Exhibit 10(a)
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TERM LOAN AGREEMENT
BETWEEN
THE VALSPAR CORPORATION
AND
CREDIT LYONNAIS NEW YORK BRANCH
DATED AS OF FEBRUARY 9, 2004
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TABLE OF CONTENTS
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PAGE
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ARTICLE 1
DEFINITIONS
SECTION 1.1. DEFINED TERMS...................................................1
SECTION 1.2. OTHER INTERPRETIVE PROVISIONS...................................8
SECTION 1.3. ACCOUNTING PRINCIPLES...........................................9
ARTICLE 2
THE TERM LOAN
SECTION 2.1. THE TERM LOAN...................................................9
SECTION 2.2. EVIDENCE OF DEBT................................................9
SECTION 2.3. PROCEDURE FOR BORROWING.........................................9
SECTION 2.4. PREPAYMENT......................................................9
SECTION 2.5. REPAYMENT......................................................10
SECTION 2.6. INTEREST.......................................................10
SECTION 2.7. FEES...........................................................10
SECTION 2.8. COMPUTATION OF INTEREST AND FEES...............................11
SECTION 2.9. PAYMENTS BY THE COMPANY........................................11
ARTICLE 3
TAXES, YIELD PROTECTION AND ILLEGALITY
SECTION 3.1. TAXES..........................................................11
SECTION 3.2. ILLEGALITY.....................................................13
SECTION 3.3. INCREASED COSTS AND REDUCTION OF RETURN........................14
SECTION 3.4. FUNDING LOSSES.................................................14
SECTION 3.5. INABILITY TO DETERMINE RATES...................................15
SECTION 3.6. CERTIFICATES OF BANK...........................................15
SECTION 3.7. SURVIVAL.......................................................15
ARTICLE 4
CONDITIONS PRECEDENT
SECTION 4.1. CONDITIONS OF CLOSING DATE.....................................16
SECTION 4.2. CONDITIONS TO ALL LOANS........................................16
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
SECTION 5.1. CORPORATE EXISTENCE AND POWER...................................17
SECTION 5.2. CORPORATE AUTHORIZATION; NO CONTRAVENTION.......................18
SECTION 5.3. GOVERNMENTAL AUTHORIZATION......................................18
SECTION 5.4. BINDING EFFECT..................................................18
SECTION 5.5. LITIGATION......................................................18
SECTION 5.6. NO DEFAULT......................................................19
SECTION 5.7. (INTENTIONALLY OMITTED).........................................19
SECTION 5.8. USE OF PROCEEDS; MARGIN REGULATIONS.............................19
SECTION 5.9. TITLE TO PROPERTIES.............................................19
SECTION 5.10. TAXES...........................................................19
SECTION 5.11. (INTENTIONALLY OMITTED).........................................19
SECTION 5.12. REGULATED ENTITIES..............................................19
SECTION 5.13. COPYRIGHTS, PATENTS, TRADEMARKS AND LICENSES, ETC...............19
SECTION 5.14. FINANCIAL INFORMATION...........................................19
ARTICLE 6
AFFIRMATIVE COVENANTS
SECTION 6.1. FINANCIAL STATEMENTS............................................20
SECTION 6.2. CERTIFICATES; OTHER INFORMATION.................................21
SECTION 6.3. NOTICES.........................................................21
SECTION 6.4. PRESERVATION OF CORPORATE EXISTENCE, ETC........................22
SECTION 6.5. INSURANCE.......................................................22
SECTION 6.6. PAYMENT OF OBLIGATIONS..........................................22
SECTION 6.7. COMPLIANCE WITH LAWS............................................22
SECTION 6.8. INSPECTION OF PROPERTY AND BOOKS AND RECORDS....................23
SECTION 6.9. USE OF PROCEEDS.................................................23
SECTION 6.10. MINIMUM SHAREHOLDERS' EQUITY....................................23
ARTICLE 7
NEGATIVE COVENANTS
SECTION 7.1. LIMITATION ON LIENS.............................................23
SECTION 7.2. DISPOSITION OF ASSETS; CONSOLIDATIONS AND MERGERS...............24
SECTION 7.3. PARI PASSU RANKING; BENEFIT OF GUARANTEES AND SECURITY..........24
SECTION 7.4. TRANSACTIONS WITH AFFILIATES....................................24
SECTION 7.5. MARGIN STOCK....................................................24
SECTION 7.6. RATIO OF CONSOLIDATED DEBT TO CONSOLIDATED EBITDA...............24
SECTION 7.7. RESTRICTED PAYMENTS.............................................24
ARTICLE 8
EVENTS OF DEFAULT
SECTION 8.1. EVENT OF DEFAULT................................................25
SECTION 8.2. RIGHTS AND REMEDIES.............................................26
SECTION 8.3. RIGHTS NOT EXCLUSIVE............................................26
ARTICLE 9
MISCELLANEOUS
SECTION 9.1. AMENDMENTS AND WAIVERS..........................................27
SECTION 9.2. NOTICES.........................................................27
SECTION 9.3. NO WAIVER; CUMULATIVE REMEDIES..................................27
SECTION 9.4. COSTS AND EXPENSES..............................................28
SECTION 9.5. INDEMNITY.......................................................28
SECTION 9.6. MARSHALLING; PAYMENTS SET ASIDE.................................29
SECTION 9.7. SUCCESSORS AND ASSIGNS..........................................29
SECTION 9.8. ASSIGNMENTS.....................................................29
SECTION 9.9. SET-OFF.........................................................29
SECTION 9.10. COUNTERPARTS....................................................30
SECTION 9.11. SEVERABILITY....................................................30
SECTION 9.12. NO THIRD PARTIES BENEFITED......................................30
SECTION 9.13. GOVERNING LAW AND JURISDICTION..................................30
SECTION 9.14. WAIVER OF JURY TRIAL............................................31
SECTION 9.15. ENTIRE AGREEMENT................................................31
TERM LOAN AGREEMENT
This TERM LOAN AGREEMENT is entered into as of February 9, 2004, The
Valspar Corporation, a Delaware corporation (the "Company") and Credit Lyonnais
New York Branch (the "Bank").
WHEREAS, the Bank has agreed to make available to the Company (or to
certain Subsidiaries of the Company, subject to the terms hereof) a term loan
upon the terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, the parties agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1. DEFINED TERMS. In addition to the terms defined elsewhere
in this Agreement, the following terms have the following meanings:
"ADJUSTED EURIBO RATE" means, with respect to any Interest Period, an
interest rate per annum (rounded upwards, if necessary, to the next 1/16th of
1%) equal to (i) the EURIBO Rate for such Interest Period multiplied by (ii) the
Reserve Requirement.
"AFFILIATE" means, as to any Person, (i) any other Person which
directly, or indirectly through one or more intermediaries, controls such
Person, (ii) any other Person which directly, or indirectly through one or more
intermediaries, is controlled by, or is under common control with, such Person
or (iii) any other Person or which such Person owns, directly or indirectly, 20%
or more of the common stock or equivalent equity interests. As used herein, the
term "control" means possession, directly or indirectly, of the power to direct
or cause the direction of the management or policies of a Person, whether
through the ownership of voting securities, by contract or otherwise.
"AGREEMENT" means this Term Loan Agreement, as amended or supplemented
from time to time in accordance with the terms hereof.
"APPLICABLE MARGIN" means, for any day, the applicable rate per annum
set forth below under the caption "Margin" based upon the ratings by Moody's and
S&P, respectively, applicable on such date to the Index Debt:
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LEVEL INDEX DEBT RATINGS MARGIN
(S&P / MOODY'S)
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I Greater than BBB+ / BAA 1 0.40%
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II BBB+ / BAA 1 0.50%
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III BBB / BAA 2 0.725%
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IV BBB- / BAA 3 1.10%
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V Less than BBB- / BAA 3 1.50%
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If at any time the ratings for the Index Debt as determined by Moody's
and S&P differ by one level, the lower Applicable Margin shall apply; PROVIDED,
HOWEVER, that if such ratings differ by more than one level, the Applicable
Margin shall be determined by reference to the level immediately above the
lowest level.
"AVAILABILITY PERIOD" means the period beginning on the Closing Date
and ending not more than 45 days thereafter, but in any event, no later than
April 2, 2004.
"BANK" has the meaning specified in the introductory clause hereto.
"BANKRUPTCY CODE" means the Federal Bankruptcy Reform Act of 1978 (11
U.S.C. ss.101, et seq.).
"BANK'S PAYMENT OFFICE" means the address for payments specified as
such on the signature page hereto in relation to the Bank or such other address
as the Bank may from time to time specify in accordance with Section 9.2.
"BUSINESS DAY" means any day other than a Saturday, Sunday or other
day on which (i) commercial banks in New York City are authorized or required by
law to close, (ii) dealings are not carried on in the London interbank market
and (iii) the Trans-European Automated Real-Time Gross Settlement Express
Transfer (TARGET) System is not open.
"CAPITAL ADEQUACY REGULATION" means any guideline, request or directive
of any central bank or other Governmental Authority, or any other law, rule or
regulation, whether or not having the force of law, in each case, regarding
capital adequacy of any bank or of any corporation controlling a bank.
"CLOSING DATE" means the date on which all conditions precedent set
forth in Section 4.1 are satisfied or waived by the Bank.
