U.S. $50,000,000
CREDIT AGREEMENT,
(364 Day)
dated as of June 17, 1997
among
XXXXXXX INDUSTRIES, INC.
certain other Borrowers
as the Borrowers,
CERTAIN COMMERCIAL LENDING INSTITUTIONS
as the Lenders,
ABN AMRO BANK N.V.
as the Agent for the Lenders
and
COMERICA BANK
as Documentation Agent for the Lenders
PAGE
TABLE OF CONTENTS
SECTION PAGE
I DEFINITIONS AND ACCOUNTING TERMS. . . . . . . . . . . . . .1
1.1. Defined Terms . . . . . . . . . . . . . . . . . . . .1
1.2. Use of Defined Terms. . . . . . . . . . . . . . . . 19
1.3. Cross-References. . . . . . . . . . . . . . . . . . 19
1.4. Accounting and Financial Determinations . . . . . . 19
IICOMMITMENTS, BORROWING PROCEDURES AND NOTES. . . . . . . . . 19
2.1. Commitments . . . . . . . . . . . . . . . . . . . . 19
2.1.1. Revolving Loan Commitment. . . . . . . . 19
2.1.2. Commitment to Issue Letters of Credit. . 20
2.1.3. Lenders Not Permitted or
Required To Make Loans or
Issue or Participate in Letters
of Credit Under Certain
Circumstances. . . . . . . . . . . . . . 20
2.2. Reduction of Commitment Amounts . . . . . . . . . . 21
2.3. Borrowing Procedure . . . . . . . . . . . . . . . . 21
2.4. Continuation and Conversion Elections . . . . . . . 22
2.5. Funding . . . . . . . . . . . . . . . . . . . . . . 22
2.6. Notes . . . . . . . . . . . . . . . . . . . . . . . 23
2.7. Swing Line Commitment . . . . . . . . . . . . . . . 23
2.8. Borrowing Procedure Swing Loans . . . . . . . . . 23
2.9. Refunding of Swing Loans. . . . . . . . . . . . . . 23
2.10. Participations in Swing Loans. . . . . . . . . . . 24
2.11. Swing Loan Participation Obligations Unconditional 24
2.12. Conditions to Swing Loans. . . . . . . . . . . . . 25
2.13. Swing Note . . . . . . . . . . . . . . . . . . . . 25
2.14. Stated Maturity Date Extension . . . . . . . . . . 26
III REPAYMENTS, PREPAYMENTS, INTEREST AND FEES. . . . . . . . 27
3.1. Repayments and Prepayments. . . . . . . . . . . . . 27
3.2. Interest Provisions . . . . . . . . . . . . . . . . 28
3.2.1. Rates. . . . . . . . . . . . . . . . . . 28
3.2.2. Post-Maturity Rates. . . . . . . . . . . 28
3.2.3. Payment Dates. . . . . . . . . . . . . . 29
3.3. Fees. . . . . . . . . . . . . . . . . . . . . . . . 29
3.3.1. Commitment Fee . . . . . . . . . . . . . 29
3.3.2. Arrangement Fee; Agent's Fee . . . . . . 30
3.3.3. Letter of Credit Face Amount Fee . . . . 30
3.3.4. Letter of Credit Fronting Fee. . . . . . 30
3.3.5. Letter of Credit Administrative Fee. . . 31
IV LETTERS OF CREDIT. . . . . . . . . . . . . . . . . . . .. 31
4.1. Issuance Requests . . . . . . . . . . . . . . . . . 31
4.2. Issuances and Extensions. . . . . . . . . . . . . . 32
4.3. Expenses. . . . . . . . . . . . . . . . . . . . . . 32
4.4. Other Lenders' Participation. . . . . . . . . . . . 32
4.5. Disbursements . . . . . . . . . . . . . . . . . . . 33
4.6. Reimbursement . . . . . . . . . . . . . . . . . . . 34
4.7. Deemed Disbursements. . . . . . . . . . . . . . . . 34
4.8. Nature of Reimbursement Obligations . . . . . . . . 35
4.9. Increased Costs; Indemnity. . . . . . . . . . . . . 36
V GCERTAIN EUROCURRENCY RATE AND OTHER PROVISIONS. . . . . 37
5.1. Eurocurrency Rate Lending Unlawful. . . . . . . . . 37
5.2. Deposits Unavailable. . . . . . . . . . . . . . . . 38
5.3. Increased Eurocurrency Rate Loan Costs, etc . . . . 38
5.4. Funding Losses. . . . . . . . . . . . . . . . . . . 39
5.5. Increased Capital Costs . . . . . . . . . . . . . . 40
5.6. Taxes . . . . . . . . . . . . . . . . . . . . . . . 40
5.7. Payments, Computations, etc . . . . . . . . . . . . 41
5.8. Sharing of Payments . . . . . . . . . . . . . . . . 43
5.9. Setoff. . . . . . . . . . . . . . . . . . . . . . . 44
5.10. Use of Proceeds. . . . . . . . . . . . . . . . . . 44
VI CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . .. 44
6.1. Initial Credit Extension. . . . . . . . . . . . . . 44
6.1.1. Resolutions, etc . . . . . . . . . . . . .. 44
6.1.2. Delivery of Notes. . . . . . .. . . . . . . 45
6.1.3. Outstanding Indebtedness, etc. . . .. . . . 45
6.1.4 Delivery of Xxxxxxx Guaranty . . . . .. . . 45
6.1.5. Opinions of Counsel. . . . . . . . . . .. . 45
6.1.6. Regulatory Restriction . . . . . . .. . . . 45
6.1.7. Closing Fees, Expenses, etc. . . .. . . . . 46
6.2. All Credit Extensions. . . . . . . . . . . . .. . . 46
6.2.1. Compliance with Warranties, No Default, etc.46
6.2.2. Credit Request . . . . . . . . . . . . . .. 47
6.2.3. Satisfactory Legal Form. . . . . . . . .. . 47
VII REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . . . . 47
7.1. Organization, etc . . . . . . . . . . . . . . . . . 47
7.2. Due Authorization, NonContravention, etc. . . . . . 47
7.3. Government Approval, Regulation, etc. . . . . . . . 48
7.4. Validity, etc . . . . . . . . . . . . . . . . . . . 48
7.5. Financial Information . . . . . . . . . . . . . . . 48
7.6. No Material Adverse Change. . . . . . . . . . . . . 48
7.7. Environmental Warranties. . . . . . . . . . . . . . 48
7.8. Litigation, Labor Controversies, etc. . . . . . . . 50
7.9. Subsidiaries. . . . . . . . . . . . . . . . . . . . 50
7.10. Ownership of Properties. . . . . . . . . . . . . . 50
7.11. Taxes. . . . . . . . . . . . . . . . . . . . . . . 51
7.12. Pension and Welfare Plans. . . . . . . . . . . . . 51
7.13. Regulations G, U and X . . . . . . . . . . . . . . 51
7.14. Accuracy of Information. . . . . . . . . . . . . . 51
7.15. Solvency . . . . . . . . . . . . . . . . . . . . 52
VIII COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . 52
8.1. Affirmative Covenants . . . . . . . . . . . . . . . 52
8.1.1. Legal Existence. . . . . . . . . . . . . .. 52
8.1.2. Financial Information, Reports, Notices etc 52
8.1.3. Compliance with Laws, etc. . . .. . . . . . 54
8.1.4. Maintenance of Properties. . . .. . . . . . 55
8.1.5. Insurance. . . . . . . . . . . . . . .. . . 55
8.1.6. Books, Records and Access. . . . . . .. . . 55
8.1.7. Environmental Covenant . . . . . .. . . . . 55
8.1.8. Guaranty . . . . . . . . . . . . .. . . . . 56
8.2. Negative Covenants. . . . . . . . . . . . . . . . . 56
8.2.1. Business Activities. . . .. . . . . . . . . 56
8.2.2. Liens. . . . . . . . . . .. . . . . . . . . 56
8.2.3. Financial Condition. . . . . . .. . . . . . 57
8.2.4. Acquisitions . . . . . . . . . .. . . . . . 57
8.2.5. Investments. . . . . . . . . . . .. . . . . 58
8.2.6. Indebtedness . . . . . . . . . . . . . .. . 58
8.2.7. Subordinated Debt. . . . . . . . . . . .. . 60
8.2.8 Capital Expenditures, etc .. . . . . . . . 60
8.2.9. Rental Obligations . . . . . .. . . . . . . 60
8.2.10 Sale/Leaseback. . . . . . . . . .. . . . . 61
8.2.11 Consolidation, Merger, Etc. . . . . .. .. . 61
8.2.12 Asset Dispositions, etc.. . . . . . ... . . 61
8.2.13 Transactions with Affiliates. . . . . .. .. 61
IX EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . . 62
9.1. Listing of Events of Default. . . . . . . . . . . . 62
9.1.1. NonPayment of Obligations. . . . . . . .. . 62
9.1.2. Breach of Warranty . . . . . . . . . .. . . 62
9.1.3. Non-Performance of Certain Covenants
and Obligations. . . . . . . . . . . . . . .62
9.1.4. Non-Performance of Other Covenants
and Obligations. . . . . . . . . . . . . . .62
9.1.5. Default on Other Indebtedness. . . . .. . . 62
9.1.6. Judgments. . . . . . . . . . . . . . . .. . 63
9.1.7. Pension Plans. . . . . . . . . . . . .. . . 63
9.1.8. Change in Control. . . . . . . . . . . .. . 63
9.1.9. Bankruptcy, Insolvency, etc. . . . . . . .. 63
9.2. Action if Bankruptcy. . . . . . . . . . . . . . . . 64
9.3. Action if Other Event of Default. . . . . . . . . . 65
X THE AGENT . . . . . . . . . . . . . . . . . . . . . . . . . 65
10.1. Actions. . . . . . . . . . . . . . . . . . . . . . 65
10.2. Funding Reliance, etc. . . . . . . . . . . . . . . 66
10.3. Exculpation. . . . . . . . . . . . . . . . . . . . 66
10.4. Successor. . . . . . . . . . . . . . . . . . . . . 66
10.5. Loans or Letters of Credit Issued by ABN . . . . . 67
10.6. Credit Decisions . . . . . . . . . . . . . . . . . 67
10.7. Copies, etc. . . . . . . . . . . . . . . . . . . . 68
10.8. Documentation Agent. . . . . . . . . . . . . . . . 68
XI MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . .. 68
11.1. Waivers, Amendments, etc . . . . . . . . . . . . . 68
11.2. Notices. . . . . . . . . . . . . . . . . . . . . . 69
11.3. Payment of Costs and Expenses. . . . . . . . . . . 69
11.4. Indemnification. . . . . . . . . . . . . . . . . . 70
11.5. Survival . . . . . . . . . . . . . . . . . . . . . 71
11.6. Severability . . . . . . . . . . . . . . . . . . . 71
11.7. Headings . . . . . . . . . . . . . . . . . . . . . 71
11.8. Execution in Counterparts, Effectiveness, etc. . . 72
11.9. Governing Law; Entire Agreement. . . . . . . . . . 72
11.10 Successors and Assigns. . . . . . . . . . . . .. . 72
11.11 Sale and Transfer of Loans and Notes;
Participations in Loans
and Notes. . . . . . .. . . . . . . . . . . . . .. 72
11.11.1. Assignments. . . . . . . . . . . . .. . 72
11.11.2. Participations . . . . . . . . . . . . . 74
11.12 Additional Borrowers. . . . . . . . . . . . . . . 75
11.13 Joint and Several Liability . . . . . . . . . . . 76
11.14 Judgment Currency . . . . . . . . . . . . . . . . 78
11.15 Other Transactions. . . . . . . . . . . . . . . . 78
11.16 Consent to Jurisdiction . . . . . . . . . . . . . 78
11.17 Waiver of Jury Trial. . . . . . . . . . . . . . . 79
PAGE
SCHEDULE I - Disclosure Schedule
EXHIBIT A - Form of Additional Borrower Certificate
EXHIBIT B - Form of Revolving Note
EXHIBIT C - Form of Swing Note
EXHIBIT D - Form of Irrevocable Standby Letter of Credit
EXHIBIT E - Form of Borrowing Request
EXHIBIT F - Form of Continuation/Conversion Notice
EXHIBIT G - Form of Issuance Request
EXHIBIT H - Form of Lender Assignment Agreement
EXHIBIT I - Form of Opinion of Counsel to Xxxxxxx
EXHIBIT J - Form of Compliance Certificate
EXHIBIT K - Form of Guaranty
EXHIBIT L - Form of Xxxxxxx Guaranty
PAGE
CREDIT AGREEMENT
(364 Day)
THIS CREDIT AGREEMENT, dated as of June 17, 1997 among XXXXXXX
INDUSTRIES, INC. ("Xxxxxxx"), a Michigan corporation, certain subsidiaries
that from time to time become a party hereto pursuant to Section 11.13 (such
subsidiaries, together with Xxxxxxx, the "Borrowers"), the commercial lending
institutions as are or may become parties hereto (the "Lenders"), ABN AMRO
BANK N.V. ("ABN"), as agent (the "Agent") for the Lenders, and COMERICA BANK,
as documentation agent (the "Documentation Agent") for the Lenders.
W I T N E S S E T H:
WHEREAS, the Borrowers desire to obtain Commitments from the Lenders
pursuant to which
(a) Loans will be made to the Borrowers from time to time
prior to the Commitment Termination Date; and
(b) Letters of Credit will be issued by the Issuer for the
accounts of the Borrowers from time to time prior to the Commitment
Termination Date;
in aggregate principal amount for Loans plus Letter of Credit Outstandings at
any one time not to exceed $50,000,000 in the aggregate; and
WHEREAS, the Lenders are willing, on the terms and subject to the
conditions hereinafter set forth (including Article VI), to extend such
Commitments, make such Loans to the Borrowers and issue and participate in
such Letters of Credit;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE XII
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Defined Terms. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall, except where the context otherwise requires, have the following
meanings (such meanings to be equally applicable to the singular and plural
forms thereof):
"ABN" is defined in the preamble.
"Additional Borrower Certificate" means a certificate in the form of
Exhibit A hereto.
"Affiliate" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any Plan). A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power
(a) to vote 10% or more of the securities (on a fully
diluted basis) having ordinary voting power for the election of
directors; or
(b) to direct or cause the direction of the management and
policies of such Person whether by contract or otherwise.
"Agent" is defined in the preamble and includes each other Person as
shall have subsequently been appointed as the successor Agent pursuant to
Section 10.4.
"Agreement" means, on any date, this Credit Agreement as originally in
effect on the Effective Date and as thereafter from time to time amended,
supplemented, amended and restated, or otherwise modified and in effect on
such date.
"Assignee Lender" is defined in Section 11.12.1.
"Assignment Effective Date" is defined in Section 11.12.1.
"Authorized Officer" means, as to any Borrower, those of its officers
whose signatures and incumbency shall have been certified to the Agent and the
Lenders pursuant to Section 6.1.1.
"Available Currency" means Dollars, Pounds Sterling, French Francs,
Spanish Peseta and such other currencies as the Lenders agree to make
available from time to time and which the Agent determines in its sole
discretion are freely transferable.
"Borrower" means any of Xxxxxxx and any Subsidiary that from time to
time becomes a party hereto pursuant to Section 11.13.
"Borrowing" means a borrowing made hereunder consisting of the aggregate
amount of the several Loans made by the Lenders to the applicable Borrower on
the same Borrowing Date, in the same currency, for the same Rate Option and
for the same Interest Period.
"Borrowing Date" means any Business Day on which a Borrowing is made.
"Borrowing Request" means a loan request and certificate duly executed
by an Authorized Officer of the applicable Borrower, substantially in the form
of Exhibit E hereto.
"Business Day" means any day
(a) other than
(i) a Saturday or Sunday; or
(ii) a legal holiday on which banks are authorized or
required to be closed in Chicago, Illinois or New York, New
York; and
(b) with respect to Eurocurrency Rate Loans on which
dealings in the applicable Available Currency are being carried on in
the interbank eurocurrency market.
"Capital Expenditures" means, for any period, the sum of
(a) the aggregate amount of all expenditures of Xxxxxxx and
its Subsidiaries for fixed or capital assets made during such period
which, in accordance with GAAP, would be classified as capital
expenditures; and
(b) the aggregate amount of all Capitalized Lease Liabilities
incurred during such period;
less any expenditures pursuant to an acquisition transaction of the type
described in Section 8.2.4.
"Capitalized Lease Liabilities" means all monetary obligations of a
Person under any leasing or similar arrangement which, in accordance with
GAAP, would be classified as capitalized leases, and, for purposes of this
Agreement and each other Loan Document, the amount of such obligations shall
be the capitalized amount thereof, determined in accordance with GAAP, and the
stated maturity thereof shall be the date of the last payment of rent or any
other amount due under such lease prior to the first date upon which such
lease may be terminated by the lessee without payment of a penalty.
"Cash Equivalent Investment" means, at any time:
(a) any evidence of Indebtedness, maturing not more than one
year after such time, issued or guaranteed by the United States
Government;
(b) commercial paper, maturing not more than nine months from
the date of issue, which is issued by
(i) a corporation (other than an Affiliate of a Borrower)
organized under the laws of any state of the United States or
of the District of Columbia and rated at least A-1 by
Standard & Poor's Corporation or P-1 by Xxxxx'x Investors
Service, Inc., or
(ii) any Lender (or its holding company);
(c) any certificate of deposit or bankers acceptance,
maturing not more than one year after such time, which is issued by
either
(i) 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,
or
(ii) any Lender; or
(d) any repurchase agreement entered into with any Lender
(or other commercial banking institution of the stature referred to in
clause (c)(i)) 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 Lender (or other commercial
banking institution) thereunder.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response Compensation
Liability Information System List.
"Change in Control" means
(a) the acquisition by any Person, or two or more Persons
acting in concert, of beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934) of 20% or more of the outstanding shares of voting
stock of Xxxxxxx; or
(b) any Borrower (other than Xxxxxxx) shall not be
100% owned, directly or indirectly by Xxxxxxx.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Commitment" means, relative to any Lender, such Lender's obligation to
make Loans pursuant to Section 2.1.2 and to issue (in the case of the Issuer)
or participate in (in the case of all Lenders) Letters of Credit pursuant to
Section 2.1.3.
"Commitment Amount" means, on any date, $50,000,000, as such amount may
be reduced from time to time pursuant to Section 2.2.
"Commitment Termination Date" means the earliest of
(a) the Stated Maturity Date;
(b) the date on which the Commitment Amount is terminated in
full or reduced to zero pursuant to Section 2.2; and
(c) the date on which any Commitment Termination Event
occurs.
Upon the occurrence of any event described in clause (b) or (c), the
Commitments shall terminate automatically and without any further action.
"Commitment Termination Event" means
(a) the occurrence of any Default described in clauses (a)
through (d) of Section 9.1.9; or
(b) the occurrence and continuance of any other Event of
Default and either
(i) the declaration of the Loans to be due and payable
pursuant to Section 9.3, or
(ii) in the absence of such declaration, the giving of
notice by the Agent, acting at the direction of the Required
Lenders, to the Borrower that the Commitments have been
terminated.
"Companion Agreement" means the Credit Agreement of even date herewith
among Xxxxxxx, certain Subsidiaries, the Lenders, ABN, as agent, and Comerica
Bank, as documentation agent, providing for a $50,000,000 364-day credit
facility.
"Compliance Certificate" means a certificate duly executed by the chief
financial officer, treasurer or assistant treasurer of Xxxxxxx, substantially
in the form of Exhibit J hereto, as the same may be amended, modified or
supplemented from time to time by the Required Lenders and Xxxxxxx, for the
purposes of monitoring Xxxxxxx'x compliance herewith.
"Contingent 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) the
indebtedness, obligation or any 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 under any Contingent
Liability shall (subject to any limitation set forth therein) be deemed to be
the outstanding principal amount (or maximum principal amount, if larger) of
the debt, obligation or other liability guaranteed thereby.
"Continuation/Conversion Notice" means a notice of continuation or
conversion and certificate duly executed by an Authorized Officer of Xxxxxxx,
substantially in the form of Exhibit F hereto.
"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
Xxxxxxx, are treated as a single employer under Section 414(b) or 414(c) of
the Code or Section 4001 of ERISA.
"Credit Extension" means and includes
(a) the advancing of any Loans by the Lenders in connection
with a Borrowing, and
(b) any issuance or extension by the Issuer of a Letter of
Credit.
"Default" means any Event of Default or any condition, occurrence or
event which, after notice or lapse of time or both, would constitute an Event
of Default.
"Determination Date" means with respect to any Loan in an Available
Currency other than Dollars:
(a) the date a Loan is made;
(b) if such Loan is a Eurocurrency Rate Loan, the last
Business Day of each month, and the date such Eurocurrency Rate Loan is
continued from the current Interest Period of such Loan into a
subsequent Interest Period; or
(c) the date such outstanding Loan is converted from
one type of Loan into another or from a Eurocurrency Rate Loan in one
currency into a Eurocurrency Rate Loan in another currency.
"Disbursement" means a payment by the Issuer to a beneficiary (or its
designee) under a Letter of Credit.
"Disbursement Date" is defined in Section 4.5.
"Disclosure Schedule" means the Disclosure Schedule attached hereto as
Schedule I, as it may be amended, supplemented or otherwise modified from time
to time by Xxxxxxx with the written consent of the Agent and the Required
Lenders.
"Documentation Agent" is defined in the preamble.
"Dollar" and the sign "$" mean the lawful currency of the United States.
"Dollar Amount" means (a) with respect to Dollars or an amount
denominated in Dollars, such amount and (b) with respect to an amount of any
other Available Currency or an amount denominated in such Available Currency,
the amount of Dollars into which the Agent could, in accordance with its
practice from time to time in the interbank foreign exchange market, convert
such amount of Available Currency at its spot rate of exchange (inclusive of
all related costs of conversion) applicable to the relevant transaction at or
about 10:00 A.M., New York time, on the date of calculation.
"Domestic Office" means, relative to any Lender, the office of such
Lender designated as such below its signature hereto or designated in the
Lender Assignment Agreement or such other office of a Lender (or any successor
or assign of such Lender) within the United States as may be designated from
time to time by notice from such Lender, as the case may be, to each other
Person party hereto.
"EBITDA" means, at the end of any Fiscal Quarter for the
four Fiscal Quarter period then ending, net earnings plus interest expense
(net of interest income), depreciation, amortization and all other non-cash
charges, and income tax expenses, excluding any non-cash gains or losses used
in determining net income, all calculated on a consolidated basis for Xxxxxxx
and its Subsidiaries.
"Effective Date" means the date this Agreement becomes effective
pursuant to Section 11.8.
"Environmental Laws" means all applicable foreign, federal, state or
local statutes, laws, ordinances, codes, rules, regulations and guidelines
(including consent decrees and administrative orders) relating to public
health and safety and protection of the environment.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute of similar import, together with the
regulations thereunder, in each case as in effect from time to time.
References to sections of ERISA also refer to any successor sections.
"Eurocurrency Office" means with respect to any Lender the office or
offices of such Lender which shall be making or maintaining the Eurocurrency
Loans of such Lender hereunder or such other office or offices through which
such Lender determines its Eurocurrency Rate. A Eurocurrency Office of any
Lender may be, at the option of such Lender, either a domestic or foreign
office.
"Eurocurrency Rate" means, with respect to any Eurocurrency Rate Loan
for any Interest Period, the rate per annum at which deposits in the relevant
Available Currency in immediately available funds are offered to the
Eurocurrency Office of ABN two Business Days prior to the beginning of such
Interest Period by major banks in the London interbank eurocurrency market as
at or about 11:00 A.M. London time for delivery on the first day of such
Interest Period, for the number of days comprised therein and in an amount
equal or comparable to the amount of the Eurocurrency Rate Loan of ABN for
such Interest Period.
"Eurocurrency Rate Loan" means a Loan bearing interest at a fixed rate
of interest determined by reference to the Eurocurrency Rate.
"Eurocurrency Rate (Reserve Adjusted)" means, with respect to any
Eurocurrency Rate Loan for any Interest Period, a rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) determined pursuant to the
following formula:
Eurocurrency Rate EQUALS Eurocurrency Rate
__________________________
(Reserve Adjusted) 1-Eurocurrency Reserve Percentage
"Eurocurrency Reserve Percentage" means, with respect to any
Eurocurrency Rate 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
Board of Governors of the Federal Reserve System (or any successor), for
determining the aggregate maximum reserve requirements applicable to
"Eurocurrency Liabilities" pursuant to Regulation D or any other then
applicable regulation of such Board of Governors which prescribes reserve
requirements applicable to "Eurocurrency Liabilities" as presently defined in
Regulation D.
"Event of Default" is defined in Section 9.1.
"Federal Funds Rate" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to
(a) the weighted average of the rates on overnight federal
funds transactions with members of the Federal Reserve System arranged
by federal funds brokers, as published for such day (or, if such day is
not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York; or
(b) if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such
transactions received by the Agent from three federal funds brokers of
recognized standing selected by it.
"Fiscal Quarter" means any quarter of a Fiscal Year.
"Fiscal Year" means any period of twelve consecutive calendar months
ending on December 31, references to a Fiscal Year with a number corresponding
to any calendar year (e.g. the "1997 Fiscal Year") refer to the Fiscal Year
ending on December 31 occurring during such calendar year.
"French Francs" means lawful currency of France.
"F.R.S. Board" means the Board of Governors of the Federal Reserve
System or any successor thereto.
"Funded Debt" means any Indebtedness as described within clauses (a),
(b), (c), (e), and (f) of the definition of "Indebtedness" and any Contingent
Liabilities with respect to any such Indebtedness.
"Funded Debt to EBITDA Ratio" means at any Fiscal Quarter end the ratio
on a consolidated basis for Xxxxxxx and its Subsidiaries of Funded Debt at
such Fiscal Quarter end to EBITDA for the four Fiscal Quarters then ending.
"GAAP" is defined in Section 1.4.
"Guaranty" means the guaranty of the U.S. Subsidiaries of Xxxxxxx
executed and delivered pursuant to Section 8.1.8, substantially in the form of
Exhibit K hereto, as amended, supplemented, restated or otherwise modified
from time to time.
"Hazardous Materials" means
(a) any "hazardous substance", as defined by CERCLA;
(b) any "hazardous waste", as defined by the Resource
Conservation and Recovery Act, as amended;
(c) any petroleum product; or
(d) any pollutant or contaminant or hazardous, dangerous or
toxic chemical, material or substance within the meaning of any other
applicable foreign, federal, state or local law, regulation, ordinance
or requirement (including consent decrees and administrative orders)
relating to or imposing liability or standards of conduct concerning any
hazardous, toxic or dangerous waste, substance or material, all as
amended or hereafter amended.
"Hedging Obligations" means, with respect to any Person, all liabilities
of such Person under interest rate swap agreements, interest rate cap
agreements and interest rate collar agreements, and all other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates or currency exchange rates.
"herein", "hereof", "hereto", "hereunder" and similar terms contained in
this Agreement or any other Loan Document refer to this Agreement or such
other Loan Document, as the case may be, as a whole and not to any particular
Section, paragraph or provision of this Agreement or such other Loan Document.
"Impermissible Qualification" means, relative to the opinion or
certification of any independent public accountant as to any financial
statement of any Borrower, any qualification or exception to such opinion or
certification
(a) which is of a "going concern" nature;
(b) which relates to the limited scope of examination of
matters relevant to such financial statement; or
(c) which relates to the treatment or classification of any
item in such financial statement and which, as a condition to its
removal, would require an adjustment to such item the effect of which
would be to cause such Borrower to be in default of any of its
obligations under Section 8.2.3.
"including" means including without limiting the generality of any
description preceding such term, and, for purposes of this Agreement and each
other Loan Document, the parties hereto agree that the rule of ejusdem generis
shall not be applicable to limit a general statement, which is followed by or
referable to an enumeration of specific matters, to matters similar to the
matters specifically mentioned.
"Indebtedness" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money and
all obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments;
(b) all obligations, contingent or otherwise, relative to
the face amount of all letters of credit, whether or not drawn, and
banker's acceptances issued for the account of such Person;
(c) all obligations of such Person as lessee under leases
which have been or should be, in accordance with GAAP, recorded as
Capitalized Lease Liabilities;
(d) all other items which, in accordance with GAAP, would be
included as liabilities on the liability side of the balance sheet of
such Person as of the date at which Indebtedness is to be determined;
(e) net liabilities of such Person under all Hedging
Obligations;
(f) whether or not so included as liabilities in accordance
with GAAP, all obligations of such Person to pay the deferred purchase
price of property or services, and indebtedness (excluding prepaid
interest thereon) secured by a Lien on property owned or being purchased
by such Person (including indebtedness arising under conditional sales
or other title retention agreements), whether or not such indebtedness
shall have been assumed by such Person or is limited in recourse; and
(g) all Contingent Liabilities of such Person in respect of
any of the foregoing.
"Indemnified Liabilities" is defined in Section 11.4.
"Indemnified Parties" is defined in Section 11.4.
"Interest Period" means, relative to any Eurocurrency Rate Loans, the
period beginning on (and including) the date on which such Eurocurrency Rate
Loan is made or continued as, or converted into, a Eurocurrency Rate Loan
pursuant to Section 2.3, 2.4 or 2.9 and ending on (but excluding) the day
which, numerically corresponds to such date one, two, three or six months
thereafter (or, if such month has no numerically corresponding day, on the
last Business Day of such month), in each case as the Borrowers may select in
their relevant notice pursuant to Section 2.3, 2.4 or 2.9; provided, however,
that
(a) no more than 10 Interest Periods shall be outstanding at
any one time in the aggregate;
(b) if such Interest Period would otherwise end on a day
which is not a Business Day, such Interest Period shall end on the next
following Business Day (unless, such next following Business Day is the
first Business Day of a calendar month, in which case such Interest
Period shall end on the Business Day next preceding such numerically
corresponding day); and
(c) no Interest Period may end later than the date set forth
in clause (a) of the definition of "Commitment Termination Date".
"Investment" means, relative to any Person,
(a) any loan or advance made by such Person to any other
Person (excluding commission, travel and similar advances to officers
and employees made in the ordinary course of business);
(b) any Contingent Liability of such Person; and
(c) any ownership or similar interest held by such Person in
any other Person.
The amount of any Investment shall be the original principal or capital amount
thereof less all returns of principal or equity thereon (and without
adjustment by reason of the financial condition of such other Person) and
shall, if made by the transfer or exchange of property other than cash, be
deemed to have been made in an original principal or capital amount equal to
the fair market value of such property.
"Issuance Request" means a properly completed application for a Letter
of Credit on the Issuer's standard form, attached hereto as Exhibit G,
executed by an Authorized Officer of the Borrower.
"Issuer" means any affiliate, unit or agency of ABN which has agreed to
issue one or more Letters of Credit at the request of the Agent.
"Lender Assignment Agreement" means a Lender Assignment Agreement
substantially in the form of Exhibit H hereto.
"Lenders" is defined in the preamble.
"Letter of Credit" is defined in Section 4.1.
"Letter of Credit Availability" means, at any time, the lesser of (a)
the Dollar Amount of $5,000,000 minus the Dollar Amount of the Letter of
Credit Outstandings on such date and (b) the excess of (i) the then Commitment
Amount over (ii) the sum of (A) the Dollar Amount of the outstanding principal
amount of all Loans on such date plus (B) the Dollar Amount of the Letter of
Credit Outstandings on such date.
"Letter of Credit Outstandings" means, at any time, an amount equal to
the sum of
(a) the Dollar Amount of the aggregate Stated Amount at such
time of all Letters of Credit then outstanding and undrawn (as such
aggregate Stated Amount shall be adjusted, from time to time, as a
result of drawings, the issuance of Letters of Credit, or otherwise),
plus
(b) the then aggregate amount of all unpaid and outstanding
Reimbursement Obligations.
"Lien" means any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
charge against or interest in property to secure payment of a debt or
performance of an obligation or other priority or preferential arrangement of
any kind or nature whatsoever.
"Loan" means, as the context may require, either a Revolving Loan or a
Swing Loan.
"Loan Commitment Availability" means, on any date, the excess of
(a) the then Commitment Amount,
over
(b) the sum of
(i) the Dollar Amount of the outstanding principal amount
of all Revolving Loans on such date,
plus
(ii) the Dollar Amount of the Letter of Credit
Outstandings on such date.
"Loan Document" means this Agreement, the Notes, the Issuance Requests,
the Guaranty and the Xxxxxxx Guaranty.
"Margin" means, for any period beginning on (and including) a Margin
Determination Date until (but excluding) the next Margin Determination Date, a
percentage equal to the Margin set forth in the following table corresponding
to the Funded Debt to EBITDA Ratio as at the end of the Fiscal Quarter
immediately preceding such Margin Determination Date, provided that for the
period from the Effective Date through the first Margin Determination Date
after June 30, 1997, the applicable Margin set forth opposite Level II shall
be used:
STANDBY
LETTER
MARGIN OF
FOR CREDIT COMMERCIAL
MARGIN FOR EURO- FACE LETTER OF
FUNDED DEBT TO PRIME CURRENCY AMOUNT CREDIT FACE
LEVEL EBITDA RATIO RATE LOANS LOANS FEE AMOUNT FEE
I Greater than 3.0:1.0 0.00% 0.75% 0.73% 0.325%
II Less than or equal
to 3.0:1.0, but
greater than 2.50:1.0 0.00% 0.60% 0.58% 0.20%
III Less than or equal
to 2.50:1.0, but
greater than 2.00:1.0 0.00% 0.475% 0.455% 0.1175%
IV Less than or equal
to 2.00:1.0, but
greater than 1.50:1.0 0.00% 0.325% 0.305% 0.075%
V Less than or equal
to 1.5:1.0 0.00% 0.225% 0.205% 0.0625%
Notwithstanding the foregoing, in the event Xxxxxxx fails to report the Funded
Debt to EBITDA Ratio at the end of any Fiscal Quarter by the Margin
Determination Date following such Fiscal Quarter, "Margin" shall mean the
Margin set forth in Level I. Nothing in this definition shall constitute a
waiver of the financial covenant set forth in Section 8.2.3(b) or limit the
right of the Lenders to receive interest at the rates set forth in Section
3.2.2 hereof.
"Margin Determination Date" means each date on which a quarterly
Compliance Certificate is delivered. The first Margin Determination Date
shall be the first such date after June 30, 1997.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, or
condition (financial or otherwise) of Xxxxxxx and its Subsidiaries taken as a
whole; (b) a material impairment of the ability of any Borrower to perform
under any Loan Document and to avoid any Event of Default; or (c) a material
adverse effect upon the legality, validity, binding effect or enforceability
against any Borrower of any Loan Document.
"Net Worth" means, as to Xxxxxxx, the consolidated net worth of Xxxxxxx
and its Subsidiaries.
"Note" means, as the context may require, either a Revolving Note or a
Swing Note.
"Obligations" means all obligations (monetary or otherwise) of the
Borrowers arising under or in connection with this Agreement, the Notes and
each other Loan Document.
"Organic Document" means, relative to any Borrower, its certificate of
incorporation or other organizational documents comparable thereto, its by-laws
and all shareholder agreements, voting trusts and similar arrangements
applicable to any of its authorized shares of capital stock.
"Outstandings" means at any time the sum of:
(a) the aggregate Dollar Amount of the principal amount of
all Loans outstanding at such time;
(b) the aggregate Dollar Amount of the face amount of all
Letters of Credit outstanding and undrawn at such time; and
(c) the aggregate Dollar Amount at such time of Obligations
to reimburse drawings under any Letters of Credit which have been paid
by the Issuer.
"Participant" is defined in Section 11.12.
"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 plan as defined in section 4001(a)(3) of ERISA), and to which
Xxxxxxx or any corporation, trade or business that is, along with Xxxxxxx, a
member of a Controlled Group, may have 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.
"Percentage" means, relative to any Lender, the percentage set forth
opposite its signature hereto or set forth in the Lender Assignment Agreement,
as such percentage may be adjusted from time to time pursuant to Lender
Assignment Agreement(s) executed by such Lender and its Assignee Lender(s) and
delivered pursuant to Section 11.12.
"Person" means any natural person, corporation, partnership, firm,
association, trust, government, governmental agency or any other entity,
whether acting in an individual, fiduciary or other capacity.
"Plan" means any Pension Plan or Welfare Plan.
"Pounds Sterling" means lawful currency of the United Kingdom.
"Prime Rate" means a floating rate of interest equal to the higher
(redetermined daily) of
(a) the per annum rate of interest announced by ABN at its
office in Chicago, Illinois as its prime rate for Dollar loans; and
(b) the Federal Funds Rate plus 1/2%.
(The "prime rate" is set by ABN based upon various factors and is used as a
reference for pricing some loans. It is not the best rate available to the
customers of ABN at any point in time.) Changes in the rate of interest on
that portion of any Loans maintained as Prime Rate Loans will take effect
simultaneously with each change in the Prime Rate. The Agent will give notice
promptly to the Borrowers and the Lenders of changes in the Prime Rate.
"Prime Rate Loan" means a Loan in Dollars bearing interest at a
fluctuating rate determined by reference to the Prime Rate.
"Quarterly Payment Date" means the last day of each March, June,
September, and December or, if any such day is not a Business Day, the next
succeeding Business Day.
"Rate Option" means, with respect to any Loan, a Eurocurrency Rate Loan
or Prime Rate Loan.
"Reimbursement Obligation" is defined in Section 4.6.
"Release" means a "release", as such term is defined in CERCLA.
"Required Lenders" means, at any time, any Lenders having Percentages
aggregating at least 66 2/3%.
"Revolving Loan" is defined in Section 2.1.2.
"Revolving Note" means a promissory note of any Borrower payable to the
order of any Lender, in the form of Exhibit B hereto (as such promissory notes
may be amended, endorsed or otherwise modified from time to time), evidencing
the aggregate Indebtedness of such Borrower to such Lender resulting from
outstanding Revolving Loans, and also means all other promissory notes
accepted from time to time in substitution therefor or renewal thereof.
"Significant Subsidiary" means a Subsidiary which accounted for in
excess of either 5% of the consolidated assets of Xxxxxxx and its Subsidiaries
as of the end of the last Fiscal Quarter or 5% of the consolidated revenue of
Xxxxxxx and its Subsidiaries for the four Fiscal Quarter period ending as of
the end of the last Fiscal Quarter.
"Xxxxxxx Guaranty" means the guaranty of Xxxxxxx substantially in the
form of Exhibit L hereto, as amended, supplemented, restated or otherwise
modified from time to time.
"Solvent" means, as to any Person at any time, that (a) the fair value
of the property of such Person is greater than the amount of such Person's
liabilities (including disputed, contingent and unliquidated liabilities) as
such value is established and liabilities evaluated for purposes of Section
101(31) of the Bankruptcy Code and, in the alternative, for purposes of the
Uniform Fraudulent Transfer Act or Uniform Fraudulent Conveyance Act; (b) the
present fair saleable value of the property of such Person is not less than
the amount that will be required to pay the probable liability of such Person
on its debts as they become absolute and matured; (c) such Person is able to
realize upon its property and pay its debts and other liabilities (including
disputed, contingent and unliquidated liabilities) as they mature in the
normal course of business; (d) such Person does not intend to, and does not
believe that it will, incur debts of liabilities beyond such Person's ability
to pay as such debts and liabilities mature; and (e) such Person is not
engaged in business or a transaction, and is not about to engage in business
or a transaction, for which such Person's property would constitute
unreasonably small capital.
"Spanish Pesetas" means lawful currency of Spain.
"Stated Amount" of each Letter of Credit means the "Stated Amount" as
defined therein.
"Stated Expiry Date" is defined in Section 4.1.
"Stated Maturity Date" means June 16, 1998, as such date may be extended
pursuant to Section 2.14.
"Subordinated Debt" means Indebtedness of any Borrower subordinated in
form and substance satisfactory to the Agent.
"Subsidiary" means, with respect to any Person, (i) any corporation of
which more than 50% of the outstanding capital stock having ordinary voting
power to elect a majority of the board of directors of such corporation
(irrespective of whether at the time capital stock of any other class or
classes of such corporation shall or might have voting power upon the
occurrence of any contingency) is at the time directly or indirectly owned by
such Person, by such Person and one or more other Subsidiaries of such Person,
or by one or more other Subsidiaries of such Person and (ii) any other entity
of which more than 50% of the outstanding capital interest, profit interest or
beneficial interest is at the time directly or indirectly owned by such
Person, by such Person and one or more other Subsidiaries of such Person or by
one or more other Subsidiaries of such Person.
"Subsidiary Borrower" means each Borrower other than Xxxxxxx.
"Swing Lender" means ABN in its capacity as swing lender hereunder.
"Swing Loan" is defined in Section 2.7.
"Swing Note" means a promissory note of Xxxxxxx payable to the order of
the Swing Lender, in the form of Exhibit C hereto (as such promissory note may
be amended, endorsed or otherwise modified from time to time), evidencing the
aggregate Indebtedness of Xxxxxxx to the Swing Lender resulting from
outstanding Swing Loans, and also means any other promissory note accepted
from time to time in substitution therefor or renewal thereof.
"Tangible Net Worth" means, as to Xxxxxxx, the consolidated net worth of
Xxxxxxx and its Subsidiaries after subtracting therefrom the aggregate amount
of any intangible assets of Xxxxxxx and its Subsidiaries, including goodwill,
franchises, licenses, patents, trademarks, trade names, copyrights, service
marks and brand names.
"Taxes" is defined in Section 5.6.
"United States" or "U.S." means the United States of America, its fifty
States and the District of Columbia.
"U.S. Subsidiary" means a Subsidiary of Xxxxxxx organized under the laws
of a state of the United States or the District of Columbia.
"Welfare Plan" means a "welfare plan", as such term is defined in
section 3(1) of ERISA, of Xxxxxxx or any member of its Controlled Group.
SECTION 1.2. Use of Defined Terms. Unless otherwise defined or the
context otherwise requires, terms for which meanings are provided in this
Agreement shall have such meanings when used in the Disclosure Schedule and in
each Note, Borrowing Request, Continuation/Conversion Notice, Loan Document,
notice and other communication delivered from time to time in connection with
this Agreement or any other Loan Document.
SECTION 1.3. Cross-References. Unless otherwise specified, references
in this Agreement and in each other Loan Document to any Article or Section
are references to such Article or Section of this Agreement or such other Loan
Document, as the case may be, and, unless otherwise specified, references in
any Article, Section or definition to any clause are references to such clause
of such Article, Section or definition.
SECTION 1.4. Accounting and Financial Determinations. Unless
otherwise specified, all accounting terms used herein or in any other Loan
Document shall be interpreted, all accounting determinations and computations
hereunder or thereunder (including under Section 8.2.3) shall be made, and all
financial statements required to be delivered hereunder or thereunder shall be
prepared in accordance with, those generally accepted accounting principles
("GAAP") in the United States at the time in effect.
ARTICLE II
COMMITMENTS, BORROWING PROCEDURES AND NOTES
SECTION 2.1. Commitments. On the terms and subject to the conditions
of this Agreement (including Article V), each Lender severally agrees as
follows:
SECTION 2.1.1. Revolving Loan Commitment. From time to time on any
Business Day occurring prior to the Commitment Termination Date, each Lender
will make Revolving Loans in Dollars and/or other Available Currencies
(relative to such Lender, its "Revolving Loans") to any Borrower equal to such
Lender's Percentage of the aggregate amount of the Borrowing of Revolving
Loans requested by such Borrower to be made on such day; provided, however
that the aggregate Dollar Amount of the principal amount of Loans by all the
Lenders in currencies other than Dollars shall not at any time exceed
$20,000,000 at any time outstanding. On the terms and subject to the
conditions hereof, each Borrower may from time to time borrow, prepay and
reborrow Revolving Loans.
SECTION 2.1.2. Commitment to Issue Letters of Credit. From time to
time on any Business Day, the Issuer will issue, and each Lender will
participate in, the Letters of Credit, in accordance with Article IV.
SECTION 2.1.3. Lenders Not Permitted or Required To Make Loans or
Issue or Participate in Letters of Credit Under Certain Circumstances. No
Lender shall be permitted or required to
(a) make any Loan if, after giving effect thereto, an amount
equal to the Dollar Amount of the aggregate outstanding principal amount
of all Revolving Loans
(i) of all Lenders, together with the Dollar Amount of all
outstanding Swing Loans and the Dollar Amount of all Letter of
Credit Outstandings, would exceed the Commitment Amount, or
(ii) of such Lender, together with the Dollar Amount of its
Percentage of the Dollar Amount of the principal amount of all
Swing Loans and the Dollar Amount of its Percentage of all Letter
of Credit Outstandings, would exceed such Lender's Percentage of
the Commitment Amount; or
(b) issue (in the case of the Issuer), extend or participate in
(in the case of each Lender) any Letter of Credit if, after giving
effect thereto
(i) the Dollar Amount of all Letter of Credit Outstandings
together with an aggregate amount equal to the Dollar Amount of
the aggregate outstanding principal amount of all Loans would
exceed the Commitment Amount, or
(ii) the Dollar Amount of such Lender's Percentage of all
Letter of Credit Outstandings together with an aggregate amount
equal to the Dollar Amount of the aggregate outstanding principal
amount of all Revolving Loans of such Lender and such Lender's
Percentage of the Dollar Amount of the aggregate principal amount
of all Swing Loans would exceed such Lender's Percentage of the
Commitment Amount.
For the purposes of this Section 2.1.3, the Dollar Amount of any Loans
not denominated in Dollars shall be determined as of the most recent
Determination Date for each such Loan.
SECTION 2.2. Reduction of Commitment Amounts. Xxxxxxx may, from time
to time on any Business Day, voluntarily reduce the amount of the Commitment
Amount; provided, however, that Xxxxxxx shall simultaneously reduce the amount
of Commitment Amount (as such term is defined in the Companion Agreement)
under the Companion Agreement by an equal amount; provided, further, that the
Commitment Amount shall not be reduced to an amount less than the Outstandings
(after giving effect to any concurrent repayment of Loans); and provided
further, that all such reductions shall require at least 5 Business Days'
prior notice to the Agent and be permanent, and any partial reduction of such
Commitment Amount shall be in a minimum amount of $1,000,000 and in an
integral multiple of $250,000.
SECTION 2.3. Borrowing Procedure. By delivering a Borrowing Request
to the Agent on or before 11:00 A.M., New York time, on a Business Day,
Xxxxxxx may from time to time irrevocably request (on not less than three nor
more than five Business Days' notice with respect to a Eurocurrency Rate Loan,
and not less than one nor more than five Business Days' notice with respect to
Prime Rate Loan) that a Borrowing of Revolving Loans be made to the Borrower
specified by Xxxxxxx in an Available Currency, if in Dollars, in a minimum
amount of $2,000,000 and an integral multiple of $100,000 or if in another
Available Currency, in a minimum amount of the Dollar Amount of $2,000,000 and
an integral multiple of 100,000 units of such Available Currency, or in the
unused amount of the applicable Commitment. On the terms and subject to the
conditions of this Agreement, each Borrowing shall be comprised of the same
Rate Option of Loans (and, in the case of Eurocurrency Rate Loans, the same
Available Currency), and shall be made on the Business Day, specified in such
Borrowing Request. The proceeds of each Borrowing shall be advanced to the
Borrower specified in the applicable Borrowing Request. On or before 10:00
A.M., New York time, on such Business Day each Lender shall deposit with the
Agent same day funds in the applicable Available Currency in an amount equal
to such Lender's Percentage of the requested Borrowing. Such deposit will be
made to such accounts which the Agent shall specify from time to time by
notice to the Lenders. To the extent funds are received from the Lenders, the
Agent shall make such funds available to the Borrower specified by Xxxxxxx by
wire transfer to such accounts as Xxxxxxx shall have specified in its
Borrowing Request. No Lender's obligation to make any Loan shall be affected
by any other Lender's failure to make any Loan.
SECTION 2.4. Continuation and Conversion Elections. By delivering a
Continuation/Conversion Notice to the Agent on or before 11:00 A.M., New York
time, on a Business Day, Xxxxxxx may from time to time irrevocably elect (on
not less than three nor more than five Business Days' notice with respect to a
conversion into or a continuation of a Eurocurrency Loan to a Borrower
specified by Xxxxxxx and not less than one nor more than five Business Days'
notice with respect to a conversion into Prime Rate Loan) that all, or any
portion in an aggregate minimum amount, if in Dollars of $2,000,000 and an
integral multiple of $100,000 or in the case of an Available Currency other
than Dollars, in an aggregate minimum amount of the Dollar Amount of
$2,000,000 and an integral multiple of 100,000 units of such currency, of any
Revolving Loans be, in the case of Prime Rate Loans, converted into
Eurocurrency Rate Loans or, in the case of Eurocurrency Rate Loans be
converted into Prime Rate Loans or Eurocurrency Rate Loans in another
Available Currency or continued as Eurocurrency Rate Loans in the same
currency. In the absence of delivery of a Continuation/ Conversion Notice
with respect to any Revolving Loan constituting a Eurocurrency Rate Loan by
11:00 A.M. New York time at least three Business Days before the last day of
the then current Interest Period with respect thereto, such Eurocurrency Rate
Loan shall, on such last day, automatically convert to a Eurocurrency Rate
Loan in the same currency having an Interest Period equal to the shorter of
(i) one month and (ii) the number of days in the period from and including
such last day to but excluding the Commitment Termination Date; provided that
such period determined under this clause (ii) is acceptable to the Agent,
otherwise the Loan shall become due and payable. Each such conversion or
continuation shall be prorated among the applicable outstanding Loans of such
Borrower to all Lenders, and when any Default has occurred and is continuing,
no portion of the outstanding principal amount of any Loans may be continued
as, or be converted into, Eurocurrency Rate Loans.
SECTION 2.5. Funding. Each Lender may, if it so elects, fulfill its
obligation to make, continue or convert Eurocurrency Rate Loans hereunder by
causing one of its foreign branches or Affiliates (or an international
banking facility created by such Lender) to make or maintain such Eurocurrency
Rate Loan; provided, however, that such Eurocurrency Rate Loan shall
nonetheless be deemed to have been made and to be held by such Lender, and the
obligation of the Borrowers to repay such Eurocurrency Rate Loan shall
nevertheless be to such Lender for the account of such foreign branch,
Affiliate or international banking facility. In addition, the Borrowers
hereby consent and agree that, for purposes of any determination to be made
for purposes of Section 5.1, 5.2, 5.3 or 5.4, it shall be conclusively assumed
that each Lender elected to fund all Eurocurrency Rate Loans by purchasing
deposits, in the interbank eurocurrency market having a maturity corresponding
to the Interest Period for such Loan and bearing an interest rate equal to the
Eurocurrency Rate for such Loan.
SECTION 2.6. Notes. The Revolving Loans of each Lender to each
Borrower shall be evidenced by a Note of such Borrower, payable to the order
of such Lender in an amount equal to the Lender's Revolving Loans. Each
Lender shall record in its records, or at its option on the schedule attached
to its applicable Note, the date, amount and Available Currency of each Loan
made by such Lender thereunder, each repayment or prepayment thereof, and the
dates on which the 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 or any error in so recording any such amount shall not, however,
limit or otherwise affect the obligations of any Borrower hereunder or under
any Note to repay the principal amount of each Revolving Loan, together with
all interest accruing thereon.
SECTION 2.7. Swing Line Commitment. From time to time on any Business
Day occurring prior to the Commitment Termination Date, the Swing Lender
agrees to make loans to Xxxxxxx (each such loan, a "Swing Loan") in an
aggregate principal amount not to exceed $10,000,000. All Swing Loans shall
be in Dollars. On the terms and subject to the conditions hereof, Xxxxxxx may
from time to time borrow, prepay and reborrow Swing Loans.
SECTION 2.8. Borrowing Procedure Swing Loans. By delivering a
Borrowing Request to the Swing Lender and the Agent on or before 1:00 p.m.,
New York time, on a proposed Borrowing Date, Xxxxxxx may from time to time
irrevocably request that a Borrowing be made in a minimum amount of $2,000,000
and an integral multiple of $100,000. On or before 4:00 P.M., Chicago time,
on such Borrowing Date the Swing Lender shall deposit with the Agent same day
funds in an amount equal to the requested Borrowing. Such deposit will be
made to such accounts which the Agent shall specify from time to time by
notice to the Swing Lender. To the extent funds are received from the Swing
Lender, the Agent shall make such funds available to Xxxxxxx by wire transfer
to such accounts as Xxxxxxx shall have specified in its Borrowing Request.
SECTION 2.9. Refunding of Swing Loans. The Swing Lender may, at any
time later than five Business Days after the Borrowing Date of a Swing Loan,
in its sole and absolute discretion, on behalf of Xxxxxxx (which hereby
irrevocably directs the Swing Lender to act on its behalf), request each
Lender to make a Revolving Loan in Dollars in an amount equal to such Lender's
Percentage of the Dollar Amount of the principal amount of the Swing Loans
outstanding on the date such notice is given. Unless any of the events
described in Section 9.1.9 shall have occurred (in which event the procedures
of Section 2.10 shall apply), and regardless of whether the conditions
precedent set forth in this Agreement to the making of a Revolving Loan are
then satisfied or the aggregate amount of such Revolving Loans is not in the
minimum or integral amount otherwise required hereunder, each Lender shall
make the proceeds of its Revolving Loan available to the Agent for the account
of the Swing Lender at 10:00 A.M. Chicago time in immediately available funds
on the Business Day next succeeding the date such notice is given. The
proceeds of such Revolving Loans shall be in Dollars and shall be immediately
applied to repay the outstanding Swing Loans. All Revolving Loans made
pursuant to this Section 2.9 shall be in Dollars and shall be Prime Rate Loans
(but, subject to the other provisions of this Agreement, may be converted to
Eurocurrency Rate Loans).
SECTION 2.10. Participations in Swing Loans. (a) If an event
described in Section 9.1.9 occurs (or for any reason the Lenders may not make
Revolving Loans pursuant to Section 2.9), each Lender will, upon notice from
the Agent, purchase from the Swing Lender (and the Swing Lender will sell to
each such Lender) an undivided participation interest in all outstanding Swing
Loans in an amount equal to its Percentage of the outstanding principal amount
of the Swing Loans (and each Lender will immediately transfer to the Agent,
for the account of the Swing Lender, in immediately available funds, the
amount of its participation).
(b) Whenever, at any time after the Swing Lender has received payment
for any Lender's participation interest in the Swing Loans pursuant to Section
2.10(a), the Swing Lender receives any payment on account thereof, the Swing
Lender will distribute to the Agent for the account of such Lender its
participation interest in such amount (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such Lender's
participation interest was outstanding and funded) in like funds as received;
provided, however, that in the event that such payment received by the Swing
Lender is required to be returned, such Lender will return to the Agent for
the account of the Swing Lender any portion thereof previously distributed by
the Swing Lender to it in like funds as such payment is required to be
returned by the Swing Lender.
SECTION 2.11. Swing Loan Participation Obligations Unconditional. (a)
Each Lender's obligation to make Revolving Loans pursuant to Section 2.9
and/or to purchase participation interests in Swing Loans pursuant to Section
2.10 shall be absolute and unconditional and shall not be affected by any
circumstance whatsoever, including (a) any set-off, counterclaim, recoupment,
defense or other right which such Lender may have against the Swing Lender,
Xxxxxxx or any other Person for any reason whatsoever; (b) the occurrence or
continuance of an Event of Default; (c) any adverse change in the condition
(financial or otherwise) of Xxxxxxx or any other Person; (d) any breach of
this Agreement by Xxxxxxx or any other Lender; (e) any inability of Xxxxxxx to
satisfy the conditions precedent to borrowing set forth in this Agreement on
the date upon which any Swing Loan is to be refunded or any participation
interest therein is to be purchased; or (f) any other circumstance, happening
or event whatsoever, whether or not similar to any of the foregoing.
(b) Notwithstanding the provisions of subsection 2.11(a), no Lender
shall be required to make any Revolving Loan to Xxxxxxx to refund a Swing Loan
pursuant to Section 2.9 or to purchase a participation interest in a Swing
Loan pursuant to Section 2.10 if, prior to the making by the Swing Lender of
such Swing Loan, the Swing Lender received written notice (i) from a Lender
specifying that such Lender believes in good faith that one or more of the
conditions precedent to the making of such Swing Loan were not satisfied and,
in fact, such conditions precedent were not satisfied at the time of the
making of such Swing Loan or (ii) from Xxxxxxx that a Default has occurred and
is continuing; provided that the obligation of such Lender to make such
Revolving Loans and to purchase such participation interests shall be
reinstated upon the earlier to occur of (x) the date on which such Lender or
Xxxxxxx, as applicable, notifies the Swing Lender that its prior notice has
been withdrawn and (y) the date on which all conditions precedent to the
making of such Swing Loan have been satisfied (or waived by the Required
Lenders or all Lenders, as applicable).
SECTION 2.12. Conditions to Swing Loans. Notwithstanding any other
provision of this Agreement, the Swing Lender shall not be obligated to make
any Swing Loan if a Default exists or would result therefrom.
SECTION 2.13. Swing Note. The Swing Loans shall be evidenced by the
Swing Note of Xxxxxxx, payable to the order of the Swing Lender in an amount
equal to the Swing Loans. The Swing Lender shall record in its records, or at
its option on the schedule attached to such Swing Note, the date and amount of
each Swing Loan and each repayment or prepayment thereof. The aggregate
unpaid principal amount so recorded shall be rebuttable presumptive evidence
of the principal amount owing and unpaid on such Swing Note. The failure to
so record or any error in so recording any such amount shall not, however,
limit or otherwise affect the obligations of Xxxxxxx hereunder or under the
Swing Note to repay the principal amount of each Swing Loan, together with all
interest accruing thereon.
SECTION 2.14. Stated Maturity Date Extension. (a) Xxxxxxx may,
by notice to the Agent given not more than 60 days and not less than 45 days
prior to the scheduled Stated Maturity Date (the "Extension Request Date"),
request that the Lenders extend the Stated Maturity Date for 364 days from the
then scheduled Stated Maturity Date. The Agent shall notify the Lenders of
its receipt of any notice given pursuant to this Section 2.14(a) within two
Business Days after the Agent's receipt thereof. Each Lender (a "Consenting
Lender") may, by irrevocable notice to Xxxxxxx and the Agent delivered to
Xxxxxxx and the Agent not later than 30 days after the Extension Request Date
(the "Consent Period"), consent to such extension of the Stated Maturity Date,
which consent may be given or withheld by each Lender in its absolute and sole
discretion. No extension shall be effective (i) unless consented to by
Lenders holding at least 66 % of the Commitments and (ii) if as of the Stated
Maturity Date, prior to the effectiveness of the extension, (i) any
representation or warranty set forth in Article VII hereof shall not be true
and correct with the same effect as if then made or (ii) any Default shall
have occurred and be continuing.
(b) Withdrawing Lenders. No extension pursuant to Section 2.14(a)
shall be effective with respect to a Lender that either (i) by a notice (a
"Withdrawal Notice") delivered to Xxxxxxx and the Agent, declines to consent
to such extension or (ii) has failed to respond to Xxxxxxx and the Agent
within the Consent Period (each such Lender giving a Withdrawal Notice or
failing to respond in a timely manner being "Withdrawing Lender").
(c) Replacement of Withdrawing Lender. Xxxxxxx shall have the right
during the period following the end of the Consent Period until the then
scheduled Stated Maturity Date to replace the Withdrawing Lender with an
existing Lender or a new Lender who consents to the extension of the Stated
maturity Date (a "Replacement Lender"), in the case of a new Lender, with the
prior written consent of the Agent, which consent shall not be unreasonably
withheld or delayed. In the event Xxxxxxx has not replaced the Withdrawing
Lender within said period, the Stated Maturity Date shall not be extended.
(d) Assignment by Withdrawing Lender. A Withdrawing Lender shall be
obliged, at the request of Xxxxxxx and subject to the Withdrawing Lender
receiving payment in full of all amounts owing to it under this Agreement
concurrently with the effectiveness of an assignment, to assign, without
recourse or warranty and pursuant to the terms of Section 11.11.1 hereof, all
of its rights and obligations hereunder to any Replacement Lender nominated by
the Borrower and willing to accept such assignment provided that if the
Replacement Lender or the Withdrawing Lender shall suffer any loss as a result
of such assignment during an Interest Period, Xxxxxxx shall reimburse such
Lender therefor. The amount of any such loss shall be certified to Xxxxxxx by
such Lender, which certificate shall be conclusive absent manifest error.
(e) Scheduled Stated Maturity Date. If the scheduled Stated Maturity
Date shall have been extended in respect of Consenting Lenders and any
Replacement Lender in accordance with Section 2.14, all references herein and
in any Note to the "Stated Maturity Date" shall refer to the Stated Maturity
Date as so extended.
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments and Prepayments. The Borrowers shall repay in
full the unpaid principal amount of each Loan upon the Stated Maturity Date.
(a) Prior thereto, any Borrower may, from time to time on any
Business Day, make a voluntary prepayment, in whole or in part without
penalty or premium, of the outstanding principal amount of any Loans;
provided, however, that
(i) any such prepayment shall be made to the Agent and
shall be applied to Loans as the prepaying Borrower may specify
and on a pro rata basis to the accounts of Loans of the same Rate
Option and having the same Interest Period of all Lenders;
(ii) no such prepayment of any Eurocurrency Rate Loan may
be made on any day other than the last day of the Interest Period
for such Loan;
(iii) all such voluntary prepayments shall require at least
three but no more than five Business Days' prior written notice to
the Agent which notice shall be irrevocable once given; and
(iv) all such voluntary partial prepayments shall be in an
aggregate minimum Dollar Amount of $2,000,000 and an integral
multiple of 100,000 units of the Available Currency;
(b) In addition, the Borrowers shall, on each date when any
reduction in the Commitment Amount shall become effective, including
pursuant to Section 2.2, make a mandatory prepayment of outstanding
Loans to the Agent equal to the excess, if any, of the aggregate
Outstandings over the Commitment Amount as so reduced;
(c) In addition, the Borrowers shall, on each Determination Date
for any Borrowing of Eurocurrency Loans on which the Dollar Amount of
the Outstandings of the Borrowers exceed (as the result of fluctuations
in applicable foreign exchange rates or otherwise) the then Commitment
Amount, make a mandatory repayment to the Agent of Loans outstanding in
an aggregate Dollar Amount equal to the excess of
(x) the aggregate Outstandings; over
(y) the then Commitment Amount;
(d) Each Borrower shall, immediately upon any acceleration of the
Stated Maturity Date of any Loans pursuant to Section 9.2 or
Section 9.3, repay all Loans, unless, pursuant to Section 9.3, only a
portion of all Loans is so accelerated.
Each prepayment of any Loans made pursuant to this Section shall be without
premium or penalty, except as may be required by Section 5.4. No voluntary
prepayment of principal of any Loans shall cause a reduction in the Commitment
Amount.
SECTION 3.2. Interest Provisions. Interest on the outstanding
principal amount of Loans shall accrue and be payable in the applicable
Available Currency in accordance with this Section 3.2.
SECTION 3.2.1. Rates. Pursuant to an appropriately delivered
Borrowing Request or Continuation/Conversion Notice, the applicable Borrower
may elect that Loans comprising a Borrowing accrue interest at a rate per
annum:
(a) on that portion of the Loans maintained from time to time as
a Prime Rate Loan, equal to the sum of the Prime Rate from time to time
in effect plus the applicable Margin; and
(b) on that portion of the Loans maintained as a Eurocurrency
Rate Loan, during each Interest Period applicable thereto, equal to the
sum of the applicable Eurocurrency Rate (Reserve Adjusted) for such
Interest Period plus the applicable Margin.
SECTION 3.2.2. Post-Maturity Rates. After the date any principal
amount of any Loan is due and payable (whether on the Stated Maturity Date or
upon acceleration), or after any other monetary Obligation of any Borrower
shall have become due and payable, the Borrowers agree to pay, but only to the
extent permitted by law, interest (after as well as before judgment) on Prime
Rate Loans at a rate per annum equal to the Prime Rate plus a margin of 2% and
on Eurocurrency Rate Loans at a rate per annum equal to 2% in excess of the
rate otherwise applicable until the end of the then applicable Interest Period
and thereafter at a rate equal to 2.75% per annum on the Eurocurrency Rate
(Reserve Adjusted) for Interest Periods not to exceed one month as determined
by the Agent; provided that any Eurocurrency Rate Loan denominated in Dollars
shall convert to a Prime Rate Loan at the end of the applicable Interest
Period.
SECTION 3.2.3. Payment Dates. Interest accrued on each Loan shall be
payable, without duplication:
(a) on the Stated Maturity Date therefor;
(b) on the date of any payment or prepayment of any Eurocurrency
Rate Loans, in whole or in part, of principal outstanding on such
Eurocurrency Rate Loan;
(c) with respect to Prime Rate Loans, on each Quarterly Payment
Date occurring after the date of the initial Borrowing hereunder;
(d) with respect to Eurocurrency Rate Loans, on the last day of
each applicable Interest Period (and, if such Interest Period shall
exceed three months, on a date three months after the commencement of
said Interest Period, or if not a Business Day, on the next Business Day
unless said next Business Day is in the next calendar month then on the
preceding Business Day); and
(e) on that portion of any Loans the Stated Maturity Date of
which is accelerated pursuant to Section 9.2 or Section 9.3, immediately
upon such acceleration.
Interest accrued on Loans or other monetary Obligations arising under this
Agreement or any other Loan Document after the date such amount is due and
payable (whether on the Stated Maturity Date, upon acceleration or otherwise)
shall be payable by the applicable Borrower upon demand.
SECTION 3.3. Fees. The Borrowers agree to pay the fees set forth in
this Section 3.3. All such fees shall be non-refundable.
SECTION 3.3.1. Commitment Fee.
(a) Xxxxxxx agrees to pay to the Agent for the account of each
Lender, for the period (including any portion thereof when its
Commitment is suspended by reason of the Borrowers' inability to satisfy
any condition of Article VI) commencing on the Effective Date and
continuing through the Commitment Termination Date, a commitment fee on
such Lender's Percentage of the average daily Dollar Amount of the
unused portion of the Loan Commitment Availability at the rate of 0.10%
per annum;
(b) For purposes of determining the commitment fee, the average
daily Dollar Amount of all outstanding Loans and the unused portion of
the Loan Commitment Availability shall be determined as of each
applicable Determination Date; and
(c) Such fee shall be payable in Dollars in immediately available
funds in arrears on each Quarterly Payment Date.
SECTION 3.3.2. Arrangement Fee; Agent's Fee. Xxxxxxx agrees to pay to
the Agent for its own account, a non-refundable arrangement fee, and,
thereafter, a non-refundable annual fee, in such amounts and payable at such
times as has been agreed upon between the Agent and Xxxxxxx in the fee letter
dated April 4, 1997 (as amended from time to time).
SECTION 3.3.3. Letter of Credit Face Amount Fee. The applicable
Borrower agrees to pay to the Agent, for the account of the Lenders, a fee for
each Letter of Credit issued on the application of such Borrower for the
period from and including the date of the issuance of such Letter of Credit to
(but not including) the date upon which such Letter of Credit expires, at a
per annum rate equal to the applicable Margin of the face amount of such
Letter of Credit (which face amount shall be reduced by any reductions in such
Letters of Credit pursuant to Section 4.1(d) hereof). Such fee shall be
payable in immediately available funds in advance on the date of issuance of
each Letter of Credit and on each Quarterly Payment Date thereafter. No
portion of such fee shall be refunded after payment.
SECTION 3.3.4. Letter of Credit Fronting Fee. The applicable Borrower
agrees to pay to the Issuer for its own account a fronting fee for each Letter
of Credit issued on the application of such Borrower for the period from and
including the date of the issuance of such Letter of Credit to (but not
including) the date upon which each Letter of Credit expires, of 0.02% (in the
case of a standby Letter of Credit) or 0.05% (in the case of a commercial
Letter of Credit) of the face amount of such Letter of Credit (which face
amount shall be reduced by any reductions in such Letters of Credit pursuant
to Section 4.1(c) hereof). Such fee shall be payable in immediately available
funds on the date of issuance of such Letter of Credit.
SECTION 3.3.5. Letter of Credit Administrative Fee. The Borrowers
agree to pay to the Agent, for the account of the Issuer, the amounts set
forth in Section 4.3.
ARTICLE IV
LETTERS OF CREDIT
SECTION 4.1. Issuance Requests. By delivering to the Agent and the
Issuer an Issuance Request on or before 10:00 A.M., New York time, any
Borrower may request, from time to time prior to the Commitment Termination
Date and on not less than three nor more than ten Business Days' notice, that
the Issuer issue an irrevocable letter of credit in substantially the form of
Exhibit D hereto, or in such other form as may be requested by a Borrower and
approved by the Issuer (each a "Letter of Credit"), in support of financial
obligations of such Borrower incurred in such Borrower's ordinary course of
business and which are described in such Issuance Request. Upon receipt of an
Issuance Request, the Agent shall promptly notify the Lenders thereof. Each
Letter of Credit shall by its terms:
(a) be issued in Dollars;
(b) be issued in a Stated Amount which does not exceed (or would
not exceed) the then Letter of Credit Availability;
(c) be stated to expire on a date (its "Stated Expiry Date") no
later than the earlier of (i) one year from the date of issuance, or
(ii) the Commitment Termination Date; and
(d) on or prior to its Stated Expiry Date
(i) terminate immediately upon notice to the Issuer
thereof from the beneficiary thereunder that all obligations
covered thereby have been terminated, paid, or otherwise satisfied
in full, or
(ii) reduce in part immediately and to the extent the
beneficiary thereunder has notified the Issuer thereof that the
obligations covered thereby have been paid or otherwise satisfied
in part.
So long as no Default has occurred and is continuing and subject to the
conditions set forth in this Agreement, by delivery to the Issuer and the
Agent of an Issuance Request at least three but not more than ten Business
Days prior to the Stated Expiry Date of any Letter of Credit, such Borrower
may request the Issuer to extend the Stated Expiry Date of such Letter of
Credit for an additional period not to extend beyond the Commitment
Termination Date.
SECTION 4.2. Issuances and Extensions. On the terms and subject to
the conditions of this Agreement (including Article VI), the Issuer shall
issue Letters of Credit, and extend the Stated Expiry Dates of outstanding
Letters of Credit, in accordance with the Issuance Requests made therefor.
The Issuer will make available the original of each Letter of Credit which it
issues in accordance with the Issuance Request therefor to the beneficiary
thereof (and will promptly notify each of the Lenders of the issuance) and
will notify the beneficiary under any Letter of Credit of any extension of the
Stated Expiry Date thereof.
SECTION 4.3. Expenses. Each Borrower agrees to pay to the Agent for
the account of the Issuer with respect to each Letter of Credit issued on the
application of such Borrower all standard administrative expenses of the
Issuer in connection with the issuance, maintenance, modification (if any) and
administration of each Letter of Credit issued by the Issuer at the request of
the Borrower upon demand from time to time.
SECTION 4.4. Other Lenders' Participation. Each Letter of Credit
issued pursuant to Section 4.2 shall, effective upon its issuance and without
further action, be issued on behalf of all Lenders (including the Issuer
thereof) pro rata according to their respective Percentages. Each Lender
shall, to the extent of its Percentage (unless the Issuer shall have received
written notice that the conditions precedent to the issuance of such Letter of
Credit had not occurred prior to such issuance), be deemed irrevocably to have
participated in the issuance of such Letter of Credit and shall be responsible
to reimburse promptly the Issuer thereof for Reimbursement Obligations which
have not been reimbursed by the applicable Borrower in accordance with
Section 4.5, or which have been reimbursed by the applicable Borrower but must
be returned, restored or disgorged by the Issuer for any reason, and each
Lender shall, to the extent of its Percentage, be entitled to receive from the
Agent a ratable portion of the letter of credit fees received by the Agent
pursuant to Section 3.3.3, with respect to each Letter of Credit. In the
event that the applicable Borrower shall fail to reimburse the Issuer, or if
for any reason Revolving Loans shall not be made to fund any Reimbursement
Obligation, all as provided in Section 4.5 and in an amount equal to the
amount of any drawing honored by the Issuer under a Letter of Credit issued by
it, or in the event the Issuer must for any reason return or disgorge such
reimbursement, the Issuer shall promptly notify each Lender of the
unreimbursed amount of such drawing and of such Lender's respective
participation therein. Each Lender shall make available to the Issuer,
whether or not any Default shall have occurred and be continuing, an amount
equal to its respective participation in same day or immediately available
funds at the office of the Issuer specified in such notice not later than
10:00 A.M., New York time, on the Business Day after the date the Lenders are
notified by the Issuer. In the event that any Lender fails to make available
to the Issuer the amount of such Lender's participation in such Letter of
Credit as provided herein, the Issuer shall be entitled to recover such amount
on demand from such Lender together with interest at the Federal Funds Rate
for three Business Days (together with such other compensatory amounts as may
be required to be paid by such Lender to the Agent pursuant to the Rules for
Interbank Compensation of the Council on International Banking or the
Clearinghouse Compensation Committee, as the case may be, as in effect from
time to time) and thereafter at the Prime Rate plus 2%. Nothing in this
Section shall be deemed to prejudice the right of any Lender to recover from
the Issuer any amounts made available by such Lender to the Issuer pursuant to
this Section in the event that it is determined by a court of competent
jurisdiction that the payment with respect to a Letter of Credit by the Issuer
in respect of which payment was made by such Lender constituted gross
negligence or wilful misconduct on the part of the Issuer. The Issuer shall
distribute to each other Lender which has paid all amounts payable by it under
this Section with respect to any Letter of Credit issued by the Issuer such
other Lender's Percentage of all payments received by the Issuer from the
applicable Borrower in reimbursement of drawings honored by the Issuer under
such Letter of Credit when such payments are received.
SECTION 4.5. Disbursements. The Issuer will notify the applicable
Borrower and the Agent promptly of the presentment for payment of any Letter
of Credit, together with notice of the date (a "Disbursement Date") such
payment shall be made. Subject to the terms and provisions of such Letter of
Credit, the Issuer shall make such payment to the beneficiary (or its
designee) of such Letter of Credit. Prior to 10:00 A.M., New York time, on
the Disbursement Date, the applicable Borrower will reimburse the Issuer for
all amounts which it has disbursed under the Letter of Credit. To the extent
the Issuer is not reimbursed in full in accordance with the third sentence of
this Section, the Borrower's Reimbursement Obligation shall accrue interest
(i) during the three days following the Disbursement Date at the Prime Rate
and (ii) thereafter at the Prime Rate plus a margin of 2% per annum, payable
on demand. In the event the Issuer is not reimbursed by the applicable
Borrower on the Disbursement Date (other than upon a deemed Disbursement under
Section 4.7 when an actual Disbursement has not been made), or if the Issuer
must for any reason return or disgorge such reimbursement, the Lenders
(including the Issuer) shall, on the terms and subject to the conditions of
this Agreement, fund the Reimbursement Obligation therefor by making Revolving
Loans which shall be Prime Rate Loans (the applicable Borrower being deemed to
have given a timely Borrowing Request therefor for such amount); provided,
however, for the purpose of determining the availability of the Commitments to
make Revolving Loans immediately prior to giving effect to the application of
the proceeds of such Revolving Loans, such Reimbursement Obligation shall be
deemed not to be outstanding at such time.
SECTION 4.6. Reimbursement. The obligation of each Borrower (a
"Reimbursement Obligation") under Section 4.5 to reimburse the Issuer with
respect to each Disbursement (including interest thereon) with respect to each
Letter of Credit issued on such Borrower's application, and each Lender's
obligation to make participation payments in each drawing which has not been
reimbursed by the Borrower, shall be absolute and unconditional under any and
all circumstances and irrespective of any setoff, counterclaim, or defense to
payment which the applicable Borrower may have or have had against any Lender
or any beneficiary of a Letter of Credit, including any defense based upon the
occurrence of any Default, any draft, demand or certificate or other document
presented under a Letter of Credit proving to be forged, fraudulent, invalid
or insufficient, the failure of any Disbursement to conform to the terms of
the applicable Letter of Credit (if, in the Issuer's opinion, such
Disbursement conforms to the terms of the applicable Letter of Credit, unless
such determination is the result of the Issuer's gross negligence or wilful
misconduct) or any non-application or misapplication by the beneficiary of the
proceeds of such Disbursement, or the legality, validity, form, regularity, or
enforceability of such Letter of Credit; provided, however, that nothing
herein shall adversely affect the right of the applicable Borrower to commence
any proceeding against the Issuer for any wrongful Disbursement made by the
Issuer under a Letter of Credit as a result of acts or omissions constituting
gross negligence or wilful misconduct on the part of the Issuer.
SECTION 4.7. Deemed Disbursements. Upon the occurrence and during the
continuation of any Event of Default or the occurrence of the Commitment
Termination Date, an amount equal to that portion of Letter of Credit
Outstandings attributable to outstanding and undrawn Letters of Credit shall,
at the election of the Issuer acting on instructions from the Required
Lenders, and without demand upon or notice to the applicable Borrower, be
deemed to have been paid or disbursed by the Issuer under such Letters of
Credit (notwithstanding that such amount may not in fact have been so paid or
disbursed), and, upon notification by the Issuer to the Agent and the
applicable Borrower of its obligations under this Section, the applicable
Borrower shall be immediately obligated to reimburse the Issuer the amount
deemed to have been so paid or disbursed by the Issuer. Any amounts so
received by the Issuer from the applicable Borrower pursuant to this Section
shall be held as collateral security for the repayment of the applicable
Borrower's obligations in connection with the Letters of Credit issued by the
Issuer. At any time when such Letters of Credit shall terminate and all
Obligations of the Issuer are either terminated or paid or reimbursed to the
Issuer in full, the Obligations under this Section shall be reduced
accordingly (subject, however, to reinstatement in the event any payment in
respect of such Letters of Credit is recovered in any manner from the Issuer),
and the Issuer will return to the Borrowers the excess, if any, of
(a) the aggregate amount deposited by the applicable Borrower
with the Issuer and not theretofore applied by the Issuer to any
Reimbursement Obligation or other Obligation
over
(b) the aggregate amount of all Reimbursement Obligations to the
Issuer pursuant to this Section, as so adjusted and other Obligations.
At such time when all Events of Default shall have been cured or waived or
when all Obligations of the Borrowers shall have been terminated, paid, or
otherwise satisfied in full, the Issuer shall return to the Borrowers all
amounts then on deposit with the Issuer pursuant to this Section.
SECTION 4.8. Nature of Reimbursement Obligations. The Borrowers shall
assume all risks of the acts, omissions, or misuse of any Letter of Credit by
the beneficiary thereof. Neither the Issuer nor any Lender (except to the
extent of its own gross negligence or wilful misconduct) shall be responsible
for:
(a) the form, genuineness, or legal effect of any Letter of
Credit or the form, validity, sufficiency, accuracy, genuineness, or
legal effect of any document submitted by any party in connection with
the application for and issuance of a Letter of Credit, even if it
should in fact prove to be in any or all respects invalid, insufficient,
inaccurate, fraudulent, or forged;
(b) the form, validity, sufficiency, accuracy, genuineness, or
legal effect of any instrument transferring or assigning or purporting
to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof in whole or in part, which may prove to
be invalid or ineffective for any reason;
(c) failure of the beneficiary to comply fully with conditions
required in order to demand payment under a Letter of Credit;
(d) errors, omissions, interruptions, or delays in transmission
or delivery of any messages, by mail, cable, telegraph, telex, or
otherwise; or
(e) any loss or delay in the transmission or otherwise of any
document or draft required in order to make a Disbursement under a
Letter of Credit or of the proceeds thereof.
SECTION 4.9. Increased Costs; Indemnity. If by reason of
(a) any change in applicable law, regulation, rule, decree or
regulatory requirement or any change in the interpretation or
application by any judicial or regulatory authority of any law,
regulation, rule, decree or regulatory requirement, or
(b) compliance by the Issuer or any Lender with any direction,
request or requirement (whether or not having the force of law) of any
governmental or monetary authority, including Regulation D of the F.R.S.
Board:
(i) the Issuer or any Lender shall be subject to any tax
(other than taxes on net income and franchises), levy, charge or
withholding of any nature or to any variation thereof or to any
penalty with respect to the maintenance or fulfillment of its
obligations under this Article IV, whether directly or by such
being imposed on or suffered by the Issuer or any Lender;
(ii) any reserve, deposit or similar requirement is or
shall be applicable, imposed or modified in respect of any Letters
of Credit issued by the Issuer or participations therein purchased
by any Lender; or
(iii) there shall be imposed on the Issuer or any Lender
any other condition regarding this Article IV, any Letter of
Credit or any participation therein;
and the result of the foregoing is directly or indirectly to increase the cost
to the Issuer or such Lender of issuing, making or maintaining any Letter of
Credit or of purchasing or maintaining any participation therein, or to reduce
any amount receivable in respect thereof by the Issuer or such Lender, then
and in any such case the Issuer or such Lender may, at any time after the
additional cost is incurred or the amount received is reduced, notify the
Borrower on whose application such Letter of Credit was issued thereof, and
such Borrower agrees to pay no later than three days after demand such amounts
as the Issuer or Lender may specify to be necessary to compensate the Issuer
or Lender for such additional cost or reduced receipt, together with interest
on such amount from the date due until payment in full thereof at a rate equal
at all times to the Prime Rate plus 2% per annum. The determination by the
Issuer or Lender, as the case may be, of any amount due pursuant to this
Section, as set forth in a statement setting forth the calculation thereof in
reasonable detail, shall, in the absence of manifest error, be final and
conclusive and binding on all of the parties hereto. In addition to amounts
payable as elsewhere provided in this Article IV, the Borrower on whose
application such Letter of Credit was issued agrees to protect, indemnify, pay
and save the Issuer harmless from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including
reasonable attorneys' fees and allocated costs of internal counsel) which the
Issuer may incur or be subject to as a consequence, direct or indirect, of
(c) the issuance of any Letter of Credit, other than as a result
of the gross negligence or wilful misconduct of the Issuer as determined
by a court of competent jurisdiction or other than with respect to the
validity, sufficiency or accuracy of any Letter of Credit, or
(d) the failure of the Issuer to honor a drawing under any Letter
of Credit requested by such Borrower as a result of any act or omission,
whether rightful or wrongful, of any present or future de jure or de
facto government or governmental authority.
SECTION 4.10. Uniform Customs. Each Letter of Credit shall be subject
to the Uniform Customs and Practice for Documentary Credits, 1993 Revisions,
ICC Publication No. 500.
ARTICLE V
CERTAIN EUROCURRENCY RATE AND OTHER PROVISIONS
SECTION 5.1. Eurocurrency Rate Lending Unlawful. If any Lender shall
determine in good faith (which determination shall, upon notice thereof to the
Borrowers and the Lenders, be conclusive and binding) that the introduction of
or any change in or in the interpretation of any law makes it unlawful, or any
central bank or other governmental authority asserts that it is unlawful, for
such Lender to make, continue or maintain any Loan as, or to convert any Loan
into, a Eurocurrency Rate Loan of a certain Available Currency, the
obligations of all Lenders to make, continue, maintain or convert into any
such Loans shall, upon such determination, forthwith be suspended until such
Lender shall notify the Agent that the circumstances causing such suspension
no longer exist, and all Eurocurrency Rate Loans of such Available Currency
shall automatically convert into Prime Rate in an amount equal to the Dollar
Amount thereof at the end of the then current Interest Periods with respect
thereto or sooner, if required by such law or assertion.
SECTION 5.2. Deposits Unavailable. If the Agent shall have determined
that
(a) deposits in the relevant Available Currency in the relevant
amount and for the relevant Interest Period are not available to ABN in
its relevant market; or
(b) by reason of circumstances affecting ABN's relevant market,
adequate means do not exist for ascertaining the interest rate
applicable hereunder to Eurocurrency Rate Loans of such type,
then, upon notice from the Agent to the Borrowers and the Lenders, the
obligations of all Lenders under Section 2.3 and Section 2.4 to make or
continue any Loans as, or to convert any Loans into, Eurocurrency Rate Loans
of such Available Currency shall forthwith be suspended until the Agent shall
notify the Borrower and the Lenders that the circumstances causing such
suspension no longer exist.
SECTION 5.3. Increased Eurocurrency Rate Loan Costs, etc. Each
Borrower agrees to reimburse any Lender if, as a result of any change in any
law, regulation, treaty or directive, or in any regulatory interpretation or
application thereof or compliance by such Lender with any request or directive
(whether or not having the force of law) from any court or governmental
authority, agency or central bank
(i) the basis of taxation of payments to such Lender of the
principal of or interest on any Eurocurrency Rate Loan (other than taxes
imposed on the overall net income of such Lender by the jurisdiction in
which such Lender has its principal office) is changed;
(ii) any reserve, special deposit or similar requirements against
assets of, deposits with or for the account of, or credit extended by,
such Lender are imposed, modified or deemed applicable; or
(iii) any other condition affecting this Agreement or any
Eurocurrency Rate Loan is imposed on the interbank eurocurrency market;
and such Lender determines that, by reason thereof, the cost to such Lender of
making or maintaining any of the Eurocurrency Rate Loans is actually
increased, or the amount of any sum receivable by such Lender hereunder in
respect of any of the Eurocurrency Rate Loans is actually reduced; then the
applicable Borrower shall pay to such Lender within three Business Days after
demand (which demand shall be accompanied by a statement setting forth the
basis for the calculation thereof but only to the extent not theretofore
provided to the applicable Borrower) such additional amount or amounts as will
compensate such Lender for such additional cost or reduction to the extent
such cost or reduction has not been provided for in the calculation of the
Eurocurrency Reserve Percentage. Determinations by such Lender for purposes
of this section of the additional amounts required to compensate such Lender
in respect of the foregoing shall be rebuttably presumed to be correct.
SECTION 5.4. Funding Losses. In the event any Lender shall incur any
loss or expense (including any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to make, continue or maintain any portion of the principal amount of any Loan
as, or to convert any portion of the principal amount of any Loan into, a
Eurocurrency Rate Loan) as a result of
(a) any conversion or repayment or prepayment of the principal
amount of any Eurocurrency Rate Loans on a date other than the scheduled
last day of the Interest Period applicable thereto, whether pursuant to
Section 3.1 or otherwise;
(b) any Loans not being made as Eurocurrency Rate Loans in
accordance with the Borrowing Request therefor; or
(c) any Loans not being continued as, or converted into,
Eurocurrency Rate Loans in accordance with the Continuation/Conversion
Notice therefor,
then, the applicable Borrower agrees that upon the written notice of such
Lender (with a copy to the Agent), such Borrower shall pay directly to such
Lender upon demand such amount as will (in the reasonable determination of
such Lender) reimburse such Lender for such loss or expense. Such written
notice (which shall include calculations in reasonable detail) shall, in the
absence of manifest error, be conclusive and binding on the Borrower.
SECTION 5.5. Increased Capital Costs. If any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank, regulator
or other governmental authority affects or would affect the amount of capital
required or expected to be maintained by any Lender or any Person controlling
such Lender, and such Lender determines (in its sole and absolute discretion)
that the rate of return on its or such controlling Person's capital as a
consequence of its Commitments, issuance of or participation in Letters of
Credit or the Loans made by such Lender is reduced to a level below that which
such Lender or such controlling Person could have achieved but for the
occurrence of any such circumstance, then, in any such case upon notice from
time to time by such Lender, the Borrowers agree immediately to pay directly
to such Lender additional amounts sufficient to compensate such Lender or such
controlling Person for such reduction in rate of return. A statement of such
Lender as to any such additional amount or amounts (including calculations
thereof in reasonable detail) shall, in the absence of manifest error, be
conclusive and binding on the Borrowers. In determining such amount, such
Lender may use any method of averaging and attribution that it (in its sole
and absolute discretion) shall deem applicable.
SECTION 5.6. Taxes. All payments by any of the Borrowers 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, but excluding franchise taxes and taxes imposed on or measured by
any Lender's net income or receipts (such non-excluded items being called
"Taxes"). In the event that any withholding or deduction from any payment to
be made by a Borrower hereunder is required in respect of any Taxes pursuant
to any applicable law, rule or regulation, then the applicable Borrower agrees
to
(a) pay directly to the relevant authority the full amount
required to be so withheld or deducted;
(b) promptly forward to the Agent an official receipt or other
documentation satisfactory to the Agent evidencing such payment to such
authority; and
(c) pay to the Agent for the account of the Lenders such
additional amount or amounts as is necessary to ensure that the net
amount actually received by each Lender will equal the full amount such
Lender would have received had no such withholding or deduction been
required.
Moreover, if any Taxes are directly asserted against the Agent or any Lender
with respect to any payment received by the Agent or such Lender hereunder,
the Agent or such Lender may pay such Taxes and the applicable Borrower agrees
to promptly pay such additional amounts (including any penalties, interest or
expenses) 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 not such
Taxes been asserted.
If the applicable Borrower fails to pay any Taxes when due to the
appropriate taxing authority or fail to remit to the Agent, for the account of
the respective Lenders, the required receipts or other required documentary
evidence, the applicable Borrower shall indemnify the Lenders for any
incremental Taxes, interest or penalties that may become payable by any Lender
as a result of any such failure. For purposes of this Section 5.6, a
distribution hereunder by the Agent or any Lender to or for the account of any
Lender shall be deemed a payment by the Borrower.
Upon the request of Xxxxxxx or the Agent, each Lender that is organized
under the laws of a jurisdiction other than the United States shall, prior to
the due date of any payments under the Notes, execute and deliver to Xxxxxxx
and the Agent, on or about the first scheduled payment date in each Fiscal
Year, one or more (as Xxxxxxx or the Agent may reasonably request) United
States Internal Revenue Service Forms 4224 or Forms 1001 or such other forms
or documents (or successor forms or documents), appropriately completed, as
may be applicable to establish the extent, if any, to which a payment to such
Lender is exempt from withholding or deduction of Taxes.
Notwithstanding anything to the contrary herein, the Borrowers shall not
be responsible for any Taxes on the transfer by assignment or sale of a
participation of any interest herein, nor shall the liability of the Borrowers
under this Section 5.6 be increased by reason of any assignment or sale of a
participation, except upon any change in law arising after said assignment or
sale.
SECTION 5.7. Payments, Computations, etc.
(a) Currency of Payments. Each payment on account of an amount
due from any Borrower hereunder shall be made by such Borrower to the
Agent for the pro rata account of the Lenders entitled to receive such
payment in the currency in which such amount is denominated and in such
funds as are customary at the place and time of payment for the
settlement of international payments in such currency. Upon request,
the Agent will give the applicable Borrower a statement showing the
computation used in calculating such amount, which statement shall be
conclusive in the absence of manifest error. The obligation of the
Borrowers to make each payment on account of such amount in the currency
in which such amount is denominated shall not be discharged or satisfied
by any tender, or any recovery pursuant to any judgment, which is
expressed in or converted into any other currency, except to the extent
such tender or recovery shall result in the actual receipt by the Agent
of the full amount in the appropriate currency payable hereunder. Each
Borrower agrees that its obligation to make each payment on account of
such amount in the currency in which such amount is denominated shall be
enforceable as an additional or alternative claim for recovery in such
currency of the amount (if any) by which such actual receipt shall fall
short of the full amount of such currency payable hereunder, and shall
not be affected by judgment being obtained for such amount.
(b) Conversion of Currencies. If for the purpose of obtaining
judgment in any court it is necessary to convert an amount in any
currency due from the Borrowers hereunder (hereinafter called the
"Original Currency") into another currency (hereinafter called the
"Other Currency"), the rate of exchange which shall be applied shall, to
the fullest extent permitted by applicable law, be that at which the
Agent could purchase, in Chicago, Illinois, in accordance with normal
banking procedures, the Original Currency with the Other Currency on the
Business Day preceding that on which final judgment is given.
(c) Remittance to Lenders; Basis for Payments. The Agent shall
promptly remit in same day funds to each Lender its share, if any, of
such payments received by the Agent for the account of such Lender. All
interest and fees shall be computed on the basis of the actual number of
days (including the first day but excluding the last day) occurring
during the period for which such interest or fee is payable over a year
comprised of 360 days (or, in the case of interest on Prime Rate Loan
(other than when calculated with respect to the Federal Funds Rate) or
Eurocurrency Rate Loans denominated in Pounds Sterling, 365 days or, if
appropriate, 366 days). Whenever any payment to be made shall otherwise
be due on a day which is not a Business Day, such payment shall (except
as otherwise required by clause (c) of the definition of the term
"Interest Period" with respect to Eurocurrency Rate Loans) be made on
the next succeeding Business Day and such extension of time shall be
included in computing interest and fees, if any, in connection with such
payment.
(d) Place of Payment. All payments hereunder shall be made to
Agent in immediately available funds prior to 10:00 A.M., Chicago time
on the date due at its office at 000 Xxxxxxx Xxx., X.X., X.X. 00000, or
at such other place as may be designated by the Agent to Xxxxxxx in
writing. Any payments received after such time shall be deemed received
on the next succeeding Business Day. The Agent may, but shall not be
obligated to, charge the account of any Borrower for the payment when
due of all amounts payable by such Borrower hereunder.
SECTION 5.8. Sharing of Payments. If any Lender shall obtain any
payment or other recovery (whether voluntary, involuntary, by application of
setoff or otherwise) on account of any Loan (other than pursuant to the terms
of Sections 5.3, 5.4 and 5.5) or Letter of Credit in excess of its pro rata
share of payments then or therewith obtained by all Lenders, such Lender shall
purchase from the other Lenders such participations in Loans made by them
and/or Letters of Credit as shall be necessary to cause such purchasing Lender
to share the excess payment or other recovery ratably with each of them;
provided, however, that if all or any portion of the excess payment or other
recovery is thereafter recovered from such purchasing Lender, the purchase
shall be rescinded and each Lender which has sold a participation to the
purchasing Lender shall repay to the purchasing Lender the purchase price to
the ratable extent of such recovery together with an amount equal to such
selling Lender's ratable share (according to the proportion of
(a) the amount of such selling Lender's required repayment to the
purchasing Lender
to
(b) the total amount so recovered from the purchasing Lender)
of any interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. The Borrowers agree that any Lender
so purchasing a participation from another Lender pursuant to this Section
may, to the fullest extent permitted by law, exercise all its rights of
payment (including pursuant to Section 5.9) with respect to such
participation as fully as if such Lender were the direct creditor of the
applicable Borrower in the amount of such participation. If under any
applicable bankruptcy, insolvency or other similar law, any Lender receives a
secured claim in lieu of a setoff to which this Section applies, such Lender
shall, to the extent practicable, exercise its rights in respect of such
secured claim in a manner consistent with the rights of the Lenders entitled
under this Section to share in the benefits of any recovery on such secured
claim.
SECTION 5.9. Setoff. Each Lender shall, upon the occurrence of any
Default described in clauses (a) through (d) of Section 9.1.9 or any other
Event of Default, have the right to appropriate and apply to the payment of
the Obligations owing to it (whether or not then due), and (as security for
such Obligations) each Borrower hereby grants to each Lender a continuing
security interest in, any and all balances, credits, deposits, accounts or
moneys of each such Borrower then or thereafter maintained with or otherwise
held by such Lender; provided, however, that any such appropriation and
application shall be subject to the provisions of Section 5.8. Each Lender
agrees promptly to notify the applicable Borrower and the Agent after any such
setoff and application made by such Lender; provided, however, that the
failure to give such notice shall not affect the validity of such setoff and
application. The rights of each Lender under this Section are in addition to
other rights and remedies (including other rights of setoff under applicable
law or otherwise) which such Lender may have.
SECTION 5.10. Use of Proceeds. The Borrowers shall use the proceeds
of each Borrowing to finance acquisitions and for general corporate purposes.
ARTICLE VI
CONDITIONS PRECEDENT
SECTION 6.1. Initial Credit Extension. The obligations of the Lenders
to make the initial Credit Extension shall be subject to the prior or
concurrent satisfaction of each of the conditions precedent set forth in this
Section 6.1.
SECTION 6.1.1. Resolutions, etc. The Agent shall have received from
each Borrower a certificate, dated the date of the initial Borrowing, of its
Secretary or Assistant Secretary as to
(a) certified copies of its articles of incorporation and by-laws
or comparable documentation in the case of foreign Borrowers;
(b) resolutions of its board of directors then in full force and
effect authorizing the execution, delivery and performance of this
Agreement, the Notes and each other Loan Document to be executed by it;
(c) the incumbency and signatures of those of its officers
authorized to act with respect to this Agreement, the Notes and each
other Loan Document executed by it; and
(d) the incumbency and signature of the chief financial officer,
the treasurer and any assistant treasurer of Xxxxxxx;
upon which certificate each Lender may conclusively rely until it shall have
received a further certificate of the Secretary of such Borrower canceling or
amending such prior certificate.
SECTION 6.1.2. Delivery of Notes. The Agent shall have received, for
the account of each Lender, its Notes duly executed and delivered by the
Borrowers.
SECTION 6.1.3. Outstanding Indebtedness, etc. (a) All Indebtedness
under that Third Amended and Restated Revolving Credit Agreement, dated as of
August 1, 1996, between the Borrower and Comerica Bank, a Michigan Banking
Corporation, together with all interest, all prepayment premiums and other
amounts due and payable with respect thereto, shall have been paid in full
(including, to the extent necessary, from proceeds of the initial Borrowing)
and the related commitments terminated; and all Liens securing payment of any
such Indebtedness have been released and the Agent shall have received all
Uniform Commercial Code Form UCC-3 termination statements or other instruments
as may be suitable or appropriate in connection therewith.
(b) The Borrowers shall have obtained and delivered any amendments to
agreements regarding Indebtedness existing as of the Effective Date which are
necessary to permit the transactions contemplated by this Agreement.
SECTION 6.1.4. Delivery of Xxxxxxx Guaranty. The Agent shall have
received the Xxxxxxx Guaranty duly executed and delivered by Xxxxxxx.
SECTION 6.1.5. Opinions of Counsel. The Agent shall have received the
opinion, dated the date of the initial Borrowing and addressed to the Agent
and all Lenders, from Xxxxxx Xxxxxxx PLLC, substantially in the form of
Exhibit I hereto.
SECTION 6.1.6. Regulatory Restriction. All regulatory approvals and
licenses necessary to the execution, delivery and performance of the Agreement
and the Loan Documents shall have been obtained and be in full force and
effect and such execution, delivery and performance shall not be prohibited or
restricted in any material way pursuant to any law or regulation.
SECTION 6.1.7. Closing Fees, Expenses, etc. The Agent shall have
received for its own account, or for the account of each Lender, as the case
may be, all fees, costs and expenses due and payable pursuant to Sections 3.3
and 11.3, if then invoiced.
SECTION 6.2. All Credit Extensions. The obligation of each Lender
to make any Credit Extension (including the initial Credit Extension) shall be
subject to the satisfaction of each of the conditions precedent set forth in
this Section 6.2.
SECTION 6.2.1. Compliance with Warranties, No Default, etc. Both
before and after giving effect to any Credit Extension (but, if any Default of
the nature referred to in Section 9.1.5 shall have occurred with respect to
any other Indebtedness, without giving effect to the application, directly or
indirectly, of the proceeds of any Borrowing) the following statements shall
be true and correct
(a) the representations and warranties set forth in Article VII
(excluding, however, those contained in Section 7.8) shall be true and
correct with the same effect as if then made (unless stated to relate
solely to an earlier date, in which case such representations and
warranties shall be true and correct as of such earlier date);
(b) except as disclosed by the Borrowers to the Agent and the
Lenders pursuant to Section 7.8
(i) no litigation, arbitration, or governmental
investigation, proceeding or inquiry shall be pending or, to the
knowledge of the Borrowers, threatened against any Borrower which,
if adversely determined, would materially adversely affect the
business, operations, assets, revenues or financial condition of
Xxxxxxx and its Subsidiaries taken as a whole; and
(ii) no development shall have occurred in any such
litigation, arbitration or governmental investigation, proceeding
or inquiry so disclosed, which, if adversely determined, would
materially adversely affect the business, operations, assets,
revenues or financial condition of Xxxxxxx and its Subsidiaries
taken as a whole.
(c) no Default shall have then occurred and be continuing, and
neither Xxxxxxx nor any of its Subsidiaries are in violation of any
applicable law or governmental regulation or court order or decree which
would materially adversely affect the business, operations, assets,
revenues or financial condition of Xxxxxxx and its Subsidiaries taken as
a whole.
SECTION 6.2.2. Credit Request. The Agent shall have received the
related Borrowing Request or Issuance Request, as the case may be, for such
Credit Extension, which Borrowing Request or Issuance Request will include a
statement that all conditions to such Borrowing have been met. Each of the
delivery of a Borrowing Request or an Issuance Request and the acceptance by
any Borrower of the proceeds of the Borrowing or the issuance of the Letter of
Credit, as applicable, shall constitute a representation and warranty by the
Borrowers that on the date of such Borrowing (both immediately before and
after giving effect to such Borrowing and the application of the proceeds
thereof) or the issuance of the Letter of Credit, as applicable, the
statements made in Section 6.2.1 are true and correct.
SECTION 6.2.3. Satisfactory Legal Form. All documents executed or
submitted pursuant hereto by or on behalf of any Borrower or any other
Subsidiary shall be satisfactory in form and substance to the Agent and its
counsel; the Agent and its counsel shall have received all information,
approvals, opinions, documents or instruments as the Agent or its counsel may
reasonably request.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders and the Agent to enter into this
Agreement and to make Loans and issue Letters of Credit hereunder, the
Borrowers represent and warrant unto the Agent and each Lender as set forth in
this Article VII.
SECTION 7.1. Organization, etc. Each of the Borrowers is a
corporation validly organized and existing and in good standing under the laws
of the jurisdiction of its incorporation, is duly qualified to do business and
is in good standing as a foreign corporation in each jurisdiction where the
nature of its business or properties requires such qualification, and has full
power and authority and holds all requisite governmental licenses, permits and
other approvals to enter into and perform its Obligations under this
Agreement, the Notes and each other Loan Document to which it is a party and
to own and hold under lease its property and to conduct its business
substantially as currently conducted by it.
SECTION 7.2. Due Authorization, Non-Contravention, etc. The
execution, delivery and performance by each of the Borrowers of this
Agreement, the Notes and each other Loan Document executed or to be executed
by it, are within each such Borrower's powers, have been duly authorized by
all necessary action, and do not
(a) contravene such Borrower's Organic Documents;
(b) contravene any contractual restriction, law or governmental
regulation or court decree or order binding on or affecting such
Borrower; or
(c) result in, or require the creation or imposition of, any Lien
on any of such Borrower's properties.
SECTION 7.3. Government Approval, Regulation, etc. No authorization
or approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body or other Person is required for the
due execution, delivery or performance by any of the Borrowers of this
Agreement, the Notes or any other Loan Document to which it is a party. No
Borrower nor any of its Subsidiaries is an "investment company" within the
meaning of the Investment Company Act of 1940, as amended, or a "holding
company", or a "subsidiary company" of a "holding company", or an "affiliate"
of a "holding company" or of a "subsidiary company" of a "holding company",
within the meaning of the Public Utility Holding Company Act of 1935, as
amended.
SECTION 7.4. Validity, etc. This Agreement constitutes, and the Notes
and each other Loan Document executed by each of the Borrowers will, on the
due execution and delivery thereof, constitute, the legal, valid and binding
obligations of such Borrower enforceable in accordance with their respective
terms.
SECTION 7.5. Financial Information. The consolidated balance sheets
of Xxxxxxx as at December 31, 1996, and the related consolidated statements of
earnings and cash flow of Xxxxxxx, copies of which have been furnished to the
Agent and each Lender, have been prepared in accordance with GAAP consistently
applied, and present fairly the consolidated financial condition of the
corporations covered thereby as at the dates thereof and the results of their
operations for the periods then ended.
