EXHIBIT 4.2
EXECUTION COPY
$15,000,000
CREDIT AGREEMENT
Dated as of May 2, 2001
among
ABC-NACO INC.,
ING XXXXXX XXXX INVESTORS III LP
as Agent
and
THE OTHER LENDERS PARTY HERETO
TABLE OF CONTENTS
Page No.
ARTICLE I DEFINITIONS 2
1.01. Certain Defined Terms. 2
1.02. Other Interpretive Provisions. 13
1.03. Accounting Principles. 14
ARTICLE II THE CREDIT 14
2.01. Amounts and Terms of Commitments. 14
2.02. Notes. 14
2.03. Principal Payments; Maturity. 15
2.04. Interest. 15
2.05. Fees. 15
2.06. Payments by the Borrower. 16
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY 16
3.01. Taxes. 16
3.02. Certificates of Lenders. 17
3.03. Survival. 17
ARTICLE IV CONDITIONS PRECEDENT 17
4.01. Conditions of Credit Extensions. 17
ARTICLE V REPRESENTATIONS AND WARRANTIES 21
5.01. Corporate Existence and Power. 21
5.02. Corporate Authorization; No Contravention. 21
5.03. Governmental Authorization. 21
5.04. Binding Effect. 22
5.05. Litigation. 22
5.06. No Default. 22
5.07. ERISA Compliance. 22
5.08. Use of Proceeds; Margin Regulations. 23
5.09. Title to Properties. 23
5.10. Taxes. 23
5.11. Financial Condition. 23
5.12. Environmental Matters. 24
5.13. Collateral Documents. 24
5.14. Regulated Entities. 25
5.15. No Burdensome Restrictions. 25
5.16. Solvency. 25
5.17. Labor Relations. 25
5.18. Copyrights, Patents, Trademarks and Licenses, etc. 25
5.19. Subsidiaries. 26
5.20. Insurance. 26
5.21. Subordination Provisions. 26
5.22. Broker's Fees. 26
5.23. Full Disclosure. 26
ARTICLE VI AFFIRMATIVE COVENANTS 27
6.01. Financial Statements. 27
6.02. Certificates; Other Information. 27
6.03. Notices. 28
6.04. Preservation of Corporate Existence, Etc. 29
6.05. Maintenance of Property. 29
6.06. Insurance. 29
6.07. Payment of Obligations. 30
6.08. Compliance with Laws. 30
6.09. Compliance with ERISA. 30
6.10. Inspection of Property and Books and Records. 31
6.11. Environmental Laws. 31
6.12. Use of Proceeds. 31
6.13. Solvency. 31
6.14. Further Assurances. 32
6.15. Foreign Subsidiaries Security. 32
6.16. Repayment of Loans. 33
ARTICLE VII NEGATIVE COVENANTS 33
7.01. Loans and Investments. 33
7.02. Transactions with Affiliates. 33
7.03. Use of Proceeds. 34
7.04. Restricted Payments. 34
7.05. ERISA. 34
7.06. Change in Business. 35
7.07. Subordinated Debt. 35
ARTICLE VIII EVENTS OF DEFAULT 35
8.01. Event of Default. 35
8.02. Remedies. 37
8.03. Rights Not Exclusive. 38
ARTICLE IX THE AGENT 38
9.01. Appointment and Authorization; "Agent". 38
9.02. Delegation of Duties. 38
9.03. Liability of Agent. 38
9.04. Reliance by Agent. 39
9.05. Notice of Default. 39
9.06. Credit Decision. 40
9.07. Indemnification of Agent. 40
9.08. Agent in Individual Capacity. 40
9.09. Successor Agent. 41
9.10. Withholding Tax 41
9.11. Collateral Matters 42
ARTICLE X MISCELLANEOUS 43
10.01. Amendments and Waivers. 43
10.02. Notices. 44
10.03. No Waiver; Cumulative Remedies. 45
10.04. Costs and Expenses. 45
10.05. Borrower Indemnification. 45
10.06. Payments Set Aside. 46
10.07. Successors and Assigns. 46
10.08. Assignments, Participations, etc. 46
10.09. Confidentiality. 47
10.10. Set-off. 47
10.11. Notification of Addresses, Lending Offices, Etc. 48
10.12. Counterparts. 48
10.13. Severability. 48
10.14. No Third Parties Benefited. 48
10.15. Governing Law and Jurisdiction. 48
10.16. Waiver of Jury Trial. 49
10.17. Entire Agreement. 49
10.18. Effectiveness. 49
SCHEDULES
Schedule 2.01 Commitments
Schedule 5.11(a)(ii) Exceptions to Financial Statements
Schedule 5.11(a)(iii) Permitted Liabilities
Schedule 5.12 Environmental Liabilities
Schedule 5.19 Subsidiaries and Minority Interests
Schedule 7.01 Existing Investments
Schedule 10.02 Addresses for Notices
EXHIBITS
Exhibit A Form of Term Loan Promissory Note
Exhibit B Form of Legal Opinion of Borrower's Counsel
Exhibit C Form of Assignment and Acceptance
- 50 -
CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of May 2, 2001 among ABC-NACO
Inc., a Delaware corporation (the "Borrower"), ING Xxxxxx Xxxx Investors III LP,
a Delaware limited partnership ("FSI III LP" and as agent for the Lenders, the
"Agent"), ING Barings U.S. Leveraged Equity Plan LLC, a Delaware limited
liability company, ING Barings Global Leveraged Equity Plan Ltd., a Bermuda
corporation, Xxxxxx Xxxx Investors II LP, a Delaware limited partnership, FS
Employee Investors LLC, a Delaware limited liability company and FS Parallel
Fund LP, a Delaware limited partnership (collectively, the "Lenders";
individually, a "Lender").
WHEREAS, the Borrower, ABC-NACO Latino America, S.A. de C.V. (formerly known as
ABC-NACO de Mexico, S.A. de C.V.), a Mexican corporation (the "Mexican
Borrower"), Dominion Castings Limited, an Ontario corporation (the "Canadian
Borrower" and, together with the Borrower and the Mexican Borrower the "NACO
Borrowers"), the financial institutions named as signatories thereto
(collectively, the "Financial Institutions") and Bank of America, N.A. (as
successor to Bank of America National Trust and Savings Association) in its
capacities as agent and collateral agent for the Financial Institutions (the
"Financial Institutions Agent") are parties to that certain Fourth Amended and
Restated Credit Agreement dated as of the date hereof among such parties (the "B
of A Credit Agreement");
WHEREAS, Matrix Metals LLC, a Delaware limited liability company ("Matrix"),
entered into an Asset Purchase Agreement dated as of April 17, 2001 (the "Asset
Purchase Agreement") among the Borrower, NACO, Inc., a Delaware corporation,
National Castings, Inc., a Delaware corporation, BuyMetalCastings, Inc., a
Delaware corporation, National Engineered Products Company, Inc., an Iowa
corporation, and Matrix providing for the purchase of certain assets by Matrix
from the parties thereto, which purchase will be made on the date hereof;
WHEREAS, the Borrower intends to request certain amendments from U.S. Bank
National Association as trustee under the Indenture dated as of January 15,
1997, pursuant to which the Borrower has issued its 10 % Senior Subordinated
Notes, Series A, due 2004, in the original principal amount of $50,000,000 and
its 10 % Senior Subordinated Notes, Series B, due 2004, in the original
principal amount of $25,000,000 with respect to the Borrower's obligations
thereunder and the transactions contemplated hereby; and
WHEREAS, pursuant to and in accordance with and subject to the terms and
conditions contained in the Preferred Stock and Common Stock Warrant Purchase
Agreement dated as of April 17, 2001, among the Borrower, the Lenders and the
other parties thereto (the "Stock Purchase Agreement"), the Lenders have agreed
that following the consummation of the transactions contemplated by this Credit
Agreement on the terms and conditions set forth herein (the "Financing"), the
Lenders will agree to purchase certain equity securities of the Borrower and the
proceeds of such securities will be used to repay the Financing subject to the
terms and conditions set forth therein; and
WHEREAS, the Borrower has requested the Lenders to provide certain credit
facilities to the Borrower in order to pay fees and expenses incurred in
connection with the transactions contemplated hereunder and to finance the
Borrower's and its Subsidiaries' working capital requirements and other general
corporate purposes;
NOW, THEREFORE, in consideration of the mutual agreements, provisions and
covenants contained herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.01. Certain Defined Terms. The following terms have the following meanings:
"Acquisition" means any transaction or series of related transactions for
the purpose of or resulting, directly or indirectly, in (a) the acquisition of
all or substantially all of the assets of a Person, or of any business or
division of a Person, (b) the acquisition of in excess of 50% of the capital
stock, partnership interests, membership interests or equity of any Person, or
otherwise causing any Person to become a Subsidiary, or (c) a merger or
consolidation or any other combination with another Person (other than a Person
that is a Subsidiary) provided that the Borrower or the Subsidiary is the
surviving entity.
"Affiliate" means, as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control with,
such Person. A Person shall be deemed to control another Person if the
controlling Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of the other Person, whether
through the ownership of voting securities, membership interests, by contract,
or otherwise.
"Agent" means ING Xxxxxx Xxxx Investors III LP in its capacity as agent for the
Lenders hereunder, and any successor agent arising under Section 9.09.
"Agent-Related Persons" means the Agent and any successor agent arising under
Section 9.09, together with their respective Affiliates and the officers,
directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.
"Agent's Payment Office" means the address for payments set forth on Schedule
10.02 or such other address as the Agent may from time to time specify.
"Agreement" means this Credit Agreement, as the same may at any time be amended,
supplemented or otherwise modified in accordance with the terms hereof and in
effect.
"Assignee" has the meaning specified in Section 10.08(a).
"Attorney Costs" means and includes all reasonable and customary fees and
disbursements of any law firm or other external counsel, the allocated cost of
internal legal services and all disbursements of internal counsel.
"Banking Day" means any day other than a Saturday, Sunday or other day on which
commercial banks in New York, New York are authorized or required by law to
close
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of 1978 (11 U.S.C.
101, et seq.).
"B of A Credit Agreement" has the meaning set forth in the Introduction to this
Agreement.
"Borrower" means ABC - NACO Inc., a Delaware corporation.
"Borrowing" means the borrowing hereunder consisting of Term Loans made to
the Borrower on the same day by the Lenders under Article II.
"Borrowing Date" means the date on which the Borrowing occurs under Section
2.01.
"Business Day" means any day other than a Saturday, Sunday or other day on which
commercial banks in New York, New York are authorized or required by law to
close.
"Capital Lease" has the meaning specified in the definition of "Capital Lease
Obligations."
"Capital Lease Obligations" means all monetary obligations of the Borrower or
any of its Subsidiaries under any leasing or similar arrangement which, in
accordance with GAAP, is classified as a capital lease ("Capital Lease").
"Cash Equivalents" means:
(a) securities issued or fully guaranteed or insured by the United
States Government or any agency thereof and backed by the full faith and credit
of the United States having maturities of not more than six months from the date
of acquisition;
(b) certificates of deposit, time deposits, Eurodollar time deposits,
repurchase agreements, reverse repurchase agreements, or bankers' acceptances,
having in each case a term of not more than six months, issued by any Lender, or
by any U.S. commercial bank having combined capital and surplus of not less than
$100,000,000 whose short term securities are rated at least A-1 by S&P and P-1
by Xxxxx'x; and
(c) commercial paper of an issuer rated at least A-1 by S&P or P-1 by
Xxxxx'x and in either case having a tenor of not more than three months.
"Change of Control" means (a) any Person or any two or more Persons acting
in concert (in any such case, excluding the Lenders) acquiring beneficial
ownership (within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Exchange Act), directly or indirectly, of capital stock of
the Borrower (or other securities convertible into such capital stock)
representing 40% or more of the combined voting power of all capital stock of
the Borrower entitled to vote in the election of directors, other than capital
stock having such power only by reason of the happening of a contingency or (b)
during any period of twelve consecutive calendar months, individuals who at the
beginning of such period constituted the Borrower's board of directors (together
with any new directors whose election by the Borrower's board of directors or
whose nomination for election by the Borrower's stockholders was approved by a
vote of at least a majority of the directors then still in office who either
were directors at the beginning of such period or whose election or nomination
for election was previously so approved) cease for any reasons other than death
or disability to constitute a majority of the directors then in office.]
"Closing Date" means the date on which all conditions precedent set forth in
Section 4.01 are satisfied or waived by all Lenders.
"Code" means the Internal Revenue Code of 1986, as amended, and regulations
promulgated thereunder.
"Collateral" means all property and interests in property and proceeds thereof
now owned or hereafter acquired by any Credit Party in or upon which a Lien now
or hereafter exists in favor of the Lenders, or the Collateral Agent on behalf
of the Lenders, whether under this Agreement or under any other documents
executed by any such Persons and delivered to the Collateral Agent.
"Collateral Agent" means the Agent acting in its capacity as Collateral Agent
pursuant to the Collateral Documents.
"Collateral Documents" means, collectively, (a) the Security Agreement, the
Subsidiary Guaranty, the Pledge Agreement, the Intellectual Property
Assignments, the Mortgages and all other security agreements, patent and
trademark assignments, guarantees and other similar agreements between the
Borrower or its Subsidiaries and the Lenders or the Collateral Agent for the
benefit of the Guaranteed Creditors, now or hereafter delivered to the Lenders
or the Collateral Agent pursuant to or in connection with the transactions
contemplated hereby, and all financing statements (or comparable documents now
or hereafter filed in accordance with the UCC or comparable law) against the
Borrower or any Subsidiaries or any Guarantor as debtor in favor of the Lenders
or the Collateral Agent for the benefit of the Guaranteed Creditors as secured
party and (b) any amendments, supplements, modifications, renewals,
replacements, consolidations, substitutions and extensions of any of the
foregoing.
"Commitment" has the meaning specified in Section 2.01.
"Contingent Obligation" means, as to any Person, any direct or indirect
liability of that Person, whether or not contingent, with or without recourse,
(a) with respect to any Indebtedness, lease, dividend, letter of credit or other
obligation (the "primary obligations") of another Person (the "primary
obligor"), including any obligation of that Person (i) to purchase, repurchase
or otherwise acquire such primary obligations or any security therefor, (ii) to
advance or provide funds for the payment or discharge of any such primary
obligation, or to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency or any balance sheet
item, level of income or financial condition of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation, or (iv) otherwise to assure or hold
harmless the holder of any such primary obligation against loss in respect
thereof (each, a "Guaranty Obligation"); (b) with respect to any Surety
Instrument (other than any letter of credit) issued for the account of that
Person or as to which that Person is otherwise liable for reimbursement of
drawings or payments; (c) to purchase any materials, supplies or other property
from, or to obtain the services of, another Person if the relevant contract or
other related document or obligation requires that payment for such materials,
supplies or other property, or for such services, shall be made regardless of
whether delivery of such materials, supplies or other property is ever made or
tendered, or such services are ever performed or tendered; or (d) in respect of
any Swap Contract. The amount of any Contingent Obligation shall, in the case
of Guaranty Obligations, be deemed equal to the stated or determinable amount of
the primary obligation in respect of which such Guaranty Obligation is made or,
if not stated or if indeterminable, the maximum reasonably anticipated liability
in respect thereof, and in the case of other Contingent Obligations other than
in respect of Swap Contracts, shall be equal to the maximum reasonably
anticipated liability in respect thereof and, in the case of Contingent
Obligations in respect of Swap Contracts, shall be equal to the Swap Termination
Value.
