CREDIT AGREEMENT
Dated as of December 1, 1995
among
THE MANITOWOC COMPANY, INC.
as Borrower,
CERTAIN SUBSIDIARIES FROM TIME TO TIME
PARTIES HERETO,
as Guarantors,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO
AND
NATIONSBANK, N.A.,
as Agent
TABLE OF CONTENTS
SECTION 1
DEFINITIONS................................................1
1.1 Definitions.........................................1
1.2 Other Definitional Provisions..................... 25
1.3 Accounting Terms and Determinations............... 25
SECTION 2
CREDIT FACILITIES........................................ 26
2.1 Revolving Loans................................... 26
2.2 Term Loan......................................... 28
2.3 Swingline Loan Subfacility........................ 29
2.4 Letter of Credit Subfacility...................... 31
SECTION 3
OTHER PROVISIONS RELATING TO CREDIT FACILITIES........... 35
3.1 Default Rate...................................... 35
3.2 Extension and Conversion.......................... 35
3.3 Reductions in Commitments and Prepayments......... 36
3.4 Fees.............................................. 39
3.5 Capital Adequacy.................................. 39
3.6 Inability To Determine Interest Rate.............. 40
3.7 Illegality........................................ 40
3.8 Requirements of Law............................... 41
3.9 Taxes............................................. 42
3.10 Indemnity......................................... 45
3.11 Pro Rata Treatment................................ 46
3.12 Sharing of Payments............................... 46
3.13 Place and Manner of Payments...................... 47
3.14 Indemnification; Nature of Issuing Lender's Duties 48
SECTION 4
GUARANTY................................................. 49
4.1 The Guaranty...................................... 50
4.2 Obligations Unconditional......................... 50
4.3 Reinstatement..................................... 51
4.4 Certain Additional Waivers........................ 51
4.5 Remedies.......................................... 52
4.6 Continuing Guarantee.............................. 52
SECTION 5
CONDITIONS............................................... 52
5.1 Conditions to Closing Date........................ 52
5.2 Conditions to All Extensions of Credit............ 55
SECTION 6
REPRESENTATIONS AND WARRANTIES........................... 56
6.1 Financial Condition............................... 56
6.2 No Change......................................... 56
6.3 Corporate Existence; Compliance with Law.......... 56
6.4 Corporate Power; Authorization;
Enforceable Obligations......................... 57
6.5 No Legal Bar; No Default.......................... 57
6.6 No Material Litigation............................ 58
6.7 Investment Company Act............................ 58
6.8 Federal Regulations............................... 58
6.9 ERISA............................................. 58
6.10 Environmental Matters............................. 59
6.11 Use of Proceeds................................... 60
6.12 Subsidiaries...................................... 60
SECTION 7
AFFIRMATIVE COVENANTS.................................... 60
7.1 Financial Statements.............................. 61
7.2 Certificates; Other Information................... 62
7.3 Payment of Obligations............................ 62
7.4 Conduct of Business and Maintenance of Existence.. 63
7.5 Maintenance of Property; Insurance................ 63
7.6 Inspection of Property; Books and Records;
Discussions..................................... 63
7.7 Notices........................................... 63
7.8 Environmental Laws................................ 64
7.9 Financial Covenants............................... 65
7.10 Additional Subsidiary Guarantors; Pledge of
Stock of Foreign Subsidiaries.................... 66
7.11 Interest Rate Protection.......................... 67
SECTION 8
NEGATIVE COVENANTS....................................... 67
8.1 Indebtedness...................................... 67
8.2 Liens............................................. 68
8.3 Nature of Business................................ 68
8.4 Consolidation, Merger, Sale or Purchase
of Assets, etc................................... 68
8.5 Advances, Investments and Loans................... 69
8.6 Transactions with Affiliates...................... 69
8.7 Ownership of Subsidiaries......................... 70
8.8 Fiscal Year....................................... 70
SECTION 9
EVENTS OF DEFAULT........................................ 71
SECTION 10
AGENCY PROVISIONS........................................ 74
10.1 Appointment....................................... 74
10.2 Delegation of Duties.............................. 75
10.3 Exculpatory Provisions............................ 75
10.4 Reliance on Communications........................ 76
10.5 Notice of Default................................. 76
10.6 Non-Reliance on Agent and Other Lenders........... 76
10.7 Indemnification................................... 77
10.8 Agent in its Individual Capacity.................. 77
10.9 Successor Agent................................... 78
SECTION 11
MISCELLANEOUS............................................ 78
11.1 Amendments, Waivers and Release of Collateral..... 78
11.2 Notices........................................... 79
11.3 No Waiver; Cumulative Remedies.................... 80
11.4 Survival of Representations and Warranties........ 80
11.5 Payment of Expenses and Taxes..................... 80
11.6 Successors and Assigns; Participations;
Purchasing Lenders.............................. 81
11.7 Adjustments; Set-off.............................. 84
11.8 Table of Contents and Section Headings............ 85
11.9 Counterparts...................................... 85
11.10 Severability...................................... 86
11.11 Integration....................................... 86
11.12 Governing Law..................................... 86
11.13 Consent to Jurisdiction and Service of Process.... 86
11.14 Confidentiality................................... 87
11.15 Acknowledgements.................................. 87
11.16 Waivers of Jury Trial............................. 87
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of December 1, 1995 (the "Credit
Agreement"), is by and among THE MANITOWOC COMPANY, INC., a Wisconsin
corporation (the "Borrower"), those Subsidiaries identified as a
"Guarantor" on the signature pages hereto and such other Subsidiaries
as may from time to time become a party hereto (the "Guarantors"), the
several lenders identified on the signature pages hereto and such
other lenders as may from time to time become a party hereto (the
"Lenders"), NATIONSBANK, N.A., as agent for the Lenders (in such
capacity, the "Agent") and BANK OF AMERICA ILLINOIS, as co-agent.
W I T N E S S E T H
WHEREAS, the Borrower has requested that the Lenders provide a
$180,000,000 credit facility for the purposes hereinafter set forth;
and
WHEREAS, the Lenders have agreed to make the requested credit
facility available to the Borrower on the terms and conditions
hereinafter set forth;
NOW, THEREFORE, IN CONSIDERATION of the premises and other good
and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
SECTION 1
DEFINITIONS
1.1 Definitions. As used in this Credit Agreement, the
following terms shall have the meanings specified below unless the
context otherwise requires:
"Additional Credit Party" means each Person that becomes a
Guarantor after the Closing Date by execution of a Joinder
Agreement in accordance with Section 7.10.
"Affiliate" means, with respect to any Person, any other
Person (i) directly or indirectly controlling or controlled by or
under direct or indirect common control with such Person or (ii)
directly or indirectly owning or holding five percent (5%) or
more of the equity interest in such Person. For purposes of this
definition, "control" when used with respect to any Person means
the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling"
and "controlled" have meanings correlative to the foregoing.
"Agent" means NationsBank, N.A. and any successors and
assigns in such capacity.
"Agent's Fee Letter" means the letter agreement dated as of
October 25, 1995 among NationsBank, N.A., NationsBanc Capital
Markets, Inc. and the Borrower, as amended, modified,
supplemented or replaced from time to time.
"Agent's Fees" means such term as defined in Section 3.4(d).
"Aggregate Revolving Committed Amount" means the aggregate
amount of all of the Revolving Commitments in effect from time to
time.
"Applicable Percentage" means, for any day, the rate per
annum set forth below opposite the applicable Pricing Level then
in effect as shown on Schedule 2.1(d), it being understood that
the Applicable Percentage for (i) Base Rate Loans shall be the
percentage set forth under the column "Applicable Percentage for
Base Rate Loans", (ii) Eurodollar Loans shall be the percentage
set forth under the column "Applicable Percentage for Eurodollar
Loans and Letter of Credit Fee", (iii) the Commitment Fee shall
be the percentage set forth under the column "Applicable
Percentage for Commitment Fee", and (iv) the Letter of Credit Fee
shall be the percentage set forth under the column "Applicable
Percentage for Eurodollar Loans and Letter of Credit Fee". The
Applicable Percentage shall, in each case, be determined and
adjusted quarterly by the Agent as soon as practicable (but in
any event within 5 days) after delivery of the annual financial
information required by Section 7.1(a) or the quarterly financial
information required by Section 7.1(b), provided that the date of
determination and adjustment shall not be later than the date 5
days after the date by which the Borrower is required to provide
such quarterly financial information in accordance with Section
7.1(b) (each an "Interest Determination Date") based on the
information contained in such quarterly financial information.
Such Applicable Percentage shall be effective from such Interest
Determination Date until the next such Interest Determination
Date. The Agent shall determine the appropriate Pricing Level
promptly upon its receipt of the quarterly financial information
and promptly notify the Borrower and the Lenders of any change
thereof. Such determinations by the Agent shall be conclusive
absent manifest error. The initial Applicable Percentages shall
be based on Pricing Level IV assuming an Interest Coverage Ratio
of less than 3.0:1.0 until the first Interest Determination Date
occurring after the Closing Date. For purposes of determining
the Consolidated Funded Debt Ratio and appropriate Pricing Level
hereunder, Consolidated Funded Debt shall be deemed to include
the full amount due by the Borrower under the Warrant Purchase
Agreement. The term "Pricing Level" shall be as referenced in
Schedule 2.1(d).
"Base Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest whole multiple of 1/100 of
1%) equal to the greater of (a) the Federal Funds Rate in effect
on such day plus / of 1% or (b) the Prime Rate in effect on such
day. If for any reason the Agent shall have determined (which
determination shall be conclusive absent manifest error) that it
is unable after due inquiry to ascertain the Federal Funds Rate
for any reason, including the inability or failure of the Agent
to obtain sufficient quotations in accordance with the terms
hereof, the Base Rate shall be determined without regard to
clause (a) of the first sentence of this definition until the
circumstances giving rise to such inability no longer exist. Any
change in the Base Rate due to a change in the Prime Rate or the
Federal Funds Rate shall be effective on the effective date of
such change in the Prime Rate or the Federal Funds Rate,
respectively.
"Base Rate Loan" means any Loan bearing interest at a rate
determined by reference to the Base Rate.
"Borrower" means the Person identified as such in the
heading hereof, together with any successors and permitted
assigns.
"Borrowing Date" means in respect of any Loan, the date such
Loan is made.
"Business" means such term as defined in Section 6.10(b).
"Business Day" means a day other than a Saturday, Sunday or
other day on which commercial banks in Charlotte, North Carolina,
Chicago, Illinois or Manitowoc, Wisconsin are authorized or
required by law to close, except that, when used in connection
with a rate determination, borrowing or payment in respect of a
Eurodollar Loan, such day shall also be a day on which dealings
between banks are carried on in U.S. dollar deposits in London,
England.
"Capital Expenditures" means all expenditures which in
accordance with GAAP would be classified as capital expenditures,
including without limitation, Capital Lease Obligations.
"Capital Lease" means any lease of property, real or
personal, the obligations with respect to which are required to
be capitalized on a balance sheet of the lessee in accordance
with GAAP.
"Capital Lease Obligations" means the capital lease
obligations relating to a Capital Lease determined in accordance
with GAAP.
"Cash Equivalents" means (a) securities issued or directly
and fully guaranteed or insured by the United States of America
or any agency or instrumentality thereof (provided that the full
faith and credit of the United States of America is pledged in
support thereof) having maturities of not more than twelve months
from the date of acquisition, (b) U.S. dollar denominated time
deposits and certificates of deposit of (i) any Lender, (ii) any
domestic commercial bank of recognized standing having capital
and surplus in excess of $500,000,000 or (iii) any bank whose
short-term commercial paper rating from S&P is at least A-1 or
the equivalent thereof or from Xxxxx'x is at least P-1 or the
equivalent thereof (any such bank being an "Approved Bank"), in
each case with maturities of not more than 364 days from the date
of acquisition, (c) commercial paper and variable or fixed rate
notes issued by any Approved Bank (or by the parent company
thereof) or any variable or fixed rate notes issued by, or
guaranteed by, any domestic corporation rated A-1 (or the
equivalent thereof) or better by S&P or P-1 (or the equivalent
thereof) or better by Moody's and maturing within six months of
the date of acquisition, (d) repurchase agreements with a bank or
trust company (including any of the Lenders) or recognized
securities dealer having capital and surplus in excess of
$500,000,000 for direct obligations issued by or fully guaranteed
by the United States of America in which the Borrower shall have
a perfected first priority security interest (subject to no other
Liens) and having, on the date of purchase thereof, a fair market
value of at least 100% of the amount of the repurchase obliga-
tions, (e) obligations of any State of the United States or any
political subdivision thereof, the interest with respect to which
is exempt from federal income taxation under Section 103 of the
Code, having a long term rating of at least Aa-3 or AA- by
Moody's or S&P, respectively, (f) Investments in municipal
auction preferred stock (i) rated AAA (or the equivalent thereof)
or better by S&P or Aaa (or the equivalent thereof) or better by
Moody's and (ii) with dividends that reset at least once every
365 days and (g) investments, classified in accordance with GAAP
as current assets, in money market investment programs registered
under the Investment Company Act of 1940, as amended, which are
administered by reputable financial institutions having capital
of at least $100,000,000 and the portfolios of which are limited
to investments of the character described in the foregoing
subdivisions (a) through (f).
"Closing Date" means the date hereof.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Commitment" means the Revolving Commitment, the LOC
Commitment and the Term Loan Commitment, individually or
collectively, as appropriate.
"Commitment Fee" means such term as defined in Section
3.4(a).
"Commitment Percentage" means the Revolving Commitment
Percentage, the LOC Commitment Percentage and/or the Term Loan
Percentage, as appropriate.
"Commitment Period" means the period from and including the
Closing Date to but not including the Termination Date.
"Commitment Transfer Supplement" means a Commitment Transfer
Supplement, substantially in the form of Schedule 11.6(c).
"Commonly Controlled Entity" means an entity, whether or not
incorporated, which is under common control with the Borrower
within the meaning of Section 4001 of ERISA or is part of a group
which includes the Borrower and which is treated as a single
employer under Section 414 of the Code.
"Consolidated Debt Service" means for any period, the sum of
Consolidated Interest Expense plus scheduled principal payments
of Consolidated Funded Debt (including the portion of scheduled
payments in respect of Capital Leases not included in
Consolidated Interest Expense) occurring during such period. The
applicable period shall be for the four consecutive fiscal
quarters ending as of the date of determination, except that for
the first three complete fiscal quarters to occur after the
Closing Date, Consolidated Debt Service shall be determined by
annualizing the components thereof for the complete fiscal
quarters occurring after the Closing Date (such that Consolidated
Debt Service for the first complete fiscal quarter to occur after
the Closing Date would be multiplied by four (4), the first two
complete fiscal quarters would be multiplied by two (2) and the
first three complete fiscal quarters would be multiplied by one
and one-third (1_)).
"Consolidated EBITDA" means for any period, (i) the sum of
Consolidated Net Income plus Consolidated Interest Expense plus
all provisions for any Federal, state or other income taxes plus
depreciation, amortization and other non-cash charges for the
Borrower and its Subsidiaries on a consolidated basis and (ii) to
the extent not included in (i), then the sum of Consolidated Net
Income plus Consolidated Interest Expense plus all provisions for
any Federal, state or other income taxes plus depreciation,
amortization and other non-cash charges for the Xxxxxxx Group,
Inc. and its Subsidiaries on a consolidated basis, determined in
each case in accordance with GAAP applied on a consistent basis.
Except as expressly provided otherwise, the applicable period
shall be for the four consecutive quarters ending as of the date
of determination.
"Consolidated Funded Debt" means Funded Debt of the Borrower
and its Subsidiaries on a consolidated basis determined in
accordance with GAAP applied on a consistent basis.
"Consolidated Funded Debt Ratio" means, as of the last day
of any fiscal quarter, the ratio of Consolidated Funded Debt on
such day to Consolidated EBITDA for the period of four
consecutive fiscal quarters ending as of such day.
"Consolidated Interest Expense" means for any period, all
interest expense, including the amortization of debt discount and
premium and the interest component under Capital Leases for the
Borrower and its Subsidiaries on a consolidated basis determined
in accordance with GAAP applied on a consistent basis. The
applicable period shall be for the four consecutive quarters
ending as of the date of, except that for the first three
complete fiscal quarters to occur after the Closing Date,
Consolidated Interest Expense shall be determined by annualizing
the components thereof for the complete fiscal quarters occurring
after the Closing Date (such that Consolidated Interest Expense
for the first complete fiscal quarter to occur after the Closing
Date would be multiplied by four (4), the first two complete
fiscal quarters would be multiplied by two (2) and the first
three complete fiscal quarters would be multiplied by one and
one-third (1_)).
"Consolidated Net Income" means for any period, the net
income of the Borrower and its Subsidiaries on a consolidated
basis determined in accordance with GAAP applied on a consistent
basis, but excluding for purposes of determining the Consolidated
Funded Debt Ratio and the Debt Service Coverage Ratio any
extraordinary gains or losses, and any taxes on such excluded
gains and any tax deductions or credits on account of any such
excluded losses. The applicable period shall be for the four
consecutive quarters ending as of the date of computation.
"Consolidated Net Worth" means total stockholders' equity of
the Borrower and its Subsidiaries on a consolidated basis as
determined in accordance with GAAP applied on a consistent basis.
"Contractual Obligation" means, as to any Person, any
provision of any security issued by such Person or of any
agreement, instrument or undertaking to which such Person is a
party or by which it or any of its property is bound.
"Credit Documents" means this Credit Agreement, the Notes,
any Joinder Agreement, the Security Agreement, the Agent's Fee
Letter, and all other related agreements and documents issued or
delivered hereunder or thereunder or pursuant hereto or thereto.
"Credit Party" means any of the Borrower and the Guarantors.
"Credit Party Obligations" means, without duplication, all
of the obligations of the Borrower and the other Credit Parties
to the Lenders, the Agent and the Issuing Lender (including the
obligations to pay principal of and interest on the Loans, to pay
LOC Obligations, to pay all Fees, to provide cash collateral in
respect of Letters of Credit, to pay certain expenses and the
obligations arising in connection with various indemnities)
whenever arising, under this Credit Agreement, the Notes or any
other of the Credit Documents to which the Borrower or any other
Credit Party is a party.
"Debt Service Coverage Ratio" means, as of the last day of
any fiscal quarter, the ratio of Consolidated EBITDA for the
period of four consecutive fiscal quarters ending as of such day
to Consolidated Debt Service determined as of such day.
"Debt Transaction" means any sale, issuance or placement of
Indebtedness for borrowed money, including senior or subordinated
debt, whether or not evidenced by promissory note or other
written evidence of indebtedness, of the Borrower or any of its
Subsidiaries.
"Default" means any event, act or condition which with
notice or lapse of time, or both, would constitute an Event of
Default.
"Defaulting Lender" means at any time, any Lender that, at
such time (a) has failed to make a Loan or advance required
pursuant to the terms of this Credit Agreement, including the
funding of a Participation Interest in accordance with the terms
hereof, (b) has failed to pay to the Agent or any Lender an
amount owed by such Lender pursuant to the terms of this Credit
Agreement, or (c) has been deemed insolvent or has become subject
to a bankruptcy or insolvency proceeding or to a receiver,
trustee or similar official.
"Dollars" and "$" means dollars in lawful currency of the
United States of America.
"Domestic Lending Office" means the office or branch of the
Lender identified on Schedule 11.2, or such other office or
branch as the Lender may identify by written notice to the
Borrower and the Agent.
"Eligible Transferee" means and includes a commercial bank,
financial institution or other "accredited investor" (as defined
in Regulation D of the Securities Act of 1933, as amended).
"Environmental Laws" means any and all applicable foreign,
Federal, state, local or municipal laws, rules, orders,
regulations, statutes, ordinances, codes, decrees, requirements
of any Governmental Authority or other Requirement of Law
(including common law) regulating, relating to or imposing
liability or standards of conduct concerning protection of human
health or the environment, as now or may at any time be in effect
during the term of this Credit Agreement.
"Equity Transaction" means any issuance by the Borrower or
any of its Subsidiaries of (i) shares of its capital stock, (ii)
any shares of its capital stock pursuant to the exercise of
options or warrants or (iii) any shares of its capital stock
pursuant to the conversion of any debt securities to equity;
provided, however, "Equity Transaction" shall not include any
such transactions described in this definition which result in
proceeds of less than $500,000 during any fiscal year.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations
promulgated and the rulings issued thereunder.
"Eurodollar Lending Office" means the office or branch of
the Lender identified on Schedule 11.2, or such other office or
branch as the Lender may identify by written notice to the
Borrower and the Agent.
"Eurodollar Loan" means any Loan bearing interest at a rate
determined by reference to the Eurodollar Rate.
"Eurodollar Rate" means, for the Interest Period for each
Eurodollar Loan comprising part of the same borrowing (including
conversions, extensions and renewals), a per annum interest rate
determined pursuant to the following formula:
Eurodollar Rate = Interbank Offered Rate
---------------------------------------
1 - Eurodollar Reserve Percentage
"Eurodollar Reserve Percentage" means for any day, that
percentage (expressed as a decimal) which is in effect from time
to time under Regulation D of the Board of Governors of the
Federal Reserve System (or any successor), as such regulation may
be amended from time to time or any successor regulation, as the
maximum reserve requirement (including, without limitation, any
basic, supplemental, emergency, special, or marginal reserves)
applicable with respect to Eurocurrency liabilities as that term
is defined in Regulation D (or against any other category of
liabilities that includes deposits by reference to which the
interest rate of Eurodollar Loans is determined), whether or not
Lender has any Eurocurrency liabilities subject to such reserve
requirement at that time. Eurodollar Loans shall be deemed to
constitute Eurocurrency liabilities and as such shall be deemed
subject to reserve requirements without benefits of credits for
proration, exceptions or offsets that may be available from time
to time to a Lender. The Eurodollar Rate shall be adjusted
automatically on and as of the effective date of any change in
the Eurodollar Reserve Percentage. The parties hereto
acknowledge and agree that, as of the Closing Date, the
Eurodollar Reserve Percentage is zero (0).
"Event of Default" means such term as defined in Section 9.
"Existing Letters of Credit" means those Letters of Credit
outstanding on the Closing Date and identified on Schedule
2.4(a).
"Extension of Credit" means as to any Lender, the making of
a Loan by such Lender or the issuance of, or participation in, a
Letter of Credit by such Lender.
"Federal Funds Rate" means, for any day, the rate of
interest per annum (rounded upwards, if necessary, to the nearest
whole multiple of 1/100 of 1%) equal to the weighted average of
the rates on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds brokers on
such day, as published by the Federal Reserve Bank of New York on
the Business Day next succeeding such day, provided that (A) if
such day is not a Business Day, the Federal Funds Rate for such
day shall be such rate on such transactions on the next preceding
Business Day and (B) if no such rate is so published on such next
succeeding Business Day, the Federal Funds Rate for such day
shall be the average rate quoted to the Agent on such day on such
transactions as determined by the Agent.
"Fee" means any fee payable pursuant to Section 3.4.
"Foreign Subsidiary" means any Subsidiary that is not
organized and existing under the laws of the United States or any
state or commonwealth thereof or under the laws of the District
of Columbia.
"Funded Debt" means, for any Person, (i) all Indebtedness
of such Person for borrowed money (including without limitation,
indebtedness evidenced by promissory notes, bonds, debentures and
similar instruments and further any portion of the purchase price
for assets or acquisitions permitted hereunder which may be
financed by the seller and Guarantee Obligations by such Person
of Funded Debt of Other Persons), (ii) all purchase money
Indebtedness of such Person, (iii) the principal portion of
Capital Lease Obligations, (iv) the maximum amount available to
be drawn under standby letters of credit and bankers' acceptances
issued or created for the account of such Person, (v) all
preferred stock issued by such Person and required by the terms
thereto to be redeemed, or for which mandatory sinking fund
payments are due, by a fixed date, and (vi) the aggregate amount
of uncollected accounts receivable of such Person subject at such
time to a sale of receivables (or other similar transaction)
regardless of whether such transaction is effected without
recourse to such Person or in a manner which would not be
reflected on the balance sheet of such Person in accordance with
GAAP. Funded Debt shall include payments in respect of Funded
Debt which constitute current liabilities of the obligor under
GAAP. For purposes hereof, Funded Debt shall not include
Subordinated Debt or intercompany Indebtedness owing by a Credit
Party to another Credit Party.
"GAAP" means generally accepted accounting principles in
effect in the United States of America applied on a consistent
basis, subject, however, in the case of determination of
compliance with the financial covenants set out in Section 7.9 to
the provisions of Section 1.3.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Guarantee Obligation" means, as to any Person (the
"guaranteeing person"), any obligation of (a) the guaranteeing
person or (b) another Person (including, without limitation, any
bank under any letter of credit) to induce the creation of which
the guaranteeing person has issued a reimbursement,
counterindemnity or similar obligation, in either case
guaranteeing or in effect guaranteeing any Indebtedness, leases,
dividends or other obligations (the "primary obligations") of any
other third Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any
obligation of the guaranteeing person, whether or not contingent,
(i) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (ii) to
advance or supply funds (1) for the purchase or payment of any
such primary obligation or (2) to maintain working capital or
equity capital of the primary obligor or otherwise to maintain
the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of
the ability of the primary obligor to make payment of such
primary obligation or (iv) otherwise to assure or hold harmless
the owner of any such primary obligation against loss in respect
thereof; provided, however, that the term Guarantee Obligation
shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any
Guarantee Obligation of any guaranteeing person shall be deemed
to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which
such Guarantee Obligation is made and (b) the maximum amount for
which such guaranteeing person may be liable pursuant to the
terms of the instrument embodying such Guarantee Obligation,
unless such primary obligation and the maximum amount for which
such guaranteeing person may be liable are not stated or
determinable, in which case the amount of such Guarantee
Obligation shall be such guaranteeing person's maximum reasonably
anticipated liability in respect thereof as determined by the
Borrower in good faith.
"Guarantor" means those Subsidiaries of the Borrower
identified as a "Guarantor" on the signature pages hereto, and
each Additional Credit Party which has executed a Joinder
Agreement, together with their successors and permitted assigns.
"Guaranty" means the guaranty of the Guarantors set forth in
Section 4.
"Indebtedness" means, of any Person at any date, (a) all
indebtedness of such Person for borrowed money or for the
deferred purchase price of property or services (other than
current trade liabilities incurred in the ordinary course of
business and payable in accordance with customary practices),
(b) any other indebtedness of such Person which is evidenced by a
note, bond, debenture or similar instrument, (c) all obligations
of such Person under Capital Leases, (d) all obligations of such
Person in respect of acceptances issued or created for the
account of such Person, (e) all liabilities secured by any Lien
on any property owned by such Person even though such Person has
not assumed or otherwise become liable for the payment thereof,
(f) all obligations of such Person under conditional sale or
other title retention agreements relating to property purchased
by such Person (other than customary reservations or retentions
of title under agreements with suppliers entered into in the
ordinary course of business), (g) all obligations of such Person
under take-or-pay or similar arrangements or under commodities
agreements, (h) all Guarantee Obligations of such Person, (i) all
obligations of such Person in respect of interest rate protection
agreements, foreign currency exchange agreements, commodity
purchase or option agreements or other interest or exchange rate
or commodity price hedging agreements, (j) the maximum amount of
all letters of credit issued or bankers' acceptances created for
the account of such Person and, without duplication, all drafts
drawn thereunder (to the extent not theretofore reimbursed), (k)
all preferred stock issued by such Person and required by the
terms thereto to be redeemed, or for which mandatory sinking fund
payments are due, by a fixed date, (l) all other obligations
which would be shown as a liability on the balance sheet of such
Person and (m) the aggregate amount of uncollected accounts
receivable of such Person subject at such time to a sale of
receivables (or other similar transaction) regardless of whether
such transaction is effected without recourse to such Person or
in a manner which would not be reflected on the balance sheet of
such Person in accordance with GAAP; but specifically excluding
from the foregoing trade payables and other expenses and reserves
(whether classified as long term or short term) arising or
incurred in the ordinary course of business. For purposes
hereof, Indebtedness shall include Indebtedness of any
partnership in which such Person is a general partner (except for
any such Indebtedness with respect to which the holder is limited
to the assets of such partnership or joint venture).
"Insolvency" means with respect to any Multiemployer Plan,
the condition that such Plan is insolvent within the meaning of
such term as used in Section 4245 of ERISA.
"Insolvent" means pertaining to a condition of Insolvency.
"Interbank Offered Rate" means, with respect to any
Eurodollar Loan for the Interest Period applicable thereto, the
average (rounded upward to the nearest one-sixteenth (1/16) of
one percent) per annum rate of interest determined by the office
of the Agent (each such determination to be conclusive and
binding absent manifest error) as of two Business Days prior to
the first day of such Interest Period, as the effective rate at
which deposits in immediately available funds in U.S. dollars are
being, have been, or would be offered or quoted by the Agent to
major banks in the applicable interbank market for Eurodollar
deposits at such time as the Agent may determine during the
Business Day which is the second Business Day immediately
preceding the first day of such Interest Period, for a term
comparable to such Interest Period and in the amount of the
requested Eurodollar Loan. If no such offers or quotes are
generally available for such amount, then the Agent shall be
entitled to determine the Eurodollar Rate by estimating in its
reasonable judgment the per annum rate (as described above) that
would be applicable if such quote or offers were generally
available.
"Interest Coverage Ratio" means for any period, the ratio of
Consolidated EBITDA to Consolidated Interest Expense.
"Interest Payment Date" means (a) as to any Base Rate Loan,
the last day of each March, June, September and December and the
Termination Date, (b) as to any Swingline Loan, such day as may
be mutually agreed upon by the Borrower and the Swingline Lender,
but not less frequently than once a quarter, (c) as to any
Eurodollar Loan having an Interest Period of three months or
less, the last day of such Interest Period, and (d) as to any
Eurodollar Loan having an Interest Period longer than three
months, each day which is three months after the first day of
such Interest Period and the last day of such Interest Period.
Whenever any Interest Payment Date shall be stated to be due on a
day which is not a Business Day, the due date thereof shall be
extended to the next succeeding Business Day (subject to accrual
of interest and Fees for the period of such extension), except
that in the case of Eurodollar Loans, if the extension would
cause the payment to be made in the next following calendar
month, then such payment shall instead be made on the next
preceding Business Day as provided in Section 3.13.
"Interest Period" means with respect to any Eurodollar Loan,
(i) initially, the period commencing on the Borrowing
Date or conversion date, as the case may be, with respect to
such Eurodollar Loan and ending one, two, three or six
months thereafter, as selected by the Borrower in the notice
of borrowing or notice of conversion given with respect
thereto; and
(ii) thereafter, each period commencing on the last
day of the immediately preceding Interest Period applicable
to such Eurodollar Loan and ending one, two, three or six
months thereafter, as selected by the Borrower by
irrevocable notice to the Agent not less than three Business
Days prior to the last day of the then current Interest
Period with respect thereto;
provided that the foregoing provisions are subject to the
following:
(A) if any Interest Period pertaining to a Eurodollar
Loan would otherwise end on a day that is not a Business
Day, such Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension
would be to carry such Interest Period into another calendar
month in which event such Interest Period shall end on the
immediately preceding Business Day;
(B) any Interest Period pertaining to a Eurodollar
Loan that begins on the last Business Day of a calendar
month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of the
relevant calendar month;
(C) if the Borrower shall fail to give notice as
provided above, the Borrower shall be deemed to have
selected a Base Rate Loan to replace the affected Eurodollar
Loan;
(D) with regards to Revolving Loans, any Interest
Period that would otherwise extend beyond the Termination
Date shall end on the Termination Date and with regard to
the Term Loan, no Interest Period shall extend beyond any
principal amortization payment date unless the portion of
the Term Loan consisting of Base Rate Loans together with
the portion of the Term Loan consisting of Eurodollar Loans
with Interest Periods expiring prior to or concurrently with
the date such principal amortization payment date is due, is
at least equal to the amount of such principal amortization
payment due on such date; and
(E) no more than 20 Eurodollar Loans may be in effect
at any time. For purposes hereof, Eurodollar Loans with
different Interest Periods shall be considered as separate
Eurodollar Loans, even if they shall begin on the same date
and have the same duration, although borrowings, extensions
and conversions may, in accordance with the provisions
hereof, be combined at the end of existing Interest Periods
to constitute a new Eurodollar Loan with a single Interest
Period.
"Interest Protection Agreement" means an interest rate swap
or other interest rate protection agreement or interest rate
future, option, cap, collar or other hedging arrangement.
"Issuing Lender" means as to the Existing Letters of Credit,
the Issuing Lenders identified on Schedule 2.4(a), and as to
Letters of Credit issued after the Closing Date, NationsBank and
The Northern Trust Company, as the Borrower may elect.
"Issuing Lender Fees" means such term as defined in Section
3.4(c).
"Joinder Agreement" means a Joinder Agreement substantially
in the form of Schedule 7.10, executed and delivered by an
Additional Credit Party in accordance with the provisions of
Section 7.10.
"Lenders" means each of the Persons identified as a "Lender"
on the signature pages hereto, and each Person which may become a
Lender by way of assignment in accordance with the terms hereof,
together with their successors and permitted assigns.
"Letter of Credit" means any Existing Letter of Credit and
any letter of credit issued for the account of a Credit Party by
an Issuing Lender as provided in Section 2.4, as such letter of
credit may be amended, supplemented, extended or otherwise
modified from time to time.
"Letter of Credit Fees" means such term as defined in
Section 3.4(b).
"Lien" means any mortgage, pledge, hypothecation,
assignment, deposit arrangement, security interest, encumbrance,
lien (statutory or otherwise), preference, priority or charge of
any kind (including any agreement to give any of the foregoing,
any conditional sale or other title retention agreement, any
financing or similar statement or notice filed under the Uniform
Commercial Code as adopted and in effect in the relevant
jurisdiction or other similar recording or notice statute, and
any lease in the nature thereof).
"Loan" means a Revolving Loan, a Swingline Loan and/or the
Term Loan, as appropriate.
"LOC Commitment" means the commitment of the Issuing Lender
to issue Letters of Credit and with respect to each Lender, the
commitment of such Lender to purchase participation interests in
the Letters of Credit up to such Lender's LOC Committed Amount as
specified in Schedule 2.1(a) (subject to adjustment on account of
assignment pursuant to the provisions of Section 11.6(c) hereof),
as such amount may be reduced from time to time in accordance
with the provisions hereof.
"LOC Commitment Percentage" means for each Lender, the
percentage identified as its LOC Commitment Percentage on
Schedule 2.1(a), as such percentage may be modified in connection
with any assignment made in accordance with the provisions of
Section 11.6(c).
"LOC Committed Amount" means, collectively, the aggregate
amount of all of the LOC Commitments of the Lenders to issue and
participate in Letters of Credit as referenced in Section 2.4
and, individually, the amount of each Lender's LOC Commitment as
specified in Schedule 2.1(a) (subject to adjustment on account of
assignment pursuant to the provisions of Section 11.6(c) hereof).
"LOC Documents" means with respect to any Letter of Credit,
such Letter of Credit, any amendments thereto, any documents
delivered in connection therewith, any application therefor, and
any agreements, instruments, guarantees or other documents
(whether general in application or applicable only to such Letter
of Credit) governing or providing for (i) the rights and
obligations of the parties concerned or (ii) any collateral
security for such obligations.
"LOC Obligations" means, at any time, the sum of (i) the
maximum amount which is, or at any time thereafter may become,
available to be drawn under Letters of Credit then outstanding,
assuming compliance with all requirements for drawings referred
to in such Letters of Credit plus (ii) the aggregate amount of
all drawings under Letters of Credit honored by the Issuing
Lender but not theretofore reimbursed.
"Mandatory Borrowing": such term as defined in Section
2.3(b)(ii) or Section 2.4(e).
"Material Adverse Effect" means a material adverse effect on
(a) the business, operations, property, condition (financial or
otherwise) or prospects of the Borrower and its Subsidiaries
taken as a whole, (b) the ability of the Borrower or the other
Credit Parties to perform their obligations, when such
obligations are required to be performed, under this Credit
Agreement or any of the other Credit Documents or (c) the
validity or enforceability of this Credit Agreement, any of the
Notes or any of the other Credit Documents or the rights or
remedies of the Agent or the Lenders hereunder or thereunder.
"Materials of Environmental Concern" means any gasoline or
petroleum (including crude oil or any fraction thereof) or
petroleum products or any hazardous or toxic substances,
materials or wastes, defined or regulated as such in or under any
Environmental Law, including, without limitation, asbestos,
polychlorinated biphenyls and urea-formaldehyde insulation.
"Moody's" means Xxxxx'x Investors Service, Inc., or any
successor or assignee of the business of such company in the
business of rating securities.
"Multiemployer Plan" means a Plan which is a multiemployer
plan as defined in Section 4001(a)(3) of ERISA.
"NationsBank" means NationsBank, N.A. and its successors.
"Net Proceeds" means the gross cash proceeds (including cash
by way of deferred payment pursuant to a promissory note,
receivable or otherwise, but only as and when received) received
from the sale, lease, conveyance, disposition or other transfer
of assets, or from a Recovery Event or from the sale, issuance or
placement of equity securities, Indebtedness for borrowed money
or Subordinated Debt to or from a Person other than a Credit
Party, net of (i) transaction costs payable to third parties,
(ii) the estimated taxes payable with respect to such proceeds
(including, without duplication, withholding taxes), (iii)
Indebtedness (other than Indebtedness of the Lenders pursuant to
the Credit Documents) which is secured by the assets which are
the subject of such event to the extent such Indebtedness is paid
with a portion of the proceeds therefrom, and (iv) any and all
cash costs which may occur as a result of discontinuing
operations, shut-downs or otherwise resulting from, the
disposition of such assets.
"Non-Excluded Taxes" means such term as is defined in
Section 3.9.
"Non-Guarantor Domestic Subsidiaries" means such term as
defined in Section 7.10.
"Note" or "Notes" means the Revolving Notes, the Swingline
Note and/or the Term Notes, collectively, separately or
individually, as appropriate.
"Notice of Borrowing" means the written notice of borrowing
as referenced and defined in Section 2.1(b)(i) or 2.3(b)(i), as
appropriate.
"Notice of Extension/Conversion" means the written notice of
extension or conversion as referenced and defined in Section 3.2.
"Obligations" means collectively, Loans and LOC Obligations.
"Participants" means such term as defined in Section 11.6.
"Participation Interest" means the purchase by a Lender of a
participation interest in Swingline Loans as provided in Section
2.3(b)(ii) or in Letters of Credit as provided in Section 2.4.
"PBGC" means the Pension Benefit Guaranty Corporation
established under ERISA, and any successor thereto.
"Permitted Investments" means (i) cash and Cash Equivalents,
(ii) receivables owing to the Borrower or any of its Subsidiaries
or any receivables and advances to suppliers, in each case if
created, acquired or made in the ordinary course of business and
payable or dischargeable in accordance with customary trade
terms, (iii) investments in and to a domestic Credit Party, (iv)
loans and advances to officers, directors, employees and
Affiliates in an aggregate amount not to exceed $500,000 at any
time outstanding, (v) investments (including debt obligations)
received in connection with the bankruptcy or reorganization of
suppliers and customers and in settlement of delinquent
obligations of, and other disputes with, customers and suppliers
arising in the ordinary course of business, (vi) investments,
acquisitions or transactions permitted under Section 8.4(b),
(vii) with respect to any Subsidiary that is a Foreign
Subsidiary, loans, advances and/or investments by such Foreign
Subsidiary to or in other foreign Persons, whether denominated in
Dollars or otherwise, (viii) with respect to any pension trust
maintained for the benefit of any present or former employees of
the Borrower or any Subsidiary, such loans, advances and/or
investments as the trustee or administrator of the trust shall
deem advisable pursuant to the terms of such trust, and (ix)
additional loan advances and/or investments of a nature not
contemplated by the foregoing clauses hereof (including loans,
advances and/or investments in Foreign Subsidiaries), provided
that such loans, advances and/or investments made pursuant to
this clause (ix) shall not exceed an aggregate amount of
$5,000,000. As used herein, "investment" means all investments,
in cash or by delivery of property made, directly or indirectly
in, to or from any Person, whether by acquisition of shares of
capital stock, property, assets, indebtedness or other
obligations or securities or by loan advance, capital
contribution or otherwise.
"Permitted Liens" means
(i) Liens created by or otherwise existing, under or in
connection with this Credit Agreement or the other Credit
Documents in favor of the Lenders;
(ii) Liens in favor of a Lender hereunder as the provider
of interest rate protection relating to the Loans hereunder, but
only (A) to the extent such Liens secure obligations under such
interest rate protection agreements permitted under Section 8.1,
(B) to the extent such Liens are on the same collateral as to
which the Lenders also have a Lien and (C) if such provider and
the Lenders shall share pari passu in the collateral subject to
such Liens;
(iii) purchase money Liens securing purchase money
indebtedness (and refinancings thereof) to the extent permitted
under Section 8.1(c);
(iv) Liens for taxes, assessments, charges or other
governmental levies not yet due or as to which the period of
grace (not to exceed 60 days), if any, related thereto has not
expired or which are being contested in good faith by appropriate
proceedings, provided that adequate reserves with respect thereto
are maintained on the books of the Borrower or its Subsidiaries,
as the case may be, in conformity with GAAP (or, in the case of
Subsidiaries with significant operations outside of the United
States of America, generally accepted accounting principles in
effect from time to time in their respective jurisdictions of
incorporation);
(v) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than 60 days
or which are being contested in good faith by appropriate
proceedings;
(vi) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation and deposits securing liability to insurance carriers
under insurance or self-insurance arrangements;
(vii) deposits to secure the performance of bids, trade
contracts, (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business;
(viii) any extension, renewal or replacement (or successive
extensions, renewals or replacements) , in whole or in part, of
any Lien referred to in the foregoing clauses; provided that such
extension, renewal or replacement Lien shall be limited to all or
a part of the property which secured the Lien so extended,
renewed or replaced (plus improvements on such property);
(ix) easements, rights of way, restrictions and other
similar encumbrances incurred in the ordinary course of business
which, in the aggregate, are not material in amount and which do
not in any case materially detract from the value of the property
subject thereto or materially interfere with the ordinary conduct
of the business of the Borrower or any Subsidiary;
(x) Liens in existence on the date hereof listed on
Schedule 8.2, securing Indebtedness permitted by Section 8.1(b),
provided that no such Lien is spread to cover any additional
property (other than proceeds of the collateral originally
subject to such Lien in accordance with the instrument creating
such Lien) after the Closing Date and that the amount of
Indebtedness secured thereby is not increased;
(xi) Liens on the property or assets of a corporation which
becomes a Subsidiary after the Closing Date securing Indebtedness
permitted by Section 8.1(i), provided that (A) such Liens existed
at the time such corporation became a Subsidiary and were not
created in anticipation thereof, and (B) no such Lien is spread
to cover any additional property (other than proceeds of the
collateral originally subject to such Lien in accordance with the
instrument creating such Lien) after the Closing Date and that
the amount of Indebtedness secured thereby is not increased;
(xii) Liens in the nature of licenses that arise in the
ordinary course of business and consistent with past practice;
(xiii) Liens incurred in connection with Indebtedness
permitted by Section 8.1(h), provided that no such Lien shall be
spread to cover any additional property after the Closing Date
and the amount of Indebtedness secured thereby shall not be
increased;
(xiv) leases and subleases otherwise permitted hereunder
granted to others not interfering in any material respect in the
business of the Borrower or any Subsidiary; and
(xv) attachment or judgment Liens, where the attachment or
judgment which gave rise to such Liens does not constitute an
Event of Default hereunder.
"Permitted Sale-Leaseback Transaction" means a transaction
pursuant to which a Credit Party sells an item of equipment to a
financial institution and concurrently with such sale (i) leases
such item of equipment back from such financial institution and
(ii) subleases such item of equipment to a customer of the Credit
Party pursuant to a sublease agreement under which such customer
obtains an option to purchase such item of equipment at or before
the end of such sublease.
"Person" means any individual, partnership, joint venture,
firm, corporation, limited liability company, association, trust
or other enterprise (whether or not incorporated) or any
Governmental Authority.
"Plan" means at any particular time, any employee benefit
plan which is covered by Title IV of ERISA and in respect of
which the Borrower or a Commonly Controlled Entity is (or, if
such plan were terminated at such time, would under Section 4069
of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Prime Rate" means the per annum rate of interest
established from time to time by the Agent at its principal
office in Charlotte, North Carolina as its Prime Rate. Any
change in the interest rate resulting from a change in the Prime
Rate shall become effective as of 12:01 a.m. of the Business Day
on which each change in the Prime Rate is announced by the Agent.
The Prime Rate is a reference rate used by the Agent in
determining interest rates on certain loans and is not intended
to be the lowest rate of interest charged on any extension of
credit to any debtor.
"Pro Forma Basis" means, with respect to any transaction,
that such transaction shall be deemed to have occurred as of the
first day of the four-fiscal quarter period ending as of the end
of the fiscal quarter most recently ended prior to the date of
such transaction with respect to which the Agent has received the
financial information required under Section 7.1. As used
herein, "transaction" means any merger, consolidation or
acquisition as referenced in Section 8.5(b).
"Properties" means such term as defined in subsection
6.10(a).
"Purchase Agreement" means such term as defined in Section
5.1(e).
"Purchasing Lender" means such term as defined in Section
11.6(c).
"Recovery Event" means the receipt by the Borrower or any of
its Subsidiaries of any cash insurance proceeds or condemnation
award payable by reason of theft, loss, physical destruction or
damage, taking or similar event with respect to any of their
respective property or assets.
"Register" means such term as defined in Section 11.6(d).
"Reorganization" means with respect to any Multiemployer
Plan, the condition that such Plan is in reorganization within
the meaning of such term as used in Section 4241 of ERISA.
"Reportable Event" means any of the events set forth in
Section 4043(b) of ERISA, other than those events as to which the
thirty-day notice period is waived under subsections .13, .14,
.16, .18, .19 or .20 of PBGC Reg. S2615.
"Required Lenders" means Lenders holding in the aggregate at
least 51% of the sum of (i) all Obligations then outstanding at
such time and (ii) the aggregate unused Commitments at such time
(treating for purposes hereof in the case of Swingline Loans and
LOC Obligations, in the case of the Swingline Lender and the
Issuing Lender, only the portion of the Swingline Loans and the
LOC Obligations of the Swingline Lender and the Issuing Lender,
respectively, which is not subject to the Participation Interests
of the other Lenders and, in the case of the Lenders other than
the Swingline Lender and the Issuing Lender, the Participation
Interests of such Lenders in Swingline Loans and LOC Obligations
hereunder as direct Obligations); provided, however, that if any
Lender shall be a Defaulting Lender at such time, then there
shall be excluded from the determination of Required Lenders the
Obligations (including Participation Interests) of such
Defaulting Lender and such Defaulting Lender's Commitments, or
after termination of the Commitments, the principal balance of
the Obligations owing to such Defaulting Lender.
"Requirement of Law" means, as to any Person, the
certificate of incorporation and by-laws or other organizational
or governing documents of such Person, and any law, treaty, rule
or regulation or determination of an arbitrator or a court or
other Governmental Authority, in each case applicable to or
binding upon such Person or to which any of its material property
is subject.
"Revolving Commitment" means with respect to each Lender,
the commitment of such Lender to make Revolving Loans in an
aggregate principal amount at any time outstanding up to such
Lender's Revolving Committed Amount as specified in Schedule
2.1(a) (subject to adjustment on account of assignment pursuant
to the provisions of Section 11.6(c) hereof), as such amount may
be reduced from time to time in accordance with the provisions
hereof.
"Revolving Commitment Percentage" means for each Lender, the
percentage identified as its Revolving Commitment Percentage on
Schedule 2.1(a), as such percentage may be modified in connection
with any assignment made in accordance with the provisions of
Section 11.6(c).
"Revolving Committed Amount" means collectively, the
aggregate amount of all of the Revolving Commitments as
referenced in Section 2.1(a) and, individually, the amount of
each Lender's Revolving Commitment as specified in Schedule
2.1(a) (subject to adjustment on account of assignment pursuant
to the provisions of Section 11.6(c) hereof).
"Revolving Loans" means as defined in Section 2.1.
"Revolving Note" or "Revolving Notes" means the promissory
notes of the Borrower in favor of each of the Lenders evidencing
the Revolving Loans provided pursuant to Section 2.1(e),
individually or collectively, as appropriate, as such promissory
notes may be amended, modified, supplemented, extended, renewed
or replaced from time to time.
"S&P" means Standard & Poor's Ratings Group, a division of
McGraw Hill, Inc., or any successor or assignee of the business
of such division in the business of rating securities.
"Security Agreement" means that Security and Pledge
Agreement dated as of the Closing Date given by the Borrower and
the Guarantors to the Agent, as amended, supplemented or
otherwise modified from time to time.
"Single Employer Plan" means any Plan which is not a Multi-
Employer Plan.
"Solvent" means, with respect to any Credit Party as of a
particular date, that on such date (i) such Credit Party is able
to realize upon its assets and pay its debts and other
liabilities, contingent obligations and other commitments as they
mature in the normal course of business, (ii) such Credit Party
does not intend to, and does not believe that it will, incur
debts or liabilities beyond such Credit Party's ability to pay as
such debts and liabilities mature in their ordinary course, (iii)
such Credit Party is not engaged in a business or a transaction,
and is not about to engage in a business or a transaction, for
which such Credit Party's property would constitute unreasonably
small capital after giving due consideration to the prevailing
practice in the industry in which such Credit Party is engaged or
is to engage, (vi) the fair value of the property of such Credit
Party is greater than the total amount of liabilities, including,
without limitation, contingent liabilities, of such Credit Party
and (v) the present fair saleable value of the assets of such
Credit Party is not less than the amount that will be required to
pay the probable liability of such Credit Party on its debts as
they become absolute and matured. In computing the amount of
contingent liabilities at any time, it is intended that such
liabilities will be computed at the amount which, in light of all
the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or
matured liability.
"Specified Sales" means (i) the sale, transfer, lease or
other disposition of inventory and materials in the ordinary
course of business, (ii) the sale, transfer, lease or other
disposition of machinery, parts, equipment and real estate no
longer useful in the conduct of the business of the Borrower or
any of its Subsidiaries, as appropriate, and (iii) in addition to
the transactions described in subsections (i) and (ii), any other
sale, transfer, lease or other disposition of assets where the
proceeds of such disposition do not exceed $1,000,000 during any
fiscal year or $5,000,000 during the term of this Credit
Agreement.
"Subordinated Debt" means such term as defined in Section
8.9.
"Subsidiary" means, as to any Person, a corporation,
partnership or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than
stock or such other ownership interests having such power only by
reason of the happening of a contingency) to elect a majority of
the board of directors or other managers of such corporation,
partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or
indirectly through one or more intermediaries, or both, by such
Person. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Credit Agreement shall
refer to a Subsidiary or Subsidiaries of the Borrower.
"Swingline Commitment" means the commitment of the Swingline
Lender to make Swingline Loans in an aggregate principal amount
at any time outstanding up to the Swingline Committed Amount, and
the commitment of the Lenders to purchase participation interests
in the Swingline Loans as provided in Section 2.3(b)(ii), as such
amounts may be reduced from time to time in accordance with the
provisions hereof.
"Swingline Committed Amount" means the amount of the
Swingline Lender's Swingline Commitment as specified in Section
2.3(a).
"Swingline Lender" means NationsBank, in its capacity as
such.
"Swingline Loan" or "Swingline Loans" means as defined in
Section 2.3(a).
"Swingline Note" means the promissory note of the Borrower
in favor of the Swingline Lender evidencing the Swingline Loans
provided pursuant to Section 2.3(d), as such promissory note may
be amended, modified, supplemented, extended, renewed or replaced
from time to time.
"Term Loan" means as defined in Section 2.2(a).
"Term Loan Commitment" means with respect to each Lender,
the commitment of such Lender to make its portion of the Term
Loan as specified in Schedule 2.1(a) (and for purposes of making
determinations of Required Lenders hereunder after the Closing
Date, the principal amount outstanding on the Term Loan).
"Term Loan Commitment Percentage" means for each Lender, its
Term Loan Commitment Percentage on Schedule 2.1(a), as such
percentage may be modified in accordance with the provisions of
Section 11.6(c).
"Term Loan Committed Amount" means collectively, the
aggregate amount of all of the Term Loan Commitments as
referenced in Section 2.2(a) and, individually, the amount of
each Lender's Term Loan Commitment as specified in Schedule
2.1(a).
"Term Note" or "Term Notes" means the promissory notes of
the Borrower in favor of each of the Lenders evidencing the Term
Loan provided pursuant to Section 2.2(d), individually or
collectively, as appropriate, as such promissory notes may be
amended, modified, supplemented, extended, renewed or replaced
from time to time.
"Termination Date" means December 31, 2001.
"Threshold Requirement" means such term as defined in
Section 7.10.
"Tranche" means the collective reference to Eurodollar Loans
whose Interest Periods begin and end on the same day. A Tranche
may sometimes be referred to as a "Eurodollar Tranche".
"Transfer Effective Date" means such term as defined in the
Commitment Transfer Supplement.
"Transferee" means such term as defined in Section 11.6(f).
"Type" means, as to any Loan, its nature as a Base Rate
Loan, Eurodollar Loan or Swingline Loan, as the case may be.
"Warrant Purchase Agreement" means the agreement between the
Borrower and General Electric Capital Corporation ("GECC")
attached as Exhibit C to the Purchase Agreement pursuant to which
the Borrower agrees to purchase from GECC certain warrants to
purchase common stock in The Xxxxxxx Group, Inc.
1.2 Other Definitional Provisions.
(a) Unless otherwise specified therein, all terms defined
in this Credit Agreement shall have the defined meanings when
used in the Notes or other Credit Documents or any certificate or
other document made or delivered pursuant hereto.
(b) The words "hereof", "herein" and "hereunder" and words
of similar import when used in this Credit Agreement shall refer
to this Credit Agreement as a whole and not to any particular
provision of this Credit Agreement, and Section, subsection,
Schedule and Exhibit references are to this Credit Agreement
unless otherwise specified.
(c) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such
terms.
(d) For purposes of computation of periods of time
hereunder, the word "from" means "from and including" and the
words "to" and "until" each mean "to but excluding".
1.3 Accounting Terms and Determinations. Unless otherwise
specified herein, all terms of an accounting character used herein
shall be interpreted, all accounting determinations hereunder shall be
made, and all financial statements required to be delivered hereunder
shall be prepared, in accordance with GAAP, applied on a basis
consistent (except for changes concurred in by the Borrower's
independent public accountants or otherwise required by a change in
GAAP) with the most recent audited consolidated financial statements
of the Borrower and its consolidated Subsidiaries delivered to the
Lenders unless with respect to any such change concurred in by the
Borrower's independent public accountants or required by GAAP, in
determining compliance with any of the provisions of this Credit
Agreement or any of the other Credit Documents: (i) the Borrower shall
have objected to determining such compliance on such basis at the time
of delivery of such financial statements, or (ii) the Required Lenders
shall so object in writing within 30 days after the delivery of such
financial statements, in either of which events such calculations
shall be made on a basis consistent with those used in the preparation
of the latest financial statements as to which such objection shall
not have been made (which, if objection is made in respect of the
first financial statements delivered under Section 7.1 hereof, shall
mean the financial statements referred to in Section 6.1).
SECTION 2
CREDIT FACILITIES
2.1 Revolving Loans.
(a) Revolving Commitment. During the Commitment Period, subject
to the terms and conditions hereof, each Lender severally agrees to
make revolving credit loans ("Revolving Loans") to the Borrower from
time to time for the purposes hereinafter set forth; provided,
however, that (i) with regard to each Lender individually, the sum of
such Lender's share of outstanding Revolving Loans plus such Lender's
Revolving Commitment Percentage of Swingline Loans plus such Lender's
LOC Commitment Percentage of LOC Obligations shall not exceed such
Lender's Revolving Committed Amount, and (ii) with regard to the
Lenders collectively, the sum of the aggregate amount of outstanding
Revolving Loans plus Swingline Loans plus the aggregate amount of LOC
Obligations shall not exceed FIFTY-FIVE MILLION DOLLARS ($55,000,000)
(as such aggregate maximum amount may be reduced from time to time as
provided herein, the "Revolving Committed Amount"). Revolving Loans
may consist of Base Rate Loans or Eurodollar Loans, or a combination
thereof, as the Borrower may request, and may be repaid and reborrowed
in accordance with the provisions hereof. Eurodollar Loans shall be
made by each Lender at its Eurodollar Lending Office and Base Rate
Loans at its Domestic Lending Office.
(b) Revolving Loan Borrowings.
(i) Notice of Borrowing. The Borrower shall request a
Revolving Loan borrowing by written notice (or telephone notice
promptly confirmed in writing which confirmation may be by fax)
to the Agent not later than 11:30 A.M. (Charlotte, North Carolina
time) on the Business Day prior to the date of requested
borrowing in the case of Base Rate Loans, and on the third
Business Day prior to the date of the requested borrowing in the
case of Eurodollar Loans. Each such request for borrowing shall
be irrevocable and shall specify (A) that a Revolving Loan is
requested, (B) the date of the requested borrowing (which shall
be a Business Day), (C) the aggregate principal amount to be
borrowed, and (D) whether the borrowing shall be comprised of
Base Rate Loans, Eurodollar Loans or a combination thereof, and
if Eurodollar Loans are requested, the Interest Period(s)
therefor. A form of Notice of Borrowing (a "Notice of
Borrowing") is attached as Schedule 2.1(b)(i). If the Borrower
shall fail to specify in any such Notice of Borrowing (I) an
applicable Interest Period in the case of a Eurodollar Loan, then
such notice shall be deemed to be a request for an Interest
Period of one month, or (II) the type of Revolving Loan
requested, then such notice shall be deemed to be a request for a
Base Rate Loan hereunder. The Agent shall give notice to each
Lender promptly upon receipt of each Notice of Borrowing, the
contents thereof and each such Lender's share thereof.
(ii) Minimum Amounts. Each Revolving Loan borrowing shall
be in a minimum aggregate amount of $2,000,000 and integral
multiples of $1,000,000 in excess thereof (or the remaining
amount of the Revolving Commitment, if less).
(iii) Advances. Each Lender will make its Revolving
Commitment Percentage of each Revolving Loan borrowing available
to the Agent for the account of the Borrower at the office of the
Agent specified in Schedule 11.2, or at such other office as the
Agent may designate in writing, by 1:00 P.M. (Charlotte, North
Carolina time) on the date specified in the applicable Notice of
Borrowing in Dollars and in funds immediately available to the
Agent. Such borrowing will then be made available to the
Borrower by the Agent by crediting the account of the Borrower on
the books of such office with the aggregate of the amounts made
available to the Agent by the Lenders and in like funds as
received by the Agent.
(c) Repayment. The principal amount of all Revolving Loans
shall be due and payable in full on the Termination Date.
(d) Interest. Subject to the provisions of Section 3.1,
Revolving Loans shall bear interest as follows:
(i) Base Rate Loans. During such periods as Revolving
Loans shall be comprised of Base Rate Loans, each such Base Rate
Loan shall bear interest at a per annum rate equal to the sum of
the Base Rate plus the Applicable Percentage; and
(ii) Eurodollar Loans. During such periods as Revolving
Loans shall be comprised of Eurodollar Loans, each such
Eurodollar Loan shall bear interest at a per annum rate equal to
the sum of the applicable Eurodollar Rate plus the Applicable
Percentage.
Interest on Revolving Loans shall be payable in arrears on each
Interest Payment Date.
(e) Revolving Notes. The Revolving Loans shall be evidenced by
a duly executed promissory note of the Borrower to each Lender in the
original principal amount of each such Lender's Revolving Committed
Amount in substantially the form of Schedule 2.1(e).
2.2 Term Loan.
(a) Term Loan. Subject to and upon the terms and conditions
hereof, each Lender severally agrees to make its Term Loan Commitment
Percentage of a term loan (the "Term Loan") to the Borrower on the
Closing Date in the aggregate principal amount of ONE HUNDRED TWENTY-
FIVE MILLION DOLLARS ($125,000,000) for the purposes hereinafter set
forth. The Term Loan may consist of Base Rate Loans or Eurodollar
Loans, or a combination thereof, as the Borrower may request. Unless
otherwise specified, the Term Loan shall initially be comprised
entirely of Base Rate Loans. The Term Loan will be made in two
separate advances. The first advance will be made on the Closing Date
in an aggregate principal amount of up to $110,000,000. The second
advance will be made at any time from the Closing Date to April 1,
1996 upon the written request of the Borrower and confirmation by the
Borrower to the Agent as to the uses for the proceeds thereof and
satisfaction of the conditions set forth in Section 5.2, in an
aggregate principal amount equal to the difference between the
aggregate Term Loan Committed Amount and the principal amount of the
first advance under the Term Loan. Amounts repaid on the Term Loan
may not be reborrowed. Each Lender will make its Term Loan Commitment
Percentage of each Term Loan advance available to the Agent on the
applicable date for each such advance. Eurodollar Loans shall be made
by each Lender at its Eurodollar Lending Office and Base Rate Loans at
its Domestic Lending Office. In the event the Borrower shall fail to
borrow the entire Term Loan Committed Amount, the scheduled
amortization payments required under Section 2.2(b) shall be reduced
in inverse order of maturity by the amount of the difference.
(b) Repayment of Term Loan. The principal amount of the Term
Loan shall be repaid in twenty-four (24) consecutive quarterly
installments as follows:
Payment Date Amount
March 31, 1996 $ 2,500,000
June 30, 1996 $ 2,500,000
September 30, 1996 $ 2,500,000
December 31, 1996 $ 2,500,000
March 31, 1997 $ 3,750,000
June 30, 1997 $ 3,750,000
September 30, 1997 $ 3,750,000
December 31, 1997 $ 3,750,000
March 31, 1998 $ 5,000,000
June 30, 1998 $ 5,000,000
September 30, 1998 $ 5,000,000
December 31, 1998 $ 5,000,000
March 31, 1999 $ 6,250,000
June 30, 1999 $ 6,250,000
September 30, 1999 $ 6,250,000
December 31, 1999 $ 6,250,000
March 31, 2000 $ 6,250,000
June 30, 2000 $ 6,250,000
September 30, 2000 $ 6,250,000
December 31, 2000 $ 6,250,000
March 31, 2001 $ 7,500,000
June 30, 2001 $ 7,500,000
September 30, 2001 $ 7,500,000
December 31, 2001 $ 7,500,000
------------
$125,000,000
============
(c) Interest on the Term Loan. Subject to the provisions of
Section 3.1, the Term Loan shall bear interest as follows:
(i) Base Rate Loans. During such periods as the Term Loan
shall be comprised of Base Rate Loans, each such Base Rate Loan
shall bear interest at a per annum rate equal to the sum of the
Base Rate plus the Applicable Percentage; and
(ii) Eurodollar Loans. During such periods as the Term Loan
shall be comprised of Eurodollar Loans, each such Eurodollar Loan
shall bear interest at a per annum rate equal to the sum of the
applicable Eurodollar Rate plus the Applicable Percentage.
Interest on the Term Loan shall be payable in arrears on each Interest
Payment Date.
(d) Term Notes. The Term Loan shall be evidenced by a duly
executed promissory note of the Borrower to each Lender in
substantially the form of Schedule 2.2(d) in the original principal
amount of each such Lender's Term Loan Committed Amount.
2.3 Swingline Loan Subfacility.
(a) Swingline Commitment. During the Commitment Period, subject
to the terms and conditions hereof, the Swingline Lender, in its
individual capacity, agrees to make certain revolving credit loans to
the Borrower (each a "Swingline Loan" and, collectively, the
"Swingline Loans") for the purposes hereinafter set forth; provided,
however, (i) the aggregate amount of Swingline Loans outstanding at
any time shall not exceed TEN MILLION DOLLARS ($10,000,000) (the
"Swingline Committed Amount"), and (ii) the sum of the aggregate
amount of outstanding Revolving Loans plus Swingline Loans plus the
aggregate amount of LOC Obligations shall not exceed the aggregate
Revolving Committed Amount. Swingline Loans hereunder may be repaid
and reborrowed in accordance with the provisions hereof.
(b) Swingline Loan Borrowings.
(i) Notice of Borrowing and Disbursement. The Swingline
Lender will make Swingline Loans available to the Borrower upon
request or on the basis of such other arrangements as may be
agreed upon between the Swingline Lender and the Borrower. A
notice of request for Swingline Loan borrowing may, but need not,
be in the form of Schedule 2.1(b)(i). There shall be no minimum
amount for Swingline Loan borrowings hereunder.
(ii) Repayment of Swingline Loans. Each Swingline Loan
borrowing shall be due and payable on the earlier of (A) the date
of the next Revolving Loan borrowing, or (B) the Termination
Date. If, and to the extent, any Swingline Loans shall be
outstanding on the date of any Revolving Loan borrowing, such
Swingline Loans shall first be repaid from the proceeds of such
Revolving Loan borrowing prior to disbursement to the Borrower.
In addition, the Swingline Lender may, at any time, in its sole
discretion, by written notice to the Borrower and the Agent,
demand repayment of its Swingline Loans by way of a Revolving
Loan borrowing, in which case the Borrower shall be deemed to
have requested a Revolving Loan borrowing comprised entirely of
Base Rate Loans in the amount of such Swingline Loans; provided,
however, that, in the following circumstances, any such demand
shall also be deemed to have been given one Business Day prior to
each of (i) the Termination Date, (ii) the occurrence of any
Event of Default described in Section 9(e), (iii) upon
acceleration of the Obligations hereunder, whether on account of
an Event of Default described in Section 9(e) or any other Event
of Default, and (iv) the exercise of remedies in accordance with
the provisions of Section 9 hereof (each such Revolving Loan
borrowing made on account of any such deemed request therefor as
provided herein being hereinafter referred to as a "Mandatory
Borrowing"). Each Lender hereby irrevocably agrees to make such
Revolving Loans promptly upon any such request or deemed request
on account of each Mandatory Borrowing in the amount and in the
manner specified in the preceding sentence and on the same such
date notwithstanding (I) the amount of Mandatory Borrowing may
not comply with the minimum amount for borrowings of Revolving
Loans otherwise required hereunder, (II) whether any conditions
specified in Section 5.2 are then satisfied, (III) whether a
Default or an Event of Default then exists, (IV) failure of any
such request or deemed request for Revolving Loans to be made by
the time otherwise required in Section 2.1(b)(i), (V) the date of
such Mandatory Borrowing, or (VI) any reduction in the Revolving
Committed Amount or termination of the Commitments relating
thereto immediately prior to such Mandatory Borrowing or
contemporaneous therewith. In the event that any Mandatory
Borrowing cannot for any reason be made on the date otherwise
required above (including, without limitation, as a result of the
commencement of a proceeding in bankruptcy with respect to the
Borrower), then each Lender hereby agrees that it shall forthwith
purchase (as of the date the Mandatory Borrowing would otherwise
have occurred, but adjusted for any payments received from the
Borrower on or after such date and prior to such purchase) from
the Swingline Lender such participations in the outstanding
Swingline Loans as shall be necessary to cause each such Lender
to share in such Swingline Loans ratably based upon its
respective Revolving Commitment Percentage (determined before
giving effect to any termination of the Commitments pursuant to
Section 9), provided that (A) all interest payable on the
Swingline Loans shall be for the account of the Swingline Lender
until the date as of which the respective participation is
purchased, and (B) at the time any purchase of participations
pursuant to this sentence is actually made, the purchasing Lender
shall be required to pay to the Swingline Lender interest on the
principal amount of such participation purchased for each day
from and including the day upon which the Mandatory Borrowing
would otherwise have occurred to but excluding the date of
payment for such participation, at the rate equal to, if paid
within two (2) Business Days of the date of the Mandatory
Borrowing, the Federal Funds Rate, and thereafter at a rate equal
to the Base Rate.
(c) Interest on Swingline Loans. Subject to the provisions of
Section 3.1, Swingline Loans shall bear interest at a per annum rate
equal to the Base Rate plus the Applicable Percentage. Interest on
Swingline Loans shall be payable in arrears on each Interest Payment
Date.
(d) Swingline Note. The Swingline Loans shall be evidenced by a
duly executed promissory note of the Borrower to the Swingline Lender
in the original amount of the Swingline Committed Amount and
substantially in the form of Schedule 2.3(d).
2.4 Letter of Credit Subfacility.
(a) Issuance. Subject to the terms and conditions hereof and of
the LOC Documents, if any, and any other terms and conditions which
the Issuing Lender may reasonably require, during the Commitment
Period the Issuing Lender shall issue, and the Lenders shall
participate in, Letters of Credit for the account of the Borrower from
time to time upon request in a form acceptable to the Issuing Lender;
provided, however, that (i) the aggregate amount of LOC Obligations
shall not at any time exceed TEN MILLION DOLLARS ($10,000,000) (the
"LOC Committed Amount"), and (ii) the sum of the aggregate amount of
Revolving Loans plus Swingline Loans plus the aggregate amount of LOC
Obligations shall not at any time exceed the aggregate Revolving
Committed Amount. Except as otherwise expressly agreed upon by all of
the Lenders, no Letter of Credit shall have an original expiry date
more than one year from the date of issuance or extension; provided,
however, that so long as no Default or Event of Default shall have
occurred and be continuing and subject to the other terms and
conditions to the issuance of Letters of Credit hereunder, the expiry
dates of Letters of Credit may be extended annually on each
anniversary date of their date of issuance for an additional period
not to exceed one year; and provided further that no Letter of Credit
as originally issued or as extended, shall have an expiry date
extending beyond the Termination Date, except that prior to the
Termination Date a Letter of Credit may be issued or extended with an
expiry date extending beyond the Termination Date if, and to the
extent that the Borrower shall provide cash collateral to the Issuing
Lender on the date of issuance or extension in an amount equal to the
maximum amount available to be drawn under such Letter of Credit.
Each Letter of Credit shall comply with the related LOC Documents.
The issuance and expiry date of each Letter of Credit shall be a
Business Day. Letters of Credit shall be issued or extended in
minimum original face amounts of $200,000. In the case of a conflict
in the terms of the LOC Documents and this Credit Agreement, the terms
of this Credit Agreement shall control.
(b) Notice and Reports. The request for the issuance of a
Letter of Credit shall be submitted to the Issuing Lender and the
Agent at least five (5) Business Days prior to the requested date of
issuance. The Issuing Lender will, at least quarterly and more
frequently upon request, provide to the Agent for dissemination to the
Lenders a detailed report specifying the Letters of Credit which are
then issued and outstanding and any activity with respect thereto
which may have occurred since the date of the prior report, and
including therein, among other things, the account party, the
beneficiary, the face amount, expiry date as well as any payments or
expirations which may have occurred. The Issuing Lender will further
provide to the Agent promptly upon request copies of the Letters of
Credit. The Issuing Lender will provide to the Agent prompt notice of
any changes in LOC Obligations issued by it, and more frequently upon
request, a summary report of the nature and extent of LOC Obligations
then outstanding.
(c) Participations. Each Lender, with respect to the Existing
Letters of Credit, hereby purchases a participation interest in such
Existing Letters of Credit and with respect to Letters of Credit
issued on or after the Closing Date, upon issuance of a Letter of
Credit, shall be deemed to have purchased without recourse a risk
participation from the Issuing Lender in such Letter of Credit and the
obligations arising thereunder and any collateral relating thereto, in
each case in an amount equal to its LOC Commitment Percentage of the
obligations under such Letter of Credit and shall absolutely,
unconditionally and irrevocably assume, as primary obligor and not as
surety, and be obligated to pay to the Issuing Lender therefor and
discharge when due, its LOC Commitment Percentage of the obligations
arising under such Letter of Credit. Without limiting the scope and
nature of each Lender's participation in any Letter of Credit, to the
extent that the Issuing Lender has not been reimbursed as required
hereunder or under any LOC Document, each such Lender shall pay to the
Issuing Lender its LOC Commitment Percentage of such unreimbursed
drawing in same day funds on the day of notification by the Issuing
Lender of an unreimbursed drawing pursuant to the provisions of
subsection (d) hereof. The obligation of each Lender to so reimburse
the Issuing Lender shall be absolute and unconditional and shall not
be affected by the occurrence of a Default, an Event of Default or any
other occurrence or event. Any such reimbursement shall not relieve
or otherwise impair the obligation of the Borrower to reimburse the
Issuing Lender under any Letter of Credit, together with interest as
hereinafter provided.
(d) Reimbursement. In the event of any drawing under any Letter
of Credit, the Issuing Lender will promptly notify the Borrower and
the Agent. The Borrower shall reimburse the Issuing Lender on the day
of drawing under any Letter of Credit (either with the proceeds of a
Swingline Loan or Revolving Loan obtained hereunder or otherwise) in
same day funds as provided herein or in the LOC Documents. If the
Borrower shall fail to reimburse the Issuing Lender as provided
herein, the unreimbursed amount of such drawing shall bear interest at
a per annum rate equal to the Base Rate plus two percent (2%). Unless
the Borrower shall immediately notify the Issuing Lender and the Agent
of its intent to otherwise reimburse the Issuing Lender, the Borrower
shall be deemed to have requested a Swingline Loan, or if and to the
extent Swingline Loans shall not be available, a Revolving Loan in the
amount of the drawing as provided in subsection (e) hereof, the
proceeds of which will be used to satisfy the reimbursement
obligations. The Borrower's reimbursement obligations hereunder shall
be absolute and unconditional under all circumstances irrespective of
any rights of set-off, counterclaim or defense to payment the Borrower
may claim or have against the Issuing Lender, the Agent, the Lenders,
the beneficiary of the Letter of Credit drawn upon or any other
Person, including without limitation any defense based on any failure
of the Borrower to receive consideration or the legality, validity,
regularity or unenforceability of the Letter of Credit. The Issuing
Lender will promptly notify the other Lenders of the amount of any
unreimbursed drawing and each Lender shall promptly pay to the Agent
for the account of the Issuing Lender in Dollars and in immediately
available funds, the amount of such Lender's LOC Commitment Percentage
of such unreimbursed drawing. Such payment shall be made on the day
such notice is received by such Lender from the Issuing Lender if such
notice is received at or before 2:00 P.M. (Charlotte, North Carolina
time), otherwise such payment shall be made at or before 12:00 Noon
(Charlotte, North Carolina time) on the Business Day next succeeding
the day such notice is received. If such Lender does not pay such
amount to the Issuing Lender in full upon such request, such Lender
shall, on demand, pay to the Agent for the account of the Issuing
Lender interest on the unpaid amount during the period from the date
of such drawing until such Lender pays such amount to the Issuing
Lender in full at a rate per annum equal to, if paid within two (2)
Business Days of the date of such request, the Federal Funds Effective
Rate and thereafter at a rate equal to the Base Rate. Each Lender's
obligation to make such payment to the Issuing Lender, and the right
of the Issuing Lender to receive the same, shall be absolute and
unconditional, shall not be affected by any circumstance whatsoever
and without regard to the termination of this Credit Agreement or the
Commitments hereunder, the existence of a Default or Event of Default
or the acceleration of the Obligations hereunder and shall be made
without any offset, abatement, withholding or reduction whatsoever.
(e) Repayment with Revolving Loans. On any day on which the
Borrower shall be deemed to have requested, (i) a Swingline Loan
borrowing to reimburse a drawing under a Letter of Credit, the
Swingline Lender shall make the Swingline Loan advance pursuant to the
terms of the request or deemed request in accordance with the
provisions for Swingline Loan advances hereunder, or (ii) a Revolving
Loan to reimburse a drawing under a Letter of Credit, the Agent shall
give notice to the Lenders that a Revolving Loan has been requested or
deemed requested in connection with a drawing under a Letter of
Credit, in which case a Revolving Loan borrowing comprised entirely of
Base Rate Loans (each such borrowing, a "Mandatory Borrowing") shall
be immediately made (without giving effect to any termination of the
Commitments pursuant to Section 9) pro rata based on each Lender's
respective Revolving Commitment Percentage (determined before giving
effect to any termination of the Commitments pursuant to Section 9)
and in the case of both clauses (i) and (ii) the proceeds thereof
shall be paid directly to the Issuing Lender for application to the
respective LOC Obligations. Each Lender hereby irrevocably agrees to
make such Revolving Loans immediately upon any such request or deemed
request on account of each Mandatory Borrowing in the amount and in
the manner specified in the preceding sentence and on the same such
date notwithstanding (i) the amount of Mandatory Borrowing may not
comply with the minimum amount for borrowings of Revolving Loans
otherwise required hereunder, (ii) whether any conditions specified in
Section 5.2 are then satisfied, (iii) whether a Default or an Event of
Default then exists, (iv) failure for any such request or deemed
request for Revolving Loan to be made by the time otherwise required
in Section 2.1(b), (v) the date of such Mandatory Borrowing, or (vi)
any reduction in the Revolving Committed Amount after any such Letter
of Credit may have been drawn upon; provided, however, that in the
event any such Mandatory Borrowing should be less than the minimum
amount for borrowings of Revolving Loans otherwise provided in Section
2.1(b)(ii), the Borrower shall pay to the Agent for its own account an
administrative fee of $500. In the event that any Mandatory Borrowing
cannot for any reason be made on the date otherwise required above
(including, without limitation, as a result of the commencement of a
proceeding under the Bankruptcy Code with respect to the Borrower or
the Company), then each such Lender hereby agrees that it shall
forthwith fund (as of the date the Mandatory Borrowing would otherwise
have occurred, but adjusted for any payments received from the
Borrower on or after such date and prior to such purchase) its
Participation Interests in the outstanding LOC Obligations; provided,
further, that in the event any Lender shall fail to fund its
Participation Interest on the day the Mandatory Borrowing would
otherwise have occurred, then the amount of such Lender's unfunded
Participation Interest therein shall bear interest payable to the
Issuing Lender upon demand, at the rate equal to, if paid within two
(2) Business Days of any such request, the Federal Funds Rate, and
thereafter at a rate equal to the Base Rate.
(f) Modification, Extension. The issuance of any supplement,
modification, amendment, renewal, or extension to any Letter of Credit
shall, for purposes hereof, be treated in all respects the same as the
issuance of a new Letter of Credit hereunder.
(g) Uniform Customs and Practices. The Issuing Lender shall
have the Letters of Credit be subject to The Uniform Customs and
Practice for Documentary Credits, as published as of the date of issue
by the International Chamber of Commerce (the "UCP"), in which case
the UCP may be incorporated therein and deemed in all respects to be a
part thereof.
SECTION 3
OTHER PROVISIONS RELATING TO CREDIT FACILITIES
3.1 Default Rate. Upon the occurrence, and during the
continuance, of an Event of Default, the principal of and, to the
extent permitted by law, interest on the Loans and any other amounts
owing hereunder or under the other Credit Documents shall bear
interest, payable on demand, at a per annum rate 2% greater than the
rate which would otherwise be applicable (or if no rate is applicable,
whether in respect of interest, fees or other amounts, then 2% greater
than the Base Rate).
3.2 Extension and Conversion. The Borrower shall have the
option, on any Business Day, to extend existing Loans into a
subsequent permissible Interest Period or to convert Loans into Loans
of another type; provided, however, that (i) except as provided in
Section 3.7, Eurodollar Loans may be converted into Base Rate Loans
only on the last day of the Interest Period applicable thereto, (ii)
Eurodollar Loans may be extended, and Base Rate Loans may be converted
into Eurodollar Loans, only if no Default or Event of Default is in
existence on the date of extension or conversion, (iii) Loans extended
as, or converted into, Eurodollar Loans shall be subject to the terms
of the definition of "Interest Period" set forth in Section 1.1 and
shall be in such minimum amounts as provided in Section 2.1(b)(ii),
(iv) no more than 20 separate Eurodollar Loans shall be outstanding
hereunder at any time, (v) any request for extension or conversion of
a Eurodollar Loan which shall fail to specify an Interest Period shall
be deemed to be a request for an Interest Period of one month and (vi)
Swingline Loans may not be extended or converted pursuant to this
Section 3.2. Each such extension or conversion shall be effected by
the Borrower by giving a Notice of Extension/Conversion (or telephone
notice promptly confirmed in writing) to the Agent prior to 11:00 A.M.
(Charlotte, North Carolina time) on the Business Day of, in the case
of the conversion of a Eurodollar Loan into a Base Rate Loan and on
the third Business Day prior to, in the case of the extension of a
Eurodollar Loan as, or conversion of a Base Rate Loan into, a
Eurodollar Loan, the date of the proposed extension or conversion,
specifying the date of the proposed extension or conversion, the Loans
to be so extended or converted, the types of Loans into which such
Loans are to be converted and, if appropriate, the applicable Interest
Periods with respect thereto. Each request for extension or
conversion shall constitute a representation and warranty by the
Borrower of the matters specified in subsections as appropriate (a)
and (b), and in (c) or (d) of Section 5.2. In the event the Borrower
fails to request extension or conversion of any Eurodollar Loan in
accordance with this Section, or any such conversion or extension is
not permitted or required by this Section, then such Loans shall be
automatically converted into Base Rate Loans at the end of their
Interest Period. The Agent shall give each Lender notice as promptly
as practicable of any such proposed extension or conversion affecting
any Loan.
3.3 Reductions in Commitments and Prepayments.
(a) Voluntary Reduction in Revolving Commitment. The Borrower
may from time to time permanently reduce the aggregate amount of the
Revolving Commitments in whole or in part without premium or penalty
except as provided in Section 3.10 upon three (3) Business Days' prior
written notice to the Agent; provided that after giving effect to any
such voluntary reduction the sum of Revolving Loans plus Swingline
Loans plus LOC Obligations then outstanding shall not exceed the
Aggregate Revolving Committed Amount, as reduced. Partial reductions
in the aggregate Revolving Commitment shall in each case be in a
minimum aggregate amount of $1,000,000 and integral multiples of
$500,000 in excess thereof.
(b) Mandatory Reductions in Revolving Commitments and Mandatory
Prepayments.
(i) Asset Sales and Dispositions. Other than with respect
to Specified Sales and transfers described in Section 8.4(a)(iii)
which shall not be subject to this subsection (i), the aggregate
amount of the Commitments (including for purposes hereof, the
aggregate amount of the Revolving Commitments and the aggregate
amount of the Term Loan then outstanding) shall be automatically
and permanently reduced by an aggregate amount equal to 100% of
the Net Proceeds received by the Borrower or any its Subsidiaries
from the sale, transfer or disposition of assets or from a
Recovery Event (to the extent such Net Proceeds received in
connection with a Recovery Event are not reinvested as provided
in Section 8.4(a)(ii)). The prepayments made pursuant to this
subsection (i) shall be applied as provided in subsection (iv)
hereof. Any payment owing hereunder, whether in respect of the
Revolving Loans or the Term Loan on account of any such reduction
in Commitments under this subsection (i) shall be made to the
Agent promptly (but in any event within five (5) Business Days)
following receipt by the Borrower or a Subsidiary of the Net
Proceeds therefrom (taking into account any periods permitted for
reinvestment thereof as provided in Section 8.4(a)(ii)).
(ii) Equity Transactions. The aggregate amount of the
Commitments (including for purposes hereof, the aggregate amount
of the Revolving Commitments and the aggregate amount of the Term
Loan then outstanding) shall be automatically and permanently
reduced by an aggregate amount equal to 50% of the Net Proceeds
received by the Borrower or any its Subsidiaries in connection
with an Equity Transaction. The prepayments made pursuant to
this subsection (ii) shall be applied as provided in subsection
(iv) hereof. Any payment owing hereunder, whether in respect of
the Revolving Loans or the Term Loan on account of any such
reduction in Commitments under this subsection (ii) shall be made
to the Agent promptly (but in any event within five (5) Business
Days) following receipt by the Borrower or a Subsidiary of the
Net Proceeds therefrom.
(iii) Debt Transactions. The aggregate amount of the
Commitments (including for purposes hereof, the aggregate amount
of the Revolving Commitments and the aggregate amount of the Term
Loan then outstanding) shall be automatically and permanently
reduced by an aggregate amount equal to 100% of the Net Proceeds
received by the Borrower or any its Subsidiaries in connection
with a Debt Transaction. The prepayments made pursuant to this
subsection (iii) shall be applied as provided in subsection (iv)
hereof. Any payment owing hereunder, whether in respect of the
Revolving Loans or the Term Loan on account of any such reduction
in Commitments under this subsection (iii) shall be made to the
Agent promptly (but in any event within five (5) Business Days)
following receipt by the Borrower or a Subsidiary of the Net
Proceeds therefrom.
(iv) Application. In the case of mandatory reduction in
the Commitments by operation of subsections (i), (ii) or (iii)
hereof, the Commitments (including for purposes hereof, the
aggregate amount of the Revolving Commitments and the aggregate
amount of the Term Loan then outstanding) shall, be reduced as
follows:
First, prepayment shall be made on the Term Loan until
paid in full;
Second, the aggregate amount of the Revolving
Commitment shall be permanently reduced and the Revolving
Loans outstanding thereunder shall paid until reduced to
zero; and
Third, the aggregate amount of the Revolving Commitment
shall be permanently reduced and payment shall be made to a
cash collateral account to secure outstanding LOC
Obligations until reduced to zero;
Mandatory payments made on the Term Loan in accordance with this
subsection (b) shall be made to principal installments in inverse
order of maturity. In the case of a mandatory reduction in the
Revolving Commitment in accordance with this subsection (b), then
to the extent the sum of Revolving Loans plus Swingline Loans
plus LOC Obligations then outstanding shall exceed the aggregate
amount of the Revolving Commitments after giving effect thereto,
the Borrower shall promptly pay to the Agent for the Lenders an
amount necessary to eliminate the deficiency. Payments made on
or in respect of the Revolving Commitments shall be applied first
to the Swingline Loans, then to Revolving Loans then outstanding
until paid in full and then to a cash collateral account in
respect of the LOC Obligations. Payments on Loans hereunder
shall be applied first to Base Rate Loans and then to Eurodollar
Loans in direct order of their Interest Period maturities.
(v) Mandatory Prepayment on Revolving Loans. If at any
time the sum of the aggregate amount of Revolving Loans plus
Swingline Loans plus LOC Obligations then outstanding shall
exceed the Aggregate Revolving Committed Amount, as reduced from
time to time, the Borrower shall immediately make payment on the
Swingline Loans and then the Revolving Loans and then to a cash
collateral account in respect of the LOC Obligations, in an
amount sufficient to eliminate the deficiency. Any such payments
shall be applied first to Base Rate Loans and then to Eurodollar
Loans in direct order of their Interest Period maturities.
(c) Voluntary Prepayments. Loans may be prepaid in whole or in
part without premium or penalty; provided that (i) Eurodollar Loans
may not be prepaid other than at the end of the Interest Period
applicable thereto and only then on three (3) Business Days' prior
written notice to the Agent, and (ii) each such partial prepayment
shall be in a minimum aggregate principal amount of $1,000,000 and
integral multiples of $500,000 in excess thereof. Amounts prepaid on
the Revolving Loans may be reborrowed in accordance with the
provisions hereof. Amounts prepaid on the Term Loan shall be applied
to principal installments in inverse order of maturity and may not be
reborrowed.
(d) Notice. Except as otherwise provided herein, the Borrower
will provide notice to the Agent of any prepayment by 11:00 A.M.
(Charlotte, North Carolina time) on the day prior to the date of
prepayment.
3.4 Fees.
(a) Commitment Fee. In consideration of the Commitments by the
Lenders hereunder, the Borrower agrees to pay to the Agent for the
ratable benefit of the Lenders a commitment fee (the "Commitment Fee")
in an amount equal to the Applicable Percentage per annum on the
average daily unused portion of the Revolving Committed Amount and the
Term Loan Committed Amount in effect from time to time. For purposes
of computing of the Commitment Fee, Swingline Loans shall not be
considered usage under the Revolving Committed Amount. The Commitment
Fee shall be payable quarterly in arrears on the 15th day following
the last day of each calendar quarter for the prior calendar quarter
and on the Termination Date.
(b) Letter of Credit Fee. In consideration of the issuance of
Letters of Credit hereunder, the Borrower or other Credit Party agrees
to pay to the Agent for the ratable benefit of the Lenders a fee (the
"Letter of Credit Fee") equal to the Applicable Percentage per annum
on the average daily maximum amount available to be drawn under each
Letter of Credit from the date of issuance to the date of expiration.
In addition to the foregoing fee, the Borrower or other Credit Party
shall pay to the Issuing Lender for its own account without sharing by
the other Lenders an amount equal to one-eighth of one percent (_%)
per annum on the average daily maximum amount available to be drawn
under each Letter of Credit issued by such Issuing Lender from the
date of issuance to the date of expiration. The Letter of Credit Fee
will be payable quarterly in arrears on the 15th day following the
last day of each calendar quarter and on the Termination Date.
(c) Issuing Lender Fees. In addition to the Letter of Credit
Fees payable pursuant to subsection (b) above, the Borrower shall pay
to the Issuing Lender for its own account without sharing by the other
Lenders the customary charges from time to time of the Issuing Lender
with respect to the issuance, amendment, transfer, administration,
cancellation and conversion of, and drawings under, such Letters of
Credit (collectively, the "Issuing Lender Fees").
(d) Administrative Fees. The Borrower agrees to pay to the
Agent, for its own account, the annual administrative fee, structuring
fee and other fees (collectively, the "Agent's Fees") referred to in
the Agent's Fee Letter.
3.5 Capital Adequacy. If any Lender has reasonably determined
that the adoption or effectiveness of any applicable law, rule or
regulation regarding capital adequacy made after the date hereof, or
any change therein made after the date hereof, 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 made after the date hereof,
or compliance by such Lender or its parent company 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 made
after the date hereof, has or would have the effect of reducing the
rate of return on such Lender's of its parent company's capital or
assets as a consequence of its commitments or obligations hereunder to
a level below that which such Lender could have achieved but for such
adoption, effectiveness, change or compliance (taking into
consideration the policies of such Lender and its parent company with
respect to capital adequacy), then, within 10 Business Days after the
Borrower's receipt of the certificate referred to in the next
sentence, the Borrower shall pay to such Lender such additional amount
or amounts as will compensate such Lender and its parent company for
such reduction; provided that no such amounts shall be payable with
respect to reduction in rate of return incurred more than three (3)
months before such Lender demands compensation under this Section 3.5.
A certificate as to the amount of such reduction in rate of return,
the good faith basis therefor and setting forth in reasonable detail
the calculations used by the applicable Lender to arrive at the amount
or amounts claimed to be due, shall be submitted to the Borrower and
the Agent. Each determination by a Lender of amounts owing under this
Section shall be rebuttably presumptive evidence of the matters set
forth therein. The provisions of this Section shall survive
termination of this Credit Agreement and the payment of the Loans and
all other amounts payable hereunder.
3.6 Inability To Determine Interest Rate. If prior to the first
day of any Interest Period, the Agent shall have reasonably determined
(which determination shall be conclusive and binding upon the
Borrower) that, by reason of circumstances affecting the relevant
market, adequate and reasonable means do not exist for ascertaining
the Eurodollar Rate for such Interest Period, the Agent shall give
telecopy or telephonic notice thereof to the Borrower and the Lenders
as soon as practicable thereafter. If such notice is given (x) any
Eurodollar Loans requested to be made on the first day of such
Interest Period shall be made as Base Rate Loans, (y) any Loans that
were to have been converted on the first day of such Interest Period
to or continued as Eurodollar Loans shall be converted to or continued
as Base Rate Loans and (z) any outstanding Eurodollar Loans shall be
converted, on the first day of such Interest Period, to Base Rate
Loans. Until such notice has been withdrawn by the Agent, no further
Eurodollar Loans shall be made or continued as such, nor shall the
Borrower have the right to convert Base Rate Loans to Eurodollar
Loans.
3.7 Illegality. Notwithstanding any other provision herein, if
the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof occurring after the Closing Date
shall make it unlawful for any Lender to make or maintain Eurodollar
Loans as contemplated by this Credit Agreement, (a) such Lender shall
promptly give written notice of such circumstances to the Borrower and
the Agent (which notice shall be withdrawn whenever such circumstances
no longer exist), (b) the commitment of such Lender hereunder to make
Eurodollar Loans, continue Eurodollar Loans as such and convert a Base
Rate Loan to Eurodollar Loans shall forthwith be canceled and, until
such time as it shall no longer be unlawful for such Lender to make or
maintain Eurodollar Loans, such Lender shall then have a commitment
only to make a Base Rate Loan when a Eurodollar Loan is requested and
(c) such Lender's Loans then outstanding as Eurodollar Loans, if any,
shall be converted automatically to Base Rate Loans on the respective
last days or the then current Interest Periods with respect to such
Loans or within such earlier period as required by law. If any such
conversion of a Eurodollar Loan occurs on a day which is not the last
day of the then current Interest Period with respect thereto, the
Borrower shall pay to such Lender such amounts, if any, as may be
required pursuant to subsection 3.10.
3.8 Requirements of Law. If the adoption of or any change in
any Requirement of Law or in the interpretation or application thereof
applicable to any Lender, or compliance by any Lender with any request
or directive (whether or not having the force of law) from any central
bank or other Governmental Authority, in each case made subsequent to
the Closing Date (or, if later, the date on which such Lender becomes
a Lender):
(i) shall subject such Lender to any tax of any kind
whatsoever on or in respect of any Letter of Credit, letter of
credit application or any Eurodollar Loans made by it or its
obligation to make Eurodollar Loans, or change the basis of
taxation of payments to such Lender in respect thereof (except
for Non-Excluded Taxes covered by subsection 3.9 (including Non-
Excluded Taxes imposed solely by reason of any failure of such
Lender to comply with its obligations under subsection 3.9(b))
and changes in taxes measured by or imposed upon the overall net
income, or franchise tax (imposed in lieu of such net income
tax), of such Lender or its applicable lending office, branch, or
any affiliate thereof);
(ii) shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement
against assets held by, deposits or other liabilities in or for
the account of, advances, loans or other extensions of credit by,
or any other acquisition of funds by, any office of such Lender
which is not otherwise included in the determination of the
Eurodollar Rate hereunder; or
(iii) shall impose on such Lender any other condition
(excluding any tax of any kind whatsoever);
and the result of any of the foregoing is to increase the cost to
such Lender, by an amount which such Lender deems to be material,
of making, converting into, continuing or maintaining Eurodollar
Loans or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, upon notice to the Borrower from
such Lender, through the Agent, in accordance herewith, the
Borrower shall promptly pay such Lender, upon its demand, any
additional amounts necessary to compensate such Lender for such
increased cost or reduced amount receivable, provided that, in
any such case, the Borrower may elect to convert the Eurodollar
Loans made by such Lender hereunder to Base Rate Loans by giving
the Agent at least one Business Day's notice of such election, in
which case the Borrower shall promptly pay to such Lender, upon
demand, without duplication, such amounts, if any, as may be
required pursuant to subsection 3.10. If any Lender becomes
entitled to claim any additional amounts pursuant to this
subsection, it shall provide prompt notice thereof to the
Borrower, through the Agent, certifying (x) that one of the
events described in this Section 3.8 has occurred and describing
in reasonable detail the nature of such event, (y) as to the
increased cost or reduced amount resulting from such event and
(z) as to the additional amount demanded by such Lender and a
reasonably detailed explanation of the calculation thereof. Such
a certificate as to any additional amounts payable pursuant to
this subsection submitted by such Lender, through the Agent, to
the Borrower shall be conclusive in the absence of manifest
error. This covenant shall survive the termination of this
Credit Agreement and the payment of the Loans and all other
amounts payable hereunder.
3.9 Taxes.
(a) Except as provided below in this subsection, all
payments made by the Borrower under this Credit Agreement and any
Notes shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future income,
stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied,
collected, withheld or assessed by any Governmental Authority,
excluding taxes measured by or imposed upon the overall net
income of any Lender or its applicable lending office, or any
branch or affiliate thereof, and all franchise taxes, branch
taxes, taxes on doing business or taxes on the overall capital or
net worth of any Lender or its applicable lending office, or any
branch or affiliate thereof, in each case imposed in lieu of net
income taxes, imposed: (i) by the jurisdiction under the laws of
which such Lender, applicable lending office, branch or affiliate
is organized or is located, or in which its principal executive
office is located, or any nation within which such jurisdiction
is located or any political subdivision thereof; or (ii) by
reason of any connection between the jurisdiction imposing such
tax and such Lender, applicable lending office, branch or
affiliate other than a connection arising solely from such Lender
having executed, delivered or performed its obligations, or
received payment under or enforced, this Credit Agreement or any
Notes. If any such non-excluded taxes, levies, imposts, duties,
charges, fees, deductions or withholdings ("Non-Excluded Taxes")
are required to be withheld from any amounts payable to the Agent
or any Lender hereunder or under any Notes, (A) the amounts so
payable to the Agent or such Lender shall be increased to the
extent necessary to yield to the Agent or such Lender (after
payment of all Non-Excluded Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts
specified in this Credit Agreement and any Notes, provided,
however, that the Borrower shall be entitled to deduct and
withhold any Non-Excluded Taxes and shall not be required to
increase any such amounts payable to any Lender that is not
organized under the laws of the United States of America or a
state thereof if such Lender fails to comply with the
requirements of paragraph (b) of this subsection whenever any
Non-Excluded Taxes are payable by the Borrower, and (B) as
promptly as possible thereafter the Borrower shall send to the
Agent for its own account or for the account of such Lender, as
the case may be, a certified copy of an original official receipt
received by the Borrower showing payment thereof. If the
Borrower fails to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the Agent the
required receipts or other required documentary evidence, the
Borrower shall indemnify the Agent and the Lenders for any
incremental taxes, interest or penalties that may become payable
by the Agent or any Lender as a result of any such failure. The
agreements in this subsection shall survive the termination of
this Credit Agreement and the payment of the Loans and all other
amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of
the United States of America or a state thereof shall:
(X)(i) on or before the date of any payment by the
Borrower under this Credit Agreement or Notes to such
Lender, deliver to the Borrower and the Agent (A) two duly
completed copies of United States Internal Revenue Service
Form 1001 or 4224, or successor applicable form, as the case
may be, certifying that it is entitled to receive payments
under this Credit Agreement and any Notes without deduction
or withholding of any United States federal income taxes and
(B) an Internal Revenue Service Form W-8 or W-9, or
successor applicable form, as the case may be, certifying
that it is entitled to an exemption from United States
backup withholding tax;
(ii) deliver to the Borrower and the Agent two
further copies of any such form or certification on or
before the date that any such form or certification expires
or becomes obsolete and after the occurrence of any event
requiring a change in the most recent form previously
delivered by it to the Borrower; and
(iii) obtain such extensions of time for filing and
complete such forms or certifications as may reasonably be
requested by the Borrower or the Agent; or
(Y) in the case of any such Lender that is not a "bank"
within the meaning of Section 881(c)(3)(A) of the Code, (i)
represent to the Borrower (for the benefit of the Borrower and
the Agent) that it is not a bank within the meaning of Section
881(c)(3)(A) of the Code, (ii) agree to furnish to the Borrower
on or before the date of any payment by the Borrower, with a copy
to the Agent (A) a certificate substantially in the form of
Schedule 3.10 (any such certificate a "U.S. Tax Compliance
Certificate") and (B) two accurate and complete original signed
copies of Internal Revenue Service Form W-8, or successor
applicable form certifying to such Lender's legal entitlement at
the date of such certificate to an exemption from U.S.
withholding tax under the provisions of Section 881(c) of the
Code with respect to payments to be made under this Credit
Agreement and any Notes (and to deliver to the Borrower and the
Agent two further copies of such form on or before the date it
expires or becomes obsolete and after the occurrence of any event
requiring a change in the most recently provided form and, if
necessary, obtain any extensions of time reasonably requested by
the Borrower or the Agent for filing and completing such forms),
and (iii) agree, to the extent legally entitled to do so, upon
reasonable request by the Borrower, to provide to the Borrower
(for the benefit of the Borrower and the Agent) such other forms
as may be reasonably required in order to establish the legal
entitlement of such Lender to an exemption from withholding with
respect to payments under this Credit Agreement and any Notes;
unless in any such case any change in treaty, law or regulation
has occurred after the date such Person becomes a Lender
hereunder which renders all such forms inapplicable or which
would prevent such Lender from duly completing and delivering any
such form with respect to it and such Lender so advises the
Borrower and the Agent. Each Person that shall become a Lender
or a participant of a Lender pursuant to subsection 11.6 shall,
upon the effectiveness of the related transfer, be required to
provide all of the forms, certifications and statements required
pursuant to this subsection, provided that in the case of a
participant of a Lender the obligations of such participant of a
Lender pursuant to this subsection (b) shall be determined as if
the participant of a Lender were a Lender except that such
participant of a Lender shall furnish all such required forms,
certifications and statements to the Lender from which the
related participation shall have been purchased.
(c) In the event that any Lender requests payment by the
Borrower of any additional amounts pursuant to subsection (a) of
this Section 3.9, then, provided that no Default or Event of
Default has occurred and is continuing at such time, the Borrower
may, at its own expense (such expense to include any transfer fee
payable to the Agent under Section 11.6(b)), and in its sole
discretion require such Lender to transfer and assign in whole or
in part, without recourse (in accordance with and subject to the
terms and conditions of Section 11.6(b)), all or part of its
interests, rights and obligations under this Credit Agreement to
an Eligible Transferee which shall assume such assigned
obligations; provided that (i) such assignment shall not relieve
the Borrower from its obligations to pay such additional amounts
that may be due in accordance with subsection (a) of this Section
3.9, (ii) such assignment shall not conflict with any law, rule
or regulation or order of any court or other Governmental
Authority and (iii) the Borrower or such Eligible Transferee
shall have paid to the assigning Lender in immediately available
funds the principal of and interest accrued to the date of such
payment on the Loans made by it hereunder and all accrued Fees
and other amounts owed to it hereunder.
3.10 Indemnity. The Borrower agrees to indemnify each Lender
and to hold each Lender harmless from any loss or expense which such
Lender may sustain or incur (other than through such Lender's gross
negligence or willful misconduct) as a consequence of (a) default by
the Borrower in making a borrowing of, conversion into or continuation
of Eurodollar Loans after the Borrower has given a notice requesting
the same in accordance with the provisions of this Credit Agreement,
(b) default by the Borrower in making any prepayment of a Eurodollar
Loan after the Borrower has given a notice thereof in accordance with
the provisions of this Credit Agreement or (c) the making of a
prepayment of Eurodollar Loans on a day which is not the last day of
an Interest Period with respect thereto. Such indemnification may
include an amount equal to the excess, if any, of (i) the amount of
interest which would have accrued on the amount so prepaid, or not so
borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the
last day of the applicable Interest Period (or, in the case of a
failure to borrow, convert or continue, the Interest Period that would
have commenced on the date of such failure) in each case at the
applicable rate of interest for such Eurodollar Loans provided for
herein (excluding, however, the Applicable Percentage included
therein, if any) over (ii) the amount of interest (as reasonably
determined by such Lender) which would have accrued to such Lender on
such amount by placing such amount on deposit for a comparable period
with leading banks in the interbank Eurodollar market. This covenant
shall survive the termination of this Credit Agreement and the payment
of the Loans and all other amounts payable hereunder.
3.11 Pro Rata Treatment. Except to the extent otherwise
provided herein:
(a) Loans. Each Loan, each payment or prepayment of
principal of any Loan, each payment of interest on the Loans,
each payment of Commitment Fees, each reduction of the Revolving
Committed Amount and each conversion or extension of any Loan,
shall be allocated pro rata among the Lenders in accordance with
the respective Commitment Percentages relating to such respective
Loans and Participation Interests.
(b) Advances. Unless the Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will
not make the amount that would constitute its Commitment
Percentage of such borrowing available to the Agent, the Agent
may assume that such Lender is making such amount available to
the Agent, and the Agent may, in reliance upon such assumption,
make available to the Borrower a corresponding amount. If such
amount is not made available to the Agent by such Lender within
the time period specified therefor hereunder, such Lender shall
pay to the Agent, on demand, such amount with interest thereon at
a rate equal to the Federal Funds Rate for the period until such
Lender makes such amount immediately available to the Agent. A
certificate of the Agent submitted to any Lender with respect to
any amounts owing under this subsection shall be conclusive in
the absence of manifest error. If such Lender's Commitment
Percentage of such borrowing is not made available to the Agent
by such Lender within two Business Days of the date of the
related borrowing, (i) the Agent shall notify the Borrower of the
failure of such Lender to make such amount available to the Agent
and the Agent shall also be entitled to recover such amount with
interest thereon at the rate per annum applicable to Base Rate
Loans hereunder, on demand, from the Borrower and (ii) then the
Borrower may, without waiving any rights it may have against such
Lender, borrow a like amount on an unsecured basis from any
commercial bank for a period ending on the date upon which such
Lender does in fact make such borrowing available, provided that
at the time such borrowing is made and at all times while such
amount is outstanding the Borrower would be permitted to borrow
such amount pursuant to subsection 2.1 of this Credit Agreement.
3.12 Sharing of Payments. The Lenders agree among themselves
that, in the event that any Lender shall obtain payment in respect of
any Loan or any other obligation owing to such Lender under this
Credit Agreement through the exercise of a right of setoff, banker's
lien or counterclaim, or pursuant to a secured claim under Section 506
of Title 11 of the United States Code or other security or interest
arising from, or in lieu of, such secured claim, received by such
Lender under any applicable bankruptcy, insolvency or other similar
law or otherwise, or by any other means, in excess of its pro rata
share of such payment as provided for in this Credit Agreement, such
Lender shall promptly purchase from the other Lenders a participation
in such Loans and other obligations in such amounts, and make such
other adjustments from time to time, as shall be equitable to the end
that all Lenders share such payment in accordance with their
respective ratable shares as provided for in this Credit Agreement.
The Lenders further agree among themselves that if payment to a Lender
obtained by such Lender through the exercise of a right of setoff,
banker's lien, counterclaim or other event as aforesaid shall be
rescinded or must otherwise be restored, each Lender which shall have
shared the benefit of such payment shall, by repurchase of a
participation theretofore sold, return its share of that benefit
(together with its share of any accrued interest payable with respect
thereto) to each Lender whose payment shall have been rescinded or
otherwise restored. The Borrower agrees that any Lender so purchasing
such a participation may, to the fullest extent permitted by law,
exercise all rights of payment, including setoff, banker's lien or
counterclaim, with respect to such participation as fully as if such
Lender were a holder of such Loan or other obligation in the amount of
such participation. Except as otherwise expressly provided in this
Credit Agreement, if any Lender or the Agent shall fail to remit to
the Agent or any other Lender an amount payable by such Lender or the
Agent to the Agent or such other Lender pursuant to this Credit
Agreement on the date when such amount is due, such payments shall be
made together with interest thereon for each date from the date such
amount is due until the date such amount is paid to the Agent or such
other Lender at a rate per annum equal to the Federal Funds Rate. If
under any applicable bankruptcy, insolvency or other similar law, any
Lender receives a secured claim in lieu of a setoff to which this
Section 3.12 applies, such Lender shall, to the extent practicable,
exercise its rights in respect of such secured claim in a manner
consistent with the rights of the Lenders under this Section 3.12 to
share in the benefits of any recovery on such secured claim.
3.13 Place and Manner of Payments. Except as otherwise
specifically provided herein, all payments hereunder shall be made to
the Agent in dollars in immediately available funds, without offset,
deduction, counterclaim or withholding of any kind, at its offices at
the Agent's office specified in Schedule 11.2 not later than 2:00 P.M.
(Charlotte, North Carolina time) on the date when due. Payments
received after such time shall be deemed to have been received on the
next succeeding Business Day. The Agent may (but shall not be
obligated to) debit the amount of any such payment which is not made
by such time to any ordinary deposit account of the Borrower
maintained with the Agent (with notice to the Borrower). The Borrower
shall, at the time it makes any payment under this Credit Agreement,
specify to the Agent the Loans, Fees or other amounts payable by the
Borrower hereunder to which such payment is to be applied (and in the
event that it fails so to specify, or if such application would be
inconsistent with the terms hereof, the Agent shall distribute such
payment to the Lenders in such manner as the Agent may determine to be
appropriate in respect of obligations owing by the Borrower hereunder,
subject to the terms of Section 3.11). The Agent will distribute such
payments to such Lenders, if any such payment is received prior to
2:00 p.m. (Charlotte, North Carolina time) on a Business Day in like
funds as received prior to the end of such Business Day and otherwise
the Agent will distribute such payment to such Lenders on the next
succeeding Business Day. Whenever any payment hereunder shall be
stated to be due on a day which is not a Business Day, the due date
thereof shall be extended to the next succeeding Business Day (subject
to accrual of interest and Fees for the period of such extension),
except that in the case of Eurodollar Loans, if the extension would
cause the payment to be made in the next following calendar month,
then such payment shall instead be made on the next preceding Business
Day. Except as expressly provided otherwise herein, all computations
of interest and fees shall be made on the basis of actual number of
days elapsed over a year of 360 days, except with respect to
computation of interest on Base Rate Loans which shall be calculated
based on a year of 365 or 366 days, as appropriate. Interest shall
accrue from and include the date of borrowing, but exclude the date of
payment.
3.14 Indemnification; Nature of Issuing Lender's Duties.
(a) In addition to its other obligations under Section 2.4,
the Borrower hereby agrees to protect, indemnify, pay and save
each Issuing Lender harmless from and against any and all claims,
demands, liabilities, damages, losses, costs, charges and
expenses (including reasonable attorneys' fees) that the Issuing
Lender may incur or be subject to as a consequence, direct or
indirect, of (A) the issuance of any Letter of Credit or (B) the
failure of the Issuing Lender to honor a drawing under a Letter
of Credit as a result of any act or omission, whether rightful or
wrongful, of any present or future de jure or de facto government
or governmental authority (all such acts or omissions, herein
called "Government Acts").
(b) As between the Borrower and the Issuing Lender, the
Borrower shall assume all risks of the acts, omissions or misuse
of any Letter of Credit by the beneficiary thereof. The Issuing
Lender shall not be responsible: (i) for the form, validity,
sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the
application for and issuance of any Letter of Credit, even if it
should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged; (ii) for the
validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign any Letter of
Credit or the rights or benefits thereunder or proceeds thereof,
in whole or in part, that may prove to be invalid or ineffective
for any reason; (iii) for failure of the beneficiary of a Letter
of Credit to comply fully with conditions required in order to
draw upon a Letter of Credit; (iv) for errors, omissions,
interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex or otherwise, whether
or not they be in cipher; (v) for errors in interpretation of
technical terms; (vi) for any loss or delay in the transmission
or otherwise of any document required in order to make a drawing
under a Letter of Credit or of the proceeds thereof; and (vii)
for any consequences arising from causes beyond the control of
the Issuing Lender, including, without limitation, any Government
Acts. None of the above shall affect, impair, or prevent the
vesting of the Issuing Lender's rights or powers hereunder.
(c) In furtherance and extension and not in limitation of
the specific provisions hereinabove set forth, any action taken
or omitted by the Issuing Lender, under or in connection with any
Letter of Credit or the related certificates, if taken or omitted
in good faith, shall not put such Issuing Lender under any
resulting liability to the Borrower. It is the intention of the
parties that this Credit Agreement shall be construed and applied
to protect and indemnify the Issuing Lender against any and all
risks involved in the issuance of the Letters of Credit, all of
which risks are hereby assumed by the Borrower, including,
without limitation, any and all risks of the acts or omissions,
whether rightful or wrongful, of any present or future Government
Acts. The Issuing Lender shall not, in any way, be liable for
any failure by the Issuing Lender or anyone else to pay any
drawing under any Letter of Credit as a result of any Government
Acts or any other cause beyond the control of the Issuing Lender.
(d) Nothing in this Section 3.14 is intended to limit the
reimbursement obligation of the Borrower contained in Section
2.4(d) hereof. The obligations of the Borrower under this
Section 3.14 shall survive the termination of this Agreement. No
act or omissions of any current or prior beneficiary of a Letter
of Credit shall in any way affect or impair the rights of the
Issuing Lender to enforce any right, power or benefit under this
Credit Agreement.
(e) Notwithstanding anything to the contrary contained in
this Section 3.14, the Borrower shall have no obligation to
indemnify any Issuing Lender in respect of any liability incurred
by such Issuing Lender arising out of the gross negligence or
willful misconduct of the Issuing Lender (including action not
taken by an Issuing Lender), as determined by a court of
competent jurisdiction.
SECTION 4
GUARANTY
4.1 The Guaranty. Each of the Credit Parties hereby jointly and
severally guarantees to each Lender, the Agent and the Issuing Lender
as hereinafter provided the prompt payment of the Credit Party
Obligations in full when due (whether at stated maturity, as a
mandatory prepayment, by acceleration, as a mandatory cash
collateralization or otherwise) strictly in accordance with the terms
thereof. The Credit Parties hereby further agree that if any of the
Credit Party Obligations are not paid in full when due (whether at
stated maturity, as a mandatory prepayment, by acceleration, as a
mandatory cash collateralization or otherwise), the Credit Parties
will, jointly and severally, promptly pay the same, without any demand
or notice whatsoever, and that in the case of any extension of time of
payment or renewal of any of the Credit Party Obligations, the same
will be promptly paid in full when due (whether at extended maturity,
as a mandatory prepayment, by acceleration, as a mandatory cash
collateralization or otherwise) in accordance with the terms of such
extension or renewal.
Notwithstanding any provision to the contrary contained herein or
in any other of the Credit Documents, the obligations of each Credit
Party hereunder shall be limited to an aggregate amount equal to the
largest amount that would not render its obligations hereunder subject
to avoidance under Section 548 of the U.S. Bankruptcy Code or any
comparable provisions of any applicable state law.
4.2 Obligations Unconditional. The obligations of the Credit
Parties under Section 4.1 hereof are joint and several, absolute and
unconditional, irrespective of the value, genuineness, validity,
regularity or enforceability of any of the Credit Documents, or any
other agreement or instrument referred to therein, or any
substitution, release or exchange of any other guarantee of or
security for any of the Credit Party Obligations, and, to the fullest
extent permitted by applicable law, irrespective of any other
circumstance whatsoever which might otherwise constitute a legal or
equitable discharge or defense of a surety or guarantor, it being the
intent of this Section 4.2 that the obligations of the Credit Parties
hereunder shall be absolute and unconditional under any and all
circumstances. Without limiting the generality of the foregoing, it
is agreed that the occurrence of any one or more of the following
shall not alter or impair the liability of any Credit Party hereunder
which shall remain absolute and unconditional as described above:
(i) at any time or from time to time, without notice to any
Credit Party, the time for any performance of or compliance with
any of the Credit Party Obligations shall be extended, or such
performance or compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of
any of the Credit Documents or any other agreement or instrument
referred therein shall be done or omitted;
(iii) the maturity of any of the Credit Party Obligations
shall be accelerated, or any of the Credit Party Obligations
shall be modified, supplemented or amended in any respect, or any
right under any of the Credit Documents or any other agreement or
instrument referred to therein shall be waived or any other
guarantee of any of the Credit Party Obligations or any security
therefor shall be released or exchanged in whole or in part or
otherwise dealt with;
(iv) any Lien granted to, or in favor of, the Agent or any
Lender or Lenders as security for any of the Credit Party
Obligations shall fail to attach or be perfected; or
(v) any of the Credit Party Obligations shall be
determined to be void or voidable (including, without limitation,
for the benefit of any creditor of any Credit Party) or shall be
subordinated to the claims of any Person (including, without
limitation, any creditor of any Credit Party).
With respect to its obligations hereunder, each Credit Party hereby
expressly waives diligence, presentment, demand of payment, protest
and all notices whatsoever, and any requirement that the Agent or any
Lender exhaust any right, power or remedy or proceed against any
Person under any of the Credit Documents or any other agreement or
instrument referred to therein, or against any other Person under any
other guarantee of, or security for, any of the Credit Party
Obligations.
4.3 Reinstatement. The obligations of the Credit Parties under
this Section 4 shall be automatically reinstated if and to the extent
that for any reason any payment by or on behalf of any Person in
respect of the Credit Party Obligations is rescinded or must be
otherwise restored by any holder of any of the Credit Party
Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and each Credit Party agrees that it will
indemnify each of the Agent and each Lender on demand for all
reasonable costs and expenses (including, without limitation, fees of
counsel) incurred by the Agent or such Lender in connection with such
rescission or restoration, including any such costs and expenses
incurred in defending against any claim alleging that such payment
constituted a preference, fraudulent transfer or similar payment under
any bankruptcy, insolvency or similar law.
4.4 Certain Additional Waivers. Without limiting the generality
of the provisions of any other Section of this Section 4, each Credit
Party hereby specifically waives the benefits of N.C. Gen. Stat. SS
26-7 through 26-9, inclusive. Each Credit Party further agrees that
such Guarantor shall have no right of recourse to security for the
Credit Party Obligations. Each of the Credit Parties further agrees
that it shall have no right of subrogation, reimbursement or
indemnity, nor any right of recourse to security, if any, for the
Credit Party Obligations so long as any amounts payable to the Agent,
the Lenders or the Issuing Lender in respect of the Credit Party
Obligations shall remain outstanding and until all of the Commitments
shall have expired or been terminated.
4.5 Remedies. The Guarantors agree that, as between the Credit
Parties, on the one hand, and the Agent, the Lenders and the Issuing
Lender, on the other hand, the Credit Party Obligations may be
declared to be forthwith due and payable as provided in Section 9
hereof (and shall be deemed to have become automatically due and
payable in the circumstances provided in said Section 9) for purposes
of Section 4.1 hereof notwithstanding any stay, injunction or other
prohibition preventing such declaration (or preventing such Credit
Party Obligations from becoming automatically due and payable) as
against any other Person and that, in the event of such declaration
(or such Credit Party Obligations being deemed to have become
automatically due and payable), such Credit Party Obligations (whether
or not due and payable by any other Person) shall forthwith become due
and payable by the Credit Parties for purposes of said Section 4.1.
4.6 Continuing Guarantee. The guarantee in this Section 4 is a
continuing guarantee, and shall apply to all Credit Party Obligations
whenever arising.
SECTION 5
CONDITIONS
5.1 Conditions to Closing Date. This Credit Agreement shall
become effective upon the satisfaction of the following conditions
precedent:
(a) Execution of Agreement. The Agent shall have received
(i) multiple counterparts of this Credit Agreement for each
Lender, executed by a duly authorized officer of each party
hereto, (ii) for the account of each Lender a Revolving Note and
a Term Note and for the account of the Swingline Lender the
Swingline Note and (iii) multiple counterparts of the Security
Agreement for each Lender and UCC financing statements relating
thereto executed by a duly authorized officer of each party
thereto, in each case conforming to the requirements of this
Credit Agreement and executed by a duly authorized officer of the
Borrower or Company, as applicable.
(b) Stock Certificates. Original stock certificates
evidencing the Borrower's ownership interest in its Subsidiaries
pledged pursuant to the Security Agreement, together with
original undated stock powers executed in blank.
(c) Environmental Reports. Copies of Phase I environmental
assessment reports and other environmental documentation relating
to properties owned by The Xxxxxxx Group, Inc. and its
Subsidiaries, which reports and documentation shall be in form
and substance satisfactory to the Agent and the Required Lenders.
(d) Liability and Casualty Insurance. Copies of insurance
policies or certificates of insurance evidencing liability and
casualty insurance meeting the requirements set forth herein and
in the Security Agreement, together with evidence of payment of
premiums thereon.
(e) Acquisition of The Xxxxxxx Group, Inc. A certified
copy of the Stock Purchase Agreement for the Acquisition of The
Xxxxxxx Group, Inc. by the Manitowoc Company, Inc. dated as of
October 24, 1995 (the "Purchase Agreement") among the Borrower,
The Xxxxxxx Group, Inc., a Delaware corporation ("Xxxxxxx Group")
and each of the individuals and entities listed on the signature
pages thereto as stockholders of the Xxxxxxx Group, relating to
the purchase by the Borrower, of all of the capital stock
(including warrants) of the Xxxxxxx Group, which Purchase
Agreement shall be in form and substance satisfactory to the
Agent and the Required Lenders, together with evidence that (i)
consummation of the transactions contemplated therein have, or
will contemporaneous with the funding of the initial Extensions
of Credit hereunder, substantially in accordance with the terms
of the Purchase Agreement, (ii) the aggregate amount paid
(including indebtedness assumed) in connection with the
acquisition shall not exceed $140,000,000, (iii) the corporate
structure of the Borrower and its Subsidiaries after giving
effect to the acquisition shall not differ in any material
respect from that contemplated in the Purchase Agreement, (iv)
all consents and approvals, if any, necessary in connection with
consummation of such acquisition (including compliance with the
Xxxx-Xxxxx-Xxxxxx Act) shall have been obtained, and (v) the cash
amount of accounting, investment banking, financial advisory and
legal fees and expenses paid in connection with such acquisition
shall not exceed $5,000,000, excluding the Agent's annual
administrative fee payable pursuant to Section 3.4(d).
(f) Proforma Balance Sheet. A proforma balance sheet for
the Borrower and its Subsidiaries estimated as of the Closing
Date after giving effect to the transactions contemplated in the
Purchase Agreement, reflecting estimated purchase accounting
adjustments, prepared in good faith upon reasonable assumptions
by the Borrower and indicating a Consolidated Net Worth of at
least $81,000,000.
(g) Financial Information. Copies of audited consolidated
financial statements for the Borrower and its Subsidiaries and
for the Xxxxxxx Group and its Subsidiaries for fiscal years 1992,
1993 and 1994; interim quarterly company-prepared consolidated
financial statements for the Borrower and its Subsidiaries and
for the Xxxxxxx Group and its Subsidiaries for fiscal year 1995,
including monthly working capital detail for the trailing four
quarters; and a consolidated budget plan for the Borrower and its
Subsidiaries after giving effect to the transactions contemplated
in the Purchase Agreement by quarter for a period of one year
after the date of consummation of such transactions including
projected working capital detail.
(h) Corporate Documents. Receipt by the Agent of the
following:
(i) Articles of Incorporation. Copies of the articles
of incorporation or charter documents of the Borrower and
each of the other Credit Parties certified to be true and
complete as of a recent date by the appropriate governmental
authority of the state of its incorporation.
(ii) Resolutions. Copies of resolutions of the Board
of Directors of the Borrower and each of the other Credit
Parties approving and adopting the Credit Documents, the
transactions contemplated therein and authorizing execution
and delivery thereof, certified by a secretary or assistant
secretary as of the Closing Date to be true and correct and
in force and effect as of such date.
(iii) Bylaws. A copy of the bylaws of the Borrower
and each of the other Credit Parties certified by a
secretary or assistant secretary as of the Closing Date to
be true and correct and in force and effect as of such date.
(iv) Good Standing. Copies of (i) certificates of
good standing, existence or its equivalent with respect to
the Borrower and each of the other Credit Parties certified
as of a recent date by the appropriate governmental
authorities of the state of incorporation and each other
state in which the failure to so qualify and be in good
standing would have a material adverse effect on the
business or operations of the Borrower or other Credit Party
in such state and (ii) a certificate indicating payment of
all corporate franchise taxes certified as of a recent date
by the appropriate governmental taxing authorities.
(i) Officer's Certificate. The Agent shall have received,
with a counterpart for each Lender, a certificate of a duly
authorized officer of each of the Borrower and each of the other
Credit Parties dated the Effective Date, substantially in the
form of Schedule 5.1(j) with appropriate insertions and
attachments.
(j) Legal Opinion of Counsel. The Agent shall have
received, with a copy for each Lender, an opinion of Xxxxxxx &
Xxxxx, counsel for the Borrower and the Guarantors, dated the
Closing Date and addressed to the Agent and the Lenders, in form
and substance satisfactory to the Agent and the Required Lenders.
(k) Fees. The Agent shall have received all fees, if any,
owing pursuant to the Agent's Fee Letter and Section 3.4.
(l) Subsection 5.2 Conditions. The conditions specified in
subsections 5.2(a) and (b) shall be satisfied on the Closing Date
as if Loans were to be made on such date.
(m) Additional Matters. All other documents and legal
matters in connection with the transactions contemplated by this
Credit Agreement shall be reasonably satisfactory in form and
substance to the Agent and its counsel.
5.2 Conditions to All Extensions of Credit. The obligation of
each Lender to make any Extension of Credit hereunder (including the
initial Loans to be made hereunder) is subject to the satisfaction of
the following conditions precedent on the date of making such
Extension of Credit:
(a) Representations and Warranties. The representations
and warranties made by the Borrower and the other Credit Parties
herein, in the Security Agreement or which are contained in any
certificate furnished at any time under or in connection herewith
shall be true and correct in all material respects on and as of
the date of such Extension of Credit as if made on and as of such
date.
(b) No Default or Event of Default. No Default or Event of
Default shall have occurred and be continuing on such date or
after giving effect to the Extension of Credit to be made on such
date unless such Default or Event of Default shall have been
waived in accordance with this Credit Agreement.
(c) Additional Conditions to Revolving Loans. If such Loan
is made pursuant to subsection 2.1, all conditions set forth in
such subsection shall have been satisfied.
(d) Additional Conditions to Term Loan. If such Loan is
made pursuant to subsection 2.2 all conditions set forth in such
subsection shall have been satisfied.
(e) Additional Conditions to Swingline Loan. If such Loan
is made pursuant to subsection 2.3 all conditions set forth in
such subsection shall have been satisfied.
(f) Additional Conditions to Letters of Credit. If such
Extension of Credit is made pursuant to subsection 2.4 all
conditions set forth in such subsection shall have been
satisfied.
Each request for Extension of Credit and each acceptance by the
Borrower of an Extension of Credit shall be deemed to constitute a
representation and warranty by the Borrower as of the date of such
Extension of Credit that the applicable conditions in paragraphs (a)
and (b), and in (c), (d), (e) or (f) of this subsection have been
satisfied.
SECTION 6
REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Agreement and to make
the Extensions of Credit herein provided for, each of the Credit
Parties hereby represents and warrants to the Agent and to each Lender
that:
6.1 Financial Condition. The consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at July 3, 1994,
December 31, 1994 and September 30, 1995, and the related consolidated
statements of income and of cash flows for the fiscal year (or portion
thereof) ended on such date, reported on (only in the case of such
annual statements) by Xxxxxx Xxxxxxxx & Co., copies of which have
heretofore been furnished to each Lender, are complete and correct and
present fairly the consolidated financial condition of the Borrower
and its consolidated Subsidiaries as at such date, and the xxxxxxx-
dated results of their operations and their consolidated cash flows
for the fiscal year (or portion thereof) then ended, subject in the
case of the December 31, 1994 and September 30, 1995 statements to
normal year end adjustments. All such financial statements, including
the related schedules and notes thereto, have been prepared in
accordance with GAAP applied consistently throughout the periods
involved (except as disclosed therein). Neither the Borrower nor any
of its consolidated Subsidiaries had, at the date of the balance
sheets referred to above, any material Guaranty Obligation, contingent
liabilities or liability for taxes, long-term lease or unusual forward
or long-term commitment, including, without limitation, any material
interest rate or foreign currency swap or exchange transaction, which
is not reflected in the foregoing statements or in the notes thereto.
6.2 No Change. Since July 3, 1994 there has been no development
or event which has had a Material Adverse Effect.
6.3 Corporate Existence; Compliance with Law. Each of the
Borrower and its Subsidiaries (a) is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its
organization, (b) has the corporate or partnership power and authority
and the legal right to own and operate all its material property, to
lease the material property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a
foreign corporation or partnership and in good standing under the laws
of each jurisdiction where its ownership, lease or operation of
property or the conduct of its business requires such qualification
except to the extent that the failure to so qualify or be in good
standing would not, in the aggregate, have a Material Adverse Effect
and (d) is in compliance with all Requirements of Law except to the
extent that the failure to comply therewith would not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
6.4 Corporate Power; Authorization; Enforceable Obligations.
Each of the Borrower and the other Credit Parties has full power and
authority and the legal right to make, deliver and perform the Credit
Documents to which it is party and has taken all necessary corporate
action to authorize the execution, delivery and performance by it of
the Credit Documents to which it is party. No consent or
authorization of, filing with, notice to or other act by or in respect
of, any Governmental Authority or any other Person is required in
connection with the borrowings hereunder or with the execution,
delivery or performance of any Credit Document by the Borrower or the
other Credit Parties(other than those which have been obtained) or
with the validity or enforceability of any Credit Document against the
Borrower or the Guarantors (except such filings as are necessary in
connection with the perfection of the Liens created by such Credit
Documents). Each Credit Document to which it is a party has been duly
executed and delivered on behalf of the Borrower or the other Credit
Parties, as the case may be. Each Credit Document to which it is a
party constitutes a legal, valid and binding obligation of the
Borrower or the Guarantors, as the case may be, enforceable against
the Borrower or the other Credit Parties, as the case may be, in
accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally
and by general equitable principles (whether enforcement is sought by
proceedings in equity or at law).
6.5 No Legal Bar; No Default. The execution, delivery and
performance of the Credit Documents, the borrowings thereunder and the
use of the proceeds of Extensions of Credit will not violate any
Requirement of Law or any Contractual Obligation of the Borrower or
its Subsidiaries (except those as to which waivers or consents have
been obtained), and will not result in, or require, the creation or
imposition of any Lien on any of its or their respective properties or
revenues pursuant to any Requirement of Law or Contractual Obligation
other than the Liens arising under or contemplated in connection with
the Credit Documents. Neither the Borrower nor any of its
Subsidiaries is in default under or with respect to any of its
Contractual Obligations in any respect which would reasonably be
expected to have a Material Adverse Effect. No Default or Event of
Default has occurred and is continuing.
6.6 No Material Litigation. Except as set forth in Schedule
6.6, no litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the best
knowledge of the Borrower and the other Credit Parties, threatened by
or against the Borrower or any of its Subsidiaries or against any of
its or their respective properties or revenues (a) with respect to the
Credit Documents or any Loan or any of the transactions contemplated
hereby, or (b) which, if adversely determined, would reasonably be
expected to have a Material Adverse Effect.
6.7 Investment Company Act. Neither the Borrower nor any of the
other Credit Parties is an "investment company", or a company
"controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
6.8 Federal Regulations. No part of the proceeds of any Loan
hereunder will be used directly or indirectly for any purpose which
violates, or which would be inconsistent with, the provisions of
Regulation G, T, U or X of the Board of Governors of the Federal
Reserve System as now and from time to time hereafter in effect. The
Borrower and its Subsidiaries taken as a group do not own "margin
stock" except as identified in the financial statements referred to in
Section 6.1 and the aggregate value of all "margin stock" owned by the
Borrower and its Subsidiaries taken as a group does not exceed 25% of
the value of their assets.
6.9 ERISA. Neither a Reportable Event nor an "accumulated
funding deficiency" (within the meaning of Section 412 of the Code or
Section 302 of ERISA) has occurred during the five-year period prior
to the date on which this representation is made or deemed made with
respect to any Plan, and each Plan has complied in all material
respects with the applicable provisions of ERISA and the Code, except
to the extent that any such occurrence or failure to comply would not
reasonably be expected to have a Material Adverse Effect. No
termination of a Single Employer Plan has occurred resulting in any
liability that has remained underfunded, and no Lien in favor of the
PBGC or a Plan has arisen, during such five-year period which would
reasonably be expected to have a Material Adverse Effect. The present
value of all accrued benefits under each Single Employer Plan (based
on those assumptions used to fund such Plans) did not, as of the last
annual valuation date prior to the date on which this representation
is made or deemed made, exceed the value of the assets of such Plan
allocable to such accrued benefits by an amount which, as determined
in accordance with GAAP, would reasonably be expected to have a
Material Adverse Effect. Neither the Borrower nor any Commonly
Controlled Entity is currently subject to any liability for a complete
or partial withdrawal from a Multiemployer Plan which would reasonably
be expected to have a Material Adverse Effect. For purposes of this
Section 6.9 only, the parties hereto agree that "Material Adverse
Effect" shall include any event referred to in this Section 6.9 which
would (or could be reasonably expected to) cause a reduction in
Consolidated Net Worth of ten percent (10%) or more.
6.10 Environmental Matters. Except to the extent that all of the
following, in the aggregate, would not reasonably be expected to have
a Material Adverse Effect:
(a) To the best knowledge of the Borrower and the other
Credit Parties, the facilities and properties owned, leased or
operated by the Borrower or any of its Subsidiaries (the "Proper-
ties") do not contain any Materials of Environmental Concern in
amounts or concentrations which (i) constitute a violation of, or
(ii) could give rise to liability under, any Environmental Law.
(b) To the best knowledge of the Borrower and the other
Credit Parties, the Properties and all operations at the
Properties are in compliance, and have in the last five years
been in compliance, in all material respects with all applicable
Environmental Laws, and there is no contamination at, under or
about the Properties or violation of any Environmental Law with
respect to the Properties or the business operated by the
Borrower or any of its Subsidiaries (the "Business").
(c) Neither the Borrower nor any of its Subsidiaries has
received any notice of violation, alleged violation, non-
compliance, liability or potential liability regarding
environmental matters or compliance with Environmental Laws with
regard to any of the Properties or the Business, nor do the
Borrower nor the other Credit Parties have knowledge or reason to
believe that any such notice will be received or is being
threatened.
(d) To the best knowledge of the Borrower and the other
Credit Parties, Materials of Environmental Concern have not been
transported or disposed of from the Properties in violation of,
or in a manner or to a location which could give rise to
liability under any Environmental Law, nor have any Materials of
Environmental Concern been generated, treated, stored or disposed
of at, on or under any of the Properties in violation of, or in a
manner that could give rise to liability under, any applicable
Environmental Law.
(e) No judicial proceeding or governmental or
administrative action is pending or, to the knowledge of the
Borrower and the other Credit Parties, threatened, under any
Environmental Law to which the Borrower or any Subsidiary is or
will be named as a party with respect to the Properties or the
Business, nor are there any consent decrees or other decrees,
consent orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under any
Environmental Law with respect to the Properties or the Business.
(f) To the best knowledge of the Borrower and the other
Credit Parties, there has been no release or threat of release of
Materials of Environmental concern at or from the Properties, or
arising from or related to the operations of the Borrower or any
Subsidiary in connection with the Properties or otherwise in
connection with the Business, in violation of or in amounts or in
a manner that could give rise to liability under Environmental
Laws.
6.11 Use of Proceeds. Extensions of Credit hereunder may be used
to (i) finance a portion of the acquisition contemplated pursuant to
the Purchase Agreement (including the deferred portion, if any, of the
purchase price relating to the acquisition), (ii) pay fees and
expenses incurred in connection with such acquisition, and (iii)
provide for working capital and other general corporate purposes not
prohibited by this Credit Agreement.
6.12 Subsidiaries. Set forth on Schedule 6.12 is a complete and
accurate list of all Subsidiaries of the Borrower. Information on the
attached Schedule includes state of incorporation; the number of
shares of each class of capital stock or other equity interests
outstanding; the number and percentage of outstanding shares of each
class of stock; and the number and effect, if exercised, of all
outstanding options, warrants, rights of conversion or purchase and
similar rights. The outstanding capital stock and other equity
interests of all such Subsidiaries is validly issued, fully paid and
non-assessable and is owned, free and clear of all Liens (other than
those arising under or contemplated in connection with the Credit
Documents).
6.13 Taxes. Each of the Borrower and its Subsidiaries has
filed, or caused to be filed, all material tax returns (Federal,
state, local and foreign) required to be filed and paid all taxes
shown thereon to be due (including interest and penalties) and has
paid all other taxes, fees, assessments and other governmental charges
(including mortgage recording taxes, documentary stamp taxes and
intangibles taxes) owing (or necessary to preserve any Liens in favor
of the Lenders) by them, except for such taxes (i) which are not yet
delinquent or (ii) as are being contested in good faith and by proper
proceedings, and against which adequate reserves are being maintained
in accordance with GAAP. The Borrower is not aware of any proposed
material tax assessments against it or any of its Subsidiaries.
6.14 Solvency. The Borrower and its Subsidiaries, both
collectively and individually, is and, after execution of this Credit
Agreement and after giving effect to the Indebtedness and Guarantee
Obligations incurred hereunder, will be Solvent.
SECTION 7
AFFIRMATIVE COVENANTS
Each of the Credit Parties hereby covenants and agrees that on
the Closing Date, and thereafter for so long as this Credit Agreement
is in effect and until the Commitments have terminated, no Note or
Letter of Credit remains outstanding and unpaid and the Obligations,
together with interest, Commitment Fees and all other amounts owing to
the Agent or any Lender hereunder, are paid in full, the Borrower
shall, and in the case of subsections 7.3, 7.4, 7.5, 7.6, 7.7, 7.8 and
7.10 shall cause each of its Subsidiaries, to:
7.1 Financial Statements. Furnish to the Agent and each of the
Lenders:
(a) Annual Financial Statements. As soon as available,
but in any event within 90 days after the end of each fiscal year
of the Borrower, a copy of the consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at the end of such
fiscal year and the related consolidated statements of income and
retained earnings and of cash flows of the Borrower and its
consolidated Subsidiaries for such year, audited by Coopers &
Xxxxxxx or other firm of independent certified public accountants
of nationally recognized standing reasonably acceptable to the
Required Lenders, setting forth in each case in comparative form
the figures for the previous year, reported on without a "going
concern" or like qualification or exception, or qualification
indicating that the scope of the audit was inadequate to permit
such independent certified public accountants to certify such
financial statements without such qualification; and
(b) Quarterly Financial Statements. As soon as available
and in any event within 45 days after the end of each of the
first three fiscal quarters of the Borrower, a company-prepared
consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at the end of such period and related company-
prepared statements of income and retained earnings and of cash
flows for the Borrower and its consolidated Subsidiaries for such
quarterly period and for the portion of the fiscal year ending
with such period, in each case setting forth in comparative form
consolidated figures for the corresponding period or periods of
the preceding fiscal year (subject to normal recurring year-end
audit adjustments);
(c) Annual Budget Plan. As soon as available after
approval by the Borrower's Board of Directors, but in any event
no more than 120 days after the end of each fiscal year, a copy
of the detailed annual budget or plan for the next fiscal year,
in form and detail reasonably acceptable to the Agent and the
Required Lenders, together with a summary of the material
assumptions made in the preparation of the budget or plan.
all such financial statements to be complete and correct in all
material respects (subject, in the case of interim statements, to
normal recurring year-end audit adjustments) and to be prepared in
reasonable detail and, in the case of the annual and quarterly
financial statements provided in accordance with subsections (a) and
(b) above, in accordance with GAAP applied consistently throughout the
periods reflected therein (except as approved by such accountants or
Responsible Officer, as the case may be, and disclosed therein) and
further accompanied by a description of, and an estimation of the
effect on the financial statements on account of, a change in the
application of accounting principles as provided in Section 1.3.
7.2 Certificates; Other Information. Furnish to the Agent and
each of the Lenders:
(a) concurrently with the delivery of the financial
statements referred to in subsection 7.1(a) above, a certificate
of the independent certified public accountants reporting on such
financial statements stating that in making the examination
necessary therefor no knowledge was obtained of any Default or
Event of Default, except as specified in such certificate;
(b) concurrently with the delivery of the financial
statements referred to in Sections 7.1(a) and 7.1(b) above, a
certificate of a Responsible Officer stating that, to the best of
such Responsible Officer's knowledge, the Borrower during such
period observed or performed in all material respects all of its
covenants and other agreements, and satisfied in all material
respects every material condition, contained in this Agreement to
be observed, performed or satisfied by it, and that such
Responsible Officer has obtained no knowledge of any Default or
Event of Default except as specified in such certificate and such
certificate shall include the calculation required to indicate
compliance with Section 7.9;
(c) within thirty days after the same are sent, copies of
all reports (other than those otherwise provided pursuant to
subsection 7.1) and other financial information which the
Borrower sends to its stockholders, and within thirty days after
the same are filed, copies of all financial statements and non-
confidential reports which the Borrower may make to, or file
with, the Securities and Exchange Commission or any successor or
analogous Governmental Authority;
(d) promptly, such additional financial and other
information as the Agent, at the request of any Lender, may from
time to time reasonably request.
7.3 Payment of Obligations. Pay, discharge or otherwise satisfy
at or before maturity or before they become delinquent, as the case
may be, in accordance with industry practice (subject, where
applicable, to specified grace periods) all its material obligations
of whatever nature and any additional costs that are imposed as a
result of any failure to so pay, discharge or otherwise satisfy such
obligations (including without limitation, obligations to pay taxes),
except when the amount or validity of such obligations and costs is
currently being contested in good faith by appropriate proceedings and
reserves, if applicable, in conformity with GAAP with respect thereto
have been provided on the books of the Borrower or its Subsidiaries,
as the case may be.
7.4 Conduct of Business and Maintenance of Existence. Continue
to engage in business of the same general type as now conducted by it
on the date hereof and preserve, renew and keep in full force and
effect its corporate existence and take all reasonable action to
maintain all rights, privileges and franchises necessary or desirable
in the normal conduct of its business; comply with all Contractual
Obligations and Requirements of Law applicable to it except to the
extent that failure to comply therewith would not, in the aggregate,
have a Material Adverse Effect.
7.5 Maintenance of Property; Insurance. Keep all material
property useful and necessary in its business in good working order
and condition (ordinary wear and tear excepted); maintain with
financially sound and reputable insurance companies insurance on all
its material property in at least such amounts and against at least
such risks as are usually insured against in the same general area by
companies engaged in the same or a similar business; and furnish to
the Agent, upon written request, full information as to the insurance
carried; provided, however, that the Borrower and its Subsidiaries may
maintain self insurance plans to the extent companies of similar size
and in similar businesses do so.
7.6 Inspection of Property; Books and Records; Discussions.
Keep proper books of records and account in which full, true and
correct entries in conformity with GAAP and all Requirements of Law
shall be made of all dealings and transactions in relation to its
businesses and activities; and permit, during regular business hours
and upon reasonable notice by the Agent, the Agent and, after the
occurrence and during the continuance of an Event of Default, any of
the Lenders to visit and inspect any of its properties and examine and
make abstracts from any of its books and records (other than materials
protected by the attorney-client privilege and materials which the
Borrower may not disclose without violation of a confidentiality
obligation binding upon it) at any reasonable time and as often as may
reasonably be desired, and to discuss the business, operations,
properties and financial and other condition of the Borrower and its
Subsidiaries with officers and employees of the Borrower and its
Subsidiaries and with its independent certified public accountants.
7.7 Notices. Give notice to the Agent (which shall promptly
transmit such notice to each Lender) of:
(a) immediately (and in any event within two (2) Business
Days) after the Borrower knows or has reason to know thereof, the
occurrence of any Default or Event of Default;
(b) promptly, any default or event of default under any
Contractual Obligation of the Borrower or any of its Subsidiaries
or the Borrower which would reasonably be expected to have a
Material Adverse Effect;
(c) promptly, any litigation, or any investigation or
proceeding (including without limitation, any environmental
proceeding) known to the Borrower, affecting the Borrower or any
of its Subsidiaries or the Borrower which, if adversely
determined, would reasonably be expected to have a Material
Adverse Effect;
(d) as soon as possible and in any event within 30 days
after the Borrower knows or has reason to know thereof: (i) the
occurrence or expected occurrence of any Reportable Event with
respect to any Plan, a failure to make any required contribution
to a Plan, the creation of any Lien in favor of the PBGC or a
Plan or any withdrawal from, or the termination, Reorganization
or Insolvency of, any Multiemployer Plan or (ii) the institution
of proceedings or the taking of any other action by the PBGC or
the Borrower or any Commonly Controlled Entity or any
Multiemployer Plan with respect to the withdrawal from, or the
terminating, Reorganization or Insolvency of, any Plan; and
(e) promptly, any other development or event which would
reasonably be expected to have a Material Adverse Effect.
Each notice pursuant to this subsection shall be accompanied by a
statement of a Responsible Officer setting forth details of the
occurrence referred to therein and stating what action the Borrower
proposes to take with respect thereto.
7.8 Environmental Laws.
(a) Comply in all material respects with, and ensure
compliance in all material respects by all tenants and
subtenants, if any, with, all applicable Environmental Laws and
obtain and comply in all material respects with and maintain, and
ensure that all tenants and subtenants obtain and comply in all
material respects with and maintain, any and all licenses, appro-
vals, notifications, registrations or permits required by
applicable Environmental Laws except to the extent that failure
to do so would not reasonably be expected to have a Material
Adverse Effect;
(b) Conduct and complete all investigations, studies,
sampling and testing, and all remedial, removal and other actions
required under Environmental Laws and promptly comply in all
material respects with all lawful orders and directives of all
Governmental Authorities regarding Environmental Laws except to
the extent that the same are being contested in good faith by
appropriate proceedings and the pendency of such proceedings
would not reasonably be expected to have a Material Adverse
Effect; and
(c) Defend, indemnify and hold harmless the Agent and the
Lenders, and their respective employees, agents, officers and
directors, from and against any and all claims, demands,
penalties, fines, liabilities, settlements, damages, costs and
expenses of whatever kind or nature known or unknown, contingent
or otherwise, arising out of, or in any way relating to the
violation of, noncompliance with or liability under, any Environ-
mental Law applicable to the operations of the Borrower, any of
its Subsidiaries or the Properties, or any orders, requirements
or demands of Governmental Authorities related thereto,
including, without limitation, reasonable attorney's and
consultant's fees, investigation and laboratory fees, response
costs, court costs and litigation expenses, except to the extent
that any of the foregoing arise out of the gross negligence or
willful misconduct of the party seeking indemnification therefor.
The agreements in this paragraph shall survive repayment of the
Notes and all other amounts payable hereunder.
7.9 Financial Covenants.
(a) Debt Service Coverage Ratio. There shall be maintained as
of the end of each fiscal quarter a Debt Service Coverage Ratio of at
least 1.75:1.0.
(b) Consolidated Funded Debt Ratio. There shall be maintained
as of the end of each fiscal quarter to occur during the periods shown
below a Consolidated Funded Debt Ratio of not greater than:
Period
From the Closing Date through
December 30, 1996 3.75:1.0
December 31, 1996 through
December 30, 1997 3.25:1.0
December 31, 1997 and thereafter 2.75:1.0
(c) Consolidated Net Worth. There shall be maintained at all
times a Consolidated Net Worth of at least the lesser of (i)
$70,000,000 or (ii) an amount equal to 85% of Consolidated Net Worth
as of the end of fiscal year 1995; provided, however, that the minimum
Consolidated Net Worth required hereunder shall be increased (but not
decreased) on the last day of each fiscal year by an amount equal to
50% of Consolidated Net Income for the fiscal year then ended and on
the date of receipt by the Borrower or its Subsidiaries by an amount
equal to 100% of the Net Proceeds from any Equity Transaction.
(d) Capital Expenditures. The Borrower and the other Credit
Parties shall not, as a group, make or incur Capital Expenditures of
more than $15,000,000 in fiscal year 1996 and $13,000,000 in any
fiscal year thereafter plus, in each fiscal year, the unused portion
of Capital Expenditures permitted for the immediately preceding fiscal
year (without giving effect to any carry-forward from a prior year);
provided, however, that such amount shall not include Capital
Expenditures made with the Net Proceeds from the sale or disposition
of assets or property, or a Recovery Event, to the extent permitted by
Section 8.4(a).
7.10 Additional Subsidiary Guarantors; Pledge of Stock of
Foreign Subsidiaries. (a) Where domestic Subsidiaries of the Borrower
which are not Guarantors hereunder (the "Non-Guarantor Domestic
Subsidiaries") shall, as a group, at any time constitute more than
either
(i) one percent (1%), in any instance, or five percent (5%),
in the aggregate, of consolidated total assets, or
(ii) one percent (1%), in any instance, or five percent
(5%), in the aggregate, of Consolidated EBITDA,
(collectively, the "Threshold Requirement"), then the Borrower will
promptly notify the Agent thereof, and promptly cause one or more
domestic Subsidiaries to become a "Guarantor" hereunder by way of
execution of a Joinder Agreement, such that immediately after the
joinder of such Subsidiaries as Guarantors hereunder, the remaining
Non-Guarantor Domestic Subsidiaries shall not, as a group, exceed the
Threshold Requirement. The guaranty obligations of any such
Additional Credit Party shall be secured by, among other things,
accounts and inventory of the Additional Credit Party and a pledge of
100% of the capital stock of its domestic Subsidiaries and 65% of the
capital stock (or other equity interest) of its Foreign Subsidiaries
(subject to the terms of subsection (b) below) to the extent any such
pledge is permissible under applicable law, and a pledge by the
Borrower or other Credit Party which is the owner of the capital stock
or other equity interest in such Subsidiary of 100% of its capital
stock or other equity interest if it is a domestic Subsidiary and 65%
of its capital stock or other equity interest if it is a Foreign
Subsidiary (subject to the terms of subsection (b) below). The
Borrower and each of the other Credit Parties will use their best
reasonable efforts to obtain any and all consents as may be necessary
or appropriate to give effect to any such pledge. As used herein,
"domestic Subsidiary" means a Subsidiary which is organized and
existing under the laws of the United States or any state or
commonwealth thereof or under the laws of the District of Columbia.
(b) Each of the Credit Parties shall cause to be pledged at all
times to the Agent, for the benefit of the Lenders, at least 65% of
the capital stock of each Foreign Subsidiary; provided, however, such
pledge shall not be required (i) to the extent not permissible under
applicable law, or (ii) if the total assets of such Foreign Subsidiary
have a value of less than $2,000,000.
7.11 Interest Rate Protection. At all times subsequent to the
date which is 60 days after the Closing Date, maintain in effect one
or more Interest Protection Agreements with any of the Lenders, or
with other financial institutions reasonably satisfactory to the
Agent, the effect of which shall be to limit the interest payable by
the Borrower in connection with an aggregate principal amount of at
least 50% of the scheduled principal amount of the Term Loan for a
weighted average to maturity of not less than three (3) years. Such
Interest Protection Agreements shall be on terms and conditions
reasonably acceptable to the Agent. The Borrower shall deliver from
time to time to the Agent evidence of its compliance with this
subsection.
SECTION 8
NEGATIVE COVENANTS
Each of the Credit Parties hereby covenants and agrees that on
the Closing Date, and thereafter for so long as this Agreement is in
effect and until the Commitments have terminated, no Note or Letter of
Credit remains outstanding and unpaid and the Obligations, together
with interest, Commitment Fees and all other amounts owing to the
Agent or any Lender hereunder, are paid in full, the Borrower shall,
and shall cause each of its Subsidiaries and the Borrower, to:
8.1 Indebtedness. The Borrower will not, nor will it permit any
Subsidiary to, contract, create, incur, assume or permit to exist any
Indebtedness, except:
(a) Indebtedness arising or existing under this Agreement
and the other Credit Documents;
(b) Indebtedness existing as of the Closing Date and set
out in Schedule 8.1(b) and renewals, refinancings or extensions
thereof in a principal amount not in excess of that outstanding
as of the date of such renewal, refinancing or extension;
(c) Indebtedness incurred after the Closing Date consisting
of Capital Leases or Indebtedness incurred to provide all or a
portion of the purchase price or cost of construction of an asset
provided that (i) such Indebtedness when incurred shall not
exceed the purchase price or cost of construction of such asset;
(ii) no such Indebtedness shall be refinanced for a principal
amount in excess of the principal balance outstanding thereon at
the time of such refinancing; and (iii) the total aggregate
amount of all such Indebtedness of the Borrower and its
subsidiaries, as a group, shall not exceed $10,000,000 at any
time outstanding;
(d) Unsecured intercompany Indebtedness between a Credit
Party and another Credit Party;
(e) Indebtedness and obligations owing under Interest
Protection Agreements relating to the Loans hereunder and
currency protection agreements and commodity purchase or option
agreements entered into in order to manage existing or
anticipated interest rate, exchange rate or commodity price risks
and not for speculative purposes;
(f) Subordinated Debt of the Borrower the terms of
subordination and other terms and provisions of which are
acceptable to the Required Lenders in their reasonable discretion
(the proceeds of which shall be subject to the provisions of
Section 3.3(b)(iii));
(g) Guarantee Obligations of a Credit Party relating to
Indebtedness of another domestic Credit Party otherwise permitted
under this Section 8.1;
(h) Indebtedness incurred by a Credit Party in connection
with a Permitted Sale-Leaseback Transaction, provided that the
aggregate amount of such Indebtedness shall not exceed
$20,000,000 at any time outstanding; and
(i) other Indebtedness of the Borrower and its
Subsidiaries, as a group, which does not exceed $10,000,000 in
the aggregate at any time outstanding.
8.2 Liens. The Borrower will not, nor will it permit any
Subsidiary to, contract, create, incur, assume or permit to exist any
Lien with respect to any of its property or assets of any kind
(whether real or personal, tangible or intangible), whether now owned
or hereafter acquired, except for Permitted Liens.
8.3 Nature of Business. The Borrower will not, nor will it
permit any Subsidiary to, alter the character of its business in any
material respect from that conducted as of the Closing Date.
8.4 Consolidation, Merger, Sale or Purchase of Assets, etc. The
Borrower will not, nor will it permit any Subsidiary to,
(a) dissolve, liquidate or wind up its affairs, sell,
transfer, lease or otherwise dispose of any substantial part of
its property or assets outside of the ordinary course of business
or agree to do so at a future time except the following, without
duplication, shall be expressly permitted:
(i) Specified Sales;
(ii) the sale, transfer, lease or other disposition of
property or assets not in the ordinary course of business
(other than Specified Sales), where and to the extent that
such transaction is the result of a Recovery Event and the
Net Proceeds therefrom are used to repair or replace damaged
property or to purchase or otherwise acquire new assets or
property provided that such purchase or acquisition is
committed to within 180 days of receipt of the Net Proceeds
from the Recovery Event and such purchase or acquisition is
consummated within 270 days of such receipt; and
(iii) the sale, lease or transfer of property or
assets by a Credit Party other than the Borrower to a
domestic Credit Party.
As used herein, "substantial part" shall mean property and
assets, the book value of which, when added to the book value of
all other assets sold, leased or otherwise disposed of by the
Borrower and its Subsidiaries (other than in the ordinary course
of business),
(i) shall in any fiscal year exceed 10% of
Consolidated Net Worth; or
(ii) shall from the Closing Date exceed 25% of
Consolidated Net Worth;
in each case determined as of the end of the immediately
preceding fiscal year; or
(b) purchase, lease or otherwise acquire (in a single
transaction or a series of related transactions) all or any
substantial part of the property or assets of any Person (other
than purchases or other acquisitions of inventory, leases,
materials, property and equipment in the ordinary course of
business, except as otherwise limited or prohibited herein), or
enter into any transaction of merger or consolidation, except for
(i) investments or acquisitions permitted pursuant to Section
8.5, and (ii) the merger or consolidation of the Borrower into
another Credit Party, provided that in any such case the Borrower
shall be the surviving entity, or a Credit Party into another
Credit Party.
8.5 Advances, Investments and Loans. The Borrower will not, nor
will it permit any Subsidiary to, lend money or extend credit or make
advances to any Person, or purchase or acquire any stock, obligations
or securities of, or any other interest in, or make any capital
contribution to, any Person except for Permitted Investments.
8.6 Transactions with Affiliates. Except as permitted in
subsection (iv) of the definition of Permitted Investments, the
Borrower will not, nor will it permit any Subsidiary to, enter into
any transaction or series of transactions, whether or not in the
ordinary course of business, with any officer, director, shareholder
or Affiliate other than on terms and conditions substantially as
favorable as would be obtainable in a comparable arm's-length
transaction with a Person other than an officer, director, shareholder
or Affiliate.
8.7 Ownership of Subsidiaries. The Borrower will not, nor will
it permit any Subsidiary to, create, form or acquire a Subsidiary,
unless any such domestic Subsidiary shall become an Additional Credit
Party in accordance with the provisions of Section 7.10, or the
investment in any such foreign Subsidiary shall constitute a Permitted
Investment.
8.8 Fiscal Year. The Borrower will not, nor will it permit any
Subsidiary to, change its fiscal year, except with the prior written
consent of the Agent.
8.9 Prepayments of Indebtedness, etc. The Borrower will not,
nor will it permit any Subsidiary to,
(a) after the issuance thereof, amend or modify, or permit
the amendment or modification of, any of the terms of
subordination or other terms or provisions relating to any senior
Indebtedness for borrowed money or Subordinated Debt if such
amendment or modification is reasonably adverse to interests of
the Lenders as determined by Required Lenders in their
discretion;
(b) make (or give notice with respect thereto) any
voluntary or optional payment or prepayment or redemption or
acquisition for value (including, without limitation, by way of
depositing money or securities with the trustee with respect
thereto before due for the purpose of paying when due) or
exchange of any senior Indebtedness for borrowed money or
Subordinated Debt permitted pursuant to Section 8.1, except to
the extent repaid from the Net Proceeds of any Equity
Transaction; or
(c) make any prepayment, redemption, acquisition for value
of (including, without limitation, by way of depositing money or
securities with the trustee with respect thereto before due for
the purpose of paying when due) refund, refinance or exchange of
any Subordinated Debt;
As used herein, "Subordinated Debt" means any indebtedness for
borrowed money which by its terms is, or upon the happening of certain
events may become, subordinated in right of payment to the Obligations
hereunder and other amounts owing hereunder or in connection herewith.
8.10 Dividends. The Borrower will not, nor will it permit any
non-wholly-owned Subsidiaries to, make any payment, distribution or
dividend (other than a dividend or distribution payable solely in
stock or equity interest of the Person making the dividend or
distribution) on or any payment on account of the purchase, redemption
or retirement of, or any other distribution on, any partnership
interest, share of any class of stock or other ownership interest in
such Person, if and to the extent that a Default or Event of Default
shall exist or would exist after giving effect thereto.
SECTION 9
EVENTS OF DEFAULT
Upon the occurrence of any of the following events:
(a) The Borrower shall fail to pay any principal on any
Note when due in accordance with the terms thereof or hereof; or
the Borrower shall fail to reimburse the Issuing Lender for any
LOC Obligations when due in accordance with the terms hereof; or
the Borrower shall fail to pay any interest on any Note or any
fee or other amount payable hereunder when due in accordance with
the terms thereof or hereof and such failure shall continue
unremedied for five (5) Business Days (or any Guarantor shall
fail to pay on the Guaranty in respect of any of the foregoing or
in respect of any other Guarantee Obligations thereunder); or
(b) Any representation or warranty made or deemed made by
the Borrower or other Credit Party herein, in the Security
Agreement or in any of the other Credit Documents or which is
contained in any certificate, document or financial or other
statement furnished at any time under or in connection with this
Agreement shall prove to have been incorrect, false or misleading
in any material respect on or as of the date made or deemed made;
or
(c) The Borrower shall (i) default in the due performance
or observance of Section 7.7, 7.9 or 8.10, or (ii) default in the
observance or performance of any other term, covenant or
agreement contained in this Agreement (other than as described in
subsections 9(a), 9(b) or 9(c)(i) above), and such default shall
continue unremedied for a period of 30 days or more; or
(d) The Borrower or any of its Subsidiaries shall (i)
default in any payment of principal of or interest on any
Indebtedness (other than the Notes) in a principal amount
outstanding of at least $2,000,000 in the aggregate for the
Borrower and its Subsidiaries or in the payment of any matured
Guarantee Obligation in a principal amount outstanding of at
least $2,000,000 in the aggregate for the Borrower and its
Subsidiaries beyond the period of grace (not to exceed 30 days),
if any, provided in the instrument or agreement under which such
Indebtedness or Guarantee Obligation was created; or (ii) default
in the observance or performance of any other agreement or
condition relating to any such Indebtedness in a principal amount
outstanding of at least $2,000,000 in the aggregate for the
Borrower and its Subsidiaries or Guarantee Obligation in a
principal amount outstanding of at least $2,000,000 in the
aggregate for the Borrower and its Subsidiaries or contained in
any instrument or agreement evidencing, securing or relating
thereto, or any other event shall occur or condition exist, the
effect of which default or other event or condition is to cause,
or to permit the holder or holders of such Indebtedness or
beneficiary or beneficiaries of such Guarantee Obligation (or a
trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, with the giving of notice
if required, such Indebtedness to become due prior to its stated
maturity or such Guarantee Obligation to become payable; or
(e) (i) The Borrower or any of its Subsidiaries shall
commence any case, proceeding or other action (A) under any
existing or future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect
to it, or seeking to adjudicate it a bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with
respect to it or its debts, or (B) seeking appointment of a re-
ceiver, trustee, custodian, conservator or other similar official
for it or for all or any substantial part of its assets, or the
Borrower or any Subsidiary shall make a general assignment for
the benefit of its creditors; or (ii) there shall be commenced
against the Borrower or any Subsidiary any case, proceeding or
other action of a nature referred to in clause (i) above which
(A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed,
undischarged or unbonded for a period of 60 days; or (iii) there
shall be commenced against the Borrower or any Subsidiary any
case, proceeding other action seeking issuance of a warrant of
attachment, execution, distraint or similar process against all
or any substantial part of its assets which results in the entry
of an order for any such relief which shall not have been
vacated, discharged, or stayed or bonded pending appeal within 60
days from the entry thereof; or (iv) the Borrower or any
Subsidiary shall take any action in furtherance of, or indicating
its consent to, approval of, or acquiescence in, any of the acts
set forth in clause (i), (ii), or (iii) above; or (v) the
Borrower or any Subsidiary shall generally not, or shall be
unable to, or shall admit in writing its inability to, pay its
debts as they become due; or
(f) One or more judgments or decrees shall be entered
against the Borrower or any of its Subsidiaries involving in the
aggregate a liability (to the extent not paid when due or covered
by insurance) of $2,000,000 or more and all such judgments or
decrees shall not have been paid and satisfied, vacated, dis-
charged, stayed or bonded pending appeal within 60 days from the
entry thereof; or
(g) (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975
of the Code) involving any Plan, (ii) any "accumulated funding
deficiency" (as defined in Section 302 of ERISA), whether or not
waived, shall exist with respect to any Plan or any Lien in favor
of the PBGC or a Plan shall arise on the assets of the Borrower
or any Commonly Controlled Entity, (iii) a Reportable Event shall
occur with respect to, or proceedings shall commence to have a
trustee appointed, or a trustee shall be appointed, to administer
or to terminate, any Single Employer Plan, which Reportable Event
or commencement of proceedings or appointment of a Trustee is, in
the reasonable opinion of the Required Lenders, likely to result
in the termination of such Plan for purposes of Title IV of
ERISA, (iv) any Single Employer Plan shall terminate for purposes
of Title IV of ERISA, (v) the Borrower, any of its Subsidiaries
or any Commonly Controlled Entity shall, or in the reasonable
opinion of the Required Lenders is likely to, incur any liability
in connection with a withdrawal from, or the Insolvency or
Reorganization of, any Multiemployer Plan or (vi) any other
similar event or condition shall occur or exist with respect to a
Plan; and in each case in clauses (i) through (vi) above, such
event or condition, together with all other such events or
conditions, if any, could have a Material Adverse Effect; or
(h) Either (i) a "person" or a "group" (within the meaning
of Sections 13(d) and 14(d)(2) of the Securities Exchange Act of
1934 other than members of management of the Borrower as of the
Closing Date) becomes the "beneficial owner" (as defined in Rule
13d-3 under the Securities Exchange Act of 1934) of more than 30%
of the then outstanding voting stock of the Borrower or (ii) a
majority of the Board of Directors of the Borrower shall consist
of individuals who are not Continuing Directors; "Continuing
Director" means, as of any date of determination, (A) an
individual who on the date two years prior to such determination
date was a member of the Borrower's Board of Directors or (B) any
new Director whose nomination for election by the Borrower's
shareholders was approved by a vote of at least 75% of the
Directors then still in office who either were Directors on the
date two years prior to such determination date or whose
nomination for election was previously so approved; or
(i) The Guaranty or any provision thereof shall cease to be
in full force and effect or any Credit Party or any Person acting
by or on behalf of any Credit Party shall deny or disaffirm any
Credit Party's obligations under the Guaranty; or
(j) Any other Credit Document shall fail to be in full
force and effect or to give the Agent and/or the Lenders the
security interests, liens, rights, powers and privileges
purported to be created thereby (except as such documents may be
terminated or no longer in force and effect in accordance with
the terms thereof, other than those indemnities and provisions
which by their terms shall survive);
then, and in any such event, (A) if such event is an Event of Default
specified in paragraph (e) above, automatically the Commitments shall
immediately terminate and the Loans (with accrued interest thereon),
and all other amounts under the Credit Documents (including without
limitation the maximum amount of all contingent liabilities under
Letters of Credit) shall immediately become due and payable, and (B)
if such event is any other Event of Default, either or both of the
following actions may be taken: (i) with the written consent of the
Required Lenders, the Agent may, or upon the written request of the
Required Lenders, the Agent shall, by notice to the Borrower declare
the Commitments to be terminated forthwith, whereupon the Commitments
shall immediately terminate; and (ii) the Agent may, or upon the
written request of the Required Lenders, the Agent shall, by notice of
default to the Borrower, declare the Loans (with accrued interest
thereon) and all other amounts owing under this Agreement and the
Notes to be due and payable forthwith and direct the Borrower to pay
to the Agent cash collateral as security for the LOC Obligations for
subsequent drawings under then outstanding Letters of Credit an amount
equal to the maximum amount of which may be drawn under Letters of
Credit then outstanding, whereupon the same shall immediately become
due and payable. Except as expressly provided above in this Section
9, presentment, demand, protest and all other notices of any kind are
hereby expressly waived.
SECTION 10
AGENCY PROVISIONS
10.1 Appointment. Each Lender hereby designates and appoints
NationsBank, N.A. as administrative agent (in such capacity as Agent
hereunder, the "Agent") of such Lender to act as specified herein and
the other Credit Documents, and each such Lender hereby authorizes the
Agent as the agent for such Lender, to take such action on its behalf
under the provisions of this Credit Agreement and the other Credit
Documents and to exercise such powers and perform such duties as are
expressly delegated by the terms hereof and of the other Credit
Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary
elsewhere herein and in the other Credit Documents, the Agent shall
not have any duties or responsibilities, except those expressly set
forth herein and therein, or any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Credit Agreement or
any of the other Credit Documents, or shall otherwise exist against
the Agent. The provisions of this Section are solely for the benefit
of the Agent and the Lenders and none of the Credit Parties shall have
any rights as a third party beneficiary of the provisions hereof. In
performing its functions and duties under this Credit Agreement and
the other Credit Documents, the Agent shall act solely as agent of the
Lenders and does not assume and shall not be deemed to have assumed
any obligation or relationship of agency or trust with or for the
Borrower or any other Credit Party. The title of Co-Agent is bestowed
in recognition of the Co-Agent's participation in this credit, and
such title shall not impose or imply any duties or responsibilities
hereunder of a fiduciary nature or otherwise, in its capacity as such.
10.2 Delegation of Duties. The Agent may execute any of its
duties hereunder or under the other Credit Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Agent shall not
be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
10.3 Exculpatory Provisions. Neither the Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be (i) liable for any action lawfully taken or
omitted to be taken by it or such Person under or in connection
herewith or in connection with any of the other Credit Documents
(except for its or such Person's own gross negligence or willful
misconduct), or (ii) responsible in any manner to any of the Lenders
for any recitals, statements, representations or warranties made by
any of the Credit Parties contained herein or in any of the other
Credit Documents or in any certificate, report, statement or other
document referred to or provided for in, or received by the Agent
under or in connection herewith or in connection with the other Credit
Documents, or enforceability or sufficiency herefor of any of the
other Credit Documents, or for any failure of the Borrower to perform
its obligations hereunder or thereunder. The Agent shall not be
responsible to any Lender for the effectiveness, genuineness,
validity, enforceability, collectability or sufficiency of this Credit
Agreement, or any of the other Credit Documents or for any
representations, warranties, recitals or statements made herein or
therein or made by the Borrower or any Credit Party in any written or
oral statement or in any financial or other statements, instruments,
reports, certificates or any other documents in connection herewith or
therewith furnished or made by the Agent to the Lenders or by or on
behalf of the Credit Parties to the Agent or any Lender or be required
to ascertain or inquire as to the performance or observance of any of
the terms, conditions, provisions, covenants or agreements contained
herein or therein or as to the use of the proceeds of the Loans or of
the existence or possible existence of any Default or Event of Default
or to inspect the properties, books or records of the Credit Parties.
10.4 Reliance on Communications. The Agent shall be entitled to
rely, and shall be fully protected in relying, upon any note, writing,
resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, telecopy, telex or teletype message, statement,
order 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,
without limitation, counsel to the Borrower or any of the other
Credit Parties, independent accountants and other experts selected by
the Agent with reasonable care). The Agent may deem and treat the
Lenders as the owner of their respective interests hereunder for all
purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Agent in accordance
with Section 11.6(d). The Agent shall be fully justified in failing
or refusing to take any action under this Credit Agreement or under
any of the other Credit Documents unless it shall first receive such
advice or concurrence of the Required Lenders as it deems appropriate
or it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it
by reason of taking or continuing to take any such action. The Agent
shall in all cases be fully protected in acting, or in refraining from
acting, hereunder or under any of the other Credit Documents in
accordance with a request of the Required Lenders (or to the extent
specifically provided in Section 11.1, all the Lenders) and such
request and any action taken or failure to act pursuant thereto shall
be binding upon all the Lenders (including their successors and
assigns).
10.5 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Agent has received notice from a Lender
or a Credit Party referring to the Credit Document, describing such
Default or Event of Default and stating that such notice is a "notice
of default." In the event that the Agent receives such a notice, the
Agent shall give prompt notice thereof to the Lenders. The Agent
shall take such action with respect to such Default or Event of
Default as shall be reasonably directed by the Required Lenders.
10.6 Non-Reliance on Agent and Other Lenders. Each Lender
expressly acknowledges that neither the Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates has made
any representations or warranties to it and that no act by the Agent
or any affiliate thereof hereinafter taken, including any review of
the affairs of the Borrower, shall be deemed to constitute any
representation or warranty by the Agent to any Lender. Each Lender
represents to the Agent that it has, independently and without
reliance upon the Agent or any other Lender, and based on such
documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, assets, operations,
property, financial and other conditions, prospects and
creditworthiness of the Borrower and made its own decision to make its
Loans hereunder and enter into this Credit Agreement. Each Lender
also represents that it will, independently and without reliance upon
the Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make
its own credit analysis, appraisals and decisions in taking or not
taking action under this Credit Agreement, and to make such
investigation as it deems necessary to inform itself as to the
business, assets, operations, property, financial and other
conditions, prospects and creditworthiness of the Borrower. Except
for notices, reports and other documents expressly required to be
furnished to the Lenders by the Agent hereunder, the Agent shall not
have any duty or responsibility to provide any Lender with any credit
or other information concerning the business, operations, assets,
property, financial or other conditions, prospects or creditworthiness
of the Borrower which may come into the possession of the Agent or any
of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.
10.7 Indemnification. The Lenders agree to indemnify the Agent
in its capacity as such (to the extent not reimbursed by the Borrower
and without limiting the obligation of the Borrower to do so), ratably
according to their respective Commitment Percentages (or if the
Commitments have expired or been terminated, in accordance with the
respective principal amounts of outstanding Loans and Participation
Interests of the Lenders), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever which may at
any time (including without limitation at any time following the
termination of this Credit Agreement) be imposed on, incurred by or
asserted against the Agent in its capacity as such in any way relating
to or arising out of this Credit Agreement or the other Credit
Documents or any documents contemplated by or referred to herein or
therein or the transactions contemplated hereby or thereby or any
action taken or omitted by the Agent under or in connection with any
of the foregoing; provided that no Lender shall be liable for the
payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the gross negligence or willful
misconduct of the Agent. If any indemnity furnished to the Agent for
any purpose shall, in the opinion of the Agent, be insufficient or
become impaired, the Agent may call for additional indemnity and
cease, or not commence, to do the acts indemnified against until such
additional indemnity is furnished.
10.8 Agent in its Individual Capacity. The Agent and its
affiliates may make loans to, accept deposits from and generally
engage in any kind of business with the Borrower or any other Credit
Party as though the Agent were not Agent hereunder. With respect to
its Loans and Participation Interests, the Agent shall have the same
rights and powers under this Credit Agreement as any Lender and may
exercise the same as though they were not Agent, and the terms
"Lender" and "Lenders" shall include the Agent in its individual
capacity.
10.9 Successor Agent. The Agent may, at any time, resign upon
20 days' written notice to the Lenders. Upon any such resignation,
the Required Lenders shall have the right to appoint a successor
Agent. If no successor Agent shall have been so appointed by the
Required Lenders, and shall have accepted such appointment, within 30
days after the notice of resignation, as appropriate, then the
retiring Agent shall select a successor Agent provided such successor
is a Lender hereunder or a commercial bank organized under the laws of
the United States of America or of any State thereof and has a
combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor, such
successor Agent shall thereupon succeed to and become vested with all
the rights, powers, privileges and duties of the retiring Agent, and
the retiring Agent shall be discharged from its duties and obligations
as Agent, as appropriate, under this Credit Agreement and the other
Credit Documents and the provisions of this Section 10.9 shall inure
to its benefit as to any actions taken or omitted to be taken by it
while it was Agent under this Credit Agreement.
SECTION 11
MISCELLANEOUS
11.1 Amendments, Waivers and Release of Collateral. Neither this
Credit Agreement, nor any of the Notes, nor any of the other Credit
Documents, nor any terms hereof or thereof may be amended,
supplemented, waived or modified except in accordance with the
provisions of this subsection nor may collateral be released except as
specifically provided herein or in the Security Agreement or in
accordance with the provisions of this subsection. The Required
Lenders may, or, with the written consent of the Required Lenders, the
Agent may, from time to time, (a) enter into with the Borrower written
amendments, supplements or modifications hereto and to the other
Credit Documents for the purpose of adding any provisions to this
Credit Agreement or the other Credit Documents or (b) waive, on such
terms and conditions as the Required Lenders may specify in such
instrument, any of the requirements of this Credit Agreement or the
other Credit Documents or any Default or Event of Default and its
consequences or (c) release collateral in accordance with the terms
hereof or of the Security Agreement or on such other terms and
conditions as the Required Lenders may agree; provided, however, that
no such waiver and no such amendment, waiver, supplement, modification
or release shall (i) reduce the amount or extend the scheduled date of
maturity of any Loan or Note or any installment thereon, or reduce the
stated rate of any interest or fee payable hereunder (other than
interest at the increased post-default rate) or extend the scheduled
date of any payment thereof or increase the amount or extend the
expiration date of any Lender's Commitment, in each case without the
written consent of each Lender directly affected thereby, or (ii)
amend, modify or waive any provision of this subsection or reduce the
percentage specified in the definition of Required Lenders, or consent
to the assignment or transfer by the Borrower of any of its rights and
obligations under this Credit Agreement, in each case without the
written consent of all the Lenders, or (iii) amend, modify or waive
any provision of Section 10 without the written consent of the then
Agent, or (iv) release all or substantially all of the Guarantors or
the collateral without the written consent of all of the Lenders. Any
such waiver, any such amendment, supplement or modification and any
such release shall apply equally to each of the Lenders and shall be
binding upon the Borrower, the Lenders, the Agent and all future
holders of the Notes. In the case of any waiver, the Borrower, the
Lenders and the Agent shall be restored to their former position and
rights hereunder and under the outstanding Loans and Notes and other
Credit Documents, and any Default or Event of Default waived shall be
deemed to be cured and not continuing; but no such waiver shall extend
to any subsequent or other Default or Event of Default, or impair any
right consequent thereon.
11.2 Notices. Except as otherwise provided in Section 2, all
notices, requests and demands to or upon the respective parties hereto
to be effective shall be in writing (including by telecopy), and,
unless otherwise expressly provided herein, shall be deemed to have
been duly given or made (i) when delivered by hand, (ii) when
transmitted via telecopy (or other facsimile device) on a Business Day
between the hours of 8:30 A.M. and 7:00 P.M. (EST or EDT, as
appropriate) (or on the following Business Day if sent after 7:00
P.M.) to the number set out herein, (iii) the day following the day on
which the same has been delivered prepaid to a reputable national
overnight air courier service, or (iv) the third Business Day
following the day on which the same is sent by certified or registered
mail, postage prepaid, in each case, addressed as follows in the case
of the Borrower and the Agent, and as set forth on Schedule 11.2 in
the case of the Lenders, or to such other address as may be hereafter
notified by the respective parties hereto and any future holders of
the Notes:
The Credit Parties: c/o The Manitowoc Company, Inc.
000 Xxxxx 00xx Xxxxxx
P.O. Box 66
Manitowoc, Wisconsin 54221-0066
Attn: Xxxxxx X. Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxxxx & Xxxxx
000 X. Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxx
Xxxxxx X. Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
The Agent: NationsBank, N.A.
Independence Center, 00xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxx Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
NationsBank, N.A.
Sears Tower
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxx Xxxxxxxxx
Phone: (312)
Fax: (000) 000-0000
11.3 No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of the Agent or any Lender, any
right, remedy, power or privilege hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right,
remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein
provided are cumulative and not exclusive of any rights, remedies,
powers and privileges provided by law.
11.4 Survival of Representations and Warranties. All
representations and warranties made hereunder and in any document,
certificate or statement delivered pursuant hereto or in connection
herewith shall survive the execution and delivery of this Credit
Agreement and the Notes and the making of the Loans, provided that all
such representations and warranties shall terminate on the date upon
which the Commitments have been terminated and all amounts owing
hereunder and under any Notes have been paid in full.
11.5 Payment of Expenses and Taxes. The Borrower agrees (a) to
pay or reimburse the Agent for all its reasonable out-of-pocket costs
and expenses incurred in connection with the preparation and execution
of, and any amendment, supplement or modification to, the Credit
Documents and any other documents prepared in connection herewith or
therewith, and the consummation and administration of the transactions
contemplated hereby and thereby, together with the reasonable fees and
disbursements of counsel to the Agent, (b) to pay or reimburse each
Lender and the Agent for all its costs and expenses incurred in
connection with the enforcement or preservation of any rights under
this Credit Agreement, the Notes and any such other documents,
including, without limitation, the reasonable fees and disbursements
of counsel to the Agent and to the Lenders (including reasonable
allocated costs of in-house legal counsel), and (c) on demand, to pay,
indemnify, and hold each Lender and the Agent harmless from, any and
all recording and filing fees and any and all liabilities with respect
to, or resulting from any delay in paying, stamp, excise and other
similar taxes, if any, which may be payable or determined to be
payable in connection with the execution and delivery of, or consumma-
tion or administration of any of the transactions contemplated by, or
any amendment, supplement or modification of, or any waiver or consent
under or in respect of, the Credit Documents and any such other
documents, and (d) to pay, indemnify, and hold each Lender and the
Agent and their Affiliates harmless from and against, any and all
other liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of the Credit Documents
and any such other Documents and the use, or proposed use, of proceeds
of the Loans (all the foregoing, collectively, the "indemnified
liabilities"); provided, however, that the Borrower shall not have any
obligation hereunder to the Agent or any Lender with respect to
indemnified liabilities arising from (i) the gross negligence or
willful misconduct of the Agent or any such Lender, (ii) legal
proceedings commenced against the Agent or any Lender by any other
Lender or its participants or the Agent or (iii) a breach of any of
the Credit Documents by the Lenders. The agreements in this
subsection shall survive repayment of the Loans, Notes and all other
amounts payable hereunder.
11.6 Successors and Assigns; Participations; Purchasing Lenders.
(a) This Credit Agreement shall be binding upon and inure to the
benefit of the Borrower, the Lenders, the Agent, all future holders of
the Notes and their respective successors and assigns, except that the
Borrower may not assign or transfer any of its rights or obligations
under this Credit Agreement or the other Credit Documents without the
prior written consent of each Lender.
(b) Any Lender may, in the ordinary course of its
commercial banking business and in accordance with applicable
law, at any time sell to one or more banks or other entities
("Participants") participating interests in any Loan owing to
such Lender, any Note held by such Lender, any Commitment of such
Lender, or any other interest of such Lender hereunder. In the
event of any such sale by a Lender of participating interests to
a Participant, such Lender's obligations under this Credit
Agreement to the other parties to this Credit Agreement shall
remain unchanged, such Lender shall remain solely responsible for
the performance thereof, such Lender shall remain the holder of
any such Note for all purposes under this Credit Agreement, and
the Borrower and the Agent shall continue to deal solely and
directly with such Lender in connection with such Lender's rights
and obligations under this Credit Agreement. No Lender shall
transfer or grant any participation under which the Participant
shall have rights to approve any amendment to or waiver of this
Credit Agreement or any other Credit Document except to the
extent such amendment or waiver would (i) extend the scheduled
maturity of any Loan or Note or any installment thereon in which
such Participant is participating, or reduce the stated rate or
extend the time of payment of interest or Fees thereon (except in
connection with a waiver of interest at the increased post-
default rate) or reduce the principal amount thereof, or increase
the amount of the Participant's participation over the amount
thereof then in effect (it being understood that a waiver of any
Default or Event of Default shall not constitute a change in the
terms of such participation, and that an increase in any
Commitment or Loan shall be permitted without consent of any
Participant if the Participant's participation is not increased
as a result thereof), (ii) release all or substantially all of
the collateral, or (iii) consent to the assignment or transfer by
the Borrower of any of its rights and obligations under this
Credit Agreement. In the case of any such participation, the
Participant shall not have any rights under this Credit Agreement
or any of the other Credit Documents (the Participant's rights
against such Lender in respect of such participation to be those
set forth in the agreement executed by such Lender in favor of
the Participant relating thereto) and all amounts payable by the
Borrower hereunder shall be determined as if such Lender had not
sold such participation, provided that each Participant shall be
entitled to the benefits of subsections 3.6, 3.7, 3.8, 3.9 and
11.5 with respect to its participation in the Commitments and the
Loans outstanding from time to time; provided, that no
Participant shall be entitled to receive any greater amount
pursuant to such subsections than the transferor Lender would
have been entitled to receive in respect of the amount of the
participation transferred by such transferor Lender to such
Participant had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its
commercial banking business and in accordance with applicable
law, at any time sell or assign to any Lender or any affiliate
thereof and with the consent of the Agent and, so long as no
Event of Default has occurred and is continuing, the consent of
the Borrower (which consent shall not be unreasonably withheld),
to one or more additional banks or financial institutions
("Purchasing Lenders"), all or any part of its rights and
obligations under this Credit Agreement and the Notes in minimum
amounts of $10,000,000 (or, if less, the entire amount of such
Lender's obligations) if the Purchasing Lender is not a Lender
hereunder, or with no minimum amount if the Purchasing Lender is
a Lender hereunder, pursuant to a Commitment Transfer Supplement,
executed by such Purchasing Lender, such transferor Lender (and,
in the case of a Purchasing Lender that is not then a Lender or
an affiliate thereof so long as no Event of Default has occurred
and is continuing, by the Borrower and the Agent), and delivered
to the Agent for its acceptance and recording in the Register.
Upon such execution, delivery, acceptance and recording, from and
after the Transfer Effective Date specified in such Commitment
Transfer Supplement, (x) the Purchasing Lender thereunder shall
be a party hereto and, to the extent provided in such Commitment
Transfer Supplement, have the rights and obligations of a Lender
hereunder with a Commitment as set forth therein, and (y) the
transferor Lender thereunder shall, to the extent provided in
such Commitment Transfer Supplement, be released from its obliga-
tions under this Credit Agreement (and, in the case of a
Commitment Transfer Supplement covering all or the remaining
portion of a transferor Lender's rights and obligations under
this Credit Agreement, such transferor Lender shall cease to be a
party hereto). Such Commitment Transfer Supplement shall be
deemed to amend this Credit Agreement to the extent, and only to
the extent, necessary to reflect the addition of such Purchasing
Lender and the resulting adjustment of Commitment Percentages
arising from the purchase by such Purchasing Lender of all or a
portion of the rights and obligations of such transferor Lender
under this Credit Agreement and the Notes. On or prior to the
Transfer Effective Date specified in such Commitment Transfer
Supplement, the Borrower, at its own expense, shall execute and
deliver to the Agent in exchange for the Note delivered to the
Agent pursuant to such Commitment Transfer Supplement a new Note
to the order of such Purchasing Lender in an amount equal to the
Commitment assumed by it pursuant to such Commitment Transfer
Supplement and, unless the transferor Lender has not retained a
Commitment hereunder, a new Note to the order of the transferor
Lender in an amount equal to the Commitment retained by it
hereunder. Such new Note shall be dated the Closing Date and
shall otherwise be in the form of the Note replaced thereby. The
Note surrendered by the transferor Lender shall be returned by
the Agent to the Borrower marked "canceled".
(d) The Agent shall maintain at its address referred to in
subsection 11.2 a copy of each Commitment Transfer Supplement
delivered to it and a register (the "Register") for the
recordation of the names and addresses of the Lenders and the
Commitment of, and principal amount of the Loans owing to, each
Lender from time to time. The entries in the Register shall be
conclusive, in the absence of manifest error, and the Borrower,
the Agent and the Lenders may treat each Person whose name is
recorded in the Register as the owner of the Loan recorded
therein for all purposes of this Credit Agreement. The Register
shall be available for inspection by the Borrower or any Lender
at any reasonable time and from time to time upon reasonable
prior notice.
(e) Upon its receipt of a Commitment Transfer Supplement
executed by a transferor Lender and a Purchasing Lender (and, in
the case of a Purchasing Lender that is not then a Lender or an
affiliate thereof, by the Borrower and the Agent) together with
payment to the Agent (by the transferor Lender or the Purchasing
Lender, as agreed between them) of a registration and processing
fee of $2,500 for each Purchasing Lender listed in such
Commitment Transfer Supplement, and the Notes subject to such
Commitment Transfer Supplement, the Agent shall (i) accept such
Commitment Transfer Supplement, (ii) record the information
contained therein in the Register and (iii) give prompt notice of
such acceptance and recordation to the Lenders and the Borrower.
(f) The Borrower authorizes each Lender to disclose to any
Participant or Purchasing Lender (each, a "Transferee") and any
prospective Transferee any and all financial information in such
Lender's possession concerning the Borrower and its Affiliates
which has been delivered to such Lender by or on behalf of the
Borrower pursuant to this Credit Agreement or which has been
delivered to such Lender by or on behalf of the Borrower in
connection with such Lender's credit evaluation of the Borrower
and its Affiliates prior to becoming a party to this Credit
Agreement; in each case subject to subsection 11.14.
(g) At the time of each assignment pursuant to this
subsection 11.6 to a Person which is not already a Lender
hereunder and which is not a United States person (as such term
is defined in Section 7701(a)(30) of the Code) for Federal income
tax purposes, the respective assignee Lender shall provide to the
Borrower and the Agent the appropriate Internal Revenue Service
Forms (and, if applicable, a U.S. Tax Compliance Certificate)
described in Section 3.9.
(h) Nothing herein shall prohibit any Lender from pledging
or assigning any of its rights under this Credit Agreement
(including, without limitation, any right to payment of principal
and interest under any Note) to any Federal Reserve Bank in
accordance with applicable laws.
11.7 Adjustments; Set-off. (a) Each Lender agrees that if any
Lender (a "benefitted Lender") shall at any time receive any payment
of all or part of its Loans, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily,
by set-off, pursuant to events or proceedings of the nature referred
to in clause (e) of Section 9, or otherwise) in a greater proportion
than any such payment to or collateral received by any other Lender,
if any, in respect of such other Lender's Loans, or interest thereon,
such benefitted Lender shall purchase for cash from the other Lenders
a participating interest in such portion of each such other Lender's
Loan, or shall provide such other Lenders with the benefits of any
such collateral, or the proceeds thereof, as shall be necessary to
cause such benefitted Lender to share the excess payment or benefits
of such collateral or proceeds ratably with each of the Lenders;
provided, however, that if all or any portion of such excess payment
or benefits is thereafter recovered from such benefitted Lender, such
purchase shall be rescinded, and the purchase price and benefits
returned, to the extent of such recovery, but without interest. The
Borrower agrees that each Lender so purchasing a portion of another
Lender's Loans may exercise all rights of payment (including, without
limitation, rights of set-off) with respect to such portion as fully
as if such Lender were the direct holder of such portion.
(b) In addition to any rights and remedies of the Lenders
provided by law (including, without limitation, other rights of
set-off), each Lender shall have the right, without prior notice
to the Borrower, any such notice being expressly waived by the
Borrower to the extent permitted by applicable law, upon the
occurrence of any Event of Default, to setoff and appropriate and
apply any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured,
at any time held or owing by such Lender or any branch or agency
thereof to or for the credit or the account of the Borrower, or
any part thereof in such amounts as such Lender may elect,
against and on account of the obligations and liabilities of the
Borrower to such Lender hereunder and claims of every nature and
description of such Lender against the Borrower, in any currency,
whether arising hereunder, under the Notes or under any documents
contemplated by or referred to herein or therein, as such Lender
may elect, whether or not such Lender has made any demand for
payment and although such obligations, liabilities and claims may
be contingent or unmatured. The aforesaid right of set-off may
be exercised by such Lender against the Borrower or against any
trustee in bankruptcy, debtor in possession, assignee for the
benefit of creditors, receiver or execution, judgment or
attachment creditor of the Borrower, or against anyone else
claiming through or against the Borrower or any such trustee in
bankruptcy, debtor in possession, assignee for the benefit of
creditors, receiver, or execution, judgment or attachment
creditor, notwithstanding the fact that such right of set-off
shall not have been exercised by such Lender prior to the
occurrence of any Event of Default. Each Lender agrees promptly
to notify the Borrower and the Agent after any such set-off and
application made by such Lender; provided, however, that the
failure to give such notice shall not affect the validity of such
set-off and application.
11.8 Table of Contents and Section Headings. The table of
contents and the Section and subsection headings herein are intended
for convenience only and shall be ignored in construing this Credit
Agreement.
11.9 Counterparts. This Credit Agreement may be executed by one
or more of the parties to this Credit Agreement on any number of
separate counterparts, and all of said counterparts taken together
shall be deemed to constitute one and the same instrument. A set of
the copies of this Credit Agreement signed by all the parties shall be
lodged with the Borrower and the Agent.
11.10 Severability. Any provision of this Credit Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof,
and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other
jurisdiction.
11.11 Integration. This Credit Agreement, the Notes and the
other Credit Documents represent the agreement of the Borrower, the
Agent and the Lenders with respect to the subject matter hereof, and
there are no promises, undertakings, representations or warranties by
the Agent, the Borrower or any Lender relative to the subject matter
hereof not expressly set forth or referred to herein or in the Notes.
11.12 Governing Law. This Credit Agreement and the Notes and
the rights and obligations of the parties under this Credit Agreement
and the Notes shall be governed by, and construed and interpreted in
accordance with, the law of the State of North Carolina.
11.13 Consent to Jurisdiction and Service of Process. All
judicial proceedings brought against the Borrower or any other Credit
Party with respect to this Credit Agreement, any Note or any of the
other Credit Documents may be brought in any state or federal court of
competent jurisdiction in the State of North Carolina, and, by
execution and delivery of this Credit Agreement, the Borrower and each
of the other Credit Parties accepts, for itself and in connection with
its properties, generally and unconditionally, the non-exclusive
jurisdiction of the aforesaid courts and irrevocably agrees to be
bound by any final judgment rendered thereby in connection with this
Credit Agreement from which no appeal has been taken or is available.
The Borrower and each of the other Credit Parties irrevocably agrees
that all process in any such proceedings in any such court may be
effected by mailing a copy thereof by registered or certified mail (or
any substantially similar form of mail), postage prepaid, to it at its
address set forth in subsection 11.2 or at such other address of which
the Agent shall have been notified pursuant thereto, such service
being hereby acknowledged by the Borrower and each of the other Credit
Parties to be effective and binding service in every respect. The
Borrower, each of the other Credit Parties, the Agent and the Lenders
irrevocably waive any objection, including, without limitation, any
objection to the laying of venue or based on the grounds of forum non
conveniens which it may now or hereafter have to the bringing of any
such action or proceeding in any such jurisdiction. Nothing herein
shall affect the right to serve process in any other manner permitted
by law or shall limit the right of any Lender to bring proceedings
against the Borrower and each of the other Credit Parties in the court
of any other jurisdiction.
11.14 Confidentiality. The Agent and each of the Lenders agrees
that it will use its best efforts not to disclose without the prior
consent of the Borrower (other than to its employees, Subsidiaries,
Affiliates, auditors or counsel or to another Lender) any information
with respect to the Borrower and its Subsidiaries which is furnished
pursuant to this Credit Agreement, any other Credit Document or any
documents contemplated by or referred to herein or therein and which
is designated by the Borrower to the Lenders in writing as
confidential or as to which it is otherwise reasonably clear such
information is not public, except that any Lender may disclose any
such information (a) as has become generally available to the public
other than by a breach of this subsection 11.14, (b) as may be
required or appropriate in any report, statement or testimony
submitted to any municipal, state or federal regulatory body having or
claiming to have jurisdiction over such Lender or to the Federal
Reserve Board or the Federal Deposit Insurance Corporation or the OCC
or similar organizations (whether in the United States or elsewhere)
or their successors or the National Association of Insurance
Commissioners, (c) as may be required or appropriate in response to
any summons or subpoena or any law, order, regulation or ruling
applicable to such Lender, (d) as may be necessary or appropriate in
the exercise of the Agent's and the Lender's rights under this Credit
Agreement or the other Credit Documents, or (E) to any prospective
Participant or assignee in connection with any contemplated transfer
pursuant to Section 11.6, provided that such prospective transferee
shall have been made aware of this Section 11.14 and shall have agreed
to be bound by its provisions as if it were a party to this Credit
Agreement.
11.15 Acknowledgements. Each of the Credit Parties hereby
acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of each Credit Document;
(b) neither the Agent nor any Lender has any fiduciary
relationship with or duty to the Credit Parties arising out of or
in connection with this Credit Agreement and the relationship
between Agent and Lenders, on one hand, and the Credit Parties,
on the other hand, in connection herewith is solely that of
debtor and creditor; and
(c) no joint venture exists among the Lenders or among the
Credit Parties and the Lenders.
11.16 Waivers of Jury Trial. The Credit Parties, the Agent
and the Lenders hereby irrevocably and unconditionally waive, to the
extent permitted by applicable law, trial by jury in any legal action
or proceeding relating to this Credit Agreement or any other Credit
Document and for any counterclaim therein.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Credit Agreement to be duly executed and delivered
as of the date first above written.
BORROWER:
THE MANITOWOC COMPANY, INC.,
a Wisconsin corporation
By /s/ Xxxxxx Xxxxxx
-------------------------
Title Treas.
----------------------
GUARANTORS:
MANITOWOC MEC, INC.,
a Nevada corporation
MANITEX, INC.,
a Texas corporation
FEMCO MACHINE COMPANY, INC.,
a Nevada corporation
WEST-MANITOWOC, INC.,
a Wisconsin corporation
MANITOWOC-XXXXXXXX CORP.,
a New York corporation
NORTH CENTRAL CRANE & EXCAVATOR SALES CORP.,
a Nevada corporation
MANITOWOC WESTERN COMPANY, INC.,
a Wisconsin corporation
THE XXXXXXX GROUP, INC.,
a Delaware corporation
MANITOWOC RE-MANUFACTURING, INC.,
a Wisconsin corporation
KOLPAK MANUFACTURING COMPANY,
a Tennessee corporation
MANITOWOC EQUIPMENT WORKS, INC.,
a Nevada corporation
MANITOWOC NEVADA, INC.,
a Nevada corporation
By /s/ Xxxxxx Xxxxxx
-------------------------------
Title Treas
---------------------------
for each of the foregoing
LENDERS:
NATIONSBANK, N.A.,
in its capacity as Agent and as
a Lender
By /s/ Xxxxxxx X. Xxxxxx
----------------------
Title: Vice President
------------------
BANK OF AMERICA ILLINOIS
in its capacity as Co-Agent and as
a Lender
By /s/ Xxxxxxx X. Xxxxx
-----------------------
Title: Senior Vice President
THE BANK OF NOVA SCOTIA
By /s/ FCM Xxxxx
------------------------
Title: Senior Manager Loan Operations
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ Xxxxx Xxxx
------------------------
Title: Senior Vice President
FLEET BANK
By /s/ Xxxx X. Xxxxxxxx
-----------------------
Title: Senior Vice President
THE NORTHERN TRUST COMPANY
By /s/ G. Buff Xxxxxxx
-----------------------
Title: Vice President
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD. CHICAGO BRANCH
By /s/ Xxxxxx X Xxxx Xx
-----------------------
Title: Vice President and Deputy General Manager
THE BANK OF NEW YORK
By /s/ Xxxxxxx X. Xxxxxxxx
-------------------------
Title: Assistant Vice President
ASSOCIATED BANK LAKESHORE
NATIONAL ASSOCIATION
By /s/ Xxxxx Xxxxxx
-------------------------
Title: Senior Vice President
SCHEDULES AND EXHIBITS
SCHEDULE 2.1(a) - Schedule of Lenders and Commitments
SCHEDULE 2.1(b)(i) - Form of Borrowing Notice for Revolving Loans
and Swingline Loans
SCHEDULE 2.1(d) - Applicable Percentage
SCHEDULE 2.1(e) - Form of Revolving Note
SCHEDULE 2.2(d) - Form of Term Note
SCHEDULE 2.3(d) - Form of Swingline Note
SCHEDULE 2.4(a) - Existing Letters of Credit
SCHEDULE 3.9 - Section 3.9 Certificate
SCHEDULE 5.1(j) - Form of Certificate of Secretary of the Borrower
SCHEDULE 6.6 - Litigation
SCHEDULE 6.12 - Subsidiaries
SCHEDULE 7.10 - Form of Joinder Agreement
SCHEDULE 8.1(b) - Indebtedness
SCHEDULE 8.2 - Permitted Liens
SCHEDULE 11.2 - Schedule of Lenders and Commitments
SCHEDULE 11.6(c) - Form of Commitment Transfer Supplement
