EXHIBIT 4(ii)
EXECUTION COPY
CREDIT AGREEMENT
dated as of December 20, 1999
among
XXXXXXX-XXXXXX CORPORATION
and
THE SUBSIDIARY BORROWERS PARTIES HERETO FROM TIME TO TIME,
as Borrowers,
THE LENDERS PARTIES HERETO FROM TIME TO TIME,
THE ISSUING BANKS REFERRED TO HEREIN
and
MELLON BANK, N.A.
as Agent
THE BANK OF NOVA SCOTIA
as Syndication Agent
and
PNC BANK, NATIONAL ASSOCIATION
as Documentation Agent
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TABLE OF CONTENTS
Section Title Page
ARTICLE I DEFINITIONS; CONSTRUCTION..........................................1
1.01. Certain Definitions.................................................1
1.02. Construction.......................................................15
1.03. Accounting Principles..............................................16
ARTICLE II THE CREDITS......................................................16
2.01. Revolving Credit Loans.............................................16
2.02. Facility Fee; Reduction of the Revolving Credit Committed Amounts..18
2.03. Making of Loans....................................................19
2.04. Interest Rates.....................................................20
2.05. Conversion or Renewal of Interest Rate Options.....................23
2.06. Prepayments Generally..............................................24
2.07. Optional Prepayments...............................................25
2.08. Interest Payment Dates.............................................25
2.09. Pro Rata Treatment; Payments Generally.............................25
2.10. Additional Compensation in Certain Circumstances...................26
2.11. HLT Classification.................................................28
2.12. Taxes..............................................................29
2.13. Funding by Branch, Subsidiary or Affiliate.........................30
2.14. Multicurrency Payments.............................................31
ARTICLE III LETTERS OF CREDIT...............................................32
3.01. Letters of Credit..................................................32
3.02. Letter of Credit Fees..............................................33
3.03. Procedure for Issuance and Amendment of Letters of Credit..........34
3.04. Participating Interests............................................35
3.05. Drawings and Reimbursements........................................36
3.06. Obligations Absolute...............................................37
3.07. Increased Costs....................................................37
3.08. Further Assurances.................................................37
3.09. Letter of Credit Application.......................................37
3.10. Cash Collateral for Letters of Credit..............................37
3.11. Certain Provisions Relating To the Issuing Banks...................39
ARTICLE IV REPRESENTATIONS AND WARRANTIES...................................40
4.01. Due Incorporation, Etc.............................................40
4.02. Due Authorization, Etc.............................................40
4.03. Approvals..........................................................41
4.04. Execution; Binding Effect..........................................41
4.05. Financial Statements...............................................41
4.06. Litigation.........................................................42
4.07. Title to Property..................................................42
4.08. ERISA..............................................................42
4.09. Environmental Laws.................................................42
4.10. Absence of Undisclosed Liabilities.................................43
4.11. Accurate and Complete Disclosure...................................43
4.12. Margin Regulations.................................................43
4.13. Subsidiaries.......................................................44
4.14. Partnerships, etc..................................................44
4.15. Absence of Events of Default.......................................44
4.16. Insurance..........................................................44
4.17. Intellectual Property..............................................45
4.18. Taxes..............................................................45
4.19. Year 2000 Compliance...............................................45
ARTICLE V CONDITIONS OF LENDING.............................................45
5.01. Conditions to Making of Initial Loans and Issuance of Initial
Letter of Credit..................................................45
5.02. Conditions to All Loans............................................47
ARTICLE VI AFFIRMATIVE COVENANTS............................................48
6.01. Basic Reporting Requirements.......................................48
6.02. Inspection.........................................................50
6.03. Payment of Taxes, Etc..............................................50
6.04. Preservation of Corporate Existence, Etc...........................51
6.05. Compliance with Laws, Etc..........................................51
6.06. Maintenance of Insurance...........................................51
6.07. Notice of Environmental Claims.....................................51
6.09. Governmental Approvals and Filings.................................52
6.10. Maintenance of Properties..........................................52
6.11. Avoidance of Other Conflicts.......................................52
6.12. Financial Accounting Practices.....................................52
6.13. Use of Proceeds....................................................52
6.14. Continuation of or Change in Business..............................52
6.15. Consolidated Tax Return............................................53
6.16. Fiscal Year........................................................53
6.17. Year 2000 Compliance...............................................53
6.18. ERISA Compliance...................................................53
ARTICLE VII NEGATIVE COVENANTS..............................................54
7.03. Indebtedness.......................................................55
7.04. Restriction on Liens and Additional Indebtedness...................55
7.05. Amendment of Certain Documents.....................................56
7.06. Mergers; Acquisitions..............................................56
7.07. Limitation on Other Restrictions on Dividends by Subsidiaries, etc.56
7.08. Sale of Assets.....................................................57
7.09. Guaranties, Indemnities, Etc.......................................57
7.11. Sale-Leasebacks....................................................57
7.12. Leases.............................................................58
7.13. Affiliates.........................................................58
ARTICLE VIII EVENTS OF DEFAULT..............................................58
8.01. Events of Default..................................................58
8.02. Consequences of an Event of Default................................61
8.03. Judgment Currency..................................................61
ARTICLE IX THE AGENT........................................................62
9.01. Appointment........................................................62
9.02. General Nature of Agent's Duties...................................62
9.03. Exercise of Powers.................................................63
9.04. General Exculpatory Provisions.....................................63
9.05. Administration by the Agent and the Issuing Bank...................64
9.06. Lender Not Relying on Agent or Other Lenders.......................65
9.07. Indemnification....................................................65
9.08. Agent in its Individual Capacity...................................66
9.09. Holders of Notes...................................................66
9.10. Successor Agent....................................................66
9.11. Additional Agents..................................................67
9.12. Calculations.......................................................67
9.13. Agent's Fee........................................................67
9.14. Funding by Agent...................................................67
ARTICLE X MISCELLANEOUS.....................................................67
10.01. Holidays..........................................................67
10.02. Records...........................................................68
10.03. Amendments and Waivers............................................68
10.04. No Implied Waiver; Cumulative Remedies............................69
10.05. Notices...........................................................69
10.06. Expenses; Taxes; Indemnity........................................70
10.07. Severability......................................................71
10.08. Prior Understandings..............................................71
10.09. Duration; Survival................................................71
10.10. Counterparts......................................................72
10.11. Limitation on Payments............................................72
10.12. Set-Off...........................................................72
10.13. Sharing of Collections............................................72
10.14. Successors and Assigns; Participations; Assignments...............73
10.15. Governing Law; Submission to Jurisdiction; Limitation of
Liability.....................................................76
10.16. Confidentiality...................................................77
Exhibits
Exhibit A Form of Revolving Credit Note
Exhibit B Form of Opinion of Counsel
Exhibit C Form of Quarterly Compliance Certificate
Exhibit D Form of Transfer Supplement
Exhibit E Form of Xxxxxxx-Xxxxxx Guaranty
Exhibit F Form of Subsidiary Guaranty
Schedules
Schedule 3.01 Outstanding Letters of Credit
Schedule 4.01 Due Incorporation, Etc.
Schedule 4.06 Litigation
Schedule 4.07 Title to Property
Schedule 4.09 Hazardous Waste
Schedule 4.10 Indebtedness
Schedule 4.13 Significant Subsidiaries
Schedule 4.14 Partnerships, Etc.
Schedule 7.02 Liens
Schedule 7.03 Indebtedness
Schedule 7.09 Guaranty Equivalents
Schedule 7.11 Leases
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT (this "Agreement"), dated as of December
20, 1999, by and among XXXXXXX-XXXXXX CORPORATION, a Delaware corporation
("Xxxxxxx-Xxxxxx"), the Subsidiary Borrowers (as defined below) party hereto
from time to time (collectively with Xxxxxxx-Xxxxxx, the "Borrowers", and each
individually a "Borrower"), the lenders party hereto from time to time (the
"Lenders", as defined further below), the Issuing Banks referred to herein (the
"Issuing Banks") and MELLON BANK, N.A., a national banking association, as agent
for the Lenders and the Issuing Banks hereunder (in such capacity, together with
its successors in such capacity, the "Agent").
WHEREAS, the Borrowers have requested the Agent, the Lenders
and the Issuing Banks to enter into this Agreement and extend credit as herein
provided;
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants herein contained and intending to be legally bound hereby, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
. In addition to other words and terms defined elsewhere in this Agreement, as
used herein the following words and terms shall have the following meanings,
respectively, unless the context hereof otherwise clearly requires:
"Account Party" shall have the meaning set forth in Section
3.01(b) hereof.
"Affected Lender" shall have the meaning set forth in Section
2.04(e) hereof.
"Affiliate" of a Borrower shall mean any Person which directly
or indirectly controls or is controlled by or is under common control
with a Borrower. For purposes of this definition "control" (including,
with correlative meanings, the terms "controlled by" and "under common
control with") means the possession, directly or indirectly, of the
power to direct or cause the direction of management policies, whether
through ownership of voting securities or by contract or otherwise.
"Alternative Funds" shall have the meaning set forth in
Section 2.04(f) hereof.
"Anniversary Date" shall mean each December 20 during the term
of this Agreement.
"Applicable Funding Rate" shall have the meaning set forth in
Section 2.10(b) hereof.
"Applicable Margin" shall have the meaning set forth in
Section 2.04(b) hereof.
"Assured Obligation" shall have the meaning set forth in the
definition of "Guaranty Equivalent" in this Section 1.01.
"Base Rate" shall have the meaning set forth in Section 2.04
(a)(i) hereof.
"Base Rate Option" shall have the meaning set forth in Section
2.04(a) hereof.
"Base Rate Portion" of any Loan or Loans shall mean at any
time the portion, including the whole, of such Loan or Loans bearing
interest at such time (i) under the Base Rate Option or (ii) in
accordance with Section 2.09(c)(ii) hereof. If no Loan or Loans is
specified, "Base Rate Portion" shall refer to the Base Rate Portion of
all Loans outstanding at such time.
"Business Day" shall mean any day other than a Saturday,
Sunday, public holiday under the laws of the Commonwealth of
Pennsylvania or the State of New York or other day on which banking
institutions are authorized or obligated to close in the city in which
the Agent's Office is located.
"Change of Control" shall mean that any Person or group of
Persons (as used in Sections 13 and 14 of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and the rules and regulations
thereunder) shall have become the beneficial owner (as defined in Rules
13d-3 and 13d-5 promulgated by the Securities and Exchange Commission
(the "SEC") under the Exchange Act) of 50% or more of the combined
voting power of all the outstanding voting securities of
Xxxxxxx-Xxxxxx; provided, that none of Unitrin Corporation, Argonaut
Insurance Co. or any of their respective Subsidiaries shall be deemed
to be a Person for purposes of this definition.
"Closing Date" shall mean the date of this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended,
and any successor statute of similar import, and regulations
thereunder, in each case as in effect from time to time. References to
sections of the Code shall be construed also to refer to any successor
sections.
"Commitment" of a Lender shall mean the Revolving Credit
Commitment of such Lender.
"Commitment Percentage" of a Lender at any time shall mean the
Commitment Percentage for such Lender set forth below its name on the
signature page hereof, as such percentage may be adjusted pursuant to
Section 2.01(e) hereof, and subject to transfer to another Lender as
provided in Section 10.14 hereof.
"Consolidated EBIT" shall mean, with respect to Xxxxxxx-Xxxxxx
and its consolidated Subsidiaries, calculated for each fiscal quarter
then ending, and the immediately preceding three fiscal quarters
(determined on a consolidated basis and in accordance with GAAP), the
sum of (a) Consolidated Net Income, plus (b) Consolidated Interest
Expense, plus (c) consolidated federal and state income tax expenses
for such period.
"Consolidated EBITDA" shall mean, with respect to
Xxxxxxx-Xxxxxx and its consolidated Subsidiaries, calculated for each
fiscal quarter then ending, and the immediately preceding three fiscal
quarters (determined on a consolidated basis and in accordance with
GAAP), the sum of (a) Consolidated EBIT, plus (b) depreciation and
amortization of assets for such period (if subtracted from earnings in
calculating the same), plus (c) extraordinary losses for such period,
minus (d) extraordinary gains for such period.
"Consolidated Interest Expense" shall mean, with respect to
Xxxxxxx-Xxxxxx and its consolidated Subsidiaries calculated for each
fiscal quarter then ending, and the immediately preceding three fiscal
quarters, interest expense (whether cash or non-cash) determined in
accordance with GAAP for the relevant period ended on such date,
including, in any event, interest expense with respect to Indebtedness
of Xxxxxxx-Xxxxxx and its consolidated Subsidiaries, interest expense
for the relevant period that has been capitalized on the balance sheet
and interest expense with respect to any Deemed Debt.
"Consolidated Net Income" shall mean, for any period, the
consolidated net income (or deficit) of Xxxxxxx-Xxxxxx and its
consolidated Subsidiaries for such period, determined in accordance
with GAAP.
"Consolidated Net Worth" of Xxxxxxx-Xxxxxx and its
consolidated Subsidiaries, shall mean total shareholder's equity which
would appear as such on the consolidated balance sheet of
Xxxxxxx-Xxxxxx, determined in accordance with GAAP.
"Controlled Group" means all members of a group of
corporations and all trades or businesses (whether or not incorporated)
under common control which, together with Xxxxxxx-Xxxxxx or any of its
Subsidiaries, are treated as a single employer under Section 414 of the
Code.
"Corresponding Source of Funds" shall mean, in the case of any
Funding Segment of the Euro-Rate Portion, the proceeds of hypothetical
receipts by a Notional Euro-Rate Funding Office or by a Lender through
a Notional Euro-Rate Funding Office of one or more Dollar deposits in
the interbank eurodollar market at the beginning of the Euro-Rate
Funding Period corresponding to such Funding Segment having maturities
approximately equal to such Euro-Rate Funding Period and in an
aggregate amount approximately equal to such Lender's Pro Rata share of
such Funding Segment.
"Xxxxxxx-Xxxxxx Guaranty" shall have the meaning set forth in
Section 5.01(o) hereof.
"Debt Instrument" shall have the meaning set forth in Section
8.01(e) hereof.
"Deemed Debt" shall mean the amount of indebtedness incurred
by Xxxxxxx-Xxxxxx and its consolidated Subsidiaries and any special
purpose corporation or trust which is an Affiliate of Xxxxxxx-Xxxxxx or
any of its Subsidiaries in connection with any accounts receivable
financing facility, or other financing vehicle which is designed to
provide Xxxxxxx-Xxxxxx or any Subsidiary thereof with off-balance sheet
financing whether or not shown on the balance sheet of Xxxxxxx-Xxxxxx
or such Subsidiary in accordance with GAAP to the extent not included
in the definition of Indebtedness. For purposes of determining the
amount of Deemed Debt incurred by any Person in connection with any
off-balance sheet financing transaction, all contingent obligations of
such Person shall be included as well as non-recourse indebtedness
incurred in connection with such transaction. Deemed Debt shall not
include operating leases.
"Deemed Guarantor" shall have the meaning set forth in the
definition of "Guaranty Equivalent" in this Section 1.01.
"Deemed Obligor" shall have the meaning set forth in the
definition of "Guaranty Equivalent" in this Section 1.01.
"Dollar," "Dollars" and the symbol "$" shall mean lawful money
of the United States of America.
"Dollar Equivalent Amount" of any Revolving Credit Loan shall
mean (a) with respect to a Revolving Credit Loan denominated in an
Other Currency, an amount equal to the amount of Dollars that the
amount of such Other Currency (equal to the principal amount of such
Revolving Credit Loan) could purchase at 12:00 p.m., noon, Pittsburgh
time, on the date of determination, based upon the quoted spot rates of
the Agent, at which its applicable branch or office offers to exchange
Dollars for such currency in the foreign exchange market and (b) with
respect to a Revolving Credit Loan denominated in US Currency, an
amount in Dollars equal to the principal amount of such Revolving
Credit Loan.
"Environmental Claim" shall have the meaning set forth in
Section 4.09 hereof.
"Environmental Permits" shall have the meaning set forth in
Section 4.09 hereof.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended, and any successor statute of similar import, and
regulations thereunder, in each case as in effect from time to time.
References to sections of ERISA shall be construed also to refer to any
successor sections.
"Euro" and "Euros" shall mean the lawful currency of the
participating member states of the European Union that adopt a single
currency in accordance with the Treaty establishing the European
Communities, as amended by the Treaty on European Union.
"Euro-Rate" shall have the meaning set forth in Section 2.04
(a)(ii) hereof.
"Euro-Rate Option" shall have the meaning set forth in Section
2.04(a)(ii) hereof.
"Euro-Rate Portion" of any Loan or Loans shall mean at any
time the portion, including the whole, of such Loan or Loans bearing
interest at any time under the Euro-Rate Option or at a rate calculated
by reference to the Euro-Rate under Section 2.09(c)(i) hereof. If no
Loan or Loans is specified, "Euro-Rate Portion" shall refer to the
Euro-Rate Portion of all Loans outstanding at such time.
"Euro-Rate Reserve Percentage" shall have the meaning set
forth in Section 2.04(a)(ii) hereof.
"Event of Default" shall mean any of the Events of Default
described in Section 8.01 hereof.
"Extension Request" shall have the meaning set forth in
Section 2.01(e) hereof.
"Facility Fee" shall have the meaning set forth in Section
2.02(a) hereof.
"Federal Funds Effective Rate" for any day shall mean the rate
per annum (rounded upward to the nearest 1/100 of 1%) determined by the
Agent (which determination shall be conclusive absent manifest error)
to be the rate per annum announced by the Federal Reserve Bank of New
York (or any successor) on such day as being the weighted average of
the rates on overnight Federal funds transactions arranged by Federal
funds brokers on the previous trading day, as computed and announced by
such Federal Reserve Bank (or any successor) in substantially the same
manner as such Federal Reserve Bank computes and announces the weighted
average it refers to as the "Federal Funds Effective Rate" as of the
date of this Agreement; provided, that if such Federal Reserve Bank (or
its successor) does not announce such rate on any day, the "Federal
Funds Effective Rate" for such day shall be the Federal Funds Effective
Rate for the last day on which such rate was announced.
"Funding Breakage Date" shall have the meaning set forth in
Section 2.10(b) hereof.
"Funding Breakage Indemnity" shall have the meaning set forth
in Section 2.10(b) hereof.
"Funding Periods" shall have the meaning set forth in Section
2.04(c) hereof.
"Funding Segment" of the Euro-Rate Portion of the Revolving
Credit Loans at any time shall mean the entire principal amount of such
Portion to which at the time in question there is applicable a
particular Funding Period beginning on a particular day and ending on a
particular day. (By definition, each such Portion is at all times
composed of an integral number of discrete Funding Segments and the sum
of the principal amounts of all Funding Segments of any such Portion at
any time equals the principal amount of such Portion at such time.)
"GAAP" shall have the meaning set forth in Section 1.03
hereof.
"Governmental Action" shall mean any approval, order, consent,
authorization, certificate, license, permit or validation of, or
exemption or other action by, or filing, recording or registration
with, or notice to, any Governmental Authority.
"Governmental Authority" shall mean any government or
political subdivision or any agency, authority, bureau, central bank,
commission, department or instrumentality of either, or any court,
tribunal, grand jury or arbitrator, in each case whether foreign or
domestic.
"Guaranty Equivalent": A Person (the "Deemed Guarantor") shall
be deemed to be subject to a Guaranty Equivalent in respect of any
indebtedness, obligation or liability (the "Assured Obligation") of
another Person (the "Deemed Obligor") if the Deemed Guarantor directly
or indirectly guarantees, becomes surety for, endorses, assumes, agrees
to indemnify the Deemed Obligor against, or otherwise agrees, becomes
or remains liable (contingently or otherwise) for, such Assured
Obligation. Without limitation, a Guaranty Equivalent shall be deemed
to exist if a Deemed Guarantor agrees, becomes or remains liable
(contingently or otherwise), directly or indirectly: (a) to purchase or
assume, or to supply funds for the payment, purchase or satisfaction
of, an Assured Obligation, (b) to make any loan, advance, capital
contribution or other investment in, or to purchase or lease any
property or services from, a Deemed Obligor (i) to maintain the
solvency of the Deemed Obligor, (ii) to enable the Deemed Obligor to
meet any other financial condition, (iii) to enable the Deemed Obligor
to satisfy any Assured Obligation or to make any Stock Payment or any
other payment, or (iv) to assure the holder of such Assured Obligation
against loss, (c) to purchase or lease property or services from the
Deemed Obligor regardless of the nondelivery of or failure to furnish
of such property or services, or (d) in respect of any other
transaction the effect of which is to assure the payment or performance
(or payment of damages or other remedy in the event of nonpayment or
nonperformance) of any Assured Obligation.
"Hazardous Materials" shall have the meaning set forth in
Section 4.09 hereof.
"HLT Classification" shall have the meaning set forth in
Section 2.11 hereof.
"Indebtedness" of a Person, at a particular date, shall mean,
without duplication, the following: (a) all indebtedness of such Person
for borrowed money or for the deferred purchase price of property; (b)
the face amount of all letters of credit (other than standby letters of
credit issued for the account of such Person in connection with bids on
proposed contracts by such Person) issued for the account of such
Person and, without duplication, all drafts drawn under all letters of
credit (including standby letters of credit); (c) all liabilities
secured by any Lien (other than Permitted Liens permitted under clause
(h) of the definition thereof) on any property owned by such Person, to
the extent attributable to such Person's interest in such property,
even though it has not assumed or become liable for the payment
thereof; (d) all Indebtedness of others as to which such Person is the
Deemed Guarantor under a Guaranty Equivalent; and (e) lease obligations
of such Person which have been, or which in accordance with GAAP,
should be capitalized.
"Indemnified Parties" shall mean the Agent, the Lenders, their
respective affiliates, and the directors, officers, employees,
attorneys and agents of each of the foregoing.
"Initial Revolving Credit Committed Amount" shall have the
meaning set forth in Section 2.01(a) hereof.
"Interest Coverage Ratio" shall mean, with respect to
Xxxxxxx-Xxxxxx and its Consolidated Subsidiaries for any period, the
ratio of (a) Consolidated EBIT to (b) Consolidated Interest Expense for
the immediately preceding four quarter period ending on the date of
determination.
"Issuing Banks" shall have the meaning set forth in Section
3.01(b) hereof.
"Judgment Amount" shall have the meaning set forth in Section
8.03 hereof.
"Law" shall mean any law (including common law), constitution,
statute, treaty, convention, regulation, rule, ordinance, order,
injunction, writ, decree or award of any Governmental Authority.
"Lender" shall mean any of the Lenders listed on the signature
pages hereof, subject to the provisions of Section 10.14 hereof
pertaining to Persons becoming or ceasing to be Lenders.
"Letter of Credit" shall have the meaning set forth in Section
3.01(b) hereof.
"Letter of Credit Application" shall have the meaning set
forth in Section 3.03(a)(ii) hereof.
"Letter of Credit Collateral Account" shall have the meaning
set forth in Section 3.10(b) hereof.
"Letter of Credit Exposure" shall mean the aggregate Letter of
Credit Undrawn Availability for all outstanding Letters of Credit.
"Letter of Credit Facing Fee" shall have the meaning assigned
to that term in Section 3.02(b) hereof.
"Letter of Credit Fee" shall have the meaning set forth in
Section 3.02(a) hereof.
"Letter of Credit Obligations" shall mean at any particular
time all liabilities of the Borrowers with respect to Letters of
Credit, whether or not such liability is contingent, including (without
duplication) the sum of (a) the aggregate Letter of Credit Undrawn
Availability of all Letters of Credit then outstanding plus (b) the
aggregate amount of all unpaid Letter of Credit Reimbursement
Obligations.
"Letter of Credit Participating Interest" shall have the
meaning set forth in Section 3.04(a) hereof.
"Letter of Credit Reimbursement Obligations" shall mean,
collectively, (a) the obligations of the Borrowers to reimburse the
Issuing Bank in accordance with the terms of this Agreement and the
related Letter of Credit Application for any payments made by the
Issuing Bank under any Letter of Credit, and (b) all fees and expenses
payable to the Agent for the account of the Lenders in respect of any
Letter of Credit.
"Letter of Credit Undrawn Availability" shall mean for each
Letter of Credit, the undrawn face amount of such Letter of Credit.
"Leverage Ratio" shall mean, with respect to Xxxxxxx-Xxxxxx
and its consolidated Subsidiaries for any fiscal period, the ratio of
(a) Indebtedness of Xxxxxxx-Xxxxxx and its consolidated Subsidiaries
plus any Deemed Debt as of the date of determination, to (b)
Consolidated EBITDA plus, in the event of any acquisition by
Xxxxxxx-Xxxxxx, with respect to the acquired company, the sum of (i)
the net earnings (or loss), plus (ii) interest expense for such period,
plus (iii) consolidated federal and state income tax expenses for such
period, plus (iv) depreciation and amortization of assets for such
period (if subtracted from earnings in calculating the same), plus (v)
extraordinary losses for such period, minus (vi) extraordinary gains
for such period, with all of the foregoing amounts to be calculated for
the fiscal period then ending, and the immediately preceding three
fiscal quarters (determined on a consolidated basis in accordance with
GAAP).
"Lien" shall mean any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any agreement to
give any of the foregoing, any additional sale or other title retention
agreement, any lease in the nature thereof, and the filing of or
agreement to give any financing statement under the Uniform Commercial
Code of any jurisdiction).
"Loan" shall mean any loan by a Lender to any Borrower under
this Agreement, and "Loans" shall mean all Loans made by the Lenders
under this Agreement.
"Loan Documents" shall mean this Agreement, the Notes, the
Xxxxxxx-Xxxxxx Guaranty, the Subsidiary Guarantees and the Transfer
Supplements, and all other agreements and instruments extending,
renewing, refinancing or refunding any indebtedness, obligation or
liability arising under any of the foregoing, in each case as the same
may be amended, modified or supplemented from time to time hereafter.
"London Business Day" shall mean a day for dealing in deposits
in Dollars by and among banks in the London interbank market and which
is a Business Day.
"London Office", when used in connection with the Agent, shall
mean its office located at Xxxxxxxx Xxxxx, Xxx Xxxxxxx Xxxx, Xxxxxx
XX0XXXX, or at such other office or offices of the Agent or any branch,
subsidiary or affiliate thereof as may be designated in writing from
time to time by the Agent to the Borrowers.
"Loss" shall have the meaning set forth in Section 8.03
hereof.
"Material Adverse Effect" shall mean (a) a material adverse
effect on the business, operations, condition (financial or otherwise)
or prospects of Xxxxxxx-Xxxxxx and its Subsidiaries taken as a whole or
(b) a material adverse effect on the ability of Xxxxxxx-Xxxxxx to
perform or comply with any of the terms and conditions of any Loan
Document.
"Mellon" shall mean Mellon Bank, N.A. in its individual
capacity.
"Multiemployer Plan" means a Plan maintained pursuant to a
collective bargaining agreement which is subject to Title IV of ERISA
to which Xxxxxxx-Xxxxxx or any member of the Controlled Group is a
party to which more than one employer is obligated to make
contributions.
"Nonextending Lender" shall have the meaning set forth in
Section 2.01(e) hereof.
"Note" or "Notes" shall mean the Revolving Credit Notes of the
Borrowers executed and delivered under this Agreement, together with
all extensions, renewals, refinancings or refundings of any thereof in
whole or part.
"Notional Euro-Rate Funding Office" shall have the meaning set
forth in Section 2.13(a) hereof.
"Obligations" shall mean all indebtedness, obligations and
liabilities of any Borrower to any Lender, any Issuing Bank or the
Agent from time to time arising under or in connection with or related
to or evidenced by this Agreement or any other Loan Document, and all
extensions, renewals or refinancings thereof, whether such
indebtedness, obligations or liabilities are direct or indirect,
otherwise secured or unsecured, joint or several, absolute or
contingent, due or to become due, whether for payment or performance,
now existing or hereafter arising. Without limitation of the foregoing,
such indebtedness, obligations and liabilities include the principal
amount of Loans, accrued but unpaid interest, Letter of Credit
Obligations, unpaid fees, indemnities or expenses under or in
connection with this Agreement or any other Loan Document, and all
extensions, renewals and refinancings thereof, whether or not such
Loans were made in compliance with the terms and conditions of this
Agreement or in excess of the obligation of the Lenders to lend.
Obligations shall remain Obligations notwithstanding any assignment or
transfer or any subsequent assignment or transfer of any of the
Obligations or any interest therein.
"Office," when used in connection with the Agent, shall mean
its office located at Xxx Xxxxxx Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx
00000, or at such other office or offices of the Agent or any branch,
subsidiary or affiliate thereof as may be designated in writing from
time to time by the Agent to the Borrowers.
"Option" shall mean the Base Rate Option or the Euro-Rate
Option, as the case may be.
"Original Credit Agreements" shall mean that certain Credit
Agreement dated as of October 29, 1991, as amended, among
Xxxxxxx-Xxxxxx, the Lenders party thereto, the Issuing Banks referred
to therein and the Agent, and that certain Short Term Credit Agreement
dated as of October 29, 1994, as amended, among Xxxxxxx-Xxxxxx, the
Lenders party thereto and the Agent.
"Original Due Date" shall have the meaning set forth in
Section 8.03 hereof.
"Other Currency" shall mean Canadian Dollars, British Pounds,
Swiss Francs, Belgium Francs, French Francs, Italian Lira, German
Marks, Singapore Dollars, Dutch Guilders, Danish Krone, Euros and any
freely available currency that is freely transferable and freely
convertible into Dollars and requested by any Borrower and acceptable
to all of the Lenders and to the Agent.
"Outstanding Letter of Credit" shall have the meaning set
forth in Section 3.01(a) hereof.
"Participants" shall have the meaning set forth in Section
10.14(b) hereof.
"PBGC" means the Pension Benefit Guaranty Corporation
established under Title IV of ERISA or any other governmental agency,
department or instrumentality succeeding to the functions of said
corporation.
"Permitted Liens" shall mean (a) Liens arising from taxes,
assessments, charges, levies or claims that are not yet due or that
remain payable without penalty, (b) deposits or pledges of cash to
secure workmen's compensation, unemployment insurance, old age benefits
or other social security obligations, or in connection with or to
secure the performance of bids, tenders, trade contracts or leases, or
to secure statutory obligations, or stay, surety or appeal bonds, or
other pledges or deposits of cash of like nature and all in the
ordinary course of business, (c) Liens permitted by Section 7.02(b)
hereof, (d) Liens in favor of each of the Agent and the Lenders, (e)
Liens to secure Indebtedness existing on the date hereof, (f) with
respect to real property located in the State of New Jersey,
impediments to marketability arising by reason of the New Jersey
Environmental Cleanup Responsibility Act, (g) easements, rights of way
and other exceptions to title which do not materially affect any
Borrower's right of enjoyment of its properties, (h) Liens in favor of
customers for amounts paid to any Borrower or any Subsidiary of any
Borrower as progress payments, (i) Liens to secure non-recourse
Indebtedness, and (j) Liens to secure Deemed Debt.
"Person" shall mean an individual, corporation, limited
liability company, partnership, trust, unincorporated association,
joint venture, joint-stock company, Governmental Authority or any other
entity.
"Plan" means an employee pension benefit plan as defined in
Section 3(2) of ERISA, as to which Xxxxxxx-Xxxxxx or any member of the
Controlled Group my have any liability.
"Portion" shall mean the Base Rate Portion or the Euro-Rate
Portion, as the case may be.
"Potential Default" shall mean any event or condition which
with notice or passage of time, or both, would constitute an Event of
Default.
"Prime Rate" as used herein, shall mean the interest rate per
annum announced from time to time by Mellon Bank, N.A. as its prime
rate, which rate may be greater or less than other interest rates
charged by Mellon Bank, N.A. to other borrowers and is not solely based
or dependent upon the interest rate which Mellon Bank, N.A. may charge
any particular borrower or class of borrowers.
"Pro Rata" shall mean from or to each Lender in proportion to
its Commitment Percentage.
"Purchase Money Security Interest" shall have the meaning set
forth in Section 7.02(b) hereof.
"Purchasing Lender" shall have the meaning set forth in
Section 10.14(c) hereof.
"Register" shall have the meaning set forth in Section
10.14(d) hereof.
"Regular Payment Date" shall mean the last day of each
December, March, June and September after the date hereof.
"Regulation T" means Regulation T of the Board of Governors of
the Federal Reserve System as from time to time in effect and shall
include any successor or other regulation or official interpretation of
such Board of Governors relating to the extension of credit by
securities brokers and dealers for the purpose of purchasing or
carrying margin stocks applicable to such Persons.
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System as from time to time in effect and shall
include any successor or other regulation or official interpretation of
such Board of Governors relating to the extension of credit by banks
for the purpose of purchasing or carrying margin stocks applicable to
such Persons.
"Regulation X" means Regulation X of the Board of Governors of
the Federal Reserve System as from time to time in effect and shall
include any successor or other regulation or official interpretation of
such Board of Governors relating to the extension of credit by banks
for the purpose of purchasing or carrying margin stocks applicable to
such Persons.
"Replacement Lender" shall have the meaning set forth in
Section 2.01(e) hereof.
"Reportable Event" means a reportable event as defined in
Section 4043(a) of ERISA and the regulations issued under such section,
with respect to a Plan, excluding, however, such events as to which the
PBGC has by regulation unconditionally or conditionally waived the
requirement of Section 4043(a) of ERISA that it be notified within 30
days of the occurrence of such event; provided, that a failure to meet
the minimum funding standard of Section 412 of the Code and of Section
302 of ERISA shall be a Reportable Event regardless of the issuance of
any such waiver of the notice requirement in accordance with either
Section 4043(a) of ERISA or Section 412(d) of the Code.
"Required Lenders" shall mean, as of any date, Lenders which
have Commitments constituting, in the aggregate, at least 51% of the
total Commitments of all the Lenders.
"Responsible Officer" shall mean the Chairman, President, any
Vice President, the Controller or the Treasurer of any Borrower.
"Revolving Credit Commitment" shall have the meaning set forth
in Section 2.01(a) hereof.
"Revolving Credit Committed Amount" shall have the meaning set
forth in Section 2.01(a) hereof.
"Revolving Credit Extensions of Credit" shall mean, at any
particular time, the sum of (i) the aggregate unpaid principal amount
of Revolving Credit Loans then outstanding and (ii) the aggregate
Letter of Credit Obligations then outstanding.
