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EXHIBIT 10(i)
THIS CREDIT AGREEMENT, dated as of November 13, 1998 (as amended or
modified from time to time, this "Agreement"), is by and among Universal Forest
Products, Inc., a Michigan corporation (the "Company") the lenders party hereto
from time to time (the "Lenders") and NBD Bank, a Michigan banking corporation,
as agent for the Lenders (in such capacity, the "Agent").
INTRODUCTION
The Company desires to obtain a revolving credit facility, including
letters of credit, in the aggregate principal amount of $175,000,000, in order
to provide funds for its general corporate purposes, and the Lenders are willing
to establish such a credit facility in favor of the Company on the terms and
conditions herein set forth.
In consideration of the premises and of the mutual agreements herein
contained, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
1.1 Certain Definitions. As used herein the following terms shall
have the following respective meanings:
"Absolute Rate Bid-Option Loan" shall mean a Loan which pursuant to the
applicable Notice of Bid- Option Loan is made at the Bid-Option Absolute Rate.
"Acquisition" shall mean any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Company or any of its Subsidiaries directly or indirectly (i) acquires any going
business or all or substantially all of the assets of any firm, corporation,
partnership, limited liability company or other business entity or other Person,
or division thereof, whether through purchase of assets, merger or otherwise or
(ii) 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 Capital Stock
of any Person.
"Advance" shall mean any Loan and any Letter of Credit Advance.
"Adjusted Leverage Ratio" shall mean, as of any date, the ratio of (a)
the Total Seasonally Adjusted Debt as of such date to (b) the Total Adjusted
Capitalization as of such date.
"Affiliate" when used with respect to any Person shall mean any other
Person which, directly or indirectly, controls or is controlled by or is under
common control with such Person. For purposes of this definition "control"
(including the correlative meanings of the terms "controlled by" and "under
common control with") with respect to any Person, shall mean possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of voting
Capital Stock
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or by contract or otherwise. A Person shall be deemed to control another Person
if the controlling Person owns 10% or more of any class of Voting Stock of the
controlled Person.
"Applicable Lending Office" shall mean, with respect to any Advance
made by any Lender or with respect to such Lender's Commitment, the office or
branch of such Lender or of any Affiliate of such Lender located at the address
specified as the applicable lending office for such Lender set forth next to the
name of such Lender in the signature pages hereof or any other office or branch
or Affiliate of such Lender or of any Affiliate of such Lender hereafter
selected and notified to the Company and the Agent by such Lender.
"Applicable Margin" shall mean, with respect to any Eurodollar Rate
Syndicated Loan, Letter of Credit fee under Section 2.5(b)(i) and facility fee
under Section 2.5(a), as the case may be, the applicable percentage set forth in
the applicable table below based upon the Adjusted Leverage Ratio, as adjusted
on the date 50 days after the end of each fiscal quarter of the Company and
shall remain in effect until the next change to be effected pursuant to this
definition, based upon the Adjusted Leverage Ratio as of the last day of the
most recently ended fiscal quarter; provided, however, until the Applicable
Margin is adjusted for the first time based on the Adjusted Leverage Ratio as of
the end of the first fiscal quarter ending after the Effective Date, the
Applicable Margin shall be based on an Adjusted Leverage Ratio greater than or
equal to 0.4 to 1.0 but less than 0.5 to 1.0:
APPLICABLE MARGIN
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Level Adjusted Leverage Ratio Eurodollar Rate Syndicated Facility Fee
Loan and Letter of Credit Fee
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I <0.4 to 1.0 25 basis points 15 basis points
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II >0.4 to 1.0 but <0.5 to 1.0 32.5 basis points 17.5 basis points
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III >0.5 to 1.0 but <0.55 to 1.0 47.5 basis points 20.0 basis points
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IV >0.55 to 1.0 65 basis points 22.5 basis points
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"Arranger" shall mean First Chicago Capital Markets, Inc., a Delaware
corporation, and its successors.
"Bid-Option Absolute Rate" shall mean, with respect to any Absolute
Rate Bid-Option Loan, the Bid- Option Absolute Rate, as defined in Section
2.2(d)(ii)(E), that is offered for such Loan.
"Bid-Option Auction" shall mean a solicitation of Bid-Option Quotes
setting forth Bid-Option Absolute Rates or Bid-Option Eurodollar Rate Margins,
as the case may be, pursuant to Section 2.2(b).
"Bid-Option Eurodollar Rate" shall mean the sum of (a) the Bid-Option
Eurodollar Rate Margin plus (b) the Eurodollar Base Rate.
"Bid-Option Eurodollar Rate Margin" shall mean, with respect to any
Eurodollar Rate Bid-Option Loan, the Bid-Option Eurodollar Rate Margin, as
defined in Section 2.2(d)(ii)(F), that is offered for such Loan.
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"Bid-Option Interest Period" shall mean (a) with respect to each
Eurodollar Rate Bid-Option Borrowing, the Eurodollar Rate Interest Period
applicable thereto, and (b) with respect to each Absolute Rate Bid-Option
Borrowing, the period commencing on the date of such Borrowing and ending on the
date elected by the Company in the applicable Notice of Borrowing, which date
shall be not less than one month and not more than twelve months after the date
of such Bid-Option Loan; provided that:
(i) any such Interest Period that would
otherwise end on a day that is not a Business Day shall be
extended to the next succeeding Business day; and
(ii) no such Interest Period that would end
after the Termination Date shall be permitted.
"Bid-Option Loan" shall mean a Loan which is made by a Lender pursuant
to a Bid-Option Auction.
"Bid-Option Note" shall mean a promissory note of the Company in
substantially the form of Exhibit A hereto evidencing the obligation of the
Company to repay Bid-Option Loans, as amended or modified from time to time and
together with any promissory note or notes issued in exchange or replacement
therefor.
"Bid-Option Percentage" shall mean, with respect to any Lender, the
percentage of the aggregate outstanding principal amount of the Bid-Option Loans
of all the Lenders represented by the outstanding principal amount of the
Bid-Option Loans of such Lender.
"Bid-Option Quote" shall mean an offer by a Lender to make a Bid-Option
Loan in accordance with Section 2.2(d).
"Bid-Option Quote Request" shall mean a Bid-Option Quote Request in the
form referred to in Section 2.2(b).
"Borrowing" shall mean the aggregation of Advances made to the Company,
or continuations and conversions of such Advances, made pursuant to Article II
on a single date and for a single Interest Period. A Borrowing may be referred
to for purposes of this Agreement by reference to the type of Loan comprising
the relating Borrowing, e.g., a "Floating Rate Borrowing" if such Loans are
Floating Rate Loans, a "Eurodollar Rate Syndicated Borrowing" if such Loans are
Eurodollar Rate Syndicated Loans, an "Absolute Rate Bid-Option Borrowing" if
such Loans are Absolute Rate Bid-Option Loans, or a "Eurodollar Rate Bid-Option
Borrowing" if such Loans are Eurodollar Rate Bid-Option Loans. Floating Rate
Borrowings and Eurodollar Rate Syndicated Borrowings may be similarly
collectively referred to as "Syndicated Borrowings", and Absolute Rate
Bid-Option Borrowings and Eurodollar Rate Bid-Option Borrowings may be
collectively referred to as "Bid-Option Borrowings".
"Business Day" shall mean a day other than a Saturday, Sunday or other
day on which the Agent is not open to the public for carrying on substantially
all of its banking functions.
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"Capital Lease" of any Person shall mean any lease which, in accordance
with Generally Accepted Accounting Principles, is or should be capitalized on
the books of such Person.
"Capital Stock" shall mean (i) in the case of any corporation, all
capital stock and any securities exchangeable for or convertible into capital
stock and any warrants, rights or other options to purchase or otherwise acquire
capital stock or such securities or any other form of equity securities, (ii) in
the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock, (iii) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited) and (iv) any
other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distribution of assets of, the issuing
Person.
"Cash Equivalent" shall mean (i) cash in Dollars, (ii) securities
issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality thereof having maturities of not
more than six months from the date of acquisition, (iii) marketable direct
obligations issued by any state of the United States of America or any political
subdivision of any such state or any public instrumentality thereof maturing
within one year from the date of acquisition thereof and, at the time of
acquisition, having one of the two highest ratings obtainable from either S&P or
Moody's, (iv) certificates of deposit and eurodollar time deposits with
maturities of six months or less from the date of acquisition, bankers'
acceptances with maturities not exceeding six months and overnight bank
deposits, in each case with any Lender or with any domestic commercial bank
having capital and surplus in excess of $250,000,000 and a Xxxxx Bank Watch
Rating of "B" or better, (v) repurchase obligations with a term of not more than
seven days for underlying securities of the types described in clauses (ii),
(iii) and (iv) above entered into with any financial institution meeting the
qualifications specified in clause (iv) above, (vi) commercial paper having one
of the two highest ratings obtained from Moody's or S&P and in each case
maturing within six months after the date of acquisition and (vii) investments
in money market funds which invest substantially all their assets in securities
of the type described in clauses (i) through (vi) above.
"Change of Control" shall mean (i) the acquisition by any Person, or
two or more Persons acting in concert, of beneficial ownership (within the
meaning of Rule 13d-3 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934) of 20% or more of the outstanding shares of
voting Capital Stock of the Company, other than any such acquisition by Xxxxx
Xxxxxxx, Xxxxxxx X. Xxxxxxxx or any Person wholly owned and controlled, free and
clear of any Liens, by Xxxxx Xxxxxxx and/or Xxxxxxx X. Xxxxxxxx; (ii) any Person
or two or more Persons acting in concert shall have acquired, by contract or
otherwise, or shall have entered into a contract or arrangement that, upon
consummation, will result in its or their acquisition of the power to exercise,
directly or indirectly, a controlling influence over the management or policies
of the Company; (iii) Continuing Directors shall cease to constitute at least a
majority of the directors constituting the board of directors of the Company; or
(iv) the occurrence of any "Change of Control" or similar term as defined in any
agreement or instrument relating to the Senior Note Debt.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the regulations thereunder.
"Commitment" shall mean, with respect to each Lender, the commitment of
each such Lender to make Syndicated Loans and to participate in Letter of Credit
Advances made through the Agent pursuant to Section
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2.1, in amounts not exceeding in aggregate principal amount outstanding at any
time the respective commitment amount for each such Lender set forth for such
Lender on Schedule 1 hereto or otherwise established pursuant to Section 8.6, as
such amounts may be reduced from time to time pursuant to Section 2.4.
"Consolidated" or "consolidated" shall mean, when used with reference
to any financial term in this Agreement, the aggregate for two or more Persons
of the amounts signified by such term for all such Persons determined on a
consolidated basis in accordance with Generally Accepted Accounting Principles.
"Contingent Liabilities" of any Person shall mean, as of any date, all
obligations of such Person or of others for which such Person is contingently
liable, as obligor, guarantor, surety or in any other capacity, or in respect of
which obligations such Person assures a creditor against loss or agrees to take
any action to prevent any such loss (other than endorsements of negotiable
instruments for collection in the ordinary course of business), including
without limitation all reimbursement obligations of such Person in respect of
any letters of credit, surety bonds or similar obligations and all obligations
of such Person to advance funds to, or to purchase assets, property or services
from, any other Person in order to maintain the financial condition of such
other Person.
"Continuing Directors" shall mean as of any date of determination, any
member of the Board of Directors of the Company who (i) was a member of such
Board of Directors on the Effective Date or (ii) was nominated for election or
elected to such Board of Directors with the approval of a majority of the
Continuing Directors who were members of such Board at the time of such
nomination or election.
"Default" shall mean any of the events or conditions described in
Section 6.1 which will become an Event of Default with notice or lapse of time
or both.
"Defaulting Lender" shall mean any Lender that fails to make available
to the Agent such Lender's Loans required to be made hereunder or shall have not
made a payment required to be made to the Agent hereunder. Once a Lender becomes
a Defaulting Lender, such Lender shall continue as a Defaulting Lender until
such time as such Defaulting Lender makes available to the Agent the amount of
such Defaulting Lender's Loans and all other amounts required to be paid to the
Agent pursuant to this Agreement.
"Disqualified Stock" shall mean any Capital Stock that, by its terms
(or by the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the holder thereof, in whole or in part.
"Dollars" and "$" shall mean the lawful money of the United States of
America.
"Domestic Subsidiary" shall mean each present and future Subsidiary of
the Company which is not a Foreign Subsidiary.
"EBIT" shall mean, for any period, Net Income for such period plus all
amounts deducted in determining such Net Income on account of (a) Total Interest
Expense and (b) income taxes, all as determined for the Company and its
Subsidiaries on a consolidated basis in accordance with Generally Accepted
Accounting Principles.
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"Effective Date" shall mean the effective date specified in the final
paragraph of this Agreement.
"Environmental Laws" at any date shall mean all provisions of law,
statute, ordinances, rules, regulations, judgments, writs, injunctions, decrees,
orders, awards and standards which are applicable to the Company or any
Subsidiary and promulgated by the government of the United States of America or
any foreign government or by any state, province, municipality or other
political subdivision thereof or therein or by any court, agency,
instrumentality, regulatory authority or commission of any of the foregoing
concerning the protection of, or regulating the discharge of substances into,
the environment.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations thereunder.
"ERISA Affiliate" shall mean, with respect to any Person, any trade or
business (whether or not incorporated) which, together with such Person or any
Subsidiary of such Person, would be treated as a single employer under Section
414 of the Code.
"Eurodollar Base Rate" applicable to any Eurodollar Interest Period
shall mean, the rate per annum obtained by dividing (a) the per annum rate of
interest determined by the Agent at which deposits in Dollars for such
Eurodollar Interest Period and in an aggregate amount comparable to (i) in the
case of Eurodollar Rate Syndicated Loans, the amount of the related Eurodollar
Rate Syndicated Loan to be made by the Agent in its capacity as a Lender
hereunder and (ii) in the case of Eurodollar Rate Bid-Option Loans, the
aggregate amount of the Eurodollar Rate Bid-Option Borrowing set forth in the
related Bid-Option Quote Request, are offered to the Agent by other prime banks
in the applicable interbank market selected by the Agent in its reasonable
discretion, at approximately 11:00 a.m. London time, on the second Eurodollar
Business Day prior to the first day of such Eurodollar Interest Period by (b) an
amount equal to one minus the stated maximum rate (expressed as a decimal) of
all reserve requirements including, without limitation, any marginal, emergency,
supplemental, special or other reserves, that is specified on the first day of
such Eurodollar Interest Period by the Board of Governors of the Federal Reserve
System (or any successor agency thereto) or any other governmental authority
(including any nation or government, any political subdivision thereof and any
entity exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government) having jurisdiction with respect
thereto, for determining the maximum reserve requirement with respect to
eurocurrency funding (currently referred to as "Eurodollar liabilities" in
Regulation D of such Board) maintained by a member bank of such System or
otherwise with respect to determining reserves or similar amounts; all as
conclusively determined by the Agent, absent manifest error, such sum to be
rounded up, if necessary, to the nearest whole multiple of one sixteenth of one
percent (1/16 of 1%).
"Eurodollar Business Day" shall mean, with respect to any Eurodollar
Rate Loan, a day which is both a Business Day and a day on which dealings in
Dollar deposits are carried out in the relevant interbank market.
"Eurodollar Interest Period" shall mean, with respect to any Eurodollar
Rate Syndicated Loan, the period commencing on the day such Eurodollar Rate
Syndicated Loan is made or converted to a Eurodollar Rate Syndicated Loan and
ending on the date one, two, three or six months thereafter, as the Company may
elect under Section 2.6 or 2.9, and each subsequent period commencing on the
last day of the immediately preceding
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Eurodollar Interest Period and ending on the date one, two, three or six months
thereafter, as the Company may elect under Section 2.6 or 2.9, and with respect
to any Eurodollar Rate Bid-Option Loan, the period commencing on the date of
such Eurodollar Rate Bid-Option Loan and ending on a date between one month and
twelve months thereafter, as the Company may elect in the Notice of Bid-Option
Loan, provided, however, that (a) any Eurodollar Interest Period which commences
on the last Eurodollar Business Day of a calendar month (or on any day for which
there is no numerically corresponding day in the appropriate subsequent calendar
month) shall end on the last Eurodollar Business Day of the appropriate
subsequent calendar month, (b) each Eurodollar Interest Period which would
otherwise end on a day which is not a Eurodollar Business Day shall end on the
next succeeding Eurodollar Business Day or, if such next succeeding Eurodollar
Business Day falls in the next succeeding calendar month, on the next preceding
Eurodollar Business Day, and (c) no Eurodollar Interest Period which would end
after the Termination Date shall be permitted.
"Eurodollar Rate Loan" shall mean any Eurodollar Rate Bid-Option Loan
or Eurodollar Rate Syndicated Loan.
"Eurodollar Rate Bid-Option Loan" shall mean a Bid-Option Loan which
pursuant to the applicable Notice of Bid-Option Loan is made at the Bid-Option
Eurodollar Rate.
"Eurodollar Rate Syndicated Loan" shall mean any Syndicated Loan which
bears interest at the Syndicated Eurodollar Rate.
"Event of Default" shall mean any of the events or conditions described
in Section 6.1.
"Federal Funds Rate" shall mean, 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. (Detroit
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.
"Financial Contract" of a Person shall mean (i) any exchange-traded or
over-the-counter futures, forward, swap or option contract or other financial
instrument with similar characteristics, or (ii) any agreements, devices or
arrangements providing for payments related to fluctuations of interest rates,
exchange rates or forward rates, including, but not limited to, interest rate
exchange agreements, forward currency exchange agreements, interest rate cap or
collar protection agreements, forward rate currency or interest rate options.
"Fixed Rate Loan" shall mean any Eurodollar Rate Syndicated Loan or any
Bid-Option Loan.
"Floating Rate" shall mean the per annum rate equal to the greater of
(i) the Prime Rate or (ii) the Federal Funds Rate plus 1/2%, in each case as in
effect from time to time, which Floating Rate shall change simultaneously with
any change in such Prime Rate or Federal Funds Rate, as the case may be.
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"Floating Rate Loan" shall mean any Syndicated Loan which bears
interest at the Floating Rate.
"Foreign Subsidiary" shall mean any Subsidiary incorporated or formed
in any jurisdiction other than any State of the United States of America.
"Generally Accepted Accounting Principles" shall mean generally
accepted accounting principles in effect from time to time and applied on a
basis consistent with that reflected in the financial statements referred to in
Section 4.6.
"Guaranties" shall mean the guaranties entered into by each of the
Guarantors for the benefit of the Agent and the Lenders pursuant to Section
5.1(f) in substantially the form of Exhibit B hereto, as amended or modified
from time to time.
"Guarantor" shall mean each present and future Domestic Subsidiary of
the Company which is required to execute a Guaranty pursuant to this Agreement
and each Person otherwise entering into a Guaranty from time to time.
"Indebtedness" of any Person shall mean, as of any date, (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person as lessee under any Capital Lease, (c) the unpaid purchase price for
goods, property or services acquired by such Person, except for accounts payable
and other accrued liabilities arising in the ordinary course of business which
are not materially past due, (d) all obligations of such Person to purchase
goods, property or services where payment therefor is required regardless of
whether delivery of such goods or property or the performance of such services
is ever made or tendered (generally referred to as "take or pay contracts"),
other than obligations incurred in the ordinary course of business, (e) all
obligations of such Person in respect of any Financial Contract (valued in an
amount equal to the highest termination payment, if any, that would be payable
by such Person upon termination for any reason on the date of determination),
(f) to the extent not included in the foregoing, obligations and liabilities
which would be classified as part of Total Debt, and (g) all obligations of
others similar in character to those described in clauses (a) through (f) of
this definition for which such Person is contingently liable, as obligor,
guarantor, surety or in any other capacity, or in respect of which obligations
such Person assures a creditor against loss or agrees to take any action to
prevent any such loss (other than endorsements of negotiable instruments for
collection in the ordinary course of business), including without limitation all
reimbursement obligations of such Person in respect of letters of credit, surety
bonds or similar obligations and all obligations of such Person to advance funds
to, or to purchase assets, property or services from, any other Person in order
to maintain the financial condition of such other Person.
"Intercreditor Agreement" shall mean, collectively, each intercreditor
or similar agreement executed at any time among the Lenders, the Agent, the
Senior Note Holders and such other parties thereto as agreed to by the Required
Lenders, the Agent and the requisite number of Senior Note Holders, as amended
or modified from time to time, under which agreement(s) the Lenders, the Agent
and the Senior Note Holders agree to share equally and ratably in any proceeds
realized from the enforcement of any guarantees from any Subsidiaries of the
Company and any pledges of any Capital Stock of any Foreign Subsidiaries which
guarantee or secure, as the case may be, the Lender Obligations or the Senior
Note Debt, provided that each such Intercreditor Agreement shall be in form and
substance acceptable to the Required Lenders and the Agent.
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"Interest Coverage Ratio" shall mean, as of the last day of any fiscal
quarter of the Company, the ratio of (a) EBIT to (b) Total Interest Expense, in
each case as calculated for the four consecutive fiscal quarters then ending,
all as determined in accordance with Generally Accepted Accounting Principles.
"Interest Payment Date" shall mean (a) with respect to any Eurodollar
Rate Loan or Bid-Option Loan, the last day of each Interest Period with respect
to such Eurodollar Rate Loan or Bid-Option Loan and, in the case of any Interest
Period exceeding three months, those days that occur during such Interest Period
at intervals of three months after the first day of such Interest Period, and
(b) in all other cases, the last Business Day of each March, June, September and
December occurring after the date hereof, commencing with the first such
Business Day occurring after the date of this Agreement.