"CODE" means the Internal Revenue Code of 1986, as amended, and
regulations promulgated thereunder.
"COMPANY" has the meaning ascribed to that term in the preamble and
recitals hereto.
"CONTINGENT OBLIGATION" as to any Person, any guarantee of payment by
such Person of any Indebtedness or other obligation of any other Person, or any
agreement to provide financial assurance with respect to the financial
condition, or the payment of the obligations of, such other
Person which has the effect of assuring or holding harmless any third Person
against loss with respect to one or more obligations of such other Person to
such third Person; PROVIDED, HOWEVER, that the term Contingent Obligation shall
not include endorsements of instruments for deposit or collection in the
ordinary course of business.
"CONTRACTUAL OBLIGATIONS" means, as to any Person, any provision of any
security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument, document or agreement to
which such Person is a party or by which it or any of its property is bound and
which is material to such Person.
"DEFAULT" means any event or circumstance which, with the giving of
notice, the lapse of time, or both, would (if not cured or otherwise remedied
during such time) constitute an Event of Default.
"EMU LEGISLATION" means the legislative measures of the European Union
for the introduction of, changeover to, or operation of the Euro in one or more
member states.
"EURIBO RATE" means, with respect to any Interest Period, the Euro
interbank offered rate per annum determined by reference to the Banking
Federation of the European Union for deposits with a maturity comparable to such
Interest Period denominated in Euro, as reflected on page 248 of the Telerate
Service (or on any successor or substitute page of such Service, or any
successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as
determined by the Bank from time to time for purposes of providing quotations of
interest rates applicable to deposits in Euro in the European interbank market)
at approximately 10:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for Euro deposits with a
maturity comparable to such Interest Period.
"EURIBO RATE LOAN" refers to a Loan that bears interest based on the
Adjusted EURIBO Rate.
"EURO" or "(EURO)" means the single currency of the Participating
Member States of the European Union as constituted by the Treaty on European
Union and as referred to in the EMU Legislation.
"EVENT OF DEFAULT" has the meaning specified in Section 8.1.
"FEDERAL RESERVE BOARD" means the Board of Governors of the Federal
Reserve System, or any entity succeeding to any of its principal functions.
"FINAL MATURITY DATE" means November 17, 2005; PROVIDED that if such
date is not a Business Day, the "FINAL MATURITY DATE" shall be the next
preceding Business Day.
"GAAP" means generally accepted accounting principles set forth from
time to time in the opinions and pronouncements of the Accounting Principles
Board and the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within the accounting
profession), or in such other statements by such other entity as may be in
general
use by significant segments of the U.S. accounting profession, which are
applicable to the circumstances as of the date of determination.
"GOVERNMENTAL AUTHORITY" means any nation or government, any state or
other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government,
and any corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
"INDEBTEDNESS" of any Person at any date: (a) all indebtedness of such
Person for borrowed money or for the deferred purchase price of property or
services (other than current trade liabilities incurred in the ordinary course
of business and payable in accordance with customary practices), (b) any other
indebtedness which is evidenced by a note, bond, debenture or similar
instrument, (c) all capital lease obligations of such Person, (d) all
obligations of such Person in respect of outstanding letters of credit,
acceptances and similar obligations created for the account of such Person, (e)
all liabilities secured by any Lien on any property owned by such Person even
though such Person has not assumed or otherwise become liable for the payment
thereof, (f) all Contingent Obligations of such Person and (g) net liabilities
of such Person under interest rate cap agreements, interest rate swap
agreements, foreign currency exchange agreements and other hedging agreements or
arrangements (calculated on a basis satisfactory to the Bank and in accordance
with accepted industry practice). The Indebtedness of any Person shall include
any Indebtedness of any partnership in which such Person is the general partner.
"INDEMNIFIED PERSON" has the meaning specified in subsection 9.5.
"INDEMNIFIED LIABILITIES" has the meaning specified in subsection 9.5.
"INDEX DEBT" means the senior, unsecured, long-term indebtedness for
borrowed money of the Company that is not guaranteed by any other Person or
subject to any other credit enhancement.
"INSOLVENCY PROCEEDING" means (a) any case, action or proceeding before
any court or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution, winding-up
or relief of debtors, or (b) any general assignment for the benefit of
creditors, composition, marshalling of assets for creditors, or other, similar
arrangement in respect of its creditors generally or any substantial portion of
its creditors; in each case (a) and (b) undertaken under U.S. Federal, State or
foreign law, including the Bankruptcy Code.
"INTEREST PAYMENT DATE" means the last day of each Interest Period;
PROVIDED that for Interest Periods of more than three months' duration,
"Interest Payment Date" shall mean the end of each three month period.
"INTEREST PERIOD" means the period commencing on the date a Loan is
made, converted from another type of Loan or renewed, as the case may be, and
ending on the numerically corresponding day on the date which is one, two, three
or six months thereafter; PROVIDED that (a) each such Interest Period which
commences on the last Business Day of a calendar month (or on
any day for which there is no numerically corresponding day in the last calendar
month of such Interest Period) shall end on the last Business Day of the last
calendar month of such Interest Period and (b) if any Interest Period would end
on a day other than a Business Day, such Interest Period shall be advanced to
end on the next preceding Business Day.
"LENDING OFFICE" means the office or offices of the Bank as the Bank
may from time to time specify as its "Lending Office" by notice to the Company.
"LIEN" any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), other charge or security
interest or any preference, priority or other agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement or any capital lease
obligation having substantially the same economic effect as any of the
foregoing).
"LOAN" has the meaning specified in subsection 2.1.
"LOAN DOCUMENTS" means this Agreement and all other documents delivered
to the Bank by the Company in connection herewith and therewith.
"MARGIN STOCK" means "margin stock" as such term is defined in
Regulation T, U or X of the Federal Reserve Board.
"MATERIAL ADVERSE EFFECT" means (a) a material adverse change in, or a
material adverse effect upon, the business, assets, liabilities (actual or
contingent), operations, condition (financial or otherwise) or prospects of the
Company or the Company and its Subsidiaries taken as a whole; or (b) a material
adverse effect upon the legality, validity, binding effect or enforceability of
this Agrement or any other Loan Document, or on the ability of the Company to
perform its obligations hereunder or thereunder.
"MOODY'S means Xxxxx'x Investors Service, Inc.
"OBLIGATIONS" means the Loans and all other advances, debts,
liabilities, obligations, covenants and duties owing by the Company to the Bank
or any other Person required to be indemnified, that arises under any Loan
Document, whether or not for the payment of money, whether arising by reason of
an extension of credit, loan, guaranty, indemnification or in any other manner,
whether direct or indirect (including those acquired by assignment), absolute or
contingent, due or to become due, now existing or hereafter arising and however
acquired.
"ORDINARY COURSE OF BUSINESS" means, in respect of any transaction
involving the Company or any Subsidiary of the Company, the ordinary course of
such Person's business, as conducted by any such Person and undertaken by such
Person in good faith and not for purposes of evading any covenant or restriction
in any Loan Document.
"ORGANIZATION DOCUMENTS" means, for any corporation, the certificate or
articles of incorporation, the bylaws, any certificate of determination or
instrument relating to the rights of preferred shareholders of such corporation
and any shareholder rights agreement.
"OTHER TAXES" has the meaning specified in subsection 3.1(b).
"PERSON" means an individual, partnership, corporation, business
trust, limited liability company, joint stock company, trust, unincorporated
association, joint venture or Governmental Authority.
"PREPAYMENT FEE" has the meaning specified in Section 2.7
"PROPERTY" means any estate or interest in any kind of property or
asset, whether real, personal or mixed, and whether tangible or intangible.
"REQUIREMENT OF LAW" means, as to any Person, any law (statutory or
common), treaty, rule or regulation or determination of an arbitrator or of a
Governmental Authority, in each case applicable to or binding upon the Person or
any of its property or to which the Person or any of its property is subject.
"RESERVE REQUIREMENT" means the aggregate of the maximum reserve
percentages (including any marginal, special, emergency or supplemental
reserves) expressed as a decimal established by the Board of Governors of the
Federal Reserve System to which the Bank is subject for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D of said
Board). Such reserve percentages shall include those imposed pursuant to such
Regulation D. A Loan based upon the Adjusted EURIBO Rate shall be deemed to
constitute eurocurrency funding and to be subject to such reserve requirements
without benefit of or credit for proration, exemptions or offsets that may be
available from time to time to the Bank under such Regulation D or any
comparable regulation. The Reserve Requirement shall be adjusted automatically
on and as of the effective date of any change in any reserve percentage.
"RESPONSIBLE OFFICER" means the chief executive officer, any vice
chairman, the president, the chief financial officer, the treasurer or any
senior vice president of the Company.
"RESTRICTED PAYMENT" means (i) any dividend or other distribution on
any shares of the Company's capital stock (except dividends payable solely in
shares of its capital stock) or (ii) any payment on account of the purchase,
redemption, retirement or acquisition of any shares of the Company's capital
stock (except shares acquired upon the conversion thereof into other shares of
its capital stock).