"Revolving Credit Loans" shall have the meaning set forth in
Section 2.01(a) hereof.
"Revolving Credit Maturity Date" shall mean, initially,
December 20, 2004, as such date may be extended by the Lenders pursuant
to Section 2.01(e) hereof.
"Revolving Credit Notes" shall mean the promissory notes of
the Borrowers executed and delivered under Section 2.01(c) hereof and
any promissory note issued in substitution therefor pursuant to
Sections 10.14(c) and 2.01(f) or any other provisions hereof, together
with all extensions, renewals, refinancings or refundings thereof in
whole or part.
"Short Term Commitments" shall mean the aggregate "Revolving
Credit Commitments" of the "Lenders" (each as defined in the Short Term
Credit Agreement) under the Short Term Credit Agreement.
"Short Term Credit Agreement" shall mean that certain Short
Term Credit Agreement dated the date hereof, by and among the
Borrowers, the Lenders named therein and Mellon Bank, N.A., as the
Agent, as amended.
"Significant Subsidiary" shall mean Xxxxxxx-Xxxxxx Flight
Systems, Inc., Xxxxxxx-Xxxxxx Flow Control Corporation, Metal
Improvement Company, Inc., and any other Subsidiary of Xxxxxxx-Xxxxxx
(a) which, together with its Subsidiaries (determined on a consolidated
basis), has assets with a book value greater than or equal to 20% of
the total assets of Xxxxxxx-Xxxxxx and its Subsidiaries (determined on
a consolidated basis) as of the end of the most recently completed
fiscal quarter for which financial information is available), or (b)
which, together with its Subsidiaries (determined on a consolidated
basis), has greater than 20% of the net revenues of Xxxxxxx-Xxxxxx and
its Subsidiaries (determined on a consolidated basis) for the most
recent four fiscal quarters for which financial information is
available), all determined in accordance with GAAP.
"Single Employer Plan" means a Plan subject to Title IV of
ERISA maintained by any member of the Controlled Group for employees of
any member of the Controlled Group, other than a Multiemployer Plan.
"Standard Notice" shall mean an irrevocable notice provided to
the Agent on a Business Day which is
(a) provided on the same Business Day in the case of
selection of, conversion to or renewal of the Base Rate Option
or prepayment of any Base Rate Portion; and
(b) provided at least four London Business Days in
advance in the case of selection of, conversion to or renewal
of the Euro-Rate Option or prepayment of any Euro-Rate
Portion.
Standard Notice must be provided no later than 10:00 a.m., Pittsburgh
time, on the last day permitted for such notice.
"Stock Payments" shall mean any dividend, distribution or
payment of any nature (whether in cash, securities, or other property)
on account of or in respect of any shares of the capital stock or other
equity interests (or warrants, options or rights therefor) of such
Person, including but not limited to any payment on account of the
purchase, redemption, retirement, defeasance or acquisition of any
shares of the capital stock or other equity interests (or warrants,
options or rights therefor) of such Person, in each case regardless of
whether required by the terms of such capital stock or other equity
interest (or warrants, options or rights) or any other agreement or
instrument.
"Subsidiary" of a Person means (a) any corporation more than
50% of the outstanding securities having ordinary voting power of which
shall at the time be owned or controlled, directly or indirectly, by
such Person or (b) any partnership, association, joint venture or
similar business organization more than 50% of the ownership interests
having ordinary voting power of which shall at the time be so owned or
controlled.
"Subsidiary Borrower" shall mean any of the following
Subsidiaries of Xxxxxxx-Xxxxxx that is (a) a party to this Agreement or
(b) has executed and delivered to the Agent (i) a Revolving Credit
Note, and (ii) a joinder to this Agreement, in form and substance
satisfactory to the Agent: Xxxxxxx-Xxxxxx Flight Systems, Inc., a
Delaware corporation; Metal Improvement Company, Inc., a Delaware
corporation; Xxxxxxx-Xxxxxx Flow Control Corporation, a New York
corporation; Xxxxxxx-Xxxxxx Flow Control Service Corporation, a
Delaware corporation; Xxxxxxx-Xxxxxx Foreign Sales Corp., a Barbados
corporation; Xxxxxxx-Xxxxxx Flight Systems Europe A/S, a Danish
corporation and Xxxxxxx-Xxxxxx Antriebstechnik GmbH, a Swiss
corporation.
"Subsidiary Guarantors" shall mean the Subsidiary Borrowers
and Significant Subsidiaries from time to time party to the Subsidiary
Guarantees.
"Subsidiary Guarantees" shall have the meaning set forth in
Section 5.01(o) hereof.
"Substantial Portion" means, with respect to the properties of
Xxxxxxx-Xxxxxx and its consolidated Subsidiaries, property which (a)
represents more than 20% of the consolidated assets of Xxxxxxx-Xxxxxx
and its Subsidiaries, as would be shown in the consolidated financial
statements of Xxxxxxx-Xxxxxx and its Subsidiaries as at the end of the
fiscal quarter next preceding the date on which such determination is
made, or (b) is responsible for more than 10% of the consolidated net
revenues or of the Consolidated Net Income of Xxxxxxx-Xxxxxx and its
Subsidiaries for the 12-month period ending as of the end of the fiscal
quarter next preceding the date of determination. For purposes of the
calculation of Consolidated Net Income hereunder, there shall be
excluded therefrom any extraordinary gains during such period and there
shall be included therein any extraordinary losses during such period.
"Taxes" shall have the meaning set forth in Section 2.12(a)
hereof.
"Termination Event" means, with respect to a Plan which is
subject to Title IV of ERISA, (a) a Reportable Event, (b) the
withdrawal of any member of the Controlled Group from such Plan during
a plan year in which such member of the Controlled Group was a
"substantial employer" as defined in Section 4001(a)(2) of ERISA or was
deemed such under Section 4068(f) of ERISA, (c) the termination of such
Plan, the filing of a notice of intent to terminate such Plan or the
treatment of an amendment of such Plan as a termination under Section
4041 of ERISA, (d) the institution by the PBGC of proceedings to
terminate such Plan or (e) any event or condition which could
reasonably be expected to constitute grounds under Section 4042 of
ERISA for the termination of or appointment of a trustee to administer,
such Plan.
"Transfer Effective Date" shall have the meaning set forth in
the applicable Transfer Supplement.
"Transfer Supplement" shall have the meaning set forth in
Section 10.14(c) hereof.
"Unfunded Liabilities" means the amount (if any) by which the
present value of all vested and unvested accrued benefits under all
Single Employer Plans exceeds the fair market value of all such Plan
assets allocable to such benefits, all determined as of the then most
recent valuation date for such Plans using PBGC actuarial assumptions
for single employer plan terminations.
"US Currency" shall mean Dollars.
"Year 2000 Problem" shall mean any significant risk that
computer hardware, software or equipment containing embedded microchips
of any Borrower or any of its Subsidiaries which is essential to its
business or operations will not, in the case of dates or time periods
occurring after December 31, 1999, function at least as effectively and
reliably as in the case of times or time periods occurring before
January 1, 2000, including the making of accurate leap year
calculations.
. Unless the context of this Agreement otherwise clearly requires, references to
the plural include the singular, the singular the plural and the part the whole;
"or" has the inclusive meaning represented by the phrase "and/or"; and
"property" includes all properties and assets of any kind or nature, tangible or
intangible, real, personal or mixed. References in this Agreement to
"determination" (and similar terms) by the Agent or by any Lender include good
faith estimates by the Agent or by any Lender (in the case of quantitative
determinations) and good faith beliefs by the Agent or by any Lender (in the
case of qualitative determinations). The words "hereof," "herein," "hereunder"
and similar terms in this Agreement refer to this Agreement as a whole and not
to any particular provision of this Agreement. The section and other headings
contained in this Agreement and the Table of Contents preceding this Agreement
are for reference purposes only and shall not control or affect the construction
of this Agreement or the interpretation thereof in any respect. Section,
subsection and exhibit references are to this Agreement unless otherwise
specified.
. 1.03. Accounting Principles
(a) As used herein, "GAAP" shall mean generally accepted
accounting principles in the United States, applied on a basis consistent with
the principles used in preparing Xxxxxxx-Xxxxxx'x consolidated financial
statements as of December 31, 1998 and for the fiscal year then ended, as
referred to in Section 4.05 hereof, together with such changes in GAAP as may be
adopted from time to time which, in the good faith judgment of the Agent, do not
have a material adverse effect on Xxxxxxx-Xxxxxx'x compliance with the covenants
contained in this Agreement.
(b) Except as otherwise provided in this Agreement, all
computations and determinations as to accounting or financial matters shall be
made, and all financial statements to be delivered pursuant to this Agreement
shall be prepared, in accordance with GAAP (including principles of
consolidation where appropriate), and all accounting or financial terms shall
have the meanings ascribed to such terms by GAAP.
(c) If and to the extent that the financial statements
generally prepared by Xxxxxxx-Xxxxxx apply accounting principles other than
GAAP, all financial statements referred to in this Agreement or any other Loan
Document shall be delivered in duplicate, one set based on the accounting
principles then generally applied by Xxxxxxx-Xxxxxx and one set based on GAAP.
To the extent this Agreement or such other Loan Document requires financial
statements to be accompanied by an opinion of independent accountants, each set
of financial statements shall be accompanied by such an opinion.
ARTICLE II
THE CREDITS
. 2.01. Revolving Credit Loans
(a) Revolving Credit Commitments. Subject to the terms and
conditions and relying upon the representations and warranties herein set forth,
each Lender, severally and not jointly, agrees (such agreement being herein
called such Lender's "Revolving Credit Commitment") to make loans in either US
Currency or in an Other Currency (the "Revolving Credit Loans") to one or more
Borrowers at any time or from time to time on or after the date hereof and to
but not including the Revolving Credit Maturity Date.
A Lender shall have no obligation to make any Revolving Credit
Loan to the extent that the aggregate principal amount of such Lender's Pro Rata
share of the total Revolving Credit Extensions of Credit at any time outstanding
would exceed such Lender's Revolving Credit Committed Amount at such time. Each
Lender's "Revolving Credit Committed Amount" at any time shall be equal to the
amount set forth as its "Initial Revolving Credit Committed Amount" below its
name on the signature pages hereof, as either such amount may have been reduced
under Section 2.02 hereof at such time, increased under Section 2.01(f), and
subject to transfer to another Lender as provided in Section 10.14 hereof.
(b) Nature of Credit. Within the limits of time and amount set
forth in this Section 2.01, and subject to the provisions of this Agreement, the
Borrowers may borrow, repay and reborrow Revolving Credit Loans hereunder.
(c) Revolving Credit Notes. The obligations of each Borrower
to repay the unpaid principal amount of the Revolving Credit Loans made to them
by each Lender and to pay interest thereon shall be evidenced in part by
promissory notes of each such Borrower, one to each Lender, dated the Closing
Date (the "Revolving Credit Notes") in substantially the form attached hereto as
Exhibit A, with the blanks appropriately filled, payable to the order of such
Lender in a face amount equal to such Lender's Initial Revolving Credit
Committed Amount.
(d) Maturity. To the extent not due and payable earlier, the
Revolving Credit Loans shall be due and payable on the Revolving Credit Maturity
Date.
(e) Extension of Revolving Credit Maturity Date. The Revolving
Credit Maturity Date may be extended for successive one year periods at the
request of Xxxxxxx-Xxxxxx with the express consent of each Lender as provided
below. Not later than the date 90 days prior to each Anniversary Date,
Xxxxxxx-Xxxxxx shall, at its option, in a written notice to the Agent request
(an "Extension Request") that the Revolving Credit Maturity Date be extended for
a period of one year. The Agent shall promptly inform the Lenders of such
Extension Request. Each Lender that agrees with such Extension Request shall
deliver to the Agent its express written consent thereto no later than 60 days
prior to such Anniversary Date. If (i) any Lender notifies the Agent in writing
on or before the 60th day prior to such Anniversary Date that it will not
consent to such Extension Request or (ii) all of the Lenders have not in writing
expressly consented to any such Extension Request as provided in the preceding
sentence, then the Agent shall immediately notify Xxxxxxx-Xxxxxx and
Xxxxxxx-Xxxxxx, at its option, may (x) withdraw the Extension Request, or (y)
replace each Lender which has not agreed to such Extension Request (a
"Nonextending Lender") with another commercial lending institution reasonably
satisfactory to the Agent (a "Replacement Lender") by giving notice (not later
than the date 20 days prior to such Anniversary Date) of the name of such
Replacement Lender to the Agent. Unless the Agent shall object to the identity
of such proposed Replacement Lender prior to the date 10 days prior to such
Anniversary Date, upon notice from the Agent, each Nonextending Lender shall
promptly (but in no event later than such Anniversary Date) assign all of its
interests hereunder to such Replacement Lender in accordance with the provisions
of Section 10.14(c) hereof. If, prior to such Anniversary Date some, but not
all, of the Lenders have agreed to such Extension Request, and each Nonextending
Lender has not been replaced by Xxxxxxx-Xxxxxx in accordance with the terms of
this Section 2.01(e), the Revolving Credit Maturity Date shall be extended in
accordance with such Extension Request; provided, however, that on the original
Revolving Credit Maturity Date (as such date may have been previously extended),
the Commitment of each Nonextending Lender shall be terminated, the Borrowers
shall pay to the Agent for the account of such Nonextending Lender such
Nonextending Lender's Pro Rata share of the principal of and interest on all
outstanding Revolving Credit Loans and Letter of Credit Reimbursement
Obligations, and the total Revolving Credit Commitment shall be irrevocably
reduced by an amount equal to the aggregate Commitments of all Nonextending
Lenders. If all Lenders consent to any such Extension Request (or, if any
Nonextending Lenders are replaced in accordance with this Section 2.01(e)), then
as of 5:00 p.m. Pittsburgh time on the Anniversary Date, the Revolving Credit
Maturity Date shall be deemed to have been extended for, and shall be the date,
one year after the then effective Revolving Credit Maturity Date (as such date
may have been previously extended pursuant to this Section 201(e)).
(f) Increase in Commitments. Upon the written request of
Xxxxxxx-Xxxxxx, if approved in writing by the Required Lenders (which must
include the Agent), the Commitments may be increased by an aggregate amount of
$25,000,000 less the amount, if any, by which the Short Term Commitments may
have been increased pursuant to Section 2.01(e) of the Short Term Credit
Agreement; provided, that no Lender's Revolving Credit Committed Amount shall be
increased without such Lender's approval. The Lenders' Revolving Credit
Committed Amounts shall be increased on a pro rata basis among the Lenders
approving the increase in Commitments. The increase in Commitments shall be
subject to the Agent's receipt, for each Lender, of substitute Notes, duly
executed by each Borrower, reflecting the amount of such Lender's Revolving
Credit Committed Amount after such increase in the Commitments.
. 2.02. Facility Fee; Reduction of the Revolving Credit
Committed Amounts
(a) Facility Fee. Xxxxxxx-Xxxxxx shall pay to the Agent for
the account of each Lender a facility fee (the "Facility Fee") equal to the
facility fee percentage determined from the chart set forth below based on the
Leverage Ratio, as determined quarterly based upon the financial statements
delivered by Xxxxxxx-Xxxxxx pursuant to this Agreement, with such Facility Fee
to be effective, with respect to calculations based upon the quarterly unaudited
financial statements delivered pursuant to Section 6.01(b) hereof, as of the
first day of the quarter immediately following the quarter for which such
financial statements are delivered:
---------------------------- ----------------------------------
Leverage Ratio Facility Fee Percentage
---------------------------- ----------------------------------
---------------------------- ----------------------------------
>2.5 0.35%
---------------------------- ----------------------------------
---------------------------- ----------------------------------
>1.5 and < 2.5 0.30%
-
---------------------------- ----------------------------------
---------------------------- ----------------------------------
< 1.5 0.20%
-
---------------------------- ----------------------------------
for each day from and including the date hereof to but not including the
Revolving Credit Maturity Date, on the amount (not less than zero) equal to such
Lender's Revolving Credit Committed Amount on such day. Such Facility Fee shall
be due and payable for the preceding period for which such fee has not been paid
(x) on each Regular Payment Date, (y) on the date of each reduction of the
Revolving Credit Committed Amounts (whether optional or mandatory) on the amount
so reduced and (z) on the Revolving Credit Maturity Date.
(b) Reduction of the Revolving Credit Committed Amounts.
Xxxxxxx-Xxxxxx may at any time or from time to time reduce Pro Rata the
Revolving Credit Committed Amounts of the Lenders to an aggregate amount (which
may be zero) not less than the Dollar Equivalent Amount sum of the unpaid
principal amount of the Revolving Credit Loans then outstanding plus the
principal amount of all Revolving Credit Loans not yet made as to which notice
has been given by a Borrower under Section 2.03 hereof. Any reduction of the
Revolving Credit Committed Amounts shall be in an aggregate amount which is a
minimum amount of $5,000,000 and integral multiples of $500,000 thereof.
Reduction of the Revolving Credit Committed Amounts shall be made by providing
not less than 30 days' notice (which notice shall be irrevocable) to such effect
to the Agent. After the date specified in such notice the Facility Fee shall be
calculated based upon the Revolving Credit Committed Amounts as so reduced. Upon
reduction of the Revolving Credit Committed Amounts to zero, payment in full of
all Obligations and expiration or termination of all outstanding Letters of
Credit, this Agreement shall be terminated.
. Whenever a Borrower desires that the Lenders make Revolving Credit Loans, such
Borrower shall provide Standard Notice to the Agent setting forth the following
information:
(a) The currency, which shall be either US Currency or an
Other Currency, in which such Revolving Credit Loans are to be made;
(b) The party making the borrowing thereunder;
(c) The date, which shall be a Business Day, on which such
proposed Loans are to be made;
(d) The aggregate principal amount of such proposed Loans,
which shall be the sum of the principal amounts selected pursuant to clause (e)
of this Section 2.03;
(e) The interest rate Option or Options selected in accordance
with Section 2.04(a) hereof and the principal amounts selected in accordance
with Section 2.04(d) hereof of the Base Rate Portion and each Funding Segment of
the Euro-Rate Portion, as the case may be, of such proposed Loans; and
(f) With respect to each such Funding Segment of such proposed
Loans, the Funding Period to apply to such Funding Segment, selected in
accordance with Section 2.04(c) hereof.
Standard Notice having been so provided, the Agent shall promptly notify each
Lender of the information contained therein and of the amount of such Lender's
Loan. Unless any applicable condition specified in Article V hereof has not been
satisfied, on the date specified in such Standard Notice each Lender shall make
the proceeds of its Loan available to the Agent (a) with respect to a Loan
denominated in US Currency, at the Agent's Office, no later than 12:00 o'clock
Noon, Pittsburgh time, in funds immediately available at such Office, and (b)
with respect to a Loan denominated in an Other Currency, at the Agent's London
Office, no later than 12:00 o'clock Noon, London time, in funds immediately
available at such London Office. The Agent will make the funds so received
available to the applicable Borrower in funds immediately available at the
Agent's Office or London Office, as the case may be.
. 2.04. Interest Rates
(a) Optional Bases of Borrowing. The unpaid principal amount
of the Loans shall bear interest for each day until due on one or more bases
selected by the applicable Borrower from among the interest rate Options set
forth below. Subject to the provisions of this Agreement the Borrowers may
select different options to apply simultaneously to different Portions of the
Loans and may select different Funding Segments to apply simultaneously to
different parts of the Euro-Rate Portion of the Loans. The aggregate number of
Funding Segments applicable to the Euro-Rate Portion of the Revolving Credit
Loans at any time shall not exceed ten without the approval of the Agent.
(i) Base Rate Option: A rate per annum (computed on the basis
of a year of 365 or 366 days, as the case may be, and actual days
elapsed) for each day equal to the Base Rate for such day. The "Base
Rate" for any day shall mean the greater of (A) the Prime Rate for such
day or (B) 0.50% plus the Federal Funds Effective Rate for such day,
such interest rate to change automatically from time to time effective
as of the effective date of each change in the Prime Rate or the
Federal Funds Effective Rate.
(ii) Euro-Rate Option: A rate per annum (based on a year of
360 days and actual days elapsed) for each day equal to the Euro-Rate
for such day plus the Applicable Margin for such day. "Euro-Rate" for
any day, as used herein, shall mean for each Funding Segment of the
Euro-Rate Portion corresponding to a proposed or existing Euro-Rate
Funding Period the rate per annum determined by the Agent by dividing
(the resulting quotient to be rounded upward to the nearest 1/100 of
1%) (A) the rate of interest (which shall be the same for each day in
such Euro-Rate Funding Period) determined in good faith by the Agent in
accordance with its usual procedures (which determination shall be
conclusive absent manifest error) to be the average of the rates per
annum for deposits in US Currency or any Other Currency, as applicable,
offered to major money center banks in the London interbank market at
approximately 11:00 a.m., London time, two London Business Days prior
to the first day of such Euro-Rate Funding Period for delivery on the
first day of such Euro-Rate Funding Period in amounts comparable to
such Funding Segment and having maturities comparable to such Euro-Rate
Funding Period by (B) a number equal to
1.00 minus the Euro-Rate Reserve Percentage.
The "Euro-Rate" may also be expressed by the following formula:
[average of the rates offered to major money ]
[center banks in the London interbank market ]
Euro-Rate = [determined by the Agent per subsection (A) ] ]
[1.00 - Euro-Rate Reserve Percentage ]
"Euro-Rate Reserve Percentage" for any day shall mean the
percentage (expressed as a decimal, rounded upward to the nearest 1/100
of 1%), as determined in good faith by the Agent (which determination
shall be conclusive absent manifest error), which is in effect on such
day as prescribed by the Board of Governors of the Federal Reserve
System (or any successor) representing the maximum reserve requirement
(including, without limitation, supplemental, marginal and emergency
reserve requirements) with respect to eurocurrency funding (currently
referred to as "Eurocurrency liabilities") of a member bank in such
System. The Euro-Rate shall be adjusted automatically as of the
effective date of each change in the Euro-Rate Reserve Percentage. The
Euro-Rate Option shall be calculated in accordance with the foregoing
whether or not any Lender is actually required to hold reserves in
connection with its eurocurrency funding or, if required to hold such
reserves, is required to hold reserves at the "Euro-Rate Reserve
Percentage" as herein defined.
The Agent shall give prompt notice to the applicable
Borrower and to the Lenders of the Euro-Rate determined or adjusted in
accordance with the definition of the Euro-Rate, which determination or
adjustment shall be conclusive absent manifest error.
(b) Applicable Margin. The "Applicable Margin" for the
Euro-Rate Option for any day shall be determined by reference to the Leverage
Ratio as determined on such day and shall mean the applicable percentage set
forth below:
----------------------------- ------------------------------------
Leverage Ratio Applicable Margin
----------------------------- ------------------------------------
> 2.5 1.45%
----------------------------- ------------------------------------
> 2.0 and <= 2.5 1.20%
----------------------------- ------------------------------------
> 1.5 and <= 2.0 0.95%
----------------------------- ------------------------------------
<= 1.5 0.80%
----------------------------- ------------------------------------
(c) Funding Periods. At any time when a Borrower shall select,
convert to or renew the Euro-Rate Option to apply to any part of the Loans, the
applicable Borrower shall specify one of the following periods (the "Funding
Periods") during which the Euro-Rate Option shall apply: One, two, three, six
months or one year or such longer period as may be offered by all of the Lenders
in their sole discretion; provided, that:
(i) Each Funding Period shall begin on a London Business Day,
and the term "month", when used in connection with a Funding Period,
shall be construed in accordance with prevailing practices in the
interbank eurodollar market at the commencement of such Funding Period,
as determined in good faith by the Agent (which determination shall be
conclusive);
(ii) A Borrower may not select a Funding Period that would end
after the Revolving Credit Maturity Date; and
(iii) A Borrower shall, in selecting any Funding Period, allow
for scheduled mandatory payments and foreseeable mandatory prepayments
of the Loans.
(d) Transactional Amounts. Every selection of, conversion
from, conversion to or renewal of an interest rate Option and every payment or
prepayment of any Loans shall be in a principal amount such that after giving
effect thereto the aggregate principal amount of the Base Rate Portion of the
Revolving Credit Loans, or the aggregate principal amount of each Funding
Segment of the Euro-Rate Portion of the Revolving Credit Loans, shall be as set
forth below:
---------------------------- --------------------------------------
Portion or Funding Segment Allowable Aggregate Principal Amounts
---------------------------- --------------------------------------
Base Rate Portion an integral multiple of 500,000 of US
Currency or the Other Currency
denominated by the Borrower
---------------------------- --------------------------------------
Each Funding Segment of the an integral multiple of 1,000,000 of
Euro-Rate Portion US Currency or the Other Currency
denominated by the Borrower
---------------------------- --------------------------------------
(e) Euro-Rate Unascertainable; Impracticability. If
(i) on any date on which a Euro-Rate would otherwise be set
the Agent (in the case of clauses (A) or (B) below) or any Lender (in
the case of clause (C) below) shall have determined in good faith
(which determination shall be conclusive absent manifest error) that:
(A) adequate and reasonable means do not exist
for ascertaining such Euro-Rate,
(B) a contingency has occurred which materially and
adversely affects the secondary market for the interbank
eurodollar market, or
(C) the effective cost to such Lender of funding a
proposed Funding Segment of the Euro-Rate Portion from a
Corresponding Source of Funds shall exceed the Euro-Rate,
applicable to such Funding Segment, or
(ii) at any time any Lender shall have determined in good
faith (which determination shall be conclusive absent manifest error)
that the making, maintenance or funding of any part of the Euro-Rate
Portion has been made impracticable or unlawful by compliance by such
Lender or a Notional Euro-Rate Funding Office in good faith with any
Law or guideline or interpretation or administration thereof by any
Governmental Authority charged with the interpretation or
administration thereof or with any request or directive of any such
Governmental Authority (whether or not having the force of law);
then, and in any such event, the Agent or such Lender, as the case may be, may
notify the Borrowers of such determination (and any Lender giving such notice
shall notify the Agent). Upon such date as shall be specified in such notice
(which shall not be earlier than the date such notice is given), the obligation
of each of the Lenders to allow the Borrowers to select, convert to or renew the
Euro-Rate Option, shall be suspended until the Agent or such Lender, as the case
may be, shall have later notified the Borrowers (and any Lender giving such
notice shall notify the Agent) of the Agent's or such Lender's determination in
good faith (which determination shall be conclusive absent manifest error) that
the circumstance giving rise to such previous determination no longer exist.
If any Lender notifies a Borrower of a determination under
subsection (ii) of this Section 2.04(e), the Euro-Rate Portion of the Loans of
such Lender (the "Affected Lender") shall automatically be converted to the Base
Rate Option as of the date specified in such notice (and accrued interest
thereon shall be due and payable on such date).
If at the time the Agent or a Lender makes a determination
under subsection (i) or (ii) of this Section 2.04(e) a Borrower previously has
notified the Agent that it wishes to select, convert to or renew the Euro-Rate
Option, with respect to any proposed Loans but such Loans have not yet been
made, such notification shall be deemed to provide for selection of, conversion
to or renewal of the Base Rate Option instead of the Euro-Rate Option with
respect to such Loans or, in the case of a determination by a Lender, such Loans
of such Lender.
(f) Availability of Funds. If at any time any Lender cannot
access funds through traditional sources, as determined by such Lender in good
faith (which determination shall be conclusive absent manifest error), and it is
necessary for such Lender to access funding through the Federal Reserve System's
Century Date Change Special Liquidity Facility Program (the "Alternative
Funds"), then the interest rate applicable to such Lender's Pro Rata share of
the Loans made with such Alternative Funds shall be equal to (i) the Federal
Funds Effective Rate then in effect, plus (ii) 1.50%, plus (iii) the Applicable
Margin determined by reference to the Leverage Ratio on such date.
. 2.05. Conversion or Renewal of Interest Rate Options
(a) Conversion or Renewal. Subject to the provisions of
Sections 2.09(c) and 2.10(b) hereof, unless an Event of Default shall have
occurred and be continuing, any Borrower may convert any part of its Loans from
any interest rate Option or Options to one or more different interest rate
Options and may renew the Euro-Rate Option as to any Funding Segment of the
Euro-Rate Portion:
(i) At any time with respect to conversion from the Base
Rate Option; or
(ii) At the expiration of any Funding Period with respect to
conversions from or renewals of the Euro-Rate Option, as to the Funding
Segment corresponding to such expiring Funding Period.
Whenever a Borrower desires to convert or renew any interest rate Option or
Options, such Borrower shall provide to the Agent Standard Notice setting forth
the following information:
(w) The date, which shall be a Business Day, on which the
proposed conversion or renewal is to be made;
(x) The principal amounts selected in accordance with Section
2.04(d) hereof of the Base Rate Portion and each Funding Segment of the
Euro-Rate Portion to be converted from or renewed;
(y) The interest rate Option or Options selected in accordance
with Section 2.04(a) hereof and the principal amounts selected in
accordance with Section 2.04(d) hereof of the Base Rate Portion and
each Funding Segment of the Euro-Rate Portion to be converted; and
(z) With respect to each Funding Segment to be converted to or
renewed, the Funding Period selected in accordance with Section 2.04(c)
hereof to apply to such Funding Segment.
Standard Notice having been so provided, after the date specified in such
Standard Notice, interest shall be calculated upon the principal amount of the
Loans as so converted or renewed. Interest on the principal amount of any part
of the Loans converted or renewed (automatically or otherwise) shall be due and
payable on the conversion or renewal date.
(b) Failure to Convert or Renew. Absent due notice from any
Borrower of conversion or renewal in the circumstances described in Section
2.05(a)(ii) hereof, any part of the Euro-Rate Portion for which such notice is
not received shall be converted automatically to the Base Rate Option on the
last day of the expiring Funding Period; provided, however, that if any
Euro-Rate Portion is in an Other Currency, such portion shall be renewed
automatically for one month on the last day of the expiring Funding Period.
. Whenever a Borrower desires or is required to prepay any part of its Loans, it
shall provide Standard Notice to the Agent setting forth the following
information:
(a) The currency, which shall be either US Currency or an
Other Currency, in which such prepayment is to be made;
(b) The date, which shall be a Business Day, on which the
proposed prepayment is to be made;
(c) The total principal amount of such prepayment, which shall
be the sum of the principal amounts selected pursuant to clause (d) of this
Section 2.06; and
(d) The principal amounts selected in accordance with Section
2.04(d) hereof of the Base Rate Portion and each part of each Funding Segment of
the Euro-Rate Portion to be prepaid.
Standard Notice having been so provided, on the date specified in such Standard
Notice, the principal amounts of the Base Rate Portion and each Funding Segment
of the Euro-Rate Portion specified in such notice, together with interest on
each such principal amount to such date, shall be due and payable.
. The Borrowers shall have the right at their option from time to time to prepay
their Loans in whole or part without premium or penalty (subject, however, to
Section 2.10(b) hereof):
(a) At any time with respect to any part of the Base Rate
Portion; or
(b) At the expiration of any Funding Period with respect to
prepayment of the Euro-Rate Portion with respect to any part of the Funding
Segment corresponding to such expiring Funding Period.
Any such prepayment shall be made in accordance with Section 2.06 hereof.
. Interest on the Base Rate Portion shall be due and payable in arrears on the
last day of each month. Interest on each Funding Segment of the Euro-Rate
Portion shall be due and payable on the last day of the corresponding Euro-Rate
Funding Period and, if such Euro-Rate Funding Period is longer than three
months, on each Regular Payment Date. After maturity of any part of the Loans
(by acceleration or otherwise), interest on such part of the Loans shall be due
and payable on demand.
. 2.09. Pro Rata Treatment; Payments Generally
(a) Pro Rata Treatment. Each borrowing and conversion and
renewal of interest rate Options hereunder shall be made, and all payments made
in respect of principal, interest and Facility Fees due from Xxxxxxx-Xxxxxx
hereunder or under the Notes shall be applied, Pro Rata from and to each Lender,
except for payments of interest involving an Affected Lender as provided in
Section 2.04(e) hereof, payments to a Lender under Sections 2.10, 2.12 or 3.07
hereof and payments to any Issuing Bank pursuant to Section 3.02(b) hereof. The
failure of any Lender to make a Loan shall not relieve any other Lender of its
obligation to lend hereunder, but neither the Agent nor any Lender shall be
responsible for the failure of any other Lender to make a Loan.
(b) Payments Generally. The parties agree that (i) all
payments and prepayments of principal, interest and other amounts in connection
with Loans denominated in US Currency and all fees shall be made in US Currency
and (ii) all payments of principal, interest and other amounts (other than fees)
in connection with Revolving Credit Loans denominated in any Other Currency
shall be made in such Other Currency. All payments and prepayments to be made in
respect of principal, interest, fees or other amounts due from the Borrowers in
US Currency shall be payable by 12:00 o'clock noon, Pittsburgh time, on the day
when due without presentment, demand, protest or notice of any kind, all of
which are hereby expressly waived, and an action therefor shall immediately
accrue. Except for payments under Sections 2.10 and 10.06, such payments shall
be made to the Agent at its Office in US Currency in funds immediately available
at such Office without setoff, counterclaim or other deduction of any nature.
All payments and prepayments to be made in respect of principal, interest, fees
or other amounts due from the Borrowers in any Other Currency shall be payable
by 12:00 o'clock noon, London time, on the day when due without presentment,
demand, protest or notice of any kind, all of which are hereby expressly waived,
and an action therefor shall immediately accrue. Except for payments under
Sections 2.10 and 10.06, such payments shall be made to the Agent at its London
Office in such Other Currency in funds immediately available at such Office
without setoff, counterclaim or other deduction of any nature. Any payment or
prepayment received (i) in US Currency by the Agent or such Lender after 12:00
o'clock Noon, Pittsburgh time, on any day shall be deemed to have been received
on the next succeeding Business Day and (ii) in any Other Currency by the Agent
or such Lender after 12:00 o'clock noon, London time, on any day shall be deemed
to have been received on the next succeeding London Business Day. The Agent
shall distribute to the Lenders all such payments received by it from the
Borrowers as promptly as practicable after receipt by the Agent.