"Interest Period" shall mean any Eurodollar Interest Period or
Bid-Option Interest Period.
"Invitation for Bid-Option Quotes" shall mean an invitation for
Bid-Option Quotes in the form referred to in Section 2.2(c).
"Lender Obligations" shall mean all indebtedness, obligations and
liabilities, whether now owing or hereafter arising, direct, indirect,
contingent or otherwise, of the Company to the Agent or any Lender pursuant to
the Loan Documents.
"Letter of Credit" shall mean a standby letter of credit having a
stated expiry date not later than one year from the issuance thereof and in no
event after the fifth Business Day before the Termination Date issued by the
Agent on behalf of the Lenders for the account of the Company under an
application and related documentation acceptable to the Agent requiring, among
other things, immediate reimbursement by the Company to the Agent in respect of
all drafts or other demand for payment honored thereunder and all expenses paid
or incurred by the Agent relative thereto.
"Letter of Credit Advance" shall mean any issuance of a Letter of
Credit under Section 2.6 made pursuant to Section 2.1 in which each Lender
acquires a pro rata risk participation pursuant to Section 2.6(e).
"Letter of Credit Documents" shall have the meaning ascribed thereto in
Section 3.3(b).
"Lien" shall mean any pledge, assignment, deed of trust, hypothecation,
mortgage, security interest, conditional sale or title retaining contract, or
any other type of lien, charge, encumbrance or other similar claim or right.
"Loan" shall mean any Syndicated Loan, Swingline Loan or any Bid-Option
Loan, as the context may require.
"Loan Documents" shall mean this Agreement, the Notes, the Letter of
Credit Documents, the Guaranties, the Pledge Agreements, the Intercreditor
Agreement, any Rate Hedging Agreements between the Company or any of its
Subsidiaries and any Lender and any other agreement, instrument or document
executed at any time in connection with this Agreement.
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"Material Adverse Effect" shall mean (i) a material adverse effect on
the property, business, operations, financial condition, liabilities, prospects
or capitalization of the Company and its Subsidiaries, taken as a whole or (ii)
a material adverse effect on the ability of the Company or any Guarantor to
perform its obligations under the Loan Documents.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" shall mean any "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA or Section 414(f) of the Code.
"Net Income" shall mean, for any period, the net income (or loss) of
the Company and its Subsidiaries on a consolidated basis for such period taken
as a single accounting period, determined in accordance with Generally Accepted
Accounting Principles; provided that in determining Net Income there shall be
excluded, without duplication: (a) the income of any Person (other than a
Subsidiary of the Company) in which any Person other than the Company or any of
its Subsidiaries has a joint interest or partnership interest or other ownership
interest, except to the extent of the amount of dividends or other distributions
actually paid to the Company or any of its Subsidiaries by such Person during
such period, (b) the loss of any Person (other than a Subsidiary of the Company)
in which any Person other than the Company or any of its Subsidiaries has a
joint interest or partnership interest or other ownership interest, except to
the extent such loss is funded by the Company or any of its Subsidiaries during
such period, (c) the income of any Person accrued prior to the date it becomes a
Subsidiary of the Company or is merged into or consolidated with the Company or
any of its Subsidiaries or that Person's assets are acquired by the Company or
any of its Subsidiaries, (d) the proceeds of any insurance policy, other than
proceeds of business interruption insurance to the extent included in net income
under Generally Accepted Accounting Principles and not excluded by any other
exclusion under this definition of Net Income, (e) gains or non-cash losses from
the sale, exchange, transfer or other disposition of property or assets not in
the ordinary course of business of the Company and its Subsidiaries and any
other income of the Company and its Subsidiaries which is not from their
continuing operations, and related tax effects in accordance with Generally
Accepted Accounting Principles, (f) any other extraordinary or non-recurring
gains or non-cash losses of the Company or its Subsidiaries, and related tax
effects in accordance with Generally Accepted Accounting Principles, and (g) the
income of any Subsidiary of the Company 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 of any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Subsidiary.
"Net Worth" shall mean, as of any date, the amount of any capital
stock, paid in capital and similar equity accounts plus (or minus in the case of
a deficit) the capital surplus and retained earnings of the Company and the
Subsidiaries and the amount of any foreign currency translation adjustment
account shown as a capital account of the Company and its Subsidiaries, all on a
consolidated basis in accordance with Generally Accepted Accounting Principles.
"Notes" shall mean the Revolving Credit Notes, the Swingline Loan Note
and the Bid-Option Notes.
"Notice of Bid-Option Loan" shall have the meaning set forth in Section
2.2(f).
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"Obligors" shall mean the Company and the Guarantors.
"Overdue Rate" shall mean (a) in respect of principal of Floating Rate
Loans, a rate per annum that is equal to the sum of two percent (2%) per annum
plus the Floating Rate, (b) in respect of principal of Fixed Rate Loans, a rate
per annum that is equal to the sum of two percent (2%) per annum plus the per
annum rate in effect thereon until the end of the then current Interest Period
for such Loan and, thereafter, a rate per annum that is equal to the sum of two
percent (2%) per annum plus the Floating Rate, and (c) in respect of other
amounts payable by the Company hereunder (other than interest), a per annum rate
that is equal to the sum of two percent (2%) per annum plus the Floating Rate.
"PBGC" shall mean the Pension Benefit Guaranty Corporation and any
entity succeeding to any or all of its functions under ERISA.
"Permitted Liens" shall mean Liens permitted by Section 5.2(d) hereof.
"Person" shall include an individual, a corporation, a limited
liability company, an association, a partnership, a trust or estate, a joint
stock company, an unincorporated organization, a joint venture, a trade or
business (whether or not incorporated), a government (foreign or domestic) and
any agency or political subdivision thereof, or any other entity.
"Plan" shall mean, with respect to any Person, any pension plan (other
than a Multiemployer Plan) subject to Title IV of ERISA or to the minimum
funding standards of Section 412 of the Code which has been established or
maintained by such Person, any Subsidiary of such Person or any ERISA Affiliate,
or by any other Person if such Person, any Subsidiary of such Person or any
ERISA Affiliate could have liability with respect to such pension plan.
"Pledge Agreements" shall mean each pledge agreement entered into by
the Company or any of its Subsidiaries at any time for the benefit of the Agent
and the Lenders pursuant to this Agreement, in form and substance satisfactory
to the Agent, under which any of the Capital Stock of any Foreign Subsidiary is
pledged to the Agent for the benefit of the Agent and the Lenders and subject to
any Intercreditor Agreement, as amended or modified from time to time.
"Prime Rate" shall mean the per annum rate announced by the Agent from
time to time as its "prime rate" (it being acknowledged that such announced rate
may not necessarily be the lowest rate charged by the Agent to any of its
customers), which Prime Rate shall change simultaneously with any change in such
announced rate.
"Prohibited Transaction" shall mean any non-exempt transaction
involving any Plan which is proscribed by Section 406 of ERISA or Section 4975
of the Code.
"Rate Hedging Agreement" shall mean an agreement, device or arrangement
providing for payments which are related to fluctuations of interest rates,
exchange rates or forward rates, including, but not limited to,
dollar-denominated or cross-currency interest rate exchange agreements, forward
currency
12
exchange agreements, interest rate cap or collar protection agreements, forward
rate currency or interest rate options, puts and warrants.
"Reportable Event" shall mean a reportable event as described in
Section 4043(b) of ERISA including those events as to which the thirty (30) day
notice period is waived under Part 2615 of the regulations promulgated by the
PBGC under ERISA.
"Required Lenders" shall mean Lenders at least 51% of the aggregate
Commitments then outstanding (or at least 51% of the Advances if the Commitments
have been terminated).
"Revolving Credit Advance" shall mean any Syndicated Loan and any
Letter of Credit Advance.
"Revolving Credit Note" shall mean any promissory note of the Company
evidencing the Syndicated Loans, in substantially the form annexed hereto as
Exhibit C, as amended or modified from time to time and together with any
promissory note or notes issued in exchange or replacement therefor.
"S&P" shall mean Standard and Poor's Ratings Services, a division of
The McGraw Hill Companies, Inc.
"Senior Note Debt" shall mean the Indebtedness permitted under Section
5.2(j)(vi).
"Senior Note Holders" shall mean the holders of the Senior Note Debt.
"Significant Subsidiary" shall mean any one or more Subsidiaries which,
if considered in the aggregate as a single Subsidiary, would comprise 10% or
more of the total assets of the Company and its Subsidiaries on a consolidated
basis.
"Subsidiary" of any Person shall mean any other Person (whether now
existing or hereafter organized or acquired) in which (other than directors'
qualifying shares required by law) at least a majority of the Capital Stock of
each class having ordinary voting power or analogous rights (other than Capital
Stock which have such power or right only by reason of the happening of a
contingency), at the time as of which any determination is being made, are
owned, beneficially and of record, by such Person or by one or more of the other
Subsidiaries of such Person or by any combination thereof. Unless otherwise
specified, reference to "Subsidiary" shall mean a Subsidiary of the Company.
"Swingline Facility" shall have the meaning specified in Section
2.1(b).
"Swingline Loan" shall mean any loan evidenced by a Swingline Note and
made by the Agent to the Company pursuant to Section 2.1(b).
"Swingline Note" shall mean any promissory note of the Company
evidencing the Swingline Loans in substantially the form of Exhibit D hereto, as
amended or modified from time to time and together with any promissory note or
notes issued in exchange or replacement therefor.
"Syndicated Advance" shall mean any Syndicated Loan or any Letter of
Credit Advance.
13
"Syndicated Eurodollar Rate" shall mean, with respect to any Eurodollar
Rate Syndicated Loan for any Eurodollar Rate Interest Period or portion thereof,
the per annum rate that is equal to the sum of (a) the Applicable Margin, plus
(b) the Eurodollar Base Rate; which Syndicated Eurodollar Rate shall change
simultaneously with any change in such Applicable Margin.
"Syndicated Loan" shall mean any borrowing under Section 2.6 evidenced
by the Revolving Credit Notes and made pursuant to Section 2.1.
"Termination Date" shall mean the earlier to occur of (a) the date five
years after the date hereof and (b) the date on which the Commitments shall be
terminated pursuant to Section 2.4 or 6.2.
"Total Adjusted Capitalization" shall mean, as of any date, the sum of
Net Worth and Total Seasonally Adjusted Debt as of such date.
"Total Debt" as of any date, shall mean, without duplication, all of
the following for the Company and its Subsidiaries on a consolidated basis: (a)
all Indebtedness for borrowed money and similar monetary obligations evidenced
by bonds, notes, debentures, acceptances, Capital Lease obligations or
otherwise, (b) all liabilities secured by any Lien existing on property owned or
acquired by the Company or any Subsidiary subject thereto, whether or not the
liability secured thereby shall have been assumed; (c) all reimbursement
obligations under outstanding letters of credit, bankers' acceptances or similar
instruments in respect of drafts which (i) may be presented or (ii) have been
presented and have not yet been paid and are not included in clause (a) above;
and (d) all guarantees and other Contingent Liabilities relating to
indebtedness, obligations or liabilities of the type described in the foregoing
clauses (a), (b) and (c).
"Total Interest Expense" shall mean, for any period, total interest and
related expense (including, without limitation, that portion of any Capital
Lease obligation attributable to interest expense in conformity with Generally
Accepted Accounting Principles, amortization of debt discount, all capitalized
interest, the interest portion of any deferred payment obligations, all
commissions, discounts and other fees and charges owed with respect to letter of
credit and bankers acceptance financing, the net costs and net payments under
any interest rate hedging, cap or similar agreement or arrangement, prepayment
charges, agency fees, administrative fees, commitment fees and capitalized
transaction costs allocated to interest expense) paid, payable or accrued during
such period, without duplication for any other period, with respect to all
outstanding Indebtedness of the Company and its Subsidiaries, all as determined
for the Company and its Subsidiaries on a consolidated basis for such period in
accordance with Generally Accepted Accounting Principles.
"Total Seasonally Adjusted Debt" shall mean, as of the end of any
fiscal quarter of the Company, the following appropriate amount for such fiscal
quarter end: (a) for any fiscal quarter ending in March or June, 85% of Total
Debt as of the end of such fiscal quarter, and (b) for any fiscal quarter ending
in September or December, 115% of Total Debt as of the end of such fiscal
quarter.
"Transferee" shall have the meaning specified in Section 8.6(i).
"Unfunded Benefit Liabilities" shall mean, with respect to any Plan as
of any date, the amount of the unfunded benefit liabilities determined in
accordance with Section 4001(a)(18) of ERISA.
14
"Year 2000 Issues" shall mean anticipated costs, problems and
uncertainties associated with the inability of certain computer applications to
effectively handle data including dates on and after January 1, 2000, as such
inability affects the business, operations and financial condition of the
Company and its Subsidiaries and of the Company and its Subsidiaries' material
customers, suppliers and vendors.
"Year 2000 Program" is defined in Section 4.18.
1.2 Other Definitions; Rules of Construction. As used herein, the
terms "Agent", "Lenders", "Company", and "this Agreement" shall have the
respective meanings ascribed thereto in the introductory paragraph of this
Agreement. Such terms, together with the other terms defined in Section 1.1,
shall include both the singular and the plural forms thereof and shall be
construed accordingly. Use of the terms "herein", "hereof", and "hereunder"
shall be deemed references to this Agreement in its entirety and not to the
Section or clause in which such term appears. References to "Sections" and
"subsections" shall be to Sections and subsections, respectively, of this
Agreement unless otherwise specifically provided.
1.3 Accounting Terms and Determinations.
(a) Except as otherwise expressly provided herein, all
accounting terms used herein shall be interpreted, and all financial statements
and certificates and reports as to financial matters required to be delivered to
the Lenders hereunder shall (unless otherwise disclosed to the Lenders in
writing at the time of delivery thereof in the manner described in subsection
(b) below) be prepared, in accordance with Generally Accepted Accounting
Principles (subject, in the case of financial statements which are not fiscal
year end statements, to the absence of footnotes and year-end audit
adjustments); provided that, if the Company notifies the Agent that it wishes to
amend any covenant in Article V to eliminate the effect of any change in
Generally Accepted Accounting Principles (or if the Agent notifies the Company
that the Required Lenders wish to amend Article V for such purpose), then the
Company's compliance with such covenants 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 or any such defined term
is amended in a manner satisfactory to the Company and the Required Lenders.
Except as otherwise expressly provided herein, all references to a time of day
shall be references to Detroit, Michigan time. Notwithstanding anything herein,
in any financial statements of the Company or in Generally Accepted Accounting
Principles to the contrary, for purposes of calculating and determining
compliance with the financial covenants in Sections 5.2(a), (b) and (c),
including defined terms used therein, any Acquisitions made by the Company or
any of its Subsidiaries including through mergers or consolidations and
including any related financing transactions, during the period for which such
financial covenants were calculated shall be deemed to have occurred on the
first day of the relevant period for which such financial covenants were
calculated on a pro forma basis acceptable to the Agent.
(b) The Company shall deliver to the Lenders at the same time
as the delivery of any annual or quarterly financial statement under Section
5.1(d) hereof (i) a description in reasonable detail of any material variation
between the application or other modification of accounting principles employed
in the preparation of such statement and the application or other modification
of accounting principles employed in the preparation of the immediately prior
annual or quarterly financial statements as to which no objection has been made
in accordance with the last sentence of subsection (a) above and (ii) reasonable
estimates of the difference between such statements arising as a consequence
thereof.
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(c) To enable the ready and consistent determination of
compliance with the covenants set forth in Section 5.2 hereof, the Company will
not change the last day of its fiscal year from the last Saturday of December of
each year, or the last days of the first three fiscal quarters in each of its
fiscal years from the last Saturday in March, June and September of each year,
respectively.
ARTICLE II.
THE COMMITMENTS, THE SWINGLINE FACILITY AND THE ADVANCES
2.1 Commitments of the Lenders and the Swingline Facility. (a)
Each Lender agrees, for itself only, subject to the terms and conditions of this
Agreement, to make Syndicated Loans to the Company pursuant to Section 2.6 and
Section 3.3 and to participate in Letter of Credit Advances to the Company
pursuant to Section 2.6 from time to time from and including the Effective Date
to but excluding the Termination Date not to exceed in aggregate principal
amount at any time outstanding the amount of its respective Commitment as of the
date any such Syndicated Advance is made; provided, however, that the aggregate
principal amount of Letter of Credit Advances outstanding at any time shall not
exceed $10,000,000.
(b) Swingline Loans. (i) The Company may request the Agent to
make, and the Agent may, in its sole discretion, make Swingline Loans to the
Company from time to time on any Business Day during the period from the
Effective Date until the Termination Date in an aggregate principal amount not
to exceed at any time the lesser of (A) $15,000,000 (the "Swingline Facility")
and (B) the aggregate amount of Syndicated Advances that could be but is not
borrowed as of such date. Each Lender's Commitment shall be deemed utilized by
an amount equal to such Lender's pro rata share (based on such Lender's
Commitment) of each Swingline Loan for purposes of determining the amount of
Syndicated Advances required to be made by such Lender. Swingline Loans shall
bear interest at a rate agreed to by the Agent and the Company, provided that
Swingline Loans shall bear interest at the rate applicable to Floating Rate
Loans at any time the Swingline Loans are refunded by Floating Rate Loans or the
Lenders are required to purchase participations therein under Section
2.1(b)(iii). Within the limits of the Swingline Facility, so long as the Agent,
in its sole discretion, elects to make Swingline Loans, the Company may borrow
and reborrow under this Section 2.1(b)(i).
(ii) The Agent may at any time in its sole and
absolute discretion require that any Swingline Loan be refunded by a Floating
Rate Borrowing from the Lenders, and upon written notice thereof by the Agent to
such Lenders and the Company, the Company shall be deemed to have requested a
Floating Rate Borrowing in an amount equal to the amount of such Swingline Loan,
and such Floating Rate Borrowing shall be made to refund such Swing Line Loan.
Each such Lender shall be absolutely and unconditionally obligated to fund its
pro rata share (based on such Lender's Commitment) of such Floating Rate
Borrowing or, if applicable, purchase a participating interest in the Swingline
Loans pursuant to Section 2.1(b)(iii) and such obligation shall not be affected
by any circumstance, including, without limitation, (A) any set-off,
counterclaim, recoupment, defense or other right which such Lender has or may
have against the Agent, or the Company or any of its Subsidiaries or anyone else
for any reason whatsoever; (B) the occurrence or continuance of a Default or an
Event of Default, subject to Section 2.1(b)(iii); (C) any
16
Material Adverse Effect; (D) any breach of any Loan Document by any other
Lender, the Company or any Guarantor; or (E) any other circumstance, happening
or event whatsoever, whether or not similar to any of the foregoing (including
without limitation the Company's failure to satisfy any conditions contained in
Article II or any other provision of this Agreement).
(iii) If Floating Rate Loans may not be made by the
Lenders as described in Section 2.1(b)(ii) due to any Event of Default pursuant
to Section 6.1(i) or if the Lenders are otherwise legally prohibited from making
Floating Rate Loans, then effective on the date each such Floating Rate Loan
would otherwise have been made, each Lender severally agrees that it shall
unconditionally and irrevocably, without regard to the occurrence of any Default
or Event of Default or any other circumstances, in lieu of deemed disbursement
of Loans, to the extent of such Lender's Commitment, purchase a participating
interest in the Swingline Loans by paying its participation percentage thereof.
Each such Lender will immediately transfer to the Agent, in same day funds, the
amount of its participation. After such payment to the Agent, each Lender shall
share on a pro rata basis (calculated by reference to its Commitment) in any
interest which accrues thereon and in all repayments thereof. If and to the
extent that any such Lender shall not have so made the amount of such
participating interest available to the Agent, such Lender and the Company
severally agree to pay to the Agent forthwith on demand such amount together
with interest thereon, for each day from the date of demand by the Agent until
the date such amount is paid to the Agent, at (A) in the case of the Company,
the interest rate specified above and (B) in the case of such Lender, the
Federal Funds Rate for the first five days after the date of demand by the Agent
and thereafter at the interest rate specified above.
2.2 Bid-Option Loans.
(a) The Bid-Option. From the Effective Date to but excluding
the Termination Date, the Company may, as set forth in this Section 2.2, request
the Lenders to make offers to make Bid-Option Loans to the Company.
Notwithstanding anything herein to the contrary, no more than five requests for
Bid-Option Loans in the aggregate may be requested by the Company in any month.
Each Lender may, but shall have no obligation to, make such offers and the
Company may, but shall have no obligation to, accept any such offers, in the
manner set forth in this Section 2.2; furthermore, each Lender may limit the
aggregate amount of Bid-Option Loans when quoting rates for more than one
Bid-Option Interest Period in any Bid-Option Quote, provided that such
limitation shall not be less than the minimum amounts required hereunder for
Bid-Option Loans and the Company may choose among the Bid-Option Loans if such
limitation is imposed; provided, that the aggregate outstanding principal amount
of Bid-Option Loans shall not at any time exceed the lesser of (i) excess of (A)
the aggregate amount of the Commitments over (B) the sum of the aggregate
outstanding principal amount of Syndicated Advances and Swingline Loans or (ii)
$75,000,000;
(b) Bid-Option Quote Request. When the Company wishes to
request offers to make Bid- Option Loans under this Section 2.2, it shall
transmit to the Agent by telex or telecopy a Bid-Option Quote Request
substantially in the form of Exhibit E hereto so as to be received no later than
11:00 a.m. Detroit time (i) on the Business Day next preceding the date of the
Loan proposed therein, in the case of a Bid-Option Auction for Absolute Rate
Bid-Option Loans, or (ii) the fourth Business Day next preceding the date of the
Loan proposed therein, in the case of a Bid-Option Auction for Eurodollar Rate
Bid-Option Loans specifying:
17
(A) the proposed date of the Bid-Option Loan, which shall
be a Business Day;
(B) the aggregate amount of such Bid-Option Loan, which
shall be a minimum of $3,000,000 or a larger multiple of $1,000,000;
(C) whether the Borrowing is to be an Absolute Rate
Bid-Option Borrowing or a Eurodollar Rate Bid-Option Borrowing; and
(D) the duration of the Interest Period applicable
thereto, subject to the provisions of the definition of Interest Period.