"REVOLVING CREDIT AGREEMENT" means the Five-Year Credit Agreement,
dated as of November 17, 2000, as amended, among, INTER ALIA, the Company, the
borrowing subsidiaries party thereto, the lenders party thereto and The Chase
Manhattan Bank, as Administrative Agent, as the same may be amended or
supplemented hereafter, and any substitutions or replacements thereof.
"S&P means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc.
"SUBSIDIARY" of a Person means any corporation, association,
partnership, joint venture or other business entity of which more than 51% of
the voting stock or other equity interests (in the case of Persons other than
corporations), is owned or controlled directly or indirectly by the Person, or
one or more of the Subsidiaries of the Person, or a combination thereof.
"SUBSTITUTE RATE" has the meaning specified in subsection 3.2(c).
"TAXES" has the meaning specified in subsection 3.1(a).
"TERM LOAN" has the meaning ascribed to that term in Section 2.1.
"UNITED STATES" and "U.S." each means the United States of America.
SECTION 1.2. OTHER INTERPRETIVE PROVISIONS.
(a) DEFINED TERMS. Unless otherwise specified herein, capitalized terms
used herein and not otherwise defined shall have the meaning ascribed thereto in
the Revolving Credit Agreement (including, without limitation, for purposes of
calculating compliance with Sections 6.10 and 7.6 of this Agreement) or in any
certificate or other document made or delivered pursuant hereto, as applicable.
The meaning of defined terms shall be equally applicable to the singular and
plural forms of the defined terms.
(b) THE AGREEMENT. The words "hereof", "herein", "hereunder" and words
of similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement; and subsection,
section, schedule and exhibit references are to this Agreement unless otherwise
specified.
(c) CERTAIN COMMON TERMS.
(i) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other
writings, however evidenced.
(ii) The term "including" is not limiting and means "including
without limitation."
(d) PERFORMANCE; TIME. Whenever any performance obligation hereunder
shall be stated to be due or required to be satisfied on a day other than a
Business Day, such performance shall be made or satisfied on the next succeeding
Business Day. In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including"; the words "to"
and "until" each mean "to but excluding", and the word "through" means "to and
including." If any provision of this Agreement refers to any action taken or to
be taken by any Person, or which such Person is prohibited from taking, such
provision shall be interpreted to encompass any and all means, direct or
indirect, of taking, or not taking, such action.
(e) CONTRACTS. Unless otherwise expressly provided herein, references
to agreements and other contractual instruments shall be deemed to include all
subsequent amendments and other modifications thereto, but only to the extent
such amendments and other modifications are not prohibited by the terms of any
Loan Document.
(f) LAWS. References to any statute or regulation are to be construed
as including all statutory and regulatory provisions consolidating, amending,
replacing, supplementing or interpreting the statute or regulation.
(g) CAPTIONS. The captions and headings of this Agreement are for
convenience of reference only and shall not affect the interpretation of this
Agreement.
(h) INDEPENDENCE OF PROVISIONS. The parties acknowledge that this
Agreement and other Loan Documents may use several different limitations, tests
or measurements to regulate the same or similar matters, and that such
limitations, tests and measurements are cumulative and must each be performed,
except as expressly stated to the contrary in this Agreement.
SECTION 1.3. ACCOUNTING PRINCIPLES. (a) Unless the context otherwise
clearly requires, all accounting terms not expressly defined herein shall be
construed, and all financial computations required under this Agreement shall be
made, in accordance with GAAP; PROVIDED, that if the Company requests an
amendment to any provisions hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Bank notifies the Company that it
requests an amendment to any provision hereof for such purpose), regardless of
whether any such notice is given before or after such change in GAAP or in the
application thereof, then such provision shall be interpreted on the basis of
GAAP as in effect and applied immediately before such change shall have become
effective until such notice shall have been withdrawn or such provision amended
in accordance herewith.
(b) References herein to "fiscal year" and "fiscal quarter" refer to
such fiscal periods of the Company.
ARTICLE 2
THE TERM LOAN
SECTION 2.1. TERM LOAN. Subject to the terms and conditions hereof, the
Bank agrees to make a term loan (the "TERM LOAN") to the Company during the
Availability Period in not more than three advances (each such advance, a
"LOAN") in the aggregate principal amount of not less than Thirty Million Euro
((euro)30,000,000) but not to exceed Forty Two Million Euro ((euro)42,000,000).
Amounts repaid or prepaid in respect of the principal of the Term Loan may not
be reborrowed.
SECTION 2.2. EVIDENCE OF DEBT. The Bank shall maintain in accordance
with its usual practice an account or accounts evidencing the indebtedness of
the Company to the Bank resulting from each Loan, including the amounts of
principal and interest payable and paid to the Bank from time to time hereunder.
The entries made in any such accounts shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Company therein recorded; PROVIDED, HOWEVER, that the failure
of the Bank to maintain any such account, or any error therein, shall not in any
manner affect the obligation of the Company to repay (with applicable interest)
the Loans made to the Company by the Bank in accordance with the terms of this
Agreement. The Company agrees that, upon the Bank's
request, the Company will execute and deliver to the Bank a promissory note in
form and substance reasonably satisfactory to the Bank and consistent with the
terms of this Agreement.
SECTION 2.3. PROCEDURE FOR BORROWING. The Borrowing of each Loan shall
be made upon the Company's irrevocable written notice delivered to the Bank in
accordance with Section 9.2, which notice must be received by the Bank prior to
11:00 a.m. (London time) three Business Days prior to the requested date of such
borrowing specifying the amount of such Loan to be borrowed and the applicable
Interest Period.
SECTION 2.4. PREPAYMENT. The Term Loan may be prepaid at any time in
whole or in part without premium or penalty, subject to compliance with Sections
2.7 and 3.4 hereof; PROVIDED, HOWEVER that partial prepayments shall be in
integral amounts of (euro)5,000,000. The Company shall give the Bank written
notice of such intended prepayment in accordance with Section 9.2 not less than
two (2) Business Days prior to the date of prepayment. Once given, such notice
of prepayment shall be irrevocable.
SECTION 2.5. REPAYMENT. The Company agrees to repay the Term Loan in
full on the Final Maturity Date.
SECTION 2.6. INTEREST. (a) Subject to Section 2.6(c), interest shall
accrue on the outstanding principal amount of the Term Loan for the period from
and including the date of each Loan to but excluding the date the Term Loan is
due at the Adjusted EURIBO Rate for each Interest Period plus the Applicable
Margin.
(b) Interest on each Loan shall be paid in arrears on each Interest
Payment Date. Interest shall also be paid upon payment or prepayment of the Term
Loan and, during the existence of any Event of Default, interest shall be paid
on demand.
(c) While any Event of Default exists or after acceleration, the
Company shall pay interest (after as well as before entry of judgment thereon to
the extent permitted by law) on the principal amount of all Obligations due and
unpaid, at a rate per annum equal to 2% per annum above the Adjusted EURIBO Rate
plus the Applicable Margin.
(d) Anything herein to the contrary notwithstanding, the obligations of
the Company hereunder shall be subject to the limitation that payments of
interest shall not be required, for any period for which interest is computed
hereunder, to the extent (but only to the extent) that contracting for or
receiving such payment by the Bank would be contrary to the provisions of any
law applicable to the Bank limiting the highest rate of interest which may be
lawfully contracted for, charged or received by the Bank, and in such event the
Company shall pay the Bank interest at the highest rate permitted by applicable
law.
SECTION 2.7. FEES. Upon any prepayment of the Loans as provided in
Section 2.4 which occurs prior to the date that is six (6) months after the date
of the initial Loan, the Company shall pay to the Bank a prepayment fee (the
"PREPAYMENT FEE") equal to 0.2% of the amount so prepaid.
SECTION 2.8. COMPUTATION OF INTEREST AND FEES. All computations of
interest and fees under this Agreement shall be made on the basis of a 360-day
year and actual days elapsed. Interest and fees shall accrue during each period
during which interest or such fees are computed from the first day thereof to
the last day thereof.
(c) Each determination of an interest rate by the Bank pursuant hereto
shall be conclusive and binding on the Company in the absence of manifest error.
The Bank will, at the request of the Company, deliver to the Company or the
Bank, as the case may be, a statement showing the quotations used by the Bank in
determining any interest rate.
SECTION 2.9. PAYMENTS BY THE COMPANY. (a) All payments (including
prepayments) to be made by the Company on account of principal, interest, fees
and other amounts required hereunder shall be made without set-off, recoupment
or counterclaim; shall, except as otherwise expressly provided herein, be made
to the Bank at the Bank's Payment Office, and shall be made in Euro and in
immediately available funds, no later than 5:00 p.m. (London time) on the date
specified herein. Any payment which is received by the Bank later than 5:00 p.m.
(London time) shall be deemed to have been received on the immediately
succeeding Business Day and any applicable interest or fee shall continue to
accrue.
(b) Whenever any payment hereunder shall be stated to be due on a day
other than a Business Day, such payment shall be made on the next succeeding
Business Day, and such extension of time shall in such case be included in the
computation of interest or fees, as the case may be; subject to the provisions
set forth in the definition of "Interest Period" herein.
