Exhibit 10.12
INTERIM CREDIT AGREEMENT
DATED AS OF AUGUST 31, 2001
AMONG
XXXXXXX DENVER, INC.,
THE LENDERS PARTY HERETO
AND
BANK ONE, NA
AS AGENT
TABLE OF CONTENTS
- 2 -
INTERIM CREDIT AGREEMENT
This Interim Credit Agreement, dated as of August 31, 2001, is
among Xxxxxxx Denver, Inc., the Lenders and Bank One, NA (with its main
office in Chicago, Illinois), as Agent for the Lenders. The parties hereto
agree as follows:
ARTICLE I: DEFINITIONS
As used in this Agreement:
"ACQUISITION" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which
the Borrower or any of its Subsidiaries (i) acquires any going business or
all or substantially all of the assets of any firm, corporation or division
thereof (other than the Borrower or any of its Subsidiaries), whether
through purchase of assets, a reorganization, merger or otherwise or (ii)
directly or indirectly acquires (in one transaction or as the most recent
transaction in a series of transactions) at least a majority (in number of
votes) of the securities of a corporation which have ordinary voting power
for the election of directors (other than securities having such power only
by reason of the happening of a contingency) or a majority (by percentage or
voting power) of the outstanding partnership interests of a partnership or
membership interests of a limited liability company (other than a Subsidiary
formed for the purpose of carrying forward a business theretofore operated
by the Borrower or any of its Subsidiaries).
"ADVANCE" means a borrowing hereunder consisting of the aggregate
amount of the several Loans made by the Lenders to the Borrower of the same
Type and, in the case of Eurocurrency Advances, in the same currency and for
the same Eurocurrency Interest Period.
"AFFILIATE" of any Person means any other Person directly or
indirectly controlling, controlled by or under common control with such
Person. A Person shall be deemed to control another Person if the
controlling Person owns 10% or more of any class of voting securities (or
other ownership interests) of the controlled Person or possesses, directly
or indirectly, the power to direct or cause the direction of the management
or policies of the controlled Person, whether through ownership of stock, by
contract or otherwise.
"AGENT" means Bank One, NA (with its main office in Chicago,
Illinois) in its capacity as contractual representative for the Lenders
pursuant to Article X, and not in its individual capacity as a Lender, and
---------
any successor Agent appointed pursuant to Article X.
---------
"AGGREGATE COMMITMENT" means the aggregate of the Commitments of
all the Lenders, as reduced from time to time pursuant to the terms hereof.
"AGGREGATE COMMITMENT REDUCTION NOTICE" is defined in Section 2.5.
------------
"AGGREGATE OUTSTANDING CREDIT EXPOSURE" means, as of any day, the
aggregate of the Outstanding Credit Exposure of all the Lenders.
- 3 -
"AGREED CURRENCIES" means Dollars.
"AGREEMENT" means this Interim Credit Agreement, as it may be
amended or modified and in effect from time to time.
"AGREEMENT ACCOUNTING PRINCIPLES" means generally accepted
accounting principles as in effect in the United States from time to time;
provided, however, that if the Borrower notifies the Agent that the Borrower
-------- -------
wishes to amend any covenant in Article VI to eliminate the effect of any
----------
change in generally accepted accounting principles on the operation of such
covenant (or if the Agent notifies the Borrower that the Required Lenders
wish to amend Article VI for such purpose), then the Borrower's compliance
----------
with such covenant shall be determined on the basis of generally accepted
accounting principles in effect immediately before the relevant change in
generally accepted accounting principles became effective, until either such
notice is withdrawn or such covenant is amended in a manner satisfactory to
the Borrower and the Required Lenders.
"ALTERNATE BASE RATE" means, for any day, a rate of interest per
annum equal to the higher of (i) the Prime Rate for such day and (ii) the
sum of Federal Funds Effective Rate for such day plus 1/2% per annum.
"APPLICABLE MARGIN" means, with respect to a Eurocurrency Advance
for any day prior to the 90th day following the date of the initial and only
Advance under this Agreement, one and one-half percent (1.5%) per annum and
thereafter, through and including the Facility Termination Date, two percent
(2.0%) per annum.
"ARRANGER" means Banc One Capital Markets, Inc.
"ARTICLE" means an article of this Agreement unless another
document is specifically referenced.
"ASSET SALE" means, with respect to any Person, the sale, lease,
conveyance, disposition or other transfer by such Person of any of its
assets (including by way of a sale-leaseback transaction, and including the
sale or other transfer of any of the Equity Interests of any Subsidiary of
such Person) to any Person other than the Borrower or any of its
wholly-owned Subsidiaries other than (i) the sale or other disposition of
Inventory (including the trading in or up thereof) in the ordinary course of
business, (ii) the sale or other disposition (including the trading in or up
thereof) of any obsolete, excess, damaged or worn-out equipment or other
assets disposed of in the ordinary course of business and (iii) leases of
personal property (including leases or licenses of intellectual property).
"AUTHORIZED OFFICER" means any of the President, the Chief
Executive Officer or the Chief Financial Officer of the Borrower, acting
singly; provided, that with respect to Borrowing Notices, Conversion/
--------
Continuation Notices, requests for the issuance or modifications of
Facility LCs, commitment reduction notices and prepayment notices, the
Treasurer of the Borrower, acting singly, shall also be deemed an Authorized
Officer.
"AVAILABLE AGGREGATE COMMITMENT" means, for any day, the Aggregate
Commitment
- 4 -
then in effect minus the aggregate principal amount of the outstanding
-----
Advances.
"BANK ONE" means Bank One, NA, in its individual capacity.
"BORROWER" means Xxxxxxx Denver, Inc., a Delaware corporation, and
its successors and permitted assigns.
"BORROWER CREDIT DOCUMENTS" means this Agreement, the Notes and any
Pledge Agreements executed by the Borrower.
"BORROWING DATE" means a date on which an Advance is made
hereunder.
"BORROWING NOTICE" is defined in Section 2.8.
-----------
"BUSINESS DAY" means (i) with respect to any borrowing, payment or
rate selection of Eurocurrency Advances, a day (other than Saturday or
Sunday) on which banks generally are open in Chicago and New York for the
conduct of substantially all of their commercial lending activities and on
which dealings in United States Dollars and the other Agreed Currencies are
carried on in the London interbank market, and (ii) for all other purposes,
a day (other than Saturday or Sunday) on which banks generally are open in
Chicago and New York for the conduct of substantially all of their
commercial lending activities.
"CAPITALIZED LEASE" of a Person means any lease of Property by such
Person as lessee which would be capitalized on a balance sheet of such
Person prepared in accordance with Agreement Accounting Principles.
"CAPITALIZED LEASE OBLIGATIONS" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as
a liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"CHANGE IN CONTROL" means the acquisition by any Person, or two or
more Persons acting in concert, of beneficial ownership (within the meaning
of Rule 13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934) of 30% or more of the outstanding shares of voting
stock of the Borrower.
"CODE" means the Internal Revenue Code of 1986, as amended,
reformed or otherwise modified from time to time.
"COLLATERAL DOCUMENTS" means, collectively, each of the Pledge
Agreements, together with the documents, instruments and agreements executed
in connection therewith, including, without limitation, any collateral
sharing, intercreditor or collateral trust agreement executed with the
Senior Noteholders or with respect to the Indebtedness evidenced by the
Senior Notes.
"COMMISSION" means the Securities and Exchange Commission, an
agency of the United States government, or its successor.
"COMMITMENT" means, for each Lender, the obligation of such Lender
to make Loans not
- 5 -
exceeding the amount set forth opposite its signature below or as set forth
in any Notice of Assignment relating to any assignment that has become
effective pursuant to Section 12.3.2, as such amount may be modified from
--------------
time to time pursuant to the terms hereof.
"CONDEMNATION" is defined in Section 7.8.
-----------
"CONSOLIDATED CAPITAL EXPENDITURES" means, for any period of four
consecutive fiscal quarters of the Borrower, the aggregate of all
expenditures (whether paid in cash or accrued as liabilities and including
that portion of Capital Leases which is capitalized on the consolidated
balance sheet of the Borrower and its Subsidiaries) by the Borrower and its
Subsidiaries during that period that, in conformity with Agreement
Accounting Principles, are required to be included in or reflected by the
property, plant or equipment or similar fixed asset accounts reflected in
the consolidated balance sheet of the Borrower and its Subsidiaries.
"CONSOLIDATED CASH FLOW" means, for any period of four consecutive
fiscal quarters of the Borrower, the sum, without duplication, of the
amounts for such period of (i) Consolidated Net Income, (ii) Consolidated
Interest Expense, (iii) charges against income for all domestic and foreign,
federal, state and local taxes, (iv) depreciation and amortization expense,
(v) other non-cash charges and expenses and (vi) any increases in the LIFO
reserve; minus any decreases in the LIFO reserve; all as determined on a
-----
consolidated basis for the Borrower and its Subsidiaries in conformity with
Agreement Accounting Principles.
"CONSOLIDATED DEBT TO CASH FLOW RATIO" means, as of the last day of
any fiscal quarter of the Borrower, the ratio of (i) the aggregate amount of
all Consolidated Debt as of such day to (ii) Consolidated Cash Flow for the
period of four fiscal quarters ending on such date.
"CONSOLIDATED INCOME BEFORE INTEREST AND TAXES" means, for any
period of four consecutive fiscal quarters of the Borrower, the sum, without
duplication, of the amounts for such period of (i) Consolidated Net Income,
(ii) Consolidated Interest Expense and (iii) charges against income for all
domestic and foreign federal, state and local taxes; all determined on a
consolidated basis for the Borrower and its Subsidiaries in accordance with
Agreement Accounting Principles.
"CONSOLIDATED DEBT" means the aggregate amount of all Indebtedness
(other than Hedging Obligations) of the Borrower and its Subsidiaries as of
a referenced date.
"CONSOLIDATED INTEREST COVERAGE RATIO" means, for any period of
four consecutive fiscal quarters of the Borrower, the ratio of (i)
Consolidated Income Before Interest and Taxes for such period to (ii)
Consolidated Interest Expense for such period.
"CONSOLIDATED INTEREST EXPENSE" means, for any period of four
consecutive fiscal quarters of the Borrower, total interest expense (whether
paid or accrued) of the Borrower and its Subsidiaries for such period
determined in accordance with Agreement Accounting Principles including,
without limitation, such interest expense as may be attributable to
Capitalized Leases, as well as all commissions, discounts and other fees and
charges owed with respect to Letters of Credit and net costs (net of any
revenues) under any interest rate swap, exchange or cap agreements.
- 6 -
"CONSOLIDATED NET INCOME" means, for any fiscal quarter of the
Borrower, the positive consolidated net income of the Borrower and its
Subsidiaries for such quarter determined in accordance with Agreement
Accounting Principles; provided, that there shall be excluded (i) the income
--------
(or loss) of any Affiliate of the Borrower or other Person (other than a
Subsidiary of the Borrower) in which any Person (other than the Borrower or
any of its Subsidiaries) has a joint interest, except to the extent of the
amount of dividends or other distributions actually paid to the Borrower, or
any of its Subsidiaries by such Affiliate or other Person during such
period, (ii) the income (or loss) of any Person accrued prior to the date it
becomes a Subsidiary of the Borrower or is merged into or consolidated with
the Borrower or any of its Subsidiaries or that Person's assets are acquired
by the Borrower or any of its Subsidiaries and (iii) the income of any
Subsidiary to the extent that the declaration or payment of dividends or
similar distributions by that Subsidiary of that income is not at the time
permitted by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Subsidiary.
"CONSOLIDATED NET WORTH" means, as of any date of determination,
the consolidated total stockholders' equity (including capital stock,
additional paid-in capital and retained earnings) of the Borrower and its
Subsidiaries determined in accordance with Agreement Accounting Principles.
"CONTINGENT OBLIGATION" of a Person means any agreement,
undertaking or arrangement by which such Person assumes, guarantees,
endorses, contingently agrees to purchase or provide funds for the payment
of, or otherwise becomes or is contingently liable upon, the obligation or
liability of any other Person, or agrees to maintain the net worth or
working capital or other financial condition of any other Person, or
otherwise assures any creditor of such other Person against loss, including,
without limitation, any contingent reimbursement obligations of such Person
with respect to any Letter of Credit, as well as any comfort letter,
operating agreement or take-or-pay contract (but, in the case of each such
Contingent Obligation, only to the extent that a monetary value can
reasonably be attributed thereto; it being understood, for the avoidance of
doubt, however, that with respect to any Contingent Obligation which is
either a guaranty of a monetary obligation of another Person, the amount of
such Contingent Obligation shall be deemed equal to the amount of such
monetary obligation, as the case may be).
"CONVERSION/CONTINUATION NOTICE" is defined in Section 2.9.
-----------
"CONTROLLED GROUP" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated)
under common control which, together with the Borrower or any of its
Subsidiaries, are treated as a single employer under Section 414 of the
Code.
"XXXXXX" means Xxxxxx Industries, Inc., an Ohio corporation.
"CREDIT DOCUMENTS" means, collectively, the Borrower Credit
Documents, the Collateral Documents and the Subsidiary Guaranties.
- 7 -
"CREDIT EXTENSION" means the making of an Advance.
"CREDIT EXTENSION DATE" means the Borrowing Date for an Advance.
"DEFAULT" means an event described in Article VII.
-----------
"DOLLAR" and "$" means the lawful currency of the United States of
-
America.
"EQUITY INTERESTS" means capital stock and all warrants, options or
other rights to acquire capital stock.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and any rule or regulation issued thereunder.
"EUROCURRENCY ADVANCE" means an Advance which bears interest at a
Eurocurrency Rate.
"EUROCURRENCY BASE RATE" means, with respect to a Eurocurrency
Advance for any specified Eurocurrency Interest Period, the applicable
British Bankers' Association Interest Settlement Rate for deposits in U.S.
dollars appearing on Reuters Screen FRBD as of 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period, and having a
maturity equal to such Interest Period, provided that, (i) if Reuters Screen
FRBD is not available to the Agent for any reason, the applicable Eurodollar
Base Rate for the relevant Interest Period shall instead be the applicable
British Bankers' Association Interest Settlement Rate for deposits in U.S.
dollars as reported by any other generally recognized financial information
service as of 11:00 a.m. (London time) two Business Days prior to the first
day of such Interest Period, and having a maturity equal to such Interest
Period, and (ii) if no such British Bankers' Association Interest Settlement
Rate is available, the applicable Eurocurrency Base Rate for the relevant
Interest Period shall instead be the rate determined by the Administrative
Agent to be the rate at which Bank One offers to place deposits in U.S.
dollars with first-class banks in the London interbank market at
approximately 11:00 a.m. (London time) two Business Days prior to the first
day of such Interest Period, in the approximate amount of Bank One's
relevant Eurocurrency Loan and having a maturity equal to such Interest
Period.
"EUROCURRENCY INTEREST PERIOD" means, with respect to a
Eurocurrency Advance, a period as Borrower may choose, of one, two or three
months commencing on a Business Day selected by the Borrower on which a
Eurocurrency Advance is made to Borrower pursuant to this Agreement. Such
Eurocurrency Interest Period shall end on (but exclude) the day which
corresponds numerically to such date one, two or three months thereafter,
provided, however, that if there is no such numerically corresponding day in
such next, second or third succeeding month, such Eurocurrency Interest
Period shall end on the last Business Day of such next, second or third
succeeding month. If a Eurocurrency Interest Period would otherwise end on a
day which is not a Business Day, such Eurocurrency Interest Period shall end
on the next succeeding Business Day, provided, however, that if said next
succeeding Business Day falls in a new calendar month, such Eurocurrency
Interest Period shall end on the immediately preceding Business Day.
- 8 -
"EUROCURRENCY LOAN" means a Loan which bears interest at a
Eurocurrency Rate.
"EUROCURRENCY PAYMENT OFFICE" of the Agent shall mean, for each of
the Agreed Currencies, the office, branch or affiliate of the Agent,
specified as the "EUROCURRENCY PAYMENT OFFICE" for such Agreed Currency in
Schedule I hereto or such other office, branch, affiliate or correspondent
----------
bank of the Agent, as it may from time to time specify to the Borrower and
each Lender as its Eurocurrency Payment Office.
"EUROCURRENCY RATE" means, with respect to a Eurocurrency Advance
for the relevant Eurocurrency Interest Period, a rate per annum equal to the
sum of (i) the quotient of (a) the Eurocurrency Base Rate applicable to such
Eurocurrency Interest Period, divided by (b) one minus the Reserve
Requirement (expressed as a decimal) applicable to such Eurocurrency
Interest Period, plus (ii) the Applicable Margin. The Eurocurrency Rate
shall be rounded to the next higher multiple of 1/16 of 1% if the rate is
not such a multiple.
"FACILITY TERMINATION DATE" means the date 180 days after the
initial and only Advance under this Agreement.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, an interest rate
per annum equal to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published for such day (or, if such
day is not a Business Day, for the immediately preceding Business Day) by
the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations at
approximately 10:00 a.m. (Chicago time) on such day on such transactions
received by the Agent from three Federal funds brokers of recognized
standing selected by the Agent in its sole discretion.
"FINANCING" means, with respect to any Person, the issuance or sale
by such Person of any Equity Interests of such Person or any Indebtedness
consisting of debt securities of such Person.
"FLOATING RATE" means, for any day, a rate per annum equal to the
Alternate Base Rate, changing when and as the Alternate Base Rate changes.
"FLOATING RATE ADVANCE" means an Advance which bears interest at
the Floating Rate.
"FLOATING RATE LOAN" means a Loan which bears interest at the
Floating Rate.
"FOREIGN SUBSIDIARY" is defined in Section 6.10.
------------
"HEDGING OBLIGATIONS" of a Person means any and all obligations of
such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions
and modifications thereof and substitutions therefor), under (i) any and all
agreements, devices or arrangements designed to protect at least one of the
parties thereto from the fluctuations of interest rates, exchange rates or
forward rates applicable to such party's assets, liabilities or exchange
transactions, including, but not limited to, dollar-denominated or
cross-currency interest rate exchange agreements, forward currency
- 9 -
exchange agreements, interest rate cap or collar protection agreements,
forward rate currency or interest rate options, puts and warrants, and (ii)
any and all cancellations, buy backs, reversals, terminations or assignments
of any of the foregoing.
"INDEBTEDNESS" of a Person means, without duplication, such
Person's (i) obligations for borrowed money, (ii) obligations representing
the deferred purchase price of Property or services (other than accounts
payable arising in the ordinary course of such Person's business payable on
terms customary in the trade), (iii) obligations, whether or not assumed,
secured by Liens or payable out of the proceeds or production from property
now or hereafter owned or acquired by such Person, (iv) obligations which
are evidenced by notes, acceptances, or other instruments, (v) Capitalized
Lease Obligations, (vi) Hedging Obligations, (vii) Contingent Obligations
and (viii) Off Balance Sheet Liabilities.
"INTELLECTUAL PROPERTY" means (i) any and all intangible personal
property consisting of intellectual property, whether or not registered with
any governmental entity, including, without limitation, franchises,
licenses, patents, technology and know-how, copyrights, trademarks, trade
secrets, service marks, logos and trade names and (ii) any and all contract
rights (including, without limitation, applications for governmental
registrations, license agreements, trust agreements and assignment
agreements) creating, evidencing or conveying an interest or right in or to
any of the intellectual property described in the preceding clause (i).
"INVESTMENT" of a Person means any loan, advance (other than
commission, travel and similar advances to officers and employees made in
the ordinary course of business), extension of credit, deposit account (in
the nature of, or similar to, a bank account) or contribution of capital by
such Person to any other Person or any investment in, or purchase or other
acquisition of, the stock, partnership interests, notes, debentures or other
securities of any other Person made by such Person.
"LENDERS" means the lending institutions listed on the signature
pages of this Agreement and their respective successors and permitted
assigns.
"LIEN" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind
or nature whatsoever (including, without limitation, the interest of a
vendor or lessor under any conditional sale, Capitalized Lease or other
title retention agreement).
"LOAN" means, with respect to a Lender, such Lender's portion of
any Advance.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a)
the business, Property, condition (financial or otherwise) or results of
operations of the Borrower and its Subsidiaries taken as a whole, (b) the
ability of either the Borrower or any Subsidiary to perform its respective
obligations under the Credit Documents to which it is a party or (c) the
validity or enforceability of any of the Credit Documents or any material
rights or remedies of the Agent or the Lenders thereunder.
- 10 -
"MATERIAL FOREIGN SUBSIDIARY(IES)" means each Foreign Subsidiary of
the Borrower (other than Xxxxxxx Denver Oy, Oy Tamrotor Ab and Tamrotor
Kompressorit Oy) the total assets of which exceed, at any time, five percent
(5.0%) of the consolidated total assets of the Borrower and its consolidated
Subsidiaries; provided, however, in the event that one of more of such
Foreign Subsidiaries are owned through another Foreign Subsidiary, then the
Agent shall notify the Borrower whether the "Material Foreign Subsidiary"
shall be the holding company Foreign Subsidiary or such holding company's
Foreign Subsidiary or Subsidiaries, it being the intention of the parties
that the Agent and the Lenders shall be provided with the maximum collateral
protection without resulting in any undistributed earnings of any such
Foreign Subsidiary being deemed to have been repatriated under the
provisions of the Code.
"MATERIAL INDEBTEDNESS" means any Indebtedness, or group of
different Indebtedness, in an aggregate principal amount of at least
$1,000,000.
"MULTIEMPLOYER PLAN" means a Plan maintained pursuant to a
collective bargaining agreement or any other arrangement to which the
Borrower or any member of the Controlled Group is a party to which more than
one employer is obligated to make contributions.
"NET CASH PROCEEDS" means, with respect to any Asset Sale or
Financing by any Person, cash received by such Person or any Subsidiary of
such Person from such Asset Sale or Financing after (i) provision for all
income or other taxes measured by or resulting from such Asset Sale or
Financing, and (ii) payment of all brokerage commissions and other fees and
expenses and commissions related to such Asset Sale or Financing.
"NOTE" means a promissory note, in substantially the form of
Exhibit "A" hereto, duly executed by the Borrower and payable to the order
of a Lender in the amount of its Commitment, including any amendment,
modification, renewal or replacement of such promissory note.