The Company may request offers to make Bid-Option Loans for more than one
Bid-Option Interest Period in a single Bid-Option Quote Request.
(c) Invitation for Bid-Option Quotes. Promptly upon receipt of
a Bid-Option Quote Request, the Agent shall send to the Lenders by telecopy (or
telephone promptly confirmed by telecopy) an Invitation for Bid-Option Quotes
substantially in the form of Exhibit F hereto, which shall constitute an
invitation by the Company to each such Lender to submit Bid-Option Quotes
offering to make the Bid-Option Loans to which such Bid-Option Quote Request
relates in accordance with this Section 2.2.
(d) Submission and Contents of Bid-Option Quotes. (i) Each
Lender may submit a Bid- Option Quote containing an offer or offers to make
Bid-Option Loans in response to any Invitation for Bid- Option Quotes. Each
Bid-Option Quote must comply with the requirements of this subsection (d) and
must be submitted to the Agent by telecopy (or by telephone promptly confirmed
by telecopy) at its office referred to in Section 8.2 not later than (A) 9:00
a.m. Detroit time on the proposed date of the Borrowing, in the case of a Bid-
Option Auction for Absolute Rate Bid-Option Loans, or (B) 9:00 a.m. Detroit time
on the third Business Day prior to the proposed date of the Borrowing, in the
case of a Bid-Option Auction for Eurodollar Rate Bid-Option Loans; provided that
Bid-Option Quotes submitted by the Agent (or any Affiliate of the Agent) in the
capacity of a Lender may be submitted, and may only be submitted, if the Agent
or such Affiliate notifies the Company of the terms of the offer or offers
contained therein not later than (A) 8:45 a.m. Detroit time on the proposed date
of such Borrowing, in the case of a Bid-Option Auction for Absolute Rate
Bid-Option Loans or (B) 8:45 a.m. Detroit time on the third Business Day prior
to the proposed date of the Borrowing, in the case of a Bid-Option Auction for
Eurodollar Rate Bid-Option Loans. Subject to Section 3.8 and Article VI, any
Bid-Option Quote so made shall be irrevocable except with the written consent of
the Agent given on the instructions of the Company.
(ii) Each Bid-Option Quote shall be in
substantially the form of Exhibit G hereto, but may be submitted to the Agent by
telephone with prompt confirmation by delivery to the Agent of such written
Bid-Option Quote, and shall in any case specify:
(A) the proposed date of the Borrowing;
(B) the principal amount of the Bid-Option Loan
for which each such offer is being made, which principal amount (x) must be in a
minimum of $3,000,000 or a larger multiple of
18
$1,000,000, and (y) may not exceed the principal amount of the Bid-Option Loans
for which offers were requested;
(C) whether the Bid-Option Loans for which
the offers are made are
Absolute Rate Bid-Option Loans or Eurodollar Rate Bid-Option Loans, which must
match the type of Borrowing stated in the related Invitation for Bid-Option
Quotes;
(D) the Interest Period(s) for which each
such Bid-Option Absolute Rate
or Bid-Option Eurodollar Rate Margin, as the case may be, is offered;
(E) in the case of a Bid-Option Auction for
Absolute Rate Bid-Option
Loans, the rate of interest per annum (rounded to the nearest 1/1000 of 1%) (the
"Bid-Option Absolute Rate") offered for each such Bid-Option Loan;
(F) in the case of a Bid-Option Auction for
Eurodollar Rate Bid-Option
Loans, the applicable margin, which may be positive or negative (the "Bid-Option
Eurodollar Rate Margin") expressed as a percentage (rounded to the nearest
1/1000 of 1%), offered for each such Bid-Option Loan; and
(G) the identity of the quoting Lender.
(iii) Any Bid-Option Quote shall be disregarded if
it:
(A) is not substantially in the form of
Exhibit G hereto (or submitted by telephone to the Agent with prompt written
confirmation to follow) or does not specify all of the information required by
clause (ii) of this subsection (d);
(B) contains qualifying, conditional or
similar language;
(C) proposes terms other than or in addition
to those set forth in the applicable Invitation for Bid-Option Quotes; or
(D) arrives after the time set forth in
Section 2.2(d)(i);
provided that a Bid-Option Quote shall not be disregarded pursuant to clause (B)
or (C) above solely because it contains an indication that an allocation that
might otherwise be made to it pursuant to Section 2.2(g) would be unacceptable.
The Agent shall notify the Company of any disregarded Bid-Option Quote.
(e) Notice to Company. The Agent shall promptly notify the
Company of the terms of any Bid-Option Quote submitted by a Lender that is in
accordance with Section 2.2(d). Any Bid-Option Quote not made in accordance with
Section 2.2(d) shall be disregarded by the Agent. The Agent's notice to the
Company shall specify (i) the aggregate principal amount of Bid-Option Loans for
which offers have been received for each Bid-Option Interest Period specified in
the related Bid-Option Quote Request, and (ii) the respective principal amounts
and respective Bid-Option Absolute Rates or Bid-Option Eurodollar Rate Margins,
as the case may be, so offered.
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(f) Acceptance and Notice by Company. Not later than 11:00
a.m. Detroit time on (i) the proposed date of a Borrowing, in the case of a
Bid-Option Auction for Absolute Rate Bid-Option Loans or (ii) the third Business
Day prior to the proposed date of the Borrowing, in the case of a Bid-Option
Borrowing for Eurodollar Rate Bid-Option Loans, the Company shall notify the
Agent of its acceptance or non-acceptance of the offers so notified to it
pursuant to subsection (e) of this Section and the Agent shall, promptly upon
receiving such notice from the Company, notify each Lender whose Bid-Option
Quote has been accepted. In the case of acceptance, such notice (a "Notice of
Bid-Option Loan") shall specify the aggregate principal amount of offers for the
applicable Interest Period(s) that have been accepted. The Company may accept
any Bid-Option Quote in whole or in part; provided that:
(i) the aggregate principal amount of each Bid-Option
Loan may not exceed the applicable amount set forth in the related Bid-Option
Quote Request for the applicable Bid-Option Interest Period;
(ii) the principal amount of each Bid-Option Loan must
be $3,000,000 or a larger multiple of $1,000,000;
(iii) acceptance of offers may only be made on the
basis of ascending Bid-Option Absolute Rates or Bid-Option Eurodollar Rate
Margins, as the case may be; and
(iv) the Company may not accept any offer that is
described in Section 2.2(d)(iii) or that otherwise fails to comply with the
requirements of this Agreement.
(g) Allocation by Agent. If offers are made by two or more
Lenders with the same Bid- Option Absolute Rates or Bid-Option Eurodollar Rate
Margins, as the case may be, for a greater aggregate principal amount than the
amount in respect of which offers are accepted for the related Interest Period,
the principal amount of Bid-Option Loans in respect of which such offers are
accepted shall be allocated by the Agent among such Lenders as nearly as
possible (in such multiples, not greater than $100,000, as the Agent may deem
appropriate) in proportion to the aggregate principal amount of such offers.
Determinations by the Agent of the amounts of Bid-Option Loans shall be
conclusive in the absence of manifest error.
2.3 Effect on Commitments. Notwithstanding anything in this
Agreement to the contrary, the sum of the aggregate principal amount of all
Syndicated Loans plus all Letter of Credit Advances (being the maximum amount
available to be drawn under the related Letters of Credit plus the amount of any
draws under Letters of Credit that have not been reimbursed), all Swingline
Loans and all Bid-Option Loans shall not at any time exceed the aggregate amount
of the Commitments of all Lenders. Each Lender's obligation to make its pro rata
portion of any subsequently requested Syndicated Loan or Letter of Credit
Advance shall not be affected by the making by such Lender of a Bid-Option Loan,
and the Lender which has outstanding Bid-Option Loans may be obligated to exceed
its Commitment, provided that, as stated above, the aggregate principal amount
of all Syndicated Loans, all Letters of Credit Advances and all Bid-Option Loans
shall not at any time exceed the aggregate amount of the Commitments of all
Lenders. .
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2.4 Termination and Reduction of Commitments. (a) The Company shall
have the right to terminate or reduce the Commitments at any time and from time
to time at its option, provided that (i) the Company shall give three days'
prior written notice of such termination or reduction to the Agent specifying
the amount and effective date thereof, (ii) each partial reduction of the
Commitments shall be in a minimum amount of $5,000,000 and in an integral
multiple of $1,000,000 thereafter and shall reduce the Commitments of all of the
Lenders proportionately in accordance with the respective commitment amounts for
each such Lender set forth in the signature pages hereof next to the name of
each such Lender, (iii) no such termination or reduction shall be permitted with
respect to any portion of the Commitments as to which a request for a Borrowing
pursuant to Section 2.6 is then pending and (iv) the Commitments may not be
terminated if any Advances are then outstanding and may not be reduced below the
principal amount of Advances then outstanding.
The Commitments or any portion thereof terminated or reduced pursuant
to this Section 2.4(a), whether optional or mandatory, may not be reinstated.
The Company shall immediately prepay the Loans to the extent they exceed the
reduced aggregate Commitments pursuant hereto, and any reduction hereunder shall
reduce the Commitment amount of each Lender proportionately in accordance with
the respective Commitment amounts for each such Lender set forth on the
signature pages hereof next to the name of each such Lender.
(b) For purposes of this Agreement, a Letter of Credit Advance (i)
shall be deemed outstanding in an amount equal to the sum of the maximum amount
available to be drawn under the related Letter of Credit on or after the date of
determination and on or before the stated expiry date thereof plus the amount of
any draws under such Letter of Credit that have not been reimbursed as provided
in Section 3.3 and (ii) shall be deemed outstanding at all times on and before
such stated expiry date or such earlier date on which all amounts available to
be drawn under such Letter of Credit have been fully drawn, and thereafter until
all related reimbursement obligations have been paid pursuant to Section 3.3. As
provided in Section 3.3, upon each payment made by the Agent in respect of any
draft or other demand for payment under any Letter of Credit, the amount of any
Letter of Credit Advance outstanding immediately prior to such payment shall be
automatically reduced by the amount of each Syndicated Loan deemed advanced in
respect of the related reimbursement obligation of the Company.
2.5 Fees. (a) The Company agrees to pay to the Lenders a facility fee
on the amount of the Commitments, whether used or unused, for the period from
the Effective Date to but excluding the Termination Date, at a rate equal to the
Applicable Margin per annum. Accrued facility fees shall be payable quarterly in
arrears on the last Business Day of each March, June, September and December,
commencing on the first such Business Day occurring after the date of this
Agreement, and on the Termination Date.
(b) The Company agrees (i) to pay to the Lenders a fee at a rate
equal to the Applicable Margin per annum, on the maximum amount available to be
drawn from time to time under each Letter of Credit for the period from and
including the date of issuance of such Letter of Credit to and including the
termination of such Letter of Credit, which fees shall be payable quarterly in
arrears on the last Business Day of each March, June, September and December and
on the Termination Date, based upon the Applicable Margin at the time each such
quarterly installment is paid, and (ii) to pay an additional fee to the Agent
for its own account computed at the rate of 0.125% per annum of such maximum
amount for such period, which fees shall be payable quarterly in arrears on the
last Business Day of each March, June, September and December and on the
Termination Date. The Company further agrees to pay to the Agent, on demand,
such other customary administrative fees, charges
21
and expenses of the Agent in respect of the issuance, negotiation, acceptance,
amendment, transfer and payment of such Letter of Credit or otherwise payable
pursuant to the application and related documentation under which such Letter of
Credit is issued.
(c) The Company agrees to pay to the Agent such fees for its
services as Agent under this Agreement in such amounts as may from time to time
be agreed upon by the Company and the Agent.
2.6 Disbursement of Syndicated Advances. (a) The Company shall give the
Agent notice of its request for each Syndicated Advance in substantially the
form of Exhibit H hereto not later than 10:00 a.m. Detroit time (i) three
Eurodollar Business Days prior to the date such Advance is requested to be made
if such Borrowing is to be made as a Eurodollar Rate Syndicated Loan denominated
in Dollars, (ii) two Business Days prior to the date any Letter of Credit
Advance is requested to be made and (iii) on the date such Syndicated Loan is
requested to be made in all other cases, which notice shall specify whether a
Eurodollar Rate Syndicated Loan, Floating Rate Loan or a Letter of Credit
Advance is requested and, in the case of each requested Eurodollar Rate
Syndicated Loan, the Interest Period to be initially applicable to such Loan.
The Company shall give the Agent notice of its request for each Swingline Loan
in such form requested by the Agent not later than 11:00 a.m. Detroit time on
the same Business Day such Swingline Loan is requested to be made. The Agent, on
the same day any such notice is given, shall provide notice of each such
requested Syndicated Loan to each Lender. Subject to the terms and conditions of
this Agreement, the proceeds of each such requested Syndicated Loan and
Swingline Loan shall be made available to the Company by depositing the proceeds
thereof, in immediately available funds, in an account maintained and designated
by the Company at the principal office of the Agent. Subject to the terms and
conditions of this Agreement, the Agent shall, on the date any Letter of Credit
Advance is requested to be made, issue the related Letter of Credit on behalf of
the Lenders for the account of the Company. Notwithstanding anything herein to
the contrary, the Agent may decline to issue any requested Letter of Credit on
the basis that the beneficiary, the purpose of issuance or the terms or the
conditions of drawing are unacceptable to it based upon any legal, policy or
ethical concerns in its reasonable discretion.
(b) Each Lender, on the date any Syndicated Loan is requested to be
made, shall make its pro rata share of such Syndicated Loan available in
immediately available funds for disbursement to the Company pursuant to the
terms and conditions of this Agreement at the principal office of the Agent.
Unless the Agent shall have received notice from any Lender prior to the date
such Syndicated Loan is requested to be made under this Section 2.6 that such
Lender will not make available to the Agent such Lender's pro rata portion of
such Loan, the Agent may assume that such Lender has made such portion available
to the Agent on the date such Loan is requested to be made in accordance with
this Section 2.6. If and to the extent such Lender shall not have so made such
pro rata portion available to the Agent, the Agent may (but shall not be
obligated to) make such amount available to the Company, and such Lender agrees
to pay to the Agent forthwith on demand such amount together with interest
thereon, for each day from the date such amount is made available to the Company
by the Agent until the date such amount is repaid to the Agent, at a rate per
annum equal to the Federal Funds Rate then in effect. If such Lender shall pay
such amount to the Agent together with interest, such amount so paid shall
constitute a Syndicated Loan by such Lender as part of the related Borrowing for
purposes of this Agreement. The failure of any Lender to make its pro rata
portion of any such Borrowing available to the Agent shall not relieve any other
Lender of its obligation to make available its pro rata portion of such Loan on
the date such Loan is requested to be made, but no Lender shall be responsible
for failure of any other Lender to make such pro rata portion available to the
Agent on the date of any such Loan.
22
(c) All Syndicated Loans shall be evidenced by the Revolving
Credit Notes and all Swingline Loans shall be evidenced by the Swingline Note,
and all such Loans shall be due and payable and bear interest as provided in
Article III. Each Lender is hereby authorized by the Company to record on the
schedule attached to the Notes, or in its books and records, the date, amount
and type of each Loan and the duration of the related Interest Period (if
applicable), the amount of each payment or prepayment of principal thereon, and
the other information provided for on such schedule, which schedule or books and
records, as the case may be, shall constitute prima facie evidence of the
information so recorded, provided, however, that failure of any Lender to
record, or any error in recording, any such information shall not relieve the
Company of its obligation to repay the outstanding principal amount of the
Loans, all accrued interest thereon and other amounts payable with respect
thereto in accordance with the terms of the Notes and this Agreement. Subject to
the terms and conditions of this Agreement, the Company may borrow Syndicated
Loans and Swingline Loans under this Section 2.6 and under Section 3.3, prepay
Syndicated Loans and Swingline Loans pursuant to Section 3.1 and reborrow
Syndicated Loans and Swingline Loans under this Section 2.6 and under Section
3.3.
(d) All Bid-Option Loans shall be disbursed directly by the
Lender making such BidOption Loan to the Company by 1:30 p.m. Detroit time on
the date such Bid-Option Loan is requested to be made via wire transfer in
immediately available funds to NBD Bank, 000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000, ABA Number 000000000, Reference: Universal Forest Products, Inc. confirm
to Agency Administration, or as otherwise directed by the Company.
(e) Nothing in this Agreement shall be construed to require or
authorize any Lender to issue any Letter of Credit, it being recognized that the
Agent has the sole obligation under this Agreement to issue Letters of Credit on
behalf of the Lenders, and the Commitment of each Lender with respect to Letter
of Credit Advances is expressly conditioned upon the Agent's performance of such
obligations. Upon such issuance by the Agent, each Lender shall automatically
acquire a pro rata risk participation interest in such Letter of Credit Advance
based on the amount of its respective Commitment. If the Agent shall honor a
draft or other demand for payment presented or made under any Letter of Credit,
the Agent shall provide notice thereof to each Lender on the date such draft or
demand is honored unless the Company shall have satisfied its reimbursement
obligation under Section 3.3 by payment to the Agent on such date. Each Lender,
on such date, shall make its pro rata share of the amount paid by the Agent
available in immediately available funds at the principal office of the Agent
for the account of the Agent. If and to the extent such Lender shall not have
made such pro rata portion available to the Agent, such Lender and the Company
severally agree to pay to the Agent forthwith on demand such amount together
with interest thereon, for each day from the date such amount was paid by the
Agent until such amount is so made available to the Agent at a per annum rate
equal to the Federal Funds Rate. If such Lender shall pay such amount to the
Agent together with such interest, such amount so paid shall constitute a
Syndicated Loan by such Lender as part of the Revolving Credit Borrowing
disbursed in respect of the reimbursement obligation of the Company under
Section 3.3 for purposes of this Agreement. The failure of any Lender to make
its pro rata portion of any such amount paid by the Agent available to the Agent
shall not relieve any other Lender of its obligation to make available its pro
rata portion of such amount, but no Lender shall be responsible for failure of
any other Lender to make such pro rata portion available to the Agent.
23
2.7 Conditions for First Disbursement. The obligation of each Lender to
make its first Advance hereunder is subject to receipt by each Lender and the
Agent of the following documents and completion of the following matters, in
form and substance reasonably satisfactory to the Agent:
(a) Charter Documents. Certificates of recent date of the
appropriate authority or official of each Obligor's respective state of
organization listing all charter documents of each Obligor, on file in that
office and certifying as to the good standing and corporate existence of such
Obligor, together with copies of such charter documents of such Obligor,
certified as of a recent date by such authority or official and certified as
true and correct as of the Effective Date by a duly authorized officer of such
Obligor, respectively;
(b) By-Laws and Corporate Authorizations. Copies of the by-laws of
each Obligor together with all authorizing resolutions and evidence of other
corporate and other action taken by such Obligor to authorize the execution,
delivery and performance by each Obligor of the Loan Documents to which it is a
party and the consummation by each Obligor of the transactions contemplated
hereby or thereby, certified as true and correct as of the Effective Date by a
duly authorized officer of each Obligor, respectively;
(c) Incumbency Certificate. Certificates of incumbency of each
Obligor containing, and attesting to the genuineness of, the signatures of those
officers authorized to act on behalf of each Obligor in connection with the Loan
Documents to which it is a party and the consummation by each Obligor of the
transactions contemplated hereby, certified as true and correct as of the
Effective Date by a duly authorized officer of each Obligor;
(d) Legal Opinion. The favorable written opinion of counsel for
the Obligors in the form of Exhibit I attached hereto;
(e) Consents, Approvals, Etc. Copies of all governmental and
nongovernmental consents, approvals, authorizations, declarations, registrations
or filings, if any, required on the part of the Obligors in connection with the
execution, delivery and performance of the Loan Documents or the transactions
contemplated hereby or as a condition to the legality, validity or
enforceability of the Loan Documents, certified as true and correct and in full
force and effect as of the Effective Date by a duly authorized officer of the
Obligors, or, if none are required, a certificate of such officer(s) to that
effect;
(f) Other Loan Documents. Executed copies of each of the Notes, the
Guaranties and Pledge Agreements, executed by each party thereto, together with
all original stock certificates, stock powers, legal opinions and other
documents required by the Agent in connection therewith; and
(g) Miscellaneous. Such other certificates and documents as may be
reasonably requested by the Agent.
2.8 Further Conditions for Disbursement. The obligation of each Lender
to make any Advance (including its first Advance), or any continuation or
conversion under Section 2.9, is further subject to the satisfaction of the
following conditions precedent:
24
(a) The representations and warranties contained in Article IV
hereof and in any other Loan Document shall be true and correct in all material
respects on and as of the date such Advance is made, continued or converted
(both before and after such Advance is made, continued or converted) as if such
representations and warranties were made on and as of such date; and
(b) No Event of Default and no Default shall exist or shall have
occurred and be continuing on the date such Advance is made, continued or
converted (whether before or after such Advance is made, continued or
converted);
(c) In the case of any Letter of Credit Advance, at least two
Business Days prior to the date such Letter of Credit is to be issued, the
Company shall have delivered to the Agent an application for the related Letter
of Credit and other related documentation requested by and acceptable to the
Agent appropriately completed and duly executed on behalf of the Company.
The Company shall be deemed to have made a representation and warranty to the
Lenders at the time of the making of, and the continuation or conversion of,
each Advance to the effects set forth in clauses (a) and (b) of this Section
2.8. For purposes of this Section 2.8, the representations and warranties
contained in Section 4.6 hereof shall be deemed made with respect to the most
recent financial statements delivered pursuant to Section 5.1(d)(iii).
2.9 Subsequent Elections as to Borrowings. The Company may elect (a)
to continue a Eurodollar Rate Syndicated Borrowing of one type, or a portion
thereof, as a Eurodollar Rate Syndicated Borrowing of the then existing type, or
(b) may elect to convert a Eurodollar Rate Syndicated Borrowing, or a portion
thereof, to a Eurodollar Rate Syndicated Borrowing of another type or (c) elect
to convert a Floating Rate Borrowing, or a portion thereof, to a Eurodollar Rate
Syndicated Borrowing, in each case by giving notice thereof to the Agent (with
sufficient executed copies for each Lender) in substantially the form of Exhibit
J hereto not later than 10:00 a.m. Detroit time (i) three Eurodollar Business
Days prior to the date any such continuation of or conversion to a Eurodollar
Rate Syndicated Borrowing is to be effective, and (ii) the date such
continuation or conversion is to be effective in all other cases, provided that
an outstanding Eurodollar Rate Syndicated Borrowing may only be converted on the
last day of the then current Interest Period with respect to such Borrowing
unless the Company has paid break funding costs as set forth in Section 3.9, and
provided, further, if a continuation of a Borrowing as, or a conversion of a
Borrowing to, a Eurodollar Rate Syndicated Borrowing is requested, such notice
shall also specify the Interest Period to be applicable thereto upon such
continuation or conversion. The Agent, on the day any such notice is given,
shall provide notice of such election to the Lenders. If the Company shall not
timely deliver such a notice with respect to any outstanding Eurodollar Rate
Syndicated Borrowing, the Company shall be deemed to have elected to convert
such Eurodollar Rate Syndicated Borrowing to a Floating Rate Borrowing on the
last day of the then current Interest Period with respect to such Borrowing.
2.10 Limitation of Requests and Elections. Notwithstanding any other
provision of this Agreement to the contrary, if, upon receiving a request for a
Eurodollar Rate Syndicated Borrowing pursuant to Section 2.6, or a request for a
continuation of a Eurodollar Rate Syndicated Borrowing as a Eurodollar Rate
Syndicated Borrowing of the then existing type, or a request for conversion of a
Eurodollar Rate Syndicated Borrowing of one type to a Eurodollar Rate Syndicated
Borrowing of another type, or a request for a conversion of a Floating Rate
Borrowing to a Eurodollar Rate Syndicated Borrowing pursuant to Section 2.9, (a)
in the case of any
25
Eurodollar Rate Syndicated Borrowing, deposits in Dollars for periods comparable
to the Interest Period elected by the Company are not available to any Lender in
the relevant interbank or secondary market and such Lender has provided to the
Agent and the Company a certificate prepared in good faith to that effect, or
(b) any Lender reasonably determines that the Eurodollar Base Rate will not
adequately and fairly reflect the cost to such Lender of making, funding or
maintaining the related Eurodollar Rate Syndicated Loan and such Lender has
provided to the Agent and the Company a certificate prepared in good faith to
that effect, or (c) by reason of national or international financial, political
or economic conditions or by reason of any applicable law, treaty, rule or
regulation (whether domestic or foreign) now or hereafter in effect, or the
interpretation or administration thereof by any governmental authority charged
with the interpretation or administration thereof, or compliance by any Lender
with any directive of such authority (whether or not having the force of law),
including without limitation exchange controls, it is impracticable, unlawful or
impossible for any Lender (i) to make or fund the relevant Eurodollar Rate
Syndicated Borrowing or (ii) to continue such Eurodollar Rate Syndicated
Borrowing as a Eurodollar Rate Syndicated Borrowing of the then existing type or
(iii) to convert a Loan to such a Eurodollar Rate Syndicated Loan, and such
Lender has provided to the Agent and the Company a certificate prepared in good
faith to that effect, then, notwithstanding any other provision herein, (A) the
Commitment of such Lender to make or continue Eurodollar Rate Syndicated
Borrowings or to convert Floating Rate Loans to Eurodollar Rate Syndicated Loans
shall forthwith be canceled until such time as such Lender shall no longer be
subject to such circumstances preventing it from making or maintaining the
affected Loans, and (B) such Lender's Loans then outstanding as Eurodollar Rate
Syndicated Loans, if any, shall be converted automatically to Floating Rate
Loans on the respective last days of the then current Interest Periods with
respect thereto or within such earlier period as may be required by law. If any
such conversion of a Eurodollar Rate Syndicated Loan occurs on a day which is
not the last day of the then current Interest Period with respect thereto, the
Company shall pay to such Lender such amounts, if any, as may be required under
Section 3.9.
2.11 Minimum Amounts; Limitation on Number of Borrowings. Except for
(a) Borrowings and conversions thereof which exhaust the entire remaining amount
of the Commitments, and (b) conversions or payments required pursuant to Section
3.1(b) or Section 3.8, each Syndicated Advance and each continuation or
conversion pursuant to Section 2.9 and each prepayment thereof shall be in a
minimum amount of $3,000,000 and in integral multiples of $1,000,000 or such
lesser amount agreed to by the Agent.
2.12 Notes. The Company agrees that, upon the request of the Agent or
any Lender, the Company will execute and deliver to such Lender Notes for such
Lender, provided that the delivery of such Notes shall not be a condition
precedent to the making of any Advances.
2.13 Security and Collateral To secure or guarantee the payment when
due of all Lender Indebtedness, the Company shall execute and deliver, or cause
to be executed and delivered, to the Lenders and the Agent Loan Documents
granting the following, subject to any Intercreditor Agreement:
(a) Pledges, pursuant to Pledge Agreements, of 65% of the present
and future Capital Stock of certain present and future Foreign Subsidiaries and
Guaranties of certain present and future Domestic Subsidiaries such that, at all
times, the Domestic Subsidiaries which are not Guarantors and the Foreign
Subsidiaries that do not have 65% of their Capital Stock pledged pursuant to
Pledge Agreements do not, if considered in the aggregate as a single Subsidiary,
constitute a Significant Subsidiary; and
(b) All other security and collateral described in the Pledge
Agreements.
26
ARTICLE III.
PAYMENTS AND PREPAYMENTS
3.1 Principal Payments. (a) Unless earlier payment is required
under this Agreement, the Company shall pay to the Lenders on the Termination
Date the entire outstanding principal amount of the Syndicated Loans.
(b) Unless earlier payment is required under this Agreement, the
Company shall, on the maturity date of any Bid-Option Loan, pay to the Lender
providing such Bid-Option Loan the outstanding principal amount of such Loan.
(c) The Company may at any time and from time to time prepay all or
a portion of the Loans without premium in the case of Syndicated Loans, provided
that (i) the Company may not prepay any portion of any Loan as to which an
election for continuation of or conversion to a Eurodollar Rate Syndicated Loan
is pending pursuant to Section 2.9, and (ii) unless earlier payment is required
under this Agreement or unless the Company pays all amounts required pursuant to
Section 3.9, any Eurodollar Rate Syndicated Loan or Bid-Option Loan may only be
prepaid on the last day of the then current Interest Period with respect to such
Loan.
3.2 Interest Payments. The Company shall pay interest to the Lenders on
the unpaid principal amount of each Loan (other than Bid-Option Loans, for which
the interest shall be payable directly to the Lender providing such Bid-Option
Loan as described in clauses (b) and (c) below), for the period commencing on
the date such Loan is made until such Loan is paid in full, on each Interest
Payment Date and at maturity (whether at stated maturity, by acceleration or
otherwise), and thereafter on demand, at the following rates per annum:
(a) With respect to Syndicated Loans:
(i) During such periods that such Loan is a Floating Rate
Loan, the Floating Rate.
(ii) During such periods that such Loan is a Eurodollar Rate
Syndicated Loan, the Syndicated Eurodollar Rate applicable to such Loan for each
related Eurodollar Interest Period.
(b) With respect to Absolute Rate Bid-Option Loans, the Bid-Option
Absolute Rate quoted for such Loan by the Lender making such Loan.
(c) With respect to each Eurodollar Rate Bid-Option Loan, the
Bid-Option Eurodollar Rate.
(d) With respect to Swingline Loans, the rate agreed to by the
Agent and the Company, provided that Swingline Loans shall bear interest at the
rate applicable to Floating Rate Loans at any time the Swingline Loans are
refunded by Floating Rate Loans or the Lenders are required to purchase
participations therein under Section 2.1(b)(iii).
27
Notwithstanding the foregoing paragraphs (a) through (d), the Company shall pay
interest on demand at the Overdue Rate on the outstanding principal amount of
any Loan and any other amount payable by the Company hereunder (other than
interest) upon the occurrence and during the continuance of any Event of
Default.
3.3 Letter of Credit Reimbursement Payments. (a)(i) The Company agrees
to pay to the Lenders, on the day on which the Agent shall honor a draft or
other demand for payment presented or made under any Letter of Credit, an amount
equal to the amount paid by the Agent in respect of such draft or other demand
under such Letter of Credit and all expenses paid or incurred by the Agent
relative thereto. Unless the Company shall have made such payment to the Lenders
on such day, upon each such payment by the Agent, the Agent shall be deemed to
have disbursed to the Company for whose benefit the Letter of Credit was issued,
and the Company shall be deemed to have elected to satisfy its reimbursement
obligation by, a Syndicated Loan bearing interest at the Floating Rate for the
account of the Lenders in an amount equal to the amount so paid by the Agent in
respect of such draft or other demand under such Letter of Credit. Such
Syndicated Loan shall be disbursed notwithstanding any failure to satisfy any
conditions for disbursement of any Loan set forth in Article II hereof and, to
the extent of the Syndicated Loan so disbursed, the reimbursement obligation of
the Company under this Section 3.3 shall be deemed satisfied; provided, however,
that nothing in this Section 3.3 shall be deemed to constitute a waiver of any
Default or Event of Default caused by the failure to the conditions for
disbursement or otherwise.
(ii) If, for any reason (including without limitation as a
result of the occurrence of an Event of Default with respect to the Company
pursuant to Section 6.1(i)), Floating Rate Loans may not be made by the Lenders
as described in Section 3.3(a)(i), then (A) the Company agrees that each
reimbursement amount not paid pursuant to the first sentence of Section
3.3(a)(i) shall bear interest, payable on demand by the Agent, at the interest
rate then applicable to Floating Rate Loans, and (B) effective on the date each
such Floating Rate Loan would otherwise have been made, each Lender severally
agrees that it shall unconditionally and irrevocably, without regard to the
occurrence of any Default or Event of Default, in lieu of deemed disbursement of
loans, to the extent of such Lender's Commitment, purchase a participating
interest in each reimbursement amount. Each Lender will immediately transfer to
the Agent, in same day funds, the amount of its participation. Each Lender shall
share on a pro rata basis (calculated by reference to its Commitment) in any
interest which accrues thereon and in all repayments thereof. If and to the
extent that any Lender shall not have so made the amount of such participating
interest available to the Agent, such Lender and the Company severally agree to
pay to the Agent forthwith on demand such amount together with interest thereon,
for each day from the date of demand by the Agent until the date such amount is
paid to the Agent, at (x) in the case of the Company, the interest rate then
applicable to Floating Rate Loans and (y) in the case of such Lender, the
Federal Funds Rate.
(b) The reimbursement obligation of the Company under this Section
3.3 shall be absolute, unconditional and irrevocable and shall remain in full
force and effect until all obligations of the Company to the Lenders hereunder
shall have been satisfied, and such obligations of the Company shall not be
affected, modified or impaired upon the happening of any event, including
without limitation, any of the following, whether or not with notice to, or the
consent of, the Company:
(i) Any lack of validity or enforceability of any Letter
of Credit or any documentation relating to any Letter of Credit or to any
transaction related in any way to such Letter of Credit (the "Letter of Credit
Documents");
28
(ii) Any amendment, modification, waiver,
consent, or any substitution, exchange or release of or failure to perfect any
interest in collateral or security, with respect to any of the Letter of Credit
Documents;
(iii) The existence of any claim, setoff, defense
or other right which the Company may have at any time against any beneficiary or
any transferee of any Letter of Credit (or any Persons or entities for whom any
such beneficiary or any such transferee may be acting), the Agent or any Lender
or any other Person or entity, whether in connection with any of the Letter of
Credit Documents, the transactions contemplated herein or therein or any
unrelated transactions;
(iv) Any draft or other statement or document
presented under any Letter of Credit proving to be forged, fraudulent, invalid
or insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(v) Payment by the Agent to the beneficiary
under any Letter of Credit against presentation of documents which do not comply
with the terms of the Letter of Credit, including failure of any documents to
bear any reference or adequate reference to such Letter of Credit;
(vi) Any failure, omission, delay or lack on the
part of the Agent or any Lender or any party to any of the Letter of Credit
Documents to enforce, assert or exercise any right, power or remedy conferred
upon the Agent, any Lender or any such party under this Agreement or any of the
Letter of Credit Documents, or any other acts or omissions on the part of the
Agent, any Lender or any such party;
(vii) Any other event or circumstance that would,
in the absence of this clause, result in the release or discharge by operation
of law or otherwise of the Company from the performance or observance of any
obligation, covenant or agreement contained in this Section 3.3.
No setoff, counterclaim, reduction or diminution of any obligation or any
defense of any kind or nature which the Company has or may have against the
beneficiary of any Letter of Credit shall be available hereunder to the Company
against the Agent or any Lender. Nothing in this Section 3.3 shall limit the
liability, if any, of the Lenders to the Company pursuant to Section 8.5.
3.4 Payment Method. (a) All payments to be made by the Company
hereunder will be made to the Agent at its principal office for the account of
the Lenders in Dollars and in immediately available, freely transferable,
cleared funds not later than 1:00 p.m. (Detroit time) on the date on which such
payment shall be due. Payments received after 1:00 p.m. at the place for payment
shall be deemed to be payments made prior to 1:00 p.m. at the place for payment
on the next succeeding Business Day. The Company hereby authorizes the Agent to
charge its account with the Agent in order to cause timely payment of amounts
due hereunder to be made (subject to sufficient funds being available in such
account for that purpose).
(b) At the time of making each such payment, the Company
shall, subject to the other terms and conditions of this Agreement, specify to
the Agent that Borrowing or other obligation of the Company hereunder to which
such payment is to be applied. In the event that the Company fails to so specify
the relevant
29
obligation or if an Event of Default shall have occurred and be continuing, the
Agent may apply such payments as it may determine in its sole discretion to
obligations of the Company to the Lenders arising under the Loan Documents.
(c) On the day such payments are deemed received, the Agent shall
remit to the Lenders their pro rata shares of such payments in immediately
available funds, to the Lenders at their respective address in the United States
specified for notices pursuant to Section 8.2. Such pro rata shares shall be
determined with respect to each such Lender, (A) in the case of payments of
principal and interest on any Borrowing, by the ratio which the outstanding
principal balance of its Loan included in such Borrowing bears to the
outstanding principal balance of the Loans of all of the Lenders included in
such Borrowing and (B) in the case of fees paid pursuant to Section 2.5 and
other amounts payable hereunder (other than the Agent's fees payable pursuant to
Section 2.5(d) and amounts payable to any Lender under Section 2.6 or 3.7) by
the ratio which the Commitment of such Lender bears to the Commitments of all
the Lenders.
3.5 No Setoff or Deduction. Subject to Section 7.15, all payments of
principal of and interest on the Loans and other amounts payable by the Company
hereunder shall be made by the Company 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, fees, assessments, or other
charges of whatever nature, imposed by any governmental authority, or by any
department, agency or other political subdivision or taxing authority, unless
required by applicable laws. If any such taxes, levies, imposts, duties, fees,
assessments, or other charges are required to be withheld from any amounts
payable hereunder with respect to any Advance, the amounts so payable shall be
increased to the extent necessary to yield to the payee thereof the interest or
any such other amounts payable hereunder at the rates and in the amounts
specified in this Agreement.
3.6 Payment on Non-Business Day; Payment Computations. Except as
otherwise provided in this Agreement to the contrary, whenever any installment
of principal of, or interest on, any Loan or any other amount due hereunder
becomes due and payable on a day which is not a Business Day, the maturity
thereof shall be extended to the next succeeding Business Day and, in the case
of any installment of principal, interest shall be payable thereon at the rate
per annum determined in accordance with this Agreement during such extension.
Computations of interest and other amounts due under this Agreement shall be
made on the basis of a year of 360 days for the actual number of days elapsed,
including the first day but excluding the last day of the relevant period.
3.7 Additional Costs. (a) If the adoption of or any change in any law,
treaty, rule or regulation (whether domestic or foreign) applicable to any
Lender or the Agent, or in any interpretation, application or administration
thereof by any governmental authority charged with the interpretation or
administration thereof, or compliance by any Lender or the Agent with any
directive of any such authority (whether or not having the force of law) made
subsequent to the Effective Date, shall (i) affect the basis of taxation of
payments to any Lender or the Agent of any amounts payable by the Company under
this Agreement (other than taxes imposed on the overall net income of the Lender
or the Agent, by the jurisdiction, or by any political subdivision or taxing
authority of any such jurisdiction, in which any Lender or the Agent, as the
case may be, has its principal office), or (ii) shall impose, modify or deem
applicable any reserve, special deposit or similar requirement against assets
of, deposits with or for the account of, or credit extended by any Lender or the
Agent, as the case may be, or (iii) shall impose any other condition with
respect to this Agreement, the Commitments, the Notes or the Advances,
30
and the result of any of the foregoing is to increase the cost to any Lender or
the Agent, as the case may be, of making, funding or maintaining any Fixed Rate
Loan or to reduce the amount of any sum receivable by any Lender or the Agent,
thereon, then the Company shall pay to such Lender or the Agent, as the case may
be, from time to time, upon request by such Lender (with a copy of such request
to be provided to the Agent) or the Agent, additional amounts sufficient to
compensate such Lender or the Agent, as the case may be, for such increased cost
or reduced sum receivable to the extent, such Lender or the Agent, as the case
may be, is not compensated therefor in the computation of the interest rate
applicable to such Loan. Each Lender or the Agent, as the case may be, seeking
compensation hereunder shall deliver to the Company a statement setting forth
such increased cost or reduced sum receivable as such Lender or the Agent, as
the case may be, has calculated in good faith. Such statement as to the amount
of such increased cost or reduced sum receivable, prepared in good faith and in
reasonable detail by such Lender or the Agent, as the case may be, and submitted
by such Lender or the Agent, as the case may be, to the Company, shall be
conclusive and binding for all purposes absent manifest error in computation.
(b) If the adoption of or any change in any law, treaty, rule
or regulation (whether domestic or foreign) applicable to any Lender or the
Agent, but applicable to banks or financial institutions generally, or in any
interpretation or administration thereof by any governmental authority charged
with the interpretation, application or administration thereof, or compliance by
any Lender or the Agent with any directive of any such authority (whether or not
having the force of law), including any risk-based capital guidelines made
subsequent to the Effective Date, affects the amount of capital required or
expected to be maintained by such Lender or the Agent (or any corporation
controlling such Lender or the Agent) and such Lender or the Agent, as the case
may be, determines that the amount of such capital is increased by or based upon
the existence of such Lender's or the Agent's obligations hereunder and such
increase has the effect of reducing the rate of return on such Lender's or the
Agent's (or such controlling corporation's) capital as a consequence of such
obligations hereunder to a level below that which such Lender or the Agent (or
such controlling corporation) could have achieved but for such circumstances
(taking into consideration its policies with respect to capital adequacy) by an
amount deemed by such Lender or the Agent to be material, then the Company shall
pay to such Lender or the Agent, as the case may be, from time to time, upon
request by such Lender (with a copy of such request to be provided to the Agent)
or the Agent, additional amounts sufficient to compensate such Lender or the
Agent (or such controlling corporation) for any reduced rate of return which
such Lender or the Agent reasonably determines to be allocable to the existence
of such Lender's or the Agent's obligations hereunder. Each Lender or the Agent,
as the case may be, seeking compensation hereunder shall deliver to the Company
a statement setting forth such increased cost or reduced sum receivable as such
Lender or the Agent, as the case may be, has calculated in good faith. Such
statement as to the amount of such compensation, prepared in good faith and in
reasonable detail by such Lender or the Agent, as the case may be, and submitted
by such Lender or the Agent to the Company, shall be conclusive and binding for
all purposes absent manifest error in computation.
(c) Each Lender will promptly notify the Company and the Agent
of any event of which it has actual knowledge occurring after the date hereof
which will entitle to such Lender to compensation pursuant to this Section 3.7
and will designate a different Applicable Lending Office if such designation
will avoid the need for, or reduce the amount of, such compensation and will
not, in the judgment of such Lender, be otherwise disadvantageous to such Lender
or contrary to its policies.