ARTICLE 3
TAXES, YIELD PROTECTION AND ILLEGALITY
SECTION 3.1. TAXES. (a) Subject to subsection 3.1(g), any and all
payments by the Company to the Bank under this Agreement shall be made free and
clear of, and without deduction or withholding for, any and all present or
future taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding such taxes (including income taxes
or franchise taxes) as are imposed on or measured by the Bank's net income by
the jurisdiction under the laws of which the Bank is organized or maintains a
Lending Office or any political subdivision thereof (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "TAXES").
(b) In addition, the Company shall pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement or any
other Loan Documents (hereinafter referred to as "OTHER TAXES"). If the Bank
becomes aware of the imposition of Other Taxes, it shall promptly notify the
Company thereof.
(c) Subject to subsection 3.1(g), the Company shall indemnify and hold
harmless the Bank for the full amount of Taxes or Other Taxes (including any
Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this
Section 3.1) paid by the Bank and any liability (including penalties, interest,
additions to tax and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted.
Payment under this indemnification shall be made within 30 days from the date
the Bank makes written demand therefor.
(d) If the Company shall be required by law to deduct or withhold any
Taxes or Other Taxes from or in respect of any sum payable hereunder to the
Bank, then, subject to subsection 3.1(g):
(i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable
to additional sums payable under this Section 3.1) the Bank receives an
amount equal to the sum it would have received had no such deductions
been made;
(ii) the Company shall make such deductions; and
(iii) the Company shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with
applicable law.
(e) Within 30 days after the date of any payment by the Company of
Taxes or Other Taxes, the Company shall furnish to the Bank evidence of payment
satisfactory to the Bank.
(f) The Bank agrees to deliver to the Company at the time or times
prescribed by applicable law such properly completed and executed documentation
prescribed by applicable law or reasonably requested by the Company as will
permit payments under this Agreement and the other Loan Documents to be made
without withholding or at a reduced rate
(g) The Company will not be required to pay any additional amounts in
respect of United States Federal income tax pursuant to subsection 3.1(d) to the
Bank for the account of any Lending Office of the Bank if the obligation to pay
such additional amounts would not have arisen but for a failure by the Bank to
comply with its obligations under subsection 3.1(f);
(h) If the Company is required to pay additional amounts to the Bank
pursuant to subsection 3.1(b) or 3.1(d), then the Bank shall use its reasonable
best efforts (consistent with legal and regulatory restrictions) to change the
jurisdiction of its Lending Office or to take other reasonable action so as to
eliminate any such additional payment by the Company which may thereafter accrue
if such change or action in the judgment of the Bank is not otherwise
disadvantageous to the Bank.
SECTION 3.2. ILLEGALITY. (a) If the Bank shall reasonably determine,
based upon the advice of its counsel, that the introduction of any Requirement
of Law, or any change in any Requirement of Law or in the interpretation or
administration thereof, has made it unlawful, or that any central bank or other
Governmental Authority has asserted that it is unlawful, for the
Bank or its Lending Office to make any EURIBO Rate Loan, then, on notice thereof
by the Bank to the Company, the obligation of the Bank to make such EURIBO Rate
Loan shall be suspended until the Bank shall have notified the Company that the
circumstances giving rise to such determination no longer exist.
(b) If the Bank shall reasonably determine, based upon the advice of
its counsel, that it is unlawful to maintain any EURIBO Rate Loan, then, on
notice thereof by the Bank to the Company, the Company shall prepay in full such
EURIBO Rate Loan then outstanding, together with interest accrued thereon,
either on the last day of the current Interest Period thereof if the Bank may
lawfully continue to maintain such EURIBO Rate Loan to such day, or immediately,
if the Bank may not lawfully continue to do so, together with any amounts
required to be paid in connection therewith pursuant to Section 3.4.
(c) INTENTIONALLY OMITTED.
(d) If the obligation of the Bank to make a EURIBO Rate Loan has been
suspended as provided in subsection 3.2(a), the Company may elect, by giving
notice to the Bank that such Loan shall be instead be made initially as a Loan
that accrues interest at a rate that reflects, as closely as practicable, the
Bank's cost of funds (the "SUBSTITUTE RATE"), plus the Applicable Margin.
(e) If the Company elects pursuant to subsection 3.2(d) to borrow a
Loan that accrues interest at the Substitute Rate, plus the Applicable Margin,
such Loan shall continue as such unless and until the Bank shall notify the
Company that the condition or conditions that gave rise to such requirement or
election have ceased to exist and that such Loan may be made or maintained as a
EURIBO Rate Loan. Upon the giving of such notice by the Bank to the Company, the
Company shall prepay in full such Substitute Rate Loan then outstanding,
together with interest accrued thereon, and, concurrently with such prepayment,
the Company shall borrow from the Bank, in the amount of such repayment, a
EURIBO Rate Loan.
(f) Before giving any notice to the Company pursuant to this Section
3.2, the Bank shall designate a different Lending Office with respect to such
EURIBO Rate Loan if such designation will avoid the need for giving such notice
or making such demand and will not, in the judgment of the Bank, be illegal or
otherwise disadvantageous to the Bank.
SECTION 3.3. INCREASED COSTS AND REDUCTION OF RETURN. (a) If on or
after the date hereof the Bank shall reasonably determine that, due to and as a
direct result of either (i) the introduction of or any change (other than any
change by way of imposition of or increase in reserve requirements included in
the calculation of Adjusted EURIBO Rate) in or in the interpretation of any law
or regulation or (ii) the compliance with any guideline or request from any
central bank or other Governmental Authority (whether or not having the force of
law), there shall be any increase in the cost to the Bank of agreeing to make or
making, funding or maintaining the Term Loan, then the Company shall be liable
for, and shall from time to time, upon demand therefor by the Bank, pay to the
Bank, additional amounts as are sufficient to compensate the Bank for such
increased costs.
(b) If after the date hereof the Bank shall have reasonably determined
that (i) the introduction of any Capital Adequacy Regulation, (ii) any change in
any Capital Adequacy Regulation, (iii) any change in the interpretation or
administration of any Capital Adequacy Regulation by any central bank or other
Governmental Authority charged with the interpretation or administration
thereof, or (iv) compliance by the Bank (or its Lending Office) or any
corporation controlling the Bank, with any Capital Adequacy Regulation, affects
or would affect the amount of capital required or expected to be maintained by
the Bank or any corporation controlling the Bank and (taking into consideration
the Bank's or such corporation's policies with respect to capital adequacy and
the Bank's desired return on capital) determines that the amount of such capital
is increased as a consequence of the Term Loan, credits or obligations under
this Agreement, then, upon demand of the Bank, the Company shall upon demand pay
to the Bank, from time to time as specified by the Bank, additional amounts
sufficient to compensate the Bank for such increase.
(c) If the Company is required to pay additional amounts to the Bank
pursuant to subsection 3.3(a) or (b), then the Bank shall use its reasonable
efforts (consistent with legal and regulatory restrictions) to designate a
different Lending Office so as to eliminate any such additional payment by the
Company which may thereafter accrue if such change in the judgment of the Bank
is not otherwise disadvantageous to the Bank.
SECTION 3.4. FUNDING LOSSES. The Company agrees to reimburse the Bank
and to hold the Bank harmless from any loss or out-of-pocket expense which the
Bank may sustain or incur as a direct consequence of:
(a) the failure of the Company to make on a timely basis any payment
of principal of a EURIBO Rate Loan (including payments made after any
acceleration thereof);
(b) the failure of the Company to borrow any Loan after the Company
has given a notice of borrowing or is required to borrow such Loan;
(c) the failure of the Company to prepay a Loan after the Company has
given a notice in accordance with Section 2.4;
(d) any principal payment or prepayment in respect of a EURIBO Rate
Loan on a day which is not the last day of the Interest Period with respect
thereto; or
(e) the conversion pursuant to Section 3.2(d) of a EURIBO Rate Loan to
a Loan based upon the Substitute Rate on a day that is not the last day of the
respective Interest Period;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain such EURIBO Rate Loan hereunder or from
standard fees payable to terminate the deposits from which such funds were
obtained. Solely for purposes of calculating amounts payable by the Company to
the Bank under this Section 3.4, such EURIBO Rate Loan (and each related
reserve, special deposit or similar requirement) shall be conclusively deemed to
have been funded at the EURIBO Rate used in determining the Adjusted EURIBO Rate
for such EURIBO Rate Loan by a matching deposit or other borrowing in the
European interbank market
for a comparable amount and for a comparable period, whether or not such EURIBO
Rate Loan is in fact so funded.
SECTION 3.5. INABILITY TO DETERMINE RATES. If the Bank shall have
determined (i) that for any reason adequate and reasonable means do not exist
for ascertaining the EURIBO Rate for any Interest Period with respect to a
EURIBO Rate Loan or (ii) that the EURIBO Rate applicable pursuant to subsection
2.6(a) for any Interest Period with respect to such EURIBO Rate Loan does not
adequately and fairly reflect the cost to the Bank of funding such Loan, the
Bank will forthwith give notice of such determination to the Company.