"NOTE PURCHASE AGREEMENT" means that certain Note Purchase
Agreement dated as of September 26, 1996 with respect to the Borrower's
$35,000,000 7.32% Senior Notes due September 26, 2006 (the "SENIOR NOTES"),
as such Note Purchase Agreement may be amended in accordance with the terms
of Section 4.1(j) hereto.
--------------
"NOTICE OF ASSIGNMENT" is defined in Section 12.3.2.
--------------
"OBLIGATIONS" means all unpaid principal of and accrued and unpaid
interest on the Notes, all LC Obligations, all accrued and unpaid fees and
all expenses, reimbursements, indemnities and other obligations of the
Borrower to the Lenders or to any Lender, the Agent or any indemnified party
hereunder arising under the Credit Documents (whether or not allowed as a
claim in any insolvency proceeding of the Borrower).
"OBLIGOR SUBSIDIARY" means (i) a Subsidiary which is a party to a
Subsidiary Guaranty or (ii) a Material Foreign Subsidiary in connection with
which a Pledge Agreement has been executed.
- 11 -
"OFF BALANCE SHEET LIABILITIES" of a Person means (a) any
repurchase obligation or liability of such Person or any of its Subsidiaries
with respect to accounts or notes receivable sold by such Person or any of
its Subsidiaries, (b) any liability under any sale and leaseback
transactions which do not create a liability on the consolidated balance
sheet of such Person prepared in accordance with the Agreement Accounting
Principles, (c) any liability under any financing lease or so-called
"synthetic" lease transaction, or (d) any obligations arising with respect
to any other transaction which is the functional equivalent of or takes the
place of borrowing but which does not constitute a liability on the
consolidated balance sheets of such Person and its Subsidiaries, prepared in
accordance with Agreement Accounting Principles.
"OUTSTANDING CREDIT EXPOSURE" means, as to any Lender at any time,
the aggregate principal amount of its Loans outstanding at such time.
"PARTICIPANTS" is defined in Section 12.2.1.
--------------
"PAYMENT DATE" means the last day of September, 2001, December,
2001 and the Facility Termination Date.
"PBGC" means the Pension Benefit Guaranty Corporation, or any
successor thereto.
"PERCENTAGE" means, with respect to each Lender, the percentage
that such Lender's Commitment constitutes of the Aggregate Commitment.
"PERSON" means any natural person, corporation, firm, joint
venture, partnership, limited liability company, association, enterprise,
trust or other entity or organization, or any government or political
subdivision or any agency, department or instrumentality thereof.
"PLAN" means an employee pension benefit plan which is covered by
Title IV of ERISA or subject to the minimum funding standards under Section
412 of the Code as to which the Borrower or any member of the Controlled
Group may have any liability.
"PLEDGE AGREEMENT" means a Pledge Agreement on terms and conditions
reasonably acceptable to the Agent duly executed and delivered by the
Borrower to and in favor of the Agent and the Lenders, as it may from time
to time be amended, supplemented or otherwise modified with respect to
sixty-five percent (65%) of the outstanding capital stock of each of the
Borrower's Material Foreign Subsidiaries.
"PREPAYMENT NOTICE" is defined in Section 2.2(b).
--------------
"PRIME RATE" means the rate per annum equal to the prime rate of
interest announced from time to time by Bank one or its parent (which shall
not necessarily be the lowest rate charged to any customer) changing when
and as said prime rate changes.
"PROPERTY" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets
owned, leased or operated by such Person, including, without limitation,
Intellectual Property.
"PURCHASERS" is defined in Section 12.3.1.
--------------
- 12 -
"REGULATION D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor
thereto or other regulation or official interpretation of said Board of
Governors relating to reserve requirements applicable to member banks of the
Federal Reserve System.
"REGULATION U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or
other regulation or official interpretation of said Board of Governors
relating to the extension of credit by banks for the purpose of purchasing
or carrying margin stocks applicable to member banks of the Federal Reserve
System.
"RENTALS" of a Person means the aggregate fixed amounts payable by
such Person under any lease of Property having an original term (including
any required renewals or any renewals at the option of the lessor or lessee)
of one year or more (but does not include any amounts payable under
Capitalized Leases of such Person).
"REPORTABLE EVENT" means a reportable event as defined in Section
4043 of ERISA and the regulations issued under such section, with respect to
a Plan, excluding, however, such events as to which the PBGC by regulation
waived the requirement of Section 4043(a) of ERISA that it be notified
within 30 days of the occurrence of such event, provided, however, that a
failure to meet the minimum funding standard of Section 412 of the Code and
of Section 302 of ERISA shall be a Reportable Event regardless of the
issuance of any such waiver of the notice requirement in accordance with
either Section 4043(a) of ERISA or Section 412(d) of the Code.
"REQUIRED LENDERS" means, as of the date of determination thereof,
Lenders in the aggregate having at least 51% of the Aggregate Commitment;
provided, however, that, if any of the Lenders shall have failed to fund its
-------- -------
Percentage of any Loan requested by the Borrower which such Lenders are
obligated to fund under the terms of this Agreement and any such failure has
not been cured, then for so long as such failure continues, "REQUIRED
LENDERS" means Lenders (excluding all Lenders whose failure to fund their
respective Percentage of such Revolving Loans have not been so cured) in the
aggregate having at least 51% of the Aggregate Commitment of such Lenders;
provided, further, however, that, if the Aggregate Commitment has been
-------- ------- -------
terminated pursuant to the terms of this Agreement, "REQUIRED LENDERS" means
Lenders (without regard to such Lenders' performance of their respective
obligations hereunder) in the aggregate holding at least 51% of the
Aggregate Outstanding Credit Exposure.
"RESERVE REQUIREMENT" means, with respect to and during a
Eurocurrency Interest Period, the maximum aggregate reserve requirement
(including all basic, supplemental, marginal and other reserves) which is
imposed under Regulation D on Eurocurrency liabilities. For purposes of this
definition, all Eurocurrency Loans shall be deemed to be "Eurocurrency
liabilities" as defined in Regulation D.
"SECTION" means a numbered section of this Agreement, unless
another document is specifically referenced.
"SENIOR NOTES" is defined in the definition of Note Purchase
Agreement above.
- 13 -
"SENIOR NOTEHOLDERS" means each of the holders of the Senior Notes.
"SINGLE EMPLOYER PLAN" means a Plan maintained by the Borrower or
any member of the Controlled Group for employees of the Borrower or any
member of the Controlled Group.
"SUBSIDIARY" of a Person means (i) 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
by one or more of its Subsidiaries or by such Person and one or more of its
Subsidiaries, or (ii) 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.
Unless otherwise expressly provided, all references herein to a "Subsidiary"
shall mean a Subsidiary of the Borrower.
"SUBSIDIARY GUARANTY" means a Guaranty, substantially in the form
of Exhibit "B" hereto, duly executed and delivered by a Subsidiary of the
Borrower to and in favor of the Agent and the Lenders, as it may from time
to time be amended, supplemented or otherwise modified.
"SUBSTANTIAL PORTION" means, with respect to the Property of any
Person and its Subsidiaries, Property which (i) represents more than 10% of
the consolidated assets of such Person and its Subsidiaries as would be
shown in the consolidated financial statements of such Person and its
Subsidiaries as at the beginning of the twelve-month period ending with the
month in which such determination is made, or (ii) is responsible for more
than 10% of the consolidated net sales or of the consolidated net income of
such Person and its Subsidiaries as reflected in the financial statements
referred to in clause (i) above.
"TRANSFEREE" is defined in Section 12.4.
------------
"TYPE" means, with respect to any Advance, its nature as a Floating
Rate Advance or Eurocurrency Advance.
"UNFUNDED LIABILITIES" means the amount (if any) by which the
present value of all vested nonforfeitable 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, but only to the extent that such excess
represents a potential liability of the Borrower or a member of the
Controlled Group to the PBGC or such Plan under Title IV of ERISA.
"UNMATURED DEFAULT" means an event which but for the lapse of time
or the giving of notice, or both, would constitute a Default.
"WHIRLWIND" shall mean a company previously identified to the Agent
by the Borrower which the Borrower plans to acquire.
"WHIRLWIND ACQUISITION" shall mean the Borrower's planned
acquisition of Whirlwind.
"WHIRLWIND ACQUISITION AGREEMENT" shall mean the acquisition
agreement pursuant to which the Borrower plans to effect the Whirlwind
Acquisition.
- 14 -
"WHOLLY-OWNED SUBSIDIARY" of a Person means (i) any Subsidiary all
of the outstanding voting securities (except securities required as
directors' qualifying shares) of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more
Wholly-Owned Subsidiaries of such Person, or by such Person and one or more
Wholly-Owned Subsidiaries of such Person, or (ii) any partnership,
association, joint venture or similar business organization 100% of the
ownership interests having ordinary voting power of which shall at the time
be so owned or controlled.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms.
ARTICLE II: THE CREDITS
2.1. Commitment; Dollar Equivalent Calculations. Upon the
------------------------------------------
satisfaction of the conditions precedent contained in Section 4.1 from and
-----------
including the date of this Agreement and prior to the Facility Termination
Date, each Lender severally agrees, on the terms and conditions set forth in
this Agreement, to make Loans to the Borrower in a single drawing in Dollars;
provided, that upon giving effect to each such Loan, the aggregate
--------
outstanding principal amount of all Loans made by such Lender shall not
exceed such Lender's Commitment. The Commitments to lend hereunder shall
expire on the Facility Termination Date.
2.2. Repayments and Prepayments of Advances.
--------------------------------------
(a) Repayment at Maturity. Any outstanding Advances and all other
---------------------
unpaid Obligations shall be paid in full by the Borrower on the Facility
Termination Date. Subject to the terms and conditions of this Agreement, any
amount paid or prepaid before the Facility Termination Date may not be
reborrowed.
(b) Optional Prepayments. Subject to Section 3.4 and the
-------------------- -----------
requirements of Section 2.7, the Borrower may (a) following notice given to
-----------
the Agent by the Borrower, by not later than 10:00 a.m. (Chicago time) one
Business Day prior to the date of the proposed prepayment, such notice
specifying the aggregate principal amount of (which shall not be less than
$1,000,000) and the proposed date of the prepayment (the "PREPAYMENT
NOTICE"), and if such notice is given the Borrower shall, prepay the
outstanding principal amounts of the Floating Rate Loans comprising part of
the same Advance in whole or ratably in part without penalty or premium and
(b) following notice given to the Agent by the Borrower by not later than
10:00 a.m. (Chicago time) on, if the Advance to be prepaid is a Eurocurrency
Advance, the third Business Day preceding the date of the proposed prepayment
(which shall be the last day of the applicable Eurocurrency Interest Period),
such notice specifying the Eurocurrency Advance to be prepaid (which shall
not be less than $1,000,000) and the proposed date of the prepayment, and, if
such notice is given, such Borrower shall, prepay the outstanding principal
amounts of the Eurocurrency Loans comprising a Eurocurrency Advance in whole
(and not in part) without penalty or premium, together with accrued interest
to the date of such prepayment on the principal amount prepaid.
(c) Mandatory Prepayments. Upon the consummation of any Asset Sale
---------------------
by the Borrower or any Subsidiary of the Borrower within three (3) Business
Days after the Borrower's or any of its Subsidiaries' receipt of any Net Cash
Proceeds, or other such proceeds, the Borrower shall make a mandatory
prepayment of the Obligations in an amount equal to one
- 15 -
hundred percent (100%) of such Net Cash Proceeds; provided, however, that the
first such mandatory payment may be deferred until the aggregate Net Cash
Proceeds from all such sales equals $5,000,000 and further mandatory payments
may be deferred until the aggregate Net Cash Proceeds from all further sales,
not yet applied to a prepayment pursuant to this Section 2.2(c), equals
--------------
$1,000,000. Upon the consummation of any Financing by the Borrower or any
Subsidiary of the Borrower, within three (3) Business Days after the
Borrower's or any of its Subsidiaries' receipt of any Net Cash Proceeds from
such Financing, the Borrower shall make a mandatory prepayment of the
Obligations in an amount equal to one hundred percent (100%) of such Net Cash
Proceeds.
2.3. Ratable Loans. Each Advance hereunder shall consist of Loans
-------------
made from the several Lenders ratably in proportion to their respective
Percentages.
2.4. Types of Advances. The Advances may be Floating Rate Advances
-----------------
or Eurocurrency Advances, or a combination thereof, selected by the Borrower
in accordance with Sections 2.8 and 2.9.
------------ ---
2.5. Reductions in Aggregate Commitment. The Borrower may
----------------------------------
permanently reduce the Aggregate Commitment in whole, or in part ratably
among the Lenders in integral multiples of $1,000,000, upon at least three
Business Days' written notice to the Agent, which notice shall specify the
amount of any such reduction (the "Aggregate Commitment Reduction Notice").
2.6. Minimum Amount of Each Advance; Maximum Interest Periods. Each
--------------------------------------------------------
Eurocurrency Advance shall be in the minimum amount of $1,000,000 (and in
multiples of $100,000, and each Floating Rate Advance shall be in the minimum
amount of $500,000 (and a multiple of $100,000 if in excess thereof);
provided, that any Floating Rate Advance may be in the amount of the
--------
Available Aggregate Commitment. In addition, the Borrower shall select
Eurocurrency Interest Periods under Sections 2.8 and 2.9 so that no more than
------------ ---
three (3) Eurocurrency Interest Periods shall be outstanding at any one time.
2.7. Minimum Amounts for Optional Principal Payments. Optional
-----------------------------------------------
prepayments of outstanding Floating Rate Advances made pursuant to Section
-------
2.2(b) shall be for the entire amount thereof or otherwise, in a minimum
------
amount of $500,000 (and a multiple of $100,000 if in excess thereof).
Optional prepayments of Eurocurrency Advances made pursuant to Section 2.2(b)
--------------
shall be for the entire amount of the outstanding Eurocurrency Advance.
2.8. Method of Selecting New Advances. The Borrower shall select the
--------------------------------
Type of Advance and, in the case of each Eurocurrency Advance, the
Eurocurrency Interest Period and Agreed Currency applicable to each Advance
from time to time. The Borrower shall give the Agent irrevocable notice (a
"BORROWING NOTICE") by telephone or telefax not later than 9:00 a.m. (Chicago
time) on the proposed Borrowing Date of each Floating Rate Advance and three
Business Days before the Borrowing Date for each Eurocurrency Advance,
specifying:
(i) the Borrowing Date, which shall be a Business Day, of such
Advance,
(ii) the aggregate amount of such Advance,
(iii) the Type of Advance selected, and
(iv) in the case of each Eurocurrency Advance, the Agreed Currency
and the Eurocurrency Interest Period applicable thereto.
- 16 -
Not later than (i) 1:00 p.m. (Chicago time) on each Borrowing Date with
respect to Floating Rate Advances and (ii) noon (Chicago time) on each
Borrowing Date for Eurocurrency Advances, each Lender shall make available
its Loan or Loans, in funds immediately available funds in Dollars to the
Agent at its address specified pursuant to Article XIII, unless the Agent has
------------
notified the Lenders that such Loan is to be made available to the Borrower
at the Agent's Eurocurrency Payment Office, in which case each Lender shall
make available its Loan or Loans, in funds immediately available to the Agent
at its Eurocurrency Payment Office, not later than 1:00 p.m. (local time in
the city of the Agent's Eurocurrency Payment Office) in Dollars designated by
the Agent. The Agent will make the funds so received from the Lenders
available to the Borrower at the Agent's aforesaid address.
2.9. Conversion and Continuation of Outstanding Advances. Floating
---------------------------------------------------
Rate Advances shall continue as Floating Rate Advances unless and until such
Floating Rate Advances are converted into Eurocurrency Advances. Each
Eurocurrency Advance shall continue as a Eurocurrency Advance of such Type
until the end of the then applicable Eurocurrency Interest Period therefor,
at which time such Eurocurrency Advance shall be automatically converted into
a Floating Rate Advance unless the Borrower shall have given the Agent a
Conversion/Continuation Notice in accordance with the terms of this Section
-------
2.9 requesting that, at the end of such Eurocurrency Interest Period, such
---
Eurocurrency Advance continue as a Eurocurrency Advance for the same or
another Eurocurrency Interest Period. The beginning of a new Eurocurrency
Interest Period shall not be deemed a new Advance under this Agreement.
Subject to the terms of Section 2.6, the Borrower may elect from time to time
-----------
to convert all or any part of an Advance of any Type into any other Type or
Types of Advances; provided that any conversion of any Eurocurrency Advance
shall be made on, and only on, the last day of the Eurocurrency Interest
Period applicable thereto. The Borrower shall give the Agent irrevocable
notice (a "CONVERSION/CONTINUATION NOTICE") of each conversion of a Floating
Rate Advance or continuation of a Eurocurrency Advance not later than 10:00
a.m. (Chicago time) at least four Business Days prior to the date of the
requested conversion or continuation, specifying:
(i) the requested date which shall be a Business Day, of such
conversion or continuation;
(ii) the aggregate amount and Type of the Advance which is to be
converted or continued; and
(iii) the amount and Type(s) of Advance(s) into which such Advance
is to be converted or continued and, in the case of a
conversion into or continuation of a Eurocurrency Advance,
the duration of the Eurocurrency Interest Period applicable
thereto.
2.10. Changes in Interest Rate, etc. Each Floating Rate Advance
-----------------------------
shall bear interest on the outstanding principal amount thereof, for each day
from and including the date such Advance is made or is converted from a
Eurocurrency Advance into a Floating Rate Advance pursuant to Section 2.9 to
-----------
but excluding the date it becomes due or is converted into a Eurocurrency
Advance pursuant to Section 2.9 hereof, at a rate per annum equal to the
-----------
Floating Rate for such day. Changes in the rate of interest on that portion
of any Advance maintained as a Floating Rate Advance will take effect
simultaneously with each change in the Alternate Base Rate. Each Eurocurrency
Advance shall bear interest from and including the first day of the
Eurocurrency Interest Period applicable thereto to (but not including) the
last day of such Eurocurrency Interest Period at the Eurocurrency Rate
determined as applicable to such Eurocurrency Advance. No Eurocurrency
Interest Period may end after the Facility Termination Date.
2.11. Rates Applicable After Default. Notwithstanding anything to
------------------------------
the contrary contained in Section 2.8 or 2.9, during the continuance of a
----------- ---
Default or Unmatured Default the Required Lenders may, at their
- 17 -
option, by notice to the Borrower, declare that no Advance may be made as,
converted into or continued as a Eurocurrency Advance. During the continuance
of any Default under Section 7.2, the Required Lenders may, at their option,
-----------
by notice to the Borrower, declare that each Advance shall bear interest at a
rate per annum equal to the Floating Rate plus 2% per annum.
2.12. Method of Payment. All payments of the Obligations hereunder
-----------------
shall be made, without setoff, deduction, or counterclaim, to the Agent at
the Agent's address specified pursuant to Article XIII in immediately
------------
available funds by noon (local time) on the date when due and shall be
applied ratably by the Agent among the Lenders (unless such amount is not to
be shared ratably in accordance with the express terms hereof). Any payment
received by the Agent after such time shall be deemed to have been received
on the next Business Day. Each payment delivered to the Agent for the account
of any Lender shall be delivered promptly by the Agent to such Lender in the
same type of funds that the Agent received at its address specified pursuant
to Article XIII or at any Lending Installation specified in a notice received
------------
by the Agent from such Lender. The Agent is hereby authorized to charge the
account of the Borrower maintained with Bank One, NA for each payment of
principal, interest and fees as it becomes due hereunder. Any payment by the
Borrower to the Agent for account of the Lenders in accordance with the terms
hereof shall, to the extent of such payment, discharge the Borrower's
obligation to make such payment to the Lenders.
2.13. Notes; Telephonic Notices. Each Lender is hereby authorized to
-------------------------
record the principal amount of each of its Loans and each repayment on the
schedule attached to its Note, provided, however, that the failure to so
record or any error in any such record shall not affect the Borrower's
obligations under such Note. The Borrower hereby authorizes the Lenders and
the Agent to extend, convert or continue Advances, effect selections of Types
of Advances and to transfer funds based on telephonic notices made by any
person or persons the Agent or any Lender in good faith believes to be an
Authorized Officer of the Borrower. The Borrower agrees to deliver promptly
to the Agent a written confirmation, if such confirmation is requested by the
Agent or any Lender, of each telephonic notice signed by an Authorized
Officer. If the written confirmation differs in any material respect from the
action taken by the Agent and the Lenders, the records of the Agent and the
Lenders shall govern absent manifest error.
2.14. Interest Payment Dates; Interest and Fee Basis. Interest
----------------------------------------------
accrued on each Floating Rate Advance shall be payable on each Payment Date,
commencing with the first such date to occur after the date hereof, and at
maturity (whether due to acceleration or otherwise). Interest accrued on that
portion of the outstanding principal amount of any Floating Rate Advance
converted into a Eurocurrency Advance on a day other than a Payment Date
shall be payable on the date of conversion. Interest accrued on each
Eurocurrency Advance shall be payable on the last day of its applicable
Eurocurrency Interest Period, on any date on which the Eurocurrency Advance
is prepaid, whether by acceleration or otherwise, and at maturity. Interest
and fees shall be calculated for actual days elapsed on the basis of a
360-day year. Interest shall be payable for the day an Advance is made but
not for the day of any payment on the amount paid if payment is received
prior to noon (local time) at the place of payment. If any payment of
principal of or interest on an Advance shall become due on a day which is not
a Business Day, such payment shall be made on the next succeeding Business
Day and, in the case of a principal payment, such extension of time shall be
included in computing interest in connection with such payment.
2.15. Notification of Advances, Interest Rates, Prepayments and
---------------------------------------------------------
Commitment Reductions. The Agent will promptly notify each Lender of the
---------------------
contents of each Aggregate Commitment Reduction Notice, Borrowing Notice,
Conversion/Continuation Notice, and Prepayment Notice received by it
hereunder. The Agent will notify each Lender of the interest rate applicable
to each Eurocurrency Advance promptly upon determination of such interest
rate and will give the Borrower and each Lender prompt notice of each change
in the Alternate Base Rate.
2.16. Lending Installations. Each Lender may book its Loans at any
---------------------
Lending Installation selected by such Lender and may change its Lending
Installation from time to time. All terms of this Agreement shall apply to
any such Lending Installation and the Notes shall be deemed held by each
Lender for the benefit of such Lending Installation. Each Lender may, by
written or facsimile notice to the Agent and the Borrower, designate a
Lending Installation through which Loans will be made by it and for whose
account Loan payments are to be made.
- 18 -
2.17. Non-Receipt of Funds by the Agent. Unless the Borrower or a
---------------------------------
Lender, as the case may be, notifies the Agent prior to the date on which it
is scheduled to make payment to the Agent of (i) in the case of a Lender, the
proceeds of a Loan or (ii) in the case of the Borrower, a payment of
principal, interest or fees to the Agent for the account of the Lenders, that
it does not intend to make such payment, the Agent may assume that such
payment has been made. The Agent may, but shall not be obligated to, make the
amount of such payment available to the intended recipient in reliance upon
such assumption. If such Lender or the Borrower, as the case may be, has not
in fact made such payment to the Agent, the recipient of such payment shall,
on demand by the Agent, repay to the Agent the amount so made available
together with interest thereon in respect of each day during the period
commencing on the date such amount was so made available by the Agent until
the date the Agent recovers such amount at a rate per annum equal to (i) in
the case of payment by a Lender, the Federal Funds Effective Rate for such
day or (ii) in the case of payment by the Borrower, the interest rate
applicable to the relevant Loan.
ARTICLE III: CHANGE IN CIRCUMSTANCES
3.1. Yield Protection. If, after the date of this Agreement, the
----------------
adoption of or change in, any law or any governmental or quasi-governmental
rule, regulation, policy, guideline or directive (whether or not having the
force of law), or any interpretation thereof, or the compliance of any Lender
therewith,
(i) subjects any Lender or any applicable Lending
Installation to any tax, duty, charge or withholding on or from
payments due from the Borrower (excluding taxation of the overall
net income of any Lender or applicable Lending Installation), or
changes the basis of taxation of payments to any Lender in respect
of its Loans or other amounts due it hereunder, or
(ii) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit
extended by, any Lender or any applicable Lending Installation
(other than reserves and assessments taken into account in
determining the interest rate applicable to Eurocurrency Advances)
in respect of its Loans or other amounts due it hereunder, or
(iii) imposes any other condition the result of which is to
increase the cost to any Lender or any applicable Lending
Installation of making, funding or maintaining loans or reduces any
amount receivable by any Lender or any applicable Lending
Installation in connection with Loans under this Agreement or its
Notes, or requires any Lender or any applicable Lending Installation
to make any payment calculated by reference to the amount of Loans
held or interest received by it, by an amount deemed material by
such Lender,
then, within 15 days of demand by such Lender, the Borrower shall pay such
Lender that portion of such increased expense incurred or reduction in an
amount received which such Lender determines is attributable to making,
funding and maintaining its Loans and its Commitment.
3.2. Changes in Capital Adequacy Regulations. If a Lender determines
---------------------------------------
the amount of capital required or expected to be maintained by such Lender,
any Lending Installation of such Lender or any corporation controlling such
Lender is increased as a result of a Change, then, within 15 days of demand
by such Lender, the Borrower shall pay such Lender the amount necessary to
compensate, on an after-tax basis,
- 19 -
for any shortfall in the rate of return on the portion of such increased
capital which such Lender reasonably determines is attributable to this
Agreement, its Outstanding Credit Exposure or its Commitment (after taking
into account such Lender's policies as to capital adequacy and the change).
"Change" means (i) any change after the date of this Agreement in the
Risk-Based Capital Guidelines or (ii) any adoption of or change in any other
law, governmental or quasi-governmental rule, regulation, policy, guideline,
interpretation, or directive (whether or not having the force of law) after
the date of this Agreement which affects the amount of capital required or
expected to be maintained by any Lender or any Lending Installation or any
corporation controlling any Lender. "Risk-Based Capital Guidelines" means (i)
the risk-based capital guidelines in effect in the United States on the date
of this Agreement, including transition rules, and (ii) the corresponding
capital regulations promulgated by regulatory authorities outside the United
States implementing the July 1988 report of the Basle Committee on Banking
Regulation and Supervisory Practices Entitled "International Convergence of
Capital Measurements and Capital Standards," including transition rules, and
any amendments to such regulations adopted prior to the date of this
Agreement.
3.3. Availability of Types of Advances. If any Lender determines
---------------------------------
that maintenance of any of its Eurocurrency Loans at a suitable Lending
Installation would violate any applicable law, rule, regulation or directive,
whether or not having the force of law, such Lender shall promptly give
notice thereof to Borrower and the Agent shall suspend the availability of
Eurocurrency Advances and require any and all outstanding Eurocurrency
Advances to be repaid. If the Required Lenders determine that (i) deposits of
a type, currency or maturity appropriate to match fund Eurocurrency Advances
are not available or (ii) the interest rate applicable to Eurocurrency
Advance does not accurately reflect the cost of making Eurocurrency Advances,
then the Agent shall promptly give notice thereof to Borrower and the Lenders
shall suspend the availability of Eurocurrency Advances until such time as
the circumstances giving rise to such suspension no longer exist.
3.4. Funding Indemnification. If any payment of a Eurocurrency
-----------------------
Advance occurs on a date which is not the last day of the applicable
Eurocurrency Interest Period, whether because of acceleration, prepayment or
otherwise (but excluding any such prepayment arising pursuant to Section
-------
3.3), or a Eurocurrency Advance is not made or prepaid on the date specified
---
by the Borrower for any reason other than default by the Lenders, the
Borrower will indemnify each Lender for any loss or cost incurred by it
resulting therefrom, including, without limitation, any loss or cost in
liquidating or employing deposits acquired to fund or maintain such Advance.
3.5. Lender Statements; Survival of Indemnity. To the extent
----------------------------------------
reasonably possible, each Lender shall designate an alternate Lending
Installation with respect to its Eurocurrency Loans to reduce any liability
of the Borrower to such Lender under Sections 3.1 and 3.2 or to avoid the
------------ ---
unavailability of a Type of Advance under Section 3.3, so long as such
-----------
designation is not disadvantageous to such Lender. Each Lender shall deliver
to Borrower a written statement of such Lender as to the amount due, if any,
under Sections 3.1, 3.2 or 3.4. Such written statement shall set forth in
------------ --- ---
reasonable detail the calculations upon which such Lender determined such
amount and shall be final, conclusive and binding on the Borrower in the
absence of manifest error. Determination of amounts payable under such
Sections in connection with a Eurocurrency Loan shall be calculated as though
each Lender funded its Eurocurrency Loan through the purchase of a deposit of
the type, currency and maturity corresponding to the deposit used as a
reference in determining the Eurocurrency Rate applicable to such Loan,
whether in fact that is the case or not. Unless otherwise provided herein,
the amount specified in the written statement or certificate shall be payable
on demand after receipt by the Borrower of the written statement. The
obligations of the Borrower under Sections 3.1, 3.2 and 3.4 shall survive
------------ --- ---
payment of the Obligations and termination of this Agreement.
3.6. Replacement Lenders. If any Lender either (i) failed to fund
-------------------
its Percentage of any Advance requested by the Borrower, or to fund a Loan in
order to repay Reimbursement Obligations, which such Lender is obligated to
fund under the terms of this Agreement and which failure has not been cured;
(ii) makes a demand for compensation pursuant to Section 2.19(g), Section 3.1
--------------- -----------
or Section 3.2, (iii) is unable to fund at the Eurocurrency Rate or
-----------
determines that such rate is unavailable or does not accurately reflect its
cost of making or maintaining any Eurocurrency Loan pursuant to Section 3.3
-----------
or (iv) invokes the provisions of Section 9.2, the Borrower may require and
have such Lender transfer, pursuant to and in accordance with Section 12.3,
------------
all of its rights and obligations under the Credit Documents to one or more
Purchasers selected
- 20 -
by the Borrower, acceptable to the Agent, and willing to accept such
assignment provided such Lender is paid upon such assignment all amounts of
principal, interest and fees accrued hereunder to the date of such
assignment. No such assignment shall affect (a) any liability or obligation
of the Borrower or any other Lender to such replaced Lender, which accrued on
or prior to the date of such assignment or (b) such replaced Lender's rights
or obligations hereunder in respect of any such liability or obligation.
ARTICLE IV: CONDITIONS PRECEDENT
4.1. Initial Credit Extension. The Aggregate Commitment shall not
------------------------
become effective until the Borrower satisfies the conditions precedent
contained in this Section 4.1 (provided the Borrower satisfies such
-----------
conditions on or before September 17, 2001) and, if later, the date specified
in the Borrowing Notice required pursuant to Section 4.1(m) as the date for
--------------
the initial (and only) Advance to be made. The Lenders shall not be required
to make the initial (and only) Advance hereunder, unless the Borrower has
furnished to the Agent with sufficient copies for the Lenders:
(a) Copies of the articles of incorporation of the Borrower,
together with all amendments, and a certificate of good
standing, both certified by the appropriate governmental
officer in its jurisdiction of incorporation.
(b) Copies, certified by the Secretary or Assistant Secretary of
the Borrower, of its by-laws and of its Board of Directors'
resolutions (and resolutions of other bodies, if any are
deemed necessary by counsel for any Lender) authorizing the
execution of the Borrower Credit Documents and Subsidiary
Guaranties, as applicable.
(c) An incumbency certificate, executed by the Secretary or
Assistant Secretary of the Borrower and its Subsidiaries,
which shall identify by name and title and bear the signature
(or facsimiles thereof) of the officers of the Borrower
authorized to sign the Borrower Credit Documents and
Subsidiary Guaranties, as applicable and, in the case of the
Borrower, to make Credit Extensions hereunder, upon which
certificate the Agent and the Lenders shall be entitled to
rely until informed of any change in writing by the Borrower.
(d) A certificate, signed by the chief financial officer of the
Borrower, stating that on the initial Credit Extension Date
no Default or Unmatured Default has occurred and is
continuing.
(e) A written opinion of Xxxxx Xxxx LLP, legal counsel to the
Borrower, addressed to the Lenders in substantially the form
of Exhibit "C" hereto.
(f) Note payable to the order of the Agent.
(g) A compliance certificate in substantially the form of
Exhibit "D" hereto signed by the Borrower's chief financial
officer showing the calculations necessary to determine
compliance with Sections 6.20, 6.21 and 6.22 of this
------------- ---- ----
Agreement.
(h) Written money transfer instructions, in substantially the
form of Exhibit "E" hereto, addressed to the Agent and signed
by an Authorized Officer, together with such other related
money transfer authorizations as the Agent may have
reasonably requested.
- 21 -
(i) An amendment to the Note Purchase Agreement, on terms and
conditions reasonably acceptable to the Agent and the
Lenders, which amendment shall permit (i) the issuance of the
Subsidiary Guaranties required by this Agreement, conditioned
only upon receipt by the Senior Noteholders of guaranties
from such Subsidiaries on terms no less favorable to the
Senior Noteholders than those contained in the Subsidiary
Guaranties, which guaranties shall be required only for so
long as the Subsidiary Guaranties have not been released and
(ii) the execution of the Pledge Agreements required by this
Agreement, conditioned only upon the requirement that the
Lien of the Pledge Agreement be extended equally and ratably
to the Senior Noteholders, which Lien in favor of the Senior
Noteholders shall be required only for so long as the
collateral under the applicable Pledge Agreement(s) hereunder
has not been released.
(j) Evidence satisfactory to the Agent that (i) all material
conditions precedent to the consummation of the Whirlwind
Acquisition have been satisfied or waived with the approval
of the Agent, (ii) the Whirlwind Acquisition Agreement has
been approved by all necessary corporate action of the Board
of Directors and shareholders of the Borrower and Whirlwind,
and has not been amended, waived or modified in any material
respect adverse to the Lenders without the approval of the
Agent and (iii) the Whirlwind Acquisition will close
contemporaneously with the initial funding under this
Agreement.
(k) Evidence reasonably satisfactory to the Agent that all
required governmental approvals related to the Whirlwind
Acquisition have been obtained and all related filings made
and any applicable waiting periods shall have expired or been
terminated;
(l) Evidence reasonably satisfactory to the Agent that there
exists no injunction or temporary restraining order which, in
the reasonable judgment of the Agent, would prohibit the
making of the Loans or the consummation of the Whirlwind
Acquisition and the other transactions contemplated by the
transaction documents or any litigation seeking such an
injunction or restraining order;
(m) The Agent shall have received a Notice of Borrowing.
The Borrowing Notice with respect to such Advance, shall constitute
a representation and warranty by the Borrower that the conditions contained
in Section 4.1 have been satisfied.
-----------
ARTICLE V: REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
5.1. Corporate Existence and Standing. Each of the Borrower and its
--------------------------------
Subsidiaries is a corporation duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation
- 22 -
and has all requisite authority to conduct its business in each jurisdiction
in which its business is conducted.
5.2. Authorization and Validity. The Borrower has the corporate
--------------------------
power and authority and legal right to execute and deliver the Borrower
Credit Documents and to perform its obligations thereunder. The execution and
delivery by the Borrower of the Borrower Credit Documents and the performance
of its obligations thereunder have been duly authorized by proper corporate
proceedings, and the Borrower Credit Documents constitute legal, valid and
binding obligations of the Borrower enforceable against the Borrower in
accordance with their terms, except as enforceability may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally.
5.3. No Conflict; Government Consent. Neither the execution and
-------------------------------
delivery by the Borrower of the Borrower Credit Documents, nor the
consummation of the transactions therein contemplated, nor compliance with
the provisions thereof will violate any law, rule, regulation, order, writ,
judgment, injunction, decree or award binding on the Borrower or any of its
Subsidiaries or the Borrower's or any Subsidiary's articles of incorporation
or by-laws or the provisions of any indenture, instrument or agreement to
which the Borrower or any of its Subsidiaries is a party or is subject, or by
which it, or its Property, is bound, or conflict with or constitute a default
thereunder, or result in the creation or imposition of any Lien in, of or on
the Property of the Borrower or a Subsidiary pursuant to the terms of any
such indenture, instrument or agreement. No order, consent, approval,
license, authorization, or validation of, or filing, recording or
registration with, or exemption by, any governmental or public body or
authority, or any subdivision thereof, is required to authorize, or is
required in connection with the execution, delivery and performance of, or
the legality, validity, binding effect or enforceability of, any of the
Borrower Credit Documents.
5.4. Financial Statements. The December 31, 2000 audited
--------------------
consolidated financial statements of the Borrower and its Subsidiaries
heretofore delivered to the Lenders were prepared in accordance with
generally accepted accounting principles in effect on the respective dates
such statements were prepared and fairly present the consolidated financial
condition and operations of the Borrower and its Subsidiaries at such dates
and the consolidated results of their operations for the respective periods
then ended.
5.5. Material Adverse Change. Since December 31, 2000, there has
-----------------------
been no change in the business, Property, condition (financial or otherwise)
or results of operations of the Borrower and its Subsidiaries which could
reasonably be expected to have a Material Adverse Effect. As of the date of
this Agreement, to the Borrower's knowledge there has been no material
adverse change in the business, condition (financial or otherwise),
operations, performance, properties or prospects of Whirlwind from that set
forth in the information contained in this confidential information
memorandum delivered to the Agent prior to the date hereof.
5.6. Taxes. The Borrower and its Subsidiaries have filed all United
-----
States federal tax returns and all other tax returns which are required to be
filed and have paid all taxes due pursuant to said returns or pursuant to any
assessment received by the Borrower or any of its Subsidiaries, except such
taxes, if any, as are being contested in good faith and as to which adequate
reserves have been provided. As of the date of this Agreement, the United
States income tax returns of the Borrower and its Subsidiaries have never
been audited by the Internal Revenue Service. No tax liens have been filed
and no claims are being asserted with respect to any such taxes. The charges,
accruals and reserves on the books of the Borrower and its Subsidiaries in
respect of any taxes or other governmental charges are adequate.
5.7. Litigation and Contingent Obligations. Except as set forth on
-------------------------------------
Schedule "3" hereto, there is no litigation, arbitration, governmental
investigation, proceeding or inquiry pending or, to the knowledge of any of
their officers, threatened against or affecting the Borrower or any of its
Subsidiaries which, if adversely determined, could have a Material Adverse
Effect. Other than any liability incident to such litigation, arbitration or
proceedings, the Borrower has no material contingent obligations not provided
for or disclosed in the financial statements referred to in Section 5.4.
-----------
5.8. Subsidiaries. Schedule "1" hereto contains an accurate list of
------------
all of the presently existing Subsidiaries of the Borrower, setting forth
their respective jurisdictions of incorporation and the percentage
- 23 -
of their respective capital stock owned by the Borrower or other
Subsidiaries. All of the issued and outstanding shares of capital stock of
such Subsidiaries have been duly authorized and issued and are fully paid and
non-assessable.
5.9. ERISA. The Unfunded Liabilities of all Single Employer Plans do
-----
not in the aggregate exceed $1,000,000. Neither the Borrower nor any other
member of the Controlled Group has failed to make a required contribution or
payment to any Multiemployer Plan or made a complete or partial withdrawal
from a 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, neither the Borrower nor any other members
of the Controlled Group has withdrawn from any Plan or initiated steps to do
so, and no steps have been taken to reorganize or terminate any Plan.
5.10. Accuracy of Information. No information, exhibit or report
-----------------------
furnished by the Borrower or any of its Subsidiaries to the Agent or to any
Lender in connection with the negotiation of, or compliance with, the Credit
Documents contained any material misstatement of fact or omitted to state a
material fact or any fact necessary to make the statements contained therein
not misleading.
5.11. Regulation U. Margin stock (as defined in Regulation U)
------------
constitutes less than 25% of those assets of the Borrower and its
Subsidiaries which are subject to any limitation on sale, pledge, or other
restriction hereunder.
5.12. Material Agreements. Neither the Borrower nor any Subsidiary
-------------------
is a party to any agreement or instrument or subject to any charter or other
corporate restriction which could reasonably be expected to have a Material
Adverse Effect. Neither the Borrower nor any Subsidiary is in default in the
performance, observance or fulfillment of any of the obligations, covenants
or conditions contained in (i) any agreement to which it is a party, which
default could reasonably be expected to have a Material Adverse Effect or
(ii) any agreement or instrument evidencing or governing Indebtedness.
5.13. Compliance With Laws. The Borrower and its Subsidiaries have
--------------------
complied in all material respects with all applicable statutes, rules,
regulations, orders and restrictions of any domestic or foreign government or
any instrumentality or agency thereof, having jurisdiction over the conduct
of their respective businesses or the ownership of their respective Property.
Except for matters identified on Schedule "3" hereto, neither the Borrower
nor any Subsidiary has received any notice to the effect that its operations
are not in material compliance with any of the requirements of applicable
federal, state and local environmental, health and safety statutes and
regulations or the subject of any federal or state investigation evaluating
whether any remedial action is needed to respond to a release of any toxic or
hazardous waste or substance into the environment, which non-compliance or
remedial action could reasonably be expected to have a Material Adverse
Effect.
5.14. Ownership of Property. Except as set forth on Schedule "2"
---------------------
hereto, on the date of this Agreement, the Borrower and its Subsidiaries have
good title, free of all Liens other than those permitted by Section 6.17, to
------------
all of the Property and assets reflected in the financial statements referred
to in Section 5.4 as owned by it. The Borrower and each of its Subsidiaries
-----------
owns (or is licensed to use) all Intellectual Property which is necessary or
appropriate in any material respect for the conduct of its respective
business as conducted on the date of this Agreement, without any material
conflict with the rights of any other Person. Neither the Borrower nor any
Subsidiary is aware of (i) any material existing or threatened infringement
or misappropriation of any of its Intellectual Property by any third party or
(ii) any material third party claim that any aspect of the business of the
Borrower or any Subsidiary (as conducted on the date of this Agreement)
infringes or will infringe upon, any Intellectual Property or other property
right of any other Person.
5.15. Labor Matters. There are no labor controversies pending
-------------
against the Borrower or any Subsidiary which could reasonably be expected to
have a Material Adverse Effect. The Borrower and each of its Subsidiaries are
in substantial compliance in all material respects with the Fair Labor
Standards Act, as amended.
- 24 -
5.16. Investment Company Act. Neither the Borrower nor any
----------------------
Subsidiary thereof is an "investment company" or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of
1940, as amended.
5.17. Public Utility Holding Company Act. Neither the Borrower nor
----------------------------------
any Subsidiary is a "holding company" or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company", within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
ARTICLE VI: COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.1. Financial Reporting. The Borrower will maintain, for itself and
-------------------
each Subsidiary, a system of accounting established and administered in
accordance with generally accepted accounting principles, and furnish to the
Agent (which shall promptly provide copies to the Lenders):
(i) Within 90 days after the close of each of its fiscal years,
an unqualified (except for qualifications relating to changes
in accounting principles or practices reflecting changes in
generally accepted principles of accounting and required or
approved by the Borrower's independent certified public
accountants) audit report certified by independent certified
public accountants, acceptable to the Lenders, prepared in
accordance with Agreement Accounting Principles on a
consolidated and consolidating basis (consolidating
statements need not be certified by such accountants) for
itself and the Subsidiaries, including balance sheets as of
the end of such period, related profit and loss and
reconciliation of surplus statements, and a statement of cash
flows, accompanied by (a) any management letter prepared by
said accountants and (b) a certificate of said accountants
that, in the course of their examination necessary for their
certification of the foregoing, they have obtained no
knowledge of any Default or Unmatured Default, or if, in the
opinion of such accountants, any Default or Unmatured Default
shall exist, stating the nature and status thereof.
(ii) Within 45 days after the close of the first three quarterly
periods of each of its fiscal years, for itself and the
Subsidiaries, consolidated and consolidating unaudited
balance sheets as at the close of each such period and
consolidated and consolidating profit and loss and
reconciliation of surplus statements and a statement of cash
flows for the period from the beginning of such fiscal year
to the end of such quarter, all certified by its chief
financial officer as being prepared, to the best of his or
her knowledge in accordance with Agreement Accounting
Principles, consistently applied, subject to normal year-end
audit adjustments.
(iii) Together with the financial statements required hereunder, a
compliance certificate in substantially the form of Exhibit
"D" hereto signed by its chief financial officer showing the
calculations necessary to determine compliance with Sections
--------
6.20, 6.21 and 6.22 of this Agreement and stating that no
---- ---- ----
Default or
- 25 -
Unmatured Default exists, or if any Default or Unmatured
Default exists, stating the nature and status thereof.
(iv) As soon as possible and in any event within 10 days after
the Borrower knows that any Reportable Event has occurred
with respect to any Plan, a statement, signed by the chief
financial officer of the Borrower, describing said Reportable
Event and the action which the Borrower proposes to take with
respect thereto.
(v) As soon as possible and in any event within 10 days after
receipt by the Borrower, a copy of (a) any notice or claim to
the effect that the Borrower or any of its Subsidiaries is or
may be liable to any Person as a result of the release by the
Borrower, any of its Subsidiaries, or any other Person of any
toxic or hazardous waste or substance into the environment,
and (b) any notice alleging any violation of any federal,
state or local environmental, health or safety law or
regulation by the Borrower or any of its Subsidiaries, which,
in either case, could reasonably be expected to have a
Material Adverse Effect.
(vi) Promptly upon the furnishing thereof to the shareholders
of the Borrower, copies of all financial statements, reports
and proxy statements so furnished.
(vii) Promptly upon the filing thereof, copies of all registration
statements and annual, quarterly, monthly or other regular
reports which the Borrower or any of its Subsidiaries files
with the Commission (other than routine filings relating
solely to employee benefit plans and filings on Forms 3, 4 or
5 regarding xxxxxxx xxxxxxx activities). In the event
Borrower is no longer required to file reports with the
Commission, Borrower need not furnish such reports to the
Agent, but nonetheless shall provide the Agent the financial
statements previously contained in such reports.
(viii) Such other information (including non-financial information)
as the Agent or any Lender may from time to time reasonably
request.
- 26 -
6.2. Use of Proceeds. The Borrower will, and will cause each
---------------
Subsidiary to, use the proceeds of the Advances to effect the Whirlwind
Acquisition and for general corporate purposes. The Borrower will not, nor
will it permit any Subsidiary to, use any of the proceeds of the Advances
either (i) to purchase or carry any "margin stock" (as defined in Regulation
U) or (ii) to make any other Acquisition (except as specifically permitted by
Section 6.15).
------------
6.3. Notice of Default. After knowledge thereof shall have come to
-----------------
the attention of an Authorized Officer of the Borrower, the Borrower will
give prompt notice in writing to the Agent, and the Agent shall promptly
notify each other Lender, of the occurrence of any Default or Unmatured
Default and of any other development, financial or otherwise, which could
reasonably be expected to have a Material Adverse Effect.
6.4. Conduct of Business. The Borrower will, and will cause each
-------------------
Subsidiary to, carry on and conduct its business in substantially the same
manner and in substantially the same fields of enterprise as conducted on the
date of this Agreement, and to do all things necessary to remain duly
incorporated, validly existing and in good standing as a domestic corporation
in its jurisdiction of incorporation and maintain all requisite authority to
conduct its business in each jurisdiction in which its business is conducted.
6.5. Taxes. The Borrower will, and will cause each Subsidiary to,
-----
pay when due all taxes, assessments and governmental charges and levies upon
it or its income, profits or Property, except those which are being contested
in good faith by appropriate proceedings and with respect to which adequate
reserves have been set aside.
6.6. Insurance. The Borrower will, and will cause each Subsidiary
---------
to, maintain with financially sound and reputable insurance companies
insurance on all their Property in such amounts and covering such risks as is
consistent with sound business practice, and the Borrower will furnish to
Agent, upon request of the Agent or any Lender, a certificate setting forth
in summary form, the nature and extent of the insurance maintained pursuant
to this provision and such other information as shall be reasonably
requested. The Borrower will, within ten (10) Business Days of its receipt of
notice of termination or cancellation of any products liability or other
liability insurance policy insuring the Borrower or any of its Subsidiaries
(other than any such notice with respect to the expiration of any such policy
at the end of its stated term when renewal of such policy (or the obtaining
of a substantially equivalent policy with a different insurer) is not
expected to be a problem), give written notice thereof to the Lenders.
6.7. Compliance with Laws. The Borrower will, and will cause each
--------------------
Subsidiary to, comply with all laws, rules, regulations, orders, writs,
judgments, injunctions, decrees or awards to which it may be subject
including, without limitation, all applicable federal, state and local
environmental, health and safety statutes and regulations; provided however,
neither Borrower nor any Subsidiary shall be required to comply with any such
laws, rules, regulations, orders, writs, judgments, injunctions, decrees or
awards if its failure to comply therewith could not, in the aggregate, have a
Material Adverse Effect.
6.8. Maintenance of Property. The Borrower will, and will cause each
-----------------------
Subsidiary to, do all things necessary to maintain, preserve, protect and
keep all of its tangible personal and real Property in good repair, working
order and condition, and make all necessary and proper repairs, renewals and
replacements so that its business carried on in connection therewith may be
properly conducted at all times. The Borrower will, and will cause each
Subsidiary to, do all things necessary to maintain, preserve, protect all of
its Intellectual Property including, without limitation, perform each of its
respective obligations under any and all license agreements and other
contracts and agreements evidencing or relating to Intellectual Property,
using the same in interstate or foreign commerce, properly marking such
Intellectual Property and maintaining all necessary and appropriate
governmental registrations (both domestic and foreign).
6.9. Inspection. The Borrower will, and will cause each Subsidiary
----------
to, permit the Lenders, at their cost, by their respective representatives
and agent, during normal business hours, to inspect any of the Property,
corporate books and financial records of the Borrower and each Subsidiary, to
examine and make copies of the books of accounts and other financial records
of the Borrower and each Subsidiary, and to discuss the affairs, finances and
accounts of the Borrower and each Subsidiary with, and to be advised as to
- 27 -
the same by, their respective officers at such reasonable times and intervals
as the Lenders may reasonably designate.
6.10. Subsidiaries. The Borrower will cause each Person that becomes
------------
a direct or indirect Subsidiary of the Borrower after the date of this
Agreement (whether as the result of an Acquisition, creation, or otherwise)
to execute and delivery a Subsidiary Guaranty to and in favor of the Agent,
and the Lenders (together with an opinion of counsel, corporate resolutions
and such other corporate documentation as the Agent may reasonably request,
all in form and substance satisfactory to the Agent), in each case within 30
days after becoming a direct or indirect Subsidiary of the Borrower.
Notwithstanding the foregoing, no Subsidiary either (i) organized, under the
laws of a jurisdiction other than the United States of America or (ii) more
than 80% of the sales, earnings and assets of which are derived from
operations in territories of the United States and jurisdictions outside of
the United States (a "FOREIGN SUBSIDIARY") shall be required to give, execute
and deliver a Subsidiary Guaranty if the delivery of such Subsidiary Guaranty
would cause the undistributed earnings of that Foreign Subsidiary to be
treated as a deemed dividend to Borrower for federal income tax purposes, in
which event the terms of Section 6.15 shall be applicable.
------------
6.11. Dividends. The Borrower will not, nor will it permit any
---------
Subsidiary to, declare or pay any dividends on its capital stock (other than
dividends payable in its own capital stock) or redeem, repurchase or
otherwise acquire or retire any of its capital stock at any time outstanding,
except that:
(i) Any Subsidiary may declare and pay dividends to the Borrower or
to a Wholly-Owned Subsidiary.
(ii) Any Subsidiary may declare and pay dividends to a Subsidiary
other than a Wholly-Owned Subsidiary so long as at the time
of and upon giving effect to each such dividend (a) the
Borrower shall be in compliance with Section 6.22 and (b) no
------------
other Default or Unmatured Default shall exist.
(iii) The Borrower may declare or pay any dividends on its capital
stock or redeem, repurchase or otherwise acquire or retire
any of its capital stock at any time outstanding so long as
at the time of and upon giving effect to each such dividend,
repurchase, acquisition or retirement, (a) the Borrower shall
be in compliance with Section 6.22 and (b) no other Default
------------
or Unmatured Default shall exist.
6.12. Indebtedness. The Borrower will not, nor will it permit any
------------
Subsidiary to, create, incur or suffer to exist any Indebtedness, except:
(i) The Loans.
(ii) Indebtedness existing on the date hereof and described in
Schedule "2" hereto.
(iii) Contingent Obligations permitted by Section 6.16.
------------
(iv) Hedging Obligations entered into in the ordinary course of
business as bona fide xxxxxx against interest rate or
commodity price fluctuations and not for speculative
purposes.
(v) Indebtedness of one or more Subsidiaries to the Borrower, but
only to the extent permitted by clauses (vi) and (ix) of
Section 6.15.
------------
- 28 -
(vi) Additional Indebtedness of the Borrower and its Subsidiaries
in an aggregate principal amount at any one time outstanding
not to exceed the greater of (a) $65,000,000 or (b) ten
percent (10%) of Consolidated Net Worth.
6.13. Merger. The Borrower will not, nor will it permit any
------
Subsidiary to, merge or consolidate with any other Person, except that:
(i) A Subsidiary may merge with the Borrower (so long as the
Borrower is the surviving corporation).
(ii) A Subsidiary may merge with a Wholly-Owned Subsidiary (so
long as a Wholly-Owned Subsidiary is the surviving
corporation).
(iii) The Borrower may merge with any other Person subject to
the terms and conditions of clause (x) of Section 6.15.
------------
6.14. Sale of Assets. The Borrower will not, nor will it permit any
--------------
Subsidiary to, lease, sell or otherwise dispose of its Property, to any other
Person except for (i) sales of inventory in the ordinary course of business,
(ii) the sale, discount, or transfer of delinquent accounts receivable in the
ordinary course of business for purposes of collection only, (iii) occasional
sales, leases or other dispositions of immaterial assets for consideration
not less than fair market value, (iv) sales, leases or other dispositions of
assets that are obsolete or have negligible fair market value; and (v) sales
of equipment for a fair and adequate consideration (but if replacement
equipment is necessary for the proper operation of the business of the
seller, the seller must promptly replace the sold equipment); provided,
--------
however, that the aggregate amount of Property of the Borrower and its
-------
Subsidiaries leased, sold or disposed of pursuant to any of clauses (ii)
through (v) of this Section (excluding any equipment which has been promptly
replaced) during the twelve-month period ending with the month in which any
such lease, sale or other disposition occurs shall not constitute a
Substantial Portion of the Property of the Borrower and its Subsidiaries.
6.15. Investments and Acquisitions; Guaranty or Pledge Documentation
--------------------------------------------------------------
for New Subsidiaries. The Borrower will not, nor will it permit any
--------------------
Subsidiary to, make or suffer to exist any Investments (including without
limitation, loans and advances to, and other Investments in, Subsidiaries),
or commitments therefor, or to create any Subsidiary or to become or remain a
partner in any partnership or joint venture, or to make any Acquisition of
any Person, except:
(i) Short-term obligations (i.e., maturing within one year) of,
or fully guaranteed by, the United States of America.
(ii) Commercial paper rated A-l or better by Standard and Poor's
Ratings Group, a division of McGraw Hill Corporation or P-l
or better by Xxxxx'x Investors Service, Inc.
(iii) Certificates of deposit issued by and time deposits with
commercial banks (whether domestic or foreign) having capital
and surplus in excess of $100,000,000.
(iv) Money-market funds or money-market mutual funds which (a)
seek to maintain a constant net asset value, (b) maintain
fund assets under management having an aggregate market value
of at least $500,000,000 and (c) invest primarily in
Investments referred to in clauses (i) through (iii) above.
- 29 -
(v) Demand deposit accounts maintained in the ordinary course of
business.
(vi) Investments in existence on the date of this Agreement and
described in Schedule "1" hereto.
(vii) Current trade and customer accounts receivable that are for
goods furnished or services rendered in the ordinary course
of business and that are payable on terms customary in the
trade, including the existing floor plan program offered to
distributors of the Borrower's products.
(viii) Investments evidenced by promissory notes executed by
customers of the Borrower and payable to the Borrower in an
aggregate principal amount not to exceed $500,000 at any one
time outstanding.
(ix) Loans, capital contributions and other Investments made
subsequent to the date of this Agreement, whether in existing
Subsidiaries, new Subsidiaries or Persons which are not
Subsidiaries of the Borrower; provided, that (a) the
--------
aggregate amount of such Investments to Persons which are not
Obligor Subsidiaries of Borrower made during the term of this
Agreement does not exceed $20,000,000 and (b) the Borrower
shall have complied with Section 6.10 in respect of each
------------
Subsidiary not identified on Schedule "1" hereto.
(x) Acquisitions of other Persons made by the Borrower subsequent
to the date of this Agreement; provided, that (a) except with
--------
respect to Acquisitions where the aggregate consideration to
be paid by the Borrower is less than $10,000,000, at least 30
days prior to each such proposed Acquisition, the Borrower
shall have supplied the Lenders with historic financial
statements for the Person to be acquired (which financial
statements shall include the four most recently completed
fiscal quarters of such Person, but which need not be
audited) and pro forma financial statements for such Person
and the Borrower on a combined and consolidated basis which
shall demonstrate to the reasonable satisfaction of the
Required Lenders that, if the Acquisition were to be
consummated, the Borrower would be able to maintain
compliance with Sections 6.20, 6.21 and 6.22 through the then
------------- ---- ----
applicable Facility Termination Date; (b) upon giving effect
to each such Acquisition (y) the Person so acquired by the
Borrower shall have either been merged into the Borrower
(with the Borrower as the surviving entity) or such Person
shall have become a Wholly-Owned Subsidiary of the Borrower
(and the Borrower shall have complied with Section 6.10 in
------------
respect of such Subsidiary) and (z) no Default or Unmatured
Default shall exist; (c) prior to the date of such
Acquisition, such Acquisition shall have been approved by the
board of directors and, if applicable, the shareholders of
the Person whose stock or assets are being acquired in
connection with such Acquisition and no claim or challenge
has been asserted or threatened by any shareholder or
director of such Person which could reasonably be expected to
have a material adverse effect on such Acquisition or a
Material Adverse Effect; and (d) as of the date of any such
Acquisition, all approvals required in connection with such
Acquisition shall have been obtained.
- 30 -
(xi) Loans, capital contributions and other Investments among the
Borrower and the Obligor Subsidiaries.
For the purposes of this Section 6.15, Investments and Acquisitions shall be
------------
valued at their initial principal amount, or cost, as the case may be,
without giving effect to any interest or dividends paid thereon or any
appreciation or depreciation in the market value thereof; provided, however,
that Investments consisting of loans and advances shall be valued at the
principal amount thereof then remaining unpaid.
In addition to the foregoing provisions, the Borrower will not, nor
will it permit any consolidated Subsidiary to, create or acquire a Subsidiary
(a "NEW SUBSIDIARY") other than in connection with an Acquisition permitted
hereunder or pursuant to any transaction that is permitted by or not
otherwise prohibited by this Agreement; provided that (1) upon the creation
or acquisition of each New Subsidiary which is not a Foreign Subsidiary, the
Borrower shall cause each such New Subsidiary to promptly (but in any event
within 30 days) deliver to the Agent an executed Subsidiary Guaranty; (2)
upon the creation or acquisition of each New Subsidiary which is a Material
Foreign Subsidiary, the Borrower shall or shall cause its applicable domestic
Subsidiary promptly (but in any event within 60 days following the creation
or acquisition thereof) to execute a Pledge Agreement with respect to the
stock of such material Foreign Subsidiary, provided the Lien created under
such Pledge Agreement shall be extended equally and ratably to the Senior
Noteholders pursuant to a collateral sharing agreement, intercreditor
agreement or collateral trust agreement executed with the Senior Noteholders
or with respect to the Indebtedness evidenced by the Senior Notes on terms
and conditions reasonably acceptable to the Agent; and (3) in either case,
shall deliver appropriate corporate resolutions, opinions and other
documentation in form and substance satisfactory to the Agent in connection
therewith. In addition to the foregoing provisions, if any Foreign Subsidiary
becomes a Material Foreign Subsidiary (whether through investment, add-on
acquisitions, growth or otherwise), the Borrower shall or shall cause its
applicable domestic Subsidiary promptly (but in any event within 60 days
following the end of the fiscal quarter during which such Foreign Subsidiary
becomes a Material Foreign Subsidiary) to execute a Pledge Agreement with
respect to the stock of such material Foreign Subsidiary, provided the Lien
created under such Pledge Agreement shall be extended equally and ratably to
the Senior Noteholders pursuant to a collateral sharing agreement,
intercreditor agreement or collateral trust agreement executed with the
Senior Noteholders or with respect to the Indebtedness evidenced by the
Senior Notes on terms and conditions reasonably acceptable to the Agent; and
shall deliver appropriate corporate resolutions, opinions and other
documentation in form and substance satisfactory to the Agent in connection
therewith; provided, however, that the provisions of this sentence shall not
-------- -------
be applicable to Xxxxxxx Denver Xxxxxx GmbH, provided the Borrower is in
compliance with the provisions of Section 6.24.
------------
6.16. Contingent Obligations and Off Balance Sheet Liabilities. The
--------------------------------------------------------
Borrower will not, nor will it permit any Subsidiary to, make or suffer to
exist any Contingent Obligation (including, without limitation, any
Contingent Obligation with respect to the obligations of a Subsidiary) or Off
Balance Sheet Liabilities, except (i) by endorsement of instruments for
deposit or collection in the ordinary course of business, (ii) the Subsidiary
Guaranties, (iii) litigation indemnities in favor of Xxxxxx existing on the
date of this Agreement, (iv) an additional aggregate amount not to exceed
$10,000,000 at any one time outstanding consisting of Letters of Credit
(excluding all Facility LCs, but including all Existing LCs) issued upon the
application of the
- 31 -
Borrower (but not any Subsidiary); (v) Contingent Obligations of the Borrower
with respect to the obligations of any Subsidiary or other Person in which
the Borrower has a direct or indirect Investment, provided that the aggregate
amount of all such Contingent Obligations, when added to the aggregate amount
of all outstanding Investments permitted by clause (ix) of Section 6.15,
------------
shall not at any time exceed $20,000,000; (vi) Contingent Obligations of any
Obligor Subsidiary which is a party to a Subsidiary Guaranty consisting of a
guaranty by such Obligor Subsidiary of the Indebtedness evidenced by the
Senior Notes; provided, (y) such guaranty to the Senior Noteholders shall be
on substantially the same terms as the applicable Subsidiary Guaranty, with
such changes thereto as shall not in any manner be adverse to the interests
of the Agent or the Lenders, and (z) such guaranty of the Senior Notes shall
provide for its automatic release upon the release of the applicable Obligor
Subsidiary of the Subsidiary Guaranty; and (viii) Off Balance Sheet
Liabilities which are included in the definition of Consolidated Debt
provided the Borrower is in compliance with the financial covenants of this
Agreement.
6.17. Liens. The Borrower will not, nor will it permit any
-----
Subsidiary to, create, incur, or suffer to exist any Lien in, of or on the
Property of the Borrower or any of its Subsidiaries, except:
(i) Liens for taxes, assessments or governmental charges or
levies on its Property if the same shall not at the time be
delinquent or thereafter can be paid without penalty, or are
being contested in good faith and by appropriate proceedings
and for which adequate reserves in accordance with generally
accepted principles of accounting shall have been set aside
on its books.
(ii) Liens imposed by law, such as carriers', warehousemen's and
mechanics' liens and other similar liens arising in the
ordinary course of business which secure payment of
obligations not more than 60 days past due or which are being
contested in good faith by appropriate proceedings and for
which adequate reserves shall have been set aside on its
books.
(iii) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions,
or other social security or retirement benefits, or similar
legislation.
(iv) Utility easements, building restrictions and such other
encumbrances or charges against real property as are of a
nature generally existing with respect to properties of a
similar character and which do not in any material way
affect the marketability of the same or interfere with the
use thereof in the business of the Borrower or the
Subsidiaries.
(v) Good faith deposits incurred in the ordinary course of
business to secure public or statutory obligations, to secure
or in lieu of surety bonds, or in connection with bids or
contracts (including, without limitation, the purchase or
lease of real estate).
(vi) Liens securing judgments or orders for the payment of money,
or surety or appeal bonds with respect to any such judgment
or order, in an aggregate amount not exceeding $1,000,000,
so long as no Default exists with respect thereto under
Section 7.9.
-----------
- 32 -
(vii) The interest of a lessor under any conditional sale or
Capitalized Lease to the Borrower so long as the related
Indebtedness is permitted by Section 6.12.
------------
(viii) Any Lien on any asset securing Indebtedness permitted by
Section 6.12 which is incurred or assumed for the purpose
------------
of financing all or any part of the cost of acquiring such
asset, provided that such Lien attaches to such asset
concurrently with or within 90 days after the acquisition
thereof.
(ix) Any Lien existing on any asset of any Person at the time
such Person becomes a Subsidiary or is merged or
consolidated with or into the Borrower or a Subsidiary,
provided that the Indebtedness secured by each such Lien is
permitted by Section 6.12.
------------
(x) Liens existing on the date hereof and described in Schedule
"2" hereto which secure Indebtedness in existence on the
date of this Agreement.
(xi) Liens arising out of any renewal, extension or refinancing
of any Indebtedness secured by any Lien permitted by any of
clauses (vii), (viii), (ix) or (x) above, so long as the
principal amount of such Indebtedness in not increased
thereby and such Indebtedness is not secured by any
additional Property.
(xii) Liens in favor of the United States of America or any state
thereof, or any department, agency or instrumentality or
political subdivision thereof, in favor of any other
country or political subdivision, to secure partial,
progress, advance or other payments pursuant to any
contract or statute or to secure any Indebtedness permitted
by Section 6.12 and incurred or guaranteed for the purpose
------------
of financing or refinancing all or any part of the purchase
price of Property subject to such Liens, or the cost of
constructing or improving the Property subject to such
Liens, including, without limitation, Liens incurred in
connection with pollution control, industrial revenue or
similar tax-advantaged financings; provided the aggregate
amount of Indebtedness secured under this clause (xii)
shall not exceed $20,000,000.
(xiii) Liens in favor of the Agent granted pursuant to any
Collateral Document.
(xiv) Liens on any collateral covered by any of the Collateral
Documents, which Liens have been extended for the equal and
ratable benefit of the Senior Noteholders to secure the
Indebtedness of the Borrower under the Note Purchase
Agreement and the Senior Notes and which Liens are governed
by a collateral sharing agreement, intercreditor agreement
or collateral trust agreement executed with the Senior
Noteholders or with respect to the Indebtedness evidenced
by the Senior Notes on terms and conditions reasonably
acceptable to the Agent and which Liens, pursuant to the
terms of the Note Purchase Agreement, shall be
automatically released without any action on the part of
any Noteholder, if the Lien thereon under the Collateral
Documents in favor of the Agent for the benefit of itself
and the Lenders shall be released.
- 33 -
6.18. Rentals. The Borrower will not, nor will it permit any
-------
Subsidiary to, create, incur or suffer to exist obligations for Rentals in
excess of $6,000,000 during any one fiscal year on a non-cumulative basis
in the aggregate for the Borrower and its Subsidiaries.
6.19. Affiliates. The Borrower will not, and will not permit any
----------
Subsidiary to, enter into any transaction (including, without limitation,
the purchase or sale of any Property or service) with, or make any payment
or transfer to, any Affiliate except in the ordinary course of business and
pursuant to the reasonable requirements of the Borrower's or such
Subsidiary's business and upon fair and reasonable terms no less favorable
to the Borrower or such Subsidiary than the Borrower or such Subsidiary
would obtain in a comparable arms-length transaction.
6.20. Minimum Consolidated Interest Coverage Ratio. The Borrower
--------------------------------------------
will not, as of the last day of any fiscal quarter of the Borrower,
commencing with the fiscal quarter ending June 30, 2001, permit the
Consolidated Interest Coverage Ratio for the period of four fiscal quarters
ending on such day, to be less than 3.0 to 1.0.
6.21. Maximum Consolidated Debt to Cash Flow Ratio. The Borrower
--------------------------------------------
will not, as of the last day of any fiscal quarter of the Borrower,
commencing with the fiscal quarter ending June 30, 2001, permit the
Consolidated Debt to Cash Flow Ratio for the period of four consecutive
fiscal quarters ending on such day, to be greater than 3.50 to 1.0.
6.22. Minimum Consolidated Net Worth. The Borrower will not at any
------------------------------
time subsequent to the initial Credit Extension hereunder permit
Consolidated Net Worth to be less than the sum of (i) $147,274,000 plus
(ii) 50% of Consolidated Net Income (if positive) for each fiscal quarter
of the Borrower commencing with the fiscal quarter ending September 30,
2001 and concluding with the fiscal quarter ending most recently prior to
the date of determination, but without deduction for any fiscal quarter in
which there is a loss plus (iii) 50% of any addition to Consolidated Net
Worth resulting from sales by the Borrower or any of its Subsidiaries of
any of its capital stock (other than sales to employees pursuant to
employee incentive plans).
6.23. Capital Expenditures. The Borrower will not, nor will it
--------------------
permit any Subsidiary to, expend, or be committed to expend, during any
period of twelve consecutive months on a non-cumulative basis an amount for
Capital Expenditures in the aggregate for the Borrower and its Subsidiaries
which exceeds five percent (5%) of consolidated revenues for such twelve-
month period, calculated in each case as of the end of each fiscal-quarter
for the twelve months then ended.
6.24. Pledge Agreements. The Borrower shall not at any time permit
-----------------
the aggregate assets of all of the Borrower's Foreign Subsidiaries in
connection with which the Agent has not received a Pledge Agreement (other
than Oy Tamrotor Ab or any other foreign subsidiary of the Borrower into
which Oy Tamrotor Ab is merged or liquidated) to exceed twelve percent
(12%) of consolidated total assets.
ARTICLE VII: DEFAULTS
The occurrence of any one or more of the following events shall
constitute a Default:
7.1. Any representation or warranty made (or deemed made pursuant to
either Section 4.2 of this Agreement or Section 2 of any Subsidiary Guaranty)
-----------
by the Borrower or any Subsidiary to the Lenders or the Agent under or in
connection with this Agreement, any Credit Extension, any Subsidiary
Guaranty, or any certificate or information delivered in connection with this
Agreement or any other Credit Document shall be materially false on the date
as of which made.
7.2. Nonpayment of any Reimbursement Obligation or the principal of
any Note when due; or nonpayment of interest upon any Note or of any fee
payable pursuant to Section 2.5 within five days after the same becomes due;
-----------
or nonpayment of any other obligations under any
- 34 -
of the Credit Documents within five days after receipt by the Borrower of a
written demand therefor from the Agent or any Lender, as applicable.
7.3. The breach by the Borrower of any of the terms or provisions of
Section 6.2, 6.3 or any of Sections 6.10 through 6.19.
----------- --- ------------- ----
7.4. The breach by the Borrower (other than a breach which
constitutes a Default under Section 7.1, 7.2 or 7.3) of any of the terms or
----------- --- ---
provisions of this Agreement, and such breach continues for 30 days after the
first to occur of (i) the date the Borrower first knows of such breach or
(ii) the date the Borrower receives written notice from any Lender (acting
through the Agent) of such breach.
7.5. Failure of the Borrower or any of its Subsidiaries to pay any
Material Indebtedness when due; or either (i) the Borrower or any of its
Subsidiaries shall default in the performance of any term, provision or
condition contained in any agreement or agreements under which any Material
Indebtedness was created or is governed (and any applicable grace period(s)
expressly set forth therein shall have expired) or (ii) any other event shall
occur or condition exist, the effect of which (under either clause (i) or
(ii), as the case may be) is to cause, or to permit the holder or holders of
such Material Indebtedness to cause, such Material Indebtedness to become due
prior to its stated maturity; or any Material Indebtedness of the Borrower or
any of its Subsidiaries shall be declared to be due and payable or required
to be prepaid (other than by a regularly scheduled payment) prior to the
stated maturity thereof; or the Borrower or any of its Subsidiaries shall not
pay, or shall admit in writing its inability to pay, its debts generally as
they become due.
7.6. The Borrower or any of its Subsidiaries shall (i) have an order
for relief entered with respect to it under the Federal bankruptcy laws as
now or hereafter in effect, (ii) make an assignment for the benefit of
creditors, (iii) apply for, seek, consent to, or acquiesce in, the
appointment of a receiver, custodian, trustee, examiner, liquidator or
similar official for it or any Substantial Portion of its Property, (iv)
institute any proceeding seeking an order for relief with respect to it under
the Federal bankruptcy laws as now or hereafter in effect or seeking to
adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up,
liquidation, reorganization, arrangement, adjustment or composition of it or
its debts under any law relating to bankruptcy, insolvency or reorganization
or relief of debtors or fail to file an answer or other pleading denying the
material allegations of any such proceeding filed against it, (v) take any
corporate action to authorize or effect any of the foregoing actions set
forth in this Section 7.6 or (vi) fail to contest in good faith any
-----------
appointment or proceeding described in Section 7.7.
-----------
7.7. Without the application, approval or consent of the Borrower or
any of its Subsidiaries, a receiver, trustee, examiner, liquidator or similar
official shall be appointed for the Borrower or any of its Subsidiaries or
any Substantial Portion of its Property; or a proceeding described in Section
-------
7.6(iv) shall be instituted against the Borrower or any of its Subsidiaries
-------
and such appointment continues undischarged or such proceeding continues
undismissed or unstayed for a period of 60 consecutive days.
- 35 -
7.8. Any court, government or governmental agency shall condemn,
seize or otherwise appropriate, or take custody or control (each a
"Condemnation"), of all or any portion of the Property of the Borrower or any
of its Subsidiaries, which, when taken together with all other Property of
the Borrower and its Subsidiaries, or any of them, so Condemned during the
twelve-month period ending with the month in which any such Condemnation
occurs, constitutes a Substantial Portion of the consolidated Property of the
Borrower and its Subsidiaries.
7.9. The Borrower or any of its Subsidiaries shall fail within 30
days to pay, bond or otherwise discharge any one or more judgments or orders
for the payment of money in excess of $1,000,000 (other than any judgment for
which a financially sound and reputable insurer has admitted in writing
liability) in the aggregate, which are not stayed on appeal or otherwise
being appropriately contested in good faith with adequate reserves set aside
on its books in accordance with generally accepted accounting principles.
7.10. The Unfunded Liabilities of all Single Employer Plans shall
exceed in the aggregate $500,000; or any Reportable Event shall occur in
connection with any Plan; or the Borrower or any of its Subsidiaries or any
other member of the Controlled Group shall become party to any Multiemployer
Plan.
7.11. Except for matters identified on Schedule "3" hereto, the
Borrower or any of its Subsidiaries shall be the subject of any proceeding or
investigation pertaining to the release by the Borrower or any of its
Subsidiaries or any other Person of any toxic or hazardous waste or substance
into the environment, or any violation of any federal, state or local
environmental, health or safety law or regulation, which, in either case,
could reasonably be expected to have a Material Adverse Effect.
7.12. Any Change in Control shall occur.
7.13. Other than in connection with any transactions which shall be
permitted by the terms hereof or of any other Credit Document or which shall
otherwise have been approved in writing by Required Lenders (or, if required
by the terms of Section 8.3 all of the Lenders), the Borrower shall cease to
-----------
own at least 80% of the capital stock of each Obligor Subsidiary.
7.14. Any Subsidiary Guaranty shall fail to remain in full force or
effect; or any action shall be taken to discontinue or to assert the
invalidity or unenforceability of any Subsidiary Guaranty; or any Subsidiary
shall fail to comply with any of the terms or provisions of any Subsidiary
Guaranty to which it is a party; or any Subsidiary denies that it has any
further liability under any Subsidiary Guaranty to which it is a party, or
gives notice to such effect.
7.15. Any of the following shall occur: (i) any Collateral Document
shall for any reason fail to create a valid and perfected first priority
security interest in any collateral purported to be covered thereby, except
as permitted by the terms of any Collateral Document, (ii) any Collateral
Document shall fail to remain in full force or effect, (iii) any action shall
be taken to discontinue or to assert the invalidity or unenforceability of
any Collateral Document, or (iv) the Borrower shall fail to comply with any
of the terms or provisions of any Collateral Document.
- 36 -
ARTICLE VIII: ACCELERATION, DEFAULTING LENDERS, WAIVERS, AMENDMENTS
AND REMEDIES
8.1. Remedies.
--------
(a) If any Default described in Section 7.6 or 7.7 occurs with
----------- ---
respect to the Borrower, the Commitments of the Lenders hereunder shall
automatically terminate and the Obligations shall immediately become due and
payable without any election or action on the part of the Agent or any
Lender. If any other Default occurs and is continuing, the Required Lenders
may terminate or suspend the Commitments of the Lenders, or declare the
Obligations to be due and payable, or both, whereupon the Obligations shall
become immediately due and payable, without presentment, demand, protest or
notice of any kind, all of which the Borrower hereby expressly waives. Agent
shall notify Borrower of any action taken by the Required Lenders pursuant to
the preceding sentence.
(b) If, within 30 days after acceleration of the maturity of the
Obligations or termination of the Commitments of the Lenders hereunder as a
result of any Default (other than any Default as described in Section 7.6 or
-----------
7.7 with respect to the Borrower) and before any judgment or decree for the
---
payment of the Obligations due shall have been obtained or entered, the
Required Lenders (in their sole discretion) shall so direct, the Agent shall,
by notice to the Borrower, rescind and annul such acceleration and/or
termination.
8.2. Preservation of Rights. No delay or omission of the Lenders or
----------------------
the Agent to exercise any right under the Credit Documents shall impair such
right or be construed to be a waiver of any Default or Unmatured Default or
an acquiescence therein, and the making of a Loan or issuance of a Letter of
Credit notwithstanding the existence of a Default or Unmatured Default or the
inability of the Borrower to satisfy the conditions precedent to such Loan
shall not constitute any waiver or acquiescence. Any single or partial
exercise of any such right shall not preclude other or further exercise
thereof or the exercise of any other right, and no waiver, amendment or other
variation of the terms, conditions or provisions of the Credit Documents
whatsoever shall be valid unless in writing signed by the Lenders required
pursuant to Section 8.3, and then only to the extent in such writing
-----------
specifically set forth. All remedies contained in the Credit Documents or by
law afforded shall be cumulative and all shall be available to the Agent and
the Lenders until the Obligations have been paid in full.
8.3. Amendments. Subject to the provisions of this Article VIII, the
----------
Required Lenders (or the Agent with the consent in writing of the Required
Lenders) and the Borrower may enter into agreements supplemental hereto for
the purpose of adding or modifying any provisions to the Credit Documents or
changing in any manner the rights of the Lenders or the Borrower hereunder or
thereunder or waiving any Default hereunder; provided, that no such
--------
supplemental agreement shall, without the consent of each Lender:
(a) Increase or decrease the amount of, the Commitment of any
Lender (except for a ratable decrease in the Commitments of
all Lenders) or otherwise subject any Lender to any
additional obligation; or
(b) Reduce the principal of or rate of interest on any Loan, any
Reimbursement Obligation or any fees hereunder; or
(c) Postpone the date fixed for any payment of principal of or
interest on any Loan, any Reimbursement Obligation or any
fees hereunder; or
- 37 -
(d) Extend the Facility Termination Date, or otherwise extend
the term of the Commitment of any Lender; or
(e) Change the definition of Required Lenders or the percentage
of the Commitments, the Outstanding Credit Exposures or of
the aggregate unpaid principal amount of the Notes, or the
number of Lenders, which shall be required for the Lenders or
any of them to take any action under this Section 8.3 or any
-----------
other provision of the Credit Documents; or
(f) Permit the Borrower to assign any of its rights or
obligations under this Agreement; or
(g) Other than in connection with any transactions which shall
be permitted by the terms hereof or of any other Credit
Document or which shall otherwise have been approved in
writing by Required Lenders (or, if required by the other
terms of this Section 8.3 all of the Lenders), release any
-----------
Subsidiary from all or any portion of its guaranty liability
under its respective Subsidiary Guaranty; or
(h) Other than in connection with any transactions which shall be
permitted by the terms hereof or of any other Credit Document
or which shall otherwise have been approved in writing by
Required Lenders (or, if required by the other terms of this
Section 8.3, all of the Lenders), release any of the
-----------
collateral pledged pursuant to the Pledge Agreements;
(i) Waive the requirements of Section 4.1(i) or 4.1(j); or
-------------- ------
(j) Amend or waive any of the provisions of this Section 8.3.
-----------
No amendment of any provision of this Agreement relating to the
Agent shall be effective without the written consent of the Agent, as the
case may be. The Agent may waive payment of the fee required under Section
-------
12.3.2 without obtaining the consent of any other party to this Agreement.
------
- 38 -
ARTICLE IX: GENERAL PROVISIONS
9.1. Survival of Representations. All representations and warranties
---------------------------
of the Borrower contained in this Agreement shall survive delivery of the
Notes and the making of the Loans herein contemplated.
9.2. Governmental Regulation. Anything contained in this Agreement
-----------------------
to the contrary notwithstanding, no Lender shall be obligated to extend
credit to the Borrower in violation of any limitation or prohibition provided
by any applicable statute or regulation.
9.3. Taxes. Any taxes (excluding federal income taxes on the overall
-----
net income of any Lender and except as otherwise provided in Section 2.18) or
------------
other similar assessments or charges made by any governmental or revenue
authority in respect of the Credit Documents shall be paid by the Borrower,
together with interest and penalties, if any. As of the date of this
Agreement, neither the Borrower nor any Lender is aware of any such taxes,
assessments or charges.
9.4. Headings. Section headings in the Credit Documents are for
--------
convenience of reference only, and shall not govern the interpretation of any
of the provisions of the Credit Documents.
9.5. Entire Agreement. The Credit Documents embody the entire
----------------
agreement and understanding among the Borrower, the Agent and the Lenders and
supersede all prior agreements and understandings among the Borrower, the
Agent and the Lenders relating to the subject matter thereof.
9.6. Several Obligations; Benefits of this Agreement. The respective
-----------------------------------------------
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other (except to the extent to which the
Agent is authorized to act as such). The failure of any Lender to perform any
of its obligations hereunder shall not relieve any other Lender from any of
its obligations hereunder. This Agreement shall not be construed so as to
confer any right or benefit upon any Person other than the parties to this
Agreement and their respective successors and assigns.
9.7. Expenses; Indemnification. The Borrower shall reimburse the
-------------------------
Agent for any costs, internal charges and out-of-pocket expenses (including
reasonable attorneys' fees and time charges of attorneys for the Agent, which
attorneys may be employees of the Agent) paid or incurred by the Agent in
connection with the preparation, negotiation, execution, delivery,
syndication, amendment, modification and administration of the Credit
Documents. The Borrower also agrees to reimburse the Agent and the Lenders
for any costs, internal charges and out-of-pocket expenses (including
reasonable attorneys' fees and time charges of attorneys for the Agent and
the Lenders, which attorneys may be employees of the Agent or the Lenders)
paid or incurred by the Agent or any Lender in connection with the collection
and enforcement of the Credit Documents. The Borrower further agrees to
indemnify the Agent and each Lender, its directors, officers and employees
against all losses, claims, damages, penalties, judgments, liabilities and
expenses (including, without limitation, all expenses of litigation or
preparation therefor whether or not the Agent or any Lender is a party
thereto) (collectively "Losses") which any of them may pay or incur arising
out of or relating to this Agreement, the other Credit Documents, the
transactions contemplated hereby or the direct or indirect application or
proposed application of the proceeds of any Credit Extension hereunder. The
obligations of the Borrower under this Section shall survive the termination
of this Agreement; provided however that Borrower shall not be obligated to
indemnify any Lender or Agent with respect to Losses which arise solely from
such Lender's or Agent's gross negligence or willful misconduct.
Notwithstanding anything to the contrary herein, the Borrower shall not be
liable to reimburse the Agent or any of the Lenders in respect of disputes
which arise or Losses which are incurred by the Agent or any of the Lenders
which arise solely as a result of an action or failure to act on the part of
the Agent or a Lender and which do not relate in any way to actions or
failures to act on the part of the Borrower or any of its Subsidiaries.
9.8. Numbers of Documents. All statements, notices, closing
--------------------
documents, and requests hereunder shall be furnished to the Agent with
sufficient counterparts so that the Agent may furnish one to each of the
Lenders.
- 39 -
9.9. Accounting. Except as provided to the contrary herein, all
----------
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement
Accounting Principles.
9.10. Severability of Provisions. Any provision in any Credit
--------------------------
Document that is held to be inoperative, unenforceable, or invalid in any
jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable,
or invalid without affecting the remaining provisions in that jurisdiction or
the operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Credit Documents are
declared to be severable.
9.11. Nonliability of Lenders. The relationship between the Borrower
-----------------------
on the one hand and the Lenders and the Agent on the other hand shall be
solely that of borrower and lender. Neither the Agent nor any Lender shall
have any fiduciary responsibilities to the Borrower or vice versa. Neither
the Agent nor any Lender undertakes any responsibility to the Borrower to
review or inform the Borrower of any matter in connection with any phase of
the Borrower's business or operations.
9.12. CHOICE OF LAW. THE CREDIT DOCUMENTS (OTHER THAN THOSE
-------------
CONTAINING A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE
OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
9.13. CONSENT TO JURISDICTION. THE BORROWER, THE AGENT AND EACH
-----------------------
LENDER EACH HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF
ANY UNITED STATES FEDERAL OR ILLINOIS STATE COURT SITTING IN CHICAGO IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY CREDIT DOCUMENTS AND
EACH SUCH PARTY HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND
IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE
OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH
COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE
AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE BORROWER IN THE COURTS
OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY THE BORROWER AGAINST
THE AGENT OR ANY LENDER OR ANY AFFILIATE OF THE AGENT OR ANY LENDER
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF,
RELATED TO, OR CONNECTED WITH ANY CREDIT DOCUMENT SHALL BE BROUGHT ONLY IN A
COURT IN CHICAGO, ILLINOIS.
9.14. WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT AND EACH LENDER
--------------------
HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN
ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY CREDIT DOCUMENT OR
THE RELATIONSHIP ESTABLISHED THEREUNDER.
9.15. Confidentiality. Each Lender agrees to hold any confidential
---------------
information which it may receive from the Borrower pursuant to this Agreement
in confidence, except for disclosure (i) to other Lenders and their
respective Affiliates, (ii) to legal counsel, accountants, and other
professional advisors to that Lender or to a Transferee, (iii) to regulatory
officials exercising regulatory functions over or with respect to any Lender,
(iv) to any Person as required by law, regulation, or legal process, (v) to
any Person in connection with any legal proceeding to which that Lender is a
party, and (vi) permitted by Section 12.4.
------------
ARTICLE X: THE AGENT
10.1. Appointment. Bank One is hereby appointed Agent hereunder and
-----------
under each other Credit Document, and each of the Lenders irrevocably
authorizes the Agent to act as the contractual representative
- 40 -
of such Lender with the rights and duties as expressly set forth herein. The
Agent agrees to act as such upon the express conditions contained in this
Article X. The Agent shall not have a fiduciary relationship in respect of
the Borrower or any Lender by reason of this Agreement.
10.2. Powers. The Agent shall have and may exercise such powers
------
under the Credit Documents as are specifically delegated to the Agent by the
terms of each thereof, together with such powers as are reasonably incidental
thereto. The Agent shall have no implied duties to the Lenders, or any
obligation to the Lenders to take any action thereunder except any action
specifically provided by the Credit Documents to be taken by the Agent.
10.3. General Immunity. Neither the Agent nor any of its directors,
----------------
officers, agents or employees shall be liable to the Borrower, the Lenders or
any Lender for any action taken or omitted to be taken by it or them
hereunder or under any other Credit Document or in connection herewith or
therewith except for its or their own gross negligence or willful misconduct.
10.4. No Responsibility for Loans, Recitals, etc. Neither the Agent
------------------------------------------
nor any of its directors, officers, agents or employees shall be responsible
for or have any duty to ascertain, inquire into, or verify (i) any statement,
warranty or representation made in connection with any Credit Document or any
borrowing hereunder; (ii) the performance or observance of any of the
covenants or agreements of any obligor under any Credit Document, including,
without limitation, any agreement by the Borrower to furnish information
directly to each Lender; (iii) the satisfaction of any condition specified in
Article IV, except receipt of items required to be delivered to the Agent;
(iv) the value, sufficiency, creation, perfection or priority of any Lien in
any collateral security; or (v) the validity, effectiveness or genuineness of
any Credit Document or any other instrument or writing furnished in
connection therewith. The Agent shall have no duty to disclose to the Lenders
information that is not required to be furnished by the Borrower to the Agent
at such time, but is voluntarily furnished by the Borrower to the Agent
(either in its capacity as Agent or in its individual capacity).
10.5. Action on Instructions of Lenders. The Agent shall in all
---------------------------------
cases be fully protected in acting, or in refraining from acting, hereunder
and under any other Credit Document in accordance with written instructions
signed by the Required Lenders (except to the extent Section 8.3 requires the
-----------
unanimous consent of all Lenders), and such instructions and any action taken
or failure to act pursuant thereto shall be binding on all of the Lenders and
on all holders of Notes. The Agent shall be fully justified in failing or
refusing to take any action hereunder and under any other Credit Document
unless it shall first be indemnified to its satisfaction by the Lenders pro
rata against any and all liability, cost and expense that it may incur by
reason of taking or continuing to take any such action.
10.6. Employment of Agents and Counsel. The Agent may execute any of
--------------------------------
its duties as Agent hereunder and under any other Credit Document by or
through employees, agents, and attorneys-in-fact and shall not be answerable
to the Lenders, except as to money or securities received by it or its
authorized agents, for the default or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care. The Agent shall be
entitled to advice of counsel concerning all matters pertaining to the agency
hereby created and its duties hereunder and under any other Credit Document.
10.7. Reliance on Documents; Counsel. The Agent shall be entitled to
------------------------------
rely upon any Note, notice, consent, certificate, affidavit, letter,
telegram, statement, paper or document believed by it to be genuine and
correct and to have been signed or sent by the proper person or persons, and,
in respect to legal matters, upon the opinion of counsel selected by the
Agent, which counsel may be employees of the Agent.
10.8. Agent's Reimbursement and Indemnification. The Lenders agree
-----------------------------------------
to reimburse and indemnify the Agent ratably in proportion to their
respective Commitments or, if the Commitments have terminated, their
Outstanding Credit Exposure (i) for any amounts not reimbursed by the
Borrower for which the Agent is entitled to reimbursement by the Borrower
pursuant to Section 9.7, (ii) for any other expenses incurred by the Agent on
-----------
behalf of the Lenders, in connection with the collection and enforcement of
the Credit Documents and (iii) for any liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs,
- 41 -
expenses or disbursements of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against the Agent in any way relating to
or arising out of the Credit Documents or any other document delivered in
connection therewith or the transactions contemplated thereby, or the
enforcement of any of the terms thereof or of any such other documents,
provided that no Lender shall be liable for any of the foregoing to the
extent any of the foregoing arise from the gross negligence or willful
misconduct of the Agent. The obligations of the Lenders under this Section
-------
10.8 shall survive payment of the Obligations and termination of this
----
Agreement.
10.9. Rights as a Lender. In the event the Agent is a Lender, the
------------------
Agent shall have the same rights and powers hereunder and under any other
Credit Document as any Lender and may exercise the same as though it were not
the Agent, and the term "Lender" or "Lenders" shall, at any time when the
Agent is a Lender, unless the context otherwise indicates, include the Agent
in its individual capacity. The Agent may accept deposits from, lend money
to, and generally engage in any kind of trust, debt, equity or other
transaction, in addition to those contemplated by this Agreement or any other
Credit Document, with the Borrower or any of its Subsidiaries in which the
Borrower or such Subsidiary is not restricted hereby from engaging with any
other Person. The Agent, in its individual capacity, is not obligated to
remain a Lender.
10.10. Lender Credit Decision. Each Lender acknowledges that it has,
----------------------
independently and without reliance upon the Agent or any other Lender and
based on the financial statements prepared by the Borrower and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and the other Credit
Documents. Each Lender also acknowledges that it will, independently and
without reliance upon the Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue
to make its own credit decisions in taking or not taking action under this
Agreement and the other Credit Documents.
10.11. Successor Agent. The Agent may resign at any time by giving
---------------
written notice thereof to the Lenders and the Borrower, such resignation to
be effective upon the appointment of a successor Agent or, if no successor
Agent has been appointed, forty-five days after the retiring Agent gives
notice of its intention to resign. The Agent may be removed at any time with
or without cause by written notice received by the Agent from the Required
Lenders, such removal to be effective on the date specified by the Required
Lenders. Upon any such resignation or removal, the Required Lenders shall
have the right to appoint a successor Agent on behalf of the Lenders and the
Borrower with its consent (provided such consent may not be unreasonably
withheld or delayed and provided further no such consent shall be required if
a Default shall have occurred and be continuing). If no successor Agent shall
have been so appointed by the Required Lenders or consented to by the
Borrower (if such consent is required) within thirty days after the resigning
Agent's giving notice of its intention to resign, then the resigning Agent
may appoint, on behalf of the Borrower and the Lenders, a successor Agent. If
the Agent has resigned or been removed and no successor Agent has been
appointed, the Lenders may perform all the duties of the Agent hereunder and
the Borrower shall make all payments in respect of the Obligations to the
applicable Lender and for all other purposes shall deal directly with the
Lenders. No successor Agent shall be deemed to be appointed hereunder until
such successor Agent has accepted the appointment. Any such successor Agent
shall be a commercial bank having capital and retained earnings of at least
$100,000,000. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the resigning or
removed Agent. Upon the effectiveness of the resignation or removal of the
Agent, the resigning or removed Agent shall be discharged from its duties and
obligations hereunder and under the Credit Documents. After the effectiveness
of the resignation or removal of an Agent, the provisions of this Article X
shall continue in effect for the benefit of such Agent in respect of any
actions taken or omitted to be taken by it while it was acting as the Agent
hereunder and under the other Credit Documents.
10.12. Agent's Fees. The Borrower agrees to pay to the Agent, for
------------
its own account, the fees agreed to by the Borrower pursuant to that certain
term sheet dated August 17, 2001, or as otherwise agreed from time to time.
- 42 -
10.13. Execution of Guaranty Collateral Documents. The Lenders hereby
------------------------------------------
empower and authorize the Agent to execute and deliver to the Borrower on
their behalf the Subsidiary Guaranties, Pledge Agreement(s) and all related
agreements, documents or instruments as shall be necessary of appropriate to
effect the purposes of the Subsidiary Guaranties and Pledge Agreements(s).
10.14. Collateral and Guaranty Releases. The Lenders hereby empower
--------------------------------
and authorize the Agent to execute and deliver to the Borrower on their
behalf any agreements, documents or instruments as shall be necessary or
appropriate to effect any releases of any entities' liability with respect to
any Subsidiary Guaranty or release of any collateral pledged pursuant to any
Pledge Agreement in connection with any transactions which shall be permitted
by the terms hereof or of any other Credit Document or which shall otherwise
have been approved in writing by the Required Lenders (or, if required by the
terms of Section 8.3, all of the Lenders).
-----------
ARTICLE XI: SETOFF; RATABLE PAYMENTS
11.1. Setoff. In addition to, and without limitation of, any rights
------
of the Lenders under applicable law, if any Default or Unmatured Default
occurs, any and all deposits (including all account balances, whether
provisional or final and whether or not collected or available) and any other
Indebtedness at any time held or owing by any Lender to or for the credit or
account of the Borrower may be offset and applied toward the payment of the
Obligations owing to such Lender, whether or not the Obligations, or any part
hereof, shall then be due.
11.2. Ratable Payments. If any Lender, whether by setoff or
----------------
otherwise, has payment made to it upon its Outstanding Credit Exposure (other
than payments received pursuant to Sections 3.1, 3.2 or 3.4) in a greater
------------ --- ---
proportion than that received by any other Lender, such Lender agrees,
promptly upon demand, to purchase a portion of the Aggregate Outstanding
Credit Exposure held by the other Lenders so that after such purchase each
Lender will hold its Percentage of the Aggregate Outstanding Credit Exposure.
If any Lender, whether in connection with setoff or amounts which might be
subject to setoff or otherwise, receives collateral or other protection for
its Obligations or such amounts which may be subject to setoff, such Lender
agrees, promptly upon demand, to take such action necessary such that all
Lenders share in the benefits of such collateral ratably in proportion to
respective Percentages of the Aggregate Outstanding Credit Exposure. In case
any such payment is disturbed by legal process, or otherwise, appropriate
further adjustments shall be made.
11.3. Relations Among Lenders. The Lenders are not partners or co-
-----------------------
venturers, and no Lender shall be liable for the acts or omissions of or
(except as otherwise set forth herein with respect to the Agent) authorized
to act for or on behalf of any other Lender.
ARTICLE XII: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATION
12.1. Successors and Assigns. The terms and provisions of the
----------------------
Borrower Credit Documents shall be binding upon and inure to the benefit of
the Borrower and the Lenders and their respective successors and assigns,
except that (i) the Borrower shall not have the right to assign its rights or
obligations under the Borrower Credit Documents and (ii) any assignment by
any Lender must be made in compliance with Section 12.3. Notwithstanding
------------
clause (ii) of this Section, any Lender may at any time, without the consent
of the Borrower or the Agent, assign all or any portion of its rights under
the Credit Documents to a Federal Reserve Bank; provided, however, that no
such assignment shall release the transferor Lender from its obligations
hereunder. The Agent may treat the payee of any Note as the owner thereof for
all purposes hereof unless and until such payee complies with Section 12.3 in
------------
the case of an assignment thereof or, in the case of any other transfer, a
written notice of the transfer is filed with the Agent. Any assignee or
transferee of a Note agrees by acceptance thereof to be bound by all the
terms and provisions of the Credit Documents. Any request, authority or
consent of any Person, who at the time of making such request or giving such
authority or consent is the holder of any Note, shall be conclusive and
binding on any subsequent holder, transferee or assignee of such Note or of
any Note or Notes issued in exchange therefor.
- 43 -
12.2. Participation.
-------------
12.2.1. Permitted Participants; Effect. Any Lender may, in the
------------------------------
ordinary course of its business and in accordance with applicable law, at any
time sell to one or more banks or other entities ("Participants")
participating interests in any Outstanding Credit Exposure owing to such
Lender, any Note held by such Lender, any Commitment of such Lender or any
other interest of such Lender under the Credit Documents. In the event of any
such sale by a Lender of participating interests to a Participant, such
Lender's obligations under the Credit Documents shall remain unchanged, such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, such Lender shall remain the holder of any
such Note for all purposes under the Credit Documents, all amounts payable by
the Borrower under this Agreement shall be determined as if such Lender had
not sold such participating interests, and the Borrower and the Agent shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under the Credit Documents.
12.2.2. Voting Rights. Each Lender shall retain the sole
-------------
right to approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of the Credit Documents, other than
any such amendment, modification or waiver which requires the unanimous
consent of the Lenders under Section 8.3.
-----------
12.2.3. Benefit of Setoff. The Borrower agrees that each
-----------------
Participant shall be deemed to have the right of setoff provided in Section
-------
11.1 in respect of its participating interest in amounts owing under the
----
Credit Documents to the same extent as if the amount of its participating
interest were owing directly to it as a Lender under the Credit Documents,
provided that each Lender shall retain the right of setoff provided in
Section 11.1 with respect to the amount of participating interests sold to
------------
each Participant. The Lenders agree to share with each Participant, and each
Participant, by exercising the right of setoff provided in Section 11.1,
------------
agrees to share with each Lender, any amount received pursuant to the
exercise of its right of setoff, such amounts to be shared in accordance with
Section 11.2 as if each Participant were a Lender.
------------
12.3. Assignments.
-----------
12.3.1. Permitted Assignments. Any Lender may, in the
---------------------
ordinary course of its business and in accordance with applicable law, at any
time assign to one or more banks or other entities ("Purchasers") all or any
part of its rights and obligations under the Credit Documents; provided,
--------
that, unless the Agent and the Borrower shall otherwise agree, each such
assignment shall be in the minimum principal amount of not less than
$5,000,000 and each such assignment shall be of a constant, and not a
varying, percentage of the assigning Lender's rights and obligations under
this Agreement and the assignment shall cover the same percentage of such
Lender's commitment and Loans. Each such assignment shall be substantially in
the form of Exhibit "F" hereto or in such other form as may be agreed to by
the Agent and the parties thereto. The consent of the Borrower and the Agent
shall be required prior to an assignment becoming effective with respect to a
Purchaser which is not a Lender or an Affiliate thereof (none of which
consents may be unreasonably withheld); provided, that if a Default has
--------
occurred and is continuing, the consent of the Borrower shall not be
required.
- 44 -
12.3.2. Effect; Effective Date. Upon Purchaser's (i) delivery
----------------------
to the Agent of a notice of assignment, substantially in the form attached as
Exhibit "A" to Exhibit "F" hereto (a "Notice of Assignment"), together with
any consents required by Section 12.3.1, and (ii) payment of a $3,500 fee to
--------------
the Agent for processing such assignment, such assignment shall become
effective on the effective date specified in such Notice of Assignment. On
and after the effective date of such assignment, such Purchaser shall for all
purposes be a Lender party to this Agreement and any other Credit Document
executed by the Lenders and shall have all the rights and obligations of a
Lender under the Credit Documents, to the same extent as if it were an
original party hereto, and no further consent or action by the Borrower, the
Lenders or the Agent shall be required to release the transferor Lender with
respect to the percentage of the Aggregate Commitment and Outstanding Credit
Exposure assigned to such Purchaser. Upon the consummation of any assignment
to a Purchaser pursuant to this Section 12.3.2, the transferor Lender, the
--------------
Agent and the Borrower shall make appropriate arrangements so that a
replacement Note is issued to the transferor Lender and a new or replacement
Note, as appropriate, is issued to such Purchaser, in each case in principal
amounts reflecting their Commitment, as adjusted pursuant to such assignment.
Upon the Purchaser's receipt of a new or replacement Note, the transferor
Lender shall return its old Note to Borrower appropriately legended.
12.3.3. Register. The Agent shall maintain at its address
--------
referred to in Section 13.1 a copy of each assignment delivered to and
------------
accepted by it pursuant to this Section 12.3 and a register (the "REGISTER")
------------
for the recordation of the names and addresses of the Lenders and the
Commitments of and principal amount of the Loans owing to, each Lender from
time to time and whether such Lender is an original Lender or the assignee of
another Lender pursuant to an assignment under this Section 12.3. The entries
------------
in the Register shall be conclusive and binding for all purposes, 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 this Agreement. The Register shall be available for inspection by
the Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
12.4. Dissemination of Information. The Borrower authorizes each
----------------------------
Lender to disclose to any Participant or Purchaser or any other Person
acquiring an interest in the Credit Documents by operation of law (each a
"Transferee") and any prospective Transferee any and all information in such
Lender's possession concerning the creditworthiness of the Borrower and its
Subsidiaries; provided, that each Transferee and prospective Transferee
--------
agrees to be bound by Section 9.15 of this Agreement.
------------
12.5. Tax Treatment. If any interest in any Credit Document is
-------------
transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the
transferor Lender shall cause such Transferee, concurrently with the
effectiveness of such transfer, to comply with the provisions of Section
-------
2.18.
----
ARTICLE XIII: NOTICES
13.1. Giving Notice. Except as otherwise permitted by Section 2.13
------------- ------------
with respect to borrowing notices, all notices and other communications
provided to any party hereto under this Agreement or any other Credit
Document shall be given either in writing or by facsimile and addressed or
delivered to such party at its address or facsimile number, as the case may
be, set forth below its signature hereto or at such other address or
facsimile number as may be designated by such party in a notice to the other
parties. Any notice, if mailed and properly addressed with postage prepaid,
shall be deemed given when received; any notice, if properly transmitted by
facsimile, shall be deemed given when transmitted.
- 45 -
13.2. Change of Address. The Borrower, the Agent and any Lender may
-----------------
each change the address and/or facsimile number for service of notice upon it
by a notice in writing to the other parties hereto.
ARTICLE XIV: COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the Borrower, the
Agent and the Lenders and each party has notified the Agent by facsimile or
telephone, that it has taken such action.
- 46 -
IN WITNESS WHEREOF, the Borrower, the Lenders and the Agent have
executed this Agreement as of the date first above written.
Commitments
-----------
XXXXXXX DENVER, INC.
By:
----------------------------------
Print Name:
--------------------------
Title:
-------------------------------
0000 Xxxxxxx Xxxxxxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxx
Vice President, Finance
and Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Up to $50,000,000 to be drawn BANK ONE, NA, Individually as a Lender
at closing and as Agent
By:
----------------------------------
Print Name:
Title:
1 Bank Xxx Xxxxx
Xxxx Xxxxx XX0-0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Director, Capital Markets
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
- 47 -
EXHIBIT "A"
NOTE
$50,000,000 August 31, 2001
Xxxxxxx Denver, Inc., a Delaware corporation (the "Borrower"),
promises to pay to the order of Bank One, NA (the "Lender") the lesser of
the principal sum of Fifty Million Dollars or the aggregate unpaid principal
amount of all Loans made by the Lender to the Borrower pursuant to Article
II of the Credit Agreement (as the same may be amended or modified, the
"Agreement") hereinafter referred to, in immediately available funds at the
main office of Bank One, NA in Chicago, Illinois, as Agent, together with
interest on the unpaid principal amount hereof at the rates and on the dates
set forth in the Agreement. The Borrower shall pay the principal of and
accrued and unpaid interest on the Loans in full on the Facility Termination
Date.
The Lender shall, and is hereby authorized to, record on the
schedule attached hereto, or to otherwise record in accordance with its
usual practice, the date and amount of each Loan and the date and amount of
each principal payment hereunder.
This Note is issued pursuant to, and is entitled to the benefits
of, the Credit Agreement, dated as of August 31, 2001 among the Borrower,
Bank One, NA, individually and as Agent, and the lenders named therein,
including the Lender, to which Agreement, as it may be amended from time to
time, reference is hereby made for a statement of the terms and conditions
governing this Note, including the terms and conditions under which this
Note may be prepaid or its maturity date accelerated. Capitalized terms used
herein and not otherwise defined herein are used with the meanings
attributed to them in the Agreement.
XXXXXXX DENVER, INC.
By:
------------------------------------
Print Name:
----------------------------
Title:
---------------------------------
- 48 -
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE OF XXXXXXX DENVER, INC.,
DATED AUGUST 31, 2001
Type Principal Maturity Principal
of Amount of of Interest Amount Unpaid
Date Loan Loan Period Paid Balance
---- ---- ---------- ----------- --------- -------
- 49 -
EXHIBIT "B"
SUBSIDIARY GUARANTY
-------------------
THIS SUBSIDIARY GUARANTY (this "Guaranty") is made as of the
___________ day of ___________ , 2001, by ____________________, a _____________
corporation (the ("Guarantor") to and in favor of the Agent, for the ratable
benefit of the Agent and the Lenders under and as defined in the Credit
Agreement referred to below (said Agent and Lenders are herein collectively
referred to as the "Beneficiaries").
WITNESSETH:
WHEREAS, Xxxxxxx Denver, Inc., a Delaware corporation (the
"Borrower") has entered into a Credit Agreement dated as of August 31, 2001
among the Borrower, Bank One, NA, as Agent (in such capacity, the "Agent")
under and as defined therein and the Lenders under and as defined therein
(as same may be amended, extended, increased, supplemented or otherwise
modified from time to time, the "Credit Agreement"), providing, subject to
the terms and conditions thereof, for the making of Loans to, the Borrower;
WHEREAS, the Guarantor is a Subsidiary of the Borrower;
WHEREAS, pursuant to Section 6.10 of the Credit Agreement, the
------------
Borrower covenants to cause each Person that becomes a direct or indirect
Subsidiary of the Borrower after the date of the Credit Agreement (whether
as the result of an acquisition, creation, or otherwise) to execute and
delivery a Guaranty substantially in the form of Exhibit "B" to the Credit
Agreement to and in favor of the Beneficiaries, in each case within 30 days
after becoming a direct or indirect Subsidiary of the Borrower (each
Subsidiary who executes such a Guaranty is herein referred to as a
Subsidiary Guarantor"); and
WHEREAS, in consideration of the financial and other support that
the Borrower has provided, and such financial and other support as the
Borrower may in the future provide, to the Guarantor, and in order to induce
the Lenders to continue extending credit to the Borrower under the Credit
Agreement, the Guarantor is willing to guarantee any and all existing and
future obligations of the Borrower to the Beneficiaries under the Credit
Agreement, the Notes, and the other Credit Documents;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION l. Definitions. Capitalized terms defined in the Credit
-----------
Agreement and not otherwise defined herein have, as used herein, the
respective meanings provided for therein.
- 50 -
SECTION 2. Representations and Warranties. The Guarantor represents
------------------------------
and warrants to the Beneficiaries (which representations and warranties
shall be deemed to have been renewed upon the date of each Credit Extension
under the Credit Agreement) that:
(a) it is a [corporation] duly organized, validly existing
and in good standing under the laws of its jurisdiction of incorporation and
has all requisite [corporate power], and has all material governmental
licenses, authorizations, consents and approvals necessary to own its assets
and carry on its business as now being or as proposed to be conducted.
(b) it has all necessary [corporate] power and authority to
execute, deliver and perform its obligations under this Guaranty; the
execution, delivery and performance of this Guaranty have been duly
authorized by all necessary [corporate] action; and this Guaranty has been
duly and validly executed and delivered by it and constitutes its legal,
valid and binding obligation, enforceable in accordance with its terms,
except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, or moratorium or other similar laws relating to
the enforcement of creditors' rights generally and by general equitable
principles.
(c) neither the execution and delivery by it of this
Guaranty nor compliance with the terms and provisions hereof will conflict
with or result in a breach of, or require any consent under, its
[certificate of incorporation or by-laws] or any applicable law or
regulation, or any order, writ, injunction or decree of any court or
governmental authority or agency, or any agreement or instrument to which it
is a party or by which it is bound or to which it is subject, or constitute
a default under any such agreement or instrument, or result in the creation
or imposition of any Lien upon any of its revenues or assets pursuant to the
terms of any such agreement or instrument.
SECTION 3. Covenants. The Guarantor covenants that, so long as any
---------
Lender has any Commitment outstanding under the Credit Agreement or any
amount payable by Borrower under the Credit Agreement or any Note shall
remain unpaid, that it will, and, if necessary, will enable the Borrower to
fully comply with those covenants and agreements set forth in the Credit
Agreement.
SECTION 4. The Guaranty. Subject to Section 10 hereof, the
------------ ----------
Guarantor hereby absolutely and unconditionally guarantees the full and
punctual payment when due (whether at stated maturity, upon acceleration or
otherwise) of all unpaid principal of and accrued and unpaid interest on the
Notes (including, without limitation, any such interest, fees and expenses
accrued subsequent to the commencement of any bankruptcy or insolvency
proceeding with respect to the Borrower whether or not allowed as a claim in
such bankruptcy or insolvency proceeding), all LC Obligations, all accrued
and unpaid fees and all expenses, reimbursements, indemnities and other
obligations of the Borrower to the Beneficiaries, or any of them, in each
case whether now existing or hereafter incurred, whether absolute or
contingent obligations, and including all renewals, extensions and
modifications thereof and all attorneys' fees incurred by the Beneficiaries
in connection with the collection or enforcement thereof (all of the
foregoing, subject to the provisions of Section 10 hereof, being referred to
----------
collectively as the "Guaranteed
- 51 -
Obligations"). Upon failure by the Borrower to pay punctually any such
amount, the Guarantor agrees that it shall forthwith on demand pay the
amount not so paid at the place and in the manner specified in the Credit
Agreement, any Note or the relevant Credit Document, as the case may be.
SECTION 5. Guaranty Unconditional. Subject to Section 10 hereof,
---------------------- ----------
the obligations of the Guarantor hereunder shall be unconditional and
absolute and, without limiting the generality of the foregoing, shall not be
released, discharged or otherwise affected by:
(i) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of the Borrower or any other
Subsidiary Guarantor under the Credit Agreement, any Subsidiary
Guaranty, any Note, or any other Credit Document, by operation of
law or otherwise;
(ii) any modification or amendment of or supplement to the Credit
Agreement, any Note, or any other Credit Document;
(iii) any release, nonperfection or invalidity of any direct or
indirect security for any obligation of the Borrower or any other
Subsidiary Guarantor under the Credit Agreement, any Subsidiary
Guaranty, any Note or any other Credit Document;
(iv) any change in the corporate existence, structure or ownership
of the Borrower or any other Subsidiary Guarantor, or any
insolvency, bankruptcy, reorganization or other similar proceeding
affecting the Borrower, or any other Subsidiary Guarantor, or its
assets or any resulting release or discharge of any obligation of
the Borrower, or any other Subsidiary Guarantor;
(v) the existence of any claim, setoff or other rights which the
Guarantor may have at any time against the Borrower, any Subsidiary
Guarantor, any Beneficiary or any other Person, whether in
connection herewith or any unrelated transactions;
(vi) any invalidity or unenforceability relating to or against the
Borrower, any other Subsidiary Guarantors, for any reason related
to the Credit Agreement, any Subsidiary Guaranty or any other
Credit Document, or any provision of applicable law or regulation
purporting to prohibit the payment of all or any part of the
Obligations by the Borrower or any other Subsidiary Guarantor; or
(vii) any other act or omission to act or delay of any kind by the
Borrower, any other Subsidiary Guarantor, any Beneficiary or any
other Person or any other circumstance whatsoever which might, but
for the provisions of this paragraph, constitute a legal or
equitable discharge of any Guarantor's obligations hereunder.
SECTION 6. Discharge Only Upon Payment In Full: Reinstatement In
-----------------------------------------------------
Certain Circumstances. The Guarantor's obligations hereunder shall remain in
---------------------
full force and effect until
- 52 -
all Guaranteed Obligations shall have been paid in full and the Commitments
under the Credit Agreement shall have terminated or expired. If at any time
any payment of any portion of the Guaranteed Obligations is rescinded or
must be otherwise restored or returned upon the insolvency, bankruptcy or
reorganization of the Borrower or otherwise, the Guarantor's obligations
hereunder with respect to such payment shall be reinstated as though such
payment had been due but not made at such time.
SECTION 7. Waiver of Notice. The Guarantor irrevocably waives
----------------
acceptance hereof, presentment, demand, protest and, to the fullest extent
permitted by law, any notice not provided for herein, as well as any
requirement that at any time any action be taken by any Person against the
Borrower, any other Subsidiary of the Borrower, or any other Person.
SECTION 8. Subrogation. The Guarantor hereby agrees not to assert
-----------
any right, claim or cause of action, including, without limitation, a claim
for subrogation, reimbursement, indemnification or otherwise, against the
Borrower, any other Subsidiary of the Borrower or any other Person arising
out of or by reason of this Guaranty or the obligations hereunder, unless
and until the Guaranteed Obligations are paid in full and all Commitments of
the Lenders under the Credit Agreement shall have terminated or expired.
SECTION 9. Stay of Acceleration. If acceleration of the time for
--------------------
payment of any portion of the Guaranteed Obligations is stayed upon the
insolvency, bankruptcy or reorganization of the Borrower, all such amounts
otherwise subject to acceleration under the terms of the Credit Agreement,
any Note or any other Credit Document shall nonetheless be payable by the
Guarantor hereunder forthwith on demand by the Agent.
SECTION 10. Limitation on Obligations. (a) It is the intention of
-------------------------
the Guarantor and the Beneficiaries that the Guarantor's obligations
hereunder in respect of the Guaranteed Obligations shall be in, but not in
excess of, as of any date, the greater of the following (such greater amount
determined hereunder being the Guarantor's "Maximum Liability"): (i) the
aggregate amount of all monies received by the Guarantor from the Borrower
after the date hereof (whether by loan, capital infusion or other means), or
(ii) the maximum amount (such amount being the Guarantor's "Alternative
Limitation") not subject to avoidance under Title 11 of the United States
Code, as same may be amended from time to time, or any applicable state law
(collectively, the "Bankruptcy Code"). To that end, but as to the
Alternative Limitation of the Guarantor, only to the extent such obligations
would otherwise be subject to avoidance under the Bankruptcy Code if the
Guarantor is not deemed to have received valuable consideration, fair value
or reasonably equivalent value for its obligations hereunder, the
Guarantor's obligations hereunder in respect of the Guaranteed Obligations
shall be reduced to that amount which, after giving effect thereto, would
not render the Guarantor insolvent, or leave the Guarantor with an
unreasonably small capital to conduct its business, or cause the Guarantor
to have incurred debts (or intended to have incurred debts) beyond its
ability to pay such debts as they mature, at the time such obligations are
deemed to have been incurred under the Bankruptcy Code. As used herein, the
terms "insolvent" and "unreasonably small capital" shall likewise be
determined in
- 53 -
accordance with the Bankruptcy Code. This Section 10(a) with respect to the
-------------
Alternative Limitation of the Guarantor is intended solely to preserve the
rights of the Beneficiaries hereunder to the maximum extent not subject to
avoidance under the Bankruptcy Code, and neither the Guarantor nor any other
person or entity shall have any right or claim under this Section 10(a) with
-------------
respect to the Alternative Limitation, except to the extent necessary so
that the obligations of the Guarantor hereunder shall not be rendered
voidable under the Bankruptcy Code.
(b) The Guarantor agrees that the Guaranteed Obligations may at any
time and from time to time exceed the Maximum Liability of the Guarantor,
without impairing this Guaranty or affecting the rights and remedies of the
Beneficiaries hereunder. Nothing in this Section 10(b) shall be construed to
-------------
increase the Guarantor's obligations hereunder in respect of the Guaranteed
Obligations beyond its Maximum Liability.
(c) In the event the Guarantor or any other Subsidiary Guarantor (a
"Paying Guarantor") shall make any payment or payments under its respective
Subsidiary Guaranty or shall suffer any loss as a result of any realization
upon any collateral granted by it to secure its obligations under its
Subsidiary Guaranty, each other Subsidiary Guarantor (each a "Non-Paying
Guarantor") shall contribute to such Paying Guarantor an amount equal to
such Non-Paying Guarantor's "Pro Rata Share" of such payment or payments
made, or losses suffered, by such Paying Guarantor. For the purposes hereof,
each Non-Paying Guarantor's "Pro Rata Share" with respect to any such
payment or loss by a Paying Guarantor shall be determined as of the date on
which such payment or loss was made by reference to the ratio of (i) such
Non-Paying Guarantor's Maximum Liability as of such date (without giving
effect to any right to receive, or obligation to make, any contribution
hereunder) to (ii) the aggregate Maximum Liability of all Subsidiary
Guarantors under each of the Subsidiary Guaranties (including such Paying
Guarantor) as of such date (without giving effect to any right to receive,
or obligation to make, any contribution under any Subsidiary Guaranty).
Nothing in this Section 10(c) shall affect the Guarantor's several liability
-------------
for the entire amount of the Guaranteed Obligations (up to the Guarantor's
Maximum Liability), it being understood and agreed that the Guarantor's
liability hereunder is several and independent of any other Subsidiary
Guaranties at any time in effect with respect to the Guaranteed Obligations
and that the Guarantor's liability hereunder may be enforced regardless of
the existence, validity, enforcement or non-enforcement of any such other
Subsidiary Guaranties. The Guarantor covenants and agrees that its right to
receive any contribution from any Non-Paying Guarantor shall be subordinate
and junior in right of payment to all the Guaranteed Obligations. The
provisions of this Section 10(c) are for the benefit of the Beneficiaries
-------------
and the Subsidiary Guarantors and may be enforced by any one, or more, or
all of them in accordance with the terms hereof.
SECTION 11. Collection Expenses. In addition to the Guarantor's
-------------------
guaranty of the Guaranteed Obligations hereunder, the Guarantor hereby
agrees to pay all costs, fees and expenses (including attorneys' fees)
incurred by each of the Beneficiaries in collecting or enforcing the
Guarantor's obligations under this Guaranty. The Guarantor's obligations
under
- 54 -
this Section 11 shall not be included within the obligations of the
----------
Guarantor limited by the preceding Section 10.
----------
SECTION 12. Currency of Payment. The Guarantor agrees that all
-------------------
payments under this Guaranty shall be made in the same currency and manner
as provided for the Guaranteed Obligations. If the Guarantor is unable for
any reason to effect payment in Dollars as required by the preceding
sentence or if the Guarantor shall default in the payment when due of any
payment under this Guaranty, the applicable Beneficiary may, at its option,
require such payment to be made to such Beneficiary in the equivalent amount
of the currency of the Guarantor's domicile at the applicable Beneficiary's
then current selling rate for cable transfers of such foreign currency to
the place or places where the Guaranteed Obligations was payable. In any
case in which the Guarantor shall make such payment in such foreign
currency, the Guarantor agrees to hold the applicable Beneficiary harmless
from any loss incurred by the applicable Beneficiary arising from any change
in the value of such foreign currency in relation to United States currency
between the date such Guaranteed Obligations became due and the date of
payment thereof.
SECTION 13. Taxes. etc. All payments required to be made by the
----------
Guarantor hereunder shall be made without setoff or counterclaim and free
and clear of and without deduction or withholding for or on account of, any
present or future taxes, levies, imposts, duties or other charges of
whatsoever nature imposed by any government or any political or taxing
authority thereof, provided, however, that if the Guarantor is required by
law to make such deduction or withholding, the Guarantor shall forthwith pay
to the applicable Beneficiary such additional amount as results in the net
amount received by such Beneficiary equaling the full amount which would
have been received by such Beneficiary had no such deduction or withholding
been made, but after reflecting any actual tax credits taken by such
Beneficiary as a result of the Guarantor's payment of such additional
amount.
SECTION 14. Notices. All notices, requests and other communications
-------
to any party hereunder shall be given or made by telecopier or other writing
and telecopied, or mailed or delivered to the intended recipient at its
address or telecopier number set forth on the signature pages hereof or such
other address or telecopy number as such party may hereafter specify for
such purpose by notice to the Agent in accordance with the provisions of
Article XIII of the Credit Agreement. Except as otherwise provided in this
Guaranty, all such communications shall be deemed to have been duly given
when transmitted by telecopier, or personally delivered or, in the case of a
mailed notice sent by certified mail return-receipt requested, on the date
set forth on the receipt (provided, that any refusal to accept any such
notice shall be deemed to be notice thereof as of the time of any such
refusal), in each case given or addressed as aforesaid.
SECTION 15. No Waivers. No failure or delay by any Beneficiary in
----------
exercising any right, power or privilege hereunder shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude any other
or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies provided in this Guaranty, the Credit
Agreement, the Notes, and the other Credit Documents shall be cumulative and
not exclusive of any rights or remedies provided by law.
- 55 -
SECTION 16. Successors and Assigns. This Guaranty is for the
----------------------
benefit of the Beneficiaries and their respective successors and assigns.
This Guaranty shall be binding upon the Guarantor and its successors, but
the Guarantor may not assign any of its obligations hereunder without the
prior written consent of each of the Beneficiaries.
SECTION 17. Changes in Writing. Neither this Guaranty nor any
------------------
provision hereof may be changed, waived, discharged or terminated orally,
but only in writing signed by the Guarantor and the Agent (with the consent
of the requisite Lenders pursuant to Section 8.3 of the Credit Agreement).
-----------
SECTION 18. GOVERNING LAW SUBMISSION TO JURISDICTION WAIVER OF JURY
-------------------------------------------------------
TRIAL. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
-----
THE LAW OF THE STATE OF ILLINOIS. THE GUARANTOR HEREBY SUBMITS TO THE
NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS AND OF ANY ILLINOIS STATE COURT SITTING IN
CHICAGO, ILLINOIS FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR
RELATING TO THIS GUARANTY (INCLUDING, WITHOUT LIMITATION, ANY OF THE OTHER
CREDIT DOCUMENTS) OR THE TRANSACTIONS CONTEMPLATED HEREBY. THE GUARANTOR
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH
PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING
BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. THE
GUARANTOR AND EACH OF THE BENEFICIARIES EACH HEREBY IRREVOCABLY WAIVES ANY
AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS GUARANTY OR THE TRANSACTIONS CONTEMPLATED HEREBY.
- 56 -
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be
duly executed, under seal, by its authorized officer as of the day and year
first above written.
----------------------------
By: _________________________
Title: _______________________
- 57 -
EXHIBIT "C"
FORM OF LEGAL OPINION
Attached
- 58 -
August 31, 2001
Bank One, N.A., Individually
as a Lender and as Agent to
that Credit Agreement referred
to below
0 Xxxx Xxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Re: Interim Credit Agreement with Xxxxxxx Denver, Inc.
Ladies and Gentlemen:
We have acted as counsel to Xxxxxxx Denver, Inc., a Delaware
corporation (the "Borrower"), and its subsidiaries which are incorporated
under the laws of the United States (the "Domestic Subsidiaries") in
connection with that certain Interim Credit Agreement, dated as of August
31, 2001 (the "Credit Agreement"), among the Borrower, Bank One, N.A., as
Agent (the "Agent") and the other financial institutions parties thereto
(the "Lenders"). Capitalized terms used herein and not otherwise defined
have the meanings given them in the Credit Agreement. As such counsel, we
have been asked to render to you the opinion set forth below.
To enable us to render this opinion, we have reviewed originals or
copies (certified or otherwise identified to our satisfaction) of:
1. The Credit Agreement and the Exhibits and Schedules thereto;
2. The Subsidiary Guaranty signed by the applicable Domestic
Subsidiary;
3. The Note;
4. The Certificates of Incorporation and By-laws of the Borrower and
each Domestic Subsidiary (each as in effect on this date and on the dates of
any corporate action by the Company relating to the Credit Agreement);
5. Certificates of Good Standing for the Borrower and each Domestic
Subsidiary, certified by the appropriate governmental officer in the
applicable jurisdiction of incorporation;
6. The records of proceedings of the Boards of Directors of the
Borrower and each Domestic Subsidiary and of duly authorized committees
thereof relating to the execution of the Credit Agreement, the Subsidiary
Guaranty and the delivery of the Note; and
7. Such other documents, corporate records and certificates of public
officials as we have considered appropriate.
The items and documents referred to in paragraphs 1 through 3 are
referred to herein as the "Loan Documents," and the items and documents
referred to in paragraphs 4 through 7 are referred to herein as the
"Corporate Documents."
- 59 -
We have discussed with management of the Borrower and the Domestic
Subsidiares certain factual matters relating to the Borrower and the
Domestic Subsidiaries and the transactions contemplated by the Credit
Agreement, and we have conducted such other investigations of fact and law
as we have considered appropriate. We have assumed the authenticity of all
such documents delivered to us as originals, the conformity to the originals
of all such documents delivered to us as copies, the authenticity of such
latter originals and the authenticity of the signatures appearing on any
copies thereof, and we have assumed the accuracy of the factual information
furnished to us by the management of the Borrower and the Domestic
Subsidiaries. We have also assumed that the Loan Documents contemplated
thereby have been duly authorized, executed and delivered, and are within
the corporate power and authority of, and are binding upon, all parties
thereto other than the Borrower and the Domestic Subsidiaries.
When we render an opinion "to the best of our knowledge" or
concerning an item "known to us" or our opinion otherwise refers to "our
knowledge", it is based solely upon (a) inquiry of attorneys within this
firm who perform legal services for the Borrower or its Domestic
Subsidiaries, (b) receipt of a certificate executed by an officer of the
Borrower or its Domestic Subsidiaries covering such matters or (c) other
investigation, if any, as we specifically set forth herein.
Based on the foregoing and subject to the qualifications contained
herein, we are of the opinion that:
1. The Borrower and each of its Domestic Subsidiaries are
corporations duly incorporated, validly existing and in good standing under
the laws of their states of incorporation, and have all requisite corporate
power and authority to conduct their business in each jurisdiction in which
their business is conducted.
2. The execution and delivery of the Loan Documents to which it is a
party by the Borrower and each Domestic Subsidiary and the performance by
the Borrower and each Domestic Subsidiary of the Obligations have been duly
authorized by all necessary corporate action, and do not and will not:
(a) require any consent of the shareholders of the Borrower
or any Domestic Subsidiary;
(b) contravene any provision of applicable law or of the
Certificates of Incorporation or By-laws of the Borrower
or any Domestic Subsidiary;
(c) conflict with or result in any breach or contravention
of, or the creation of any Lien under, any document or
agreement known to us evidencing any contractual
obligation to which the Borrower or any Domestic
Subsidiary is a party or any order, injunction, writ or
decree known to us of any governmental authority to which
the Borrower or any Domestic Subsidiary or any of its
property is subject.
3. The Loan Documents have been duly executed and delivered by the
Borrower and each Domestic Subsidiary and constitute the legal, valid and
binding obligations of the Borrower and each Domestic Subsidiary enforceable
in accordance with their terms.
4. There are no actions, suits, proceedings, claims or disputes known
to us which are pending or threatened against the Borrower or any Domestic
Subsidiary or any of their respective properties (a) which purport to affect
or pertain to the Credit Agreement or any other Loan Document, or any of the
transactions contemplated thereby, or (b) as to which there exists a
- 60 -
reasonable likelihood of an adverse determination, which determination would
be likely to have a Material Adverse Effect. We know of no injunction, writ,
temporary restraining order or other order of any nature which has been
issued by any court or other governmental authority purporting to enjoin or
restrain the execution, delivery or performance of the Credit Agreement or
any other Loan Document, or directing that the transactions provided for
therein not be consummated as provided therein.
5. None of the Borrower or any Domestic Subsidiary is an "Investment
Company" within the meaning of the Investment Company Act of 1940. The
Borrower and each Domestic Subsidiary are not subject to regulation under
the Public Utility Holding Company Act of 1935, the Federal Power Act or the
Interstate Commerce Act in any manner which would adversely affect its
ability to enter into, borrow under or perform its obligations under the
Credit Agreement.
Our opinions are subject to the following qualifications:
(a) Our opinions are subject to the effects of any applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or
similar law affecting creditors' rights generally and to the effects of
general principles of equity (regardless of whether considered in a
proceeding in equity or at law), including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing.
(b) We express no opinion as to indemnification or contribution
obligations which contravene public policy.
(c) We express no opinion as to any provision of the Credit Agreement
purporting to convey rights to Persons other than the parties thereto.
(d) We express no opinion as to any waiver of (i) the right to a jury
trial, (ii) any objection to venue or (iii) any right to bring legal
proceedings in any court having jurisdiction.
(e) Our opinions are limited to the laws of the State of Illinois and
the General Corporate Law of the State of Delaware and to the federal laws
of the United States, and we express no opinion as to the laws of any other
jurisdiction.
This opinion is solely for the benefit of the addressees hereof (and
their respective successors and assigns) in connection with the transactions
contemplated by the Credit Agreement, and may not be relied upon by any
other person or for any other purpose. This opinion is rendered as of the
date set forth above, and we disclaim any duty to update this opinion due to
circumstances or events which may subsequently occur.
Very truly yours,
- 61 -
EXHIBIT "D"
COMPLIANCE CERTIFICATE
To: The Lenders party to the
Credit Agreement Described Below
This Compliance Certificate is furnished pursuant to that certain
Credit Agreement dated as of August 31, 2001 (as amended, modified, renewed
or extended from time to time, the "Agreement") among the Borrower, the
Lenders party thereto and Bank One, NA, as Agent for the Lenders. Unless
otherwise defined herein, capitalized terms used in this Compliance
Certificate have the meanings ascribed thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected of the Borrower;
---------------------
2. I have reviewed the terms of the Agreement and I have made, or
have caused to be made under my supervision, a detailed review of the
transactions and conditions of the Borrower and its Subsidiaries during the
accounting period covered by the attached financial statements;
3. The examinations described in paragraph 2 did not disclose, and
I have no knowledge of, the existence of any condition or event which
constitutes a Default or Unmatured Default during or at the end of the
accounting period covered by the attached financial statements or as of the
date of this Certificate, except as set forth below; and
4. Schedule I attached hereto sets forth financial data and
computations evidencing the Borrower's compliance with certain covenants of
the Agreement, all of which data and computations are true, complete and
correct.
Described below are the exceptions, if any, to paragraph 3 by
listing, in detail, the nature of the condition or event, the period during
which it has existed and the action which the Borrower has taken, is taking,
or proposes to take with respect to each such condition or event:
The foregoing certifications, together with the computations set
forth in Schedule I hereto and the financial statements delivered with this
Certificate in support hereof, are made and delivered this __ day of
______________, 2001.
- 62 -
EXHIBIT "E"
LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION
To: Bank One, NA,
as Agent (the "Agent") under the Credit Agreement
Described Below.
Re: Credit Agreement dated as of August 31, 2001 among Xxxxxxx Denver,
Inc. (the "Borrower"), Bank One, NA, individually and as Agent, and
the Lenders named therein (the "Credit Agreement"). Terms used
herein and not otherwise defined shall have the meanings assigned
thereto in the Credit Agreement.
The Agent is specifically authorized and directed to act upon the
following standing money transfer instructions with respect to the proceeds
of Advances or other extensions of credit from time to time until receipt by
the Agent of a specific written revocation of such instructions by the
Borrower, provided, however, that the Agent may otherwise transfer funds as
hereafter directed in writing by the Borrower in accordance with Section
-------
13.1 of the Credit Agreement or based on any telephonic notice made in
----
accordance with Section 2.13 of the Credit Agreement.
------------
Facility Identification Number(s)
--------------------------------------
Customer/Account Name
--------------------------------------------------
Transfer Funds To
------------------------------------------------------
For Account No.
--------------------------------------------------------
Reference/Attention To
-------------------------------------------------
Authorized Officer (Customer Representative) Date
----------------------
------------------------------------------ ---------------------------
(Please Print) Signature
Bank Officer Name Date
---------------------
------------------------------------------ ---------------------------
(Please Print) Signature
(DELIVER COMPLETED FORM TO CREDIT SUPPORT STAFF FOR IMMEDIATE
PROCESSING)
- 63 -
EXHIBIT "F"
ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignment Agreement") between
____________________ (the "Assignor") and ______________ (the "Assignee") is
dated as of __________, 19__. The parties hereto agree as follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to a Credit
---------------------
Agreement dated as of August 31, 2001 among Xxxxxxx Denver, Inc., the
Lenders named therein, and Bank One, NA, individually and as Agent (which,
as it may be amended, modified, renewed or extended from time to time is
herein called the "Credit Agreement"). Capitalized terms used herein and not
otherwise defined herein shall have the meanings attributed to them in the
Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and assigns
-------------------------
to the Assignee, and the Assignee hereby purchases and assumes from the
Assignor, an undivided __% interest in and to all of the Assignor's rights
and obligations under the Credit Agreement and the other Credit Documents.
The aggregate principal dollar amount of the Commitment (or Outstanding
Credit Exposure, if the applicable Commitment has been terminated) of the
Assignor purchased by the Assignee hereunder is $__________.
3. EFFECTIVE DATE. The effective date of this Assignment Agreement
--------------
(the "Effective Date") shall be the later of __________, 19__ or two
Business Days (or such shorter period agreed to by the Agent) after a Notice
of Assignment substantially in the form of Exhibit "I" attached hereto has
been delivered to the Agent. Such Notice of Assignment must include any
consents required to be delivered to the Agent by Section 12.3.1 of the
--------------
Credit Agreement. In no event will the Effective Date occur if the payments
required to be made by the Assignee to the Assignor on the Effective Date
under Sections 4 and 5 hereof are not made on the proposed Effective Date.
---------- -
The Assignor will notify the Assignee of the proposed Effective Date no
later than the Business Day prior to the proposed Effective Date. As of the
Effective Date, (i) the Assignee shall have the rights and obligations of a
Lender (including the agreements of a Lender) under the Credit Documents
with respect to the rights and obligations assigned to the Assignee
hereunder and (ii) the Assignor shall relinquish its rights and be released
from its corresponding obligations under the Credit Documents with respect
to the rights and obligations assigned to the Assignee hereunder.
4. PAYMENT OBLIGATIONS. On and after the Effective Date, the
-------------------
Assignee shall be entitled to receive from the Agent all payments of
principal, interest and fees with respect to the interest assigned hereby.
The Assignee shall advance funds directly to the Agent with respect to all
Loans and Reimbursement Obligations made on or after the Effective Date with
respect to the interest assigned hereby. [With respect to the sale and
assignment of Loans hereunder, (i) the Assignee shall pay the Assignor, on
the Effective Date, an amount equal to the principal amount of the portion
of all Floating Rate Loans assigned to the Assignee hereunder and (ii) with
respect
- 64 -
to each Eurocurrency Loan made by the Assignor and assigned to the Assignee
hereunder which is outstanding on the Effective Date, (a) on the last day of
the Eurocurrency Interest Period therefor or (b) on such earlier date agreed
to by the Assignor and the Assignee or (c) on the date on which any such
Eurocurrency Loan either becomes due (by acceleration or otherwise) or is
prepaid (the date as described in the foregoing clauses (a), (b) or (c)
being hereinafter referred to as the "Payment Date"), the Assignee shall pay
the Assignor an amount equal to the principal amount of the portion of such
Eurocurrency Loan assigned to the Assignee which is outstanding on the
Payment Date. If the Assignor and the Assignee agree that the Payment Date
for such Eurocurrency Loan shall be the Effective Date, they shall agree to
the interest rate applicable to the portion of such Loan assigned hereunder
for the period from the Effective Date to the end of the existing
Eurocurrency Interest Period applicable to such Eurocurrency Loan (the
"Agreed Interest Rate") and any interest received by the Assignee in excess
of the Agreed Interest Rate shall be remitted to the Assignor. In the event
interest for the period from the Effective Date to but not including the
Payment Date is not paid by the Borrower with respect to any Eurocurrency
Loan sold by the Assignor to the Assignee hereunder, the Assignee shall pay
to the Assignor interest for such period on the portion of such Eurocurrency
Loan sold by the Assignor to the Assignee hereunder at the applicable rate
provided by the Credit Agreement. In the event a prepayment of any
Eurocurrency Loan which is existing on the Payment Date and assigned by the
Assignor to the Assignee hereunder occurs after the Payment Date but before
the end of the Eurocurrency Interest Period applicable to such Eurocurrency
Loan, the Assignee shall remit to the Assignor the excess of the prepayment
penalty paid with respect to the portion of such Eurocurrency Loan assigned
to the Assignee hereunder over the amount which would have been paid if such
prepayment penalty was calculated based on the Agreed Interest Rate. The
Assignee will also promptly remit to the Assignor (i) any principal payments
received from the Agent with respect to Eurocurrency Loans prior to the
Payment Date and (ii) any amounts of interest on Loans and fees received
from the Agent which relate to the portion of the Loans assigned to the
Assignee hereunder for periods prior to the Effective Date, in the case of
Floating Rate Loans, or the Payment Date, in the case of Eurocurrency Loans,
and not previously paid by the Assignee to the Assignor.](1) In the event that
either party hereto receives any payment to which the other party hereto is
entitled under this Assignment Agreement, then the party receiving such
amount shall promptly remit it to the other party hereto.
5. FEES PAYABLE BY THE ASSIGNEE. [The Assignee shall pay to the
----------------------------
Assignor a fee on each day on which a payment of interest or fees is made
under the Credit Agreement with respect to the amounts assigned to the
Assignee hereunder (other than a payment of interest or fees for the period
prior to the Effective Date or, in the case of Eurocurrency Loans, the
Payment Date, which the Assignee is obligated to deliver to the Assignor
pursuant to Section 4 hereof). The amount of such fee shall be the
---------
difference between (i) the interest or fee, as applicable, paid with respect
to the amounts assigned to the Assignee hereunder and (ii) the interest or
fee, as
---------
(1) Each Assignor may insert its standard payment provisions in lieu of the
payment terms included in this Section.
- 65 -
applicable, which would have been paid with respect to the amounts assigned
to the Assignee hereunder if each interest rate was ___ of 1% less than the
interest rate paid by the Borrower or if the fee was ___ of 1% less than the
fee paid by the Borrower, as applicable.](2) In addition, the Assignee agrees
to pay ___% of the recordation fee required to be paid to the Agent in
connection with this Assignment Agreement.
6. REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE ASSIGNOR'S
--------------------------------------------------------------
LIABILITY. The Assignor represents and warrants that it is the legal and
---------
beneficial owner of the interest being assigned by it hereunder and that
such interest is free and clear of any adverse claim created by the
Assignor. It is understood and agreed that the assignment and assumption
hereunder are made without recourse to the Assignor and that the Assignor
makes no other representation or warranty of any kind to the Assignee.
Neither the Assignor nor any of its officers, directors, employees, agents
or attorneys shall be responsible for (i) the due execution, legality,
validity, enforceability, genuineness, sufficiency or collectability of any
Credit Document, (ii) any representation, warranty or statement made in or
in connection with any of the Credit Documents, (iii) the financial
condition or creditworthiness of the Borrower or any of its Subsidiaries,
(iv) the performance of or compliance with any of the terms or provisions of
any the Credit Documents, (v) inspecting any of the Property, books or
records of the Borrower or any of its Subsidiaries, (vi) the validity,
enforceability, perfection, priority, condition, value or sufficiency of any
collateral securing or purporting to secure the Obligations or (vii) any
mistake, error of judgment, or action taken or omitted to be taken in
connection with the Credit Extensions or the Credit Documents.
7. REPRESENTATIONS OF THE ASSIGNEE. The Assignee (i) confirms that
-------------------------------
it has received a copy of the Credit Agreement, together with copies of the
Borrower's financial statements requested by the Assignee and such other
documents and information with respect to the Borrower as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment Agreement, (ii) agrees that it will, independently and without
reliance upon the Agent, the Assignor or any other Lender and based on such
documents and information at it shall deem appropriate at the time, continue
to make its own credit decisions in taking or not taking action under the
Credit Documents, (iii) appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under the Credit
Documents as are delegated to the Agent by the terms thereof, together with
such powers as are reasonably incidental thereto, (iv) agrees that it will
perform in accordance with their terms all of the obligations which by the
terms of the Credit Documents are required to be performed by it as a
Lender, (v) agrees that its payment instructions and notice instructions are
as set forth in the attachment to Schedule 1, (vi) confirms that none of the
funds, monies, assets or other consideration being used to make the purchase
and assumption hereunder are "plan assets" as defined under ERISA and that
its rights, benefits and interests in and under the Credit Documents
---------
(2) Each Assignor may insert its standard payment provisions in lieu of
the payment terms included in this Section.
- 66 -
will not be "plan assets" under ERISA, [and (vii) attaches the forms
prescribed by the Internal Revenue Service of the United States certifying
that the Assignee is entitled to receive payments under the Credit Documents
without deduction or withholding of any United States federal income
taxes].(3)
8. INDEMNITY. The Assignee agrees to indemnify and hold the
---------
Assignor harmless against any and all losses, costs and expenses (including,
without limitation, reasonable attorneys' fees) and liabilities incurred by
the Assignor in connection with or arising in any manner from the Assignee's
non-performance of the obligations assumed under this Assignment Agreement.
9. SUBSEQUENT ASSIGNMENTS. After the Effective Date, the Assignee
shall have the right subject to Section 12.3.1 of the Credit Agreement to
--------------
assign the rights which are assigned to the Assignee hereunder to any entity
or person, provided that (i) any such subsequent assignment does not violate
any of the terms and conditions of the Credit Documents or any law, rule,
regulation, order, writ, judgment, injunction or decree and that any consent
required under the terms of the Credit Documents has been obtained and (ii)
unless the prior written consent of the Assignor is obtained, the Assignee
is not thereby released from its obligations to the Assignor hereunder, if
any remain unsatisfied, including, without limitation, its obligations under
[Sections 4, 5 and 8] hereof.
---------- - -
10. REDUCTIONS OF AGGREGATE COMMITMENT. If any reduction in the
----------------------------------
Aggregate Commitment occurs between the date of this Assignment Agreement
and the Effective Date, the percentage interest specified in Section 2 above
---------
shall remain the same, but the dollar amount purchased shall be recalculated
based on the reduced Aggregate Commitment.
11. ENTIRE AGREEMENT. This Assignment Agreement and the attached
-----------------
Notice of Assignment embody the entire agreement and understanding between
the parties hereto and supersede all prior agreements and understandings
between the parties hereto relating to the subject matter hereof.
12. GOVERNING LAW. This Assignment Agreement shall be governed by
-------------
the internal law, and not the law of conflicts, of the State of Illinois.
13. NOTICES. Notices shall be given under this Assignment Agreement
-------
in the manner set forth in the Credit Agreement. For the purpose hereof, the
addresses of the parties hereto (until notice of a change is delivered)
shall be the address set forth in the attachment to Schedule 1.
---------
(3) To be inserted if the Assignee is not incorporated under the laws of
the United States, or a state thereof.
- 67 -
IN WITNESS WHEREOF, the parties hereto have executed this
Assignment Agreement by their duly authorized officers as of the date first
above written.
[NAME OF ASSIGNOR]
By:
-----------------------
Title:
-----------------------
[NAME OF ASSIGNEE]
By:
-----------------------
Title:
-----------------------
- 68 -
SCHEDULE 1 to ASSIGNMENT AGREEMENT
ATTACH ASSIGNOR'S ADMINISTRATIVE INFORMATION SHEET, WHICH MUST
INCLUDE NOTICE ADDRESS FOR THE ASSIGNOR AND THE ASSIGNEE
- 69 -
EXHIBIT "A"
TO ASSIGNMENT AGREEMENT
NOTICE
OF ASSIGNMENT
, 19
--------------------
To: XXXXXXX DENVER, INC.
BANK ONE, NA
From: [NAME OF ASSIGNOR] (the "Assignor")
[NAME OF ASSIGNEE] (the "Assignee")
1. We refer to that certain Credit Agreement dated as of
August 31, 2001 among Xxxxxxx Denver, Inc., Bank One, NA, individually and
as Agent, and the Lenders named therein (the "Credit Agreement").
Capitalized terms used herein and not otherwise defined herein shall have
the meanings attributed to them in the Credit Agreement.
2. This Notice of Assignment (this "Notice") is given and
delivered to [the Borrower and](4) the Agent pursuant to Section 12.3.2 of the
--------------
Credit Agreement.
3. The Assignor and the Assignee have entered into an
Assignment Agreement, dated as of __________, 19__ (the "Assignment"), pursuant
to which, among other things, the Assignor has sold, assigned, delegated and
transferred to the Assignee, and the Assignee has purchased, accepted and
assumed from the Assignor an undivided __% interest of all outstandings,
rights and obligations of the Assignor under the Credit Agreement and the
other Credit Documents. The Effective Date of the Assignment shall be the
later of __________, 19__ or two Business Days (or such shorter period as
agreed to by the Agent) after this Notice of Assignment and any consents and
fees required by Sections 12.3.1 and 12.3.2 of the Credit Agreement have
--------------- ------
been delivered to the Agent, provided that the Effective Date shall not
occur if any condition precedent agreed to by the Assignor and the Assignee
has not been satisfied.
---------
(4) To be included only if consent must be obtained from the Borrower
pursuant to Section 12.3.1 of the Credit Agreement.
--------------
- 70 -
4. The Assignor and the Assignee hereby give to the Borrower
and the Agent notice of the assignment and delegation referred to herein.
The Assignor will confer with the Agent before _________, 19__ to determine
if the Assignment Agreement will become effective on such date pursuant to
Section 3 hereof, and will confer with the Agent to determine the Effective
---------
Date pursuant to Section 3 hereof if it occurs thereafter. The Assignor
---------
shall notify the Agent if the Assignment Agreement does not become effective
on any proposed Effective Date as a result of the failure to satisfy the
conditions precedent agreed to by the Assignor and the Assignee. At the
request of the Agent, the Assignor will give the Agent written confirmation
of the satisfaction of the conditions precedent.
5. The Assignor or the Assignee shall pay to the Agent on or
before the Effective Date the processing fee of $3,500 required by Section
-------
12.3.2 of the Credit Agreement.
------
6. If Notes are outstanding on the Effective Date, the
Assignor and the Assignee request and direct that the Agent prepare and
cause the Borrower to execute and deliver new Notes or, as appropriate,
replacements notes, to the Assignor and the Assignee. The Assignor and, if
applicable, the Assignee each agree to deliver to the Borrower the original
Note received by it from the Borrower appropriately legended upon its
receipt of a new Note in the appropriate amount.
7. The Assignee advises the Agent that notice and payment
instructions are set forth in Schedule 1 to the Assignment Agreement.
8. The Assignee hereby represents and warrants that none of
the funds, monies, assets or other consideration being used to make the
purchase pursuant to the Assignment are "plan assets" as defined under ERISA
and that its rights, benefits, and interests in and under the Credit
Documents will not be "plan assets" under ERISA.
- 71 -
9. The Assignee authorizes the Agent to act as its agent
under the Credit Documents in accordance with the terms thereof. The
Assignee acknowledges that the Agent has no duty to supply information with
respect to the Borrower or the Credit Documents to the Assignee until the
Assignee becomes a party to the Credit Agreement.
NAME OF ASSIGNOR NAME OF ASSIGNEE
By: By:
-------------------------- -----------------------
Title: Title:
---------------------- --------------------
ACKNOWLEDGED [AND CONSENTED TO] ACKNOWLEDGED [AND CONSENTED TO]
BY [NAME OF AGENT AND LC ISSUER] BY [NAME OF BORROWER]
By: By:
------------------------- -----------------------
Title: Title:
---------------------- --------------------
- 72 -
SCHEDULE "I"
EUROCURRENCY PAYMENT OFFICES
- 73 -
SCHEDULE "1"
1. SUBSIDIARIES AND OTHER INVESTMENTS
2. (See Sections 5.8 and 6.15)
AMOUNT OF PERCENT JURISDICTION OF
INVESTMENT IN OWNED BY INVESTMENT OWNERSHIP ORGANIZATION
---------- --------- ------------
Xxxxxxx Denver Borrower $1,000 100% Delaware
International, Inc.
("GDII")
Xxxxxxx Denver Borrower $1,000 100% Barbados
Export, Inc.
Xxxxxxx Denver GDII $4,810 0.2% Ontario, Canada
Canada, Inc. Xxxxxx 99.8%
Xxxxxxx Denver Borrower $16,904,000 100% Delaware
Holdings, Inc.
("GDHI")
Xxxxxx Corporation GDHI $12,728,000 100% New York
("Xxxxxx")
Xxxxxxx Denver SA GDHI $100,000 99.6% France
("GDSA") Borrower 0.4%
TCM Investments, Inc. Borrower $7,842,000 100% Oklahoma
("TCMI")
Adex, Inc. TCMI $58,000 100% Oklahoma
(DISSOLVED 12/1/97)
Xxxxxxx Denver, Ltd. Borrower $2,000 100% United Kingdom
("GDLTD")
Xxxxxxx Denver Oy GDII FIM 25,400 100% Finland
("GDOY")
Xxxxxxx Denver Ky Partnership 100% Finland
owned by
GDOY and
GDII
Oy Tamrotor Ab GDOY FIM 135,070,000 100% Finland
(LIQUIDATED TO GDOY 9/30/99)
- 74 -
AMOUNT OF PERCENT JURISDICTION OF
INVESTMENT IN OWNED BY INVESTMENT OWNERSHIP ORGANIZATION
---------- --------- ------------
Kompressorit Oy GDOY FIM 2,491,000 51% Finland
MAPRO International GDSA Lire 170,949,000 24.2% Italy
Xxxxxxx Denver GDII DEM 100,000 100% Germany
(Deutschland) GmbH
("GDD")
Xxxxxxx Denver GDD DEM 19,428,000 100% Germany
Xxxxxx GmbH
Xxxxxxx Denver GDD DEM 50,000 100% Germany
Kompressoren GmbH
Xxxxxxx Denver Borrower $9,170,000 100% Texas
Water Jetting
Systems, Inc.
(f.k.a. Butterworth
Jetting Systems, Inc.)
("GDWJ")
Jetting Systems & Borrower $1,500,000 100% Texas
Accessories, Inc.
(MERGED WITH GDWJ 9/22/00)
CRS Power Flow, Inc. Borrower $11,000,000 100% Texas
(MERGED WITH GDWJ 4/30/01)
Xxxxx-Xxxxxx Borrower $8,350,000 100% Texas
Equipment Co., Inc.
Air Relief, Inc. Borrower $23,990,000 100% Kentucky
("ARI")
Air Relief South ARI 60% South Africa
Africa (Pty.) Ltd.
Xxxxxxx Denver Nova Borrower $1,000 90% Nova Scotia, Canada
Scotia, ULC GDII 10%
("GDNS")
Hamworthy Belliss & GDNS To Be Determined 100% Ontario, Canada
Xxxxxx Canada Limited ("TBD")
- 75 -
AMOUNT OF PERCENT JURISDICTION OF
INVESTMENT IN OWNED BY INVESTMENT OWNERSHIP ORGANIZATION
---------- --------- ------------
Hamworthy Belliss & GDII TBD 99% Sao Paulo,
Xxxxxx Brasil Ltda. Borrower 1% Brazil
Xxxxxx & Xxxxxx Borrower XXX 000% Xxxxxxxx
(XXX) Inc.
Xxxxxx & Xxxxxx GDLTD TBD 100% United Kingdom
Limited
Hamworthy Xxxxxx & GDLTD TBD 100% United Kingdom
Xxxxxx Limited
Xxxxxxx Denver GDLTD TBD 100% United Kingdom
Xxxxxxx, Ltd.
- 76 -
SCHEDULE "2"
INDEBTEDNESS AND LIENS
(SEE SECTIONS 5.14, 6.12 AND 6.17)
PROPERTY MATURITY AND
INDEBTEDNESS INDEBTEDNESS ENCUMBERED AMOUNT OF
INCURRED BY OWED TO ( IF ANY ) INDEBTEDNESS
---------- ------------
Xxxxxx (Assumed by Illinois Department of PP&E $74,513
Borrower) Commerce and Community December 15, 2001
Affairs
Borrower Metropolitan Life None $30,000,000
Insurance Company September 26, 2006
Borrower Fayette County Industrial Letter of credit $8,000,000
Revenue Bonds issued by Bank of March 1, 2018
America with
associated pledge
agreement.
- 77 -
SCHEDULE "3"
LITIGATION AND ENVIRONMENTAL MATTERS
(SEE SECTIONS 5.7, 5.13 AND 7.11)
NONE
- 78 -