"Contractual Obligation" means, as to any Person, any provision of any security
issued by such Person or of any agreement, undertaking, contract, indenture,
mortgage, deed of trust or other instrument, document or agreement to which such
Person is a party or by which it or any of its property is bound.
"Credit Extension" means the making of the Term Loans hereunder.
"Credit Party" means each Borrower and each Guarantor.
"Default" means any event or circumstance which, with the giving of notice, the
lapse of time, or both, would (if not cured or otherwise remedied during such
time) constitute an Event of Default.
"Designated Non-Core Assets" means those assets, properties and/or subsidiaries
which the Agent and the Majority Lenders determine constitute non-core assets of
the Borrower or any of its Subsidiaries.
"Dollars", "dollars" and "$" each mean lawful money of the United States.
"Domestic Subsidiary" means each Subsidiary of the Borrower that is organized
under the laws of the United States or any state thereof.
"Environmental Claims" means all claims, however asserted, by any Governmental
Authority or other Person alleging potential liability or responsibility for
violation of any Environmental Law, or for release or injury to the environment
or threat to public health, personal injury (including sickness, disease or
death), property damage, natural resources damage, or otherwise alleging
liability or responsibility for damages (punitive or otherwise), investigation,
cleanup, removal, remedial or response costs, restitution, civil or criminal
penalties, injunctive relief, or other type of relief, resulting from or based
upon the presence, placements, discharge, emission or release (including
intentional and unintentional, negligent and non-negligent, sudden or
non-sudden, accidental or non-accidental, placements, spills, leaks, discharges,
emissions or releases) of any Hazardous Material at, in, or from any property,
whether or not owned by the Borrower or any Subsidiary or taken as collateral,
or in connection with any operations of the Borrower.
"Environmental Laws" means all federal, state or local laws, statutes, common
law duties, rules, regulations, ordinances and codes, together with all
administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authorities, in each case
relating to environmental, health, safety and land use matters, including
without limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 ("CERCLA"), the Clean Air Act, the Federal Water Pollution
Control Act of 1972, the Solid Waste Disposal Act, the Federal Resource
Conservation and Recovery Act, the Toxic Substances Control Act, the Emergency
Planning and Community Right-to-Know Act and the Ley General del Equilibrio
Ecologico y la Proteccion al Ambiente.
"Environmental Permits" has the meaning specified in Section 5.12(b).
"ERISA" means the Employee Retirement Income Security Act of 1974, and
regulations promulgated thereunder.
"ERISA Affiliate" means any trade or business (whether or not incorporated)
under common control with the Borrower within the meaning of Section 414(b) or
(c) of the Code (and Sections 414(m) and (o) of the Code for purposes of
provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan subject to
Section 4063 of ERISA during a plan year in which it was a substantial employer
(as defined in Section 4001(a)(2) of ERISA) or a cessation of operations which
is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete
or partial withdrawal by the Borrower or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization; (d) the filing of a notice of intent to terminate, the treatment
of a Plan amendment as a termination under Section 4041 or 4041A of ERISA, or
the commencement of proceedings by the PBGC to terminate a Pension Plan or
Multiemployer Plan; (e) an event or condition which might reasonably be expected
to constitute grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan or Multiemployer Plan;
or (f) the imposition of any liability to the PBGC under Title IV of ERISA,
other than PBGC premiums due but not delinquent under Section 4007 of ERISA,
upon the Borrower or any ERISA Affiliate.
"Event of Default" means any of the events or circumstances specified in Section
8.01.
"Exchange Act" means the Securities Exchange Act of 1934, and regulations
promulgated thereunder.
"Fee Letter" has the meaning specified in Section 2.05.
"Fiscal Quarter" means each of the quarterly periods ending on March 31, June
30, September 30 and December 31 of each fiscal year.
"Foreign Subsidiary" means each Subsidiary of the Borrower that is not a
Domestic Subsidiary.
"Further Taxes" means any and all present or future taxes, levies, assessments,
imposts, duties, deductions, fees, withholdings or similar charges (including,
without limitation, net income taxes and franchise taxes), and all liabilities
with respect thereto, imposed by any jurisdiction on account of amounts payable
or paid pursuant to Section 3.01.
"GAAP" means generally accepted accounting principles set forth from time to
time in the opinions and pronouncements of the Accounting Principles Board and
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within the U.S. accounting
profession), which are applicable to the circumstances as of the date of
determination.
"Governmental Authority" means any nation or government, any state or other
political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government,
and any corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
"Guaranteed Creditors" shall mean and include Agent and the Lenders.
"Guaranteed Obligations" shall mean (i) the full and prompt payment when due
(whether at the stated maturity, by acceleration or otherwise) of the principal
and interest (whether such interest is allowed as a claim in a bankruptcy
proceeding with respect to the Borrower or otherwise) on each Note issued by the
Borrower to each Lender, and Loans made under this Agreement to the Borrower,
together with all other Obligations (including obligations which, but for the
automatic stay under Section 362(a) of the Bankruptcy Code, would become due)
and liabilities (including, without limitation, indemnities, fees and interest
thereon) of the Borrower to such Lender now existing or hereafter incurred
under, arising out of or in connection with this Agreement or any other Loan
Documents and the due performance and compliance with all terms, conditions and
agreements contained in the Loan Documents by the Borrower.
"Guarantor" means each Domestic Subsidiary of the Borrower.
"Guaranty Obligation" has the meaning specified in the definition of "Contingent
Obligation."
"Hazardous Materials" means all those substances that are regulated by, or which
may form the basis of liability or a standard of conduct under, any
Environmental Law, including any substance identified under any Environmental
Law as a pollutant, contaminant, hazardous waste, hazardous constituent, special
waste, hazardous substance, hazardous material, or toxic substance, or petroleum
or petroleum-derived substance or waste.
"Indebtedness" of any Person means, without duplication, (a) all indebtedness
for borrowed money; (b) all obligations issued, undertaken or assumed as the
deferred purchase price of property or services (other than trade payables
entered into in the ordinary course of business on ordinary terms); (c) all
non-contingent reimbursement or payment obligations with respect to Surety
Instruments and all letters of credit; (d) all obligations evidenced by notes,
bonds, debentures or similar instruments, including obligations so evidenced
incurred in connection with the acquisition of property, assets or businesses;
(e) all indebtedness created or arising under any conditional sale or other
title retention agreement, or incurred as financing, in either case with respect
to property acquired by the Person (even though the rights and remedies of the
seller or lender under such agreement in the event of default are limited to
repossession or sale of such property); (f) all obligations with respect to
Capital Leases; (g) the principal balance outstanding under any synthetic lease,
tax retention operating lease, off-balance sheet loan or similar off-balance
sheet financing product to which such Person is a party, where such transaction
is considered borrowed money indebtedness for tax purposes but is classified as
an operating lease in accordance with GAAP; (h) all indebtedness referred to in
clauses (a) through (g) above secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any Lien upon or in property (including accounts and contract rights) owned by
such Person, even though such Person has not assumed or become liable for the
payment of such Indebtedness; and (i) all Guaranty Obligations in respect of
indebtedness or obligations of others of the kinds referred to in clauses (a)
through (h) above. For all purposes of this Agreement, the Indebtedness of any
Person shall include all recourse Indebtedness of any partnership or joint
venture or limited liability company in which such Person is a general partner
or a joint venturer or a member.
"Indemnified Liabilities" has the meaning specified in Section 10.05.
"Indemnified Person" has the meaning specified in Section 10.05.
"Independent Auditor" has the meaning specified in Section 6.01(a).
"Insolvency Proceeding" means, with respect to any Person, (a) any case, action
or proceeding with respect to such Person before any court or other Governmental
Authority relating to bankruptcy, reorganization, insolvency, liquidation,
receivership, dissolution, winding-up or relief of debtors, or (b) any general
assignment for the benefit of creditors, composition, marshaling of assets for
creditors, or other, similar arrangement in respect of its creditors generally
or any substantial portion of its creditors; undertaken under U.S. federal,
state or foreign law, including the Bankruptcy Code.
"Intellectual Property Assignments" means, collectively, those certain Patent
Agreements and Trademark Agreements duly executed and delivered by the Borrower
and any Guarantors in favor of the Collateral Agent, for the benefit of itself
and the Guaranteed Creditors, as the same may be amended, supplemented or
otherwise modified from time to time.
"Interest Payment Date" has the meaning specified in Section 2.04(c).
"Investments" has the meaning specified in Section 7.01.
"IRS" means the Internal Revenue Service, and any Governmental Authority
succeeding to any of its principal functions under the Code.
"joint venture" means a single-purpose corporation, partnership, limited
liability company, joint venture or other similar legal arrangement (whether
created by contract or conducted through a separate legal entity) now or
hereafter formed by the Borrower or any of its Subsidiaries with another Person
in order to conduct a common venture or enterprise with such Person.
"Lien" means any security interest, mortgage, deed of trust, pledge,
hypothecation, assignment, charge or deposit arrangement, encumbrance, lien
(statutory or other) or preferential arrangement of any kind or nature
whatsoever in respect of any property (including those created by, arising under
or evidenced by any conditional sale or other title retention agreement, the
interest of a lessor under a capital lease, any financing lease having
substantially the same economic effect as any of the foregoing, or the filing of
any financing statement naming the owner of the asset to which such lien relates
as debtor, under the Uniform Commercial Code or any comparable law) and any
contingent or other agreement to provide any of the foregoing, but not including
the interest of a lessor under an operating lease.
"Loan" means an extension of credit by a Lender to the Borrower under Article
II, collectively referred to as the "Loans."
"Loan Documents" means this Agreement, any Note, the Fee Letter, the Collateral
Documents and all other documents delivered to the Agent or any Lender in
connection herewith.
"Majority Lenders" means, at any time, Lenders then holding in excess of 50% of
the then aggregate unpaid principal amount of the Loans, or if no Loans are
outstanding, Lenders then having in excess of 50% of the aggregate amount of the
Commitments.
"Margin Stock" means "margin stock" as such term is defined in Regulation T, U
or X of the FRB.
"Material Adverse Effect" means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, properties, performance, assets,
liabilities (contingent or otherwise), value, condition (financial or otherwise)
or prospects of the Borrower or the Borrower and its Subsidiaries taken as a
whole; (b) a material impairment on the ability of the Borrower or any
Subsidiary to perform under any Loan Document and to avoid any Event of Default;
(c) a material adverse effect upon the legality, validity, binding effect or
enforceability against the Borrower or any Subsidiary of any Loan Document; or
(d) a material adverse effect on the rights and remedies of the Lenders under
this Agreement or the other Loan Documents.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Mortgages" means the mortgages, deeds of trust, assignments of leases and
rents, modifications and other security documents delivered pursuant to Section
4.01(e).
"Multiemployer Plan" means a "multiemployer plan," within the meaning of Section
4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes, is
making, or is obligated to make contributions or, during the preceding three
calendar years, has made, or been obligated to make, contributions.
"Note" means a promissory note executed by the Borrower in favor of a Lender
pursuant to Section 2.02(b), in substantially the form of Exhibit A, as
applicable.
"Obligations" means all advances, debts, liabilities, obligations, covenants and
duties arising under any Loan Document owing by any Credit Party to any Lender,
the Agent, or any Indemnified Person, whether direct or indirect (including
those acquired by assignment), absolute or contingent, due or to become due, now
existing or hereafter arising.
"Organization Documents" means, for any corporation, the certificate or articles
of incorporation, the bylaws, any certificate of determination or instrument
relating to the rights of preferred shareholders of such corporation, any
shareholder rights agreement, and all applicable resolutions of the board of
directors (or any committee thereof) of such corporation.
"Other Taxes" means any present or future stamp, court or documentary taxes or
any other excise or property taxes, charges or similar levies which arise from
any payment made hereunder or from the execution, delivery, performance,
enforcement or registration of, or otherwise with respect to, this Agreement or
any other Loan Documents.
"PBGC" means the Pension Benefit Guaranty Corporation, or any Governmental
Authority succeeding to any of its principal functions under ERISA.
"Pension Plan" means a pension plan (as defined in Section 3(2) of ERISA)
subject to Title IV of ERISA which the Borrower sponsors, maintains, or to which
it makes, is making, or is obligated to make contributions, or in the case of a
multiple employer plan (as described in Section 4064(a) of ERISA) has made
contributions at any time during the immediately preceding five (5) plan years.
"Permitted Liens" has the meaning specified in the B of A Credit Agreement.
"Person" means an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated association,
joint venture or Governmental Authority.
"Plan" means an employee benefit plan (as defined in Section 3(3) of ERISA)
which the Borrower sponsors or maintains or to which the Borrower makes, is
making, or is obligated to make contributions and includes any Pension Plan.
"Pledge Agreements" means, collectively, that certain Pledge Agreement, duly
executed and delivered by each of the Borrower and the Guarantors pledging the
stock of its Subsidiaries to the Collateral Agent, for the benefit of itself and
the Lenders, as the same may be amended, supplemented or otherwise modified from
time to time.
"Pledged Collateral" has the meaning specified in the Pledge Agreement.
"Property" means any interest in any kind of property or asset, whether real,
personal or mixed, and whether tangible or intangible.
"Pro Rata Share" means, as to any Lender at any time, the percentage equivalent
(expressed as a decimal, rounded to the ninth decimal place) at such time of
such Lender's Commitment divided by the combined Commitments of all Lenders, or,
if the Commitments have been terminated, such Lender's outstanding Term Loans
divided by the combined outstanding Term Loans of the Lenders.
"Reportable Event" means, any of the events set forth in Section 4043(c) of
ERISA or the regulations thereunder, other than any such event for which the
30-day notice requirement under ERISA has been waived in regulations issued by
the PBGC.
"Requirement of Law" means, as to any Person, any law (statutory or common),
treaty, rule or regulation or determination of an arbitrator or of a
Governmental Authority, in each case applicable to or binding upon the Person or
any of its property or to which the Person or any of its property is subject.
"Responsible Officer" means the chief executive officer, the president, the
executive vice president-treasury, corporate development and secretary, the
executive vice president and chief administrative officer or the corporate
treasurer of the Borrower, or any other officer having substantially the same
authority and responsibility; or, with respect to compliance with financial
covenants, the vice president and chief accounting officer or the corporate
treasurer of the Borrower, or any other officer having substantially the same
authority and responsibility.