(c) Default Interest. To the extent permitted by law, from and
after the date on which an Event of Default shall have occurred hereunder, and
so long as such Event of Default continues to exist, principal, interest, fees,
indemnity, expenses or any other amounts due from the Borrowers hereunder or
under any other Loan Document, shall bear interest for each day (before and
after judgment), payable on demand, at a rate per annum (in each case based on a
year of 360 days and actual days elapsed) which for each day shall be equal to
the following:
(i) In the case of any part of Euro-Rate Portion of any Loans,
(A) until the end of the applicable then-current Funding Period at a
rate per annum 2% above the rate otherwise applicable to such part, and
(B) thereafter in accordance with the following clause (ii); and
(ii) In the case of any other amount due from the Borrowers
hereunder or under any Loan Document, 2% above the then-current Base
Rate Option.
To the extent permitted by law, interest accrued under this Section 2.09 on any
amount shall compound on a day-by-day basis, and hence shall be added daily to
the overdue amount to which such interest relates.
. 2.10. Additional Compensation in Certain Circumstances
(a) Increased Costs or Reduced Return Resulting From Taxes,
Reserves, Capital Adequacy Requirements, Expenses, Etc. If any Law or guideline
or interpretation or application thereof by any Governmental Authority charged
with the interpretation or administration thereof or compliance with any request
or directive of any Governmental Authority (whether or not having the force of
law) now existing or hereafter adopted:
(i) subjects any Lender or any Notional Euro-Rate Funding
Office to any tax or changes the basis of taxation with respect to this
Agreement, the Notes, the Loans or payments by the Borrowers of
principal, interest, commitment fees or other amounts due from the
Borrowers hereunder or under the Notes (except for taxes on the overall
net income or overall gross receipts of such Lender or such Notional
Euro-Rate Funding Office imposed by the jurisdictions (federal, state
and local) in which the Lender's principal office or Notional Euro-Rate
Funding Office is located),
(ii) imposes, modifies or deems applicable any reserve,
special deposit or similar requirement against credits or commitments
to extend credit extended by, assets (funded or contingent) of,
deposits with or for the account of, other acquisitions of funds by,
such Lender or any Notional Euro-Rate Funding Office (other than
requirements expressly included herein in the determination of the
Euro-Rate hereunder),
(iii) imposes, modifies or deems applicable any capital
adequacy or similar requirement (A) against assets (funded or
contingent) of, or credits or commitments to extend credit extended by,
any Lender or any Notional Euro-Rate Funding Office, or (B) otherwise
applicable to the obligations of any Lender or any Notional Euro-Rate
Funding Office under this Agreement, or
(iv) imposes upon any Lender or any Notional Euro-Rate Funding
Office any other condition or expense with respect to this Agreement,
the Notes or its making, maintenance or funding of any Loan or any
security therefor,
and the result of any of the foregoing is to increase the cost to, reduce the
income receivable by, or impose any expense (including loss of margin) upon any
Lender, any Notional Euro-Rate Funding Office or, in the case of clause (iii)
hereof, any Person controlling a Lender, with respect to this Agreement, the
Notes or the making, maintenance or funding of any Loan (or, in the case of any
capital adequacy or similar requirement, to have the effect of reducing the rate
of return on such Lender's or controlling Person's capital, taking into
consideration such Lender's or controlling Person's policies with respect to
capital adequacy) by an amount which such Lender deems in good faith to be
material (such Lender being deemed for this purpose to have made, maintained or
funded each Funding Segment of the Euro-Rate Portion from a Corresponding Source
of Funds), such Lender may from time to time notify the Borrowers of the amount
determined in good faith (using any averaging and attribution methods) by such
Lender (which determination shall be conclusive) to be necessary to compensate
such Lender or such Notional Euro-Rate Funding Office for such increase,
reduction or imposition. Such amount shall be due and payable by the Borrowers
to such Lender five Business Days after such notice is given, together with an
amount equal to interest on such amount from the date two Business Days after
the date demanded until such due date at the Base Rate Option. A certificate by
such Lender as to the amount due and payable under this Section 2.10(a) from
time to time and the method of calculating such amount shall be conclusive
absent manifest error.
(b) Funding Breakage. In addition to all other amounts payable
hereunder, if and to the extent for any reason any part of any Funding Segment
of any Euro-Rate Portion of the Loans becomes due (by acceleration or
otherwise), or is paid, prepaid or converted to another interest rate Option
(whether or not such payment, prepayment or conversion is mandatory or automatic
and whether or not such payment or prepayment is then due), on a day other than
the last day of the corresponding Funding Period (the date such amount so
becomes due, or is so paid, prepaid or converted, being referred to as the
"Funding Breakage Date"), the Borrowers shall pay each Lender an amount
("Funding Breakage Indemnity") determined by such Lender as follows:
(i) first, calculate the following amount: (A) the principal
amount of such Funding Segment of the Loans owing to such Lender which
so became due, or which was so paid, prepaid or converted, times (B)
the greater of (x) zero or (y) the rate of interest applicable to such
principal amount on the Funding Breakage Date minus the Applicable
Funding Rate as of the Funding Breakage Date, times (C) the number of
days from and including the Funding Breakage Date to but not including
the last day of such Funding Period, times (D) 1/360;
(ii) the Funding Breakage Indemnity to be paid by the
Borrowers to such Lender shall be the amount equal to the present value
as of the Funding Breakage Date (discounted at the Applicable Funding
Rate as of such Funding Breakage Date, and calculated on the basis of a
year of 365 or 366 days, as the case may be, and actual days elapsed)
of the amount described in the preceding clause (i) (which amount
described in the preceding clause (i) is assumed for purposes of such
present value calculation to be payable on the last day of the
corresponding Funding Period).
For purposes of this Section, the term "Applicable Funding
Rate" shall mean (i) in the case of any calculation of a Funding Breakage
Indemnity payment with respect to a particular Funding Segment for which the
corresponding Funding Period was originally one year or longer, the Federal
Funds Effective Rate, and (ii) in the case of any calculation of a Funding
Breakage Indemnity payment with respect to a Funding Segment for which the
corresponding Funding Period was originally less than one year, the Euro-Rate.
Such Funding Breakage Indemnity shall be due and payable on
demand, and each Lender shall, upon making such demand, notify the Agent of the
amount so demanded. In addition, the Borrowers shall, on the due date for
payment of any Funding Breakage Indemnity, pay to such Lender an additional
amount equal to interest on such Funding Breakage Indemnity from the Funding
Breakage Date to but not including such due date at the Base Rate Option
applicable to the Loans (calculated on the basis of a year of 360 days and
actual days elapsed).
The amount payable to each Lender under this Section 2.10(b)
shall be determined in good faith by such Lender, and such determination shall
be conclusive absent manifest error.
. In the event that after the date hereof the Loans hereunder are classified as
a "highly leveraged transaction" (an "HLT Classification") by any Governmental
Authority having jurisdiction over any Lender, such Lender may in its discretion
from time to time so notify the Agent, and upon receiving such notice the Agent
shall promptly give notice of such event to the Borrowers, the Issuing Banks and
the Lenders. In such event the parties hereto shall commence negotiations to
agree on revised Facility Fees, interest rates and Applicable Margins hereunder.
If the parties hereto fail to agree on such matters in their respective absolute
discretion within 60 days of the notice given by the Agent referred to above,
then the Required Lenders may at any time or from time to time thereafter direct
the Agent to (a) by ten Business Days' notice to the Borrowers, terminate the
Revolving Credit Commitments, and the Revolving Credit Commitments shall
thereupon terminate, or (b) by ten Business Days' notice to the Borrowers,
declare the Obligations, together with (without duplication) accrued interest
thereon, to be, and the Obligations shall thereupon become, immediately due and
payable without presentment, demand, protest or other notice of any kind, all of
which are hereby waived, and an action therefor shall immediately accrue. The
Lenders acknowledge that an HLT Classification is not an Event of Default or
Potential Default hereunder.
. 2.12. Taxes
(a) Payments Net of Taxes. All payments made by the Borrowers
under this Agreement or any other Loan Document shall be made free and clear of,
and without reduction or withholding, unless required by Law, for or on account
of, any present or future income, stamp or other taxes, levies, imposts, duties,
charges, fees, deductions or withholdings, now or hereafter imposed, levied,
collected, withheld or assessed by any Governmental Authority, and all
liabilities with respect thereto, excluding
(i) in the case of the Agent and each Lender, income or
franchise taxes imposed on the Agent or such Lender by the jurisdiction
under the laws of which the Agent or such Lender is organized or any
political subdivision or taxing authority thereof or therein or as a
result of a connection between such Lender and any jurisdiction other
than a connection resulting solely from this Agreement and the
transactions contemplated hereby, and
(ii) in the case of each Lender, income or franchise taxes
imposed by any jurisdiction in which such Lender's lending offices
which make or book Loans are located or any political subdivision or
taxing authority thereof or therein
(all such non-excluded taxes, levies, imposts, deductions, charges or
withholdings being hereinafter called "Taxes"). If any Taxes are required to be
withheld or deducted from any amounts payable to the Agent or any Lender under
this Agreement or any other Loan Document, the Borrowers shall pay the relevant
amount of such Taxes and the amounts so payable to the Agent or such Lender
shall be increased to the extent necessary to yield to the Agent or such Lender
(after payment of all Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement and the
other Loan Documents. Whenever any Taxes are paid by the Borrowers with respect
to payments made in connection with this Agreement or any other Loan Document,
as promptly as possible thereafter, the Borrowers shall send to the Agent for
its own account or for the account of such Lender, as the case may be, a
certified copy of an original official receipt received by the Borrowers showing
payment thereof.
(b) Indemnity. The Borrowers hereby indemnify the Agent and
each of the Lenders for the full amount of such Taxes and any present or future
claims, liabilities or losses with respect to or resulting from any omission to
pay or delay in paying such Taxes (including any incremental Taxes, interest or
penalties that may become payable by the Agent or such Lender as a result of any
failure to pay such Taxes but excluding any claims, liabilities or losses with
respect to or arising from omissions to pay or delays in payment attributable to
the act or omission of the Agent or any Lender), whether or not such Taxes were
correctly or legally asserted. Such indemnification shall be made within 30 days
from the date such Lender or the Agent, as the case may be, makes written demand
therefor.
(c) Withholding and Backup Withholding. Each Lender that is
incorporated or organized under the laws of any jurisdiction other than the
United States or any state thereof agrees that, on or prior to the date any
payment is due to be made to it hereunder or under any other Loan Document, it
will furnish to the Borrowers and the Agent
(i) two valid, duly completed copies of United States Internal
Revenue Service Form 4224 or United States Internal Revenue
Form 1001 or successor applicable form, as the case may be,
certifying in each case that such Lender is entitled to
receive payments under this Agreement and the other Loan
Documents without deduction or withholding of any United
States federal income taxes and
(ii) a valid, duly completed Internal Revenue Service Form W-8 or
W-9 or successor applicable form, as the case may be, to
establish an exemption from United States backup withholding
tax.
Each Lender which so delivers to the Borrowers and the Agent a Form 1001 or 4224
and Form W-8 or W-9, or successor applicable forms agrees to deliver to the
Borrowers and the Agent two further copies of the said Form 1001 or 4224 and
Form W-8 or W-9, or successor applicable forms, or other manner of
certification, as the case may be, on or before the date that any such form
expires or becomes obsolete or otherwise is required to be resubmitted as a
condition to obtaining an exemption from withholding tax, or after the
occurrence of any event requiring a change in the most recent form previously
delivered by it, and such extensions or renewals thereof as may reasonably be
requested by the Borrowers and the Agent, certifying in the case of a Form 1001
or Form 4224 that such Lender is entitled to receive payments under this
Agreement or any other Loan Document without deduction or withholding of any
United States federal income taxes, unless in any such cases an event (including
any changes in Law) has occurred prior to the date on which any such delivery
would otherwise be required which renders all such forms inapplicable or which
would prevent such Lender from duly completing and delivering any such letter or
form with respect to it and such Lender advises the Borrowers and the Agent that
it is not capable of receiving payments without any deduction or withholding of
United States federal income tax, and in the case of a Form W-8 or W-9,
establishing an exemption from United States backup withholding tax.
. 2.13. Funding by Branch, Subsidiary or Affiliate
(a) Notional Funding. Each Lender shall have the right from
time to time, prospectively or retrospectively, without notice to the Borrowers,
to deem any branch, subsidiary or affiliate of such Lender to have made,
maintained or funded any part of the Euro-Rate Portion at any time. Any branch,
subsidiary or affiliate so deemed shall be known as a "Notional Euro-Rate
Funding Office". Such Lender shall deem any part of the Euro-Rate Portion of the
Loans or the funding therefor to have been transferred to a different Notional
Euro-Rate Funding Office if such transfer would avoid or cure an event or
condition described in Section 2.04(e)(ii) hereof or would lessen compensation
payable by the Borrowers under Section 2.10(a) hereof, or if such Lender
determines in its sole discretion that such transfer would be practicable and
would not have a Material Adverse Effect on such part of the Loans, such Lender
or any Notional Euro-Rate Funding office (it being assumed for purposes of such
determination that each part of the Euro-Rate Portion is actually made or
maintained by or funded through the corresponding Notional Euro-Rate Funding
Office). Notional Euro-Rate Funding Offices may be selected by such Lender
without regard to such Lender's actual methods of making, maintaining or funding
Loans or any sources of funding actually used by or available to such Lender.
(b) Actual Funding. Each Lender shall have the right from time
to time to make or maintain any part of the Euro-Rate Portion by arranging for a
branch, subsidiary or affiliate of such Lender to make or maintain such part of
the Euro-Rate Portion. Such Lender shall have the right to (i) hold any
applicable Note payable to its order for the benefit and account of such branch,
subsidiary or affiliate or (ii) request the Borrowers to issue one or more
substitute promissory notes in the principal amount of such Euro-Rate Portion,
in substantially the form attached hereto as Exhibit A, with the blanks
appropriately filled, payable to such branch, subsidiary or affiliate and with
appropriate changes reflecting that the holder thereof is not obligated to make
any additional Loans to the Borrowers; provided, that if a Lender requests the
Borrowers to issue one or more substitute promissory notes in accordance with
clause (ii) above, the amount of the Note payable to such Lender shall
automatically be reduced accordingly. The Borrowers agree to comply promptly
with any request under subsection (ii) of this Section 2.13(b). If any Lender
causes a branch, subsidiary or affiliate to make or maintain any part of the
Euro-Rate Portion hereunder, all terms and conditions of this Agreement shall,
except where the context clearly requires otherwise, be applicable to such part
of the Euro-Rate Portion and to any note payable to the order of such branch,
subsidiary or affiliate to the same extent as if such part of the Euro-Rate
Portion were made or maintained and such note were a Revolving Credit Note
payable to such Lender's order.
. 2.14. Multicurrency Payments
(a) Dollar Equivalent Amounts.
(i) Calculation of Dollar Equivalent Amounts. Upon each making
and upon each payment of a Revolving Credit Loan denominated in an
Other Currency, the Agent shall calculate the Dollar Equivalent Amount
of such Revolving Credit Loan, as the case may be, and shall provide
written confirmation to the Lenders.
(ii) Recalculation of Dollar Equivalent Amounts. In
determining the Dollar Equivalent Amount of the aggregate Revolving
Credit Extensions of Credit of the Lenders, the Agent may use the
respective Dollar Equivalent Amounts for the Revolving Credit Loans
pursuant to paragraph (i) of this subsection (a), unless such Dollar
Equivalent Amount so calculated exceeds 90% of the Revolving Credit
Commitment Amount, in which case the Agent shall recalculate the Dollar
Equivalent Amount of the Revolving Credit Loans outstanding no less
frequently than once each week. The Agent may recalculate the Dollar
Equivalent Amounts of each of the Revolving Credit Loans as frequently
as it determines to do so in its discretion, PROVIDED, that such
recalculation shall be made for all of the Revolving Credit Loans no
less frequently than once each week during any period when the
aggregate Dollar Equivalent Amount of the aggregate Credit Exposure of
the Lenders exceeds 90% of the Revolving Credit Commitment Amount.
(b) Unavailability.
(i) General. Subject to paragraph (ii) of this
subsection (b), if, in the reasonable judgment of the Agent, any Other
Currency ceases to be available and freely tradable in the London
foreign exchange market, such Other Currency shall cease to be an Other
Currency. The Agent shall give prompt notice to the Borrowers and the
Lenders of such event. In the event that (A) the Agent has determined
that an Other Currency has ceased to be available and freely tradable
in the London foreign exchange market and (B) the Agent has determined
in good faith that such Other Currency is not otherwise available to
the Borrowers, then, on the date any Revolving Credit Loan denominated
in such Other Currency would become due under the terms of this
Agreement (other than as a result of an optional prepayment under
Section 2.07 or of the acceleration of such Revolving Credit Loans
under Section 8.02), the Borrowers shall repay such Revolving Credit
Loans by paying to each Lender an amount in Dollars equal to the amount
determined in good faith by such Lender (which determination shall be
conclusive absent manifest error) necessary to compensate such Lender
for the principal of and accrued interest on such Revolving Credit
Loans and any additional cost, expense or loss incurred by such Lender
as a result of such Revolving Credit Loans being repaid in Dollars
(rather than in the denominated Other Currency).
ARTICLE III
LETTERS OF CREDIT
. 3.01. Letters of Credit
(a) Outstanding Letter of Credit. The Agent or one or more
Issuing Banks previously issued the irrevocable letters of credit set forth on
Schedule 3.01 hereto (the "Outstanding Letters of Credit") pursuant to the
Original Credit Agreements or other agreements between Mellon and
Xxxxxxx-Xxxxxx. The Borrowers, the Lenders, the Agent and the Issuing Banks
hereby agree that on the Closing Date, subject to the terms and conditions
hereof, the Outstanding Letters of Credit shall be deemed to have been issued
hereunder as of the Closing Date.
(b) General. Subject to the terms and conditions of this
Agreement, and relying upon the representations and warranties herein set forth
and upon the agreements of the Lenders set forth in Sections 3.04 and 3.05
hereof, Mellon, such affiliates of Mellon and such other Lender as the Agent may
in its discretion from time to time elect to cause to issue Letters of Credit
(collectively, the "Issuing Banks") shall issue for the account of a Borrower
(an "Account Party") letters of credit (each, as amended, modified or
supplemented from time to time, a "Letter of Credit") at any time or from time
to time on or after the date hereof.
(c) Terms of Letters of Credit. No Account Party shall request
any Letter of Credit to be issued, except within the following limitations: (i)
no Letter of Credit shall be issued on or after the Revolving Credit Maturity
Date, (ii) at the time any Letter of Credit is issued, the aggregate Revolving
Credit Extensions of Credit (after giving effect to issuance of the requested
Letter of Credit) shall not exceed the sum of the Revolving Credit Committed
Amounts of the Lenders at such time, (iii) each Letter of Credit shall have an
expiration date no later than ten days before the Revolving Credit Maturity Date
unless the Revolving Credit Maturity Date shall have been extended by some, but
not all, of the Lenders, and the Nonextending Lenders have not been replaced
pursuant to Section 2.01(e) hereof, in which case each Letter of Credit shall
have an expiration date no later than ten days before the original Revolving
Credit Maturity Date (as such date may previously have been extended by all
Lenders), (iv) no Letter of Credit shall be an evergreen Letter of Credit, other
than (x) such Letters of Credit as requested by an Account Party and approved by
the Required Lenders and by the Issuing Bank issuing such Letter of Credit, and
(y) the irrevocable Letter of Credit issued in favor of National Union Fire
Insurance Company of Pittsburgh, Pennsylvania in the amount of $107,666, and the
irrevocable Letter of Credit issued in favor of Atlantic Mutual Insurance
Company in the amount of $84,444, (v) each Letter of Credit shall be denominated
in Dollars or in an Other Currency, (vi) each Letter of Credit shall be payable
only against sight drafts (and not time drafts) and such other certificates and
documents as may be required by such Letter of Credit, (vii) at any time any
Letter of Credit is issued, the aggregate Letter of Credit Obligations (after
giving effect to issuance of the requested Letter of Credit) shall not exceed
$50,000,000, and (viii) the minimum stated amount of any Letter of Credit shall
be $50,000.
(d) Purposes of Letters of Credit. Each Letter of Credit shall
be satisfactory in form, substance and beneficiary to the Issuing Bank in its
discretion. Letters of Credit may be used by the Account Party for any proper
corporate purpose, including providing credit support for any Indebtedness or
other direct or indirect financing arrangements of the Borrowers as permitted by
this Agreement. The provisions of this Section 3.01(d) represent only an
obligation of the Account Party to the Issuing Banks and the Lenders; the
Issuing Bank shall have no obligation to the Lenders to ascertain the purpose of
any Letter of Credit, and the rights and obligations of the Lenders and the
Issuing Bank among themselves shall not be impaired or affected by a breach of
this Section 3.01(d).
. 3.02. Letter of Credit Fees
(a) Letter of Credit Fee. Xxxxxxx-Xxxxxx shall pay to the
Agent for the account of each Lender a fee (the "Letter of Credit Fee") in an
amount equal to the Applicable Margin determined based on the Leverage Ratio,
for each day from and including the date of issuance of each standby Letter of
Credit to and including the date of expiration or termination of such Letter of
Credit, on the Letter of Credit Undrawn Availability on such day. Such Letter of
Credit Fee shall be due and payable on each Regular Payment Date.
(b) Facing Fee; Administration Fees. Xxxxxxx-Xxxxxx shall pay
to the Agent, for the sole account of the Issuing Bank, for each Letter of
Credit, on the date of issuance of such Letter of Credit, a fee (the "Letter of
Credit Facing Fee") in an amount equal to 0.125% of the stated amount of such
Letter of Credit. In addition, Xxxxxxx-Xxxxxx shall pay to the Agent, for the
sole account of the Issuing Bank, such other administration, maintenance,
amendment, drawing, negotiation and other fees as may be customarily charged by
the Issuing Bank from time to time in connection with letters of credit.
. 3.03. Procedure for Issuance and Amendment of Letters of
Credit
(a) Request for Issuance. An Account Party may from time to
time request, upon at least five Business Days' notice, Mellon to issue (or
cause another Issuing Bank selected by Mellon to issue) a Letter of Credit by:
(i) Delivering to Mellon (or such other Issuing Bank as Mellon
may from time to time designate) and the Agent a written request to
such effect, specifying the date on which such Letter of Credit is to
be issued, the expiration date thereof, and the stated amount thereof,
and
(ii) Delivering to the Issuing Bank an application, in such
form as may from time to time be approved by the Issuing Bank (the
"Letter of Credit Application"), completed to the satisfaction of the
Issuing Bank, together with such other certificates, documents and
other papers and information as the Issuing Bank may request.
The Issuing Bank shall promptly notify the Agent (by telephone or otherwise),
and furnish the Agent with the proposed form of Letter of Credit to be issued.
The Agent shall determine, as of the close of business on the day before such
proposed issuance, whether such proposed Letter of Credit complies with the
limitations set forth in Sections 3.01(b) and 3.01(c) hereof. Unless such
limitations are not satisfied the Agent shall notify the Issuing Bank (in
writing or by telephone promptly confirmed in writing) that the Issuing Bank is
authorized to issue such Letter of Credit. If the Issuing Bank issues a Letter
of Credit, it shall deliver the original of such Letter of Credit to the
beneficiary thereof or as the Account Party shall otherwise direct, and shall
promptly notify the Agent thereof and furnish a copy thereof to the Agent.
(b) Request for Extension or Increase. An Account Party may
from time to time request the Issuing Bank to extend the expiration date of an
outstanding Letter of Credit or increase the stated amount of such Letter of
Credit. Such extension or increase shall for all purposes hereunder be treated
as though the Account Party had requested issuance of a replacement Letter of
Credit (except only that the Issuing Bank may, if it elects, issue a notice of
extension or increase in lieu of issuing a new Letter of Credit in substitution
for the outstanding Letter of Credit).
(c) Issuance, Extension and Amendment Generally.
(i) Upon satisfaction by the Account Party of the conditions
set forth in Section 5.02 and this Article III with respect to the
issuance of a Letter of Credit, the Agent shall cause the Issuing Bank
to issue such Letter of Credit for the Account Party's account.
(ii) The Issuing Bank may amend, modify or supplement Letters
of Credit or Letter of Credit Applications, or waive compliance to any
condition of issuance or payment, without the consent of, and without
liability to, the Agent or any Lender, provided that any such
amendment, modification or supplement that extends the expiration date
or increases the stated amount of an outstanding Letter of Credit shall
be subject to Section 3.03(b) hereof.
(iii) As between the Agent, on the one hand, and the Lenders,
on the other hand, the Agent shall not authorize issuance of any Letter
of Credit if any condition precedent set forth in Section 5.02 has not
been satisfied.
. 3.04. Participating Interests
(a) Generally. Concurrently with the issuance of each Letter
of Credit in accordance with the terms of this Article III, the Issuing Bank
automatically shall be deemed, irrevocably and unconditionally, to have sold,
assigned, transferred and conveyed to each other Lender, and each other Lender
automatically shall be deemed, irrevocably and unconditionally, severally to
have purchased, acquired, accepted and assumed from the Issuing Bank, without
recourse to, or representation or warranty by, the Issuing Bank, an undivided
interest, in a proportion equal to such Lender's Pro Rata share, in all of the
Issuing Bank's rights and obligations in, to or under such Letter of Credit, the
related Letter of Credit Application, the Letter of Credit Reimbursement
Obligations, and all collateral, guarantees and other rights from time to time
directly or indirectly securing the foregoing (such interest of each Lender
being referred to herein as a "Letter of Credit Participating Interest"). On the
date that any Purchasing Lender becomes a party to this Agreement in accordance
with Section 10.14 hereof, Letter of Credit Participating Interests in any
outstanding Letters of Credit held by the Lender from which such Purchasing
Lender acquired its interest hereunder shall be proportionately realotted
between such Purchasing Lender and such transferor Lender (and, to the extent
such transferor Lender is an Issuing Bank, the Purchasing Lender shall be deemed
to have acquired a Letter of Credit Participating Interest from such transferor
Lender to such extent).
(b) Obligations Absolute. Notwithstanding any other provision
hereof, each Lender hereby agrees that its obligation to participate in each
Letter of Credit issued in accordance herewith, its obligation to make the
payments specified in Section 3.05 hereof, and the right of the Issuing Bank to
receive such payments in the manner specified therein, are each absolute,
irrevocable and unconditional and shall not be affected by any circumstance
whatever. The failure of any Lender to make any such payment shall not relieve
any other Lender of its funding obligation hereunder on the date due, but no
Lender shall be responsible for the failure of any other Lender to meet its
funding obligations hereunder.
. 3.05. Drawings and Reimbursements
(a) Account Party's Reimbursement Obligation. Each Account
Party hereby agrees to reimburse the Issuing Bank, by making payment to the
Agent for the account of the Issuing Bank and the Lenders in accordance with
Section 2.09(b) hereof on the date of each payment made by the Issuing Bank
under any Letter of Credit issued on behalf of such Account Party, without
notice, protest or demand, all of which are hereby waived, and an action
therefor shall immediately accrue. To the extent such payment is not timely
made, such Account Party hereby agrees to pay to the Agent, for the account of
the Issuing Bank and the Lenders, on demand, interest on any unreimbursed Letter
of Credit Reimbursement Obligations for each day from and including the date of
such payment by the Issuing Bank until paid (before and after judgment) in
accordance with Section 2.09(c) hereof, at the rate per annum set forth in
Section 2.09(c)(ii) hereof.
(b) Payment by Lenders on Account of Unreimbursed Draws. If
the Issuing Bank makes a payment under any Letter of Credit and is not
reimbursed in full therefor on such payment date in accordance with Section
3.05(a) hereof, the Issuing Bank will promptly notify the Agent thereof (which
notice may be by telephone), and the Agent shall forthwith notify each Lender
(which notice may be by telephone promptly confirmed in writing) thereof. No
later than the Agent's close of business on the date such notice is given, each
such Lender will pay to the Agent, for the account of the Issuing Bank, in
immediately available funds, an amount equal to such Lender's ratable share of
the unreimbursed portion of such payment by the Issuing Bank. If and to the
extent that any Lender fails to make such payment to the Issuing Bank on such
date, such Lender shall pay such amount on demand, together with interest, for
the Issuing Bank's own account, for each day from and including the date of the
Issuing Bank's payment to and including the date of repayment to the Issuing
Bank (before and after judgment) at the rate per annum applicable to such Letter
of Credit Reimbursement Obligations.
(c) Distributions to Participants. If, at any time, after the
Issuing Bank has made a Letter of Credit unreimbursed draw and has received from
any Lender such Lender's share of such Letter of Credit unreimbursed draw, and
the Issuing Bank receives any payment or makes any application of funds on
account of the Letter of Credit Reimbursement Obligation arising from such
Letter of Credit unreimbursed draw, the Issuing Bank will pay to the Agent, for
the account of such Lender, such Lender's Pro Rata share of such payment.
(d) Rescission. If any payment received by the Issuing Bank,
or any application made by the Issuing Bank on account of any Letter of Credit
Reimbursement Obligation shall be rescinded or otherwise shall be required to be
returned or paid over by the Issuing Bank for any reason at any time, whether
before or after the termination of this Agreement (or the Issuing Bank believes
in good faith that such rescission, return or payment is required, whether or
not such matter has been adjudicated), each such Lender will, promptly upon
notice from the Agent or the Issuing Bank, pay over to the Agent for the account
of the Issuing Bank its ratable share of the amount so rescinded, returned or
paid over, together with its ratable share of any interest or penalties payable
with respect thereto.
(e) Equalization. If any Lender receives any payment or makes
any application on account of its Letter of Credit Participating Interest, such
Lender shall forthwith pay over to the Issuing Bank, in Dollars and in like kind
of funds received or applied by it the amount in excess of such Lender's Pro
Rata share of the amount so received or applied.
. The payment obligations of each Account Party under Section 3.05 shall be
absolute and unconditional under any and all circumstances and irrespective of
any setoff, counterclaim or defense to payment that the Account Party may have
or have had against the Issuing Bank, including without limitation any defense
based on the failure of any drawings under any Letter of Credit to conform to
the terms of the Letter of Credit, other than a defense based on a misdirection
of payments intended to be made under a Letter of Credit directly caused by the
negligence of the Issuing Bank, or any other defense based on the gross
negligence or willful misconduct of the Issuing Bank.
. Without limitation of any provision of Section 2.10(a) hereof, each Issuing
Bank and each Lender shall be entitled to the benefit of Section 2.10(a) hereof,
and each Account Party shall pay additional compensation to each Issuing Bank
and each Lender in accordance with such Section 2.10(a), in respect of this
Agreement, the Letters of Credit and Letter of Credit Participating Interests,
to the same extent and in the same manner as if the word "Lender," in each place
in which it occurs in such Section 2.10(a), were replaced with "Lender or
Issuing Bank," and the word "Loan," in each place in which it occurs in such
Section 2.10(a), were replaced with "Loan, Letter of Credit or Letter of Credit
Participating Interest."
. The Account Parties hereby agree, from time to time, to do and perform any and
all acts and to execute any and all further instruments reasonably requested by
the Issuing Bank more fully to effect the purposes of this Agreement and the
issuance of the Letters of Credit hereunder.
. The representations, warranties and covenants by the Account Parties under,
rights and remedies of the Issuing Bank under, any Letter of Credit Application
relating to any Letter of Credit are in addition to, and not in limitation or
derogation of, representations, warranties and covenants by the Account Parties
under, and rights and remedies of the Issuing Bank and the Lenders under, this
Agreement, the Loan Documents, and applicable law. The Account Parties
acknowledge and agree that all rights of the Issuing Bank under any Letter of
Credit Application shall inure to the benefit of each Lender to the extent of
its Commitment Percentage as fully as if such Lender was a party to such Letter
of Credit Application. In the event of any inconsistency between the terms of
this Agreement and any Letter of Credit Application, this Agreement shall
prevail.
. 3.10. Cash Collateral for Letters of Credit
(a) Cash Collateral for Letter of Credit Exposure following
Repayment of Revolving Credit Loans. To the extent that this Agreement or any
other Loan Document requires a payment or prepayment to be made with respect to
the Revolving Credit Loans (whether at maturity, by acceleration or otherwise),
such provision shall be construed as follows: (i) if the amount of such payment
or prepayment is less than or equal to the amount of the outstanding Revolving
Credit Loans and Letter of Credit Reimbursement Obligations at such time, then
such payment or prepayment shall be applied to the payment of principal of and
interest on the outstanding Revolving Credit Loans and Letter of Credit
Reimbursement Obligations (whether or not such payment or prepayment would
require an Account Party to pay any amount under Section 2.10(b) hereof); and
(ii) if the amount of such payment or prepayment is greater than the amount of
outstanding Revolving Credit Loans and Letter of Credit Reimbursement
Obligations at such time, then (A) such payment or prepayment shall be applied
to the principal of and interest accrued on the outstanding Revolving Credit
Loans and Letter of Credit Reimbursement Obligations (whether or not such
payment or prepayment would require an Account Party to pay any amount under
Section 2.10(b) hereof) and (B) the Account Party shall immediately pay to the
Agent cash or cash equivalents for deposit in the Letter of Credit Collateral
Account in an amount equal to the amount by which such payment or prepayment
exceeds the outstanding Revolving Credit Loans and Letter of Credit
Reimbursement Obligations; provided, however, that the amount required to be
paid under clause (B) shall not exceed the aggregate Letter of Credit Exposure
at such time minus the balance in the Letter of Credit Collateral Account at
such time.
(b) Letter of Credit Collateral Account. The Agent shall
maintain in its own name an interest bearing deposit account (the "Letter of
Credit Collateral Account") over which the Agent on behalf of the Lenders shall
have sole dominion and control, and the Account Parties shall have no right to
withdraw or cause the Agent to withdraw any funds deposited therein. The Agent
shall deposit into the Letter of Credit Collateral Account such cash or cash
equivalents as this Agreement or any Loan Document requires to be paid therein.
As security for the payment of all Obligations, each Account Party hereby
grants, conveys, assigns, pledges, transfers to the Agent, and creates in the
Agent's favor for the benefit of the Lenders a continuing Lien on and security
interest in, the Letter of Credit Collateral Account, all amounts from time to
time on deposit therein, all proceeds of the conversion, voluntary or
involuntary, thereof into cash, instruments, securities or other property, and
all other proceeds thereof. Each Account Party hereby represents, warrants,
covenants and agrees that such Lien shall at all times be valid, perfected and
of first priority, subject to no other Lien whatever, and each Account Party
shall take or cause to be taken such actions and execute and deliver such
instruments and documents as may be necessary or, in the Agent's judgment,
desirable to perfect or protect such Lien. No Account Party shall create or
suffer to exist any Lien on any amounts or investment held in the Letter of
Credit Collateral Account other than the Lien in favor of the Agent granted
under this Section 3.10(b).