Thereafter, the obligation of the Bank to make or maintain such EURIBO Rate Loan
hereunder shall be suspended until the Bank revokes such notice in writing. If a
Loan has not then been made, the Company may elect, by giving notice to the
Bank, that the initial Loan shall be instead be made as a Loan based upon the
Substitute Rate, plus the Applicable Margin. If any Loan is then outstanding as
a EURIBO Rate Loan, the Company shall prepay in full (without any liability for
a Prepayment Fee) such EURIBO Rate Loan then outstanding, together with interest
accrued thereon, on the last day of the current Interest Period thereof, and,
concurrently with such prepayment, the Company may elect to borrow from the
Bank, in the amount of such repayment, a Loan based upon the Substitute Rate. If
the Company elects pursuant to this Section 3.5, to borrow a Loan based upon the
Substitute Rate, such Loan shall continue as such unless and until the Bank
shall notify the Company that the condition or conditions that gave rise to such
requirement or election have ceased to exist and that Loans may be made or
maintained as EURIBO Rate Loans. Upon the giving of such notice by the Bank to
the Company, the Company shall prepay in full (without any liability for a
Prepayment Fee) such Substitute Rate Loan then outstanding, together with
interest accrued thereon, and, concurrently with such prepayment, the Company
may elect to borrow from the Bank, in the amount of such repayment, a EURIBO
Rate Loan.
SECTION 3.6. CERTIFICATES OF BANK. If the Bank claims reimbursement or
compensation pursuant to this Article 3 it shall deliver to the Company a
certificate setting forth in reasonable detail the basis for and the computation
of the amount payable to the Bank hereunder and such certificate shall be
conclusive and binding on the Company in the absence of manifest error.
SECTION 3.7. SURVIVAL. The agreements and obligations of the Company in
this Article 3 shall survive the payment of all other Obligations and
termination of this Agreement and any other Loan Document.
ARTICLE 4
CONDITIONS PRECEDENT
SECTION 4.1. CONDITIONS OF CLOSING DATE. The obligation of the Bank to
make the initial Loan hereunder is subject to the condition that the Bank shall
have received on or before the Closing Date all of the following, in form and
substance satisfactory to the Bank:
(a) TERM LOAN AGREEMENT. This Agreement duly executed by the Company
and the Bank;
(b) RESOLUTIONS; INCUMBENCY.
(i) Copies of the resolutions of the board of directors of the
Company approving and authorizing the execution, delivery and
performance by the Company of this Agreement and the other Loan
Documents to be delivered hereunder, and authorizing the borrowing of
the Loans, certified as of the Closing Date by the Secretary or an
Assistant Secretary of the Company; and
(ii) A certificate of the Secretary or Assistant Secretary of
the Company, certifying the names and true signatures of the officers
of the Company authorized to execute, deliver and perform, as
applicable, this Agreement, and all other Loan Documents to be
delivered hereunder;
(c) ARTICLES OF INCORPORATION; BY-LAWS AND GOOD STANDING. Each of the
following documents:
(i) the articles or certificate of incorporation of the
Company as in effect on the Closing Date, certified by the Secretary or
Assistant Secretary of the Company as of the Closing Date, and the
bylaws of the Company as in effect on the Closing Date, certified by
the Secretary or Assistant Secretary of the Company as of the Closing
Date; and
(ii) a good standing certificate for the Company from the
Secretary of State (or similar, applicable Governmental Authority) of
its state of incorporation as of a recent date, together with a
bring-down certificate by facsimile, dated the Closing Date;
(d) LEGAL OPINIONS. A legal opinion of counsel of the Company,
addressed to the Bank, in form and substance satisfactory to the Bank;
(e) CERTIFICATE. A certificate signed by a Responsible Officer, dated
as of the Closing Date, stating that:
(i) the representations and warranties contained in Article 5
are true and correct on and as of such date, as though made on and as
of such date;
(ii) no Default or Event of Default exists; and
(iii) since October 25, 2002, there has not been a Material
Adverse Effect; and
(f) BORROWING NOTICE. A notice of borrowing of a Loan as and when
contemplated by Section 2.3.
(g) OTHER DOCUMENTS. Such other approvals, opinions, documents or
materials as the Bank may reasonably request.
SECTION 4.2. CONDITIONS TO ALL LOANS. The obligation of the Bank to
make any Loan (including the initial Loan under Section 4.1) shall be subject to
(a) the representations and warranties contained in Article 5 being true and
correct on and as of such date, as though made
on and as of such date, (b) no Default or Event of Default shall have occurred
and be continuing, (c) since October 25, 2002, there shall not have occurred a
Material Adverse Effect and (d) receipt by the Bank of a notice of borrowing in
accordance with Section 2.3.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Bank that:
SECTION 5.1. CORPORATE EXISTENCE AND POWER. The Company:
(a) is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation;
(b) has the power and authority and all material governmental licenses,
authorizations, consents and approvals to own its assets, carry on its business
and to execute, deliver, and perform its obligations under, the Loan Documents;
(c) is duly qualified as a foreign corporation, and licensed and in
good standing, under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such qualification
or license and the failure to be so qualified or licensed could have or cause a
Material Adverse Effect; and
(d) is in compliance with all Requirements of Law; except, in each case
referred to in clause (c) or clause (d), to the extent that the failure to do so
could not reasonably be expected to have a Material Adverse Effect.
SECTION 5.2. CORPORATE AUTHORIZATION; NO CONTRAVENTION. The execution,
delivery and performance by the Company of this Agreement, and any other Loan
Document to which it is a party, have been duly authorized by all necessary
corporate action, and do not and will not:
(a) contravene the terms of its Organization Documents;
(b) conflict with or result in any breach or contravention of, or the
creation of any Lien under, any document evidencing any Contractual Obligation
to which it is a party or any order, injunction, writ or decree of any
Governmental Authority to which its Properties is subject; or
(c) violate any Requirement of Law.
SECTION 5.3. GOVERNMENTAL AUTHORIZATION. No approval, consent,
exemption, authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, the Company of
this Agreement or any other Loan Document.
SECTION 5.4. BINDING EFFECT. This Agreement and each other Loan
Document to which the Company is a party constitute the legal, valid and binding
obligations of the Company, enforceable against the Company in accordance with
their respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws affecting the enforcement of creditors'
rights generally or by equitable principles relating to enforceability.
SECTION 5.5. LITIGATION. Except as disclosed by the Company in writing
from time to time to the Bank, there are no actions, suits, proceedings, claims
or disputes pending, or to the best knowledge of the Company, expressly
threatened or contemplated, at law, in equity, in arbitration or before any
Governmental Authority, against the Company, or its Subsidiaries or any of their
respective Properties which:
(a) purport to affect or pertain to this Agreement or any other Loan
Document, or any of the transactions contemplated hereby or thereby; or
(b) if determined adversely to the Company or its Subsidiaries, would
reasonably be expected to have a Material Adverse Effect.
SECTION 5.6. NO DEFAULT. No Default or Event of Default exists or would
result from the incurring of any Obligations by the Company. Neither the Company
nor any of its Subsidiaries is in default under or with respect to any
Contractual Obligation in any respect which, individually or together with all
such defaults, could reasonably be expected to have a Material Adverse Effect or
that would, if such default had occurred after the Closing Date, create an Event
of Default under subsection 8.01(e).
SECTION 5.7. INTENTIONALLY OMITTED.
----------------------
SECTION 5.8. USE OF PROCEEDS; MARGIN REGULATIONS. The proceeds of the
Loans are intended to be and shall be used solely for the purposes set forth in
and permitted by Section 6.9, and are not intended to be, and shall not be used
in violation of Section 7.5. Neither the Company nor any of its Subsidiaries is
generally engaged in the business of purchasing or selling Margin Stock or
extending credit for the purpose of purchasing or carrying Margin Stock.
SECTION 5.9. TITLE TO PROPERTIES. The Company and each of its
Subsidiaries have good record and marketable title in fee simple to, or valid
leasehold interests in, all real Property necessary or used in the ordinary
conduct of their respective businesses, except for such defects in title as
could not, individually or in the aggregate, have a Material Adverse Effect.
SECTION 5.10. TAXES. The Company and its Subsidiaries have filed all
Federal and other material tax returns and reports required to be filed, and
have paid all Federal and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their Properties, income or
assets otherwise due and payable, except those which are being contested in good
faith by appropriate proceedings and for which adequate reserves have been
provided in accordance with GAAP. There is no proposed tax assessment against
the Company or any of its Subsidiaries which would, if the assessment were made,
have a Material Adverse Effect.
SECTION 5.11. INTENTIONAILLY OMITTED.
-----------------------
SECTION 5.12. REGULATED ENTITIES. None of the Company, any Person
controlling the Company, or any Subsidiary of the Company, is (a) an "Investment
Company" within the meaning of the Investment Company Act of 1940; or (b)
subject to regulation under the Public Utility Holding Company Act of 1935.
SECTION 5.13. COPYRIGHTS, PATENTS, TRADEMARKS AND LICENSES, ETC. The
Company or its Subsidiaries own or are licensed or otherwise have the right to
use all of the material patents, trademarks, service marks, trade names,
copyrights, contractual franchises, authorizations and other rights that are
reasonably necessary for the operation of their respective businesses. No claim
or litigation regarding any of the foregoing is pending or threatened, and no
patent, invention, device, application, principle or any statute, law, rule,
regulation, standard or code is pending or, to the knowledge of the Company,
proposed, which, in either case, could reasonably be expected to have a Material
Adverse Effect.
SECTION 5.14. FINANCIAL INFORMATION. The consolidated balance sheet of
the Company and its Subsidiaries as of October 25, 2002 and the related
consolidated statements of earnings, stockholders' equity and cash flows for the
fiscal year then ended, reported on by Ernst & Young LLP, and the unaudited
consolidated balance sheet of the Company and its Subsidiaries as of July 25,
2003 and the related consolidated statements of earnings, stockholders' equity
and cash flows for the fiscal quarter then ended, copies of which have been
delivered to the Bank, fairly present, in conformity with GAAP, the consolidated
financial position of the Company as of such date and its consolidated results
of operations and cash flows for such periods.
ARTICLE 6
AFFIRMATIVE COVENANTS
The Company covenants and agrees that, so long as the Bank shall have
any obligation to extend credit hereunder, or any Loan or other Obligation shall
remain unpaid or unsatisfied, unless the Bank shall waive compliance in writing:
SECTION 6.1. FINANCIAL STATEMENTS. The Company shall deliver to the
Bankby the same delivery method used for such deliveries under the Revolving
Credit Agreement:
(a) as soon as available, but not later than 90 days after the end of
each fiscal year, a consolidated balance sheet of the Company and its
Subsidiaries as of the end of such fiscal year and the related consolidated
statements of income, shareholders' equity and cash flows for such fiscal year,
setting forth in each case in comparative form the figures for the previous
fiscal year, all certified by Ernst & Young LLP or another nationally recognized
independent public accounting firm which shall state that the Company's
consolidated financial statements contained in such reports present fairly the
financial position for the periods indicated in conformity with GAAP applied on
a basis consistent with prior years. Such opinion shall not be qualified or
limited because of a restricted or limited examination by such accountant of any
material portion of the Company's or any Subsidiary's records;
(b) as soon as available, but not later than 45 days after the end of
each of the first three fiscal quarters of each fiscal year, a consolidated
balance sheet of the Company and its Subsidiaries as of the end of such fiscal
quarter and the related statements of income and cash flows for such fiscal
quarter and for the portion of the fiscal year ended at the end of such fiscal
quarter, setting forth in each case in comparative form the figures for the
corresponding fiscal quarter and the corresponding portion of the previous
fiscal year, all certified (subject to normal year-end adjustments) as to
fairness of presentation, GAAP and consistency by the chief financial officer,
the treasurer or the chief accounting officer of the Company; and
(c) concurrently with the delivery of the financial statements referred
to above, a certificate of the chief financial officer, the treasurer or the
chief accounting officer of the Company (i) setting forth in reasonable detail
the calculations required to establish compliance with the requirements of
Sections 6.10 and 7.6 hereof, (ii) stating whether any Default exists on the
date of such certificate and, if any Default then exists, setting forth the
details thereof and the action which the Company is taking or proposes to take
with respect thereto; and (iii) containing the certification required by clause
(b) above.
SECTION 6.2. CERTIFICATES; OTHER INFORMATION. The Company shall furnish
to the Bank:
(a) promptly after the same are sent, copies of all financial
statements and reports which the Company sends to its shareholders generally;
and promptly after the same are filed, copies of all financial statements and
regular, periodical or special reports which the Company may make to, or file
with, the Securities and Exchange Commission or any successor or similar
Governmental Authority (other than Form S-8 or its equivalent); PROVIDED that
this subsection (a) shall not require the Company to furnish any statements or
reports which it has previously furnished to the Bank; and
(b) promptly, such additional business, financial, corporate affairs
and other information as the Bank may from time to time reasonably request.
SECTION 6.3. NOTICES. The Company shall promptly notify the Bank:
(a) (i) of the occurrence of any Default or Event of Default, and (ii)
of the occurrence or existence of any event or circumstance that reasonably
could be expected to become a Default or Event of Default;
(b) of (i) any breach or non-performance of, or any default under, any
Contractual Obligation of the Company or any of its Subsidiaries which could
reasonably be expected to result in a Material Adverse Effect; and (ii) any
dispute, litigation, investigation, proceeding or suspension which may exist at
any time between the Company or any of its Subsidiaries and any Governmental
Authority which could reasonably be expected to result in a Material Adverse
Effect; and
(c) of the commencement of, or any material development in, any
litigation or proceeding affecting the Company or any Subsidiary in which the
amount of damages claimed is $10,000,000 (or its equivalent in another currency
or currencies) or more in excess of amounts covered in full by applicable
insurance.
Each notice pursuant to this Section 6.3 shall be accompanied by a written
statement by a Responsible Officer of the Company setting forth details of the
occurrence referred to therein, and stating in general what action the Company
proposes to take with respect thereto. Each notice under subsection 6.3(a) shall
describe with particularity any and all clauses or provisions of this Agreement
or other Loan Document that have been breached or violated.
SECTION 6.4. PRESERVATION OF CORPORATE EXISTENCE, ETC. Subject to
Section 7.2, the Company shall:
(a) preserve and maintain in full force and effect its corporate
existence; and
(b) carry on its business in substantially the same manner and in
substantially the same fields in which such business is now carried on.
SECTION 6.5. INSURANCE. The Company shall, and shall cause its
Subsidiaries to, (a) insure and maintain insurance with responsible insurance
companies in such amounts and against such risks as is customarily carried by
owners of similar businesses and property, or (b) maintain a system or systems
of self-insurance or assumption of risk which accords with the practices of
similar businesses.
SECTION 6.6. PAYMENT OF OBLIGATIONS. The Company shall, and shall cause
its Subsidiaries to, pay and discharge as the same shall become due and payable,
all their respective obligations and liabilities, including:
(a) all tax liabilities, assessments and governmental charges or levies
upon it or its properties or assets, unless the same are being contested in good
faith by appropriate proceedings and adequate reserves in accordance with GAAP
are being maintained by the Company or such Subsidiary; and
(b) all lawful claims which, if unpaid, would by law become a Lien upon
its Property, unless the same are being contested in good faith by appropriate
proceedings and adequate reserves in accordance with GAAP are being maintained
by the Company or such Subsidiary.
SECTION 6.7. COMPLIANCE WITH LAWS. The Company shall comply, and shall
cause each of its Subsidiaries to comply, in all material respects with all
Requirements of Law (including, without limitation, environmental laws) of any
Governmental Authority having jurisdiction over it or its business, except such
as may be contested in good faith by proceedings diligently pursued or as to
which a bona fide dispute may exist and where non-compliance could not be
expected to result in a Material Adverse Effect.
SECTION 6.8. INSPECTION OF PROPERTY AND BOOKS AND RECORDS. The Company
shall maintain and shall cause each of its Subsidiaries to maintain books of
record and account in conformity with GAAP. The Company shall permit, and shall
cause each of its Subsidiaries to permit, representatives and independent
contractors of the Bank to visit and inspect any of their respective Properties,
to examine their respective records, and make copies thereof or abstracts
therefrom, and to discuss their respective affairs, finances and accounts with
their respective
directors, officers, and independent public accountants, all at such reasonable
times during normal business hours, upon reasonable advance notice to the
Company; PROVIDED, HOWEVER, when an Event of Default exists the Bank may do any
of the foregoing at the expense of the Company at any time during normal
business hours and without advance notice.
SECTION 6.9. USE OF PROCEEDS. The Company shall use the proceeds of the
Loans solely for general corporate purposes but not in contravention of any
Requirement of Law.
SECTION 6.10. MINIMUM SHAREHOLDERS' EQUITY. The Company shall maintain
Shareholders' Equity in an amount of not less than $373,500,000 plus the sum of
(a) 50% of the cumulative Reported Net Income of the Company and its
Consolidated Subsidiaries during any period after October 31, 2000 (taken as one
accounting period), calculated quarterly but excluding from such calculations of
Reported Net Income for purposes of this clause (a) any quarter in which the
Consolidated Net Income of the Company and its Consolidated Subsidiaries is
negative and (b) 100% of the cumulative Net Proceeds of Capital Stock/Conversion
of Debt received during any period after the date hereof, calculated quarterly.
ARTICLE 7
NEGATIVE COVENANTS
The Company hereby covenants and agrees that, so long as the Bank shall
have any obligation to extend credit hereunder, or the Loan or any other
Obligation shall remain unpaid or unsatisfied, unless the Bank shall waive
compliance in writing:
SECTION 7.1. LIMITATION ON LIENS. The Company shall not, and shall not
suffer or permit any of its Subsidiaries to, directly or indirectly, make,
create, incur, assume or suffer to exist any Lien upon or with respect to any
part of its Property, whether now owned or hereafter acquired, except to the
extent permitted under Section 5.08 of the Revolving Credit Agreement
SECTION 7.2. DISPOSITION OF ASSETS; CONSOLIDATIONS AND MERGERS. The
Company shall not, and shall not suffer or permit any of its Subsidiaries to,
(i) directly or indirectly, sell, assign, lease, convey, transfer or otherwise
dispose of (whether in one or a series of transactions) any Property (including
accounts and notes receivable, with or without recourse) or enter into any
agreement to do any of the foregoing, or (ii) merge or consolidate with or into
any Person, except to the extent permitted by Section 5.11 of the Revolving
Credit Agreement.
SECTION 7.3. PARI PASSU RANKING; BENEFIT OF GUARANTEES AND SECURITY.
(a) The Company will ensure that the claims and rights of the Bank against it
under the Loan Documents will not be at any time subordinate to, and will rank
at all times at least PARI PASSU with, the claims and rights of any other of its
unsecured creditors (including, without limitation, such creditors under the
Revolving Credit Agreement), except as may be limited by bankruptcy, insolvency,
moratorium or other similar laws affecting the enforcement of creditors' rights
in general.
(b) The Company shall not permit the Revolving Credit Agreement or any
other material bank loan arrangement to be materially amended or to benefit from
any guarantee or security
granted by any Person unless (i) the Bank shall be afforded the opportunity to
effect a similar amendment to this Agreement and (ii) such guarantee or security
equally and ratably guarantees or secures, as the case may be, the obligations
of the Company under this Agreement. The Company agrees, promptly upon request
therefor by the Bank, to execute and deliver such amendments to this Agreement,
and to cause any other relevant Person to execute, deliver and record such
guarantees and security documents, and do all such further acts, as the Bank may
request in order to further effect the provisions of this Section 7.3(b). The
Company further agrees that it will notify the Bank as soon as the Revolving
Credit Agreement or such other bank loan arrangement is so amended or the
Company becomes aware of the existence of any guarantee or security as
contemplated in this Section 7.3(b).
SECTION 7.4. TRANSACTIONS WITH AFFILIATES. The Company shall not, and
shall not suffer or permit any of its Subsidiaries to, enter into any
transaction with any Affiliate of the Company or of any such Subsidiary, except
as permitted by law and in the Ordinary Course of Business and pursuant to
reasonable terms no less favorable to the Company or such Subsidiary than would
be obtained in a comparable arm's length transaction with a Person which is not
an Affiliate.
SECTION 7.5. MARGIN STOCK. The Company shall not and shall not suffer
or permit any of its Subsidiaries to use any portion of the Loan proceeds,
directly or indirectly, (i) to purchase or carry Margin Stock, (ii) to repay or
otherwise refinance indebtedness of the Company or others incurred to purchase
or carry Margin Stock or (iii) to extend credit for the purpose of purchasing or
carrying any Margin Stock.
SECTION 7.6. RATIO OF CONSOLIDATED DEBT TO CONSOLIDATED EBITDA. The
Company shall not permit the ratio of Consolidated Debt to Consolidated EBITDA
for the period of four consecutive fiscal quarters of the Company to exceed (i)
3.25 to 1.00, until December 20, 2004 and (ii) 3.00 to 1.00 thereafter.
SECTION 7.7. RESTRICTED PAYMENTS. The Company will not declare or make
any Restricted Payment during any fiscal year, except for stock repurchases and
dividends approved by its board of directors.
ARTICLE 8
EVENTS OF DEFAULT
SECTION 8.1. EVENT OF DEFAULT. Subject to the provisos at the end of
this section, any of the following shall constitute an "Event of Default":
(a) NON-PAYMENT. The Company fails to pay, (i) when and as required to
be paid herein, any amount of principal of any Loan, or (ii) within five (5)
Business Days after the same shall become due, any interest, fee or any other
amount payable hereunder or pursuant to any other Loan Document;
(b) REPRESENTATION OR WARRANTY. Any representation or warranty by the
Company made or deemed made herein, in any Loan Document, or which is contained
in any certificate, document or financial or other statement by the Company, or
its Responsible Officers, furnished at any time under this Agreement, or in or
under any Loan Document, shall prove to have been incorrect in any material
respect on or as of the date made or deemed made;
(c) SPECIFIC DEFAULTS. The Company fails to perform or observe any
term, covenant or agreement contained in Section 6.3, 6.8, 6.10 or Article 7;
(d) OTHER DEFAULTS. The Company fails to perform or observe any other
term or covenant contained in this Agreement or any Loan Document, and such
default shall continue unremedied for a period of 30 days after the earlier to
occur of (i) the first day on which the Company has knowledge of such failure or
(iii) written notice thereof has been given to the Company by the Bank;
(e) CROSS-DEFAULT. The Company or any Subsidiary shall (i) fail to pay
when due, subject to the applicable grace period, if any, whether at stated
maturity or otherwise, any principal of, interest on, or premiums, fees or
expenses or any other amounts relating to, any Indebtedness in excess of
$10,000,000 (other than the Loans) or (ii) fail to observe or perform, subject
to the applicable grace period, if any, any other term, covenant, condition or
agreement contained in any instrument or agreement evidencing, securing or
relating to any Indebtedness, if the effect thereof is to cause, or permit the
holder or holders of any such Indebtedness or obligation, or a trustee or agent
on behalf of such holder or holders to cause, such Indebtedness or obligation to
become due prior to its stated maturity;
(f) INSOLVENCY; VOLUNTARY PROCEEDINGS. The Company or any of its
Subsidiaries (i) generally fails to pay, or admits in writing its inability to
pay, its debts as they become due, subject to applicable grace periods, if any,
whether at stated maturity or otherwise; (ii) voluntarily ceases to conduct its
business in the ordinary course; (iii) commences any Insolvency Proceeding with
respect to itself; or (iv) takes any action to effectuate or authorize any of
the foregoing;
(g) INVOLUNTARY PROCEEDINGS. (i) Any involuntary Insolvency Proceeding
is commenced or filed against the Company or any Subsidiary of the Company, or
any writ, judgment, warrant of attachment, execution or similar process, is
issued or levied against a substantial part of the Company's or any of its
Subsidiaries' Properties, and any such proceeding or petition shall not be
dismissed, or such writ, judgment, warrant of attachment, execution or similar
process shall not be released, vacated or fully bonded within 60 days after
commencement, filing or levy; (ii) the Company or any of its Subsidiaries admits
the material allegations of a petition against it in any Insolvency Proceeding,
or an order for relief (or similar order under non-U.S. law) is ordered in any
Insolvency Proceeding; or (iii) the Company or any of its Subsidiaries
acquiesces in the appointment of a receiver, trustee, custodian, conservator,
liquidator, mortgagee in possession (or agent therefor), or other similar Person
for itself or a substantial portion of its Property or business;
(h) DEFAULT UNDER REVOLVING CREDIT AGREEMENT. An "Event of Default"
under (and as defined in) the Revolving Credit Agreement shall have occurred; or
(i) MONETARY JUDGMENTS. There shall be entered against the Company or
any Subsidiary one or more judgments or decrees which in the aggregate exceed
$10,000,000 (not paid or fully covered by insurance or for which no adequate
reserve has been established) and such judgments or decrees shall not have been
vacated, discharged, stayed or appealed within the applicable period for appeal
from the date of entry thereof.
SECTION 8.2 RIGHTS AND REMEDIES. If an Event of Default occurs, the
Bank may,
(a) declare the Bank's obligation to make any Loan, if not then already
made, to be terminated, whereupon such obligation shall forthwith be terminated;
(b) declare the unpaid principal amount of all Loans, all interest
accrued and unpaid thereon, and all other amounts owing or payable hereunder or
under any other Loan Document to be immediately due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
hereby expressly waived by the Company; and
(c) exercise all rights and remedies available to it under the Loan
Documents or applicable law;
PROVIDED, HOWEVER, that upon the occurrence of any event specified in paragraph
(f) or (g) of Section 8.1 above, the obligation of the Bank to make any Loan, if
not then already made, shall automatically terminate and the unpaid principal
amount of all outstanding Loans and all interest and other amounts as aforesaid
shall automatically become due and payable without further act of the Bank.
SECTION 8.3. RIGHTS NOT EXCLUSIVE. The rights provided for in this
Agreement and the other Loan Documents are cumulative and are not exclusive of
any other rights, powers, privileges or remedies provided by law or in equity,
or under any other instrument, document or agreement now existing or hereafter
arising.
ARTICLE 9
MISCELLANEOUS
SECTION 9.1. AMENDMENTS AND WAIVERS. No amendment or waiver of any
provision of this Agreement or any other Loan Document, and no consent with
respect to any departure by the Company therefrom, shall be effective unless the
same shall be in writing and signed by the Bank and the Company, and then such
waiver shall be effective only in the specific instance and for the specific
purpose for which given.
SECTION 9.2. NOTICES. (a) All notices, requests and other
communications provided for hereunder to any party shall be in writing
(including, unless the context expressly otherwise
provides, by facsimile transmission, PROVIDED that any matter transmitted by the
Company by facsimile (i) shall be immediately confirmed by a telephone call to
the Bank at the number specified on the signature page hereof, and (ii) shall be
followed promptly by a hard copy original thereof) and mailed, faxed or
delivered, to such party: (A) at its address or facsimile number set forth on
the signature pages hereof, or (B) at such other address or facsimile number as
the respective party may hereafter specify for the purpose by notice to the to
the other party.
(b) All such notices, requests and communications shall, when
transmitted by overnight delivery, or faxed, be effective when delivered for
overnight (next-day) delivery, or transmitted by facsimile machine,
respectively, or if mailed, upon the third Business Day after the date deposited
into the U.S. mail, or if delivered, upon delivery; except that notices pursuant
to Article 2 shall not be effective until actually received by the Bank.
(c) The Company acknowledges and agrees that any agreement of the Bank
in Article 2 herein to receive certain notices by telephone and facsimile is
solely for the convenience and at the request of the Company. The Bank shall be
entitled to rely on the authority of any Person purporting to be a Person
authorized by the Company to give such notice and the Bank shall not have any
liability to the Company or other Person on account of any action taken or not
taken by the Bank in reliance upon such telephonic or facsimile notice. The
obligation of the Company or any Borrower Subsidiary to repay the Loans shall
not be affected in any way or to any extent by any failure by the Bank to
receive written confirmation of any telephonic or facsimile notice or the
receipt by the Bank of a confirmation which is at variance with the terms
understood by the Bank to be contained in the telephonic or facsimile notice.
SECTION 9.3. NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and
no delay in exercising, on the part of the Bank, any right, remedy, power or
privilege hereunder, shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege.
SECTION 9.4. COSTS AND EXPENSES. The Company shall, whether or not the
transactions contemplated hereby shall be consummated:
(a) pay or reimburse the Bank within fifteen Business Days after demand
for all reasonable, out-of-pocket expenses incurred by the Bank in connection
with the development, preparation, delivery and execution of, and any amendment,
supplement, waiver or modification to (in each case, whether or not
consummated), this Agreement, any Loan Document and any other documents prepared
in connection herewith or therewith, and the consummation of the transactions
contemplated hereby and thereby, including the reasonable fees and disbursements
of counsel incurred by the Bank with respect thereto; and
(b) pay or reimburse the Bank within fifteen Business Days after demand
for all costs and expenses incurred by it in connection with the enforcement,
attempted enforcement, or preservation of any rights or remedies (including in
connection with any "workout" or restructuring regarding the Loans, and
including in any Insolvency Proceeding or appellate proceeding) under this
Agreement, any other Loan Document, and any such other documents, including
reasonable fees and disbursements of counsel incurred by the Bank.
SECTION 9.5. INDEMNITY. (a) The Company shall pay, indemnify, and hold
the Bank and each of its officers, directors, employees, counsel, agents and
attorneys-in-fact (each, an "INDEMNIFIED PERSON") harmless from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, charges, expenses or disbursements (including the
reasonable fees and disbursements of counsel) of any kind or nature whatsoever
with respect to the execution, delivery, enforcement, performance and
administration of this Agreement and any other Loan Documents, or the
transactions contemplated hereby and thereby, and with respect to any
investigation, litigation or proceeding (including any Insolvency Proceeding or
appellate proceeding) related to this Agreement or the Loans or the use of the
proceeds thereof, whether or not any Indemnified Person is a party thereto (all
the foregoing, collectively, the "INDEMNIFIED LIABILITIES"); PROVIDED, that the
Company shall have no obligation hereunder to any Indemnified Person with
respect to Indemnified Liabilities to the extent resulting from the gross
negligence or willful misconduct of such Indemnified Person. The agreements in
this Section shall survive payment of all other Obligations and termination of
this Agreement.
(b) To the extent permitted by applicable law, the Company shall not
assert, and the Company hereby waives, any claim against any Indemnified Person
on any theory of liability, for special, indirect, consequential or punitive
damages arising out of, in connection with, or as a result of, this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby or
thereby, any Loan or the use of the proceeds thereof.
SECTION 9.6. MARSHALLING; PAYMENTS SET ASIDE. The Bank shall be under
no obligation to xxxxxxxx any assets in favor of the Company or any other Person
or against or in payment of any or all of the Obligations. To the extent that
the Company makes a payment or payments to the Bank, or the Bank exercises its
rights of set-off, and such payment or payments or the proceeds of such set-off
or any part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside or required (including pursuant to any settlement
entered into by the Bank) to be repaid to a trustee, receiver or any other party
in connection with any Insolvency Proceeding, or otherwise, then to the extent
of such recovery the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such enforcement or set-off had not occurred.
SECTION 9.7. SUCCESSORS AND ASSIGNS. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that the Company may
not assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of the Bank (and any attempted assignment or
transfer by the Company without such consent shall be null and void).
SECTION 9.8. ASSIGNMENTS.
(a) The Bank may assign all or a portion of its rights and obligations
under this Agreement to any branch, Lending Office or Affiliate of Credit
Lyonnais (or any successor entity). From and after the effective date of an
assignment, the assignee shall be a party hereto and, to the extent of the
interest assigned, have the rights and obligations of the Bank under this
Agreement, and the Bank shall, to the extent of the interest assigned, be
released from its
obligations under this Agreement (and, in the case of an assignment covering all
of the Bank's rights and obligations under this Agreement, the Bank shall cease
to be a party hereto but shall continue to be entitled to the benefits of
Sections 3.1, 3.3, 3.4, 9.4, and 9.5).
(b) The Bank may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
the Bank, including without limitation any pledge or assignment to secure
obligations to a Federal Reserve Bank; PROVIDED that no such pledge or
assignment of a security interest shall release the Bank from any of its
obligations hereunder or substitute any such pledgee or assignee for the Bank as
a party hereto.
SECTION 9.9. SET-OFF. In addition to any rights and remedies of the
Bank provided by law, if an Event of Default exists, the Bank is authorized at
any time and from time to time, without prior notice to the Company, any such
notice being waived by the Company to the fullest extent permitted by law, to
set off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held by, and other indebtedness at any time
owing to, the Bank or any of its Affiliates to or for the credit or the account
of the Company against any and all Obligations owing to the Bank or Affiliate,
now or hereafter existing, irrespective of whether or not the Bank shall have
made demand under this Agreement or any Loan Document and although such
Obligations may be contingent or unmatured. The Bank agrees promptly to notify
the Company after any such set-off and application made by the Bank or
Affiliate; PROVIDED, HOWEVER, that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of each Bank
under this Section 9.9 are in addition to the other rights and remedies
(including other rights of set-off) which the Bank may have.
SECTION 9.10. COUNTERPARTS. This Agreement may be executed by one or
more of the parties to this Agreement in any number of separate counterparts,
each of which, when so executed, shall be deemed an original, and all of said
counterparts taken together shall be deemed to constitute but one and the same
instrument. A set of the copies of this Agreement signed by all the parties
shall be lodged with the Company.
SECTION 9.11. SEVERABILITY. The illegality or unenforceability of any
provision of this Agreement or any instrument or agreement required hereunder
shall not in any way affect or impair the legality or enforceability of the
remaining provisions of this Agreement or any instrument or agreement required
hereunder.
SECTION 9.12. NO THIRD PARTIES BENEFITED. This Agreement is made and
entered into for the sole protection and legal benefit of the Company and the
Bank, and their permitted successors and assigns, and no other Person shall be a
direct or indirect legal beneficiary of, or have any direct or indirect cause of
action or claim in connection with, this Agreement or any of the other Loan
Documents. The Bank shall not have any obligation to any Person not a party to
this Agreement or other Loan Documents.
SECTION 9.13. GOVERNING LAW AND JURISDICTION. (a) THIS AGREEMENT SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT AND
ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR
OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, EACH OF THE COMPANY AND THE BANK CONSENTS, FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF
THOSE COURTS. EACH OF THE COMPANY AND THE BANK IRREVOCABLY WAIVES ANY OBJECTION,
INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM
NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION
OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT
RELATED HERETO. THE COMPANY AND THE BANK EACH WAIVES PERSONAL SERVICE OF ANY
SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS
PERMITTED BY NEW YORK LAW.
SECTION 9.14. WAIVER OF JURY TRIAL. THE COMPANY AND THE BANK EACH
WAIVES THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN
DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION,
PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST
ANY OTHER PARTY OR PARTIES, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT
CLAIMS, OR OTHERWISE. THE COMPANY AND THE BANK EACH AGREES THAT ANY SUCH CLAIM
OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT
LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO
A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION,
COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE
THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR
ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS.
SECTION 9.15. ENTIRE AGREEMENT. This Agreement, together with the other
Loan Documents embodies the entire agreement and understanding between the
Company and the Bank, and supersedes all prior or contemporaneous agreements and
understandings of such Persons, verbal or written, relating to the subject
matter hereof and thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
THE VALSPAR CORPORATION
By: /s/ Xxxxxxx Xxxxx
----------------------------------
Name: Xxxxxxx Xxxxx
Title: Treasurer
Address for notices:
0000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxxx Xxxxx, Treasurer
Tel: (000) 000-0000
Facsimile: (000) 000-0000
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Xxx Xxxxx
----------------------------------
Name: Xxx Xxxxx
Title: First Vice President
Address for notices:
For Borrowings and rate-settings:
Attention: Xxxxxxxxxx Xxxxxxxx
Loan Servicing Dept.
Credit Lyonnais New York Branch
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Tel. (000) 000-0000
Fax (000) 000 0000
E-Mail: xxxxxxxxxx.xxxxxxxx@xxxxxxxxxx.xxx
----------------------------------
For Payments (including Prepayments) of principal,
interest, fees, etc.:
Credit Lyonnais X.X.
XXXXX Code: XXXXXXXX
A/C No.: 91000181005
Ref: Valspar
Attn: L/S Dept. New York Branch
For Documentation/ Business/Credit Matters:
Attention: Xxxxx Xxxxxxx
Credit Lyonnais Chicago Branch
000 X. Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Tel. (000) 000-0000
Fax (000) 000-0000
E-Mail: xxxxx.xxxxxxx@xxxxxxxxxx.xxx
----------------------------