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3.8 Illegality and Impossibility. In the event that any applicable
law, treaty, rule or regulation (whether domestic or foreign) now or hereafter
in effect and whether or not presently applicable to any Lender, or any
interpretation or administration thereof by any governmental authority charged
with the interpretation or administration thereof, or compliance by any Lender
with any directive of such authority (whether or not having the force of law),
including without limitation exchange controls, shall make it unlawful or
impossible for any Lender to maintain any Fixed Rate Loan under this Agreement
or shall make it impracticable, unlawful or impossible for, or shall in any way
limit or impair the ability of, the Company to make or any Lender to receive any
payment under this Agreement at the place specified for payment hereunder, or to
freely convert any amount paid into Dollars at market rates of exchange or to
transfer any amount paid or so converted to the address of its principal office
specified in Section 8.2, the Company shall upon receipt of notice thereof from
such Lender, repay in full the then outstanding principal amount of each Fixed
Rate Loan so affected, together with all accrued interest thereon to the date of
payment and all amounts owing to such Lender under Section 3.9, (a) on the last
day of the then current Interest Period applicable to such Loan if such Lender
may lawfully continue to maintain such Loan to such day, or (b) immediately if
such Lender may not continue to maintain such Loan to such day.
3.9 Indemnification. If the Company makes any payment of principal
with respect to any Fixed Rate Loan on any other date than the last day of an
Interest Period applicable thereto (whether pursuant to Section 3.8 or Section
6.2 or otherwise), or if the Company fails to borrow or continue any Fixed Rate
Loan, or convert any Floating Rate Loan to a Fixed Rate Loan, after notice has
been given to the Lenders in accordance with Section 2.6 or 2.9, as applicable,
the Company shall reimburse each Lender on demand for any resulting net loss or
expense incurred by each such Lender after giving credit for any earnings or
other quantifiable financial benefit to such Lender from such Lender's
investment or other amounts prepaid or not reborrowed, including without
limitation any loss incurred in obtaining, liquidating or employing deposits
from third parties, whether or not such Lender shall have funded or committed to
fund such Loan. A statement as to the amount of such loss or expense, prepared
in good faith and in reasonable detail by such Lender and submitted by such
Lender to the Company, shall be conclusive and binding for all purposes absent
manifest error in computation. Calculation of all amounts payable to such Lender
under this Section 3.9 shall be made as though such Lender shall have actually
funded or committed to fund the relevant Fixed Rate Loan through the purchase of
an underlying deposit in an amount equal to the amount of such Loan and having a
maturity comparable to the related Interest Period; provided, however, that such
Lender may fund any Fixed Rate Loan in any manner it sees fit and the foregoing
assumption shall be utilized only for the purpose of calculation of amounts
payable under this Section 3.9.
3.10 Substitution of Lender. If (a) the obligation of any Lender to
make or maintain Eurodollar Rate Syndicated Loans has been suspended pursuant to
Section 3.8 or 2.10 when not all Lenders obligations have been suspended, (b)
any Lender has demanded compensation under Section 3.7 or (c) any Lender is a
Defaulting Lender, the Company shall have the right, if no Default or Event of
Default then exists, to replace such Lender (a "Replaced Lender") with one or
more other Lenders (collectively, the "Replacement Lender") acceptable to the
Agent, provided that (i) at the time of any replacement pursuant to this Section
3.10, the Replacement Lender shall enter into one or more Assignment and
Acceptances, pursuant to which the Replacement Lender shall acquire the
Commitments and outstanding Advances and other obligations of the Replaced
Lender and, in connection therewith, shall pay to the Replaced Lender in respect
thereof an amount equal to the sum of (A) the amount of principal of, and all
accrued interest on, all outstanding Loans of the Replaced Lender, (B) the
amount of all accrued, but theretofore unpaid, fees owing to the Replaced Lender
under Section 2.3 and (C) the amount
32
which would be payable by the Company to the Replaced Lender pursuant to Section
3.9 if the Company prepaid at the time of such replacement all of the Loans of
such Replaced Lender outstanding at such time and (ii) all obligations of the
Company then owing to the Replaced Lender (other than those specifically
described in clause (i) above in respect of which the assignment purchase price
has been, or is concurrently being, paid) shall be paid in full to such Replaced
Lender concurrently with such replacement. Upon the execution of the respective
Assignment and Acceptances, the payment of amounts referred to in clauses (i)
and (ii) above and, if so requested by the Replacement Lender, delivery to the
Replacement Lender of the appropriate Note or Notes, if any, executed by the
Company, the Replacement Lender shall become a Lender hereunder and the Replaced
Lender shall cease to constitute a Lender hereunder. The provisions of this
Agreement (including without limitation Sections 3.9 and 8.5) shall continue to
govern the rights and obligations of a Replaced Lender with respect to any
Advances made or any other actions taken by such Lender while it was a Lender.
Nothing herein shall release any Defaulting Lender from any obligation it may
have to the Company, the Agent or any other Lender.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Agent and the Lenders that:
4.1 Corporate Existence and Power. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the state or
other political subdivision of its jurisdiction of incorporation or
organization, as the case may be, and is duly qualified to do business, and is
in good standing, in all additional jurisdictions where such qualification is
necessary under applicable law, except where the failure to be so qualified
would not have a Material Adverse Effect. The Company has all requisite
corporate and other power to own or lease the properties used in its business
and to carry on its business as now being conducted and as proposed to be
conducted, and to execute and deliver this Agreement and the other Loan
Documents to which it is a party and to engage in the transactions contemplated
by the Loan Documents.
4.2 Corporate Authority. The execution, delivery and performance by the
Company of the Loan Documents to which it is a party have been duly authorized
by all necessary corporate action and are not in contravention of any material
law, rule or regulation, or any judgment, decree, writ, injunction, order or
award of any arbitrator, court or governmental authority, or of the terms of the
Company's charter or by-laws, or of any material contract or undertaking to
which the Company is a party or by which the Company or its property is bound or
affected and do not result in the imposition of any Lien except for Permitted
Liens.
4.3 Binding Effect. The Loan Documents to which the Company is a party
are the legal, valid and binding obligations of the Company enforceable against
the Company in accordance with their respective terms; except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to creditors' rights and except that
the remedy of specific performance and injunctive and other forms of equitable
relief are subject to equitable defenses and to the discretion of the court
before which any proceedings may be brought.
4.4 Subsidiaries. Schedule 4.4 hereto correctly sets forth the
corporate name, jurisdiction of organization and ownership of each Subsidiary of
the Company. Each Subsidiary and each Person becoming a
33
Subsidiary of the Company after the date hereof is and will be duly organized,
validly existing and in good standing under the laws of its jurisdiction of
organization and is and will be duly qualified to do business in each additional
jurisdiction where such qualification is or may be necessary under applicable
law, except where the failure to be so qualified would not have a Material
Adverse Effect. Each Subsidiary of the Company has and will have all requisite
corporate power to own or lease the properties used in its business and to carry
on its business as now being conducted and as proposed to be conducted. All
outstanding shares of Capital Stock of each Subsidiary of the Company have been
and will be validly issued and are and will be fully paid and nonassessable and,
except as otherwise indicated in Schedule 4.4 hereto or disclosed in writing to
the Agent from time to time, are and will be owned, beneficially and of record,
by the Company or another Subsidiary of the Company free and clear of any Liens.
4.5 Litigation. Except as set forth in Schedule 4.5 hereto, there is no
action, suit or proceeding pending or, to the best of the Company's knowledge,
threatened against or affecting the Company or any of its Subsidiaries before or
by any court, governmental authority or arbitrator, which is reasonably likely
to result either individually or collectively, in a Material Adverse Effect and,
to the best of the Company's knowledge, there is no basis for any such action,
suit or proceeding.
4.6 Financial Condition. The consolidated balance sheet of the Company
and its Subsidiaries and the consolidated statements of income, and cash flows
of the Company and its Subsidiaries for the fiscal year ended December 27, 1997
and reported on by Deloitte & Touche LLP, independent certified public
accountants, and the interim consolidated balance sheet and interim consolidated
statements of income and cash flows of the Company and its Subsidiaries, as of
or for the six month period ended on June 27, 1998, copies of which have been
furnished to the Lenders, fairly present, and the financial statements of the
Company and its Subsidiaries delivered pursuant to Section 5.1(d) will fairly
present the consolidated financial position of the Company and its Subsidiaries
as at the respective dates thereof, and the consolidated results of operations
of the Company and its Subsidiaries for the respective periods indicated, all in
accordance with Generally Accepted Accounting Principles consistently applied
(subject, in the case of said interim statements, to year-end audit
adjustments). There has been no Material Adverse Effect since the date of the
consolidated balance sheet of the Company delivered to the Lenders prior to the
Effective Date.
4.7 Use of Loans. The Company will use the proceeds of the Loans for
its working capital requirements and general corporate purposes. Neither the
Company nor any of its Subsidiaries extends or maintains, in the ordinary course
of business, credit for the purpose, whether immediate, incidental, or ultimate,
of buying or carrying margin stock (within the meaning of Regulations T, U or X
of the Board of Governors of the Federal Reserve System), and no part of the
proceeds will be used in violation of Regulations T, U or X or any other law or
regulation. After applying the proceeds of each Loan, such margin stock will not
constitute more than 25% of the value of the assets (either of the Company alone
or of the Company and its Subsidiaries on a consolidated basis) that are subject
to any provisions of this Agreement that may cause the Loans to be deemed
secured, directly or indirectly, by such margin stock.
4.8 Consents, Etc. Except for such consents, approvals, authorizations,
declarations, registrations or filings delivered by the Company pursuant to
Section 2.7(f), if any, each of which is in full force and effect, no consent,
approval or authorization of or declaration, registration or filing with any
governmental authority or any nongovernmental Person, including without
limitation any creditor, lessor or stockholder of the Company or
34
Guarantor, is required on the part of the Company or Guarantor in connection
with the execution, delivery and performance of the Loan Documents, or the
transactions contemplated hereby or as a condition to the legality, validity or
enforceability of the Loan Documents. The Company and its Subsidiaries have
complied 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 properties if failure to comply
therewith could reasonably be expected to have a Material Adverse Effect.
4.9 Taxes. The Company and its Subsidiaries have filed all material
tax returns (federal, state and local) required to be filed and have paid all
taxes shown thereon to be due, including interest and penalties, or have
established adequate financial reserves on their respective books and records
for payment thereof except where the failure to file such returns, pay such
taxes or establish such reserves would not have a Material Adverse Effect.
4.10 Title to Properties. Except as otherwise disclosed in the latest
balance sheet delivered pursuant to this Agreement, the Company or one or more
of its Subsidiaries have good and marketable fee simple title to all of the real
property, and a valid and indefeasible ownership interest in all of the other
properties and assets reflected in said balance sheet or subsequently acquired
by the Company or any such Subsidiary material to the business or financial
condition of the Company and its Subsidiaries taken as a whole, except for title
defects that do not have a Material Adverse Effect. All of such properties and
assets are free and clear of any Lien, except for Permitted Liens. The Company
and each of its Subsidiaries owns, or is licensed to use, all patents,
trademarks, trade names, service marks, copyrights, technology, know-how and
processes necessary for the conduct of its business as currently conducted and
as contemplated to be conducted (the "Intellectual Property"), and the use of
such Intellectual Property by the Company and each of its Subsidiaries does not
infringe on the rights of any Person. The Pledge Agreements grant a first
priority, perfected and enforceable lien and security interest on 65% of the
Capital Stock of certain Foreign Subsidiaries owned by the Company or any
Guarantor to the extent that 65% of the Capital Stock of such Foreign
Subsidiaries is required to be pledged by Section 2.13.
4.11 ERISA. The Company, its Subsidiaries, their ERISA Affiliates and
their respective Plans are in substantial compliance in all material respects
with those provisions of ERISA and of the Code which are applicable with respect
to any Plan. No Prohibited Transaction and no Reportable Event has occurred with
respect to any such Plan which would cause an Event of Default. Neither the
Company, any of its Subsidiaries nor any of their ERISA Affiliates is an
employer with respect to any Multiemployer Plan. The Company, its Subsidiaries
and their ERISA Affiliates have met the minimum funding requirements under ERISA
and the Code with respect to each of their respective Plans, if any, and have
not incurred any liability to the PBGC, other than premiums which are not yet
due and payable. The execution, delivery and performance of the Loan Documents
does not constitute a Prohibited Transaction. There is no material unfunded
benefit liability, determined in accordance with Section 4001(a)(18) of ERISA,
with respect to any Plan of the Company, its Subsidiaries or their ERISA
Affiliates.
4.12 Environmental and Safety Matters. Except as disclosed on Schedule
4.12 hereto, the Company and each Subsidiary of the Company is in substantial
compliance with all material federal, state and local laws, ordinances and
regulations relating to safety and industrial hygiene or to the environmental
condition, including
35
without limitation all material Environmental Laws in jurisdictions in which the
Company or any such Subsidiary owns or operates, or has owned or operated, a
facility or site, or arranges or has arranged for disposal or treatment of
hazardous substances, solid waste, or other wastes, accepts or has accepted for
transport any hazardous substances, solid wastes or other wastes or holds or has
held any interest in real property or otherwise. No written demand, claim,
notice, suit, suit in equity, action, administrative action, investigation or
inquiry whether brought by any governmental authority, private Person or
otherwise, arising under, relating to or in connection with any Environmental
Laws is pending or, to the best of the Company's actual knowledge, threatened
against the Company or any such Subsidiary, any real property in which the
Company or any such Subsidiary holds or has held an interest or any past or
present operation of the Company or any such Subsidiary which could have a
Material Adverse Effect. As of the date hereof, except as disclosed in Schedule
4.12 hereto, neither the Company nor any Subsidiary of the Company (a) is the
subject of any federal or state investigation evaluating whether any remedial
action is needed to respond to a release of any toxic substances, radioactive
materials, hazardous wastes or related materials into the environment, or (b)
has received any notice of any toxic substances, radioactive materials,
hazardous waste or related materials in, or upon any of its properties in
violation of any Environmental Laws. As to the matters disclosed in Schedule
4.12 hereto, none could have a Material Adverse Effect. No release, threatened
release or disposal of hazardous waste, solid waste or other wastes is occurring
or has occurred on, under or to any real property in which the Company or any of
its Subsidiaries holds any interest or performs any of its operations, in
violation of any Environmental Law which could have a Material Adverse Effect.
4.13 Material Agreements. Neither the Company 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 Company 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.
4.14 Compliance With Laws. The Company and its Subsidiaries have
complied 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 any failure
to comply with any of the foregoing which could not reasonably be expected to
have a Material Adverse Effect.
4.15 Plan Assets; Prohibited Transactions. The Company is not an entity
deemed to hold "plan assets" within the meaning of 29 C.F.R. ss. 2510.3-101 of
an employee benefit plan (as defined in Section 3(3) of ERISA) which is subject
to Title I of ERISA or any plan (within the meaning of Section 4975 of the
Code), and neither the execution of this Agreement nor the making of Advances
hereunder gives rise to a Prohibited Transaction.
4.16 Investment Company Act. Neither the Company nor any Subsidiary is
an "investment company" or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended.
36
4.17 Public Utility Holding Company Act. Neither the Company 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.
4.18 Year 2000. The Company has made a full and complete assessment of
the Year 2000 Issues and has a realistic and achievable program for remediating
the Year 2000 Issues on a timely basis (the "Year 2000 Program"). Based on such
assessment and on the Year 2000 Program the Company does not reasonably
anticipate that Year 2000 Issues will have a Material Adverse Effect.
ARTICLE V.
COVENANTS
5.1 Affirmative Covenants. The Company covenants and agrees that,
until the Termination Date and thereafter until irrevocable payment in full of
the principal of and accrued interest on the Advances and the performance of all
other obligations of the Obligors under the Loan Documents, unless the Required
Lenders shall otherwise consent in writing, it shall, and shall cause each of
its Subsidiaries to:
(a) Preservation of Corporate Existence, Etc. Do or cause to be
done all things necessary to preserve, renew and keep in full force and effect
its legal existence, except to the extent permitted by Section 5.2(e) or 5.2(f),
and its qualification as a foreign corporation in good standing in each
jurisdiction in which such qualification is necessary under applicable law,
other than where failure to so qualify will not have a Material Adverse Effect.
(b) Compliance with Laws, Etc. Comply in all material respects
with all applicable laws, rules, regulations and orders of any governmental
authority, whether federal, state, local or foreign (including without
limitation ERISA, the Code and Environmental Laws), in effect from time to time,
and pay and discharge promptly when due all taxes, assessments and governmental
charges or levies imposed upon it or upon its income, revenues or property,
before the same shall become delinquent or in default, as well as all lawful
claims for labor, materials and supplies or otherwise, which, if unpaid, might
give rise to Liens upon such properties or any portion thereof, except (i) to
the extent that payment of any of the foregoing is then being contested in good
faith by appropriate legal proceedings or (ii) to the extent that failure to pay
any of the foregoing or comply with any of the foregoing relates solely to
Subsidiaries which are not wholly-owned Subsidiaries of the Company or
Guarantors and if all such non wholly-owned Subsidiaries do not, if considered
in the aggregate as a single Subsidiary, constitute a Significant Subsidiary and
such failure could not have a Material Adverse Effect (but the Company shall
provide notice to the Agent of the occurrence of any such failure to comply or
failure to pay described in this proviso).
(c) Maintenance of Properties; Insurance. Maintain, preserve and
protect all property that is material to the conduct of the business of the
Company or any of its Subsidiaries and keep such property in good repair,
working order and condition and from time to time make, or cause to be made all
needful and proper repairs, renewals, additions, improvements and replacements
thereto necessary in order that the business carried on in connection therewith
may be properly conducted at all times in accordance with customary and prudent
37
business practices for similar businesses; and, maintain in full force and
effect insurance with responsible and reputable insurance companies or
associations in such amounts, on such terms and covering such risks, as is
usually carried by companies engaged in similar businesses and owning similar
properties similarly situated and maintain in full force and effect public
liability insurance, insurance against claims for Personal injury or death or
property damage occurring in connection with any of its activities or any
properties owned, occupied or controlled by it, in such amount as it shall
reasonably deem necessary.
(d) Reporting Requirements. Furnish to the Lenders and
the Agent the following:
(i) Promptly and in any event within three
calendar days after becoming aware of the occurrence of (A) any Event of Default
or Default, or (B) the commencement of any material litigation against, by or
affecting the Company or any of its Subsidiaries, and any material developments
therein, together with a statement of the chief financial officer of the Company
setting forth details of such Event of Default or Default or such litigation and
the action which the Company or such Subsidiary, as the case may be, has taken
and proposes to take with respect thereto;
(ii) As soon as available and in any event within
45 days after the end of each of the first three fiscal quarters of each fiscal
year of the Company, the consolidated balance sheet of the Company and its
Subsidiaries as of the end of such quarter, and the related consolidated
statements of income and cash flow for the period commencing at the end of the
previous fiscal year and ending with the end of such quarter, setting forth in
each case in comparative form the corresponding figures for the corresponding
date or period of the preceding fiscal year, all in reasonable detail and duly
certified (subject to year-end audit adjustments) by the chief financial officer
of the Company as having been prepared in accordance with Generally Accepted
Accounting Principles, together with a certificate of the chief financial
officer of the Company stating (A) that no Event of Default or Default has
occurred and is continuing or, if an Event of Default or Default has occurred
and is continuing, a statement setting forth the details thereof and the action
which the Company has taken and proposes to take with respect thereto, and (B)
that a computation (which computation shall accompany such certificate and shall
be in reasonable detail) showing compliance with Section 5.2(a), (b), and (c);
(iii) As soon as available and in any event within
90 days after the end of each fiscal year of the Company, a copy of the
consolidated balance sheet of the Company and its Subsidiaries as of the end of
such fiscal year and the related consolidated statements of income and cash flow
of the Company and its Subsidiaries for such fiscal year, with a customary audit
report of Deloitte & Touche LLP or other nationally recognized independent
certified public accountants selected by the Company, without qualifications
unacceptable to the Agent, together with a certificate of the chief financial
officer of the Company stating (A) that no Event of Default or Default has
occurred and is continuing or, if an Event of Default or Default has occurred
and is continuing, a statement setting forth the details thereof and the action
which the Company has taken and proposes to take with respect thereto, and (B)
that a computation (which computation shall accompany such certificate and shall
be in reasonable detail) showing compliance with Section 5.2(a), (b), and (c);
(iv) As soon as available and in any event within
90 days after the beginning of each fiscal year of the Company, a budget and
forecast for such fiscal year in form and substance reasonably satisfactory to
the Agent;
38
(v) Promptly after the sending or filing thereof, copies
of all reports, proxy statements and financial statements which the Company
sends to or files with any of its security holders or any securities exchange or
the Securities and Exchange Commission or any successor agency thereof;
(vi) Promptly and in any event within 10 Business Days
after receiving or becoming aware thereof (A) a copy of any notice of intent to
terminate any Plan of the Company, its Subsidiaries or any ERISA Affiliate filed
with the PBGC, (B) a statement of the chief financial officer of the Company
setting forth the details of the occurrence of any Reportable Event with respect
to any such Plan, (C) a copy of any notice that the Company, any of its
Subsidiaries or any ERISA Affiliate may receive from the PBGC relating to the
intention of the PBGC to terminate any such Plan or to appoint a trustee to
administer any such Plan, (D) a copy of any notice of failure to make a required
installment or other payment within the meaning of Section 412(n) of the Code or
Section 302(f) of ERISA with respect to any such Plan, or (E) any management
letter or comparable analysis received by the Company from its auditors; and
(vii) Promptly, such other information respecting the
business, properties, operations or condition, financial or otherwise, of the
Company or any of its Subsidiaries as any Lender or the Agent may from time to
time reasonably request.
(e) Accounting; Access to Records, Books, Etc. Maintain a
system of accounting established and administered in accordance with sound
business practices to permit preparation of financial statements in accordance
with Generally Accepted Accounting Principles and to comply with the
requirements of this Agreement and, at any reasonable time and from time to time
with prior notice to the Company, permit any Lender or the Agent or any agents
or representatives thereof to examine and make copies of and abstracts from the
records and books of account of, and visit the properties of, the Company and
its Subsidiaries, and to discuss the affairs, finances and accounts of the
Company and its Subsidiaries with its directors, officers, employees and
independent auditors, provided that representatives of the Company selected by
the Company are present during any such visit or discussion, and by this
provision the Company does hereby authorize such Persons to discuss such
affairs, finances and accounts with any Lender or the Agent subject to the above
terms and conditions. The Company shall send a written notification to its
auditors informing them at each time the Company engages any auditors that it is
the primary intent of the Company for the auditors' accounting services to
benefit or influence the Lenders and the Agent.
(f) Guaranties and Pledge Agreements. Cause each Person that
is or becomes a Guarantor from time to time promptly to execute and deliver a
Guaranty to the Lenders and execute or cause the appropriate Guarantor to
execute, additional Pledge Agreements or amendments to existing Pledge
Agreements to grant the liens and security interests required under Section 2.13
hereof, in each case together with the other documentation relating to such
Guaranty or Pledge Agreement similar to that required to be delivered by or on
behalf of the Obligors under Section 2.7.
(g) Further Assurances. Will, and will cause each Guarantor
to, execute and deliver within 30 days after request therefor by the Required
Lenders or the Agent, all further instruments and documents and take all further
action that may be necessary or desirable, in order to give effect to, and to
aid in the exercise and enforcement of the rights and remedies of the Lenders
and the Agent under, the Loan Documents. In addition, the Company agrees to
deliver to the Agent and the Lenders from time to time upon the acquisition or
creation
39
of any Subsidiary not listed in Schedule 4.4 hereto supplements to Schedule 4.4
such that such Schedule, together with such supplements, shall at all times
accurately reflect the information provided for thereon.
(h) Year 2000. Take, and cause each of its Subsidiaries to take,
all such actions as are reasonably necessary to successfully implement the Year
2000 Program and to assure that Year 2000 Issues will not have a Material
Adverse Effect. At the request of the Agent, the Company will provide a
description of the Year 2000 Program, together with any updates or progress
reports with respect thereto.
5.2 Negative Covenants. Until the Termination Date and thereafter until
irrevocable payment in full of the principal of and accrued interest on the
Advances, and the performance of all other obligations of the Obligors under
Loan Documents, the Company agrees that, unless the Required Lenders shall
otherwise consent in writing, it shall not, and shall not permit any of its
Subsidiaries to:
(a) Leverage Ratio. Permit or suffer the Adjusted Leverage Ratio
to be greater than 0.60 to 1.0 at any time.
(b) Interest Coverage Ratio. Permit or suffer the Interest
Coverage Ratio to be less than 2.5 to 1.0 as of the end of any fiscal quarter.
(c) Net Worth. Permit or suffer the Net Worth at any time to be
less than $155,0000,000, plus 50% of Consolidated net income of the Company and
its Subsidiaries for the fiscal quarter of the Company ending in December, 1998
and each fiscal year of the Company ending thereafter, provided that if such
Consolidated net income of the Company and its Subsidiaries is negative for the
fiscal quarter ending in December, 1998 or any fiscal year thereafter, as the
case may be, the amount added for such fiscal quarter or year shall be zero and
it shall not reduce the amount added for any other fiscal year, and plus 100% of
the net proceeds from the sale or other transfer of any Capital Stock of the
Company.
(d) Liens. Create, incur or suffer to exist any Lien on any of the
assets, rights, revenues or property, real, Personal or mixed, tangible or
intangible, whether now owned or hereafter acquired, of the Company or any of
its Subsidiaries, other than:
(i) Liens for taxes not delinquent or for taxes being
contested in good faith by appropriate proceedings and as to which adequate
financial reserves have been established on its books and records;
(ii) Liens (other than any Lien imposed by ERISA) created
and maintained in the ordinary course of business which are not material in the
aggregate, which would not have a Material Adverse Effect and which constitute
(A) pledges or deposits under worker's compensation laws, unemployment insurance
laws or similar legislation, (B) good faith deposits in connection with bids,
tenders, contracts or leases to which the Company or any of its Subsidiaries is
a party for a purpose other than borrowing money or obtaining credit, including
rent security deposits, (C) liens imposed by law, such as those of carriers,
warehousemen and mechanics, if payment of the obligation secured thereby is not
yet due, (D) Liens securing taxes, assessments or other governmental charges or
levies not yet subject to penalties for nonpayment, and (E) pledges or deposits
to
40
secure public or statutory obligations of the Company or any of its
Subsidiaries, or surety, customs or appeal bonds to which the Company or any of
its Subsidiaries is a party;
(iii) Liens affecting real property which constitute minor
survey exceptions or defects or irregularities in title, minor encumbrances,
easements or reservations of, or rights of others for, rights of way, sewers,
electric lines, telegraph and telephone lines and other similar purposes, or
zoning or other restrictions as to the use of such real property, provided that
all of the foregoing, in the aggregate, do not at any time materially detract
from the value of said properties or materially impair their use in the
operation of the businesses of the Company and its Subsidiaries taken as a
whole;
(iv) Each Lien described in Schedule 5.2(d) hereto may be
suffered to exist upon the same terms as those existing on the date hereof,
including extensions, renewals and replacements thereof so long as such
extension, renewal or replacement does not increase the principal amount of the
Indebtedness secured or extend such Lien to any other property, assets, rights
or revenues;
(v) (A) any Lien on equipment to secure any rights granted
with respect to such equipment in connection with the provision of all or a part
of the purchase price of such equipment created contemporaneously with, or
within 180 days after such acquisition, or (B) any Lien in property existing in
such property at the time of acquisition thereof, whether or not the debt
secured thereby is assumed by the Company or a Subsidiary, (C) any Lien existing
in the property of a corporation at the time such corporation is merged into or
consolidated with the Company or a Subsidiary or at the time of a sale, lease,
or other disposition of the properties of a corporation or firm as an entirety
or substantially as an entirety to the Company or a Subsidiary, or (D) any Lien
on any other fixed assets of the Company or any of its Subsidiaries; provided,
in the case of (A), (B), (C) and (D), no such Liens shall exceed the fair market
value of the related property, not more than one such Lien shall encumber such
property at any one time and the aggregate outstanding Indebtedness secured by
all such Liens does not exceed an amount equal to 15% of Net Worth;
(vi) Liens granted by any Subsidiary in favor of the Company
or any other Subsidiary;
(vii) The interest or title of a lessor under any lease
otherwise permitted under this Agreement with respect to the property subject to
such lease to the extent performance of the obligations of the Company or its
Subsidiary thereunder is not delinquent; and
(viii) Liens on up to 65% of the present and future Capital
Stock of Foreign Subsidiaries to the extent required to be pledged under Section
2.13 hereof, provided that such Liens secure only the Lender Obligations and the
Senior Note Debt and are subject to an Intercreditor Agreement.
(e) Merger; Etc. Merge or consolidate or amalgamate with any
other Person or take any other action having a similar effect, provided,
however, (i) a Subsidiary of the Company may merge with the Company, provided
that the Company shall be the surviving corporation, (ii) a Subsidiary of the
Company may merge or consolidate with another Subsidiary of the Company, and
(iii) the Company or any Subsidiary may merge, consolidate or amalgamate with
any other Person in connection with an Acquisition, provided that such
41
Acquisition is permitted by Section 5.2(h) and satisfies the conditions
described therein and the Company or such Subsidiary shall be the surviving
corporation.
(f) Disposition of Assets; Etc. Sell, lease, license,
transfer, assign or otherwise dispose of any material portion of its business,
assets, rights, revenues or property, real, personal or mixed, tangible or
intangible, whether in one or a series of transactions, other than inventory
sold in the ordinary course of business upon customary credit terms and sales of
scrap or obsolete material or equipment, provided, however, that this Section
5.2(f) shall not prohibit any such sale, lease, license, transfer, assignment or
other disposition if the aggregate book value (disregarding any write-downs of
such book value other than ordinary depreciation and amortization) of all of the
business, assets, rights, revenues and property disposed of after the date of
this Agreement shall be less than 10% of such aggregate book value of the
Consolidated total assets of the Company and its Subsidiaries as of the most
recently ended fiscal year, and if immediately after such transaction, no
Default or Event of Default shall exist or shall have occurred and be
continuing. Notwithstanding the foregoing, (i) any Subsidiary may sell, lease,
transfer or otherwise dispose of its assets to the Company or any Guarantor, and
(ii) the Company or any Subsidiary may sell, lease, transfer or otherwise
dispose of its assets in excess of the limitation set forth above so long as the
proceeds of such sale are used (x) to purchase other property of a similar
nature of at least equivalent value within 180 days of such sale or (y) to
prepay Advances and permanently reduce the Commitments by such amount.
(g) Nature of Business. Make or suffer any substantial change
in the nature of its business from that engaged in on the date hereof or engage
in any other businesses other than those in which it is engaged on the date
hereof, which are directly related to the businesses in which it is engaged in
on the date hereof or which are not material in the aggregate.
(h) Investments, Loans and Advances. Purchase or otherwise
acquire any Capital Stock of or other ownership interest in, or debt securities
of or other evidences of Indebtedness of, any other Person; nor acquire all or
any material portion of the assets of any Person; nor make any other
Acquisition; nor make any loan or advance of any of its funds or property or
make any other extension of credit to, or make any investment or acquire any
interest whatsoever in, any other Person; nor permit any Subsidiary to do any of
the foregoing; other than (i) extensions of trade credit made in the ordinary
course of business on customary credit terms and commission, travel, relocation
and similar advances made to officers and employees in the ordinary course of
business, (ii) investments, loans and advances in and to the Company or any
Guarantor, (iii) investments in Cash Equivalents, and (iv) Acquisitions,
provided each of the following conditions is satisfied: (A) there is no Default
or Event of Default either before or after such Acquisition, (B) the
representations and warranties contained in this Agreement shall be true and
correct as if made on and as of the date such Acquisition is consummated, both
before and after giving effect thereto, (C) if such Acquisition involves the
acquisition of Capital Stock, the consummation of such Acquisition has been
recommended by the board of directors and management of the target of such
Acquisition, and (D) if the total consideration, cash or non-cash, paid or
payable for such Acquisition is greater than $15,000,0000, prior to the
consummation of such Acquisition, the Company shall deliver a satisfactory pro
forma covenants compliance certificate to the Agent and the target of such
Acquisition is in the same line of business as the Company, (v) other
investments, loans and advances described on Schedule 5.2(h) hereto, and (vi)
other investments, loans and advances in aggregate outstanding amount not to
exceed an amount equal to 10% of Net Worth.
42
(i) Negative Pledge Limitation. Enter into any agreement with
any Person other than the Agent and the Lenders pursuant hereto which prohibits
or limits the ability of the Company to create, incur, assume or suffer to exist
any Lien upon any of its assets, rights, revenues or property, real, Personal or
mixed, tangible or intangible, whether now owned or hereafter acquired, except
for Permitted Liens or other restrictions contained in security agreements
securing Indebtedness permitted hereby to the extent such provisions restrict
the transfer of the property subject to such security agreements.
(j) Indebtedness and Contingent Liabilities. Create, incur,
assume or in any manner become liable in respect of or suffer to exist, any
Indebtedness or Contingent Liabilities other than:
(i) the Lender Obligations;
(ii) The Indebtedness and Contingent Liabilities
described on Schedule 5.2(j) hereto, as amended, extended, supplemented or
otherwise modified from time to time, provided that no increase in the amount
thereof (as such amount is reduced from time to time) and no modification of the
terms thereof which are less favorable to the Company or any of its Subsidiaries
or more restrictive on the Company or any of its Subsidiaries in any material
manner shall be permitted;
(iii) Indebtedness of the Company or any Guarantor
owing to the Company or to any other Guarantor;
(iv) Indebtedness of the Company and/or any of its
Subsidiaries denominated in (A) Canadian dollars which do not exceed in
aggregate outstanding amount at any time an amount equal to the equivalent in
Dollars of $10,000,000 and (B) Mexican pesos which do not exceed in aggregate
outstanding amount at any time an amount equal to the equivalent in Dollars of
$5,000,000;
(v) Indebtedness under Rate Hedging Agreements,
provided that such Rate Hedging Agreements are entered into to hedge its own
exposure, and neither the Company nor any of its Subsidiaries shall enter into
any Financial Contracts for purposes of financial speculation;
(vi) Indebtedness in aggregate principal amount not to
exceed (A) $35,000,000 outstanding under the $40,000,000 7.5% Senior Notes due
May 5, 2004 issued by the Company pursuant to the Note Agreement among the
Company and the holders of such notes dated as of May 1, 1994, and (B) up to an
additional $100,000,000 pursuant to a private placement of senior long term debt
(with a final maturity after October 31, 2003) entered into after the Effective
Date, in each case as amended, extended supplemented or otherwise modified from
time to time, provided that no increase in the amount thereof (as such amount is
reduced from time to time) and no shortening of any of the maturities (whether
final or interim) shall be permitted; and
(vii) Other Indebtedness and Contingent Liabilities in
aggregate outstanding amount not to exceed an amount equal to 20% of Net Worth.
(k) Dividends and Other Restricted Payments Make, pay, declare
or authorize any dividend, payment or other distribution in respect of any class
of its Capital Stock or any dividend, payment or distribution in connection with
the redemption, purchase, retirement or other acquisition, directly or
43
indirectly, of any shares of its Capital Stock if a Default or Event of Default
exists or would be caused thereby. The Company will not issue any Disqualified
Stock.
(l) Transactions with Affiliates. Make any payment to, or sell,
lease, transfer or otherwise dispose of any of its properties or assets to, or
purchase any property or assets from, or enter into or make or amend any
transaction, contract, agreement, understanding, loan, advance or guarantee
with, or for the benefit of, any Affiliates (each of the foregoing, an
"Affiliate Transaction") unless such Affiliate Transaction is on terms that are
no less favorable to the Company or the relevant Subsidiary than those that
would have been obtained in a comparable transaction by the Company or such
Subsidiary with an unrelated Person.
5.3 Additional Covenants. If at any time the Company shall enter into
or be a party to any instrument or agreement, including all such instruments or
agreements in existence as of the date hereof and all such instruments or
agreements entered into after the date hereof, relating to or amending any
provisions applicable to any of its Indebtedness which in the aggregate,
together with any related Indebtedness, exceeds $10,000,000, which includes
covenants or defaults not substantially provided for in this Agreement or more
favorable to the lender or lenders thereunder than those provided for in this
Agreement, then the Company shall promptly so advise the Agent and the Lenders.
Thereupon, if the Agent or the Required Lenders shall request, upon notice to
the Company, the Agent and the Lenders shall enter into an amendment to this
Agreement or an additional agreement (as the Agent may request), providing for
substantially the same covenants and defaults as those provided for in such
instrument or agreement to the extent required and as may be selected by the
Agent.
ARTICLE VI.
DEFAULT
6.1 Events of Default. The occurrence of any one of the following
events or conditions shall be deemed an "Event of Default" hereunder unless
waived by the Required Lenders pursuant to Section 8.1:
(a) Nonpayment of Principal. The Company shall fail to pay
when due any principal of the Advances or any reimbursement obligation under
Section 3.3; or
(b) Nonpayment of Interest. The Company shall fail to pay when due
any interest or any fees or any other amount payable hereunder and such failure
shall remain unremedied for five Business Days; or
(c) Misrepresentation. Any representation or warranty made by the
Company or any Guarantor in this Agreement, any other Loan Document or any other
certificate, report, financial statement or other document furnished by or on
behalf of the Company or any Guarantor in connection with this Agreement shall
prove to have been incorrect in any material respect when made or deemed made;
or
(d) Certain Covenants. The Company shall fail to perform or observe
any term, covenant or agreement contained in Section 5.1(d)(i)(A) or 5.2 hereof;
or
44
(e) Other Defaults. The Company or any Guarantor shall fail to
perform or observe any other term, covenant or agreement contained in this
Agreement or any other Loan Document, and any such failure shall remain
unremedied for 30 calendar days (or 10 days in the case of any failure to
perform or observe the covenants contained in Sections 5.2(d)(ii), (iii) or
(iv)) after notice thereof shall have been given to the Company or such
Guarantor, as the case may be, by the Agent; or
(f) Cross Default. The Company or any of its Subsidiaries shall
fail to pay any part of the principal of, the premium, if any, or the interest
on, or any other payment of money due under any of its Indebtedness (other than
Indebtedness hereunder), beyond any period of grace provided with respect
thereto, which individually or together with other such Indebtedness as to which
any such failure exists has an aggregate outstanding principal amount in excess
of $2,500,000; or if the Company or any of its Subsidiaries fails to perform or
observe any other term, covenant or agreement contained in any agreement,
document or instrument evidencing or securing any such Indebtedness having such
aggregate outstanding principal amount, or under which any such Indebtedness was
issued or created, beyond any period of grace, if any, provided with respect
thereto, or any other event shall occur or condition exist, the effect of which
failure to observe or perform or the occurrence of such event or condition is to
cause, or to permit the holder or holders of such Indebtedness to cause, such
Indebtedness to become due prior to its stated maturity or declared to be due
and payable or required to be prepaid or repurchased prior to the stated
maturity thereof; provided, however, that an Event of Default shall not be
deemed to have occurred under this Section 6.1(f) if any of the foregoing events
occurs only with respect to Subsidiaries which are not wholly owned Subsidiaries
of the Company or Guarantors and if all such non wholly owned Subsidiaries do
not, if considered in the aggregate as a single Subsidiary, constitute a
Significant Subsidiary but the Company shall provide notice to the Agent of the
occurrence of any such event described in this proviso; or
(g) Judgments. One or more judgments or orders for the payment of
money in an aggregate amount of $2,500,000 shall be rendered against the Company
or any of its Subsidiaries, or any other judgment or order (whether or not for
the payment of money) shall be rendered against or shall affect the Company or
any of its Subsidiaries which causes or could cause a Material Adverse Effect,
and either (i) such judgment or order shall have remained unsatisfied or
uninsured for a period of 30 days and the Company or such Subsidiary shall not
have taken action necessary to stay enforcement thereof by reason of pending
appeal or otherwise, prior to the expiration of the applicable period of
limitations for taking such action or, if such action shall have been taken, a
final order denying such stay shall have been rendered, or (ii) enforcement
proceedings shall have been commenced by any creditor upon any such judgment or
order; provided, however, that an Event of Default shall not be deemed to have
occurred under this Section 6.1(g) if any of the foregoing events occurs only
with respect to Subsidiaries which are not wholly owned Subsidiaries of the
Company or Guarantors and if all such non wholly owned Subsidiaries do not, if
considered in the aggregate as a single Subsidiary, constitute a Significant
Subsidiary; or
(h) ERISA. The occurrence of a Reportable Event that results in or
could result in liability in excess of $2,500,000 of the Company, any Subsidiary
of the Company or their ERISA Affiliates to the PBGC or to any Plan and such
Reportable Event is not corrected within thirty (30) days after the occurrence
thereof; or the occurrence of any Reportable Event which could constitute
grounds for termination of any Plan of the Company, its Subsidiaries or their
ERISA Affiliates by the PBGC or for the appointment by the appropriate United
States District Court of a trustee to administer any such Plan and such
Reportable Event is not corrected
45
within thirty (30) days after the occurrence thereof; or the filing by the
Company, any Subsidiary of the Company or any of their ERISA Affiliates of a
notice of intent to terminate a Plan or the institution of other proceedings to
terminate a Plan; or the Company, any Subsidiary of the Company or any of their
ERISA Affiliates shall fail to pay when due any liability to the PBGC or to a
Plan; or the PBGC shall have instituted proceedings to terminate, or to cause a
trustee to be appointed to administer, any Plan of the Company, its Subsidiaries
or their ERISA Affiliates; or any Person engages in a Prohibited Transaction
with respect to any Plan which results in or could result in liability of the
Company, any Subsidiary of the Company, any of their ERISA Affiliates, any Plan
of the Company, its Subsidiaries or their ERISA Affiliates or fiduciary of any
such Plan; or failure by the Company, any Subsidiary of the Company or any of
their ERISA Affiliates to make a required installment or other payment to any
Plan within the meaning of Section 302(f) of ERISA or Section 412(n) of the Code
that results in or could result in liability in excess of $2,500,000 of the
Company, any Subsidiary of the Company or any of their ERISA Affiliates to the
PBGC or any Plan; or the withdrawal of the Company, any of its Subsidiaries or
any of their ERISA Affiliates from a Plan during a plan year in which it was a
"substantial employer" as defined in Section 4001(9a)(2) of ERISA; or the
Company, any of its Subsidiaries or any of their ERISA Affiliates becomes an
employer with respect to any Multiemployer Plan without the prior written
consent of the Required Lenders; provided, however, that this Section 6.1(h)
shall apply only to events or occurrences which, when aggregated with all other
events and occurrences described in this Section 6.1(h), could result in
liability to the Company or its Subsidiaries greater than $2,500,000; or
(i) Insolvency, Etc. The Company or any of its Subsidiaries
shall be dissolved or liquidated (or any judgment, order or decree therefor
shall be entered), or shall generally not pay its debts as they become due, or
shall admit in writing its inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors, or shall institute, or there
shall be instituted against the Company or any of its Subsidiaries, any
proceeding or case seeking to adjudicate it a bankrupt or insolvent or seeking
liquidation, winding up, reorganization, arrangement, adjustment, protection,
relief or composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief or protection of debtors or seeking the
entry of an order for relief, or the appointment of a receiver, trustee,
custodian or other similar official for it or for any substantial part of its
assets, rights, revenues or property, and, if such proceeding is instituted
against the Company or such Subsidiary and is being contested by the Company or
such Subsidiary, as the case may be, in good faith by appropriate proceedings,
such proceeding shall remain undismissed or unstayed for a period of 60 days; or
the Company or such Subsidiary shall take any action (corporate or other) to
authorize or further any of the actions described above in this subsection;
provided, however, that an Event of Default shall not be deemed to have occurred
under this Section 6.1(i) if any of the foregoing events occurs only with
respect to Subsidiaries which are not wholly owned Subsidiaries of the Company
or Guarantors and if all such non wholly owned Subsidiaries do not, if
considered in the aggregate as a single Subsidiary, constitute a Significant
Subsidiary; or
(j) Change of Control. The occurrence of any Change of
Control; or
(k) Guaranties. Any 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 Guaranty, or any Guarantor shall fail to
comply with any of the terms or provisions of any Guaranty to which it is a
party, or any Guarantor shall deny that it has any further liability under any
Guaranty to which it is a party, or shall give notice to such effect; or
46
(l) Pledge Agreements. Any Pledge Agreement shall for any
reason fail to create a valid and perfected first priority security interest in
any collateral purported to be covered thereby, or any Pledge Agreement 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 Pledge
Agreement, or any Obligor shall fail to comply with any of the terms or
provisions of any Pledge Agreement.