(c) Application of Funds. Subject to the provisions of Section
8.02(c) hereof, the Agent shall apply funds in the Letter of Credit Collateral
Account: (i) on account of principal of and interest on the Letter of Credit
Reimbursement Obligations as and when the same become due and payable if and to
the extent that an Account Party fails directly to pay the same, and (ii) if no
Letter of Credit Reimbursement Obligations are due and payable and the balance
of the Letter of Credit Collateral Account exceeds the aggregate Letter of
Credit Exposure, the excess shall be applied on account of the other Obligations
secured hereby. If all such Obligations have been paid in full, all Revolving
Credit Commitments terminated and all Letters of Credit have expired, promptly
following demand by the Account Parties, the Agent shall release to the Account
Parties all remaining funds in the Letter of Credit Collateral Account. If an
Event of Default shall have occurred and be continuing, interest earned on funds
in the Letter of Credit Collateral Account shall be held by the Agent as part of
Letter of Credit Collateral Account and may be applied by the Agent as set forth
herein.
. 3.11. Certain Provisions Relating To the Issuing Banks
(a) General. The Issuing Banks shall have no duties or
responsibilities except those expressly set forth in this Agreement and the
other Loan Documents, and no implied duties or responsibilities on the part of
the Issuing Banks shall be read into this Agreement or any Loan Document or
shall otherwise exist.
The duties and responsibilities of the Issuing Banks under
this Agreement and the other Loan Documents shall be mechanical and
administrative in nature, and the Issuing Banks shall not have a fiduciary
relationship in respect of any Lender or any other Person. The Issuing Banks
shall not be liable for any action taken or omitted to be taken by it under or
in connection with this Agreement or any other Loan Document, unless caused by
its own gross negligence or willful misconduct. The Issuing Banks shall not be
under any obligation to ascertain, inquire or give any notice relating to (i)
the performance or observance of any of the terms or conditions of this
Agreement or any other Loan Document on the part of any Account Party, (ii) the
business, operations, condition (financial or otherwise) or prospects of any
Account Party or any other Person, or (iii) the existence of any Event of
Default or Potential Default. The Issuing Banks shall not be under any
obligation, either initially or on a continuing basis, to provide the Agent or
any Lender with any notices, reports or information of any nature, whether in
its possession presently or hereafter, except for such notices, reports and
other information expressly required by this Agreement to be so furnished.
(b) Administration. The Issuing Banks may rely upon any notice
or other communication of any nature (written or oral, including but not limited
to telephone conversations, whether or not such notice or other communication is
made in a manner permitted or required by this Agreement or any Loan Document)
purportedly made by or on behalf of the proper party or parties, and the Issuing
Banks shall not have any duty to verify the identity or authority of any Person
giving such notice or other communication. The Issuing Banks may consult with
legal counsel (including, without limitation, in-house counsel for the Issuing
Bank or in-house or other counsel for any Account Party), independent public
accountants and any other experts selected by it from time to time, and the
Issuing Banks shall not be liable for any action taken or omitted to be taken in
good faith in accordance with the advice of such counsel, accountants or
experts.
(c) Indemnification of Issuing Bank by Lenders. Each Lender
hereby agrees to reimburse and indemnify each Issuing Bank, in its capacity as
such, and its directors, officers, employees and agents (to the extent not
reimbursed by the Account Parties and without limitation of the obligations of
the Account Parties to do so), Pro Rata, from and against any and all amounts,
losses, liabilities, claims, damages, expenses, obligations, penalties, actions,
judgments, suits, costs or disbursements of any kind or nature (including,
without limitation, the fees and disbursements of counsel for the Issuing Bank
or such other Person in connection with any investigative, administrative or
judicial proceeding commenced or threatened, whether or not the Issuing Bank or
such other Person shall be designated a party thereto) that may at any time be
imposed on, incurred by or asserted against the Issuing Bank, in its capacity as
such, or such other Person, as a result of, or arising out of, or in any way
related to or by reason of, this Agreement, any other Loan Document, any
transaction from time to time contemplated hereby or thereby, or any transaction
financed in whole or in part or directly or indirectly with the proceeds of any
Letter of Credit, provided that no Lender shall be liable for any portion of
such amounts, losses, liabilities, claims, damages, expenses, obligations,
penalties, actions, judgments, suits, costs or disbursements resulting solely
from the gross negligence or willful misconduct of the Issuing Bank or such
other Person, as finally determined by a court of competent jurisdiction.
(d) Certain Standby Letters of Credit. Each Issuing Bank
agrees, with respect to Letters of Credit issued on behalf of an Account Party
to a bond trustee or other party as credit and/or liquidity support in
connection with any industrial revenue bond or similar instrument, that it will
not exercise any remedies available to it under any indenture, pledge agreement
or other agreement executed and delivered in connection with the issuance of
such bonds or other instruments, including without limitation any instruction to
accelerate the payment of principal of and interest on such bonds or other
instruments, without the prior written consent of the Agent and the Required
Lenders.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrowers hereby represent and warrant to the Agent and
each Lender as follows:
. Each Borrower is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation, is duly qualified
as a foreign corporation in good standing in each jurisdiction in which failure
to so qualify would have a Material Adverse Effect, and has all requisite power
and authority, corporate or otherwise, to conduct its business, to own its
properties and to execute and deliver, and to perform all of its obligations
under, this Agreement. Schedule 4.01 hereof states as of the date hereof the
jurisdiction of incorporation of each Borrower and each of their respective
Subsidiaries and the jurisdiction in which each Borrower and each of their
respective Subsidiaries is qualified to do business as a foreign corporation.
. The execution, delivery and performance by each Borrower of this Agreement
have been duly authorized by each Borrower and do not and will not (i) require
any consent or approval of the stockholders of any Borrower, (ii) violate in any
material respect any provision of any Law, rule, regulation (including, without
limitation, Regulations T, U or X of the Board of Governors of the Federal
Reserve System), order, writ, judgment, injunction, decree, determination or
award presently in effect having applicability to any Borrower or of the charter
or by-laws of any Borrower, (iii) result in a material breach of or constitute a
material default under any indenture or loan or credit agreement or any other
agreement, lease or instrument to which any Borrower is a party or by which any
of them or their respective properties may be bound or affected, or (iv) result
in, or require, the creation or imposition of any Lien upon or with respect to
any of the material properties now owned or hereafter acquired by any Borrower;
and no Borrower is in default under any such law, rule, regulation, order, writ,
judgment, injunction, decree, determination or award or any such indenture,
agreement, lease or instrument except any such default which is listed on
Schedules 4.06 or 4.09 hereof and which a Borrower is contesting in good faith
and by appropriate proceedings and such contest is operating to stay the
consequences thereof. No Borrower is a party to, or otherwise subject to any
provision contained in, any instrument evidencing indebtedness of any Borrower,
any agreement relating thereto or any other contract or agreement (including its
charter) which limits the amount of, or otherwise imposes restrictions on the
incurring of, obligations of any Borrower of the type set forth herein.
. No consent, approval or other action by or any notice to or filing with any
Governmental Authority is or will be necessary for the valid execution, delivery
or performance by any Borrower of this Agreement.
. This Agreement and each other Loan Document to which any Borrower is a party
has been, or upon its execution and delivery will be, duly executed and
delivered by such Borrower and each constitutes a legal, valid and binding
obligation of such Borrower, enforceable against such Borrower in accordance
with its terms, subject as to enforceability, to bankruptcy, insolvency,
moratorium or other laws and equitable principles relating to or affecting
creditors' rights generally from time to time in effect.
. Xxxxxxx-Xxxxxx has furnished the Agent and each Lender with the following
financial statements, identified by a principal financial officer of
Xxxxxxx-Xxxxxx: (i) consolidated audited balance sheets of Xxxxxxx-Xxxxxx and
its consolidated Subsidiaries as at December 31, 1998 and December 31, 1997, and
consolidated profit and loss and surplus statements of Xxxxxxx-Xxxxxx and its
consolidated Subsidiaries for the fiscal years ended on such dates,
respectively, certified by its certified public accountants; and (ii) a
consolidated balance sheet of Xxxxxxx-Xxxxxx and its consolidated Subsidiaries
as at June 30, 1999, and consolidated profit and loss and surplus statements of
Xxxxxxx-Xxxxxx and its consolidated Subsidiaries for the six months ended on
such date, prepared by Xxxxxxx-Xxxxxx. Such financial statements (including any
related schedules and/or notes) are true and correct in all material respects
(subject, as to interim statements, to changes resulting from audits and
year-end adjustments) and have been prepared in accordance with GAAP and show
all liabilities, direct and contingent, of Xxxxxxx-Xxxxxx and its consolidated
Subsidiaries required to be shown in accordance with such principles. The
balance sheets fairly present the condition of Xxxxxxx-Xxxxxx and its
consolidated Subsidiaries as at the dates thereof, and the profit and loss and
surplus statements fairly present the results of the operations of
Xxxxxxx-Xxxxxx and its consolidated Subsidiaries for the periods indicated.
Except as otherwise disclosed in Xxxxxxx-Xxxxxx'x consolidated financial
statements for six months ended June 30, 1999, copies of which have been
furnished to the Agent and each Lender, there has been no material adverse
change in the business, condition (financial or otherwise) or operations of
Xxxxxxx-Xxxxxx and its consolidated Subsidiaries considered as a whole since
December 31, 1998.
. Other than as described in Schedules 4.06 and 4.09 hereof, there are no
actions, suits, arbitration proceedings or other proceedings pending or, to the
knowledge of any Borrower, threatened against or affecting any Borrower, or any
properties or rights of any Borrower which, if determined adversely to any
Borrower, would have a Material Adverse Effect.
. Each Borrower has good and marketable title to its material real properties
(other than properties which it leases) and good title to all of its other
material properties and assets (other than properties and assets disposed of in
the ordinary course of business and other than as contemplated by this
Agreement), subject to no liens, charges, encumbrances or impediments to
marketability except Permitted Liens. Except as set forth in Schedule 4.07, with
respect to real property of Xxxxxxx-Xxxxxx and its Subsidiaries located in the
State of New Jersey, there are no impediments to marketability arising by reason
of the New Jersey Environmental Cleanup Responsibility Act.
. The Unfunded Liabilities of all Single Employer Plans maintained by
Xxxxxxx-Xxxxxx or any of its subsidiaries do not in the aggregate exceed
$1,000,000 and the Unfunded Liabilities of all Single Employer Plans maintained
by the other members of the Controlled Group do not in the aggregate exceed an
amount which could reasonably be expected to have a Material Adverse Effect.
Except as set forth in Schedule 4.08 neither Xxxxxxx-Xxxxxx nor any other member
of the Controlled Group maintains, or is obligated to contribute to, any
Multiemployer Plan. Each Plan complies in all material respects with all
applicable requirements of law and regulations, no Reportable Event has occurred
with respect to any Plan maintained by Xxxxxxx-Xxxxxx or any of its
Subsidiaries, no Reportable Event has occurred with respect to any Plan
maintained by any other member of the Controlled Group that could reasonably be
expected to have a Material Adverse Effect, neither Xxxxxxx-Xxxxxx nor any
Subsidiary has withdrawn from any Multiemployer Plan or initiated steps to do
so, no other member of the Controlled Group has withdrawn from any Multiemployer
Plan resulting in any withdrawal liability that could reasonably be expected to
have a Material Adverse Effect or initiated steps to do so, and no steps have
been taken to reorganize or terminate any Plan by any member of the Controlled
Group or, to Xxxxxxx Xxxxxx'x knowledge, by any other Person.
. There are no claims, investigations, litigation, administrative proceedings,
notices, requests for information (each an "Environmental Claim"), whether
pending or, to any Borrower's knowledge, threatened, or judgments or orders
asserting violations of applicable federal, state and local environmental,
health and safety statutes, regulations, ordinances, codes, rules, orders,
decrees, directives and standards ("Environmental Laws") or relating to any
toxic or hazardous waste, substance or chemical or any pollutant, contaminant,
chemical or other substance defined or regulated pursuant to any Environmental
Law, including, without limitation, asbestos, petroleum, crude oil or any
fraction thereof ("Hazardous Materials") asserted against Xxxxxxx-Xxxxxx or any
of its Subsidiaries which, in any case, could reasonably be expected to have a
Material Adverse Effect. As of the date hereof, there are no such Environmental
Claims pending, or to any Borrower's knowledge threatened, except as disclosed
on Schedule 4.09. Xxxxxxx Xxxxxx and each of its Subsidiaries have obtained and
are in compliance in all material aspects with all permits, certificates,
licenses, approvals and other authorizations ("Environmental Permits") required
for the operation of their business and have filed all required notifications or
reports relating, in each case, to chemical substances, air emissions, effluent
discharges and the storage, treatment, transport and disposal of Hazardous
Materials. As of the date hereof, Xxxxxxx-Xxxxxx and its Subsidiaries do not
have liabilities exceeding $13,700,000 in the aggregate for all of them with
respect to compliance with applicable Environmental Laws and Environmental
Permits or related to the generation, treatment, storage, disposal, release,
investigation or cleanup of Hazardous Materials, and, to the knowledge of any
Borrower, no facts or circumstances exist which could give rise to such
liabilities with respect to compliance with applicable Environmental Laws and
Environmental Permits and the generation, treatment, storage, release,
investigation or cleanup of Hazardous Materials.
. No Borrower nor any Subsidiary of any Borrower has any liability or obligation
of any nature whatever (whether absolute, accrued, contingent or otherwise,
whether or not due), forward or long-term commitments or unrealized or
anticipated losses from unfavorable obligations, except (a) as disclosed in the
financial statements referred to in Section 4.05 hereof and the Schedules
hereto, (b) matters that, individually or in the aggregate, in a Borrower's
reasonable judgment, could not have a Material Adverse Effect, (c) liabilities,
obligations, commitments and losses incurred after December 31, 1998 in the
ordinary course of business and consistent with past practices, and (d) the
Indebtedness of the Borrowers and their respective Subsidiaries set forth on
Schedule 4.10 hereto.
. No information heretofore, contemporaneously or hereafter provided by or on
behalf of any Borrower or any Subsidiary of any Borrower in writing to either
the Agent or any Lender pursuant to or in connection with any Loan Document or
any transaction contemplated hereby or thereby contains any untrue statement of
a material fact or omits to state any material fact necessary to make such
information (taken as a whole) not misleading at such time in light of the
circumstances in which it was provided. The Borrowers have disclosed to the
Agent and each Lender in the Loan Documents or otherwise every fact or
circumstance known to any Borrower which has, or which in the foreseeable future
will in any Borrower's reasonable judgment have, a Material Adverse Effect.
. No Borrower nor any Subsidiary of any Borrower is engaged, directly or
indirectly, principally, or as one of its important activities, in the business
of extending, or arranging for the extension of credit for the purpose of
purchasing or carrying margin stock. No part of the proceeds of any Letter of
Credit or Loan will be used in a manner which would violate, or result in a
violation of Regulation T, Regulation U or Regulation X. Neither the issuance of
any Letter of Credit or the making of any Loan hereunder nor the use of the
proceeds thereof will violate or conflict with the provisions of, Regulation T,
Regulation U or Regulation X. Following the issuance of any Letter of Credit or
the making of any Loan, less than 25% of the value (as determined by any
reasonable method) of the assets of such Borrower and its Subsidiaries which are
subject to any limitation on sale, pledge, or other restriction hereunder taken
as a whole has been, and will continue to be, represented by margin stock.
. Schedule 4.13 hereof states as of the Closing Date each Subsidiary of each
Borrower and the percentage of outstanding shares owned by each Borrower and by
each Subsidiary. Each Subsidiary of each Borrower is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation, is duly qualified as a foreign corporation in
good standing in each jurisdiction in which failure to so qualify would have a
Material Adverse Effect, and has all requisite power and authority, corporate or
otherwise, to conduct its business and own its properties. The outstanding
shares of each Subsidiary of each Borrower have been duly authorized and validly
issued and are fully paid and nonassessable. The Borrowers and each Subsidiary
thereof own beneficially and of record and have good title to all of the shares
represented by the ownership percentage shown in such Schedule 4.13, free and
clear of any Lien. There are no options, warrants, calls, subscriptions,
conversion rights, exchange rights, preemptive rights or other rights,
agreements or arrangements (contingent or otherwise) which may in any
circumstances now or hereafter obligate any Subsidiary of any Borrower to issue
any shares of its capital stock or any other securities. As of the Closing Date,
no Subsidiary of any Borrower has outstanding any class of preferred stock or
any class of common stock with a prior right to dividends.
. As of the Closing Date, no Borrower nor any Subsidiary thereof is a partner
(general or limited) of any partnership, is a party to any joint venture or owns
(beneficially or of record) any equity in any other Person (including but not
limited to any interest pursuant to which any Borrower or such Subsidiary has or
may in any circumstance have an obligation to make capital contributions to, or
be generally liable for or on account of the liabilities, acts or omissions of
such other Person), except for the interests set forth in Schedule 4.14 hereof.
. No event has occurred and is continuing and no condition exists which
constitutes an Event of Default or Potential Default.
. The policies, binders or self-insurance programs for fire, liability, product
liability, workmen's compensation, vehicular and other insurance currently held
by or on behalf of the Borrowers and each Subsidiary thereof insure their
respective properties and business activities against such losses and risks as
are adequate to protect their respective properties in accordance with customary
industry practice when entered into or renewed. To the best knowledge of the
Borrowers, all such policies, binders and self-insurance programs are in full
force and effect. As of the date hereof, no Borrower nor, to the best knowledge
of any Borrower, any of their respective Subsidiaries has received notice from
any insurer or agent of such insurer that substantial capital improvements or
other expenditures will have to be made in order to continue such insurance and,
to the best knowledge of the Borrowers, no such improvements or expenditures are
required. As of the date hereof, no Borrower nor, to the best knowledge of the
Borrowers, any of their respective Subsidiaries has received notice of
cancellation of any insurance policy or binder.
. Each Borrower and each Subsidiary thereof owns, or is licensed or otherwise
has the right to use, all the material patents, trademarks, service marks, names
(trade, service, fictitious or otherwise), copyrights, technology (including but
not limited to computer programs and software), processes, data bases and other
rights, free from restrictions not usual in such circumstances, necessary to own
and operate its properties and to carry on its business considered as a whole as
presently conducted and presently planned to be conducted without material
conflict with the rights of others.
. Each Borrower and each Subsidiary thereof has filed all federal, state and
local tax returns required to be filed by it and has not failed to pay any
taxes, or interest and penalties relating thereto, on or before the due dates
thereof except for taxes not yet due and except for those the amount or validity
of which is currently being contested in good faith by appropriate proceedings.
Except to the extent that reserves therefor are reflected in the financial
statements, to the best knowledge of the Borrowers (a) there are no material
federal, state or local tax liabilities of any Borrower or any of their
respective Subsidiaries due or to become due for any tax year ended on or prior
to the Closing Date relating to any Borrower or any of their respective
Subsidiaries, whether incurred in respect of or measured by the income of the
Borrower or any of its Subsidiaries, which are not properly reflected in the
financial statements delivered pursuant to Section 4.05, and (b) there are no
material claims pending, proposed or threatened against any Borrower or any of
their respective Subsidiaries for past federal, state or local taxes, except
those, if any, as to which proper reserves in accordance with GAAP are reflected
in such financial statements.
. Each Borrower has reviewed its operations and those of its Subsidiaries with a
view to assessing whether its businesses, or the businesses of any of its
Subsidiaries, will be vulnerable to a Year 2000 Problem or will be vulnerable to
the effects of a Year 2000 Problem suffered by any of the Borrowers' or any of
their respective Subsidiaries' major commercial counter-parties. Each Borrower
represents and warrants that it has a reasonable basis to believe that no Year
2000 Problem will cause a Material Adverse Effect.
ARTICLE V
CONDITIONS OF LENDING
Credit. The obligation of each Lender to make Loans and the obligation of the
Issuing Banks to issue Letters of Credit on the Closing Date are subject to the
satisfaction, immediately prior to or concurrently with the making of such Loan
or issuance of such Letter of Credit, of the following conditions precedent, in
addition to the conditions precedent set forth in Section 5.02 hereof:
(a) Agreement; Notes. The Agent shall have received an
executed counterpart of this Agreement for each Lender, duly executed by each
Borrower, and an executed Revolving Credit Note for each Lender, conforming to
the requirements hereof, duly executed on behalf of each Borrower.
(b) Opinion of Counsel. There shall have been delivered to the
Agent an opinion of counsel of each Borrower, dated the Closing Date in
substantially the form attached hereto as Exhibit B.
(c) No Default. On the Closing Date, no Potential Default or
Event of Default shall have occurred or be continuing.
(d) Representations and Warranties. On the Closing Date, all
representations and warranties of each Borrower contained herein or otherwise
made in writing in connection herewith shall be true and correct with the same
force and effect as though such representations and warranties had been made on
and as of such time.
(e) Corporate Proceedings. The Agent shall have received, with
a counterpart for each Lender, certificates by the Secretary or Assistant
Secretary of each Borrower dated as of the Closing Date as to (i) true copies of
the articles of incorporation and by-laws (or other constituent documents) of
each Borrower in effect on such date, (ii) true copies of all corporate action
taken by each Borrower relative to this Agreement and the other Loan Documents
and (iii) the incumbency and signature of the respective officers of each
Borrower executing this Agreement and the other Loan Documents to which each
Borrower is a party, together with satisfactory evidence of the incumbency of
such Secretary or Assistant Secretary. The Agent shall have received, with a
copy for each Lender, certificates from the appropriate Secretaries of State or
other applicable Governmental Authorities dated not more than 30 days before the
Closing Date showing the good standing of each Borrower in its state of
incorporation.
(f) Financial Statements. The Agent shall have received, with
a counterpart for each Lender, copies of the consolidated financial statements
referred to in Section 4.05 hereof.
(g) Fees, Expenses, etc. All fees and other compensation
required to be paid to the Agent or the Lenders pursuant hereto or pursuant to
any other written agreement on or prior to the Closing Date shall have been paid
or received.
(h) Financial Forecast. The Agent shall have received the
five-year financial forecast of Xxxxxxx-Xxxxxx, including balance sheets, income
statements and cash flow statements, and shall have determined, in its absolute
discretion, that the five-year forecast is satisfactory.
(i) Environmental Reports. The Agent shall have received
appropriate environmental reports with respect to the properties of
Xxxxxxx-Xxxxxx and its Subsidiaries, in form and substance satisfactory to the
Agent, and shall have determined in its absolute discretion that such reports
are satisfactory.
(j) Market Conditions. No change in the financial or capital
market conditions generally shall have occurred that, in the judgment of the
Agent, would materially impair the Agent's ability to syndicate the Loans to
other Lenders.
(k) Material Adverse Change. No material adverse change in the
business, condition (financial or otherwise), operations or prospects of
Xxxxxxx-Xxxxxx and its consolidated Subsidiaries considered as a whole has
occurred since December 31, 1998.
(l) No Litigation. No actions, suits, arbitration proceedings
or other proceedings pending or, to the knowledge of any Borrower, threatened
against or affecting any Borrower, or any properties or rights of any Borrower
which, if determined adversely to any Borrower, would have a Material Adverse
Effect, or which seeks to challenge or prevent or declare illegal the
transactions contemplated by this Agreement or any of the Loan Documents.
(m) Additional Matters. The Agent shall have received such
other certificates, opinions, documents and instruments as may be requested by
any Lender. All corporate and other proceedings, and all documents, instruments
and other matters in connection with the transactions contemplated by this
Agreement and the other Loan Documents shall be satisfactory in form and
substance to the Agent, each Lender and their counsel. The Agent, each Lender
and their counsel shall have received all such counterpart originals or
certified or other copies of such documents as the Agent or such counsel shall
reasonably request.
(n) Original Credit Agreements. The Original Credit Agreements
shall have been terminated and shall be of no further force and effect, and all
amounts outstanding thereunder shall have been paid in full.
(o) Guarantees. The Agent shall have received a Guaranty and
Suretyship Agreement in substantially the form of Exhibit E hereto (the
"Xxxxxxx-Xxxxxx Guaranty"), duly executed by Xxxxxxx-Xxxxxx and (ii) a Guaranty
and Suretyship Agreement in substantially the form of Exhibit F hereto (the
"Subsidiary Guarantees"), duly executed by each Subsidiary Borrower and each
Significant Subsidiary.
. The obligation of each Lender to make any Loan (including the initial Loans)
and the obligation of the Issuing Banks to issue Letters of Credit (including
the initial Letter of Credit issued on or after the Closing Date) are subject to
performance by each Borrower of its obligations to be performed hereunder or
under the other Loan Documents on or before the date of such Loan or issuance of
such Letter of Credit, satisfaction of the conditions precedent set forth herein
and in the other Loan Documents and to satisfaction of the following further
conditions precedent:
(a) Notice. Appropriate notice of such Loan or Letter of
Credit shall have been given by the applicable Borrower as provided in Article
II or Article III, respectively, hereof.
(b) Representations and Warranties. On the date of the making
of such Loan or the issuance of such Letter of Credit, as the case may be, all
representations and warranties of each Borrower contained herein or otherwise
made in writing in connection herewith shall be true and correct (except with
respect to representations and warranties which specifically refer to an earlier
date, which shall be true and correct in all material respects as of such
earlier date) with the same force and effect as though such representations and
warranties had been made on and as of such time.
(c) No Defaults. No Event of Default or Potential Default
shall have occurred and be continuing on such date or after giving effect to the
Loans requested to be made or the Letters of Credit requested to be issued on
such date.
(d) No Violations of Law, etc. Neither the making nor use of
the Loans or Letters of Credit shall cause any Lender to violate or conflict
with any Law.
Each request by any Borrower for any Loan (including the initial Loans) or
Letter of Credit shall constitute a representation and warranty by such Borrower
that the conditions set forth in this Section 5.02 have been satisfied as of the
date of such request. Failure of the Agent to receive notice from the applicable
Borrower to the contrary before such Loan is made or Letter of Credit is issued,
shall constitute a further representation and warranty by such Borrower that the
conditions referred to in this Section 5.02 have been satisfied as of the date
such Loan is made or Letter of Credit is issued.
ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Loan or Letter of Credit is outstanding, any
Obligation is outstanding, the Issuing Bank has any obligation to issue, or the
Lenders have any obligation to participate in, Letters of Credit, or the Lenders
have any obligation to make any Loan:
. 6.01. Basic Reporting Requirements
(a) Annual Audit Reports. Xxxxxxx-Xxxxxx shall deliver to the
Agent, with a copy for each Lender, as soon as available, but in any event
within 90 days after the last day of each of its fiscal years, a consolidated
balance sheet of Xxxxxxx-Xxxxxx as at such last day of the fiscal year, and the
related consolidated statement of income and retained earnings and changes in
financial position, for such fiscal year, each prepared in accordance with GAAP
(except as required by any change in accounting principles or concurred in by
Xxxxxxx-Xxxxxx'x independent certified public accountants), in reasonable
detail, and, as to the financial statements, certified without qualification
(other than relating to a change in accounting principles with which such
accountants concur and other than any other qualification which the Agent and
the Required Lenders deem, in their reasonable judgment, to be immaterial) by
PriceWaterhouseCoopers or another firm of independent certified public
accountants of nationally recognized standing as fairly presenting the financial
position and the results of operations of Xxxxxxx-Xxxxxx as at and for the year
ending on such date and as having been prepared in accordance with GAAP.
(b) Quarterly Consolidated Reports. Xxxxxxx-Xxxxxx shall
deliver to the Agent, with a copy for each Lender, as soon as available, but in
any event within 60 days after the end of each of Xxxxxxx-Xxxxxx'x fiscal
quarterly periods, a consolidated balance sheet of Xxxxxxx-Xxxxxx as of the last
day of such quarter and consolidated statement of income and retained earnings
and changes in financial position, for such quarter, and on a comparative basis
figures for the corresponding period of the immediately preceding fiscal year,
all in reasonable detail, each such statement to be certified in a certificate
of a Responsible Officer of Xxxxxxx-Xxxxxx, as the case may be, as fairly
presenting the financial position and the results of operations of
Xxxxxxx-Xxxxxx as at such date and for such quarter and as having been prepared
in accordance with GAAP (subject to year-end audit adjustments).
(c) Quarterly Compliance Certificates. Xxxxxxx-Xxxxxx shall
deliver to the Agent, with a copy for each Lender, a quarterly compliance
certificate in substantially the form set forth as Exhibit C hereto, duly
completed and signed by a Responsible Officer of Xxxxxxx-Xxxxxx, concurrently
with the delivery of the financial statements referred to in subsections (a) and
(b) of this Section 6.01. Each Quarterly Compliance Certificate shall be
accompanied by a certificate, duly completed and signed by a Responsible Officer
of Xxxxxxx-Xxxxxx providing, as of the end of the preceding calendar quarter,
the information contained in Schedule 7.09 hereto.
(d) Certain Other Reports and Information. Promptly upon their
becoming available to Xxxxxxx-Xxxxxx, Xxxxxxx-Xxxxxx shall deliver to the Agent,
with a copy for each Lender, a copy of (i) all regular or special reports,
registration statements and amendments to the foregoing which Xxxxxxx-Xxxxxx or
any Subsidiary of Xxxxxxx-Xxxxxx shall file with the Securities and Exchange
Commission (or any successor thereto) or any securities exchange other than
reports required by Section 16 of the Securities Exchange Act of 1934 which
Xxxxxxx-Xxxxxx files as an accommodation for its officers, and (ii) all reports,
proxy statements, financial statements and other written information distributed
by Xxxxxxx-Xxxxxx to its stockholders or bondholders.
(e) Further Information. Xxxxxxx-Xxxxxx will promptly furnish
to the Agent, with a copy for each Lender, such other information and in such
form as the Agent or any Lender may reasonably request from time to time.
(f) Notice of Certain Events. Promptly upon becoming aware of
any of the following, Xxxxxxx-Xxxxxx shall give the Agent notice thereof,
together with a written statement of a Responsible Officer of Xxxxxxx-Xxxxxx
setting forth the details thereof and any action with respect thereto taken or
proposed to be taken by such Borrower:
(i) Any Event of Default or Potential Default; provided,
however, that Xxxxxxx-Xxxxxx shall not be required to deliver notice of
any violation of any covenant contained in Article VI hereof during the
30 days immediately following the onset of such violation if
Xxxxxxx-Xxxxxx reasonably believes that such violation will be cured
within such 30 day period;
(ii) Any change in the business, operations or condition
(financial or otherwise) of Xxxxxxx-Xxxxxx and its Subsidiaries taken
as a whole which could have a Material Adverse Effect.
(iii) Any pending or threatened action, suit, proceeding or
investigation by or before any Governmental Authority against or
affecting Xxxxxxx-Xxxxxx or any Subsidiary of Xxxxxxx-Xxxxxx, except
for matters that if adversely decided, individually or in the
aggregate, could not have a Material Adverse Effect.
(iv) Any violation, breach or default by Xxxxxxx-Xxxxxx or any
Subsidiary of Xxxxxxx-Xxxxxx of or under any agreement or instrument
material to the business, operations or condition (financial or
otherwise) of Xxxxxxx-Xxxxxx and its Subsidiaries taken as a whole
which could in the reasonable judgment of Xxxxxxx-Xxxxxx have a
Material Adverse Effect.
(v) Any Termination Event. Such notice shall be accompanied
by: (A) a copy of any notice, request, return, petition or other
document received by Xxxxxxx-Xxxxxx or any Controlled Group Member from
any Person, or which has been or is to be filed with or provided to any
Person (including without limitation the Internal Revenue Service, PBGC
or any Plan participant, beneficiary, alternate payee or employer
representative), in connection with such Termination Event, and (B) in
the case of any Termination Event with respect to a Plan, the most
recent Annual Report (5500 Series), with attachments thereto, and the
most recent actuarial valuation report, for such Plan.
The Agent shall promptly deliver to each Lender copies of all
notices received pursuant to this Section 6.01.
. Each Borrower covenants that upon reasonable notice it will permit any Person
reasonably designated by the Agent or any Lender in writing and who is acting on
behalf of the Agent or any Lender pursuant to this Agreement, at the Agent's or
such Lender's expense, to visit any of the properties of such Borrower and to
discuss the affairs, finances and accounts of any of such corporations with the
principal officers of such Borrower and with such Borrower's independent
accountants, all at such reasonable times and as often as the Agent or any
Lender may reasonably request. Such Person shall contact a Borrower's
independent accountants only through such Borrower, and not directly. Each
Borrower shall have the right to have an officer, employee or other
representative present during any discussion relating to such Borrower with such
Borrower's independent accountants.
. Each Borrower covenants that it will pay and discharge and will cause each of
its Subsidiaries to pay and discharge all taxes, assessments and governmental
charges or levies imposed upon it or upon its income or profits, or upon any
properties belonging to it, and all lawful claims which, if unpaid, would become
a Lien upon any of its properties; provided that no Borrower nor any Subsidiary
of any Borrower shall be required to pay any such tax, assessment, charge, levy
or claim which is being contested in good faith and by appropriate proceedings.
. Each Borrower and each Significant Subsidiary covenants that it will (a)
preserve and maintain its corporate existence, and its material rights,
franchises and privileges in the jurisdiction of its incorporation, and (b)
qualify and remain qualified as a foreign corporation in each jurisdiction in
which failure to so qualify would have a Material Adverse Effect.
. Each Borrower covenants that it and each of its Subsidiaries will comply with
the requirements of all applicable Laws (including without limitation
Environmental Laws), noncompliance with which would have a Material Adverse
Effect upon any Borrower's ability to perform its obligations under this
Agreement, unless the same is being contested in good faith and by appropriate
proceedings and such contest shall operate to stay the Material Adverse Effect
of any such noncompliance.
. Each Borrower covenants that it and each of its Subsidiaries will maintain
insurance with responsible and reputable insurance companies in such amounts,
with such deductibles and covering such risks as is usually maintained by
companies engaged in similar businesses and owning similar properties.