SECTION 7.6. No Material Adverse Change. Since the date of the
financial statements described in Section 7.5, there has been no material
adverse change in the financial condition, operations, assets, business or
properties of Xxxxxxx and its Subsidiaries taken as a whole.
SECTION 7.7. Environmental Warranties. Except as set forth in Item
7.7 ("Environmental Matters") of the Disclosure Schedule:
(a) all facilities and property (including underlying
groundwater) owned or leased by Xxxxxxx or any of its Subsidiaries have
been, and continue to be, owned or leased by Xxxxxxx and its
Subsidiaries in material compliance with all Environmental Laws;
(b) there have been no past, and there are no pending or to
Xxxxxxx'x knowledge threatened
(i) claims, complaints, notices or requests for
information received by Xxxxxxx or any of its Subsidiaries with
respect to any alleged violation of any Environmental Law, or
(ii) complaints, notices or inquiries to Xxxxxxx or any
of its Subsidiaries regarding potential liability under any
Environmental Law;
(c) there have been no Releases of Hazardous Materials at, on or
under any property now or previously owned or leased by Xxxxxxx or any
of its Subsidiaries that, singly or in the aggregate, have, or may
reasonably be expected to have, a material adverse effect on the
financial condition, operations, assets, business or properties of
Xxxxxxx and its Subsidiaries;
(d) Xxxxxxx and its Subsidiaries have been issued and are in
material compliance with all permits, certificates, approvals, licenses
and other authorizations relating to environmental matters and necessary
or desirable for their businesses;
(e) no property now or previously owned or leased by Xxxxxxx or
any of its Subsidiaries is listed or proposed for listing (with respect
to owned property only) on the National Priorities List pursuant to
CERCLA, on the CERCLIS or on any similar state list of sites requiring
investigation or clean-up;
(f) there are no underground storage tanks, active or abandoned,
including petroleum storage tanks, on or under any property now or
previously owned or leased by Xxxxxxx or any of its Subsidiaries that,
singly or in the aggregate, have, or may reasonably be expected to have,
a material adverse effect on the financial condition, operations,
assets, business or properties of Xxxxxxx and its Subsidiaries;
(g) neither Xxxxxxx nor any of its Subsidiaries has directly
transported or directly arranged for the transportation of any Hazardous
Material to any location which is listed or proposed for listing on the
National Priorities List pursuant to CERCLA, on the CERCLIS or on any
similar state list or which is the subject of federal, state or local
enforcement actions or other investigations which may lead to material
claims against Xxxxxxx or such Subsidiary thereof for any remedial work,
damage to natural resources or personal injury, including claims under
CERCLA;
(h) there are no polychlorinated biphenyls or friable asbestos
present at any property now or previously owned or leased by Xxxxxxx or
any of its Subsidiaries that, singly or in the aggregate, have, or may
reasonably be expected to have, a material adverse effect on the
financial condition, operations, assets, business or properties of
Xxxxxxx and its Subsidiaries; and
(i) no conditions exist at, on or, to Xxxxxxx'x knowledge,
under any property now or previously owned or leased by Xxxxxxx or any
of its Subsidiaries which, with the passage of time, or the giving of
notice or both, would give rise to liability under any Environmental
Law.
SECTION 7.8. Litigation, Labor Controversies, etc. There is no
pending or, to the knowledge of any Borrower, threatened litigation, action,
proceeding, or labor controversy affecting Xxxxxxx or its Subsidiaries, or any
of their respective properties, businesses, assets or revenues, which may
materially adversely affect the financial condition, operations, assets,
business or properties of Xxxxxxx and its Subsidiaries taken as a whole or
which purports to affect the legality, validity or enforceability of this
Agreement, the Notes or any other Loan Document, except as disclosed in
Item 7.8 ("Litigation") of the Disclosure Schedule.
SECTION 7.9. Subsidiaries. Neither Xxxxxxx nor any other Borrower has
any Subsidiaries or Significant Subsidiaries other than those
(a) which are identified in Item 7.9 ("Existing Subsidiaries")
of the Disclosure Schedule; or
(b) which are permitted to have been acquired in accordance with
Section 8.2.4 or 8.2.5.
SECTION 7.10. Ownership of Properties. Each Borrower and each of its
Subsidiaries owns good and 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 or claims (including infringement claims
with respect to patents, trademarks, copyrights and the like) except as
permitted pursuant to Section 8.2.2.
SECTION 7.11. Taxes. Each Borrower and each of its Subsidiaries has
filed all tax returns and reports required by law to have been filed by it
(unless any extension period properly obtained with respect thereto shall not
have expired) 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.
SECTION 7.12. Pension and Welfare Plans. During the twelve-consecutive-
month period prior to the date of the execution and delivery of
this Agreement and prior to the date of any Borrowing hereunder, no steps have
been taken to terminate any Pension Plan, and 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 might result in the
incurrence by Xxxxxxx or any member of the Controlled Group of any material
liability, fine or penalty. Except as disclosed in Item 7.12 ("Employee
Benefit Plans") of the Disclosure Schedule, neither Xxxxxxx nor any member of
the Controlled Group has any contingent liability with respect to any post-
retirement benefit under a Welfare Plan, other than liability for continuation
coverage described in Part 6 of Title I of ERISA.
SECTION 7.13. Regulations G, U and X. No Borrower is engaged in the
business of extending credit for the purpose of purchasing or carrying margin
stock, and no proceeds of any Loans will be used for a purpose which violates,
or would be inconsistent with, F.R.S. Board Regulation G, U or X. Terms for
which meanings are provided in F.R.S. Board Regulation G, U or X or any
regulations substituted therefor, as from time to time in effect, are used in
this Section with such meanings.
SECTION 7.14. Accuracy of Information. All material factual
information heretofore or contemporaneously furnished by or on behalf of any
Borrower in writing to the Agent or any Lender for purposes of or in
connection with this Agreement is, and all other such material factual
information hereafter furnished by or on behalf of such Borrower to the Agent
or any Lender will be, true and accurate in every material respect on the date
as of which such information is dated or certified and as of the date of
execution and delivery of this Agreement by the Agent and such Lender, and
such information is not, or shall not be, as the case may be, incomplete by
omitting to state any material fact necessary to make such information not
misleading.
SECTION 7.15. Solvency. Each Subsidiary Borrower is Solvent.
ARTICLE VIII
COVENANTS
SECTION 8.1. Affirmative Covenants. The Borrowers agree with the
Agent and each Lender that, until all Commitments have terminated and all
Obligations have been paid and performed in full, the Borrowers will perform
the obligations set forth in this Section 8.1.
SECTION 8.1.1. Legal Existence. Each Borrower shall, and shall cause
each Subsidiary to:
(a) preserve and maintain in full force and effect its corporate
existence and good standing under the laws of its state or jurisdiction
of incorporation;
(b) preserve and maintain in full force and effect all
governmental rights, privileges, qualifications, permits, licenses,
franchises and contracts necessary or desirable in the normal conduct of
its business;
(c) use reasonable efforts, in the ordinary course of business,
to preserve its business organization and goodwill; and
(d) preserve or renew all of its registered patents, trademarks,
trade names and service marks, the non-preservation of which could
reasonably be expected to have a Material Adverse Effect.
SECTION 8.1.2. Financial Information, Reports, Notices, etc. Xxxxxxx
will furnish, or will cause to be furnished, to each Lender and the Agent
copies of the following financial statements, reports, notices and
information:
(a) as soon as available and in any event within 45 days after
the end of each of the first three Fiscal Quarters of each Fiscal Year
of Xxxxxxx, consolidated balance sheets of Xxxxxxx and its Subsidiaries
as of the end of such Fiscal Quarter and consolidated statements of
earnings and cash flow of Xxxxxxx and its Subsidiaries for such Fiscal
Quarter and for the period commencing at the end of the previous Fiscal
Year and ending with the end of such Fiscal Quarter, certified by the
chief financial officer, treasurer or assistant treasurer of Xxxxxxx;
(b) as soon as available and in any event within 90 days after
the end of each Fiscal Year of Xxxxxxx a copy of the annual audit report
for such Fiscal Year for Xxxxxxx and its Subsidiaries, including therein
consolidated balance sheets of Xxxxxxx and its Subsidiaries as of the
end of such Fiscal Year and consolidated statements of earnings and cash
flow of Xxxxxxx and its Subsidiaries for such Fiscal Year, in each case
certified (without any Impermissible Qualification) in a manner
reasonably acceptable to the Agent and the Required Lenders by KPMG Peat
Marwick or other independent public accountants reasonably acceptable to
the Agent and the Required Lenders, together with a report from such
accountants containing a computation of, and showing compliance with,
each of the financial ratios and restrictions contained in Section 8.2.3
and to the effect that, in making the examination necessary for the
signing of such annual report by such accountants, they have not become
aware of any Default that has occurred and is continuing, or, if they
have become aware of such Default, describing such Default and the
steps, if any, being taken to cure it;
(c) as soon as available and in any event within 90 days after
the end of each Fiscal Year of Xxxxxxx, consolidating balance sheets of
Xxxxxxx and its Subsidiaries as of the end of such Fiscal Year and
consolidating statements of earnings and cash flow of Xxxxxxx and its
Subsidiaries for such Fiscal Year, in each case certified by the chief
financial officer, treasurer or assistant treasurer of Xxxxxxx.
(d) as soon as possible and in any event within 90 days after the
end of each Fiscal Year of Xxxxxxx, annual financial projections for the
following three Fiscal Years;
(e) together with the delivery of financial statements in
clauses (a) and (b) above, a Compliance Certificate showing (in
reasonable detail and with appropriate calculations and computations in
all respects satisfactory to the Agent) compliance with the financial
covenants set forth in Section 8.2.3 and stating that no Default has
occurred and is continuing;
(f) as soon as possible and in any event within five days after
any officer of a Borrower shall be aware of the occurrence of each
Default (other than a Default described in Section 9.1.1 or Section
9.1.5), a statement of the chief financial officer, treasurer or
assistant treasurer of Xxxxxxx setting forth details of such Default and
the action which the applicable Borrower has taken and proposes to take
with respect thereto;
(g) immediately upon the occurrence of any Default described in
Section 9.1.1 or Section 9.1.5, a statement of the chief financial
officer, treasurer or assistant treasurer of Xxxxxxx setting forth
details of such Default and the action which Xxxxxxx has taken and
proposes to take with respect thereto;
(h) within ten days after the sending or filing thereof, copies
of all reports which Xxxxxxx sends to any of its securityholders, and
all reports and registration statements which Xxxxxxx or any of its
Subsidiaries files with the Securities and Exchange Commission or any
national securities exchange;
(i) as soon as possible and in any event within five days after
(x) the occurrence of any material adverse development with respect to
any litigation, action, proceeding, or labor controversy described in
Section 7.8 or (y) the commencement of, and if and when applicable, the
subsequent occurrence of any material adverse development with respect
to, any labor controversy, litigation, action, proceeding, in each case,
of the type described in Section 7.8, notice thereof and copies of all
documentation relating thereto;
(j) immediately upon becoming aware of the institution of any
steps by any Borrower or any other Person to terminate any Pension Plan,
or the failure 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 the taking of any action with respect to a Pension Plan
which could result in the requirement that the Borrower or Subsidiary
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 which could
result in the incurrence by any Borrower or any Subsidiary of any
material liability, fine or penalty, or any material increase in the
contingent liability of any Borrower or any Subsidiary with respect to
any post-retirement Welfare Plan benefit, notice thereof and copies of
all documentation relating thereto;
(k) such other information respecting the condition or
operations, financial or otherwise, of any Borrower or any of its
Subsidiaries as any Lender through the Agent may from time to time
reasonably request.
SECTION 8.1.3. Compliance with Laws, etc. Each Borrower will, and
will cause each of its Subsidiaries to, comply in all material respects with
all applicable laws, rules, regulations and orders, where noncompliance would
result in a material adverse effect on the financial condition, operations,
assets, business or properties of Xxxxxxx and its Subsidiaries taken as a
whole, such compliance to include (without limitation):
(a) the maintenance and preservation of its legal existence and
qualification as a foreign corporation; and
(b) the payment, before the same become delinquent, of all taxes,
assessments and governmental charges imposed upon it or upon its
property except to the extent 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.
SECTION 8.1.4. Maintenance of Properties. Each Borrower will, and
will cause each of its Subsidiaries to, maintain, preserve, protect and keep
its properties in good repair, working order and condition, and make necessary
and proper repairs, renewals and replacements so that its business carried on
in connection therewith may be properly conducted at all times unless such
Borrower determines in good faith that the continued maintenance of any of
its, or its Subsidiaries' properties is no longer economically desirable.
SECTION 8.1.5. Insurance. Each Borrower will, and will cause each of
its Subsidiaries to, maintain or cause to be maintained with responsible
insurance companies insurance with respect to its properties and business
(including business interruption insurance) against such casualties and
contingencies and of such types, in such amounts and with such deductibles as
is customary in the case of similar businesses and will, upon request of the
Agent, furnish to each Lender at reasonable intervals a certificate of an
Authorized Officer of Xxxxxxx setting forth the nature and extent of all
insurance maintained by Xxxxxxx and its Subsidiaries in accordance with this
Section.
SECTION 8.1.6. Books, Records and Access. Subject to Section 8.1.2,
each Borrower will maintain, and cause each of its Subsidiaries to maintain,
complete and accurate books and records in which full and correct entries in
conformity with GAAP shall be made of all dealings and transactions in
relation to its respective business and activities. Each Borrower will
permit, and cause each of its Subsidiaries to permit, access by the Lenders to
the books and records of each Borrower and each of its Subsidiaries during
normal business hours and permit, and cause each Subsidiary to permit, the
Lenders to make copies of such books and records.
SECTION 8.1.7. Environmental Covenant. Each Borrower will, and will
cause each of its Subsidiaries to,
(a) use and operate all of its facilities and properties in
material compliance with all Environmental Laws, keep all necessary
permits, approvals, certificates, licenses and other authorizations
relating to environmental matters in effect and remain in material
compliance therewith, and handle all Hazardous Materials in material
compliance with all applicable Environmental Laws;
(b) immediately notify the Agent and provide copies upon receipt
of all material written claims, complaints, notices or inquiries
relating to the condition of its facilities and properties or compliance
with Environmental Laws; and
(c) provide such information and certifications which the Agent
may reasonably request from time to time to evidence compliance with
this Section 8.1.7.
SECTION 8.1.8. Guaranty. The Borrowers shall cause each U.S.
Subsidiary which is a Significant Subsidiary to deliver a Guaranty.
SECTION 8.2. Negative Covenants. Each Borrower agrees with the Agent
and each Lender that, until all Commitments have terminated and all
Obligations have been paid and performed in full, the Borrowers will perform
the obligations set forth in this Section 8.2.
SECTION 8.2.1. Business Activities. The Borrowers will not, and will
not permit any of their Subsidiaries to, engage, to any material extent, in
any business activity except business activities similar to present lines of
business and such activities as may be incidental or related thereto.
SECTION 8.2.2. Liens. Xxxxxxx will not, and will not permit any of
its Subsidiaries to, create, incur, assume or suffer to exist any Lien upon
any asset, whether now owned or hereafter acquired, except:
(a) Liens existing on the date of this Agreement and identified
on Item 8.2.6(a)(iii) ("Ongoing Indebtedness") of the Disclosure
Schedule, securing Indebtedness outstanding on the date of this
Agreement described in said Item;
(b) Liens for taxes, assessments or other governmental charges or
levies not at the time delinquent or thereafter payable without penalty
or being diligently contested in good faith by appropriate proceedings
and not for which adequate reserves in accordance with GAAP shall have
been set aside on its books;
(c) Liens of carriers, warehousemen, mechanics, materialmen and
landlords incurred in the ordinary course of business for sums not
overdue or 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;
(d) Liens incurred in the ordinary course of business other than
in connection with borrowed money;
(e) judgment Liens in existence less than 15 days after the entry
thereof or with respect to which execution has been stayed or the
payment of which is covered in full (subject to a customary deductible)
by insurance maintained with responsible insurance companies;
(f) Liens in connection with Capitalized Lease Liabilities in
amounts permitted hereunder; and
(g) Liens on newly acquired assets of, and stock of, special
purpose entities.
SECTION 8.2.3. Financial Condition. Xxxxxxx shall not permit:
(a) the ratio, on a consolidated basis for Xxxxxxx and its
Subsidiaries as at the end of any Fiscal Quarter for the four Fiscal
Quarters then ending, of EBITDA to interest expense to be less than 3.0
to 1.0;
(b) the Funded Debt to EBITDA Ratio to exceed 3.5 to 1.0; or
(c) the Net Worth of Xxxxxxx at any time to be less than
$100,000,000 plus 50% of net income (if any) for each Fiscal Quarter
after the date hereof plus 50% of the proceeds of any equity issuance by
Xxxxxxx or any Subsidiary after the date hereof less non-cash charges
for plant closings in the U.S. after the date hereof in an amount not to
exceed $5,000,000.
SECTION 8.2.4. Acquisitions. The Borrowers will not, and will not
permit any of their Subsidiaries to, acquire all or substantially all of the
stock (or other ownership interests) or, all or substantially all of the
assets of any Person except the acquisition of stock (or other ownership
interests) or assets in an entity which is in a business that is the same,
similar, related or incidental to the business activities described in
Section 8.2.1 hereof pursuant to a transaction which is approved by the Board
of Directors of the acquired entity, with respect to which a Borrower is the
surviving entity and with respect to which the resulting entity would be in
pro forma compliance with this Agreement as evidenced by a certificate of the
chief financial officer, treasurer or assistant treasurer of Xxxxxxx in form
satisfactory to the Required Lenders, which certificate shall have been
delivered at least fourteen days prior to the consummation of such
transaction.
SECTION 8.2.5. Investments. The Borrowers will not, and will not
permit any of their Subsidiaries to, make, incur, assume or suffer to exist
any Investment in any other Person, except:
(a) Investments existing on the Effective Date and identified in
Item 8.2.5(a) ("Ongoing Investments") of the
Disclosure Schedule;
(b) Cash Equivalent Investments;
(c) without duplication, Investments permitted as Indebtedness
pursuant to Section 8.2.6;
(d) without duplication, Investments permitted as Capital
Expenditures pursuant to Section 8.2.8;
(e) without duplication, Investments permitted under Section
8.2.4;
(f) in the ordinary course of business, Investments at any time
outstanding by any Borrower in any of its Subsidiaries, or by any such
Subsidiary in any of its Subsidiaries, by way of contributions to
capital or loans or advances, not to exceed in the aggregate 50% of the
Tangible Net Worth of Xxxxxxx and its Subsidiaries; and
(g) other Investments in an aggregate amount at any one time not
to exceed $10,000,000;
provided, however, 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; and
(y) no Investment otherwise permitted by clause (e) or (f) shall
be permitted to be made if, immediately before or after giving effect
thereto, any Default shall have occurred and be continuing.
SECTION 8.2.6. Indebtedness. (a) The Borrowers will not, and will not
permit any of their Subsidiaries to, create, incur, assume or suffer to exist
or otherwise become or be liable in respect of any Indebtedness, other than,
without duplication, the following:
(i) Indebtedness in respect of the Loans and other
Obligations;
(ii) until the date of the initial Borrowing,
Indebtedness identified in Item 8.2.6(a)(ii) ("Indebtedness to be
Paid") of the Disclosure Schedule;
(iii) Indebtedness existing as of the Effective Date
which is identified in Item 8.2.6(a)(iii) ("Ongoing Indebtedness")
of the Disclosure Schedule;
(iv) Indebtedness in an aggregate principal amount not to
exceed $10,000,000 at any time outstanding which is incurred by
any Borrower or any of its Subsidiaries to a vendor of any assets
to finance its acquisition of such assets;
(v) unsecured Indebtedness incurred in the ordinary
course of business (including open accounts extended by suppliers
on normal trade terms in connection with purchases of goods and
services, but excluding Indebtedness incurred through the
borrowing of money or Contingent Liabilities);
(vi) Indebtedness in respect of Capitalized Lease
Liabilities in amounts not in excess of $10,000,000 at any time
outstanding;
(vii) Subordinated Debt;
(viii) other Indebtedness of the Borrowers and their
Subsidiaries in an aggregate amount not to exceed $10,000,000; and
(ix) other Indebtedness, provided that the net proceeds
of such other Indebtedness are used to repay, on a pro rata basis,
Indebtedness under this Agreement and the Companion Agreement, and
further provided, that the Commitments under this Agreement and
the Commitments (as defined in the Companion Agreement) shall be
reduced, on a pro rata basis, by the amount of the net proceeds in
excess of $50,000,000 of such other Indebtedness;
provided, however, that no Indebtedness otherwise permitted by clauses (iv),
(v), (vi), (vii), (viii) or (ix) shall be permitted if, after giving effect to
the incurrence thereof, any Default shall have occurred and be continuing.
(b) Xxxxxxx shall not permit any Indebtedness of any of its
Subsidiaries to exist except:
(i) Indebtedness to Xxxxxxx or another Subsidiary; and
(ii) Indebtedness in an amount which, when added to the
amount of Indebtedness of Xxxxxxx subject to Liens (other than
Liens described in Sections 8.2.2(b) and (c)), shall not exceed
15% of the sum of the total Indebtedness of Xxxxxxx and its
Subsidiaries and the Net Worth of Xxxxxxx and its Subsidiaries.
SECTION 8.2.7. Subordinated Debt. On and at all times after the
Effective Date the Borrowers will not make any prepayments on any Subordinated
Debt.
SECTION 8.2.8. Capital Expenditures, etc. The Borrowers will not, and
will not permit any of their Subsidiaries to, make or commit to make Capital
Expenditures in any Fiscal Year, except Capital Expenditures which do not
aggregate in excess of the amount set forth below opposite such Fiscal Year:
1997 $45,000,000
1998 $45,000,000
1999 $50,000,000
2000 and each
Fiscal Year
thereafter $55,000,000;
provided, however, that the Borrowers may make additional Capital Expenditures
for new plant openings in an aggregate amount not to exceed $20,000,000.
SECTION 8.2.9. Rental Obligations. The Borrowers will not, and will
not permit any of their Subsidiaries to, enter into at any time any
arrangement which does not create a Capitalized Lease Liability and which
involves the leasing by any Borrower or any of its Subsidiaries from any
lessor of any real or personal property (or any interest therein), except
arrangements which, together with all other such arrangements which shall then
be in effect, will not require the payment of an aggregate amount of rentals
by the Borrowers and their Subsidiaries in excess of $5,000,000 for any Fiscal
Year; provided, however, that any calculation made for purposes of this
Section shall exclude any amounts required to be expended for maintenance and
repairs, insurance, taxes, assessments, and other similar charges.
SECTION 8.2.10. Sale/Leaseback. The Borrowers will not, and will not
permit any of their Subsidiaries to, sell or otherwise transfer any assets
with the intent to lease such assets as lessee other than the transfer of
Xxxxxxx'x headquarters so long as the headquarters so transferred shall have a
value not in excess of $15,000,000.
SECTION 8.2.11. Consolidation, Merger, Etc. The Borrowers will not,
and will not permit any of their Subsidiaries to, liquidate or dissolve,
consolidate with, or merge into or with, any other corporation, or purchase or
otherwise acquire all or substantially all of the assets of any Person (or of
any division thereof) except any such Subsidiary may liquidate or dissolve
voluntarily into, and may merge with and into, a Borrower or any other
Subsidiary, and the assets or stock of any Subsidiary may be purchased or
otherwise acquired by a Borrower or any other Subsidiary except that a
Borrower and any Subsidiary may enter into a consolidation, merger or
acquisition so long as a Borrower (if a party) or a Subsidiary (if no Borrower
is a party) shall be the surviving entity and the surviving entity would be in
pro forma compliance with this Agreement as evidenced by a certificate of the
chief financial officer, treasurer or assistant treasurer of Xxxxxxx in form
satisfactory to the Required Lenders.
SECTION 8.2.12. Asset Dispositions, etc. The Borrowers will not, and
will not permit any of their Subsidiaries to, sell, transfer, lease,
contribute or otherwise convey, or grant options, warrants or other rights
with respect to, all or any substantial part of its assets (including accounts
receivable and capital stock of Subsidiaries) to any Person, unless
(a) such sale, transfer, lease, contribution or conveyance is in
the ordinary course of its business; or
(b) the net book value of such assets, together with the net
book value of all other assets sold, transferred, leased, contributed or
conveyed otherwise than in the ordinary course of business by the
Borrower or any of its Subsidiaries pursuant to this clause in any
Fiscal Year, does not exceed $10,000,000 in addition to any transfer in
connection with a sale and leaseback permitted pursuant to Section
8.2.10.
SECTION 8.2.13. Transactions with Affiliates. The Borrowers will not,
and will not permit any of their Subsidiaries to, enter into, or cause, suffer
or permit to exist any arrangement or contract with any of its other
Affiliates unless such arrangement or contract is fair and equitable to such
Borrower or such Subsidiary and is an arrangement or contract of the kind
which would be entered into by a prudent Person in the position of such
Borrower or such Subsidiary with a Person which is not one of its Affiliates.
ARTICLE IX
EVENTS OF DEFAULT
SECTION 9.1. Listing of Events of Default. Each of the following
events or occurrences described in this Section 9.1 shall constitute an "Event
of Default".
SECTION 9.1.1. Non-Payment of Obligations. Any Borrower shall default
in the payment or prepayment when due of any principal of any Loan, any
Borrower shall default in the payment when due of any Reimbursement
Obligation, or any Borrower shall default (and such default shall continue
unremedied for a period of two days) in the payment when due of any interest
on any Loan, of any fee or of any other Obligation.
SECTION 9.1.2. Breach of Warranty. Any representation or warranty of
any Borrower made or deemed to be made hereunder or in any other Loan Document
or any other writing or certificate furnished by or on behalf of any Borrower
to the Agent or any Lender for the purposes of or in connection with this
Agreement or any such other Loan Document (including any certificates
delivered pursuant to Article VI) is or shall be incorrect when made in any
material respect.
SECTION 9.1.3. Non-Performance of Certain Covenants and Obligations.
Any Borrower shall default in the due performance and observance of any of its
obligations under Sections 8.1.2 or 8.2.
SECTION 9.1.4. Non-Performance of Other Covenants and Obligations.
Any Borrower shall default in the due performance and observance of any other
agreement contained herein or in any other Loan Document, and such default
shall continue unremedied for a period of 30 days after written notice thereof
shall have been given to any Borrower by the Agent or any Lender.
SECTION 9.1.5. Default on Other Indebtedness. A default shall occur
in the payment when due (subject to any applicable grace period or unless
there shall have been a waiver of such default by the applicable creditor),
whether by acceleration or otherwise, of any Indebtedness (other than
Indebtedness described in Section 9.1.1) of any Borrower or any of its
Subsidiaries having a principal amount, individually or in the aggregate, in
excess of $5,000,000, or a default shall occur in the performance or
observance of any obligation or condition with respect to such Indebtedness if
the effect of such default is to accelerate the maturity of any such
Indebtedness or such default shall continue unremedied for any applicable
period of time sufficient to permit the holder or holders of such
Indebtedness, or any trustee or agent for such holders, to cause such
Indebtedness to become due and payable prior to its expressed maturity.
SECTION 9.1.6. Judgments. Any judgment or order for the payment of
money in excess of $5,000,000 shall be rendered against any Borrower or any of
its Subsidiaries and there shall be any period of 10 consecutive days during
which a stay of enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect.
SECTION 9.1.7. Pension Plans. Any of the following events shall occur
with respect to any Pension Plan and shall continue for a period of 30 days
(a) the institution of any steps by Xxxxxxx, any member of its
Controlled Group or any other Person to terminate a Pension Plan if, as
a result of such termination, the Borrower or any such member could be
required to make a contribution to such Pension Plan, or could
reasonably expect to incur a liability or obligation to such Pension
Plan; or
(b) a contribution failure occurs with respect to any Pension
Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
SECTION 9.1.8. Change in Control. Any Change in Control shall occur.
SECTION 9.1.9. Bankruptcy, Insolvency, etc. Any Borrower or any of
its Subsidiaries shall
(a) become insolvent or generally fail to pay, or admit in
writing its inability or unwillingness to pay, debts as they become due;
(b) apply for, consent to, or acquiesce in, the appointment of a
trustee, receiver, sequestrator or other custodian for such Borrower or
such Subsidiary or any property of any thereof, or make a general
assignment for the benefit of creditors;
(c) in the absence of such application, consent or acquiescence,
permit or suffer to exist the appointment of a trustee, receiver,
sequestrator or other custodian for such Borrower or such Subsidiary or
for a substantial part of the property of any thereof, and such trustee,
receiver, sequestrator or other custodian shall not be discharged within
60 days, provided that such Borrower, and each of its Subsidiaries
hereby expressly authorizes the Agent and each Lender to appear in any
court conducting any relevant proceeding during such 60- day period to
preserve, protect and defend their rights under the Loan Documents;
(d) permit or suffer to exist the commencement of any bankruptcy,
reorganization, debt arrangement or other case or proceeding under any
bankruptcy or insolvency law, or any dissolution, winding up or
liquidation proceeding, in respect of such Borrower or such Subsidiary,
and, if any such case or proceeding is not commenced by such Borrower or
such Subsidiary, such case or proceeding shall be consented to or
acquiesced in by such Borrower or such Subsidiary or shall result in the
entry of an order for relief or shall remain for 60 days undismissed or
any order of attachment is issued against any substantial part of the
assets of such Borrower, any of its Subsidiaries which is not released
within 30 days of service provided, that each Borrower and each of its
Subsidiaries hereby expressly authorizes the Agent and each Lender to
appear in any court conducting any such case or proceeding during such
60-day period to preserve, protect and defend their rights under the
Loan Documents; or
(e) take any action authorizing, or in furtherance of, any of the
foregoing.
SECTION 9.1.10. Impairment of Security, etc. Any Loan Document, or
any Lien granted thereunder, shall (except in accordance with its terms), in
whole or in part, terminate, cease to be effective or cease to be the legally
valid, binding and enforceable obligation of any party thereto; any Borrower,
or any other party shall, directly or indirectly, contest in any manner such
effectiveness, validity, binding nature or enforceability; or any Lien
securing any Obligation shall, in whole or in part, cease to be a perfected
first priority Lien.
SECTION 9.1.11. Governmental Approvals. Any material approval or
license granted to any Borrower with respect to this Agreement, any Loan
Document or the business of such Borrower shall not be in full force and
effect.
SECTION 9.2. Action if Bankruptcy. If any Event of Default described
in clauses (a) through (d) of Section 9.1.9 shall occur with respect to any
Borrower or any of its Subsidiaries, the Commitments (if not theretofore
terminated) shall automatically terminate and the outstanding principal amount
of all outstanding Loans and all other Obligations shall automatically be and
become immediately due and payable, without notice or demand.
SECTION 9.3. Action if Other Event of Default. If any Event of
Default (other than any Event of Default described in clauses (a) through (d)
of Section 9.1.9 with respect to any Borrower or any of its Subsidiaries)
shall occur for any reason, and be continuing, the Agent, upon the direction
of the Required Lenders, shall by notice to Xxxxxxx declare all or any portion
of the outstanding principal amount of the Loans and other Obligations to be
due and payable and/or the Commitments (if not theretofore terminated) to be
terminated, whereupon the full unpaid amount of such Loans and other
Obligations which shall be so declared due and payable shall be and become
immediately due and payable, without further notice, demand or presentment,
and/or, as the case may be, the Commitments shall terminate.
ARTICLE X
THE AGENT
SECTION 10.1. Actions. Each Lender hereby appoints ABN as its Agent
under and for purposes of this Agreement, the Notes and each other Loan
Document. Each Lender authorizes the Agent to act on behalf of such Lender
under this Agreement, the Notes and each other Loan Document and, in the
absence of other written instructions from the Required Lenders received from
time to time by the Agent (with respect to which the Agent agrees that it will
comply, except as otherwise provided in this Section or as otherwise advised
by counsel), to exercise such powers hereunder and thereunder as are
specifically delegated to or required of the Agent by the terms hereof and
thereof, together with such powers as may be reasonably incidental thereto.
Each Lender hereby indemnifies (which indemnity shall survive any termination
of this Agreement) the Agent, pro rata according to such Lender's Percentage,
from and against any and all liabilities, obligations, losses, damages,
claims, costs or expenses of any kind or nature whatsoever which may at any
time be imposed on, incurred by, or asserted against, the Agent in any way
relating to or arising out of this Agreement, the Notes and any other Loan
Document, including reasonable attorneys' fees, and as to which the Agent is
not reimbursed by the Borrowers; provided, however, that no Lender shall be
liable for the payment of any portion of such liabilities, obligations,
losses, damages, claims, costs or expenses which are determined by a court of
competent jurisdiction in a final proceeding to have resulted solely from the
Agent's gross negligence or wilful misconduct. The Agent shall not be
required to take any action hereunder, under the Notes or under any other Loan
Document, or to prosecute or defend any suit in respect of this Agreement, the
Notes or any other Loan Document, unless it is indemnified hereunder to its
satisfaction. If any indemnity in favor of the Agent shall be or become, in
the Agent's determination, inadequate, the Agent may call for additional
indemnification from the Lenders and cease to do the acts indemnified against
hereunder until such additional indemnity is given.
SECTION 10.2. Funding Reliance, etc. Unless the Agent shall have been
notified by telephone, confirmed in writing, by any Lender by 5:00 P.M., New
York time, on the Business Day prior to a Borrowing with respect to Borrowings
in Dollars and by 9:00 A.M., New York time, two Business Days prior to a
Borrowing in any other currency that such Lender will not make available the
amount which would constitute its Percentage of such Borrowing on the date
specified therefor, the Agent may assume that such Lender has made such amount
available to the Agent and, in reliance upon such assumption, make available
to the applicable Borrower a corresponding amount. If and to the extent that
such Lender shall not have made such amount available to the Agent, such
Lender and the applicable Borrower agrees to repay the Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date the Agent made such amount available to such Borrower to the
date such amount is repaid to the Agent, at the interest rate applicable at
the time to Loans comprising such Borrowing.
SECTION 10.3. Exculpation. Neither the Agent nor any of its directors,
officers, employees or agents shall be liable to any Lender for any action
taken or omitted to be taken by it under this Agreement or any other Loan
Document, or in connection herewith or therewith, except for gross negligence
or wilful misconduct, nor responsible for any recitals or warranties herein or
therein, nor for the effectiveness, enforceability, validity or due execution
of this Agreement or any other Loan Document, nor to make any inquiry
respecting the performance by any Borrower of its obligations hereunder or
under any other Loan Document. Any such inquiry which may be made by the
Agent shall not obligate it to make any further inquiry or to take any action.
The Agent shall be entitled to rely upon advice of counsel concerning legal
matters and upon any notice, consent, certificate, statement or writing which
the Agent believes to be genuine and to have been presented by a proper
Person.
SECTION 10.4. Successor. The Agent may resign as such at any time upon
at least 30 days' prior notice to the Borrowers and all Lenders, so long as a
successor Agent shall have been appointed as of the effectiveness of such
resignation. If the Agent at any time shall resign, the Required Lenders may
appoint another Lender (with the consent of Xxxxxxx which shall not be
unreasonably withheld) as a successor Agent which shall thereupon become the
Agent hereunder. If no successor Agent shall have been so appointed by the
Required Lenders within 30 days after the retiring Agent's giving notice of
resignation, then the retiring Agent may, on behalf of the Lenders, appoint a
successor Agent (with the consent of Xxxxxxx which shall not be unreasonably
withheld), which shall be one of the Lenders or a commercial banking
institution organized under the laws of the U.S. (or any State thereof) or a
U.S. branch or agency of a commercial banking institution, and having a
combined capital and surplus of at least $500,000,000. Upon the acceptance of
any appointment as Agent hereunder by a successor Agent, such successor Agent
shall be entitled to receive from the retiring Agent such documents of
transfer and assignment as such successor Agent may reasonably request, and
shall thereupon succeed to and become vested with all rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations under this Agreement. After any
retiring Agent's resignation hereunder as the Agent, the provisions of
(a) this Article X shall inure to its benefit as to, and the
Agent shall continue to be responsible hereunder for, any actions taken
or omitted to be taken by it while it was the Agent under this
Agreement; and
(b) Section 11.3, Section 11.4 and Section 11.5 shall continue to
inure to its benefit.
The Borrowers shall not be responsible for payment of any costs related to the
resignation of the Agent and the substitution of a new Agent. The resigning
Agent shall pay to the successor Agent any portion of the Agent's annual fee
paid to it applicable to the period after the effectiveness of such
resignation.
SECTION 10.5. Loans or Letters of Credit Issued by ABN. ABN shall have
the same rights and powers with respect to (x) the Loans made by it or any of
its Affiliates, (y) the Notes held by it or any of its Affiliates, and (z) its
participating interests in the Letters of Credit as any other Lender and may
exercise the same as if it were not the Agent. ABN and its Affiliates may
accept deposits from, lend money to, and generally engage in any kind of
business with any Borrower or any Subsidiary or Affiliate of any Borrower as
if ABN were not the Agent hereunder.
SECTION 10.6. Credit Decisions. Each Lender acknowledges that it has,
independently of the Agent and each other Lender, and based on such Lender's
review of the financial information of the Borrowers, this Agreement, the
other Loan Documents (the terms and provisions of which being satisfactory to
such Lender) and such other documents, information and investigations as such
Lender has deemed appropriate, made its own credit decision to extend its
Commitments. Each Lender also acknowledges that it will, independently of the
Agent and each other Lender, and based on such other documents, information
and investigations as it shall deem appropriate at any time, continue to make
its own credit decisions as to exercising or not exercising from time to time
any rights and privileges available to it under this Agreement or any other
Loan Document.
SECTION 10.7. Copies, etc. The Agent shall give prompt notice to each
Lender of each notice or request required or permitted to be given to the
Agent by any Borrower pursuant to the terms of this Agreement (unless
concurrently delivered to the Lenders by such Borrower). The Agent will
distribute to each Lender such financial statements and compliance
certificates received by the Agent from any Borrower for distribution to the
Lenders by the Agent in accordance with the terms of this Agreement.
SECTION 10.8. Documentation Agent. Each Lender hereby appoints Comerica
Bank as Documentation Agent for the Lenders. The Documentation Agent shall
have no rights, powers, obligations, liabilities, responsibilities or duties
under this Agreement other than those applicable to all Lenders as such. Each
Lender acknowledges that it has not relied and will not rely on the
Documentation Agent in deciding to enter into this Agreement or in taking or
not taking action hereunder.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1. Waivers, Amendments, etc. The provisions of this
Agreement and of each other Loan Document may from time to time be amended,
modified or waived, if such amendment, modification or waiver is in writing
and consented to by Xxxxxxx and the Required Lenders; provided, however, that
no such amendment, modification or waiver which would:
(a) modify any requirement hereunder that any particular action
be taken by all the Lenders or by the Required Lenders shall be
effective unless consented to by each Lender;
(b) modify this Section 11.1, change the definition of "Required
Lenders", increase any Commitment Amount or the Percentage of any
Lender, reduce any fees described in Article III, or extend the
Commitment Termination Date shall be made without the consent of each
Lender and each holder of a Note;
(c) extend the due date for, or reduce the amount of, any
scheduled repayment or prepayment of principal of or interest on any
Loan (or reduce the principal amount of or rate of interest on any Loan)
shall be made without the consent of the holder of that Note evidencing
such Loan;
(d) affect adversely the interests, rights or obligations of the
Issuer in its capacity as the Issuer shall be made without the consent
of the Issuer;
(e) affect adversely the interests, rights or obligations of the
Agent in its capacity as the Agent shall be made without consent of the
Agent; or
(f) change the definitions of "Available Currency",
"Determination Date" or "Dollar Amount" without the consent of each
Lender.
No failure or delay on the part of the Agent, any Lender or the holder of any
Note in exercising any power or right under this Agreement or any other Loan
Document shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power or right preclude any other or further exercise
thereof or the exercise of any other power or right. No notice to or demand
on any Borrower in any case shall entitle it to any notice or demand in
similar or other circumstances. No waiver or approval by the Agent, any
Lender or the holder of any Note under this Agreement or any other Loan
Document shall, except as may be otherwise stated in such waiver or approval,
be applicable to subsequent transactions. No waiver or approval hereunder
shall require any similar or dissimilar waiver or approval thereafter to be
granted hereunder.
SECTION 11.2. Notices. All notices and other communications provided
to any party hereto under this Agreement or any other Loan Document shall be
in writing or by facsimile and addressed, delivered or transmitted to such
party at its address or facsimile number set forth below its signature hereto
or set forth in the Lender Assignment Agreement or at such other address or
facsimile number as may be designated by such party in a notice to the other
parties. Any notice, if mailed and properly addressed with postage prepaid or
if properly addressed and sent by pre-paid courier service, shall be deemed
given when received; any notice, if transmitted by facsimile, shall be deemed
given when transmitted. Any notice to a Borrower other than Xxxxxxx shall
also be sent to Xxxxxxx.
SECTION 11.3. Payment of Costs and Expenses. Xxxxxxx agrees to pay on
demand all reasonable out-of-pocket expenses of the Agent (including the
reasonable fees and out-of-pocket expenses of counsel to the Agent and of
local counsel, if any, who may be retained by counsel to the Agent) in
connection with
(a) the negotiation, preparation, execution and delivery of this
Agreement and of each other Loan Document, including schedules and
exhibits, and any amendments, waivers, consents, supplements or other
modifications to this Agreement or any other Loan Document as may from
time to time hereafter be required, whether or not the transactions
contemplated hereby are consummated; and
(b) the preparation and review of the form of any document or
instrument relevant to this Agreement or any other Loan Document.
Xxxxxxx further agrees to pay, and to save the Agent and the Lenders harmless
from all liability for, any stamp or other taxes which may be payable in
connection with the execution or delivery of this Agreement, the borrowings
hereunder, the issuance of the Notes, the issuance of the Letters of Credit,
or any other Loan Documents. Xxxxxxx agrees to reimburse the Agent and each
Lender upon demand for all reasonable out-of-pocket expenses (including
attorneys' fees and legal expenses) incurred by the Agent or such Lender in
connection with the enforcement of any Obligations.
SECTION 11.4. Indemnification. In consideration of the execution and
delivery of this Agreement by each Lender and the extension of the
Commitments, Xxxxxxx hereby indemnifies, exonerates and holds harmless the
Agent, the Issuer and each Lender and each of their respective officers,
directors, employees and agents (collectively, the "Indemnified Parties") free
and harmless from and against any and all actions, causes of action, suits,
losses, costs, liabilities and damages, and expenses incurred in connection
therewith (irrespective of whether any such Indemnified Party is a party to
the action for which indemnification hereunder is sought), including
reasonable attorneys' fees and disbursements (collectively, the "Indemnified
Liabilities"), incurred by the Indemnified Parties or any of them as a result
of, or arising out of, or relating to
(a) any transaction financed or to be financed in whole or in
part, directly or indirectly, with the proceeds of any Loan or the use
of any Letter of Credit;
(b) the entering into and performance of this Agreement and any
other Loan Document by any of the Indemnified Parties;
(c) any investigation, litigation or proceeding related to any
acquisition or proposed acquisition by any Borrower or any of its
Subsidiaries of all or any portion of the stock or assets of any Person,
whether or not the Agent or such Lender is party thereto;
(d) any investigation, litigation or proceeding related to any
environmental cleanup, audit, compliance or other matter relating to the
protection of the environment or the Release by any Borrower or any of
its Subsidiaries of any Hazardous Material; or
(e) the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission, discharging or releases from, any real
property owned or operated by any Borrower or any Subsidiary thereof of
any Hazardous Material (including any losses, liabilities, damages,
injuries, costs, expenses or claims asserted or arising under any
Environmental Law), regardless of whether caused by, or within the
control of, the Borrower or such Subsidiary,
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's
gross negligence or wilful misconduct. If and to the extent that the
foregoing undertaking may be unenforceable for any reason, Xxxxxxx hereby
agrees to make the maximum contribution to the payment and satisfaction of
each of the Indemnified Liabilities which is permissible under applicable law.
SECTION 11.5. Survival. The obligations of the Borrower under
Sections 5.3, 5.4, 5.5, 5.6, 11.3, and 11.4, and the obligations of the
Lenders under Section 10.1, shall in each case survive any termination of this
Agreement, the payment in full of all Obligations and the termination of all
Commitments. The representations and warranties made by the Borrower in this
Agreement and in each other Loan Document shall survive the execution and
delivery of this Agreement and each such other Loan Document.
SECTION 11.6. Severability. Any provision of this Agreement or any
other Loan Document which is prohibited or unenforceable in any jurisdiction
shall, as to such provision and such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions of this Agreement or such Loan Document or affecting the
validity or enforceability of such provision in any other jurisdiction.
SECTION 11.7. Headings. The various headings of this Agreement and of
each other Loan Document are inserted for convenience only and shall not
affect the meaning or interpretation of this Agreement or such other Loan
Document or any provisions hereof or thereof.
SECTION 11.8. Execution in Counterparts, Effectiveness, etc. This
Agreement may be executed by the parties hereto in several counterparts, each
of which shall be executed by the Borrowers and the Agent and be deemed to be
an original and all of which shall constitute together but one and the same
agreement. This Agreement shall become effective when counterparts hereof
executed on behalf of the Borrowers and each Lender (or notice thereof
satisfactory to the Agent) shall have been received by the Agent and notice
thereof shall have been given by the Agent to each Borrower and each Lender.
SECTION 11.9. Governing Law; Entire Agreement. THIS AGREEMENT, THE
NOTES AND EACH OTHER LOAN DOCUMENT SHALL EACH BE DEEMED TO BE A CONTRACT MADE
UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF ILLINOIS. This
Agreement, the Notes and the other Loan Documents constitute the entire
understanding among the parties hereto with respect to the subject matter
hereof and supersede any prior agreements, written or oral, with respect
thereto.
SECTION 11.10. Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that:
(a) the Borrowers may not assign or transfer their rights or
obligations hereunder without the prior written consent of the Agent and
all Lenders; and
(b) the rights of sale, assignment and transfer of the Lenders
are subject to Section 11.11.
SECTION 11.11. Sale and Transfer of Loans and Notes; Participations in
Loans and Notes. Each Lender may assign, or sell participations in, its Loans
and Commitments to one or more commercial banks in accordance with this
Section 11.11.
SECTION 11.11.1. Assignments. Any Lender, with the written consents of
Xxxxxxx and the Agent (which consents shall not be unreasonably delayed or
withheld and which consent, in the case of Xxxxxxx, shall be deemed to have
been given in the absence of a written notice delivered by Xxxxxxx to the
Agent, on or before the seventh Business Day after receipt by Xxxxxxx of such
Lender's request for consent, stating, in reasonable detail, the reasons why
Xxxxxxx proposes to withhold such consent and which consent of Xxxxxxx shall
not be required, if a Default shall have occurred and be continuing) may at
any time assign and delegate to one or more financial institutions, (each
Person described in either of the foregoing clauses as being the Person to
whom such assignment and delegation is to be made, being hereinafter referred
to as an "Assignee Lender"), all or any fraction of such Lender's total Loans
and Commitments (which assignment and delegation shall be of a constant, and
not a varying, percentage of all the assigning Lender's Loans and Commitments)
in a minimum aggregate amount of $10,000,000; provided, however, that any such
Assignee Lender will comply, if applicable, with the provisions contained in
the last sentence of Section 5.6 and further, provided, however, that, each
Borrower and the Agent shall be entitled to continue to deal solely and
directly with such Lender in connection with the interests so assigned and
delegated to an Assignee Lender until the Assignment Effective Date (the
"Assignment Effective Date").
The Assignment Effective Date shall be the date when all the following
conditions shall have been met:
(i) five Business Days shall have passed after written notice of
such assignment and delegation, together with payment instructions,
addresses and related information with respect to such Assignee Lender,
shall have been given to Xxxxxxx and the Agent by such Lender and such
Assignee Lender,
(ii) such Assignee Lender shall have executed and delivered to
Xxxxxxx and the Agent a Lender Assignment Agreement, accepted by the
Agent, and
(iii) the processing fees described below shall have been paid.
From and after the date that the Agent accepts such Lender Assignment
Agreement, (x) the Assignee Lender thereunder 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 Lender in
connection with such Lender Assignment Agreement, shall have the rights and
obligations of a Lender hereunder and under the other Loan Documents, and
(y) the assignor Lender, to the extent that rights and obligations hereunder
have been assigned and delegated by it in connection with such Lender
Assignment Agreement, shall be released from its obligations hereunder and
under the other Loan Documents. Within five Business Days after receipt of
notice that the Agent has received an executed Lender Assignment Agreement,
the Borrowers shall execute and deliver to the Agent (for delivery to the
relevant Assignee Lender) new Notes evidencing such Assignee Lender's assigned
Loans and Commitments and, if the assignor Lender has retained Loans and
Commitments hereunder, replacement Notes in the principal amount of the Loans
and Commitments retained by the assignor Lender hereunder (such Notes to be in
exchange for, but not in payment of, those Notes then held by such assignor
Lender). Each such Note shall be dated the date of the predecessor Notes.
The assignor Lender shall xxxx the predecessor Notes "exchanged" and deliver
them to such Borrower. Accrued interest on that part of the predecessor Notes
evidenced by the new Notes, and accrued fees, shall be paid as provided in the
Lender Assignment Agreement. Accrued interest on that part of the predecessor
Notes evidenced by the replacement Notes shall be paid to the assignor Lender.
Accrued interest and accrued fees shall be paid at the same time or times
provided in the predecessor Notes and in this Agreement. Such assignor Lender
or such Assignee Lender must also pay a processing fee to the Agent upon
delivery of any Lender Assignment Agreement in the amount of $3500. Any
attempted assignment and delegation not made in accordance with this
Section 11.11.1 shall be null and void. Nothing herein shall prohibit any
Lender from pledging or assigning any Note or any of its rights under this
Agreement to any Federal Reserve Bank in accordance with applicable law.
SECTION 11.11.2. Participations. Any Lender may at any time sell to
one or more commercial banks (each of such commercial banks being herein
called a "Participant") participating interests (or a sub-participating
interest, in the case of a Lender's participating interest in a Letter of
Credit) in any of the Loans, Commitments, or other interests of such Lender
hereunder; provided, however, that
(a) no participation or sub-participation contemplated in this
Section 11.11 shall relieve such Lender from its Commitments or its
other obligations hereunder or under any other Loan Document,
(b) such Lender shall remain solely responsible for the
performance of its Commitments and such other obligations,
(c) each Borrower and the Agent shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and each of the other Loan Documents,
(d) no Participant, unless such Participant is an Affiliate of
such Lender, or is itself a Lender, shall be entitled to require such
Lender to take or refrain from taking any action hereunder or under any
other Loan Document, except that such Lender may agree with any
Participant that such Lender will not, without such Participant's
consent, take any actions of the type described in clause (b) or (c) of
Section 11.1, and
(e) no Borrower shall be required to pay any amount under
Section 5.6 that is greater than the amount which it would have been
required to pay had no participating interest been sold.
The Borrower acknowledges and agrees that each Participant, for purposes of
Sections 5.3, 5.4, 5.5, 5.6, 5.8, 5.9, 11.3 and 11.4 shall be considered a
Lender.
SECTION 11.11.3. Information. Each Lender is hereby authorized to
disclose all information concerning the Borrowers to assignees, participants,
potential assignees and potential participants.
SECTION 11.11.4. Confidentiality. The Lenders shall hold all non-
public information (which has been identified as such by a Borrower) obtained
pursuant to the requirements of this Agreement in accordance with their
customary procedures for handling confidential information of this nature and
in accordance with safe and sound banking practices and in any event may make
disclosure to any of their examiners, Affiliates, outside auditors, counsel
and other professional advisors in connection with this Agreement or as
reasonably required by any bona fide transferee, participant or assignee or as
required or requested by any governmental agency or representative thereof or
pursuant to legal process; provided however, that
(a) unless specifically prohibited by applicable law or court
order, each Lender shall notify the Borrowers of any request by any
governmental agency or representative thereof (other than any such
request in connection with an examination of the financial condition of
such Lender by such governmental agency) for disclosure of any such non-
public information prior to disclosure of such information;
(b) prior to any such disclosure pursuant to this Section
11.11.4, each Lender shall require any such bona fide transferee,
participant and assignee receiving a disclosure of non-public
information to agree in writing
(i) to be bound by this Section 11.11.4; and
(ii) to require such Person to require any other Person to
whom such Person discloses such non-public information to be
similarly bound by this Section 11.11.4; and
(c) except as may be required by an order of a court of competent
jurisdiction and to the extent set forth therein, no Lender shall be
obligated or required to return any materials furnished by the Borrowers
or any Subsidiary.
SECTION 11.12. Additional Borrowers.
Each Subsidiary of Xxxxxxx may become a Borrower hereunder upon
becoming such a Subsidiary. Xxxxxxx shall deliver an Additional
Borrower Certificate executed by any such Subsidiary and Xxxxxxx
together with such supporting resolutions, incumbency certificates and
opinions of counsel as the Agent may reasonably request. Such
Subsidiary shall thereupon become a party hereto and a Borrower
hereunder and shall be (i) entitled to all rights and benefits of a
Borrower hereunder and under each instrument executed pursuant hereto
and (ii) subject to all obligations of a Borrower hereunder and
thereunder.
SECTION 11.13. Joint and Several Liability.
(a) The Obligations of the Borrowers are joint and several;
except that each Subsidiary Borrower which is not a U.S. Subsidiary of
Xxxxxxx shall be liable only for Loans made to it and with respect to
Letters of Credit issued for its account.
(b) Each Borrower acknowledges and agrees that it is the intent
of the parties that each Borrower be primarily liable for the
Obligations as a joint and several obligor (except as specifically set
forth in this Section 11.13). It is the intention of the parties that
with respect to liability of any Borrower hereunder arising solely by
reason of its being jointly and severally liable for Borrowings and
Loans taken by other Borrowers, the obligations of such Borrower shall
be absolute, unconditional and irrevocable irrespective of:
(i) any lack of validity, legality or enforceability of
this Agreement or any Note as to any other Borrower;
(ii) the failure of any Lender or any holder of any Note
(A) to enforce any right or remedy against any
Borrower or any other Person (including any guarantor) under
the provisions of this Agreement, the Note, or otherwise, or
(B) to exercise any right or remedy against any
guarantor of, or collateral securing, any Obligations;
(iii) any change in the time, manner or place of payment
of, or in any other term of, all or any of the Obligations, or any
other extension, compromise or renewal of any Obligations;
(iv) any reduction, limitation, impairment or termination
of any Obligations with respect to any other Borrower for any
reason, including any claim of waiver, release, surrender,
alteration or compromise, and shall not be subject to (and each
Borrower hereby waives any right to or claim of) any defense or
setoff, counterclaim, recoupment or termination whatsoever by
reason of the invalidity, illegality, nongenuineness,
irregularity, compromise, unenforceability of, or any other event
or occurrence affecting, any Obligations with respect to any other
Borrower;
(v) any addition, exchange, release, surrender or
nonperfection of any collateral, or any amendment to or waiver or
release or addition of, or consent to departure from, any
guaranty, held by any Lender or any holder of the Note securing
any of the Obligations; or
(vi) any other circumstance which might otherwise
constitute a defense available to, or a legal or equitable
discharge of, any other Borrower, any surety or any guarantor.
Each Borrower agrees that its joint and several liability
hereunder shall continue to be effective or be reinstated, as the case
may be, if at any time any payment (in whole or in part) of any of the
Obligations is rescinded or must be restored by any Lender or any holder
of any Note, upon the insolvency, bankruptcy or reorganization of any
Borrower as though such payment had not been made.
Each Borrower hereby expressly waives: (a) notice of the Lenders'
acceptance of this Agreement; (b) notice of the existence or creation or
non payment of all or any of the Obligations; (e) presentment, demand,
notice of dishonor, protest, and all other notices whatsoever other than
notices expressly provided for in this Agreement; and (d) all diligence
in collection or protection of or realization upon the Obligations or
any thereof, any obligation hereunder, or any security for or guaranty
of any of the foregoing.
No delay on any of the Lenders' part in the exercise of any right
or remedy shall operate as a waiver thereof, and no single or partial
exercise by any of the Lenders of any right or remedy shall preclude
other or further exercise thereof or the exercise of any other right or
remedy. No action of any of the Lenders permitted hereunder shall in
any way affect or impair any such Lenders' rights or any Borrower's
obligations under this Agreement.
Notwithstanding the foregoing, each Borrower other than Xxxxxxx
shall be liable for the Obligations for the maximum amount of such
liability that can be hereby incurred without rendering this Agreement,
any Note or any other Loan Document voidable under applicable law,
including applicable law relating to fraudulent conveyance or fraudulent
transfer, and not for any greater amount.
Each Borrower hereby represents and warrants to each of the
Lenders that it now has and will continue to have independent means of
obtaining information concerning the Borrowers' affairs, financial
condition and business. Lenders shall not have any duty or
responsibility to provide any Borrower with any credit or other
information concerning the Borrowers' affairs, financial condition or
business which may come into the Lenders' possession.
SECTION 11.14. Judgment Currency. Each Borrower, the Agent and each Lender
hereby agree that if, in the event that a judgment is given in relation to any
sum due to the Agent or any Lender hereunder, such judgment is given in a
currency (the "Judgment Currency") other than that in which such sum was
originally denominated (the "Original Currency"), the Borrower jointly and
severally agree to indemnify the Agent or such Lender, as the case may be, to
the extent that the amount of the Original Currency which could have been
purchased by the Agent in accordance with normal banking procedures on the
Business Day following receipt of such sum is less than the sum which could
have been so purchased by the Agent had such purchase been made on the day on
which such judgment was given or, if such day is not a Business Day, on the
Business Day immediately preceding the giving of such judgment. The
agreements in this Section shall survive payment of all other Obligations.
SECTION 11.15. Other Transactions. Nothing contained herein shall
preclude the Agent or any other Lender from engaging in any transaction, in
addition to those contemplated by this Agreement or any other Loan Document,
with any Borrower or any of its Affiliates in which any Borrower or such
Affiliate is not restricted hereby from engaging with any other Person.
SECTION 11.16. Consent to Jurisdiction. THE BORROWERS HEREBY
ABSOLUTELY AND IRREVOCABLY CONSENTS AND SUBMITS TO THE JURISDICTION OF THE
COURTS OF THE STATE OF ILLINOIS OR THE UNITED STATES OF AMERICA FOR THE
NORTHERN DISTRICT OF ILLINOIS IN CONNECTION WITH ANY ACTIONS OR PROCEEDINGS
BROUGHT AGAINST ANY OF THE BORROWERS BY THE AGENT OR THE LENDER ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE NOTES OR THE BANKING RELATIONSHIP GIVING
RISE TO THIS AGREEMENT, AND HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN
RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY
SUCH COURT. THE BORROWERS HEREBY WAIVE AND AGREE NOT TO ASSERT IN SUCH ACTION
OR PROCEEDING, IN EACH CASE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY CLAIM THAT (a) ANY BORROWER IS NOT PERSONALLY SUBJECT TO THE
JURISDICTION OF ANY SUCH COURT; (b) ANY BORROWER IS IMMUNE FROM ANY LEGAL
PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT,
ATTACHMENT IN AID OF EXECUTION, EXECUTION OR OTHERWISE) WITH RESPECT TO IT OR
ITS PROPERTY; (c) ANY SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN
INCONVENIENT FORUM; OR (d) THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IS
IMPROPER. IN ANY SUCH ACTION OR PROCEEDING, ANY BORROWER HEREBY ABSOLUTELY
AND IRREVOCABLY WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT, DECLARATION
OR OTHER PROCESS AND HEREBY ABSOLUTELY AND IRREVOCABLY AGREES THAT THE SERVICE
THEREOF MAY BE MADE BY CERTIFIED OR REGISTERED AIRMAIL, POSTAGE PREPAID,
DIRECTED TO SUCH BORROWER AT THE ADDRESS SHOWN ON THE SIGNATURE PAGE HEREOF
(OR AT SUCH OTHER ADDRESS AS SUCH BORROWER SHALL LAST SPECIFY TO THE AGENT IN
WRITING). NOTHING CONTAINED IN THIS AGREEMENT OR THE NOTES SHALL AFFECT ANY
RIGHT THAT THE AGENT, THE LENDERS OR ANY BORROWER MAY OTHERWISE HAVE TO BRING
ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR THE NOTES OR THE
BANKING RELATIONSHIP GIVING RISE TO THIS AGREEMENT AGAINST ANY BORROWER, THE
AGENT OR THE LENDERS, AS THE CASE MAY BE, OR THEIR PROPERTIES IN THE COURTS OF
ANY OTHER JURISDICTION, OR ANY RIGHT THAT THE LENDERS, THE AGENT OR ANY
BORROWER MAY HAVE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
SECTION 11.17. Waiver of Jury Trial. THE AGENT, THE LENDERS AND THE
BORROWERS HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
ORAL OR WRITTEN) OR ACTIONS OF THE AGENT, THE LENDERS OR THE BORROWERS. THE
BORROWERS ACKNOWLEDGE AND AGREE THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER LOAN
DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE AGENT AND THE LENDERS ENTERING INTO THIS AGREEMENT AND EACH
SUCH OTHER LOAN DOCUMENT.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
XXXXXXX INDUSTRIES, INC.
By:
Its:
Address: 00000 Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
with a copy to
Xx. Xxxxx Xxxx
Xxxxxx Xxxxxxx PLLC
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
ABN AMRO BANK N.V., CHICAGO BRANCH,
AS AGENT
By
Title:
By
Title:
Address: 000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx Xxxx
COMERICA BANK,
AS DOCUMENTATION AGENT
By
Title
By
Title
Address: 000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxx
PERCENTAGE LENDERS
30.0% ABN AMRO BANK N.V., CHICAGO BRANCH
By
Title:
By
Title:
Domestic/
Eurodollar
Office: 000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx Xxxx
30.0% COMERICA BANK
By
Title:
By
Title:
Address: 000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxx
20.0% XXXXXX TRUST AND SAVINGS BANK
By
Title:
By
Title:
Address: 000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx Xxxxx
20.0% THE BANK OF NEW YORK
By
Title:
By
Title:
Address: Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