6.2 Remedies. (a) Upon the occurrence and during the continuance of any
Event of Default, the Agent upon being directed to do so by the Required
Lenders, shall by notice to the Company (i) terminate the Commitments or (ii)
declare the outstanding principal of, and accrued interest on, the Notes and
Advances and all other amounts owing under this Agreement to be immediately due
and payable, or (iii) demand immediate delivery of cash collateral, and the
Company agrees to deliver such cash collateral upon demand, in an amount equal
to the maximum amount that may be available to be drawn at any time prior to the
stated expiry of all outstanding Letters of Credit, or any one or more of the
foregoing, whereupon the Commitments shall terminate forthwith and all such
amounts, including cash collateral, shall become immediately due and payable,
provided that in the case of any event or condition described in Section 6.1(i)
with respect to the Company, the Commitments shall automatically terminate
forthwith and all such amounts, including cash collateral, shall automatically
become immediately due and payable without notice; in all cases without demand,
presentment, protest, diligence, notice of dishonor or other formality, all of
which are hereby expressly waived. Such cash collateral delivered in respect of
outstanding Letters of Credit shall be deposited in a special cash collateral
account to be held by the Agent as collateral security for the payment and
performance of the Company's obligations under this Agreement to the Lenders and
the Agent.
(b) The Agent upon being directed to do so by the Required Lenders,
shall, in addition to the remedies provided in Section 6.2(a), exercise and
enforce any and all other rights and remedies available to it or the Lenders,
whether arising under the Loan Documents or under applicable law, in any manner
deemed appropriate by the Agent, including suit in equity, action at law, or
other appropriate proceedings, whether for the specific performance (to the
extent permitted by law) of any covenant or agreement contained in the Loan
Documents or in aid of the exercise of any power granted in the Loan Documents.
(c) Upon the occurrence and during the continuance of any Event of
Default, each Lender may at any time and from time to time exercise any of its
rights of set off or bankers lien that it may possess by common law or statute
without prior notice to the Company, provided that each Lender may also set off
against any deposit whether or not it is then matured. Each Lender agrees to
promptly notify the Company after any such setoff and application, provided that
the failure to give such notice shall not effect the validity of such setoff and
application. The rights of such Lender under this Section 6.2(c) are in addition
to other rights and remedies which such Lender may have.
(d) All proceeds of any realization on the collateral pursuant to
the Pledge Agreements and any payments received by the Agent or any Lender
pursuant to the Guaranties subsequent to and during the continuance of any Event
of Default, subject to any Intercreditor Agreement, shall be allocated and
distributed by the Agent as follows:
(i) First, to the payment of all reasonable costs and
expenses, including
47
without limitation all reasonable attorneys' fees, of the Agent in connection
with the enforcement of the Pledge Agreement and the Guaranties and otherwise
administering this Agreement;
(ii) Second, to the payment of all fees required to be paid
under any Loan Document including commitment fees, owing to the Lenders and
Agent pursuant to the Lender Indebtedness on a pro rata basis in accordance with
the Lender Indebtedness consisting of fees owing to the Lenders and Agent under
the Lender Indebtedness, for application to payment of such liabilities;
(iii) Third, to the Lenders and Agent on a pro rata basis in
accordance with the Lender Indebtedness consisting of interest owing to the
Lenders and Agent under the Lender Indebtedness, and obligations and liabilities
relating to Rate Hedging Agreements owing to the Lenders and the Agent under the
Lender Indebtedness for application to payment of such liabilities;
(iv) Fourth, to the Lenders and the Agent on a pro rata basis
in accordance with the Lender Indebtedness consisting of principal (including
without limitation any cash collateral for any outstanding Letters of Credit),
for application to payment of such liabilities;
(v) Fifth, to the payment of any and all other amounts owing
to the Lenders and the Agent and secured by the Pledge Agreements on a pro rata
basis in accordance with the total amount of such Indebtedness owing to each of
the Lenders and the Agent, for application to payment of such liabilities; and
(vi) Sixth, to the Company, its Subsidiaries or such other
Person as may be legally entitled thereto.
For the purposes of the above payments and distributions, the full amount of
Lender Indebtedness on account of any Letter of Credit then outstanding but not
drawn upon shall be deemed to be then due and owing. Amounts distributable to
the Lenders or Agent on account of such Lender Indebtedness under such Letters
of Credit shall be deposited in a separate collateral account in the name of and
under the control of the Agent and held by the Agent first as security for such
Letter of Credit Lender Indebtedness and then as security for all other Lender
Indebtedness and the amount so deposited shall be applied to the Letter of
Credit Lender Indebtedness at such times and to the extent that such Letter of
Credit Lender Indebtedness become absolute liabilities and if and to the extent
that the Letter of Credit Lender Indebtedness fail to become absolute Lender
Indebtedness because of the expiration or termination of the underlying Letters
of Credit without being drawn upon then such amounts shall be applied to the
remaining Lender Indebtedness in the order provided in this Section 6.2(d). The
Company hereby grants to the Agent, for the benefit of the Lenders and Agent, a
lien and security interest in all such funds deposited in such separate
collateral account, as security for all the Lender Indebtedness as set forth
above.
(e) Notwithstanding anything herein to the contrary, no
payments of principal, interest or fees delivered to the Agent for the account
of any Defaulting Lender shall be delivered by the Agent to such Defaulting
Lender. Instead, such payments shall, for so long as such Defaulting Lender
shall be a Defaulting Lender, be held by the Agent, and the Agent is hereby
authorized and directed by all parties hereto to hold such funds in escrow and
apply such funds as follows:
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(i) First, if applicable to any payments
due from such Defaulting Lender to the Agent, and
(ii) Second, Loans required to be made by
such Defaulting Lender on any borrowing date to the extent such Defaulting
Lender fails to make such Loans.
Notwithstanding the foregoing, upon the termination of all Commitments and the
payment and performance of all of the Advances and other obligations owing
hereunder (other than those owing to a Defaulting Lender), any funds then held
in escrow by the Agent pursuant to the preceding sentence shall be distributed
to each Defaulting Lender, pro rata in proportion to amounts that would be due
to each Defaulting Lender but for the fact that it is a Defaulting Lender.
ARTICLE VII.
THE AGENT AND THE LENDERS
7.1 Appointment; Nature of Relationship. NBD Bank is hereby appointed
by each of the Lenders as its contractual representative (herein referred to as
the "Agent") hereunder and under each other Loan Document, and each of the
Lenders irrevocably authorizes the Agent to act as the contractual
representative of such Lender with the rights and duties expressly set forth
herein and in the other Loan Documents. The Agent agrees to act as such
contractual representative upon the express conditions contained in this Article
VII. Notwithstanding the use of the defined term "Agent," it is expressly
understood and agreed that the Agent shall not have any fiduciary
responsibilities to any Lender by reason of this Agreement or any other Loan
Document and that the Agent is merely acting as the contractual representative
of the Lenders with only those duties as are expressly set forth in this
Agreement and the other Loan Documents. In its capacity as the Lenders'
contractual representative, the Agent (i) does not hereby assume any fiduciary
duties to any of the Lenders, (ii) is a "representative" of the Lenders within
the meaning of Section 9-105 of the Uniform Commercial Code and (iii) is acting
as an independent contractor, the rights and duties of which are limited to
those expressly set forth in this Agreement and the other Loan Documents. Each
of the Lenders hereby agrees to assert no claim against the Agent on any agency
theory or any other theory of liability for breach of fiduciary duty, all of
which claims each Lender hereby waives.
7.2 Powers. The Agent shall have and may exercise such powers under the
Loan 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 Loan Documents to be taken by the Agent.
7.3 General Immunity. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable to the Company, the Lenders or any
Lender for any action taken or omitted to be taken by it or them hereunder or
under any other Loan Document or in connection herewith or therewith except to
the extent such action or inaction is determined in a final non-appealable
judgment by a court of competent jurisdiction to have arisen from the gross
negligence or willful misconduct of such Person.
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7.4 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 (a) any statement, warranty
or representation made in connection with any Loan Document or any borrowing
hereunder; (b) the performance or observance of any of the covenants or
agreements of any obligor under any Loan Document, including, without
limitation, any agreement by an obligor to furnish information directly to each
Lender; (c) the satisfaction of any condition specified in Article II; (d) the
existence or possible existence of any Default or Event of Default; (e) the
validity, enforceability, effectiveness, sufficiency or genuineness of any Loan
Document or any other instrument or writing furnished in connection therewith;
(f) the value, sufficiency, creation, perfection or priority of any Lien in any
collateral security; or (g) the financial condition of the Company or any
Guarantor of any of the Lender Obligations or of any of the Company's or any
such Guarantor's respective Subsidiaries. The Agent shall have no duty to
disclose to the Lenders information that is not required to be furnished by the
Company to the Agent at such time, but is voluntarily furnished by the Company
to the Agent (either in its capacity as Agent or in its individual capacity).
7.5 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 Loan Document in accordance with written instructions signed by the
Required Lenders, and such instructions and any action taken or failure to act
pursuant thereto shall be binding on all of the Lenders. The Lenders hereby
acknowledge that the Agent shall be under no duty to take any discretionary
action permitted to be taken by it pursuant to the provisions of this Agreement
or any other Loan Document unless it shall be requested in writing to do so by
the Required Lenders. The Agent shall be fully justified in failing or refusing
to take any action hereunder and under any other Loan 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.
7.6 Employment of Agents and Counsel. The Agent may execute any of its
duties as Agent hereunder and under any other Loan 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 the contractual arrangement between the Agent and the Lenders
and all matters pertaining to the Agent's duties hereunder and under any other
Loan Document.
7.7 Reliance on Documents; Counsel. The Agent shall be entitled to rely
upon any 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.
7.8 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 been terminated, in proportion to their
Commitments immediately prior to such termination) (i) for any amounts not
reimbursed by the Company for which the Agent is entitled to reimbursement by
the Company
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under the Loan Documents, (ii) for any other expenses incurred by the Agent on
behalf of the Lenders, in connection with the preparation, execution, delivery,
administration and enforcement of the Loan Documents (including, without
limitation, for any expenses incurred by the Agent in connection with any
dispute between the Agent and any Lender or between two or more of the Lenders)
and (iii) for any liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, 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 Loan Documents or any other document
delivered in connection therewith or the transactions contemplated thereby
(including, without limitation, for any such amounts incurred by or asserted
against the Agent in connection with any dispute between the Agent and any
Lender or between two or more of the Lenders), or the enforcement of any of the
terms of the Loan Documents 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 is found in a final non-appealable judgment by a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of
the Agent. The obligations of the Lenders under this Section 7.8 shall survive
payment of the Lender Obligations and termination of this Agreement.
7.9 Notice of Default. The Agent shall not be deemed to have knowledge
or notice of the occurrence of any Default or Event of Default hereunder unless
the Agent has received written notice from a Lender or the Company referring to
this Agreement describing such Default or Event of Default and stating that such
notice is a "notice of default". In the event that the Agent receives such a
notice, the Agent shall give prompt notice thereof to the Lenders.
7.10 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 Loan
Document with respect to its Commitment and its Loans 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 and
its Affiliates 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 Loan Document, with the Company or
any of its Subsidiaries in which the Company or such Subsidiary is not
restricted hereby from engaging with any other Person.
7.11 Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent, the Arranger or any other
Lender and based on the financial statements prepared by the Company 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 Loan
Documents. Each Lender also acknowledges that it will, independently and without
reliance upon the Agent, the Arranger 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 Loan Documents.
7.12 Successor Agent. The Agent may resign at any time by giving
written notice thereof to the Lenders and the Company, 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
51
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, on behalf of the
Company and the Lenders, a successor Agent, provided that, if no Default or
Event of Default has occurred and is continuing, such appointment shall be made
in consultation with the Company. If no successor Agent shall have been so
appointed by the Required Lenders 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 Company and the Lenders, a successor Agent. Notwithstanding the
previous sentence, the Agent may at any time without the consent of the Company
or any Lender, appoint any of its Affiliates which is a commercial bank as a
successor Agent hereunder. 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 Company shall make all payments in respect of the
Lender 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 Loan Documents. After the
effectiveness of the resignation or removal of an Agent, the provisions of this
Article VII 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 Loan Documents. In the event that there is a
successor to the Agent by merger, or the Agent assigns its duties and
obligations to an Affiliate pursuant to this Section 7.12, then the term "Prime
Rate" as used in this Agreement shall mean the base rate, prime rate or other
analogous rate of the new Agent.
7.13 Delegation to Affiliates. The Company and the Lenders agree that
the Agent may delegate any of its duties under this Agreement to any of its
Affiliates. Any such Affiliate (and such Affiliate's directors, officers, agents
and employees) which performs duties in connection with this Agreement shall be
entitled to the same benefits of the indemnification, waiver and other
protective provisions to which the Agent is entitled under the Loan Documents.
7.14 Sharing of Payments. The Lenders agree among themselves that, in
the event that any Lender shall obtain payment in respect of any Advance or any
other obligation owing to the Lenders under this Agreement through the exercise
of a right of set-off, banker's lien, counterclaim or otherwise in excess of its
ratable share of payments received by all of the Lenders on account of the
Advances and other obligations (or if no Advances are outstanding, ratably
according to the respective amounts of the Commitments), such Lender shall
promptly purchase from the other Lenders participations in such Advances and
other obligations in such amounts, and make such other adjustments from time to
time, as shall be equitable to the end that all of the Lenders share such
payment in accordance with such ratable shares. The Lenders further agree among
themselves that if payment to a Lender obtained by such Lender through the
exercise of a right of set-off, banker's lien, counterclaim or otherwise as
aforesaid shall be rescinded or must otherwise be restored, each Lender which
shall have shared the benefit of such payment shall, by repurchase of
participations theretofore sold, return its share of that benefit to each Lender
whose payment shall have been rescinded or otherwise restored. The Company
agrees that any Lender so purchasing such a participation may, to the fullest
extent
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permitted by law, exercise all rights of payment, including set-off, banker's
lien or counterclaim, with respect to such participation as fully as if such
Lender were a holder of such Advance or other obligation in the amount of such
participation. The Lenders further agree among themselves that, in the event
that amounts received by the Lenders and the Agent hereunder are insufficient to
pay all such obligations or insufficient to pay all such obligations when due,
the fees and other amounts owing to the Agent in such capacity shall be paid
therefrom before payment of obligations owing to the Lenders under this
Agreement. Except as otherwise expressly provided in this Agreement, if any
Lender or the Agent shall fail to remit to the Agent or any other Lender an
amount payable by such Lender or the Agent to the Agent or such other Lender
pursuant to this Agreement on the date when such amount is due, such payments
shall be made together with interest thereon for each date from the date such
amount is due until the date such amount is paid to the Agent or such other
Lender at a rate per annum equal to the rate at which borrowings are available
to the payee in its overnight federal funds market. It is further understood and
agreed among the Lenders and the Agent that if the Agent or any Lender shall
engage in any other transactions with the Company and shall have the benefit of
any collateral or security therefor which does not expressly secure the
obligations arising under this Agreement except by virtue of a so-called dragnet
clause or comparable provision, the Agent or such Lender shall be entitled to
apply any proceeds of such collateral or security first in respect of the
obligations arising in connection with such other transaction before application
to the obligations arising under this Agreement.
7.15 Withholding Tax Exemption Each Lender that is not organized and
incorporated under the laws of the United States or any State thereof agrees to
file with the Agent and the Company, in duplicate, (a) on or before the later of
(i) the Effective Date and (ii) the date such Lender becomes a Lender under this
Agreement and (b) thereafter, for each taxable year of such Lender (in the case
of a Form 4224) or for each third taxable year of such Lender (in the case of
any other form) during which interest or fees arising under this Agreement and
the Notes are received, unless not legally able to do so as a result of a change
in United States income tax enacted, or treaty promulgated, after the date
specified in the preceding clause (a), on or prior to the immediately following
due date of any payment by the Company hereunder, a properly completed and
executed copy of either Internal Revenue Service Form 4224 or Internal Revenue
Service Form 1001 and Internal Revenue Service Form W-8 or Internal Revenue
Service Form W-9 and any additional form necessary for claiming complete
exemption from United States withholding taxes (or such other form as is
required to claim complete exemption from Unites States withholding taxes), if
and as provided by the Code or other pronouncements of the United States
Internal Revenue Service, and such Lender warrants to the Company that the form
so filed will be true and complete; provided that such Lender's failure to
complete and execute such Form 4224 or Form 1001, or Form W-8 or Form W-9, as
the case may be, and any such additional form (or any successor form or forms)
shall not relieve the Company of any of its obligations under this Agreement,
except as otherwise provided in this Section 7.15.
7.16 Execution of Collateral Documents. The Lenders hereby empower and
authorize the Agent to execute and deliver to the Obligors on their behalf the
Pledge Agreements and all related documents or instruments as shall be necessary
or appropriate to effect the purposes of the Pledge Agreements. The Lenders
further empower and authorize the Agent to execute and deliver on their behalf
the Intercreditor Agreement and all related documents or instruments as shall be
necessary or appropriate to effect the purposes of the Intercreditor Agreement,
provided that the form of the Intercreditor Agreement has been approved by the
Required Lenders, and each Lender shall be bound by the terms and provisions of
the Intercreditor Agreement so executed by the Agent.
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7.17 Collateral Releases. The Lenders hereby empower and authorize the
Agent to execute and deliver to the Obligors on their behalf any agreements,
documents or instruments as shall be necessary or appropriate to effect any
releases of collateral which shall be permitted by the terms hereof, including
without limitation any collateral held under the Pledge Agreements which is
permitted to be sold under the terms of this Agreement, or of any other Loan
Document or which shall otherwise have been approved by the Required Lenders
(or, if required, all of the Lenders) in writing.
ARTICLE VIII.
MISCELLANEOUS
8.1 Amendments, Etc. (a) No amendment, modification, termination or
waiver of any provision of this Agreement nor any consent to any departure
therefrom shall be effective unless the same shall be in writing and signed by
the Company and the Required Lenders and, to the extent any rights or duties of
the Agent may be affected thereby, the Agent, provided, however, that no such
amendment, modification, termination, waiver or consent shall, without the
consent of the Agent and each Lender affected, (i) authorize or permit the
extension of time for, or any reduction of the amount of, any payment of the
principal of, or interest on, the Notes or any Letter of Credit reimbursement
obligation, or any fees or other amount payable hereunder, (ii) increase the
respective Commitment of any Lender or modify the provisions of this Section
regarding the taking of any action under this Section the definition of Required
Lenders, (iii) provide for the discharge of any Guarantor except as a result of
a transaction otherwise permitted by this Agreement, or (iv) provide for the
release of all or substantially all of the collateral subject to the Pledge
Agreements except as a result of a transaction otherwise permitted by this
Agreement.
(b) Any such amendment, waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given.
(c) Notwithstanding anything herein to the contrary, no
Defaulting Lender shall be entitled to vote (whether to consent or to withhold
its consent) with respect to any amendment, modification, termination or waiver
of any provision of this Agreement or any departure therefrom or any direction
from the Lenders to the Agent, and, for purposes of determining the Required
Lenders at any time when any Lender is in default under this Agreement, the
Commitments and Advances of such defaulting Lenders shall be disregarded.
8.2 Notices. (a) Except as otherwise provided in Section 8.2(c)
hereof, all notices and other communications hereunder shall be sent to the
Company at 0000 Xxxx Xxxxxxxx XX, Xxxxx Xxxxxx, Xxxxxxxx 00000, Attention: Chief
Financial Officer, Facsimile No. 000-000-0000, to the Agent and the Lenders at
the respective addresses and numbers for notices set forth on the signatures
pages hereof, or to such other address as may be designated by the Company, the
Agent or any Lender by notice to the other parties hereto. All notices and other
communications shall be deemed to have been given at the time of actual delivery
thereof to such address, or if sent by certified or registered mail, postage
prepaid, to such address, on the third day after the date of mailing, or if
deposited prepaid with Federal Express or other nationally recognized overnight
delivery service prior to the deadline for next day delivery, on the Business
Day next following such deposit, provided, however, that notices to the Agent
shall not be effective until received.
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(b) Notices by the Company to the Agent with respect to
terminations or reductions of the Commitments pursuant to Section 2.4, requests
for Advances pursuant to Section 2.6, requests for continuations or conversions
of Loans pursuant to Section 2.9 and notices of prepayment pursuant to Section
3.1 shall be irrevocable and binding on the Company.
(c) Any notice to be given by the Company to the Agent pursuant to
Sections 2.6 or 2.9 and any notice to be given by the Agent or any Lender
hereunder, may be given by telephone, and all such notices given by the Company
must be immediately confirmed in writing in the manner provided in Section
8.2(a). Any such notice given by telephone shall be deemed effective upon
receipt thereof by the party to whom such notice is to be given.
8.3 No Waiver By Conduct; Remedies Cumulative. No course of dealing on
the part of the Agent or any Lender, nor any delay or failure on the part of the
Agent or any Lender in exercising any right, power or privilege hereunder shall
operate as a waiver of such right, power or privilege or otherwise prejudice the
Agent's or such Lender's rights and remedies hereunder; nor shall any single or
partial exercise thereof preclude any further exercise thereof or the exercise
of any other right, power or privilege. No right or remedy conferred upon or
reserved to the Agent or any Lender under this Agreement or the Loan Documents
is intended to be exclusive of any other right or remedy, and every right and
remedy shall be cumulative, and in addition to every other right or remedy
granted thereunder or now or hereafter existing under any applicable law. Every
right and remedy granted by the Loan Documents or by applicable law to the Agent
or any Lender may be exercised from time to time and as often as may be deemed
expedient by the Agent or any Lender and, unless contrary to the express
provisions of the Loan Documents, irrespective of the occurrence or continuance
of any Default or Event of Default.
8.4 Reliance on and Survival of Various Provisions. All terms,
covenants, agreements, representations and warranties of the Company or any
Guarantor made herein, in any Guaranty or in any certificate, report, financial
statement or other document furnished by or on behalf of the Company or any
Guarantor in connection with this Agreement shall be deemed to be material and
to have been relied upon by the Lenders, notwithstanding any investigation
heretofore or hereafter made by any Lender or on such Lender's behalf, and those
covenants and agreements of the Company set forth in Sections 3.7, 3.9 and 8.5
hereof shall survive the repayment in full of the Advances and the termination
of the Commitments for a period of one year from such repayment or termination.
8.5 Expenses. (a) The Company agrees to pay, or reimburse the Agent for
the payment of, on demand, (i) the reasonable fees and expenses of counsel to
the Agent, including without limitation the reasonable fees and expenses of
Xxxxxxxxx Xxxxxx PLLC in connection with the preparation, execution, delivery
and administration of the Loan Documents and the consummation of the
transactions contemplated hereby, and in connection with advising the Agent as
to its rights and responsibilities with respect thereto, and in connection with
any amendments, waivers or consents in connection therewith, and (ii) all stamp
and other taxes and fees payable or determined to be payable in connection with
the execution, delivery, filing or recording of the Loan Documents and the
consummation of the transactions contemplated hereby, and any and all
liabilities with respect to or resulting from any delay in paying or omitting to
pay such taxes or fees, and (iii) all reasonable costs and expenses of the Agent
and any Lender (including without limitation reasonable fees and expenses of
counsel,
55
including without limitation counsel who are employees of the Agent or any
Lender, and whether incurred through negotiations, legal proceedings or
otherwise) in connection with any Default or Event of Default or the enforcement
of, or the exercise or preservation of any rights under, the Loan Documents and
(iv) all reasonable costs and expenses of the Agent and the Lenders (including
reasonable fees and expenses of counsel) in connection with any action or
proceeding relating to a court order, injunction or other process or decree
restraining or seeking to restrain the Agent from paying any amount under, or
otherwise relating in any way to, any Letter of Credit and any and all costs and
expenses which any of them may incur relative to any payment under any Letter of
Credit.
(b) The Company hereby indemnifies and agrees to hold harmless
the Lenders and the Agent, and their respective officers, directors, employees,
agents and advisors, harmless from and against any and all claims, damages,
losses, liabilities, costs or expenses of any kind or nature whatsoever which
the Lenders or the Agent or any such Person may incur or which may be claimed
against any of them by reason of or in connection with any Letter of Credit, and
neither any Lender nor the Agent or any of their respective officers, directors,
employees or agents shall be liable or responsible for: (i) the use which may be
made of any Letter of Credit or for any acts or omissions of any beneficiary in
connection therewith; (ii) the validity, sufficiency or genuineness of documents
or of any endorsement thereon, even if such documents should in fact prove to be
in any or all respects invalid, insufficient, fraudulent or forged; (iii)
payment by the Agent to the beneficiary under any Letter of Credit against
presentation of documents which do not comply with the terms of any Letter of
Credit, including failure of any documents to bear any reference or adequate
reference to such Letter of Credit; (iv) any error, omission, interruption or
delay in transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit; or (v) any other event or
circumstance whatsoever arising in connection with any Letter of Credit;
provided, however, that the Company shall not be required to indemnify the
Lenders and the Agent and such other Persons, and the Agent shall be liable to
the Company to the extent, but only to the extent, of any direct, as opposed to
consequential or incidental, damages suffered by the Company which were caused
by (A) the Agent's wrongful dishonor of any Letter of Credit after the
presentation to it by the beneficiary thereunder of a draft or other demand for
payment and other documentation strictly complying with the terms and conditions
of such Letter of Credit, to the extent, but only to the extent, that such
dishonor constitutes gross negligence or willful misconduct of the Agent as
determined by a final non-appealable order of a court of competent jurisdiction,
or (B) the Agent's payment to the beneficiary under any Letter of Credit against
presentation of documents which do not comply with the terms of the Letter of
Credit, to the extent, but only to the extent, that such payment constitutes
gross negligence or willful misconduct of the Agent as determined by a final
non-appealable order of a court of competent jurisdiction. It is understood that
in making any payment under a Letter of Credit the Agent will rely on documents
presented to it under such Letter of Credit as to any and all matters set forth
therein without further investigation and regardless of any notice or
information to the contrary, and such reliance and payment against documents
presented under a Letter of Credit substantially complying with the terms
thereof shall not be deemed gross negligence or willful misconduct of the Agent
in connection with such payment.
(c) The Company agrees to indemnify each Lender, the Agent and
each of their respective officers, directors, employees, agents and advisors
(collectively, the "Indemnified Parties") and hold each Indemnified Party
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind at any time, including, without limitation, the reasonable
fees and disbursements of counsel, which may be incurred by any Indemnified
Party in connection with any investigative, administrative or judicial
56
proceeding (whether or not such Indemnified Party shall be designated a party
thereto) (collectively, the "Indemnified Liabilities") at any time relating to
(whether before or after the execution of this Agreement) any of the following:
(i) any actual or proposed use of the Advances
hereunder by the Company or any of its Subsidiaries or any transaction financed
or to be financed in whole or in part, directly or indirectly, with the proceeds
of any Advance;
(ii) the entering into and performance of this
Agreement and any other Loan Document by any of the Indemnified Parties
(including any action brought by or on behalf of the Company as the result of
any determination by any Lender not to make any Advance);
(iii) any investigation, litigation or proceeding
related to any Acquisition or proposed Acquisition by the Company or any of its
Subsidiaries of all or any portion of the stock or assets of any Person or to
the issuance of, or any other matter relating to, any Subordinated Debt, whether
or not any Indemnified Party is a party thereto;
(iv) any investigation, litigation or proceeding
related to any environmental cleanup, audit, compliance or other matter relating
to any release by the Company or any of its Subsidiaries of any hazardous
material or any violations of Environmental Laws; or
(v) the presence on or under, or the escape,
seepage, leakage, spillage, discharge, emission, discharging or releases from,
any real property owned or operated by the Company or any Subsidiary thereof of
any hazardous material (including any losses, liabilities, damages, injuries,
costs, expenses or claims asserted or arising under any Environmental Law),
regardless of whether caused by, or within the control of, the Company or such
Subsidiary, except for any such Indemnified Liabilities arising for the account
of a particular Indemnified Party by reason of the activities of the Indemnified
Party on the property of the Company conducted subsequent to a foreclosure on
such property by any Indemnified Party or by reason of the relevant Indemnified
Party's gross negligence or willful misconduct or breach of this Agreement, and
if and to the extent that the foregoing undertaking may be unenforceable for any
reason, the Company hereby agrees to make the maximum contribution to the
payment and satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law. The Company shall be obligated to indemnify
the Indemnified Parties for all Indemnified Liabilities subject to and pursuant
to the foregoing provisions, regardless of whether the Company or any of its
Subsidiaries had knowledge of the facts and circumstances giving rise to such
Indemnified Liability.
Provided that no Indemnified Party shall have the right to be
indemnified hereunder for its own gross negligence or willful misconduct as
determined by a final, non-appealable judgment of a court of competent
jurisdiction.
8.6 Successors and Assigns. (a) This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns, provided that the Company may not, without the prior consent of the
Lenders, assign its rights or obligations hereunder or under the Loan Documents
and the Lenders shall not be obligated to make any Advance hereunder to any
entity other than the Company.
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(b) Any Lender may sell to any financial institution or
institutions, and such financial institution or institutions may further sell, a
participation interest (undivided or divided) in, the Loans and such Lender's
rights and/or obligations under the Loan Documents, and to the extent of that
participation interest such participant or participants shall have the same
rights and benefits against the Company under Section 3.7, 3.9 and 6.2(c) as it
or they would have had if such participant or participants were the Lender
making the Loans to the Company hereunder, provided, however, that (i) such
Lender's obligations under this Agreement shall remain unmodified and fully
effective and enforceable against such Lender, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations, (iii) such Lender shall remain the holder of its Notes and Advances
for all purposes of this Agreement, (iv) the Company, the Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement, (v)
such Lender shall not grant to its participant (other than any participant which
is an Affiliate of such Lender) any rights to consent or withhold consent to any
action taken by such Lender or the Agent under this Agreement other than action
requiring the consent of all of the Lenders hereunder, and (vi) no participant
shall be entitled to receive any greater amount pursuant to Sections 3.7, 3.9 or
6.2(c) than the transferor Lender would have been entitled to receive in respect
of the amount of the participation transferred by such transferor Lender to such
participant had no such transfer occurred.
(c) The Agent from time to time in its sole discretion may
appoint agents for the purpose of servicing and administering this Agreement and
the transactions contemplated hereby and enforcing or exercising any rights or
remedies of the Agent provided under the Loan Documents or otherwise. In
furtherance of such agency, the Agent may from time to time direct that the
Company provide notices, reports and other documents contemplated by this
Agreement (or duplicates thereof) to such agent. The Company hereby consents to
the appointment of such agent and agrees to provide all such notices, reports
and other documents and to otherwise deal with such agent acting on behalf of
the Agent in the same manner as would be required if dealing with the Agent
itself.
(d) Each Lender may, with the prior consent of the Company
(which consent may not be unreasonably withheld or delayed and shall not be
required upon the occurrence and during the continuance of any Event of Default
or if such assignment is to another Lender or an Affiliate of a Lender) and the
Agent, assign to one or more banks or other entities all or a portion of its
rights and obligations under this Agreement (including, without limitation, all
or a portion of its Commitment, the Advances owing to it and the Note or Notes
held by it); provided, however, that (i) each such assignment shall be of a
uniform, and not a varying, percentage of all rights and obligations, (ii)
except in the case of an assignment of all of a Lender's rights and obligations
under this Agreement, (A) the amount of the Commitment of the assigning Lender
being assigned pursuant to each such assignment (determined as of the date of
the Assignment and Acceptance with respect to such assignment) shall in no event
be less than $5,000,000, and in integral multiples of $1,000,000 thereafter, or
such lesser amount as the Company and the Agent may consent to and (B) after
giving effect to each such assignment (unless the assignment is for the entire
amount of such Lender's Commitment), the amount of the Commitment of the
assigning Lender shall in no event be less than $5,000,000, (iii) the parties to
each such assignment shall execute and deliver to the Agent, for its acceptance
and recording in the Register, an Assignment and Acceptance in the form of
Exhibit L hereto (an "Assignment and Acceptance"), together with any Note or
Notes subject to such assignment and a processing and recordation fee of $3,500,
and (iv) any Lender may without the consent of the Company or the Agent, and
without paying any fee, assign or sell a participation interest to any Affiliate
of
58
such Lender that is a bank or financial institution all or a portion of its
rights and obligations under this Agreement. Upon such execution, delivery,
acceptance and recording, from and after the effective date specified in such
Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto
and, to the extent that rights and obligations hereunder have been assigned to
it pursuant to such Assignment and Acceptance, have the rights and obligations
of a Lender hereunder and (y) the Lender assignor thereunder shall, to the
extent that rights and obligations hereunder have been assigned by it pursuant
to such Assignment and Acceptance, relinquish its rights and be released from
its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto).
(e) By executing and delivering an Assignment and Acceptance,
the Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Company or the performance or observance by the Company of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.6 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon the Agent, such assigning Lender 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; (v) such assignee appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers and discretion under
this Agreement as are delegated to the Agent by the terms hereof, together with
such powers and discretion as are reasonably incidental thereto; and (vi) such
assignee agrees that it will perform in accordance with their terms all of the
obligations that by the terms of this Agreement and the other Loan Documents are
required to be performed by it as a Lender.
(f) The Agent shall maintain at its address designated on the
signature pages hereof a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and addresses of
the Lenders and the Commitment of, and principal amount of the Loans owing to,
each Lender from time to time (the "Register"). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest error, and the
Company, 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 Company or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(g) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an assignee, together with any Note or Notes subject
to such assignment, the Agent shall, if such Assignment and Acceptance has been
completed, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Company. Within five Business Days after its receipt of such
notice, the Company, at its own expense, shall execute and deliver to the Agent
in
59
exchange for the surrendered Note or Notes a new Note to the order of such
assignee in an amount equal to the Commitment assumed by it pursuant to such
Assignment and Acceptance and, if the assigning Lender has retained a Commitment
hereunder, a new Note to the order of the assigning Lender in an amount equal to
the Commitment retained by it hereunder. Such new Note or Notes shall be in an
aggregate principal amount equal to the aggregate principal amount of such
surrendered Note or Notes, shall be dated the effective date of such Assignment
and Acceptance and shall otherwise be in substantially the form of Exhibit L
hereto.
(h) The Company shall not be liable for any costs or expenses of
any Lender in effectuating any participation or assignment under this Section
8.6.
(i) The Lenders may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.6, disclose to the assignee or participant or proposed assignee or participant
(each a "Transferee") any information relating to the Company or its
Subsidiaries; provided that each Transferee agrees to be bound by the terms of
Section 8.16.
(j) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest in, or assign,
all or any portion of its rights under this Agreement (including, without
limitation, the Loans owing to it and the Note or Notes held by it) in favor of
any Federal Reserve Lender in accordance with Regulation A of the Board of
Governors of the Federal Reserve System; provided that such creation of a
security interest or assignment shall not release such Lender from its
obligations under this Agreement.
8.7 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
8.8 Governing Law. This Agreement is a contract made under, and shall
be governed by and construed in accordance with, the law of the State of
Michigan applicable to contracts made and to be performed entirely within such
State and without giving effect to choice of law principles of such State.
8.9 Table of Contents and Headings. The table of contents and the
headings of the various subdivisions hereof are for the convenience of reference
only and shall in no way modify any of the terms or provisions hereof.
8.10 Construction of Certain Provisions. If any provision of this
Agreement refers to any action to be taken by any Person, or which such Person
is prohibited from taking, such provision shall be applicable whether such
action is taken directly or indirectly by such Person, whether or not expressly
specified in such provision.
8.11 Integration and Severability. The Loan Documents embody the entire
agreement and understanding between the Company and the Agent and the Lenders,
and supersede all prior agreements and understandings, relating to the subject
matter hereof. In case any one or more of the obligations of the Company under
the Loan Documents shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
obligations of the Company shall not in any way be affected or impaired thereby,
60
and such invalidity, illegality or unenforceability in one jurisdiction shall
not affect the validity, legality or enforceability of the obligations of the
Company under the Loan Documents in any other jurisdiction.
8.12 Independence of Covenants. All covenants hereunder shall be given
independent effect so that if a particular action or condition is not permitted
by any such covenant, the fact that it would be permitted by an exception to, or
would be otherwise within the limitations of, another covenant shall not avoid
the occurrence of a Default or an Event of Default if such action is taken or
such condition exists.
8.13 Interest Rate Limitation. Notwithstanding any provisions of this
Agreement or the Notes, in no event shall the amount of interest paid or agreed
to be paid by the Company exceed an amount computed at the highest rate of
interest permissible under applicable law. If, from any circumstances
whatsoever, fulfillment of any provision of this Agreement or the Notes at the
time performance of such provision shall be due, shall involve exceeding the
interest rate limitation validly prescribed by law which a court of competent
jurisdiction may deem applicable hereto, then, ipso facto, the obligations to be
fulfilled shall be reduced to an amount computed at the highest rate of interest
permissible under applicable law, and if for any reason whatsoever any Lender
shall ever receive as interest an amount which would be deemed unlawful under
such applicable law such interest shall be automatically applied to the payment
of principal of such Lender's Advances outstanding hereunder (whether or not
then due and payable) and not to the payment of interest, or shall be refunded
to the Company if such principal and all other obligations of the Company to
such Lender have been paid in full.
8.14 Acknowledgments. The Company hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;
(b) none of the Agent or any Lender has any fiduciary
relationship with or duty to the Company arising out of or in connection with
this Agreement or any of the other Loan Documents, and the relationship between
the Agent and the Lenders, on the one hand, and the Company, on the other hand,
in connection herewith or therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated hereby
among the Lenders or among the Company and the Lenders.
8.15 Submission To Jurisdiction; Waivers. The Company hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which it
is a party, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of any United States federal
or Michigan state court sitting in Detroit, Michigan and appellate courts from
any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any
61
such court or that such action or proceeding was brought in an inconvenient
court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to the
Company at the address specified in Section 8.2, or at such other address of
which the Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the right
to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right
it may have to claim or recover in any legal action or proceeding referred to in
this subsection any special, exemplary, punitive or consequential damages.
8.16 Confidentiality. Each Lender agrees to hold any confidential
information which it may receive from the Company pursuant to this Agreement in
confidence, except for disclosure (i) to its Affiliates and to other Lenders and
their respective Affiliates, (ii) to legal counsel, accountants, and other
professional advisors to such Lender or Affiliate or to a Transferee, (iii) to
regulatory officials, (iv) to any Person as requested pursuant to or as required
by law, regulation, or legal process, (v) to any Person in connection with any
legal proceeding to which such Lender is a party, (vi) to such Lenders' direct
or indirect contractual counterparties in swap agreements or to legal counsel,
accountants and other professional advisors to such counterparties, and (vii)
permitted by Section 8.6(i).
8.17 WAIVER OF JURY TRIAL. THE LENDERS AND THE AGENT AND THE COMPANY,
AFTER CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL,
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT ANY OF THEM MAY HAVE TO
A TRIAL BY JURY IN ANY LITIGATION BASED UPON OR ARISING OUT OF ANY LOAN DOCUMENT
OR ANY RELATED INSTRUMENT OR AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED
BY THIS AGREEMENT OR ANY COURSE OF CONDUCT, DEALING, STATEMENTS (WHETHER ORAL OR
WRITTEN) OR ACTIONS OF EITHER OF THEM. NEITHER ANY LENDER, THE AGENT NOR THE
COMPANY SHALL SEEK TO CONSOLIDATE, BY COUNTERCLAIM OR OTHERWISE, ANY SUCH ACTION
IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY
TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. THESE PROVISIONS SHALL NOT BE DEEMED TO
HAVE BEEN MODIFIED IN ANY RESPECT OR RELINQUISHED BY ANY PARTY HERETO EXCEPT BY
A WRITTEN INSTRUMENT EXECUTED BY SUCH PARTY.
62
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
UNIVERSAL FOREST PRODUCTS, INC.
By: _____________________________
Its: ___________________________
63
Address for Notices: NBD BANK, as a Lender and as Agent
000 Xxxxxxxx Xxxxxx By: _____________________________
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx Its: ____________________________
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
64
Address for Notices: MICHIGAN NATIONAL BANK
00 Xxxxxx Xxxxxx, X.X. By: _____________________________
Xxxxx Xxxxxx, XX 00000
Attention: Xxxxxx Van Dine Its: ___________________________
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
65
Address for Notices: NATIONSBANK, N.A.
000 Xxxxx Xxxxx Xxxxxx, 0xx Floor By: _____________________________
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxx Its: ___________________________
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
66
Address for Notices: COMERICA BANK
000 Xxxxxxxx Xxxxxx, 0XX Xxxxx By: _____________________________
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxxxx Its: ___________________________
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
67
Address for Notices: XXXXXXXX XXXX XXXX
0000 Xxxxx Xxxxx, R-J40-4A By: _____________________________
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx Its: ___________________________
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
68
Address for Notices: FIRST UNION NATIONAL BANK
0000 Xxxx Xxxx Xxxxxx By: _____________________________
Xxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxx Xxxxxx Its: ___________________________
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
with a copy to:
000 X. Xxxxxxx Xxxxxx
Xxxxx Xxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
69
Address for Notices: OLD KENT BANK
000 Xxxx Xxxxxx, X.X. By: _____________________________
Xxxxx Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx Its: __________________________
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
70
Address for Notices: BANK OF MONTREAL
000 Xxxxx XxXxxxx Xxxxxx, 00xx Floor By: _____________________________
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxx Its: ___________________________
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
71
Address for Notices: WACHOVIA BANK, N.A.
000 Xxxxxxxxx Xxxxxx, X.X. By: _____________________________
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxx Its: ___________________________
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