"S&P" means Standard & Poor's Ratings Group, a division of the XxXxxx-Xxxx
Companies, Inc. or any successor thereto.
"Same Day Funds" means immediately available funds.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Security Agreement" means that certain Security Agreement, duly executed and
delivered by Borrower in favor of the Collateral Agent, for the benefit of
itself and the Guaranteed Creditors, as the same may be amended, supplemented or
otherwise modified from time to time.
"Series B Preferred Stock" means the Borrower's Series B Cumulative Convertible
Preferred Stock.
"Series B-1 Preferred Stock" means the Borrower's Series B Cumulative
Convertible Participating Preferred Stock.
"Series B Exchange Agreement" that certain Exchange Agreement dated as of April
17, 2001 among the Borrower and the holders of Series B Preferred Stock.
"Solvent" means, when used with respect to a Person, that (a) the fair saleable
value of the assets of such Person is in excess of the total amount of the
present value of its liabilities (including for purposes of this definition all
liabilities (including loss reserves as determined by such Person), whether or
not reflected on a balance sheet prepared in accordance with GAAP and whether
direct or indirect, fixed or contingent, secured or unsecured, disputed or
undisputed), (b) such Person is able to pay its debts or obligations in the
ordinary course as they mature and (c) such Person does not have unreasonably
small capital to carry out its business as conducted and as proposed to be
conducted. "Solvency" shall have a correlative meaning.
"Subordinated Debt" means up to $100 million of indebtedness incurred pursuant
to that certain Indenture dated as of January 15, 1997 between Borrower and U.S.
Bank National Association, as Trustee, as supplemented prior to the date hereof,
including those certain 10 % Senior Subordinated Notes, Series A, due 2004, in
the original principal amount of $50 million and those certain 10 % Senior
Subordinated Notes, Series B, due 2004, in the initial principal amount of $25
million.
"Subsidiary" of a Person means any corporation, association, partnership,
limited liability company, joint venture or other business entity of which more
than 50% of the voting stock, membership interests or other equity interests (in
the case of Persons other than corporations), is owned or controlled directly or
indirectly by the Person, or one or more of the Subsidiaries of the Person, or a
combination thereof. Unless the context otherwise clearly requires, references
herein to a "Subsidiary" refer to a Subsidiary of the Borrower.
"Subsidiary Guaranty" means that certain Guaranty, dated as of the date hereof,
duly executed and delivered by the Guarantors in favor of the Agent, on behalf
of the Guaranteed Creditors, as the same may be amended, supplemented or
otherwise modified from time to time.
"Surety Instruments" means all letters of credit (including standby and
documentary), banker's acceptances, bank guaranties, shipside bonds, surety
bonds and similar instruments.
"Swap Contract" means any agreement, whether or not in writing, relating to any
transaction that is a rate swap, basis swap, forward rate transaction, commodity
swap, commodity option, equity or equity index swap or option, bond, note or
xxxx option, interest rate option, forward foreign exchange transaction, cap,
collar or floor transaction, currency swap, cross-currency rate swap, swaption,
currency option or any other, similar transaction (including any option to enter
into any of the foregoing) or any combination of the foregoing, and, unless the
context otherwise clearly requires, any master agreement relating to or
governing any or all of the foregoing.
"Taxes" means any and all present or future taxes, levies, assessments, imposts,
duties, deductions, fees, withholdings or similar charges, and all liabilities
with respect thereto, excluding, in the case of each Lender and the Agent,
respectively, taxes imposed on or measured by its net income by the jurisdiction
(or any political subdivision thereof) under the laws of which such Lender or
the Agent, as the case may be, is organized or does business.
"Term Loan" and "Term Loans" each have the meanings specified in Section 2.01.
"Term Loan Maturity Date" means the earlier of (i) 350 days after the Closing
Date and (ii) the day of the purchase by the Lenders of the securities as
contemplated by the Stock Purchase Agreement.
"Unfunded Pension Liability" means the excess of a Plan's benefit liabilities
under Section 4001(a)(16) of ERISA, over the current value of that Plan's
assets, determined in accordance with the assumptions used for funding the
Pension Plan pursuant to Section 412 of the Code for the applicable plan year.
"Uniform Commercial Code" means the Uniform Commercial Code, as in effect from
time to time in the relevant jurisdiction.
"United States" and "U.S." each means the United States of America.
"Wholly-Owned Subsidiary" means any corporation, association, partnership,
limited liability company, joint venture or other business entity in which
(other than directors' qualifying shares required by law) 100% of the equity
interests of each class having ordinary voting power, and 100% of the equity
interests of every other class, in each case, at the time as of which any
determination is being made, is owned, beneficially and of record, by the
Borrower, or by one or more of the other Wholly-Owned Subsidiaries, or both.
1.02. Other Interpretive Provisions.
(a) The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
(b) The words "hereof", "herein", "hereunder" and similar words refer
to this Agreement as a whole and not to any particular provision of this
Agreement; and Section, Schedule and Exhibit references are to this Agreement
unless otherwise specified.
(c) (i) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other writings,
however evidenced.
(i) Hidden style
(ii) The term "including" is not limiting and means "including without
limitation."
(iii) In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including"; the words "to"
and "until" each mean "to but excluding", and the word "through" means "to and
including."
(iv) The term "property" includes any kind of property or asset, real,
personal or mixed, tangible or intangible.
(d) Unless otherwise expressly provided herein, (i) references to
agreements (including this Agreement) and other contractual instruments shall be
deemed to include all subsequent amendments and other modifications
thereto, but only to the extent such amendments and other modifications are not
prohibited by the terms of any Loan Document, and (ii) references to any statute
or regulation are to be construed as including all statutory and regulatory
provisions consolidating, amending, replacing, supplementing or interpreting the
statute or regulation.
(e) The captions and headings of this Agreement are for convenience of
reference only and shall not affect the interpretation of this Agreement.
(f) This Agreement and other Loan Documents may use several different
limitations, tests or measurements to regulate the same or similar matters. All
such limitations, tests and measurements are cumulative and shall each be
performed in accordance with their terms. Unless otherwise expressly provided,
any reference to any action of the Agent or the Lenders by way of consent,
approval or waiver shall be deemed modified by the phrase "in its/their sole
discretion."
(g) This Agreement and the other Loan Documents are the result of
negotiations among and have been reviewed by counsel to the Agent, the Borrower
and the other parties, and are the products of all parties. Accordingly, they
shall not be construed against the Lenders or the Agent merely because of the
Agent's or the Lenders' involvement in their preparation.
1.03. Accounting Principles.
(a) Unless the context otherwise clearly requires, all accounting terms
not expressly defined herein shall be construed, and all financial
computations required under this Agreement shall be made, in accordance with
GAAP, consistently applied in accordance with past practices.
(b) References herein to "fiscal year" and "fiscal quarter" refer to
such fiscal periods of the Borrower.
ARTICLE II
THE CREDIT
2.01. Amounts and Terms of Commitments. Each Lender hereby severally
and not jointly agrees, on the terms and conditions set forth herein, to make a
term loan to the Borrower (each such loan a "Term Loan" and collectively the
"Term Loans") on the Closing Date denominated in Dollars in an aggregate
principal Dollar amount set forth opposite such Lender's name on Schedule 2.01
(such amount, the Lender's "Commitment").
2.02. Notes.
The Term Loan made by each Lender shall be evidenced by the Borrower's
promissory notes of even date herewith to each Lender, in substantially the form
of Exhibit A (collectively, the "Notes"), each in the principal amount as set
forth opposite such Lender's name on Schedule 2.01.
2.03. Principal Payments; Maturity.
The Term Loans shall mature on the Term Loan Maturity Date at which time
the Borrower shall pay all outstanding principal on the Term Loans.
2.04. Interest.
(a) Each Term Loan shall bear interest on the outstanding principal
amount thereof from the Closing Date at a rate per annum equal to (i) 7% (based
on a 360-day year) for the first 90 days after the Closing Date and (ii) 18%
thereafter.
(b) Simultaneously with the payment, as required in Section 2.03, of
outstanding principal on the Term Loans, the Borrower shall issue promissory
notes of even date therewith to each Lender, in form reasonably satisfactory to
the Lenders (collectively the "Interest Notes"), each in a principal amount
equal to the accrued and unpaid interest then due to such Lender pursuant to
Section 2.04(a).
(c) The Interest Notes shall mature on the earlier of (i) January 6,
2003 and (ii) the date on which all amounts payable under the B of A Credit
Agreement have been paid in full at which time the Borrower shall pay all
outstanding principal on the Interest Notes (such earlier date referred to
herein as the "Interest Payment Date").
(d) Notwithstanding Section 2.04(a), while any Event of Default exists
or after acceleration, each Term Loan shall bear interest, payable on the
Interest Payment Date, (after as well as before entry of judgment thereon to the
extent permitted by law) on the principal amount of all outstanding Obligations,
at a rate per annum which is determined by adding 2% per annum to the applicable
interest rate otherwise then in effect for such Loans.
(e) Anything herein to the contrary notwithstanding, the obligations of
the Borrower to any Lender hereunder shall be subject to the limitation that
payments of interest shall not be required for any period for which interest is
computed hereunder, to the extent (but only to the extent) that contracting for
or receiving such payment by such Lender would be contrary to the provisions of
any law applicable to such Lender limiting the highest rate of interest that may
be lawfully contracted for, charged or received by such Lender, and in such
event Borrower shall pay such Lender interest at the highest rate permitted by
applicable law.
2.05. Fees. On the Closing Date, the Borrower shall pay the fees to FS
Private Investors III LLC and FS Private Investors LLC as required by the
letter agreement ("Fee Letter") between the Borrower and the Lenders dated April
17, 2001.
2.06. Payments by the Borrower.
(a) All payments to be made by Borrower shall be made without set-off,
recoupment or counterclaim. Except as otherwise expressly provided herein, all
payments by Borrower shall be made to each Lender for the account of such
Lenders at the Agent's Payment Office and shall be made in Dollars. Such
payments shall be made in Same Day Funds, and no later than 11:00 a.m. (New York
time) on the date specified herein. Any payment which is received by the a
Lender later than 11:00 a.m. (New York time) shall be deemed to have been
received by such Lender on the following Business Day and any applicable
interest or fee shall continue to accrue.
(b) Whenever any payment is due on a day other than a Business Day,
such payment shall be made on the following Business Day, and such extension of
time shall in such case be included in the computation of interest or fees, as
the case may be.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01. Taxes.
(a) Any and all payments by the Borrower to each Lender or the Agent
under this Agreement and any other Loan Document shall be made free and clear
of, and without deduction or withholding for, any Taxes. In addition, the
Borrower shall pay all Further Taxes and Other Taxes.
(b) If the Borrower shall be required by law to deduct or withhold any
Taxes, Other Taxes or Further Taxes from or in respect of any sum payable
hereunder to any Lender or the Agent, then:
(i) the sum payable shall be increased as necessary so that, after
making all required deductions and withholdings (including deductions and
withholdings applicable to additional sums payable under this Section), such
Lender or the Agent, as the case may be, receives and retains an amount equal to
the sum it would have received and retained had no such deductions or
withholdings been made;
(ii) the Borrower shall make such deductions and withholdings;
(iii) the Borrower shall pay the full amount deducted or withheld to
the relevant taxing authority or other authority in accordance with applicable
law; and
(iv) the Borrower shall also pay to each Lender or the Agent for the
account of such Lender, at the time interest is paid, Further Taxes in the
amount that the respective Lender specifies as necessary to preserve the
after-tax yield the Lender would have received if such Taxes, Other Taxes or
Further Taxes had not been imposed.
(c) The Borrower agrees to indemnify and hold harmless each Lender and
the Agent for the full amount of Taxes, Other Taxes, and Further Taxes in the
amount that the respective Lender specifies as necessary to preserve the
after-tax yield the Lender would have received if such Taxes, Other Taxes or
Further Taxes had not been imposed, and any liability (including penalties,
interest, additions to tax and expenses) arising therefrom or with respect
thereto, whether or not such Taxes, Other Taxes or Further Taxes were correctly
or legally asserted. Payment under this indemnification shall be made on the
Interest Payment Date.
(d) Within 30 days after the date of any payment pursuant to this
Section by the Borrower of Taxes, Other Taxes or Further Taxes, the Borrower
shall furnish to each Lender or the Agent the original or a certified copy of a
receipt evidencing payment thereof, or other evidence of payment satisfactory to
such Lender or the Agent.
3.02. Certificates of Lenders. Any Lender claiming reimbursement or
compensation under this Article III shall deliver to the Borrower (with a copy
to the Agent) a certificate setting forth in reasonable detail the amount
payable to the Lender hereunder and such certificate shall be presumed correct
and binding on the Borrower in the absence of manifest error.
3.03. Survival. The agreements and obligations of Borrower in this
Article III shall survive the payment of all other Obligations.
ARTICLE IV
CONDITIONS PRECEDENT
4.01. Conditions of Credit Extensions. The obligation of each Lender
to make its Credit Extension hereunder is subject to the condition that the
Agent shall have received on or before the Closing Date the documents described
in paragraphs (a) through (n) and (s) below, in form and substance satisfactory
to the Agent and, to the extent specified below, each Lender (and in sufficient
copies for each Lender), and in addition, the conditions set forth in paragraphs
(o) through (r) shall have been fulfilled:
(a) Credit Agreement and Notes. This Agreement and the Notes executed
by each party thereto;
(b) B of A Credit Agreement. The B of A Credit Agreement shall have
been amended in accordance with the commitment letter, dated April 17, 2001,
entered into by the Financial Institutions and the Borrower (the "Financial
Institutions Commitment Letter") and following such execution no default or
event of default shall have occurred and be continuing thereunder and the terms
of such amendment of the B of A Credit Agreement shall permit Borrower to pay,
on the Closing Date, a dividend in the aggregate amount not to exceed $1,139,841
to the holders of its Series B Preferred Stock, provided that the aggregate
amount of the Term Loans less such dividend and less the payment of fees and
expenses under Section 4.01(l) equals or exceeds $13,000,000.
(c) Subsidiary Guaranty. Each Guarantor shall have duly authorized,
executed and delivered the Subsidiary Guaranty.
(d) Pledge Agreements. Each of the Borrower and Guarantors shall have
duly authorized, executed and delivered the Pledge Agreement.
(e) Mortgages. Each of the Borrower and Guarantors owning real
property located in the State of Illinois or the State of Alabama shall have
duly authorized, executed and delivered Mortgages in favor of the Collateral
Agent with respect to such real estate.
(f) Asset Purchase Agreement. The acquisition contemplated by the
Asset Purchase Agreement shall be completed on or prior to the Closing Date.
(g) Intercreditor Agreement. An intercreditor agreement among the
Agent, the Lenders and the Financial Institutions Agent in form and substance
acceptable to the Lender and reflecting the terms of the Financial Institutions
Commitment Letter shall have been executed by each party thereto.