. Each Borrower covenants that it will deliver to the Agent, with a copy for
each Lender, promptly upon the request by the Agent or any Lender, copies of all
Environmental Claims made or brought against any Borrower or any Subsidiary of
any Borrower. Xxxxxxx-Xxxxxx covenants to provide to the Agent, with a copy for
each Lender, promptly upon a request by the Agent or any Lender, a report
describing the principal facts and circumstances known to Xxxxxxx-Xxxxxx
underlying all such Environmental Claims, together with Xxxxxxx-Xxxxxx'x then
current estimate as to its probable liability with respect thereto.
Xxxxxxx-Xxxxxx covenants that it will deliver to the Agent, with a copy for each
Lender, concurrently with the financial statements delivered pursuant to Section
6.01 hereof, a report describing the principal facts and circumstances known to
Xxxxxxx-Xxxxxx underlying each Environmental Claim made or brought against
Xxxxxxx-Xxxxxx or any of its Subsidiaries during such quarter and providing an
update of the principal facts and circumstances known to Xxxxxxx-Xxxxxx
underlying each Environmental Claim made or brought against Xxxxxxx-Xxxxxx or
any of its Subsidiaries during a prior quarter and not, as of the end of the
applicable quarter, terminated or resolved. Xxxxxxx-Xxxxxx covenants that it
shall make available for meetings with the Agent or any Lender and its
consultants and advisors appropriate personnel employed by or consultants
retained by Xxxxxxx-Xxxxxx and its Subsidiaries having knowledge of such
matters. With respect to each Environmental Claim, Xxxxxxx-Xxxxxx shall make
available to the Agent and each Lender for inspection and copying such
historical and operational information, copies of correspondence with
Governmental Authorities and environmental audits or reviews regarding
properties, products and wastes of Xxxxxxx-Xxxxxx or its Subsidiaries as are
within its possession, custody or control. The Agent shall promptly deliver to
each Lender copies of all notices received pursuant to this Section 6.07.
. Each Borrower shall, and shall cause each of its Subsidiaries to, keep and
maintain in full force and effect all Governmental Actions necessary in
connection with the operation of its business.
. Each Borrower shall, and shall cause each of its Subsidiaries to, maintain or
cause to be maintained in good repair, working order and condition the material
properties now or hereafter owned, leased or otherwise possessed by it and shall
make or cause to be made all needful and proper repairs, renewals, replacements
and improvements thereto so that they are able to serve the functions for which
they are currently being used.
. No Borrower shall, nor shall it permit any of its Subsidiaries to, conflict
with, be in conflict with, or be or remain subject to any liability (contingent
or otherwise) on account of any conflict with
(a) any Law,
(b) its articles of incorporation of by-laws (or other
constituent documents), or
(c) any agreement or instrument to which it is party or by
which any of them or any of their respective Subsidiaries is a party or by which
any of them or any of their respective properties (now owned or hereafter
acquired) may be subject or bound
except for matters which, individually or in the aggregate, could not have a
Material Adverse Effect.
. Each Borrower shall, and shall cause each of its Subsidiaries to, keep proper
books of record and account in accordance with normal business practice in which
full and appropriate entries shall be made of all dealings or transactions in
relation to its business and activities.
. The Borrowers shall apply the proceeds of Loans hereunder (i) to fund
acquisitions permitted by Section 7.06 hereof, (ii) for general working capital
and corporate purposes, and (iii) for Xxxxxxx-Xxxxxx to repurchase its stock,
subject to compliance with the terms of this Agreement. The Borrowers shall not
use the proceeds of any Loans hereunder directly or indirectly for any unlawful
purpose or in any manner inconsistent with any other provision of any Loan
Document.
. The Borrowers and their respective Subsidiaries considered as a whole shall
continue to engage in their businesses substantially as conducted and operated
during the present and preceding fiscal year, and the Borrowers shall not, and
shall not permit any of their respective Subsidiaries to, (a) make any material
change in its or their respective businesses, or in the nature of its or their
respective operations, (b) liquidate or dissolve itself (or suffer any
liquidation or dissolution) or (c) convey, sell, assign, transfer or otherwise
dispose of any capital stock of or other ownership interest in any Significant
Subsidiaries held by it.
. The Borrowers shall not, and shall not suffer any of their respective
Subsidiaries to, file or consent to the filing of any consolidated income tax
return with any Person other than the Borrowers and their respective
Subsidiaries.
. The Borrowers shall not, and shall not suffer any of their respective
Subsidiaries to, change its fiscal year or fiscal quarter except in accordance
with GAAP.
. Each Borrower shall take all actions necessary and commit adequate resources
to assure that its computer-based and other systems (and those of all its
Subsidiaries) are able to effectively process data, including dates before, on
and after January 1, 2000, to avoid experiencing any Year 2000 Problem that
could reasonably be expected to cause a Material Adverse Effect.
. 6.17. ERISA Compliance
With respect to any Plan neither any Borrower nor any
Subsidiary of any Borrower shall:
(a) engage in any "prohibited transaction" (as such term is
defined in Section 406 of ERISA or Section 4975 of the Code) for which a civil
penalty pursuant to Section 502(i) of ERISA or a tax pursuant to Section 4975 of
the Code in excess of $1,000,000 could be imposed;
(b) permit to be incurred any "accumulated funding deficiency"
(as such term is defined in Section 302 of ERISA) in excess of $1,000,000,
whether or not waived;
(c) permit the occurrence of any Termination Event which could
result in a liability to any member of the Controlled Group in excess of
$1,000,000;
(d) be an "employer" (as such term is defined in Section 3(5)
of ERISA) required to contribute to any Multiemployer Plan or a "substantial
employer" (as such term is defined in Section 4001(a)(2) of ERISA) required to
contribute to any Multiemployer Plan; or
(e) permit the establishment, or amendment of any Plan or fail
to comply with the applicable provisions of ERISA and the Code with respect to
any Plan which could reasonably be expected to result in liability to any member
of the Controlled Group which, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
6.18. Additional Subsidiary Guarantors. Xxxxxxx-Xxxxxx will
cause each Person which is or becomes a Significant Subsidiary or Subsidiary
Borrower (other than a Subsidiary which is not organized under the laws of the
United States or a state or political subdivision jurisdiction thereof) to
become a Subsidiary Guarantor as promptly as practicable after (but in any event
within 90 days of) the date such Person first satisfies the foregoing criteria,
by causing such Subsidiary to execute and deliver to the Agent a Subsidiary
Guaranty, together with all documents which the Agent may reasonably request
relating to the existence of such Subsidiary, the corporate authority for and
the validity of such Subsidiary Guaranty, and any other matters reasonably
determined by the Agent to be relevant thereto, all in form and substance
reasonably satisfactory to the Agent.
ARTICLE VII
NEGATIVE COVENANTS
So long as any Loan or Letter of Credit is outstanding, any
Obligation is outstanding, the Issuing Bank has any obligation to issue, or the
Lenders have any obligation to participate in, Letters of Credit, or the Lenders
have any obligation to make any Loan:
7.01. Financial Covenants. Xxxxxxx-Xxxxxx covenants that it
will not:
(a) Leverage Ratio. Permit the Leverage Ratio at any
time to exceed 3.0:1.0.
(b) Interest Coverage Ratio. Permit the Interest Coverage
Ratio at any time to be less than 3.0:1.0.
(c) Consolidated Net Worth. Permit the Consolidated Net Worth
at any time to be less than $215,000,000 plus an amount to be added on the last
day of each quarter during the term of this Agreement equal to 50% of the
Consolidated Net Income (excluding net losses) less 50% of any after-tax gain
associated with sales by Xxxxxxx-Xxxxxx of real estate (to the extent included
in Consolidated Net Income), for the immediately preceding quarter, beginning
December 31, 1999. For purposes of calculation of Consolidated Net Worth
pursuant to this Section 7.01(c), Xxxxxxx-Xxxxxx'x repurchase of its stock in
the maximum aggregate amount of $47,500,000 shall not be considered a reduction
of Consolidated Net Worth.
7.02. Liens. No Borrower will, nor will it permit any of its
Subsidiaries to create, or assume or permit to exist, any Lien on any of the
properties or assets of any Borrower or any of their respective Subsidiaries,
whether now owned or hereafter acquired except:
(a) ERISA Liens in an aggregate amount at any time outstanding
which, when added to the amount of any Liens outstanding at such time which
arose after the Closing Date and secure Indebtedness of any Subsidiaries of any
Borrower, does not exceed 10% of the Consolidated Net Worth of Xxxxxxx-Xxxxxx;
(b) Purchase money mortgages or purchase money security
interests, conditional sale arrangements and other similar security interests,
on property or assets acquired by any Borrower or any Subsidiary of any Borrower
simultaneously (hereinafter referred to individually as a "Purchase Money
Security Interest") or replacements thereof, upon incurring Indebtedness the
proceeds of which are used to acquire such property or asset; provided, however,
that:
(i) The transaction in which any Purchase Money Security
Interest is proposed to be created is not then prohibited by this
Agreement;
(ii) Any Purchase Money Security Interest shall attach only to
the property or asset so acquired in such transaction or any addition
thereto or replacement thereof and shall not extend to or cover any
other assets or properties of any Borrower or any of their respective
Subsidiaries; and
(iii) The Indebtedness secured or covered by any Purchase
Money Security Interest together with any other Indebtedness secured by
the property or asset acquired shall not exceed 100% of the lesser of
the cost or fair market value of the property or asset acquired and
shall not be renewed, extended or prepaid from the proceeds of any
borrowing by any Borrower or any of their respective Subsidiaries;
(c) Liens on the property or assets of any Borrower and its
Subsidiaries in existence immediately prior to the Closing Date as listed on
Schedule 7.02 hereto, provided that no such Lien is spread to cover any
additional property after the Closing Date and the amount of Indebtedness
secured thereby is not increased, provided that the maturity of such
Indebtedness may be extended or renewed;
(d) Liens on all or any part of the property or the assets of
any Subsidiary in favor of any Borrower or any other Subsidiary as security for
the Indebtedness owing to any Borrower or such other Subsidiary of such
Borrower; and
(e) Permitted Liens.
7.03. Indebtedness. No Borrower will, nor will it permit any
of its Subsidiaries to, create incur or suffer to exist any Indebtedness,
except:
(a) the Obligations;
(b) Indebtedness existing (or committed to) on the date
hereof and described on Schedule 7.03 hereto;
(c) Indebtedness which in the aggregate for all Subsidiaries
of Xxxxxxx-Xxxxxx at any time does not exceed $25,000,000; and
(d) Deemed Debt which in the aggregate at any time does not
exceed $50,000,000.
. No Borrower will, nor will it permit any of its Subsidiaries to enter into any
agreement or covenant on or after the Closing Date which would directly and
expressly limit or restrict any Borrower's ability to grant any Lien to the
Lenders or to incur additional Indebtedness to the Lenders, whether pursuant to
this Agreement or otherwise (it being understood and agreed that this Section
7.04 is not intended to restrict the Borrowers from entering into any covenant
or agreement limiting generally the ability of any Borrowers from incurring
Indebtedness).
. No Borrower will, nor will it permit any of its Subsidiaries to modify, amend,
supplement or terminate, or agree to modify, amend, supplement or terminate any
of their respective certificates of incorporation or by-laws, in any manner
which would have a material adverse effect upon the interests of the Agent or
any of the Lenders hereunder or under any other agreement to which the Agent or
any Lender is a party.
. No Borrower will, nor will it permit any of its Subsidiaries to merge or
consolidate with any Person or acquire all or substantially all of the assets or
any of the capital stock of any Person; provided, however, that any Borrower or
any Subsidiary thereof may merge or consolidate with another Person or acquire
all or substantially all of the assets or capital stock of another Person if (a)
the Borrower or the Subsidiary, as the case may be, is the surviving
corporation, (b) the Person whose stock or assets are being acquired or is
merging into a Borrower or any Subsidiary of a Borrower is in a similar line of
business as such Borrower, as determined by the Agent, (c) Xxxxxxx-Xxxxxx will
be in compliance, on a proforma basis, both before and after the merger,
consolidation or acquisition, with each of the financial covenants in Section
7.01, and (d) after giving effect to any such merger, consolidation or
acquisition, no Potential Default or Event of Default would then exist.
. No Borrower will, nor will it permit any of its Subsidiaries to be or become
subject to any restriction of any nature (whether arising by operation of Law,
by agreement, by its articles of incorporation, by-laws or other constituent
documents of any Subsidiary of such Borrower, or otherwise) on the right of any
Subsidiary of any Borrower from time to time to (w) declare and pay Stock
Payments with respect to capital stock owned by the Borrower or any Subsidiary
of any Borrower, (x) pay any indebtedness, obligations or liabilities from time
to time owed to any Borrower or any Subsidiary of any Borrower, (y) make loans
or advances to any Borrower or any Subsidiary of any Borrower, or (z) transfer
any of its properties or assets to any Borrower or any Subsidiary of any
Borrower, except:
(a) Restrictions pursuant to the Loan Documents;
(b) Legal restrictions of general applicability under the
corporation law under which such Subsidiary is incorporated, and fraudulent
conveyance or similar laws or general applicability for the benefit of creditors
of such Subsidiary generally;
(c) With respect to clause (z) above: (i) nonassignment
provisions of any executory contract or of any lease by any Borrower or such
Subsidiary as lessee, and (ii) restrictions on transfer of property subject to a
Permitted Lien for the benefit of the holder of such Permitted Lien; and
(d) Any restriction contained in an agreement or instrument
applicable to a Subsidiary acquired by any Borrower or any Subsidiary of any
Borrower after the date hereof, which restriction was not entered into in
connection with or in contemplation of such acquisition, and which restriction
is not applicable to any Person, property or assets, other than such acquired
Subsidiary and its property and assets.
. No Borrower will, nor will it permit any of its Subsidiaries
to lease, sell, transfer or otherwise dispose of its property, or permit any
Subsidiary to lease, sell, transfer or otherwise dispose of its property to any
other Person except for (a) sales of Investments in the ordinary course of
business by a Borrower or any Subsidiary of a Borrower, including without
limitation, transactions undertaken for the purpose of restructuring all or a
part of the portfolio of investments owned by such Borrower or Subsidiary
thereof and (b) leases, sales, transfers or other dispositions of its property
that together with all other property of its Subsidiaries previously leased,
sold or disposed of (other than Investments sold in the ordinary course of
business by Subsidiaries of Borrowers) as permitted by this Section 7.08 since
the date hereof do not constitute a Substantial Portion of the property of
Xxxxxxx-Xxxxxx and its consolidated Subsidiaries.
. No Borrower will, nor will it permit any of its Subsidiaries
to be or become subject to or bound by any Guaranty Equivalent, or agree, become
or remain liable (contingently or otherwise) to do any of the foregoing, except:
(a) Guaranty Equivalents existing on the date hereof
and listed in Schedule 7.09;
(b) Guaranty Equivalents of Xxxxxxx-Xxxxxx in
respect of indebtedness of any of its Subsidiaries;
(c) Contingent liabilities arising from the
endorsement of negotiable or other instruments for deposit or collection or
similar transactions in the ordinary course of business; and
(d) Indemnities by the Borrowers or any of their
respective Subsidiaries of the liabilities of its directors or officers in their
capacities as such pursuant to provisions presently contained in their articles
of incorporation or by-laws (or other constituent documents) or as permitted by
Law; and
(e) the Xxxxxxx-Xxxxxx Guaranty and the Subsidiary
Guarantees.
. No Borrower will, nor will it permit any of its Subsidiaries
to enter into or suffer to remain in effect any transaction to which any
Borrower or any Subsidiary of any Borrower is a party involving the sale,
transfer or other disposition by such Borrower or any Subsidiary of any Borrower
of any property (now owned or hereafter acquired), with a view directly or
indirectly to the leasing back of any part of the same property or any other
property used for the same or a similar purpose or purposes, or agree, become or
remain liable (contingently or otherwise) to do any of the foregoing
(collectively, "Sale-Leasebacks"), except Sale-Leasebacks to which any Borrower
or any Subsidiary of any Borrower is a party that will not result in sales,
transfers or other dispositions of more than $2,500,000 in the aggregate at any
time.
. No Borrower will, nor will it permit any of its Subsidiaries
to enter into or suffer to remain in effect any lease, as lessee, of any
property, or agree, become or remain liable (contingently or otherwise) to do
any of the foregoing, except:
(a) Operating leases of data processing equipment,
office equipment, manufacturing equipment, transportation equipment or office
space used by the lessee in the ordinary course of business, provided that such
leases will not result in the payment or accrual by the Borrowers and their
respective Subsidiaries of more than $5,000,000 in the aggregate in any
twelve-month period and no such lease has a term longer than 8 years;
(b) Leases cancelable by the lessee without penalty
on not more than 90 days' notice;
(c) Leases by a Borrower or any Subsidiary of a
Borrower, as lessor to any other
Borrower or Subsidiary of a Borrower, as lessee; and
(d) Leases described on Schedule 7.11.
. No Borrower will, nor will it permit any of its Subsidiaries
to enter into or permit any Subsidiary to enter into any transaction (including,
without limitation, the purchase or sale of any property or service) with, or
make any payment or transfer to, any Affiliate of such Borrower or Subsidiary
except in the ordinary course of business and pursuant to the reasonable
requirements of such Borrower's or such Subsidiary's business and upon fair and
reasonable terms no less favorable to such Borrower or such Subsidiary than the
Borrower or such Subsidiary would obtain in a comparable arm's-length
transaction.
ARTICLE VIII
EVENTS OF DEFAULT
. An Event of Default shall mean the occurrence or existence of one or more of
the following events or conditions (for any reason, whether voluntary,
involuntary or effected or required by Law):
(a) Any Borrower shall fail to pay when due principal of any
Loan or Letter of Credit Reimbursement Obligations.
(b) Any Borrower shall fail to pay when due interest on any
Loan, or any fees, indemnity or expenses, or any other amount due hereunder or
under any other Loan Document and such failure shall have continued for a period
of five days.
(c) Any representation or warranty made or deemed made by any
Borrower in or pursuant to any Loan Document or in any certificate delivered
thereunder, or any statement made by any Borrower in any financial statement,
certificate, report, exhibit or document furnished by a Borrower to either the
Agent or any Lender pursuant to or in connection with any Loan Document, shall
prove to have been false or misleading in any material respect as of the time
when made or deemed made (including by omission of material information
necessary to make such representation, warranty or statement not misleading).
(d) Any Borrower shall default in the performance or
observance of any covenant, agreement or duty under this Agreement or any other
Loan Document and such default shall have continued (i) in the case of any
default in the performance or observance of any covenant set forth in Sections
6.04(a), 7.04, 7.06, 7.07 or 7.08 hereof, for a period of 30 days after the
first occurrence of such default, and (ii) in the case of a default in the
performance or observance of any other covenant, agreement or duty contained
herein, for a period of 30 days after notice from the Agent to the applicable
Borrower.
(e) (i) Any Borrower shall fail to perform or observe any
term, condition or covenant of any bond, note, debenture, loan agreement,
indenture, guaranty, trust agreement, mortgage or similar instrument (other than
a non-recourse obligation) to which any Borrower is a party or by which it is
bound, or to which any of its properties or assets is subject (a "Debt
Instrument"), so that, as a result of any such failure to perform, the
Indebtedness included therein or secured or covered thereby may at the time be
declared due and payable prior to the date on which such Indebtedness would
otherwise become due and payable; or (ii) any event or condition referred to in
any Debt Instrument shall occur or fail to occur, so that, as a result thereof,
the Indebtedness included therein or secured or covered thereby may at such time
be declared due and payable prior to the date on which such Indebtedness would
otherwise become due and payable; or (iii) the Borrower shall fail to pay any
Indebtedness when due, pursuant to demand under any Debt Instrument or
otherwise; provided, however, that each of clauses (i), (ii) and (iii) above
shall be subject to any applicable grace period provided in the relevant Debt
Instrument; and provided, further, that the provisions of this Section 8.01(e)
shall be applicable only if the aggregate principal amount of such Indebtedness
exceeds $5,000,000.
(f) One or more final judgments for the payment of money shall
have been entered against any Borrower, which judgment or judgments exceed
$5,000,000 in the aggregate, and such judgment or judgments shall have remained
undischarged, in effect, and unstayed or unbonded for a period of thirty
consecutive days.
(g) One or more writs or warrants of attachment, garnishment,
execution, distraint or similar process exceeding in value the aggregate amount
of $5,000,000 shall have been issued against any Borrower or any of its
properties and shall have remained undischarged, in effect and unstayed or
unbonded for a period of thirty consecutive days.
(h) A Change of Control shall have occurred.
(i) This Agreement or any Loan Document or term or provision
hereof or thereof shall cease to be in full force and effect, or any Borrower
shall, or shall purport to, terminate (other than termination in accordance with
the last sentence of Section 2.02(b) hereof), repudiate, declare voidable or
void or otherwise contest, this Agreement or any Loan Document or term or
provision hereof or thereof or any obligation or liability of any Borrower
hereunder or thereunder.
(j) Any one or more Termination Events shall have occurred.
(k) A proceeding shall have been instituted in respect of any
Borrower or any Subsidiary of a Borrower:
(i) seeking to have an order for relief entered in
respect of such Person, or seeking a declaration or entailing
a finding that such Person is insolvent or a similar
declaration or finding, or seeking dissolution, winding-up,
charter revocation or forfeiture, liquidation, reorganization,
arrangement, adjustment, composition or other similar relief
with respect to such Person, its assets or its debts under any
Law relating to bankruptcy, insolvency, relief of debtors or
protection of creditors, termination of legal entities or any
other similar Law now or hereafter in effect, or
(ii) seeking appointment of a receiver, trustee,
liquidator, assignee, sequestrator or other custodian for such
Person or for all or any substantial part of its property
and such proceeding shall result in the entry, making or grant of any
such order for relief, declaration, finding, relief or appointment, or
such proceeding shall remain undismissed, unstayed and unbonded for a
period of sixty consecutive days.
(l) Any Borrower or any Subsidiary of any Borrower shall
become insolvent; shall fail to pay, become unable to pay, or state that it is
or will be unable to pay, its debts as they become due; shall voluntarily
suspend transaction of its business; shall make a general assignment for the
benefit of creditors; shall institute (or fail to controvert in a timely and
appropriate manner) a proceeding described in Section 8.01(k)(i) hereof, or
(whether or not any such proceeding has been instituted) shall consent to or
acquiesce in any such order for relief, declaration, finding or relief described
therein; shall institute (or fail to controvert in a timely and appropriate
manner) a proceeding described in Section 8.01(k)(ii) hereof, or (whether or not
any such proceeding has been instituted) shall consent to or acquiesce in any
such appointment or to the taking of possession by any such custodian of all or
any substantial part of its property; shall dissolve, wind-up, revoke or forfeit
its charter (or other constituent documents) or liquidate itself or any
substantial part of its property; or shall take any action in furtherance of any
of the foregoing.
(m) Any consent, approval or other action by any Governmental
Authority that is necessary for the valid execution, delivery or performance by
the Borrowers of this Agreement ceases to be in full force and effect and the
cessation of such consent, approval or other action could reasonably be expected
to have a Material Adverse Effect.
(n) Xxxxxxx-Xxxxxx shall cease to own, beneficially or of
record, directly or indirectly, 100% of the issued and outstanding shares of
capital stock of any Significant Subsidiary or any other Subsidiary Borrower.
. 8.02. Consequences of an Event of Default
(a) If an Event of Default specified in subsections (a)
through (j), (l), (m) or (n) of Section 8.01 hereof shall occur and be
continuing or shall exist, then, in addition to all other rights and remedies
which the Agent or any Lender may have hereunder or under any other Loan
Document, at law, in equity or otherwise, the Lenders shall be under no further
obligation to make Loans hereunder, the Issuing Bank shall be under no further
obligation to issue Letters of Credit hereunder and the Agent, upon the written
request of the Required Lenders shall, by notice to the Borrowers, from time to
time do any or all of the following:
(i) Declare the Revolving Credit Commitments terminated,
whereupon the Commitments will terminate and any fees accrued but
unpaid hereunder shall be immediately due and payable without
presentment, demand, protest or further notice of any kind, all of
which are hereby waived, and an action therefor shall immediately
accrue.
(ii) Declare the unpaid principal amount of the Loans,
interest accrued thereon and all other Obligations to be immediately
due and payable without presentment, demand, protest or further notice
of any kind, all of which are hereby waived, and an action therefor
shall immediately accrue.
(b) If an Event of Default specified in subsection (k) or (l)
of Section 8.01 hereof shall occur or exist, then, in addition to all other
rights and remedies which the Agent or any Lender may have hereunder or under
any other Loan Document, at law, in equity or otherwise, the Revolving Credit
Commitments shall automatically terminate and the Lenders shall be under no
further obligation to make Loans, the Issuing Bank shall be under no further
obligation to issue Letters of Credit hereunder and the unpaid principal amount
of the Loans, Letter of Credit Reimbursement Obligations, interest accrued
thereon and all other Obligations shall become immediately due and payable
without presentment, demand, protest or notice of any kind, all of which are
hereby waived, and an action therefor shall immediately accrue.
(c) Without limitation of other rights and remedies under this
Agreement or the Loan Documents or at law or in equity, if all of the
Obligations shall have become due and payable pursuant to clause (a) or (b) of
this Section 8.02, the Borrowers shall immediately pay to the Agent, for deposit
in the Letter of Credit Collateral Account, an amount equal to the excess, if
any, of the aggregate Letter of Credit Exposure at such time over the balance in
the Letter of Credit Collateral Account. Amounts in the Letter of Credit
Collateral Account shall be applied by the Agent to the Obligations as the
Required Lenders shall elect.
. If any Lender or the Agent obtains a judgment against any Borrower in an Other
Currency, the obligations of such Borrower in respect of any sum adjudged to be
due to such Lender or the Agent hereunder or under the Revolving Credit Notes
(the "Judgment Amount") shall be discharged only to the extent that, on the
Business Day following receipt by such Lender or the Agent of the Judgment
Amount in such Other Currency, such Lender or Agent, in accordance with normal
banking procedures, purchases Dollars with the Judgment Amount in such Other
Currency. If the amount of Dollars so purchased is less than the amount of
Dollars that could have been purchased with the Judgment Amount on the date or
dates the Judgment Amount was originally due and owing to the Lenders or the
Agent hereunder or under the Revolving Credit Notes (the "Original Due Date")
(excluding the portion of the Judgment Amount which has accrued as a result of
the failure of any Borrower to pay the sum originally due hereunder or under the
Revolving Credit Notes when it was originally due hereunder or under the
Revolving Credit Notes) (the "Loss"), the Borrowers agree to indemnify such
Lender or the Agent, as the case may be, against the Loss, and if the amount of
Dollars so purchased exceeds the amount of Dollars that could have been
purchased with the Judgment Amount on the Original Due Date, such Lender or the
Agent agrees to remit such excess to the applicable Borrower.
ARTICLE IX
THE AGENT
. Each Lender hereby irrevocably appoints Mellon to act as Agent for such Lender
under this Agreement and the other Loan Documents. Each Lender hereby
irrevocably authorizes the Agent to take such action on behalf of such Lender
under the provisions of this Agreement and the other Loan Documents, and to
exercise such powers and to perform such duties, as are expressly delegated to
or required of the Agent by the terms hereof or thereof, together with such
powers as are reasonably incidental thereto. Mellon hereby agrees to act as
Agent on behalf of the Lenders on the terms and conditions set forth in this
Agreement and the other Loan Documents, subject to its right to resign as
provided in Section 9.10 hereof. Each Lender hereby irrevocably authorizes the
Agent to execute and deliver each of the Loan Documents and to accept delivery
of such of the other Loan Documents as may not require execution by the Agent.
Each Lender agrees that the rights and remedies granted to the Agent under the
Loan Documents shall be exercised exclusively by the Agent, and that no Lender
shall have any right individually to exercise any such right or remedy, except
to the extent expressly provided herein or therein.
. Notwithstanding anything to the contrary elsewhere in this Agreement or in
any other Loan Document:
(a) The Agent shall have no duties or responsibilities except
those expressly set forth in this Agreement and the other Loan Documents, and no
implied duties or responsibilities on the part of the Agent shall be read into
this Agreement or any Loan Document or shall otherwise exist; provided, however,
that nothing contained in this Article IX shall affect the express duties and
responsibilities of the Agent to the Borrowers under this Agreement and the
other Loan Documents.
(b) The duties and responsibilities of the Agent under this
Agreement and the other Loan Documents shall be mechanical and administrative in
nature, and the Agent shall not have a fiduciary relationship in respect of any
Lender.
(c) The Agent is and shall be solely the agent of the Lenders.
The Agent does not assume, and shall not at any time be deemed to have, any
relationship of agency or trust with or for, or any other duty or responsibility
to, the Borrowers or any other Person (except only for its relationship as agent
for the Lenders, and its express duties and responsibilities to the Lenders and
the Borrowers, as provided in this Agreement and the other Loan Documents).
(d) The Agent shall be under no obligation to take any action
hereunder or under any other Loan Document if the Agent believes in good faith
that taking such action may conflict with any Law or any provision of this
Agreement or any other Loan Document, or may require the Agent to qualify to do
business in any jurisdiction where it is not then so qualified.
. The Agent shall take any action of the type specified in this Agreement or any
other Loan Document as being within the Agent's rights, powers or discretion in
accordance with directions from the Required Lenders (or, to the extent this
Agreement or such Loan Document expressly requires the direction or consent of
some other Person or set of Persons, then instead in accordance with the
directions of such other Person or set of Persons). In the absence of such
directions, the Agent shall have the authority (but under no circumstances shall
be obligated), in its sole discretion, to take any such action, except to the
extent this Agreement or such Loan Document expressly requires the direction or
consent of the Required Lenders (or some other Person or set of Persons), in
which case the Agent shall not take such action absent such direction or
consent. Any action or inaction pursuant to such direction, discretion or
consent shall be binding on all the Lenders. Subject to Section 9.04(a) hereof,
the Agent shall not have any liability to any Person as a result of (x) the
Agent acting or refraining from acting in accordance with the directions of the
Required Lenders (or other applicable Person or set of Persons), (y) the Agent
refraining from acting in the absence of instructions to act from the Required
Lenders (or other applicable Person or set of Persons), whether or not the Agent
has discretionary power to take such action, or (z) the Agent taking
discretionary action it is authorized to take under this Section.
. Notwithstanding anything to the contrary elsewhere in this Agreement or any
other Loan Document:
(a) Neither the Agent nor the Issuing Bank shall be liable for
any action taken or omitted to be taken by it under or in connection with this
Agreement or any other Loan Document, unless caused by its own gross negligence
or willful misconduct.
(b) Neither the Agent nor the Issuing Bank shall be
responsible for (i) the execution, delivery, effectiveness, enforceability,
genuineness, validity or adequacy of this Agreement or any other Loan Document,
(ii) any recital, representation, warranty, document, certificate, report or
statement in, provided for in, or received under or in connection with, this
Agreement or any other Loan Document, or (iii) any failure of any Lender to
perform any of its obligations under this Agreement or any other Loan Document.
(c) Neither the Agent nor the Issuing Bank shall be under any
obligation to ascertain, inquire or give any notice relating to (i) the
performance or observance of any of the terms or conditions of this Agreement or
any other Loan Document on the part of the Borrowers or their respective
Subsidiaries, (ii) the business, operations, condition (financial or otherwise)
or prospects of the Borrowers or their respective Subsidiaries, or any other
Person, or (iii) except to the extent set forth in Section 9.05(f) hereof, the
existence of any Event of Default or Potential Default.
(d) Neither the Agent nor the Issuing Bank shall be under any
obligation, either initially or on a continuing basis, to provide any Lender
with any notices, reports or information of any nature, whether in its
possession presently or hereafter, except for such notices, reports and other
information expressly required by this Agreement or any other Loan Document to
be furnished by the Agent or the Issuing Bank to such Lender.
. 9.05. Administration by the Agent and the Issuing Bank
(a) Each of the Agent and the Issuing Bank may rely upon any
notice or other communication of any nature (written or oral, including but not
limited to telephone conversations, whether or not such notice or other
communication is made in a manner permitted or required by this Agreement or any
Loan Document) purportedly made by or on behalf of the proper party or parties,
and each of the Agent and the Issuing Bank shall not have any duty to verify the
identity or authority of any Person giving such notice or other communication.
(b) Each of the Agent and the Issuing Bank may consult with
legal counsel (including, without limitation, in-house counsel for the Agent or
the Issuing Bank, respectively, or in-house or other counsel for any Borrower),
independent public accountants and any other experts selected by it from time to
time, and each of the Agent and the Issuing Bank shall not be liable for any
action taken or omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts.
(c) Each of the Agent and the Issuing Bank may conclusively
rely upon the truth of the statements and the correctness of the opinions
expressed in any certificates or opinions furnished to the Agent or the Issuing
Bank in accordance with the requirements of this Agreement or any other Loan
Document. Whenever either the Agent or the Issuing Bank shall deem it necessary
or desirable that a matter be proved or established with respect to any Borrower
or any Lender, such matter may be established by a certificate of the applicable
Borrower or such Lender, as the case may be, and either the Agent or the Issuing
Bank may conclusively rely upon such certificate (unless other evidence with
respect to such matter is specifically prescribed in this Agreement or another
Loan Document).
(d) Each of the Agent and the Issuing Bank may fail or refuse
to take any action unless it shall be indemnified to its satisfaction from time
to time against any and all amounts, liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature which may be imposed on, incurred by or asserted against the
Agent and the Issuing Bank by reason of taking or continuing to take any such
action.
(e) The Agent may perform any of its duties under this
Agreement or any other Loan Document by or through agents or attorneys-in-fact.
The Agent shall not be responsible for the negligence or misconduct of any
agents or attorneys-in fact selected and supervised by it with reasonable care.
(f) Neither the Agent nor the Issuing Bank shall be deemed to
have any knowledge or notice of the occurrence of any Event of Default or
Potential Default unless the Agent has received notice from a Lender or any
Borrower referring to this Agreement, describing such Event of Default or
Potential Default. If the Agent receives such a notice, the Agent shall give
prompt notice thereof to each Lender and if the Issuing Bank receives such a
notice, the Issuing Bank shall give prompt notice thereof to the Agent.
. Each Lender acknowledges as follows: (a) Neither the Agent nor any other
Lender has made any representations or warranties to it, and no act taken
hereafter by the Agent or any other Lender shall be deemed to constitute any
representation or warranty by the Agent or such other Lender to it. (b) It has,
independently and without reliance upon the Agent or any other Lender, and based
upon such documents and information as it has deemed appropriate, made its own
credit and legal analysis and decision to enter into this Agreement and the
other Loan Documents. (c) It will, independently and without reliance upon the
Agent or any other Lender, and based upon such documents and information as it
shall deem appropriate at the time, make its own decisions to take or not take
action under or in connection with this Agreement and the other Loan Documents.
. Each Lender agrees to reimburse and indemnify each of the Agent and the
Issuing Bank and their respective directors, officers, employees and agents (to
the extent not reimbursed by the Borrowers and without limitation of the
obligations of the Borrowers to do so), Pro Rata, from and against any and all
amounts, losses, liabilities, claims, damages, expenses, obligations, penalties,
actions, judgments, suits, costs or disbursements of any kind or nature
(including, without limitation, the fees and disbursements of counsel for the
Agent or the Issuing Bank or such other Person in connection with any
investigative, administrative or judicial proceeding commenced or threatened,
whether or not the Agent or the Issuing Bank or such other Person shall be
designated a party thereto) that may at any time be imposed on, incurred by or
asserted against the Agent or the Issuing Bank or such other Person as a result
of, or arising out of, or in any way related to or by reason of, this Agreement,
any other Loan Document, any transaction from time to time contemplated hereby
or thereby, or any transaction financed in whole or in part or directly or
indirectly with the proceeds of any Loan, provided that no Lender shall be
liable for any portion of such amounts, losses, liabilities, claims, damages,
expenses, obligations, penalties, actions, judgments, suits, costs or
disbursements resulting solely from the gross negligence or willful misconduct
of the Agent or the Issuing Bank or such other Person, as finally determined by
a court of competent jurisdiction. Payments under this Section 9.07 shall be due
and payable on demand, and to the extent that any Lender fails to pay any such
amount on demand, such amount shall bear interest for each day from the date of
demand until paid (before and after judgment) at a rate per annum (calculated on
the basis of a year of 365 or 366 days, as the case may be, and actual days
elapsed) which for each day shall be equal to the Prime Rate.
. With respect to its Revolving Credit Commitments and the Obligations owing to
it, the Agent shall have the same rights and powers under this Agreement and
each other Loan Document as any other Lender and may exercise the same as though
it were not the Agent, and the terms "Lenders," "holders of Notes" and like
terms shall include the Agent in its individual capacity as such. The Agent and
its affiliates may, without liability to account, make loans to, accept deposits
from, acquire debt or equity interests in, act as trustee under indentures of,
and engage in any other business with, any Borrower and any stockholder,
subsidiary or affiliate of any Borrower, as though the Agent were not the Agent
hereunder.
. The Agent may deem and treat the Lender which is payee of a Note as the owner
and holder of such Note for all purposes hereof unless and until a Transfer
Supplement with respect to the assignment or transfer thereof shall have been
filed with the Agent in accordance with Section 10.14 hereof. Any authority,
direction or consent of any Person who at the time of giving such authority,
direction or consent is shown in the Register as being a Lender shall be
conclusive and binding on each present and subsequent holder, transferee or
assignee of any Note or Notes payable to such Lender or of any Note or Notes
issued in exchange therefor.
. The Agent may resign at any time by giving 10 days' prior written notice
thereof to the Lenders and the Borrowers. The Agent may be removed by the
Required Lenders at any time by giving 10 days' prior written notice thereof to
the Agent, the other Lenders and the Borrowers. Upon any such resignation or
removal, the Required Lenders shall have the right to appoint a successor Agent.
If no successor Agent shall have been so appointed and consented to, and shall
have accepted such appointment, within 30 days after such notice of resignation
or removal, then the retiring Agent may, on behalf of the Lenders, appoint a
successor Agent. Each successor Agent shall be a commercial bank or trust
company organized or licensed under the laws of the United States of America or
any State thereof and having a combined capital and surplus of at least
$1,000,000,000. Upon the acceptance by a successor Agent of its appointment as
Agent hereunder, such successor Agent shall thereupon succeed to and become
vested with all the properties, rights, powers, privileges and duties of the
former Agent, without further act, deed or conveyance. Upon the effective date
of resignation or removal of a retiring Agent, such Agent shall be discharged
from its duties under this Agreement and the other Loan Documents, but the
provisions of this Agreement shall inure to its benefit as to any actions taken
or omitted by it while it was Agent under this Agreement. If and so long as no
successor Agent shall have been appointed, then any notice or other
communication required or permitted to be given by the Agent shall be
sufficiently given if given by the Required Lenders, all notices or other
communications required or permitted to be given to the Agent shall be given to
each Lender, and all payments to be made to the Agent shall be made directly to
the Borrower or Lender for whose account such payment is made.
. If the Agent shall from time to time deem it necessary or advisable, for its
own protection in the performance of its duties hereunder or in the interest of
the Lenders and if the Borrowers and the Required Lenders shall consent (which
consent shall not be unreasonably withheld), the Agent and the Borrowers shall
execute and deliver a supplemental agreement and all other instruments and
agreements necessary or advisable, in the opinion of the Agent, to constitute
another commercial bank or trust company, or one or more other Persons approved
by the Agent, to act as co-Agent, with such powers of the Agent as may be
provided in such supplemental agreement, and to vest in such bank, trust company
or Person as such co-Agent or separate agent, as the case may be, any
properties, rights, powers, privileges and duties of the Agent under this
Agreement or any other Loan Document.
. The Agent shall not be liable for any calculation, apportionment or
distribution of payments made by it in good faith. If such calculation,
apportionment or distribution is subsequently determined to have been made in
error, the sole recourse of any Lender to whom payment was due but not made
shall be to recover from the other Lenders any payment in excess of the amount
to which they are determined to be entitled.
. Xxxxxxx-Xxxxxx agrees to pay to the Agent, for its individual account,
Agent's fees in the amounts set forth in the Agent's fee letter.
. Unless the Agent shall have been notified in writing by any Lender not later
than the close of business on the day before the day on which Loans are
requested by any Borrower to be made that such Lender will not make its Pro Rata
share of such Loans, the Agent may assume that such Lender will make its Pro
Rata share of the Loans, and in reliance upon such assumption the Agent may (but
in no circumstances shall be required to) make available to any Borrower a
corresponding amount. If and to the extent that any Lender fails to make such
payment to the Agent on such date, such Lender shall pay such amount on demand
(or, if such Lender fails to pay such amount on demand, the applicable Borrower
shall pay such amount on demand), together with interest, for the Agent's own
account, for each day from and including the date of the Agent's payment to and
including the date of repayment to the Agent (before and after judgment) at the
rate per annum applicable to such Loans. All payments to the Agent under this
Section shall be made to the Agent at its Office in Dollars in funds immediately
available at such Office, without set-off, withholding, counterclaim or other
deduction of any nature.
9.15. Syndication Agent and Documentation Agent. The titles
"Syndication Agent" and "Documentation Agent" given to certain Lenders named on
the cover page of this Agreement are purely honorific, and no Syndication Agent
or Documentation Agent, as the case may be, in its capacity as such, shall have
any duties or responsibilities hereunder.
ARTICLE X
MISCELLANEOUS
. Whenever any payment or action to be made or taken hereunder or under any
other Loan Document shall be stated to be due on a day which is not a Business
Day, such payment or action shall be made or taken on the next following
Business Day and such extension of time shall be included in computing interest
or fees, if any, in connection with such payment or action.
. The unpaid principal amount of the Loans owing to each Lender, the unpaid
interest accrued thereon, the interest rate or rates applicable to such unpaid
principal amount, the duration of such applicability, each Lender's Revolving
Credit Committed Amount and the accrued and unpaid Facility Fees shall at all
times be ascertained from the records of the Agent, which shall be conclusive
absent manifest error.
. Neither this Agreement nor any Loan Document may be amended, modified or
supplemented except in accordance with the provisions of this Section. The
Required Lenders and the Borrowers may from time to time amend, modify or
supplement the provisions of this Agreement or any other Loan Document for the
purpose of amending, adding to, or waiving any provisions or changing in any
manner the rights and duties of the Borrowers, the Agent or any Lender. Any such
amendment, modification or supplement made in accordance with the provisions of
this Section shall be binding upon the Borrowers, each Lender and the Agent. The
Agent shall enter into such amendments, modifications or supplements from time
to time as directed by the Required Lenders, and only as so directed, provided,
that no such amendment, modification or supplement may be made which will:
(a) Increase the Revolving Credit Committed Amount of any
Lender over the amount thereof then in effect, or extend the Revolving Credit
Maturity Date, without the written consent of each Lender affected thereby;
(b) Reduce the principal amount of or extend the time for any
payment of any Loan, or reduce the amount of or rate of interest or extend the
time for payment of interest borne by any Loan or extend the time for payment of
or reduce the amount of any Facility Fee or reduce or postpone the date for
payment of any other fees, expenses, indemnities or amounts payable under any
Loan Document, without the written consent of each Lender affected thereby;
(c) Change the definition of "Required Lenders" or amend this
Section 10.03, without the written consent of all the Lenders;
(d) Release any collateral from the Letter of Credit
Collateral Account without the written consent of all Lenders;
(e) Release any "Guarantor" or reduce any "Guaranteed
Obligations" (as such terms are defined in the Subsidiary Guarantees) of any
Guarantor under any Subsidiary Guaranty in connection with the sale or other
disposition of all of the capital stock of and other equity interests in such
Guarantor to a Person or Persons other than a Borrower or a Subsidiary of a
Borrower, which sale or other disposition is in compliance with this Agreement
and the Loan Documents (a "Permitted Sale"), without the written consent of the
Required Lenders;
(f) Release any "Guarantor" or reduce any "Guaranteed
Obligations" (as such terms are defined in the Xxxxxxx-Xxxxxx Guaranty or
Subsidiary Guarantees, as applicable) of any Guarantor under the Xxxxxxx-Xxxxxx
Guaranty or any Subsidiary Guaranty, other than in connection with a Permitted
Sale, without the written consent of all Lenders; or
(g) Amend or waive any of the provisions of Article IX hereof,
or impose additional duties upon the Agent or any Issuing Bank or otherwise
adversely affect the rights, interests or obligations of the Agent or any
Issuing Bank, without the written consent of the Agent and the Issuing Banks;
and provided further, that Transfer Supplements may be entered into in the
manner provided in Section 10.14 hereof. Any such amendment, modification or
supplement must be in writing and shall be effective only to the extent set
forth in such writing. Any Event of Default or Potential Default waived or
consented to in any such amendment, modification or supplement shall be deemed
to be cured and not continuing to the extent and for the period set forth in
such waiver or consent, but no such waiver or consent shall extend to any other
or subsequent Event of Default or Potential Default or impair any right
consequent thereto.
. No course of dealing and no delay or failure of the Agent or any Lender in
exercising any right, power or privilege under this Agreement or any other Loan
Document shall affect any other or future exercise thereof or exercise of any
other right, power or privilege; nor shall any single or partial exercise of any
such right, power or privilege or any abandonment or discontinuance of steps to
enforce such a right, power or privilege preclude any further exercise thereof
or of any other right, power or privilege. The rights and remedies of the Agent
and the Lenders under this Agreement and any other Loan Document are cumulative
and not exclusive of any rights or remedies which either the Agent or any Lender
would otherwise have hereunder or thereunder, at law, in equity or otherwise.
. 10.05. Notices
(a) Except to the extent otherwise expressly permitted
hereunder or thereunder, all notices, requests, demands, directions and other
communications (collectively "notices") under this Agreement or any Loan
Document shall be in writing (including telexed and telecopied communication)
and shall be sent by first-class mail, or by nationally-recognized overnight
courier, or by telex or telecopier (with confirmation in writing mailed
first-class or sent by such an overnight courier), or by personal delivery. All
notices shall be sent to the applicable party at the address stated on the
signature pages hereof or in accordance with the last unrevoked written
direction from such party to the other parties hereto, in all cases with postage
or other charges prepaid. All notices given to Xxxxxxx-Xxxxxx under this
Agreement shall be deemed to be given to each Borrower. Any such properly given
notice shall be effective on the earliest to occur of receipt, telephone
confirmation of receipt of telex or telecopy communication, one Business Day
after delivery to a nationally-recognized overnight courier, or three Business
Days after deposit in the mail.
(b) Any Lender giving any notice to the Borrowers shall
simultaneously send a copy thereof to the Agent, and the Agent shall promptly
notify the other Lenders of the receipt by it of any such notice.
(c) The Agent and each Lender may rely on any notice (whether
or not such notice is made in a manner permitted or required by this Agreement
or any Loan Document) purportedly made by or on behalf of the Borrowers, and
neither the Agent nor any Lender shall have any duty to verify the identity or
authority of any Person giving such notice.
. 10.06. Expenses; Taxes; Indemnity
(a) Xxxxxxx-Xxxxxx agrees to pay or cause to be paid and to
save the Agent and each of the Lenders harmless against liability for the
payment of all reasonable out-of-pocket costs and expenses (including but not
limited to reasonable fees and expenses of counsel to the Agent and, with
respect to costs incurred by the Agent, or any Lender pursuant to clause (iii)
below, such counsel and local counsel) incurred by the Agent or, in the case of
clause (iii) below any Lender from time to time arising from or relating to (i)
the negotiation, preparation, execution, delivery, administration and
performance of this Agreement and the other Loan Documents, (ii) any requested
amendments, modifications, supplements, waivers or consents (whether or not
ultimately entered into or granted) to this Agreement or any Loan Document, and
(iii) except as to costs and expenses made necessary by reason of the gross
negligence or willful misconduct of the Agent, any Issuing Bank or any Lender,
the enforcement or preservation of rights under this Agreement or any Loan
Document (including but not limited to any such costs or expenses arising from
or relating to (A) collection or enforcement of an outstanding Loan or any other
amount owing hereunder or thereunder by either the Agent or any Lender, (B) any
litigation brought by the Agent, any Lender, any Issuing Bank or such Borrower
and related in any way to this Agreement or the Loan Documents (other than the
costs and expenses incurred by the Agent, any Lender or any Issuing Bank,
respectively, in connection with any litigation which results in a final,
non-appealable judgment against the Agent, such Issuing Bank or such Lender) and
(C) any proceeding, dispute, work-out, restructuring or rescheduling related in
any way to this Agreement or the Loan Documents).
(b) The Borrowers hereby agree to pay all stamp, document,
transfer, recording, filing, registration, search, sales and excise fees and
taxes and all similar impositions now or hereafter determined by the Agent or
any Lender to be payable in connection with this Agreement or any other Loan
Documents or any other documents, instruments or transactions pursuant to or in
connection herewith or therewith, and the Borrowers agree to save the Agent and
each Lender harmless from and against any and all present or future claims,
liabilities or losses with respect to or resulting from any omission to pay or
delay in paying any such fees, taxes or impositions other than those resulting
from omissions to pay or delays in payment attributable to the acts or omissions
of the Agent or any Lender.
(c) Xxxxxxx-Xxxxxx hereby agrees to reimburse and indemnify
each of the Indemnified Parties from and against any and all losses,
liabilities, claims, damages, expenses, obligations, penalties, actions,
judgments, suits, costs or disbursements of any kind or nature whatsoever
(including, without limitation, the reasonable fees and disbursements of counsel
for such Indemnified Party in connection with any investigative, administrative
or judicial proceeding commenced or threatened, whether or not such Indemnified
Party shall be designated a party thereto) that may at any time be imposed on,
asserted against or incurred by such Indemnified Party as a result of, or
arising out of, or in any way related to or by reason of, any act or conduct of
any Borrower with respect to or in connection with the transactions described in
this Agreement or any other Loan Document, or any transaction financed in whole
or in part or directly or indirectly with the proceeds of any Loan (and without
in any way limiting the generality of the foregoing, including any violation or
breach of any requirement of Law or any other Law by any Borrower or any
Subsidiary of any Borrower); or any exercise by either the Agent or any Lender
of any of its rights or remedies under this Agreement or any other Loan
Document); but excluding any such losses, liabilities, claims, damages,
expenses, obligations, penalties, actions, judgments, suits, costs or
disbursements resulting solely from the gross negligence or willful misconduct
of such Indemnified Party, as finally determined by a court of competent
jurisdiction. If and to the extent that the foregoing obligations of the
Borrowers under this subsection (c), or any other indemnification obligation of
the Borrowers hereunder or under any other Loan Document, are unenforceable for
any reason, the Borrowers hereby agree to make the maximum contribution to the
payment and satisfaction of such obligations which is permissible under
applicable Law.
. The provisions of this Agreement are intended to be severable. If any
provision of this Agreement shall be held invalid or unenforceable in whole or
in part in any jurisdiction such provision shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without in any
manner affecting the validity or enforceability thereof in any other
jurisdiction or the remaining provisions hereof in any jurisdiction.
. This Agreement and the other Loan Documents supersede all prior and
contemporaneous understandings and agreements, whether written or oral, among
the parties hereto relating to the transactions provided for herein and therein.
. All representations and warranties of the Borrowers contained herein or in any
other Loan Document or made in connection herewith shall survive the making of,
and shall not be waived by the execution and delivery, of this Agreement or any
other Loan Document, any investigation by the Agent or any Lender, the making of
any Loan, or any other event or condition whatever. All covenants and agreements
of the Borrowers contained herein or in any other Loan Document shall continue
in full force and effect from and after the date hereof so long as any Borrower
may borrow hereunder and until payment in full of all Obligations. Without
limitation, all obligations of the Borrowers hereunder or under any other Loan
Document to make payments to or indemnify the Agent or any Lender shall survive
the payment in full of all other Obligations, termination of the Borrowers'
rights to borrow hereunder, and all other events and conditions whatever. In
addition, all obligations of each Lender to make payments to or indemnify the
Agent shall survive the payment in full by the Borrowers of all Obligations,
termination of the Borrowers' rights to borrow hereunder, and all other events
or conditions whatever.
. This Agreement may be executed in any number of counterparts and by the
different parties hereto on separate counterparts each of which, when so
executed, shall be deemed an original, but all such counterparts shall
constitute but one and the same instrument.
. The parties hereto intend to conform to all applicable Laws in effect from
time to time limiting the maximum rate of interest that may be charged or
collected. Accordingly, notwithstanding any other provision hereof or of any
other Loan Document, the Borrowers shall not be required to make any payment to
or for the account of any Lender, and each Lender shall refund any payment made
by the Borrowers, to the extent that such requirement or such failure to refund
would violate or conflict with nonwaivable provisions of applicable Laws
limiting the maximum amount of interest which may be charged or collected by
such Lender.
. The Borrowers hereby agree that, to the fullest extent permitted by law, if
any Obligation of any Borrower shall be due and payable (by acceleration or
otherwise), each Lender shall have the right, without notice to such Borrower,
to set-off against and to appropriate and apply to the Obligation any
indebtedness, liability or obligation of any nature owing to such Borrower by
such Lender, including but not limited to all deposits (whether time or demand,
general or special, provisionally credited or finally credited, whether or not
evidenced by a certificate of deposit) now or hereafter maintained by such
Borrower with such Lender. Such right shall be absolute and unconditional in all
circumstances and, without limitation, shall exist whether or not such Lender or
any other Person shall have given notice or made any demand to such Borrower or
any other Person, whether such indebtedness, obligation or liability owed to
such Borrower is contingent, absolute, matured or unmatured, and regardless of
the existence or adequacy of any collateral, guaranty or any other security,
right or remedy available to any Lender or any other Person. The Borrowers
hereby agree that, to the fullest extent permitted by law, any Participant and
any branch, subsidiary or affiliate of any Lender or any Participant shall have
the same rights of set-off as a Lender as provided in this Section (regardless
of whether such Participant, branch, subsidiary or affiliate would otherwise be
deemed in privity with or a direct creditor of such Borrower). The rights
provided by this Section are in addition to all other rights of set-off and
banker's lien and all other rights and remedies which any Lender (or any such
Participant, branch, subsidiary or affiliate) may otherwise have under this
Agreement, any other Loan Document, at law or in equity, or otherwise, and
nothing in this Agreement or any Loan Document shall be deemed a waiver or
prohibition of or restriction on the rights of set-off or bankers' lien of any
such Person.
. The Lenders hereby agree among themselves that if any Lender shall receive (by
voluntary payment, realization upon security, set-off or from any other source)
any amount on account of the Loans, interest thereon, or any other Obligation
contemplated by this Agreement or the other Loan Documents to be made by the
Borrowers Pro Rata to all Lenders in greater proportion than any such amount
received by any other Lender, then the Lender receiving such proportionately
greater payment shall notify each other Lender and the Agent of such receipt,
and equitable adjustment will be made in the manner stated in this Section so
that, in effect, all such excess amounts will be shared Pro Rata among all of
the Lenders. The Lender receiving such excess amount shall purchase (which it
shall be deemed to have done simultaneously upon the receipt of such excess
amount) for cash from the other Lenders a participation in the applicable
Obligations owed to such other Lenders in such amount as shall result in a Pro
Rata sharing by all Lenders of such excess amount (and to such extent the
receiving Lender shall be a Participant). If all or any portion of such excess
amount is thereafter recovered from the Lender making such purchase, such
purchase shall be rescinded and the purchase price restored to the extent of
such recovery, together with interest or other amounts, if any, required by Law
to be paid by the Lender making such purchase. The Borrowers hereby consent to
and confirm the foregoing arrangements. Each Participant shall be bound by this
Section as fully as if it were a Lender hereunder.
. 10.14. Successors and Assigns; Participations; Assignments
(a) Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the Borrowers, the Lenders, all future holders
of the Notes, the Agent and their respective successors and assigns, except that
the Borrowers may not assign or transfer any of their respective rights
hereunder or interests herein without the prior written consent of all the
Lenders and the Agent, and any purported assignment without such consent shall
be void.
(b) Participations. Any Lender may, in the ordinary course of
its commercial banking business and in accordance with applicable Law, at any
time sell participations to one or more commercial banks or other Persons (each
a "Participant") in all or a portion of its rights and obligations under this
Agreement and the other Loan Documents (including, without limitation, all or a
portion of its Revolving Credit Commitments and the Loans owing to it and any
Note held by it); provided, that
(i) any such Lender's obligations under this Agreement
and the other Loan Documents shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations,
(iii) the parties hereto 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,
(iv) such Participant shall be bound by the provisions of
Section 10.13 hereof, and the Lender selling such participation shall
obtain from such Participant a written confirmation of its agreement to
be so bound,
(v) 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 action under this Agreement or
under any other Loan Document, except that such Lender may agree with
such Participant that such Lender will not, without such Participant's
consent, take action of the type described in subsections (a), (b),
(c), (d) or (e) of Section 10.03 hereof; notwithstanding the foregoing,
in no event shall any participation by any Lender have the effect of
releasing such Lenders from its obligations hereunder, and
(vi) no Participant shall be an Affiliate of any Borrower.
The Borrowers agree that any such Participant shall be entitled to the benefits
of Sections 2.10, 2.12 and 10.06 with respect to its participation in the
Revolving Credit Commitments and the Loans outstanding from time to time but
only to the extent such Participant sustains such losses; provided, that no such
Participant shall be entitled to receive any greater amount pursuant to such
Sections than the transferor Lender would have been entitled to receive in
respect of the amount of the participation transferred to such Participant had
no such transfer occurred and provided, further, that any such Participant, as a
condition precedent to receiving the benefits of Sections 2.10, 2.12 and 10.06,
shall agree in writing to indemnify the Borrowers and hold them harmless as
against any and all claims or demands by or liabilities to the transferor Lender
or Lenders or any other Person for an amount which in whole or in part
duplicates, but only to the extent of such duplication, the amount or amounts to
be paid to the Participant under this Section.
(c) Assignments. Any Lender may, in the ordinary course of its
commercial banking business and in accordance with applicable Law, at any time
assign all or a portion of its rights and obligations under this Agreement and
the other Loan Documents (including, without limitation, all or any portion of
its Revolving Credit Commitments and Loans owing to it and any Note held by it)
to any Lender, any affiliate of a Lender or to one or more additional commercial
banks or other Persons (each a "Purchasing Lender"); provided, that
(i) any such assignment to a Purchasing Lender which is not a
Lender shall be made only with the consent of Xxxxxxx-Xxxxxx, the
Issuing Banks and the Agent, which consent shall not be unreasonably
withheld,
(ii) if a Lender makes such an assignment of less than all of
its then remaining rights and obligations under this Agreement and the
other Loan Documents, such transferor Lender shall retain, after such
assignment, a minimum principal amount of $5,000,000 of the Revolving
Credit Commitments and Revolving Credit Extensions of Credit then
outstanding, and such assignment shall be in a minimum aggregate
principal amount of $5,000,000 of the Revolving Credit Commitments and
Revolving Credit Extensions of Credit then outstanding,
(iii) each such assignment shall be of a constant, and not a
varying, percentage of each Revolving Credit Commitment of the
transferor Lender and of all of the transferor Lender's rights and
obligations under this Agreement and the other Loan Documents, and
(iv) each such assignment shall be made pursuant to a Transfer
Supplement in substantially the form of Exhibit D to this Agreement,
duly completed (a "Transfer Supplement").
In order to effect any such assignment, the transferor Lender and the Purchasing
Lender shall execute and deliver to the Agent a duly completed Transfer
Supplement (including the consents required by clause (i) of the preceding
sentence) with respect to such assignment, together with any Note or Notes
subject to such assignment (the "Transferor Lender Notes") and a processing and
recording fee of $2,500; and, upon receipt thereof, the Agent shall accept such
Transfer Supplement. Upon receipt of the Purchase Price Receipt Notice pursuant
to such Transfer Supplement, the Agent shall record such acceptance in the
Register. Upon such execution, delivery, acceptance and recording, from and
after the Transfer Effective Date specified in such Transfer Supplement
(x) the Purchasing Lender shall be a party hereto and, to the
extent provided in such Transfer Supplement, shall have the rights and
obligations of a Lender hereunder, and
(y) the transferor Lender thereunder shall be released from
its obligations under this Agreement to the extent so transferred (and,
in the case of an Transfer Supplement covering all or the remaining
portion of a transferor Lender's rights and obligations under this
Agreement, such transferor Lender shall cease to be a party to this
Agreement) from and after the Transfer Effective Date.
On or prior to the Transfer Effective Date specified in an Transfer Supplement,
the Borrowers, at their expense, shall execute and deliver to the Agent (for
delivery to the Purchasing Lender) new Notes evidencing such Purchasing Lender's
assigned Revolving Credit Commitments or Loans and (for delivery to the
transferor Lender) replacement Notes in the principal amount of the Loans or
Revolving Credit Commitments retained by the transferor Lender (such Notes to be
in exchange for, but not in payment of, those Notes then held by such transferor
Lender). Each such Note shall be dated the date and be substantially in the form
of the predecessor Note. The Agent shall xxxx the predecessor Notes "exchanged"
and deliver them to the applicable Borrower. Accrued interest and accrued fees
shall be paid to the Purchasing Lender at the same time or times provided in the
predecessor Notes and this Agreement.
(d) Register. The Agent shall maintain at its office a copy of
each Transfer Supplement delivered to it and a register (the "Register") for the
recordation of the names and addresses of the Lenders and the Revolving Credit
Commitment of, and principal amount of the Loans owing to, each Lender from time
to time. The entries in the Register shall be conclusive absent manifest error
and the Borrower, the Agent and the Lenders may treat each person whose name is
recorded in the Register as a Lender hereunder for all purposes of the
Agreement. The Register shall be available for inspection by the Borrowers or
any Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) Financial and Other Information. The Borrowers authorize
the Agent and each Lender to disclose to any Participant or Purchasing Lender
(each, a "transferee") and any prospective transferee any and all financial and
other information in such Person's possession concerning the Borrowers and their
respective Subsidiaries and Affiliates which has been or may be delivered to
such Person by or on behalf of such Borrowers in connection with this Agreement
or any other Loan Document or such Person's credit evaluation of such Borrowers
and their respective Subsidiaries and Affiliates; subject, however, to the
provisions of Section 10.16 hereof.
. 10.15. Governing Law; Submission to Jurisdiction; Limitation
of Liability
(a) Governing Law. THIS AGREEMENT AND ALL OTHER LOAN DOCUMENTS
(EXCEPT TO THE EXTENT, IF ANY, OTHERWISE EXPRESSLY STATED IN SUCH OTHER LOAN
DOCUMENTS) SHALL BE GOVERNED BY, CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CHOICE OF LAW PRINCIPLES.
(b) Certain Waivers. EACH OF THE BORROWERS, THE AGENT
AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(i) AGREE THAT ANY ACTION, SUIT OR PROCEEDING BY ANY PERSON
ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
OR ANY STATEMENT, COURSE OF CONDUCT, ACT, OMISSION, OR EVENT OCCURRING
IN CONNECTION HEREWITH OR THEREWITH (COLLECTIVELY, "RELATED
LITIGATION") MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION SITTING IN XXX XXXX XXX XXXXXX XX XXX XXXX, XXX XXXX,
SUBMITS TO THE JURISDICTION OF SUCH COURTS, AND TO THE FULLEST EXTENT
PERMITTED BY LAW AGREES THAT IT WILL NOT BRING ANY RELATED LITIGATION
IN ANY OTHER FORUM;
(ii) WAIVE ANY OBJECTION WHICH IT MAY HAVE AT ANY TIME TO THE
LAYING OF VENUE OF ANY RELATED LITIGATION BROUGHT IN ANY SUCH COURT,
WAIVES ANY CLAIM THAT ANY SUCH RELATED LITIGATION HAS BEEN BROUGHT IN
AN INCONVENIENT FORUM, AND WAIVES ANY RIGHT TO OBJECT, WITH RESPECT TO
ANY RELATED LITIGATION BROUGHT IN ANY SUCH COURT, THAT SUCH COURT DOES
NOT HAVE JURISDICTION;
(iii) CONSENTS AND AGREES TO SERVICE OF ANY SUMMONS, COMPLAINT
OR OTHER LEGAL PROCESS IN ANY RELATED LITIGATION BY REGISTERED OR
CERTIFIED U.S. MAIL, POSTAGE PREPAID, AT THE ADDRESS FOR NOTICES
DESCRIBED IN SECTION 10.05 HEREOF, AND CONSENTS AND AGREES THAT SUCH
SERVICE SHALL CONSTITUTE IN EVERY RESPECT VALID AND EFFECTIVE SERVICE
(BUT NOTHING HEREIN SHALL AFFECT THE VALIDITY OR EFFECTIVENESS OF
PROCESS SERVED IN ANY OTHER MANNER PERMITTED BY LAW); AND
(iv) WAIVES THE RIGHT TO TRIAL BY JURY IN ANY RELATED
LITIGATION.
. Each party hereto agrees to keep confidential any information concerning the
business and financial activities of the other party hereto obtained in
connection with this Agreement except information which (a) is lawfully in the
public domain, (b) is obtained from a third party who is not bound by an
obligation of confidentiality with respect to such information, (c) is required
to be disclosed to any Governmental Authority having jurisdiction over such
person but only to the extent of such requirement, or (d) is disclosed by the
Agent or any Lender in accordance with Section 10.14 hereof.
[Signatures on following pages]
IN WITNESS WHEREOF, the parties hereto, by their officers
thereunto duly authorized, have executed and delivered this Agreement as of the
date first above written.
ATTEST: XXXXXXX-XXXXXX CORPORATION
By /s/ Xxxx X. Xxxxxxxx By /s/ Xxxx Xxxxxxxx
Title: A.G.C. Xxxx X. Xxxxxxxx
Treasurer
[Corporate Seal]
Address for Notices:
0000 Xxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxx
Vice President of Finance
Telephone: 000-000-0000
Telecopier: 000-000-0000
ATTEST: XXXXXXX-XXXXXX FLIGHT SYSTEMS, INC.
By /s/ Xxxx X. Xxxxxxxx By /s/ Xxxx Xxxxxxxx
Title: A.G.C. Xxxx X. Xxxxxxxx
Treasurer
[Corporate Seal]
Address for Notices:
0000 Xxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxx
Vice President of Finance
Telephone: 000-000-0000
Telecopier: 000-000-0000
ATTEST: XXXXXXX-XXXXXX FLOW CONTROL
CORPORATION
By /s/ Xxxx X. Xxxxxxxx By /s/ Xxxx Xxxxxxxx
Title: A.G.C. Xxxx X. Xxxxxxxx
Treasurer
Address for Notices:
0000 Xxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxx
Vice President of Finance
Telephone: 000-000-0000
Telecopier: 000-000-0000
ATTEST: METAL IMPROVEMENT COMPANY, INC.
By /s/ Xxxx X. Xxxxxxxx By /s/ Xxxx Xxxxxxxx
Title: A.G.C. Xxxx X. Xxxxxxxx
Treasurer
[Corporate Seal]
Address for Notices:
0000 Xxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxx
Vice President of Finance
Telephone: 000-000-0000
Telecopier: 000-000-0000
ATTEST: XXXXXXX-XXXXXX ANTRIEBSTECHNIK GmbH
By /s/ Xxxx X. Xxxxxxxx By /s/ X. X. Xxxxxxxx
Title: Assistant General Counsel Xxxxxx X. Xxxxxxxx
Manager
[Corporate Seal]
Address for Notices:
0000 Xxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxx
Vice President of Finance
Telephone: 000-000-0000
Telecopier: 000-000-0000
MELLON BANK, N.A., individually
and as Agent
By /s/ X.X. Xxxx
J. Xxxx Xxxx
Vice President
Initial Revolving Credit
Committed Amount: $15,000,000
Commitment Percentage: 25%
Address for Notices:
0000 Xxxxxx Xxxxxx
AIM 191-0750
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: J. Xxxx Xxxx
Vice President
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
EUROPEAN AMERICAN BANK
By /s/ Xxxxxxx X. Xxxxxxx
Title: Vice President
Initial Revolving Credit
Committed Amount: $9,000,000
Commitment Percentage: 15%
Address for Notices:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
SCOTIABANC INC.
By /s/ X. Xxxxx
Title:
Initial Revolving Credit
Committed Amount: $13,500,000
Commitment Percentage: 22.5%
Address for Notices:
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
PNC BANK, NATIONAL ASSOCIATION
By /s/ Xxxx X. Land
Title: Vice President
Initial Revolving Credit
Committed Amount: $13,500,000
Commitment Percentage: 22.5%
Address for Notices:
1 Garret Xxxxxxxx Xxxxx
0xx Xxxxx
Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxx Xxxxxx
Xxxx Land
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
SUNTRUST BANK, ATLANTA
By /s/ W. Xxxxx Xxxxxx
Title: Vice PResident
Initial Revolving Credit
Committed Amount: $9,000,000
Commitment Percentage: 15%
Address for Notices:
00 Xxxx Xxxxx
00xx Xxxxx
Xxxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn:
Telephone:
Telecopier:
EXHIBIT A
to Credit Agreement
FORM OF REVOLVING CREDIT NOTE
Revolving Credit Note
$ Pittsburgh, Pennsylvania
------------------ ----------, 1999
FOR VALUE RECEIVED, the undersigned, [NAME OF BORROWER], a
corporation (the "Borrower"), promises to pay to the order of [NAME OF THE
LENDER] (the "Lender") on or before the Revolving Credit Maturity Date (as
defined in the Agreement referred to below), and at such earlier dates as may be
required by such Agreement, the lesser of (i) the principal sum of
($ ) or (ii) the aggregate
--------------------------- ----------
unpaid principal amount of all Revolving Credit Loans made by the Lender to the
Borrower from time to time pursuant to the Agreement. The Borrower further
promises to pay to the order of the Lender interest on the unpaid principal
amount hereof from time to time outstanding at the rate or rates per annum
determined pursuant to the Agreement, payable on the dates set forth in the
Agreement.
This Note is one of the "Revolving Credit Notes" as referred
to in, and is entitled to the benefits of, the Credit Agreement, dated as of
December 20, 1999 by and among the Borrower, the other Borrowers party thereto
from time to time, the Lenders party thereto from time to time, the Issuing
Banks from time to time thereunder, and Mellon Bank, N.A., as Agent (as the same
may be amended, modified or supplemented from time to time, the "Agreement"),
which among other things provides for the acceleration of the maturity hereof
upon the occurrence of certain events and for prepayments in certain
circumstances and upon certain terms and conditions.
Terms defined in the Agreement have the same meanings herein.
The Borrower hereby expressly waives presentment, demand,
notice, protest and all other demands and notices in connection with the
delivery, acceptance, performance, default or enforcement of this Note and the
Agreement, and an action for amounts due hereunder or thereunder shall
immediately accrue.
This Note shall be governed by, construed and enforced in
accordance with the laws of the State of New York, without regard to principles
of conflicts of law.
[NAME OF BORROWER]
By
Name:
Title:
EXHIBIT B
to Credit Agreement
FORM OF OPINION OF COUNSEL
Letterhead of Associate General Counsel of Xxxxxxx-Xxxxxx Corporation
December 20, 1999
Mellon Bank, N.A., as Agent
for the Lenders identified on Annex 1 hereto
Re: Credit Agreement dated as of December 20, 1999 by and
among Xxxxxxx-Xxxxxx Corporation, the Subsidiary
Borrowers parties thereto from time to time, the
Lenders parties thereto from time to time, the
Issuing Banks referred to therein, Mellon Bank, N.A.,
as Agent, The Bank of Nova Scotia, New York Branch,
as Syndication Agent and PNC Bank, National
Association, as Documentation Agent
Short Term Credit Agreement dated as of December 20,
1999 by and among Xxxxxxx-Xxxxxx Corporation, the
Subsidiary Borrowers parties thereto from time to
time, the Lenders parties thereto from time to time,
Mellon Bank, N.A., as Agent, The Bank of Nova Scotia,
New York Branch, as Syndication Agent and PNC Bank,
National Association, as Documentation Agent
Gentlemen:
I am the Associate General Counsel of Xxxxxxx-Xxxxxx
Corporation, a Delaware corporation ("Xxxxxxx-Xxxxxx") and, in such capacity, I
am delivering this opinion to the Agent and the Lenders in connection with the
above referenced Credit Agreement and Short Term Credit Agreement and the Loan
Documents (as defined in the Credit Agreement and the Short Term Credit
Agreement) to which Xxxxxxx-Xxxxxx or any Subsidiary Borrower is a party.
Capitalized terms used in this opinion and not otherwise defined herein shall
have the meanings given them by that certain Credit Agreement. Capitalized terms
which are defined in the Credit Agreement and which are not otherwise defined in
this letter shall have the meanings ascribed to them in the Credit Agreement,
unless the context clearly requires otherwise. This opinion is being rendered
pursuant to Section 5.01(b) of the Credit Agreement.
In rendering this opinion, I or lawyers acting under my
supervision have examined originals or copies, certified or otherwise identified
to the satisfaction of such lawyers, of such documents, corporate records,
certificates of public officials and of officers of the Xxxxxxx-Xxxxxx and the
Subsidiary Borrowers (collectively, the "Borrower Entities") and other
instruments and have conducted such other investigations of fact and law as we
have deemed necessary or advisable for purposes of this opinion. We have
examined, among other documents, the following documents:
(i) the Articles of Incorporation and Bylaws of
each of the Borrower Entities;
(ii) certificates dated [date] of the Secretary of
State of [identify jurisdictions] certifying as to
the good standing of each of the Borrower Entities
in their respective jurisdictions of organization;
(iii) counterparts executed by the Borrower
Entities of each of the Loan Documents to which
such Borrower Entities are parties.
With your permission, we have assumed without any independent
investigation (a) that each party to the Loan Documents (other than the Borrower
Entities) (i) is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation; (ii) is duly authorized to
execute and deliver the Loan Documents and to consummate the transactions
contemplated by such Loan Documents; and (iii) has the full power and authority
to enter into the same for the purposes set forth therein; (b) that the Loan
Documents have been duly executed and delivered by each of the parties thereto
(other than the Borrower Entities), are in full force and effect with respect to
such parties and are the legal, valid and binding obligations of such parties,
enforceable against such parties (other than the Borrower Entities) in
accordance with the terms thereof; and (c) in respect of all documents and
instruments which were submitted to us, the capacity of natural persons, the
genuineness of all signatures (other than those of representatives of the
Borrower Entities on documents on which an opinion is expressed herein), the
authenticity of all documents and instruments submitted to us as originals, the
conformity to the originals of all documents and instruments submitted to us as
copies and the execution of all documents and instruments in the form of such
documents and instruments submitted to us in execution form.
Upon the basis of and subject to the foregoing and subject to
the exceptions, limitations, assumptions and qualifications set forth below, I
am of the opinion that:
1. Each Borrower Entity is a corporation duly organized,
existing and in good standing under the laws of its state of incorporation, has
the corporate power and authority to enter into, deliver and perform under and
pursuant to the Loan Documents to which it is a party, to own its property and
to carry on its business as it is now conducted, and is duly qualified to do
business in each jurisdiction where the character of the property owned by it
therein or in which the transaction of its business makes such qualification
necessary, except where the failure to so qualify would not have a material
adverse effect on the assets, business, operations or financial condition of
such Borrower Entity.
2. The execution, delivery and performance by each Borrower
Entity of the Credit Agreement, the Short Term Credit Agreement and the other
Loan Documents to which it is a party has been duly authorized by all necessary
corporate action. The execution and delivery by the Borrower Entities of the
foregoing documents, the making of the borrowings contemplated by the Credit
Agreement and the Short Term Credit Agreement, the execution, delivery and
issuance of the Notes by the Borrower Entities pursuant to the Credit Agreement
and the Short Term Credit Agreement to evidence such borrowings and the
performance of the Borrower Entities under the Loan Documents require no (i)
approval of any official body or (ii) approval of any other third party.
3. The Credit Agreement, the Short Term Credit Agreement and
the other Loan Documents to which the Borrower is a party have been duly and
validly executed and delivered by the Borrower and constitute valid, legal and
binding obligations of the Borrower enforceable in accordance with their
respective terms.
4. The execution and delivery of the Credit Agreement, the
Short Term Credit Agreement and the other Loan Documents by each Borrower
Entity, the consummation of the transactions therein contemplated, and
compliance with the terms and provisions thereof (a) will not conflict with or
result in any breach of the terms and conditions of the Articles of
Incorporation or Bylaws of such Borrower Entity or of any law or regulation, and
(b) to the best of my knowledge, after due inquiry, will not conflict with or
result in any breach of the terms and conditions of any order, writ, injunction
or decree of any court or governmental instrumentality or of any agreement or
instrument to which such Borrower Entity is bound or to which such Borrower
Entity is subject, or constitute a default thereunder.
The foregoing opinions are subject to the following
exceptions, limitations, assumptions and qualifications:
A. Our opinions are subject to the effect of bankruptcy,
insolvency, fraudulent conveyance and transfer and other laws of general
application relating to or affecting the enforcement of creditors rights and of
general principles of equity, judicial discretion and general requirements of
good faith, fair dealing and commercial reasonableness (regardless of whether
relief is sought in an action at law or in equity).
B. Our opinions are further subject to public policy
considerations which may limit the rights of the Agent or the Lenders to obtain
certain remedies and to indemnifications, but should not make the remedies
provided in the Loan Documents inadequate for the practical realization of the
benefits intended thereby.
C. This opinion is furnished solely for your benefit in
connection with the transactions contemplated by the Credit Agreement, the Short
Term Credit Agreement and the other Loan Documents. You may not rely on this
opinion for any other purpose, and no other person may rely on this opinion for
any purpose without the express written consent of the undersigned. This opinion
is limited to the matters set forth herein, and no opinion may be inferred or
implied beyond the matters expressly stated in this letter.
Very truly yours,
Annex I
Mellon Bank, N.A.
Scotiabanc Inc.
PNC Bank, National Association
SunTrust Bank, Atlanta
European American Bank
EXHIBIT C
to Credit Agreement
FORM OF QUARTERLY COMPLIANCE CERTIFICATE
XXXXXXX-XXXXXX CORPORATION
Quarterly Compliance Certificate
Pursuant to the Credit Agreement, dated as of December 20,
1999 by and among Xxxxxxx-Xxxxxx Corporation, a Delaware corporation
("Xxxxxxx-Xxxxxx"), the Subsidiary Borrowers party thereto from time to time
(collectively with Xxxxxxx-Xxxxxx, the "Borrowers" and each individually a
"Borrower"), the Lenders from time to time party thereto, the Issuing Banks from
time to time thereunder, and Mellon Bank, N.A., as Agent (as the same may be
amended, modified or supplemented from time to time, the "Agreement"), the
undersigned, being a Responsible Officer of the Borrower, hereby certifies on
behalf of the Borrower as follows:
1. Delivered herewith are the financial statements prepared
pursuant to Section 6.01(a) or Section 6.01(b), as the case may be, of the
Agreement, for the fiscal ________ ended ___________, _____. All such financial
statements comply with the applicable requirements of the Agreement.
2. Schedule I hereto sets forth in reasonable detail the
information and calculations necessary to establish compliance with the
provisions of Sections 7.01 and 7.02 of the Agreement as of the end of the
fiscal period referred to in paragraph 1 above.
3. (Check one and only one:)
___ No Event of Default or Potential Default has occurred and
is continuing or exists.
___ An Event of Default or Potential Default has occurred and
is continuing or exists, and the document(s) attached hereto as Schedule II
specify in detail the nature and period of existence of such Event of Default or
Potential Default as well as any and all actions with respect thereto taken or
contemplated to be taken by the applicable Borrower.
4. The undersigned has personally reviewed the Agreement, and
this certificate was based on an examination made by or under the supervision of
the undersigned sufficient to assure that this certificate is accurate.
5. Capitalized terms used in this certificate and not
otherwise defined shall have the meanings given in the Agreement.
XXXXXXX-XXXXXX CORPORATION
By:
Name:
Title:
Date
-4-
EXHIBIT D
to Credit Agreement
FORM OF TRANSFER SUPPLEMENT
Transfer Supplement
THIS TRANSFER SUPPLEMENT, dated as of the date specified in
Item 1 of Schedule I hereto, among the Transferor Lender specified in Item 2 of
Schedule I hereto (the "Transferor Lender"), each Purchasing Lender specified in
Item 3 of Schedule I hereto (each a "Purchasing Lender") and Mellon Bank, N.A.,
as Agent for the Lenders under the Agreement described below.
Recitals:
A. This Transfer Supplement is being executed and delivered in
accordance with Section 10.14(c) of the Agreement, dated as of December 20,
1999, by and among Xxxxxxx-Xxxxxx Corporation, a Delaware corporation
("Xxxxxxx-Xxxxxx"), the Subsidiary Borrowers party thereto from time to time
(collectively with Xxxxxxx-Xxxxxx, the "Borrowers" and each individually a
"Borrower"), the Lenders party thereto from time to time, the Issuing Banks from
time to time thereunder, and Mellon Bank, N.A., as Agent for the Lenders (as the
same may be amended, modified or supplemented from time to time, the
"Agreement"). Capitalized terms used herein without definition have the meaning
specified in the Agreement.
B. Each Purchasing Lender (if it is not already a Lender)
wishes to become a Lender party to the Agreement.
C. The Transferor Lender is selling and assigning to each
Purchasing Lender, and each Purchasing Lender is purchasing and assuming, a
certain portion of the Transferor Lender's rights and obligations under the
Agreement, including, without limitation, the Transferor Lender's Commitments
and Loans owing to it and any Notes held by it (the "Transferor Lender's
Interests").
NOW, THEREFORE, the parties hereto, intending to be legally
bound, hereby agree as follows:
Section 1. Transfer Effective Notice. Upon receipt by the
Agent of five counterparts of this Transfer Supplement (to each of which is
attached a fully completed Schedule I and Schedule II), and each of which has
been executed by the Transferor Lender, by each Purchasing Lender and by any
other Person required by Section 10.14(c) of the Agreement to execute this
Transfer Supplement, the Agent will transmit to Xxxxxxx-Xxxxxx, the Transferor
Lender and each Purchasing Lender a transfer effective notice, substantially in
the form of Schedule III to this Transfer Supplement (a "Transfer Effective
Notice"). The date specified in such Transfer Effective Notice as the date on
which the transfer effected by this Transfer Supplement shall become effective
(the "Transfer Effective Date") shall be the fifth Business Day following the
date of such Transfer Effective Notice or such other date as shall be agreed
upon among the Transferor Lender, the Purchasing Lender, the Agent and
Xxxxxxx-Xxxxxx. From and after the close of business at the Agent's Office on
the Transfer Effective Date each Purchasing Lender (if not already a Lender
party to the Agreement) shall be a Lender party to the Agreement for all
purposes thereof having the respective interests in the Transferor Lender's
interests reflected in this Transfer Supplement.
Section 2. Purchase Price; Sale. At or before 12:00 Noon,
local time at the Transferor Lender's office specified in Schedule II, on the
Transfer Effective Date, each Purchasing Lender shall pay to the Transferor
Lender, in immediately available funds, an amount equal to the purchase price,
as agreed between the Transferor Lender and such Purchasing Lender (the
"Purchase Price"), of the portion being purchased by such Purchasing Lender
(such Purchasing Lender's "Purchased Percentage") of the Transferor Lender's
Interests. Effective upon receipt by the Transferor Lender of the Purchase Price
from a Purchasing Lender, the Transferor Lender hereby irrevocably sells,
assigns and transfers to such Purchasing Lender, without recourse,
representation or warranty (express or implied) except as set forth in Section 6
hereof, and each Purchasing Lender hereby irrevocably purchases, takes and
assumes from the Transferor Lender such Purchasing Lender's Purchased Percentage
of the Transferor Lender's Interests. The Transferor Lender shall promptly
notify the Agent of the receipt of the Purchase Price from a Purchasing Lender
("Purchase Price Receipt Notice"). Upon receipt by the Agent of such Purchase
Price Receipt Notice, the Agent shall record in the Register the information
with respect to such sale and purchase as contemplated by Section 10.14(d) of
the Agreement.
Section 3. Principal, Interest and Fees. All principal
payments, interest, fees and other amounts that would otherwise be payable under
the Loan Documents from and after the Transfer Effective Date to or for the
account of the Transferor Lender in respect of the Transferor Lender's Interests
shall, instead, be payable to or for the account of the Transferor Lender and
the Purchasing Lenders, as the case may be, in accordance with their respective
interests as reflected in this Transfer Supplement.
Section 4. Closing Documents. Concurrently with the execution
and delivery hereof, the Transferor Lender will request that Xxxxxxx-Xxxxxx
provide to each Purchasing Lender (if it is not already a Lender party to the
Agreement) conformed copies of all Loan Documents delivered to such Transferor
Lender on the Closing Date in satisfaction of conditions precedent set forth in
the Agreement.
Section 5. Further Assurances. Each of the parties to this
Transfer Supplement agrees that at any time and from time to time upon the
written request of any other party, it will execute and deliver such further
documents and do such further acts and things as such other party may reasonably
request in order to effect the purposes of this Transfer Supplement.
Section 6. Certain Representations and Agreements. By
executing and delivering this Transfer Supplement, the Transferor Lender and
each Purchasing Lender confirm to and agree with each other and the Agent and
the Lenders as follows:
(a) Other than the representation and warranty that it is the
legal and beneficial owner of the interest being assigned hereby free
and clear of any adverse claim, the Transferor Lender makes no
representation or warranty and assumes no responsibility with respect
to (i) the execution, delivery, effectiveness, enforceability,
genuineness, validity or adequacy of the Agreement or any other Loan
Document, (ii) any recital, representation, warranty, document,
certificate, report or statement in, provided for in, received under or
in connection with, the Agreement or any other Loan Document, or (iii)
the existence, validity, enforceability, perfection, recordation,
priority, adequacy or value, now or hereafter, of any Lien or other
direct or indirect security afforded or purported to be afforded by any
of the Loan Documents or otherwise from time to time.
(b) The Transferor Lender makes no representation or warranty
and assumes no responsibility with respect to (i) the performance or
observance of any of the terms or conditions of the Agreement or any
other Loan Document on the part of the Borrowers, (ii) the business,
operations, condition (financial or otherwise) or prospects of the
Borrowers or any other Person, or (iii) the existence of any Event of
Default or Potential Default.
(c) Each Purchasing Lender confirms that it has received a
copy of the Agreement and each of the other Loan Documents, together
with copies of the financial statements referred to in Section 4.05
thereof, the most recent financial statements delivered pursuant to
Section 6.01 thereof, if any, and such other documents and information
as it has deemed appropriate to make its own credit and legal analysis
and decision to enter into this Transfer Supplement. Each Purchasing
Lender confirms that it has made such analysis and decision
independently and without reliance upon the Agent, the Transferor
Lender or any other Lender.
(d) Each Purchasing Lender, independently and without reliance
upon the Agent, the Transferor Lender or any other Lender, and based on
such documents and information as it shall deem appropriate at the
time, will make its own decisions to take or not take action under or
in connection with the Agreement or any other Loan Document.
(e) Each Purchasing Lender that is not a Lender and that is
not chartered under the laws of the United States or a state thereof
shall provide Xxxxxxx-Xxxxxx and the Agent with any documentation
either of them may reasonably request pertaining to withholding taxes
and backup withholding.
(f) Each Purchasing Lender irrevocably appoints the Agent to
act as Agent for such Purchasing Lender under the Agreement and the
other Loan Documents, all in accordance with Article IX of the
Agreement and the other provisions of the Agreement and the other Loan
Documents.
(g) Each Purchasing Lender agrees that it will perform in
accordance with their terms all of the obligations which by the terms
of the Agreement and the other Loan Documents are required to be
performed by it as a Lender.
Section 7. Schedule II. Schedule II hereto sets forth the
revised Commitments of the Transferor Lender and each Purchasing Lender as well
as administrative information with respect to each Purchasing Lender.
Section 8. Governing Law. This Transfer Supplement shall be
governed by, construed and enforced in accordance with the laws of the State of
New York, without regard to principles of conflicts of law.
Section 9. Counterparts. This Transfer Supplement may be
executed on any number of counterparts and by the different parties hereto on
separate counterparts each of which, when so executed, shall be deemed an
original, but all such counterparts shall constitute but one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Transfer Supplement to be executed by their respective duly authorized officers
on Schedule I hereto as of the date set forth in Item 1 of Schedule I hereto.
-2-
SCHEDULE I
To Transfer Supplement
COMPLETION OF INFORMATION AND
SIGNATURES FOR TRANSFER SUPPLEMENT
Re: Credit Agreement, dated as of December 20, 1999, by and among
Xxxxxxx-Xxxxxx Corporation, a Delaware corporation ("Xxxxxxx-Xxxxxx"),
the Subsidiary Borrowers party thereto from time to time (collectively
with Xxxxxxx-Xxxxxx, the "Borrowers" and each individually a
"Borrower") the Lenders party thereto from time to time, the Issuing
Banks from time to time thereunder, and Mellon Bank, N.A., as Agent for
the Lenders (as amended, modified or supplemented from time to time,
the "Agreement")
Item 1 (Date of Transfer [INSERT DATE OF
Supplement): TRANSFER SUPPLEMENT]
Item 2 (Transferor Lender): [INSERT NAME OF TRANSFEROR
LENDER]
Item 3 (Purchasing Lender[s]): [INSERT NAME[S] OF
PURCHASING LENDER[S]]
Item 4 (Signatures of Parties
to Transfer Supplement):
[NAME OF TRANSFEROR LENDER]
as Transferor Lender
By:
Name:
Title:
[NAME OF PURCHASING LENDER]
as Purchasing Lender
By:
Name:
Title:
[NAME OF PURCHASING LENDER]
as Purchasing Lender
By:
Name:
Title:
[Following consents required only
when Purchasing Lender is not a Lender]
CONSENTED TO AND ACKNOWLEDGED:
MELLON BANK, N.A., as Agent
By:
Name:
Title:
CONSENTED TO AND ACKNOWLEDGED:
XXXXXXX-XXXXXX CORPORATION
By:
Name:
Title:
CONSENTED TO AND ACKNOWLEDGED:
[Name of ISSUING BANKS]
By:
Name:
Title:
ACCEPTED FOR RECORDATION
IN REGISTER:
MELLON BANK, N.A., as Agent
By:
Name:
Title:
SCHEDULE II
to Transfer Supplement
LIST OF LENDING OFFICES, ADDRESSES
FOR NOTICES AND COMMITTED AMOUNTS
[NAME OF TRANSFEROR
LENDER, LENDING
OFFICE AND ADDRESS] Revised Commitment and Loan Amounts:
Revolving Credit
Committed Amount $
Commitment Percentage of
Revolving Credit Commitment: %
[NAME OF PURCHASING
LENDER] New Commitment and Loan Amounts:
Revolving Credit
Committed Amount $
Commitment Percentage of
Revolving Credit Commitment: %
Administrative Information
for Purchasing Lender:
Address:
Attention:
Telephone:
Telecopier:
5
SCHEDULE III
to Transfer Supplement
Transfer Effective Notice
To: Xxxxxxx-Xxxxxx Corporation
[INSERT NAME OF TRANSFEROR
LENDER AND EACH PURCHASING LENDER]
The undersigned, as Agent under the Credit Agreement, dated as
of December 20, 1999, by and among Xxxxxxx-Xxxxxx Corporation, a Delaware
corporation ("Xxxxxxx-Xxxxxx"), the Subsidiary Borrowers party thereto from time
to time (collectively with Xxxxxxx-Xxxxxx, the "Borrowers" and each individually
a "Borrower"), the Lenders party thereto from time to time, the Issuing Banks
from time to time thereunder, and Mellon Bank, N.A., as Agent for the Lenders
(as the same may be amended, modified or supplemented from time to time, the
"Credit Agreement"), acknowledges receipt of five executed counterparts of a
completed Transfer Supplement, dated
, from [NAME OF TRANSFEROR LENDER] to [NAME OF EACH PURCHASING
LENDER] (the "Transfer Supplement"). Terms defined in the Transfer Supplement
are used herein as therein defined.
1. Pursuant to the Transfer Supplement, you are advised that
the Transfer Effective Date will be , ____. [INSERT FIFTH BUSINESS DAY FOLLOWING
DATE OF TRANSFER EFFECTIVE NOTICE OR OTHER DATE AGREED TO AMONG THE TRANSFEROR
LENDER, THE PURCHASING LENDER, THE AGENT AND XXXXXXX-XXXXXX.]
2. Pursuant to Section 10.14(c) of the Credit Agreement, the
Transferor Lender has delivered to the Agent the Transferor Lender Notes.
3. Section 10.14(c) of the Credit Agreement provides that the
Borrowers are to deliver to the Agent on or before the Transfer Effective Date
the following Notes, each dated the date of the Note it replaces, and the
replaced Notes shall be marked cancelled and returned to the Borrowers.
[DESCRIBE EACH NEW REVOLVING CREDIT NOTE AND/OR SUBSIDIARY
NOTE FOR TRANSFEROR LENDER AND PURCHASING LENDER AS TO DATE (AS REQUIRED BY THE
CREDIT AGREEMENT), PRINCIPAL AMOUNT AND PAYEE.]
4. The Transfer Supplement provides that each Purchasing
Lender is to pay its Purchase Price to the Transferor Lender at or before 12:00
Noon, local time at the Transferor Lender's lending office specified in Schedule
II to the Transfer Supplement, on the Transfer Effective Date in immediately
available funds.
Very truly yours,
MELLON BANK, N.A., as Agent
By:
Name:
Title:
EXHIBIT E
to Credit Agreement
FORM OF XXXXXXX-XXXXXX GUARANTY
GUARANTY AND SURETYSHIP AGREEMENT
THIS GUARANTY AND SURETYSHIP AGREEMENT (this "Guaranty") dated
as of the 20th day of December, 1999, made by XXXXXXX-XXXXXX CORPORATION, a
Delaware corporation ("Guarantor"), to the lenders parties hereto from time to
time (the "Lenders", as defined further below) and MELLON BANK, N.A., a national
banking association, as agent for the Lenders (in such capacity, together with
its successors in such capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, Guarantor, the Subsidiary Borrowers, the Lenders, the
Issuing Banks and the Agent are parties to a Credit Agreement, dated as of
December 20, 1999 (as amended, the "Credit Agreement"); and
WHEREAS, pursuant to the terms of the Credit Agreement,
Lenders may make certain Loans to one or more Subsidiaries of Guarantor (each, a
"Borrower"), as evidenced in part by certain promissory notes of each such
Borrower to each Lender dated of even date herewith (collectively, the "Note");
and
WHEREAS, the execution and delivery by Guarantor of this
Guaranty is a condition to Lenders' obligation to make Loans to any Borrower,
and Guarantor, as owner, directly or indirectly, of all of the outstanding
shares of stock of each Borrower, expects to derive a financial benefit from the
making of such Loans.
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt of which is hereby acknowledged by
Guarantor, and intending to be legally bound, Guarantor hereby agrees as
follows:
ARTICLE I
DEFINITIONS
1.1 Definitions.
(a) Certain Definitions. Capitalized terms not otherwise defined herein shall
have the meanings given in the Credit Agreement. In addition to the other terms
defined elsewhere in this Agreement, as used herein the following terms shall
have the following meanings:
"Guaranteed Obligations" shall mean all obligations from time
to time of the Borrowers to the Agent or any Lender under or in
connection with any Loan Document, including all obligations to pay
principal, interest, fees, indemnities or other amounts under such Loan
Documents, in each case whether such obligations are direct or
indirect, secured or unsecured, joint or several, absolute or
contingent, due or to become due, whether for payment or performance,
now existing or hereafter arising (including interest and other
obligations arising or accruing after the commencement of any
bankruptcy, insolvency, reorganization, dissolution or similar
proceeding with respect to any Borrower or any other Person, or which
would have arisen or accrued but for the commencement of such
proceeding, even if such obligation or the claim therefor is not
enforceable or allowable in such proceeding).
ARTICLE II
GUARANTY AND SURETYSHIP
2.1. Guaranty and Suretyship. The Guarantor hereby absolutely,
unconditionally and irrevocably guarantees and becomes surety for the full and
punctual payment and performance of the Guaranteed Obligations as and when such
payment or performance shall become due (at scheduled maturity, by acceleration
or otherwise) in accordance with the terms of the Loan Documents. This Agreement
is an agreement of suretyship as well as of guaranty, is a guarantee of payment
and performance and not merely of collectibility, and is in no way conditioned
upon any attempt to collect from or proceed against any Borrower or any other
Person or any other event or circumstance. The obligations of the Guarantor
under this Agreement are direct and primary obligations of the Guarantor and are
independent of the Guaranteed Obligations, and a separate action or actions may
be brought against the Guarantor regardless of whether action is brought against
any Borrower or any other Person or whether such Borrower or any other Person is
joined in any such action or actions.
2.2. Obligations Absolute. The Guarantor agrees that the
Guaranteed Obligations will be paid and performed strictly in accordance with
the terms of the Loan Documents, regardless of any law, regulation or order now
or hereafter in effect in any jurisdiction affecting the Guaranteed Obligations,
any of the terms of the Loan Documents or the rights of the Agent or any Lender
or any other Person with respect thereto. The obligations of the Guarantor under
this Agreement shall be absolute, unconditional and irrevocable, irrespective of
any of the following:
(a) any lack of legality, validity, enforceability,
allowability (in a bankruptcy, insolvency, reorganization, dissolution
or similar proceeding, or otherwise), or any avoidance or
subordination, in whole or in part, of any Loan Document or any of the
Guaranteed Obligations;
(b) any change in the amount, nature, time, place or manner of
payment or performance of, or in any other term of, any of the
Guaranteed Obligations (whether or not such change is contemplated by
the Loan Documents as presently constituted, and specifically including
any increase in the Guaranteed Obligations, whether resulting from the
extension of additional credit to any Borrower or otherwise), any
execution of any additional Loan Documents, or any amendment or waiver
of or any consent to departure from any Loan Document;
(c) any taking, exchange, release, impairment or nonperfection
of any collateral, or any taking, release, impairment or amendment or
waiver of or consent to departure from any other guaranty or other
direct or indirect security for any of the Guaranteed Obligations;
(d) any manner of application of collateral or other direct or
indirect security for any of the Guaranteed Obligations, or proceeds
thereof, to any of the Guaranteed Obligations, or any commercially
reasonable manner of sale or other disposition of any collateral for
any of the Guaranteed Obligations or any other assets of any Borrower;
(e) any permanent impairment by any Lender or any other Person
of any recourse of the Guarantor against any Borrower or any other
Person, or any other permanent impairment by any Lender or any other
Person of the suretyship status of the Guarantor;
(f) any bankruptcy, insolvency, reorganization, dissolution or
similar proceedings with respect to, or any change, restructuring or
termination of the corporate structure or existence of, any Borrower,
the Guarantor or any other Person; or
(g) any failure of any Lender or any other Person to disclose
to the Guarantor any information pertaining to the business,
operations, condition (financial or other) or prospects of any Borrower
or any other Person, or to give any other notice, disclosure or demand.
2.3. Waivers, etc. The Guarantor hereby irrevocably waives any
defense to or limitation on its obligations under this Agreement arising out of
or based upon any matter referred to in Section 2.2 and, without limiting the
generality of the foregoing, any requirement of promptness, diligence or notice
of acceptance, any other notice, disclosure or demand with respect to any of the
Guaranteed Obligations and this Agreement, any requirement of acceptance hereof,
reliance hereon or knowledge hereof by the Agent or any Lender, and any
requirement that the Agent or any Lender protect, secure, perfect or insure any
lien or any property subject thereto or exhaust any right or take any action
against any Borrower or any other Person or any collateral or other direct or
indirect security for any of the Guaranteed Obligations. Notwithstanding the
foregoing sentence, the Guarantor's waiver under this Section 2.3 shall apply
only to the Guarantor's obligations hereunder and shall not limit or waive any
of the Guarantor's rights or obligations as a borrower under the Credit
Agreement.
2.4. Reinstatement. This Agreement shall continue to be
effective, or be automatically reinstated, as the case may be, if at any time
payment of any of the Guaranteed Obligations is avoided, rescinded or must
otherwise be returned by the Agent or any Lender for any reason, all as though
such payment had not been made.
2.5. No Stay. Without limiting the generality of any other
provision of this Agreement, if any acceleration of the time for payment or
performance of any Guaranteed Obligation, or any condition to any such
acceleration, shall at any time be stayed, enjoined or prevented for any reason
(including stay or injunction resulting from the pendency against any Borrower
or any other Person of a bankruptcy, insolvency, reorganization, dissolution or
similar proceeding), the Guarantor agrees that, for purposes of this Agreement
and its obligations hereunder, at the option of the Agent such Guaranteed
Obligation shall be deemed to have been accelerated and such condition to
acceleration shall be deemed to have been met.
2.6. Payments. All payments to be made by the Guarantor
pursuant to this Agreement shall be made at the times and in the manner
prescribed for payments in Articles II and III of the Credit Agreement, without
setoff, counterclaim, withholding or other deduction of any nature. All payments
made by the Guarantor pursuant to this Agreement may be applied to the
Guaranteed Obligations and all other amounts payable under this Agreement in
such order as the Agent may elect.
2.7. Subrogation, Etc. Any rights which the Guarantor may have
or acquire by way of subrogation, reimbursement, restitution, exoneration,
contribution or indemnity, and any similar rights (whether arising by operation
of law, by agreement or otherwise), against any Borrower arising from the
existence, payment, performance or enforcement of any of the obligations of the
Guarantor under or in connection with this Agreement, shall be subordinate in
right of payment to the Guaranteed Obligations, and the Guarantor shall not
exercise any such rights until all Guaranteed Obligations and all other
obligations under this Agreement have been paid in cash or in such other manner
as may be acceptable to the Agent and performed in full and all commitments to
extend credit under, and all Letters of Credit issued under, the Loan Documents
shall have terminated. If, notwithstanding the foregoing, any amount shall be
received by the Guarantor on account of any such rights at any time prior to the
time at which all Guaranteed Obligations and all other obligations under this
Agreement shall have been paid in cash or in such other manner as may be
acceptable to the Agent and performed in full and all commitments to extend
credit under, and all Letters of Credit issued under, the Loan Documents shall
have terminated, such amount shall be held by the Guarantor in trust for the
benefit of the Lenders, segregated from other funds held by the Guarantor, and
shall be forthwith delivered to Agent for the benefit of the Lenders in the
exact form received by the Guarantor (with any necessary endorsement), to be
applied to the Guaranteed Obligations, whether matured or unmatured, in such
order as the Agent may elect, or to be held by the Agent as security for the
Guaranteed Obligations and disposed of by the Agent in any lawful manner, all as
the Agent may elect.
2.8. Continuing Agreement. This Agreement is a continuing
guaranty and shall continue in full force and effect until all Guaranteed
Obligations and all other amounts payable under this Agreement have been paid in
cash or such other manner as may be acceptable to the Agent and performed in
full, and all commitments to extend credit under, and all Letters of Credit
issued under, the Loan Documents have terminated, subject in any event to
reinstatement in accordance with Section 2.4. Without limiting the generality of
the foregoing, the Guarantor hereby irrevocably waives any right to terminate or
revoke this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Guarantor hereby represents and warrants to the Agent and
the Lenders as follows:
3.1. Credit Agreement. The provisions of Article IV of the
Credit Agreement are hereby incorporated by reference (together with all related
definitions and cross references). The Guarantor hereby represents and warrants
to the Agent and the Lenders as provided therein.
3.2. Representations and Warranties Remade at Each Extension
of Credit. Each request (including any deemed request) by any Borrower for any
extension of credit under any Loan Document shall be deemed to constitute a
representation and warranty by the Guarantor to the Agent and the Lenders that
the representations and warranties made by the Guarantor in this Article III are
true and correct on and as of the date of such request with the same effect as
though made on and as of such date. Failure by the Agent to receive notice from
the Guarantor to the contrary before the Lenders make any extension of credit
under any Loan Document shall constitute a further representation and warranty
by the Guarantor to the Agent and the Lenders that the representations and
warranties made by the Guarantor in this Article III are true and correct on and
as of the date of such extension of credit with the same effect as though made
on and as of such date.
ARTICLE IV
COVENANTS
4.1. Covenants Generally. Reference is hereby made to the
provisions of Articles VI and VII of the Credit Agreement (together with all
related definitions and cross-references). To the extent such provisions impose
upon any Borrower a duty to cause the Guarantor (or a Subsidiary of the
Guarantor) to do or refrain from doing certain acts or things or to meet or
refrain from meeting certain conditions, the Guarantor shall (or shall cause
such Subsidiary of the Guarantor to, as the case may be) do or refrain from
doing such acts or things, or meet or refrain from meeting such conditions, as
the case may be.
ARTICLE V
MISCELLANEOUS
5.1. Amendments, etc. No amendment to or waiver of any
provision of this Agreement, and no consent to any departure by the Guarantor
herefrom, shall in any event be effective unless in a writing manually signed by
or on behalf of each Lender. Any such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given.
5.2. No Implied Waiver; Remedies Cumulative. No delay or
failure of the Agent or any Lender in exercising any right or remedy under this
Agreement shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right or remedy preclude any other or further exercise
thereof or the exercise of any other right or remedy. The rights and remedies of
the Agent and the Lenders under this Agreement are cumulative and not exclusive
of any other rights or remedies available hereunder, under any other agreement,
at law, or otherwise.
5.3. Notices. Except to the extent, if any, otherwise
expressly provided herein, all notices and other communications (collectively,
"notices") under this Agreement shall be in writing (including facsimile
transmission) and shall be sent by certified or registered mail, by
nationally-recognized overnight courier or by personal delivery. All notices
shall be sent to the address specified in the Credit Agreement for the
applicable party, or, in any case, to such other address as shall have been
designated by the applicable party by notice to the other party hereto. Any
properly given notice shall be effective when received, except that properly
given notices to the Guarantor shall be effective at the following time, if
earlier: if given by telephone, when telephoned; if by first-class mail, three
Business Days after deposit in the mail; if by overnight courier, one Business
Day after pickup by such courier; and if by facsimile transmission, upon
transmission. The Agent and the Lenders may rely on any notice (whether or not
made in a manner contemplated by this Agreement) purportedly made by or on
behalf of the Guarantor, and Agent and the Lenders shall have no duty to verify
the identity or authority of the Person giving such notice.
5.4. Expenses. The Guarantor agrees to pay upon demand all
reasonable expenses (including reasonable fees and expenses of counsel) which
the Agent or any Lender may incur from time to time arising from or relating to
the administration of, or exercise, enforcement or preservation of rights or
remedies under, this Agreement, other than costs and expenses incurred by the
Agent or any Lender, respectively, in connection with any litigation which
results in a final, non-appealable judgment against the Agent or such Lender.
5.5. Entire Agreement. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and
supersedes all prior and contemporaneous understandings and agreements.
5.6. Survival. All representations and warranties of the
Guarantor contained in or made in connection with this Agreement shall survive,
and shall not be waived by, the execution and delivery of this Agreement, any
investigation by or knowledge of the Agent or any Lender, any extension of
credit, or any other event or circumstance whatever.
5.7. Counterparts. This Agreement may be executed in any
number of counterparts, including facsimile counterparts, each of which shall be
deemed an original, and all such counterparts shall constitute but one and the
same agreement.
5.8. Setoff. In the event that any obligation of the Guarantor
now or hereafter existing under this Agreement or any other Loan Document shall
have become due and payable, after an Event of Default under the Loan Documents
has occurred, each Lender shall have the right from time to time, without notice
to the Guarantor, to set off against and apply to such due and payable amount
any obligation of any nature of each Lender to the Guarantor, including all
deposits (whether time or demand, general or special, provisionally or finally
credited, however evidenced) now or hereafter maintained by the Guarantor with
the Lender. Such right shall be absolute and unconditional in all circumstances
and, without limitation, shall exist whether such obligation to the Guarantor is
absolute or contingent, matured or unmatured (it being agreed that each Lender
may deem such obligation to be then due and payable at the time of such setoff),
regardless of the offices or branches through which the parties are acting with
respect to the offset obligations, regardless of whether the offset obligations
are denominated in the same or different currencies, and regardless of the
existence or adequacy of any other direct or indirect security or any other
right or remedy available to such Lender. Nothing in this Agreement or any other
Loan Document shall be deemed a waiver of or restriction on any right of setoff
or banker's lien available to any Lender under this Section 5.8, at law or
otherwise. The Guarantor hereby agrees that any affiliate of any Lender, and any
holder of a participation in any Guaranteed Obligations of the Guarantor under
this Agreement, shall have the same rights of setoff as each Lender as provided
in this Section 5.8 (regardless of whether such affiliate or participant
otherwise would be deemed a creditor of the Guarantor).
5.9. Construction. In this Agreement, unless the context
otherwise clearly requires, references to the plural include the singular, the
singular the plural, and the part the whole; the neuter case includes the
masculine and feminine cases; and "or" is not exclusive. In this Agreement, any
references to property (or similar terms) include any interest in such property
(or other item referred to); "include," "includes," "including" and similar
terms are not limiting; and "hereof," "herein," "hereunder" and similar terms
refer to this Agreement as a whole and not to any particular provision; Section
and other headings in this Agreement, and any table of contents herein, are for
reference purposes only and shall not affect the interpretation of this
Agreement in any respect. Section and other references in this Agreement are to
this Agreement unless otherwise specified. This Agreement has been fully
negotiated between the applicable parties, each party having the benefit of
legal counsel, and accordingly neither any doctrine of construction of
guaranties or suretyships in favor of the guarantor or surety, nor any doctrine
of construction of ambiguities against the party controlling the drafting, shall
apply to this Agreement.
5.10. Successors and Assigns. This Agreement shall be binding
upon the Guarantor, its successors and assigns, and shall inure to the benefit
of and be enforceable by the Agent, the Lender and their respective successors
and assigns. Without limitation of the foregoing, the Agent or any Lender (and
any successive assignee or transferee) from time to time may assign or otherwise
transfer all or any portion of its rights or obligations under the Loan
Documents (including all or any portion of any commitment to extend credit), or
any Guaranteed Obligations, to any other Person, and such Guaranteed Obligations
(including any Guaranteed Obligations resulting from extension of credit by such
other Person under or in connection with the Loan Documents) shall be and remain
Guaranteed Obligations entitled to the benefit of this Agreement, and to the
extent of its interest in such Guaranteed Obligations such other Person shall be
vested with all the benefits in respect thereof granted to the Agent or any
Lender, as the case may be, in this Agreement or otherwise.
5.11. Certain Legal Matters.
(A) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, EXCLUSIVE OF CHOICE OF LAW
PRINCIPLES.
(B) SUBMISSION TO JURISDICTION AND VENUE; CONSENT TO SERVICE OF PROCESS;
WAIVER OF JURY TRIAL; ETC. THE GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(I) AGREES THAT ANY ACTION, SUIT OR PROCEEDING BY ANY PERSON ARISING FROM
OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY
STATEMENT, COURSE OF CONDUCT, ACT, OMISSION OR EVENT IN CONNECTION WITH
ANY OF THE FOREGOING (COLLECTIVELY, "RELATED LITIGATION") MAY BE
BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION SITTING
IN THE CITY OR COUNTY OF NEW YORK, NEW YORK, SUBMITS TO THE
JURISDICTION OF SUCH COURTS, AND AGREES NOT TO BRING ANY RELATED
LITIGATION IN ANY OTHER FORUM (BUT NOTHING HEREIN SHALL AFFECT THE
RIGHT OF THE AGENT OR ANY LENDER TO BRING ANY RELATED LITIGATION IN ANY
OTHER FORUM);
(II) ACKNOWLEDGES THAT SUCH COURTS WILL BE THE MOST CONVENIENT FORUM FOR ANY
RELATED LITIGATION, WAIVES ANY OBJECTION TO THE LAYING OF VENUE OF ANY
RELATED LITIGATION BROUGHT IN ANY SUCH COURT, WAIVES ANY CLAIM THAT ANY
RELATED LITIGATION BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM, AND WAIVES ANY RIGHT TO OBJECT, WITH RESPECT TO ANY
RELATED LITIGATION, THAT SUCH COURT DOES NOT HAVE JURISDICTION OVER IT;
(III) CONSENTS AND AGREES TO SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER LEGAL
PROCESS IN ANY RELATED LITIGATION BY REGISTERED OR CERTIFIED U.S. MAIL,
POSTAGE PREPAID, TO IT AT THE ADDRESS FOR NOTICES DESCRIBED IN THIS
AGREEMENT, AND CONSENTS AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE
IN EVERY RESPECT VALID AND EFFECTIVE SERVICE (BUT NOTHING HEREIN SHALL
AFFECT THE VALIDITY OR EFFECTIVENESS OF PROCESS SERVED IN ANY OTHER
MANNER PERMITTED BY LAW); AND
(IV) WAIVES THE RIGHT TO TRIAL BY JURY IN ANY RELATED LITIGATION.
(C) LIMITATION OF LIABILITY. NO CLAIM MAY BE MADE BY THE GUARANTOR AGAINST THE
AGENT OR ANY LENDER OR ANY AFFILIATE, DIRECTOR, OFFICER, EMPLOYEE, ATTORNEY OR
AGENT OF THE AGENT OR ANY LENDER FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR
PUNITIVE DAMAGES IN RESPECT OF ANY CLAIM ARISING FROM OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY STATEMENT, COURSE OF CONDUCT, ACT,
OMISSION OR EVENT IN CONNECTION WITH ANY OF THE FOREGOING (WHETHER BASED ON
BREACH OF CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY); AND THE GUARANTOR
HEREBY WAIVES, RELEASES AND AGREES NOT TO XXX UPON ANY CLAIM FOR ANY SUCH
DAMAGES, WHETHER OR NOT ACCRUED AND WHETHER OR NOT KNOWN OR SUSPECTED TO EXIST.
THE GUARANTOR ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED BY LEGAL COUNSEL IN
CONNECTION WITH THE EXECUTION AND DELIVERY OF THIS AGREEMENT AND THAT IT
UNDERSTANDS THE PROVISIONS OF THIS AGREEMENT.
IN WITNESS WHEREOF, the Guarantor has executed and delivered
this Agreement as of the date first above written.
XXXXXXX-XXXXXX CORPORATION
By
Name:
Title:
EXHIBT F
to Credit Agreement
FORM OF SUBSIDIARY GUARANTY
GUARANTY AND SURETYSHIP AGREEMENT
THIS GUARANTY AND SURETYSHIP AGREEMENT (this "Guaranty") dated
as of the 20th day of December, 1999, made by [NAME OF SUBSIDIARY], a
corporation ("Guarantor"), to the lenders parties hereto from time to time (the
"Lenders", as defined further below) and MELLON BANK, N.A., a national banking
association, as agent for the Lenders (in such capacity, together with its
successors in such capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, Xxxxxxx-Xxxxxx Corporation, a Delaware corporation
("Xxxxxxx-Xxxxxx") and the Subsidiary Borrowers party thereto from time to time
(collectively with Xxxxxxx-Xxxxxx, the "Borrowers" and each individually a
"Borrower") have entered into a Credit Agreement of even date herewith with the
Lenders parties thereto from time to time, the Issuing Banks referred to
therein, and Mellon Bank, N.A., as Agent (as amended, modified or supplemented
from time to time, the "Credit Agreement"); and
WHEREAS, the Guarantor will derive substantial direct and
indirect benefit from the transactions contemplated by the Credit Agreement, and
the Guarantor may receive extensions of credit under the Credit Agreement from
time to time; and
WHEREAS, it is a condition precedent to the extension of
credit under the Credit Agreement that the Guarantor execute and deliver this
Agreement; and
WHEREAS, this Agreement, among other things, is made by the
Guarantor to induce the Lenders to enter into the Loan Documents (as defined in
the Credit Agreement) and to induce the Lenders to extend credit under the
Credit Agreement;
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt of which is hereby acknowledged by
Guarantor, and intending to be legally bound, Guarantor hereby agrees as
follows:
ARTICLE I
DEFINITIONS
1.1 Definitions.
(a) Certain Definitions. Capitalized terms not otherwise
defined herein shall have the meanings given in the Credit Agreement. In
addition to the other terms defined elsewhere in this Agreement, as used herein
the following terms shall have the following meanings:
"Guaranteed Obligations" shall mean all obligations from time
to time of the Borrowers to the Agent or any Lender under or in
connection with any Loan Document, including all obligations to pay
principal, interest, fees, indemnities or other amounts under such Loan
Documents, in each case whether such obligations are direct or
indirect, secured or unsecured, joint or several, absolute or
contingent, due or to become due, whether for payment or performance,
now existing or hereafter arising (including interest and other
obligations arising or accruing after the commencement of any
bankruptcy, insolvency, reorganization, dissolution or similar
proceeding with respect to any Borrower or any other Person, or which
would have arisen or accrued but for the commencement of such
proceeding, even if such obligation or the claim therefor is not
enforceable or allowable in such proceeding).
ARTICLE II
GUARANTY AND SURETYSHIP
2.1. Guaranty and Suretyship. The Guarantor hereby absolutely,
unconditionally and irrevocably guarantees and becomes surety for the full and
punctual payment and performance of the Guaranteed Obligations as and when such
payment or performance shall become due (at scheduled maturity, by acceleration
or otherwise) in accordance with the terms of the Loan Documents. This Agreement
is an agreement of suretyship as well as of guaranty, is a guarantee of payment
and performance and not merely of collectibility, and is in no way conditioned
upon any attempt to collect from or proceed against any Borrower or any other
Person or any other event or circumstance. The obligations of the Guarantor
under this Agreement are direct and primary obligations of the Guarantor and are
independent of the Guaranteed Obligations, and a separate action or actions may
be brought against the Guarantor regardless of whether action is brought against
any Borrower or any other Person or whether such Borrower or any other Person is
joined in any such action or actions.
2.2. Obligations Absolute. The Guarantor agrees that the
Guaranteed Obligations will be paid and performed strictly in accordance with
the terms of the Loan Documents, regardless of any law, regulation or order now
or hereafter in effect in any jurisdiction affecting the Guaranteed Obligations,
any of the terms of the Loan Documents or the rights of the Agent or any Lender
or any other Person with respect thereto. The obligations of the Guarantor under
this Agreement shall be absolute, unconditional and irrevocable, irrespective of
any of the following:
(a) any lack of legality, validity, enforceability,
allowability (in a bankruptcy, insolvency, reorganization, dissolution
or similar proceeding, or otherwise), or any avoidance or
subordination, in whole or in part, of any Loan Document or any of the
Guaranteed Obligations;
(b) any change in the amount, nature, time, place or manner of
payment or performance of, or in any other term of, any of the
Guaranteed Obligations (whether or not such change is contemplated by
the Loan Documents as presently constituted, and specifically including
any increase in the Guaranteed Obligations, whether resulting from the
extension of additional credit to any Borrower or otherwise), any
execution of any additional Loan Documents, or any amendment or waiver
of or any consent to departure from any Loan Document;
(c) any taking, exchange, release, impairment or nonperfection
of any collateral, or any taking, release, impairment or amendment or
waiver of or consent to departure from any other guaranty or other
direct or indirect security for any of the Guaranteed Obligations;
(d) any manner of application of collateral or other direct or
indirect security for any of the Guaranteed Obligations, or proceeds
thereof, to any of the Guaranteed Obligations, or any commercially
reasonable manner of sale or other disposition of any collateral for
any of the Guaranteed Obligations or any other assets of any Borrower;
(e) any permanent impairment by any Lender or any other Person
of any recourse of the Guarantor against any Borrower or any other
Person, or any other permanent impairment by any Lender or any other
Person of the suretyship status of the Guarantor;
(f) any bankruptcy, insolvency, reorganization, dissolution or
similar proceedings with respect to, or any change, restructuring or
termination of the corporate structure or existence of, any Borrower,
the Guarantor or any other Person; or
(g) any failure of any Lender or any other Person to disclose
to the Guarantor any information pertaining to the business,
operations, condition (financial or other) or prospects of any Borrower
or any other Person, or to give any other notice, disclosure or demand.
2.3. Waivers, etc. The Guarantor hereby irrevocably waives any
defense to or limitation on its obligations under this Agreement arising out of
or based upon any matter referred to in Section 2.2 and, without limiting the
generality of the foregoing, any requirement of promptness, diligence or notice
of acceptance, any other notice, disclosure or demand with respect to any of the
Guaranteed Obligations and this Agreement, any requirement of acceptance hereof,
reliance hereon or knowledge hereof by the Agent or any Lender, and any
requirement that the Agent or any Lender protect, secure, perfect or insure any
lien or any property subject thereto or exhaust any right or take any action
against any Borrower or any other Person or any collateral or other direct or
indirect security for any of the Guaranteed Obligations. Notwithstanding the
foregoing sentence, the Guarantor's waiver under this Section 2.3 shall apply
only to the Guarantor's obligations hereunder and shall not limit or waive any
of the Guarantor's rights or obligations as a borrower under the Credit
Agreement.
2.4. Reinstatement. This Agreement shall continue to be
effective, or be automatically reinstated, as the case may be, if at any time
payment of any of the Guaranteed Obligations is avoided, rescinded or must
otherwise be returned by the Agent or any Lender for any reason, all as though
such payment had not been made.
2.5. No Stay. Without limiting the generality of any other
provision of this Agreement, if any acceleration of the time for payment or
performance of any Guaranteed Obligation, or any condition to any such
acceleration, shall at any time be stayed, enjoined or prevented for any reason
(including stay or injunction resulting from the pendency against any Borrower
or any other Person of a bankruptcy, insolvency, reorganization, dissolution or
similar proceeding), the Guarantor agrees that, for purposes of this Agreement
and its obligations hereunder, at the option of the Agent such Guaranteed
Obligation shall be deemed to have been accelerated and such condition to
acceleration shall be deemed to have been met.
2.6. Payments. All payments to be made by the Guarantor
pursuant to this Agreement shall be made at the times and in the manner
prescribed for payments in Articles II and III of the Credit Agreement, without
setoff, counterclaim, withholding or other deduction of any nature. All payments
made by the Guarantor pursuant to this Agreement may be applied to the
Guaranteed Obligations and all other amounts payable under this Agreement in
such order as the Agent may elect.
2.7. Subrogation, Etc. Any rights which the Guarantor may have
or acquire by way of subrogation, reimbursement, restitution, exoneration,
contribution or indemnity, and any similar rights (whether arising by operation
of law, by agreement or otherwise), against any Borrower arising from the
existence, payment, performance or enforcement of any of the obligations of the
Guarantor under or in connection with this Agreement, shall be subordinate in
right of payment to the Guaranteed Obligations, and the Guarantor shall not
exercise any such rights until all Guaranteed Obligations and all other
obligations under this Agreement have been paid in cash or such other manner as
may be acceptable to the Agent and performed in full and all commitments to
extend credit under, and all Letters of Credit issued under, the Loan Documents
shall have terminated. If, notwithstanding the foregoing, any amount shall be
received by the Guarantor on account of any such rights at any time prior to the
time at which all Guaranteed Obligations and all other obligations under this
Agreement shall have been paid in cash or such other manner as may be acceptable
to the Agent and performed in full and all commitments to extend credit under,
and all Letters of Credit issued under, the Loan Documents shall have
terminated, such amount shall be held by the Guarantor in trust for the benefit
of the Lenders, segregated from other funds held by the Guarantor, and shall be
forthwith delivered to Agent for the benefit of the Lenders in the exact form
received by the Guarantor (with any necessary endorsement), to be applied to the
Guaranteed Obligations, whether matured or unmatured, in such order as the Agent
may elect, or to be held by the Agent as security for the Guaranteed Obligations
and disposed of by the Agent in any lawful manner, all as the Agent may elect.
2.8. Continuing Agreement. This Agreement is a continuing
guaranty and shall continue in full force and effect until all Guaranteed
Obligations and all other amounts payable under this Agreement have been paid in
cash or such other manner as may be acceptable to the Agent and performed in
full, and all commitments to extend credit under, and all Letters of Credit
issued under, the Loan Documents have terminated, subject in any event to
reinstatement in accordance with Section 2.4. Without limiting the generality of
the foregoing, the Guarantor hereby irrevocably waives any right to terminate or
revoke this Agreement.
2.9. Limitation on Obligations. Notwithstanding any other
provision hereof, to the extent that mandatory and nonwaivable provisions of
applicable Law pertaining to fraudulent transfer or fraudulent conveyance
otherwise would render the full amount of the obligations of the Guarantor under
this Agreement avoidable, invalid or unenforceable, the obligations of the
Guarantor under this Agreement shall be limited to the maximum amount which does
not result in such avoidability, invalidity or unenforceability. In any action,
suit or proceeding pertaining to this Agreement, the burden of proof, by clear
and convincing evidence, shall be on the Person claiming that this Section 2.9
applies to limit any obligation of the Guarantor under this Agreement, or
claiming that any obligation of the Guarantor under this Agreement is avoidable,
invalid or unenforceable, as to each element of such claim.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Guarantor hereby represents and warrants to the Agent and
the Lenders as follows:
3.1. Credit Agreement. The provisions of Article IV of the
Credit Agreement are hereby incorporated by reference (together with all related
definitions and cross references). The Guarantor hereby represents and warrants
to the Agent and the Lenders as provided therein.
3.2. Representations and Warranties Remade at Each Extension
of Credit. Each request (including any deemed request) by any Borrower for any
extension of credit under any Loan Document shall be deemed to constitute a
representation and warranty by the Guarantor to the Agent and the Lenders that
the representations and warranties made by the Guarantor in this Article III are
true and correct on and as of the date of such request with the same effect as
though made on and as of such date. Failure by the Agent to receive notice from
the Guarantor to the contrary before the Lenders make any extension of credit
under any Loan Document shall constitute a further representation and warranty
by the Guarantor to the Agent and the Lenders that the representations and
warranties made by the Guarantor in this Article III are true and correct on and
as of the date of such extension of credit with the same effect as though made
on and as of such date.
ARTICLE IV
COVENANTS
4.1. Covenants Generally. Reference is hereby made to the
provisions of Articles VI and VII of the Credit Agreement (together with all
related definitions and cross-references). To the extent such provisions impose
upon any Borrower a duty to cause the Guarantor (or a Subsidiary of the
Guarantor) to do or refrain from doing certain acts or things or to meet or
refrain from meeting certain conditions, the Guarantor shall (or shall cause
such Subsidiary of the Guarantor to, as the case may be) do or refrain from
doing such acts or things, or meet or refrain from meeting such conditions, as
the case may be.
ARTICLE V
MISCELLANEOUS
5.1. Amendments, etc. No amendment to or waiver of any
provision of this Agreement, and no consent to any departure by the Guarantor
herefrom, shall in any event be effective unless in a writing manually signed by
or on behalf of each Lender; provided that this Agreement may be terminated and
the Guarantor may be released herefrom with the written consent of the Required
Lenders in connection with the sale or other disposition of all of the capital
stock of and other equity interests in the Guarantor to a Person or Persons
other than a Borrower or a Subsidiary of a Borrower, which sale or other
disposition is in compliance with the Credit Agreement and the Loan Documents.
Any such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given.
5.2. No Implied Waiver; Remedies Cumulative. No delay or
failure of the Agent or any Lender in exercising any right or remedy under this
Agreement shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right or remedy preclude any other or further exercise
thereof or the exercise of any other right or remedy. The rights and remedies of
the Agent and the Lenders under this Agreement are cumulative and not exclusive
of any other rights or remedies available hereunder, under any other agreement,
at law, or otherwise.
5.3. Notices. Except to the extent, if any, otherwise
expressly provided herein, all notices and other communications (collectively,
"notices") under this Agreement shall be in writing (including facsimile
transmission) and shall be sent by certified or registered mail, by
nationally-recognized overnight courier or by personal delivery. All notices
shall be sent to the address specified in the Credit Agreement for the
applicable party, or, in any case, to such other address as shall have been
designated by the applicable party by notice to the other party hereto. Any
properly given notice shall be effective when received, except that properly
given notices to the Guarantor shall be effective at the following time, if
earlier: if given by telephone, when telephoned; if by first-class mail, three
Business Days after deposit in the mail; if by overnight courier, one Business
Day after pickup by such courier; and if by facsimile transmission, upon
transmission. The Agent and the Lenders may rely on any notice (whether or not
made in a manner contemplated by this Agreement) purportedly made by or on
behalf of the Guarantor, and Agent and the Lenders shall have no duty to verify
the identity or authority of the Person giving such notice.
5.4. Expenses. The Guarantor agrees to pay upon demand all
reasonable expenses (including reasonable fees and expenses of counsel) which
the Agent or any Lender may incur from time to time arising from or relating to
the administration of, or exercise, enforcement or preservation of rights or
remedies under, this Agreement, other than costs and expenses incurred by the
Agent or any Lender, respectively, in connection with any litigation which
results in a final, non-appealable judgment against the Agent or such Lender.
5.5. Entire Agreement. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and
supersedes all prior and contemporaneous understandings and agreements.
5.6. Survival. All representations and warranties of the
Guarantor contained in or made in connection with this Agreement shall survive,
and shall not be waived by, the execution and delivery of this Agreement, any
investigation by or knowledge of the Agent or any Lender, any extension of
credit, or any other event or circumstance whatever.
5.7. Counterparts. This Agreement may be executed in any
number of counterparts, including facsimile counterparts, each of which shall be
deemed an original, and all such counterparts shall constitute but one and the
same agreement.
5.8. Setoff. In the event that any obligation of the Guarantor
now or hereafter existing under this Agreement or any other Loan Document shall
have become due and payable, after an Event of Default under the Loan Documents
has occurred, each Lender shall have the right from time to time, without notice
to the Guarantor, to set off against and apply to such due and payable amount
any obligation of any nature of each Lender to the Guarantor, including all
deposits (whether time or demand, general or special, provisionally or finally
credited, however evidenced) now or hereafter maintained by the Guarantor with
such Lender. Such right shall be absolute and unconditional in all circumstances
and, without limitation, shall exist whether such obligation to the Guarantor is
absolute or contingent, matured or unmatured (it being agreed that each Lender
may deem such obligation to be then due and payable at the time of such setoff),
regardless of the offices or branches through which the parties are acting with
respect to the offset obligations, regardless of whether the offset obligations
are denominated in the same or different currencies, and regardless of the
existence or adequacy of any other direct or indirect security or any other
right or remedy available to such Lender. Nothing in this Agreement or any other
Loan Document shall be deemed a waiver of or restriction on any right of setoff
or banker's lien available to any Lender under this Section 5.8, at law or
otherwise. The Guarantor hereby agrees that any affiliate of any Lender, and any
holder of a participation in any Guaranteed Obligations of the Guarantor under
this Agreement, shall have the same rights of setoff as each Lender as provided
in this Section 5.8 (regardless of whether such affiliate or participant
otherwise would be deemed a creditor of the Guarantor).
5.9. Construction. In this Agreement, unless the context
otherwise clearly requires, references to the plural include the singular, the
singular the plural, and the part the whole; the neuter case includes the
masculine and feminine cases; and "or" is not exclusive. In this Agreement, any
references to property (or similar terms) include any interest in such property
(or other item referred to); "include," "includes," "including" and similar
terms are not limiting; and "hereof," "herein," "hereunder" and similar terms
refer to this Agreement as a whole and not to any particular provision; Section
and other headings in this Agreement, and any table of contents herein, are for
reference purposes only and shall not affect the interpretation of this
Agreement in any respect. Section and other references in this Agreement are to
this Agreement unless otherwise specified. This Agreement has been fully
negotiated between the applicable parties, each party having the benefit of
legal counsel, and accordingly neither any doctrine of construction of
guaranties or suretyships in favor of the guarantor or surety, nor any doctrine
of construction of ambiguities against the party controlling the drafting, shall
apply to this Agreement.
5.10. Successors and Assigns. This Agreement shall be binding
upon the Guarantor, its successors and assigns, and shall inure to the benefit
of and be enforceable by the Agent, the Lenders and their respective successors
and assigns. Without limitation of the foregoing, the Agent or any Lender (and
any successive assignee or transferee) from time to time may assign or otherwise
transfer all or any portion of its rights or obligations under the Loan
Documents (including all or any portion of any commitment to extend credit), or
any Guaranteed Obligations, to any other Person, and such Guaranteed Obligations
(including any Guaranteed Obligations resulting from extension of credit by such
other Person under or in connection with the Loan Documents) shall be and remain
Guaranteed Obligations entitled to the benefit of this Agreement, and to the
extent of its interest in such Guaranteed Obligations such other Person shall be
vested with all the benefits in respect thereof granted to the Agent or any
Lender, as the case may be, in this Agreement or otherwise.
5.11. Certain Legal Matters.
(A) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, EXCLUSIVE OF
CHOICE OF LAW PRINCIPLES.
(B) SUBMISSION TO JURISDICTION AND VENUE; CONSENT TO SERVICE
OF PROCESS; WAIVER OF JURY TRIAL; ETC. THE GUARANTOR HEREBY IRREVOCABLY AND
UNCONDITIONALLY:
(I) AGREES THAT ANY ACTION, SUIT OR PROCEEDING BY ANY PERSON
ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
OR ANY STATEMENT, COURSE OF CONDUCT, ACT, OMISSION OR EVENT IN
CONNECTION WITH ANY OF THE FOREGOING (COLLECTIVELY, "RELATED
LITIGATION") MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION SITTING IN THE CITY OR COUNTY OF NEW YORK, NEW YORK,
SUBMITS TO THE JURISDICTION OF SUCH COURTS, AND AGREES NOT TO BRING ANY
RELATED LITIGATION IN ANY OTHER FORUM (BUT NOTHING HEREIN SHALL AFFECT
THE RIGHT OF THE AGENT OR ANY LENDER TO BRING ANY RELATED LITIGATION IN
ANY OTHER FORUM);
(II) ACKNOWLEDGES THAT SUCH COURTS WILL BE THE MOST CONVENIENT
FORUM FOR ANY RELATED LITIGATION, WAIVES ANY OBJECTION TO THE LAYING OF
VENUE OF ANY RELATED LITIGATION BROUGHT IN ANY SUCH COURT, WAIVES ANY
CLAIM THAT ANY RELATED LITIGATION BROUGHT IN ANY SUCH COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM, AND WAIVES ANY RIGHT TO OBJECT, WITH
RESPECT TO ANY RELATED LITIGATION, THAT SUCH COURT DOES NOT HAVE
JURISDICTION OVER IT;
(III) CONSENTS AND AGREES TO SERVICE OF ANY SUMMONS, COMPLAINT
OR OTHER LEGAL PROCESS IN ANY RELATED LITIGATION BY REGISTERED OR
CERTIFIED U.S. MAIL, POSTAGE PREPAID, TO IT AT THE ADDRESS FOR NOTICES
DESCRIBED IN THIS AGREEMENT, AND CONSENTS AND AGREES THAT SUCH SERVICE
SHALL CONSTITUTE IN EVERY RESPECT VALID AND EFFECTIVE SERVICE (BUT
NOTHING HEREIN SHALL AFFECT THE VALIDITY OR EFFECTIVENESS OF PROCESS
SERVED IN ANY OTHER MANNER PERMITTED BY LAW); AND
(I) WAIVES THE RIGHT TO TRIAL BY JURY IN ANY RELATED LITIGATION.
(C) LIMITATION OF LIABILITY. NO CLAIM MAY BE MADE BY THE
GUARANTOR AGAINST THE AGENT OR ANY LENDER OR ANY AFFILIATE, DIRECTOR, OFFICER,
EMPLOYEE, ATTORNEY OR AGENT OF THE AGENT OR ANY LENDER FOR ANY SPECIAL,
INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES IN RESPECT OF ANY CLAIM ARISING FROM
OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY STATEMENT,
COURSE OF CONDUCT, ACT, OMISSION OR EVENT IN CONNECTION WITH ANY OF THE
FOREGOING (WHETHER BASED ON BREACH OF CONTRACT, TORT OR ANY OTHER THEORY OF
LIABILITY); AND THE GUARANTOR HEREBY WAIVES, RELEASES AND AGREES NOT TO XXX UPON
ANY CLAIM FOR ANY SUCH DAMAGES, WHETHER OR NOT ACCRUED AND WHETHER OR NOT KNOWN
OR SUSPECTED TO EXIST.
THE GUARANTOR ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED BY LEGAL COUNSEL IN
CONNECTION WITH THE EXECUTION AND DELIVERY OF THIS AGREEMENT AND THAT IT
UNDERSTANDS THE PROVISIONS OF THIS AGREEMENT.
IN WITNESS WHEREOF, the Guarantor has executed and delivered
this Agreement as of the date first above written.
[NAME OF SUBSIDIARY]
By
Name:
Title:
