated as of March 21, 2002 (this "Agreement") is
entered into among XXXXXXXX INDUSTRIES, INC., a Delaware corporation
("Xxxxxxxx"), NP AEROSPACE LIMITED, a company incorporated in England and Wales
with registered number 34724080 ("NP Aerospace"), XXXXXX XXXXXXX ENTERPRISES,
INC., an Indiana corporation ("Xxxxxxx"; Xxxxxxxx, XX Aerospace and Xxxxxxx are
collectively referred to herein as the "Borrowers" and individually as a
"Borrower"), the financial institutions that are or may from time to time become
parties hereto (together with their respective successors and assigns, the
"Banks") and LASALLE BANK NATIONAL ASSOCIATION (in its individual capacity,
"LaSalle"), as agent and security trustee for the Banks.
WHEREAS, the Banks have agreed to make available to the Borrowers a
revolving credit facility (which includes letters of credit) upon the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties hereto agree as follows:
DEFINITIONS
Definitions. When used herein the following terms shall have the following
meanings:
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Account Debtor means any Person who is obligated to Borrower under an
Account Receivable.
Account Receivable means, with respect to any Person, any right of such
person to payment for goods sold or leased or for services rendered, whether or
not evidenced by an instrument or chattel paper.
Acquisition means any transaction or series of related transactions for
the purpose of or resulting, directly or indirectly, in (a) the acquisition of
all or substantially all of the assets of a Person, or of all or substantially
all of any business or division of a Person, (b) the acquisition of in excess of
50% of the capital stock, partnership interests, membership interests or equity
of any Person, or otherwise causing any Person to become a Subsidiary, or (c) a
merger or consolidation or any other combination with another Person (other than
a Person that is a Subsidiary).
Affected Loan - see Section 8.3.
Affiliate of any Person means (i) any other Person which, directly or
indirectly, controls or is controlled by or is under common control with such
Person and (ii) any officer or director of such Person. A Person shall be deemed
to be "controlled by" any other Person if such Person possesses, directly or
indirectly, power to vote 5% or more of the securities (on a fully diluted
basis) having ordinary voting power for the election of directors or managers or
power to direct or cause the direction of the management and policies of such
Person whether by contract or otherwise.
Agent means LaSalle in its capacity as agent for the Banks hereunder
and any successor thereto in such capacity.
Agreement - see the Preamble.
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Asset Sale means the sale, lease, assignment or other transfer for
value (each a "Disposition") by any Loan Party to any Person (other than another
Loan Party) of any asset or right of such Loan Party other than (a) the
Disposition of any asset which has been damaged, become obsolete, worn out or no
longer useable or useful in the context of the Borrowers' businesses, (b) the
sale or lease of inventory in the ordinary course of business and (c) the sale
of that certain real property of the Borrowers located at 00000 Xxxxxxxxxxxx
Xxxx., Xxxxxxxx, Xxxxxx.
Assignment Agreement - see Section 14.9.1.
Attorney Costs means, with respect to any Person, all reasonable fees
and charges of any counsel to such Person, the reasonable allocable cost (but
excluding overhead and corporate administrative charges) of internal legal
services of such Person, all reasonable disbursements of such internal counsel
and all court costs and similar legal expenses.
Bank - see the Preamble. References to the "Banks" shall include the
Issuing Bank; for purposes of clarification only, to the extent that LaSalle (or
any successor Issuing Bank) may have any rights or obligations in addition to
those of the other Banks due to its status as Issuing Bank, its status as such
will be specifically referenced.
Bank Parties means each of the Banks, the Agent and the Security
Trustee.
Base Rate means at any time the higher of (a) the Federal Funds Rate
plus 0.5% and (b) the Prime Rate.
Base Rate Loan means any Loan which bears interest at or by reference
to the Base Rate.
Base Rate Margin - see the Pricing Schedule.
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Borrower or Borrowers - see the Preamble.
Borrower Representative means Xxxxxxxx in its capacity as borrower
representative pursuant to Section 2.2.4.
Borrowing Base means an amount equal to the total of (a) 80% of the
unpaid amount (net of such reserves and allowances as the Agent deems necessary
in its reasonable discretion) of all Eligible Domestic Accounts Receivable plus
(b) 70% of the unpaid amount (net of such reserves and allowances as the Agent
deems necessary in its reasonable discretion) of all Eligible Foreign Accounts
Receivable plus (c) the lesser of (i) 50% of the value of all Eligible Domestic
Inventory valued at the lower of cost or market (net of such reserves and
allowances as the Agent deems necessary in its reasonable discretion) and (ii)
$2,500,000 plus (d) the lesser of (i) 40% of the value of all Eligible Foreign
Inventory valued at the lower of cost or market (net of such reserves and
allowances as the Agent deems necessary in its reasonable discretion) and (ii)
$750,000 plus (e) 100% of the amount of the Fixed Asset Availability.
Borrowing Base Certificate means a certificate substantially in the
form of Exhibit F.
Business Day means any day on which LaSalle is open for commercial
banking business in Chicago, Illinois and, in the case of a Business Day which
relates to a LIBOR Loan, on which dealings are carried on in the London
interbank eurodollar market.
Capital Expenditures means all expenditures which, in accordance with
GAAP, would be required to be capitalized and shown on the consolidated balance
sheet of the Borrowers and their Subsidiaries, but excluding expenditures made
in connection with the replacement, substitution or restoration of assets to the
extent financed (i) from insurance proceeds (or other similar recoveries) paid
on account of the loss of or damage to the assets being replaced or restored or
(ii) with awards of compensation arising from the taking by eminent domain or
condemnation of the assets being replaced.
Capital Lease means, with respect to any Person, any lease of (or other
agreement conveying the right to use) any real or personal property by such
Person that, in conformity with GAAP, is accounted for as a capital lease on the
balance sheet of such Person.
Cash Collateralize means to deliver cash collateral to the Agent, to be
held as cash collateral for outstanding Letters of Credit, pursuant to
documentation satisfactory to the Agent, Derivatives of such term have
corresponding meanings.
Cash Equivalent Investment means, at any time, (a) any evidence of
Debt, maturing not more than one year after such time, issued or guaranteed by
the United States Government or any agency thereof, (b) commercial paper,
maturing not more than one year from the date of issue, or corporate demand
notes, in each case (unless issued by a Bank or its holding company) rated at
least A-l by Standard & Poor's Ratings Group, a division of the XxXxxx-Xxxx
Companies or P-l by Xxxxx'x Investors Service, Inc., (c) any certificate of
deposit (or time deposits represented by such certificates of deposit) or
banker's acceptance, maturing not more than one year after such time, or
overnight Federal Funds transactions that are issued or sold by any Bank or its
holding company or by a commercial banking institution that is a member of the
Federal Reserve System and has a combined capital and surplus and undivided
profits of not less than $500,000,000 and (d) any repurchase agreement entered
into with any Bank (or other commercial banking institution of the stature
referred to in clause (c)) which (i) is secured by a fully perfected security
interest in any obligation of the type described in any of clauses (a) through
(c) and (ii) has a market value at the time such repurchase agreement is entered
into of not less than 100% of the repurchase obligation of such Bank (or other
commercial banking institution) thereunder.
CERCLA - see Section 9.15.
Closing Date - see Section 11.1.
Code means the Internal Revenue Code of 1986, as amended.
Collateral Access Agreement means an agreement in form and substance
reasonably satisfactory to the Agent pursuant to which a lessor of real property
on which collateral is stored or otherwise located, or a warehouseman, processor
or other bailee of Inventory, acknowledges the Liens of the Agent and/or the
Security Trustee and waives any Liens held by such Person on such property, and,
in the case of any such agreement with a lessor, permits the Agent and/or the
Security Trustee access to and use of such real property for a reasonable amount
of time following the occurrence and during the continuance of an Event of
Default to assemble, complete and sell any collateral stored or otherwise
located thereon.
Collateral Documents means the Security Agreement, each Mortgage, each
Pledge Agreement, the Foreign Collateral Documents and any other agreement or
instrument pursuant to which any Loan Party or any other Person grants
collateral to the Agent and/or the Security Trustee for the benefit of the
Banks.
Commitment means, as to any Bank, such Bank's commitment to make Loans,
and to issue or participate in Letters of Credit, under this Agreement. The
initial amount of each Bank's Pro Rata Share of the Revolving Commitment Amount
is set forth on Schedule 2.1.
Computation Period means each period of four consecutive Fiscal
Quarters ending on the last day of a Fiscal Quarter.
Consolidated Net Income means, with respect to the Borrowers and their
Subsidiaries for any period, the net income (or loss) of the Borrowers and their
Subsidiaries for such period, excluding any gains from Asset Sales, any
extraordinary gains and any gains from discontinued operations, all as
determined in accordance with GAAP.
Contra Accounts shall mean the Contra Accounts described in the
definition of Eligible Domestic Account Receivable.
Controlled Group means all members of a controlled group of
corporations and all members of a controlled group of trades or businesses
(whether or not incorporated) under common control which, together with the
Borrowers, are treated as a single employer under Section 414 of the Code or
Section 4001 of ERISA.
Debt of any Person means, without duplication, (a) all indebtedness of
such Person for borrowed money, whether or not evidenced by bonds, debentures,
notes or similar instruments, (b) all obligations of such Person as lessee under
Capital Leases which have been or should be recorded as liabilities on a balance
sheet of such Person in accordance with GAAP, (c) all obligations of such Person
to pay the deferred purchase price of property or services (excluding trade
accounts payable in the ordinary course of business), (d) all indebtedness
secured by a Lien on the property of such Person, whether or not such
indebtedness shall have been assumed by such Person, (e) all obligations,
contingent or otherwise, with respect to the face amount of all letters of
credit (whether or not drawn) and banker's acceptances issued for the account of
such Person (including the Letters of Credit), (f) all Hedging Obligations of
such Person, (g) all Suretyship Liabilities of such Person and (h) all Debt of
any partnership of which such Person is a general partner.
Debt to be Repaid means Debt listed on Schedule 11.1.
Designated Proceeds - see Section 6.2.2(a).
Disposal - see the definition of "Release".
Dollar and the sign "$" mean lawful money of the United States of
America.
Domestic Borrower means a Borrower which is organized under the laws of
the United States of America or any state or territory thereof or the District
of Columbia.
Domestic Subsidiary means a subsidiary organized under the laws of the
United States of America or any state or territory thereof or the District of
Columbia.
EBITDA means, for any period, Consolidated Net Income for such period
plus, to the extent deducted in determining such Consolidated Net Income,
Interest Expense, income tax expense, depreciation and amortization for such
period.
Eligible Domestic Account Receivable means an Account Receivable owing
to a Domestic Borrower which meets each of the following requirements:
(1) it arises from the sale of goods or the rendering of
services by such Borrower; and if it arises from the sale of goods, (i)
such goods comply with such Account Debtor's specifications (if any)
and have been delivered to such Account Debtor and (ii) such Borrower
has possession of, or if reasonably requested by the Agent has
delivered to the Agent, delivery receipts evidencing such delivery;
(2) it (a) is subject to a perfected Lien in favor of the
Agent or the Security Trustee and (b) is not subject to any other
assignment, claim or Lien;
(3) it is a valid, legally enforceable and unconditional
obligation of the Account Debtor with respect thereto, and is not
subject to any offset (including any possible right of offset existing
by reason of accounts payable owed by such Borrower to such Account
Debtor ("Contra Accounts")), counterclaim, credit, allowance, discount,
rebate or adjustment by the Account Debtor with respect thereto, or to
any claim by such Account Debtor denying liability thereunder in whole
or in part; provided that any Contra Account shall only be ineligible
to the extent of that portion of such account which is less than or
equal to the amount owed by such Borrower to such Account Debtor
(provided, further that in the event any discount is granted, the
Account Receivable shall only be ineligible pursuant to this clause (3)
to the extent of the same);
(4) there is no bankruptcy, insolvency or liquidation
proceeding by or against the Account Debtor (or any Subsidiary or
Affiliate thereof) with respect thereto;
(5) the Account Debtor with respect thereto is a resident or
citizen of, and is located within, the United States, Canada, Mexico or
the European Union, unless the sale of goods or services giving rise to
such Account Receivable is on letter of credit, banker's acceptance or
other credit support terms reasonably satisfactory to the Agent;
(6) it is not an Account Receivable arising from a "sale on
approval," "sale or return," "consignment" or "xxxx and hold" or
subject to any other repurchase or return agreement;
(7) it is not an Account Receivable with respect to which
possession and/or control of the goods sold giving rise thereto is
held, maintained or retained by such Borrower (or by any agent or
custodian of such Borrower) for the account of or subject to further
and/or future direction from the Account Debtor with respect thereto;
(8) it arises in the ordinary course of business of such
Borrower;
(9) if the Account Debtor is the United States or any
department, agency or instrumentality thereof, such Borrower has
assigned its right to payment of such Account Receivable to the Agent
pursuant to the Assignment of Claims Act of 1940 and any other steps
necessary to perfect the Agent's liens thereon have been complied with
to the Agent's satisfaction with respect to such Account Receivable;
(10) if such Borrower maintains a credit limit for an Account
Debtor, the aggregate dollar amount of Accounts Receivable due from
such Account Debtor, including such Account Receivable, does not exceed
such credit limit;
(11) if the Account Receivable is evidenced by chattel paper
or an instrument, the originals of such chattel paper or instrument
shall have been endorsed and/or assigned and delivered to the Agent in
a manner satisfactory to the Agent;
(12) such Account Receivable is not more than 90 days past the
original invoice date thereof, in each case according to the original
terms of sale;
(13) it is not an Account Receivable with respect to an
Account Debtor that is located in any jurisdiction which has adopted a
statute or other requirement with respect to which any Person that
obtains business from within such jurisdiction must file a notice of
business activities report or make any other required filings in a
timely manner in order to enforce its claims in such jurisdiction's
courts unless such notice of business activities report has been duly
and timely filed or such Borrower is exempt from filing such report and
has provided the Agent with satisfactory evidence of such exemption;
(14) the Account Debtor with respect thereto is not such
Borrower or an Affiliate of such Borrower;
(15) it is not owed by an Account Debtor with respect to which
25% or more of the aggregate amount of outstanding Accounts Receivable
owed at such time by such Account Debtor is classified as ineligible
under clause (12) of this definition;
(16) if the aggregate amount of all Accounts Receivable owed
by the Account Debtor thereon exceeds 25% (or 35% in the case of
Thiokol Propulsion) of the aggregate amount of all Accounts Receivable
at such time, then all Accounts Receivable owed by such Account Debtor
in excess of such amount shall be deemed ineligible; and
(17) such Account Receivable is not an Account Receivable
which immediately prior to the issuance of a credit by such Borrower to
the applicable Account Debtor was more than 90 days past the original
invoice date thereof.
An Account Receivable which is at any time an Eligible Domestic Account
Receivable, but which subsequently fails to meet any of the foregoing
requirements, shall forthwith cease to be an Eligible Domestic Account
Receivable. Further, with respect to any Account Receivable, if the Agent or the
Required Banks at any time hereafter determine in their reasonable discretion
that the prospect of payment or performance by the Account Debtor with respect
thereto is materially impaired for any reason whatsoever, such Account
Receivable shall cease to be an Eligible Domestic Account Receivable after
notice of such determination is given to the Borrower Representative.
Eligible Domestic Inventory means Inventory of a Borrower which meets
each of the following requirements:
(1) it (a) is subject to a perfected Lien in favor of the
Agent and (b) is not subject to any other assignment, claim or Lien;
(2) it is salable;
(3) it is in the possession and control of such Borrower and
it is stored and held in facilities owned by such Borrower or, if such
facilities are not so owned, the Agent is in possession of a Collateral
Access Agreement with respect thereto; provided that with respect to
the following facilities, Collateral Access Agreements shall not be
required to be delivered on the Closing Date but shall be delivered
within 60 days of such date: Santa Fe Springs, California; Kansas City,
Missouri; and Palmyra, New York (it being understood that until the
expiration of such 60 day grace period, Inventory at the above
described locations shall be deemed to comply with the requirements of
this clause (3) notwithstanding the failure to deliver such Collateral
Access Agreements);
(4) it is not Inventory produced in violation of the
Fair Labor Standards Act and subject to the "hot goods" provisions
contained in Title 29 U.S.C.ss.215;
(5) it is not subject to any agreement which would restrict
the Agent's or the Security Trustee's ability to sell or otherwise
dispose of such Inventory, unless such Inventory consists of finished
goods Inventory which has been purchased by such Borrower for the
express purpose of fulfilling bona fide purchase orders from the United
States or any department, agency or instrumentality thereof, and such
inventory contains proprietary technology, access to which is
restricted due to its classified nature;
(6) it is located in the United States or in any territory
or possession of the United States that has adopted Article 9 of the
Uniform Commercial Code;
(7) it is not "in transit" to such Borrower or held by such
Borrower on consignment;
(8) it is not work-in-process or Tooling Inventory;
(9) it is not packaging or packaging related materials; and
(10) the Agent shall not have determined in its discretion
that it is unacceptable due to age, type, category, quality, quantity
and/or any other reason whatsoever.
Inventory which is at any time Eligible Domestic Inventory but which
subsequently fails to meet any of the foregoing requirements shall forthwith
cease to be Eligible Domestic Inventory.
Eligible Foreign Account Receivable means an Account Receivable owing
by an Account Debtor located in the United Kingdom, the United States, Canada,
Mexico or the European Union to a Borrower which is located in the United
Kingdom; provided, that such Account Receivable meets each of the requirements
set forth in clauses (1) through (4) and (6) through (17) of the definition of
"Eligible Domestic Account Receivable" and that, at the request of the Agent,
such Accounts Receivable are insured pursuant to policies reasonably
satisfactory to the Agent. An Account Receivable which is at any time an
Eligible Foreign Account Receivable, but which subsequently fails to meet any of
the foregoing requirements, shall forthwith cease to be an Eligible Foreign
Account Receivable. Further, with respect to any Account Receivable, if the
Agent or the Required Banks at any time hereafter determine in their discretion
that the prospect of payment or performance by the Account Debtor with respect
thereto is materially impaired for any reason whatsoever, such Account
Receivable shall cease to be an Eligible Foreign Account Receivable after notice
of such determination is given to the Borrower Representative. For purposes of
this definition, Accounts Receivable shall not be deemed to meet the requirement
of subsection (a) of clause (1) described above unless the Borrowers shall have
executed and delivered to Agent all Foreign Collateral Documents (which shall
include such opinions of counsel as may be requested by the Agent) in favor of
the Agent and/or Security Trustee as the Agent and/or Security Trustee may
require to obtain and perfect a Lien in such Accounts Receivable and the
Borrowers shall have taken such other action as the Agent shall have reasonably
requested to create and perfect such Lien.
Eligible Foreign Inventory means Inventory of a Borrower which is
located in the United Kingdom and which meets each of the requirements set forth
in clauses (1) through (5) and (7) through (10) of the definition of "Eligible
Domestic Inventory". Inventory which is at any time Eligible Foreign Inventory
but which subsequently fails to meet any of the foregoing requirements shall
forthwith cease to be Eligible Foreign Inventory. For purposes of this
definition, Inventory shall not be deemed to meet the requirement of subsection
(a) of clause (1) described above unless the Borrowers shall have executed and
delivered to Agent all Foreign Collateral Documents (which shall include such
opinions of counsel as may be requested by the Agent) in favor of the Agent
and/or Security Trustee as the Agent and/or Security Trustee may require to
obtain and perfect a Lien in such Inventory and the Borrowers shall have taken
such other action as the Agent shall have reasonably requested to create and
perfect such Lien.
Environmental Claims means all claims, however asserted, by any
governmental, regulatory or judicial authority or other Person alleging
potential liability or responsibility for violation of any Environmental Law, or
for release or injury to the environment.
Environmental Laws means all present or future federal, state or local
laws, statutes, common law duties, rules, regulations, ordinances and codes,
together with all administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any governmental authority,
in each case relating to Environmental Matters.
Environmental Matters means any matter arising out of or relating to
health and safety, or pollution or protection of the environment or workplace,
including any of the foregoing relating to the presence, use, production,
generation, handling, transport, treatment, storage, disposal, distribution,
discharge, release, control or cleanup of any Hazardous Substance.
ERISA means the Employee Retirement Income Security Act of 1974.
Event of Default means any of the events described in Section 12.1.
Excess Cash Flow means, for any period, the remainder of EBITDA for
such period,
Less the sum, without duplication, of cash payments made in such period
with respect to Capital Expenditures,
plus
all federal, state, local and foreign income taxes paid in cash by the Borrowers
and their Subsidiaries during such period (less any cash refunds or cash credits
received by Borrowers or their Subsidiaries during such period),
plus
cash Interest Expense of the Borrowers and their Subsidiaries during such
period.
Federal Funds Rate means, for any day, the rate set forth in the weekly
statistical release designated as H.15(519), or any successor publication,
published by the Federal Reserve Bank of New York (including any such successor
publication, "H.15(519)") on the preceding Business Day opposite the caption
"Federal Funds (Effective)"; or, if for any relevant day such rate is not so
published on any such preceding Business Day, the rate for such day will be the
arithmetic mean as determined by the Agent of the rates for the last transaction
in overnight Federal funds arranged prior to 9:00 A.M. (New York City time) on
that day by each of three leading brokers of Federal funds transactions in New
York City selected by the Agent.
Fiscal Quarter means a fiscal quarter of a Fiscal Year.
Fiscal Year means the fiscal year of the Borrowers and their
Subsidiaries, which period shall be the 12-month period ending on December 31 of
each year. References to a Fiscal Year with a number corresponding to any
calendar year (e.g., "Fiscal Year 2001") refer to the Fiscal Year ending on
December 31 of such calendar year.
Fixed Asset Availability means $2,750,000; provided, that at such time
as NP Aerospace shall have delivered to Agent a Mortgage with respect to its
real property located in Coventry, England (together with such additional
documents, agreements, opinions and certificates relating thereto as may be
requested by Agent), Fixed Asset Availability shall mean $3,500,000 (as such
amount shall from time to time be reduced as described in the following
proviso); provided further, that on the last day of each Fiscal Quarter the
applicable Fixed Asset Availability amount shall be automatically and
permanently reduced by $125,000.
Foreign Collateral Documents means all pledge agreements, security
agreements, guaranties, debentures, indentures, financing statements, opinions,
mortgages, deeds, filings, recordings, notarial instruments, hypothecations and
any other agreements or instruments pursuant to which any Borrower, Foreign
Subsidiary or other Person grants collateral to the Agent and/or the Security
Trustee for the benefit of the Banks.
Foreign Subsidiary means any subsidiary which is not a Domestic
Subsidiary.
FRB means the Board of Governors of the Federal Reserve System or any
successor thereto.
GAAP means generally accepted accounting principles set forth from time
to time in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within the U.S. accounting
profession), which are applicable to the circumstances as of the date of
determination; provided, that, with respect to the financial statements of NP
Aerospace and of any other Foreign Subsidiaries (if any) "GAAP" shall mean the
generally accepted accounting principles in the relevant foreign jurisdiction
which are set forth from time to time in the opinions and pronouncements of the
applicable accounting standards board (or similar agency) of such foreign
jurisdiction, which are applicable to the circumstances as of the date of
determination.
Group - see Section 2.2.1.
Guaranteed Liabilities - see Section 15.1.
Guaranty means a guaranty substantially in the form of Exhibit C.
Hazardous Substances - see Section 9.15.
Hedging Agreement means any interest rate, currency or commodity swap
agreement, cap agreement or collar agreement, and any other agreement or
arrangement, in each case entered into with LaSalle or any of its Affiliates,
and designed to protect a Person against fluctuations in interest rates,
currency exchange rates or commodity prices.
Hedging Obligation means, with respect to any Person, any liability of
such Person under any Hedging Agreement.
Interest Expense means for any period the consolidated interest expense
of the Borrowers and their Subsidiaries for such period (including all imputed
interest on Capital Leases).
Interest Period means, as to any LIBOR Loan, the period commencing on
the date such Loan is borrowed or continued as, or converted into, a LIBOR Loan
and ending on the date one, two or three months thereafter as selected by the
Borrowers pursuant to Section 2.2.2 or 2.2.3, as the case may be; provided that:
(i) if any Interest Period would otherwise
end on a day that is not a Business Day, such
Interest Period shall be extended to the following
Business Day unless the result of such extension
would be to carry such Interest Period into another
calendar month, in which event such Interest Period
shall end on the preceding Business Day;
(ii) any Interest Period that begins on a
day for which there is no numerically corresponding
day in the calendar month at the end of such Interest
Period shall end on the last Business Day of the
calendar month at the end of such Interest Period;
and
(iii) the Borrowers may not select any
Interest Period for a Revolving Loan which would
extend beyond the scheduled Termination Date.
Inventory has the meaning assigned to such term in the Uniform
Commercial Code as in effect in the State of Illinois on the date hereof.
Investment means, relative to any Person, any investment in another
Person, whether by acquisition of any debt or equity security, by making any
loan or advance or by becoming obligated with respect to a Suretyship Liability
in respect of obligations of such other Person (other than travel and similar
advances to employees in the ordinary course of business).
Issuing Bank means LaSalle in its capacity as the issuer of Letters of
Credit hereunder and its successors and assigns in such capacity.
LaSalle - see the Preamble.
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L/C Application means, with respect to any request for the issuance of
a Letter of Credit, a letter of credit application in the form being used by the
Issuing Bank at the time of such request for the type of letter of credit
requested.
LC Fee Rate - see the Pricing Schedule.
Lender Party - see Section 15.1.
Letter of Credit - see Section 2.1.3.
Leverage Ratio shall mean, as of the last day of any Fiscal Quarter,
the ratio of (a) the Total Liabilities of the Borrowers and their Subsidiaries
as of such day to (b) the Tangible Net Worth of the Borrowers and their
Subsidiaries as of such day.
LIBOR Reserve Percentage means, with respect to any LIBOR Loan for any
Interest Period, a percentage (expressed as a decimal) equal to the daily
average during such Interest Period of the percentage in effect on each day of
such Interest Period, as prescribed by the FRB, for determining the aggregate
maximum reserve requirements applicable to "Eurocurrency Liabilities" pursuant
to Regulation D or any other then applicable regulation of the FRB which
prescribes reserve requirements applicable to "Eurocurrency Liabilities" as
presently defined in Regulation D.
LIBOR Loan means any Loan which bears interest at a rate determined by
reference to the LIBOR Rate (Reserve Adjusted).
LIBOR Margin - see the Pricing Schedule.
LIBOR Office means with respect to any Bank the office or offices of
such Bank which shall be making or maintaining the LIBOR Loans of such Bank
hereunder. A LIBOR Office of any Bank may be, at the option of such Bank, either
a domestic or foreign office.
LIBOR Rate means, with respect to any LIBOR Loan for any Interest
Period, a rate per annum equal to the greater of (i) the offered rate for
deposits in Dollars for a period equal or comparable to such Interest Period
which appears on Telerate page 3750 as of 11:00 A.M. (London time) two Business
Days prior to the first day of such Interest Period and (ii) 1.75%. "Telerate
Page 3750" means the display designated as "Page 3750" on the Telerate Service
(or such other page as may replace page 3750 on that service or such other
service as may be nominated by the British Bankers' Association as the
information vendor for the purpose of displaying British Bankers' Association
Interest Settlement Rates for Dollar deposits).
LIBOR Rate (Reserve Adjusted) means, with respect to any LIBOR Loan for
any Interest Period, a rate per annum (rounded upwards, if necessary, to the
nearest 1/16th of 1%) determined pursuant to the following formula:
[OBJECT OMITTED]
Lien means, with respect to any Person, any interest granted by such
Person in any real or personal property, asset or other right owned or being
purchased or acquired by such Person which secures payment or performance of any
obligation and shall include any mortgage, lien, encumbrance, charge or other
security interest of any kind, whether arising by contract, as a matter of law,
by judicial process or otherwise.
Loan Documents means this Agreement, the Notes, the Guaranty (if any),
the L/C Applications and the Collateral Documents.
Loan Party means, without duplication, each Borrower and each
Subsidiary of each Borrower.
Loans means Revolving Loans.
-----
Mandatory Prepayment Event - see Section 6.2.2(a).
-------------------------- ----------------
Margin Stock means any "margin stock" as defined in Regulation U.
Material Adverse Effect means (a) a material adverse change in, or a
material adverse effect upon, the financial condition, operations, assets,
business, properties or prospects of the Borrowers and their Subsidiaries taken
as a whole, (b) a material impairment of the ability of any Loan Party to
perform any of its obligations under any Loan Document or (c) a material adverse
effect upon any substantial portion of the collateral under the Collateral
Documents or upon the legality, validity, binding effect or enforceability
against any Loan Party of any Loan Document.
Minuteman Agreement means, collectively, the Long-Term Pricing
Agreement dated as of October 26, 2000 between Thiokol Propulsion (from Cordant
Technologies) ("Thiokol") and Xxxxxxxx together with the four purchase orders
between Thiokol and Xxxxxxxx each dated November 1, 2001 for an aggregate amount
of $13,035,697.
Mortgage means a mortgage, deed of trust, leasehold mortgage or similar
instrument granting the Agent a Lien on real property of any Borrower or any of
its Subsidiaries.
Multiemployer Pension Plan means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which any Borrower or any member of the
Controlled Group may have any liability.
Net Cash Proceeds means:
-----------------
(a) with respect to any Asset Sale the aggregate cash
proceeds (including cash proceeds received by way of deferred
payment of principal pursuant to a note, installment
receivable or otherwise, but only as and when received)
received by any Loan Party pursuant to such Asset Sale net of
(i) the direct costs relating to such sale, transfer or other
disposition (including sales commissions and legal, accounting
and investment banking fees), (ii) taxes paid or reasonably
estimated by the Borrowers to be payable as a result thereof
(after taking into account any available tax credits or
deductions and any tax sharing arrangements) and (iii) amounts
required to be applied to the repayment of any Debt secured by
a Lien on the asset subject to such Asset Sale (other than the
Loans);
(b) with respect to any issuance of equity
securities, the aggregate cash proceeds received by any Loan
Party pursuant to such issuance, net of the direct costs
relating to such issuance (including sales and underwriter's
commission); and
(c) with respect to any issuance of Debt, the
aggregate cash proceeds received by any Loan Party pursuant to
such issuance, net of the direct costs of such issuance
(including up-front fees and placement fees).
Note - see Section 3.1.
Operating Lease means any lease of (or other agreement conveying the
right to use) any real or personal property by any Loan Party, as lessee, other
than any Capital Lease.
PBGC means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
Pension Plan means a "pension plan", as such term is defined in Section
3(2) of ERISA, which is subject to Title IV of ERISA (other than a Multiemployer
Pension Plan), and to which the Borrowers or any member of the Controlled Group
may have any liability, including any liability by reason of having been a
substantial employer within the meaning of Section 4063 of ERISA at any time
during the preceding five years, or by reason of being deemed to be a
contributing sponsor under Section 4069 of ERISA.
Person means any natural person, corporation, partnership, trust,
limited liability company, association, governmental authority or unit, or any
other entity, whether acting in an individual, fiduciary or other capacity.
Pledge Agreement means a pledge agreement in substantially the form of
Exhibit E.
Pre-Tax Earnings means, for any period, Consolidated Net Income for
such period plus, to the extent deducted in determining such Consolidated Net
Income, income tax expense; provided that, a goodwill adjustment amount of
$5,351,000 shall be added to such calculation of Pre-Tax Earnings for the
Computation Periods of March 31, 2002 and June 30, 2002.
Prime Rate means, for any day, the rate of interest in effect for such
day as publicly announced from time to time by LaSalle as its prime rate
(whether or not such rate is actually charged by LaSalle). Any change in the
Prime Rate announced by LaSalle shall take effect at the opening of business on
the day specified in the public announcement of such change.
Pro Rata Share means, with respect to any Bank, the percentage
specified opposite such Bank's name on Schedule 2.1 hereto, as adjusted from
time to time in accordance with the terms hereof.
RCRA - see Section 9.15.
Regulation D means Regulation D of the FRB.
Regulation U means Regulation U of the FRB.
Release has the meaning specified in CERCLA and the term "Disposal" (or
"Disposed") has the meaning specified in RCRA; provided that in the event either
CERCLA or RCRA is amended so as to broaden the meaning of any term defined
thereby, such broader meaning shall apply as of the effective date of such
amendment; and provided, further, that to the extent that the laws of a state
wherein any affected property lies establish a meaning for "Release" or
"Disposal" which is broader than is specified in either CERCLA or RCRA, such
broader meaning shall apply.
Required Banks means Banks having Pro Rata Shares aggregating 51% or
more.
Revolving Commitment Amount means $10,000,000, as reduced from time to
time pursuant to Section 6.1.
Revolving Loan - see Section 2.1.1.
Revolving Outstandings means, at any time, the sum of (a) the aggregate
principal amount of all outstanding Revolving Loans, plus (b) the Stated Amount
of all Letters of Credit.
SEC means the Securities and Exchange Commission or any other
governmental authority succeeding to any of the principal functions thereof.
Security Agreement means a security agreement substantially in the form
of Exhibit D.
Security Trustee means LaSalle in its capacity as trustee for the
Banks, and any successor security trustee in such capacity.
Senior Debt means all Debt of the Borrowers and their Subsidiaries
other than Subordinated Debt.
Stated Amount means, with respect to any Letter of Credit at any date
of determination, (a) the maximum aggregate amount available for drawing
thereunder under any and all circumstances plus (b) the aggregate amount of all
unreimbursed payments and disbursements under such Letter of Credit.
Stockholders' Equity means, for the Borrowers and their Subsidiaries on
a consolidated basis (without duplication), the sum of the capital stock,
capital in excess of par and stated value of shares of its capital stock,
retained earnings and any other account, including any special account for
common stock subject to redemption, which, in accordance with GAAP, constitutes
stockholders' equity (or such other appropriate account description) determined
in accordance with GAAP; provided, that any determination of Stockholders Equity
shall be exclusive of any "excess pension liability" as set forth on the
consolidated financial statements of the Borrowers.
Subordinated Debt means any unsecured Debt of a Borrower which has
subordination terms, covenants, pricing and other terms which have been approved
in writing, in advance by the Required Banks.
Subsidiary means, with respect to any Person, a corporation,
partnership, limited liability company or other entity of which such Person
and/or its other Subsidiaries own, directly or indirectly, such number of
outstanding shares or other ownership interests as have more than 50% of the
ordinary voting power for the election of directors or other managers of such
corporation, partnership, limited liability company or other entity. Unless the
context otherwise requires, each reference to Subsidiaries herein shall be a
reference to Subsidiaries of the Borrowers.
Suretyship Liability means any agreement, undertaking or arrangement by
which any Person guarantees, endorses or otherwise becomes or is contingently
liable upon (by direct or indirect agreement, contingent or otherwise, to
provide funds for payment, to supply funds to or otherwise to invest in a
debtor, or otherwise to assure a creditor against loss) any indebtedness,
obligation or other liability of any other Person (other than by endorsements of
instruments in the course of collection), or guarantees the payment of dividends
or other distributions upon the shares of any other Person. The amount of any
Person's obligation in respect of any Suretyship Liability shall (subject to any
limitation set forth therein) be deemed to be the principal amount of the debt,
obligation or other liability supported thereby.
Tangible Net Worth means, at any time, (a) Stockholders' Equity minus,
(b) the value of the Borrowers' and their subsidiaries' consolidated unamortized
debt discount and expense, capitalized transaction costs, prepaid expenses,
deposits, unamortized deferred taxes and other charges, goodwill, organization
costs, noncompetition agreements, patents, copyrights, trademarks, other
intangible items and amounts due from officers, employees, stockholders and
Affiliates and other assets which are not specifically identified on the balance
sheet of the Borrowers delivered to the Banks in accordance with Section 10.1
hereof and which are determined to be intangible items in the reasonable
judgment of the Agent, all determined on a consolidated basis in accordance with
GAAP.
Termination Date means the earlier to occur of (a) March 20, 2003 or
(b) such other date on which the Commitments terminate pursuant to Section 6 or
12.
Tooling Inventory means that amount actually expended by a Borrower to
produce (or to have produced by third parties) tooling in connection with such
Borrower's production of goods for its customers.
Total Debt means all Debt of the Borrowers and their Subsidiaries,
determined on a consolidated basis, excluding (i) contingent obligations in
respect of Suretyship Liabilities (except to the extent constituting Suretyship
Liabilities in respect of Debt of a Person other than any Loan Party), (ii)
Hedging Obligations and (iii) Debt of any Borrower to its Subsidiaries and Debt
of Subsidiaries of any Borrower to such Borrower or to other Subsidiaries of
such Borrower.
Total Liabilities shall mean all liabilities (including, without
limitation, Debt) of the Borrowers and their Subsidiaries on a consolidated
basis which are or should be reflected on a consolidated balance sheet of the
Borrowers and their Subsidiaries, all as determined in accordance with GAAP.
Trust Property means all or any of the assets, rights, powers,
authorities and discretions at any time subject to or expressed to be subject to
the security from time to time constituted by or arising pursuant to the
Collateral Documents or vested in the Security Trustee or given under or
pursuant to the Collateral Documents including all income and other sums at any
time received or receivable by the Security Trustee in respect thereof.
Type of Loan or Borrowing - see Section 2.2.1. The types of Loans or
borrowings under this Agreement are as follows: Base Rate Loans or borrowings
and LIBOR Loans or borrowings.
Unmatured Event of Default means any event that, if it continues
uncured, will, with lapse of time or notice or both, constitute an Event of
Default.
Valley Forge Litigation - see Section 12.1.8.
----------------------- --------------
Wholly-Owned Subsidiary means, as to any Person, another Person all of
the shares of capital stock or other ownership interests of which (except
directors' qualifying shares) are at the time directly or indirectly owned by
such Person and/or another Wholly-Owned Subsidiary of such Person.
Other Interpretive Provisions. 20.1.1.1 The meanings of defined terms are
equally applicable to the singular and plural forms of the defined terms.
Section, Schedule and Exhibit references are to this Agreement unless otherwise
specified.
The term "including" is not limiting and means "including without limitation."
In the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including"; the words "to" and "until"
each mean "to but excluding", and the word "through" means "to and including."
Unless otherwise expressly provided herein, (i) references to agreements
(including this Agreement) and other contractual instruments shall be deemed to
include all subsequent amendments and other modifications thereto, but only to
the extent such amendments and other modifications are not prohibited by the
terms of any Loan Document, and (ii) references to any statute or regulation
shall be construed as including all statutory and regulatory provisions
amending, replacing, supplementing or interpreting such statute or regulation.
This Agreement and the other Loan Documents may use several different
limitations, tests or measurements to regulate the same or similar matters. All
such limitations, tests and measurements are cumulative and each shall be
performed in accordance with its terms.
This Agreement and the other Loan Documents are the result of negotiations among
and have been reviewed by counsel to the Agent, the Borrowers, the Banks and the
other parties thereto and are the products of all parties. Accordingly, they
shall not be construed against the Agent or the Banks merely because of the
Agent's or Banks' involvement in their preparation.
Unless otherwise specifically provided herein, any accounting term used in this
Agreement shall have the meaning customarily given such term in accordance with
GAAP.
COMMITMENTS OF THE BANKS; BORROWING, CONVERSION AND
LETTER OF CREDIT PROCEDURES
Commitments. On and subject to the terms and conditions of this Agreement, each
of the Banks, severally and for itself alone, agrees to make loans to, and to
issue or participate in letters of credit for the account of, the Borrowers as
follows: Revolving Loan Commitment. Each Bank will make loans on a revolving
basis ("Revolving Loans") from time to time until the Termination Date in such
Bank's Pro Rata Share of such aggregate amounts as the Borrower Representative
may request from all Banks; provided that the Revolving Outstandings will not at
any time exceed the lesser of (x) the Revolving Commitment Amount and (y) the
Borrowing Base.
L/C Commitment. 20.2 The Issuing Bank will issue letters of credit, in each case
containing such terms and conditions as are permitted by this Agreement and are
reasonably satisfactory to the Issuing Bank (each a "Letter of Credit"), at the
request of the Borrower Representative and for the account of the Borrowers from
time to time before the Termination Date and (b) as more fully set forth in
Section 2.3.2, each Bank agrees to purchase a participation in each such Letter
of Credit; provided, that the Revolving Outstandings will not at any time exceed
the lesser of (x) the Revolving Commitment Amount and (y) the Borrowing Base.
Loan Procedures.
Various Types of Loans. Each Revolving Loan shall be divided into tranches which
is, either a Base Rate Loan or a LIBOR Loan (each a "type" of Loan), as the
Borrower Representative shall specify in the related notice of borrowing or
conversion pursuant to Section 2.2.2 or 2.2.3. LIBOR Loans having the same
Interest Period are sometimes called a "Group" or collectively "Groups". Base
Rate Loans and LIBOR Loans may be outstanding at the same time, provided that
not more than four (4) different Groups of LIBOR Loans shall be outstanding at
any one time. All borrowings, conversions and repayments of Revolving Loans
shall be effected so that each Bank will have a pro rata share (according to its
Pro Rata Share) of all types and Groups of Loans. Borrowing Procedures. The
Borrower Representative shall give written notice or telephonic notice (followed
immediately by written confirmation thereof) to the Agent of each proposed
borrowing not later than (a) in the case of a Base Rate borrowing, 11:00 A.M.,
Chicago time, on the proposed date of such borrowing, and (b) in the case of a
LIBOR borrowing, 11:00 A.M., Chicago time, at least three Business Days prior to
the proposed date of such borrowing. Each such notice shall be effective upon
receipt by the Agent, shall be irrevocable, and shall specify the date, amount
and type of borrowing and, in the case of a LIBOR borrowing, the initial
Interest Period therefor. Promptly upon receipt of such notice, the Agent shall
advise each Bank thereof. Not later than 1:00 P.M., Chicago time, on the date of
a proposed borrowing, each Bank shall provide the Agent at the office specified
by the Agent with immediately available funds covering such Bank's Pro Rata
Share of such borrowing and, so long as the Agent has not received written
notice that the conditions precedent set forth in Section 11 with respect to
such borrowing have not been satisfied, the Agent shall pay over the funds
received by the Agent to the applicable Borrower on the requested borrowing
date. Each borrowing shall be on a Business Day. Each Base Rate borrowing shall
be in an aggregate amount of at least $100,000 and an integral multiple of
$50,000, and each LIBOR borrowing shall be in an aggregate amount of at least
$200,000 and an integral multiple of at least $100,000. Conversion and
Continuation Procedures. 20.3 Subject to Section 2.2.1, the Borrower
Representative may, upon irrevocable written notice to the Agent in accordance
with clause (b) below:
elect, as of any Business Day, to convert any Loans (or any part thereof in an
aggregate amount not less than $200,000 a higher integral multiple of $100,000)
into Loans of the other type; or
elect, as of the last day of the applicable Interest Period, to continue any
LIBOR Loans having Interest Periods expiring on such day (or any part thereof in
an aggregate amount not less than $200,000 or a higher integral multiple of
$100,000) for a new Interest Period;
provided that after giving effect to any prepayment, conversion or continuation,
the aggregate principal amount of each Group of LIBOR Loans shall be at least
$200,000 and an integral multiple of $100,000.
The Borrower Representative shall give written or telephonic (followed
immediately by written confirmation thereof) notice to the Agent of each
proposed conversion or continuation not later than (i) in the case of conversion
into Base Rate Loans, 11:00 A.M., Chicago time, on the proposed date of such
conversion and (ii) in the case of conversion into or continuation of LIBOR
Loans, 11:00 A.M., Chicago time, at least three Business Days prior to the
proposed date of such conversion or continuation, specifying in each case:
the proposed date of conversion or continuation;
the aggregate amount of Loans to be converted or continued;
the type of Loans resulting from the proposed conversion or continuation; and
in the case of conversion into, or continuation of, LIBOR Loans, the duration of
the requested Interest Period therefor.
If upon the expiration of any Interest Period applicable to LIBOR Loans, the
Borrower Representative has failed to select timely a new Interest Period to be
applicable to such LIBOR Loans, the Borrowers shall be deemed to have elected to
convert such LIBOR Loans into Base Rate Loans effective on the last day of such
Interest Period.
The Agent will promptly notify each Bank of its receipt of a notice of
conversion or continuation pursuant to this Section 2.2.3 or, if no timely
notice is provided by the Borrower Representative, of the details of any
automatic conversion.
Any conversion of a LIBOR Loan on a day other than the last day of an Interest
Period therefor shall be subject to Section 8.4.
Appointment of Borrower Representative. Each Borrower hereby designates Xxxxxxxx
as its representative and agent on its behalf for the purposes of issuing
notices hereunder, giving instructions with respect to the disbursement of the
proceeds of the Loans, selecting interest rate options, requesting Letters of
Credit, giving and receiving all other notices and consents hereunder or under
any of the other Loan Documents and taking all other actions (including in
respect of compliance with covenants) on behalf of any Borrower or the Borrowers
under the Loan Documents. The Borrower Representative hereby accepts such
appointment. The Agent and each Bank may regard any notice or other
communication pursuant to any Loan Document from the Chief Executive Officer,
Chief Financial Officer or Controller of the Borrower Representative as a notice
or communication from all of the Borrowers, and may give any notice or
communication required or permitted to be given to any Borrower or the Borrowers
hereunder to the Borrower Representative on behalf of such Borrower or the
Borrowers. Each Borrower agrees that each notice, election, representation and
warranty, covenant, agreement and undertaking made on its behalf by the Borrower
Representative shall be deemed for all purposes to have been made by such
Borrower and shall be binding upon and enforceable against such Borrower to the
same extent as if the same had been made directly by such Borrower.
Letter of Credit Procedures.
L/C Applications. The Borrower Representative shall give notice to the Agent and
the Issuing Bank of the proposed issuance of each Letter of Credit on a Business
Day which is at least three Business Days (or such lesser number of days as the
Agent and the Issuing Bank shall agree in any particular instance in their sole
discretion) prior to the proposed date of issuance of such Letter of Credit.
Each such notice shall be accompanied by an L/C Application, duly executed by
the Borrower Representative and in all respects satisfactory to the Agent and
the Issuing Bank, together with such other documentation as the Agent or the
Issuing Bank may request in support thereof, it being understood that each L/C
Application shall specify, among other things, the date on which the proposed
Letter of Credit is to be issued, the expiration date of such Letter of Credit
(which shall not be later than the earlier to occur of (x) one year after the
date of issuance thereof and (y) thirty days prior to the scheduled Termination
Date) and whether such Letter of Credit is to be transferable in whole or in
part. So long as the Issuing Bank has not received written notice that the
conditions precedent set forth in Section 11 with respect to the issuance of
such Letter of Credit have not been satisfied, the Issuing Bank shall issue such
Letter of Credit on the requested issuance date. The Issuing Bank shall promptly
advise the Agent of the issuance of each Letter of Credit and of any amendment
thereto, extension thereof or event or circumstance changing the amount
available for drawing thereunder. In the event of any inconsistency between the
terms of any L/C Application and the terms of this Agreement, the terms of this
Agreement shall control.
Participations in Letters of Credit. Concurrently with the issuance of each
Letter of Credit, the Issuing Bank shall be deemed to have sold and transferred
to each other Bank, and each other Bank shall be deemed irrevocably and
unconditionally to have purchased and received from the Issuing Bank, without
recourse or warranty, an undivided interest and participation, to the extent of
such other Bank's Pro Rata Share, in such Letter of Credit and the Borrowers'
reimbursement obligations with respect thereto. For the purposes of this
Agreement, the unparticipated portion of each Letter of Credit shall be deemed
to be the Issuing Bank's "participation" therein. The Issuing Bank hereby
agrees, upon request of the Agent or any Bank, to deliver to the Agent or such
Bank a list of all outstanding Letters of Credit issued by the Issuing Bank,
together with such information related thereto as the Agent or such Bank may
reasonably request.
Reimbursement Obligations. Each Borrower hereby unconditionally and irrevocably
agrees to reimburse the Issuing Bank for each payment or disbursement made by
the Issuing Bank under any Letter of Credit honoring any demand for payment made
by the beneficiary thereunder, in each case on the date that such payment or
disbursement is made. Any amount not reimbursed on the date of such payment or
disbursement shall bear interest from the date of such payment or disbursement
to the date that the Issuing Bank is reimbursed by the Borrowers therefor,
payable on demand, at a rate per annum equal to the Base Rate from time to time
in effect plus the Base Rate Margin from time to time in effect plus, beginning
on the third Business Day after receipt of notice from the Issuing Bank of such
payment or disbursement, 2%. The Issuing Bank shall notify the Borrower
Representative and the Agent whenever any demand for payment is made under any
Letter of Credit by the beneficiary thereunder; provided that the failure of the
Issuing Bank to so notify the Borrower Representative shall not affect the
rights of the Issuing Bank or the Banks in any manner whatsoever. Limitation on
Obligations of Issuing Bank. In determining whether to pay under any Letter of
Credit, the Issuing Bank shall not have any obligation to the Borrowers or any
Bank other than to confirm that any documents required to be delivered under
such Letter of Credit appear to have been delivered and appear to comply on
their face with the requirements of such Letter of Credit. Any action taken or
omitted to be taken by the Issuing Bank under or in connection with any Letter
of Credit, if taken or omitted in the absence of gross negligence and willful
misconduct, shall not impose upon the Issuing Bank any liability to the
Borrowers or any Bank and shall not reduce or impair the Borrowers'
reimbursement obligations set forth in Section 2.3.3 or the obligations of the
Banks pursuant to Section 2.3.5.
Funding by Banks to Issuing Bank. If the Issuing Bank makes any payment or
disbursement under any Letter of Credit and the Borrowers have not reimbursed
the Issuing Bank in full for such payment or disbursement by 11:00 A.M., Chicago
time, on the date of such payment or disbursement, or if any reimbursement
received by the Issuing Bank from the Borrowers is or must be returned or
rescinded upon or during any bankruptcy or reorganization of any Borrower or
otherwise, each other Bank shall be obligated to pay to the Agent for the
account of the Issuing Bank, in full or partial payment of the purchase price of
its participation in such Letter of Credit, its Pro Rata Share of such payment
or disbursement (but no such payment shall diminish the obligations of the
Borrowers under Section 2.3.3), and, upon notice from the Issuing Bank, the
Agent shall promptly notify each other Bank thereof. Each other Bank irrevocably
and unconditionally agrees to so pay to the Agent in immediately available funds
for the Issuing Bank's account the amount of such other Bank's Pro Rata Share of
such payment or disbursement. If and to the extent any Bank shall not have made
such amount available to the Agent by 2:00 P.M., Chicago time, on the Business
Day on which such Bank receives notice from the Agent of such payment or
disbursement (it being understood that any such notice received after noon,
Chicago time, on any Business Day shall be deemed to have been received on the
next following Business Day), such Bank agrees to pay interest on such amount to
the Agent for the Issuing Bank's account forthwith on demand, for each day from
the date such amount was to have been delivered to the Agent to the date such
amount is paid, at a rate per annum equal to (a) for the first three days after
demand, the Federal Funds Rate from time to time in effect and (b) thereafter,
the Base Rate from time to time in effect. Any Bank's failure to make available
to the Agent its Pro Rata Share of any such payment or disbursement shall not
relieve any other Bank of its obligation hereunder to make available to the
Agent such other Bank's Pro Rata Share of such payment, but no Bank shall be
responsible for the failure of any other Bank to make available to the Agent
such other Bank's Pro Rata Share of any such payment or disbursement.
Commitments Several. The failure of any Bank to make a requested Loan on any
date shall not relieve any other Bank of its obligation (if any) to make a Loan
on such date, but no Bank shall be responsible for the failure of any other Bank
to make any Loan to be made by such other Bank.
Certain Conditions. Notwithstanding any other provision of this Agreement, no
Bank shall have an obligation to make any Loan, or to permit the continuation of
or any conversion into any LIBOR Loan, and the Issuing Bank shall not have any
obligation to issue any Letter of Credit, if an Event of Default or Unmatured
Event of Default exists.
Joint and Several Nature of Loans. All Loans to each Borrower and all of the
other obligations (monetary or otherwise) of each Borrower arising under this
Agreement and the other Loan Documents shall constitute one general obligation
for which the Borrowers are jointly and severally obligated, which obligation
shall be secured, until the Termination Date, by all of the Borrowers'
Collateral; provided that the liability of any Borrower under this Agreement or
any other Loan Document shall be limited to the maximum amount of the
obligations for which such Borrower may be liable (after giving effect to rights
of contribution of such Borrower from its Affiliates) without violating any
applicable fraudulent conveyance or fraudulent transfer law.
NOTES EVIDENCING LOANS
Notes. The Loans of each Bank shall be evidenced by a promissory note (each a
"Note") substantially in the form set forth in Exhibit A, with appropriate
insertions, payable to the order of such Bank in a face principal amount equal
to such Bank's Pro Rata Share of the Revolving Commitment Amount, with such
principal amount being due and payable in full on the Termination Date:
Recordkeeping. Each Bank shall record in its records, or at its option on the
schedule attached to its Note, the date and amount of each Loan made by such
Bank, each repayment or conversion thereof and, in the case of each LIBOR Loan,
the dates on which each Interest Period for such Loan shall begin and end. The
aggregate unpaid principal amount so recorded shall be rebuttable presumptive
evidence of the principal amount owing and unpaid on such Note. The failure to
so record any such amount or any error in so recording any such amount shall
not, however, limit or otherwise affect the obligations of the Borrowers
hereunder or under any Note to repay the principal amount of the Loans evidenced
by such Note together with all interest accruing thereon.
INTEREST
Interest Rates. Each Borrower promises to pay interest on the unpaid principal
amount of each Loan for the period commencing on the date of such Loan until
such Loan is paid in full as follows: at all times while such Loan is a Base
Rate Loan, at a rate per annum equal to the sum of the Base Rate from time to
time in effect plus the Base Rate Margin from time to time in effect; and
at all times while such Loan is a LIBOR Loan, at a rate per annum equal to the
sum of the LIBOR Rate (Reserve Adjusted) applicable to each Interest Period for
such Loan plus the LIBOR Margin from time to time in effect;
provided that at any time an Event of Default exists, if requested by the
Required Banks, the interest rate applicable to each Loan shall be increased by
2%.
Interest Payment Dates. Accrued interest on each Base Rate Loan shall be payable
in arrears on the last day of each month and at maturity. Accrued interest on
each LIBOR Loan shall be payable on the last day of each Interest Period
relating to such Loan and at maturity. After maturity, accrued interest on all
Loans shall be payable on demand.
Setting and Notice of LIBOR Rates. The applicable LIBOR Rate for each Interest
Period shall be determined by the Agent, and notice thereof shall be given by
the Agent promptly to the Borrower Representative and each Bank. Each
determination of the applicable LIBOR Rate by the Agent shall be conclusive and
binding upon the parties hereto, in the absence of demonstrable error. The Agent
shall, upon written request of the Borrower Representative or any Bank, deliver
to the Borrower Representative or such Bank a statement showing the computations
used by the Agent in determining any applicable LIBOR Rate hereunder.
Computation of Interest. Interest shall be computed for the actual number of
days elapsed on the basis of a year of 360 days. The applicable interest rate
for each Base Rate Loan shall change simultaneously with each change in the Base
Rate.
FEES
Letter of Credit Fees. 20.3.1.1 The Borrowers agree to pay to the Agent for the
account of each Bank a letter of credit fee for each Letter of Credit equal to
the LC Fee Rate in effect from time to time of such Bank's Pro Rata Share (as
adjusted from time to time) of the undrawn amount of such Letter of Credit
(computed for the actual number of days elapsed on the basis of a year of 360
days); provided that, if requested by the Required Banks, the rate applicable to
each Letter of Credit shall be increased by 3% at any time that an Event of
Default exists. Such letter of credit fee shall be payable in arrears on the
last day of each calendar quarter and on the Termination Date (or such later
date on which such Letter of Credit expires or is terminated) for the period
from the date of the issuance of each Letter of Credit (or the last day on which
the letter of credit fee was paid with respect thereto) to the date such payment
is due or, if earlier, the date on which such Letter of Credit expired or was
terminated. In addition, with respect to each Letter of Credit, the Borrowers
agree to pay to the Issuing Bank, for its own account, (i) such fees and
expenses as the Issuing Bank customarily requires in connection with the
issuance, negotiation, processing and/or administration of letters of credit in
similar situations (but excluding fees otherwise payable under Section 5.1(a))
and (ii) a letter of credit fronting fee in the amount and at the times agreed
to by the Borrowers and the Issuing Bank.
Closing Fees. The Borrowers agree to pay to the Agent for the account of each
Bank on the Closing Date a closing fee in the amount previously agreed to
between the Borrowers and the Agent (and the Agent agrees to promptly forward to
each Bank a portion of such closing fee in the amount previously agreed to
between the Agent and such Bank).
Agent's Fees. The Borrowers agree to pay to the Agent such agent's fees as are
mutually agreed to from time to time by the Borrowers and the Agent.
REDUCTION OR TERMINATION OF THE
REVOLVING COMMITMENT AMOUNT; PREPAYMENTS
Reduction or Termination of the Revolving Commitment Amount.
Voluntary Reduction or Termination of the Revolving Commitment Amount. The
Borrowers may from time to time on at least five Business Days' prior written
notice received by the Agent (which shall promptly advise each Bank thereof)
permanently reduce the Revolving Commitment Amount to an amount not less than
the Revolving Outstandings. Any such reduction shall be in an amount not less
than $200,000 or a higher integral multiple of $100,000. Concurrently with any
reduction of the Revolving Commitment Amount to zero, the Borrowers shall pay
all interest on the Revolving Loans, all letter of credit fees and shall Cash
Collateralize in full all obligations arising with respect to the Letters of
Credit.
Mandatory Reductions of Revolving Commitment Amount. Unless otherwise agreed in
writing by the Agent, on the date of any Mandatory Prepayment Event, the
Revolving Commitment Amount shall be permanently reduced by an amount (if any)
equal to the Designated Proceeds of such Mandatory Prepayment Event pursuant to
Section 6.2.2.
All Reductions of the Revolving Commitment Amount. All reductions of the
Revolving Commitment Amount shall reduce the Commitments pro rata among the
Banks according to their respective Pro Rata Shares.
Prepayments.
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Voluntary Prepayments. The Borrowers may from time to time prepay the Loans in
whole or in part; provided that the Borrower Representative shall give the Agent
(which shall promptly advise each Bank) notice thereof not later than 11:00
A.M., Chicago time, on the day of such prepayment (which shall be a Business
Day), specifying the Loans to be prepaid and the date and amount of prepayment.
Any such partial prepayment shall be in an amount equal to $200,000 or a higher
integral multiple of $100,000. Mandatory Prepayments. 20.4 Unless otherwise
agreed in writing by the Agent, the Borrowers shall make a permanent reduction
of the Revolving Commitment Amount upon the occurrence of any of the following
(each a "Mandatory Prepayment Event") at the following times and in the
following amounts (such applicable amounts being referred to as "Designated
Proceeds"): Concurrently with the receipt by any Borrower or any Subsidiary of
any Borrower of any Net Cash Proceeds from any Asset Sale, in an amount equal to
100% of such Net Cash Proceeds, but only if such Net Cash Proceeds exceed
$200,000 in any Fiscal Year (and then only to the extent of such excess).
Concurrently with the receipt by any Borrower or any Subsidiary of any Borrower
of any Net Cash Proceeds from any issuance of equity securities of any Borrower
or any Subsidiary of any Borrowers (excluding (x) any issuance of shares of
capital stock pursuant to any employee or director stock option program, benefit
plan or compensation program and (y) any issuance by a Subsidiary to a Borrower
or another Subsidiary), in an amount equal to 100% of such Net Cash Proceeds,
but only if such Net Cash Proceeds exceed $300,000 in any Fiscal Year (and then
only to the extent of such excess).
Concurrently with the receipt by any Borrower or any Subsidiary of any Borrower
of any Net Cash Proceeds from any issuance of any Debt of any Borrower or any
Subsidiary (excluding Debt permitted by clauses (a) through (i) of Section
10.7), in an amount equal to 100% of such Net Cash Proceeds.
If on any day the Revolving Outstandings exceed the Borrowing Base, the
Borrowers shall immediately prepay Revolving Loans and/or Cash Collateralize the
outstanding Letters of Credit, or do a combination of the foregoing, in an
amount sufficient to eliminate such excess.
If on any day on which the Revolving Commitment Amount is reduced pursuant to
Section 6.1.2 the Revolving Outstandings exceed the Revolving Commitment Amount,
the Borrowers shall immediately prepay Revolving Loans or Cash Collateralize the
outstanding Letters of Credit, or do a combination of the foregoing, in an
amount sufficient to eliminate such excess.
All Prepayments. Each voluntary partial prepayment shall be in a principal
amount of $200,000 or a higher integral multiple of $100,000. Any partial
prepayment of a Group of LIBOR Loans shall be subject to the proviso to Section
2.2.3(a). Any prepayment of a LIBOR Loan on a day other than the last day of an
Interest Period therefor shall include interest on the principal amount being
repaid and shall be subject to Section 8.4.
MAKING AND PRORATION OF PAYMENTS; SETOFF; TAXES
Making of Payments. All payments of principal of or interest on the Notes, and
of all fees, shall be made by the Borrowers to the Agent in immediately
available funds at the office specified by the Agent not later than noon,
Chicago time, on the date due; and funds received after that hour shall be
deemed to have been received by the Agent on the following Business Day. The
Agent shall promptly remit to each Bank its share of all such payments received
in collected funds by the Agent for the account of such Bank. All payments under
Section 8.1 shall be made by the Borrowers directly to the Bank entitled
thereto. Application of Certain Payments. Each payment of principal shall be
applied to such Loans as the Borrower Representative shall direct by notice to
be received by the Agent on or before the date of such payment or, in the
absence of such notice, as the Agent shall determine in its discretion.
Concurrently with each remittance to any Bank of its share of any such payment,
the Agent shall advise such Bank as to the application of such payment.
Due Date Extension. If any payment of principal or interest with respect to any
of the Loans, or of any fees, falls due on a day which is not a Business Day,
then such due date shall be extended to the immediately following Business Day
(unless, in the case of a LIBOR Loan, such immediately following Business Day is
the first Business Day of a calendar month, in which case such due date shall be
the immediately preceding Business Day) and, in the case of principal,
additional interest shall accrue and be payable for the period of any such
extension.
Setoff. Each Borrower agrees that the Agent and each Bank have all rights of
set-off and bankers' lien provided by applicable law without the requirement of
any notice to any Borrower, and in addition thereto, each Borrower agrees that
at any time any Event of Default exists, the Agent and each Bank may apply to
the payment of any obligations of the Borrowers hereunder, whether or not then
due and without the requirement of any notice to any Borrower, any and all
balances, credits, deposits, accounts or moneys of the Borrowers then or
thereafter with the Agent or such Bank.
Proration of Payments. If any Bank shall obtain any payment or other recovery
(whether voluntary, involuntary, by application of offset or otherwise, but
excluding any payment pursuant to Section 8.7 or 14.9 and payments of interest
on any Affected Loan) on account of principal of or interest on any Loan (or on
account of its participation in any Letter of Credit) in excess of its pro rata
share of payments and other recoveries obtained by all Banks on account of
principal of and interest on the Loans (or such participation) then held by
them, such Bank shall purchase from the other Banks such participations in the
Loans (or sub-participations in Letters of Credit) held by them as shall be
necessary to cause such purchasing Bank to share the excess payment or other
recovery ratably with each of them; provided that if all or any portion of the
excess payment or other recovery is thereafter recovered from such purchasing
Bank, the purchase shall be rescinded and the purchase price restored to the
extent of such recovery.
Taxes. All payments of principal of, and interest on, the Loans and all other
amounts payable hereunder shall be made free and clear of and without deduction
for any present or future income, excise, stamp or franchise taxes and other
taxes, fees, duties, withholdings or other charges of any nature whatsoever
imposed by any taxing authority (including any non-U.S. taxing authority),
excluding franchise taxes and taxes imposed on or measured by any Bank's net
income or receipts (all non-excluded items being called "Taxes"). If any
withholding or deduction from any payment to be made by the Borrowers hereunder
is required in respect of any Taxes pursuant to any applicable law, rule or
regulation, then the Borrowers will:
pay directly to the relevant authority the full amount required to be so
withheld or deducted;
promptly forward to the Agent an official receipt or other documentation
satisfactory to the Agent evidencing such payment to such authority; and
pay to the Agent for the account of the Banks such additional amount or amounts
as is necessary to ensure that the net amount actually received by each Bank
will equal the full amount such Bank would have received had no such withholding
or deduction been required.
Moreover, if any Taxes are directly asserted against the Agent or any Bank with
respect to any payment received by the Agent or such Bank hereunder, the Agent
or such Bank may pay such Taxes and the Borrowers will promptly pay such
additional amounts (including any penalty, interest or expense) as is necessary
in order that the net amount received by such Person after the payment of such
Taxes (including any Taxes on such additional amount) shall equal the amount
such Person would have received had such Taxes not been asserted.
If the Borrowers fail to pay any Taxes when due to the appropriate
taxing authority or fails to remit to the Agent, for the account of the
respective Banks, the required receipts or other required documentary evidence,
the Borrowers shall indemnify the Banks for any incremental Taxes, interest or
penalties that may become payable by any Bank as a result of any such failure.
For purposes of this Section 7.6, a distribution hereunder by the Agent or any
Bank to or for the account of any Bank shall be deemed a payment by the
Borrowers.
Each Bank that (a) is organized under the laws of a jurisdiction other
than the United States of America and (b)(i) is a party hereto on the Closing
Date or (ii) becomes an assignee of an interest under this Agreement under
Section 8.7 or Section 14.9.1 after the Closing Date (unless such Bank was
already a Bank hereunder immediately prior to such assignment) shall execute and
deliver to the Borrower Representative and the Agent one or more (as the
Borrower Representative or the Agent may reasonably request) United States
Internal Revenue Service Form W-8BEN or such other forms or documents,
appropriately completed, as may be applicable to establish that such Bank is
exempt from withholding or deduction of Taxes. The Borrowers shall not be
required to pay additional amounts to any Bank pursuant to this Section 7.6 to
the extent that the obligation to pay such additional amounts would not have
arisen but for the failure of such Bank to comply with this paragraph.
In the event a Bank or the Agent receives a refund of, or credit with
respect to, any Taxes paid by the Borrowers pursuant to this Section 7.6, such
Bank or the Agent shall, upon receipt thereof, use reasonable efforts to
identify such benefit and promptly pay to the Borrowers such amount as equals
the net after-tax value of such benefit to such Bank or the Agent (as determined
conclusively in good faith by such Lender or the Agent), not to exceed the
increased amount paid by the Borrowers pursuant to this Section 7.6. The
Borrowers shall have no right to review the calculations made by a Bank or the
Agent pursuant to the immediately preceding sentence.
INCREASED COSTS; SPECIAL PROVISIONS FOR LIBOR LOANS
Increased Costs. 20.4.1.1 If, after the date hereof, the adoption of, or any
change in, any applicable law, rule or regulation, or any change in the
interpretation or administration of any applicable law, rule or regulation by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Bank (or any
LIBOR Office of such Bank) with any request or directive (whether or not having
the force of law) of any such authority, central bank or comparable agency shall
subject any Bank (or any LIBOR Office of such Bank) to any tax, duty or other
charge with respect to its LIBOR Loans, its Note or its obligation to make LIBOR
Loans, or shall change the basis of taxation of payments to any Bank of the
principal of or interest on its LIBOR Loans or any other amounts due under this
Agreement in respect of its LIBOR Loans or its obligation to make LIBOR Loans
(except for changes in the rate of tax on the overall net income of such Bank or
its LIBOR Office imposed by the jurisdiction in which such Bank's principal
executive office or LIBOR Office is located);
shall impose, modify or deem applicable any reserve (including any reserve
imposed by the FRB, but excluding any reserve included in the determination of
interest rates pursuant to Section 4), special deposit or similar requirement
against assets of, deposits with or for the account of, or credit extended by
any Bank (or any LIBOR Office of such Bank); or
shall impose on any Bank (or its LIBOR Office) any other condition affecting its
LIBOR Loans, its Note or its obligation to make LIBOR Loans;
and the result of any of the foregoing is to increase the cost to (or to impose
a cost on) such Bank (or any LIBOR Office of such Bank) of making or maintaining
any LIBOR Loan, or to reduce the amount of any sum received or receivable by
such Bank (or its LIBOR Office) under this Agreement or under its Note with
respect thereto, then upon demand by such Bank (which demand shall be
accompanied by a statement setting forth the basis for such demand and a
calculation of the amount thereof in reasonable detail, a copy of which shall be
furnished to the Agent), the Borrowers shall pay directly to such Bank such
additional amount as will compensate such Bank for such increased cost or such
reduction.
If any Bank shall reasonably determine that any change in, the adoption or
phase-in of, any applicable law, rule or regulation regarding capital adequacy,
or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Bank or any
Person controlling such Bank with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such authority, central
bank or comparable agency, has or would have the effect of reducing the rate of
return on such Bank's or such controlling Person's capital as a consequence of
such Bank's obligations hereunder or under any Letter of Credit to a level below
that which such Bank or such controlling Person could have achieved but for such
change, adoption, phase-in or compliance (taking into consideration such Bank's
or such controlling Person's policies with respect to capital adequacy) by an
amount deemed by such Bank or such controlling Person to be material, then from
time to time, upon demand by such Bank (which demand shall be accompanied by a
statement setting forth the basis for such demand and a calculation of the
amount thereof in reasonable detail, a copy of which shall be furnished to the
Agent), the Borrowers shall pay to such Bank such additional amount as will
compensate such Bank or such controlling Person for such reduction.
Basis for Determining Interest Rate Inadequate or Unfair. If with respect to
any Interest Period:
deposits in Dollars (in the applicable amounts) are not being offered to the
Agent in the interbank eurodollar market for such Interest Period, or the Agent
otherwise reasonably determines (which determination shall be binding and
conclusive on the Borrowers) that by reason of circumstances affecting the
interbank eurodollar market adequate and reasonable means do not exist for
ascertaining the applicable LIBOR Rate; or
Banks having aggregate Pro Rata Shares of 66 2/3% or more advise the Agent that
the LIBOR Rate (Reserve Adjusted) as determined by the Agent will not adequately
and fairly reflect the cost to such Banks of maintaining or funding LIBOR Loans
for such Interest Period (taking into account any amount to which such Banks may
be entitled under Section 8.1) or that the making or funding of LIBOR Loans has
become impracticable as a result of an event occurring after the date of this
Agreement which in the opinion of such Banks materially affects such Loans;
then the Agent shall promptly notify the other parties thereof and, so long as
such circumstances shall continue, (i) no Bank shall be under any obligation to
make or convert into LIBOR Loans and (ii) on the last day of the current
Interest Period for each LIBOR Loan, such Loan shall, unless then repaid in
full, automatically convert to a Base Rate Loan.
Changes in Law Rendering LIBOR Loans Unlawful. If any change in, or the adoption
of any new, law or regulation, or any change in the interpretation of any
applicable law or regulation by any governmental or other regulatory body
charged with the administration thereof, should make it (or in the good faith
judgment of any Bank cause a substantial question as to whether it is) unlawful
for any Bank to make, maintain or fund LIBOR Loans, then such Bank shall
promptly notify each of the other parties hereto and, so long as such
circumstances shall continue, (a) such Bank shall have no obligation to make or
convert into LIBOR Loans (but shall make Base Rate Loans concurrently with the
making of or conversion into LIBOR Loans by the Banks which are not so affected,
in each case in an amount equal to the amount of LIBOR Loans which would be made
or converted into by such Bank at such time in the absence of such
circumstances) and (b) on the last day of the current Interest Period for each
LIBOR Loan of such Bank (or, in any event, on such earlier date as may be
required by the relevant law, regulation or interpretation), such LIBOR Loan
shall, unless then repaid in full, automatically convert to a Base Rate Loan.
Each Base Rate Loan made by a Bank which, but for the circumstances described in
the foregoing sentence, would be a LIBOR Loan (an "Affected Loan") shall remain
outstanding for the same period as the Group of LIBOR Loans of which such
Affected Loan would be a part absent such circumstances.
Funding Losses. The Borrowers hereby agree that upon demand by any Bank (which
demand shall be accompanied by a statement setting forth the basis for the
amount being claimed, a copy of which shall be furnished to the Agent), the
Borrowers will indemnify such Bank against any net loss or expense which such
Bank may sustain or incur (including any net loss or expense incurred by reason
of the liquidation or reemployment of deposits or other funds acquired by such
Bank to fund or maintain any LIBOR Loan), as reasonably determined by such Bank,
as a result of (a) any payment, prepayment or conversion of any LIBOR Loan of
such Bank on a date other than the last day of an Interest Period for such Loan
(including any conversion pursuant to Section 8.3) or (b) any failure of the
Borrowers to borrow, convert or continue any Loan on a date specified therefor
in a notice of borrowing, conversion or continuation pursuant to this Agreement.
For this purpose, all notices to the Agent pursuant to this Agreement shall be
deemed to be irrevocable. Right of Banks to Fund through Other Offices. Each
Bank may, if it so elects, fulfill its commitment as to any LIBOR Loan by
causing a foreign branch or Affiliate of such Bank to make such Loan; provided
that in such event for the purposes of this Agreement such Loan shall be deemed
to have been made by such Bank and the obligation of the Borrowers to repay such
Loan shall nevertheless be to such Bank and shall be deemed held by it, to the
extent of such Loan, for the account of such branch or Affiliate. Discretion of
Banks as to Manner of Funding. Notwithstanding any provision of this Agreement
to the contrary, each Bank shall be entitled to fund and maintain its funding of
all or any part of its Loans in any manner it sees fit, it being understood,
however, that for the purposes of this Agreement all determinations hereunder
shall be made as if such Bank had actually funded and maintained each LIBOR Loan
during each Interest Period for such Loan through the purchase of deposits
having a maturity corresponding to such Interest Period and bearing an interest
rate equal to the LIBOR Rate for such Interest Period.
Mitigation of Circumstances; Replacement of Banks. 20.4.1.2 Each Bank shall
promptly notify the Borrower Representative and the Agent of any event of which
it has knowledge which will result in, and will use reasonable commercial
efforts available to it (and not, in such Bank's sole judgment, otherwise
disadvantageous to such Bank) to mitigate or avoid, (i) any obligation by the
Borrowers to pay any amount pursuant to Section 7.6 or 8.1 or (ii) the
occurrence of any circumstances described in Section 8.2 or 8.3 (and, if any
Bank has given notice of any such event described in clause (i) or (ii) above
and thereafter such event ceases to exist, such Bank shall promptly so notify
the Borrower Representative and the Agent). Without limiting the foregoing, each
Bank will designate a different funding office if such designation will avoid
(or reduce the cost to the Borrowers of) any event described in clause (i) or
(ii) of the preceding sentence and such designation will not, in such Bank's
sole judgment, be otherwise disadvantageous to such Bank. If the Borrowers
become obligated to pay additional amounts to any Bank pursuant to Section 7.6
or 8.1, or any Bank gives notice of the occurrence of any circumstances
described in Section 8.2 or 8.3, the Borrower Representative may designate
another bank which is acceptable to the Agent and the Issuing Bank in their
reasonable discretion (such other bank being called a "Replacement Bank") to
purchase the Loans of such Bank and such Bank's rights hereunder, without
recourse to or warranty by, or expense to, such Bank, for a purchase price equal
to the outstanding principal amount of the Loans payable to such Bank plus any
accrued but unpaid interest on such Loans and all accrued but unpaid fees owed
to such Bank and any other amounts payable to such Bank under this Agreement,
and to assume all the obligations of such Bank hereunder, and, upon such
purchase and assumption (pursuant to an Assignment Agreement), such Bank shall
no longer be a party hereto or have any rights hereunder (other than rights with
respect to indemnities and similar rights applicable to such Bank prior to the
date of such purchase and assumption) and shall be relieved from all obligations
to the Borrowers hereunder, and the Replacement Bank shall succeed to the rights
and obligations of such Bank hereunder.
Conclusiveness of Statements; Survival of Provisions. Determinations and
statements of any Bank pursuant to Section 8.1, 8.2, 8.3 or 8.4 shall be
conclusive absent demonstrable error. Banks may use reasonable averaging and
attribution methods in determining compensation under Sections 8.1 and 8.4, and
the provisions of such Sections shall survive repayment of the Loans,
cancellation of the Notes, expiration or termination of the Letters of Credit
and termination of this Agreement.
WARRANTIES
To induce the Agent and the Banks to enter into this Agreement and to
induce the Banks to make Loans and issue and participate in Letters of Credit
hereunder, each Borrower jointly and severally warrants to the Agent and the
Banks that:
Organization. Each Borrower (other than NP Aerospace) is a corporation validly
existing and in good standing under the laws of the state of its incorporation
and NP Aerospace is a corporation validly existing under the laws of England and
Wales; each Subsidiary of each Borrower is validly existing and in good standing
under the laws of the jurisdiction of its state of organization or
incorporation; and each Loan Party is duly qualified to do business in each
jurisdiction where, because of the nature of its activities or properties, such
qualification is required, except for such jurisdictions where the failure to so
qualify would not have a Material Adverse Effect.
Authorization; No Conflict. Each Loan Party is duly authorized to execute and
deliver each Loan Document to which it is a party, each Borrower is duly
authorized to borrow monies hereunder and each Loan Party is duly authorized to
perform its obligations under each Loan Document to which it is a party. The
execution, delivery and performance by each Borrower of this Agreement and by
each Loan Party of each Loan Document to which it is a party, and the borrowings
by any Borrower hereunder, do not and will not (a) require any consent or
approval of any governmental agency or authority (other than any consent or
approval which has been obtained and is in full force and effect), (b) conflict
with (i) any provision of law, (ii) the charter, by-laws or other organizational
documents of any Loan Party or (iii) any agreement, indenture, instrument or
other document, or any judgment, order or decree, which is binding upon any Loan
Party or any of its respective properties or (c) require, or result in, the
creation or imposition of any Lien on any asset of any Loan Party (other than
Liens in favor of the Agent or the Security Trustee created pursuant to the
Collateral Documents).
Validity and Binding Nature. Each of this Agreement and each other Loan Document
to which any Loan Party is a party is the legal, valid and binding obligation of
such Person, enforceable against such Person in accordance with its terms,
subject to bankruptcy, insolvency and similar laws affecting the enforceability
of creditors' rights generally and to general principles of equity. Financial
Condition. The audited consolidated financial statements of the Borrowers as at
December 31, 1998, December 31, 1999 and December 31, 2000, and the unaudited
consolidated financial statements of the Borrowers as at March 31, 2001, June
30, 2001, September 30, 2001 and December 31, 2001, copies of each of which have
been delivered to each Bank, were prepared in accordance with GAAP (subject, in
the case of such unaudited statements, to the absence of footnotes and to normal
year-end adjustments) and present fairly the consolidated financial condition of
the Borrowers as at such dates and the results of their operations for the
periods then ended.
No Material Adverse Change. Since September 30, 2001, there has been no material
adverse change in the financial condition, operations, assets, business,
properties or prospects of any Borrower or its Subsidiaries taken as a whole.
Litigation and Contingent Liabilities. No litigation (including derivative
actions), arbitration proceeding or governmental investigation or proceeding is
pending or, to the knowledge of any Borrower, threatened against any Loan Party
which might reasonably be expected to have a Material Adverse Effect, except as
set forth in Schedule 9.6. Other than any liability incident to such litigation
or proceedings, no Borrower nor any Subsidiary of any Borrower has any material
contingent liabilities not listed on Schedule 9.6 or permitted by Section 10.7.
Ownership of Properties; Liens. Each Borrower and its Subsidiaries owns good
and, in the case of real property, marketable title to all of its properties and
assets, real and personal, tangible and intangible, of any nature whatsoever
(including patents, trademarks, trade names, service marks and copyrights), free
and clear of all Liens, charges and claims (including infringement claims with
respect to patents, trademarks, service marks, copyrights and the like) except
as permitted by Section 10.8. Subsidiaries. As of the Closing Date, no Borrower
has any Subsidiaries other than those listed on Schedule 9.8. Pension Plans.
20.4.1.3 During the twelve-consecutive-month period prior to the date of the
execution and delivery of this Agreement or the making of any Loan or the
issuance of any Letter of Credit, (i) other than with respect to the 401(k) plan
of Xxxxxxx, no steps have been taken to terminate any Pension Plan and (ii) no
contribution failure has occurred with respect to any Pension Plan sufficient to
give rise to a Lien under Section 302(f) of ERISA. No condition exists or event
or transaction has occurred with respect to any Pension Plan which could result
in the incurrence by any Loan Party of any material liability, fine or penalty.
All contributions (if any) have been made to any Multiemployer Pension Plan that
are required to be made by the Borrowers or any other member of the Controlled
Group under the terms of the plan or of any collective bargaining agreement or
by applicable law; no Borrower nor any member of the Controlled Group has
withdrawn or partially withdrawn from any Multiemployer Pension Plan, incurred
any withdrawal liability with respect to any such plan or received notice of any
claim or demand for withdrawal liability or partial withdrawal liability from
any such plan, and no condition has occurred which, if continued, might result
in a withdrawal or partial withdrawal from any such plan; and no Borrower nor
any member of the Controlled Group has received any notice that any
Multiemployer Pension Plan is in reorganization, that increased contributions
may be required to avoid a reduction in plan benefits or the imposition of any
excise tax, that any such plan is or has been funded at a rate less than that
required under Section 412 of the Code, that any such plan is or may be
terminated, or that any such plan is or may become insolvent.
Investment Company Act. No Loan Party is an "investment company" or a company
"controlled" by an "investment company", within the meaning of the Investment
Company Act of 1940. Public Utility Holding Company Act. No Loan Party is a
"holding company", or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company", within the meaning of the Public Utility Holding Company Act of 1935.
Regulation U. No Loan Party is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing or
carrying Margin Stock. Taxes. Each Loan Party has filed all tax returns and
reports required by law to have been filed by it and has paid all taxes and
governmental charges thereby shown to be owing, except any such taxes or charges
which are being diligently contested in good faith by appropriate proceedings
and for which adequate reserves in accordance with GAAP shall have been set
aside on its books. Solvency, etc. On the Closing Date, and immediately prior to
and after giving effect to the issuance of each Letter of Credit and each
borrowing hereunder and the use of the proceeds thereof, (a) each of (i)
Xxxxxxxx and (ii) Xxxxxxxx and its Subsidiaries on a consolidated basis will
have assets which exceed their liabilities and (b) each of (i) Xxxxxxxx and (ii)
Xxxxxxxx and its Subsidiaries on a consolidated basis will be solvent, will be
able to pay their debts as they mature, will own property with fair saleable
value greater than the amount required to pay their debts and will have capital
sufficient to carry on their business as then constituted.
Environmental Matters.
No Violations. Except as set forth on Schedule 9.15, no Loan Party, nor any
operator of any Loan Party's properties, is in violation, or alleged violation,
of any judgment, decree, order, law, permit, license, rule or regulation
pertaining to environmental matters, including those arising under the Resource
Conservation and Recovery Act ("RCRA"), the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 ("CERCLA"), the Superfund
Amendments and Reauthorization Act of 1986 or any other Environmental Law which
(i) in any single case, requires expenditures in any three-year period of
$50,000 or more by any Loan Party in penalties and/or for investigative, removal
or remedial actions or (ii) individually or in the aggregate otherwise might
reasonably be expected to have a Material Adverse Effect.
Notices. Except as set forth on Schedule 9.15 and for matters arising after the
Closing Date, in each case none of which could singly or in the aggregate be
expected to have a Material Adverse Effect, no Loan Party has received notice
from any third party, including any Federal, state or local governmental
authority: (a) that any one of them has been identified by the U.S.
Environmental Protection Agency as a potentially responsible party under CERCLA
with respect to a site listed on the National Priorities List, 40 C.F.R. Part
000 Xxxxxxxx X; (b) that any hazardous waste, as defined by 42 U.S.C.
ss.6903(5), any hazardous substance as defined by 42 U.S.C. ss.9601(14), any
pollutant or contaminant as defined by 42 U.S.C. ss.9601(33) or any toxic
substance, oil or hazardous material or other chemical or substance regulated by
any Environmental Law (all of the foregoing, "Hazardous Substances") which any
one of them has generated, transported or disposed of has been found at any site
at which a Federal, state or local agency or other third party has conducted a
remedial investigation, removal or other response action pursuant to any
Environmental Law; (c) that any Loan Party must conduct a remedial
investigation, removal, response action or other activity pursuant to any
Environmental Law; or (d) of any Environmental Claim.
Handling of Hazardous Substances. Except as set forth on Schedule 9.15, (i) no
portion of the real property or other assets of any Loan Party has been used for
the handling, processing, storage or disposal of Hazardous Substances except in
accordance in all material respects with applicable Environmental Laws; and no
underground tank or other underground storage receptacle for Hazardous
Substances is located on such properties; (ii) in the course of any activities
conducted by any Loan Party or the operators of any real property of any Loan
Party, no Hazardous Substances have been generated or are being used on such
properties except in accordance in all material respects with applicable
Environmental Laws; (iii) there have been no Releases or threatened Releases of
Hazardous Substances on, upon, into or from any real property or other assets of
any Loan Party, which Releases singly or in the aggregate might reasonably be
expected to have a Material Adverse Effect on the value of such real property or
assets; (iv) there have been no Releases on, upon, from or into any real
property in the vicinity of the real property or other assets of any Loan Party
which, through soil or groundwater contamination, may have come to be located
on, and which might reasonably be expected to have a Material Adverse Effect on
the value of, the real property or other assets of any Loan Party; and (v) any
Hazardous Substances generated by any Loan Party have been transported offsite
only by properly licensed carriers and delivered only to treatment or disposal
facilities maintaining valid permits as required under applicable Environmental
Laws, which transporters and facilities have been and are operating in
compliance in all material respects with such permits and applicable
Environmental Laws.
Insurance. Set forth on Schedule 9.16 is a complete and accurate summary of the
property and casualty insurance program of each Loan Party as of the Closing
Date (including the names of all insurers, policy numbers, expiration dates,
amounts and types of coverage, annual premiums, exclusions, deductibles,
self-insured retention, and a description in reasonable detail of any
self-insurance program, retrospective rating plan, fronting arrangement or other
risk assumption arrangement involving any Loan Party). Real Property. Set forth
on Schedule 9.17 is a complete and accurate list, address and brief description,
as of the Closing Date, of all real property owned, leased, licensed or used by
any Loan Party, together with, in the case of property which leased, licensed or
otherwise used by any Loan Party, the name and mailing address of the lessor,
grantor or owner of such property. Information. All information heretofore or
contemporaneously herewith furnished in writing by any Loan Party to the Agent
or any Bank for purposes of or in connection with this Agreement and the
transactions contemplated hereby is, and all written information hereafter
furnished by or on behalf of any Loan Party to the Agent or any Bank pursuant
hereto or in connection herewith will be, true and accurate in every material
respect on the date as of which such information is dated or certified, and none
of such information is or will be incomplete by omitting to state any material
fact necessary to make such information not misleading in light of the
circumstances under which made (it being recognized by the Agent and the Banks
that any projections and forecasts provided by the Borrowers are based on good
faith estimates and assumptions believed by the Borrowers to be reasonable as of
the date of the applicable projections or assumptions and that actual results
during the period or periods covered by any such projections and forecasts may
differ from projected or forecasted results).
Intellectual Property. Each Loan Party owns and possesses or has a license or
other right to use all patents, patent rights, trademarks, trademark rights,
trade names, trade name rights, service marks, service xxxx rights and
copyrights as are necessary for the conduct of the business of such Loan Party,
without any infringement upon rights of others which could reasonably be
expected to have a Material Adverse Effect.
Burdensome Obligations. No Loan Party is a party to any agreement or contract or
subject to any corporate or partnership restriction which might reasonably be
expected to have a Material Adverse Effect. Labor Matters. Except as set forth
on Schedule 9.21, No Loan Party is subject to any labor or collective bargaining
agreement. There are no existing or threatened strikes, lockouts or other labor
disputes involving any Loan Party that singly or in the aggregate could
reasonably be expected to have a Material Adverse Effect. Hours worked by and
payment made to employees of any Loan Party are not in violation of the Fair
Labor Standards Act or any other applicable law, rule or regulation dealing with
such matters. No Default. No Event of Default or Unmatured Event of Default
exists or would result from the incurring by any Borrowers of any Debt hereunder
or under any other Loan Document.
COVENANTS
Until the expiration or termination of the Commitments and thereafter
until all obligations of the Borrowers hereunder and under the other Loan
Documents are paid in full and all Letters of Credit have been terminated, each
Borrower jointly and severally agrees that, unless at any time the Required
Banks shall otherwise expressly consent in writing, it will:
Reports, Certificates and Other Information. Furnish to the Agent and each Bank:
-------------------------------------------
Annual Audit Report. Promptly when available and in any event within 90 days
after the close of each Fiscal Year: (a) a copy of the annual audit report of
the Borrowers and their Subsidiaries for such Fiscal Year, including therein
consolidated balance sheets and statements of earnings and cash flows of
Xxxxxxxx and its Subsidiaries as at the end of such Fiscal Year, certified
without qualification by Ernst & Young LLP or other independent auditors of
recognized standing selected by the Borrowers and reasonably acceptable to the
Required Banks, together with (i) a written statement from such accountants to
the effect that in making the examination necessary for the signing of such
annual audit report by such accountants, nothing came to their attention that
caused them to believe that any Borrower was not in compliance with any
provision of Section 10.6, 10.7, 10.9 or 10.10 of this Agreement insofar as such
provision relates to accounting matters or, if something has come to their
attention that caused them to believe that any Borrower was not in compliance
with any such provision, describing such non-compliance in reasonable detail and
(ii) a comparison with the budget for such Fiscal Year and a comparison with the
previous Fiscal Year; and (b) consolidating balance sheets of the Borrowers and
their Subsidiaries as of the end of such Fiscal Year and a consolidating
statement of earnings for the Borrowers and their Subsidiaries for such Fiscal
Year, certified by the Chief Financial Officer of the Borrower Representative.
Interim Reports. Promptly when available and in any event within 30 days after
the end of each month (including the last month of each Fiscal Quarter),
consolidated and consolidating balance sheets of the Borrowers and their
Subsidiaries as of the end of such month, together with consolidated and
consolidating statements of earnings and a consolidated statement of cash flows
for such month and for the period beginning with the first day of such Fiscal
Year and ending on the last day of such month, together with a comparison with
the corresponding period of the previous Fiscal Year and a comparison with the
budget for such period of the current Fiscal Year, certified by the Chief
Financial Officer of the Borrower Representative.
Compliance Certificates. Contemporaneously with the furnishing of a copy of each
annual audit report pursuant to Section 10.1.1 and within 45 days after the end
of each Fiscal Quarter, a duly completed compliance certificate in the form of
Exhibit B, with appropriate insertions, dated the date of such annual report or
such quarterly statements and signed by the Chief Financial Officer of the
Borrower Representative, containing a computation of each of the financial
ratios and restrictions set forth in Section 10.6 and to the effect that such
officer has not become aware of any Event of Default or Unmatured Event of
Default that has occurred and is continuing or, if there is any such event,
describing it and the steps, if any, being taken to cure it. Reports to the SEC
and to Shareholders. Promptly upon the filing or sending thereof, copies of all
regular, periodic or special reports of each Borrower or any Subsidiary thereof
filed with the SEC or any other equivalent foreign body or organization; copies
of all registration statements of each Borrower or any Subsidiary thereof filed
with the SEC (other than on Form S-8); and copies of all proxy statements or
other communications made to security holders generally.
Notice of Default, Litigation and ERISA Matters. Promptly upon becoming aware of
any of the following, written notice describing the same and the steps being
taken by any Loan Party affected thereby with respect thereto: the occurrence of
an Event of Default or an Unmatured Event of Default;
any litigation, arbitration or governmental investigation or proceeding not
previously disclosed by any Borrower to the Banks which has been instituted or,
to the knowledge of the Borrowers, is threatened against any Loan Party or to
which any of the properties of any thereof is subject which would reasonably be
expected to have a Material Adverse Effect;
the institution of any steps by any member of the Controlled Group or any other
Person to terminate any Pension Plan, or the failure of any member of the
Controlled Group to make a required contribution to any Pension Plan (if such
failure is sufficient to give rise to a Lien under Section 302(f) of ERISA) or
to any Multiemployer Pension Plan, or the taking of any action with respect to a
Pension Plan which could result in the requirement that the Borrowers furnish a
bond or other security to the PBGC or such Pension Plan, or the occurrence of
any event with respect to any Pension Plan or Multiemployer Pension Plan which
could result in the incurrence by any member of the Controlled Group of any
material liability, fine or penalty (including any claim or demand for
withdrawal liability or partial withdrawal from any Multiemployer Pension Plan),
or any material increase in the contingent liability of the Borrowers with
respect to any post-retirement welfare plan benefit, or any notice that any
Multiemployer Pension Plan is in reorganization, that increased contributions
may be required to avoid a reduction in plan benefits or the imposition of an
excise tax, that any such plan is or has been funded at a rate less than that
required under Section 412 of the Code, that any such plan is or may be
terminated, or that any such plan is or may become insolvent;
any cancellation or material change in any insurance maintained by any Loan
Party which relates to collateral with an insured value greater than $300,000;
or
any other event (including (i) any violation of any Environmental Law or the
assertion of any Environmental Claim or (ii) the enactment or effectiveness of
any law, rule or regulation) which would reasonably be expected to have a
Material Adverse Effect.
Borrowing Base Certificates. Within 30 days of the end of each month, a
Borrowing Base Certificate dated as of the end of such month and executed by the
Chief Financial Officer of the Borrower Representative on behalf of each
Borrower (provided that (i) the Borrower Representative may deliver a Borrowing
Base Certificate more frequently if it chooses and (ii) at any time an Event of
Default exists, the Agent may require the Borrower Representative to deliver
Borrowing Base Certificates more frequently). Accounts Trial Balance. Within 30
days of the end of each month, an aged trial balance of all foreign and domestic
Accounts Receivable indicating which Accounts Receivable are current, up to 30,
30 to 60, 60 to 90 and 90 days or more past due and listing the names and
addresses of all applicable Account Debtors.
Management Reports. Promptly upon the request of the Agent or any Bank, copies
of all detailed financial and management reports submitted to any Borrower by
independent auditors in connection with each annual or interim audit made by
such auditors of the books of any Borrower.
Projections. As soon as practicable, and in any event within 30 days prior to
the commencement of each Fiscal Year, financial projections for each Borrower
and its Subsidiaries for such Fiscal Year (including an operating budget and a
cash flow budget) prepared in a manner consistent with the projections delivered
by the Borrowers to the Banks prior to the Closing Date or otherwise in a manner
reasonably satisfactory to the Agent, accompanied by a certificate of the Chief
Financial Officer of the Borrower Representative on behalf of the Borrowers to
the effect that (i) such projections were prepared by the Borrowers in good
faith, (ii) the Borrowers have a reasonable basis for the assumptions contained
in such projections and (iii) such projections have been prepared in accordance
with such assumptions.
Subordinated Debt Notices. Promptly from time to time, copies of any notices
(including notices of default or acceleration) received from any holder or
trustee of, under or with respect to any Subordinated Debt. Valley Forge
Litigation Updates. (a) Immediately after the occurrence of any material
development with respect to the Valley Forge Litigation, a written notification
and explanation of such development and (b) on a monthly basis, a summary of the
current status of the Valley Forge Litigation containing all recent developments
with respect to such litigation along with such other information relating
thereto as may be reasonably requested by the Agent.
Other Information. Promptly from time to time, such other information concerning
any Loan Party as any Bank or the Agent may reasonably request. Books, Records
and Inspections. Keep, and cause each Loan Party to keep, its books and records
in accordance with sound business practices sufficient to allow the preparation
of financial statements in accordance with GAAP; permit, and cause each Loan
Party to permit, any Bank or the Agent or any representative thereof to inspect
the properties and operations of any Loan Party; and permit, and cause each Loan
Party to permit, at any reasonable time and with reasonable notice (or at any
time without notice if an Event of Default exists), any Bank or the Agent or any
representative thereof to visit any or all of its offices, to discuss its
financial matters with its officers and its independent auditors (and each
Borrower hereby authorizes such independent auditors to discuss such financial
matters with any Bank or the Agent or any representative thereof), and to
examine (and, at the expense of the Borrowers, photocopy extracts from) any of
its books or other records; and permit, and cause each Loan Party to permit, the
Agent and its representatives to inspect the Inventory and other tangible assets
of any Loan Party, to perform appraisals of the equipment and/or real property
of any Loan Party, and to inspect, audit, check and make copies of and extracts
from the books, records, computer data, computer programs, journals, orders,
receipts, correspondence and other data relating to Inventory, Accounts
Receivable and any other collateral. All such inspections or audits by the Agent
shall be at the Borrowers' expense, provided that so long as no Event of Default
or Unmatured Event of Default exists, (i) the Borrowers shall not be required to
reimburse the Agent for audits more frequently than once each Fiscal Year and
(ii) the Agent shall be responsible for the costs and expenses relating to any
equipment and real property appraisals.
Maintenance of Property; Insurance. 20.4.1.4 Keep, and cause each Loan Party to
keep, all property useful and necessary in the business of each Loan Party in
good working order and condition, ordinary wear and tear excepted. Maintain, and
cause each Loan Party to maintain, with responsible insurance companies, such
insurance as may be required by any law or governmental regulation or court
decree or order applicable to it and such other insurance, to such extent and
against such hazards and liabilities, as is customarily maintained by companies
similarly situated, but which shall insure against all risks and liabilities of
the type identified on Schedule 9.16 and shall have aggregate insured amounts no
less than the greatest of (x) the Revolving Commitment Amount, (y) the
outstanding obligations of the Borrowers under the Loan Documents (including
Hedging Obligations) and (z) the insured amounts set forth on such Schedule
9.16, and deductibles no higher than those set forth on such schedule; and, upon
request of the Agent or any Bank, furnish to the Agent or such Bank a
certificate setting forth in reasonable detail the nature and extent of all
insurance maintained by the Loan Parties. The Borrowers shall cause each issuer
of an insurance policy to provide the Agent with an endorsement (i) showing loss
payable to the Agent or the Security Trustee with respect to each policy of
property or casualty insurance and naming the Agent and each Bank as an
additional insured with respect to each policy of insurance for liability for
personal injury or property damage, (ii) providing that 30 days' notice will be
given to the Agent prior to any cancellation of, material reduction or change in
coverage provided by or other material modification to such policy and (iii)
reasonably acceptable in all other respects to the Agent. The Borrowers shall
execute and deliver to the Agent a collateral assignment, in form and substance
satisfactory to the Agent, of each business interruption insurance policy
maintained by each Loan Party.
20.5 UNLESS THE BORROWERS PROVIDE THE AGENT WITH
EVIDENCE OF THE INSURANCE COVERAGE REQUIRED BY THIS AGREEMENT,
THE AGENT MAY PURCHASE INSURANCE AT THE EXPENSE OF THE
BORROWERS TO PROTECT THE AGENT'S AND THE BANKS' INTERESTS IN
THE COLLATERAL. THIS INSURANCE MAY, BUT NEED NOT, PROTECT ANY
LOAN PARTY'S INTERESTS. THE COVERAGE THAT THE AGENT PURCHASES
MAY NOT PAY ANY CLAIM THAT IS MADE AGAINST THE BORROWERS IN
CONNECTION WITH THE COLLATERAL. THE BORROWERS MAY LATER CANCEL
ANY INSURANCE PURCHASED BY THE AGENT, BUT ONLY AFTER PROVIDING
THE AGENT WITH EVIDENCE THAT THEY HAVE OBTAINED INSURANCE AS
REQUIRED BY THIS AGREEMENT. IF THE AGENT PURCHASES INSURANCE
FOR THE COLLATERAL, EACH BORROWER WILL BE RESPONSIBLE FOR THE
COSTS OF THAT INSURANCE, INCLUDING INTEREST AND ANY OTHER
CHARGES THAT MAY BE IMPOSED WITH THE PLACEMENT OF THE
INSURANCE, UNTIL THE EFFECTIVE DATE OF THE CANCELLATION OR
EXPIRATION OF THE INSURANCE. THE COSTS OF THE INSURANCE MAY BE
ADDED TO THE PRINCIPAL AMOUNT OF THE LOANS OWING HEREUNDER.
THE COSTS OF THE INSURANCE MAY BE MORE THAN THE COST OF THE
INSURANCE ANY LOAN PARTY MAY BE ABLE TO OBTAIN ON ITS OWN.
Compliance with Laws; Payment of Taxes and Liabilities. (a) Comply, and cause
each Loan Party to comply, in all material respects with all applicable laws,
rules, regulations, decrees, orders, judgments, licenses and permits, except
where failure to comply could not reasonably be expected to have a Material
Adverse Effect; (b) pay, and cause each Loan Party to pay, prior to delinquency,
all taxes and other governmental charges against it or any of its property, as
well as claims of any kind which, if unpaid, might become a Lien on any of its
property; provided that the foregoing shall not require any Loan Party or any
Subsidiary to pay any such tax or charge so long as it shall contest the
validity thereof in good faith by appropriate proceedings and shall set aside on
its books adequate reserves with respect thereto in accordance with GAAP; and
(c) in the event of the nonpayment by any Borrower of any tax or charge against
it or any of its property on or prior to the due date thereof, upon the request
of the Agent, such Borrower shall deposit with the Agent such amounts that, in
the reasonable determination of the Agent, are sufficient to satisfy such tax
liability and such additional future tax liabilities as may be requested by
Agent.
Maintenance of Existence, etc. Maintain and preserve, and (subject to Section
10.11) cause each Loan Party to maintain and preserve, (a) its existence and
good standing in the jurisdiction of its organization and (b) its qualification
to do business and good standing in each jurisdiction where the nature of its
business makes such qualification necessary (except in those instances in which
the failure to be qualified or in good standing does not have a Material Adverse
Effect).
Financial Covenants.
Minimum Tangible Net Worth. Not permit Tangible Net Worth to be less than
$10,000,000 at any time.
Leverage Ratio. Not permit the Leverage Ratio for any Computation Period to
exceed 1.75:1.0.
Pre-Tax Earnings. Not permit Pre-Tax Earnings for any Computation Period to be
less than $1,500,000.
Capital Expenditures. Not permit the aggregate amount of all Capital
Expenditures made by the Borrowers and their Subsidiaries in any Fiscal Year
commencing on or after January 1, 2002 to exceed $2,500,000. Limitations on
Debt. Not, and not permit any Loan Party to, create, incur, assume or suffer to
exist any Debt, except: obligations under this Agreement and the other Loan
Documents; provided, however, that until such time as NP Aerospace shall have
delivered to the Agent and/or Security Trustee, pursuant to Section 10.27
hereof, such Foreign Collateral Documents as the Agent and/or Security Trustee
may require to obtain and perfect a security interest in substantially all of
the assets of NP Aerospace, NP Aerospace shall not be permitted to make any
borrowings hereunder or request the issuance of any Letter of Credit or have any
Letter of Credit issued for its account; Debt secured by Liens permitted by
Section 10.8(d), and extensions, renewals and refinancings thereof; provided
that the aggregate amount of all such Debt at any time outstanding shall not
exceed $100,000;
Debt of Subsidiaries of any Borrower to such Borrower;
unsecured Debt of any Borrower to its Subsidiaries;
Subordinated Debt;
Hedging Obligations incurred for bona fide hedging purposes and not for
speculation;
Debt described on Schedule 10.7 and any extension, renewal or refinancing
thereof so long as the principal amount thereof is not increased;
the Debt to be Repaid (so long as such Debt is repaid on the Closing Date with
the proceeds of the initial Loans hereunder); and
other Debt, in addition to the Debt listed above, in an aggregate amount not at
any time exceeding $100,000.
Liens. Not, and not permit any Loan Party to, create or permit to exist any Lien
on any of its real or personal properties, assets or rights of whatsoever nature
(whether now owned or hereafter acquired), except: Liens for taxes or other
governmental charges not at the time delinquent or thereafter payable without
penalty or being contested in good faith by appropriate proceedings and, in each
case, for which it maintains adequate reserves;
Liens arising in the ordinary course of business (such as (i) Liens of carriers,
warehousemen, mechanics and materialmen and other similar Liens imposed by law
and (ii) Liens incurred in connection with worker's compensation, unemployment
compensation and other types of social security (excluding Liens arising under
ERISA) or in connection with surety bonds, bids, performance bonds and similar
obligations) for sums not overdue or being contested in good faith by
appropriate proceedings and not involving any deposits or advances or borrowed
money or the deferred purchase price of property or services and, in each case,
for which it maintains adequate reserves;
Liens described on Schedule 10.8;
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subject to the limitation set forth in Section 10.7(b), (i) Liens arising in
connection with Capital Leases (and attaching only to the property being
leased), (ii) Liens existing on property at the time of the acquisition thereof
by any Borrower or any of its Subsidiaries (and not created in contemplation of
such acquisition) and (iii) Liens that constitute purchase money security
interests on any property securing debt incurred for the purpose of financing
all or any part of the cost of acquiring such property, provided that any such
Lien attaches to such property within 60 days of the acquisition thereof and
attaches solely to the property so acquired;
attachments, appeal bonds, judgments and other similar Liens, for sums not
exceeding $50,000 arising in connection with court proceedings, provided the
execution or other enforcement of such Liens is effectively stayed and the
claims secured thereby are being actively contested in good faith and by
appropriate proceedings;
easements, rights of way, restrictions, minor defects or irregularities in title
and other similar Liens not interfering in any material respect with the
ordinary conduct of the business of any Loan Party;
Liens arising under the Loan Documents; and
the replacement, extension or renewal of any Lien permitted by clause (c) above
upon or in the same property theretofore subject thereto arising out of the
extension, renewal or replacement of the Debt secured thereby (without increase
in the amount thereof).
Operating Leases. Not permit the aggregate amount of all rental payments under
Operating Leases made (or scheduled to be made) by any Loan Party (on a
consolidated basis) to exceed $1,800,000 in any Fiscal Year. Restricted
Payments. Not, and not permit any Loan Party to, (a) make any distribution to
any of its shareholders, (b) purchase or redeem any of its capital stock or
other equity interests or any warrants, options or other rights in respect
thereof, (c) except as provided in Section 10.15 hereof, pay any management fees
or similar fees to any of its shareholders or any Affiliate thereof, (d) make
any redemption, prepayment, defeasance or repurchase of any Subordinated Debt or
(e) set aside funds for any of the foregoing. Notwithstanding the foregoing, so
long as such Loan Party is otherwise in compliance with the provisions of this
Agreement and the financial covenants contained herein, and immediately after
giving affect to the transactions described below is in pro forma compliance
with such financial covenants, (i) any Subsidiary of any Borrower may pay
dividends or make other distributions to such Borrower or to a Wholly-Owned
Subsidiary of such Borrower (provided, however, that until such time as NP
Aerospace shall have delivered to the Agent and/or Security Trustee, pursuant to
Section 10.27 hereof, such Foreign Collateral Documents as the Agent and/or
Security Trustee may require to obtain and perfect a security interest in
substantially all of the assets of NP Aerospace, no such Subsidiary may make any
such distributions to NP Aerospace); and (ii) so long as no Event of Default or
Unmatured Event of Default exists or would result therefrom, the Loan Parties
may (A) make dividends or other distributions to its shareholders, (B) make
dividends of its own stock, including cash payments for fractional shares and
(C) redeem its capital stock. Mergers, Consolidations, Sales. Not, and not
permit any Loan Party to, be a party to any merger or consolidation, or purchase
or otherwise acquire all or substantially all of the assets or any stock of any
class of, or any partnership or joint venture interest in, any other Person, or,
except in the ordinary course of its business, sell, transfer, convey or lease
all or any substantial part of its assets, or sell or assign with or without
recourse any receivables, except for (a) any such merger, consolidation, sale,
transfer, conveyance, lease or assignment of or by any Wholly-Owned Subsidiary
of any Borrower into, with or to another Borrower or any other Wholly-Owned
Subsidiary of such Borrower; (b) any such purchase or other acquisition by any
Borrower or any Wholly-Owned Subsidiary of any Borrower of the assets or stock
of any Wholly-Owned Subsidiary of such Borrower; and (c) any Acquisition by any
Borrower or any Wholly-Owned Subsidiary of any Borrower where (1) the assets
acquired (in the case of an asset purchase) are for use, or the Person acquired
(in the case of any other Acquisition) is engaged, solely in the businesses
engaged in by such Borrower or any Wholly-Owned Subsidiary of such Borrower on
the date hereof; (2) immediately before and after giving effect to such
Acquisition, no Event of Default or Unmatured Event of Default shall exist; (3)
the aggregate consideration to be paid by such Borrower and its Subsidiaries
(including any Debt assumed or issued in connection therewith, the amount
thereof to be calculated in accordance with GAAP) in connection with such
Acquisition (or any series of related Acquisitions) is less than $2,000,000 in
the aggregate for all such Acquisitions in any Fiscal Year; (4) immediately
after giving effect to such Acquisition, the Borrowers are in pro forma
compliance with all the financial ratios and restrictions set forth in Section
10.6; and (5) in the case of the Acquisition of any Person, the Board of
Directors of such Person has approved such Acquisition.
Modification of Organizational Documents. Not permit the Certificate or Articles
of Incorporation, By-Laws or other organizational documents of any Loan Party to
be amended or modified in any way which might reasonably be expected to have a
Material Adverse Effect on the interests of the Banks.
Use of Proceeds. Use the proceeds of the Loans, and the Letters of Credit,
solely to refinance the Debt to be Repaid, for working capital, for Acquisitions
permitted by Section 10.11, for Capital Expenditures and for other general
corporate purposes; and not use or permit any proceeds of any Loan to be used,
either directly or indirectly, for the purpose, whether immediate, incidental or
ultimate, of "purchasing or carrying" any Margin Stock.
Further Assurances. 20.5.1.1 Take, and cause each Loan Party to take, such
actions as are necessary or as the Agent, the Security Trustee or the Required
Banks may reasonably request from time to time (including the execution and
delivery of guaranties, security agreements, pledge agreements, mortgages, deeds
of trust, financing statements and other documents, the filing or recording of
any of the foregoing, and the delivery of stock certificates and other
collateral with respect to which perfection is obtained by possession) to ensure
that (i) the obligations of each Borrower hereunder and under the other Loan
Documents are secured by substantially all of the assets of each Borrower and
(ii) the obligations of each Borrower hereunder are guaranteed by each
Subsidiary of such Borrower and such Guaranties are secured by substantially all
of the assets of such Subsidiaries.
Cause all collections from Accounts Receivable to be directed to a bank
account maintained with the Agent or to such other bank account as the
Agent may otherwise consent.
(c) Upon the occurrence and during the continuance of an
Unmatured Event of Default or an Event of Default, NP Aerospace shall,
and shall cause the bank or banks at which NP Aerospace maintains any
bank accounts, to enter into such blocked account, lock box agreements
and other cash dominion arrangements, in form and substance
satisfactory to the Agent, as the Agent shall require in its sole
discretion.
Transactions with Affiliates. Not, and not permit any Loan Party to, enter into,
or cause, suffer or permit to exist any transaction, arrangement or contract
with any of its other Affiliates (other than the Borrowers) which is on terms
which are less favorable than are obtainable from any Person which is not one of
its Affiliates. Except for the existence of an Event of Default pursuant to
Section 12.1.1 or Section 12.1.4 hereof, nothing contained herein shall be
deemed to preclude payment of management fees to Hammond, Kennedy, Whitney &
Company in an amount not to exceed $20,000 per month nor the payment of director
fees to Xxxxxx XxXxxxx, Xxxxx X. Xxxxxxx and Xxxxx Xxxxxxx (or any replacement
director) consistent with the Borrowers' past practice. Employee Benefit Plans.
Maintain, and cause each of its Subsidiaries to maintain, each Pension Plan in
substantial compliance with all applicable requirements of law and regulations.
Environmental Matters. 20.5.1.2 If any Release or Disposal of Hazardous
Substances shall occur or shall have occurred on any real property or any other
assets of any Loan Party, the Borrowers shall, or shall cause the applicable
Subsidiary to, cause the prompt containment and removal of such Hazardous
Substances and the remediation of such real property or other assets as
necessary to comply with all Environmental Laws in all material respects and to
preserve the value of such real property or other assets. Without limiting the
generality of the foregoing, the Borrowers shall, and shall cause each Loan
Party to, comply with any valid Federal or state judicial or administrative
order requiring the performance at any real property of any Loan Party of
activities in response to the Release or threatened Release of a Hazardous
Substance.
To the extent that the transportation of "hazardous waste" as defined by RCRA is
permitted by this Agreement, the Borrowers shall, and shall cause each Loan
Party to, dispose of such hazardous waste only at licensed disposal facilities
operating in compliance with Environmental Laws.
Unconditional Purchase Obligations. Not, and not permit any Loan Party to, enter
into or be a party to any contract for the purchase of materials, supplies or
other property or services if such contract requires that payment be made by it
regardless of whether delivery is ever made of such materials, supplies or other
property or services.
Inconsistent Agreements. Not, and not permit any Loan Party to, enter into any
agreement containing any provision which would (a) be violated or breached by
any borrowing by any Borrower hereunder or by the performance by any Loan Party
of any of its obligations hereunder or under any other Loan Document, (b)
prohibit any Loan Party from granting to the Agent, for the benefit of the
Banks, a Lien on any of its assets or (c) create or permit to exist or become
effective any encumbrance or restriction on the ability of any Loan Party to (i)
pay dividends or make other distributions to any Borrower or any other
applicable Loan Party, or pay any Debt owed to any Borrower or any other Loan
Party, (ii) make loans or advances to any Borrower or (iii) transfer any of its
assets or properties to the Borrowers.
Business Activities. Not, and not permit any Subsidiary to, engage in any
line of business other than the businesses engaged in on the date hereof and
businesses reasonably related thereto.
Investments. Not, and not permit any Loan Party to, make or permit to exist
any Investment in any other Person, except (without duplication) the
following:
contributions or advances by the Borrowers to the capital of any of their
respective Subsidiaries, or by any such Subsidiary to the capital of any of its
Subsidiaries (provided, however, that until such time as NP Aerospace shall have
delivered to the Agent and/or Security Trustee, pursuant to Section 10.27
hereof, such Foreign Collateral Documents as the Agent and/or Security Trustee
may require to obtain and perfect a security interest in substantially all of
the assets of NP Aerospace, no Borrower or any other Subsidiary shall make any
Investments in, or contributions or advances to, NP Aerospace);
in the ordinary course of business, Investments by any Loan Party in any
Subsidiary of any Borrower or by any Subsidiary of any Borrower in such Loan
Party, by way of intercompany loans, advances or guaranties, all to the extent
permitted by Section 10.7; (notwithstanding the above, until such time as NP
Aerospace shall have delivered to the Agent and/or Security Trustee, pursuant to
Section 10.27 hereof, such Foreign Collateral Documents as the Agent and/or
Security Trustee may require to obtain and perfect a security interest in
substantially all of the assets of NP Aerospace, no Loan Party or any Subsidiary
of any Borrower may make Investments in or to NP Aerospace by way of such
intercompany loans, advances or guaranties);
Suretyship Liabilities permitted by Section 10.7;
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Cash Equivalent Investments;
bank deposits in the ordinary course of business, provided that the aggregate
amount of all such deposits (excluding amounts in payroll accounts or for
accounts payable, in each case to the extent that checks have been issued to
third parties) which are maintained with any bank other than a Bank shall not at
any time exceed $10,000; provided, further that until the expiration of the 120
day period described in Section 10.26 hereof (or such longer period as may be
agreed in writing by the Agent) NP Aerospace shall be permitted to maintain its
deposits at any bank in the United Kingdom;
Investments in securities of account debtors received pursuant to any plan of
reorganization or similar arrangement upon the bankruptcy or insolvency of such
account debtors;
Investments to consummate Acquisitions permitted by Section 10.11; and
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Investments listed on Schedule 10.21;
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provided that (x) any Investment which when made complies with the requirements
of the definition of the term "Cash Equivalent Investment" may continue to be
held notwithstanding that such Investment if made thereafter would not comply
with such requirements; (y) no Investment otherwise permitted by clause (b),
(c), or (g) shall be permitted to be made if, immediately before or after giving
effect thereto, any Event of Default or Unmatured Event of Default exists.
Restriction of Amendments to Certain Documents. Not amend or otherwise modify,
or waive any rights under Minuteman Agreement, if, in any case, such amendment,
modification or waiver could be adverse to the interests of the Banks.
Fiscal Year. Not change its Fiscal Year.
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Cancellation of Debt. Not, and not permit any of its domestic Subsidiaries to,
cancel any claim or debt owing to it, except for reasonable consideration or in
the ordinary course of business. Domestic Operating Accounts. To better enable
the Agent to administer the Loans, not later than 90 days after the Closing
Date, the domestic Borrowers and their Subsidiaries shall cause all operating
and cash management accounts to be maintained with the Agent and subject to the
security interest granted under the Collateral Documents; provided, that to the
extent required by law (and only to the extent that compliance with such laws
cannot be obtained by contracting with a third party payroll provider) the
Borrowers and their Subsidiaries may maintain payroll accounts with a financial
institution agreed to in writing by the Agent if such entity shall have executed
blocked account agreements with respect to such payroll accounts on terms and
conditions satisfactory to Agent. Foreign Operating Accounts. To better enable
the Agent to administer the Loans, NP Aerospace and the other Foreign
Subsidiaries (if any) shall use commercially reasonably efforts to cause all
operating and cash management accounts to be maintained with the Agent and
subject to the security interest granted under the Collateral Documents not
later than one hundred and twenty (120) days after the Closing Date; provided,
that to the extent required by law (and only to the extent that compliance with
such laws cannot be obtained by contracting with a third party payroll provider)
the NP Aerospace and the other Foreign Subsidiaries (if any) may maintain
payroll accounts with a financial institution agreed to in writing by the Agent
if such entity shall have executed blocked account agreements with respect to
such payroll accounts on terms and conditions satisfactory to Agent.
EFFECTIVENESS; CONDITIONS OF LENDING, ETC.
The obligation of each Bank to make its Loans and of the Issuing Bank
to issue Letters of Credit is subject to the following conditions precedent:
Initial Credit Extension. The obligation of the Banks to make the initial Loans
and the obligation of the Issuing Bank to issue its initial Letter of Credit
(whichever first occurs) is, in addition to the conditions precedent specified
in Section 11.2, subject to the conditions precedent that (1) all Debt to be
Repaid has been (or concurrently with the initial borrowing will be) paid in
full, and that all agreements and instruments governing the Debt to be Repaid
and that all Liens securing such Debt to be Repaid have been (or concurrently
with the initial borrowing will be) terminated and (2) the Agent shall have
received all of the following, each duly executed and dated the Closing Date (or
such earlier date as shall be satisfactory to the Agent), in form and substance
satisfactory to the Agent (and the date on which all such conditions precedent
have been satisfied or waived in writing by the Agent and the Required Banks is
called the "Closing Date"):
Notes. The Notes.
Resolutions. Certified copies of resolutions of the Board of Directors of each
Borrower authorizing the execution, delivery and performance by such Borrower of
this Agreement, the Notes and the other Loan Documents to which such Borrower is
a party; and certified copies of resolutions of the Board of Directors of each
other Loan Party authorizing the execution, delivery and performance by such
Loan Party of each Loan Document to which such entity is a party.
Consents, etc. Certified copies of all documents evidencing any necessary
corporate or partnership action, consents and governmental approvals (if any)
required for the execution, delivery and performance by each Loan Party of the
documents referred to in this Section 11, including certificates or articles of
incorporation, organizational documents, by-laws, or other governing documents
and good standing certificates of each Loan Party.
Incumbency and Signature Certificates. A certificate of the Secretary or an
Assistant Secretary (or other appropriate representative) of each Borrower and
each other Loan Party certifying the names of the officer or officers of such
entity authorized to sign the Loan Documents to which such entity is a party,
together with a sample of the true signature of each such officer (it being
understood that the Agent and each Bank may conclusively rely on each such
certificate until formally advised by a like certificate of any changes
therein).
Security Agreement. A counterpart of the Security Agreement executed by each
Borrower and each Subsidiary of each Borrower. Pledge Agreement. Pledge
Agreement executed by Xxxxxxxx, together with all items required to be delivered
in connection therewith. Real Estate Documents. With respect to the real
property of Xxxxxxx located at Xxxxxx, AK, San Leandro, CA and Kansas City, MO,
a duly executed Mortgage providing for a fully perfected Lien, in favor of the
Agent or the Security Trustee, in all right, title and interest of such Loan
Party in such real property, together with:
an ALTA Loan Title Insurance Policy, issued by an insurer acceptable to the
Agent, insuring the Agent's Lien on such real property and containing such
endorsements as the Agent may reasonably require (it being understood that the
amount of coverage, exceptions to coverage and status of title set forth in such
policy shall be acceptable to the Agent);
copies of all documents of record concerning such real property as shown on the
commitment for the ALTA Loan Title Insurance Policy referred to above;
original or certified copies of all insurance policies required to be maintained
with respect to such real property by this Agreement, the applicable Mortgage or
any other Loan Document;
a survey meeting such standards as the Agent may reasonably establish and
otherwise reasonably satisfactory to the Agent; and
a flood insurance policy concerning such real property, reasonably satisfactory
to the Agent, if required by the Flood Disaster Protection Act of 1973.
Opinions of Counsel. The opinion of Horgan, Rosen, Beckham & Coren, L.L.P.
substantially in the form of Exhibit H.
Insurance. Evidence satisfactory to the Agent of the existence of insurance
required to be maintained pursuant to Section 10.3(b), together with evidence
that the Agent and/or the Security Trustee has been named as a lender's loss
payee and an additional insured on all related insurance policies.
Payment of Fees. Evidence of payment by the Borrowers of all accrued and unpaid
fees, costs and expenses to the extent then due and payable on the Closing Date,
together with all Attorney Costs of the Agent to the extent invoiced prior to
the Closing Date, plus such additional amounts of Attorney Costs as shall
constitute the Agent's reasonable estimate of Attorney Costs incurred or to be
incurred by the Agent through the closing proceedings (provided that such
estimate shall not thereafter preclude final settling of accounts between the
Borrowers and the Agent).
Solvency Certificate. A Solvency Certificate, substantially in the form of
Exhibit I, executed by the Chief Financial Officer of Xxxxxxxx. Search Results;
Lien Terminations. Certified copies of Uniform Commercial Code Requests for
Information or Copies (Form UCC-11), or a similar search report certified by a
party acceptable to the Agent, dated a date reasonably near to the Closing Date,
listing all effective financing statements which name each Loan Party (under
their present names and any previous names) as debtors and which are filed in
the jurisdictions in which filings are to be made pursuant to the Collateral
Documents, together with (i) copies of such financing statements, (ii) executed
copies of proper Uniform Commercial Code Form UCC-3 termination statements or
deeds of release, if any, necessary to release all Liens and other rights of any
Person in any collateral described in the Collateral Documents previously
granted by any Person (other than Liens permitted by Section 10.8) and (iii)
such other Uniform Commercial Code Form UCC-3 termination statements as the
Agent may reasonably request.
Filings, Registrations and Recordings. The Agent shall have received each
document (including Uniform Commercial Code financing statements) required by
the Collateral Documents or under law or reasonably requested by the Agent to be
filed, registered or recorded in order to create in favor of the Agent and/or
the Security Trustee, for the benefit of the Banks, a perfected Lien on the
collateral described therein, prior and superior to any other Person, in proper
form for filing, registration or recording. Closing Certificate. A certificate
signed by the President or a Vice President of each of the Borrowers dated as of
the Closing Date, affirming the matters set forth in Section 11.2.1 as of the
Closing Date.
Borrowing Base Certificate. A Borrowing Base Certificate dated as of the last
day of the month prior to the Closing Date.
Other. Such other documents as the Agent or any Bank may reasonably request.
Conditions. The obligation (a) of each Bank to make each Loan and (b) of the
Issuing Bank to issue each Letter of Credit is subject to the following further
conditions precedent that:
Compliance with Warranties, No Default, etc. Both before and after giving effect
to any borrowing and the issuance of any Letter of Credit, the following
statements shall be true and correct: the representations and warranties of each
Loan Party set forth in this Agreement and the other Loan Documents shall be
true and correct in all material respects with the same effect as if then made
(except to the extent stated to relate to a specific earlier date, in which case
such representations and warranties shall be true and correct as of such earlier
date); and
no Event of Default or Unmatured Event of Default shall have then occurred and
be continuing.
Confirmatory Certificate. If requested by the Agent or any Bank, the Agent shall
have received (in sufficient counterparts to provide one to each Bank) a
certificate dated the date of such requested Loan or Letter of Credit and signed
by a duly authorized representative of the Borrowers as to the matters set out
in Section 11.2.1 (it being understood that each request by the Borrowers for
the making of a Loan or the issuance of a Letter of Credit shall be deemed to
constitute a warranty by the Borrowers that the conditions precedent set forth
in Section 11.2.1 will be satisfied at the time of the making of such Loan or
the issuance of such Letter of Credit), together with such other documents as
the Agent or any Bank may reasonably request in support thereof.
EVENTS OF DEFAULT AND THEIR EFFECT
Events of Default. Each of the following shall constitute an Event of Default
under this Agreement:
Non-Payment of the Loans, etc. Default in the payment when due of the principal
of any Loan; or default, and continuance thereof for five days, in the payment
when due of any interest, fee, reimbursement obligation with respect to any
Letter of Credit or other amount payable by any Borrower hereunder or under any
other Loan Document.
Non-Payment of Other Debt. Any default shall occur under the terms applicable to
any Debt of any Loan Party in an aggregate amount (for all such Debt so
affected) exceeding $250,000 and such default shall (a) consist of the failure
to pay such Debt when due, whether by acceleration or otherwise, or (b)
accelerate the maturity of such Debt or permit the holder or holders thereof, or
any trustee or agent for such holder or holders, to cause such Debt to become
due and payable (or require such Loan Party to purchase or redeem such Debt)
prior to its expressed maturity.
Other Material Obligations. Default in the payment when due, or in the
performance or observance of, any material obligation of, or condition agreed to
by, any Loan Party with respect to any material purchase or lease of goods or
services where such default, singly or in the aggregate with all other such
defaults, might reasonably be expected to have a Material Adverse Effect.
Bankruptcy, Insolvency, etc. Any Loan Party becomes insolvent or generally fails
to pay, or admits in writing its inability or refusal to pay, debts as they
become due; or any Loan Party applies for, consents to, or acquiesces in the
appointment of a trustee, administrator, receiver or other custodian for such
Loan Party or any property thereof, or makes a general assignment for the
benefit of creditors or any other step is taken with a view to a composition,
assignment, scheme of arrangement or similar arrangement with any of the
creditors of such Borrower or any of its Subsidiaries; or, in the absence of
such application, consent or acquiescence, a trustee, administrator, receiver or
other custodian is appointed for any Loan Party or for a substantial part of the
property of any thereof and is not discharged within 60 days; or any bankruptcy,
reorganization, debt arrangement, or other case or proceeding under any
bankruptcy or insolvency law, or any dissolution or liquidation proceeding, is
commenced in respect of any Loan Party, and if such case or proceeding is not
commenced by any Loan Party, it is consented to or acquiesced in by any Loan
Party, or remains for 30 days undismissed; or any Loan Party takes any action to
authorize, or in furtherance of, any of the foregoing. Non-Compliance with Loan
Documents. (a) Failure by the Borrowers to comply with or to perform any
covenant set forth in Sections 10.1.5(a), 10.5 through 10.15, 10.20 through
10.22 and 10.26; or (b) failure by the Borrowers to comply with or to perform
any other provision of this Agreement or any other Loan Document (and not
constituting an Event of Default under any other provision of this Section 12)
and continuance of such failure described in this clause (b) for 30 days.
Warranties. Any warranty made by any Loan Party herein or any other Loan
Document is breached or is false or misleading in any material respect, or any
schedule, certificate, financial statement, report, notice or other writing
furnished by any Loan Party to the Agent or any Bank in connection herewith is
false or misleading in any material respect on the date as of which the facts
therein set forth are stated or certified.
Pension Plans. (i) Institution of any steps by the Borrowers or any other Person
to terminate a Pension Plan if as a result of such termination any Borrower
could be required to make a contribution to such Pension Plan, or could incur a
liability or obligation to such Pension Plan, in excess of $100,000; (ii) a
contribution failure occurs with respect to any Pension Plan sufficient to give
rise to a Lien under Section 302(f) of ERISA; or (iii) there shall occur any
withdrawal or partial withdrawal from a Multiemployer Pension Plan and the
withdrawal liability (without unaccrued interest) to Multiemployer Pension Plans
as a result of such withdrawal (including any outstanding withdrawal liability
that any Borrower and the Controlled Group have incurred on the date of such
withdrawal) exceeds $100,000.
Judgments. (i) Final judgments which exceed an aggregate of $250,000 in excess
of the applicable insurance coverage maintained by the Borrowers (other than a
judgment described in subsection (ii) of this Section 12.1.8) shall be rendered
against any Loan Party and shall not have been paid, discharged or vacated or
had execution thereof stayed pending appeal within 30 days after entry or filing
of such judgments or (ii) any judgment in excess of $1,000,000 shall be rendered
against any Loan Party in connection with the lawsuit by the National Park
Service relating to certain environmental liabilities at the Valley Forge
National Historical Park Site in Pennsylvania (the "Valley Forge Litigation").
Invalidity of Guaranty, etc. The Guaranty (if any) shall cease to be in full
force and effect with respect to any Loan Party; or any Loan Party (or any
Person by, through or on behalf of such Loan Party) shall contest in any manner
the validity, binding nature or enforceability of the Guaranty with respect to
such Loan Party.
Invalidity of Collateral Documents, etc. Any Collateral Document shall cease to
be in full force and effect; or any Loan Party (or any Person by, through or on
behalf of any Loan Party) shall contest in any manner the validity, binding
nature or enforceability of any Collateral Document.
Invalidity of Subordination Provisions, etc. Any subordination provision in any
document or instrument governing Subordinated Debt, or any subordination
provision in any guaranty by any Subsidiary of any Borrower of any Subordinated
Debt, shall cease to be in full force and effect, or the Borrowers or any other
Person (including the holder of any applicable Subordinated Debt) shall contest
in any manner the validity, binding nature or enforceability of any such
provision.
Change of Control. (a) Any Person or group of Persons (within the meaning of
Section 13 or 14 of the Securities Exchange Act of 1934, but excluding any
current shareholder of the Borrowers) shall acquire beneficial ownership (within
the meaning of Rule 13d-3 promulgated under such Act) of more than 50% of the
outstanding securities (on a fully diluted basis and taking into account any
securities or contract rights exercisable, exchangeable or convertible into
equity securities) of any Borrower having voting rights in the election of
directors under normal circumstances; or (b) a majority of the members of the
Board of Directors of any Borrower shall cease to be Continuing Members. For
purposes of the foregoing, "Continuing Member" means, with respect to any
Borrower, a member of the Board of Directors of such Borrower who either (i) was
a member of such Borrower's Board of Directors on the day before the Closing
Date and has been such continuously thereafter or (ii) became a member of such
Board of Directors after the day before the Closing Date and whose election or
nomination for election was approved by a vote of the majority of the Continuing
Members then members of such Borrower's Board of Directors.
Material Adverse Effect. The occurrence of any event having a Material Adverse
Effect.
Effect of Event of Default. If any Event of Default described in Section 12.1.4
shall occur, the Commitments (if they have not theretofore terminated) shall
immediately terminate and the Loans and all other obligations hereunder shall
become immediately due and payable and each Borrower shall become immediately
obligated to Cash Collateralize all Letters of Credit, all without presentment,
demand, protest or notice of any kind; and, if any other Event of Default shall
occur and be continuing, the Agent (upon written request of the Required Banks)
shall declare the Commitments (if they have not theretofore terminated) to be
terminated and/or declare all Loans and all other obligations hereunder to be
due and payable and/or demand that each Borrower immediately Cash Collateralize
all Letters of Credit, whereupon the Commitments (if they have not theretofore
terminated) shall immediately terminate and/or all Loans and all other
obligations hereunder shall become immediately due and payable and/or each
Borrower shall immediately become obligated to Cash Collateralize all Letters of
Credit and/or the Agent may instruct the Security Trustee to exercise its
rights, powers and authorities relating to enforcement under the Collateral
Documents, all without presentment, demand, protest or notice of any kind. The
Agent shall promptly advise the Borrowers of any such declaration, but failure
to do so shall not impair the effect of such declaration. Notwithstanding the
foregoing, the effect as an Event of Default of any event described in Section
12.1.1 or Section 12.1.4 may be waived by the written concurrence of all of the
Banks, and the effect as an Event of Default of any other event described in
this Section 12 may be waived by the written concurrence of the Required Banks.
Any cash collateral delivered hereunder shall be held by the Agent (without
liability for interest thereon) and applied to obligations arising in connection
with any drawing under a Letter of Credit. After the expiration or termination
of all Letters of Credit, such cash collateral shall be applied by the Agent to
any remaining obligations hereunder and any excess shall be delivered to the
Borrowers or as a court of competent jurisdiction may elect.
THE AGENT
Appointment and Authorization. (a) Each Bank hereby irrevocably (subject to
Section 13.9) appoints, designates and authorizes the Agent to take such action
on its behalf under the provisions of this Agreement and each other Loan
Document and to exercise such powers and perform such duties as are expressly
delegated to it by the terms of this Agreement or any other Loan Document,
together with such powers as are reasonably incidental thereto. Notwithstanding
any provision to the contrary contained elsewhere in this Agreement or in any
other Loan Document, the Agent shall not have any duty or responsibility except
those expressly set forth herein, nor shall the Agent have or be deemed to have
any fiduciary relationship with any Bank, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the Agent.
The Issuing Bank shall act on behalf of the Banks with respect to any Letters of
Credit issued by it and the documents associated therewith. The Issuing Bank
shall have all of the benefits and immunities (i) provided to the Agent in this
Section 13 with respect to any acts taken or omissions suffered by the Issuing
Bank in connection with Letters of Credit issued by it or proposed to be issued
by it and the applications and agreements for letters of credit pertaining to
such Letters of Credit as fully as if the term "Agent", as used in this Section
13, included the Issuing Bank with respect to such acts or omissions and (ii) as
additionally provided in this Agreement with respect to the Issuing Bank.
Delegation of Duties. The Agent may execute any of its duties under this
Agreement or any other Loan Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects with
reasonable care. Liability of Agent. None of the Agent nor any of its directors,
officers, employees or agents shall (i) be liable for any action taken or
omitted to be taken by any of them under or in connection with this Agreement or
any other Loan Document or the transactions contemplated hereby (except for its
own gross negligence or willful misconduct), or (ii) be responsible in any
manner to any of the Banks for any recital, statement, representation or
warranty made by the Borrowers or any Subsidiary or Affiliate of the Borrowers,
or any officer thereof, contained in this Agreement or in any other Loan
Document, or in any certificate, report, statement or other document referred to
or provided for in, or received by the Agent under or in connection with, this
Agreement or any other Loan Document, or the validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document, or for any failure of any Borrower or any other party to any Loan
Document to perform its obligations hereunder or thereunder. The Agent shall not
be under any obligation to any Bank to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the properties,
books or records of the Borrowers or any of the Borrowers' Subsidiaries or
Affiliates.
Reliance by Agent. The Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephone message,
statement or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons,
and upon advice and statements of legal counsel (including counsel to the
Borrowers), independent accountants and other experts selected by the Agent. The
Agent shall be fully justified in failing or refusing to take any action under
this Agreement or any other Loan Document unless it shall first receive such
advice or concurrence of the Required Banks as it deems appropriate and, if it
so requests, confirmation from the Banks of their obligation to indemnify the
Agent against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. The Agent shall in all
cases be fully protected in acting, or in refraining from acting, under this
Agreement or any other Loan Document in accordance with a request or consent of
the Required Banks and such request and any action taken or failure to act
pursuant thereto shall be binding upon all of the Banks. Notice of Default. The
Agent shall not be deemed to have knowledge or notice of the occurrence of any
Event of Default or Unmatured Event of Default except with respect to defaults
in the payment of principal, interest and fees required to be paid to the Agent
for the account of the Banks, unless the Agent shall have received written
notice from a Bank or the Borrowers referring to this Agreement, describing such
Event of Default or Unmatured Event of Default and stating that such notice is a
"notice of default". The Agent will notify the Banks of its receipt of any such
notice. The Agent shall take such action with respect to such Event of Default
or Unmatured Event of Default as may be requested by the Required Banks in
accordance with Section 12; provided that unless and until the Agent has
received any such request, the Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Event of
Default or Unmatured Event of Default as it shall deem advisable or in the best
interest of the Banks.
Credit Decision. Each Bank acknowledges that the Agent has not made any
representation or warranty to it, and that no act by the Agent hereafter taken,
including any review of the affairs of the Borrowers and their Subsidiaries,
shall be deemed to constitute any representation or warranty by the Agent to any
Bank. Each Bank represents to the Agent that it has, independently and without
reliance upon the Agent and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Borrowers and their Subsidiaries, and made its own
decision to enter into this Agreement and to extend credit to the Borrowers
hereunder. Each Bank also represents that it will, independently and without
reliance upon the Agent and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigations as it deems necessary
to inform itself as to the business, prospects, operations, property, financial
and other condition and creditworthiness of the Borrowers. Except for notices,
reports and other documents expressly herein required to be furnished to the
Banks by the Agent, the Agent shall not have any duty or responsibility to
provide any Bank with any credit or other information concerning the business,
prospects, operations, property, financial or other condition or
creditworthiness of the Borrowers which may come into the possession of the
Agent. Indemnification. Whether or not the transactions contemplated hereby are
consummated, the Banks shall indemnify upon demand the Agent and its directors,
officers, employees and agents (to the extent not reimbursed by or on behalf of
the Borrowers and without limiting the obligation of the Borrowers to do so),
pro rata, from and against any and all Indemnified Liabilities; provided that no
Bank shall be liable for any payment to any such Person of any portion of the
Indemnified Liabilities resulting from such Person's gross negligence or willful
misconduct. Without limitation of the foregoing, each Bank shall reimburse the
Agent upon demand for its ratable share of any costs or out-of-pocket expenses
(including Attorney Costs) incurred by the Agent in connection with the
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement,
any other Loan Document, or any document contemplated by or referred to herein,
to the extent that the Agent is not reimbursed for such expenses by or on behalf
of the Borrowers. The undertaking in this Section shall survive repayment of the
Loans, cancellation of the Notes, expiration or termination of the Letters of
Credit, any foreclosure under, or modification, release or discharge of, any or
all of the Collateral Documents, termination of this Agreement and the
resignation or replacement of the Agent. Agent in Individual Capacity. LaSalle
and its Affiliates may make loans to, issue letters of credit for the account
of, accept deposits from, acquire equity interests in and generally engage in
any kind of banking, trust, financial advisory, underwriting or other business
with the Borrowers and their Subsidiaries and Affiliates as though LaSalle were
not the Agent or the Issuing Bank hereunder and without notice to or consent of
the Banks. The Banks acknowledge that, pursuant to such activities, LaSalle or
its Affiliates may receive information regarding the Borrowers or their
Affiliates (including information that may be subject to confidentiality
obligations in favor of the Borrowers or such Affiliates) and acknowledge that
the Agent shall be under no obligation to provide such information to them. With
respect to their Loans (if any), LaSalle and its Affiliates shall have the same
rights and powers under this Agreement as any other Bank and may exercise the
same as though LaSalle were not the Agent and the Issuing Bank, and the terms
"Bank" and "Banks" include LaSalle and its Affiliates, to the extent applicable,
in their individual capacities. Successor Agent. The Agent may resign as Agent
upon 30 days' notice to the Banks. If the Agent resigns under this Agreement,
the Required Banks shall, with (so long as no Event of Default exists) the
consent of the Borrowers (which shall not be unreasonably withheld or delayed),
appoint from among the Banks a successor agent for the Banks. If no successor
agent is appointed prior to the effective date of the resignation of the Agent,
the Agent may appoint, after consulting with the Banks and the Borrowers, a
successor agent from among the Banks. Upon the acceptance of its appointment as
successor agent hereunder, such successor agent shall succeed to all the rights,
powers and duties of the retiring Agent and the term "Agent" shall mean such
successor agent, and the retiring Agent's appointment, powers and duties as
Agent shall be terminated. After any retiring Agent's resignation hereunder as
Agent, the provisions of this Section 13 and Sections 14.6 and 14.13 shall inure
to its benefit as to any actions taken or omitted to be taken by it while it was
Agent under this Agreement. If no successor agent has accepted appointment as
Agent by the date which is 30 days following a retiring Agent's notice of
resignation, the retiring Agent's resignation shall nevertheless thereupon
become effective and the Banks shall perform all of the duties of the Agent
hereunder until such time, if any, as the Required Banks appoint a successor
agent as provided for above.
Collateral Matters. The Banks irrevocably authorize the Agent and/or the
Security Trustee, at its option and in its discretion, (a) to release any Lien
granted to or held by the Agent or the Security Trustee, as the case may be,
under any Collateral Document (i) upon termination of the Commitments and
payment in full of all Loans and all other obligations of the Borrowers
hereunder and the expiration or termination of all Letters of Credit; (ii)
constituting property sold or to be sold or disposed of as part of or in
connection with any disposition permitted hereunder; or (iii) subject to Section
14.1, if approved, authorized or ratified in writing by the Required Banks; or
(b) to subordinate its interest in any collateral to any holder of a Lien on
such collateral which is permitted by clause (d)(i) or (d)(iii) of Section 10.8
(it being understood that the Agent and the Security Trustee may conclusively
rely on a certificate from the Borrowers in determining whether the Debt secured
by any such Lien is permitted by Section 10.7(b)). Upon request by the Agent at
any time, the Banks will confirm in writing the Agent's or the Security
Trustee's, as the case may be, authority to release, or subordinate its interest
in, particular types or items of collateral pursuant to this Section 13.8.
Security Trustee. Each Bank and the Agent hereby appoints the Security Trustee
to act as its trustee under and in relation to the Collateral Documents pursuant
to this Agreement and to hold the Trust Property as trustee for the Agent and
the Banks on the trusts and other terms contained in the Collateral Documents
and the Agent and each Bank hereby irrevocably authorizes the Security Trustee
to exercise such rights, powers and discretions as are specifically delegated to
the Security Trustee by the terms of the Collateral Documents together with all
such rights, powers and discretions as are reasonably incidental thereto.
Successor Security Trustee.
Resignation: The Security Trustee may resign its appointment under any of this
Agreement or the Collateral Documents at any time by giving not less than thirty
days' notice in writing to that effect to each of the other parties to this
Agreement provided that such resignation shall not become effective until a
successor to the Security Trustee has been appointed and accepted its
appointment in accordance with the following provisions of this Section 13.10
and all necessary documents have been entered into to ensure that the benefit of
the Security Documents is held by such successor.
Appointment of Successor: If the Security Trustee gives notice of its
resignation the Agent may appoint a successor. If the Agent has not within sixty
days after such notice of resignation appointed a successor to the Security
Trustee which shall have accepted such appointment, the retiring Security
Trustee shall have the right to appoint such a successor itself.
Discharge: If a successor to the Security Trustee is appointed under the
provisions of this Section 13.10 then the retiring Security Trustee shall be
discharged from any further obligations under this Agreement and the Collateral
Documents but shall remain entitled to the benefit of the provisions of this
Section 13.10 and its successor and each of the other parties to this Agreement
shall have the same rights and obligations amongst themselves as they would have
had if such successor had been a party to this Agreement.
Disclosure: The retiring Security Trustee, shall make available to its successor
such documents and records and provide such assistance as the successor may
reasonably request for the purpose of performing its functions under this
Agreement and the Collateral Documents. Notwithstanding any provision to the
contrary, the Security Trustee shall not be obliged to disclose to any person
any confidential or other information if the disclosure would or might in its
reasonable opinion constitute a breach of any law or fiduciary duty.
Protection of Security Trustee. The benefits conferred on the Agent pursuant to
this Section 13 regarding rights to indemnification and the exercise of its
rights, powers, authorizations, discretions, duties and responsibilities
pursuant to this Agreement and any other Loan Document and also pursuant to
Section 14 shall also be conferred, where appropriate, on the Security Trustee
in relation to this Agreement and the Security Documents and references to Agent
in this Section 13 and Section 14 shall be read and construed as references to
the Agent and/or the Security Trustee accordingly.
GENERAL
Waiver; Amendments. No delay on the part of the Agent, the Security Trustee or
any Bank in the exercise of any right, power or remedy shall operate as a waiver
thereof, nor shall any single or partial exercise by any of them of any right,
power or remedy preclude other or further exercise thereof, or the exercise of
any other right, power or remedy. No amendment, modification or waiver of, or
consent with respect to, any provision of this Agreement or the Notes shall in
any event be effective unless the same shall be in writing and signed and
delivered by Banks having an aggregate Pro Rata Share of not less than the
aggregate Pro Rata Share expressly designated herein with respect thereto or, in
the absence of such designation as to any provision of this Agreement or the
Notes, by the Required Banks, and then any such amendment, modification, waiver
or consent shall be effective only in the specific instance and for the specific
purpose for which given. No amendment, modification, waiver or consent shall
change the Pro Rata Share of any Bank without the consent of such Bank. No
amendment, modification, waiver or consent shall (i) increase the Revolving
Commitment Amount, (ii) extend the date for payment of any principal of or
interest on the Loans or any fees payable hereunder, (iii) reduce the principal
amount of any Loan, the rate of interest thereon or any fees payable hereunder,
(iv) release the Guaranty (if any) or all or any substantial part of the
collateral granted under the Collateral Documents or (v) reduce the aggregate
Pro Rata Share required to effect an amendment, modification, waiver or consent
without, in each case, the consent of all Banks. No provision of Section 13 or
other provision of this Agreement affecting the Agent in its capacity as such
shall be amended, modified or waived without the consent of the Agent. No
provision of this Agreement relating to the rights or duties of the Issuing Bank
in its capacity as such shall be amended, modified or waived without the consent
of the Issuing Bank. Confirmations. Each Borrower and each holder of a Note
agree from time to time, upon written request received by it from the other, to
confirm to the other in writing (with a copy of each such confirmation to the
Agent) the aggregate unpaid principal amount of the Loans then outstanding under
such Note.
Notices. Except as otherwise provided in Sections 2.2.2 and 2.2.3, all notices
hereunder shall be in writing (including facsimile transmission) and shall be
sent to the applicable party at its address shown on Schedule 14.3 or at such
other address as such party may, by written notice received by the other
parties, have designated as its address for such purpose. Notices sent by
facsimile transmission shall be deemed to have been given when sent; notices
sent by mail shall be deemed to have been given three Business Days after the
date when sent by registered or certified mail, postage prepaid; and notices
sent by hand delivery or overnight courier service shall be deemed to have been
given when received. For purposes of Sections 2.2.2 and 2.2.3, the Agent shall
be entitled to rely on telephonic instructions from any person that the Agent in
good faith believes is an authorized officer or employee of the Borrower
Representative, and the Borrower Representative shall hold the Agent and each
other Bank harmless from any loss, cost or expense resulting from any such
reliance.
Computations. Where the character or amount of any asset or liability or item of
income or expense is required to be determined, or any consolidation or other
accounting computation is required to be made, for the purpose of this
Agreement, such determination or calculation shall, to the extent applicable and
except as otherwise specified in this Agreement, be made in accordance with
GAAP, consistently applied; provided that if the Borrower Representative
notifies the Agent that the Borrower Representative wishes to amend any covenant
in Section 10 to eliminate or to take into account the effect of any change in
GAAP on the operation of such covenant (or if the Agent notifies the Borrower
Representative that the Required Banks wish to amend Section 10 for such
purpose), then the Borrowers' compliance with such covenant shall be determined
on the basis of GAAP in effect immediately before the relevant change in GAAP
became effective, until either such notice is withdrawn or such covenant is
amended in a manner satisfactory to the Borrowers and the Required Banks.
Regulation U. Each Bank represents that it in good faith is not relying, either
directly or indirectly, upon any Margin Stock as collateral security for the
extension or maintenance by it of any credit provided for in this Agreement.
Costs, Expenses and Taxes. Each Borrower jointly and severally agrees to pay on
demand all reasonable out-of-pocket costs and expenses of the Agent (including
Attorney Costs) in connection with the preparation, execution, syndication,
delivery and administration of this Agreement, the other Loan Documents and all
other documents provided for herein or delivered or to be delivered hereunder or
in connection herewith (including any amendment, supplement or waiver to any
Loan Document), and all reasonable out-of-pocket costs and expenses (including
Attorney Costs) incurred by the Agent, the Security Trustee and each Bank after
an Event of Default in connection with the enforcement of this Agreement, the
other Loan Documents or any such other documents. In addition, each Borrower
jointly and severally agrees to pay, and to save the Agent, the Security Trustee
and the Banks harmless from all liability for, (a) any stamp or other taxes
(excluding income taxes and franchise taxes based on net income) which may be
payable in connection with the execution and delivery of this Agreement, the
borrowings hereunder, the issuance of the Notes or the execution and delivery of
any other Loan Document or any other document provided for herein or delivered
or to be delivered hereunder or in connection herewith and (b) any fees of the
Borrowers' auditors in connection with any reasonable exercise by the Agent and
the Banks of their rights pursuant to Section 10.2. All obligations provided for
in this Section 14.6 shall survive repayment of the Loans, cancellation of the
Notes, expiration or termination of the Letters of Credit and termination of
this Agreement.
Subsidiary References. The provisions of this Agreement relating to
Subsidiaries shall apply only during such times as the applicable Borrower
has one or more Subsidiaries.
Captions. Section captions used in this Agreement are for convenience only and
shall not affect the construction of this Agreement.
Assignments; Participations.
---------------------------
Assignments. Any Bank may, with the prior written consents of the Issuing Bank
and the Agent and (so long as no Event of Default exists) the Borrower
Representative (which consents shall not be unreasonably delayed or withheld
and, in any event, shall not be required for an assignment by a Bank to one of
its Affiliates), at any time assign and delegate to one or more commercial banks
or other Persons (any Person to whom such an assignment and delegation is to be
made being herein called an "Assignee") all or any fraction of such Bank's Loans
and Commitment (which assignment and delegation shall be of a constant, and not
a varying, percentage of all the assigning Bank's Loans and Commitment) in a
minimum aggregate amount equal to the lesser of (i) the amount of the assigning
Bank's Pro Rata Share of the Revolving Commitment Amount and (ii) $1,000,000;
provided that (a) no assignment and delegation may be made to any Person if, at
the time of such assignment and delegation, the Borrowers would be obligated to
pay any greater amount under Section 7.6 or Section 8 to the Assignee than the
Borrowers are then obligated to pay to the assigning Bank under such Sections
(and if any assignment is made in violation of the foregoing, the Borrowers will
not be required to pay the incremental amounts) and (b) each Borrower and the
Agent shall be entitled to continue to deal solely and directly with such Bank
in connection with the interests so assigned and delegated to an Assignee until
the date when all of the following conditions shall have been met:
(x) five Business Days (or such lesser period of time as the
Agent and the assigning Bank shall agree) shall have passed after
written notice of such assignment and delegation, together with payment
instructions, addresses and related information with respect to such
Assignee, shall have been given to the Borrower Representative and the
Agent by such assigning Bank and the Assignee,
(y) the assigning Bank and the Assignee shall have executed
and delivered to the Borrower Representative and the Agent an
assignment agreement substantially in the form of Exhibit G (an
"Assignment Agreement"), together with any documents required to be
delivered thereunder, which Assignment Agreement shall have been
accepted by the Agent, and
(z) except in the case of an assignment by a Bank to one of
its Affiliates, the assigning Bank or the Assignee shall have paid the
Agent a processing fee of $3,500.
From and after the date on which the conditions described above have been met,
(x) such Assignee shall be deemed automatically to have become a party hereto
and, to the extent that rights and obligations hereunder have been assigned and
delegated to such Assignee pursuant to such Assignment Agreement, shall have the
rights and obligations of a Bank hereunder and (y) the assigning Bank, to the
extent that rights and obligations hereunder have been assigned and delegated by
it pursuant to such Assignment Agreement, shall be released from its obligations
hereunder. Within five Business Days after effectiveness of any assignment and
delegation, the Borrowers shall execute and deliver to the Agent (for delivery
to the Assignee and the Assignor, as applicable) a new Note in the principal
amount of the Assignee's Pro Rata Share of the Revolving Commitment Amount and,
if the assigning Bank has retained a Commitment hereunder, a replacement Note in
the principal amount of the Pro Rata Share of the Revolving Commitment Amount
retained by the assigning Bank (such Note to be in exchange for, but not in
payment of, the predecessor Note held by such assigning Bank). Each such Note
shall be dated the effective date of such assignment. The assigning Bank shall
xxxx the predecessor Note "exchanged" and deliver it to the Borrower
Representative. Accrued interest on that part of the predecessor Note being
assigned shall be paid as provided in the Assignment Agreement. Accrued interest
and fees on that part of the predecessor Note not being assigned shall be paid
to the assigning Bank. Accrued interest and accrued fees shall be paid at the
same time or times provided in the predecessor Note and in this Agreement. Any
attempted assignment and delegation not made in accordance with this Section
14.9.1 shall be null and void.
Notwithstanding the foregoing provisions of this Section 14.9.1 or any
other provision of this Agreement, any Bank may at any time assign all or any
portion of its Loans and its Note to a Federal Reserve Bank (but no such
assignment shall release any Bank from any of its obligations hereunder).
Participations. Any Bank may at any time sell to one or more commercial banks or
other Persons participating interests in any Loan owing to such Bank, the Note
held by such Bank, the Commitment of such Bank, the direct or participation
interest of such Bank in any Letter of Credit or any other interest of such Bank
hereunder (any Person purchasing any such participating interest being herein
called a "Participant"). In the event of a sale by a Bank of a participating
interest to a Participant, (x) such Bank shall remain the holder of its Note for
all purposes of this Agreement, (y) the Borrowers and the Agent shall continue
to deal solely and directly with such Bank in connection with such Bank's rights
and obligations hereunder and (z) all amounts payable by the Borrowers shall be
determined as if such Bank had not sold such participation and shall be paid
directly to such Bank. No Participant shall have any direct or indirect voting
rights hereunder except with respect to any of the events described in the
fourth sentence of Section 14.1. Each Bank agrees to incorporate the
requirements of the preceding sentence into each participation agreement which
such Bank enters into with any Participant. Borrowers agree that if amounts
outstanding under this Agreement and the Notes are due and payable (as a result
of acceleration or otherwise), each Participant shall be deemed to have the
right of setoff in respect of its participating interest in amounts owing under
this Agreement, any Note and with respect to any Letter of Credit to the same
extent as if the amount of its participating interest were owing directly to it
as a Bank under this Agreement or such Note; provided that such right of setoff
shall be subject to the obligation of each Participant to share with the Banks,
and the Banks agree to share with each Participant, as provided in Section 7.5.
Borrowers also agree that each Participant shall be entitled to the benefits of
Section 7.6 and Section 8 as if it were a Bank (provided that no Participant
shall receive any greater compensation pursuant to Section 7.6 or Section 8 than
would have been paid to the participating Bank if no participation had been
sold). Governing Law. This Agreement and each Note shall be a contract made
under and governed by the internal laws of the State of Illinois applicable to
contracts made and to be performed entirely within such State. Whenever possible
each provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Agreement
shall be prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement. All obligations of the Borrowers and rights of the Agent and the
Banks expressed herein or in any other Loan Document shall be in addition to and
not in limitation of those provided by applicable law.
Counterparts. This Agreement may be executed in any number of counterparts and
by the different parties hereto on separate counterparts and each such
counterpart shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same Agreement.
Successors and Assigns. This Agreement shall be binding upon each Borrower, the
Banks and the Agent and their respective successors and assigns, and shall inure
to the benefit of each Borrower, the Banks and the Agent and the successors and
assigns of the Banks and the Agent.
Indemnification by the Borrowers. In consideration of the execution and delivery
of this Agreement by the Agent, the Security Trustee and the Banks and the
agreement to extend the Commitments provided hereunder, each Borrower jointly
and severally hereby agrees to indemnify, exonerate and hold the Agent, the
Security Trustee, each Bank and each of the officers, directors, employees,
Affiliates and agents of the Agent, the Security Trustee and each Bank (each a
"Bank Party") free and harmless from and against any and all actions, causes of
action, suits, losses, liabilities, damages and expenses, including Attorney
Costs (collectively, the "Indemnified Liabilities"), incurred by the Bank
Parties or any of them as a result of, or arising out of, or relating to (i) any
tender offer, merger, purchase of stock, purchase of assets or other similar
transaction financed or proposed to be financed in whole or in part, directly or
indirectly, with the proceeds of any of the Loans, (ii) the use, handling,
release, emission, discharge, transportation, storage, treatment or disposal of
any hazardous substance at any property owned or leased by any Loan Party, (iii)
any violation of any Environmental Laws with respect to conditions at any
property owned or leased by any Loan Party or the operations conducted thereon,
(iv) the investigation, cleanup or remediation of offsite locations at which any
Loan Party or its respective predecessors are alleged to have directly or
indirectly disposed of hazardous substances or (v) the execution, delivery,
performance or enforcement of this Agreement or any other Loan Document by any
of the Bank Parties, except for any such Indemnified Liabilities arising on
account of the applicable Bank Party's gross negligence or willful misconduct.
If and to the extent that the foregoing undertaking may be unenforceable for any
reason, each Borrower jointly and severally hereby agrees to make the maximum
contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law. All obligations provided
for in this Section 14.13 shall survive repayment of the Loans, cancellation of
the Notes, expiration or termination of the Letters of Credit, any foreclosure
under, or any modification, release or discharge of, any or all of the
Collateral Documents and termination of this Agreement.
The Borrowers hereby agree that if for any purpose, including the obtaining of
judgment in any court, it is necessary to convert a sum due hereunder from the
currency in which it is payable (the "Payment Currency") into another currency
(the "Judgment Currency"), the parties hereto agree, to the fullest extent that
they may lawfully and effectively do so, that the rate of exchange used shall be
that at which, in accordance with normal banking procedures, the Agent could
purchase the Payment Currency with the Judgment Currency in the Chicago foreign
exchange market on the Business Day preceding the date of final judgment. The
obligation of the Borrowers in respect of any sum due from such Borrowers to a
Bank hereunder shall, notwithstanding any judgment or payment in a currency
other than the Payment Currency, be discharged only to the extent that on the
Business Day following receipt by a Bank of any sum to paid or adjudged to be so
due in the Judgment Currency the Agent may in accordance with normal banking
procedures, purchase the Payment Currency with the amount of Judgment Currency
so paid or adjudged to be due; if the amount in the Payment Currency so
purchased is less than the sum originally due to a Bank in the Payment Currency,
the Borrowers agree, as a separate obligation and additional cause of action and
notwithstanding any such payment or judgment, to indemnify each Bank against
such loss and if the amount in the Payment Currency so purchased exceeds the sum
originally due to the Banks in the Payment Currency, the Banks agree to remit to
the Borrowers such excess. The term "rate of exchange" in this Section 14.13
means the spot rate at which the Agent, in accordance with normal practices, is
able on the relevant date to purchase the Payment Currency with the Judgment
Currency and includes any premium and costs of exchange payable in connection
with the purchase.
Nonliability of Lenders. The relationship between the Borrowers on the one hand
and the Bank Parties on the other hand shall be solely that of borrower and
lender. Neither the Agent, the Security Trustee nor any Bank shall have any
fiduciary responsibility to the Borrowers. Neither the Agent, the Security
Trustee nor any Bank undertakes any responsibility to the Borrowers to review or
inform the Borrowers on any matter in connection with any phase of the
Borrower's business or operations. The Borrowers agree that no Bank Party shall
have liability to the Borrowers (whether sounding in tort, contract or
otherwise) for losses suffered by the Borrowers in connection with, arising out
of, or in any way related to the transactions contemplated and the relationship
established by the Loan Documents, or any act, omission or event occurring in
connection therewith, unless it is determined in a final non-appealable judgment
by a court of competent jurisdiction that such losses resulted from the gross
negligence or willful misconduct of the party from which recovery is sought. No
Bank Party shall have any liability with respect to, and the Borrowers hereby
waive, release and agree not to xxx for, any special, indirect or consequential
damages suffered by the Borrowers in connection with, arising out of, or in any
way related to the Loan Documents or the transactions contemplated thereby.
20.6 Forum Selection and Consent to Jurisdiction. ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT, SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS
OF THE STATE OF ILLINOIS OR IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS; PROVIDED THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY
COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE AGENT'S OR THE SECURITY
TRUSTEE'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR
OTHER PROPERTY MAY BE FOUND. EACH BORROWER HEREBY EXPRESSLY AND IRREVOCABLY
SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF ILLINOIS AND OF THE
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS FOR THE
PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE. EACH BORROWER COMPANY FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE
PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF ILLINOIS. EACH
BORROWER HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND
ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
20.7 Waiver of Jury Trial. EACH BORROWER AND EACH BANK PARTY HEREBY
WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR
DEFEND ANY RIGHTS UNDER THIS AGREEMENT, ANY NOTE, ANY OTHER LOAN DOCUMENT AND
ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE
FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY
BANKING RELATIONSHIP EXISTING IN CONNECTION WITH ANY OF THE FOREGOING, AND
AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY.
GUARANTIES
Guaranty. Each Borrower (each individually in such capacity a "Guarantor" and
collectively "Guarantors") hereby jointly and severally, unconditionally and
irrevocably guaranties as primary obligor and not merely as surety, the full and
punctual payment when due of all obligations (monetary or otherwise) of each
other Borrower to each of the Agent, the Security Trustee and each Lender Party
(as defined below) under or in connection with this Agreement, the Notes, any
other Loan Document and any other document or instrument executed in connection
therewith and all Hedging Obligations of the Borrowers to any Lender Party, in
each case howsoever created, arising or evidenced, whether direct or indirect,
absolute or contingent, now or hereafter existing, or due or to become due (all
such obligations being herein collectively called the "Guaranteed Liabilities");
provided that the liability of a Guarantor under this Section 15 shall be
limited to the maximum amount of the Guaranteed Liabilities which such Guarantor
may guaranty (after giving effect to rights to contribution of such Guarantor
from its Affiliates) without violating any applicable fraudulent conveyance or
fraudulent transfer law (plus all costs and expenses paid or incurred by the
Agent or any Lender Party in enforcing this guaranty against such Guarantor). As
used herein, "Lender Party" means each Bank and any Affiliate of such a Bank
which is a party to a Hedging Agreement with the Borrowers. Upon failure by any
Borrower to pay punctually any such amount, upon demand by the Agent, each
Guarantor shall forthwith pay the amount not so paid at the place and in the
manner and with the effect specified in this Agreement. Each obligation under
this Section 15.1 is an absolute, unconditional and continuing guaranty of the
full and punctual payment and performance of all of such Guaranteed Liabilities
and not of their collectability only and is in no way conditioned upon any
requirement that the Agent, the Security Trustee or any Bank first attempt to
collect any of the Guaranteed Liabilities from any Borrower directly or resort
to any collateral security, any balance of any deposit account or credit on the
books of the Agent or any Bank in favor of any Borrower or any other Person or
other means of obtaining payment. Should any Borrower default in the payment or
performance of any of the Guaranteed Liabilities, the Agent and each Bank may
cause the obligations of each Guarantor hereunder with respect to such
Guaranteed Liabilities to become forthwith due and payable to the Banks, without
demand or notice of any nature, all of which are expressly waived by each
Guarantor.
Unconditional Obligation. The obligations of each Guarantor hereunder shall be
unconditional and absolute and, without limiting the generality of the
foregoing, shall not be released, discharged or otherwise affected by: (a) any
extension, renewal, settlement, compromise, waiver or release in respect of any
Guaranteed Liabilities of any Borrower or the collateral therefor under this
Agreement or the other Loan Documents; (b) any modification or amendment of or
supplement to this Agreement or the other Loan Documents; (c) any merger or
consolidation, change in the existence, structure or ownership of any Borrower,
or any insolvency, bankruptcy, reorganization, adjustment, composition,
liquidation or other similar proceeding affecting any Borrower or its collateral
or its assets; (d) the existence of any claim, set-off or other rights which
such Guarantor may have at any time against any Borrower, any Bank or any other
Person, whether in connection herewith or any unrelated transactions, provided
that nothing herein shall prevent the assertion of any such claim by separate
suit or compulsory counterclaim; (e) any invalidity or unenforceability relating
to or against any Borrower for any reason of any provision or all of this
Agreement or the other Loan Documents, or any provision of applicable law or
regulation purporting to prohibit the payment by any Borrower of the principal
of or interest on any loan or any other amount payable by it under this
Agreement or the other Loan Documents; or (f) any other act or omission to act
or delay of any kind by any other Borrower, the Agent, the Security Trustee, any
Bank or any other Person or any other circumstance whatsoever which might, but
for the provisions of this paragraph, constitute a legal or equitable discharge
of such Borrower's obligations or Guarantor's obligations under this Agreement
or the other Loan Documents.
Period in Force. Each Guarantor's obligations under this Section 15 shall remain
in full force and effect until all Guaranteed Liabilities shall have been
indefeasibly paid in full and this Agreement and the other Loan Documents shall
have terminated in accordance with their terms. If at any time any payment of
the principal of or interest on any Loans made to a Borrower or any other amount
payable by any Borrower under this Agreement or the other Loan Document is
rescinded or must be otherwise restored or returned upon the insolvency,
bankruptcy or reorganization of such Borrower or otherwise, each of Guarantor's
obligations under this Section 15 with respect to such payment shall be revived
and continued in full force and effect. WAIVER. EACH GUARANTOR WAIVES ACCEPTANCE
HEREOF, PRESENTMENT, DEMAND, PROTEST AND ANY NOTICE NOT PROVIDED FOR HEREIN, AS
WELL AS ANY REQUIREMENT THAT AT ANY TIME ANY ACTION BE TAKEN BY ANY PERSON
AGAINST ANY BORROWER OR ANY OTHER PERSON. EACH GUARANTOR HEREBY WAIVES (UNTIL
THE GUARANTEED LIABILITIES HAVE BEEN INDEFEASIBLY REPAID IN FULL) ANY RIGHTS OF
OFFSET, SUBROGATION, CONTRIBUTION, INDEMNIFICATION, REIMBURSEMENT OR OTHER
SIMILAR RIGHT IT MAY HAVE AGAINST ANY BORROWER ARISING OR RESULTING FROM THE
ENFORCEMENT OF THE AGENT'S OR BANKS' RIGHTS UNDER ANY GUARANTY BY SUCH BORROWER
OF THE OBLIGATIONS HEREUNDER. EACH GUARANTOR ALSO IRREVOCABLY WAIVES, TO THE
EXTENT PERMITTED BY APPLICABLE LAW, ALL DEFENSES THAT AT ANY TIME MAY BE
AVAILABLE IN RESPECT OF THE OBLIGATIONS BY VIRTUE OF ANY STATUTE OF LIMITATIONS,
VALUATION, STAY, REDEMPTION, MORATORIUM LAW OR OTHER SIMILAR LAW NOW OR
HEREAFTER IN EFFECT. Effect of Stay. This Section 15 shall be in addition to any
other guaranty or other security for the Guaranteed Liabilities, and it shall
not be rendered unenforceable by the invalidity of any such other guaranty or
security. In the event that acceleration of the time for payment of any of the
Guaranteed Liabilities is stayed upon the insolvency, bankruptcy or
reorganization of any Borrower, or for any other reason, all such amounts
otherwise subject to acceleration under the terms of this Agreement, the other
Loan Documents or any other agreement evidencing, securing or otherwise executed
in connection with the Guaranteed Liabilities shall be immediately due and
payable by each other Borrower.
Subordination. The payment of any amounts due with respect to any debt of any
Guarantor now or hereafter owed to any other Guarantor is hereby subordinated to
the prior indefeasible payment in full of all of the Guaranteed Liabilities.
Each Guarantor agrees that, after the occurrence of any default in the payment
or performance of any of the Guaranteed Liabilities, it will not demand, xxx for
or otherwise attempt to collect any such debt of any other Loan Party to it
until all of the Guaranteed Liabilities shall have been indefeasibly paid in
full. If, notwithstanding the foregoing sentence, any Guarantor shall collect,
enforce or receive any amounts in respect of such Debt while Guaranteed
Liabilities are still outstanding, such amounts shall be collected, enforced and
received by such Guarantor as trustee for the Agent and each Bank and be paid
over to the Agent on account of the Guaranteed Liabilities without affecting in
any manner the liability of such Guarantor under the other provisions of this
Section 15. The provisions of this Section 15 shall be supplemental to and not
in derogation of any rights and remedies of the Agent and each Bank under any
separate subordination agreement which the Bank may at any time and from time to
time enter into with any Guarantor.
[Signature page follows]
Delivered at Chicago, Illinois, as of the day and year first above
written.
XXXXXXXX INDUSTRIES, INC.
By_________________________
Title______________________
NP AEROSPACE LIMITED
By_________________________
Title______________________
XXXXXX XXXXXXX ENTERPRISES, INC.
By_________________________
Title______________________
LASALLE BANK NATIONAL ASSOCIATION, as Agent and Security Trustee
By_________________________
Title______________________
LASALLE BANK NATIONAL ASSOCIATION, as Issuing Bank and as a Bank
By_________________________
Title______________________
Error! Unknown document property name.
PRICING SCHEDULE
The LIBOR Margin, the Base Rate Margin and the LC Fee Rate shall be as
set forth below:
---------------------------------------- ---------------------------------------
LIBOR Base Rate LC Fee
Margin Margin Rate
---------------------------------------- ---------------------------------------
---------------------------------------- ---------------------------------------
2.50% 0% 2.50%
---------------------------------------- ---------------------------------------
--------------------------------------------------------------------------------
SCHEDULE 2.1
BANKS AND PRO RATA SHARES
------------------------------------------------ --- ---------------------------
Bank Pro Rata Share Pro Rata Share
of Revolving
Commitment Amount
------------------------------------------------ --- ---------------------------
------------------------------------------------ --- ---------------------------
LaSalle Bank National Association $10,000,000 100%
------------------------------------------------ --- ---------------------------
------------------------------------------------ --- ---------------------------
------------------------------------------------ --- ---------------------------
------------------------------------------------ --- ---------------------------
TOTALS $10,000,000 100%
------------------------------------------------ -------------------------------
SCHEDULE 9.6
LITIGATION AND CONTINGENT LIABILITIES
SCHEDULE 9.8
SUBSIDIARIES
SCHEDULE 9.15
ENVIRONMENTAL MATTERS
SCHEDULE 9.16
INSURANCE
SCHEDULE 9.17
REAL PROPERTY
SCHEDULE 9.21
LABOR MATTERS
SCHEDULE 10.7
EXISTING DEBT
SCHEDULE 10.8
EXISTING LIENS
SCHEDULE 10.21
INVESTMENTS
SCHEDULE 14.3
ADDRESSES FOR NOTICES
XXXXXXXX INDUSTRIES, INC., as Borrower Representative
-------------------------
00000 X. Xxxxxxxx Xxx.
Xxxxx Xx Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
LASALLE BANK NATIONAL ASSOCIATION, as Agent, Issuing Bank and a Bank
---------------------------------
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
EXHIBIT A
FORM OF REVOLVING NOTE
-----------,-----
$__________________ Chicago, Illinois
Each of the undersigned, for value received, jointly and severally
promises to pay to the order of ______________ (the "Bank") at the principal
office of LaSalle Bank National Association (the "Agent") in Chicago, Illinois
the aggregate unpaid amount of all Revolving Loans made to the undersigned by
the Bank pursuant to the Credit Agreement referred to below (as shown on the
schedule attached hereto (and any continuation thereof) or in the records of the
Bank), such principal amount to be payable on the dates set forth in the Credit
Agreement.
Each of the undersigned further jointly and severally promises to pay
interest on the unpaid principal amount of each Revolving Loan from the date of
such Revolving Loan until such Revolving Loan is paid in full, payable at the
rate(s) and at the time(s) set forth in the Credit Agreement. Payments of both
principal and interest are to be made in lawful money of the United States of
America.
This Revolving Note evidences indebtedness incurred under, and is
subject to the terms and provisions of, the Credit Agreement, dated as of
______________, 2002 (as amended or otherwise modified from time to time, the
"Credit Agreement"; terms not otherwise defined herein are used herein as
defined in the Credit Agreement), among the undersigned, certain financial
institutions (including the Bank) and the Agent, to which Credit Agreement
reference is hereby made for a statement of the terms and provisions under which
this Note may or must be paid prior to its due date or its due date accelerated.
This Revolving Note is made under and governed by the laws of the State
of Illinois applicable to contracts made and to be performed entirely within
such State.
XXXXXXXX INDUSTRIES, INC.
By_________________________
Title______________________
NP AEROSPACE LIMITED
By_________________________
Title______________________
XXXXXX XXXXXXX ENTERPRISES, INC.
By_________________________
Title______________________
Schedule attached to Note dated ______________, 2002 of XXXXXXXX
INDUSTRIES, INC., NP AEROSPACE LIMITED AND XXXXXX XXXXXXX ENTERPRISES,
INC. payable to the order of _____________
Date and Amount of Loan or of Date and Amount of Repayment Interest Principal Made by
Conversion from another type or of Conversion into another Period/Unpaid Balance
of Loan type of Notation Loan Maturity Date
1. BASE RATE LOANS
===================================================================================================================
===================================================================================================================
2. LIBOR LOANS
===================================================================================================================
===================================================================================================================
===================================================================================================================
===================================================================================================================
EXHIBIT B
FORM OF COMPLIANCE CERTIFICATE
To:______LaSalle Bank National Association, as Agent
Please refer to the Credit Agreement dated as of ______________, 2002
(as amended or otherwise modified from time to time, the "Credit Agreement")
among Xxxxxxxx Industries, Inc., NP Aerospace Limited, Xxxxxx Xxxxxxx
Enterprises, Inc. (collectively, the "Borrowers"), various financial
institutions and LaSalle Bank National Association, as agent. Terms used but not
otherwise defined herein are used herein as defined in the Credit Agreement.
I. Reports. Enclosed herewith is a copy of the [annual audited/monthly]
report of the Borrowers as at _____________, ____ (the
"Computation Date"), which report fairly presents in all
material respects the financial condition and results of
operations[(subject to the absence of footnotes and to normal
year-end adjustments)] of the Borrowers as of the
Computation Date and has been prepared in accordance with
GAAP consistently applied.
II. Financial Tests. On behalf of the Borrowers, the Borrower
Representative hereby certifies and warrants to you that
the following is a true and correct computation as at the
Computation Date of the following ratios and/or financial
restrictions contained in the Credit Agreement:
A. Section 10.6.1 - Minimum Tangible Net Worth
1. Stockholders' Equity $______________
2. Minus: Intangibles/Deductions $______________
-----
3. Tangible Net Worth (1 minus 2) $______________
-----
4. Minimum Required $10,000,000
B. Section 10.6.2 - Leverage Ratio
1. Total Liabilities $______________
2. Tangible Net Worth (from A.3 above) $______________
3. Ratio of 1 to 2 ___ to 1.0
4. Maximum allowed 1.75 to 1.0
C. Section 10.6.3 - Minimum Pre-Tax Earnings
1. Consolidated Net Income $______________
2. Plus: income tax expense $______________
Plus: for the March 31, 2002
and June 30, 2002
Computation Periods $5,351,000
3. Total (Pre-Tax Earnings) $______________
4. Minimum Required $1,500,000
D. Section 10.6.4 - Capital Expenditures
1. Capital Expenditures for the
Fiscal Year $______________
2. Maximum Permitted Capital
Expenditures $2,500,000
On behalf of the Borrowers, the Borrower Representative further
certifies to you that no Event of Default or Unmatured Event of Default has
occurred and is continuing.
IN WITNESS WHEREOF, the Borrower Representative has caused this
Certificate to be executed and delivered by its duly authorized officer on
_________, ____.
XXXXXXXX INDUSTRIES, INC.,
as Borrower Representative
By_______________________
Title____________________
EXHIBIT F
FORM OF BORROWING BASE CERTIFICATE
To: LaSalle Bank National Association, as Agent
000 X. XxXxxxx Xx.
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Please refer to the Credit Agreement dated as of ______________, 2002
(as amended or otherwise modified from time to time, the "Credit Agreement")
among Xxxxxxxx Industries, Inc., NP Aerospace Limited, Xxxxxx Xxxxxxx
Enterprises, Inc. (collectively, the "Borrowers"), various financial
institutions and LaSalle Bank National Association, as agent. This certificate
(this "Certificate"), together with supporting calculations attached hereto, is
delivered to you pursuant to the terms of the Credit Agreement. Capitalized
terms used but not otherwise defined herein shall have the same meanings herein
as in the Credit Agreement.
On behalf of the Borrowers, the Borrower Representative hereby
certifies and warrants to the Agent and the Banks that at the close of business
on ______________, ____ (the "Calculation Date"), the Borrowing Base was
$______________, computed as set forth on the schedule attached hereto.
IN WITNESS WHEREOF, the Borrower Representative has caused this
Certificate to be executed and delivered by its officer thereunto duly
authorized on ___________, ______.
XXXXXXXX INDUSTRIES, INC.,
as Borrower Representative
By________________________
Title_____________________
3
SCHEDULE TO BORROWING BASE CERTIFICATE
Dated as of [_________________]
A. ELIGIBLE DOMESTIC ACCOUNTS RECEIVABLE
1. Domestic Accounts Receivable $______________
2. Less Domestic Ineligibles
- Agent's Lien Not Perfected $______________
- Subject to other Lien $______________
- Subject to Offset, etc. $______________
- Account Debtor not in U.S., Canada,
Mexico or European Union $______________
- Sale on Approval, Sale or Return,
Xxxx and Hold or Consignment $______________
- Over 90 days past invoice date $______________
- Affiliate Receivables $______________
- credits in prior $______________
- Other $______________
- Total $______________
3. Eligible Domestic Accounts Receivable
[Item 1 minus Item 2] $______________
-----
4. Item 3 times 80% $______________
B. ELIGIBLE FOREIGN ACCOUNTS RECEIVABLE
1. Foreign Accounts Receivable $______________
2. Less Foreign Ineligibles
- Account Debtor not in U.K., U.S., E.U.,
Canada or Mexico $______________
- Agent's Lien Not Perfected $______________
- Subject to other Lien $______________
- Subject to Offset, etc. $______________
- Sale on Approval, Sale or Return,
Xxxx and Hold or Consignment $______________
- Over 90 days past invoice date $______________
- Affiliate Receivables $______________
- credits in prior $______________
- Other $______________
- Total $______________
3. Eligible Foreign Accounts Receivable
[Item 1 minus Item 2] $______________
-----
4. Item 3 times 70% $______________
C. ELIGIBLE DOMESTIC INVENTORY
1. Domestic Inventory $______________
2. Less Ineligibles
- Agent's Lien Not Perfected $______________
- Subject to other Lien $______________
- Not Salable $______________
- Located off-site and no
Collateral Access Agreement $______________
- Not located in U.S. $______________
- "In transit" or held on consignment $______________
- Work-in-process or Tooling Inventory $______________
- Packaging materials $______________
- Other $______________
- Total $______________
3. Eligible Domestic Inventory
[Item 1 minus Item 2]
less obsolescence reserve of $_________ $______________
4. Item 3 times 50% $______________
5. Maximum Domestic Inventory Amount $2,500,000
6. Available Domestic Inventory Amount (lesser of 4 and 5) $______________
D. ELIGIBLE FOREIGN INVENTORY
1. Foreign Inventory $______________
2. Less Ineligibles
- Agent's Lien Not Perfected $______________
- Subject to other Lien $______________
- Not Salable $______________
- Located off-site and no
Collateral Access Agreement $______________
- Not located in U.K. $______________
- "In transit" or held on consignment $______________
- Work-in-process or Tooling Inventory $______________
- Packaging materials $______________
- Other $______________
- Total $______________
3. Eligible Foreign Inventory
[Item 1 minus Item 2]
less obsolescence reserve of $_________ $______________
4. Item 3 times 40% $______________
5. Maximum Foreign Inventory Amount $750,000
6. Available Foreign Inventory Amount (lesser of 4 and 5) $______________
E. FIXED ASSET ADVANCE
1. Fixed Asset Advance Amount $2,750,000
($3,500,000
upon delivery of
Mortgage by NP Aerospace
for Coventry property)
2. Fixed Asset Advance Reduction ($125,000 per
fiscal quarter) $______________
3. Fixed Asset Advance Availability (1 minus 2) $______________
F. BORROWING BASE CALCULATION
1. Borrowing Base
[Item A.4 plus Item B.4 plus Item C.6, plus Item D.6
plus Item E.3] $______________
2. Lesser of Item 1 and
the Revolving Commitment Amount $______________
3. Revolving Outstandings $______________
12. Net Availability
[Excess of Item 2 over Item 3] $______________
13. Required Prepayment
[Excess of Item 3 over Item 2] $______________