(h) Voting Agreement. A voting agreement among the Borrower, FS
Private Investments III LLC on behalf of various investment funds which it
services as investment manager and the other stockholders of the Borrower
parties thereto shall have been executed by the parties thereto and shall remain
in full force and effect.
(i) Resolutions; Incumbency.
(i) copies of the resolutions of the board of directors of each Credit
Party authorizing the transactions contemplated hereby, certified by the
Secretary or an Assistant Secretary of such Person; and
(ii) a certificate of the Secretary or Assistant Secretary of each
Credit Party certifying the names and true signatures of the officers of such
Credit Party authorized to execute, deliver and perform, as applicable, this
Agreement and all other Loan Documents to be delivered by it hereunder.
(j) Organization Documents; Good Standing. Each of the following
documents:
(i) copies of the articles or certificate of incorporation and bylaws
of each Credit Party as then in effect, certified by the Secretary or Assistant
Secretary of such Person; and
(ii) a good standing certificate for each Credit Party from the
Secretary of State (or similar, applicable Governmental Authority) of its state
of incorporation and each state where such Person is qualified to do business as
a foreign corporation as of a recent date, together with, to the extent
requested by Agent, a bring-down certificate by facsimile.
(k) Legal Opinions. An opinion addressed to the Agent and the Lenders
of each of X'Xxxxxx & Xxxxxx LLC and Xxxx X. Xxxxxx, senior corporate counsel to
the Borrower, substantially in the form of Exhibit B;
(l) Payment of Fees. Evidence of payment by the Borrower of all
accrued and unpaid fees, costs and expenses to the extent then due and payable
to Agent or the other Lenders on the Closing Date, together with Attorney Costs
to the extent invoiced prior to or on the Closing Date, plus such additional
amounts of Attorney Costs as shall constitute the Agent's reasonable estimate of
Attorney Costs incurred or to be incurred by it through the closing proceedings
(provided that such estimate shall not thereafter preclude final settling of
accounts between the Borrower and the Agent); including any such costs, fees and
expenses arising under or referenced in Sections 2.05 and 10.04;
(m) Certificate. A certificate signed by a Responsible Officer of
Borrower, dated as of the Closing Date, stating that:
(i) the representations and warranties contained in Article V
(including the representation set forth in Section 5.16) are true and correct on
and as of such date, as though made on and as of such date;
(ii) no Default or Event of Default exists or would result after giving
effect to the Credit Extension;
(iii) except as disclosed in writing by the Borrower to the Agent,
there has not occurred since December 31, 2000 any event or circumstance that
has resulted or could reasonably be expected to result in a Material Adverse
Effect; and
(n) Collateral Documents. As of the Closing Date, the Collateral
Documents, executed by the applicable Credit Party, in appropriate form for
recording, where necessary, together with:
(i) acknowledgment copies of all UCC-l financing statements filed,
registered or recorded to perfect the security interests of the Collateral Agent
for the benefit of the Lenders, or other evidence satisfactory to the Agent
that there has been or will be filed, registered or recorded all financing
statements and other filings, registrations and recordings necessary and
advisable to perfect the Liens of the Collateral Agent for the benefit of the
Lenders in accordance with applicable law;
(ii) written advice relating to such Lien and judgment searches as the
Collateral Agent shall have requested of the Borrower, and such termination
statements or other documents as may be necessary to confirm that the Collateral
is subject to no other Liens in favor of any Persons (other than Permitted
Liens);
(iii) all certificates and instruments representing the Pledged
Collateral, stock transfer powers executed in blank as the Collateral Agent or
the Lenders may specify;
(iv) evidence that all other actions necessary or, in the opinion of
the Collateral Agent or the Lenders, desirable to perfect and protect the second
priority security interest created by the Collateral Documents have been taken;
(v) funds sufficient to pay any filing or recording tax or fee in
connection with any and all UCC-1 financing statements;
(vi) evidence that the Collateral Agent has been named as a loss payee
under all policies of casualty insurance, and as additional insured under all
policies of liability insurance;
(vii) such consents, estoppels, subordination agreements and other
documents and instruments executed by landlords, tenants and other Persons party
to material contracts relating to any Collateral as to which the Agent shall be
granted a Lien for the benefit of the Lenders, as requested by the Agent or any
Lender; and
(viii) evidence that all other actions necessary or, in the opinion of
the Collateral Agent or the Lenders, desirable to perfect and protect the second
priority Lien created by the Collateral Documents, and to enhance the Collateral
Agent's ability to preserve and protect its interests in and access to the
Collateral, have been taken;
(o) Litigation. The absence of any action, suit, investigation,
litigation or proceeding pending or, to the Borrower's knowledge, threatened in
any court or before any arbitrator or Governmental Authority that, if determined
adversely to the Borrower or any Subsidiary, could reasonably be expected
to have a (i) Material Adverse Effect or (ii) purports to adversely affect the
transactions contemplated hereby;
(p) Due Diligence. Receipt and review, with results satisfactory to
the Agent and its counsel, of information regarding various matters relating to
the Borrower and its Subsidiaries, including litigation, tax, accounting, labor,
insurance, pension liabilities (actual or contingent), real estate leases,
material contracts, debt agreements, property ownership, environmental matters,
contingent liabilities and management;
(q) Consents. All governmental and third party consents and approvals
necessary in connection with the transactions contemplated hereby shall have
been obtained (without the imposition of any conditions that are not acceptable
to the Investor) and shall remain in effect (other than any such consents and
approvals the absence of which, either individually or in the aggregate, would
not be reasonably likely to result in a Material Adverse Effect); and no law or
regulation shall be applicable in the judgment of the Investors that restrains,
prevents or imposes materially adverse conditions upon the transactions
contemplated hereby;
(r) Other Transactions. No event shall have occurred which makes it
likely in the Agent's reasonable judgment that (i) the holders of the
Subordinated Debt will not consent to amendments to the Indentures relating
thereto which would cure events of default relating to the financial covenants
set forth therein and other modifications necessary to permit the transactions
contemplated hereby and under the Stock Purchase Agreement, (ii) that Borrower's
shareholders will not consent to the transactions relating to Borrower's capital
stock contemplated by the Stock Purchase Agreement or (iii) the other conditions
set forth in the Stock Purchase Agreement for the purchase of the equity
interests will not be timely satisfied.
(s) Other Documents. Such other approvals, opinions, documents or
materials as the Agent or any Lender may reasonably request.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower (with respect to itself and its Subsidiaries) represents and
warrants to the Agent and each Lender that:
5.01. Corporate Existence and Power. The Borrower and each of its
Subsidiaries:
(a) is an entity duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation;
(b) has the power and authority and all governmental licenses,
authorizations, consents and approvals to own its assets, carry on its business
and to execute, deliver, and perform its obligations under the Loan Documents;
(c) is duly qualified as a foreign corporation and is licensed and in
good standing under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such qualification
or license; and
(d) is in compliance with all Requirements of Law; except, in each case
referred to in clause (c) or clause (d), to the extent that the failure to do so
could not reasonably be expected to have a Material Adverse Effect.
5.02. Corporate Authorization; No Contravention. The execution,
delivery and performance by such Credit Party of this Agreement and each other
Loan Document to which such Person is party, have been duly authorized by all
necessary corporate action, and do not and will not:
(a) contravene the terms of any of such Person's Organization
Documents;
(b) conflict with or result in any breach or contravention of, or the
creation of any Lien under, any document evidencing any Contractual Obligation
to which such Person is a party or any order, injunction, writ or decree of any
Governmental Authority to which such Person or its property is subject; or
(c) violate any Requirement of Law.
5.03. Governmental Authorization. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority (except for recordings or filings in connection with the
Liens granted to the Collateral Agent under the Collateral Documents) is
necessary or required in connection with the execution, delivery or performance
by, or enforcement against, any Credit Party of the Agreement or any other Loan
Document.
5.04. Binding Effect. This Agreement and each other Loan Document to
which any Credit Party is a party constitute the legal, valid and binding
obligations of such Credit Party, enforceable against such Person in accordance
with their respective terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, or similar laws affecting the enforcement of
creditors' rights generally or by equitable principles relating to
enforceability.
5.05. Litigation. There are no actions, suits, proceedings, claims or
disputes pending, or to the best knowledge of Borrower, threatened or
contemplated, at law, in equity, in arbitration or before any Governmental
Authority, against the Borrower, any of its Subsidiaries or any of their
respective properties which: (a) purport to affect or pertain to this
Agreement or any other Loan Document, or any of the transactions contemplated
hereby or thereby; or (b) if determined adversely to the Borrower or any of its
Subsidiaries, would reasonably be expected to have a Material Adverse Effect.
No injunction, writ, temporary restraining order or any order of any nature has
been issued by any court or other Governmental Authority purporting to enjoin or
restrain the execution, delivery or performance of this Agreement or any other
Loan Document, or directing that the transactions provided for herein or therein
not be consummated as herein or therein provided.
5.06. No Default. No Default or Event of Default exists or would
result from the incurring of any Obligations by any Credit Party or from the
grant or perfection of the Liens of the Agent and the Lenders on the Collateral.
As of the Closing Date, neither the Borrower nor any Subsidiary is in default
under or with respect to any Contractual Obligation in any respect which,
individually or together with all such defaults, could reasonably be expected to
have a Material Adverse Effect.
5.07. ERISA Compliance.
(a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other federal or state law. Each
Plan which is intended to qualify under Section 401(a) of the Code has received
a favorable determination letter from the IRS and to the best knowledge of the
Borrower, nothing has occurred which would cause the loss of such qualification.
The Borrower and each ERISA Affiliate has made all required contributions
to any Plan subject to Section 412 of the Code, and no application for a funding
waiver or an extension of any amortization period pursuant to Section 412 of the
Code has been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of the Borrower,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan which has resulted or could reasonably be expected to
result in a Material Adverse Effect. There has been no prohibited transaction
or violation of the fiduciary responsibility rules with respect to any Plan
which has resulted or could reasonably be expected to result in a Material
Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to occur;
(ii) no Pension Plan has any Unfunded Pension Liability; (iii) neither the
Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur,
any liability to the PBGC under Title IV of ERISA with respect to any Pension
Plan (other than premiums due and not delinquent under Section 4007 of ERISA);
(iv) neither the Borrower nor any ERISA Affiliate has incurred, or reasonably
expects to incur, any liability (and no event has occurred which, with the
giving of notice under Section 4219 of ERISA, would result in such liability)
under Section 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and
(v) neither the Borrower nor any ERISA Affiliate has engaged in a transaction
that could be subject to Section 4069 or 4212(c) of ERISA.
5.08. Use of Proceeds; Margin Regulations. The proceeds of the Loans
are to be used solely for the purposes set forth in and permitted by Section
6.12 and Section 7.03.
5.09. Title to Properties. The Borrower and each Subsidiary have good
record and marketable title or its equivalent in fee simple to, or valid
leasehold interests in, all real property necessary or used in the ordinary
conduct of their respective businesses, except for such defects in title as
could not, individually or in the aggregate, have a Material Adverse Effect. As
of the Closing Date, the property of the Borrower and its Subsidiaries is
subject to no Liens, other than Permitted Liens.
5.10. Taxes. The Borrower and each Subsidiary have filed all Federal
and other material tax returns and reports required to be filed, and have paid
all Federal and other material taxes, assessments, fees and other governmental
charges levied or imposed upon them or their properties, income or assets
otherwise due and payable, except those which have been extended or are being
contested in good faith by appropriate proceedings and for which adequate
reserves have been provided in accordance with GAAP. There is no proposed tax
assessment against the Borrower or any Subsidiary that would, if made, have a
Material Adverse Effect.
5.11. Financial Condition.
(a) The audited annual consolidated financial statements of Borrower
and its Subsidiaries dated December 31, 2000 including the related consolidated
or combined condensed statements of operations, shareholders' equity and cash
flows for the period ended on that date:
(i) were prepared in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly noted
therein (subject to ordinary, good faith year-end audit adjustments);
(ii) fairly present, except as specifically disclosed in Schedule
5.11(a)(ii), the financial condition of the Borrower and its consolidated
Subsidiaries, and the Borrower and its consolidated Subsidiaries, respectively,
as of the date thereof and the respective results of operations for the period
covered thereby; and
(iii) except as specifically disclosed in Schedule 5.11(a)(iii), show
all material indebtedness and other liabilities, direct or contingent, of the
Borrower and its consolidated Subsidiaries, respectively, as of the date
thereof, including liabilities for taxes, material commitments and Contingent
Obligations.
(b) Since December 30, 2000, there has been no Material Adverse Effect
except as previously disclosed in writing to the Lenders.
5.12. Environmental Matters. Except as specifically disclosed in
Schedule 5.12:
(a) The on-going operations of the Borrower and each of its
Subsidiaries comply in all respects with all Environmental Laws, except such
non-compliance which would not (if enforced in accordance with applicable law)
result in liability in excess of $3,000,000 in the aggregate.
(b) The Borrower and each of its Subsidiaries have obtained all
material licenses, permits, authorizations and registrations required under any
Environmental Law ("Environmental Permits") and necessary for their respective
ordinary course operations, all such Environmental Permits are in good standing,
and the Borrower and each of its Subsidiaries are in compliance with all
material terms and conditions of such Environmental Permits.
(c) None of the Borrower, any of its Subsidiaries or any of their
respective present Property or operations, is subject to any outstanding written
order from or agreement with any Governmental Authority, nor subject to any
judicial or docketed administrative proceeding, respecting any Environmental
Law, Environmental Claim or Hazardous Material.
(d) There are no Hazardous Materials or other conditions or
circumstances existing with respect to any Property, or arising from operations
prior to the Closing Date, of the Borrower or any of its Subsidiaries that would
reasonably be expected to give rise to Environmental Claims with a potential
liability of the Borrower and its Subsidiaries in excess of $3,000,000 in the
aggregate for all such conditions, circumstances and Properties. In addition,
(i) neither the Borrower nor any of its Subsidiaries has any underground storage
tanks (x) that are not properly registered or permitted under applicable
Environmental Laws, or (y) that are leaking or disposing of Hazardous Materials
off-site, and (ii) the Borrower and its Subsidiaries have notified all of their
employees of the existence, if any, of any health hazard arising from the
conditions of their employment and have met all notification requirements under
Title III of CERCLA and all other Environmental Laws.
5.13. Collateral Documents.
(a) The provisions of each of the Collateral Documents are effective to
create in favor of the Collateral Agent for the benefit of the Lenders, a
legal, valid and enforceable second priority (subject to Permitted Liens)
security interest in all right, title and interest of the applicable Credit
Party in the collateral described therein; and financing statements have been
delivered to the Collateral Agent on the Closing Date to be filed in the offices
in all of the jurisdictions listed in the schedules to the Security Agreement,
and each Intellectual Property Assignment has been delivered to the Collateral
Agent on the Closing Date to be filed in the U.S. Patent and Trademark Office
and the U.S. Copyright Office. Except for title vehicles, vessels and other
Collateral which may not be perfected through the filing of financing statements
under the Uniform Commercial Code and except for equipment and inventory located
on the premises of a third party with a value of (as to the Borrower and its
Subsidiaries as a whole) less than $25,000 individually or $100,000 in the
aggregate (or as otherwise consented to by the Agent), all such security
interests have been or, upon the filing of the financing statements delivered on
the Closing Date, will be fully perfected security interests, subject only to
Permitted Liens.
