Exhibit 99.4
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AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF DECEMBER 31, 2002,
AMONG
XXXX INDUSTRIES, INC.
AND CERTAIN SUBSIDIARIES,
AS BORROWERS,
THE GUARANTORS PARTY HERETO,
AS GUARANTORS,
VARIOUS FINANCIAL INSTITUTIONS PARTY HERETO,
AS LENDERS,
LASALLE BANK NATIONAL ASSOCIATION,
AS ADMINISTRATIVE AGENT AND JOINT LEAD ARRANGER,
AND
NATIONAL CITY BANK,
AS SYNDICATION AGENT AND JOINT LEAD ARRANGER
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TABLE OF CONTENTS
PAGE
SECTION 1. DEFINITIONS...................................................2
1.1 Definitions......................................................2
1.2 Computation of Time Periods.....................................18
1.3 Accounting Terms................................................18
1.4 Headings and References.........................................18
1.5 Construction....................................................19
SECTION 2. AMENDMENT AND RESTATEMENT OF EXISTING LOANS AND EXISTING
LETTERS OF CREDIT; REVOLVING LOAN COMMITMENT BORROWING
AND LETTER OF CREDIT PROCEDURES..............................19
2.1 Amendment and Restatement of Existing Loans; Existing Letters
of Credit; Waiver of Existing Default...........................19
2.2 Amended and Restated Revolving Loan and Letter of Credit
Commitments.....................................................19
2.3 Revolving Loan Procedures.......................................20
2.4 Letter of Credit Procedures.....................................21
2.5 Commitments Several.............................................24
2.6 Certain Conditions..............................................24
SECTION 3. NOTES EVIDENCING LOANS; REPAYMENT OF LOANS...................24
3.1 Notes...........................................................24
3.2 Return of Existing Notes........................................24
3.3 Recordkeeping...................................................24
SECTION 4. INTEREST.....................................................24
4.1 Interest Rates..................................................24
4.2 Interest Payment Dates..........................................25
4.3 Computation of Interest.........................................25
SECTION 5. FEES.........................................................25
5.1 Commitment Fees.................................................25
5.2 Letter of Credit Fees...........................................25
5.3 Amendment and Restatement Fees..................................25
SECTION 6. REDUCTION AND TERMINATION OF THE COMMITMENTS; PREPAYMENTS....25
6.1 Reduction or Termination of the Revolving Commitment Amount.....25
6.2 Prepayments.....................................................26
SECTION 7. MAKING AND PRORATION OF PAYMENTS; SETOFF; TAXES..............28
7.1 Making of Payments..............................................28
7.2 Application of Certain Payments.................................28
7.3 Due Date Extension..............................................28
7.4 Setoff..........................................................28
7.5 Proration of Payments...........................................28
7.6 Taxes...........................................................29
SECTION 8. INCREASED COSTS. ............................................30
8.1 Increased Costs.................................................30
8.2 Mitigation of Circumstances.....................................31
8.3 Conclusiveness of Statements; Survival of Provisions............31
SECTION 9. REPRESENTATIONS AND WARRANTIES...............................31
9.1 Organization....................................................31
9.2 Authorization; No Conflict......................................32
9.3 Validity and Binding Nature.....................................32
9.4 Financial Statements............................................32
9.5 No Material Adverse Change......................................32
9.6 Litigation and Contingent Liabilities...........................32
9.7 Ownership of Properties; Liens..................................32
9.8 Subsidiaries....................................................33
9.9 Pension and Welfare Plans.......................................33
9.10 Investment Company Act..........................................34
9.11 Public Utility Holding Company Act..............................34
9.12 Regulation U....................................................34
9.13 Taxes...........................................................34
9.14 [Intentionally omitted].........................................34
9.15 Environmental Matters...........................................34
9.16 Insurance.......................................................35
9.17 Real Property...................................................36
9.18 Information.....................................................36
9.19 Intellectual Property...........................................36
9.20 Labor Matters...................................................36
9.21 Burdensome Obligations..........................................37
9.22 No Default......................................................37
9.23 Securities Matters..............................................37
9.24 Use of Proceeds.................................................37
9.25 Compliance with Laws............................................37
9.26 Security Interests..............................................37
9.27 Governmental Approvals..........................................37
9.28 Liens...........................................................37
9.29 Asset Purchase Documents........................................38
9.30 Tax Refunds.....................................................39
9.31 Survival of Warranties..........................................39
SECTION 10. COVENANTS....................................................39
10.1 Reports, Certificates and Other Information.....................39
10.2 Books, Records and Inspections..................................42
10.3 Maintenance of Property; Insurance; Condemnation................43
10.4 Compliance with Laws; Payment of Taxes and Liabilities..........44
10.5 Maintenance of Existence........................................45
10.6 Financial Covenants.............................................45
10.7 Limitations on Debt.............................................46
10.8 Liens...........................................................46
10.9 Operating Leases................................................47
10.10 Restricted Payments.............................................47
10.11 Mergers, Consolidations, Sales..................................48
10.12 Use of Proceeds.................................................49
10.13 Further Assurances..............................................49
10.14 Transactions with Affiliates....................................49
10.15 Employee Benefit Plans..........................................49
10.16 Environmental Matters...........................................49
10.17 Unconditional Purchase Obligations..............................50
10.18 Inconsistent Agreements.........................................50
10.19 Business Activities.............................................50
10.20 Advances and Other Investments..................................50
10.21 Restriction of Amendments to Certain Documents..................51
10.22 Fiscal Year.....................................................51
10.23 Cancellation of Debt............................................51
10.24 Blocked Accounts................................................51
10.25 Mortgaged Real Property.........................................51
10.26 Guaranties and Other Liabilities................................52
10.27 Prepayments.....................................................52
10.28 Cash Concentration Account......................................53
10.29 Location of Collateral..........................................53
10.30 Xxxxxxxxx Consulting............................................53
10.31 Tax Refund Claim; Proceeds of Tax Refund........................53
SECTION 11. EFFECTIVENESS; CONDITIONS OF LENDING.........................53
11.1 Initial Credit Extension........................................54
11.2 Conditions......................................................56
11.3 Postclosing Deliveries..........................................57
SECTION 12. EVENTS OF DEFAULT AND THEIR EFFECT...........................58
12.1 Events of Default...............................................58
12.2 Effect of Event of Default......................................60
12.3 Application of Liquidation Proceeds.............................61
SECTION 13. THE AGENTS...................................................62
13.1 Appointment and Authorization...................................62
13.2 Delegation of Duties............................................63
13.3 Liability of Administrative Agent...............................63
13.4 Reliance by Administrative Agent................................63
13.5 Notice of Default...............................................63
13.6 Credit Decision.................................................64
13.7 Indemnification.................................................64
13.8 Agents in Individual Capacity...................................65
13.9 Successor Administrative Agent; Assignment of Agency............65
13.10 Collateral Matters..............................................66
SECTION 14. GUARANTY.....................................................66
14.1 Guaranty........................................................66
14.2 Guaranty Unconditional..........................................66
14.3 Discharge Only Upon Payment in Full; Reinstatement in Certain
Circumstances...................................................67
14.4 Subrogation.....................................................67
14.5 Waivers.........................................................68
14.6 Stay of Acceleration............................................68
14.7 General Limitation on Guarantee Obligations.....................68
SECTION 15. GENERAL......................................................68
15.1 Waiver; Amendments..............................................68
15.2 Confirmations...................................................69
15.3 Notices.........................................................69
15.4 Computations....................................................69
15.5 Costs, Expenses and Taxes.......................................69
15.6 Subsidiary References...........................................70
15.7 Captions........................................................70
15.8 Assignments; Participations.....................................70
15.9 Entire Agreement................................................72
15.10 Amendment and Restatement of Existing Credit Agreement..........72
15.11 Affirmation and Continued Effectiveness of Existing Loan
Documents, Collateral Documents and Liens.......................73
15.12 GOVERNING LAW...................................................73
15.13 Counterparts....................................................73
15.14 Successors and Assigns..........................................73
15.15 Indemnification by the Credit Parties...........................73
15.16 Nonliability of Lenders.........................................75
15.17 FORUM SELECTION AND CONSENT TO JURISDICTION.....................75
15.18 WAIVER OF JURY TRIAL............................................76
15.19 Confidentiality.................................................76
15.20 Termination; Release of Guarantees and Collateral...............77
Schedules and Exhibits:
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Schedule 2.1(A) Lenders and Percentages
Schedule 9.4 Financial Statements
Schedule 9.6 Contingent Liabilities
Schedule 9.8 Subsidiaries
Schedule 9.9 Pension and Welfare Plans
Schedule 9.15 Environmental Matters
Schedule 9.16 Insurance
Schedule 9.17(A) Real Property
Schedule 9.17(B) Leased Real Property
Schedule 9.20 Labor Matters
Schedule 9.27 Governmental Approvals
Schedule 10.7 Permitted Debt
Schedule 10.8 Permitted Liens
Schedule 10.14 Affiliate Transactions
Schedule 10.20 Existing Investments
Schedule 15.3 Addresses for Notices
Exhibit A-1 Form of Revolving Note
Exhibit A-2 Form of Term Note
Exhibit B Form of Compliance Certificate
Exhibit C Form of Joinder Agreement
Exhibit D Matters to be Covered by Legal Opinion(s)
Exhibit E [Intentionally Omitted]
Exhibit F Form of Closing Certificate
Exhibit G Form of Assignment Agreement
Exhibit H Form of Borrowing Base Certificate
AMENDED AND RESTATED CREDIT AGREEMENT
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THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of December 31,
2002 (this "Agreement"), is among XXXX INDUSTRIES, INC., a Delaware
corporation (the "Parent"), each of the Parent's domestic Subsidiaries, as
borrowers (together with the Parent, collectively, the "Borrowers" and each
a "Borrower"), the Parent and each of the Parent's domestic Subsidiaries,
as guarantors (the "Guarantors" and each a "Guarantor", and together with
the Borrowers, collectively the "Credit Parties" and each a "Credit
Party"), the financial institutions that are or may from time to time
become parties hereto, as lenders (together with their respective
successors and assigns, the "Lenders" and each a "Lender"), LASALLE BANK
NATIONAL ASSOCIATION, a national banking association, as administrative
agent for the Lenders (in its individual capacity, "LaSalle", in its
capacity as administrative agent for the Lenders, the "Administrative
Agent", and a "Joint Lead Arranger"), and NATIONAL CITY BANK, a national
banking association, as syndication agent for the Lenders (in its
individual capacity, "NCB", in its capacity as syndication agent for the
Lenders, the "Syndication Agent" and together with the Administrative
Agent, the "Agents", and a "Joint Lead Arranger").
PRELIMINARY STATEMENTS:
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1. The Borrowers, the Administrative Agent, the Syndication Agent and
the Lenders are parties to the Credit Agreement dated as of March 8, 2001,
among XXXX Industries, Inc., a Delaware corporation ("XXXX"), each of
XXXX'x domestic subsidiaries, as borrowers, XXXX and each of XXXX'x
domestic subsidiaries, as guarantors, the financial institutions that are
or may from time to time become parties hereto, as lenders, LaSalle Bank
National Association, a national banking association, as administrative
agent for the lenders, and National City Bank, a national banking
association, as syndication agent for the lenders (as amended, waived, or
otherwise modified through the date hereof, the "Existing Credit
Agreement").
2. After giving effect to the transaction evidenced by the Asset
Purchase Agreement (hereinafter defined), an aggregate principal amount of
$26,426,406.22 in loans under the Existing Credit Agreement is outstanding
on the date hereof (collectively, the "Existing Loans").
3. Due to violations of Existing Credit Agreement covenants by the
Borrowers, an Event of Default has existed under the Existing Credit
Agreement since April 30, 2002 (the "Existing Default").
4. Certain of the Credit Parties have agreed to enter into an Asset
Purchase Agreement (the "Asset Purchase Agreement"), dated as of December
31, 2002, among XXXX Industries, Inc., a Delaware corporation ("XXXX DE"),
XXXX Enclosures, Inc., an Arizona corporation ("XXXX Enclosures"), XXXX,
Inc., an Alabama corporation ("XXXX Sub"), XXXX Construction, Inc., a Texas
corporation ("XXXX Construction"), XXXX Products, Inc., an Indiana
corporation ("XXXX Products"), XXXX Installation Services, Inc., a Delaware
corporation ("XXXX Installation" and together with XXXX XX, XXXX
Xxxxxxxxxx, XXXX Xxx, XXXX Construction and XXXX Products, the "Sellers"),
and FOGSON, L.L.C., a Delaware limited liability company ("Buyer") formed
by the Lenders, whereby the Lenders have agreed to contribute a specified
amount of indebtedness under the Existing Credit Agreement to Buyer, which
Buyer is willing to convey to Sellers in exchange for certain assets of the
Sellers.
5. Following the consummation of the Asset Purchase Agreement the
Credit Parties intend to consolidate their business operations at their
facility in Frankfort, Indiana.
6. To provide the Borrowers with a credit facility that will satisfy
the Borrowers' liquidity requirements after the consolidation of their
business operations, the Borrowers have requested the Lenders to amend and
restate the Existing Credit Agreement, and the Borrowers, the
Administrative Agent, the Syndication Agent and the Lenders have agreed to
enter into this Agreement to amend and restate the Existing Credit
Agreement on the terms set forth and subject to the conditions set forth in
this Agreement.
7. It is the intention of the parties to this Agreement that this
Agreement not constitute a novation of the obligations under the Existing
Credit Agreement and that, from and after the date hereof, the Existing
Credit Agreement shall be amended and restated hereby and all references
herein to "hereunder", "hereof", or words of like import and all references
in any Loan Document to the "Agreement" or words of like import shall mean
and be a reference to the Existing Credit Agreement as amended and restated
hereby.
AGREEMENT:
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In consideration of the foregoing and the mutual agreements contained
in this Agreement, the parties to this Agreement agree as follows:
SECTION 1. DEFINITIONS.
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1.1 Definitions. As used in this Agreement, the following terms have
the following meanings (such meanings to be equally applicable to both the
singular and plural forms of the terms defined):
Account Debtor means any Person who is obligated to a Borrower
under, with respect to, or on account of, an Account Receivable.
Account Receivable means, with respect to any Person, any right
of such Person to payment for goods sold or leased or for services
rendered, whether or not evidenced by an instrument or chattel paper
and whether or not yet earned by performance.
Affiliate means, at any time, and with respect to any Person, (i)
any other Person that at such time directly or indirectly through one
or more intermediaries controls, or is controlled by, or is under
common control with, such first Person and (ii) any Person
beneficially owning or holding, directly or indirectly, 5% or more of
any class of voting or equity interests of any Credit Party or any
corporation of which a Credit Party beneficially owns or holds, in the
aggregate, directly or indirectly, 5% or more of any class of its
voting or equity interests. As used in this definition, "control"
(including with correlative meanings the terms "controlled by" and
"under common control with") means the possession, directly or
indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of
voting securities, by contract or otherwise. Unless the context
otherwise clearly requires, any reference to an "Affiliate" is a
reference to an Affiliate of the Credit Parties.
Agents has the meaning set forth in the Preamble and includes any
successor of either of them in the relevant capacity.
Agreement has the meaning set forth in the Preamble.
Asset Purchase Agreement has the meaning set forth in the
Preliminary Statements.
Asset Purchase Documents means the Asset Purchase Agreement and
all other documents and instruments relating thereto.
Asset Sale means the sale, lease, assignment, transfer or other
disposition for value (including any settlement of or payment in
respect of any property or casualty insurance claim or any
condemnation proceeding relating to any asset of any Credit Party or
any Subsidiary) by any Credit Party or any Subsidiary to any Person
(other than a Credit Party or a Subsidiary) of any asset or right of
such Credit Party or such Subsidiary.
Assignment Agreement has the meaning set forth in Section
15.8(A).
Attributable Debt means, as to any particular lease or transfer
permitted by Section 10.11(A)(v), the total amount of rent (discounted
semiannually from the respective due dates thereof at the interest
rate implicit in such lease) required to be paid by the lessee under
such lease during the remaining term thereof. The amount of rent
required to be paid under any such lease for any such period shall be
(i) the total amount of the rent payable by the lessee with respect to
such period after excluding amounts required to be paid on account of
maintenance and repairs, insurance, taxes, assessments, utilities,
operating and labor costs and similar charges plus (ii) without
duplication, any guaranteed residual value in respect of such lease to
the extent such guarantee would be included in Indebtedness in
accordance with GAAP.
Base Rate means at any time a rate per annum equal to the greater
of (i) the Federal Funds Rate plus 0.50% and (ii) the Corporate Base
Rate.
Base Rate Loan means any Loan that bears interest at or by
reference to the Base Rate.
Big Four means the accounting firms of Deloitte Touche Tomatsu,
Ernst & Young LLP, PricewaterhouseCoopers LLP, and KPMG and their
affiliates and successors.
Xxxx and Hold Goods means, at any time, goods that have been
produced or manufactured by a Credit Party and sold to and accepted by
a Person not a Credit Party or a Subsidiary that a Credit Party is
holding or storing at its premises at the request and for the benefit
of the purchaser of such goods and such sale qualifies for revenue
recognition under SAB 101.
Borrowers has the meaning set forth in the Preamble.
Borrowing Base means, at any time, an amount equal to the sum of
(i) 85% of the face amount (less discounts, credits, allowances and
payments that may be taken by or granted to Account Debtors of the
Eligible Accounts Receivable in connection with such Accounts) of all
existing Eligible Accounts Receivable that are set forth in the
Borrowing Base Certificate most recently delivered by the Parent on
behalf of the Borrowers to the Administrative Agent, which amount will
be reduced by 100% of the face amount of all payments that any
Borrower has received on or in connection with the Eligible Accounts
Receivable since the date of such Borrowing Base Certificate; plus
(ii) 50% of the Value of Eligible Inventory, as set forth in the
Borrowing Base Certificate then most recently delivered by the Parent
on behalf of the Borrowers to the Administrative Agent; provided that,
in determining the Borrowing Base, the maximum amount contributed
pursuant to this clause (ii) shall not exceed for the period
commencing on December 31, 2002 and continuing thereafter, $4,000,000;
provided that, notwithstanding anything in this Agreement to the
contrary, any of the Agents may elect (if no Event of Default exists,
based on the results of a field audit or, if an Event of Default
exists, at any time), in its commercially reasonable discretion, to
change the foregoing method of calculating the Borrowing Base by
reducing advances against Eligible Accounts Receivable or Eligible
Inventory.
Borrowing Base Certificate means a certificate, substantially in
the form of Exhibit H, executed and certified by a Responsible Officer
of the Parent, which shall include appropriate annexes, exhibits,
schedules and other attachments as referred to in such certificate.
Business Day means any day other than (i) a Saturday or a Sunday
or (ii) a day on which commercial banks in Chicago, Illinois are
authorized or required to close, on which LaSalle is open for
commercial banking business in Chicago, Illinois.
Capital Expenditures means, for any Person, all expenditures
that, in accordance with GAAP, would be required to be capitalized and
shown on a consolidated balance sheet of such Person, but excluding
expenditures made in connection with the replacement, substitution or
restoration of assets to the extent financed (i) from insurance
proceeds (or other similar recoveries) paid on account of the loss of
or damage to the assets being replaced or restored, (ii) with awards
of compensation arising from the taking by eminent domain or
condemnation of the assets being replaced, or (iii) with credits for
trade-ins of existing Equipment, fixed assets, or improvements.
Capital Lease means, with respect to any Person, any lease of (or
other agreement conveying the right to use) any real or personal
property by such Person that, in conformity with GAAP, is accounted
for as a capital lease on the balance sheet of such Person.
Cash Collateral Account has the meaning set forth in Section
2.3(F).
Cash Equivalent Investment means, at any time, (i) any evidence
of Debt, maturing not more than one year after such time, issued or
guaranteed by the United States Government or any agency thereof, (ii)
commercial paper, maturing not more than one year from the date of
issue, or corporate demand notes, in each case rated at least A-l by
Standard & Poor's Credit Market Services, a division of The
XxXxxx-Xxxx Companies, Inc. or P-l by Xxxxx'x Investors Service, Inc.,
(iii) any certificate of deposit (or time deposits represented by such
certificates of deposit) or banker's acceptance, maturing not more
than one year after such time, or overnight Federal Funds transactions
that are issued or sold by any Lender or its holding company or by a
commercial banking institution that is a member of the Federal Reserve
System and has a combined capital and surplus and undivided profits of
not less than $500,000,000, (iv) any repurchase agreement entered into
with any Lender (or other commercial banking institution of the
stature referred to in clause (iii) above) that (a) is secured by a
fully perfected security interest in any obligation of the type
described in any of clauses (i) through (iii) above and (b) has a
market value at the time such repurchase agreement is entered into of
not less than 100% of the repurchase obligation of such Lender (or
other commercial banking institution) thereunder, or (v) in the case
of funds held outside of the United States by a Non-United States
Subsidiary, deposits, certificates of deposit, or acceptances
denominated in the relevant local currency with a maturity of one year
or less issued or guaranteed by one of the ten largest banks (based on
assets as of the immediately preceding December 31) organized under
the laws of such country.
CERCLA means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, any amendments thereto, any
regulations promulgated thereunder and any successor statutes or
regulations.
Change in Control means (i) any Person or two or more Persons,
other than the Trust, acting in concert shall have acquired beneficial
ownership (within the meaning of Rule 13d-3 of the SEC under the
Securities Exchange Act of 1934), directly or indirectly, of voting
stock of the Parent (or other securities convertible into such voting
stock) representing 25% or more of the combined voting power of all
voting stock of the Parent; (ii) during any period of up to 24
consecutive months, commencing before or after the date of this
Agreement, individuals who at the beginning of such 24-month period
were directors of the Parent (together with any new directors whose
election by such Board of Directors or whose nomination for election
by the shareholders of the Parent was approved by a majority of the
directors then still in office who were either directors at the
beginning of such period or whose election or nomination for election
was previously so approved) shall cease for any reason to constitute a
majority of the board of directors of the Parent; or (iii) any Person
or two Persons, other than the Trust, acting in concert shall have
acquired by contract or otherwise, or shall have entered into a
contract or arrangement that, upon consummation, will result in its or
their acquisition of the power to exercise, directly or indirectly,
control over the management and policies of the Parent.
Closing Date has the meaning set forth in Section 11.1.
Code means the Internal Revenue Code of 1986, any amendments
thereto, any regulations promulgated thereunder and any successor
statutes or regulations.
Collateral means all property and interests in property and
proceeds now owned or hereafter acquired by any Credit Party in or
upon which a Lien has been granted under any of the Loan Documents.
Collateral Access Agreement means an agreement in form and
substance reasonably satisfactory to the Administrative Agent pursuant
to which a mortgagee or lessor of real property on which Collateral is
stored or otherwise located, or a warehouseman, processor or other
bailee of Inventory, acknowledges the Liens of the Administrative
Agent and waives or subordinates any Liens held by such Person on such
property, and, in the case of any such agreement with a mortgagee or
lessor, permits the Administrative Agent access to and use of such
real property for a reasonable amount of time following the occurrence
and during the continuance of an Event of Default to assemble,
complete and sell any Collateral stored or otherwise located thereon.
Collateral Documents means the Pledge Agreement, the Security
Agreement, the Patent Security Agreement, the Trademark Security
Agreement, the Mortgages, the Collateral Access Agreements and any
other agreement, document or instrument pursuant to which any Credit
Party or any other Person now or hereafter grants a security interest
in Collateral to the Administrative Agent as security for such
Person's Obligations.
Commitment means, as to any Lender, such Lender's commitment to
make Loans, and to issue or participate in Letters of Credit, under
this Agreement.
Commitment Fees means has the meaning as set forth in Section
5.1.
Computation Period means each period of four consecutive Fiscal
Quarters ending on the last day of a Fiscal Quarter.
Consolidated Net Income means, for any period, the net income (or
loss) of the Parent and its Subsidiaries for such period determined on
a consolidated basis in accordance with GAAP.
Contribution and Subordination Agreement means the Contribution
and Subordination Agreement dated as of March 8, 2001 among the Credit
Parties.
Controlled Group means all members of a controlled group of
corporations and all members of a controlled group of trades or
businesses (whether or not incorporated) under common control that,
together with the Borrowers, are treated as a single employer under
Section 414 of the Code or Section 4001 of ERISA.
Corporate Base Rate means, for any day, the rate of interest in
effect for such day as publicly announced from time to time by LaSalle
as its corporate base or prime lending rate (whether or not such rate
is actually charged by LaSalle). Any change in the Corporate Base Rate
announced by LaSalle will take effect at the opening of business on
the day specified in the public announcement of such change.
Credit Parties has the meaning set forth in the Preamble.
Debt of any Person means, without duplication, (i) all
indebtedness of such Person for borrowed money, whether or not
evidenced by bonds, debentures, notes or similar instruments, (ii) all
obligations of such Person as lessee under Capital Leases that have
been or should be recorded as liabilities on a balance sheet of such
Person in accordance with GAAP, (iii) all obligations of such Person
to pay the deferred purchase price of property or services (excluding
trade accounts payable in the ordinary course of business and deferred
noncash compensation payable to directors, officers, and employees
accruing in the ordinary course of business), (iv) all indebtedness
secured by a Lien on the property of such Person, whether or not such
indebtedness shall have been assumed by such Person, (v) all
obligations, contingent or otherwise, with respect to the face amount
of all letters of credit (whether or not drawn) and banker's
acceptances issued for the account of such Person (including the
Letters of Credit), (vi) all Rate Management Obligations of such
Person, (vii) all Suretyship Liabilities of such Person in respect of
obligations of the type referred to in clauses (i) through (vi) or
clause (viii) and (viii) all Debt of any partnership of which such
Person is a general partner.
Default means any event that, if it continues uncured, will, with
lapse of time or notice or both, constitute an Event of Default.
Designated Proceeds has the meaning set forth in Section
6.2(B)(i).
Destruction means any damage to, or loss or destruction of, the
Collateral or any part of the Collateral.
Disposal has the meaning set forth in the definition of
"Release".
Dollar and the sign "$" mean lawful money of the United States of
America.
EBITDA means, for any period, Consolidated Net Income for such
period plus, (i) to the extent deducted in determining such
Consolidated Net Income, the sum, without duplication, of (a) Interest
Expense, (b) provisions for any income or similar taxes paid or
accrued by the Parent and its Subsidiaries and (c) all amounts treated
as expenses for depreciation and amortization of intangibles of any
kind minus (ii) to the extent included in determining such
Consolidated Net Income, the sum, without duplication, of (a) gross
interest income received by the Parent and its Subsidiaries during
such period and (b) all extraordinary, unusual or nonrecurring gains
realized by the Parent and its Subsidiaries during such period, all,
in the cases of clauses (i) and (ii) above, as determined on a
consolidated basis in accordance with GAAP.
Eligible Account Receivable means an Account Receivable owing to
a Borrower that meets each of the following requirements:
(A) it arises from the sale of goods or the rendering of services
by a Borrower; and if it arises from the sale of goods, (i) such goods
comply with such Account Debtor's specifications (if any), (ii) such
goods have been delivered to such Account Debtor or are Xxxx and Hold
Goods and (iii) the applicable Borrower or another Credit Party has
possession of, or if requested by the Administrative Agent, has
delivered to the Administrative Agent, delivery receipts (if any)
evidencing such delivery;
(B) it (i) is subject to a first priority perfected Lien in favor
of the Administrative Agent and (ii) is not subject to any other
assignment, claim or Lien, except for Liens permitted under Section
10.8;
(C) it is a valid, legally enforceable and unconditional
obligation of the Account Debtor with respect thereto, and is not
subject to any counterclaim, credit, allowance, discount, rebate or
adjustment by the Account Debtor with respect thereto, or to any claim
by such Account Debtor denying liability thereunder in whole or in
part (provided that, if any counterclaim, credit, allowance, rebate or
adjustment is asserted, or discount is granted, the Account Receivable
shall only be ineligible pursuant to this clause (C) to the extent of
the same);
(D) there is no bankruptcy, insolvency or liquidation proceeding
by or against the Account Debtor with respect thereto;
(E) the Account Debtor with respect thereto is a resident or
citizen of, and is located within, the United States or the Canadian
provinces of Alberta, British Columbia, Manitoba, Ontario or
Saskatchewan, unless the sale of goods or services giving rise to such
Account Receivable is on letter of credit, banker's acceptance or
other credit support terms reasonably satisfactory to the
Administrative Agent;
(F) it is not an Account Receivable arising from a "sale on
approval", "sale or return", "consignment" or "xxxx and hold" (other
than an Account Receivable arising from the sale of Xxxx and Hold
Goods) or subject to any other repurchase or return agreement;
(G) except for Accounts Receivable arising from the sale of Xxxx
and Hold Goods, it is not an Account Receivable with respect to which
possession and/or control of the goods sold giving rise thereto is
held, maintained or retained by any Borrower (or by any agent or
custodian of any Borrower) for the account of or subject to further
and/or future direction from the Account Debtor with respect thereto;
(H) it arises in the ordinary course of business of the
applicable Borrower;
(I) if the Account Debtor is the United States or any department,
agency or instrumentality thereof, the Borrowers have assigned their
right to payment of such Account Receivable to the Administrative
Agent pursuant to the Assignment of Claims Act of 1940;
(J) if the applicable Borrower maintains a credit limit for an
Account Debtor, the aggregate dollar amount of Accounts Receivable due
from such Account Debtor, including such Account Receivable, does not
exceed such credit limit;
(K) if the Account Receivable is evidenced by chattel paper or an
instrument, the originals of such chattel paper or instrument shall
have been endorsed and/or assigned and delivered to the Administrative
Agent in a manner satisfactory to the Administrative Agent;
(L) such Account Receivable is not unpaid more than 90 days past
the original invoice date thereof according to the original terms of
sale;
(M) it is not an Account Receivable with respect to an Account
Debtor that is located in Indiana, Minnesota, New Jersey, or West
Virginia or any other jurisdiction that the Administrative Agent has
advised the Parent has adopted a statute or other requirement with
respect to which any Person that obtains business from within such
jurisdiction must file a notice of business activities report or make
any other required filings in a timely manner to enforce its claims in
such jurisdiction's courts unless such notice of business activities
report has been duly and timely filed or the applicable Borrower is
exempt from filing such report and has provided the Administrative
Agent with satisfactory evidence of such exemption;
(N) it is not owed by an Account Debtor with respect to which 50%
or more of the aggregate amount of outstanding Accounts Receivable
owed at such time by such Account Debtor is classified as ineligible
under clause (L) above; and
(O) the Account Debtor with respect thereto is not a Credit Party
or an Affiliate of a Credit Party.
An Account Receivable that is at any time an Eligible Account
Receivable, but that subsequently fails to meet any of the foregoing
requirements, shall forthwith cease to be an Eligible Account
Receivable until such ineligibility is cured in the sole judgment of
the Administrative Agent. Further, with respect to any Account
Receivable, if the Administrative Agent or the Required Lenders at any
time hereafter determine in their reasonable discretion (exercised in
a manner not inconsistent with general commercial lending practice)
that the prospect of payment or performance by the Account Debtor with
respect thereto is materially impaired for any reason whatsoever, such
Account Receivable shall cease to be an Eligible Account Receivable
after notice of such determination is given to the Borrowers.
Eligible Inventory means Inventory of the Borrowers that meets
the following requirements:
(A) it (i) is subject to a perfected Lien in favor of the
Administrative Agent and (ii) is not subject to any other
assignment, claim or Lien (except for Liens permitted under
Section 10.8);
(B) it is salable and not obsolete or having a reserve
established for obsolescence (to the extent of such
reserve);
(C) it is in the possession and control of a Borrower and it is
stored and held in facilities owned by that Borrower or
another Credit Party or, if such facilities are not so
owned, the Administrative Agent is in possession of a
Collateral Access Agreement with respect thereto;
(D) it is not Inventory produced in violation of the Fair Labor
Standards Act and subject to the "hot goods" provisions
contained in Title 29 U.S.C. ss.215;
(E) it is not subject to any agreement that would restrict the
Administrative Agent's ability to sell or otherwise dispose
of such Inventory;
(F) it is located in the United States or in any territory or
possession of the United States that has adopted Article 9
of the Uniform Commercial Code;
(G) it is not "in transit" to the applicable Borrower or held by
the applicable Borrower on consignment;
(H) it does not constitute work-in-process (excluding Inventory
located at the XXXX, Inc. and XXXX Enclosures, Inc.
facilities that has been fully completed but has not
undergone a final quality control inspection); and
(I) the Administrative Agent shall not have determined in its
reasonable discretion (exercised in a manner not
inconsistent with general commercial lending practice) that
it is unacceptable due to age, type, category, quality, or
quantity, and/or for any other reason for which the
Administrative Agent has a commercially reasonable basis to
exclude it from eligibility.
Inventory that is at any time Eligible Inventory but that subsequently
fails to meet any of the foregoing requirements shall forthwith cease
to be Eligible Inventory until such ineligibility is cured in the sole
judgment of the Administrative Agent.
Environmental Claims means all claims, however asserted, by any
governmental, regulatory or judicial authority or other Person
alleging potential liability or responsibility for violation of any
Environmental Law, or for Release or pollution or contamination of the
environment.
Environmental Laws means all present or future federal, state or
local laws, statutes, common law duties, rules, regulations,
ordinances and codes, together with all administrative orders,
directed duties, licenses, authorizations and permits of, and written
agreements with, any governmental authority, in each case relating to
Environmental Matters.
Environmental Matters means any matter arising out of or relating
to health and safety, or pollution or protection of the environment or
worker safety, including, without limitation, any of the foregoing
relating to the presence, use, production, generation, handling,
transport, treatment, storage, disposal, distribution, discharge,
release, control or cleanup of any Hazardous Substance.
Equipment has the meaning assigned to such term in the Uniform
Commercial Code as in effect in the State of Illinois from time to
time.
ERISA means the Employee Retirement Income Security Act of 1974,
any amendments thereto, any regulations promulgated thereunder and any
successor statutes or regulations.
Event of Default means any of the events described in Section
12.1.
Existing Default has the meaning set forth in the Preliminary
Statements.
Existing Letters of Credit means each letter of credit issued
under the Existing Credit Agreement and outstanding on the Closing
Date.
Existing Loan Document means each "Loan Document" executed and
delivered in connection with the Existing Credit Agreement.
Existing Loans has the meaning set forth in the Preliminary
Statements.
Existing Notes means each "Note" executed and delivered in
connection with the Existing Credit Agreement.
Federal Funds Rate means, for any day, the rate set forth in the
weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Bank of New York
(including any such successor publication, "H.15(519)") on the
preceding Business Day opposite the caption "Federal Funds
(Effective)"; or, if for any relevant day such rate is not so
published on any such preceding Business Day, the rate for such day
will be the arithmetic mean as determined by the Administrative Agent
of the rates for the last transaction in overnight Federal funds
arranged prior to 9:00 A.M. (New York City time) on that day by each
of three leading brokers of Federal funds transactions in New York
City selected by the Administrative Agent.
Fiscal Quarter means a fiscal quarter of a Fiscal Year.
Fiscal Year means the fiscal year of the Borrowers, which period
shall be the 12-month period ending on December 31 of each year.
References to a Fiscal Year with a number corresponding to any
calendar year (e.g., "Fiscal Year 2002") refer to the Fiscal Year
ending on December 31 of such calendar year.
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), that are applicable to the circumstances as of the date
of determination.
Governmental Authority means any federal, state, municipal or
other governmental department, commission, board, bureau, agency or
instrumentality or any court, in each case whether of the United
States of America or foreign.
Guaranteed Obligations has the meaning set forth in Section 14.1.
Guarantor has the meaning set forth in the Preamble.
Hazardous Substances has the meaning set forth in Section
9.15(B).
Indemnified Liabilities has the meaning set forth in Section
15.13(A).
Interest Expense means for any period the consolidated interest
expense of the Parent and its Subsidiaries for such period (including
all imputed interest on Capital Leases).
Inventory has the meaning assigned to such term in the Uniform
Commercial Code as in effect in the State of Illinois from time to
time.
Investment means, relative to any Person, any investment in
another Person, whether by acquisition of any debt or equity security,
by making any loan or advance or by becoming obligated with respect to
a Suretyship Liability in respect of obligations of such other Person
(other than loans and advances to employees in the ordinary course of
business).
Issuing Bank means LaSalle in its capacity as an issuer of
Letters of Credit under this Agreement and its successors and assigns
in such capacity.
Land has the meaning set forth in the definition of "Real
Property".
LaSalle has the meaning set forth in the Preamble.
Lender has the meaning set forth in the Preamble. References to
the "Lenders" include the Issuing Bank; for purposes of clarification
only, to the extent that LaSalle (or any successor Issuing Bank) may
have any rights or obligations in addition to those of the other
Lenders due to its status as Issuing Bank, its status as such will be
specifically referenced.
Letter of Credit has the meaning set forth in Section 2.1(C).
Letter of Credit Application means, with respect to any request
for the issuance of a Letter of Credit, a letter of credit application
in the form being used by the Issuing Bank at the time of such request
for the type of letter of credit requested.
Lien means, with respect to any Person, any interest granted by
such Person in any real or personal property, asset or other right
owned or being purchased or acquired by such Person that secures
payment or performance of any obligation and shall include any
mortgage, lien, encumbrance, charge or other security interest of any
kind, whether arising by contract, as a matter of law, by judicial
process or otherwise.
Loan Documents means this Agreement, the Notes, the Letter of
Credit Applications and the Collateral Documents.
Loans means the Revolving Loans and the Term Loans.
Mandatory Prepayment Event has the meaning set forth in Section
6.2(B)(i).
Margin Stock means any "margin stock" as defined in Regulation U
of the Board of Governors of the Federal Reserve System.
Material Adverse Effect means (i) a material adverse change in,
or a material adverse effect upon, the condition (financial or
otherwise), operations, assets, business, properties or prospects of
the Parent and its Subsidiaries, taken as a whole, (ii) a material
impairment on the ability of the Credit Parties taken as a whole to
perform their obligations under the Loan Documents or the Asset
Purchase Documents or (iii) a material adverse effect upon any
substantial portion of the Collateral under the Collateral Documents
or upon the legality, validity, binding effect or enforceability
against any Credit Party or any other Person (other than the
Administrative Agent or any Lender) of any Loan Document.
Mortgage means a mortgage, deed of trust, leasehold mortgage or
similar instrument granting the Administrative Agent a Lien on Real
Property, in form and substance reasonably satisfactory to the Agents.
Mortgaged Real Property means Real Property in respect of which a
Credit Party has granted a Lien to the Administrative Agent for the
benefit of the Lenders.
Multiemployer Pension Plan means a multiemployer plan, as such
term is defined in Section 4001(a)(3) of ERISA, and to which a Credit
Party or any member of the Controlled Group may have any liability.
NCB has the meaning set forth in the Preamble.
Net Cash Proceeds means:
(A) with respect to any Asset Sale, the aggregate cash proceeds
thereof (including cash proceeds received by way of deferred
payment of principal pursuant to a note, installment
receivable or otherwise, but only as and when received, and
any cash insurance or condemnation proceeds) received by a
Credit Party pursuant to such Asset Sale net of (i) the
costs, fees, and expenses actually incurred directly
relating to such sale, transfer or other disposition
(including sales commissions and legal, accounting and
investment banking fees), (ii) taxes paid or reasonably
estimated by the applicable Credit Party to be payable as a
result thereof (after taking into account any available tax
credits or deductions and any tax sharing arrangements),
(iii) amounts required to be applied to the repayment of any
Debt secured by a Lien on the asset subject to such Asset
Sale (other than the Loans) and (iv) appropriate amounts to
be provided by the Parent or any Subsidiary, as the case may
be, as a reserve in accordance with GAAP against any
liabilities associated with such Asset Sale (but upon
reversal, if any, of such reserve, any amount reversed shall
thereupon become Net Cash Proceeds);
(B) with respect to any issuance of equity securities, the
aggregate cash proceeds received by a Credit Party pursuant
to such issuance, net of the costs, fees, and expenses
actually incurred directly relating to such issuance
(including sales and underwriter's commissions and legal,
accounting and investment banking fees); and
(C) with respect to any issuance of Debt, the aggregate cash
proceeds received by a Credit Party pursuant to such
issuance, net of the costs, fees, and expenses actually
incurred directly relating to such issuance (including
up-front fees and placement fees and legal, accounting and
investment banking fees).
Net Interest Expense means for any period Interest Expense minus
gross interest income received by the Parent and its Subsidiaries
during such period.
Non-United States Subsidiary means any Subsidiary that is
organized under the laws of a jurisdiction other than the United
States of America or any State thereof or the District of Columbia.
Note has the meaning set forth in Section 3.1.
Obligations means all Loans, and other Debt, Rate Management
Obligations, advances, indebtedness, liabilities, fees, obligations,
covenants and duties owing by the Credit Parties to any Lender, the
Issuing Bank, the Administrative Agent, the Syndication Agent, or any
other Person required to be indemnified, that arises under any Loan
Document (including any such interest or other amounts incurred or
arising during the pendency of any bankruptcy, insolvency,
reorganization, receivership or similar proceeding, regardless of
whether allowed or allowable in such proceeding or subject to an
automatic stay under section 362(a) of the United States Bankruptcy
Code), whether or not for the payment of money, whether arising by
reason of an extension of credit, loan, guaranty, indemnification or
in any other manner, whether direct or indirect (including those
acquired by assignment), absolute or contingent, due or to become due,
now existing or hereafter arising and however acquired, including any
such interest or other amounts incurred or arising during the pendency
of any bankruptcy, insolvency, reorganization, receivership, or
similar proceeding, regardless whether allowed or allowable in such
proceeding or subject to an automatic stay under Section 362(a) of the
United States Bankruptcy Code.
Operating Lease means any lease of (or other agreement conveying
the right to use) any real or personal property by any Borrower, as
lessee, other than any Capital Lease.
Parent has the meaning set forth in the Preamble.
PBGC means the Pension Benefit Guaranty Corporation and any
entity succeeding to any or all of its functions under ERISA.
Pension Plan means a "pension plan", as such term is defined in
Section 3(2) of ERISA, which is subject to Title IV of ERISA (other
than a Multiemployer Pension Plan), and to which any Borrower or any
member of the Controlled Group may have any liability, including any
liability by reason of having been a substantial employer within the
meaning of Section 4063 of ERISA at any time during the preceding five
years, or by reason of being deemed to be a contributing sponsor under
Section 4069 of ERISA.
Percentage means, with respect to any Lender, the percentage
specified opposite such Lender's name on Schedule 2.1(A), as adjusted
by subsequent assignments pursuant to Section 15.8(A).
Permitted Joint Venture means any joint venture (which may be in
the form of a limited liability company, partnership, corporation, or
other entity) in which any Credit Party or any of its Subsidiaries is
a joint venturer; provided, however, that (i) the other equity
investors in such joint venture participate in investments in such
joint venture on substantially the same basis as the Credit Party or
Subsidiary and (ii) such joint venture's purpose and activities comply
with the limitations on the business activities of the Credit Parties
and their Subsidiaries set forth in Section 10.19.
Person means any natural person, corporation, partnership, trust,
limited liability company, association, governmental authority or
unit, or any other entity, whether acting in an individual, fiduciary
or other capacity.
Pledge Agreement means the Pledge Agreement, dated as of March 8,
2001 among the Credit Parties and the Administrative Agent, as
amended, waived, or otherwise modified from time to time.
Postclosing Matters Agreement has the meaning set forth in
Section 11.3.
Public Offering means an offering of equity securities or Debt
registered under the Securities Act of 1933.
Rate Management Obligations of a Person means any and all
obligations of such Person, whether absolute or contingent and
howsoever and whensoever created, arising, evidenced or acquired
(including all renewals, extensions and modifications thereof and
substitutions therefor), under (i) any and all Rate Management
Transactions and (ii) any and all cancellations, buy backs, reversals,
terminations or assignments of any Rate Management Transactions.
Rate Management Transaction means any transaction (including an
agreement with respect thereto) now existing or hereafter entered into
between any Borrower and any Lender, any Affiliate of a Lender, or any
other Person acceptable to the Agents in their reasonable discretion
that is a rate swap, basis swap, forward rate transaction, commodity
swap, commodity option, equity or equity index swap, equity or equity
index option, bond option, interest rate option, foreign exchange
transaction, cap transaction, floor transaction, collar transaction,
forward transaction, currency swap transaction, cross-currency rate
swap transaction, currency option or any other similar transaction
(including any option with respect to any of these transactions) or
any combination thereof, whether linked to one or more interest rates,
foreign currencies, commodity prices, equity prices or other financial
measures.
RCRA means the Resource Conservation and Recovery Act, any
amendments thereto, any regulations promulgated thereunder and any
successor statutes or regulations.
Real Property means all of the Credit Parties' right, title, and
interest in all of those plots, pieces or parcels of land now owned,
leased or hereafter acquired by the Credit Parties (the "Land"),
including, without limitation, those more particularly described on
Schedules 9.17(A) and 9.17(B), together with the right, title and
interest of the Credit Parties in and to the following: the streets,
the land lying in the bed of any streets, roads or avenues, opened or
proposed, in front of, adjoining, or abutting the Land to the center
line thereof, the air space and development rights pertaining to the
Land and right to use such air space and development rights, all
rights of way, privileges, liberties, tenements, hereditaments and
appurtenances belonging or in any way appertaining thereto, all
easements now or hereafter benefiting the Land and all royalties and
all rights appertaining to the use and enjoyment of the Land,
including, without limitation, all alley, vault, drainage, mineral,
water, oil, and gas rights, timber, sewers, pipes, conduits, wires,
and other facilities furnishing utility or other services to the Land
and other similar rights, together with all of the buildings and other
improvements and fixtures now or hereafter erected on the Land.
Reinvestment Deferred Amount means, with respect to any
Reinvestment Event, the aggregate Net Cash Proceeds received by a
Credit Party or any Subsidiary in connection therewith that are not
applied to prepay the Term Loans or reduce the Revolving Commitment
Amount pursuant to Section 6.2(B)(i)(a) as a result of the delivery of
a Reinvestment Notice.
Reinvestment Event means any Asset Sale in respect of which a
Credit Party has delivered a Reinvestment Notice.
Reinvestment Notice means a written notice executed by a
Responsible Officer stating that no Default or Event of Default has
occurred and is continuing and that a Credit Party (directly or
indirectly through a Subsidiary) intends and expects to use all or a
specified portion of the Net Cash Proceeds of an Asset Sale to acquire
capital assets useful in its business.
Reinvestment Prepayment Amount means, with respect to any
Reinvestment Event, the Reinvestment Deferred Amount relating thereto
less any amount expended prior to the relevant Reinvestment Prepayment
Date to acquire capital assets useful in a Credit Party's business.
Reinvestment Prepayment Date means, with respect to any
Reinvestment Event, the earlier of (i) the date occurring 180 days
after such Reinvestment Event and (ii) the date on which the
applicable Credit Party shall have determined not to acquire capital
assets useful in such Credit Party's business with all or any portion
of the relevant Reinvestment Deferred Amount.
Release has the meaning specified in CERCLA and the term
"Disposal" (or "Disposed") has the meaning specified in RCRA; provided
that, in the event either CERCLA or RCRA is amended so as to broaden
the meaning of any term defined thereby, such broader meaning shall
apply as of the effective date of such amendment; and, provided
further, that to the extent that the laws of a state wherein any
affected property lies establish a meaning for "Release" or "Disposal"
that is broader than is specified in either CERCLA or RCRA, such
broader meaning shall apply.
Required Lenders means Lenders having Percentages aggregating
66-2/3% or more.
Responsible Officer means any executive officer of the Parent or
any other officer of any Borrower designated in writing by the Chief
Executive Officer, President, Chief Financial Officer of the Parent to
the Administrative Agent as responsible for overseeing or reviewing
compliance with this Agreement or any other Loan Document.
Revolver Outstandings means, at any time, the sum of (i) the
aggregate principal amount of all outstanding Revolving Loans plus
(ii) the Stated Amount of all Letters of Credit at such time.
Revolver Termination Date means the earlier to occur of (i) the
Revolving Maturity Date and (ii) such other date on which the Revolver
Commitment Amounts terminate under Section 6 or 12.
Revolving Commitment Amount means (i) $11,750,000 from the
Closing Date until January 31, 2003 and (ii) $12,750,000 thereafter,
as either such amount may be reduced from time to time pursuant to
Section 6.1.
Revolving Commitment Availability means the Revolving Commitment
Amount.
Revolving Loan has the meaning set forth in Section 2.1(A).
Revolving Maturity Date means December 30, 2003.
SEC means the Securities and Exchange Commission or any other
governmental authority succeeding to any of the principal functions
thereof.
Securities Laws has the meaning set forth in Section 9.23.
Security Agreement means the Security Agreement dated as of March
8, 2001 among the Credit Parties and the Administrative Agent, as
amended, waived, or otherwise modified from time to time.
Stated Amount means, with respect to any Letter of Credit at any
date of determination, the sum of (i) the maximum aggregate amount
available for drawing thereunder at any time during the remaining term
of such Letter of Credit in any and all circumstances plus (ii) the
aggregate amount of all unreimbursed payments and disbursements under
such Letter of Credit.
Subsidiary means, as to any Person, any corporation, association
or other business entity in which such Person or one or more of its
Subsidiaries or such Person and one or more of its Subsidiaries owns
sufficient equity or voting interests to enable it or them (as a
group) ordinarily, in the absence of contingencies, to elect a
majority of the directors (or Persons performing similar functions) of
such entity, and any partnership or joint venture if more than a 50%
interest in the profits or capital thereof is owned by such Person or
one or more of its Subsidiaries or such Person and one or more of its
Subsidiaries (unless such partnership or joint venture can and does
ordinarily take major business actions without the prior approval of
such Person or one or more of its Subsidiaries). Unless the context
otherwise clearly requires, any reference to a "Subsidiary" is a
reference to a Subsidiary of the Parent.
Suretyship Liability means any agreement, undertaking or
arrangement by which any Person guarantees, endorses or otherwise
becomes or is contingently liable upon (by direct or indirect
agreement, contingent or otherwise, to provide funds for payment, to
supply funds to or otherwise to invest in a debtor, or otherwise to
assure a creditor against loss) any indebtedness, obligation or other
liability of any other Person (other than by endorsements of
instruments in the course of collection), or guarantees the payment of
dividends or other distributions upon the shares of any other Person.
The amount of any Person's obligation in respect of any Suretyship
Liability shall (subject to any limitation set forth therein) be
deemed to be the principal amount of the debt, obligation or other
liability supported thereby.
Taking has the meaning set forth in Section 10.3(D).
Taxes has the meaning set forth in Section 7.6.
Term Loan has the meaning set forth in Section 2.1.
Value means, with respect to any Inventory, the lesser of (i) the
market value of such Inventory and (ii) the cost of such Inventory
calculated on a first-in, first-out basis.
Welfare Plan means a "welfare plan", as such term is defined in
Section 3(1) of ERISA.
1.2 Computation of Time Periods. In this Agreement, in the computation
of periods of time from a specified date to a later specified date, the
words "from" or "commencing on" each mean "from and including" and the
words "to", "through", "ending on" and "until" each mean "to but
excluding".
1.3 Accounting Terms. Except as otherwise indicated, all accounting
terms not specifically defined in this Agreement shall be construed in
accordance with, and certificates of compliance with covenants shall be
based upon, GAAP.
1.4 Headings and References. Section and other headings are for
reference only, and shall not affect the interpretation or meaning of any
provision of this Agreement. Any Section or clause references are to this
Agreement, unless otherwise specified. References to an annex, schedule or
exhibit are, unless otherwise specified, to an Annex, Schedule or Exhibit
attached to this Agreement. References in this Agreement and the other Loan
Documents or any other agreement include this Agreement and the other Loan
Documents and other agreements as the same may be amended, restated,
supplemented or otherwise modified from time to time pursuant to the
provisions hereof or thereof. A reference to any law, statute or regulation
shall mean that law, statute or regulation as it may be amended,
supplemented or otherwise modified from time to time, and any successor
law, statute or regulation. A reference to a Person includes the successors
and assigns of such Person, but such reference shall not increase, decrease
or otherwise modify in any way the provisions in this Agreement or any
other Loan Document governing the assignment of rights and obligations
under or the binding effect of any provision of this Agreement or any other
Loan Document.
1.5 Construction. Each covenant contained in this Agreement shall be
construed (absent express provision to the contrary) as being independent
of each other covenant contained herein, so that compliance with any one
covenant shall not (absent such an express contrary provision) be deemed to
excuse compliance with any other covenant. Where any provision herein
refers to action to be taken by any Person, or which such Person is
prohibited from taking, such provision shall be applicable whether such
action is taken directly or indirectly by such Person. The term "including"
is not limiting and means "including without limitation."
SECTION 2. AMENDMENT AND RESTATEMENT OF EXISTING LOANS AND
EXISTING LETTERS OF CREDIT; REVOLVING LOAN COMMITMENT BORROWING
AND LETTER OF CREDIT PROCEDURES.
-------------------------------
2.1 Amendment and Restatement of Existing Loans; Existing Letters of
Credit; Waiver of Existing Default. On the Closing Date, upon the
satisfaction of each of the conditions precedent set forth in Section 11,
(i) $7,426,406.22 of the Existing Loans will be amended and restated as
outstanding Revolving Loans (hereinafter defined) under this Agreement,
(ii) the aggregate principal amount of the Existing Loans of each Lender
that is not amended and restated as a Revolving Loan pursuant to the
preceding clause (i) will be amended and restated as a term loan of such
Lender under this Agreement (each such term loan, a "Term Loan"), (iii)
each Existing Letter of Credit will be deemed to have been issued under
this Agreement and will be subject to all of the terms and conditions
applicable to Letters of Credit hereunder, and (iv) the Existing Default
will be deemed waived by the Lenders.
2.2 Amended and Restated Revolving Loan and Letter of Credit
Commitments. On and subject to the terms and conditions of this Agreement,
each of the Lenders, severally and for itself alone, agrees to make loans
to, and to issue or participate in the issuance of Letters of Credit for
the joint and several account of, the Borrowers as follows:
(A) Amended and Restated Revolving Loan Commitment. From and after the
Closing Date, each Lender will make loans on a revolving basis ("Revolving
Loans") from time to time before the Revolver Termination Date in such
Lender's Percentage of such aggregate amounts as the Borrowers may, from
time to time, request from all Lenders; provided that, the Revolver
Outstandings will not at any time exceed the lesser of (i) Revolving
Commitment Availability and (ii) the Borrowing Base. As set forth in
Section 2.1, on the Closing Date, an aggregate principal amount of
$7,426,406.22 of Revolving Loans will be outstanding.
(B) Amended and Restated Letter of Credit Commitment. (i) From and
after the Closing Date the Issuing Bank will issue letters of credit, in
each case containing such terms and conditions as are permitted by this
Agreement and are reasonably satisfactory to the Issuing Bank (each a
"Letter of Credit"), at the request of and for the joint and several
account of the Borrowers from time to time before the Revolver Termination
Date and (ii) as more fully set forth in Section 2.4(B), each Lender agrees
to purchase a participation in each such Letter of Credit; provided that,
the aggregate Stated Amount of all Letters of Credit shall not at any time
exceed $1,500,000. As set forth in Section 2.1, on the Closing Date each
Existing Letter of Credit will be deemed to have been issued and
outstanding under this Agreement.
2.3 Revolving Loan Procedures.
-------------------------
(A) Making of Revolving Loans. The Parent, on behalf of the Borrowers,
shall give written notice or telephonic notice (followed immediately by
written confirmation thereof) to the Administrative Agent of each proposed
Revolving Loan not later than 11:00 A.M. (Chicago, Illinois time) on the
proposed date of such Revolving Loan. Each such notice shall be effective
upon receipt by the Administrative Agent, shall be irrevocable and shall
specify the date and amount of the Revolving Loan. Each Revolving Loan
shall be in an aggregate principal amount of at least $100,000 and an
integral multiple of $50,000. Promptly upon receipt of such notice, the
Administrative Agent shall advise each Lender thereof. Not later than 1:00
P.M. (Chicago, Illinois time) on the date of a proposed Revolving Loan,
each Lender shall provide the Administrative Agent at the office specified
by the Administrative Agent with immediately available funds covering such
Lender's Percentage of such Revolving Loan and, so long as the
Administrative Agent has not received written notice that the conditions
precedent set forth in Section 11 with respect to such Revolving Loan have
not been satisfied, upon receipt of such funds, the Administrative Agent
shall disburse such funds in the manner specified in the notice of
borrowing delivered by the Parent and shall use reasonable efforts to make
the funds so received from the Lenders available to the Borrowers no later
than 2:00 P.M. (Chicago, Illinois time). All borrowings and repayments of
Revolving Loans shall be effected so that each Lender will have a pro rata
share (according to its Percentage) of all Revolving Loans.
(B) Funding Reliance. Unless the Administrative Agent receives notice
from a Lender by noon (Chicago, Illinois time) on the day of the proposed
borrowing that such Lender will not make available to the Administrative
Agent an amount equal to such Lender's Percentage of such borrowing, the
Administrative Agent may assume that such Lender has made such amount
available to the Administrative Agent and, in reliance upon such
assumption, make a corresponding amount available to the Borrowers. If and
to the extent such Lender has not made such amount available to the
Administrative Agent, such Lender and the Borrowers jointly and severally
agree to repay such amount to the Administrative Agent forthwith on demand,
together with interest thereon at the interest rate applicable to Loans
comprising such borrowing or, in the case of any Lender that repays such
amount within three Business Days, the Federal Funds Rate (together with
such other compensatory amounts as may be required to be paid by such
Lender to the Administrative Agent pursuant to the Rules for Interbank
Compensation of the Council on International Banking or the Clearinghouse
Compensation Committee, as applicable, as in effect from time to time).
Nothing set forth in this clause (C) shall relieve any Lender of any
obligation it may have to make any Loan hereunder.
2.4 Letter of Credit Procedures.
---------------------------
(A) Letter of Credit Applications. The Parent, on behalf of the
Borrowers, shall give notice to the Administrative Agent and the Issuing
Bank of the proposed issuance of each Letter of Credit on a Business Day
that is at least three Business Days (or such lesser number of days as the
Administrative Agent and the Issuing Bank shall agree in any particular
instance) prior to the proposed date of issuance of such Letter of Credit.
Each such notice shall be accompanied by a Letter of Credit Application,
completed and duly executed by the Parent on behalf of the Borrowers and in
all respects reasonably satisfactory to the Administrative Agent and the
Issuing Bank, together with such other documentation as the Administrative
Agent or the Issuing Bank may request in support thereof, it being
understood that each Letter of Credit Application shall specify, among
other things, the date on which the proposed Letter of Credit is to be
issued, the expiration date of such Letter of Credit (which shall not be
later than December 30, 2003) and whether such Letter of Credit is to be
transferable in whole or in part. So long as the Issuing Bank has not
received written notice that the conditions precedent set forth in Section
11 with respect to the issuance of such Letter of Credit have not been
satisfied, the Issuing Bank shall issue such Letter of Credit on the
requested issuance date. The Issuing Bank shall promptly advise the
Administrative Agent of the issuance of each Letter of Credit and of any
amendment thereto, extension thereof or event or circumstance changing the
amount available for drawing thereunder. In the event of any inconsistency
between the terms of any Letter of Credit Application and the terms of this
Agreement, the terms of this Agreement shall control.
(B) Participation in Letters of Credit. Concurrently with the issuance
of each Letter of Credit, the Issuing Bank shall be deemed to have sold and
transferred to each other Lender, and each other Lender shall be deemed
irrevocably and unconditionally to have purchased and received from the
Issuing Bank, without recourse or warranty, an undivided interest and
participation, to the extent of such other Lender's Percentage, in such
Letter of Credit and the Borrowers' reimbursement obligations with respect
thereto. For the purposes of this Agreement, the unparticipated portion of
each Letter of Credit shall be deemed to be the Issuing Bank's
"participation" therein. The Issuing Bank agrees, upon request of the
Administrative Agent or any Lender, to deliver to such Lender a list of all
outstanding Letters of Credit issued by the Issuing Bank, together with
such information related thereto as such Lender may reasonably request.
(C) Reimbursement Obligations. The Borrowers hereby unconditionally
and irrevocably agree to reimburse the Issuing Bank for each payment or
disbursement made by the Issuing Bank under any Letter of Credit honoring
any demand for payment made by the beneficiary thereunder, in each case on
the date that such payment or disbursement is made, so long as such payment
or disbursement is made in the absence of gross negligence and willful
misconduct on behalf of the Issuing Bank; provided that, if the Parent, on
behalf of the Borrowers, shall have given the Administrative Agent a notice
of borrowing in accordance with Section 2.2(B) not later than 11:00 A.M.
(Chicago, Illinois time) on the Business Day of the date of such
disbursement indicating that the Borrowers intend to reimburse the Issuing
Bank for the amount of such drawing with the proceeds of Revolving Loans,
then, so long as the Administrative Agent has not received written notice
that the conditions precedent set forth in Section 11 with respect to such
Revolving Loan have not been satisfied, the Administrative Agent shall
advise each Lender thereof and the Lenders shall, on the date of such
disbursement, make Revolving Loans that are Base Rate Loans in the amount
requested by the Parent, proceeds of which in an amount equal to the amount
of such disbursement shall be applied directly by the Administrative Agent
to reimburse the Issuing Bank for the amount of such disbursement; provided
further, that if for any reason proceeds of Revolving Loans are not
received by the Issuing Bank on such date in an amount equal to the amount
of such disbursement, the Borrowers shall reimburse the Issuing Bank, on
the Business Day immediately following the date of such disbursement in an
amount in same day funds equal to the excess of the amount of such drawing
over the amount of such Revolving Loans, if any, that the Issuing Bank
previously received, plus accrued interest on such amount at the rate then
applicable to Base Rate Loans. The Issuing Bank will refund to the
Borrowers any payment or disbursement erroneously made by the Issuing Bank
promptly after the Issuing Bank recovers such payment or disbursement. Any
amount not reimbursed on the date of such payment or disbursement shall
bear interest from the date of such payment or disbursement to the date
that the Issuing Bank is reimbursed by the Borrowers therefor, payable on
demand, at a rate per annum equal to the Base Rate from time to time in
effect plus 3.00% plus, beginning on the third Business Day after receipt
of notice from the Issuing Bank of such payment or disbursement, 2.00%. The
Issuing Bank shall notify the Borrowers and the Administrative Agent
whenever any demand for payment is made under any Letter of Credit by the
beneficiary thereunder; provided that, the failure of the Issuing Bank so
to notify the Borrowers shall not affect the rights of the Issuing Bank or
the Lenders in any manner whatsoever.
(D) Limitation on Obligations of Issuing Bank. In determining whether
to pay under any Letter of Credit, the Issuing Bank shall have no
obligation to the Borrowers or any Lender other than to confirm that any
documents required to be delivered under such Letter of Credit appear to
have been delivered and appear to comply on their face with the
requirements of such Letter of Credit. Any action taken or omitted to be
taken by the Issuing Bank under or in connection with any Letter of Credit,
if taken or omitted in the absence of gross negligence and willful
misconduct, shall not impose upon the Issuing Bank any liability to the
Borrowers or any Lender and shall not reduce or impair the Borrowers'
reimbursement obligations set forth in Section 2.3(C) or the obligations of
the Lenders pursuant to Section 2.3(E).
(E) Funding by Lenders to Issuing Bank. If the Issuing Bank makes any
payment or disbursement under any Letter of Credit and the Borrowers have
not reimbursed the Issuing Bank in full for such payment or disbursement by
11:00 A.M. (Chicago, Illinois time) on the date of such payment or
disbursement, or if any reimbursement received by the Issuing Bank from the
Borrowers must be returned or rescinded upon or during any bankruptcy or
reorganization of the Borrowers or otherwise, each other Lender shall be
obligated to pay to the Administrative Agent for the account of the Issuing
Bank, in full or partial payment of the purchase price of its participation
in such Letter of Credit, its pro rata share (according to its Percentage)
of such payment or disbursement (but no such payment shall diminish the
obligations of the Borrowers under Section 2.3(C)) and, upon notice from
the Issuing Bank, the Administrative Agent shall promptly notify each other
Lender thereof. Each other Lender irrevocably and unconditionally agrees so
to pay to the Administrative Agent in immediately available funds for the
Issuing Bank's account the amount of such other Lender's Percentage of such
payment or disbursement. If and to the extent any Lender shall not have
made such amount available to the Administrative Agent by 2:00 P.M.
(Chicago, Illinois time) on the Business Day on which such Lender receives
notice from the Administrative Agent of such payment or disbursement (it
being understood that any such notice received after noon (Chicago,
Illinois time) on any Business Day shall be deemed to have been received on
the next following Business Day), such Lender agrees to pay interest on
such amount to the Administrative Agent for the Issuing Bank's account
forthwith on demand for each day from the date such amount was to have been
delivered to the Administrative Agent to the date such amount is paid, at a
rate per annum equal to (i) for the first three days after demand, the
Federal Funds Rate from time to time in effect and (ii) thereafter, the
Base Rate from time to time in effect. Any Lender's failure to make
available to the Administrative Agent its Percentage of any such payment or
disbursement shall not relieve any other Lender of its obligation hereunder
to make available to the Administrative Agent such other Lender's
Percentage of such payment, but no Lender shall be responsible for the
failure of any other Lender to make available to the Administrative Agent
such other Lender's Percentage of any such payment or disbursement.
(F) Cash Collateral. When the Borrowers are required to provide cash
collateral for any Letter of Credit under this Agreement prior to the
Revolver Termination Date, the Borrowers will pay to the Administrative
Agent for the benefit of the Issuing Bank and the Lenders cash in an amount
equal to 105% of the Stated Amount of each applicable Letter of Credit
outstanding for the benefit of the Borrowers. Such funds shall be held by
the Administrative Agent in a cash collateral account (the "Cash Collateral
Account") maintained at the Administrative Agent. The Cash Collateral
Account shall be in the name of the Borrowers, and shall be pledged to, and
subject to the control of, the Administrative Agent for the benefit of the
Issuing Bank in a manner satisfactory to the Administrative Agent. The
Borrowers pledge and grant to the Administrative Agent for the benefit of
the Issuing Bank and the Lenders a security interest in all such funds held
in the Cash Collateral Account from time to time and all proceeds thereof,
as security for the payment of all amounts due in respect of the Letters of
Credit, whether or not then due. This Agreement constitutes a security
agreement under applicable law. If any Letter of Credit, whether or not
then due and payable, shall for any reason be outstanding on the Revolver
Termination Date, the Borrowers shall either (i) provide cash collateral
therefor in the manner described above, (ii) cause all such Letters of
Credit to be canceled and returned or (iii) deliver a letter (or letters)
of credit in guarantee of such Letter of Credit, which letter (or letters)
of credit shall be of like tenor and duration as, and in an amount equal to
105% of, the Stated Amount of the Letters of Credit to which it relates and
shall be issued by a Person, and shall be subject to such terms and
conditions as are satisfactory to the Administrative Agent in its sole
discretion. At any time after an Event of Default has occurred and is
continuing, the Administrative Agent may apply funds then held in the Cash
Collateral Account to the payment of any amounts due and payable by the
Borrowers to the Issuing Bank and the Lenders with respect to the Letters
of Credit of the Borrowers or the Revolver Outstandings relating thereto
and, upon satisfaction in full of all such Letters of Credit of the
Borrowers, to any other Obligations and liabilities of the Borrowers then
due and payable to the Administrative Agent or the Lenders under this
Agreement or the other Loan Documents. Neither the Borrowers nor any Person
claiming on behalf of or through the Borrowers shall have any right to
withdraw any of the funds held in the Cash Collateral Account, except that
upon the termination of all Letters of Credit, the payment of all
obligations and liabilities with respect to such Letters of Credit and, if
an Event of Default has occurred and is continuing or the Revolver
Termination Date has occurred, the payment of all obligations and
liabilities payable by the Borrowers to the Agents or the Lenders under
this Agreement, any funds remaining in the Cash Collateral Account shall be
paid to the Borrowers or as otherwise required by law.
2.5 Commitments Several. The failure of any Lender to make a requested
Loan on any date shall not relieve any other Lender of its obligation (if
any) to make a Loan on such date, but no Lender shall be responsible for
the failure of any other Lender to make any Loan to be made by such other
Lender.
2.6 Certain Conditions. Notwithstanding any other provision of this
Agreement, no Lender shall have an obligation to make any Loan, and the
Issuing Bank shall not have any obligation to issue any Letter of Credit,
if a Default or Event of Default exists.
SECTION 3. NOTES EVIDENCING LOANS; REPAYMENT OF LOANS.
------------------------------------------
3.1 Notes. The Loans of each Lender, as amended and restated under
this Agreement, shall be evidenced by an amended and restated promissory
note (each, a "Note") substantially in the form set forth in Exhibits A-1
and A-2, with appropriate insertions, payable to the order of such Lender
in a face principal amount equal to the sum of such Lender's Percentage of
the Revolving Commitment Amount plus the principal amount of such Lender's
Term Loan. Each Note shall be payable to the order of the applicable Lender
in an amount equal to the aggregate unpaid principal amount of all of such
Lender's Loans, as follows:
(A) each Revolving Loan of such Lender shall be repaid in full on the
Revolver Termination Date; and
(B) each Term Loan of such Lender shall be repaid in full on June 30,
2003.
3.2 Return of Existing Notes. Upon the Borrowers' execution and
delivery of the Notes to each Lender, each Lender will return each of its
Existing Notes to the Borrowers marked "superceded."
3.3 Recordkeeping. Each Lender shall record in its records, or at its
option on the schedule attached to its Note, the date and amount of each
Loan made by such Lender and each repayment thereof. The aggregate unpaid
principal amount so recorded shall be rebuttable presumptive evidence of
the principal amount owing and unpaid on such Note. The failure so to
record any such amount or any error in so recording any such amount shall
not, however, limit or otherwise affect the Obligations of the Borrowers
hereunder or under any Note to repay the principal amount of the Loans
evidenced by such Note together with all interest accruing thereon.
SECTION 4. INTEREST.
--------
4.1 Interest Rates. (A) The Borrowers promise to pay interest on the
unpaid principal amount of each Loan for the period commencing on the date
of such Loan until such Loan is paid in full at all times at a rate per
annum equal to the sum of the Base Rate from time to time in effect plus
3.00%.
(B) At any time an Event of Default exists, the interest rate
applicable to each Loan shall be increased by 2.00% in excess of the rate
otherwise in effect and will be payable on demand.
4.2 Interest Payment Dates. Accrued interest on each Loan shall be
payable in arrears on the last Business Day of each calendar month and at
maturity. After maturity, accrued interest on all Loans shall be payable on
demand.
4.3 Computation of Interest. All computations of interest shall be
computed for the actual number of days elapsed on the basis of a year of
360 days. The applicable interest rate for each Loan shall change
simultaneously with each change in the Base Rate.
SECTION 5. FEES.
----
5.1 Commitment Fees. The Borrowers agree to pay to each Lender,
through the Administrative Agent, on the last day of each calendar quarter
commencing with the first such day after the date hereof (or, if any such
date shall not be a Business Day, the next succeeding Business Day), and on
the date on which the last Commitments of such Lender shall expire or be
terminated as provided herein (each such day being called a "Fee Payment
Date"), a commitment fee (a "Commitment Fee") equal to 3.00% on the average
daily unused amount of the Commitments of such Lender (including without
limitation such Lender's Commitment to make a Term Loan) during the
preceding quarter (or other period commencing with the date hereof or
ending with the date on which the last of the Commitments of such Lender
shall expire or be terminated). All Commitment Fees shall be computed for
the actual number of days elapsed on the basis of a year of 360 days.
5.2 Letter of Credit Fees. (A) The Borrowers agree to pay to the
Administrative Agent for the account of the Lenders, pro rata according to
their respective Percentages, a letter of credit fee for each Letter of
Credit in an amount equal to a rate per annum equal to 3.00% with respect
to Letters of Credit in effect from time to time of the Stated Amount of
such Letter of Credit (in each case as computed for the actual number of
days elapsed on the basis of a year of 360 days); provided that, the rate
applicable to each Letter of Credit shall be increased by 2.00% at any time
that an Event of Default exists. Such letter of credit fee shall be payable
in arrears on the last Business Day of each calendar quarter and on the
Revolver Termination Date for the period from the date of the issuance of
each Letter of Credit to the date such payment is due or, if earlier, the
date on which such Letter of Credit expired or was terminated.
(B) In addition to the fees set forth in Section 5.2(A), with respect
to each Letter of Credit, the Borrowers agree to pay to the Issuing Bank,
for its own account, (i) such fees and expenses as the Issuing Bank
customarily requires in connection with the issuance, negotiation,
processing or administration of letters of credit in similar situations and
(ii) a letter of credit fronting fee of 0.125% of the Stated Amount of each
Letter of Credit upon issuance thereof.
5.3 Amendment and Restatement Fees. The Borrowers will pay a fee for
amending and restating this Agreement to the Administrative Agent for the
account of each Lender in an amount equal to $250,000 on or before June 30,
2003.
SECTION 6. REDUCTION AND TERMINATION
OF THE COMMITMENTS; PREPAYMENTS.
-------------------------------
6.1 Reduction or Termination of the Revolving Commitment Amount.
-----------------------------------------------------------
(A) Voluntary Reduction or Termination of the Revolving Commitment
Amount. Upon at least five Business Days' prior written notice to the
Administrative Agent, the Borrowers may at any time in whole permanently
terminate, or from time to time in part permanently reduce, the Revolving
Commitment Amount. Each such reduction of the Revolving Commitment Amount
shall be in the principal amount of $1,000,000 or any higher integral
multiple of $100,000. Simultaneously with each reduction or termination of
the Revolving Commitment Amount, the Borrowers shall pay to the
Administrative Agent for the account of each Lender the Commitment Fee
accrued on the amount of the Revolving Commitment Amount of such Lender so
terminated or reduced through the date thereof.
(B) Mandatory Reductions of Revolving Commitment Amount. On the date
of any Mandatory Prepayment Event, the Revolving Commitment Amount shall be
permanently reduced by an amount (if any) equal to the Designated Proceeds
of such Mandatory Prepayment Event over the amount (if any) applied to
prepay Term Loans pursuant to Section 6.2(B).
(C) All Reductions of the Commitments. All reductions of the Revolving
Commitment Amount shall reduce the Commitments pro rata among the Lenders
according to their respective Percentages.
6.2 Prepayments.
-----------
(A) Voluntary Prepayments. The Borrowers may from time to time prepay
the Loans in whole or in part; provided that, the Borrowers shall give the
Administrative Agent (which shall promptly advise each Lender) notice
thereof not later than 11:00 A.M., Chicago time, on the day of such
prepayment (which shall be a Business Day), specifying the Loans to be
prepaid and the date and amount of prepayment. Any such partial prepayment
shall be in an amount equal to $500,000 or a higher integral multiple of
$100,000.
(B) Mandatory Prepayments.
(i) The Borrowers shall make a prepayment of the Loans upon the
occurrence of any of the following (each a "Mandatory Prepayment Event") at
the following times and in the following amounts (such applicable amounts
being referred to as "Designated Proceeds"):
(a) Concurrently with the receipt by the Parent or any
Subsidiary of any Net Cash Proceeds from any Asset Sale in
excess of $10,000 for any individual Asset Sale and $50,000
for all Asset Sales on or after the Closing Date (other than
Asset Sales permitted by clauses (i), (ii), (iii), (iv), and
(viii) of Section 10.11(A)), unless the Parent or a
Subsidiary delivers a Reinvestment Notice to the
Administrative Agent in respect of such Net Cash Proceeds,
in an amount equal to 100% of such Net Cash Proceeds;
provided, however, that, notwithstanding the foregoing, the
Borrowers shall make a prepayment of the Loans on each
Reinvestment Prepayment Date in an amount equal to 100% of
the Reinvestment Prepayment Amount with respect to the
relevant Reinvestment Event.
(b) As soon as possible, but in any event no later than one
Business Day after the receipt by the Borrowers or any
Subsidiary of any Net Cash Proceeds from any issuance of any
other Debt of the Borrowers or any Subsidiary (excluding
Debt permitted by clauses (A) through (K) of Section 10.7),
in an amount equal to 100% of such Net Cash Proceeds.
(c) As soon as possible, but in any event no later than one
Business Day after the receipt by the Borrowers or any
Subsidiary of any Net Cash Proceeds from any issuance of
equity securities of the Borrowers or any Subsidiary
(including a Public Offering, but excluding (1) any issuance
of shares of capital stock pursuant to any employee or
director stock option program, benefit plan or compensation
program and (2) any issuance by a Subsidiary to the Parent
or another Subsidiary) in an amount equal to 50% of such Net
Cash Proceeds.
(d) As soon as possible, but in any event no later than one
Business Day after the receipt by the Borrowers or any
domestic Subsidiary of any funds repatriated to the Borrower
or such domestic Subsidiary by a non-domestic Subsidiary in
an amount equal to 100% of such repatriated funds.
(e) Immediately upon the receipt by any Credit Party, the full
amount of any and all payments in respect of tax refunds any
Credit Party receives.
All prepayments of the Loans pursuant to this Section 6.2(B)(i) shall
be applied first to the remaining installments of the Term Loans in the
inverse order of maturity until paid in full, second, to the balance of all
outstanding Revolving Loans until paid in full, and third, as cash
collateral as provided in Section 2.3(F).
To the extent any or all of the Net Cash Proceeds subject to clause
(a) of Section 6.2(B) attributable to Asset Sales by Non-United States
Subsidiaries are prohibited or delayed by applicable local law from being
repatriated to the United States, the portion of such Net Cash Proceeds so
affected shall not be required to be paid at the time provided above, and
shall be deposited in an escrow account under the control of the
Administrative Agent pursuant to the terms of an escrow agreement
satisfactory in form and substance to the Administrative Agent, until such
time as the applicable local law will permit repatriation to the United
States. If and when repatriation of any of such affected Net Cash Proceeds
is permitted under the applicable local law, such repatriation shall be
immediately effected and such repatriated Net Cash Proceeds will be applied
in the manner set forth in this Agreement.
(ii) If on any day the Revolver Outstandings exceed the lesser of (a)
the Borrowing Base and (b) Revolving Commitment Availability, the Borrowers
shall first immediately prepay Revolving Loans in an amount sufficient to
eliminate such excess, and second, cash collateralize the outstanding
Letters of Credit in an amount sufficient to eliminate such excess.
(iii) If on any day on which the Revolving Commitment Amount is
reduced pursuant to Section 6.1(B) the Revolver Outstandings exceed
Revolving Commitment Availability, the Borrowers shall first immediately
prepay Revolving Loans in an amount sufficient to eliminate such excess,
and second, cash collateralize the outstanding Letters of Credit in an
amount sufficient to eliminate such excess.
SECTION 7. MAKING AND PRORATION OF PAYMENTS; SETOFF; TAXES.
-----------------------------------------------
7.1 Making of Payments. All payments of principal of or interest on
the Notes, and of all Commitment Fees and Letter of Credit fees, shall be
made by the Borrowers to the Administrative Agent in immediately available
funds at the office specified by the Administrative Agent not later than
noon (Chicago, Illinois time) on the date due and funds received after that
time shall be deemed to have been received by the Administrative Agent on
the next following Business Day. The Administrative Agent shall promptly
but in no event less frequently than weekly remit to each Lender or other
holder of a Note its share of all such payments received in collected funds
by the Administrative Agent for the account of such Lender or holder. All
payments under Section 8.1 shall be made by the Borrowers directly to the
Lender entitled thereto.
7.2 Application of Certain Payments. Each repayment of principal of
the Revolving Loans and other Revolver Outstandings shall be first applied
to repay Revolving Loans then outstanding as the Borrowers shall direct by
notice received by the Administrative Agent on or before the date of such
payment or, in the absence of such notice, as the Administrative Agent
determines in its discretion until such Revolving Loans are paid in full,
and second, deposited in the Cash Collateral Account to cash collateralize
105% of the Stated Amount of the Letters of Credit then outstanding. Upon
the drawing of any Letter of Credit for which funds are on deposit in such
Cash Collateral Account, such funds shall be applied to reimburse the
Issuing Bank. Concurrently with each remittance to any Lender of its share
of any such payment, the Administrative Agent shall advise such Lender as
to the application of such payment.
7.3 Due Date Extension. If any payment of principal or interest with
respect to any of the Notes, or of Commitment Fees or Letter of Credit
fees, falls due on a day that is not a Business Day, then such due date
shall be extended to the immediately following Business Day and, in the
case of principal, additional interest shall accrue and be payable for the
period of any such extension.
7.4 Setoff. The Borrowers agree that the Agents and each Lender have
all rights of setoff and bankers' lien provided by applicable law, and in
addition thereto, the Borrowers agree that at any time any Event of Default
exists, the Administrative Agent and each Lender may apply to the payment
of any Obligations of the Borrowers, whether or not then due, any and all
balances, credits, deposits, accounts or moneys of the Borrowers then or
thereafter with the Administrative Agent or such Lender.
7.5 Proration of Payments. If any Lender shall obtain any payment or
other recovery (whether voluntary, involuntary, by application of offset or
otherwise, but excluding any payment pursuant to Section 8.7 or 15.8) on
account of principal of or interest on any Note (or on account of its
participation in any Letter of Credit) in excess of its pro rata share of
payments and other recoveries obtained by all Lenders on account of
principal of and interest on Notes (or such participation) then held by
them, such Lender shall purchase from the other Lenders such participations
in the Notes (or subparticipations in Letters of Credit) held by them as
shall be necessary to cause such purchasing Lender to share the excess
payment or other recovery ratably with each of them; provided that, if all
or any portion of the excess payment or other recovery is thereafter
recovered from such purchasing Lender, the purchase shall be rescinded and
the purchase price restored to the extent of such recovery.
7.6 Taxes. (A) All payments of principal of, and interest on, the
Loans and all other amounts payable hereunder shall be made free and clear
of and without deduction for any present or future income, excise, stamp or
franchise taxes and other taxes, fees, duties, withholdings or other
charges of any nature whatsoever imposed by any taxing authority, but
excluding net income taxes, franchise taxes imposed in lieu of net income
taxes, and branch profit taxes imposed on either Agent or any Lender as a
result of a present or former connection between such Agent or Lender and
the jurisdiction of the Governmental Authority imposing such tax or any
political subdivision or taxing authority thereof or therein (other than
any such connection arising solely from such Agent or Lender having
executed, delivered, or performed its obligations or received payment
under, or enforced, this Agreement or any other Loan Document). All
nonexcluded items identified in the preceding sentence are hereinafter
called "Taxes". If any withholding or deduction from any payment to be made
by the Borrowers hereunder is required in respect of any Taxes pursuant to
any applicable law, rule or regulation, then the Borrowers will:
(i) pay directly to the relevant authority the full amount required
to be so withheld or deducted;
(ii) promptly forward to the Administrative Agent an official
receipt or other documentation reasonably satisfactory to the
Administrative Agent evidencing such payment to such authority;
and
(iii) pay to the Administrative Agent for the account of the Lenders
such additional amount or amounts as is necessary to ensure
that the net amount actually received by each Lender will equal
the full amount such Lender would have received had no such
withholding or deduction been required.
Moreover, if any Taxes are directly asserted against the
Administrative Agent or any Lender with respect to any payment received by
the Administrative Agent or such Lender hereunder, the Administrative Agent
or such Lender may pay such Taxes and the Borrowers will promptly pay such
additional amounts (including any penalty, interest and expense) as is
necessary so that the net amount received by such Person after the payment
of such Taxes (including any Taxes on such additional amount) shall equal
the amount such Person would have received had such Taxes not been
asserted.
Notwithstanding the foregoing, the Borrowers shall not be required to
increase any such amounts payable to a Lender with respect to United States
withholding taxes (x) imposed on amounts payable to such Lender at the time
such Lender becomes a party to this Agreement or (y) imposed other than as
a result of a change in treaty, law or regulations (or the application or
interpretation thereof) after the date such Lender becomes a party to this
Agreement, except in both case (x) and (y) to the extent that such Lender's
assignor (if any) was entitled, at the time of assignment, to receive
additional amounts from Borrowers pursuant to this Section 7.6.
(B) If the Borrowers fail to pay any Taxes when due to the appropriate
taxing authority or fail to remit to the Administrative Agent, for the
account of the respective Lenders, the required receipts or other required
documentary evidence, the Borrowers shall indemnify the Lenders for any
incremental Taxes, interest or penalties that may become payable by any
Lender as a result of any such failure. For purposes of this Section 7.6, a
distribution hereunder by the Administrative Agent or any Lender to or for
the account of any Lender shall be deemed a payment by the Borrowers.
(C) Each Lender that (i) is not a United States person within the
meaning of Section 7701(a)(30) of the Code and (ii)(a) is a party hereto on
the Closing Date or (b) becomes an assignee of an interest under Section
15.8 of this Agreement after the Closing Date (unless such Lender was
already a Lender hereunder immediately prior to such assignment) shall
timely execute and deliver to the Borrowers and the Administrative Agent
one or more (as the Borrowers or the Administrative Agent may reasonably
request) United States Internal Revenue Service Form W-8ECI or Form W-8BEN
or successor forms or documents, appropriately completed, true and duly
executed, as may be applicable to establish that such Lender is exempt from
withholding or deduction of Taxes on payments by the Borrowers under this
Agreement. A Person that becomes a Participant shall timely execute and
deliver to the Lender from which the Participant purchased the
participating interest one or more (as the Lender from which the
Participant purchased the participating interest may reasonably request)
United States Internal Revenue Service Form W-8ECI or Form W-8BEN or
successor forms or documents, appropriately completed, true and duly
executed, as may be applicable to establish that such Participant is exempt
from withholding or deduction of Taxes. The Borrowers shall not be required
to pay additional amounts to any Lender pursuant to this Section 7.6 to the
extent that the obligation to pay such additional amounts would not have
arisen but for the failure of such Lender or a Participant to comply with
this paragraph. Each such non-United States Lender shall promptly notify
the Borrowers at any time such Lender determines that it can no longer
provide any previously delivered certificate to the Borrowers (or any other
form of certification adopted by the United States taxing authorities for
such purpose).
(D) The obligations of the Borrowers under this Section 7.6 are
subject to the limitation set out in Section 15.8(A). The agreements in
this Section 7.6 shall survive the termination of this Agreement and the
payments of the Loans and all other amounts payable hereunder.
SECTION 8. INCREASED COSTS.
---------------
8.1 Increased Costs. If any Lender shall reasonably determine that the
adoption or phase-in of any applicable law, rule or regulation regarding
capital adequacy, or any change therein, or any change in the
interpretation or administration thereof by any Governmental Authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender or any Person
controlling such Lender with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such authority,
central bank or comparable agency, has or would have the effect of reducing
the rate of return on such Lender's or such controlling Person's capital as
a consequence of such Lender's obligations under this Agreement or under
any Letter of Credit to a level below that which such Lender or such
controlling Person could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or such controlling
Person's policies with respect to capital adequacy) by an amount deemed by
such Lender or such controlling Person to be material, then from time to
time, upon ten days' prior written notice by such Lender (which notice
shall be accompanied by a statement setting forth the basis for such demand
and a calculation of the amount thereof in reasonable detail, a copy of
which shall be furnished to the Administrative Agent), the Borrowers shall
pay to such Lender such additional amount or amounts as will compensate
such Lender or such controlling Person for such reduction, to the extent
that such Lender reasonably determines such increase in capital to be
allocable to the existence of such Lender's commitment under this
Agreement. A certificate as to such amounts submitted to the Borrowers by a
Lender is conclusive and binding for all purposes, absent manifest error.
8.2 Mitigation of Circumstances. Each Lender shall promptly notify the
Borrowers and the Administrative Agent of any event of which it has
knowledge that will result in, and will use reasonable commercial efforts
available to it (and not, in such Lender's sole judgment, otherwise
disadvantageous to such Lender) to mitigate or avoid, any obligation by the
Borrowers to pay any amount pursuant to Section 7.6 or 8.1 (and, if any
Lender has given notice of any such event described in above and thereafter
such event ceases to exist, such Lender shall promptly so notify the
Borrowers and the Administrative Agent). Without limiting the foregoing,
each Lender will designate a different funding office if such designation
will avoid (or reduce the cost to the Borrowers of) any event described in
the preceding sentence and such designation will not, in such Lender's sole
judgment, be otherwise disadvantageous to such Lender.
8.3 Conclusiveness of Statements; Survival of Provisions.
Determinations and statements of any Lender pursuant to Section 8.1 shall
be conclusive absent manifest error. Lenders may use reasonable averaging
and attribution methods in determining compensation under Sections 8.1, and
the provisions of such Sections shall survive repayment of the Loans,
cancellation of the Notes, cancellation or expiration of the Letters of
Credit and any termination of this Agreement.
SECTION 9. REPRESENTATIONS AND WARRANTIES.
------------------------------
To induce the Agents and the Lenders to enter into this Agreement and
to induce the Lenders to make Loans and issue and purchase participations
in Letters of Credit under this Agreement, the Credit Parties represent and
warrant to the Agents and the Lenders that:
9.1 Organization. Each Credit Party and each Subsidiary is an
organization duly formed, validly existing and in good standing under the
laws of the jurisdiction of its organization. The Credit Parties and each
Subsidiary are in good standing and are duly qualified to do business in
each jurisdiction where, because of the nature of their activities or
properties, such qualification is required, except for such jurisdictions
where the failure to so qualify would not have a Material Adverse Effect.
Each Credit Party and each Subsidiary has the requisite power and authority
to own or hold under lease the properties it purports to own or hold under
lease, to transact the business it transacts and proposes to transact, to
execute and deliver this Agreement and the other Loan Documents and to
perform the provisions of this Agreement and the other Loan Documents to
which it is a party.
9.2 Authorization; No Conflict. Each Credit Party is duly authorized
to execute and deliver each Loan Document to which it is a party, each
Borrower is duly authorized to borrow monies under this Agreement and each
Credit Party is duly authorized to perform its Obligations under each Loan
Document to which it is a party. The execution, delivery and performance by
each Credit Party of this Agreement and each Loan Document to which it is a
party, and the borrowings by each Borrower under this Agreement, do not and
will not (a) require any consent or approval of any governmental agency or
authority that has not been obtained or (b) conflict with (i) any provision
of law, (ii) each Credit Party's articles or certificate of incorporation
and bylaws or similar organizational documents, (iii) any material
agreement (other than Section 8 of the Pledge Agreement) binding upon each
Credit Party or its properties or assets or (iv) any court or
administrative order or decree applicable to such Credit Party, and do not
and will not require, or result in, the creation or imposition of any Lien
on any asset of the Credit Parties (other than Liens in favor of the
Administrative Agent created pursuant to the Collateral Documents).
9.3 Validity and Binding Nature. Each of this Agreement and each other
Loan Document to which any Credit Party is a party is the legal, valid and
binding obligation of such Credit Party, enforceable against such Credit
Party in accordance with its terms, subject to bankruptcy, insolvency and
similar laws affecting the enforceability of creditors' rights generally
and to general principles of equity.
9.4 Financial Statements. The Parent has delivered to the Agents and
each Lender that is a party to this Agreement on the Closing Date copies of
the consolidated financial statements listed on Schedule 9.4 of the Parent
and its Subsidiaries. All of such financial statements (including in each
case the related schedules and notes) fairly present in all material
respects the consolidated financial condition of the Parent and its
Subsidiaries as of the dates thereof and the consolidated results of
operations and the consolidated cash flows of the Parent and its
Subsidiaries for the periods covered thereby. As of the Closing Date,
except as set forth on Schedule 9.4, no Credit Party or any Subsidiary has
any liability or unusual or long-term commitment that could reasonably be
expected to have a Material Adverse Effect and that is not reflected in the
financial statements referred to above.
9.5 No Material Adverse Change. Since November 6, 2002 and except as
disclosed in reports of the Parent on Form 10K, Form 10Q and Form 8K filed
with the SEC prior to the date hereof, there has been no material adverse
change in the condition (financial or otherwise), operations, assets,
business, properties or prospects of the Parent and its Subsidiaries taken
as a whole.
9.6 Litigation and Contingent Liabilities. Except as disclosed in
Schedule 9.6, no litigation (including derivative actions), arbitration
proceeding or governmental investigation or proceeding is pending or, to
any Credit Party's or any Subsidiary's knowledge, threatened against any of
the Credit Parties or any Subsidiary that could reasonably be expected to
have a Material Adverse Effect. As of the Closing Date, other than any
liability incident to such litigation or proceedings, none of the Credit
Parties or any Subsidiary has any material contingent liabilities not
listed on Schedule 9.6 or permitted by Section 10.7.
9.7 Ownership of Properties; Liens. Except as permitted under Section
10.8, each of the Credit Parties and each Subsidiary owns good title to all
of its personal properties and assets, tangible and intangible, of any
nature whatsoever (including patents, trademarks, trade names, service
marks and copyrights), free and clear of all Liens.
9.8 Subsidiaries. As of the Closing Date, no Credit Party owns a
Subsidiary, whether directly or indirectly, other than as listed on
Schedule 9.8. Each of the Persons listed on Schedule 9.8 (which may be
supplemented by the Credit Parties from time to time to reflect the
addition or elimination of Subsidiaries as permitted by this Agreement) is
a direct or indirect Subsidiary of a Borrower, and the percentage of each
such Subsidiary's equity securities owned by a Borrower is set forth on
Schedule 9.8.
9.9 Pension and Welfare Plans. (A) Except as set forth on Schedule
9.9, during the twelve-consecutive-month period prior to the date of the
execution and delivery of this Agreement or the making of any Loan or the
issuance of any Letter of Credit under this Agreement, (i) no steps have
been taken to terminate any Pension Plan, except with respect to the
Pension Plan for employees of the XXXX Division of UNR Industries, Inc. and
UNR-XXXX, Inc. (the "XXXX Pension Plan"); provided that, as of the date of
any such termination, the XXXX Pension Plan satisfies the requirements for
a standard termination under Section 4041(b) of ERISA, and no other Credit
Party is required to make any contribution to the XXXX Pension Plan
pursuant to such termination and (ii) no contribution failure has occurred
with respect to any Pension Plan sufficient to give rise to a Lien under
Section 302(f) of ERISA. Except as set forth on Schedule 9.9, no condition
exists or event or transaction has occurred with respect to any Pension
Plan that could result in the incurrence by any Credit Party of any
material liability for a violation of applicable law, material fine or
material penalty. No Credit Party has any contingent liability with respect
to any post-retirement benefit under a Welfare Plan, other than liability
for continuation coverage described in Part 6 of Subtitle B of Title I of
ERISA in excess of $10,000,000.
(B) Except as set forth on Schedule 9.9, to the extent that liability
in excess of $300,000 in the aggregate would result to one or more Credit
Parties, (i) all contributions (if any) have been made to any Multiemployer
Pension Plan that are required to be made by any Credit Party or any other
member of the Controlled Group under the terms of the plan or of any
collective bargaining agreement or by applicable law; (ii) neither any
Credit Party nor any member of the Controlled Group has withdrawn or
partially withdrawn from any Multiemployer Pension Plan, incurred any
withdrawal liability that is unpaid on the date of the making of any Loan
or the issuance of any Letter of Credit under this Agreement with respect
to any such plan, received written notice of any claim or demand for
withdrawal liability or partial withdrawal liability from any such plan,
and no condition has occurred that, if continued, might reasonably be
expected to result in a withdrawal or partial withdrawal from any such
plan; and (iii) neither any Credit Party nor any member of the Controlled
Group has received any written notice that any Multiemployer Pension Plan
is in reorganization, that increased contributions may be required to avoid
a reduction in plan benefits or the imposition of any excise tax, that any
such plan is or has been funded at a rate less than that required under
Section 412 of the Code, that any such plan is or may be terminated, or
that any such plan is or may become insolvent. Each Pension Plan intended
to be qualified pursuant to Section 401(a) of the Code has received a
favorable determination from the Internal Revenue Service as to its
qualified status covering such matters for which the applicable remedial
amendment period has expired.
9.10 Investment Company Act. No Credit Party or any Subsidiary is an
"investment company" or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940.
9.11 Public Utility Holding Company Act. No Credit Party or any
Subsidiary is a "holding company", or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company", within the meaning of the Public Utility
Holding Company Act of 1935.
9.12 Regulation U. No Credit Party is engaged principally, or as one
of its important activities, in the business of extending credit for the
purpose of purchasing or carrying Margin Stock.
9.13 Taxes. Each Credit Party and each Subsidiary has filed, has
caused to be filed or has been included in all material tax returns
(Federal, state, local, foreign and other material tax returns) required to
be filed by or on behalf of each of the Credit Parties and each Subsidiary
and has paid or caused to be paid all material taxes and other governmental
charges due for the periods covered thereby, including interest and
penalties, other than any such taxes or charges (a) for which a timely and
proper extension has been obtained or (b) that are being contested in good
faith and by proper proceedings and as to which appropriate reserves (in
accordance with GAAP) are being maintained, unless and until any Lien
resulting therefrom attaches to its property and becomes enforceable
against its other creditors. Either the federal income tax returns of each
of the Credit Parties and each Subsidiary have been audited by the Internal
Revenue Service and such audits have been closed or the period during which
any assessments may be made by the Internal Revenue Service has expired
without waiver or extension, for all years up to and including Fiscal Year
1998. The reserves for taxes reflected on the balance sheets of each of the
Credit Parties and each Subsidiary submitted to the Agents in accordance
with the terms of Section 10.1 will be adequate in amount in accordance
with GAAP for the payment of all liabilities for all taxes (whether or not
disputed) of each of the Credit Parties and each Subsidiary accrued through
the date of such balance sheet.
9.14 [Intentionally omitted].
9.15 Environmental Matters. Except as set forth on Schedule 9.15:
(A) No Violations. Neither any Credit Party nor any Subsidiary, nor
(to any Credit Party's or any Subsidiary's knowledge) any operator of the
Borrowers' or any Credit Party's properties, is in violation, or alleged
violation, of any judgment, decree, order, law, permit, license, rule or
regulation pertaining to environmental matters, including those arising
under RCRA, CERCLA, the Superfund Amendments and Reauthorization Act of
1986 or any other Environmental Law that (i) individually or in the
aggregate requires expenditures in any Fiscal Year of $500,000 or more by
the Credit Parties in penalties and/or for investigative, removal or
remedial actions or (ii) individually or in the aggregate otherwise could
reasonably be expected to have a Material Adverse Effect.
(B) Notices. Neither any Credit Party nor any Subsidiary has received
written notice from any third party, including any Federal, state or local
governmental authority (i) that any one of them has been identified by the
U.S. Environmental Protection Agency as a potentially responsible party
under CERCLA with respect to a site listed on the National Priorities List,
40 C.F.R. Part 300 Appendix B, (ii) that any Credit Party or any Subsidiary
is liable or potentially liable for any hazardous waste, as defined by 42
U.S.C. ss.6903(5), any hazardous substance as defined by 42 U.S.C.
ss.9601(14), any pollutant or contaminant as defined by 42 U.S.C.
ss.9601(33) or any toxic substance, oil or hazardous material or other
chemical or substance regulated by any Environmental Law (all of the
foregoing, "Hazardous Substances"), at any site at which a Federal, state
or local agency or other third party has conducted a remedial
investigation, removal or other response action pursuant to any
Environmental Law, (iii) that any Credit Party or any Subsidiary must
conduct a remedial investigation, removal, response action or other
activity pursuant to any Environmental Law or (iv) of any Environmental
Claim, except for such notices as set forth in clauses (i) through (iv)
above that, individually or in the aggregate, could reasonably be expected
to result in liability in any Fiscal Year to the Credit Parties or any
Subsidiary in excess of $500,000.
(C) Handling of Hazardous Substances. (i) No Credit Party or any
Subsidiary has used, nor (to any Credit Party's or any Subsidiary's
knowledge) has any operator of any Real Property of any Credit Party or
Subsidiary used, any portion of the Real Property or other assets of any
Credit Party or any Subsidiary for the handling, processing, storage or
disposal of Hazardous Substances except in accordance in all material
respects with applicable Environmental Laws and no underground tank or
other underground storage receptacle for Hazardous Substances is located on
such properties, (ii) in the course of any activities conducted by any
Credit Party, any Subsidiary or (to any Credit Party's or any Subsidiary's
knowledge) the operators of any Real Property of any Credit Party or any
Subsidiary, no Hazardous Substances have been generated or are being used
on such properties except in accordance in all material respects with
applicable Environmental Laws, (iii) no Credit Party or any Subsidiary has
caused, nor (to any Credit Party's or any Subsidiary's knowledge) has any
operator of any Real Property of any Credit Party or any Subsidiary caused
any Releases or threatened Releases of Hazardous Substances on, upon, into
or from any Real Property or other assets of any Credit Party or any
Subsidiary, which Releases singly or in the aggregate could reasonably be
expected to have a material adverse effect on the value of such Real
Property or assets, (iv) to any Credit Party's or any Subsidiary's
knowledge, there have been no Releases of Hazardous Substances on, upon,
under or from any real property in the vicinity of the Real Property or
other assets of any Credit Party or any Subsidiary that through migration
of soil or groundwater contamination may have come to be located on, and
that could reasonably be expected to have a material adverse effect on the
value of, the Real Property or other assets of any Credit Party or any
Subsidiary and (v) any Hazardous Substances generated by the Credit Parties
and their Subsidiaries have been transported offsite only by properly
licensed carriers and delivered only to licensed treatment or disposal
facilities.
9.16 Insurance. Set forth on Schedule 9.16 is a complete and accurate
summary of the property and casualty insurance program of the Credit
Parties and their Subsidiaries as of the Closing Date (including the names
of all insurers, policy numbers, expiration dates, amounts and types of
coverage, annual premiums, exclusions, deductibles, self-insured retention
and a description in reasonable detail of any self-insurance program,
retrospective rating plan, fronting arrangement or other risk assumption
arrangement involving the Credit Parties and their Subsidiaries).
9.17 Real Property. The legal descriptions contained on Schedule
9.17(A) correctly describe all of the Land that is a part of the Real
Property owned by a Credit Party as of the Closing Date. Each Credit Party
has good and marketable title in fee simple (or its equivalent under
applicable law) to its Real Property free from all Liens, claims and
encumbrances except for the security interests granted to the
Administrative Agent under this Agreement and the other Collateral
Documents and except for Liens permitted under Section 10.8. As of the
Closing Date, the leases listed on Schedule 9.17(B) are all leases (as
amended as of the Closing Date) under which a Credit Party has a leasehold
interest in its leased real property and under which such Credit Party is
not in default, nor has any event occurred that, with the lapse of time or
notice or both, would constitute a default by such Credit Party under any
of such leases of such Credit Party's leased real property except for such
defaults that could reasonably not be expected to have a Material Adverse
Effect. Each Credit Party owns a valid and subsisting leasehold estate in
its leased real property free from all Liens, claims and encumbrances
except for the security interests granted to the Administrative Agent under
this Agreement and the Collateral Documents and except for Liens permitted
under Section 10.8.
9.18 Information. No statement or information contained in this
Agreement, any other Loan Document, or any other document, certificate or
statement furnished by or on behalf of any Credit Party to the Agents or
the Lenders, or any of them, for use in connection with the transactions
contemplated by this Agreement or the other Loan Documents, contained or
contains any untrue statement of a material fact or omitted or omits to
state a material fact necessary to make the statements contained herein or
therein not misleading (it being recognized by the Agents and the Lenders
that any projections and forecasts provided by the Credit Parties are based
on good faith estimates and assumptions believed by the Credit Parties to
be reasonable as of the date of the applicable projections or assumptions
and that actual results during the period or periods covered by any such
projections and forecasts may differ from projected or forecasted results).
9.19 Intellectual Property. The Credit Parties and each of their
Subsidiaries own and possess or have a license or other right to use all
such patents, patent rights, trademarks, trademark rights, trade names,
trade name rights, service marks, service xxxx rights and copyrights as are
necessary for the conduct of the business of the Credit Parties and their
Subsidiaries as conducted on the Closing Date, without any infringement
upon rights of others that could reasonably be expected to have a Material
Adverse Effect.
9.20 Labor Matters. Except as set forth on Schedule 9.20, as of the
Closing Date neither any Credit Party nor any Subsidiary is subject to any
labor or collective bargaining agreement. There are no existing or
threatened strikes, lockouts or other labor disputes involving any Credit
Party or any Subsidiary that singly or in the aggregate could reasonably be
expected to have a Material Adverse Effect. Hours worked by and payment
made to employees of the Credit Parties and their Subsidiaries are not in
violation of the Fair Labor Standards Act or any other applicable law, rule
or regulation dealing with such matters. The consummation of the
transactions contemplated by this Agreement will not give rise to any right
of termination or right of renegotiation on the part of any union under any
collective bargaining agreement by which any Credit Party or any Subsidiary
is bound.
9.21 Burdensome Obligations. Neither the Credit Parties nor any
Subsidiary is a party to any agreement or contract or subject to any
corporate or partnership restriction that could reasonably be expected to
have a Material Adverse Effect.
9.22 No Default. No Default or Event of Default exists or would result
from the incurring by the Credit Parties of any Debt under this Agreement
or under any other Loan Document. No material agreement or other material
instrument to which any Credit Party or any Subsidiary is a party has been
terminated or breached by such Credit Party or such Subsidiary if such
termination or breach could reasonably be expected to have a Material
Adverse Effect.
9.23 Securities Matters. The making of the Loans, the application of
the proceeds and repayment thereof by the Borrowers and the consummation of
the transactions contemplated by this Agreement, the other Loan Documents
and the Asset Purchase Documents will not violate any provision of any
federal or state securities statutes, rules or regulations, or any order
issued by the SEC (collectively, the "Securities Laws").
9.24 Use of Proceeds. The Borrowers will apply the proceeds of the
Loans and Letters of Credit under this Agreement for their working capital
requirements and general corporate purposes (which shall not include
purchasing or carrying Margin Stock within the meaning of Regulation U).
9.25 Compliance with Laws. No Credit Party or Subsidiary is, to the
best of its knowledge, in violation of any law, rule or regulation or in
default with respect to any judgment, writ, injunction or decree of any
Governmental Authority the violation of which, or a default with respect to
which, could reasonably be expected to have a Material Adverse Effect.
9.26 Security Interests. Each of the Collateral Documents has created,
as security for the obligations hereunder, a continuing, valid and
enforceable security interest in and Lien on all of the Collateral in favor
of the Administrative Agent for the benefit of the Lenders and, except with
respect to motor vehicles and Collateral permitted to be located outside of
the United States pursuant to Section 10.29, such security interest is
perfected and ranks superior to and prior to the rights of all third
parties and is subject to no other Liens, other than Liens permitted under
Section 10.8 of this Agreement. Other than motor vehicle title
registration, no filings or recordings are required to perfect within the
United States the security interests created under any Collateral Document
except for filings or recordings required in connection with any such
Collateral Document that shall have been made on or about the Closing Date.
9.27 Governmental Approvals. The making of the Loans, the application
of the proceeds and repayment thereof by the Borrowers and the consummation
of the transactions contemplated by this Agreement, the other Loan
Documents and the Asset Purchase Documents do not require any material
consent or approval of, registration or filing with, or any other material
action by, any Governmental Authority, except those set forth on Schedule
9.27 and filings necessary to perfect Liens created under the Loan
Documents.
9.28 Liens. Except for Liens existing on the Closing Date as reflected
on Schedule 10.8, there are no Liens of any nature whatsoever on any assets
of the Credit Parties or any of their respective Subsidiaries other than
(a) Liens permitted under Section 10.8 of this Agreement and (b) Liens in
favor of the Administrative Agent and the Lenders. Neither any Credit Party
nor any Subsidiary is a party to any contract, agreement, lease or
instrument the performance of which, either unconditionally or upon the
happening of an event, will result in or require the creation of a Lien on
any assets of a Credit Party or a Subsidiary or otherwise violate this
Agreement.
9.29 Asset Purchase Documents.
(A) The Borrowers have heretofore furnished the Agents substantially
final copies of the Asset Purchase Documents. The copies of the Asset
Purchase Documents furnished to the Agents prior to or on the Closing Date
will be or are, as the case may be, fully executed, true, correct and
complete.
(B) Each of the Credit Parties and, to the Credit Parties' knowledge,
prior to the consummation of the Asset Purchase Agreement each other party
to the Asset Purchase Documents, has duly taken all necessary corporate,
partnership or other organizational action to authorize the execution,
delivery and performance of the Asset Purchase Documents and the
consummation of transactions contemplated thereby.
(C) The actions contemplated by the Asset Purchase Agreement will
comply with all applicable legal requirements, and all necessary
governmental, regulatory, creditor, shareholder, partner and other material
consents, approvals and exemptions required to be obtained by the Credit
Parties and, to the Credit Parties' knowledge, each other party to the
Asset Purchase Documents in connection with the Asset Purchase Agreement
will be, prior to consummation of the Asset Purchase Agreement, duly
obtained and will be in full force and effect. All applicable waiting
periods with respect to the Asset Purchase Agreement will have expired, as
of the consummation of the Asset Purchase Agreement, without any action
being taken by any competent governmental authority that restrains,
prevents or imposes material adverse conditions upon the consummation of
the Asset Purchase Agreement.
(D) The execution and delivery of the Asset Purchase Documents do not
and will not, and the consummation of the Asset Purchase Agreement will
not, violate any statute or regulation of the United States (including,
without limitation, any Securities Laws) or of any state or other
applicable jurisdiction, or any order, judgment or decree of any court or
governmental body binding on the Credit Parties or, to the Credit Parties'
knowledge, any other party to the Asset Purchase Documents, or result in a
breach of, or constitute a default under, any material agreement,
indenture, instrument, judgment, order or decree to which any Credit Party
is a party or by which any Credit Party is bound or, to the Credit Parties'
knowledge, to which any other party to the Asset Purchase Documents is a
party or by which any such party is bound.
(E) No statement or representation made in the Asset Purchase
Documents by any Credit Party or, to any Credit Party's knowledge, any
other Person, contains any untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary in order
to make the statements made therein, in light of the circumstances under
which they are made, not misleading.
9.30 Tax Refunds. On the Closing Date, the Credit Parties in good
faith believe that the Credit Parties' sale of the assets pursuant to the
Asset Purchase Agreement, together with other Tax losses sustained by the
Credit Parties, will result in Tax losses sufficient to generate income Tax
refunds in an aggregate amount of approximately $24,000,000 by means of a
carryback of such losses from the Credit Parties' 2002 income Tax years to
their earlier income Tax years. No Credit Party is a party to any action or
proceeding, nor to the best of any Credit Party's knowledge, is any such
action or proceeding contemplated or threatened, for the assessment or
collection of any Tax, and no deficiency notices or reports have been
received by any Credit Party in respect of any Tax that, in either case,
could reduce the Tax refund to which such Credit Party is entitled. For the
purposes of this Section 9.30, "Tax" or "Taxes" means all net income, gross
income, gross receipts, sales, use, ad valorem, transfer, franchise,
profits, license, withholding, payroll, employment, excise, severance,
stamp, occupation, premium, property or windfall profits taxes, customs
duties or other taxes, fees, assessments or charges of any kind whatsoever,
together with any interest and any penalties, additions to tax or
additional amounts imposed by any taxing authority (domestic or foreign).
9.31 Survival of Warranties. All representations contained in this
Agreement and the other Loan Documents survive the execution and delivery
of this Agreement.
SECTION 10. COVENANTS.
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Until the expiration or termination of the Commitments and thereafter
until all Obligations of the Borrowers are repaid in full and all Letters
of Credit have been terminated, the Credit Parties agree that, unless at
any time the Required Lenders shall otherwise expressly consent in writing,
the Credit Parties will:
10.1 Reports, Certificates and Other Information. Furnish to the
Administrative Agent and each Lender:
(A) Annual Report. Promptly when available and in any event within
105 days after the close of each Fiscal Year: (i) a Form 10-K;
(ii) a copy of the annual audit report of the Parent and its
Subsidiaries for such Fiscal Year, including therein consolidated
audited balance sheets of the Parent and its Subsidiaries as of
the end of such Fiscal Year and consolidated audited statements
of earnings and cash flow of the Parent and their Subsidiaries
for such Fiscal Year certified without qualification as to the
scope of audit or as to the status of the Parent and its
Subsidiaries as a going concern by independent auditors of
nationally recognized standing selected by the Parent and
reasonably acceptable to the Required Lenders (it being
acknowledged and agreed that any of the Big Four shall be
acceptable to the Lenders), together with (a) a written statement
from such accountants to the effect that in making the
examination necessary for the signing of such annual audit report
by such accountants, nothing came to their attention that caused
them to believe that a Default or an Event of Default has
occurred and is continuing or, if something has come to their
attention that caused them to believe that a Default or an Event
of Default has occurred and is continuing under any such
provision, describing such noncompliance in reasonable detail and
(b) a comparison with the previous Fiscal Year and a comparison
with the budget for such Fiscal Year; and (iii) consolidating
balance sheets of the Parent and its Subsidiaries as of the end
of such Fiscal Year and a consolidating statement of earnings for
the Parent and its Subsidiaries for such Fiscal Year, certified
by a Responsible Officer of the Parent.
(B) Quarterly Reports. Promptly when available and in any event
within 50 days after the end of each Fiscal Quarter (except the
last Fiscal Quarter) of each Fiscal Year, a Form 10-Q and
consolidating and consolidated balance sheets of the Parent and
its Subsidiaries as of the end of such Fiscal Quarter, together
with consolidating and consolidated statements of earnings and a
consolidating and consolidated statement of cash flows for such
Fiscal Quarter and for the period beginning with the first day of
such Fiscal Year and ending on the last day of such Fiscal
Quarter, together with a comparison with the corresponding period
of the previous Fiscal Year, certified by a Responsible Officer
of the Parent.
(C) Monthly Reports. Promptly when available and in any event within
30 days after the end of each month of each Fiscal Year, a
consolidated statement of operations for such month in form
satisfactory to the Agents and certified by a Responsible Officer
of the Parent.
(D) Compliance Certificates. Contemporaneously with the furnishing of
a copy of each annual audit report pursuant to Section 10.1(A)
and each set of quarterly statements pursuant to Section 10.1(B),
a duly completed compliance certificate in the form of Exhibit B,
with appropriate insertions, dated the date of such annual report
or such quarterly statements and signed by a Responsible Officer
of the Parent, containing evidence of compliance with the
covenants contained in Sections 10.7, 10.9 and 10.10 of this
Agreement, and to the effect that such officer has not become
aware of any Default or Event of Default that has occurred and is
continuing or, if there is any such event, describing it and the
steps, if any, being taken to cure it.
(E) Notice of Default, Litigation and ERISA Matters. Promptly upon
becoming aware of any of the following, written notice describing
the same and the steps being taken by the Credit Party affected
thereby with respect thereto:
(i) the occurrence of a Default or Event of Default;
(ii) any litigation, arbitration or governmental investigation
or proceeding not previously disclosed by such Credit
Party to the Lenders that has been instituted or, to the
knowledge of such Credit Party, is threatened against such
Credit Party or any Subsidiary or to which any of the
properties of any thereof is subject that could reasonably
be expected to have a Material Adverse Effect;
(iii) (a) the institution of any steps by any member of the
Controlled Group or any other Person to terminate any
Pension Plan, except with respect to the XXXX Pension
Plan; provided that, as of the date of any such
termination, the XXXX Pension Plan satisfies the
requirements for a standard termination under Section
4041(b) of ERISA, and no other Credit Party is required to
make any contribution to the XXXX Pension Plan pursuant to
such termination, (b) the failure of any member of the
Controlled Group to make a required contribution to any
Pension Plan (if such failure is sufficient to give rise
to a Lien under Section 302(f) of ERISA) or to any
Multiemployer Pension Plan, (c) the taking of any action
with respect to a Pension Plan that could or does result
in the requirement that any Credit Party furnish a bond or
other security to the PBGC or such Pension Plan, (d) the
occurrence of any event with respect to any Pension Plan
or Multiemployer Pension Plan that could or does result in
the incurrence by any member of the Controlled Group of
any material liability for a violation of applicable law,
material fine or material penalty (including any claim or
demand for withdrawal liability or partial withdrawal from
any Multiemployer Pension Plan), (e) the amendment by any
Credit Party of any Welfare Plan that provides
post-retirement health or medical benefit that results in
any material increase in the contingent liability of any
Credit Party with respect to any post-retirement Welfare
Plan benefit or (f) to the extent that liability in excess
of $300,000 in the aggregate would result to one or more
Credit Parties, any written notice that any Multiemployer
Pension Plan is in reorganization, that materially
increased contributions may be required to avoid a
reduction in plan benefits or the imposition of an excise
tax, that any such plan is or has been funded at a rate
less than that required under Section 412 of the Code,
that any such plan is or may be terminated, or that any
such plan is or may become insolvent;
(iv) any cancellation or material change in any insurance
maintained by any Credit Party or any Subsidiary;
(v) any event (including (a) any violation of any
Environmental Law or the assertion of any Environmental
Claim or (b) the enactment or effectiveness of any law,
rule or regulation) that could reasonably be expected to
have a Material Adverse Effect; or
(vi) any setoff, claims, withholdings or other defenses to
which any material portion of the Collateral granted under
the Collateral Documents, or the Administrative Agent's
rights with respect to the Collateral granted under the
Collateral Documents, are subject.
(F) Borrowing Base Certificates. On the later of (i) Monday and (ii)
the first Business Day of each week, a Borrowing Base
Certificate, in form and substance reasonably satisfactory to the
Agents, dated as of the Friday of the immediately preceding week
and executed by a Responsible Officer of the Parent on behalf of
the Borrowers (provided that (a) the Parent may deliver a
Borrowing Base Certificate more frequently if it chooses and (b)
at any time an Event of Default exists, the Agents may require
the Parent to deliver Borrowing Base Certificates more
frequently).
(G) Management Reports. Promptly upon receipt thereof, copies of all
detailed financial and management reports submitted to the Parent
by independent auditors in connection with each annual or interim
audit made by such auditors of the books of the Parent and its
Subsidiaries.
(H) Projections and Budgets. As soon as practicable, and in any event
within 45 days after the commencement of each Fiscal Year,
financial projections for the Parent and its Subsidiaries for
such Fiscal Year (including an operating budget and a cash flow
budget) prepared in a manner consistent with those projections
delivered by the Parent to the Lenders prior to the Closing Date
or otherwise in a manner reasonably satisfactory to the Agents,
accompanied by a certificate of a Responsible Officer of the
Parent on behalf of the Borrowers to the effect that (i) such
projections were prepared by the Borrowers in good faith, (ii)
the Parent has a reasonable basis for the assumptions contained
in such projections and (iii) such projections have been prepared
in accordance with such assumptions.
(I) SEC Documents. Promptly upon the filing or sending thereof,
copies of all regular, periodic or special reports of the Parent
and its Subsidiaries filed with the SEC; copies of all
registration statements of the Parent and its Subsidiaries filed
with the SEC (other than on Form S-8); and copies of all proxy
statements or other communications made to security holders
generally.
(J) Cash Flow Projections. On or before January 17, 2003, and on or
before the first day of each calendar month thereafter, a 13-week
cash flow projection for the Parent and its Subsidiaries, in form
and substance reasonably satisfactory to the Administrative
Agent, prepared with the assistance of Xxxxxxxxx Consulting and
accompanied by a certificate of a Responsible Officer of the
Parent on behalf of the Borrowers to the effect that (i) such
projections were prepared by the Borrowers in good faith, (ii)
the Parent has a reasonable basis for the assumptions contained
in such projections and (iii) such projections have been prepared
in accordance with such assumptions. Notwithstanding the
foregoing, the Credit Parties will furnish to the Administrative
Agent and each Lender, upon the reasonable request of the
Administrative Agent, updated or revised financial statements
required above upon any material change in condition (financial
or otherwise) of the Credit Parties taken as a whole.
(K) Other Information. From time to time such other information
concerning the Parent and its Subsidiaries as any Lender or
either Agent may reasonably request.
10.2 Books, Records and Inspections. Keep, and cause each Subsidiary
to keep, their books and records in accordance with sound business
practices sufficient to allow the preparation of financial statements in
accordance with GAAP. The Credit Parties shall permit, and cause each
Subsidiary to permit, at any reasonable time and with reasonable notice (or
at any time without notice if an Event of Default exists), any Lender or
either Agent or any representative thereof to visit any or all of their
offices, to discuss their financial matters with their officers and their
independent auditors (and the Credit Parties authorize such independent
auditors to discuss such financial matters with any Lender or either Agent
or any representative thereof), and to examine (and, at the expense of the
Credit Parties, photocopy extracts from) any of the Credit Parties' books
or other records. The Credit Parties shall permit, and cause each
Subsidiary to permit, at any reasonable time and with reasonable notice (or
at any time without notice if an Event of Default exists) the Agents, their
agents, employees or any representative thereof to, on behalf of themselves
and the Lenders (a) inspect the properties and operations of the Credit
Parties and of each Subsidiary, (b) inspect the Inventory and other
tangible assets of the Credit Parties and each Subsidiary, (c) perform
appraisals of the Equipment and Real Property of the Credit Parties and
each Subsidiary, (d) otherwise conduct a collateral field audit of all
Collateral under the Collateral Documents and (e) inspect, audit, check and
make copies of and extracts from the books, records, computer data and
records, computer programs, journals, orders, receipts, correspondence and
other data relating to Inventory, Accounts Receivable and any other
Collateral; provided that, all such inspections, appraisals or audits by
the Agents set forth in clauses (a) through (e) above shall be (x) made no
more frequently than once a year unless an Event of Default has occurred
and is continuing and (y) at the Credit Parties' sole cost and expense.
10.3 Maintenance of Property; Insurance; Condemnation. (A) Keep, and
cause each Subsidiary to keep, all property useful and necessary in the
business of the Credit Parties or such Subsidiary in good working order and
condition, ordinary wear and tear excepted.
(B) Maintain, and cause each Subsidiary to maintain, with responsible
insurance companies, such insurance as may be required by any law or
governmental regulation or court decree or order applicable to it and such
other insurance, to such extent and against such hazards and liabilities
(including business interruption insurance), as is customarily maintained
by companies similarly situated; and, upon request of the Administrative
Agent or any Lender, furnish to the Administrative Agent or such Lender a
certificate setting forth in reasonable detail the nature and extent of all
insurance maintained by the Credit Parties and their Subsidiaries. The
Credit Parties shall cause each issuer of an insurance policy to provide
the Administrative Agent with an endorsement (i) containing a lender loss
payable endorsement to the Administrative Agent with respect to each policy
of property or casualty insurance and naming the Administrative Agent as an
additional insured with respect to each policy of insurance for liability
for personal injury and property damage, (ii) providing that 30 days'
notice will be given to the Administrative Agent prior to any cancellation
of, material reduction or change in coverage provided by or other material
modification to such policy and (iii) reasonably acceptable in all other
respects to the Agents. The Credit Parties shall execute and deliver to the
Administrative Agent a collateral assignment, in form and substance
satisfactory to the Agents, of each business interruption insurance policy
maintained by the Credit Parties. The Credit Parties will direct all
insurers under such policies of insurance to pay all proceeds of insurance
policies in excess of $500,000 directly to Administrative Agent for the
benefit of the Lenders to be applied as follows: (x) so long as no Event of
Default has occurred and is continuing or a prepayment has become due under
Section 6.2(B), the Administrative Agent will promptly comply with the
Credit Parties' requests as to such proceeds and (y) at any time an Event
of Default has occurred and is continuing or a prepayment is or will become
due under Section 6.2(B), the Administrative Agent may apply such proceeds
to the payment of the Obligations and liabilities of the Credit Parties
then due and payable to the Administrative Agent or the Lenders under this
Agreement or the other Loan Documents; provided that, if such proceeds are
paid to the Administrative Agent solely as a result of a prepayment
required under Section 6.2(B), then the Administrative Agent will apply
such proceeds to the payment of the Obligations in the manner prescribed in
Section 6.2(B) only to the extent of such prepayment and the Administrative
Agent will promptly comply with the Credit Parties' requests as to any and
all remaining proceeds.
(C) UNLESS THE CREDIT PARTIES PROVIDE THE ADMINISTRATIVE AGENT WITH
EVIDENCE OF THE INSURANCE COVERAGE REQUIRED BY THIS AGREEMENT, THE
ADMINISTRATIVE AGENT MAY PURCHASE INSURANCE AT THE CREDIT PARTIES' EXPENSE
TO PROTECT THE AGENTS' AND THE LENDERS' INTERESTS IN THE COLLATERAL UNDER
THE COLLATERAL DOCUMENTS. THIS INSURANCE MAY, BUT NEED NOT, PROTECT THE
CREDIT PARTIES' INTERESTS. THE COVERAGE THAT THE ADMINISTRATIVE AGENT
PURCHASES MAY NOT PAY ANY CLAIM THAT IS MADE AGAINST THE CREDIT PARTIES IN
CONNECTION WITH THE COLLATERAL UNDER THE COLLATERAL DOCUMENTS. THE CREDIT
PARTIES MAY LATER CANCEL ANY INSURANCE PURCHASED BY THE ADMINISTRATIVE
AGENT, BUT ONLY AFTER PROVIDING THE ADMINISTRATIVE AGENT WITH EVIDENCE THAT
THE CREDIT PARTIES HAVE OBTAINED INSURANCE AS REQUIRED BY THIS AGREEMENT.
IF THE ADMINISTRATIVE AGENT PURCHASES INSURANCE FOR THE COLLATERAL UNDER
THE COLLATERAL DOCUMENTS, THE CREDIT PARTIES WILL BE RESPONSIBLE FOR THE
COSTS OF THAT INSURANCE, INCLUDING INTEREST AND ANY OTHER CHARGES THAT MAY
BE IMPOSED WITH THE PLACEMENT OF THE INSURANCE, UNTIL THE EFFECTIVE DATE OF
THE CANCELLATION OR EXPIRATION OF THE INSURANCE. THE COSTS OF THE INSURANCE
MAY BE ADDED TO THE PRINCIPAL AMOUNT OF THE LOANS OWING UNDER THIS
AGREEMENT. THE COSTS OF THE INSURANCE MAY BE MORE THAN THE COST OF THE
INSURANCE THE CREDIT PARTIES MAY BE ABLE TO OBTAIN ON THEIR OWN.
(D) In the event of any taking of the Real Property or any part of the
Real Property, in or by condemnation or other eminent domain proceedings
under any law, general or special, or by reason of the temporary
requisition of the use or occupancy of the Credit Parties' Real Property or
any part of the Real Property, by any governmental authority, civil or
military (each, a "Taking"), the Credit Parties will give the
Administrative Agent prompt notice of such Taking or commencement of
proceedings for such Taking. All proceeds and any award or payment in
respect of any Taking constitute proceeds of Asset Sales and are subject to
the provisions of Section 6.2(B)(i)(a).
10.4 Compliance with Laws; Payment of Taxes and Liabilities. (a)
Comply, and cause each Subsidiary to comply, in all material respects with
all applicable laws (including Environmental Laws), rules, regulations,
decrees, orders, judgments, licenses and permits, except where failure to
comply could not reasonably be expected to have a Material Adverse Effect
and (b) pay, prior to delinquency, all taxes and other governmental charges
against it or any of their property, as well as claims of any kind that, if
unpaid, might become a Lien on any of their property; provided that, the
foregoing shall not require the Credit Parties or any Subsidiary to pay any
such tax, claim or charge so long as it shall contest the validity thereof
in good faith by appropriate proceedings and shall set aside on their books
adequate reserves with respect thereto in accordance with GAAP.
10.5 Maintenance of Existence. Maintain and preserve, and cause each
Subsidiary to maintain and preserve, (a) their existence and good standing
in the jurisdiction of their organization and (b) their qualification and
good standing as a foreign corporation in each jurisdiction where the
nature of their business makes such qualification necessary, except in
those instances in which the failure to maintain such existence or be
qualified or in good standing could not reasonably be expected to have a
Material Adverse Effect.
10.6 Financial Covenants.
(A) EBITDA. Not permit cumulative EBITDA of the Parent and its
Subsidiaries from January 1, 2003, determined on a consolidated basis, to
be less than: (i) $400,000 as of the end of the four consecutive months
ending April 30, 2003; (ii) $800,000 as of the end of the five consecutive
months ending May 31, 2003; (iii) $1,000,000 as of the end of the six
consecutive months ending June 30, 2003; (iv) $1,400,000 as of the end of
the seven consecutive months ending July 31, 2003; (v) $1,800,000 as of the
end of the eight consecutive months ending August 31, 2003; (vi) $2,400,000
as of the end of the nine consecutive months ending September 30, 2003;
(vii) $2,850,000 as of the end of the ten consecutive months ending October
31, 2003; (viii) $3,050,000 as of the end of the eleven consecutive months
ending November 30, 2003; and (ix) $3,000,000 as of the end of the twelve
consecutive months ending December 31, 2003.
(B) Cumulative Sales. Not permit at the end of any calendar month
commencing April 2003 the aggregate consolidated cumulative 2003
year-to-date sales of the Parent and its Subsidiaries, based on the cash
flow projections of the Credit Parties delivered to the Lenders pursuant to
Section 10.1(J), to be less than 70% of the cumulative 2003 year-to-date
amount shown for such month on the relevant cash flow projections provided
to the Lenders pursuant to Section 10.1(J).
(C) Cumulative Collections. Not permit at the end of any calendar
month commencing April 2003 the aggregate consolidated cumulative 2003
year-to-date collections on the Notes from any source whatsoever made by
the Borrowers to the Administrative Agent, based on the financial budget of
the Credit Parties delivered to the Lenders, to be less than 70% of the
cumulative 2003 year-to-date amount shown for such month on the relevant
cash flow projections provided to the Lenders pursuant to Section 10.1(J).
(D) Loan Disbursements by the Lenders. Not permit at the end of any
calendar month commencing April 2003 the aggregate consolidated cumulative
2003 year-to-date Loan disbursements to the Borrowers by the Lenders, based
on the financial budget of the Credit Parties delivered to the Lenders, to
exceed 140% of the cumulative 2003 year-to-date amount shown for such month
on the relevant cash flow projections provided to the Lenders pursuant to
Section 10.1(J).
10.7 Limitations on Debt. Not, and not permit any Subsidiary to,
create, incur, assume or suffer to exist any Debt, except:
(A) the Obligations;
(B) Debt secured by Liens permitted by Section 10.8(C) or (D), and
refinancings of any such Debt so long as the terms applicable to
such refinanced Debt are no less favorable to the applicable
Credit Party than the terms in effect immediately prior to such
refinancing;
(C) Capital Leases relating to (i) an enterprise-wide enterprise
resource planning software installation and (ii) the
consolidation of the Credit Parties' engineering and design
software systems, not exceeding a combined aggregate principal
amount of $100,000;
(D) Debt of a Credit Party owed to a Credit Party;
(E) Debt of Subsidiaries that are not Credit Parties owed to a Credit
Party or another Subsidiary in connection with advances made to
such Subsidiary pursuant to Section 10.20(D);
(F) Rate Management Obligations incurred for bona fide hedging
operations and not for speculation;
(G) Suretyship Liabilities not to exceed $250,000 at any one time
outstanding;
(H) Debt listed on Schedule 10.7 and any extension, renewal or
refinancing thereof so long as the principal amount thereof is
not increased; and
(I) Attributable Debt in an amount not to exceed an aggregate
outstanding amount of $250,000 for the Parent and its
Subsidiaries at any time.
10.8 Liens. Not, and not permit any Subsidiary to, create or permit to
exist any Lien on any of their real or personal properties, assets or
rights of any nature (whether now owned or hereafter acquired), except:
(A) Liens for taxes or other governmental charges (including without
limitation customs duties) not at the time delinquent or
thereafter payable without penalty or being contested in good
faith by appropriate proceedings and, in each case, for which it
maintains adequate reserves in accordance with GAAP;
(B) (i) Liens of carriers, warehousemen, mechanics and materialmen
and other similar Liens imposed by law arising in the ordinary
course of business for sums not overdue or being contested in
good faith by appropriate proceedings, (ii) Liens incurred in
connection with worker's compensation, unemployment compensation
and other types of social security (excluding Liens arising under
ERISA) and (iii) Liens incurred in the ordinary course of
business or in connection with surety bonds, bids, performance
bonds and similar obligations;
(C) Liens identified on Schedule 10.8;
(D) subject to the limitation set forth in Section 10.7(B), (i) Liens
arising in connection with Capital Leases (and attaching only to
the property being leased), (ii) Liens existing on property at
the time of the acquisition thereof by the Borrowers (and not
created in contemplation of such acquisition) and (iii) Liens
that constitute purchase money security interests on any property
securing debt incurred for the purpose of financing all or any
part of the cost of acquiring such property; provided that, any
such Lien attaches to such property within 60 days of the
acquisition thereof and such Lien attaches solely to the property
so acquired;
(E) attachment, appeal bond, judgment and other similar Liens
individually or in the aggregate not exceeding $250,000
(exclusive of any amount covered by insurance as to which the
relevant insurance company has acknowledged coverage in writing);
provided that, the execution or other enforcement of such Liens
is effectively stayed and the claims secured thereby are being
actively contested in good faith and by appropriate proceedings;
(F) easements, rights of way, restrictions, minor defects or
irregularities in title and other similar Liens not interfering
in any material respect with the ordinary conduct of the business
of the Borrowers;
(G) Liens in favor of the Administrative Agent and the Lenders
arising under the Loan Documents; and
(H) the replacement, extension or renewal of any Lien permitted by
clause (C) above upon or in the same property theretofore subject
thereto arising out of the extension, renewal or replacement of
the Debt secured thereby (without increase in the amount
thereof).
10.9 Operating Leases. Not create, incur, assume or suffer to exist
any obligation as lessee for rental or hire of any real or personal
property, except (a) Operating Leases existing on the date of this
Agreement and any extensions, renewals, replacements or substitutions
thereof or (b) other Operating Leases if the aggregate amount of fixed
rentals under all such Operating Leases does not exceed $100,000 during any
Fiscal Year.
10.10 Restricted Payments. Not, and not permit any Subsidiary to, (a)
issue any equity securities of any Credit Party other than the Parent in an
offering of equity securities registered under the Securities Act of 1933,
(b) make any distribution (other than distributions payable in capital
stock or options, warrants, or other rights to purchase capital stock) to
any shareholder of the Parent in respect of capital stock of the Parent or
(c) purchase or redeem any of their equity interests or any warrants,
options or other rights in respect of such equity interests except upon
termination of employment, death or disability of employees and officers of
the Parent or another Credit Party. Notwithstanding the foregoing, (i) any
Credit Party or any Subsidiary may make dividends to or purchase or redeem
any equity interests held by any Credit Party and (ii) any Subsidiary that
is not a Credit Party may make dividends to or purchase or redeem any
equity interests held by any Credit Party or any Subsidiary.
10.11 Mergers, Consolidations, Sales. (A) Not, and not permit any
Subsidiary to, be a party to any merger or consolidation, or purchase or
otherwise acquire all or substantially all of the assets or any stock of
any class of, or any partnership or joint venture interest in, any other
Person, or be a party to any Asset Sale, except for:
(i) any such merger, consolidation, sale, transfer (upon voluntary
liquidation or otherwise), conveyance, lease or assignment of
or by any (a) Credit Party into, with or to any Credit Party,
(b) Subsidiary into, with or to any Credit Party if such Credit
Party shall be the continuing or surviving entity or (c) any
Subsidiary that is not a Credit Party with or into any other
Subsidiary;
(ii) sales of inventory in the ordinary course of business;
(iii) the pledge of Collateral pursuant to the Collateral Documents
and the incurrence of any Lien permitted by Section 10.8;
(iv) Asset Sales of worn out or obsolete property by any Subsidiary
in the ordinary course of business;
(v) Asset Sales by a Credit Party in which such Credit Party
substantially contemporaneously leases the transferred asset
back from the transferee, provided that, the Attributable Debt
in respect of any such Asset Sales is permitted under Section
10.7;
(vi) (a) the sale of the Parent's Casa Grande facility with the
prior written consent of the Agents, which consent shall not be
unreasonably withheld or delayed and (b) other Asset Sales for
which the sole consideration received is cash of assets with an
aggregate fair market value not exceeding $500,000 from and
after the Closing Date;
(vii) transfers resulting from any casualty or condemnation of
property with an aggregate fair market value of up to $250,000;
(viii) the making of Investments permitted by Section 10.20 and the
liquidation of Investments in Cash Equivalents in the ordinary
course of business; and
(ix) transfers of assets of any Credit Party pursuant to the Asset
Purchase Documents.
To the extent that the Required Lenders waive the provisions of this
Section 10.11 with respect to the sale or other disposition of any
Collateral, or any Collateral is sold or otherwise disposed of as permitted
by this Section 10.11, such Collateral shall be sold or otherwise disposed
of free and clear of the Lien created by the Collateral Documents and the
obligations of this Agreement and the Administrative Agent shall, at the
expense of the Borrowers, take such actions as are appropriate and
reasonably requested by the Borrowers in connection therewith.
(B) With respect to any new wholly owned Subsidiary (other than a
Non-United States Subsidiary) created or acquired after the Closing Date by
any Credit Party, the applicable Credit Party shall (i) cause such newly
created or acquired Subsidiary to execute and deliver to the Administrative
Agent a joinder to this Agreement, substantially in the form of Exhibit C,
the Pledge Agreement, the Security Agreement, and the Contribution and
Subordination Agreement and (ii) deliver promptly to the Administrative
Agent an amendment to the schedules to the Pledge Agreement and the
Security Agreement in form and substance reasonably satisfactory to the
Administrative Agent listing the shares of capital stock of such Subsidiary
held by such Credit Party and the certificates, if any, representing such
shares, together with undated stock powers, in blank, executed by a
Responsible Officer of such Credit Party. With respect to any new
Non-United States wholly owned Subsidiary created or acquired after the
Closing Date and held directly by any Credit Party formed in the United
States, the applicable Credit Party shall deliver promptly to the
Administrative Agent an amendment to the schedules to the Pledge Agreement
and the Security Agreement in form and substance reasonably satisfactory to
the Administrative Agent listing the shares of capital stock of such
Subsidiary held by such Credit Party and the certificates, if any,
representing such shares, together with undated stock powers, in blank,
executed by a Responsible Officer of such Credit Party.
10.12 Use of Proceeds. Use the proceeds of the Loans and Letters of
Credit solely for the purposes set forth in, or otherwise permitted by
Section 9.24 of this Agreement; and not use or permit any proceeds of any
Loan or Letter of Credit to be used, either directly or indirectly, for the
purpose, whether immediate, incidental or ultimate, of purchasing or
carrying any Margin Stock in violation of Regulation T, U and X of the
Board of Governors of the Federal Reserve System of the United States.
10.13 Further Assurances. Take, and cause each Subsidiary to take,
such actions as are necessary, or as the Administrative Agent or the
Required Lenders may reasonably request, from time to time (including the
execution and delivery of security agreements, pledge agreements, financing
statements and, in the case of any Subsidiary, guaranties, and other
documents, the filing or recording of any of the foregoing and the delivery
of stock certificates and other Collateral with respect to which perfection
is obtained by possession) to ensure that the Obligations of the Borrowers
under this Agreement and under the other Loan Documents are secured by
substantially all of the assets of each Credit Party.
10.14 Transactions with Affiliates. Except as set forth on Schedule
10.14, not, and not permit any Subsidiary to, enter into, or cause, suffer
or permit to exist any transaction, arrangement or contract with any of
their other Affiliates (other than Credit Parties) that is on terms that
are less favorable than are obtainable from any Person that is not one of
their Affiliates.
10.15 Employee Benefit Plans. Maintain, and cause each Subsidiary to
maintain, each Pension Plan in substantial compliance with all applicable
material requirements of law and regulations.
10.16 Environmental Matters. (A) If any Credit Party or any Subsidiary
becomes aware of any Release or Disposal of Hazardous Substances on any
Real Property or any other assets of any Credit Party or any Subsidiary,
the Credit Parties shall, or shall cause the applicable Subsidiary to,
cause the prompt containment, removal and/or remediation of such Hazardous
Substances to the extent necessary to comply in all material respects with
all Environmental Laws and to avoid a material decrease in the value of
such Real Property. Without limiting the generality of the foregoing, the
Credit Parties shall, or shall cause the applicable Subsidiary to, comply
in all material respects with any valid Federal or state judicial or
administrative order requiring the performance at any Real Property of the
Credit Parties of activities in response to the Release or threatened
Release of a Hazardous Substance, except to the extent that any Credit
Party or any Subsidiary is contesting in good faith any liability under, or
any applicable remedial standard under, applicable Environmental Law.
(B) To the extent that the transportation of "hazardous waste" as
defined by RCRA is permitted by this Agreement, the Borrowers shall
dispose, or shall cause the applicable Subsidiary to dispose, of such
hazardous waste only at licensed disposal facilities.
10.17 Unconditional Purchase Obligations. Not, and not permit any
Subsidiary to, enter into or be a party to any contract for the purchase of
materials, supplies or other property or services, if such contract
requires that payment be made by it regardless whether delivery is ever
made of such materials, supplies or other property or services.
10.18 Inconsistent Agreements. Not, and not permit any Subsidiary to,
enter into any agreement (other than Section 8 of the Pledge Agreement)
containing any provision that would (a) be violated or breached by any
borrowing of a Loan by the Borrowers under this Agreement or by the
performance by any Credit Party or any Subsidiary of any of its obligations
under this Agreement or under any other Loan Document, (b) prohibit the
Borrowers from granting to the Administrative Agent, for the benefit of the
Lenders, a Lien on any of their assets or (c) create or otherwise cause or
suffer to exist or become effective any encumbrance or restriction on the
ability of any Subsidiary to (i) pay dividends or make other distributions
on their capital stock owned by a Credit Party or any other Subsidiary, or
pay any Debt owed to the Borrowers or any other Subsidiary, (ii) make loans
or advances to the Credit Parties or (iii) transfer any of their assets or
properties to the Credit Parties.
10.19 Business Activities. Not, and not permit any Subsidiary to,
engage in any line of business other than the same general lines of
business as that presently conducted by it or other business activities
reasonably relating thereto.
10.20 Advances and Other Investments. Not, and not permit any
Subsidiary to, make, incur, assume or suffer to exist any Investment in any
other Person, except (without duplication) the following:
(A) Investments existing on the Closing Date as reflected on Schedule
10.20;
(B) contributions by a Credit Party to the capital of any other
Credit Party;
(C) Investments by a Credit Party or by any of the Subsidiaries in a
Credit Party through intercompany loans, advances or guaranties,
all to the extent permitted by Section 10.7;
(D) Suretyship Liabilities permitted by Section 10.7;
(E) Cash Equivalent Investments;
(F) bank deposits in the ordinary course of business; provided that,
the aggregate amount of all such deposits (excluding amounts in
payroll accounts or for accounts payable, in each case to the
extent that checks have been issued to third parties) that are
maintained with any bank other than a Lender shall not at any
time exceed $50,000;
(G) investments in securities of account debtors received pursuant to
any plan of reorganization or similar arrangement upon the
bankruptcy or insolvency of such account debtors;
(H) unsecured Debt of Credit Parties to Subsidiaries not exceeding an
aggregate outstanding principal amount of $250,000 and
subordinated to the Obligations on terms satisfactory to the
Agents; and
(I) other advances, loans or extensions of credit in the ordinary
course of business not to exceed $50,000.
provided that, no Investment otherwise permitted by clause (C) shall be
permitted to be made in any amount to the extent that such Investment is
not in the ordinary course of business if, immediately before or after
giving effect thereto, any Default or Event of Default has occurred and is
continuing.
10.21 Restriction of Amendments to Certain Documents. Not, and not
permit any Subsidiary to, permit the Certificate or Articles of
Incorporation, bylaws or other organizational document of any Credit Party
to be amended or modified in any way that could reasonably be expected to
have a Material Adverse Effect on the interests of the Lenders.
10.22 Fiscal Year. Not change their Fiscal Year.
10.23 Cancellation of Debt. Not, and not permit any Subsidiary to,
cancel any claim or debt owing to a Credit Party, except for reasonable
consideration or in the ordinary course of business and except for the
cancellation of debts or claims not to exceed $100,000 in any Fiscal Year.
10.24 Blocked Accounts. If any Credit Party maintains at a Person
other than the Administrative Agent a lock box or similar account to which
account debtors directly remit payments on Accounts Receivable or in which
a Credit Party deposits cash payments made for Inventory, the Credit
Parties will, upon the reasonable request of the Administrative Agent,
direct such Person to enter into an agreement with the Administrative
Agent, in form and substance satisfactory to the Agents, evidencing such
Person's agreement that, at any time after such Person is notified by the
Administrative Agent that an Event of Default has occurred and is
continuing, all payments made to such account are the sole and exclusive
property of the Administrative Agent for the benefit of the Lenders and
that such Person will wire or otherwise transfer funds deposited into such
account to the Administrative Agent.
10.25 Mortgaged Real Property. Provide the Administrative Agent with
each of the following with respect to each parcel of Mortgaged Real
Property, each duly executed and in form and substance satisfactory to the
Agents:
(A) a duly executed Mortgage in favor of the Administrative Agent for
the benefit of the Lenders providing for a fully perfected Lien,
in favor of the Administrative Agent, in all right, title and
interest of the applicable Credit Party in such Mortgaged Real
Property;
(B) an ALTA Loan Title Insurance Policy, issued by an insurer
acceptable to the Agents, insuring the Administrative Agent's
Lien on such Mortgaged Real Property and containing such
endorsements as the Administrative Agent may reasonably require
(it being understood that the amount of coverage (which amount
will not exceed the estimated fair market value of such Mortgaged
Real Property), exceptions to coverage and status of title set
forth in such policy shall be reasonably acceptable to the
Agents);
(C) copies of all documents of record concerning such Mortgaged Real
Property as shown on the commitment for the ALTA Loan Title
Insurance Policy referred to above;
(D) loss payable and/or additional insured endorsements to the
insurance policies required to be maintained with respect to such
Mortgaged Real Property by this Agreement, the applicable
Mortgage or any other Loan Document;
(E) a survey certified to the Administrative Agent meeting such
standards as the Agents may reasonably establish and otherwise
reasonably satisfactory to the Agents;
(F) a flood insurance policy concerning such Real Property,
reasonably satisfactory to the Agents, if required by the Flood
Disaster Protection Act of 1973; and
(G) such other documents as the Agents or any Lender may reasonably
request.
10.26 Guaranties and Other Liabilities. Not purchase or repurchase (or
agree, contingently or otherwise, so to do) the Debt of, or assume,
guarantee (directly or indirectly or by an instrument having the effect of
assuring another's payment or performance of any obligation or capability
of so doing, or otherwise), endorse or otherwise become liable, directly or
indirectly, in connection with the obligations, stock or dividends of any
Person, other than (a) for any guaranty of Debt or other obligations of any
Credit Party if such Credit Party could have incurred such Debt or
obligations under this Agreement, (b) by endorsement of negotiable
instruments for deposit or collection in the ordinary course of business
and (c) Suretyship Liabilities permitted under Section 10.7.
10.27 Prepayments. Not, and not permit any Subsidiary to, make or
commit to make, directly or indirectly, any voluntary payment, prepayment,
redemption, repurchase or defeasance of any Debt (other than Debt under the
Loan Documents) of any Credit Party or any Subsidiary, or set apart any sum
for the aforementioned reasons, if (a) a Default or Event of Default exists
or (b) such payment is prohibited by any applicable subordination
provisions.
10.28 Cash Concentration Account. Maintain the Borrowers' principal
cash concentration account with LaSalle or such other financial institution
reasonably acceptable to the Agents.
10.29 Location of Collateral. Except for trademarks created under the
laws of jurisdictions outside of the United States, not permit any
Collateral to be held, maintained, or otherwise located outside of the
United States.
10.30 Xxxxxxxxx Consulting. Cooperate, and cause each Subsidiary to
cooperate, with Xxxxxxxxx Consulting in its consulting services in
connection with the Credit Parties. The Credit Parties shall permit, and
shall cause each Subsidiary to permit, at any reasonable time and with
reasonable notice any representative of Xxxxxxxxx Consulting to visit any
or all of their offices, to discuss their financial matters with their
officers and their independent auditors (and the Credit Parties authorize
such independent auditors to discuss such financial matters with any other
representative of Xxxxxxxxx Consulting), and to examine (and, at the
expense of the Credit Parties, photocopy extracts from) any of the Credit
Parties book and records. The Credit Parties shall permit, and cause each
Subsidiary to permit, at any reasonable time and with reasonable notice any
representatives of Xxxxxxxxx Consulting, their agents, employees or any
representative thereof to, on behalf of Xxxxxxxxx Consulting, (a) inspect
the properties and operations of the Credit Parties and of each Subsidiary,
(b) inspect the Inventory and other tangible assets of the Credit Parties
and each Subsidiary and (c) inspect, audit, check and make copies of and
extracts from the books, records, computer data and records, computer
programs, journals, orders, receipts, correspondence and other data
relating to Inventory, Accounts Receivable and any other Collateral;
provided that, all such inspections, appraisals or audits by Xxxxxxxxx
Consulting set forth in clauses (a) through (c) above shall be at the
Credit Parties' sole cost and expense.
10.31 Tax Refund Claim; Proceeds of Tax Refund. (A) The Credit Parties
shall, as promptly as practicable after the close of the current tax year,
prepare and file all federal, state, local and any applicable foreign tax
returns together with any other documents or instruments necessary to
obtain any and all tax refunds to which the Credit Parties may be entitled.
Where a tax authority permits the filing of an accelerated or tentative
refund claim, the Credit Parties shall promptly file such claims.
(B) The Credit Parties shall pay over to the Administrative Agent for
application to the Credit Parties' outstanding unpaid Obligations the full
amount of any and all tax refunds, together with any interest thereon, upon
receipt thereof.
(C) If a tax authority later determines that a Credit Party was not
entitled to all or part of any tax refund described in clause (A) above,
neither the Administrative Agent nor the Lenders shall be obliged to return
any refund proceeds.
SECTION 11. EFFECTIVENESS; CONDITIONS OF LENDING.
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The obligation of each Lender to make its Loans and of the Issuing
Bank to issue Letters of Credit is subject to the following conditions
precedent:
11.1 Initial Credit Extension. The obligation of the Lenders to amend
and restate the Existing Credit Agreement and the Existing Loans pursuant
to this Agreement is, in addition to the conditions precedent specified in
Section 11.2, subject to the conditions precedent that (a) the
Administrative Agent has received evidence of payment by the Borrowers of
all accrued and unpaid fees, costs and expenses to the extent then due and
payable on the Closing Date, together with all fees and expenses of counsel
to the Agents to the extent invoiced prior to the Closing Date plus such
additional amounts of attorneys' fees and expenses as shall constitute the
Agents' reasonable estimate of such fees and expenses incurred or to be
incurred by the Agents through the closing proceedings (provided that, such
estimate shall not thereafter preclude final settling of accounts between
the Borrowers and the Agents), the sale of assets by the Borrowers pursuant
to the Asset Purchase Agreement shall have been consummated in accordance
with the terms thereof, and (c) the Agents have received all of the
following, each duly executed and dated the Closing Date (or such earlier
date as shall be satisfactory to the Agents), in form and substance
satisfactory to the Agents (and the date on which all such conditions
precedent have been satisfied or waived in writing by the Agents is called
the "Closing Date"):
(A) Loan Documents. Executed counterparts of this Agreement and the
Notes.
(B) Asset Purchase Documents. Executed counterparts of each of the
Asset Purchase Documents.
(C) Insurance. Evidence satisfactory to the Agents of the existence
of insurance required to be maintained pursuant to Section
10.3(B), together with evidence that the Administrative Agent has
been named as a lender's loss payee and an additional insured on
all related insurance policies and (ii) an assignment of business
interruption insurance as described in Section 10.3(B).
(D) Opinions of Counsel. Opinions of (i) Fried, Frank, Harris,
Xxxxxxx & Xxxxxxxx, and (ii) Xxxx Xxxxxxx Xxxxxxx & Xxxxx,
substantially in the form of Exhibit D.
(E) Resolutions. Certified copies of resolutions of the board of
directors of each of the Credit Parties authorizing the
execution, delivery and performance by each of the Credit Parties
of this Agreement, the Notes, the Asset Purchase Documents and
the other Loan Documents to which each of the Credit Parties is a
party.
(F) Consents. Certified copies of all documents evidencing any
necessary corporate action, consents and governmental approvals
(if any) required for the execution, delivery and performance by
the Credit Parties of the documents referred to in this Section
11 (other than such consents the failure to obtain could not,
individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect on the condition of the Credit
Parties), including evidence reasonably satisfactory to the
Agents that all necessary governmental, regulatory, creditor,
shareholder, partner and other material consents, approvals and
exemptions required to be obtained by the Credit Parties in
connection with the transactions contemplated by this Agreement
and the Asset Purchase Agreement have been duly obtained and are
in full force and effect.
(G) Incumbency and Signature Certificates. A certificate of the
secretary or an assistant secretary of each of the Credit Parties
as of the Closing Date certifying the names of the officer or
officers of such entity authorized to sign the Loan Documents and
the Asset Purchase Documents to which such entity is a party,
together with a sample of the true signature of each such officer
(it being understood that the Agents and each Lender may
conclusively rely on each such certificate until formally advised
by a like certificate of any changes therein).
(H) Constitutive Documents. Certified copies of each of the Credit
Parties' articles or certificate of incorporation and by-laws and
long form good standing certificates and, if applicable, tax
certificates, for all states in which each Credit Party is
qualified to do business.
(I) Closing Certificate. A certificate, substantially in the form of
Exhibit F, signed by a vice president of each of the Credit
Parties dated as of the Closing Date, affirming the matters set
forth in Section 11.2(A) as of the Closing Date.
(J) Borrowing Base Certificate. A Borrowing Base Certificate dated as
of the Closing Date based on data as of December 27, 2002.
(K) Mortgaged Real Property. For each parcel of Mortgaged Real
Property, the Administrative Agent shall have received the
following:
(i) an ALTA Loan Title Insurance Policy, issued by an insurer
acceptable to the Agents, insuring the Administrative
Agent's Lien on such Mortgaged Real Property and
containing such endorsements as the Administrative Agent
may reasonably require (it being understood that the
amount of coverage (which coverage will not exceed the
estimated fair market value of such Mortgaged Real
Property), exceptions to coverage and status of title set
forth in such policy shall be reasonably acceptable to the
Agents);
(ii) copies of all documents of record concerning such
Mortgaged Real Property as shown on the commitment for the
ALTA Loan Title Insurance Policy referred to above;
(iii) loss payable and/or additional insured endorsements to the
insurance policies required to be maintained with respect
to such Mortgaged Real Property by this Agreement, the
applicable Mortgage or any other Loan Document;
(iv) a survey certified to the Administrative Agent meeting
such standards as the Agents may reasonably establish and
otherwise reasonably satisfactory to the Agents; and
(v) a flood insurance policy concerning such Mortgaged Real
Property, reasonably satisfactory to the Agents, if
required by the Flood Disaster Protection Act of 1973.
(L) Financial Statements.
(i) Audited consolidated financial statements for the Parent
and its Subsidiaries for the Fiscal Years ended December
31, 2001, 2000 and 1999, and unaudited interim
consolidated financial statements for the Parent and its
Subsidiaries for each Fiscal Quarter ended after the
Fiscal Year ended December 31, 2000. Such financial
statements shall be materially consistent with the
information previously delivered to the Agents by the
Parent prior to the Closing Date.
(ii) The Agents shall have received from the Parent and its
Subsidiaries, in form and substance satisfactory to the
Agents, a pro forma consolidated balance sheet of the
Parent and its Subsidiaries dated as of the most recent
consolidated balance sheet delivered pursuant to clause
(i) above, giving effect to the transactions contemplated
by this Agreement and the Asset Purchase Documents. Such
balance sheets shall be materially consistent with the
information previously delivered to the Agents by the
Parent prior to the Closing Date.
(iii) The Agents shall have received from the Parent and its
Subsidiaries, in form and substance satisfactory to the
Agents, projected income statements, balance sheets and
cash flow statements of the Parent and its Subsidiaries on
a monthly basis for the period from January 2003 through
December 2003 giving effect to the transactions
contemplated by this Agreement.
(M) Debt. Evidence reasonably satisfactory to the Agents that the
Credit Parties have no Debt, except for debt permitted under
Section 10.7.
(N) Payment of Costs and Fees. The Administrative Agent has received
evidence of payment by the Borrowers of all accrued and unpaid
fees, costs and expenses to the extent then due and payable on
the Closing Date, together with all fees and expenses of counsel
to the Agents to the extent invoiced prior to the Closing Date
plus such additional amounts of attorneys' fees and expenses as
shall constitute the Agents' reasonable estimate of such fees and
expenses incurred or to be incurred by the Agents through the
closing proceedings (provided that, such estimate shall not
thereafter preclude final settling of accounts between the
Borrowers and the Agents).
(O) Other. Such other documents as the Agents or any Lender may
reasonably request.
11.2 Conditions. The obligation of each Lender to amend and restate
the Existing Credit Agreement and the Existing Loans pursuant to this
Agreement and to make any Revolving Loan and of the Issuing Bank to issue
each Letter of Credit is subject to the following further conditions
precedent that:
(A) Compliance with Warranties; No Default; No Material Adverse
Changes. Both before and after giving effect to any borrowing of
a Loan and the issuance of any Letter of Credit the following
statements shall be true and correct:
(i) the representations and warranties of the Credit Parties
set forth in this Agreement and the other Loan Documents
are true and correct in all material respects with the
same effect as if then made (except to the extent stated
to relate to a specific earlier date, in which case such
representations and warranties are true and correct as of
such earlier date);
(ii) no Default or Event of Default has occurred and is
continuing; and
(iii) no event has occurred that could reasonably be expected to
have a Material Adverse Effect.
(B) Confirmatory Certificate. If requested by the Agents or any
Lender, the Administrative Agent shall have received (in
sufficient counterparts to provide one to each Lender) a
certificate dated the date of such requested Loan or Letter of
Credit and signed by a duly authorized representative of the
Borrowers as to the matters set out in Section 11.2(A) (it being
understood that each request by the Borrowers for the making of a
Loan or the issuance of a Letter of Credit shall be deemed to
constitute a warranty by the Borrowers that the conditions
precedent set forth in Section 11.2(A) will be satisfied at the
time of the making of such Loan or the issuance of such Letter of
Credit), together with such other documents as the Agents or any
Lender may reasonably request in support thereof.
11.3 Postclosing Deliveries. The Credit Parties indicated to the
Lenders and the Agents prior to the Closing Date that the Credit Parties
would be unable to complete and deliver by the Closing Date the schedules
to this Agreement and various other documents required to be delivered on
the Closing Date. The Credit Parties requested the Lenders and the Agents
to close the transaction evidenced by this Agreement and to take the
actions contemplated hereunder notwithstanding the Credit Parties'
noncompliance with the conditions set forth in Section 11.1 through the
nondelivery of such required items. The Lenders and the Agents agreed to
this request provided that the Credit Parties execute and deliver to the
Lenders a Postclosing Matters Agreement dated the date hereof in form and
substance satisfactory to the Lenders and the Agents (the "Postclosing
Matters Agreement"). Accordingly, the Credit Parties and the Lenders agree
that, notwithstanding anything to the contrary contained in this Agreement,
any other Loan Document, the Existing Credit Agreement, or any Existing
Loan Document:
(A) The Credit Parties may deliver the items set forth in the
Postclosing Matters Agreement in accordance with the delivery requirements
set forth therein, and the Closing Date will be deemed to have occurred
upon the execution and delivery of the Postclosing Matters Agreement by the
Credit Parties and the satisfaction of the conditions set forth in Section
11.1 and 11.2 that are not subject to the Postclosing Matters Agreement.
(B) With respect to any representation and warranty of the Credit
Parties in this Agreement under which any exception or qualification may be
set forth on a schedule pursuant to the terms thereof, no Default or Event
of Default will occur or be deemed to occur, nor shall the condition
precedent set forth in Section 11.2(A)(i) fail to be satisfied or be deemed
to fail to be satisfied, during the period from the Closing Date until the
date on which the relevant schedule is required to be delivered under the
Postclosing Matters Agreement solely on account of such representation and
warranty being untrue because of the Credit Parties' nondelivery of such
schedule.
SECTION 12. EVENTS OF DEFAULT AND THEIR EFFECT.
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12.1 Events of Default. Each of the following constitutes an Event of
Default under this Agreement:
(A) Nonpayment of the Loans and other Obligations. Default in the
payment when due of the principal of any Loan or reimbursement
obligation with respect to any Letter of Credit; or default and
the continuance thereof for three Business Days in the payment
when due of any interest, fee or other amount payable by the
Borrowers under this Agreement or under any other Loan Document.
(B) Nonpayment of Other Debt. Any default shall occur under the terms
applicable to any Debt of the Borrowers or any Subsidiary in an
aggregate amount (for all such Debt so affected) exceeding
$500,000 and such default shall (i) consist of the failure to pay
such Debt when due, whether by acceleration or otherwise or (ii)
accelerate the maturity of such Debt or permit the holder or
holders thereof, or any trustee or agent for such holder or
holders, to cause such Debt to become due and payable prior to
its expressed maturity.
(C) Bankruptcy; Insolvency. Any Credit Party or any Subsidiary of a
Credit Party becomes insolvent or generally fails to pay, or
admits in writing its inability or refusal to pay, debts as they
become due; or any Credit Party or any Subsidiary of a Credit
Party applies for, consents to, or acquiesces in the appointment
of a trustee, receiver or other custodian for any Credit Party or
any Subsidiary of a Credit Party or any property thereof, or
makes a general assignment for the benefit of creditors; or, in
the absence of such application, consent or acquiescence, a
trustee, receiver or other custodian is appointed for any Credit
Party or any Subsidiary of a Credit Party or for a substantial
part of the property of any thereof and is not discharged within
45 days; or any bankruptcy, reorganization, debt arrangement, or
other case or proceeding under any bankruptcy or insolvency law,
or any dissolution or liquidation proceeding, is commenced in
respect of any Credit Party or any Subsidiary of a Credit Party,
and if such case or proceeding is not commenced by any Credit
Party or any such Subsidiary of a Credit Party, it is consented
to or acquiesced in by the Credit Party or such Subsidiary, or
remains for 45 days undismissed; or any Credit Party or any
Subsidiary of a Credit Party takes any action to authorize, or in
furtherance of, any of the foregoing.
(D) Noncompliance with Loan Documents. (i) Failure by the Credit
Parties to comply with or to perform any covenant set forth in
Sections 10.1(E), 10.5 through 10.14, 10.19 through 10.21, 10.25,
or 10.27 through 10.29 of this Agreement or other covenant,
agreement or provision set forth in any other Loan Document or
(ii) failure by the Credit Parties to comply with or to perform
any other covenant, agreement or provision set forth in this
Agreement (and not otherwise constituting an Event of Default
under any of the other provisions of this Section 12.1) and the
continuance of such failure described in this clause (ii) for 30
days after the earlier of (a) the date on which a Responsible
Officer of a Credit Party first learns of such failure and (b)
the date on which written notice thereof shall have been given to
the Parent by the Administrative Agent or any Lender.
(E) Representations and Warranties. Any representation or warranty
made by any Credit Party in this Agreement or any other Loan
Document is breached or is false or misleading in any material
respect, or any schedule, certificate, financial statement,
report, notice or other writing furnished by any Credit Party to
the Agents or any Lender in connection herewith is false or
misleading in any material respect on the date as of which the
facts therein set forth are stated or certified.
(F) Pension Plans. To the extent that liability in excess of $300,000
in the aggregate would result to one or more Credit Parties, (i)
institution of any steps by any Credit Party or any other Person
to terminate a Pension Plan if as a result of such termination
any Credit Party could be required to make a contribution to such
Pension Plan, or could incur a liability or obligation to such
Pension Plan or the PBGC, (ii) a contribution failure occurs with
respect to any Pension Plan sufficient to give rise to a Lien
under Section 302(f) of ERISA or (iii) there shall occur any
withdrawal or partial withdrawal from a Multiemployer Pension
Plan and the withdrawal liability (without unaccrued interest) to
Multiemployer Pension Plans as a result of such withdrawal
(including any outstanding withdrawal liability that the Credit
Parties and the Controlled Group have incurred on the date of
such withdrawal).
(G) Judgments. Final judgments that exceed an aggregate liability (to
the extent not paid or covered by insurance as to which the
relevant insurance company has acknowledged coverage in writing)
of $300,000 shall be rendered against any Credit Party or any of
its Subsidiaries and shall not have been discharged, vacated,
stayed or bonded pending appeal within 30 days after entry or
filing of such judgments.
(H) Invalidity of Collateral Documents. Any Collateral Document shall
cease to be in full force and effect with respect to the Credit
Parties; or the Credit Parties (or any Person by, through or on
behalf of the Credit Parties) shall contest in any manner the
validity, binding nature or enforceability of any Collateral
Document (it being understood that Collateral Access Agreements
are not Collateral Documents for purposes of this provision).
(I) Change in Control. A Change in Control occurs.
(J) Material Adverse Effect. The occurrence of any event having a
Material Adverse Effect.
(K) Invalidity of Security Interest. A Loan Document under which any
Credit Party purports to grant to the Administrative Agent a Lien
on any of its property shall for any reason fail or cease to
create a valid and perfected and, except to the extent permitted
by the terms of the Loan Documents, first priority Lien on or
security interest in any Collateral purported to be covered
thereby (other than Collateral permitted to be located outside of
the United States pursuant to Section 10.29).
(L) Nonpayment of Rate Management Obligation. Nonpayment by any
Borrower or any Subsidiary of any Rate Management Obligation when
due or the breach by any Borrower or any Subsidiary of any term,
provision or condition contained in any Rate Management
Transaction and such breach continues for more than the
applicable grace period, if any, contained therein.
(M) Invalidity of Guaranty. Any Guaranty contained in Section 14
shall fail to remain in full force or effect or any action shall
be taken to discontinue or to assert the invalidity or
unenforceability of any such Guaranty, or any Guarantor shall
fail to comply with any of the terms or provisions of any such
Guaranty to which it is a party, or any Guarantor shall deny that
it has any further liability under any Guaranty to which it is a
party, or shall give notice to such effect.
(N) ERISA. Any of the events described in Section 10.1(E)(iii) shall
have occurred; or there shall result from any such event or
events the imposition of a lien, the granting of a security
interest, or a liability or a material risk of incurring a
liability; and any such event or events or any such lien,
security interest or liability, individually or in the aggregate,
in the opinion of the Required Lenders, has had, or could
reasonably be expected to have, a Material Adverse Effect.
(O) Postclosing Matters Agreement. Any Credit Party shall fail to
deliver any item required by, or otherwise fail to comply with
any of the terms of, the Postclosing Matters Agreement.
(P) Asset Purchase Agreement. Any breach of Section 6.4 of the Asset
Purchase Agreement shall occur.
(Q) Income Tax Refund. The Parent shall either (i) file federal and
state income tax returns for its 2002 Tax year that claim
aggregate income Tax refunds of less than $18,000,000 or (ii)
file its annual report on Form 10K with the SEC, showing income
taxes receivable of less than $18,000,000.
12.2 Effect of Event of Default. If any Event of Default described in
Section 12.1(D) shall occur, the Commitments (if they have not theretofore
terminated) shall immediately terminate and the Notes and all other
Obligations shall become immediately due and payable and the Borrowers
shall become immediately obligated to deliver to the Administrative Agent
cash collateral in an amount equal to 105% of the outstanding face amount
of all Letters of Credit, all without presentment, demand, protest or
notice of any kind; and, if any other Event of Default shall occur and be
continuing, the Administrative Agent (upon written request of the Required
Lenders) shall declare the Commitments (if they have not theretofore
terminated) to be terminated or declare all Notes and all other Obligations
to be due and payable or demand that the Borrowers immediately deliver to
the Administrative Agent cash collateral in an amount equal to 105% of the
outstanding face amount of all Letters of Credit, whereupon the Commitments
(if they have not theretofore terminated) shall immediately terminate or
all Notes and all other Obligations shall become immediately due and
payable and the Borrowers shall immediately become obligated to deliver to
the Administrative Agent cash collateral in an amount equal to 105% of the
face amount of all Letters of Credit, all without presentment, demand,
protest or notice of any kind. The Administrative Agent shall promptly
advise the Parent of any such declaration, but failure to do so shall not
impair the effect of such declaration. Notwithstanding the foregoing, the
effect as an Event of Default of any event described in Section 12.1(A) or
Section 12.1(D) may be waived by the written concurrence of all of the
Lenders, and the effect as an Event of Default of any other event described
in this Section 12 may be waived by the written concurrence of the Required
Lenders. Any cash collateral delivered under this Agreement and the other
Loan Documents shall be held by the Administrative Agent (without liability
for interest thereon) and applied to obligations arising in connection with
any drawing under a Letter of Credit. After the expiration or termination
of all Letters of Credit, such cash collateral shall be applied by the
Administrative Agent to any remaining obligations hereunder and any excess
shall be delivered to the Borrowers or as a court of competent jurisdiction
may elect.
12.3 Application of Liquidation Proceeds. All monies received by the
Administrative Agent or any Lender from the exercise of remedies hereunder
or under the other Loan Documents or under any other documents relating to
this Agreement shall, unless otherwise required by the terms of the other
Loan Documents or by applicable law, be applied as follows:
(A) first, to the payment of all expenses (to the extent not paid by
the Borrowers) incurred by the Administrative Agent and the
Lenders in connection with the exercise of such remedies,
including, without limitation, all reasonable costs and expenses
of collection, attorneys' fees, court costs and any foreclosure
expenses;
(B) second, to the payment pro rata of interest then accrued on the
outstanding Loans;
(C) third, to the payment pro rata of any fees then accrued and
payable to the Administrative Agent, any Letter of Credit Issuer
or any Lender under this Agreement in respect of the Loans or the
any Letter of Credit outstanding;
(D) fourth, to the payment pro rata of (i) the principal balance then
owing on the outstanding Loans, (ii) the amounts then due under
Rate Management Obligations to creditors of the Borrowers or any
Subsidiary, subject to confirmation by the Administrative Agent
of any calculations of termination or other payment amounts being
made in accordance with normal industry practice, and (iii) the
Stated Amount of any Letters of Credit outstanding (to be held
and applied by the Administrative Agent as security for the
reimbursement obligations in respect thereof);
(E) fifth, to the payment to the Lenders of any amounts then accrued
and unpaid under Sections 7.6 and 8.1 hereof, and if such
proceeds are insufficient to pay such amounts in full, to the
payment of such amounts pro rata;
(F) sixth, to the payment pro rata of all other amounts owed by the
Borrowers to the Administrative Agent, to any Letter of Credit
Issuer or any Lender under this Agreement or any other Loan
Document, and to any counterparties under Rate Management
Obligations of the Borrowers or any Subsidiary, and if such
proceeds are insufficient to pay such amounts in full, to the
payment of such amounts pro rata; and
(G) finally, any remaining surplus after all of the Obligations have
been paid in full, to the Borrowers or to whomsoever shall be
lawfully entitled thereto.
SECTION 13. THE AGENTS.
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13.1 Appointment and Authorization. (A) Each Lender irrevocably
(subject to Section 13.9) appoints, designates and authorizes the
Administrative 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 Administrative Agent shall not have any duties or
responsibilities except those expressly set forth herein, nor shall the
Administrative 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 Administrative Agent.
(B) Each Lender irrevocably (subject to Section 13.9) appoints,
designates and authorizes the Syndication 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 Syndication Agent shall not
have any duties or responsibilities except those expressly set forth
herein, nor shall the Syndication 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 Syndication Agent.
(C) The Issuing Bank shall act on behalf of the Lenders with respect
to any Letters of Credit issued by it and the documents associated
therewith. The Issuing Bank shall have all of the benefits and immunities
(i) provided to the Administrative Agent in this Section 13 with respect to
any acts taken or omissions suffered by the Issuing Bank in connection with
Letters of Credit issued by it or proposed to be issued by it and the
applications and agreements for letters of credit pertaining to such
Letters of Credit as fully as if the term "Administrative Agent," as used
in this Section 13, included the Issuing Bank with respect to such acts or
omissions and (ii) as additionally provided in this Agreement with respect
to the Issuing Bank.
13.2 Delegation of Duties. The Administrative 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
Administrative Agent shall not be responsible for the negligence or
misconduct of any agent or attorney-in-fact that it selects with reasonable
care.
13.3 Liability of Administrative Agent. Neither the Administrative
Agent nor any of its directors, officers, employees or agents shall (a) 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 (b) be responsible in any manner to any of the
Lenders for any recital, statement, representation or warranty made by the
Credit Parties or Affiliate of the Credit Parties, 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 Administrative Agent under or in connection
with, this Agreement or any other Loan Document, or the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement
or any other Loan Document, or for any failure of the Credit Parties or any
other party to any Loan Document to perform their Obligations hereunder or
thereunder. The Administrative Agent shall not 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 Credit Parties or Affiliates.
13.4 Reliance by Administrative Agent. The Administrative 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 Credit
Parties), independent accountants and other experts selected by the
Administrative Agent. The Administrative 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 Required Lenders as it deems appropriate and, if it so requests,
confirmation from the Lenders of their obligation to indemnify the
Administrative Agent against any and all liability and expense that may be
incurred by it by reason of taking or continuing to take any such action.
The Administrative 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 Required Lenders
and such request and any action taken or failure to act pursuant thereto
shall be binding upon all of the Lenders.
13.5 Notice of Default. The Administrative 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 Administrative Agent for the
account of the Lenders, unless the Administrative Agent shall have received
written notice from a Lender or the Borrowers referring to this Agreement,
describing such Default or Event of Default and stating that such notice is
a "notice of default". The Administrative Agent will notify the Lender of
its receipt of any such notice within a reasonable time of such receipt.
The Administrative Agent shall take such action with respect to such
Default or Event of Default as may be requested by the Required Lenders in
accordance with Section 12; provided that, unless and until the
Administrative Agent has received any such request, the Administrative
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.
13.6 Credit Decision. Each Lender acknowledges that the Administrative
Agent has not made any representation or warranty to it, and that no act by
the Administrative Agent hereafter taken, including any review of the
affairs of the Parent and its Subsidiaries, shall be deemed to constitute
any representation or warranty by the Administrative Agent to any Lender.
Each Lender represents to the Administrative Agent that it has,
independently and without reliance upon the Administrative Agent 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 Parent and its Subsidiaries, and made its own decision to enter into
this Agreement and to extend credit to the Borrowers hereunder. Each Lender
also represents that it will, independently and without reliance upon the
Administrative Agent 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 Parent and its Subsidiaries. Except for notices,
reports and other documents expressly herein required to be furnished to
the Lenders by the Administrative Agent, the Administrative 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 or other condition or creditworthiness of the Parent and its
Subsidiaries that may come into the possession of the Administrative Agent.
13.7 Indemnification. Regardless whether the transactions contemplated
hereby are consummated, the Lenders shall indemnify upon demand the
Administrative Agent and its directors, officers, employees and agents (to
the extent not reimbursed by or on behalf of the Borrowers and without
limiting the obligation of the Borrowers to do so), pro rata, from and
against any and all Indemnified Liabilities; provided that, no Lender shall
be liable for any payment to the Administrative Agent of any portion of the
Indemnified Liabilities resulting solely from such Person's gross
negligence or willful misconduct. Without limitation of the foregoing, each
Lender shall reimburse the Agents upon demand for their ratable share of
any costs or out-of-pocket expenses (including reasonable fees of attorneys
for the Administrative Agent (including the allocable costs of internal
legal services and all disbursements of internal counsel)) incurred by the
Administrative Agent in connection with the preparation, execution,
delivery, 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 Administrative Agent is not reimbursed for such expenses by
or on behalf of the Borrowers. The undertaking in this Section 13.7 shall
survive repayment of the Loans, cancellation of the Notes, expiration or
termination of the Letters of Credit, any foreclosure under, or any
modification, release or discharge of, any or all of the Collateral
Documents, any termination of this Agreement and the resignation or
replacement of the Administrative Agent.
13.8 Agents in Individual Capacity. (A) LaSalle 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
Parent and its Subsidiaries and Affiliates as though LaSalle were not the
Administrative Agent or the Issuing Bank hereunder and without notice to or
consent of the Lenders. The Lenders acknowledge that, pursuant to such
activities, LaSalle or its Affiliates may receive information regarding the
Parent and its Subsidiaries or their Affiliates (including information that
may be subject to confidentiality obligations in favor of the Parent and
its Subsidiaries) and acknowledge that the Administrative Agent shall be
under no obligation to provide such information to them. With respect to
their Loans and Letters of Credit, LaSalle and its Affiliates shall have
the same rights and powers under this Agreement as any other Lender and may
exercise the same as though LaSalle were not the Administrative Agent or
the Issuing Bank, and the terms "Lender" and "Lenders" include LaSalle and
its Affiliates, to the extent applicable, in their individual capacities.
(B) NCB and its Affiliates may make loans to, accept deposits from,
acquire equity interests in and generally engage in any kind of banking,
trust, financial advisory, underwriting or other business with the Parent
and its Subsidiaries and Affiliates as though NCB were not the Syndication
Agent hereunder and without notice to or consent of the Lenders. The
Lenders acknowledge that, pursuant to such activities, NCB or its
Affiliates may receive information regarding the Parent and its
Subsidiaries or their Affiliates (including information that may be subject
to confidentiality obligations in favor of the Parent and its Subsidiaries)
and acknowledge that the Syndication Agent shall be under no obligation to
provide such information to them. With respect to their Loans, NCB and its
Affiliates shall have the same rights and powers under this Agreement as
any other Lender and may exercise the same as though NCB were not the
Syndication Agent, and the terms "Lender" and "Lenders" include NCB and its
Affiliates, to the extent applicable, in their individual capacities.
13.9 Successor Administrative Agent; Assignment of Agency. The
Administrative Agent may resign as Administrative Agent upon 30 days'
notice to the Lenders and the Parent. If the Administrative Agent resigns
under this Agreement, the Required Lenders shall, with (so long as no Event
of Default exists) the consent of the Borrowers (which consent shall not be
unreasonably withheld or delayed), appoint from among the Lenders a
successor agent for the Lenders. If no successor agent is appointed prior
to the effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Lenders and the
Borrowers, 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 Administrative
Agent and the term "Administrative Agent" shall mean such successor agent,
and the retiring Administrative Agent's appointment, powers and duties as
Administrative Agent shall be terminated. After any retiring Administrative
Agent's resignation hereunder as Administrative Agent, the provisions of
this Section 13 and Sections 15.5 and 15.15 shall inure to its benefit as
to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement. If no successor agent has
accepted appointment as Administrative Agent by the date that is 30 days
following a retiring Administrative Agent's notice of resignation, the
retiring Administrative Agent's resignation shall nevertheless thereupon
become effective and the Lenders shall perform all of the duties of the
Administrative Agent hereunder until such time, if any, as the Required
Lenders appoint a successor agent as provided for above.
13.10 Collateral Matters. The Lenders irrevocably authorize the
Administrative Agent, at its option and in its discretion, to release any
Lien granted to or held by the Administrative Agent under any Collateral
Document (a) upon termination of the Commitments and repayment in full of
all Loans and all other Obligations of the Borrowers hereunder and the
expiration or termination of all Letters of Credit, (b) constituting
property sold or to be sold or disposed of as part of or in connection with
any disposition permitted hereunder or (c) subject to Section 15.1, if
approved, authorized or ratified in writing by the Required Lenders. Upon
request by the Administrative Agent at any time, the Lenders will confirm
in writing the Administrative Agent's authority to release particular types
or items of Collateral pursuant to this Section 13.10.
SECTION 14. GUARANTY.
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14.1 Guaranty. To induce the Lenders to provide the credits described
herein and in consideration of benefits expected to accrue to the Borrowers
by reason of the Commitments and for other good and valuable consideration,
receipt of which is hereby acknowledged, each Guarantor hereby
unconditionally and irrevocably guarantees jointly and severally to the
Agents and the Lenders the due and punctual payment and performance of all
present and future indebtedness of the Borrowers evidenced by or arising
out of the Loan Documents, including, but not limited to, the due and
punctual payment of principal of and interest on the Notes, obligations
related to the Letter of Credit Applications, and the due and punctual
payment of all Obligations or Rate Management Obligations now or hereafter
owed by the Borrowers under the Loan Documents as and when the same shall
become due and payable, whether at stated maturity, by acceleration, upon
early termination or otherwise, according to the terms hereof and thereof
(the "Guaranteed Obligations"). In case of failure by the Borrowers
punctually to pay any indebtedness or other obligations guaranteed hereby
(after giving effect to any applicable cure periods), each Guarantor hereby
unconditionally agrees jointly and severally to make such payment or to
cause such payment to be made punctually as and when the same shall become
due and payable, whether at stated maturity, by acceleration or otherwise,
and as if such payment were made by the Borrowers.
14.2 Guaranty Unconditional. The obligations of each Guarantor as a
guarantor under this Section 14 shall be unconditional and absolute and,
without limiting the generality of the foregoing, shall not be released,
discharged or otherwise affected by:
(a) any extension, renewal, settlement, compromise, waiver or release
in respect of any obligation of the Borrowers or of any other
guarantor under this Agreement or any other Loan Document or by
operation of law or otherwise;
(b) any modification or amendment of or supplement to this Agreement
or any other Loan Document;
(c) any change in the existence, structure or ownership of, or any
insolvency, bankruptcy, reorganization or other similar
proceeding affecting, the Borrowers, any other guarantor, or any
of their respective assets, or any resulting release or discharge
of any obligation of the Borrowers or of any other guarantor
contained in any Loan Document;
(d) the existence of any claim, set-off or other rights that the
Borrowers or any other guarantor may have at any time against the
Agents, any Lender or any other Person, whether or not arising in
connection herewith;
(e) any failure to assert, or any assertion of, any claim or demand
or any exercise of, or failure to exercise, any rights or
remedies against the Borrowers, any other guarantor or any other
Person or Real Property;
(f) any application of any sums by whomsoever paid or howsoever
realized to any obligation of the Borrowers, regardless of what
obligations of the Borrowers remain unpaid;
(g) any invalidity or unenforceability relating to or against the
Borrowers or any other guarantor for any reason of this Agreement
or of any other Loan Document or any provision of applicable law
or regulation purporting to prohibit the payment by the Borrowers
or any other guarantor of the principal of or interest on any
Note or any other amount payable under the Loan Documents; or
(h) any other act or omission to act or delay of any kind by the
Agents, any Lender or any other Person or any other circumstance
whatsoever that might, but for the provisions of this paragraph,
constitute a legal or equitable discharge of the obligations of
any Guarantor under this Section 14.
14.3 Discharge Only Upon Payment in Full; Reinstatement in Certain
Circumstances. Each Guarantor's obligations under this Section 14 shall
remain in full force and effect until the Commitments are terminated, all
Letters of Credit have expired, and the principal of and interest on the
Notes and all other amounts payable by the Borrowers under this Agreement
and all other Loan Documents shall have been paid in full. If at any time
any payment of the principal of or interest on any Note or any other amount
payable by the Borrowers under the Loan Documents is rescinded or must be
otherwise restored or returned upon the insolvency, bankruptcy or
reorganization of the Borrowers or of any guarantor, or otherwise, each
Guarantor's obligations under this Section 14 with respect to such payment
shall be reinstated at such time as though such payment had become due but
had not been made at such time.
14.4 Subrogation. Each Guarantor agrees it will not exercise any
rights that it may acquire by way of subrogation by any payment made
hereunder, or otherwise, until all the Guaranteed Obligations shall have
been paid in full subsequent to the termination of all the Commitments and
expiration or defeasance in full of all Letters of Credit. If any amount
shall be paid to a Guarantor on account of such subrogation rights at any
time prior to the later of (a) the payment in full of the Guaranteed
Obligations and all other amounts payable by the Borrowers hereunder and
the other Loan Documents and (b) the termination of the Commitments and
expiration of all Letters of Credit, such amount shall be held in trust for
the benefit of the Administrative Agent and the Lenders and shall forthwith
be paid to the Administrative Agent for the benefit of the Lenders or be
credited and applied upon the Guaranteed Obligations, whether matured or
unmatured, in accordance with the terms of this Agreement.
14.5 Waivers. Each Guarantor irrevocably waives acceptance hereof,
presentment, demand, protest and any notice not provided for herein, as
well as any requirement that at any time any action be taken by the Agents,
any Lender or any other Person against the Borrowers, another guarantor or
any other Person.
14.6 Stay of Acceleration. If acceleration of the time for payment of
any amount payable by the Borrowers under this Agreement or any other Loan
Document is stayed upon the insolvency, bankruptcy or reorganization of the
Borrowers, all such amounts otherwise subject to acceleration under the
terms of this Agreement or the other Loan Documents shall nonetheless be
payable jointly and severally by the Guarantors hereunder forthwith on
demand by the Administrative Agent made at the request of the Required
Lenders.
14.7 General Limitation on Guarantee Obligations. Each Guarantor, the
Agents and each other Lender hereby confirm that it is the intention of all
such Persons that this Guaranty and the Obligations of each Guarantor under
this Section 14 not constitute a fraudulent transfer or conveyance for
purposes of Bankruptcy Law (as hereinafter defined), the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar foreign,
federal or state law to the extent applicable to this Guaranty and the
Obligations of each Guarantor hereunder. To effectuate the foregoing
intention, the Agents, the other Lenders, and the Guarantors hereby agree
that the Guaranteed Obligations of each Guarantor under this Guaranty at
any time shall be limited to the maximum amount as will result in the
Guaranteed Obligations of such Guarantor under this Guaranty not
constituting a fraudulent transfer or conveyance. For purposes hereof,
"Bankruptcy Law" means any proceeding of the type referred to in Section
12.1(C) of this Agreement or Title 11 of the United States Code, or any
similar foreign, federal or state law for the relief of debtors.
SECTION 15. GENERAL.
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15.1 Waiver; Amendments. No delay on the part of the Administrative
Agent, any Lender or any other holder of a Note in the exercise of any
right, power or remedy shall operate as a waiver thereof, nor shall any
single or partial exercise by any of them of any right, power or remedy
preclude other or further exercise thereof, or the exercise of any other
right, power or remedy. No amendment, modification or waiver of, or consent
with respect to, any provision of this Agreement or the Notes shall in any
event be effective unless the same shall be in writing and signed and
delivered by Lenders having an aggregate Percentage of not less than the
aggregate Percentage expressly designated herein with respect thereto or,
in the absence of such designation as to any provision of this Agreement or
the Notes, by the Required Lenders, and then any such amendment,
modification, waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given. No amendment,
modification, waiver or consent shall change the Percentage of any Lender
without the consent of such Lender. No amendment, modification, waiver or
consent shall (a) extend or increase the amount of the Commitments, (b)
extend the scheduled date for payment of any principal of or interest on
the Loans or any fees payable hereunder; it being understood that any
mandatory prepayment under Section 6.2(B) may be waived by the Required
Lenders, (c) reduce the principal amount of any Loan, the rate of interest
thereon or any fees payable hereunder, (d) release all or substantially all
of the Collateral granted under the Collateral Documents, (e) reduce the
aggregate Percentage required to effect an amendment, modification, waiver
or consent or (f) release any Guarantor from such Guarantor's Guaranteed
Obligations without, in each case, the consent of all Lenders. No
provisions of Section 13 or other provision of this Agreement affecting the
Administrative Agent in its capacity as such shall be amended, modified or
waived without the consent of the Administrative Agent. No provision of
this Agreement relating to the rights or duties of the Issuing Bank in its
capacity as such shall be amended, modified or waived without the consent
of the Issuing Bank.
15.2 Confirmations. The Borrowers and each holder of a Note agree from
time to time, upon written request received by it from the other, to
confirm to the other in writing (with a copy of each such confirmation to
the Administrative Agent) the aggregate unpaid principal amount of the
Loans then outstanding under such Note.
15.3 Notices. Except as otherwise provided in Sections 2.2 and 2.3 of
this Agreement, all notices hereunder shall be in writing (including
facsimile transmission) and shall be sent to the applicable party at its
address shown on Schedule 15.3 or at such other address as such party may,
by written notice received by the other parties, have designated as its
address for such purpose. Notices sent by facsimile transmission shall be
deemed to have been given when sent; notices sent by mail shall be deemed
to have been given three Business Days after the date when sent by
registered or certified mail, postage prepaid; and notices sent by hand
delivery or overnight courier service shall be deemed to have been given
when received. For purposes of Sections 2.2 and 2.3, the Administrative
Agent shall be entitled to rely on telephonic instructions from any person
that the Administrative Agent in good faith believes is an authorized
officer or employee of the Borrowers, and the Borrowers shall hold the
Administrative Agent and each other Lender harmless from any loss, cost or
expense resulting from any such reliance.
15.4 Computations. Where the character or amount of any asset or
liability or item of income or expense is required to be determined, or any
consolidation or other accounting computation is required to be made, for
the purpose of this Agreement, such determination or calculation shall, to
the extent applicable and except as otherwise specified in this Agreement,
be made in accordance with GAAP, consistently applied.
15.5 Costs, Expenses and Taxes. The Borrowers agree to pay on demand
all reasonable out-of-pocket costs and expenses of the Agents (including
the reasonable fees and out-of-pocket charges of counsel for the Agents and
of local counsel, if any, who may be retained by said counsel) in
connection with the preparation, execution, syndication and delivery of
this Agreement, the other Loan Documents and all other documents provided
for herein or delivered or to be delivered hereunder or in connection
herewith. The Borrowers further agree to pay on demand all reasonable
out-of-pocket costs and expenses of each of the Agents (including the
reasonable fees and out-of-pocket charges of counsel for the Agents, of
local counsel, if any, who may be retained by said counsel and court costs
and other legal expenses and allocated costs of staff counsel) (a) in
connection with the preparation, execution, delivery and administration of
any amendments, supplements or waivers to this Agreement or any other Loan
Document and (b) incurred by the Agents and each Lender after an Event of
Default in connection with the enforcement of this Agreement, the other
Loan Documents or any such other documents. Each Lender agrees to reimburse
each of the Agents for such Lender's pro rata share (based on its
Percentage) of any such costs and expenses of the Agents not paid by the
Borrowers. In addition, the Borrowers agree to pay, and to save the Agents
and the Lenders harmless from all liability for, (x) any stamp or other
taxes (excluding income taxes and franchise taxes based on net income) that
may be payable in connection with the execution and delivery of this
Agreement, the borrowings hereunder, the issuance of the Notes or the
execution and delivery of any other Loan Document or any other document
provided for herein or delivered or to be delivered hereunder or in
connection herewith and (y) any fees of the Borrowers' auditors in
connection with any reasonable exercise by each of the Agents and the
Lenders of their rights pursuant to Section 10.2. All obligations provided
for in this Section 15.5 shall survive repayment of the Loans, cancellation
of the Notes, expiration or termination of the Letters of Credit and any
termination of this Agreement. All obligations provided for in this Section
15.5 shall remain operative and in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of any
Loans, the expiration of the Commitments, cancellation of the Notes, the
expiration or termination of the Letters of Credit, any foreclosure under,
or any modification, release or discharge of any or all of the Collateral
Documents and any termination of this Agreement.
15.6 Subsidiary References. The provisions of this Agreement relating
to Subsidiaries shall apply only during such times as the Borrowers has one
or more Subsidiaries.
15.7 Captions. Section captions used in this Agreement are for
convenience only and shall not affect the construction of this Agreement.
15.8 Assignments; Participations.
(A) Assignments. As long as no Event of Default has occurred and is
continuing, any Lender may, with the prior written consents of the Parent,
the Issuing Bank and the Administrative Agent (which consents shall not be
unreasonably delayed or withheld and, in any event, shall not be required
for an assignment by a Lender to one of its Affiliates), at any time assign
and delegate to one or more commercial banks or other Persons (any Person
to whom such an assignment and delegation is to be made being herein called
an "Assignee"), all or any fraction of such Lender's Loans and Commitment
(which assignment and delegation shall be of a constant, and not a varying,
percentage of all the assigning Lender's Loans and Commitment) in a minimum
aggregate amount equal to the lesser of (i) the amount of the assigning
Lender's Percentage of the Revolving Commitment Amount plus the unpaid
balance of such Lender's Term Loan and (ii) $5,000,000; provided that (a)
no assignment and delegation may be made to any Person if, at the time of
such assignment and delegation, the Borrowers would be obligated to pay any
greater amount under Section 7.6 or Section 8 to the Assignee than the
Borrowers are then obligated to pay to the assigning Lender under such
Sections (and if any assignment is made in violation of the foregoing, the
Borrowers will not be required to pay the incremental amounts) and (b) the
Borrowers and the Agents shall be entitled to continue to deal solely and
directly with such Lender in connection with the interests so assigned and
delegated to an Assignee until the date when all of the following
conditions shall have been met:
(1) five Business Days (or such lesser period of time as the
Administrative Agent and the assigning Lender shall agree) shall
have passed after written notice of such assignment and
delegation, together with payment instructions, addresses and
related information with respect to such Assignee, shall have
been given to the Borrowers and the Administrative Agent by such
assigning Lender and the Assignee;
(2) the assigning Lender and the Assignee shall have executed and
delivered to the Borrowers and the Administrative Agent an
assignment agreement substantially in the form of Exhibit G (an
"Assignment Agreement"), together with any documents required to
be delivered thereunder, which Assignment Agreement shall have
been accepted by the Administrative Agent; and
(3) the assigning Lender or the Assignee has paid the Administrative
Agent a processing fee of $3,500; provided that, such fee will
not apply to an assignment from a Lender to an Affiliate of such
Lender.
From and after the date on which the conditions described above have been
met, (x) such Assignee shall be deemed automatically to have become a party
hereto and, to the extent that rights and obligations hereunder have been
assigned and delegated to such Assignee pursuant to such Assignment
Agreement, shall have the rights and obligations of a Lender hereunder and
(y) the assigning Lender, to the extent that rights and obligations
hereunder have been assigned and delegated by it pursuant to such
Assignment Agreement, shall be released from its obligations hereunder.
Within five Business Days after effectiveness of any assignment and
delegation, the Borrowers shall execute and deliver to the Administrative
Agent (for delivery to the Assignee and the Assignor, as applicable) a new
Note in the principal amount of the Assignee's Percentage of the Revolving
Commitment Amount plus the principal amount of the Assignee's Term Loan
and, if the assigning Lender has retained a Commitment hereunder, a
replacement Note in the principal amount of the Percentage of the Revolving
Commitment Amount retained by the assigning Lender plus the principal
amount of the Term Loan retained by the assigning Lender (such Note to be
in exchange for, but not in payment of, the predecessor Note held by such
assigning Lender). Each such Note shall be dated the effective date of such
assignment. The assigning Lender shall xxxx the predecessor Note
"exchanged" and deliver it to the Borrowers. Accrued interest on that part
of the predecessor Note being assigned shall be paid as provided in the
Assignment Agreement. Accrued interest and fees on that part of the
predecessor Note not being assigned shall be paid to the assigning Lender.
Accrued interest and accrued fees shall be paid at the same time or times
provided in the predecessor Note and in this Agreement. Any attempted
assignment and delegation not made in accordance with this Section 15.8(A)
shall be null and void. Notwithstanding the foregoing provisions of this
Section 15.8(A) or any other provision of this Agreement, any Lender may at
any time assign all or any portion of its Loans and its Note to a Federal
Reserve Bank (but no such assignment shall release any Lender from any of
its obligations hereunder).
(B) Participations. Any Lender may at any time sell to one or more
commercial banks or other Persons participating interests in any Loan owing
to such Lender, the Note held by such Lender, the Commitment of such
Lender, the direct or indirect participation interest of such Lender in any
Letter of Credit or any other interest of such Lender hereunder (any Person
purchasing any such participating interest being herein called a
"Participant"). In the event of a sale by a Lender of a participating
interest to a Participant, (i) such Lender shall remain the holder of its
Note for all purposes of this Agreement, (ii) the Borrowers and the Agents
shall continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations hereunder and (iii) all amounts
payable by the Borrowers shall be determined as if such Lender had not sold
such participation and shall be paid directly to such Lender. No
Participant other than a Participant that is an Affiliate of the Lender
shall have any direct or indirect voting rights hereunder except with
respect to any of the events described in the fourth sentence of Section
15.1 and for increases in the Commitment of the participating Lender if the
Participant's commitment would be thereby increased. Each Lender agrees to
incorporate the requirements of the preceding sentence into each
participation agreement that such Lender enters into with any Participant.
The Borrowers agree that if amounts outstanding under this Agreement and
the Notes are due and payable (as a result of acceleration or otherwise),
each Participant shall be deemed to have the right of setoff in respect of
its participating interest in amounts owing under this Agreement, any Note
and with respect to any Letter of Credit to the same extent as if the
amount of its participating interest were owing directly to it as a Lender
under this Agreement or such Note; provided that, such right of setoff
shall be subject to the obligation of each Participant to share with the
Lenders, and the Lenders agree to share with each Participant, as provided
in Section 7.5. The Borrowers also agree that each Participant shall be
entitled to the benefits of Section 7.6 and Section 8 as if it were a
Lender (provided that, no Participant shall receive any greater
compensation pursuant to Section 7.6 or Section 8 than would have been paid
to the participating Lender if no participation had been sold).
15.9 Entire Agreement. This Agreement and the other Loan Documents
sets forth the entire agreement of the Borrowers, the Agents and the
Lenders with respect to the matters addressed in this Agreement and the
other Loan Documents. This Agreement and the other Loan Documents supersede
all prior written or oral agreements, instruments or other documents
respecting such matters.
15.10 Amendment and Restatement of Existing Credit Agreement. The
Borrowers, the Agents and the Lenders agree that, upon the execution and
delivery by each of the parties hereto of this Agreement and satisfaction
of the conditions set forth in Section 11.1, the terms and provisions of
the Existing Credit Agreement shall be and hereby are amended, superseded
and restated in their entirety by the terms and provision of this
Agreement. It is the intention of the parties to this Agreement that this
Agreement not constitute a novation of the obligations under the Existing
Credit Agreement and shall not operate as a novation, waiver of any right,
power or remedy of the parties thereto nor constitute an amendment or a
waiver of any provision of the Loan Documents or the Existing Credit
Agreement, except as expressly set forth herein and shall be limited to the
particular instance expressly set forth herein. All loans made and
obligations incurred under the Existing Credit Agreement that are
outstanding on the effective date hereof shall continue as loans and
obligations under (and shall be governed by the terms of) this Agreement.
From and after the effective date hereof, the Existing Credit Agreement
shall be amended and restated hereby and all references herein to
"hereunder", "hereof", or words of like import and all references in any
other Loan Document to the "Credit Agreement" or words of like import shall
mean and be a reference to the Existing Credit Agreement as amended and
restated hereby.
15.11 Affirmation and Continued Effectiveness of Existing Loan
Documents, Collateral Documents and Liens. The Credit Parties acknowledge
and agree that each Existing Loan Document that is not expressly superceded
by this Agreement and each Collateral Document remains in full force and
effect both before and after the Closing Date and the effectiveness of this
Agreement. The Credit Parties further acknowledge and agree that all Liens,
mortgages and security interests granted under the Collateral Documents to
secure the Credit Parties obligations to the Lenders under the Existing
Credit Agreement remain in full force and effect and constitute valid,
perfected, and subsisting Liens securing the Obligations under this
Agreement, and that such Liens, mortgages, and security interests have the
same effect and priority against the Credit Parties and all third parties
as existed immediately prior to the effectiveness of this Agreement and as
set forth in Section 9.26.
15.12 GOVERNING LAW. THIS AGREEMENT AND EACH NOTE SHALL BE A CONTRACT
MADE UNDER AND GOVERNED BY THE LAW OF THE STATE OF ILLINOIS. Whenever
possible each provision of this Agreement shall be interpreted in such
manner as to be effective and valid under applicable law, but if any
provision of this Agreement shall be prohibited by or invalid under
applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement. All Obligations of
the Borrowers and rights of the Agents, the Lenders and any other holder of
a Note expressed herein or in any other Loan Document shall be in addition
to and not in limitation of those provided by applicable law.
15.13 Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts
and each such counterpart shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Agreement.
15.14 Successors and Assigns. This Agreement shall be binding upon the
Borrowers, the Lenders and the Agents and their respective successors and
assigns, and shall inure to the benefit of the Borrowers, the Lenders and
the Agents and the successors and assigns of the Lenders and the Agents.
15.15 Indemnification by the Credit Parties. (A) In consideration of
the execution and delivery of this Agreement by the Agents and the Lenders
and the agreement to extend the Commitments provided hereunder, the Credit
Parties hereby agree to indemnify, exonerate and hold the Administrative
Agent, the Syndication Agent, each Lender and each Issuing Bank, and each
of their respective officers, directors, employees, Affiliates, trustees
and agents (each a "Lender Party") free and harmless from and against any
and all actions, causes of action, suits, losses, liabilities, damages and
related expenses, including reasonable attorneys' fees and charges and
allocated costs of staff counsel (collectively, the "Indemnified
Liabilities"), incurred by the Lender Parties or any of them as a result
of, or arising out of, or in any way relating to (i) any tender offer,
merger, purchase of stock, purchase of assets or other similar transaction
financed or proposed to be financed in whole or in part, directly or
indirectly, with the proceeds of any of the Loans, (ii) the use of the
proceeds of the Loans or issuance of Letters of Credit, (iii) the
execution, delivery, performance or enforcement of this Agreement or any
other Loan Document by any of the Lender Parties or the consummation of the
transactions contemplated thereby, (iv) the use, handling, release,
emission, discharge, transportation, storage, treatment or disposal of any
Hazardous Substance at any real property owned or leased by the Credit
Parties or any Subsidiary, except to the extent that Hazardous Substances
are initially used, handled, released, emitted, discharged, transported,
stored, treated or disposed of subsequent to (a) full payment or
satisfaction of the Obligations under this Agreement and the other Loan
Documents or (b) a foreclosure by the Administrative Agent or any Lender of
the Mortgage with respect to such real property or possession otherwise
being taken by the Administrative Agent or any Lender of such real
property, except to the extent that such use, handling, release, emission,
discharge, transportation, storage, treatment or disposal is caused by and
act or omission of the Credit Parties or any Subsidiary, (v) any violation
of any Environmental Laws with respect to conditions at any real property
owned or leased by the Credit Parties or any Subsidiary or the operations
conducted thereon, (vi) the investigation, cleanup or remediation of
offsite locations to the extent that the Credit Parties or any Subsidiary
or their respective predecessors are alleged to have directly or indirectly
disposed of Hazardous Substances or (vii) any claim, litigation,
investigation or proceeding relating to any of the foregoing, whether or
not a Lender Party is a party thereto, except for any such Indemnified
Liabilities arising on account of any such Lender Party's gross negligence
or willful misconduct. If and to the extent that the foregoing undertaking
may be unenforceable for any reason, the Credit Parties hereby agree to
make the maximum contribution to the payment and satisfaction of each of
the Indemnified Liabilities that is permissible under applicable law.
Nothing set forth above shall be construed to relieve any Lender Party from
any obligation it may have under this Agreement.
(B) If any action, suit or proceeding is commenced against any Lender
Party that such Lender Party believes is subject to indemnification
hereunder, such Lender Party shall promptly notify the Parent (who shall
receive such notice on behalf of all Credit Parties), and such Lender Party
may, and if requested by the Parent (on behalf of all Credit Parties)
shall, in good faith, contest the validity, applicability and amount of
such action, suit or proceeding with counsel selected by such Lender Party,
and shall permit the Parent (on behalf of all Credit Parties) to
participate in such contest, subject to the overall control and direction
of such Lender Party and its counsel. In addition, in connection with the
defense of any action, suit or proceeding covered by this Section 15.15
against more than one Lender Party, all such Lender Parties shall be
represented by the same legal counsel selected by such Lender Parties;
provided that, if such legal counsel determines in good faith that
representing all such Lender Parties would or could result in a conflict of
interest under the laws or ethical principles applicable to such legal
counsel or that a defense or counterclaim is available to an Indemnitee
that is not available to all such Lender Parties, then to the extent
reasonably necessary to avoid such a conflict of interest or to permit
unqualified assertion of such defense or counterclaim, each Lender Party
shall be entitled to separate representation by a legal counsel selected by
that Lender Party.
(C) The Credit Parties jointly and severally agree that upon written
notice by any Lender Party of the incurrence or sufferance by such Lender
Party of any Indemnifiable Liabilities, the Credit Parties will pay, on
demand, all Indemnifiable Liabilities, from time to time incurred or
suffered by such Lender Party. Each Lender Party agrees to use its best
efforts promptly to notify the Parent (on behalf of all Credit Parties) of
any written assertion of any Indemnifiable Liabilities of which such Lender
Party has actual knowledge.
(D) In addition, and without limitation of the foregoing, the Credit
Parties jointly and severally agree to pay, indemnify and hold each Lender
Party harmless from and against any loss, costs, damages and expenses that
such Lender Party may suffer, expend or incur in consequence of or growing
out of any material misrepresentation by a Credit Party in this Agreement,
the Loan Documents or any agreement or instrument contemplated hereby, or
in any statement or writing contemplated by or made or delivered pursuant
to or in connection with this Agreement.
(E) To the extent permitted by applicable law, the Credit Parties
shall not assert, and hereby waive, any claim against any Lender Party, on
any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement, the Loan Documents or
any agreement or instrument contemplated hereby, any Loan or Letter of
Credit of the use of the proceeds thereof.
(F) All obligations provided for in this Section 15.15 shall remain
operative and in full force and effect regardless of the consummation of
the transactions contemplated hereby, the repayment of any Loans, the
expiration of the Commitments, cancellation of the Notes, the expiration or
termination of the Letters of Credit, any foreclosure under, or any
modification, release or discharge of any or all of the Collateral
Documents and any termination of this Agreement.
15.16 Nonliability of Lenders. The relationship between the Borrowers
on the one hand and the Lenders and the Agents on the other hand shall be
solely that of borrower and lender. Neither the Agents nor any Lender shall
have any fiduciary responsibility to the Borrowers. Neither the Agents nor
any Lender undertakes any responsibility to the Borrowers to review or
inform the Borrowers of any matter in connection with any phase of any
Borrower's business or operations. The Borrowers agree that neither the
Agents nor any Lender shall have liability to the Borrowers (whether
sounding in tort, contract or otherwise) for losses suffered by the
Borrowers in connection with, arising out of, or in any way related to the
transactions contemplated and the relationship established by the Loan
Documents, or any act, omission or event occurring in connection therewith,
unless it is determined in a final non-appealable judgment by a court of
competent jurisdiction that such losses resulted from the gross negligence
or willful misconduct of the party from which recovery is sought. Neither
the Agents nor any Lender shall have any liability with respect to, and the
Borrowers hereby waive, release and agree not to xxx for, any special,
indirect or consequential damages suffered by the Borrowers in connection
with, arising out of, or in any way related to the Loan Documents or the
transactions contemplated thereby.
15.17 FORUM SELECTION AND CONSENT TO JURISDICTION. ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, SHALL BE BROUGHT AND MAINTAINED
EXCLUSIVELY IN THE COURTS OF THE STATE OF ILLINOIS OR IN THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS; PROVIDED THAT, ANY
SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE
BROUGHT, AT THE AGENTS' OPTION, IN THE COURTS OF ANY JURISDICTION WHERE
SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. THE BORROWERS EXPRESSLY AND
IRREVOCABLY SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF
ILLINOIS AND OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT
OF ILLINOIS FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE. THE
BORROWERS FURTHER IRREVOCABLY CONSENT TO THE SERVICE OF PROCESS BY
REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT
THE STATE OF ILLINOIS. THE BORROWERS EXPRESSLY AND IRREVOCABLY WAIVE, TO
THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY
SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT THE BORROWERS
HAVE OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT
OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT
PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH
RESPECT TO THEMSELVES OR THEIR PROPERTY, THE BORROWERS HEREBY IRREVOCABLY
WAIVE SUCH IMMUNITY IN RESPECT OF THEIR OBLIGATIONS UNDER THIS AGREEMENT
AND THE OTHER LOAN DOCUMENTS.
15.18 WAIVER OF JURY TRIAL. EACH OF THE BORROWERS, THE AGENTS AND EACH
LENDER WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO
ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT, ANY NOTE, ANY OTHER LOAN
DOCUMENT AND ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR
THAT MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR
ARISING FROM ANY BANKING RELATIONSHIP EXISTING IN CONNECTION WITH ANY OF
THE FOREGOING, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY.
15.19 Confidentiality. Each Agent and each Lender agrees to keep
confidential all nonpublic information obtained by it pursuant to this
Agreement and the other Loan Documents in accordance with such Agent's or
such Lender's customary practices for treatment of its confidential
information and agrees that it will only use such information in connection
with the transactions contemplated by this Agreement and not disclose any
of such information other than (a) to the Administrative Agent or an
Affiliate of the Administrative Agent, the Syndication Agent or an
Affiliate of the Syndication Agent or any other Lender or an Affiliate of
any Lender, (b) to such Agent's or Lender's employees, representatives,
directors, attorneys, auditors, agents, professional advisors or trustees
or to any direct or indirect contractual counterparty in swap agreements or
such contractual counterparty's professional advisor, (c) to the extent
such information becomes publicly available other than as a result of a
breach of this Section 15.19 or becomes available to such Agent or Lender
on a nonconfidential basis from a source other than a Credit Party or any
Affiliate of a Credit Party, (d) upon the request or demand of any
Governmental Authority, (e) to the extent disclosure is required by law
(including applicable securities laws), regulation, subpoena or judicial
order or process (provided that, notice of such requirement or order shall
be promptly furnished to the Parent unless such notice is legally
prohibited) or requested or required by bank, securities, insurance or
investment company regulations or auditors or any administrative body or
commission to whose jurisdiction such Lender may be subject, (f) to the
National Association of Insurance Commissioners or any similar organization
or any nationally recognized rating agency to the extent required in
connection with any rating to be assigned to such Lender, (g) to Assignees
or Participants or prospective Assignees or Participants who agree to be
bound by the provisions of this Section 15.19, (h) to the extent required
in connection with any litigation or similar proceeding between any Credit
Party and any Agent or Lender with respect to the Loans or this Agreement
and the other Loan Documents, (i) in connection with the exercise of any
remedy hereunder or under any other Loan Document, or (j) with the Parent's
prior written consent.
15.20 Termination; Release of Guarantees and Collateral. At such time
as the Commitments are terminated, all Letters of Credit have expired or
have been cash collateralized and the principal and interest on the Notes
and all other amounts payable by the Borrowers under this Agreement and all
other Loan Documents shall have been paid in full, this Agreement shall
terminate (except for provisions that by their terms survive such
termination). Upon any such termination, the Administrative Agent shall, at
the expense of the Borrowers, take such actions as are appropriate and
reasonably requested by the Borrowers in connection therewith.
[The remainder of this page is intentionally left blank]
Executed and delivered as of the day and year first above written.
PARENT:
XXXX INDUSTRIES, INC., a Delaware corporation
By: /s/ Xxxx X. Xxx
-------------------------------------
Name: Xxxx X. Xxx
Title: Vice President and CFO
ADMINISTRATIVE AGENT:
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
SYNDICATION AGENT:
NATIONAL CITY BANK
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President
LENDERS:
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
NATIONAL CITY BANK OF MICHIGAN/ILLINOIS
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President
ASSOCIATED BANK, N.A.
By: /s/ Xxxxx X. Xxxxxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: Vice President
COMERICA BANK
By: /s/ Xxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxx X. Xxxx
Title: Senior Vice President
U. S. BANK
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
BORROWERS:
XXXX INSTALLATION SERVICES, INC., a Delaware
corporation
By: /s/ Xxxx X. Xxx
-------------------------------------
Name: Xxxx X. Xxx
Title: Vice President and CFO
XXXX ENCLOSURES, INC., an Arizona corporation
By: /s/ Xxxx X. Xxx
-------------------------------------
Name: Xxxx X. Xxx
Title: Vice President and CFO
XXXX, INC., an Alabama corporation
By: /s/ Xxxx X. Xxx
-------------------------------------
Name: Xxxx X. Xxx
Title: Vice President and CFO
XXXX PRODUCTS, INC., an Indiana corporation
By: /s/ Xxxx X. Xxx
-------------------------------------
Name: Xxxx X. Xxx
Title: Vice President and CFO
XXXX CONSTRUCTION, INC., a Texas corporation
By: /s/ Xxxx X. Xxx
-------------------------------------
Name: Xxxx X. Xxx
Title: Vice President and CFO
FOLDING CARRIER CORP., a Delaware corporation
By: /s/ Xxxx X. Xxx
-------------------------------------
Name: Xxxx X. Xxx
Title: Vice President and CFO
XXXX FOREIGN HOLDINGS, INC., a Delaware
corporation
By: /s/ Xxxx X. Xxx
-------------------------------------
Name: Xxxx X. Xxx
Title: Vice President and CFO
UNR REALTY, INC., an Illinois corporation
By: /s/ Xxxx X. Xxx
-------------------------------------
Name: Xxxx X. Xxx
Title: Vice President and CFO
GUARANTORS:
XXXX INSTALLATION SERVICES, INC., a Delaware
corporation
By: /s/ Xxxx X. Xxx
-------------------------------------
Name: Xxxx X. Xxx
Title: Vice President and CFO
XXXX ENCLOSURES, INC., an Arizona corporation
By: /s/ Xxxx X. Xxx
-------------------------------------
Name: Xxxx X. Xxx
Title: Vice President and CFO
XXXX, INC., an Alabama corporation
By: /s/ Xxxx X. Xxx
-------------------------------------
Name: Xxxx X. Xxx
Title: Vice President and CFO
XXXX PRODUCTS, INC., an Indiana corporation
By: /s/ Xxxx X. Xxx
-------------------------------------
Name: Xxxx X. Xxx
Title: Vice President and CFO
XXXX CONSTRUCTION, INC., a Texas corporation
By: /s/ Xxxx X. Xxx
-------------------------------------
Name: Xxxx X. Xxx
Title: Vice President and CFO
FOLDING CARRIER CORP., a Delaware corporation
By: /s/ Xxxx X. Xxx
-------------------------------------
Name: Xxxx X. Xxx
Title: Vice President and CFO
XXXX FOREIGN HOLDINGS, INC., a Delaware
corporation
By: /s/ Xxxx X. Xxx
-------------------------------------
Name: Xxxx X. Xxx
Title: Vice President and CFO
UNR REALTY, INC., an Illinois corporation
By: /s/ Xxxx X. Xxx
-------------------------------------
Name: Xxxx X. Xxx
Title: Vice President and CFO