(b) The provisions of the Pledge Agreement are effective to create, in
favor of the Collateral Agent for the benefit of the Lenders, a legal, valid and
enforceable security interest in all of the collateral described therein; and
the Pledged Collateral was delivered to the Collateral Agent or its nominee in
accordance with the terms thereof. The Lien of the Pledge Agreement constitutes
a perfected, second priority security interest in all right, title and interest
of the Borrower or such Subsidiary, as the case may be, in the Collateral
described therein, prior and superior to all other Liens and interests except
for Permitted Liens.
(c) All representations and warranties of each Credit Party contained
in the Collateral Documents are true and correct.
5.14. Regulated Entities. Neither the Borrower nor any Subsidiary is
an "Investment Company" within the meaning of the Investment Company Act of
1940. Neither the Borrower nor any Subsidiary is subject to regulation under
the Public Utility Holding Company Act of 1935, the Federal Power Act, the
Interstate Commerce Act, any state public utilities code, or any other Federal
or state statute or regulation limiting its ability to incur Indebtedness.
5.15. No Burdensome Restrictions. Neither the Borrower nor any
Subsidiary is a party to or bound by any Contractual Obligation, or subject to
any restriction in any Organization Document, or any Requirement of Law, which
could reasonably be expected to have a Material Adverse Effect.
5.16. Solvency. Each Credit Party is Solvent.
5.17. Labor Relations. There are no strikes, lockouts or other labor
disputes against the Borrower, any of its Subsidiaries, or, to the best of
Borrower's knowledge, threatened against or affecting the Borrower, or any of
its Subsidiaries, and no significant unfair labor practice complaint is pending
against the Borrower, or any of its Subsidiaries or, to the best knowledge of
Borrower, threatened against any of them before any Governmental Authority.
5.18. Copyrights, Patents, Trademarks and Licenses, etc. The Borrower
or its Subsidiaries own or are licensed or otherwise have the right to use all
of the patents, trademarks, service marks, trade names, copyrights, contractual
franchises, authorizations and other rights that are reasonably necessary for
the operation of their respective businesses, without conflict with the rights
of any other Person. To the best knowledge of the Borrower, no slogan or other
advertising device, product, process, method, substance, part or other material
now employed, or now contemplated to be employed, by the Borrower or any
Subsidiary infringes upon any rights held by any other Person. No claim or
litigation regarding any of the foregoing is pending or threatened, and no
patent, invention, device, application, principle or any statute, law, rule,
regulation, standard or code is pending or, to the knowledge of the Borrower,
proposed, which, in either case, could reasonably be expected to have a Material
Adverse Effect.
5.19. Subsidiaries. As of the Closing Date, the Borrower has no
Subsidiaries other than those specifically disclosed in part (a) of Schedule
5.19 hereto and neither the Borrower nor any Subsidiary has any equity
investments in any other corporation or entity other than those specifically
disclosed in part (b) of Schedule 5.19.
5.20. Insurance. The properties of the Borrower and its Subsidiaries
are insured with financially sound and reputable insurance companies not
Affiliates of the Borrower, in such amounts, with such deductibles and covering
such risks as are customarily carried by companies engaged in similar businesses
and owning similar properties in localities where the Borrower or such
Subsidiary operates.
5.21. Subordination Provisions. The subordination provisions contained
in all notes, debentures, agreements and other instruments entered into or
issued in respect of the Subordinated Debt are enforceable against the issuer of
the respective security and the holders thereof, and the Loans and all other
Obligations entitled to the benefits of any Loan Document are within the
definitions of "Senior Indebtedness", or other comparable definition, included
in such provisions.
5.22. Broker's Fees. Except as set forth in this Agreement or in the
Fee Letter, neither the Borrower nor any of its Subsidiaries has any obligation
to any Person in respect of any finder's, broker's or investment banker's fee in
connection with the transactions contemplated hereby.
5.23. Full Disclosure. None of the representations or warranties made
by the Borrower or any Subsidiary in the Loan Documents as of the date such
representations and warranties are made or deemed made, and none of the
statements contained in any exhibit, report, statement or certificate furnished
by or on behalf of the Borrower or any Subsidiary in connection with the Loan
Documents contains any untrue statement of a material fact or omits any material
fact required to be stated therein or necessary to make the statements made
therein (taken as a whole), in light of the circumstances under which they are
made, not misleading as of the time when made or delivered.
ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Term Loan
or other Obligation shall remain unpaid or unsatisfied unless the Majority
Lenders waive compliance in writing:
6.01. Financial Statements. The Borrower shall deliver to the Agent,
in form and detail satisfactory to the Agent and the Majority Lenders, with
sufficient copies for the Agent and each Lender:
(a) as soon as available, but not later than 90 days after the end of
each fiscal year, a copy of the audited consolidated and consolidating balance
sheet of the Borrower and its Subsidiaries as at the end of such year and the
related consolidated and consolidating statements of operations, shareholders'
equity and cash flows for such year, setting forth in each case in comparative
form the figures for the previous fiscal year, and accompanied by the opinion of
Xxxxxx Xxxxxxxx LLP or another nationally-recognized independent public
accounting firm ("Independent Auditor") which report shall state that such
consolidated financial statements present fairly the financial position for the
periods indicated in conformity with GAAP applied on a basis consistent with
prior years. Such opinion shall not be qualified or limited because of a
restricted or limited examination by the Independent Auditor of any material
portion of the Borrower's or any Subsidiary's records; and
(b) as soon as available, but not later than 45 days after the end of
each of the first three Fiscal Quarters of each fiscal year, a copy of the
unaudited consolidated and consolidating balance sheet of the Borrower and its
Subsidiaries as of the end of such quarter and the related consolidated and
consolidating statements of operations, shareholders' equity and cash flows for
the period commencing on the first day and ending on the last day of such
quarter, and certified by a Responsible Officer as fairly presenting, in
accordance with GAAP (subject to ordinary, good faith year-end audit
adjustments), the financial position and the results of operations of the
Borrower and its Subsidiaries.
(c) as soon as available, but not later than 45 days after the end of
each fiscal month, a copy of the unaudited consolidated balance sheet of the
Borrower and its Subsidiaries as of the end of such month and the related
consolidated income statement and statement of cash flows for the period
commencing on the first day and ending on the last day of such month, and
certified by a Responsible Officer as fairly presenting, accordance with GAAP
(subject to ordinary, good faith year-end audit adjustments), the financial
position and the results of operations of the Borrower and its Subsidiaries.
6.02. Certificates; Other Information. The Borrower shall furnish to
the Agent, with sufficient copies for each Lender:
(a) concurrently with the delivery of the financial statements referred
to in Section 6.01(a), a certificate of the Independent Auditor stating
that in making the examination necessary therefor no knowledge was obtained of
any Default or Event of Default, except as specified in such certificate;
(b) promptly, copies of all financial statements and reports that the
Borrower sends to its shareholders, and copies of all financial statements and
regular, periodical or special reports (including Forms 10K, 10Q and 8K) that
the Borrower or any Subsidiary may make to, or file with, the SEC;
(c) as soon as available, but in any event not later than the 30th day
after the end of each fiscal year, a copy of the plan and forecast (including a
projected consolidated and consolidating balance sheet, statement of operations
and cash flow statement) of the Borrower and its Subsidiaries for the next
fiscal year; and
(d) promptly, such additional information regarding the business,
financial or corporate affairs of the Borrower or any Subsidiary as the Agent,
at the request of any Lender, may from time to time request.
6.03. Notices. The Borrower shall promptly notify the Agent and each
Lender:
(a) of the occurrence of any Default or Event of Default;
(b) of any matter that has resulted or may reasonably be expected to
result in a Material Adverse Effect, including (i) breach or non-performance of,
or any default under, a material Contractual Obligation of the Borrower or any
other Subsidiary; (ii) any dispute, litigation, investigation, proceeding or
suspension involving the Borrower or any other Subsidiary and any Governmental
Authority; (iii) the commencement of, or any material development in, any
litigation or proceeding affecting the Borrower or any Subsidiary, including
pursuant to any applicable Environmental Laws; or (iv) any other Environmental
Claims;
(c) of the occurrence of any of the following events affecting the
Borrower or any ERISA Affiliate (but in no event more than 10 days after such
event), and deliver to the Agent and each Lender a copy of any notice with
respect to such event that is filed with a Governmental Authority and any notice
delivered by a Governmental Authority to the Borrower or any ERISA Affiliate
with respect to such event:
(i) an ERISA Event;
(ii) a material increase in the Unfunded Pension Liability of any
Pension Plan;
(iii) the adoption of, or the commencement of contributions to, any
Plan subject to Section 412 of the Code by the Borrower or any ERISA Affiliate;
or
(iv) the adoption of any amendment to a Plan subject to Section 412 of
the Code, if such amendment results in a material increase in contributions or
Unfunded Pension Liability.
(d) of any material change in accounting policies or financial
reporting practices by the Borrower or any of its consolidated Subsidiaries;
(e) upon, but in no event later than 15 days after, any officer of the
Borrower or any Subsidiary becoming aware of (i) any and all enforcement,
investigation, cleanup, removal or other governmental or regulatory actions
instituted, completed or threatened against the Borrower or any Subsidiary or
any of their respective properties pursuant to any applicable Environmental Laws
which could reasonably be expected to have a Material Adverse Effect, (ii) all
other material Environmental Claims, and (iii) any environmental or similar
condition on any real property adjoining or in the vicinity of the property of
the Borrower or any Subsidiary that could reasonably be anticipated to cause
such property of the Borrower or such Subsidiary or any part thereof to be
subject to any material restrictions on the ownership, occupancy,
transferability or use of such property under any Environmental Laws; and
Each notice under this Section shall be accompanied by a written statement
by a Responsible Officer setting forth details of the occurrence referred to
therein, and stating what action the Borrower or any affected Subsidiary
proposes to take with respect thereto and at what time. Each notice under
Section 6.03(a) shall describe with particularity any and all clauses or
provisions of this Agreement or other Loan Document that have been (or
foreseeably will be) breached or violated.
6.04. Preservation of Corporate Existence, Etc. The Borrower shall,
and shall cause each Subsidiary to:
(a) preserve and maintain in full force and effect its corporate
existence and good standing under the laws of its state or jurisdiction of
incorporation;
(b) preserve and maintain in full force and effect all governmental
rights, privileges, qualifications, permits, licenses and franchises necessary
or desirable in the normal conduct of its business, except in connection with
transactions permitted by the B of A Credit Agreement;
(c) use reasonable efforts, in the ordinary course of business, to
preserve its business organization and goodwill; and
(d) preserve or renew all of its registered patents, trademarks, trade
names and service marks, the non-preservation of which could reasonably be
expected to have a Material Adverse Effect.
6.05. Maintenance of Property. The Borrower shall maintain, and shall
cause each Subsidiary to maintain, and preserve all its property which is used
or useful in its business in good working order and condition, ordinary wear and
tear excepted and make all necessary repairs thereto and renewals and
replacements thereof.
6.06. Insurance. The Borrower shall maintain, and shall cause each
Subsidiary to maintain, with financially sound and reputable independent
insurers, insurance with respect to its properties and business against loss or
damage of the kinds customarily insured against by Persons engaged in the same
or similar business, of such types and in such amounts as are customarily
carried under similar circumstances by such other Persons; including workers'
compensation insurance, public liability and property and casualty insurance
which amount shall not be materially reduced by the Borrower in the absence of
30 days' prior written notice to the Agent. All casualty insurance maintained
by the Borrower shall name the Agent as loss payee and all liability insurance
shall name the Agent as additional insured for the benefit of the Lenders, as
their interests may appear. Upon request of the Agent or any Lender, the
Borrower shall furnish the Agent, with sufficient copies for each Lender, at
reasonable intervals (but not more than once per calendar year) a certificate of
a Responsible Officer (and, if requested by the Agent, any insurance broker of
the Borrower) setting forth the nature and extent of all insurance maintained by
the Borrower and its Subsidiaries in accordance with this Section or any
Collateral Documents (and which, in the case of a certificate of a broker, were
placed through such broker).
6.07. Payment of Obligations. The Borrower shall, and shall cause each
Subsidiary to, pay and discharge as the same shall become due and payable, all
their respective obligations and liabilities, including:
(a) all tax liabilities, assessments and governmental charges or levies
upon it or its properties or assets, unless the same are being contested in
good faith by appropriate proceedings and adequate reserves in accordance with
GAAP are being maintained by the Borrower or such Subsidiary;
(b) all lawful claims which, if unpaid, would by law become a Lien
(other than a Permitted Lien) upon its property; and
(c) all Indebtedness, as and when due and payable, but subject to any
subordination provisions contained in any instrument or agreement evidencing
such Indebtedness.
6.08. Compliance with Laws. The Borrower shall comply, and shall cause
and each other Subsidiary to comply, in all material respects with all
Requirements of Law of any Governmental Authority having jurisdiction over it or
its business (including the Federal Fair Labor Standards Act), except such as
may be contested in good faith or as to which a bona fide dispute may exist.
6.09. Compliance with ERISA. The Borrower shall, and shall cause each
of its ERISA Affiliates to: (a) maintain each Plan in compliance in all
material respects with the applicable provisions of ERISA, the Code and other
federal or state law; (b) cause each Plan which is qualified under Section
401(a) of the Code to maintain such qualification unless such Plan is
terminated; and (c) make all required contributions to any Plan subject to
Section 412 of the Code.
6.10. Inspection of Property and Books and Records. The Borrower shall
maintain and shall cause each Subsidiary to maintain proper books of record and
account, in which full, true and correct entries in conformity with GAAP
consistently applied shall be made of all financial transactions and matters
involving the assets and business of the Borrower and such Subsidiary. The
Borrower shall permit, and shall cause each other Subsidiary to permit,
representatives and independent contractors of the Agent or any Lender to visit
and inspect any of their respective properties, to examine their respective
corporate, financial and operating records, and make copies thereof or abstracts
therefrom, and to discuss their respective affairs, finances and accounts with
their respective directors, officers, and independent public accountants, all at
the expense of the Borrower and at such reasonable times during normal business
hours and as often as may be reasonably desired, upon reasonable advance notice
to the Borrower; provided, however, when an Event of Default exists, the Agent
or any Lender may do any of the foregoing at the expense of the Borrower at any
time during normal business hours and without advance notice; provided, further,
that neither the Agent nor any Lender shall conduct any environmental testing of
any owned or leased facility of the Borrower or any Subsidiary without the prior
written consent of the Borrower, which shall not unreasonably be withheld.
6.11. Environmental Laws.
(a) The Borrower shall, and shall cause each Subsidiary to, conduct its
operations and keep and maintain its property in compliance with all
Environmental Laws, the violation of which could reasonably be expected to
result in liability to the Borrower and its Subsidiaries in excess of $3,000,000
in the aggregate (net of any payments under insurance policies or indemnity
agreements which the Borrower or such Subsidiary reasonably expects to receive).
(b) Upon the written request of the Agent or any Lender, the Borrower
shall submit and cause each of its Subsidiaries to submit, to the Agent with
sufficient copies for each Lender, at the Borrower's sole cost and expense, at
reasonable intervals, a report providing an update of the status of any
environmental, health or safety compliance, hazard or liability issue identified
in any notice or report required pursuant to Section 6.03(e), that could,
individually or in the aggregate, result in liability in excess of $3,000,000
(net of any payments under insurance policies or indemnity agreements which the
Borrower or such Subsidiary reasonably expects to receive).
6.12. Use of Proceeds. Borrower shall use the proceeds of the Term
Loans to pay fees and expenses incurred in connection with the transactions
contemplated hereunder and to finance the Borrower's and its Subsidiaries
working capital requirements and other general corporate purposes, in each case
not in contravention of any Requirement of Law or of any Loan Document.
6.13. Solvency. The Borrower shall at all times be, and shall cause
and each of its Subsidiaries to be, Solvent.
6.14. Further Assurances.
(a) The Borrower shall ensure that all written information, exhibits
and reports furnished to the Agent or the Lenders do not and will not contain
any untrue statement of a material fact and do not and will not omit to state
any material fact or any fact necessary to make the statements contained therein
not misleading in light of the circumstances in which made, and will
promptly disclose to the Agent and the Lenders and correct any defect or error
that may be discovered therein or in any Loan Document or in the execution,
acknowledgment or recordation thereof.
(b) Promptly upon request by the Agent or the Majority Lenders, the
Borrower shall (and shall cause any of its Subsidiaries to) execute,
acknowledge, deliver, record, re-record, file, re-file, register and
re-register, any and all such further acts, deeds, conveyances, security
agreements, mortgages, assignments, estoppel certificates, financing statements
and continuations thereof, termination statements, notices of assignment,
transfers, certificates, assurances and other instruments the Agent or such
Lenders, as the case may be, may reasonably require from time to time in order
(i) to carry out more effectively the purposes of this Agreement or any other
Loan Document, (ii) to subject any of the properties, rights or interests
covered by any of the Collateral Documents to the Liens created by any of the
Collateral Documents, (iii) to perfect and maintain the validity, effectiveness
and priority of any of the Collateral Documents and the Liens intended to be
created thereby, and (iv) to better assure, convey, grant, assign, transfer,
preserve, protect and confirm to the Collateral Agent and Lenders the rights
granted or now or hereafter intended to be granted to the Collateral Agent and
the Lenders under any Loan Document or under any other document executed in
connection therewith.
6.15. Foreign Subsidiaries Security. If, following a change in the
relevant sections of the Code, the regulations and rules promulgated thereunder
and any rulings issued thereunder and at the request of the Agent or the
Majority Lenders, counsel for the Borrower acceptable to the Agent and the
Majority Lenders does not within 30 days after such request deliver evidence
satisfactory to the Agent with respect to any Foreign Subsidiary which is a
Wholly-Owned Subsidiary of the Borrower that (i) a pledge of 65% or more of the
total combined voting power of all classes of capital stock of such Foreign
Subsidiary entitled to vote, (ii) the entering into by such Foreign Subsidiary
of a guaranty in substantially the form of the Subsidiary Guaranty or (iii) the
entering into by such Foreign Subsidiary of a security agreement in
substantially the form of the Security Agreement, in either case would cause the
earnings of such Foreign Subsidiary to be treated as a deemed dividend to
such Foreign Subsidiary's United States parent or would otherwise violate a
material applicable law, then in the case of a failure to deliver the evidence
described in clause (i) above, that portion of such Foreign Subsidiary's
outstanding capital stock not theretofore pledged pursuant to the Pledge
Agreement shall be pledged to the Collateral Agent for the benefit of the
Lenders pursuant to the Pledge Agreement (or another pledge agreement in
substantially similar form, if needed), (ii) in the case of a failure to deliver
the evidence described in clause (ii) above, such Foreign Subsidiary shall
execute and deliver a guaranty of the Obligations of the Borrower under the Loan
Documents, and (iii) in the case of a failure to deliver the evidence described
in clause (iii) above, such Foreign Subsidiary shall execute and deliver a
security agreement granting the Collateral Agent for the benefit of the Lenders
a security interest in all of such Foreign Subsidiary's assets, in each case
with all documents delivered pursuant to this Section 6.15 to be in form and
substance satisfactory to the Agent and the Majority Lenders.
6.16. Repayment of Loans. The Borrower shall use the proceeds of the
Stock Purchase Agreement to pay all outstanding principal on the Term Loans.
ARTICLE VII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan or
other Obligation shall remain unpaid or unsatisfied, unless the Majority Lenders
waive compliance in writing:
7.01. Loans and Investments. The Borrower shall not purchase or
acquire, or suffer or permit any Subsidiary to purchase or acquire, or make any
commitment therefor, any capital stock, equity interest, or any obligations or
other securities of, or any interest in, any Person, or make or commit to make
any Acquisitions, or make or commit to make any advance, loan, extension of
credit or capital contribution to or any other investment in, any Person
including any Affiliate of the Borrower (together, "Investments"), except for:
(a) Investments existing on the date hereof and described on Schedule
7.01;
(b) Investments held by the Borrower or Subsidiary in the form of Cash
Equivalents;
(c) extensions of credit in the nature of accounts receivable or notes
receivable arising from the sale or lease of goods or services in the ordinary
course of business; and
(d) extensions of credit by the Borrower or any Subsidiary to the
Borrower or any Subsidiary; provided, that (i) any such extension of credit
shall be evidenced by a promissory note, in form and substance satisfactory to
the Agent, and such promissory note shall be delivered to the Agent pursuant to
the relevant Pledge Agreement; (ii) in the case of any loan or advance to any
Credit Party, unless subject to an effective pledge pursuant to the immediately
preceding clause, such loan or advance shall be subordinated to the indefeasible
payment in full of such Credit Party's obligations pursuant to this Agreement
and the other Loan Documents; and (iii) the aggregate outstanding principal
balance of all extensions of credit to any Subsidiary which is not a Credit
Party shall not at any time exceed $1,000,000.
7.02. Transactions with Affiliates. The Borrower shall not, and shall
not suffer or permit any Subsidiary to, enter into any transaction with any
Affiliate of the Borrower, except upon fair and reasonable terms no less
favorable to the Borrower or such Subsidiary than would obtain in a comparable
arm's-length transaction with a Person not an Affiliate of the Borrower or such
Subsidiary.
7.03. Use of Proceeds. The Borrower shall not, and shall not suffer or
permit any Subsidiary to, use any portion of the Loan proceeds, directly or
indirectly, (i) to purchase or carry Margin Stock, (ii) to repay or otherwise
refinance indebtedness of the Borrower or others incurred to purchase or carry
Margin Stock, (iii) to extend credit for the purpose of purchasing or carrying
any Margin Stock, or (iv) to acquire any security in any transaction that is
subject to Section 13 or 14 of the Exchange Act.
7.04. Restricted Payments.
(a) The Borrower shall not, and shall not suffer or permit any
Subsidiary to, declare or make any dividend payment or other distribution of
assets, properties, cash, rights, obligations or securities on account of any
shares of any class of its capital stock, or purchase, redeem or otherwise
acquire for value any shares of its capital stock or any warrants, rights or
options to acquire such shares, now or hereafter outstanding, except that:
(i) the Borrower may declare and make dividend payments or other
distributions payable solely in its common stock;
(ii) the Borrower or any Wholly-Owned Subsidiary may purchase, redeem
or otherwise acquire shares of its common stock or warrants or options to
acquire any such shares with the proceeds received from the substantially
concurrent issue of new shares of its common stock;
(iii) any Wholly-Owned Subsidiary may declare and make dividend
payments or other distributions to the Borrower or a Wholly-Owned Subsidiary of
the Borrower; and
(iv) the Borrower may (A) declare and make dividend payments in an
aggregate amount not to exceed $1,139,841 to the holders of its Series B
Preferred Stock and (B) exchange its Series B Preferred Stock for its Series B-1
Preferred Stock pursuant to the Series B Exchange Agreement.
(b) The Borrower shall not, and shall not permit any Subsidiary to,
make (or give any notice in respect of) any voluntary or optional payment or
prepayment on, or redemption or acquisition for value of, any Indebtedness for
borrowed money incurred or permitted to exist under this Agreement, other than
Indebtedness evidenced by the Notes or Indebtedness under the B of A Credit
Agreement.
7.05. ERISA. The Borrower shall not, and shall not suffer or permit
any of its Subsidiaries to, (i) terminate any Plan subject to Title IV of ERISA
so as to result in any material (in the opinion of the Majority Lenders)
liability to the Borrower or any ERISA Affiliate, (ii) permit to exist any ERISA
Event or any other event or condition, which presents the risk of a
material (in the opinion of the Majority Lenders) liability to the Borrower or
any ERISA Affiliate, (iii) make a complete or partial withdrawal (within the
meaning of ERISA Section 4201) from any Multiemployer Plan so as to result in
any material (in the opinion of the Majority Lenders) liability to the Borrower
or any ERISA Affiliate or, (iv) enter into any new Plan or modify any existing
Plan so as to increase its obligations thereunder which could result in any
material (in the opinion of the Majority Lenders) liability to the Borrower or
any ERISA Affiliate.
7.06. Change in Business. The Borrower shall not, and shall not suffer
or permit any Subsidiary to, engage in any material line of business
substantially different from those lines of business carried on by the Borrower
and its Subsidiaries on the date hereof.
7.07. Subordinated Debt. The Borrower will not modify, supplement or
amend any note, debenture, agreement, indenture or any other instrument (other
than the amendment of the Indentures relating to the Subordinated Debt which
would cure events of default relating to the financial covenants set forth
therein and other modifications necessary to permit the transactions
contemplated hereby and under the Stock Purchase Agreement) entered into or
issued in respect of the Subordinated Debt without the prior written consent of
the Majority Lenders.
ARTICLE VIII
EVENTS OF DEFAULT
8.01. Event of Default. Any of the following shall constitute an
"Event of Default":
(a) Non-Payment. Borrower fails to pay, (i) when and as required to be
paid herein, any amount of principal of any Loan, or (ii) within fifteen
(15) days after the same becomes due, any interest, fee or any other amount
payable hereunder or under any other Loan Document; or
(b) Representation or Warranty. Any representation or warranty by any
Credit Party made or deemed made herein, in any other Loan Document, or which is
contained in any certificate, document or financial or other statement by such
Credit Party, or any Responsible Officer, furnished at any time under this
Agreement, or in or under any other Loan Document, is incorrect in any material
respect on or as of the date made or deemed made; or
(c) Specific Defaults. Any Credit Party fails to perform or observe
any term, covenant or agreement contained in any of Sections 6.01, 6.02, 6.03,
6.09, 6.16 or in Article VII and such failure shall continue unremedied for a
period of 30 days ; or
(d) Other Defaults. Any Credit Party fails to perform or observe any
other term or covenant contained in this Agreement or any other Loan Document,
and such default shall continue unremedied for a period of 60 days after the
earlier of (i) the date upon which a Responsible Officer knew or reasonably
should have known of such failure or (ii) the date upon which written notice
thereof is given to the Borrower by the Agent or any Lender; or
(e) Cross-Acceleration. Any Indebtedness, including but not limited to
the B of A Credit Agreement, having an aggregate principal amount of more than
$5 million then outstanding is declared to be due and payable prior to its
stated maturity;
(f) Insolvency; Voluntary Proceedings. The Borrower or any of its
Subsidiaries (i) ceases or fails to be solvent, or generally fails to pay, or
admits in writing its inability to pay, its debts as they become due, subject to
applicable grace periods, if any, whether at stated maturity or otherwise; (ii)
voluntarily ceases to conduct its business in the ordinary course; (iii)
commences any Insolvency Proceeding with respect to itself; or (iv) takes any
action to effectuate or authorize any of the foregoing; or
(g) Involuntary Proceedings. (i) Any involuntary Insolvency Proceeding
is commenced or filed against the Borrower or any of its Subsidiaries, or any
writ, judgment, warrant of attachment, execution or similar process, is issued
or levied against a substantial part of the Borrower's or any of its
Subsidiaries' properties, and any such proceeding or petition shall not be
dismissed, or such writ, judgment, warrant of attachment, execution or similar
process shall not be released, vacated or fully bonded within 60 days after
commencement, filing or levy; (ii) the Borrower or any of its Subsidiaries
admits the material allegations of a petition against it in any Insolvency
Proceeding, or an order for relief (or similar order under non-U.S. law) is
ordered in any Insolvency Proceeding; or (iii) the Borrower or any of its
Subsidiaries acquiesces in the appointment of a receiver, trustee, custodian,
conservator, liquidator, mortgagee in possession (or agent therefor), or other
similar Person for itself or a substantial portion of its property or business;
or
(h) ERISA. (i) An ERISA Event shall occur with respect to a Pension
Plan or Multiemployer Plan which has resulted or could reasonably be expected to
result in liability of the Borrower under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in an aggregate amount in excess of $2.5 million;
(ii) the aggregate amount of Unfunded Pension Liability among all Pension Plans
at any time exceeds $2.5 million; or (iii) the Borrower or any ERISA Affiliate
shall fail to pay when due, after the expiration of any applicable grace period,
any installment payment with respect to its withdrawal liability under Section
4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of
$2.5 million; or
(i) Monetary Judgments. One or more non-interlocutory judgments,
non-interlocutory orders, decrees or arbitration awards is entered against the
Borrower or any Subsidiary involving in the aggregate a liability (to the extent
not covered by independent third-party insurance as to which the insurer does
not dispute coverage) as to any single or related series of transactions,
incidents or conditions, of $10 million or more, and the same shall remain
unsatisfied, unvacated and unstayed pending appeal for a period of 60 days after
the entry thereof; or
(j) Non-Monetary Judgments. Any non-monetary judgment, order or decree
is entered against the Borrower or any Subsidiary which does or would reasonably
be expected to have a Material Adverse Effect, and there shall be any period of
60 consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect; or
(k) Collateral.
(i) any provision of any Collateral Document shall for any reason cease
to be valid and binding on or enforceable against the applicable Credit
Party or any Credit Party shall so state in writing or bring an action to limit
its obligations or liabilities thereunder; or
(ii) any Collateral Document shall for any reason (other than pursuant
to the terms thereof or as a result of the failure of the Collateral Agent to
file appropriate continuation statements) cease to create a valid security
interest in the Collateral purported to be covered thereby or such security
interest shall for any reason cease to be a perfected and second priority
security interest in any material portion of such Collateral, subject only to
Permitted Liens; or
(l) Change of Control. There occurs any Change of Control; or
(m) Guarantor Defaults. Any Guarantor fails in any material respect to
perform or observe any term, covenant or agreement in the Guaranty or the
Guaranty is for any reason partially (including with respect to future advances)
or wholly revoked or invalidated, or otherwise ceases to be in full force and
effect, or any Guarantor or any other Person contests in any manner the validity
or enforceability thereof or denies that it has any further liability or
obligation thereunder; or any event described at clauses (f) or (g) of this
Section occurs with respect to such Guarantor;
(n) Invalidity of Subordination Provisions. The subordination
provisions of any agreement or instrument governing any Subordinated Debt is for
any reason revoked or invalidated, or otherwise cease to be in full force and
effect, any Person contests in any manner the validity or enforceability thereof
or denies that it has any further liability or obligation thereunder, or the
Loans and the other Obligations hereunder entitled to receive the benefits of
any Loan Document is for any reason subordinated or does not have the priority
contemplated by this Agreement or such subordination provisions; or
(o) Failure to Close Stock Purchase Agreement. The Borrower fails for
any reason to consummate the purchase by the Lenders of the securities as
contemplated by the Stock Purchase Agreement on or prior to July 15, 2001.
8.02. Remedies. If any Event of Default occurs, the Agent shall, at
the request of, or may, with the consent of, the Majority Lenders:
(a) declare the commitment of each Lender to make Loans to be
terminated, whereupon such commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Term Loans,
all interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Borrower; and
(c) exercise on behalf of itself and the Lenders all rights and
remedies available to it and the Lenders under the Loan Documents or applicable
law;
provided, however, that upon the occurrence of any event specified in Sections
8.01(f) or (g) (in the case of clause (i) of Section 8.01 (g) upon the
expiration of the 60-day period mentioned therein), the unpaid principal amount
of all outstanding Loans and all interest and other amounts as aforesaid shall
automatically become due and payable without further act of the Agent or any
Lender.
8.03. Rights Not Exclusive. The rights provided for in this Agreement
and the other Loan Documents are cumulative and are not exclusive of any other
rights, powers, privileges or remedies provided by law or in equity, or under
any other instrument, document or agreement now existing or hereafter arising.
ARTICLE IX
THE AGENT
9.01. Appointment and Authorization; "Agent". Each Lender hereby
irrevocably (subject to Section 9.09) appoints, designates and authorizes the
Agent (including, without limitation, in its capacity as Collateral Agent) to
take such action on its behalf under the provisions of this Agreement and each
other Loan Document and to exercise such powers and perform such duties as are
expressly delegated to it by the terms of this Agreement or any other Loan
Document, together with such powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere in this
Agreement or in any other Loan Document, the Agent shall not have any duties or
responsibilities, except those expressly set forth herein, nor shall the Agent
have or be deemed to have any fiduciary relationship with any Lender, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Agent. Without limiting the generality of the
foregoing sentence, the use of the term "agent" in this Agreement with reference
to the Agent is not intended to connote any fiduciary or other implied (or
express) obligations arising under agency doctrine of any applicable law.
Instead, such term is used merely as a matter of market custom, and is intended
to create or reflect only an administrative relationship between independent
contracting parties.
9.02. Delegation of Duties. The Agent may execute any of its duties
under this Agreement or any other Loan Document by or through agents, employees
or attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects with
reasonable care.
9.03. Liability of Agent. None of the Agent-Related Persons shall (i)
be liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Loan Document or the
transactions contemplated hereby (except for its own gross negligence or willful
misconduct), or (ii) be responsible in any manner to any of the Lenders for any
recital, statement, representation or warranty made by the Borrower or any
Subsidiary or Affiliate of the Borrower, or any officer thereof, contained in
this Agreement or in any other Loan Document, or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Agent under or in connection with, this Agreement or any other Loan Document, or
for the value of or title to any Collateral, or the validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document, or for any failure of the Borrower or any other party to any Loan
Document to perform its obligations hereunder or thereunder. No Agent-Related
Person shall be under any obligation to any Lender to ascertain or to inquire as
to the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of the Borrower or any of the Borrower's
Subsidiaries or Affiliates.
9.04. Reliance by Agent.
(a) The Agent shall be entitled to rely, and shall be fully protected
in relying, upon any writing, resolution, notice, consent, certificate,
affidavit, letter, telegram, facsimile, telex or telephone message, statement or
other document or conversation believed by it to be genuine and correct and
to have been signed, sent or made by the proper Person or Persons, and upon
advice and statements of legal counsel (including counsel to the Borrower),
independent accountants and other experts selected by the Agent. The Agent
shall be fully justified in failing or refusing to take any action under this
Agreement or any other Loan Document unless it shall first receive such advice
or concurrence of the Majority Lenders as it deems appropriate and, if it so
requests, it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this Agreement
or any other Loan Document in accordance with a request or consent of the
Majority Lenders and such request and any action taken or failure to act
pursuant thereto shall be binding upon all of the Lenders.
(b) For purposes of determining compliance with the conditions
specified in Section 4.01, each Lender that has executed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter either sent by the Agent to such Lender for consent,
approval, acceptance or satisfaction, or required thereunder to be consented to
or approved by or acceptable or satisfactory to the Lender.
9.05. Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default, except
with respect to defaults in the payment of principal, interest and fees
required to be paid to the Agent for the account of the Lenders, unless the
Agent shall have received written notice from a Lender or the Borrower referring
to this Agreement, describing such Default or Event of Default and stating that
such notice is a "notice of default". The Agent will notify the Lenders of its
receipt of any such notice. The Agent shall take such action with respect to
such Default or Event of Default as may be requested by the Majority Lenders in
accordance with Article VIII; provided, however, that unless and until the Agent
has received any such request, the Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable or in the best interest
of the Lenders.
9.06. Credit Decision. Each Lender acknowledges that none of the
Agent-Related Persons has made any representation or warranty to it, and that no
act by the Agent hereinafter taken, including any review of the affairs of the
Borrower and its Subsidiaries, shall be deemed to constitute any representation
or warranty by any Agent-Related Person to any Lender. Each Lender represents
to the Agent that it has, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Borrower and its Subsidiaries, the value or and title to
any Collateral, and all applicable bank regulatory laws relating to the
transactions contemplated hereby, and made its own decision to enter into this
Agreement and to extend credit to the Borrower and its Subsidiaries hereunder.
Each Lender also represents that it will, independently and without reliance
upon any Agent-Related Person and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigations as it deems necessary
to inform itself as to the business, prospects, operations, property, financial
and other condition and creditworthiness of the Borrower. Except for notices,
reports and other documents expressly herein required to be furnished to the
Lenders by the Agent, the Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the business,
prospects, operations, property, financial and other condition or
creditworthiness of the Borrower which may come into the possession of any of
the Agent-Related Persons.
9.07. Indemnification of Agent. Whether or not the transactions
contemplated hereby are consummated, the Lenders shall indemnify upon demand the
Agent-Related Persons (to the extent not reimbursed by or on behalf of the
Borrower and without limiting the obligation of the Borrower to do so), pro
rata, from and against any and all Indemnified Liabilities; provided, however,
that no Lender shall be liable for the payment to the Agent-Related Persons of
any portion of such Indemnified Liabilities resulting solely from such Person's
gross negligence or willful misconduct. Without limitation of the foregoing,
each Lender shall reimburse the Agent upon demand for its ratable share of any
reasonable costs or out-of-pocket expenses (including Attorney Costs) incurred
by the Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, any other Loan Document, or
any document contemplated by or referred to herein, to the extent that the Agent
is not reimbursed for such expenses by or on behalf of the Borrower. The
undertaking in this Section shall survive the payment of all Obligations
hereunder and the resignation or replacement of the Agent.
9.08. Agent in Individual Capacity. Agent and its Affiliates may make
loans to, issue letters of credit for the account of, accept deposits from,
acquire equity interests in and generally engage in any kind of banking, trust,
financial advisory, underwriting or other business with the Borrower and its
Subsidiaries and Affiliates as though Agent were not the Agent hereunder and
without notice to or consent of the Lenders. The Lenders acknowledge that,
pursuant to such activities, Agent or its Affiliates may receive information
regarding the Borrower or its Affiliates (including information that may be
subject to confidentiality obligations in favor of the Borrower or such
Subsidiary) and acknowledge that the Agent shall be under no obligation to
provide such information to them. With respect to its Loans, Agent shall have
the same rights and powers under this Agreement as any other Lender and may
exercise the same as though it were not the Agent.
9.09. Successor Agent. The Agent may, and at the request of the
Majority Lenders shall, resign as Agent upon 30 days' notice to the Lenders. If
the Agent resigns under this Agreement, the Majority Lenders shall appoint from
among the Lenders a successor agent for the Lenders subject, so long as no Event
of Default has occurred and is then continuing, to the consent of the Borrower
which shall not be unreasonably withheld or delayed. If no successor agent is
appointed prior to the effective date of the resignation of the Agent, the Agent
may appoint, after consulting with the Lenders and the Borrower, a successor
agent from among the Lenders. Upon the acceptance of its appointment as
successor agent hereunder, such successor agent shall succeed to all the rights,
powers and duties of the retiring Agent and the term "Agent" shall mean such
successor agent and the retiring Agent's appointment, powers and duties as Agent
shall be terminated. After any retiring Agent's resignation hereunder as Agent,
the provisions of this Article IX and Sections 10.04 and 10.05 shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Agent under this Agreement. If no successor agent has accepted appointment as
Agent by the date which is 30 days following a retiring Agent's notice of
resignation, the retiring Agent's resignation shall nevertheless thereupon
become effective and the Lenders shall perform all of the duties of the Agent
hereunder until such time, if any, as the Majority Lenders appoint a successor
agent as provided for above.
9.10. Withholding Tax
(a) If any Lender is a "foreign corporation, partnership or trust"
within the meaning of the Code and such Lender claims exemption from, or a
reduction of, U.S. withholding tax under Sections 1441 or 1442 of the Code, such
Lender agrees with and in favor of the Agent and to Borrower, to deliver to
the Agent and to Borrower:
(i) if such Lender claims an exemption from, or a reduction of,
withholding tax under a United States tax treaty, two properly completed and
executed copies of IRS Form W-8BEN before the payment of any interest in the
first calendar year and before the payment of any interest in each third
succeeding calendar year during which interest may be paid under this Agreement;
(ii) if such Lender claims that interest paid under this Agreement is
exempt from United States withholding tax because it is effectively connected
with a United States trade or business of such Lender, two properly completed
and executed copies of IRS Form W-8ECI before the payment of any interest is due
in the first taxable year of such Lender and in each succeeding taxable year of
such Lender during which interest may be paid under this Agreement; and
(iii) such other form or forms as may be required under the Code or
other laws of the United States as a condition to exemption from, or reduction
of, United States withholding tax.
Such Lender agrees to promptly notify the Agent and the Borrower of any change
in circumstances which would modify or render invalid any claimed exemption or
reduction.
(b) If any Lender claims exemption from, or reduction of, withholding
tax under a United States tax treaty by providing IRS Form W-8BEN and such
Lender sells, assigns, grants a participation in, or otherwise transfers all or
part of the Obligations of the Borrower to such Lender, such Lender agrees to
notify the Agent of the percentage amount in which it is no longer the
beneficial owner of Obligations of the Borrower to such Lender. To the extent
of such percentage amount, the Agent will treat such Lender's IRS Form W-8BEN as
no longer valid.
(c) If any Lender claiming exemption from United States withholding tax
by filing IRS Form W-8ECI with the Agent sells, assigns, grants a participation
in, or otherwise transfers all or part of the Obligations of the Borrower to
such Lender, such Lender agrees to undertake sole responsibility for complying
with the withholding tax requirements imposed by Sections 1441 and 1442 of the
Code.
(d) If any Lender is entitled to a reduction in the applicable
withholding tax, the Agent may withhold from any interest payment to such Lender
an amount equivalent to the applicable withholding tax after taking into account
such reduction. However, if the forms or other documentation required by clause
(a) of this Section are not delivered to the Agent, then the Agent may withhold
from any interest payment to such Lender not providing such forms or other
documentation an amount equivalent to the applicable withholding tax imposed by
Sections 1441 and 1442 of the Code, without reduction.
(e) If the IRS or any other Governmental Authority of the United States
or other jurisdiction asserts a claim that the Agent did not properly withhold
tax from amounts paid to or for the account of any Lender (because the
appropriate form was not delivered or was not properly executed, or because such
Lender failed to notify the Agent of a change in circumstances which rendered
the exemption from, or reduction of, withholding tax ineffective, or for any
other reason) such Lender shall indemnify the Agent fully for all amounts paid,
directly or indirectly, by the Agent as tax or otherwise, including penalties
and interest, and including any taxes imposed by any jurisdiction on the amounts
payable to the Agent under this Section, together with all costs and expenses
(including Attorney Costs). The obligation of the Lenders under this Section
shall survive the payment of all Obligations and the resignation or replacement
of the Agent.
9.11. Collateral Matters
(a) The Collateral Agent is authorized on behalf of all the Lenders,
without the necessity of any notice to or further consent from the Lenders, from
time to time to take any action with respect to any Collateral or the
Collateral Documents which may be necessary to perfect and maintain perfected
the security interest in and Liens upon the Collateral granted pursuant to the
Collateral Documents.
(b) The Lenders irrevocably authorize the Collateral Agent, at its
option and in its discretion, to release any Lien granted to or held by the
Collateral Agent upon any Collateral (i) upon termination of the Commitments and
payment in full of all Loans and all other Obligations payable under this
Agreement and under any other Loan Document; (ii) constituting property in which
the Borrower or any Subsidiary of the Borrower owned no interest at the time the
Lien was granted or at any time thereafter; (iii) constituting property leased
to the Borrower or any Subsidiary of the Borrower under a lease which has
expired or been terminated in a transaction permitted under this Agreement or is
about to expire and which has not been, and is not intended by the Borrower or
such Subsidiary to be, renewed or extended; (iv) consisting of an instrument
evidencing Indebtedness or other debt instrument, if the Indebtedness evidenced
thereby has been paid in full; or (v) if approved, authorized or ratified in
writing by the Majority Lenders or all the Lenders, as the case may be, as
provided in Section 10.01 hereof. Upon request by the Collateral Agent at any
time, the Lenders will confirm in writing the Collateral Agent's authority to
release particular types or items of Collateral pursuant to this Section 9.11.
ARTICLE X
MISCELLANEOUS
10.01. Amendments and Waivers. (a) No amendment or waiver of any
provision of this Agreement or any other Loan Document, and no consent with
respect to any departure by the Borrower or any applicable Subsidiary therefrom,
shall be effective unless the same shall be in writing and signed by the
Majority Lenders (or by the Agent at the written request of the Majority
Lenders) and the Borrower and acknowledged by the Agent, and then any such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no such waiver,
amendment, or consent shall, unless in writing and signed by all the Lenders and
the Borrower and acknowledged by the Agent, do any of the following:
(i) increase or extend the Commitment of any Lender without the written
consent of such Lender;
(ii) postpone or delay any date fixed by this Agreement or any other
Loan Document for any payment of principal, interest, fees or reimbursement,
indemnity or other amounts due to any Lenders (or any of them) hereunder or
under any other Loan Document;
(iii) reduce the principal of, or the rate of interest specified herein
on any Loan, or any fees or other amounts payable hereunder or under any other
Loan Document;
(iv) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Loans which is required for the Lenders or any of
them to take any action hereunder;
(v) discharge all or substantially all of the Guarantors, or release
all or substantially all of the Collateral, except as otherwise may be provided
in the Collateral Documents or except where the consent of the Majority Lenders
only is specifically provided for; or
(vi) amend this Section or any provision herein providing for consent
or other action by all Lenders;
and, provided further, that (A) no amendment, waiver or consent shall, unless in
writing and signed by the Issuing Lender in addition to the Majority Lenders or
all the Lenders, as the case may be, affect the rights or duties of the Issuing
Lender under this Agreement, (B) no amendment, waiver or consent shall, unless
in writing and signed by the Agent in addition to the Majority Lenders or all
the Lenders, as the case may be, affect the rights or duties of the Agent under
this Agreement or any other Loan Document, and (C) the Fee Letter may be
amended, or rights or privileges thereunder waived, in a writing executed by the
parties thereto.
10.02. Notices.
(a) All notices, requests, consents, approvals, waivers and other
communications shall be in writing (including, unless the context expressly
otherwise provides, by facsimile transmission, provided that any matter
transmitted by facsimile (i) shall be immediately confirmed by a telephone call
to the recipient at the number specified on Schedule 10.02, and (ii) shall be
followed promptly by delivery of a hard copy original thereof) and mailed, faxed
or delivered, to the address or facsimile number specified for notices on
Schedule 10.02; or, as directed to the Borrower or the Agent, to such other
address as shall be designated by such party in a written notice to the other
parties, and as directed to any other party, at such other address as shall be
designated by such party in a written notice to the Borrower and the Agent.
(b) All such notices, requests and communications shall, when
transmitted by overnight delivery, or faxed, be effective when delivered for
overnight (next-day) delivery, or transmitted in legible form by facsimile
machine, respectively, or if mailed, upon the third Business Day after the date
deposited into the U.S. mail, or if delivered, upon delivery; except that
notices pursuant to Article II or IX to the Agent shall not be effective until
actually received by the Agent.
(c) Any agreement of the Agent and the Lenders herein to receive
certain notices by telephone or facsimile is solely for the convenience and at
the request of the Borrower. The Agent and the Lenders shall be entitled to
rely on the authority of any Person purporting to be a Person authorized by the
Borrower to give such notice and the Agent and the Lenders shall not have any
liability to the Borrower or other Person on account of any action taken or not
taken by the Agent or the Lenders in reliance upon such telephonic or facsimile
notice. The obligation of the Borrower to repay the Loans shall not be affected
in any way or to any extent by any failure by the Agent and the Lenders to
receive written confirmation of any telephonic or facsimile notice or the
receipt by the Agent and the Lenders of a confirmation which is at variance with
the terms understood by the Agent and the Lenders to be contained in the
telephonic or facsimile notice.
10.03. No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Agent or any Lender, any right, remedy,
power or privilege hereunder, shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege.
10.04. Costs and Expenses. The Borrower shall:
(a) whether or not the transactions contemplated hereby are
consummated, pay or reimburse Agent (including in its capacity as Agent) within
five Business Days after demand for all costs and expenses incurred by Agent
(including in its capacity as Agent) in connection with the development,
preparation, delivery, syndication, administration and execution of, and any
amendment, supplement, waiver or modification to (in each case, whether or not
consummated), this Agreement, any Loan Document and any other documents prepared
in connection herewith or therewith, and the consummation of the
transactions contemplated hereby and thereby, including reasonable Attorney
Costs incurred by Agent (including in its capacity as Agent) with respect
thereto;
(b) pay or reimburse the Agent and each Lender within five Business
Days after demand for all reasonable costs and expenses (including Attorney
Costs) incurred by them in connection with the enforcement, attempted
enforcement, or preservation of any rights or remedies under this Agreement or
any other Loan Document during the existence of an Event of Default or after
acceleration of the Loans (including in connection with any "workout" or
restructuring regarding the Loans, and including in any Insolvency Proceeding or
appellate proceeding); and
(c) pay or reimburse Agent (including in its capacity as Agent) within
five Business Days after demand for all reasonable appraisal (including the
allocated cost of internal appraisal services), audit, field exam, environmental
inspection and review (including the allocated cost of such internal services),
search and filing costs, fees and expenses, incurred or sustained by Agent
(including in its capacity as Agent) in connection with the matters referred to
under subsections (a) and (b) of this Section.
10.05. Borrower Indemnification. Whether or not the transactions
contemplated hereby are consummated, the Borrower shall indemnify, defend and
hold the Agent-Related Persons, and each Lender and each of its respective
officers, directors, employees, counsel, agents and attorneys-in-fact (each, an
"Indemnified Person") harmless from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
charges, expenses and disbursements (including Attorney Costs) of any kind or
nature whatsoever which may at any time (including at any time following
repayment of the Loans, and the termination, resignation or replacement of the
Agent or replacement of any Lender) be imposed on, incurred by or asserted
against any such Person in any way relating to or arising out of the Borrower
entering into this Agreement or any document contemplated by or referred to
herein, or the transactions contemplated hereby, or any action taken or omitted
by any such Person under or in connection with any of the foregoing, including
with respect to any investigation, litigation or proceeding (including any
Insolvency Proceeding or appellate proceeding) related to or arising out of this
Agreement or the Loans or the use of the proceeds thereof, whether or not
any Indemnified Person is a party thereto (all the foregoing, collectively, the
"Indemnified Liabilities"); provided, that the Borrower shall have no obligation
hereunder to any Indemnified Person with respect to Indemnified Liabilities
resulting solely from the gross negligence or willful misconduct of such
Indemnified Person. The agreements in this Section shall survive payment of all
other Obligations.
10.06. Payments Set Aside. To the extent that the Borrower makes a
payment to the Agent or the Lenders, or the Agent or the Lenders exercise their
right of set-off, and such payment or the proceeds of such set-off or any part
thereof are subsequently invalidated, declared to be fraudulent or preferential,
set aside or required (including pursuant to any settlement entered into by the
Agent or such Lender in its discretion) to be repaid to a trustee, receiver or
any other party, in connection with any Insolvency Proceeding or otherwise, then
(a) to the extent of such recovery the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such set-off had not occurred, and (b)
each Lender severally agrees to pay to the Agent upon demand its pro rata share
of any amount so recovered from or repaid by the Agent.
10.07. Successors and Assigns. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that the Borrower may not assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of the Agent and each Lender.
10.08. Assignments, Participations, etc.
(a) Any Lender may, at any time assign and delegate to an Affiliate of
such Lender (each an "Assignee") all, or any ratable part of all, of the Loans,
the Commitments, and the other rights and obligations of such Lender hereunder,
provided, however, that the Borrower and the Agent may continue to deal solely
and directly with such Lender in connection with the interest so assigned to an
Assignee until (i) written notice of such assignment, together with payment
instructions, addresses and related information with respect to the Assignee,
shall have been provided to Borrower and the Agent by such Lender and the
Assignee; (ii) such Lender and its Assignee shall have delivered to the Borrower
and the Agent an Assignment and Acceptance in the form of Exhibit C
("Assignment and Acceptance") together with any Note or Notes subject to such
assignment.
(b) From and after the date that the Agent notifies the assignor Lender
that it has received (and provided its consent with respect to) an executed
Assignment and Acceptance (i) 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, shall have the rights and
obligations of a Lender under the Loan Documents, and (ii) the assignor Lender
shall, to the extent that rights and obligations hereunder and under the other
Loan Documents have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights and be released from its obligations under the
Loan Documents.
(c) Within five Business Days after its receipt of notice by the Agent
that it has received an executed Assignment and Acceptance, the Borrower shall
execute and deliver to the Agent, new Notes evidencing such Assignee's assigned
Loans and, if the assignor Lender has retained a portion of its Loans,
replacement Notes in the principal amount of the Loans retained by the assignor
Lender (such Notes to be in exchange for, but not in payment of, the Notes held
by such Lender). Immediately upon each Assignee's execution and proper delivery
of the Assignment and Acceptance, this Agreement shall be deemed to be amended
to the extent, but only to the extent, necessary to reflect the addition of the
Assignee.
10.09. Confidentiality. Each Lender agrees to take and to cause its
Affiliates to take normal and reasonable precautions and exercise due care to
maintain the confidentiality of all information identified as "confidential" or
"secret" by the Borrower and provided to it by the Borrower or any Subsidiary,
or by the Agent on the Borrower's or such Subsidiary's behalf, under this
Agreement or any other Loan Document, and neither it nor any of its Affiliates
shall use any such information other than in connection with or in enforcement
of this Agreement and the other Loan Documents or in connection with other
business now or hereafter existing or contemplated with the Borrower or any
Subsidiary; except to the extent such information (i) was or becomes generally
available to the public other than as a result of disclosure by the Lender, or
(ii) was or becomes available on a non-confidential basis from a source other
than the Borrower, provided that such source is not bound by a confidentiality
agreement with the Borrower known to the Lender; provided, however, that any
Lender may disclose such information (A) at the request or pursuant to any
requirement of any Governmental Authority to which the Lender is subject or in
connection with an examination of such Lender by any such authority; (B)
pursuant to subpoena or other court process, in which event, to the extent
permitted by applicable laws, such Lender agrees to use reasonable commercial
efforts to promptly notify the Borrower of its receipt of any such subpoena or
other court process; (C) when required to do so in accordance with the
provisions of any applicable Requirement of Law; (D) to the extent reasonably
required in connection with any litigation or proceeding to which the Agent, any
Lender or their respective Affiliates may be party; (E) to the extent
reasonably required in connection with the exercise of any remedy hereunder or
under any other Loan Document; (F) to such Lender's independent auditors and
other professional advisors; (G) to an Assignee, actual or potential, provided
that such Person agrees in writing to keep such information confidential to the
same extent required of the Lenders hereunder; (H) as to any Lender or its
Affiliate, as expressly permitted under the terms of any other document or
agreement regarding confidentiality to which the Borrower or any Subsidiary is
party or is deemed party with such Lender or such Affiliate; and (I) to its
Affiliates.
10.10. Set-off. In addition to any rights and remedies of the Lenders
provided by law, if an Event of Default exists or the Loans have been
accelerated, each Lender is authorized at any time and from time to time,
without prior notice to Borrower any such notice being waived by Borrower to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held by,
and other indebtedness at any time owing by, such Lender to or for the credit or
the account of any Borrower against any and all Obligations owing to such
Lender, now or hereafter existing, irrespective of whether or not the Agent or
such Lender shall have made demand under this Agreement or any Loan Document and
although such Obligations may be contingent or unmatured. Each Lender agrees
promptly to notify the Borrower and the Agent after any such set-off and
application made by such Lender; provided, however, that the failure to give
such notice shall not affect the validity of such set-off and application.
10.11. Notification of Addresses, Lending Offices, Etc. Each Lender
shall notify the Agent in writing of any changes in the address to which notices
to the Lender should be directed, of payment instructions in respect of all
payments to be made to it hereunder and of such other administrative information
as the Agent shall reasonably request.
10.12. Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which, when so executed, shall be deemed an
original, and all of said counterparts taken together shall be deemed to
constitute but one and the same instrument.
10.13. Severability. The illegality or unenforceability of any
provision of this Agreement or any instrument or agreement required hereunder
shall not in any way affect or impair the legality or enforceability of the
remaining provisions of this Agreement or any instrument or agreement required
hereunder.
10.14. No Third Parties Benefited. This Agreement is made and entered
into for the sole protection and legal benefit of the Borrower, the Lenders, the
Agent, the Arranger and the Agent-Related Persons, and their permitted
successors and assigns, and no other Person shall be a direct or indirect legal
beneficiary of, or have any direct or indirect cause of action or claim in
connection with, this Agreement or any of the other Loan Documents.
10.15. Governing Law and Jurisdiction.
(a) THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK (WITHOUT REGARD TO
CONFLICT OF LAW PROVISIONS); PROVIDED THAT THE PARTIES SHALL RETAIN ALL RIGHTS
ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX
AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER'S, THE AGENT'S AND
THE LENDER'S CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE
NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. THE BORROWER, THE AGENT AND THE
LENDERS IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING
OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION
IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE BORROWER, THE
AGENT AND THE LENDERS EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR
OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY NEW YORK LAW.
10.16. Waiver of Jury Trial. THE BORROWER, THE LENDERS AND THE AGENT
WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN
DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION,
PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST
ANY OTHER PARTY OR ANY AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER
WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE BORROWER, THE
LENDERS AND THE AGENT EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE
TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE
PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED
BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING
WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF
THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF.
THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
10.17. Entire Agreement. This Agreement, together with the other Loan
Documents, embodies the entire agreement and understanding among the Borrowers,
the Lenders and the Agent, and supersedes all prior or contemporaneous
agreements and understandings of such Persons, verbal or written, relating to
the subject matter hereof and thereof.
10.18. Effectiveness. This Agreement shall become effective on the
date (the "Effective Date") on which the Agent, the Borrower and each of the
Lenders shall have signed a counterpart of this Agreement (whether the same or
different counterparts) and shall have delivered the same to the Agent at the
Notice Address (or to Agent's counsel as directed by such counsel) or, in the
case of the Lenders, shall have given to Agent or telephonic (confirmed in
writing), written, telex or facsimile notice (actually received) at such office
or the office of Agent's counsel that the same has been signed and mailed to it.
Agent will give the Borrower and each Lender prompt written notice of the
occurrence of the Effective Date.
[signature pages follow]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
ABC-NACO INC.
By:
Title:
ING XXXXXX XXXX INVESTORS III LP, as Agent and as a Lender
By:
Title:
ING BARINGS U.S. LEVERAGED EQUITY PLAN LLC, as a Lender
By:
Title:
ING BARINGS GLOBAL LEVERAGED EQUITY PLAN LTD, as a Lender
By:
Title:
XXXXXX XXXX INVESTORS II LP, as a Lender
By:
Title:
FS EMPLOYEE INVESTORS LLC, as a Lender
By:
Title:
FS PARALLEL FUND LP, as a Lender
By:
Title:
