EXHIBIT 4.5
$285,000,000
CREDIT AGREEMENT
DATED AS OF
MARCH 24, 1997
among
XXXX-XXXXXX SECURITY CORPORATION,
THE LENDERS LISTED HEREIN,
as Lenders,
CANADIAN IMPERIAL BANK OF COMMERCE,
as Documentation Agent,
NATIONSBANK, N.A.,
as Syndication Agent,
and
BANKERS TRUST COMPANY,
as Administrative Agent
XXXX-XXXXXX SECURITY CORPORATION
CREDIT AGREEMENT
Dated as of March 24, 1997
TABLE OF CONTENTS
Page
Introduction.......................................................... 1
Recitals.............................................................. 1
SECTION 1.
Definitions................................................................ 2
1.1 Certain Defined Terms........................................... 2
1.2 Accounting Terms; Utilization of GAAP for Purposes of
Calculations Under Agreement.................................... 22
1.3 Other Definitional Provisions................................... 22
SECTION 2.
Amounts and Terms of Commitments and Loans; Notes; Letters of Credit....... 23
2.1 Loans and Notes................................................. 23
2.2 Interest on the Loans........................................... 26
2.3 Fees............................................................ 31
2.4 Prepayments and Payments; Reductions in Commitments............. 31
2.5 Use of Proceeds................................................. 36
2.6 Special Provisions Governing Eurodollar Rate Loans.............. 36
2.7 Capital Adequacy Adjustment..................................... 41
2.8 Taxes........................................................... 42
2.9 Letters of Credit............................................... 43
2.10 Replacement of Lender........................................... 50
SECTION 3.
Conditions to Loans and Letters of Credit.................................. 51
3.1 Conditions to the Initial Loans................................. 51
3.2 Conditions to All Loans......................................... 56
3.3 Conditions to Letters of Credit................................. 57
SECTION 4.
Company's Representations and Warranties................................... 57
4.1 Organization, Powers, Good Standing, Business and Subsidiaries.. 57
4.2 Authorization of Borrowing, etc................................. 58
4.3 Financial Condition............................................. 59
4.4 No Material Adverse Change; No Stock Payments................... 59
4.5 Title to Properties; Liens...................................... 60
4.6 Litigation; Adverse Facts....................................... 60
4.7 Payment of Taxes................................................ 60
4.8 Materially Adverse Agreements; Performance of Agreements........ 60
4.9 Governmental Regulation......................................... 61
4.10 Securities Activities........................................... 61
4.11 Employee Benefit Plans.......................................... 61
4.12 Patents, Trademarks, etc........................................ 62
4.13 Certain Fees.................................................... 62
4.14 Environmental Matters........................................... 62
4.15 Disclosure...................................................... 64
SECTION 5.
Company's Affirmative Covenants............................................ 64
5.1 Financial Statements and Other Reports.......................... 64
5.2 Corporate Existence, etc........................................ 68
5.3 Payment of Taxes and Claims; Tax Consolidation.................. 69
5.4 Maintenance of Properties; Insurance............................ 69
5.5 Inspection; Lender Meeting; Confidentiality..................... 69
5.6 Equal Security for Obligations; No Further Negative Pledges..... 70
5.7 Compliance with Laws, etc....................................... 70
5.8 Environmental Disclosure and Inspection......................... 70
5.9 Hazardous Materials; Remedial Action............................ 71
5.10 BW-Other Corporation............................................ 72
5.11 Further Assurances as to Future Material Subsidiaries........... 72
5.12 FOCI Matters.................................................... 72
SECTION 6.
Company's Negative Covenants............................................... 73
6.1 Indebtedness.................................................... 73
6.2 Liens........................................................... 75
6.3 Investments..................................................... 76
6.4 Contingent Obligations.......................................... 77
6.5 Restricted Junior Payments...................................... 78
6.6 Financial Covenants............................................. 79
6.7 Restriction on Fundamental Changes.............................. 84
6.8 Sales and Leasebacks............................................ 85
6.9 Sale or Discount of Receivables................................. 86
6.10 Transactions with Shareholders and Affiliates................... 86
6.11 Disposal of Subsidiary Stock.................................... 86
6.12 Conduct of Business............................................. 87
6.13 Amendments or Waivers Relating to Subordinated Indebtedness..... 87
6.14 Designation of Senior Indebtedness.............................. 87
6.15 Fiscal Year..................................................... 88
SECTION 7.
Events of Default.......................................................... 88
7.1 Failure to Make Payments When Due............................... 88
7.2 Default in Other Agreements..................................... 88
7.3 Breach of Certain Covenants..................................... 89
7.4 Breach of Warranty.............................................. 89
7.5 Other Defaults Under Agreement or Loan Documents................ 89
7.6 Involuntary Bankruptcy; Appointment of Receiver, etc............ 89
7.7 Voluntary Bankruptcy; Appointment of Receiver, etc.............. 89
7.8 Judgments and Attachments....................................... 90
7.9 Dissolution..................................................... 90
7.10 Employee Benefit Plans.......................................... 90
7.11 Invalidity of Guaranties........................................ 90
7.12 Failure of Security............................................. 91
7.13 Change in Control............................................... 91
7.14 Receivables Facilities.......................................... 91
SECTION 8.
Agents..................................................................... 93
8.1 Appointment..................................................... 93
8.2 Powers; General Immunity........................................ 93
8.3 Representations and Warranties; No Responsibility For
Appraisal of Creditworthiness................................... 95
8.4 Right to Indemnity.............................................. 95
8.5 Registered Persons Treated as Owner............................. 95
8.6 Successor Agents................................................ 96
8.7 Loan Guaranties and Collateral Documents........................ 96
SECTION 9.
Miscellaneous.............................................................. 96
9.1 Assignments and Participations in Loans and Letters of Credit... 96
9.2 Expenses........................................................ 99
9.3 Indemnity.......................................................100
9.4 Set Off.........................................................100
9.5 Ratable Sharing.................................................101
9.6 Amendments and Waivers..........................................101
9.7 Independence of Covenants.......................................103
9.8 Notices.........................................................103
9.9 Survival of Warranties and Certain Agreements...................103
9.10 Failure or Indulgence Not Waiver; Remedies Cumulative...........104
9.11 Severability....................................................104
9.12 Obligations Several; Independent Nature of Lenders' Rights......104
9.13 Headings........................................................104
9.14 APPLICABLE LAW..................................................104
9.15 Successors and Assigns; Subsequent Holders of Notes.............104
9.16 CONSENT TO JURISDICTION AND SERVICE OF PROCESS; WAIVER OF JURY
TRIAL...........................................................105
9.17 Counterparts; Effectiveness.....................................106
9.18 Certain Agreements..............................................106
Signatures.................................................................S-1
SCHEDULES
Schedule 1.1 -- Subsidiaries
Schedule 2.1A -- Lenders' Commitments and Pro Rata Shares
Schedule 2.9 -- Existing Letters of Credit
Schedule 4.1C -- Conduct of Business
Schedule 6.1 -- Existing Indebtedness
Schedule 6.2 -- Existing Liens
Schedule 6.3 -- Existing Investments
Schedule 6.4 -- Existing Contingent Obligations
Schedule A -- Credit Agreement Disclosure Schedule
EXHIBITS
I -- Form of Notice of Borrowing
II -- Form of Notice of Conversion/Continuation
III -- Form of Note
IV -- Form of Compliance Certificate
V -- Form of Opinion of Company's Special Counsel
VI -- Form of Opinion of Company's General Counsel
VII -- Form of Opinion of O'Melveny & Xxxxx LLP
VIII -- Form of Company Pledge Agreement
IX -- Form of Xxxx-Xxxxxx Subsidiary Guaranty
X -- Form of Xxxx-Xxxxxx Subsidiary Pledge Agreement
XI -- Form of Financial Condition Certificate
XII -- Form of Assignment Agreement
XIII -- Form of Letter of Credit Request
XIV -- Form of Consolidated Excess Cash Flow Calculation
CREDIT AGREEMENT
Dated as of March 24, 1997
This Credit Agreement is dated as of March 24, 1997 and entered
into by and among Xxxx-Xxxxxx Security Corporation, a Delaware corporation
("Company"), as Company, the Lenders listed on the signature pages hereof, as
Lenders, Canadian Imperial Bank of Commerce, acting through one or more of its
agencies, branches or affiliates ("CIBC"), as documentation agent
("Documentation Agent"), NationsBank, N.A. ("NationsBank"), as syndication
agent ("Syndication Agent"), and Bankers Trust Company ("Bankers"), as
administrative agent for Lenders ("Administrative Agent").
RECITALS
WHEREAS, the Company, as borrower, the lenders party thereto, as
lenders, Bank of America Illinois, The Bank of New York and The Bank of Nova
Scotia, as lead managers, CIBC INC., NationsBank, N.A. and Bankers Trust
Company, as co-agents, and Bankers Trust Company, as administrative agent, are
parties to that certain Credit Agreement dated as of January 27, 1993, as
amended (the "Existing Revolving Credit Agreement"), pursuant to which such
lenders have made loans to Company;
WHEREAS, the Company, as borrower, the financial institutions
party thereto and The Long-Term Credit Bank of Japan, Ltd., as agent, are
parties to that certain Credit Agreement dated as of January 27, 1993, as
amended (the "Existing L/C Agreement"), pursuant to which such financial
institutions have agreed to issue letters of credit for the benefit of Company;
WHEREAS, the Company, as borrower, the lenders party thereto, as
lenders, NationsBank, N.A., as documentation agent, and Bankers Trust Company,
as agent, are parties to that certain Credit Agreement dated as of October 16,
1995, as amended (the "Existing Term Loan Agreement"), pursuant to which such
lenders have made loans to Company;
WHEREAS, the Company has requested Lenders to make available to
Company credit facilities to be used, together with the proceeds of an
offering of up to $125,000,000 of senior subordinated notes (the "New Senior
Subordinated Notes"), to repay in full its outstanding indebtedness under the
Existing Term Loan Agreement and the Existing Revolving Credit Agreement and
to replace all outstanding letters of credit under the Existing L/C Agreement
(collectively, the "Refinancings");
WHEREAS, to induce Lenders to make available to Company the credit
facilities provided for in this Agreement, certain Subsidiaries of Company are
willing to guaranty the obligations of Company with respect to the credit
facilities provided by Lenders; and
WHEREAS, Company is willing to secure its obligations under this
Agreement by pledging certain intercompany Indebtedness and the capital stock
of certain of its Subsidiaries, and certain of its Subsidiaries are willing to
secure Company's obligations and their obligations under the Loan Documents by
pledging certain intercompany Indebtedness, the capital stock of certain of
their Subsidiaries and the shares of the Armored Joint Venture;
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, Company, Lenders,
Documentation Agent, Syndication Agent and Administrative Agent agree as
follows:
SECTION 1.
Definitions
1.1 Certain Defined Terms
The following terms used in this Agreement shall have the
following meanings:
"Adjusted Consolidated Capital Expenditure Amount" means, without
duplication, for any period, the sum of (i) the Consolidated Capital
Expenditures in such period plus (ii) an amount equal to 50% of the Alarm
Installation Costs originated in such period which are sold in connection with
the Alarm Services Contract Securitization Facility plus (iii) an amount equal
to 100% of the Alarm Installation Costs originated in such period which are
treated as sales-type leases which are not sold in connection with the Alarm
Services Contract Securitization Facility.
"Adjusted Eurodollar Rate" means, for any Interest Rate
Determination Date, the rate (rounded upward to the next highest one hundredth
of one percent) obtained by dividing (i) the Eurodollar Rate for that date by
(ii) a percentage equal to 100% minus the stated maximum rate of all reserves
required to be maintained against "Eurocurrency liabilities" as specified in
Regulation D (or against any other category of liabilities which includes
deposits by reference to which the interest rate on Eurodollar Rate Loans is
determined or any category of extensions of credit or other assets which
includes loans by a non-United States office of any Lender to United States
residents).
"Administrative Agent" means Bankers and any successor thereto
appointed pursuant to subsection 8.6.
"Affected Lender" means any Lender affected by any of the events
described in subsections 2.6B or 2.6C.
"Affiliate", as applied to any Person, means any other Person
directly or indirectly controlling, controlled by, or under common control
with, that Person. For the purposes of this definition, "control" (including
with correlative meanings, the terms "controlling", "controlled by" and "under
common control with"), as applied to any Person, means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of that Person, whether through the ownership of
voting securities or by contract or otherwise.
"Agent" means, as the context so requires, any or all of the
Administrative Agent, Syndication Agent, Documentation Agent and/or Collateral
Agent.
"Agreement" means this Credit Agreement dated as of March 24,
1997, as it may be amended, supplemented or otherwise modified from time to
time.
"Alarm Installation Costs" means the costs allocated to a
subscriber installation in connection with the original installation of an
alarm system, including without limitation all charges for materials and for
the labor associated with such installation.
"Alarm Services Contract Securitization Facility" means that
certain Master Program Agreement for Blind Sale and Assignment of Equipment
Leases, dated as of March 29, 1996 by and between Advanta Business Services
Corp., a Delaware corporation, and Xxxxx Fargo Alarm Services, Inc., a
Delaware corporation, as such Alarm Services Contract Securitization Facility
is in effect as of Closing Date and as it may hereafter be amended,
supplemented or otherwise modified from time to time to the extent permitted
under this Agreement.
"Armored Joint Venture" means Xxxxxx, Fargo & Co. a Delaware
corporation which owns the assets and conducts the operations formerly owned
and conducted by each of Old Armored and its Subsidiaries and Loomis Holding
Corporation and its Subsidiaries.
"Asset Sale" means the sale, lease, assignment or other transfer
for value ("transfer") by Company or any of its Subsidiaries to any Person,
whether in a single transaction or a series of related transactions (other
than to Company or any of its Subsidiaries) of (i) any of the stock of any of
Company's Subsidiaries; (ii) all or substantially all of the assets of any
division or line of business of Company or any of its Subsidiaries; or (iii)
any other assets or rights having a book value or market value in excess of
$2,000,000 other than in each case (A) the transfer in the ordinary course of
business of personal property held for transfer in the ordinary course of
business of Company or any of its Subsidiaries, and (B) the transfer of notes,
accounts receivable, contracts, leases or other receivables to the extent
transferred in connection with the Receivables Facilities.
"Bankers" has the meaning assigned to that term in the
introduction to this Agreement.
"Bankruptcy Code" means Title 11 of the United States Code entitled
"Bankruptcy" as now and hereafter in effect, or any successor statute.
"Base Rate" means, at any time, the higher of (x) the Prime Rate
or (y) the rate which is 1/2 of 1% in excess of the Federal Funds Effective
Rate.
"Base Rate Loans" means Loans bearing interest at rates determined
by reference to the Base Rate as provided in subsection 2.2A.
"Xxxx-Xxxxxx Guarantor Subsidiaries" means the Xxxx-Xxxxxx
Subsidiaries identified as such on Schedule 1.1 annexed hereto, such list in
any event to include all Material Subsidiaries of Company excluding, however,
any Subsidiaries for which the guaranty of the Obligations may cause adverse
tax consequences for Company or may violate applicable laws.
"Xxxx-Xxxxxx Pledged Subsidiaries" means the Xxxx-Xxxxxx
Subsidiaries identified as such or as "Foreign Pledged Subsidiaries" on
Schedule 1.1 annexed hereto, such list in any event to include all Material
Subsidiaries of Company excluding, however, any "Foreign Pledged Subsidiaries"
to the extent that such pledge may cause adverse tax consequences for Company
or may violate applicable laws.
"Xxxx-Xxxxxx Subsidiaries" means the Subsidiaries of Company which
are listed on Schedule 1.1 annexed hereto.
"Xxxx-Xxxxxx Subsidiary Guaranty" means the Guaranty Agreement to
be executed and delivered by the Xxxx-Xxxxxx Guarantor Subsidiaries,
substantially in the form of Exhibit IX annexed hereto, as such Xxxx-Xxxxxx
Subsidiary Guaranty may hereafter be amended, supplemented or otherwise
modified from time to time.
"Xxxx-Xxxxxx Subsidiary Pledge Agreement" means the Pledge
Agreement to be executed and delivered by the Xxxx-Xxxxxx Guarantor
Subsidiaries, substantially in the form of Exhibit X annexed hereto, pursuant
to which certain shares of capital stock of the Xxxx-Xxxxxx Pledged
Subsidiaries, the shares of the Armored Joint Venture and certain intercompany
debt obligations held by such Xxxx-Xxxxxx Guarantor Subsidiaries shall be
pledged by them to Collateral Agent for the benefit of the Lenders to secure
payment of Company's obligations and their obligations under the Loan
Documents, as such Xxxx-Xxxxxx Subsidiary Pledge Agreement may hereafter be
amended, supplemented or otherwise modified from time to time.
"Business Day" means (i) for all purposes other than as covered by
clause (ii) below, any day excluding Saturday, Sunday and any day which is a
legal holiday under the laws of the States of New York or Illinois or is a day
on which banking institutions located in such states are authorized or
required by law or other governmental action to close, and (ii) with respect
to all notices, determinations, fundings and payments in connection with the
Eurodollar Rate, any day that is a Business Day described in clause (i) and
that is also a day for trading by and between banks in Dollar deposits in the
applicable interbank Eurodollar market.
"BW-Other Corporation" means the direct and indirect subsidiaries
of BW-Other Corporation, a Delaware corporation, prior to its liquidation into
Company, including without limitation Xxxx-Xxxxxx Equities Corporation,
Xxxx-Xxxxxx Equities Corporation of California, Xxxx-Xxxxxx Equities
Corporation of Monterey, Inc., NAL II, Ltd., Xxxx-Xxxxxx Insurance Holding
Corporation and Centaur Insurance Company.
"Capital Lease", as applied to any Person, means any lease of any
property (whether real, personal or mixed) by that Person as lessee that, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet
of that Person.
"Cash" means money, currency or a credit balance in a Deposit
Account.
"Cash Equivalents" means, as at any date of determination, (i)
marketable securities (a) issued or directly and unconditionally guaranteed as
to interest and principal by the United States Government or (b) issued by any
agency of the United States the obligations of which are backed by the full
faith and credit of the United States, in each case maturing within one year
after such date; (ii) marketable direct obligations issued by any state of the
United States of America or any political subdivision of any such state or any
public instrumentality thereof, in each case maturing within one year after
such date and having, at the time of the acquisition thereof, the highest
rating obtainable from either Standard & Poor's Ratings Group, a division of
the McGraw Hill Companies ("S&P"), or Xxxxx'x Investors Service, Inc.
("Moody's"); (iii) commercial paper maturing no more than one year from the
date of creation thereof and having, at the time of the acquisition thereof, a
rating of at least A-1 from S&P or at least P-1 from Moody's; (iv)
certificates of deposit or bankers' acceptances maturing within one year after
such date and issued or accepted by any Lender or by any commercial bank
organized under the laws of the United States of America or any state thereof
or the District of Columbia that (a) is at least "adequately capitalized" (as
defined in the regulations of its primary Federal banking regulator) and (b)
has Tier 1 capital (as defined in such regulations) of not less than
$100,000,000; and (v) shares of any money market mutual fund that (a) has at
least 95% of its assets invested continuously in the types of investments
referred to in clauses (i) and (ii) above, and (b) has the highest rating
obtainable from either S&P or Moody's.
"Centaur" means Centaur Insurance Company, an Illinois corporation
and one of the BW-Other Corporations.
"Centaur Settlement Amount" means all amounts paid or contributed
by Company to Centaur or directly or indirectly paid by Company on behalf of
Centaur, in each case on or after the effective date of this Agreement for the
purpose of settling litigation pending against Centaur or against Company but
relating to Centaur; provided that the aggregate amount of all such payments
does not exceed the amount disclosed in writing by Company to Agents and
approved by Agents as of the effective date of this Agreement.
"CIBC" has the meaning assigned to that term in the introduction
to this Agreement.
"Closing Date" means the date on or before March 25, 1997, on
which the initial Loans are made.
"Collateral" means, collectively, (i) the capital stock of the
Xxxx-Xxxxxx Pledged Subsidiaries, the intercompany Indebtedness and the common
stock of the Armored Joint Venture, in each case as pledged under the Pledge
Agreements, and (ii) all other property, including proceeds, made subject to a
Lien pursuant to the Collateral Documents.
"Collateral Agent" means Bankers acting in the capacity of
collateral agent under the applicable Collateral Documents on behalf of
Lenders.
"Collateral Documents" means the Pledge Agreements and all other
instruments or documents now or hereafter delivered by Company or any
Xxxx-Xxxxxx Guarantor Subsidiary in order to grant to Collateral Agent Liens
on any Collateral for the benefit of the Lenders.
"Commercial Letter of Credit" means any letter of credit or
similar instrument issued for the purpose of providing the primary payment
mechanism in connection with the purchase of any materials, goods or services
by Company or its Subsidiaries in the ordinary course of business of Company
or any such Subsidiary.
"Commitment" or "Commitments" means the commitment or commitments
of a Lender or Lenders as set forth in subsection 2.1A.
"Commitment Fee Percentage" means (i) from the Closing Date
through but excluding the first date following the first anniversary of the
Closing Date on which the Company delivers a Compliance Certificate pursuant
to subsection 5.1(iv)(b), 0.375% per annum and (ii) on and after the first
date following the first anniversary of the Closing Date on which the Company
delivers a Compliance Certificate pursuant to subsection 5.1(iv)(b) through
maturity, the per annum Commitment Fee Percentage set forth in the table below
opposite Company's Interest Coverage Ratio for the four fiscal quarters ending
as of the last day of the fiscal quarter immediately preceding the fiscal
quarter during which the determination is being made as set forth in the
Compliance Certificate delivered pursuant to subsection 5.1(iv)(b) of the
Credit Agreement, any required adjustment to become automatically effective on
the next succeeding Business Day following receipt by the Administrative Agent
of such Compliance Certificate:
Interest Coverage Ratio Commitment Fee Percentage
------------------------------------------------- --------------------------
Less than 2.25:1.00 0.50%
Equal to or greater than 2.25:1.00 but less than 0.375%
2.75:1.00
Equal to or greater than 2.75:1.00 0.25%
If Company fails to deliver a Compliance Certificate by the time required by
subsection 5.1(iv), from such time the Compliance Certificate was required to
be delivered until delivery of such Compliance Certificate, the Commitment Fee
Percentage shall be automatically adjusted to 0.50% per annum.
"Common Stock" means the Common Stock and Non-Voting Common Stock
of Company, each series with a par value of $.01 per share.
"Company" has the meaning assigned to that term in the
introduction to this Agreement.
"Company Pledge Agreement" means the Pledge Agreement by and
between Company and Collateral Agent, substantially in the form of Exhibit
VIII annexed hereto, as such Company Pledge Agreement may hereafter be
amended, supplemented or otherwise modified from time to time.
"Company Securities" means the Preferred Stock of Company, $.01
par value per share, and Common Stock, collectively.
"Compliance Certificate" means a certificate substantially in the
form annexed hereto as Exhibit IV delivered to Lenders by Company pursuant to
subsection 5.1(iv).
"Consolidated Capital Expenditures" means, for any period, the
aggregate of all expenditures (whether in cash or accrued as liabilities) by
Company and its Consolidated Subsidiaries during such period that, in
conformity with GAAP, are included or required to be included in the property,
plant or equipment reflected in the consolidated balance sheet of Company and
its Consolidated Subsidiaries.
"Consolidated EBITDA" means, for any period, without duplication,
the sum of the amounts for such period of (i) Consolidated Net Income
excluding extraordinary items, (ii) provisions for taxes based on income,
(iii) Consolidated Interest Expense, (iv) to the extent Consolidated Net
Income has been reduced thereby, amortization expense, depreciation expense
and other non-cash expenses, and (v) other non-cash items reducing
Consolidated Net Income less non-cash items (other than those items relating
to sales-type leases) increasing Consolidated Net Income, all as determined on
a consolidated basis for Company and its Consolidated Subsidiaries in
conformity with GAAP.
"Consolidated Excess Cash Flow" means, for any period, the sum of
(x) Company's "net cash provided by (used in) operating activities" plus (y)
Company's "net cash provided by (used in) investing activities", such amounts
to be determined in a manner consistent with Company's practices as of the
date of this Agreement for the preparation of its consolidated statement of
cash flows as reflected on Exhibit XIV annexed hereto with such changes as may
be required in accordance with GAAP or as may be approved by Requisite
Lenders; provided, that Company may exclude Net Cash Proceeds of Asset Sales
from inclusion in the foregoing clauses (x) or (y) to the extent that such Net
Cash Proceeds are being held for reinvestment in accordance with subsection
2.4A(ii)(a), minus, without duplication, (i) voluntary and scheduled
repayments of Funded Debt made by Company which result in a permanent
reduction of Company's Indebtedness, and (ii) to the extent such amounts have
been included in the foregoing clauses (x) and (y), amounts equal to the sum
of (1) Net Cash Proceeds of Asset Sales applied to the prepayment of Loans
pursuant to subsection 2.4A(ii)(a) of this Agreement, (2) net cash proceeds
received from the sale or discount of notes, accounts receivable, contracts,
leases or other receivables to the extent sold or discounted in connection
with the Alarm Services Contract Securitization Facility and (3) Net Reversion
Amounts applied to the prepayment of Loans pursuant to subsection 2.4A(ii)(c)
of this Agreement.
"Consolidated Interest Expense" means, for any period, total
interest expense (including that portion attributable to Capital Leases in
accordance with GAAP and capitalized interest) of Company and its Consolidated
Subsidiaries on a consolidated basis with respect to all outstanding
Indebtedness of Company and its Consolidated Subsidiaries, including, without
limitation, all commissions, discounts and other fees and charges owed with
respect to letters of credit and with respect to any sale, discount or other
financing of receivables and net costs under Interest Rate Agreements but
excluding, however, the amortization of the costs of issuance and original
issuance discount related to the 9 1/8% Subordinated Notes, the New Senior
Subordinated Notes and any fees or other similar financing costs payable in
connection with the Existing Term Loan Agreement, the Receivables Facilities,
the Existing L/C Agreement, the Existing Revolving Credit Agreement or this
Agreement which are capitalized by Company.
"Consolidated Net Income" means, for any period, the net income
(or loss) of Company and its Consolidated Subsidiaries on a consolidated basis
for such period taken as a single accounting period determined in conformity
with GAAP; provided that there shall be excluded (i) the income (or loss) of
any Person (other than a Subsidiary of Company) in which any other Person
(other than Company or any of its Subsidiaries) has a joint interest, except to
the extent of the amount of dividends or other distributions actually paid to
Company or any of its Subsidiaries by such Person during such period, (ii) the
income (or loss) of any Person accrued prior to the date it becomes a
Subsidiary of Company or is merged into or consolidated with Company or any of
its Subsidiaries or that Person's assets are acquired by Company or any of its
Subsidiaries, (iii) the income of any Subsidiary of Company to the extent that
the declaration or payment of dividends or similar distributions by that
Subsidiary of that income is not at the time permitted by operation of the
terms of its charter or any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation applicable to that Subsidiary, and
(iv) any after-tax gains or losses attributable to Asset Sales or returned
surplus assets of any Pension Plan.
"Consolidated Net Worth" means, as at any date of determination,
the sum of the capital stock and additional paid-in capital plus retained
earnings (or minus accumulated deficit) of Company and its Consolidated
Subsidiaries and Joint Ventures on a consolidated basis calculated in
conformity with GAAP, excluding all effects of foreign currency exchange
adjustments under FASB No. 52.
"Consolidated Subsidiaries" means all Subsidiaries of Company
other than BW-Other Corporation.
"Contingent Obligation", as applied to any Person, means any
direct or indirect liability, contingent or otherwise, of that Person (i) with
respect to any indebtedness, lease, dividend or other obligation of another if
the primary purpose or intent thereof by the Person incurring the Contingent
Obligation is to provide assurance to the obligee of such obligation of
another that such obligation of another will be paid or discharged, or that
any agreements relating thereto will be complied with, or that the holders of
such obligation will be protected (in whole or in part) against loss in
respect thereof, (ii) with respect to any letter of credit issued for the
account of that Person or as to which that Person is otherwise liable for
reimbursement of drawings, or (iii) under Currency Agreements or Interest Rate
Agreements. Contingent Obligations shall include, without limitation, (a) the
direct or indirect guaranty, endorsement (otherwise than for collection or
deposit in the ordinary course of business), co-making, discounting with
recourse or sale with recourse by such Person of the obligation of another, and
(b) any liability of such Person for the obligations of another through any
agreement (contingent or otherwise) (x) to purchase, repurchase or otherwise
acquire such obligation or any security therefor, or to provide funds for the
payment or discharge of such obligation (whether in the form of loans,
advances, stock purchases, capital contributions or otherwise), (y) to
maintain the solvency or any balance sheet item, level of income or financial
condition of another, or (z) to make take-or-pay or similar payments if
required regardless of non-performance by any other party or parties to an
agreement, if in the case of any agreement described under subclauses (x) or
(y) of this sentence the primary purpose or intent thereof is as described in
the preceding sentence. The amount of any Contingent Obligation shall be
equal to the amount of the obligation so guaranteed or otherwise supported.
"Contractual Obligation", as applied to any Person, means any
provision of any security issued by that Person or of any material indenture,
mortgage, deed of trust, contract, undertaking, agreement or other instrument
to which that Person is a party or by which it or any of its properties is
bound or to which it or any of its properties is subject.
"Currency Agreement" means any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement designed to protect
Company or any of its Consolidated Subsidiaries against fluctuations in
currency values; provided that the counterparty to any such agreement shall be
a Lender or any of its Affiliates or ML & Co. or any of its Affiliates or any
other Person reasonably acceptable to Agents and Requisite Lenders.
"Defense Investigative Service Letter" means that certain letter
from J. Xxxxxxx Xxxxxxx, Assistant Deputy Director (Industrial Security) of
Defense Investigative Service to Xxxxxx Xxxxxxx, President of Company.
"Deposit Account" means a demand, time, savings, passbook or like
account with a bank, savings and loan association, credit union or like
organization, other than an account evidenced by a negotiable certificate of
deposit.
"Discontinued Operations" means BW-Other Corporation, the courier
services business unit and all other entities treated as discontinued
operations in accordance with GAAP.
"Division" means any of the guard services or alarm services
business units of Company.
"Dollars" and the sign "$" means the lawful money of the United
States of America.
"Eligible Assignee" means (A) (i) a commercial bank organized
under the laws of the United States or any state thereof; (ii) a savings and
loan association or savings bank organized under the laws of the United States
or any state thereof; (iii) a commercial bank organized under the laws of any
other country or a political subdivision thereof; provided that (x) such bank
is acting through a branch or agency located in the United States or (y) such
bank is organized under the laws of a country that is a member of the
Organization for Economic Cooperation and Development or a political
subdivision of such country; and (iv) any other entity which is an "accredited
investor" (as defined in Regulation D under the Securities Act) which extends
credit or buys loans as one of its businesses including insurance companies,
mutual funds and lease financing companies; and (B) any Lender and any
Affiliate of any Lender; provided that no Affiliate of Company shall be an
Eligible Assignee.
"Employee Benefit Plan" means any "employee benefit plan" as
defined in Section 3(3) of ERISA which is, or was at any time, maintained or
contributed to by any Loan Party or any of its ERISA Affiliates.
"Environmental Claim" means any written notice of violation,
claim, demand or other order or direction (conditional or otherwise) by any
governmental authority or any Person for personal injury (including sickness,
disease or death), tangible or intangible property damage, damage to the
environment, nuisance, pollution, contamination or other adverse effects on the
environment, or for fines, penalties or restrictions, resulting from or based
upon (i) the existence, or the continuation of the existence, of a Release
(whether sudden or non-sudden or accidental or non-accidental), of, or
exposure to, any Hazardous Material, in, into or onto the environment at, in,
by, from or related to any Facility, (ii) the transportation, storage,
treatment or disposal of Hazardous Materials in connection with the operation
of any Facility, or (iii) the violation, or alleged violation, of any
statutes, ordinances, orders, rules, regulations, permits or licenses of or
from any governmental authority, agency or court relating to Hazardous
Materials with respect to the Facilities.
"Environmental Laws" means all laws relating to fines, orders,
injunctions, penalties, damages, contribution, cost recovery compensation,
losses or injuries resulting from the Release or threatened Release of
Hazardous Materials and to the generation, storage, transportation, or
disposal of Hazardous Materials, in any manner applicable to Company or any
of its Subsidiaries or any or their respective properties, including, without
limitation, the Comprehensive Environmental Response, Compensation, and
Liability Act (42 U.S.C. Section 9601 et seq.), the Hazardous Material
Transportation Act (49 U.S.C. Section 1801 et seq.), the Resource
Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.), the Federal
Water Pollution Control Act (33 U.S.C. Section 1251 et seq.), the Clean Air
Act (42 U.S.C. Section 7401 et seq.), the Toxic Substances Control Act (15
U.S.C. Section 2601 et seq.), the Occupational Safety and Health Act (29
U.S.C. Section 651 et seq.) and the Emergency Planning and Community
Right-to-Know Act (42 U.S.C. Section 11001 et seq.), each as amended or
supplemented, and any analogous future or present local, state and federal
statutes and regulations promulgated pursuant thereto, each as in effect as of
the date of determination.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time and any successor statute.
"ERISA Affiliate", as applied to any Person, means (i) any
corporation which is a member of a controlled group of corporations within the
meaning of Section 414(b) of the Internal Revenue Code of which that Person is
a member; (ii) any trade or business (whether or not incorporated) which is a
member of a group of trades or businesses under common control within the
meaning of Section 414(c) of the Internal Revenue Code of which that Person
is a member; and (iii) any member of an affiliated service group within the
meaning of Section 414(m) or (o) of the Internal Revenue Code of which that
Person, any corporation described in clause (i) above or any trade or business
described in clause (ii) above is a member. After Company's spin-off of
Xxxx-Xxxxxx Automotive, Inc., Xxxx-Xxxxxx Automotive, Inc. and its
Subsidiaries shall not be ERISA Affiliates of Company with respect to events
occurring after such spin-off unless the Company is liable under the Code or
ERISA with respect to such event.
"ERISA Event" means (i) a "reportable event" within the meaning of
Section 4043 of ERISA and the regulations issued thereunder with respect to
any Pension Plan which is not subject to the provision for waiver of the
30-day notice requirement to the PBGC (excluding a reportable event described
in PBGC Regulation Section 2615.23 arising out of the Company's spin-off of
Xxxx-Xxxxxx Automotive, Inc.); (ii) the failure to meet the minimum funding
standard of Section 412 of the Internal Revenue Code with respect to any
Pension Plan (whether or not waived in accordance with Section 412(d) of the
Internal Revenue Code) or the failure to make on its due date a required
installment under Section 412(m) of the Internal Revenue Code with respect to
any Pension Plan or the failure to make any required contribution to a
Multiemployer Plan; (iii) the provision by the administrator of any Pension
Plan pursuant to Section 4041(a)(2) of ERISA of a notice of intent to
terminate such plan in a distress termination described in Section 4041(c) of
ERISA; (iv) the withdrawal by a Loan Party or any of its ERISA Affiliates from
any Pension Plan with two or more contributing sponsors or the termination of
any such Pension Plan resulting in liability pursuant to Sections 4063 or 4064
of ERISA; (v) the institution by the PBGC of proceedings to terminate any
Pension Plan, or the occurrence of any event or condition which might
constitute grounds under ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan; (vi) the imposition of liability on a
Loan Party or any of its ERISA Affiliates pursuant to Sections 4062(e) or 4069
of ERISA or by reason of the application of Section 4212(c) of ERISA; (vii)
the withdrawal of a Loan Party or any of its ERISA Affiliates in a complete or
partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA)
from any Multiemployer Plan if there is any potential liability therefor, or
the receipt by a Loan Party or any of its ERISA Affiliates of notice from any
Multiemployer Plan that it is in reorganization or insolvency pursuant to
Sections 4241 or 4245 of ERISA, or that it intends to terminate or has
terminated under Sections 4041A or 4042 of ERISA; (viii) the occurrence of an
act or omission which could give rise to the imposition on a Loan Party or any
of its ERISA Affiliates of any material fines, penalties, taxes or related
charges under Chapter 43 of the Internal Revenue Code or under Sections 409,
502(c), (i) or (l) or 4071 of ERISA in respect of any Employee Benefit Plan;
(ix) the assertion of a material claim (other than routine claims for
benefits) against any Employee Benefit Plan other than a Multiemployer Plan or
the assets thereof for which any Loan Party or any of its ERISA Affiliates may
be liable, or against any Loan Party or any of its ERISA Affiliates in
connection with any such plan which could reasonably be expected to be
successful; (x) the receipt from the Internal Revenue Service of notice of the
failure of any Pension Plan to qualify under Section 401(a) of the Internal
Revenue Code, or the failure of any trust forming part of any Pension Plan to
fail to qualify for exemption from taxation under Section 401(a) of the
Internal Revenue Code if the resulting fines, penalties and related charges
could reasonably be expected to be material; or (xi) the imposition of a Lien
pursuant to Sections 401(a)(29) or 412(n) of the Internal Revenue Code or
pursuant to ERISA with respect to any Pension Plan.
"Eurodollar Rate" means, for any Interest Rate Determination Date,
the arithmetic average (rounded upwards to the nearest 1/100 of 1%) of the
offered quotation, if any, to first class banks in the Eurodollar market by
each of the Reference Lenders for Dollar deposits of amounts in immediately
available funds comparable to the principal amount of the Eurodollar Rate Loan
of that Reference Lender for which the Eurodollar Rate is being determined with
maturities comparable to the Interest Period for which such Eurodollar Rate
will apply as of approximately 10:00 A.M. (New York time) two Business Days
prior to the commencement of such Interest Period. If any Reference Lender
fails to provide its offered quotation to Administrative Agent, the Eurodollar
Rate shall be determined on the basis of the offered quotation(s) by the other
Reference Lender(s).
"Eurodollar Rate Loans" means Loans bearing interest at rates
determined by reference to the Adjusted Eurodollar Rate as provided in
subsection 2.2A.
"Event of Default" means each of the events set forth in Section 7.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute.
"Existing Indebtedness" means outstanding Indebtedness of Company
and its Consolidated Subsidiaries listed in Schedule 6.1 annexed hereto.
"Existing L/C Agreement" has the meaning assigned to that term in
the introduction to this Agreement.
"Existing Letters of Credit" means the letters of credit listed on
Schedule 2.9 annexed hereto (but not any refinancings, renewals or extensions
thereof).
"Existing Revolving Credit Agreement" has the meaning assigned to
that term in the introduction to this Agreement.
"Existing Term Loan Agreement" has the meaning assigned to that
term in the introduction to this Agreement.
"Facility" or "Facilities" means, as at any date of determination,
any and all real property (including all buildings, fixtures or other
improvements located thereon) owned, leased or operated by Company or any of
its Subsidiaries as at such date.
"Federal Funds Effective Rate" means, for any period, a
fluctuating interest rate equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of
the quotations for such day on such transactions received by Administrative
Agent from three Federal funds brokers of recognized standing selected by
Administrative Agent.
"Fiscal Year" means the fiscal year of Company and its
Subsidiaries ended on December 31 of each calendar year.
"Foreign Entity" means any Subsidiary of Company or Joint Venture
of Company either (i) more than 80% of the sales, earnings or assets
(determined on a consolidated basis) of which are located or derived from
operations outside of the United States of America or (ii) which is a
"controlled foreign corporation" within the meaning of Section 952 of the
Internal Revenue Code.
"Funded Debt", as applied to any Person, means all Indebtedness of
that Person that by its terms or by the terms of any instrument or agreement
relating thereto matures more than one year from, or is directly renewable or
extendable at the option of the debtor to a date more than one year from
(including an option of the debtor under a revolving credit or similar
agreement obligating the lender or lenders to extend credit over a period of
one year or more from), the date of the creation thereof.
"Funding Date" means the date of the funding of a Loan.
"GAAP" means, subject to the limitations on application thereof
set forth in subsection 1.2, generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment
of the accounting profession, that are applicable to the circumstances as of
the date of determination.
"Government Acts" has the meaning assigned to that term in
subsection 2.9H.
"Guarantor" means the Xxxx-Xxxxxx Guarantor Subsidiaries under the
applicable Loan Guaranty.
"Hazardous Materials" means (i) any oil, petroleum or petroleum
derived substance, any drilling fluids, produced waters and other wastes
associated with the exploration, development or production of crude oil, any
flammable substances or explosives, any radioactive materials, any hazardous
wastes or substances, any toxic wastes or substances or any other materials or
pollutants which (a) pose a hazard to any property of Company or any of its
Subsidiaries or to Persons on or about such property or (b) cause such
property to be in violation of any Environmental Laws, (ii) asbestos in any
form which is or could become friable, urea formaldehyde foam insulation,
electrical equipment which contains any oil or dielectric fluid containing
levels of polychlorinated biphenyls in excess of fifty parts per million;
(iii) any chemical, material or substance defined as or included in the
definition of "hazardous substances," "hazardous wastes," "hazardous
materials," "extremely hazardous waste," "restricted hazardous waste," or
"toxic substances" or words of similar import under any applicable local,
state or federal law or under the regulations adopted or publications
promulgated pursuant thereto, including, without limitation, Environmental
Laws, and (iv) any other chemical, material or substance, exposure to which is
prohibited, limited or regulated by any governmental authority having
jurisdiction over Company or any of its Subsidiaries or any of their
respective properties.
"Indebtedness", as applied to any Person, means (i) all
indebtedness for borrowed money, whether or not evidenced by a promissory
note, draft or similar instrument, (ii) that portion of obligations with
respect to Capital Leases that is properly classified as a liability on a
balance sheet in conformity with GAAP, (iii) notes payable and drafts accepted
representing extensions of credit whether or not representing obligations for
borrowed money, (iv) any obligation owed for all or any part of the deferred
purchase price of property or services, which purchase price is (y) due more
than six months from the date of incurrence of the obligation in respect
thereof, or (z) evidenced by a note or similar written instrument, and (v) all
indebtedness secured by any Lien on any property or asset owned or held by
that Person regardless of whether the indebtedness secured thereby shall have
been assumed by that Person or is nonrecourse to the credit of that Person.
"Industry Standards" has the meaning assigned to that term in
subsection 5.4.
"Interest Coverage Ratio" means the ratio of Consolidated EBITDA to
Consolidated Interest Expense.
"Interest Payment Date" means, with respect to any Eurodollar Rate
Loan, the last day of each Interest Period applicable to such Loan; provided
that in the case of each Interest Period of longer than three months,
"Interest Payment Date" shall also include each Interest Period Anniversary
Date for such Interest Period.
"Interest Period" means any interest period applicable to a Loan
as determined pursuant to subsection 2.2B.
"Interest Period Anniversary Date" means, for each Interest Period
applicable to a Eurodollar Rate Loan that is longer than three months, each
three-month anniversary of the commencement of that Interest Period.
"Interest Rate Agreement" means any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement or other similar
agreement or arrangement designed to protect Company or any of its
Subsidiaries against fluctuations in interest rates; provided that the
counterparty to any such agreement shall be a Lender or any of its respective
Affiliates or ML & Co. or any of its Affiliates or any other Person reasonably
acceptable to Agents; provided further that the calculation of payments for
early termination shall be made on a reasonable basis in accordance with
customary industry practices.
"Interest Rate Determination Date" means each date for calculating
the Eurodollar Rate for purposes of determining the interest rate in respect
of an Interest Period. The Interest Rate Determination Date for any Interest
Period shall be the second Business Day prior to the first day of such
Interest Period for any Eurodollar Rate Loan.
"Internal Revenue Code" means the Internal Revenue Code of 1986,
as amended to the date hereof and from time to time hereafter.
"Investment", as applied to any Person, means any direct or
indirect purchase or other acquisition by that Person of, or a beneficial
interest in, stock or other Securities of any other Person, or any direct or
indirect loan, advance (other than advances to employees for moving and travel
expenses, drawing accounts and similar expenditures in the ordinary course of
business) or capital contribution by that Person to any other Person,
including all indebtedness and accounts receivable from that other Person that
are not current assets or did not arise from sales to that other Person in the
ordinary course of business. The amount of any Investment shall be the
original cost of such Investment plus the cost of all additions thereto,
without any adjustments for increases or decreases in value, or write-ups,
write-downs or write-offs with respect to such investment.
"Issuing Lender" means, with respect to any Letter of Credit, any
Lender, including the Agents, that issues such Letter of Credit determined as
provided in subsection 2.9.
"Joint Venture" means a joint venture, partnership or other
similar arrangement, whether in corporate, partnership or other legal form;
provided that, as to any such arrangement in corporate form, such corporation
shall not, as to any Person of which such corporation is a Subsidiary, be
considered to be a Joint Venture to which such Person is a party.
"Lender" and "Lenders" means the persons identified as "Lenders"
and listed on the signature pages of this Agreement, together with their
successors and permitted assigns pursuant to subsection 9.1.
"Letter of Credit" means any of the Commercial Letters of Credit
or Standby Letters of Credit issued or to be issued by Issuing Lenders for the
account of Company pursuant to subsection 2.9 and for the purposes described
in subsection 2.5C.
"Letter of Credit Request" means a request substantially in the
form of Exhibit XIII annexed hereto with respect to a proposed issuance of a
Letter of Credit.
"Letter of Credit Usage" means, with respect to any Letter of
Credit, as at any date of determination, the sum of (i) the maximum aggregate
amount which is or at any time thereafter may become available for drawing
under such Letter of Credit then outstanding plus (ii) the aggregate amount of
all drawings under such Letter of Credit honored by any Issuing Lender and not
theretofore reimbursed by Company.
"Lien" means any lien, mortgage, deed of trust, deed to secure
debt, pledge, security interest, charge or encumbrance of any kind (including
any conditional sale or other title retention agreement, any lease in the
nature thereof, and any agreement to give any security interest).
"Loan" or "Loans" means one or more of the loans made by Lenders
to Company pursuant to subsection 2.1A.
"Loan Documents" means this Agreement, the Letters of Credit and
applications for such Letters of Credit, the Notes, the Loan Guaranties and
the Collateral Documents.
"Loan Guaranties" means the Xxxx-Xxxxxx Subsidiary Guaranty.
"Loan Parties" means Company and the Xxxx-Xxxxxx Subsidiaries,
collectively.
"Margin Stock" has the meaning assigned to that term in Regulation
U of the Board of Governors of the Federal Reserve System as in effect from
time to time.
"Material Adverse Effect" means (i) a material adverse effect upon
the business, operations, properties, assets, prospects or condition
(financial or otherwise) of Company and its Consolidated Subsidiaries taken as
a whole or (ii) the material impairment of the ability of any Loan Party to
perform its obligations under any Loan Document or of any Agent or any Lender
to enforce or collect the Obligations, including the obligation of any Loan
Party to perform its guaranty of the Obligations.
"Material Subsidiary" means (i) each Subsidiary of Company
identified as a "Material Subsidiary" on Schedule 1.1 annexed hereto; (ii) any
other Subsidiary of Company now existing or hereafter acquired or formed by
Company which (x) for the most recent fiscal year of Company commencing on or
after January 1, 1996 accounted for more than 3% of the consolidated revenues
of Company, or (y) as at the end of such fiscal year, was the owner of more
than 3% of the consolidated assets, all as shown on the consolidated financial
statements of Company for such fiscal year; and (iii) any other Subsidiary so
designated by Company, by an Officers' Certificate delivered to Administrative
Agent, together with the documents required pursuant to subsection 5.11.
"Maturity Date" means March 31, 2002.
"ML & Co." or "ML" means Xxxxxxx Xxxxx & Co., Inc., a Delaware
corporation.
"MLCP" means Xxxxxxx Xxxxx Capital Partners, Inc., a Delaware
corporation.
"Multiemployer Plan" means a "multiemployer plan" as defined in
Section 3(37) of ERISA to which Company or any of its ERISA Affiliates is
contributing or ever has contributed or to which Company or any of its ERISA
Affiliates has, or ever has had, an obligation to contribute.
"NationsBank" has the meaning assigned to that term in the
introduction to this Agreement.
"Net Cash Proceeds" means, in the case of any Asset Sale, cash
payments (including any cash received by way of deferred payment pursuant to a
note receivable or otherwise, but only as and when so received) received from
an Asset Sale, net of costs of sale (including without limitation payment of
the outstanding principal amount of, premium or penalty, if any, and interest
on any Indebtedness (other than the Loans) secured by a Lien on the asset or
assets which are the subject of such Asset Sale and required to be repaid
under the terms thereof as a result of such Asset Sale) and taxes paid or
payable within two years of the date of such Asset Sale as a result thereof.
"New Senior Subordinated Notes" means Company's $125,000,000 in
initial aggregate principal amount of 9 5/8% new Senior Subordinated Notes due
March 15, 2007.
"New Senior Subordinated Note Indenture" means the indenture
pursuant to which the New Senior Subordinated Notes were issued, as such
indenture may be amended from time to time to the extent permitted under this
Agreement.
"9 1/8% Subordinated Notes" means Company's $150,000,000 in
initial aggregate principal amount of 9 1/8% Senior Subordinated Notes due
2003.
"9 1/8% Subordinated Note Indenture" means the indenture pursuant
to which the 9 1/8% Subordinated Notes were issued, as such indenture may be
amended from time to time to the extent permitted under this Agreement.
"Notes" means the promissory notes of Company issued pursuant to
subsection 2.1E and in substantially the form of Exhibit III annexed hereto.
"Notice of Borrowing" means a notice substantially in the form of
Exhibit I annexed hereto with respect to a proposed borrowing.
"Notice of Conversion/
Continuation" means a notice substantially in the form of Exhibit II annexed
hereto with respect to a proposed conversion or continuation.
"Obligations" means all obligations of every nature of Company and
its Subsidiaries from time to time owed to Agents or Lenders or any of them
under the Loan Documents. Time is of the essence in the performance of all
Obligations, except as otherwise expressly provided in this Agreement.
"Officers' Certificate" means, as applied to any corporation, a
certificate executed on behalf of such corporation by its Chairman of the
Board (if an officer) or its Chief Executive Officer or its President or one
of its Vice Presidents and by its Chief Financial Officer, its Chief
Accounting Officer, its Treasurer or its Assistant Treasurer; provided that
any Officers' Certificate required to be delivered by Company on the Closing
Date may be executed on behalf of Company by any one of the foregoing
officers; and provided further that every Officers' Certificate with respect
to the compliance with a condition precedent to the making of any Loans
hereunder shall include (i) a statement that the officer or officers making or
giving such Officers' Certificate have read such condition and any definitions
or other provisions contained in this Agreement relating thereto, (ii) a
statement that, in the opinion of the signers, they have made or have caused
to be made such examination or investigation as is necessary to enable them to
express an informed opinion as to whether or not such condition has been
complied with, and (iii) a statement as to whether, in the opinion of the
signers, such condition has been complied with.
"Old Armored" means Xxxxx Fargo Armored Service Corporation, a
Delaware corporation.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor thereto).
"Pension Plan" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to Section 412 of the Internal Revenue
Code or Section 302 of ERISA.
"Permitted Acquisitions" has the meaning assigned to that term in
subsection 6.7(ii).
"Permitted Encumbrances" means the following types of Liens (other
than any Lien imposed pursuant to Section 401(a)(29) or 412(n) of the Internal
Revenue Code or by ERISA):
(i) Liens for taxes, assessments or governmental charges
or claims the payment of which is not at the time required by subsection
5.3;
(ii) Statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other liens imposed by law
incurred in the ordinary course of business for sums not yet delinquent
or being contested in good faith, if such reserve or other appropriate
provision, if any, as shall be required by GAAP shall have been made
therefor;
(iii) Liens incurred or deposits made in the ordinary course
of business in connection with workers' compensation, unemployment
insurance and other types of social security, or to secure the
performance of tenders, statutory obligations, surety and appeal bonds,
bids, leases, government contracts, performance and return-of-money
bonds and other similar obligations (exclusive of obligations for the
payment of borrowed money);
(iv) (y) Any attachment or judgment Lien not in excess of
$1,000,000 (exclusive of any amount adequately covered by insurance as
to which the insurance company has acknowledged coverage); and (z) any
other attachment or judgment Lien unless the judgment it secures shall,
within 60 days after the entry thereof, not have been discharged or
execution thereof stayed pending appeal, or shall not have been
discharged within 60 days after the expiration of any such stay;
(v) Leases or subleases granted to others not interfering
in any material respect with the business of Company or any of its
Subsidiaries;
(vi) Easements, rights-of-way, restrictions, minor defects
or irregularities in title and other similar charges or encumbrances not
interfering in any material respect with the ordinary conduct of the
business of Company and its Consolidated Subsidiaries, taken as a whole;
(vii) Any interest or title of a lessor under any lease
permitted by this Agreement;
(viii) Liens arising from filing UCC financing statements
regarding leases permitted by this Agreement; and
(ix) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of customs duties in
connection with the importation of goods.
"Person" means and includes natural persons, corporations, limited
partnerships, general partnerships, limited liability companies, joint stock
companies, joint ventures, associations, companies, trusts, banks, trust
companies, land trusts, business trusts or other organizations, whether or not
legal entities, and governments and agencies and political subdivisions
thereof.
"Pledge Agreements" means Company Pledge Agreement and the
Xxxx-Xxxxxx Subsidiary Pledge Agreement; provided that none of Company or any
Xxxx-Xxxxxx Subsidiary shall be required to pledge more than 65% of the shares
of capital stock of any Subsidiary which is a Foreign Entity or be required to
guaranty any of the Loans or pledge the shares of capital stock of any
Subsidiary otherwise required to be pledged as collateral to the extent that
such guaranty or pledge would constitute an investment of earnings in United
States property under Section 956 (or a successor provision) of the Internal
Revenue Code that would trigger an increase in income of any United States
shareholder of the guarantor or pledgor of such collateral pursuant to Section
951 (or a successor provision) of the Internal Revenue Code.
"Potential Event of Default" means a condition or event that,
after notice or lapse of time or both, would constitute an Event of Default if
that condition or event were not cured or removed within any applicable grace
or cure period.
"Prime Rate" means the rate that Bankers announces from time to
time as its prime lending rate, as in effect from time to time. The Prime
Rate is a reference rate and does not necessarily represent the lowest or best
rate actually charged to any customer. Bankers may make commercial loans or
other loans at rates of interest at, above or below the Prime Rate.
"Pro Rata Share" means, with respect to the Commitments of any
Lender, the percentage designated as such Lender's Pro Rata Share set forth
opposite the name of such Lender in Schedule 2.1A annexed hereto.
"Receivables Facilities" means the Trade Receivables Facility and
the Alarm Services Contract Securitization Facility.
"Reference Lenders" means the Agents.
"Register" has the meaning assigned to that term in subsection
2.1D(i).
"Refinancings" has the meaning assigned to that term in the
introduction to this Agreement.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as in effect from time to time.
"Reinvested Asset Sale Proceeds" means the amount of Net Cash
Proceeds of Asset Sales received by Company and its Subsidiaries which Net
Cash Proceeds are reinvested in like assets or in other assets used in the
business of Company and its Consolidated Subsidiaries within twelve months of
the receipt of such Net Cash Proceeds up to a maximum aggregate amount of
Reinvested Asset Sale Proceeds of $10,000,000 in any Fiscal Year.
Notwithstanding the foregoing, if Company and its Subsidiaries have not used
any portion of such $10,000,000 in any Fiscal Year (such unused portion being
referred to as the "Unused Reinvestment Amount"), Company and its Subsidiaries
may, in the immediately succeeding Fiscal Year, reinvest Net Cash Proceeds of
Asset Sales in like assets or other assets used in the business of Company and
its Consolidated Subsidiaries in an amount equal to $10,000,000 plus the
cumulative amount of any Unused Reinvestment Amount; provided, that the maximum
aggregate amount of all Reinvested Asset Sale Proceeds since the Closing Date
shall not exceed $35,000,000.
"Release" means any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration in,
by or from or related to any Facility into the indoor or outdoor environment,
including the movement of any Hazardous Materials through the air, soil,
surface water, groundwater or property.
"Requisite Lenders" means Lenders having more than 50% of the
Commitments or, if the Commitments have been terminated, Lenders having more
than 50% of the aggregate principal amount of the Loans and Letter of Credit
Usage.
"Restricted Junior Payment" means (i) any dividend or other
distribution, direct or indirect, on account of any shares of any class of
stock of Company now or hereafter outstanding, except a dividend payable
solely in shares of that class of stock to the holders of that class, (ii) any
redemption, retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any shares of any class of stock
of Company now or hereafter outstanding, (iii) any payment or prepayment of
principal of, premium, if any, or interest on, or redemption, purchase,
retirement, defeasance, sinking fund or similar payment with respect to, any
Subordinated Indebtedness and (iv) any payment made to retire, or to obtain
the surrender of, any outstanding warrants, options or other rights to acquire
shares of any class of stock of Company now or hereafter outstanding.
"Scheduled Commitment Reductions" means scheduled reductions of
Commitments pursuant to subsection 2.4H(ii).
"Scheduled Commitments Reduction Amount" means, with respect to the
mandatory reductions of the Commitments required to be made pursuant to
subsection 2.4H(ii), for each date set forth below, the correlative amount set
forth opposite thereto, as adjusted by operation of the following sentence:
Scheduled Commitments
Date Reduction Amount
---- ---------------------
September 30, 1999 $ 10,000,000
March 31, 2000 10,000,000
September 30, 2000 10,000,000
March 31, 2001 15,000,000
September 30, 2001 15,000,000
March 31, 2002 225,000,000
------------
$285,000,000
On any date the Commitments are permanently reduced pursuant to subsection
2.4G or subsection 2.4H, the amount reduced shall be applied pro rata to
reduce the amounts set forth above.
"Securities" means any stock, shares, voting trust certificates,
bonds, debentures, options, warrants, notes, or other evidences of
indebtedness, secured or unsecured, convertible, subordinated or otherwise, or
in general any instruments commonly known as "securities" or any certificates
of interest, shares or participations in temporary or interim certificates for
the purchase or acquisition of, or any right to subscribe to, purchase or
acquire, any of the foregoing.
"Securities Act" means the Securities Act of 1933, as amended from
time to time, and any successor statute.
"Standby Letter of Credit" means any standby letter of credit or
similar instrument issued for the purpose of supporting (i) Indebtedness
incurred by any Foreign Entity or Joint Venture to which Company or any of its
Subsidiaries is a party for working capital and general business purposes,
(ii) obligations of Company or any of its Subsidiaries with respect to capital
calls or similar requirements in respect of Joint Ventures to which Company or
such Subsidiary is a party, (iii) workers' compensation liabilities of Company
or any of its Subsidiaries, (iv) the obligations of third party insurers of
Company or any of its Subsidiaries arising by virtue of the laws of any
jurisdiction requiring third party insurers, (v) Indebtedness in respect of
industrial revenue or development bonds or financings, (vi) obligations with
respect to leases, (vii) performance, payment, deposit or surety obligations
of Company or any of its Subsidiaries, in any case if required by law or
governmental rule or regulation or in accordance with custom or practice in
the industry, or (viii) Indebtedness or any other obligation of Company or any
of its Subsidiaries incurred in the ordinary course of its business and
permitted under this Agreement.
"Stonington" means Stonington Partners, L.P., a Delaware limited
partnership.
"Subordinated Indebtedness" means the 9 1/8% Subordinated Notes
and the New Senior Subordinated Notes and any other unsecured Indebtedness of
Company which is subordinated in right of payment to the Obligations on terms
and conditions, including, without limitation, with respect to maturities,
covenants, defaults, remedies and subordination provisions, which are
reasonably acceptable to Agents and Requisite Lenders.
"Subsidiary" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the total
voting power of shares of stock or other ownership interests entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof.
"Total Utilization of Commitments" means, as at any date of
determination, (i) the aggregate principal amount of all outstanding Loans
plus (ii) the Letter of Credit Usage.
"Trade Receivables Facility" means (i) Company's off-balance sheet
receivables purchase facility providing for the purchase of up to $120,000,000
of receivables from the Company and its Subsidiaries, as such Trade
Receivables Facility is in effect as of the Closing Date and (ii) any other
off-balance sheet receivables purchase facility, which facility has been
consented to in writing by Requisite Lenders, such consent not to be
unreasonably withheld, in each case as they may hereafter be amended,
supplemented or otherwise modified from time to time to the extent permitted
under this Agreement.
"Transaction Costs" means the fees, costs and expenses payable by
Company pursuant hereto and other fees, costs and expenses payable by Company
or any of its Subsidiaries in connection with the Refinancings and the related
transactions.
1.2 Accounting Terms; Utilization of GAAP for Purposes of Calculations
Under Agreement
For purposes of this Agreement, all accounting terms not otherwise
defined herein shall have the meanings assigned to them in conformity with
GAAP. Financial statements and other information required to be delivered by
Company to Lenders pursuant to subsection 5.1 shall be prepared in accordance
with GAAP as in effect at the time of such preparation. Calculations in
connection with the definitions, covenants and other provisions of this
Agreement shall utilize accounting principles and policies in conformity with
those used to prepare the financial statements included in Xxxx-Xxxxxx'x
Report on Form 10-K for the fiscal year ended December 31, 1996.
1.3 Other Definitional Provisions
Any reference in this Agreement (i) to a Section, a Schedule or an
Exhibit is a reference to a section hereof, a schedule hereto or an exhibit
hereto, respectively; and (ii) to a subsection or a clause is, unless
otherwise stated, a reference to a subsection or a clause of the Section or
subsection in which the reference appears. In this Agreement the singular
includes the plural and the plural the singular; "hereof," "herein," "hereto,"
"hereunder" and the like mean and refer to this Agreement as a whole and not
merely to the specific section, paragraph or clause in which the respective
word appears. Words importing any gender include the other genders;
references to statutes are to be construed as including all statutory
provisions consolidating, amending or replacing such statute. References to
"writing" include printing, typing, lithography and other means of reproducing
words in a tangible visible form. The words "including," "includes," and
"include" shall be deemed to be followed by the words "without limitation."
References to agreements and other contractual instruments shall be deemed to
include all subsequent amendments, restatements, supplements, assignments and
other modifications thereto, but only to the extent such amendments,
restatements, supplements, assignments, and other modifications are not
prohibited by the terms of this Agreement. References to Persons include
their respective permitted successors and assigns or, in the case of
governmental Persons, Persons succeeding to the relevant functions of such
Persons.
SECTION 2.
Amounts and Terms of Commitments and Loans; Notes; Letters of Credit
2.1 Loans and Notes
A. Commitments. Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of Company
herein set forth, each Lender hereby severally agrees to lend to Company from
time to time during the period from the Closing Date to but excluding the
Maturity Date its Pro Rata Share of the aggregate Commitments (as defined
below) to be used for the purposes identified in subsection 2.5A. Each
Lender's commitment to make Loans to Company pursuant to this subsection 2.1A
and to issue or participate in Letters of Credit pursuant to subsection 2.9A
is herein called its "Commitment" and such commitments of all Lenders in the
aggregate are herein called the "Commitments". Each Lender is identified as
such, and the initial amount of each such Lender's Commitment and its Pro Rata
Share of the Commitments, is set forth opposite its name on Schedule 2.1A
annexed hereto, and the aggregate initial amount of the Commitments is
$285,000,000. Each Lender's Commitment shall expire on the Maturity Date and
all Loans and all other amounts owed hereunder with respect to the Loans shall
be paid in full no later than that date. The amount of the Commitments shall
be reduced by the amount of all reductions thereof made pursuant to
subsections 2.4G and 2.4H through the date of determination. In no event
shall the aggregate outstanding principal amount of the Loans from any Lender
at any time exceed its Pro Rata Share of the amount determined in accordance
with clause (i) of the last paragraph of this subsection 2.1A.
Subject to subsection 2.6D, all Loans under this Agreement shall
be made by Lenders simultaneously and proportionately to their Pro Rata
Shares, it being understood that no Lender shall be responsible for any
default by any other Lender in that other Lender's obligation to make Loans
hereunder nor shall the Commitment of any Lender be increased or decreased as
a result of the default by any other Lender in that other Lender's obligation
to make Loans hereunder. Amounts borrowed by Company under this subsection
2.1A may be repaid and, to but excluding the Maturity Date, reborrowed.
Notwithstanding the foregoing provisions of this subsection 2.1A,
the Loans shall be subject to the following limitations in the amounts and
during the periods indicated:
(i) The amount available for borrowing under the
Commitments as of any time of determination shall not exceed an amount
equal to the amount of the Commitments minus the amount of the aggregate
Letter of Credit Usage; provided that to the extent the proceeds of such
borrowings are to be then applied to reimburse any Issuing Lender for
the amount of any drawings under any Letters of Credit honored by such
Issuing Lender and not theretofore reimbursed by Company, the amount
otherwise available for borrowing under the Commitments shall not be
reduced by the amount of the Letter of Credit drawings to be so
reimbursed; provided further, that the amount available for borrowing as
Loans, the proceeds of which are to be used for purposes other than the
reimbursement of any Issuing Lender for the amount of any drawings under
any Letter of Credit honored by such Issuing Lender and not theretofore
reimbursed by Company, shall not exceed $155,000,000; and
(ii) At no time shall the Total Utilization of Commitments
exceed the aggregate Commitments.
B. Notice of Borrowing. Subject to subsection 2.1A, whenever
Company desires to borrow under this subsection 2.1, Company shall deliver to
Administrative Agent a Notice of Borrowing (i) no later than 11:00 A.M. (New
York time) on the proposed Funding Date (in the case of a requested Base Rate
Loan) or (ii) no later than 11:00 A.M. (New York time) at least three Business
Days (in the case of a requested Eurodollar Rate Loan) in advance of the
proposed Funding Date. The Notice of Borrowing shall specify (i) the proposed
Funding Date (which shall be a Business Day), (ii) the amount of the proposed
Loans, (iii) in the case of any Loans requested to be made prior to the
earlier to occur of (x) the date which is ninety (90) days after the Closing
Date or (y) the date on which Administrative Agent notifies Company that the
primary syndication period for the Loans has been completed, that such Loans
shall initially be Base Rate Loans or Eurodollar Rate Loans which have
Interest Periods of one month, (iv) in the case of Loans requested to be made
thereafter, whether such Loans are initially to consist of Base Rate Loans or
Eurodollar Rate Loans or a combination thereof, and (v) if such Loans, or any
portion thereof, are initially to be Eurodollar Rate Loans, the amounts
thereof and the initial Interest Periods therefor. Loans made as Base Rate
Loans shall be in an aggregate minimum amount of $1,000,000 and integral
multiples of $250,000 in excess of that amount; Loans made as Eurodollar Rate
Loans shall be in an aggregate minimum amount of $5,000,000 and integral
multiples of $1,000,000 in excess of that amount.
Loans may be continued as or converted into Base Rate Loans or
Eurodollar Rate Loans in the manner provided in subsection 2.2D; provided that
the Loans made during the period from and including the Closing Date and
ending on the earlier of (x) the date which is ninety (90) days after the
Closing Date or (y) the date on which the Administrative Agent notifies the
Company that the primary syndication period for the Loans has been completed,
may not be converted other than into Base Rate Loans or Eurodollar Rate Loans
with an Interest Period of one month. In lieu of delivering the
above-described Notice of Borrowing, Company may give Administrative Agent
telephonic notice by the required time of any proposed borrowing under this
subsection 2.1; provided that such notice shall be promptly confirmed in
writing by delivery of a Notice of Borrowing to Administrative Agent on or
prior to the Funding Date of the requested Loans.
Neither Administrative Agent nor any Lender shall incur any
liability to Company in acting upon any telephonic notice referred to above
that Administrative Agent believes in good faith to have been given by a duly
authorized officer or other person authorized to borrow on behalf of Company
or for otherwise acting in good faith under this subsection 2.1B and, upon
funding of Loans by Lenders in accordance with this Agreement pursuant to any
telephonic notice, Company shall have effected Loans hereunder.
Except as provided in subsection 2.6D, a Notice of Borrowing for a
Eurodollar Rate Loan (or telephonic notice in lieu thereof) shall be
irrevocable on and after the related Interest Rate Determination Date, and
Company shall be bound to make a borrowing in accordance therewith.
C. Disbursement of Funds. Promptly after receipt of a Notice
of Borrowing pursuant to subsection 2.1B (or telephonic notice thereof),
Administrative Agent shall notify each Lender of the proposed borrowing. Each
Lender shall make the amount of its Loan available to Administrative Agent, in
same day funds, at the office of Administrative Agent located at One Bankers
Trust Plaza, New York, New York not later than 12:00 Noon (New York time) on
the Funding Date. Upon satisfaction or waiver of the conditions precedent
specified in subsections 3.1 (in the case of the initial Loans) and 3.2 (in
the case of all Loans), Administrative Agent shall make the proceeds of such
Loans available to Company on such Funding Date by causing an amount of same
day funds equal to the proceeds of all such Loans received by Administrative
Agent to be credited to the account of Company at such office of
Administrative Agent.
Unless Administrative Agent shall have been notified by any Lender
prior to any Funding Date in respect of any Loans that such Lender does not
intend to make available to Administrative Agent such Lender's Loan on such
Funding Date, Administrative Agent may assume that such Lender has made such
amount available to Administrative Agent on such Funding Date and
Administrative Agent in its sole discretion may, but shall not be obligated to,
make available to Company a corresponding amount on such Funding Date. If such
corresponding amount is not in fact made available to Administrative Agent by
such Lender, Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender together with interest
thereon, for each day from such Funding Date until the date such amount is
paid to Administrative Agent, at the customary rate set by Administrative Agent
for the correction of errors among banks for three Business Days and
thereafter at the Base Rate. If such Lender does not pay such corresponding
amount forthwith upon Administrative Agent's demand therefor, Administrative
Agent shall promptly notify Company, and Company shall immediately pay such
corresponding amount to Administrative Agent. Nothing in this subsection 2.1C
shall be deemed to relieve any Lender from its obligation to fulfill its
Commitment hereunder or to prejudice any rights that Company may have against
any Lender as a result of any default by such Lender hereunder.
D. Register.
(i) Administrative Agent shall maintain a register for the
recordation of the names and addresses of Lenders and the Commitment and Loans
of each Lender from time to time (the "Register"). The Register shall be
available for inspection by Company or any Lender at any reasonable time and
from time to time upon reasonable prior notice.
(ii) Administrative Agent shall record in the Register the
Commitment and the Loans from time to time of each Lender and each repayment
or prepayment in respect of the principal amount of the Loans of each Lender.
Any such recordation shall be conclusive and binding on Company and each
Lender, absent manifest error; provided that failure to make any such
recordation, or any error in such recordation, shall not affect any Lender's
Commitment or Company's Obligations in respect of any applicable Loans.
(iii) Each Lender shall record on its internal records the amount
of each Loan made by it and each payment in respect thereof. Any such
recordation shall be conclusive and binding on Company, absent manifest error;
provided that failure to make any such recordation, or any error in such
recordation, shall not affect any Lender's Commitment or Company's Obligations
in respect of any applicable Loans; and provided, further that in the event of
any inconsistency between the Register and any Lender's records, the
recordations in the Register shall govern, absent manifest error.
(iv) Company, Administrative Agent and Lenders shall deem and
treat the Persons listed as Lenders in the Register as the holders and owners
of the corresponding Commitments and Loans listed therein for all purposes
hereof, and no assignment or transfer of any such Commitment or Loan shall be
effective, in each case unless and until an Assignment Agreement effecting the
assignment or transfer thereof shall have been accepted by Administrative
Agent and recorded in the Register as provided in subsection 9.1B(ii). Prior
to such recordation, all amounts owed with respect to the applicable
Commitment or Loan shall be owed to the Lender listed in the Register as the
owner thereof, and any request, authority or consent of any Person who, at the
time of making such request or giving such authority or consent, is listed in
the Register as a Lender shall be conclusive and binding on any subsequent
holder, assignee or transferee of the corresponding Commitment or Loans.
E. Notes. Company shall execute and deliver to each Lender on
the Closing Date a Note substantially in the form of Exhibit III annexed
hereto to evidence that Lender's Loans, in the principal amount of that
Lender's Commitment and with other appropriate insertions.
2.2 Interest on the Loans
A. Rate of Interest. Subject to the provisions of subsection
2.6, each Loan shall bear interest on the unpaid principal amount thereof from
the date made through maturity (whether by acceleration or otherwise) at a
rate determined by reference to the Base Rate or the Adjusted Eurodollar Rate;
provided that nothing herein shall entitle any Lender to charge or receive
interest in excess of the maximum rate allowed by applicable law. The
applicable basis for determining the rate of interest shall be selected by
Company initially at the time a Notice of Borrowing is given pursuant to
subsection 2.1B. The basis for determining the interest rate with respect to
any Loan may be changed from time to time pursuant to subsection 2.2D. If on
any day a Loan is outstanding with respect to which notice has not been
delivered to Administrative Agent in accordance with the terms of this
Agreement specifying the basis for determining the rate of interest, then for
that day that Loan shall bear interest determined by reference to the Base
Rate.
From the Closing Date through the first date following the first
anniversary of the Closing Date on which the Company delivers a Compliance
Certificate pursuant to subsection 5.1(iv)(b), the Loans shall bear interest
(except as provided for in the last sentence of this subsection 2.2A) as
follows:
(i) if a Base Rate Loan, then at the sum of the Base Rate plus
0.75% per annum; or
(ii) if a Eurodollar Rate Loan, then at the sum of the Adjusted
Eurodollar Rate plus 1.75% per annum.
On or after the first date following the first anniversary of the
Closing Date on which the Company delivers a Compliance Certificate pursuant
to subsection 5.1(iv)(b) through maturity, the Loans shall bear interest
(except as provided for in the last sentence of this subsection 2.2A) as
follows:
(i) if a Base Rate Loan, then at the sum of the Base Rate plus
the applicable Base Rate margin (the "Base Rate Margin") set forth in
the table below; or
(ii) if a Eurodollar Rate Loan, then at the sum of the Adjusted
Eurodollar Rate plus the applicable Eurodollar Rate margin (the
"Eurodollar Rate Margin") set forth in the table below.
Interest Base Rate Eurodollar
Coverage Ratio Margin Rate Margin
-------------- --------- -----------
Less than 2.25:1.00 1.00% 2.00%
Equal to or greater than 2.25:1.00 but 0.75% 1.75%
less than 2.75:1.00
Equal to or greater than 2.75:1.00 but 0.25% 1.25%
less than 3.25:1.00
Equal to or greater than 3.25:1:00 0.00% 1.00%
The applicable Base Rate Margin or the applicable Eurodollar Rate
Margin shall be the Base Rate Margin or the Eurodollar Rate Margin, as the
case may be, set forth in the table above opposite Company's Interest Coverage
Ratio for the four fiscal quarters ending as of the last day of the fiscal
quarter immediately preceding the fiscal quarter during which the
determination is being made as set forth in the Compliance Certificate
delivered pursuant to subsection 5.1(iv)(b), any required adjustment to become
automatically effective on the next succeeding Business Day following receipt
by the Administrative Agent of such Compliance Certificate. If Company fails
to deliver a Compliance Certificate by the time required by subsection
5.1(iv), from such time the Compliance Certificate was required to be
delivered until delivery of such Compliance Certificate, the Base Rate Margin
and the Eurodollar Rate Margin shall automatically be adjusted to 1.00% per
annum and 2.00% per annum, respectively.
B. Interest Periods. In connection with each Eurodollar Rate
Loan of Company, by giving notice as set forth in subsections 2.1B or 2.2D,
Company shall elect an interest period (each an "Interest Period") to be
applicable to such Eurodollar Rate Loan, which Interest Period shall be a one,
two, three or six month period; provided that:
(i) the Interest Period for any Loan shall commence on the
date of such Loan;
(ii) in the case of immediately successive Interest
Periods, each successive Interest Period shall commence on the day on
which the next preceding Interest Period expires;
(iii) if an Interest Period would otherwise expire on a day
that is not a Business Day, such Interest Period shall expire on the
next succeeding Business Day; provided that if any Interest Period in
respect of a Eurodollar Rate Loan would otherwise expire on a day that
is not a Business Day but is a day of the month after which no further
Business Day occurs in such month, such Interest Period shall expire on
the next preceding Business Day;
(iv) any Interest Period 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, subject to part (v) below, end on the last Business Day
of a calendar month;
(v) no Interest Period with respect to any Loan shall
extend beyond the Maturity Date;
(vi) no Interest Period may extend beyond a date on which
Company is required to make a prepayment of principal on the Loans
unless the aggregate principal amount of Base Rate Loans and Eurodollar
Rate Loans with Interest Periods expiring on or before such date equals
or exceeds the principal amount required to be paid on the Loans on such
date;
(vii) the Interest Period for a Loan that is converted
pursuant to subsection 2.6D shall commence on the date of such
conversion and shall expire on the date on which the Interest Period for
the Loans of the other Lenders that were not converted expires; and
(viii) there shall be outstanding at any time no more than
twenty-four (24) Interest Periods relating to Eurodollar Rate Loans.
C. Interest Payments. Subject to subsection 2.2E, interest
shall be payable on the Loans as follows:
(i) interest on each Base Rate Loan shall be payable in
arrears on and to each March 25, June 25, September 25, and December 25
of each year, commencing on June 25, 1997, upon any prepayment (other
than a voluntary prepayment on the Loans) of any such Loan (to the
extent accrued on the amount being prepaid) and at maturity; and
(ii) interest on each Eurodollar Rate Loan shall be payable
in arrears on and to each Interest Payment Date applicable to that Loan,
upon any prepayment of that Loan (to the extent accrued on the amount
being prepaid) and at maturity.
D. Conversion or Continuation. Subject to the provisions of
subsection 2.6, Company shall have the option (i) to convert at any time all
or any part of its outstanding Loans equal to $5,000,000 and integral
multiples of $1,000,000 in excess thereof (in the case of Loans to be
converted to Eurodollar Rate Loans) or $1,000,000 and integral multiples
thereof (in the case of Loans to be converted to Base Rate Loans), from Loans
bearing interest at a rate determined by reference to one basis to Loans
bearing interest at a rate determined by reference to an alternative basis or
(ii) upon the expiration of any Interest Period applicable to a Eurodollar
Rate Loan, to continue all or any portion of such Loan equal to $5,000,000 and
integral multiples of $1,000,000 in excess of that amount as a Eurodollar Rate
Loan and the succeeding Interest Period(s) of such continued Loan shall
commence on the last day of the Interest Period of the Loan to be continued;
provided, however, that a Eurodollar Rate Loan may only be converted into a
Loan bearing interest determined by reference to an alternative basis on the
expiration date of an Interest Period applicable thereto, and provided
further, that no outstanding Loan may be continued as, or be converted into, a
Eurodollar Rate Loan when any Event of Default or Potential Event of Default
has occurred and is continuing; provided further that the Loans made on the
Closing Date may not be converted other than into Base Rate Loans or
Eurodollar Rate Loans with an Interest Period of one month prior to the
earlier to occur of (x) the date which is ninety (90) days after the Closing
Date or (y) the date on which the Administrative Agent notifies the Company
that the primary syndication period for the Loans has been completed; and
provided further that, subject to the provisions of subsection 2.6, no
outstanding Eurodollar Rate Loan may be converted into a Base Rate Loan during
the period from December 15 of any year to, and including, January 15 of the
immediately succeeding year.
Company shall deliver a Notice of Conversion/Continuation to
Administrative Agent no later than 1:00 P.M. (New York time) at least one
Business Day in advance of the proposed conversion/continuation date (in
the case of a conversion to a Base Rate Loan), or three Business Days in
advance of the proposed conversion/continuation date (in the case of a
conversion to, or a continuation of, a Eurodollar Rate Loan). A Notice of
Conversion/Continuation shall certify (i) the proposed conversion/
continuation date (which shall be a Business Day), (ii) the amount of the
Loan to be converted/continued, (iii) the nature of the proposed
conversion/continuation and (iv) in the case of a conversion to, or a
continuation of, a Eurodollar Rate Loan, (x) the requested Interest Period
and (y) that no Potential Event of Default or Event of Default has occurred
and is continuing. In lieu of delivering the above-described Notice of
Conversion/Continuation, Company may give Administrative Agent telephonic
notice by the required time of any proposed conversion/continuation under
this subsection 2.2D; provided that such notice shall be promptly confirmed
in writing by delivery of a Notice of Conversion/Continuation to
Administrative Agent on or before the proposed conversion/continuation
date.
Neither Administrative Agent nor any Lender shall incur any
liability to Company in acting upon any telephonic notice referred to above
that Administrative Agent believes in good faith to have been given by a duly
authorized officer or other person authorized to act on behalf of Company or
for otherwise acting in good faith under this subsection 2.2D and, upon
conversion/
continuation in accordance with this Agreement pursuant to any telephonic
notice, Company shall have effected such conversion or continuation, as the
case may be.
Promptly after receipt of a Notice of Conversion/
Continuation (or telephonic notice thereof), Administrative Agent shall notify
each Lender of the proposed conversion/
continuation. Except as provided in subsection 2.6D, a Notice of Conversion/
Continuation for conversion to, or continuation of, a Eurodollar Rate Loan (or
telephonic notice in lieu thereof) shall be irrevocable on and after the
related Interest Rate Determination Date, and Company shall be bound to
convert or continue in accordance therewith.
E. Default Rate; Post-Maturity Interest. Upon the occurrence
and during the continuation of an Event of Default, the interest rate payable
by Company with respect to principal of Loans and, to the extent permitted by
law, interest payments thereon not paid when due, shall be increased,
effective from and after the date of occurrence of such Event of Default, to a
rate that is two percent (2%) per annum in excess of the rate otherwise
payable under this Agreement (or, in the case of fees and other amounts due
hereunder, at a rate which is 2.00% per annum in excess of the interest rate
otherwise payable pursuant to subsection 2.2A of this Agreement for Base Rate
Loans); provided that, in the case of Eurodollar Rate Loans, upon the
expiration of the Interest Period in effect at the time any such increase in
interest rate is effective, such Eurodollar Rate Loans shall thereupon become
Base Rate Loans and thereafter bear interest payable upon demand at a rate
which is two percent (2%) per annum in excess of the interest rate otherwise
payable under this Agreement for Base Rate Loans. The rate provided in this
subsection 2.2E shall be reduced by two percent (2%) per annum to the rate
otherwise payable under this Agreement effective upon the cure pursuant to the
terms of this Agreement of all Events of Default giving rise to the increase
provided herein. No waiver of any Event of Default and no amendment to this
Agreement shall operate as a cure of any Event of Default unless expressly
stated in writing in such waiver or amendment. The payment or acceptance of
the increased rate provided by this subsection 2.2E shall not constitute a
waiver of any Event of Default or an amendment to this Agreement or otherwise
prejudice or limit any rights or remedies of any Agent or any Lender.
F. Computation of Interest. Interest on the Loans shall be
computed on the basis of a 360-day year and the actual number of days elapsed
in the period during which it accrues. In computing interest on any Loan, the
date of the making of such Loan or the first day of an Interest Period, as the
case may be, shall be included and the date of payment or the expiration date
of an Interest Period, as the case may be, shall be excluded; provided that if
a Loan is repaid on the same day on which it is made, one day's interest shall
be paid on that Loan.
2.3 Fees
A. Commitment Fees. Company agrees to pay to Administrative
Agent for distribution to each Lender in proportion to that Lender's Pro Rata
Share of the Commitments, commitment fees for the period from and including
the Closing Date to and excluding the date the Commitments terminate equal to
the average of the daily excess of the Commitments over the aggregate
principal amount of Loans outstanding multiplied by the Commitment Fee
Percentage then in effect, such commitment fees to be calculated on the basis
of a 360-day year and the actual number of days elapsed and to be payable in
arrears on but excluding March 25, June 25, September 25 and December 25 of
each year, commencing June 25, 1997, and ending upon and payable on the
earlier to occur of the termination of the Commitments or the Maturity Date.
For purposes of this subsection 2.3A, calculation of the amount of the
Commitments shall not give effect to any limitation of the amount available
for borrowing thereunder set forth in the numbered paragraphs of subsection
2.1A.
B. Other Fees. Company agrees to pay to the Agents, their
respective affiliates and the Lenders, as the case may be, such fees in the
amounts and at the times agreed upon between Company and such Agents, their
respective affiliates and Lenders.
2.4 Prepayments and Payments; Reductions in Commitments
A. Prepayments.
(i) Voluntary Prepayments.
(a) Company may, upon not less than one (1) Business Day's
prior written or telephonic notice confirmed in writing to
Administrative Agent (which notice Administrative Agent will promptly
transmit by telegram, telex or telephone to each Lender), at any time
and from time to time prepay any Loans in whole or in part in an
aggregate minimum amount of $1,000,000 and integral multiples thereof.
In the event that Company prepays any Eurodollar Rate Loan on a date
which is not the expiration date of the applicable Interest Period,
Company shall pay to Lenders any amounts due pursuant to subsection
2.6E. Notice of prepayment having been given as aforesaid, the
principal amount of the Loans specified in such notice shall become due
and payable on the prepayment date.
(b) In the event Company is entitled to replace a
non-consenting Lender pursuant to subsection 9.6B, Company shall have
the right, upon five Business Days' written notice to Administrative
Agent (which notice Administrative Agent shall promptly transmit to each
of the Lenders), to prepay all Loans, together with accrued and unpaid
interest, fees and other amounts owing to such non-consenting Lender in
accordance with subsection 9.6B so long as (1) in the case of the
prepayment of the Loans of any Lender pursuant to this subsection
2.4A(i)(b), the Commitment of such Lender is terminated concurrently
with such prepayment pursuant to subsection 2.4G(ii) (at which time
Schedule 2.1A shall be deemed modified to reflect the changed
Commitments), and (2) in the case of the prepayment of the Loans of any
Lender, the consents required by subsection 9.6B in connection with the
prepayment pursuant to this subsection 2.4A(i)(b) shall have been
obtained, and at such time, such Lender shall no longer constitute a
"Lender" for purposes of this Agreement, except with respect to
indemnifications under this Agreement (including, without limitation,
subsections 2.6E, 2.6H, 2.7, 2.8, 2.9G, 2.9H, 4.13, 9.2 and 9.3), which
shall survive as to such Lender.
(ii) Mandatory Prepayments.
(a) Prepayments from Certain Asset Sales. No later than
the second Business Day following the date of receipt by Company or any
of its Subsidiaries of the cash proceeds of any Asset Sale, Company
shall prepay the Loans in an amount equal to the Net Cash Proceeds of
such Asset Sale; provided however, that so long as no Event of Default
or Potential Event of Default shall have occurred and be continuing,
Company and its Subsidiaries shall not be required to apply the Net Cash
Proceeds of any such Asset Sale to the mandatory prepayment of the Loans
pursuant to this subsection 2.4A(ii)(a) to the extent that Company
intends to reinvest such Net Cash Proceeds in like assets or in other
assets used in the business of Company and its Consolidated Subsidiaries
within twelve months of such sale; provided that any such Net Cash
Proceeds which are not so reinvested within such twelve months are
applied at the end of such twelve-month period to the prepayment of the
Loans pursuant to subsection 2.4(ii)(a) and that the aggregate amount of
Net Cash Proceeds so reinvested and thereby excluded from application to
the mandatory prepayment of the Loans does not exceed $10,000,000 in any
Fiscal Year. Notwithstanding the foregoing, if Company and its
Subsidiaries have not used any portion of such $10,000,000 in any Fiscal
Year (such unused portion being referred to as the "Unused Reinvestment
Amount"), Company and its Subsidiaries may, in the immediately
succeeding Fiscal Year, reinvest Net Cash Proceeds of Asset Sales in
like assets or other assets used in the business of Company and its
Consolidated Subsidiaries in an amount equal to $10,000,000 plus the
cumulative amount of any Unused Reinvestment Amount; provided, that the
maximum aggregate amount of all Reinvested Asset Sale Proceeds since the
Closing Date shall not exceed $35,000,000. Concurrently with any
prepayment of the Loans pursuant to this subsection 2.4A(ii)(a), Company
shall deliver to Administrative Agent an Officers' Certificate
demonstrating the derivation of the Net Cash Proceeds of the correlative
Asset Sale from the gross sales price thereof. Any such mandatory
prepayments shall be applied as specified in subsection 2.4A(iii).
(b) Prepayments Due to Excess Cash Flow. In the event
that there shall be Consolidated Excess Cash Flow for any Fiscal Year,
within 90 days after the last day of such Fiscal Year, Company shall
prepay the Loans in an amount equal to 50% of such Consolidated Excess
Cash Flow. Any such mandatory prepayments shall be applied as specified
in subsection 2.4A(iii).
(c) Prepayments Due to Reversion of Surplus Assets of
Pension Plans. On the date of return to Company or any of its
Subsidiaries of any surplus assets of any pension plan of Company or any
of its Subsidiaries in excess of $1,000,000 in the aggregate for all
such returned surplus assets, net of transaction costs and expenses
incurred in obtaining such return, including incremental taxes payable
as a result thereof, Company shall prepay the Loans in an amount equal
to 100% of such net returned surplus assets (the "Net Reversion
Amount"). Any such mandatory prepayments shall be applied as specified
in subsection 2.4A(iii).
(d) Prepayments Due to Commitment Reduction. On each date
that any reduction in the Commitments pursuant to subsection 2.4H(ii)
occurs, Company shall make a prepayment of the Loans or, to the extent
no Loans remain outstanding, cash collateralize Letters of Credit, in an
amount equal to the excess, if any, of the Total Utilization of
Commitments over the Commitments as so reduced.
(e) Prepayments Due to Limitations on Commitments.
Company shall make prepayments of Loans necessary to give effect to the
limitations set forth in subsection 2.1A.
(f) Prepayments Due to Issuance of Debt Securities. No
later than the first Business Day following the date of receipt by
Company or any of its Subsidiaries of the cash proceeds (net of
underwriting discounts, similar placement fees and commissions and other
reasonable costs and expenses associated therewith) from the issuance of
any bonds, notes, debentures or other issuances of similar debt
Securities of Company or any such Subsidiary, excluding in any event the
proceeds of any issuance of debt permitted pursuant to subsections
6.1(i)-(xi), Company shall prepay the Loans in an amount equal to such
net cash proceeds. Any such mandatory prepayments shall be applied as
specified in subsection 2.4A(iii).
(g) Prepayments Due to Issuance of Equity Securities. On
the date of receipt by Company of the cash proceeds (net of underwriting
discounts and commissions and other reasonable costs associated
therewith) from the issuance of any equity Securities of Company,
including without limitation additional issuances of Company Common
Stock (other than issuances to employees or directors pursuant to the
Xxxx-Xxxxxx Security Corporation Management Stock Option Plan or 1993
Stock Incentive Plan, as such plans may be amended from time to time, or
any other employee or director stock option, incentive, purchase,
retirement, savings or similar plan), Company shall prepay the Loans in
an amount equal to 50% of such net cash proceeds. Any such mandatory
prepayments shall be applied as specified in subsection 2.4A(iii).
(iii) Application of Prepayments. Any prepayment shall be applied
in the order determined by Company and, if no order is so specified, any such
prepayment shall be applied first to Base Rate Loans to the full extent
thereof before application to Eurodollar Rate Loans in the order determined by
Administrative Agent.
B. Manner and Time of Payment. All payments of principal,
interest and fees hereunder and under the Notes by Company shall be made
without defense, setoff and counterclaim and in same day funds and delivered
to Administrative Agent not later than 12:00 Noon (New York time) on the date
due at its office located at One Bankers Trust Plaza, New York, New York for
the account of Lenders; funds received by Administrative Agent after that time
shall be deemed to have been paid by Company on the next succeeding Business
Day. Company hereby authorizes Administrative Agent to charge its account
with Administrative Agent in order to cause timely payment to be made to
Administrative Agent of all principal, interest and fees due hereunder
(subject to sufficient funds being available in its account for that purpose).
C. Application of Payments or Prepayments to Principal and
Interest. All payments or prepayments, other than with respect to a voluntary
prepayment on the Loans, in respect of the principal amount of any Loan shall
include payment of accrued interest on the principal amount being repaid or
prepaid, and all such payments or prepayments (and, in any event, any payments
or prepayments in respect of any Loan on a date when interest is due and
payable with respect to such Loan) shall be applied to the payment of interest
before application to principal.
D. Apportionment of Payments. Aggregate principal and interest
payments shall be apportioned among all outstanding Loans to which such
payments relate, and such payments shall be apportioned ratably to Lenders, in
each case proportionately to Lenders' respective Pro Rata Shares.
Administrative Agent shall promptly distribute to each Lender at its primary
address set forth below its name on the appropriate signature page hereof or
such other address as any Lender may request its share of all such payments
received by Administrative Agent and the commitment fees of such Lender when
received by Administrative Agent pursuant to subsection 2.3A. Notwithstanding
the foregoing provisions of this subsection 2.4D if, pursuant to the
provisions of subsection 2.6D, any Notice of Borrowing or Notice of Conversion/
Continuation is withdrawn as to any Affected Lender or if any Affected Lender
makes Base Rate Loans in lieu of its Pro Rata Share of Eurodollar Rate Loans,
Administrative Agent shall give effect thereto in apportioning payments
received thereafter.
E. Payments on Non-Business Days. Whenever any payment to be
made hereunder or under the Notes shall be stated to be due on a day that is
not a Business Day, the payment shall be made on the next succeeding Business
Day and such extension of time shall be included in the computation of the
payment of interest hereunder or under the Notes or of the commitment and
other fees hereunder, as the case may be; provided, however, that if the day
on which payment relating to a Eurodollar Rate Loan is due is not a Business
Day but is a day of the month after which no further Business Day occurs in
that month, then the due date thereof shall be the next preceding Business Day.
F. Notation of Payment. Each Lender agrees that before
disposing of any Note held by it, or any part thereof (other than by granting
participations therein), that Lender will make a notation thereon of all Loans
and principal payments previously made thereon and of the date to which
interest thereon has been paid and will notify Company and Administrative
Agent of the name and address of the transferee of that Note; provided that
the failure to make (or any error in the making of) a notation of any Loan
made under such Note or to notify Company and Administrative Agent of the name
and address of such transferee shall not limit or otherwise affect the
obligation of Company hereunder or under such Notes with respect to any Loan
and payments of principal or interest on any such Note.
G. Voluntary Reductions of Commitments.
(i) Company shall have the right, at any time and from time to
time, to terminate in whole or permanently reduce in part, without premium or
penalty, the Commitments in an amount up to the amount by which the
Commitments exceed the then Total Utilization of Commitments at the time of
such proposed termination or reduction.
Company shall give not less than three Business Days' prior
written notice to Administrative Agent designating the date (which shall be a
Business Day) of such termination or reduction and the amount of any partial
reduction. Promptly after receipt of a notice of such termination or partial
reduction, Administrative Agent shall notify each Lender of the proposed
termination or reduction. Such termination or partial reduction of the
Commitments shall be effective on the date specified in Company's notice and
shall reduce the Commitment of each Lender proportionately to its Pro Rata
Share. Any such partial reduction of the Commitments shall be in an aggregate
minimum amount of $5,000,000, and integral multiples of $1,000,000 in excess
of that amount.
(ii) In the event Company is entitled to replace a non-consenting
Lender pursuant to subsection 9.6B, Company shall have the right, upon five
Business Days' written notice to Administrative Agent (which notice
Administrative Agent shall promptly transmit to each of the Lenders), to
terminate the entire Commitment of such non-consenting Lender so long as (1)
all Loans, together with accrued and unpaid interest, fees and other amounts
owing to such Lender are repaid, including without limitation amounts owing to
such non-consenting Lender pursuant to subsection 2.6E, pursuant to subsection
2.4A(i)(b) concurrently with the effectiveness of such termination (at which
time Schedule 2.1A shall be deemed modified to reflect such changed amounts),
and (2) the consents required by subsection 9.6B in connection with the
prepayment pursuant to subsection 2.4A(i)(b) shall have been obtained, and at
such time, such Lender shall no longer constitute a "Lender" for purposes of
this Agreement, except with respect to indemnifications under this Agreement
(including, without limitation, subsections 2.6E, 2.6H, 2.7, 2.8, 2.9G, 2.9H,
4.13, 9.2 and 9.3), which shall survive as to such Lender.
H. Mandatory Reductions of Commitments. The Commitments shall
be permanently reduced (i) on the date any prepayment of Loans is made or is
required to be made pursuant to subsections 2.4A(ii)(a)-(c) and
2.4A(ii)(f)-(g), by an amount equal to the amount of such prepayment, and (ii)
on each date specified in the definition of "Scheduled Commitments Reduction
Amount" by an amount equal to the correlative amount specified in that
definition. Such reductions shall reduce the Commitment of each Lender
proportionately to its Pro Rata Share.
2.5 Use of Proceeds
A. Loans. Approximately $85,800,000 of the proceeds of the
Loans made on the Closing Date shall, together with the net proceeds of
Company's issuance of the New Senior Subordinated Notes, be applied by Company
(i) to repay in full approximately $114,600,000 in aggregate principal amount
of term loans outstanding under the Existing Term Loan Agreement, (ii) to
repay in full approximately $90,200,000 in aggregate principal amount of
revolving loans outstanding under the Existing Revolving Credit Agreement, and
(iii) to pay approximately $6,000,000 in fees and expenses associated with the
Refinancings and related transactions. Additionally, on the Closing Date
approximately $129,000,000 in aggregate face amount of letters of credit
outstanding under the Existing L/C Agreement shall become Existing Letters of
Credit under this Agreement, shall be replaced or supported by letters of
credit issued under this Agreement or shall otherwise be permitted hereunder.
Proceeds of the Loans may also be used by Company and its Subsidiaries for
working capital and general corporate purposes, and to make Permitted
Acquisitions.
B. Benefits to Subsidiaries. In consideration for the
guaranties set forth in the Loan Guaranties, Company agrees to make the
benefit of the extensions of credit hereunder available to its Subsidiaries.
C. Letters of Credit. The Letters of Credit shall be issued
for the purposes set forth in the definitions of Commercial Letter of Credit
and Standby Letter of Credit and such other general corporate purposes as may,
in any instance, be approved by Administrative Agent and Requisite Lenders.
D. Margin Regulations. No portion of the proceeds of any
borrowing or Letter of Credit under this Agreement shall be used by Company in
any manner that might cause such borrowing or the application of such proceeds
to violate Regulation G, Regulation U, Regulation T, or Regulation X of the
Board of Governors of the Federal Reserve System or any other regulation of
the Board or to violate the Exchange Act, in each case as in effect on the
date or dates of such borrowing and such use of proceeds.
2.6 Special Provisions Governing Eurodollar Rate Loans
Notwithstanding any other provision of this Agreement, the
following provisions shall govern with respect to Eurodollar Rate Loans as to
the matters covered:
A. Determination of Interest Rate. As soon as practicable
after 10:00 A.M. (New York time) on each Interest Rate Determination Date,
Administrative Agent shall determine (which determination shall, absent
manifest error, be final, conclusive and binding upon all parties) the
interest rate that shall apply to the Eurodollar Rate Loans for which an
interest rate is then being determined for the applicable Interest Period and
shall promptly give notice thereof (in writing or by telephone confirmed in
writing) to Company and each Lender.
B. Substituted Rate of Borrowing. If on any Interest Rate
Determination Date any Lender (including any Agent) shall have determined
(which determination shall be final and conclusive and binding upon all
parties but, with respect to the following clauses (i) and (ii)(b), shall be
made only after consultation with Company and Agents) that:
(i) by reason of any changes arising after the date of
this Agreement affecting the Eurodollar market or affecting the position
of that Lender in such market, adequate and fair means do not exist for
ascertaining the applicable interest rate by reference to the Eurodollar
Rate with respect to the Eurodollar Rate Loans as to which an interest
rate determination is then being made; or
(ii) by reason of (a) any change after the date hereof in
any applicable law or governmental rule, regulation or order (or any
interpretation thereof and including the introduction of any new law or
governmental rule, regulation or order) or (b) other circumstances
affecting that Lender or the Eurodollar market or the position of that
Lender in such market (such as for example, but not limited to, official
reserve requirements required by Regulation D to the extent not given
effect in the Eurodollar Rate), the Adjusted Eurodollar Rate shall not
represent the effective pricing to that Lender for Dollar deposits of
comparable amounts for the relevant period;
then, and in any such event, that Lender shall be an Affected Lender and it
shall promptly (and in any event as soon as possible after being notified of a
borrowing, conversion or continuation) give notice (by telephone confirmed in
writing) to Company and Administrative Agent (which notice Administrative
Agent shall promptly transmit to each other Lender) of such determination.
Thereafter, Company shall pay to the Affected Lender, within five (5) Business
Days after written demand therefor, such additional amounts (in the form of an
increased rate of, or a different method of calculating, interest or otherwise
as the Affected Lender in its sole discretion shall reasonably determine) as
shall be required to cause the Affected Lender to receive interest at a rate
per annum equal to the effective pricing to the Affected Lender for Dollar
deposits to make or maintain its Eurodollar Rate Loans for the applicable
Interest Period plus the applicable Eurodollar Rate Margin. A certificate as
to additional amounts owed the Affected Lender, showing in reasonable detail
the basis for the calculation thereof, submitted in good faith to Company and
Administrative Agent by the Affected Lender shall, absent manifest error, be
final and conclusive and binding upon all of the parties hereto.
C. Required Termination and Prepayment. If on any date any
Lender shall have reasonably determined (which determination shall be final
and conclusive and binding upon all parties) that the making or continuation
of its Eurodollar Rate Loans has become unlawful by compliance by that Lender
in good faith with any law, governmental rule, regulation or order (whether or
not having the force of law and whether or not failure to comply therewith
would be unlawful), then, and in any such event, that Lender shall be an
Affected Lender and it shall promptly give notice (by telephone confirmed in
writing) to Company and Administrative Agent (which notice Administrative
Agent shall promptly transmit to each Lender) of that determination. Subject
to the prior withdrawal of a Notice of Borrowing or a Notice of Conversion/
Continuation or prepayment of the Eurodollar Rate Loans of the Affected Lender
as contemplated by the following subsection 2.6D, the obligation of the
Affected Lender to make or maintain its Eurodollar Rate Loans (the "Affected
Loans") during any such period shall be terminated at the earlier of the
termination of the Interest Period then in effect or when required by law and
the Affected Loans shall automatically convert into Base Rate Loans on the
date of such termination.
D. Options of Company. In lieu of paying an Affected Lender
such additional moneys as are required by subsection 2.6B or the automatic
conversion of an Affected Loan pursuant to subsection 2.6C, Company may
exercise any one of the following options:
(i) If the determination by an Affected Lender relates
only to Eurodollar Rate Loans then being requested by Company
pursuant to a Notice of Borrowing or a Notice of
Conversion/Continuation, Company may, by giving notice (by telephone
confirmed in writing) to Administrative Agent (who shall promptly
give similar notice to each Lender) no later than the date
immediately prior to the date on which such Eurodollar Rate Loans are
to be made, withdraw that Notice of Borrowing or Notice of
Conversion/Continuation and the Eurodollar Rate Loans then being
requested shall be made by Lenders as Base Rate Loans; or
(ii) Upon written notice to Administrative Agent and each
Lender, Company may terminate the obligations of Lenders to make or
maintain Loans as, and to convert Loans into, Eurodollar Rate Loans and
in such event, Company shall, prior to the time of automatic conversion
pursuant to subsection 2.6C or, if the provisions of subsection 2.6B are
applicable, at the end of the then current Interest Period, convert all
of the Eurodollar Rate Loans into Base Rate Loans in the manner
contemplated by subsection 2.2D but without satisfying the advance
notice requirements therein; or
(iii) Company may give notice (by telephone confirmed in
writing) to the Affected Lender and Administrative Agent (who shall
promptly give similar notice to each Lender) and require the Affected
Lender to make the Eurodollar Rate Loan then being requested as a
Base Rate Loan or to continue to maintain its outstanding Base Rate
Loan then the subject of a Notice of Conversion/Continuation as a
Base Rate Loan or to convert its Eurodollar Rate Loans then
outstanding that are so affected into Base Rate Loans at the end of
the then current Interest Period (or at the time of automatic
conversion pursuant to subsection 2.6C) in the manner contemplated by
subsection 2.2D but without satisfying the advance notice
requirements therein, that notice to pertain only to the Loans of the
Affected Lender and to have no effect on the obligations of the other
Lenders to make or maintain Eurodollar Rate Loans or to convert Base
Rate Loans into Eurodollar Rate Loans.
E. Compensation. Company shall compensate each Lender, within
five (5) Business Days after written request by that Lender (which request
shall set forth in reasonable detail the basis for requesting such amounts),
for all reasonable losses, expenses and liabilities (including, without
limitation, any interest paid by that Lender to lenders of funds borrowed by
it to make or carry its Eurodollar Rate Loans and any loss sustained by that
Lender in connection with the re-employment of such funds), that Lender may
sustain: (i) if for any reason (other than a default by that Lender) a
borrowing of, a continuation of or a conversion to any Eurodollar Rate Loan
does not occur on a date specified therefor in a Notice of Borrowing, a Notice
of Conversion/Continuation or a telephonic request for borrowing or conversion/
continuation or a successive Interest Period does not commence after notice
therefor is given pursuant to subsection 2.2D, (ii) if any prepayment of any
of its Eurodollar Rate Loans occurs on a date that is not the last day of an
Interest Period applicable to that Loan, (iii) if any prepayment of any of its
Eurodollar Rate Loans is not made on any date specified in a notice of
prepayment given by Company, or (iv) as a consequence of any other default by
Company to repay its Eurodollar Rate Loans when required by the terms of this
Agreement. A certificate as to the amount payable to a Lender pursuant to
this subsection 2.6E setting forth the amount thereof in reasonable detail,
submitted to Company and Administrative Agent by such Lender, shall, except
for manifest error, be final, conclusive and binding for all purposes.
F. Quotation of Eurodollar Rate. Anything herein to the
contrary notwithstanding, if on any Interest Rate Determination Date no
Eurodollar Rate is available by reason of the failure of all Reference Lenders
to provide offered quotations to Administrative Agent in accordance with the
definition of "Eurodollar Rate," Administrative Agent shall give Company and
each Lender prompt notice thereof and the Loans requested shall be made as Base
Rate Loans.
G. Booking of Eurodollar Rate Loans. Any Lender may make,
carry or transfer Eurodollar Rate Loans at, to, or for the account of, any of
its branch offices or the office of an Affiliate of that Lender.
H. Increased Costs. Except as provided in subsection 2.6B with
respect to certain determinations on Interest Rate Determination Dates, if,
after the date hereof by reason of (x) the introduction of or any change
(including, without limitation, any change by way of imposition or increase of
reserve requirements) in or in the interpretation of any law or regulation, or
(y) the introduction of or any change in or in the interpretation of, or any
new or different compliance is required under, any guideline or request from
any central bank or other governmental authority or quasi-governmental
authority exercising control over banks or financial institutions generally
(whether or not having the force of law):
(i) any Lender (or its applicable lending office) shall be
subject to any tax, duty, levy, cost or other charge (except for taxes
on the overall net income or alternative minimum taxable income of such
Lender or its applicable lending office imposed by the jurisdiction in
which such Lender's principal executive office or applicable lending
office is organized, located or is doing business) with respect to its
Eurodollar Rate Loans or its obligation to make Eurodollar Rate Loans,
or the recording, registration, notarization or other formalization of
the Eurodollar Rate Loans or the basis of taxation of payments to any
Lender of the principal of or interest or commitment fees or any amount
payable on its Eurodollar Rate Loans or its obligation to make Eurodollar
Rate Loans shall change; or
(ii) any reserve (including, without limitation, any
imposed by the Board of Governors of the Federal Reserve System),
special deposit or similar requirement against assets of, deposits with
or for the account of, or credit extended by, any Lender's applicable
lending office shall be imposed or deemed applicable or any other
condition affecting its Eurodollar Rate Loans or its obligation to make
Eurodollar Rate Loans shall be imposed on any Lender or its applicable
lending office or the interbank Eurodollar market,
and as a result thereof there shall be any increase in the cost to such Lender
of agreeing to make or making, funding or maintaining Eurodollar Rate Loans
(except to the extent already included in the determination of the applicable
Adjusted Eurodollar Rate), or there shall be a reduction in the amount
received or receivable by that Lender or its applicable lending office, then
Company shall from time to time, upon written notice from and demand by that
Lender (with a copy of such notice and demand to Administrative Agent), pay to
Administrative Agent for the account of that Lender, within five (5) Business
Days after the date specified in such notice and demand, additional amounts
sufficient to indemnify that Lender against such increased cost or reduced
amount. A certificate as to the amount of such increased cost or reduced amount
setting forth the calculation thereof in reasonable detail, submitted to
Company and Administrative Agent by that Lender, shall, except for manifest
error, be final, conclusive and binding for all purposes. Any payments to be
made by Company under subsections 2.6B or 2.6H are to be without duplication.
I. Assumptions Concerning Funding of Eurodollar Rate Loans.
Calculation of all amounts payable to a Lender under this subsection 2.6 shall
be made as though that Lender had actually funded its relevant Eurodollar Rate
Loan through the purchase of a Eurodollar deposit bearing interest at the
Eurodollar Rate in an amount equal to the amount of that Eurodollar Rate Loan
and having a maturity comparable to the relevant Interest Period and through
the transfer of such Eurodollar deposit from an offshore office of that Lender
to a domestic office of that Lender in the United States of America; provided,
however, that each Lender may fund each of its Eurodollar Rate Loans in any
manner it sees fit and the foregoing assumption shall be utilized only for the
calculation of amounts payable under this subsection 2.6.
J. Eurodollar Rate Loans After Default. Unless Requisite
Lenders shall otherwise agree, after the occurrence of and during the
continuance of a Potential Event of Default or Event of Default, Company may
not elect to have a Loan be made or maintained as, or converted to, a
Eurodollar Rate Loan after the expiration of any Interest Period then in effect
for that Loan.
K. Affected Lenders' Obligation to Mitigate.
(i) Each Lender agrees that, as promptly as practicable after it
becomes aware of the occurrence of an event or the existence of a condition
that would cause it to be an Affected Lender under subsection 2.6B or 2.6C or
that would entitle such Lender to receive payments under subsection 2.6H, it
will, to the extent not inconsistent with such Lender's internal policies, use
reasonable efforts to make, fund or maintain the affected Eurodollar Rate
Loans of such Lender through another lending office of such Lender if as a
result thereof the additional moneys which would otherwise be required to be
paid to such Lender pursuant to subsection 2.6B or 2.6H would be materially
reduced or the illegality or other adverse circumstances which would otherwise
require conversion of such Loans pursuant to subsection 2.6C would cease to
exist, and if, as determined by such Lender in its sole discretion, the
making, funding or maintaining of such Loans through such other lending office
would not otherwise materially adversely affect such Loans or such Lender.
Company hereby agrees to pay all reasonable expenses incurred by any Lender in
utilizing another lending office of such Lender pursuant to this subsection
2.6K.
(ii) If Company receives a notice pursuant to subsection 2.6H,
2.7 or 2.9G, so long as (i) no Potential Event of Default or Event of Default
shall have occurred and be continuing and Company has obtained a commitment
from another Lender or an Eligible Assignee to purchase at par such Lender's
Loans, Commitments and other Obligations and to assume all obligations of the
Lender to be replaced, (ii) at such time the Lender to be replaced is not an
Issuing Lender with respect to any Letters of Credit outstanding and (iii)
such Lender to be replaced is unwilling to withdraw the notice delivered to
Company, upon 30 days prior written notice to such Lender and Administrative
Agent, Company may require the Lender giving such notice to assign all of its
Loans, Commitments and other Obligations to such other Lender or Eligible
Assignee pursuant to the provisions of subsection 9.1B; provided that, prior
to or concurrently with such replacement (i) Company has paid to the Lender
giving such notice all amounts under subsections 2.6H, 2.7 and 2.9G through
such date of replacement, (ii) Company has paid to Agent the processing and
recordation fee required to be paid by subsection 9.1B(i) and (iii) all of the
requirements for such assignment contained in subsection 9.1B, including,
without limitation, the consent of Administrative Agent (if required) and the
receipt by Administrative Agent of an executed Assignment Agreement and other
supporting documents, have been fulfilled.
2.7 Capital Adequacy Adjustment
In the event that any Lender shall have determined that the
adoption or implementation after the date hereof of any law, treaty,
governmental (or quasi-governmental) rule, regulation, guideline or order
regarding capital adequacy or any change in any such then existing law,
treaty, governmental (or quasi-governmental) rule, regulation, guideline or
order or in the interpretation or application thereof, or compliance by any
Lender (or an Affiliate of such Lender which makes, carries or transfers
Eurodollar Rate Loans) with any request or directive regarding capital
adequacy (whether or not having the force of law and whether or not failure to
comply therewith would be unlawful) from any central bank or governmental
agency or body having jurisdiction, does or shall have the effect of
increasing the amount of capital required to be maintained by such Lender or
any Person directly or indirectly controlling such Lender and thereby reducing
the rate of return on such Lender's capital or the capital of such controlling
Person as a consequence of such Lender's obligations hereunder, then Company
shall from time to time, within five (5) Business Days after receipt of a
written request by such Lender (with a copy to Administrative Agent), pay to
such Lender or such controlling Person additional amounts sufficient to
compensate such Lender or such controlling Person for such reduction. A
certificate as to the amount of such reduction setting forth the calculation
thereof in reasonable detail, submitted to Company and Administrative Agent by
such Lender, shall, absent manifest error, be final, conclusive and binding
for all purposes. In determining such amount, a Lender may use any reasonable
averaging and attribution method. Notwithstanding the foregoing, nothing in
this subsection 2.7 is intended to provide and this subsection 2.7 shall not
provide to any Loan Party the right to inspect the records, files or books of
any Lender.
2.8 Taxes
A. Taxes. Any and all payments or reimbursements made under
this Agreement or under the Notes shall be made free and clear of and without
deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto
excluding (i) taxes imposed on the overall income (whether gross or net) or
capital of a Lender by the jurisdiction in which the Lender is organized,
resident or doing business, (ii) franchise taxes, and (iii) taxes, levies,
imposts, deductions, charges or withholdings which are imposed by laws,
treaties or regulations in effect as of the Closing Date; provided, however,
that any changes in laws, treaties or regulations or the interpretation
thereof applicable to financial institutions generally after the Closing Date
shall not be excluded pursuant to this clause (iii) (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and liabilities
being hereinafter referred to as "Taxes").
If Company shall be required by law to deduct any Taxes from or
with respect to any sum payable hereunder to any Lender, then the sum payable
shall be increased as may be necessary so that, after making all required
deductions, such Lender receives an amount equal to the sum it would have
received had no such deductions been made.
B. Foreign Lenders. Each Lender organized under the laws of a
jurisdiction outside the United States (referred to in this subsection 2.8B as
a "Foreign Lender") as to which payments to be made under this Agreement or
under the Notes are exempt from United States withholding tax under an
applicable statute or tax treaty shall provide to Company and Administrative
Agent (i) a properly completed and executed Internal Revenue Service Form 4224
or Form 1001 or other applicable form, certificate or document prescribed by
the Internal Revenue Service of the United States certifying as to such
Foreign Lender's entitlement to such exemption with respect to payments to be
made to such Foreign Lender under this Agreement and under the Notes (referred
to in this subsection 2.8B as a "Certificate of Exemption") or (ii) a letter
from any such Foreign Lender stating that it is not entitled to any such
exemption (referred to in this subsection 2.8B as "Letter of Non-Exemption").
Prior to becoming a Lender under this Agreement and within 15 days after a
reasonable written request of Company or Administrative Agent from time to
time thereafter, each Foreign Lender that desires to become or that becomes a
Lender under this Agreement shall provide a Certificate of Exemption or a
Letter of Non-Exemption to Company and Administrative Agent.
If a Foreign Lender is entitled to an exemption with respect to
payments to be made to such Foreign Lender under this Agreement and does not
provide a Certificate of Exemption to Company and Administrative Agent within
the time periods set forth in the preceding paragraph, Company shall withhold
taxes from payments to such Foreign Lender at the applicable statutory rates
and Company shall not be required to pay any additional amounts as a result of
such withholding as provided in subsection 2.8A; provided, however, that all
such withholding and associated limitations in payment under subsection 2.8A
shall cease upon delivery by such Foreign Lender of a Certificate of Exemption
to Company and Administrative Agent.
2.9 Letters of Credit
A. Letters of Credit. In addition to Company requesting that
Lenders make Loans pursuant to subsection 2.1, Company may request, in
accordance with the provisions of this subsection, on and after the date on
which all of the conditions set forth in subsection 3.1 are satisfied, (a) on
the Closing Date solely for purposes of issuing Letters of Credit to replace
or support certain of the Existing Letters of Credit of Company listed on
Schedule 2.9 annexed hereto and (b) from time to time during the period from
the Business Day immediately succeeding the Closing Date to but excluding the
Maturity Date that Administrative Agent or one or more Lenders issue Letters
of Credit for the account of Company; provided that, if no other Lender is
willing to provide any Letter of Credit, Administrative Agent shall, if each
of the conditions to issuance of such Letter of Credit in this Agreement is
met, issue such Letter of Credit; provided further, that
(i) Company shall not request that Administrative Agent or any
Lender issue (and neither Administrative Agent nor any Lender shall
issue) any Letter of Credit if, after giving effect to such issuance,
the Total Utilization of Commitments would exceed the Commitments, as
reduced from time to time pursuant to subsections 2.4G and 2.4H;
(ii) Company shall not request that Administrative Agent or any
Lender issue (and neither Administrative Agent nor any Lender shall
issue) any Letter of Credit if, after giving effect to such issuance,
the Letter of Credit Usage would exceed the lesser of (x) an amount
equal to the amount of the Commitments minus the amount of the
outstanding Loans or (y) $155,000,000;
(iii) in no event shall any Lender issue any Commercial Letter of
Credit having an expiration date which is (a) not acceptable to such
Issuing Lender in its reasonable discretion, or (b) more than one
hundred eighty (180) days after its date of issuance or (c) later than
30 days prior to the Maturity Date;
(iv) in no event shall Administrative Agent or any Lender issue
any Standby Letter of Credit having an expiration date later than the
earlier of (y) 30 days prior to the Maturity Date, or (z) the date which
is one year from the date of issuance of such Standby Letter of Credit;
provided that this clause (z) shall not prevent any Issuing Lender from
agreeing (subject to the preceding clause (y)) that a Standby Letter of
Credit will automatically be extended annually for a period not to
exceed one year unless such Issuing Lender elects not to extend for such
additional period; and
(v) in no event shall Administrative Agent or any Lender issue
any Letter of Credit denominated in any currency other than Dollars and
payable on a sight basis.
The issuance or extension of any Letter of Credit in accordance
with the provisions of this subsection shall require the satisfaction of each
condition set forth in subsection 3.3; provided, however, the obligation of
each Issuing Lender to issue or extend any Letter of Credit is subject to the
condition that (a) such Issuing Lender believed in good faith that all
conditions under subsections 2.9A and 3.3 to the issuance or extension of such
Letter of Credit were satisfied at the time such Letter of Credit was issued
or extended or (b) the satisfaction of any such condition not satisfied had
been waived by Requisite Lenders prior to or at the time such Letter of Credit
was issued or extended; provided further that Issuing Lender shall be entitled
to rely, and shall be fully protected in relying, upon any communication,
instrument or document believed by it to be genuine and correct and to have
been signed or sent by the proper person or persons, including, without
limitation, an Officers' Certificate from Company as to the satisfaction of
the conditions under subsection 3.3, in determining the satisfaction of any
conditions to the issuance or extension of any Letter of Credit then in effect.
Immediately upon the issuance of each Letter of Credit, each
Lender shall be deemed to, and hereby agrees to, have irrevocably purchased
from the Issuing Lender a participation in such Letter of Credit and drawings
thereunder in an amount equal to such Lender's Pro Rata Share of the maximum
amount which is or at any time may become available to be drawn thereunder.
Upon satisfaction of the conditions set forth in subsection 3.1, the Existing
Letters of Credit shall, effective as of the Closing Date, become Letters of
Credit under this Agreement to the same extent as if initially issued
hereunder (if not replaced or supported) and each Lender shall be deemed to
have irrevocably purchased from the Issuing Lender of such Existing Letters of
Credit a participation in such Letters of Credit and drawings thereunder in
an amount equal to such Lender's Pro Rata Share of the maximum amount which is
or at any time may become available to be drawn thereunder. All such Existing
Letters of Credit which become Letters of Credit under this Agreement shall be
fully secured by the Collateral commencing on the Closing Date to the same
extent as if initially issued hereunder on such date.
Each Letter of Credit supporting the payment of Indebtedness may
provide that the Issuing Lender may (but shall not be required to) pay the
beneficiary thereof upon the occurrence of an Event of Default and the
acceleration of the maturity of the Loans or, if payment is not then due to
the beneficiary, provide for the deposit of funds in an account to secure
payment to the beneficiary and that any funds so deposited shall be paid to
the beneficiary of such Letter of Credit if conditions to such payment are
satisfied or returned to the Issuing Lender for distribution to Lenders (or,
if all Obligations shall have been indefeasibly paid in full, to Company) if
no payment to the beneficiary has been made and the final date available for
drawings under the Letter of Credit has passed. Each payment or deposit of
funds by the Issuing Lender as provided in this paragraph shall be treated for
all purposes of this Agreement as a drawing duly honored by the Issuing Lender
under the related Letter of Credit.
B. Letter of Credit Request. Whenever Company desires to cause
Administrative Agent or any Lender to issue a Letter of Credit, it shall
deliver to Administrative Agent and that Lender a Letter of Credit Request
substantially in the form of Exhibit XIII annexed hereto no later than 1:00
P.M. (New York time) at least ten (10) Business Days in advance of the
proposed date of issuance or such shorter time as may be acceptable to the
Issuing Lender. The Letter of Credit Request shall specify (i) the proposed
Issuing Lender, (ii) the proposed date of issuance (which shall be a Business
Day), (iii) whether the Letter of Credit is to be a Standby Letter of Credit
or a Commercial Letter of Credit; (iv) the face amount of the Letter of
Credit, (v) the expiration date of the Letter of Credit, (vi) the name and
address of the beneficiary, (vii) such other documents or materials as such
Issuing Lender may reasonably request, and (viii) either the verbatim text of
the proposed Letter of Credit or the proposed terms and conditions thereof,
including a precise description of any documents to be presented by the
beneficiary which, if presented by the beneficiary in substantial compliance
with the terms and conditions of the applicable Letter of Credit on or prior
to the expiration date of the applicable Letter of Credit, would require the
Issuing Lender to make payment under the applicable Letter of Credit; provided
that the Issuing Lender, in its sole judgment, may require changes in any such
documents and certificates; provided further that the Issuing Lender shall not
be required to issue any Letter of Credit that on its terms requires payment
thereunder prior to the third Business Day following receipt by the Issuing
Lender of such documents and certificates. In determining whether to pay any
Letter of Credit, the Issuing Lender shall be responsible only to use
reasonable care to determine that the documents and certificates required to
be delivered under that Letter of Credit have been delivered and that they
substantially comply on their face with the requirements of that Letter of
Credit. In the case of Standby Letters of Credit, promptly upon the issuance
of a Letter of Credit, the Issuing Lender shall notify Administrative Agent
and each Lender of the issuance and the amount of each such Lender's
respective participation therein determined in accordance with subsection
2.9D. In the case of Commercial Letters of Credit, each Issuing Lender (other
than Administrative Agent) will send by facsimile transmission to
Administrative Agent, promptly on the first Business Day of each week, the
aggregate face amount of outstanding Commercial Letters of Credit issued by
such Issuing Lender for each day of the immediately preceding week. The
Administrative Agent shall deliver to each Lender upon each calendar month end
a report setting forth for such period the daily aggregate stated amount
available to be drawn under the Commercial Letters of Credit issued by all
Issuing Lenders during such period.
C. Payment of Amounts Drawn Under Letters of Credit. In the
event of any request for drawing under any Letter of Credit by the beneficiary
thereof, the Issuing Lender shall immediately notify Company and
Administrative Agent and Company shall reimburse the Issuing Lender on the day
on which such drawing is honored in an amount in same day funds equal to the
amount of such drawing; provided that, anything contained in this Agreement to
the contrary notwithstanding, (i) unless prior to 11:00 A.M. (New York time)
on the date of such drawing (a) Company shall have notified the Issuing Lender
and Administrative Agent that Company intends to reimburse the Issuing Lender
for the amount of such drawing with funds other than the proceeds of Loans or
(b) Company shall have delivered a Notice of Borrowing requesting Loans which
are Base Rate Loans in an amount equal to the amount of such drawing, then
Company shall be deemed to have given a Notice of Borrowing to Administrative
Agent requesting Lenders to make Loans which are Base Rate Loans on the date
on which such drawing is honored in an amount equal to the amount of such
drawing, and (ii) if so requested by Administrative Agent, Lenders shall, on
the date of such drawing, make Loans which are Base Rate Loans in the amount
of such drawing, the proceeds of which shall be applied directly by
Administrative Agent to reimburse the Issuing Lender for the amount of such
drawing; and provided further that, if for any reason proceeds of such Loans
are not received by the Issuing Lender on such date in an amount equal to the
amount of such drawing, Company shall reimburse the Issuing Lender, on the
Business Day immediately following the date of such drawing, in an amount in
same day funds equal to the excess of the amount of such drawing over the
amount of such Loans, if any, which are so received, plus accrued interest on
such amount at the rate set forth in subsection 2.9E(iii).
D. Payment by Lenders. If Company shall fail to reimburse the
Issuing Lender, for any reason, as provided in subsection 2.9C in an amount
equal to the amount of any drawing honored by the Issuing Lender under a
Letter of Credit issued by it, the Issuing Lender shall promptly notify each
Lender of the unreimbursed amount of such drawing and of such Lender's
respective participation therein based on such Lender's Pro Rata Share. Each
Lender shall make available to the Issuing Lender an amount equal to its
respective participation, in same day funds, at the office of the Issuing
Lender specified in such notice, not later than 1:00 P.M. (New York time) on
the Business Day after the date notified by the Issuing Lender. If any Lender
fails to make available to the Issuing Lender the amount of such Lender's
participation in such Letter of Credit as provided in this subsection 2.9D,
the Issuing Lender shall be entitled to recover such amount on demand from
such Lender together with interest at the customary rate set by the Issuing
Lender for the correction of errors among banks for one (1) Business Day and
thereafter at the Base Rate. Nothing in this subsection shall be deemed to
prejudice the right of any Lender to recover from the Issuing Lender any
amounts made available by such Lender to the Issuing Lender pursuant to this
subsection if it is determined in a final judgment by a court of competent
jurisdiction that the payment with respect to a Letter of Credit by the
Issuing Lender in respect of which payment was made by such Lender constituted
gross negligence or willful misconduct on the part of the Issuing Lender. The
Issuing Lender shall distribute to each other Lender which has paid all
amounts payable by it under this subsection with respect to any Letter of
Credit issued by the Issuing Lender such other Lender's Pro Rata Share of all
payments received by the Issuing Lender from Company or pursuant to the last
paragraph of subsection 2.9A in reimbursement of drawings honored by the
Issuing Lender under such Letter of Credit when such payments are received.
E. Compensation. Company agrees to pay the following amounts
with respect to each Letter of Credit issued on its behalf:
(i) an administrative fee equal to 0.1875% per annum of the
maximum amount available from time to time to be drawn under such Letter
of Credit payable in arrears on and to (but not including) each March
25, June 25, September 25 and December 25 of each year, commencing on
June 25, 1997 and on the Maturity Date or such earlier date upon which
the entire Commitment is terminated provided that the administrative fee
payable with respect to each Letter of Credit shall not be less than
$500 per annum;
(ii) with respect to each Standby Letter of Credit, a commission
equal to (x)(1) the Eurodollar Rate Margin then applicable with respect
to Eurodollar Rate Loans pursuant to subsection 2.2A of this Agreement
minus (2) the Commitment Fee Percentage multiplied by (y) the maximum
amount available from time to time to be drawn under such Standby Letter
of Credit, such commission to be calculated on the basis of a 360-day
year and the actual number of days elapsed, and with respect to each
Commercial Letter of Credit, a commission as negotiated by and between
the Company and the applicable Issuing Lender, in each case payable in
arrears on and to (but not including) each March 25, June 25, September
25 and December 25 of each year, commencing on June 25, 1997 and on the
Maturity Date or such earlier date upon which the entire Commitment is
terminated;
(iii) with respect to drawings made under any Letter of Credit,
interest, payable on demand, on the amount paid by the Issuing Lender in
respect of each such drawing from the date of such drawing through the
date such amount is reimbursed by Company (including any such
reimbursement out of the proceeds of Loans pursuant to subsection 2.9C)
at a rate which is equal to the interest rate otherwise payable
pursuant to subsection 2.2A of this Agreement for Base Rate Loans;
provided that if such amount is not paid on demand, the Obligations
shall bear interest thereafter in accordance with the provisions of
subsection 2.2E; and
(iv) with respect to the amendment or transfer of each Letter of
Credit and each drawing made thereunder, documentary and processing
charges in accordance with the Issuing Lender's standard schedule for
such charges in effect at the time of such issuance, amendment, transfer
or drawing, as the case may be, or as otherwise agreed to by the Issuing
Lender.
The Company shall pay promptly to Administrative Agent all amounts
described in clauses (ii) or (iii) of this subsection 2.9E with respect to a
Letter of Credit, and Administrative Agent shall distribute to each Lender its
Pro Rata Share. Company also shall pay promptly to the applicable Issuing
Lender for its own account all amounts described pursuant to clauses (i) and
(iv) of this subsection 2.9E with respect to a Letter of Credit. With respect
to Existing Letters of Credit, the fees described in clauses (i) and (ii)
above shall accrue from and including the Closing Date.
F. Obligations Absolute. The obligation of Company to
reimburse the Issuing Lender for drawings made under the Letters of Credit
issued by it and to repay any Loans made by Lenders pursuant to subsection
2.9C and the obligations by Lenders under subsection 2.9D shall be
unconditional and irrevocable and shall be paid strictly in accordance with
the terms of this Agreement under all circumstances including, without
limitation, any of the following circumstances:
(i) any lack of validity or enforceability of any Letter of
Credit;
(ii) the existence of any claim, set-off, defense or other right
which Company may have at any time against a beneficiary or any
transferee of any Letter of Credit (or any persons or entities for whom
any such transferee may be acting), any Agent, any Lender or any other
Person, whether in connection with this Agreement, the transactions
contemplated herein or any unrelated transaction (including any
underlying transaction between Company and the beneficiary for which the
Letter of Credit was procured);
(iii) any draft, demand, certificate or any other document
presented under any Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect;
(iv) payment by the Issuing Lender under any Letter of Credit
against presentation of a demand, draft or certificate or other document
which does not comply with the terms of such Letter of Credit; provided
that such payment does not constitute gross negligence or willful
misconduct of such Issuing Lender;
(v) any adverse change in the condition (financial or otherwise)
of Company or any of its Subsidiaries;
(vi) any breach of this Agreement or any other Loan Document by
Company or any of its Subsidiaries, any Agent or any Lender (other than
the Issuing Lender);
(vii) any other circumstance or happening whatsoever, which is
similar to any of the foregoing; or
(viii) the fact that an Event of Default or a Potential Event of
Default shall have occurred and be continuing.
G. Additional Payments. If by reason of (i) any change in any
applicable law, regulation, rule, decree or regulatory requirement or any
change in the interpretation or application by any judicial or regulatory
authority of any law, regulation, rule, decree or regulatory requirement
applicable to financial institutions generally or (ii) compliance by the
Issuing Lender or any Lender with any direction, request or requirement
(whether or not having the force of law) of any governmental or monetary
authority including, without limitation, Regulation D:
(a) the Issuing Lender or any Lender shall be subject to any
tax, levy, charge or withholding of any nature or to any variation
thereof or to any penalty with respect to the maintenance or fulfillment
of its obligations under this subsection 2.9, whether directly or by
such being imposed on or suffered by the Issuing Lender or any Lender;
(b) any reserve, special deposit, premium, FDIC assessment,
capital adequacy or similar requirement is or shall be applicable,
imposed or modified in respect of any Letters of Credit issued by the
Issuing Lender or participations therein purchased by any Lender; or
(c) there shall be imposed on the Issuing Lender or any Lender
any other condition regarding this subsection 2.9, any Letter of Credit
or any participation therein;
and the result of the foregoing is to directly or indirectly increase the cost
to the Issuing Lender or any Lender of issuing, making or maintaining any
Letter of Credit or of purchasing or maintaining any participation therein, or
to reduce the amount receivable in respect thereof by the Issuing Lender or
any Lender, then and in any such case the Issuing Lender or such Lender may,
at any time within a reasonable period after the additional cost is incurred
or the amount received is reduced, notify Company and Administrative Agent and
provide appropriate proof of such cost, and Company shall pay within five (5)
Business Days of the date of such notice such amounts as the Issuing Lender or
such Lender may specify to be necessary to compensate the Issuing Lender or
such Lender for such additional cost or reduced receipt, together with
interest on such amount from the date demanded until payment in full thereof
at a rate equal at all times to the interest otherwise payable pursuant to
subsection 2.2A of this Agreement for Base Rate Loans. The determination by
the Issuing Lender or any Lender, as the case may be, of any amount due
pursuant to this subsection 2.9G as set forth in a certificate setting forth
the calculation thereof in reasonable detail, shall, in the absence of
manifest error, be final and conclusive and binding on all of the parties
hereto.
H. Indemnification; Nature of Issuing Lender's Duties. In
addition to amounts payable as elsewhere provided in this subsection, Company
hereby agrees to protect, indemnify, pay and save harmless the Issuing Lender
from and against any and all claims, demands, liabilities, damages, losses,
costs, charges and expenses (including reasonable attorneys' fees and
allocated costs of internal counsel) which the Issuing Lender may incur or be
subject to as a consequence, direct or indirect, of (i) the issuance of any
Letter of Credit, including, without limitation, the payment of draws
thereunder, other than as a result of gross negligence or willful misconduct
of the Issuing Lender as determined by a court of competent jurisdiction or
(ii) the failure of the Issuing Lender to honor a drawing under any 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"). Each Lender,
proportionately to its Pro Rata Share, severally agrees to indemnify Issuing
Lender to the extent Issuing Lender shall not have been reimbursed by Company
or its Subsidiaries, for and against any of the foregoing claims, demands,
liabilities, damages, losses, costs, charges and expenses to which Issuing
Lender is entitled to reimbursement from Company or its Subsidiaries.
As between Company and the Issuing Lender, Company assumes all
risks of the acts and omissions of, or misuse of the Letters of Credit issued
by the Issuing Lender by, the respective beneficiaries of such Letters of
Credit. In furtherance and not in limitation of the foregoing, the Issuing
Lender shall not be responsible (absent gross negligence or willful misconduct
(as determined by a court of competent jurisdiction)): (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
such Letters 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 such Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove
to be invalid or ineffective for any reason; (iii) for failure of the
beneficiary of any such Letter of Credit to comply fully with conditions
required in order to draw upon such 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 any such Letter of Credit or of the proceeds
thereof; (vii) for the misapplication by the beneficiary of any such Letter of
Credit of the proceeds of any drawing under such Letter of Credit; (viii) for
any consequences arising from causes beyond the control of the Issuing Lender,
including, without limitation, any Government Acts and (ix) any special,
consequential, indirect or incidental damages, including, but not limited to,
lost profits arising out of or in connection with the issuance of any Letter
of Credit or any action taken or not taken by the Issuing Lender in connection
with any Letter of Credit, or any document or property referred to in or
related to any Letter of Credit. None of the above shall affect, impair, or
prevent the vesting of any of the Issuing Lender's rights or powers hereunder.
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 the Letters of Credit issued by it or the
related certificates, if taken or omitted in good faith and absent gross
negligence or willful misconduct of the Issuing Lender (as determined by a
court of competent jurisdiction), shall not put the Issuing Lender under any
resulting liability to Company.
Notwithstanding anything to the contrary contained in this
subsection, Company shall have no obligation to indemnify the Issuing Lender
in respect of any liability incurred by the Issuing Lender arising solely out
of the gross negligence or willful misconduct of the Issuing Lender as
determined by a court of competent jurisdiction, or out of the wrongful
dishonor by the Issuing Lender of a proper demand for payment made under the
Letters of Credit.
For purposes of this subsection 2.9H, the term "Issuing Lender"
means the Issuing Lender and any Lender purchasing a participation in any
Letter of Credit pursuant to subsection 2.9D.
I. Computation of Interest and Fees. Interest and fees payable
pursuant to this subsection 2.9 shall be computed on the basis of a 360-day
year and the actual number of days elapsed in the period during which they
accrue.
2.10 Replacement of Lender
In the event that Company receives a notice pursuant to subsection
2.6H, 2.7 or 2.9G or in the event of a refusal by a Lender to consent to a
proposed change, waiver, discharge or termination with respect to this
Agreement which has been approved by the Requisite Lenders as provided in
subsection 9.6, Company shall have the right, if no Potential Event of Default
or Event of Default then exists, to replace such Lender (a "Replaced Lender")
with one or more Eligible Assignees (collectively, the "Replacement Lender")
acceptable to Administrative Agent, provided that (i) at the time of any
replacement pursuant to this subsection 2.10, the Replacement Lender shall
enter into one or more Assignment Agreements pursuant to subsection 9.1B (and
with all fees payable pursuant to such subsection 9.1B to be paid by the
Replacement Lender) pursuant to which the Replacement Lender shall acquire all
of the outstanding Loans and Commitments of, and in each case participations
in Letters of Credit by, the Replaced Lender and, in connection therewith,
shall pay to (x) the Replaced Lender in respect thereof an amount equal to the
sum of (A) an amount equal to the principal of, and all accrued interest on,
all outstanding Loans of the Replaced Lender, (B) an amount equal to all
unpaid drawings with respect to Letters of Credit that have been funded by
(and not reimbursed to) such Replaced Lender, together with all then unpaid
interest with respect thereto at such time and (C) an amount equal to all
accrued, but theretofore unpaid, fees owing to the Replaced Lender with
respect thereto, and (y) the appropriate Issuing Lender an amount equal to
such Replaced Lender's Pro Rata Share of any unpaid drawings with respect to
Letters of Credit (which at such time remains an unpaid drawing) issued by it
to the extent such amount was not theretofore funded by such Replaced Lender,
and (ii) all obligations (including without limitation all such amounts, if
any, owing under subsection 2.6E) of Company owing to the Replaced Lender
(other than those specifically described in clause (i) above in respect of
which the assignment purchase price has been, or is concurrently being, paid),
shall be paid in full to such Replaced Lender concurrently with such
replacement. Upon the execution of the respective Assignment Agreements,
recordation of such assignment in the Register by Agent pursuant to subsection
2.1D, the payment of amounts referred to in clauses (i) and (ii) above and
delivery to the Replacement Lender of the appropriate Note or Notes executed
by Company, the Replacement Lender shall become a Lender hereunder and the
Replaced Lender shall cease to constitute a Lender hereunder except with
respect to indemnification provisions under this Agreement which by the terms
of this Agreement survive the termination of this Agreement (including, without
limitation, subsections 2.6E, 2.6H, 2.7, 2.8, 2.9G, 2.9H, 4.13, 9.2 and 9.3),
which indemnification provisions shall survive as to such Replaced Lender.
Notwithstanding anything to the contrary contained above, no Issuing Lender
may be replaced hereunder at any time while it has Letters of Credit
outstanding hereunder unless arrangements satisfactory to such Issuing Lender
(including the furnishing of a Standby Letter of Credit in form and substance,
and issued by an issuer, satisfactory to such Issuing Lender or the furnishing
of cash collateral in amounts and pursuant to arrangements satisfactory to
such Issuing Lender) have been made with respect to such outstanding Letters
of Credit.
SECTION 3.
Conditions to Loans and Letters of Credit
The obligations of Lenders to make Loans hereunder and to issue
Letters of Credit are subject to the satisfaction of all of the following
conditions.
3.1 Conditions to the Initial Loans
The obligations of Lenders to make the initial Loans are, in
addition to the conditions precedent specified in subsection 3.2, subject to
prior or concurrent satisfaction of the following conditions:
A. On or before the Closing Date, Company shall deliver to
Lenders (or to Administrative Agent for Lenders with sufficient originally
executed copies for each Lender and, except for Notes, Administrative Agent's
counsel) each, unless otherwise noted, dated the Closing Date:
1. Certified copies of its Certificate of Incorporation,
together with a good standing certificate from the Secretary of State of
the State of Delaware, each to be dated a recent date prior to the
Closing Date;
2. Copies of its Bylaws, certified as of the Closing Date
by its corporate secretary or an assistant secretary;
3. Resolutions of its Board of Directors approving and
authorizing the execution, delivery and performance of this Agreement
and the other Loan Documents to which it is to be a party and approving
and authorizing the execution, delivery and payment of the Notes and the
consummation of the Refinancings and related transactions, in form and
substance satisfactory to Agents and their counsel, each certified as of
the Closing Date by its corporate secretary or an assistant secretary as
being in full force and effect without modification or amendment;
4. Signature and incumbency certificates of its officers
executing this Agreement, the other Loan Documents to which it is to be
a party and the Notes;
5. Executed copies of this Agreement, the Company Pledge
Agreement and the Notes, executed in accordance with subsection 2.1E,
substantially in the form of Exhibit III annexed hereto, drawn to the
order of each Lender and with appropriate insertions; and
6. Such other documents as any Agent or any Lender may
reasonably request.
B. On or before the Closing Date, each of the Xxxx-Xxxxxx
Guarantor Subsidiaries that are Material Subsidiaries and each of the other
Xxxx-Xxxxxx Subsidiaries that are Material Subsidiaries shall execute and
deliver to Lenders (or to Administrative Agent for Lenders with sufficient
originally executed copies for each Lender and Administrative Agent's
counsel), each, unless otherwise noted, dated the Closing Date:
1. Certified copies of its Certificate of Incorporation,
together with a good standing certificate from the Secretary of State of
the jurisdiction of its incorporation, each to be dated a recent date
prior to the Closing Date;
2. Copies of its Bylaws, certified as of the Closing Date
by its corporate secretary or an assistant secretary;
3. Resolutions of its Board of Directors approving and
authorizing the execution, delivery and performance of the Loan
Documents to which it is to be a party, in form and substance
satisfactory to the Agents and their counsel, each certified as of the
Closing Date by its corporate secretary or an assistant secretary as
being in full force and effect without modification or amendment;
4. Signature and incumbency certificates of its officers
executing the Loan Documents to which it is a party;
5. With respect to each Xxxx-Xxxxxx Guarantor Subsidiary,
executed copies of the Xxxx-Xxxxxx Subsidiary Guaranty and the
Xxxx-Xxxxxx Subsidiary Pledge Agreement; and
6. Such other documents as any Agent or any Lender may
reasonably request.
C. On or before the Closing Date, each Loan Party shall have
obtained all such consents, waivers, amendments, approvals and the like as may
be required from any Person to permit the Refinancings and the other related
transactions, including the consummation of the transactions contemplated by
this Agreement, all of the foregoing to be in form and substance satisfactory
to the Agents.
D. On or prior to the Closing Date, the Company shall have
issued $125,000,000 aggregate principal amount of New Senior Subordinated
Notes. The New Senior Subordinated Notes shall be unsecured and shall have no
scheduled principal payments payable prior to the tenth anniversary of the
Closing Date. In addition, all other terms of the New Senior Subordinated
Notes shall be satisfactory to the Agents and Lenders. The New Senior
Subordinated Notes will not rank senior to the Company's 9 1/8% Subordinated
Notes.
E. Concurrently with the Closing Date, the Company shall have
terminated all commitments, and shall have repaid in full all outstanding
Indebtedness, and all security therefor will be released from the liens and
pledges created, under the Existing Term Loan Agreement, the Existing
Revolving Credit Agreement and the Existing L/C Agreement and all such
agreements and documents will terminate in accordance with their terms. As of
the Closing Date, the Company shall have no indebtedness other than
Indebtedness under this Agreement, $150,000,000 aggregate principal amount of
9 1/8% Subordinated Notes, $125,000,000 aggregate principal amount of New
Senior Subordinated Notes, approximately $8,200,000 of other long-term debt
obligations and $120,000,000 of Receivables Facilities.
F. Company shall have furnished to Administrative Agent copies
of all Existing Letters of Credit and all amendments to such Existing Letters
of Credit. Company shall have paid to the lenders with respect to such
Existing Letters of Credit all fees and other amounts owing with respect
thereto to but excluding the Closing Date. With respect to letters of credit
issued under the Existing L/C Agreement which do not become Existing Letters of
Credit under this Agreement, Company shall have replaced or supported all such
letters of credit with Letters of Credit issued under this Agreement or such
letter of credit shall be otherwise permitted hereunder.
G. The Agents shall have received satisfactory evidence that
the fees and expenses to be incurred in connection with the Refinancings and
the related transactions will not exceed $6,000,000 in the aggregate.
H. The Lenders shall have received (i) audited financial
statements of the Company and its Subsidiaries for the fiscal years ended
December 31, 1994, 1995 and 1996, and (ii) a pro forma balance sheet of the
Company and its Subsidiaries as of December 31, 1996 after giving effect to
the Refinancings, the related transactions and the transactions contemplated
hereby, all of the foregoing to be in form and substance satisfactory to the
Agents and Lenders.
I. Company shall have delivered to the Agents a Financial
Condition Certificate dated the Closing Date, substantially in the form
annexed hereto as Exhibit XI, with appropriate attachments demonstrating that,
after giving effect to the consummation of the Refinancings and related
transactions, Company will have a positive net worth on a pro forma basis,
will not be insolvent by the Indebtedness incurred in connection herewith,
will be able to pay its debts as they mature and will not have unreasonably
small capital to conduct its business.
J. On or before the Closing Date, Agents shall have received
reports and other information in form, scope and substance satisfactory to
Administrative Agent concerning the environmental liabilities of Company.
K. On or before the Closing Date, Agents shall have received
information concerning the litigation and potential liabilities of Company
with respect to Centaur Insurance Company in form, scope and substance
satisfactory to the Agents.
L. On or before the Closing Date, Company shall have paid to
Administrative Agent for distribution to Lenders, the Agents and their
respective affiliates, the fees referred to in subsection 2.3 and payable to
such parties on the Closing Date. Administrative Agent and the other Agents
shall have paid to each Lender such fees as Administrative Agent and the other
Agents shall have agreed to pay such Lender on the Closing Date.
M. On or before the Closing Date, all corporate and other
proceedings taken or to be taken in connection with the transactions
contemplated hereby and all documents incidental thereto not previously found
acceptable by the Agents, acting on behalf of Lenders, and their counsel shall
be reasonably satisfactory in form and substance to the Agents and such
counsel, and the Agents and Administrative Agent's counsel shall have received
all such counterpart originals or certified copies of such documents as the
Agents or any Lender may reasonably request.
N. Lenders and their respective counsel shall have received
originally executed copies of one or more written opinions of Xxxxx, Polk &
Xxxxxxxx, special counsel for Company, in form and substance satisfactory to
the Agents and their counsel, dated as of the Closing Date, and setting forth
substantially the matters in the opinions designated in Exhibit V annexed
hereto and as to such other matters as any Agent or any Lender may reasonably
request, together with evidence satisfactory to Agents that Company has
requested such counsel to deliver such opinions to Lenders.
O. Lenders and their respective counsel shall have received
originally executed copies of one or more written opinions of the general
counsel for Company and the Xxxx-Xxxxxx Subsidiaries or such other counsel as
is satisfactory to the Agents, in form and substance satisfactory to the
Agents and their counsel, dated as of the Closing Date, and setting forth
substantially the matters in the opinions designated in Exhibit VI annexed
hereto and as to such other matters as any Agent may reasonably request.
P. Lenders shall have received an originally executed copy of
one or more written opinions of O'Melveny & Xxxxx LLP, counsel to
Administrative Agent, dated as of the Closing Date, substantially in the form
of Exhibit VII annexed hereto.
Q. On or before the making of the Loans, Company shall have
delivered to Administrative Agent an Officers' Certificate, dated the Closing
Date and addressed to the Agents and Lenders, in form and substance reasonably
satisfactory to the Agents, to the effect that (i) the representations and
warranties in Section 4 hereof pertaining to such Person are true, correct and
complete in all material respects on and as of the Closing Date to the same
extent as though made on and as of that date, (ii) since December 31, 1996
through the Closing Date there has been no material adverse change in the
business, operations, properties, assets, condition (financial or otherwise)
or prospects of Company or of Company and its Subsidiaries taken as a whole
(it being understood that the Armored Joint Venture shall not constitute such
a material adverse change) and (iii) Company has performed all of its
respective obligations required to be performed at or prior to such time in
order to consummate the Refinancings and related transactions.
R. Each Loan Party shall have performed in all material
respects all agreements which this Agreement provides shall be performed on or
before the Closing Date except as otherwise disclosed to and agreed to in
writing by the Agents.
S. Company shall have taken or caused to be taken such actions
in such a manner so that Collateral Agent, on behalf of Lenders, has a valid
and perfected, first priority security interest in the entire Collateral
(except to the extent any such security interest cannot be granted under
applicable laws). Such actions shall include, without limitation: (1) the
delivery pursuant to the applicable Pledge Agreement by Company and the
Xxxx-Xxxxxx Guarantor Subsidiaries of certificates (which certificates shall
be registered in the name of Collateral Agent or properly endorsed in blank
for transfer or accompanied by irrevocable undated stock powers duly endorsed
in blank, all in form and substance satisfactory to Collateral Agent)
representing all of the capital stock of the Xxxx-Xxxxxx Pledged Subsidiaries
and of the Armored Joint Venture required to be pledged pursuant to the Pledge
Agreements and (2) the delivery pursuant to the applicable Pledge Agreement of
the evidences of indebtedness (which evidences of indebtedness shall be
properly endorsed in blank or to Collateral Agent, in form and substance
satisfactory to Collateral Agent) representing the intercompany debt
obligations.
T. Company shall have delivered such other documents as the
Agents may reasonably request.
Each Lender hereby agrees that by its execution and delivery of
its signature page hereto and by the funding of its Loans to be made on the
Closing Date, such Lender approves of and consents to each of the matters set
forth in this subsection 3.1 which must be approved by, or which must be
satisfactory to, all or Requisite Lenders; provided
that in the case of any agreement or document which must be approved by, or
which must be satisfactory to, all or Requisite Lenders, Administrative Agent
or Company shall have delivered a copy of such agreement or document to such
Lender on or prior to the Closing Date in substantially the form in which such
agreement or document is executed or delivered on or prior to the Closing Date.
3.2 Conditions to All Loans
The obligations of Lenders to make all Loans (which shall not
include conversions or continuations of existing Loans pursuant to subsection
2.2D) on each Funding Date are subject to the following further conditions
precedent:
A. Administrative Agent shall have received, in accordance with
the provisions of subsection 2.1B, as the case may be, before that Funding
Date, an originally executed Notice of Borrowing signed by the chief executive
officer, the chief financial officer, the treasurer or any assistant treasurer
of Company or by any executive officer of Company designated by any of the
above-described officers on behalf of Company in writing delivered to
Administrative Agent.
B. As of that Funding Date:
1. The representations and warranties contained herein
and in the other Loan Documents shall be true, correct and complete in
all material respects on and as of that Funding Date to the same extent
as though made on and as of that date;
2. No event shall have occurred and be continuing or
would result from the consummation of the borrowing contemplated by such
Notice of Borrowing that would constitute (a) an Event of Default or (b)
a Potential Event of Default;
3. Each Loan Party shall have performed in all material
respects all agreements and satisfied all conditions which this
Agreement and other Loan Documents provide shall be performed by it on
or before that Funding Date;
4. No order, judgment or decree of any court, arbitrator
or governmental authority shall purport to enjoin or restrain any Lender
from making that Loan;
5. The making of the Loans requested on such Funding Date
shall not violate any law, including Regulation G, Regulation T,
Regulation U or Regulation X of the Board of Governors of the Federal
Reserve Board; and
6. There shall not be pending or, to the knowledge of
Company, threatened, any action, suit, proceeding, governmental
investigation or arbitration against or affecting any Loan Party or any
of its Subsidiaries or any property of any Loan Party or any of its
Subsidiaries, that has not been disclosed by Company in writing pursuant
to subsection 4.6 or 5.1(ix) prior to the making of the last preceding
Loans (or, in the case of the initial Loans, prior to the execution of
this Agreement) and there shall have occurred no development not so
disclosed in any such action, suit, proceeding, governmental
investigation or arbitration so disclosed, that, in either event, in the
opinion of Requisite Lenders, would reasonably be expected to have a
Material Adverse Effect. No injunction or other restraining order shall
have been issued and no hearing to cause an injunction or other
restraining order to be issued shall be pending or noticed with respect
to any action, suit or proceeding seeking to enjoin or otherwise prevent
the consummation of, or to recover any damages or obtain relief as a
result of, the Refinancings and related transactions, this Agreement or
the making of Loans hereunder.
3.3 Conditions to Letters of Credit
The obligation of any Issuing Lender to issue or extend any Letter
of Credit hereunder is subject to prior or concurrent satisfaction of all of
the following conditions:
A. On or before the date of issuance of such Letter of Credit,
the initial Loans shall have been made pursuant to subsection 3.1.
B. On or before the date of issuance of such Letter of Credit,
the Issuing Lender with respect thereto shall have received, in accordance
with the provisions of subsection 2.9B, a notice requesting the issuance of
such Letter of Credit and all other information specified in subsection 2.9B,
and such other documents as such Issuing Lender may reasonably require in
connection with the issuance of such Letter of Credit.
C. On the date of issuance or extension of such Letter of
Credit, all conditions precedent described in subsection 3.2B shall be
satisfied to the same extent as though the issuance or extension of such
Letter of Credit were the making of a Loan and the date of issuance or
extension of such Letter of Credit were a Funding Date.
SECTION 4.
Company's Representations and Warranties
In order to induce Lenders to enter into this Agreement, Company
represents and warrants to each Lender that the following statements are true,
correct and complete:
4.1 Organization, Powers, Good Standing, Business and Subsidiaries
A. Organization and Powers. Each of the Loan Parties is a
corporation duly organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation (which jurisdiction is set forth on
Schedule 1.1 annexed hereto). Each of the Loan Parties has all requisite
corporate power and authority to own and operate its properties, to carry on
its business as now conducted and proposed to be conducted, to enter into each
Loan Document to which it is a party and to carry out the transactions
contemplated hereby and thereby, and, in the case of Company, to issue the
Notes to be issued by it.
B. Good Standing. Each of the Loan Parties is in good standing
wherever necessary to carry on its present business and operations, except in
jurisdictions in which the failure to be in good standing has not had and will
not have a Material Adverse Effect.
C. Conduct of Business. On the date hereof, Loan Parties will
be engaged only in the businesses described in Schedule 4.1C annexed hereto.
D. Subsidiaries. All of the Subsidiaries of each of the Loan
Parties (other than those Subsidiaries which are inactive or have no operating
assets) as of the date of this Agreement and as of the Closing Date are
identified on Schedule 1.1 annexed hereto. The capital stock of each Person
identified in Schedule 1.1 is duly authorized, validly issued, fully paid and
nonassessable. As of December 31, 1996, the Material Subsidiaries own not
less than 54.5% of the value of all tangible assets of Loan Parties taken as a
whole as reflected on the balance sheet of the Company as of such date. The
capital stock of each Person identified on Schedule 1.1 is not Margin Stock.
Each of the Subsidiaries identified on Schedule 1.1 is duly organized, validly
existing and in good standing under the laws of its respective jurisdiction of
incorporation and has full corporate power and authority to own its assets and
properties and to operate its business as presently owned and conducted,
except where failure to be in good standing or a lack of corporate power and
authority has not had and will not have a Material Adverse Effect. Schedule
1.1 correctly sets forth the ownership interest of each of the Loan Parties in
each of its Subsidiaries identified therein and identifies (i) all Material
Subsidiaries, (ii) all Xxxx-Xxxxxx Guarantor Subsidiaries and (iii) all
Xxxx-Xxxxxx Pledged Subsidiaries.
4.2 Authorization of Borrowing, etc.
A. Authorization of Borrowing. The execution, delivery and
performance of, and the consummation of the transactions contemplated by, the
Loan Documents and the issuance, delivery and payment of the Notes have been
duly authorized by all necessary corporate action by each Loan Party.
B. No Conflict. The execution, delivery and performance by
each Loan Party of, and the consummation of the transactions contemplated by,
each Loan Document to which it is respectively a party and the issuance,
delivery and performance of the Notes do not and will not (i) violate any
provision of law applicable to any Loan Party, the Certificate of Incorporation
or Bylaws of any Loan Party, or any order, judgment or decree of any court or
other agency of government binding on any Loan Party, (ii) conflict with,
result in a breach of or constitute (with due notice or lapse of time or both)
a default under any Contractual Obligation of any Loan Party, (iii) result in
or require the creation or imposition of any Lien upon any of the properties
or assets of any Loan Party (other than Liens in favor of the Collateral
Agent), or (iv) require any approval of stockholders or any approval or
consent of any Person under any Contractual Obligation of any Loan Party,
except for (a) such approvals, or consents which will be obtained on or before
the Closing Date and disclosed in writing to Lenders, and (b) with respect to
Loan Parties, such violations, conflicts, breaches, Liens and defaults which
would not have, and such approvals the absence of which would not have, a
Material Adverse Effect.
C. Governmental Consents. The execution, delivery and
performance by each Loan Party of, and the consummation of the transactions
contemplated by, the Loan Documents to which it is a party and application of
the proceeds of the Loans and the issuance, delivery and performance of the
Notes, do not and will not require any registration with, consent or approval
of, or notice to, or other action to, with or by, any Federal, state or other
governmental authority or regulatory body except for any filings required in
connection with the perfection of security interests granted pursuant to Loan
Documents and other filings, authorizations and consents and approvals either
referred to in subsection 4.9 hereof or the absence of which would not have a
Material Adverse Effect.
D. Binding Obligation. This Agreement is, and the other Loan
Documents and the Notes, when executed and delivered will be, the legally
valid and binding obligations of the applicable Loan Parties, enforceable
against the applicable Loan Parties in accordance with their respective terms,
except as may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws relating to or limiting creditors' rights generally and
subject to the availability of equitable remedies.
4.3 Financial Condition
Company has heretofore delivered to Lenders, at Lenders' request,
the audited financial statements of Company on a consolidated basis, as of
December 31, 1996 and the related audited statements of income, shareholders'
equity and cash flow for the fiscal period then ended.
Such financial statements were prepared in conformity with GAAP
and fairly present the consolidated financial position of Company and its
Subsidiaries as at the date thereof and the consolidated results of operations
and statement of cash flow of Company and its Subsidiaries for each of the
periods covered thereby. Except as disclosed on Schedule 6.4, neither Company
nor any of its Consolidated Subsidiaries, taken as a whole, has any material
Contingent Obligation, contingent liability or liability for taxes, long-term
lease or unusual forward or long-term commitment, which is not reflected in
the foregoing financial statements, or the notes thereto.
4.4 No Material Adverse Change; No Stock Payments
Since December 31, 1996, there has been no change in the business,
operations, properties, assets, prospects or condition (financial or
otherwise) of Company and its Consolidated Subsidiaries which has been, either
in any case or in the aggregate, materially adverse to Company and its
Consolidated Subsidiaries, taken as a whole, other than changes contemplated
by or disclosed in this Agreement. Neither Company nor any of its Subsidiaries
has directly or indirectly declared, ordered, paid or made or set apart any
sum or property for any Restricted Junior Payment or agreed so to do except as
permitted by subsection 6.5 or, prior to the Closing Date, except as permitted
by the Existing Revolving Credit Agreement, the Existing L/C Agreement or the
Existing Term Loan Agreement.
4.5 Title to Properties; Liens
Each Loan Party and each Subsidiary thereof has good, sufficient
and legal title, subject to Permitted Encumbrances, to all their respective
material properties and assets reflected in the most recent consolidated
balance sheet referred to in subsection 4.3 or in the most recent financial
statements delivered pursuant to subsection 5.1 of this Agreement and to all
their material properties and assets acquired since the date of such
consolidated balance sheet or financial statements, except for assets disposed
of in the ordinary course of business since the date of such consolidated
balance sheet or financial statements. Except as permitted by this Agreement,
all such properties and assets are free and clear of Liens.
4.6 Litigation; Adverse Facts
Except as set forth on Schedule A annexed hereto, there is no
action, suit, proceeding, governmental investigation or arbitration (whether
or not purportedly on behalf of any Loan Party or any respective Subsidiary
thereof) at law or in equity or before or by any Federal, state, municipal or
other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, pending or, to the knowledge of Company,
threatened against or affecting any Loan Party or any of their respective
Subsidiaries or any property of any Loan Party or any Subsidiary thereof that
would reasonably be expected to result in a Material Adverse Effect. As of
the Closing Date, no Loan Party has received any notice of termination of any
material contract, lease or other agreement or suffered any material damage,
destruction or loss (whether or not covered by insurance) or had any employee
strike, work-stoppage, slow-down or lock-out or any substantial, nonfrivolous
threat directed to it of any imminent strike, work-stoppage, slow-down or
lock-out, any of which remain pending, that could reasonably be expected to
result in any Material Adverse Effect.
4.7 Payment of Taxes
Except to the extent permitted by subsection 5.3, all material tax
returns and reports of each Loan Party and each Subsidiary of each Loan Party
required to be filed by any of them have been timely filed, and all material
taxes, assessments, fees and other governmental charges upon such Persons and
upon their respective properties, assets, income and franchises which are due
and payable have been paid when due and payable. Company knows of no proposed
tax assessment against any such Person that would be material to the condition
(financial or otherwise) of Company and its Subsidiaries, taken as a whole,
which is not being actively contested by such Person to the extent affected
thereby, in good faith and by appropriate proceedings, provided that such
reserves or other appropriate provisions, if any, as shall be required in
conformity with GAAP shall have been made or provided therefor.
4.8 Materially Adverse Agreements; Performance of Agreements
A. No Loan Party is a party to or is subject to any material
agreement or instrument materially and adversely affecting the financial
condition of Company and its Subsidiaries, taken as a whole.
B. None of the Loan Parties and none of the respective
Subsidiaries of the Loan Parties is in default in the performance, observance
or fulfillment of any of the obligations, covenants or conditions contained in
any Contractual Obligation of any such Person, and no condition exists that,
with the giving of notice or the lapse of time or both, would constitute such
a default, except where the consequences, direct or indirect, of such default
or defaults, if any, would not have a Material Adverse Effect.
4.9 Governmental Regulation
Except for state laws applicable to certain motor carrier
operations of Company's Subsidiaries, no Loan Party is subject to regulation
under the Public Utility Holding Company Act of 1935, the Federal Power Act or
the Investment Company Act of 1940 or to any Federal or state statute or
regulation limiting its ability to incur Indebtedness for money borrowed. The
Interstate Commerce Act does not restrict the ability of any Loan Party to
incur or guarantee any Indebtedness.
4.10 Securities Activities
None of the Loan Parties and none of the Subsidiaries of the Loan
Parties is engaged principally, or as one of its important activities, in the
business of extending credit for the purpose of purchasing or carrying any
Margin Stock.
4.11 Employee Benefit Plans
A. Except as set forth in Schedule A, Item 1 of Section 4.11
annexed hereto, each Loan Party is in material compliance with all applicable
provisions and requirements of Title I, II and IV of ERISA and the Internal
Revenue Code and the regulations and published interpretations thereunder with
respect to each Employee Benefit Plan, and has performed all its obligations
under each Employee Benefit Plan in all material respects.
B. No ERISA Event (determined without regard to any materiality
standard in that definition) has occurred or is reasonably expected to occur
which could reasonably be expected to result in liability to a Loan Party or
any of its ERISA Affiliates in excess of $2,500,000.
C. Except to the extent required under Section 4980B of the
Internal Revenue Code or except as described on Schedule A annexed hereto, no
Employee Benefit Plan provides health or welfare benefits (through the
purchase of insurance or otherwise) for any retired or former employee of a
Loan Party or any of its Subsidiaries.
D. As of the most recent valuation date for all Pension Plans,
the excess of the aggregated accumulated benefit obligations, as defined in
Statement of Financial Accounting Standards No. 87 (the "ABO"), over the
aggregate total fair market value for all such Pension Plans (excluding for
purposes of such computation any Pension Plans with respect to which the fair
market value of the assets exceeds the ABO), does not exceed $40,000,000.
4.12 Patents, Trademarks, etc.
Each Loan Party owns, or is licensed to use, all patents,
trademarks, trade names, copyrights, technology, know-how and processes used
in or necessary for the conduct of its business as currently conducted that
are material to the condition (financial or other), business, or operations of
Company and its Subsidiaries, taken as a whole ("Intellectual Property").
Except as disclosed on Schedule A, no claim has been asserted by any Person
with respect to the use of any such Intellectual Property, or challenging or
questioning the validity or effectiveness of any such Intellectual Property
and Company does not know of any valid basis for any such claim. Except as
disclosed on Schedule A, the use of such Intellectual Property by Loan Parties
does not infringe on the rights of any Person, subject to such claims and
infringements as do not, in the aggregate, give rise to any liability on the
part of Loan Parties that is material to Company and its Subsidiaries, taken
as a whole. The rights of Loan Parties to sell, franchise or license under
such trade names then being used may be transferred in connection with any
sale of assets or stock of the related business by Loan Parties.
4.13 Certain Fees
Company hereby indemnifies Lenders against and agrees that it will
hold Lenders harmless from any claim, demand or liability for broker's or
finder's fees alleged to have been incurred in connection with the
Refinancings or any of the other transactions contemplated thereby and any
expenses, including reasonable legal fees, arising in connection with any such
claim, demand or liability. No other similar fees or commissions will be
payable by Company for any other services rendered to Company or any of its
Subsidiaries ancillary to the transactions contemplated hereby.
4.14 Environmental Matters
A. Except as disclosed on Schedule A annexed hereto:
(i) the operations of Loan Parties comply in all material
respects with all Environmental Laws;
(ii) Loan Parties have obtained all material environmental,
health and safety permits, licenses and approvals necessary for their
respective operations, and all such permits, licenses and approvals are
in good standing and Loan Parties are in material compliance with all
terms and conditions of such permits, licenses and approvals;
(iii) No Loan Parties have received (A) any written notice
or claim to the effect that any of them is or may be liable in any
material respect to any Person as a result of the Release or threatened
Release of any Hazardous Materials or (B) any letter or request for
information under Section 104 of the Comprehensive Environmental
Response, Compensation, and Liability Act (42 U.S.C. Section 9604) or
comparable state laws, and to the best of Company's knowledge, none of
the operations of any Loan Party is the subject of any federal or state
investigation evaluating whether any remedial action is needed to
respond to a Release or threatened Release of any Hazardous Material at
any Facility or at any other location, in each case, regarding any
matter which could be reasonably expected to result in a Material
Adverse Effect;
(iv) none of the operations of any Loan Party is the
subject of any pending judicial or administrative proceeding alleging
the violation of or liability under any Environmental Laws which if
adversely determined could reasonably be expected to have a Material
Adverse Effect;
(v) No Loan Party nor any of its present Facilities or
operations, or its past Facilities or operations, is subject to any
outstanding written order or agreement with any governmental authority
or private party respecting (A) any Environmental Laws or (B) any
Environmental Claims which could reasonably be expected to have a
Material Adverse Effect;
(vi) No Loan Party has any Contingent Obligation in
connection with any Release of any Hazardous Materials by any Loan Party
which could reasonably be expected to have a Material Adverse Effect;
(vii) No Loan Party's operations involve the generation,
transportation, treatment or disposal of hazardous waste, as defined
under 40 C.F.R. Parts 260-270 or any state equivalent and no Loan Party
nor, to the best of Company's knowledge, any predecessor in title to any
Loan Party or any third party at any time occupying any Facility has at
any time used, generated, disposed of, stored, transported to or from,
released or threatened the release of any Hazardous Materials, in any
form, quantity or concentration on, from, under or affecting such
Facility in a manner that could reasonably expect to result in material
liability of or material claim against any Loan Party;
(viii) No event or condition has occurred with respect to
underground storage tanks or surface impoundments on or at the
Facilities violating any Environmental Laws or relating to any Release
of any Hazardous Materials at such storage tanks or surface impoundments
which, individually, or in the aggregate, has had or could reasonably be
expected to have a Material Adverse Effect; and
(ix) no Lien in favor of any governmental authority for (A)
any liability under Environmental Laws, or (B) damages arising from or
costs incurred by such governmental authority in response to a Release
has been filed or attached to the Facilities.
B. No Material Adverse Effect. No Hazardous Materials exist
on, under or about any Facility in a manner that could reasonably be expected
to give rise to an Environmental Claim having a Material Adverse Effect and no
Loan Party has filed any notice or report of a Release of any Hazardous
Materials that could reasonably be expected to give rise to an Environmental
Claim having a Material Adverse Effect. The matters disclosed on Schedule A,
individually or in the aggregate, could not reasonably be expected to give
rise to an Environmental Claim having a Material Adverse Effect.
4.15 Disclosure.
No representation or warranty of any Loan Party contained in this
Agreement, or any other document, certificate or written statement furnished
to Lenders by or on behalf of any such Person for use in connection with the
transactions contemplated by this Agreement contains any untrue statement of a
material fact or omits to state a material fact (known to any such Person in
the case of any document not furnished by it) necessary in order to make the
statements contained herein or therein not misleading in light of the
circumstances in which the same were made. The projections and pro forma
financial information contained in such materials are based upon good faith
estimates and assumptions believed by such Persons to be reasonable at the
time made, it being recognized by Lenders that such projections as to future
events are not to be viewed as facts and that actual results during the period
or periods covered by any such projections may differ from the projected
results. There is no fact known to any such Person (other than matters of a
general economic nature) that materially and adversely affects the business,
operations, property, assets, prospects or condition (financial or otherwise)
of any such Person and its respective Subsidiaries, taken as a whole, that has
not been disclosed herein or in such other documents, certificates and
statements furnished to Lenders for use in connection with the transactions
contemplated hereby.
SECTION 5.
Company's Affirmative Covenants
Company covenants and agrees that, so long as any of the
Commitments hereunder shall be in effect and until payment in full of all of
the Loans and Notes and all other amounts owing hereunder and expiration of
all Letters of Credit, unless Requisite Lenders shall otherwise give prior
written consent, Company shall perform all covenants in this Section 5.
5.1 Financial Statements and Other Reports
Company will maintain, and cause each of its Subsidiaries to
maintain, a system of accounting established and administered in accordance
with sound business practices to permit preparation of financial statements in
conformity with GAAP. Company will deliver to Lenders:
(i) as soon as practicable and in any event within 45 days
(in the case of the last month of each fiscal quarter) or 30 days (in
the case of all other months) after the end of each month ending after
the Closing Date in each of Company's fiscal years, the monthly
financial reporting package distributed internally to the officers of
Company (the "G-1 Report"), which shall include (a) the consolidated
balance sheets of Company as at the end of such month and the related
consolidated statements of income of Company for such month and for the
period from the beginning of the then current fiscal year to the end of
such month and the related consolidated statements of cash flow of
Company for the period from the beginning of the then current fiscal
year to the end of such month, (b) a schedule of the outstanding
Indebtedness for borrowed money of Company describing each such debt
issue or loan outstanding, and the principal amount in respect of each
such debt issue or loan, and (c) a brief summary describing the
operations of Company and its Subsidiaries and a schedule containing
summaries of revenues and operating income, in each case for such month
and for the period from the beginning of the then current fiscal year to
the end of such month by Division, setting forth in each case in
comparative form the corresponding figures for the corresponding periods
of the previous fiscal year and the corresponding figures from the
consolidated plan and financial forecast for the current fiscal year
delivered pursuant to subsection 5.1(xii), all in reasonable detail and
certified by the chief financial officer, chief accounting officer or
treasurer of Company that they fairly present the financial condition
of Company and its Subsidiaries as at the dates indicated and the
results of their operations and changes in their cash flow for the
periods indicated, subject to changes resulting from audit and normal
year-end adjustment;
(ii) as soon as practicable and in any event within 45 days
after the end of the first three fiscal quarters (a) a G-1 Report for
the fiscal period then ended and (b) the quarterly report of Company
filed with the Securities and Exchange Commission on Form 10-Q or the
financial statements of Company which would be required to be filed on
Form 10-Q if such Form 10-Q is not filed;
(iii) as soon as practicable and in any event within 90 days
after the end of each fiscal year of Company (a) a G-1 Report for the
fiscal period then ended, (b) the Annual Report on Form 10-K of Company
filed with the Securities and Exchange Commission or the audited
financial statements of Company which would be required to be filed on
Form 10-K if such Form 10-K is not filed, (c) in the case of such
consolidated financial statements, accompanied by a report thereon of
independent certified public accountants of recognized national standing
selected by Company, which report shall be unqualified as to going
concern and scope of audit and shall state that such consolidated
financial statements present fairly the financial position of Company
and its Subsidiaries as at the dates indicated and the results of their
operations and their cash flow for the periods indicated in conformity
with GAAP and that the examination by such accountants in connection
with such consolidated financial statements has been made in accordance
with generally accepted auditing standards, and (d) certified by the
chief financial officer, treasurer or chief accounting officer of
Company that such statements fairly present the financial condition of
Company and its Subsidiaries as at such date and the results of their
operations for the periods covered thereby;
(iv) together with each delivery of financial statements of
Company and its Subsidiaries pursuant to subdivisions (ii) and (iii)
above, (a) an Officers' Certificate of Company stating that the signers
have reviewed the terms of this Agreement and the Notes and have made,
or caused to be made under their supervision, a review in reasonable
detail of the transactions and condition of Company and its Subsidiaries
during the accounting period covered by such financial statements and
that such review has not disclosed the existence during or at the end of
such accounting period, and that the signers do not have knowledge of
the existence as at the date of the Officers' Certificate, of any
condition or event that constitutes an Event of Default or Potential
Event of Default, or, if any such condition or event existed or exists,
specifying the nature and period of existence thereof and what action
Company has taken, is taking and proposes to take with respect thereto;
(b) a Compliance Certificate demonstrating in reasonable detail
compliance during and at the end of the applicable accounting periods
with the restrictions contained in subsections 6.1, 6.2, 6.3, 6.4, 6.5,
6.6 and 6.7; and (c) an Officers' Certificate listing Asset Sales, the
Net Cash Proceeds of which have not yet been utilized to make
prepayments on the Loans pursuant to subsection 2.4A(ii)(a), and the
aggregate amount of such Net Cash Proceeds;
(v) together with each delivery of consolidated financial
statements of Company and its Subsidiaries pursuant to subdivision (iii)
above, a written statement by the independent public accountants giving
the report thereon (a) stating that their audit examination has included
a review of the terms of this Agreement and the Notes as they relate to
accounting matters, (b) stating whether, in connection with their audit
examination, any condition or event that constitutes an Event of Default
or Potential Event of Default has come to their attention, and if such a
condition or event has come to their attention, specifying the nature
and period of existence thereof; provided that such accountants shall
not be liable by reason of any failure to obtain knowledge of any such
Event of Default or Potential Event of Default with respect to
accounting matters that would not be disclosed in the course of their
audit examination, and (c) stating that based on their audit examination
nothing has come to their attention that causes them to believe that the
information contained in either or both the certificates delivered
therewith pursuant to subdivision (iv) above is not correct or that the
matters set forth in the Compliance Certificate delivered therewith
pursuant to clause (b) of such subdivision (iv) above for the applicable
fiscal year are not stated in accordance with the terms of this
Agreement;
(vi) promptly upon receipt thereof, a summary of
significant comments submitted to Company by independent public
accountants in connection with each annual, interim or special audit of
the financial statements of Company made by such accountants, including,
without limitation, the comment letter submitted by such accountants to
management in connection with their annual audit;
(vii) promptly upon their becoming available, copies of (a)
all financial statements, reports, notices and proxy statements sent or
made available generally by Company to its security holders or by any
Subsidiary of Company to its security holders other than Company or
another Subsidiary, (b) all regular and periodic reports and all
registration statements (other than on Form S-8 or a similar form) and
prospectuses, if any, filed by Company or any of its Subsidiaries with
any securities exchange or with the Securities and Exchange Commission
or any governmental or private regulatory authority and (c) all press
releases and other statements made available generally by Company or any
of its Subsidiaries to the public concerning material developments in the
business of Company or any of its Subsidiaries;
(viii) promptly upon any officer of Company obtaining
knowledge (a) of any condition or event that constitutes an Event of
Default or Potential Event of Default, or becoming aware that any Lender
or Administrative Agent has given any notice or taken any other action
with respect to a claimed Event of Default or Potential Event of Default
under this Agreement, (b) that any Person has given any notice to
Company or any Subsidiary of Company or taken any other action with
respect to a claimed default or event or condition of the type referred
to in subsection 7.2, (c) of any condition or event that would be
required to be disclosed or is disclosed in a current report filed by
Company with the Securities and Exchange Commission on Form 8-K (Items
1, 2, 4 and 5 of such Form as in effect on the date hereof) if Company
were required to file such reports under the Exchange Act, or (d) of a
material adverse change in the business, operations, properties, assets,
prospects or condition (financial or otherwise) of Company and its
Subsidiaries, taken as a whole, an Officers' Certificate specifying the
nature and period of existence of such condition or event, or specifying
the notice given or action taken by such holder or Person and the nature
of such claimed default, Event of Default, Potential Event of Default,
event or condition, and what action Company has taken, is taking and
proposes to take with respect thereto;
(ix) promptly upon any officer of Company obtaining
knowledge of (a) the institution of, or non-frivolous threat of, any
action, suit, proceeding, governmental investigation or arbitration
against or affecting Company or any of its Subsidiaries or any property
of Company or any of its Subsidiaries not previously disclosed by
Company to Lenders, or (b) any material development in any such action,
suit, proceeding, governmental investigation or arbitration, that, in
either case
(y) if there exists a reasonable likelihood that
such action, suit, proceeding, governmental investigation or
arbitration would be adversely determined, might have a Material
Adverse Effect; or
(z) seeks to enjoin or otherwise prevent the
consummation of, or to recover any damages or obtain relief as a
result of, the Refinancings and related transactions;
Company shall promptly give notice thereof to Lenders and provide such
other information as may be reasonably available to it to enable Lenders
and their counsel to evaluate such matters;
(x) promptly upon becoming aware of the occurrence of or
forthcoming occurrence of any ERISA Event, a written notice specifying
the nature thereof, what action the applicable Loan Party or any of its
ERISA Affiliates has taken, is taking or proposes to take with respect
thereto, and, when known, any action taken or threatened by the Internal
Revenue Service, the Department of Labor or the PBGC with respect
thereto;
(xi) with reasonable promptness, copies of (a) upon request
of Requisite Lenders, each Schedule B (Actuarial Information) to the
annual report (Form 5500 Series) filed by a Loan Party or any of its
ERISA Affiliates with the Internal Revenue Service with respect to each
Pension Plan (in which any employees of Company or any of its
Subsidiaries have ever participated as employees of Company or one of its
Subsidiaries) for which a Schedule B is required to be filed; (b) all
notices received by Company or any of its ERISA Affiliates from a
Multiemployer Plan sponsor concerning an ERISA Event; and (c) copies of
such other documents or governmental reports or filings relating to any
Employee Benefit Plan as any Agent or any Lender shall reasonably
request;
(xii) as soon as practicable and in any event within 30 days
after the Board of Directors of Company has given its approval, the
annual budget and financial forecast for each succeeding fiscal year of
Company and its Subsidiaries and setting forth forecasted sales,
operating profit, cash flows, capital expenditures and depreciation on
a Division by Division basis;
(xiii) as soon as practicable and in any event by the last
day of each fiscal year of Company, a report in form and substance
reasonably satisfactory to Agents and Requisite Lenders outlining all
material insurance coverage maintained as of the date of such report by
Company and its Subsidiaries and all material insurance coverage planned
to be maintained by such Persons in the subsequent fiscal year;
(xiv) together with each delivery of financial statements of
Company and its Subsidiaries pursuant to subsection (iii) above, a
written notice setting forth with respect to each Person that became a
Subsidiary of Company (a) the date on which such Person became a
Subsidiary of Company and (b) all of the data required to be set forth
in Schedule 1.1 annexed hereto with respect to all Subsidiaries of
Company (it being understood that such written notice shall be deemed to
supplement Schedule 1.1 annexed hereto for all purposes of this
Agreement);
(xv) at such time as Company sends a notice to Defense
Investigative Service pursuant to paragraph 2 of the Defense
Investigative Service Letter, Company will concurrently notify its then
relationship manager at Administrative Agent, via telephone, of the
transmission of such notice to Defense Investigative Service and will
also concurrently fax a copy of Company's notice to its then
relationship manager at Administrative Agent; and
(xvi) with reasonable promptness, such other information and
data with respect to Company or any of its Subsidiaries as from time to
time may be reasonably requested by any Lender.
5.2 Corporate Existence, etc.
Company will, and will cause each of its Subsidiaries to, at all
times preserve and keep in full force and effect its corporate existence and
rights and franchises material to its business; provided, however, that the
corporate existence of any such Subsidiary may be terminated if such
termination is not materially disadvantageous to any Lender.
5.3 Payment of Taxes and Claims; Tax Consolidation
A. Company will, and will cause each of its Subsidiaries to, pay
all taxes, assessments and other governmental charges imposed upon it or any
of its properties or assets or in respect of any of its franchises, business,
income or property before any material penalty accrues thereon, and all claims
(including, without limitation, claims for labor, services, materials and
supplies) for sums that have become due and payable and that by law have or may
become a material Lien upon any of its properties or assets, prior to the time
when any material penalty or fine shall be incurred with respect thereto;
provided that no such charge or claim need be paid if being contested in good
faith by appropriate proceedings promptly instituted and diligently conducted
and if such reserve or other appropriate provision, if any, as shall be
required in conformity with GAAP shall have been made therefor.
B. Company will not, nor will it permit any of its Subsidiaries
to, file or consent to the filing of any consolidated income tax return with
any Person (other than Company or any of its Subsidiaries).
5.4 Maintenance of Properties; Insurance
Company will maintain or cause to be maintained in good repair,
working order and condition all material properties used or useful in the
business of Company and its Subsidiaries and from time to time will make or
cause to be made all appropriate repairs, renewals and replacements thereof.
Company will maintain or cause to be maintained, with financially sound and
reputable insurers, insurance with respect to its properties and business and
the properties and business of its Subsidiaries against loss or damage of the
kinds customarily insured against by corporations of established reputation
engaged in the same or similar businesses and similarly situated, of such
types and in such amounts as are customarily carried under similar
circumstances by such other corporations ("Industry Standards") and may self
insure to the extent, but only to the extent, consistent with Industry
Standards.
5.5 Inspection; Lender Meeting; Confidentiality
A. Company shall permit any authorized representatives designated
by any Lender to visit and inspect any of the properties of Company or any of
its Subsidiaries, including its and their financial and accounting records,
and to make copies and take extracts therefrom, and to discuss its and their
affairs, finances and accounts with its and their officers and independent
public accountants, all upon reasonable notice and at such reasonable times
during normal business hours and as often as may be reasonably requested.
Without in any way limiting the foregoing, Company will participate in a
meeting of Agents and Lenders if requested by Agents to be held at Company's
corporate offices at such time as may be agreed to by Company and Requisite
Lenders.
B. Each Agent and each Lender acknowledges that Company is a
public company subject to the Exchange Act and that in the course of complying
with this Agreement, such Agent and Lender may obtain material, non-public
information, and each Agent and each Lender hereby agrees to keep any
non-public information delivered or made available to such Agent or such
Lender pursuant to the Loan Documents, which Company or its authorized
representative has identified as non-public, confidential information,
confidential from any Person other than Persons, including attorneys,
consultants or other professional advisors, employed by or retained by such
Agent or such Lender who are or are expected to become engaged in evaluating,
approving, structuring or administering the Loans or Affiliates of such Agent
or such Lender which have agreed to keep such information confidential
pursuant to this subsection 5.5B; provided, that nothing herein shall prevent
any Lender from disclosing such information to any bona fide assignee,
transferee or participant in connection with the contemplated assignment or
transfer of any Loans or participation therein (whether or not such
assignment, transfer or participation actually occurs), or as required or
requested by a governmental agency or representative thereof, or pursuant to
legal process or otherwise required by law, or as required in connection with
the exercise of any remedy under the Loan Documents; provided, however, that
this subsection shall no longer apply to information which has become public
other than through a breach by any Agent or any Lender of this subsection or
information that has been received by a Lender without restrictions as to
disclosure or use from a Person who, to such Lender's knowledge or reasonable
belief, was not prohibited from disclosing such information by any duty of
confidentiality.
5.6 Equal Security for Obligations; No Further Negative Pledges
A. If Company or any of its Subsidiaries shall create or assume
any Lien upon any of its property or assets, whether now owned or hereafter
acquired, other than Liens excepted by the provisions of subsection 6.2, it
shall make or cause to be made effective provision whereby the Obligations
will be secured by such Lien equally and ratably with any and all other
Indebtedness thereby secured as long as any such Indebtedness shall be secured;
provided that notwithstanding the foregoing, this covenant shall not be
construed as a consent by Requisite Lenders to any creation or assumption of
any such Lien not permitted by the provisions of subsection 6.2.
B. Except with respect to specific property encumbered to
secure payment of particular Indebtedness or to be sold pursuant to an
executed agreement with respect to an Asset Sale, or as may be restricted by
the 9 1/8% Subordinated Note Indenture, the New Senior Subordinated Note
Indenture or the Receivables Facilities, neither Company nor any of its
Subsidiaries shall enter into any agreement prohibiting the creation or
assumption of any Lien upon its properties or assets, whether now owned or
hereafter acquired.
5.7 Compliance with Laws, etc.
Company and its Subsidiaries shall exercise all due diligence in
order to comply with the requirements of all applicable laws, rules,
regulations and orders of any governmental authority, noncompliance with which
would have a Material Adverse Effect.
5.8 Environmental Disclosure and Inspection
(i) Company shall comply, and shall cause each of its
Subsidiaries and their Facilities to comply, and shall use its reasonable
efforts to cause (a) their respective employees, agents, contractors and
subcontractors, (b) all tenants under any lease or occupancy agreement
affecting any portion of the Facilities and (c) all other Persons on or
occupying such property to comply, with all Environmental Laws.
(ii) Company shall promptly advise Administrative Agent in
writing and in reasonable detail of (a) any Release of any Hazardous Material
required to be reported to any federal, state or local governmental or
regulatory agency under all applicable Environmental Laws, (b) any remedial
action taken by Company or, to the extent Company or any of its Subsidiaries
has any such knowledge, any other Person in response to (1) any Hazardous
Material on, under or about any Facility, the existence of which could
reasonably be expected to result in a Material Adverse Effect or (2) any
Environmental Claim that could reasonably be expected to result in a Material
Adverse Effect, and (c) any request for information from any governmental
agency that indicates such agency is investigating whether Company or its
Subsidiaries may be potentially responsible for a Release of Hazardous
Materials.
(iii) Company shall, at its own expense, provide copies to
Administrative Agent of such documents or information to which Company or any
of its Subsidiaries has access as Administrative Agent or Requisite Lenders
may reasonably request in relation to any matters disclosed pursuant to this
subsection 5.8.
5.9 Hazardous Materials; Remedial Action
A. Company shall, and shall cause its Subsidiaries to, (i)
store, use, dispose of and transport any Hazardous Materials in material
compliance with all applicable Environmental Laws and (ii) promptly take any
and all necessary remedial action in response to the Release of any Hazardous
Materials on, under or about any Facility. In the event Company or any of its
Subsidiaries undertakes any remedial action with respect to any Hazardous
Material on, under or about any Facility, Company or such Subsidiary shall
conduct and complete such remedial action in compliance with all applicable
Environmental Laws, and in accordance with the policies, orders and directives
of all federal, state and local governmental authorities except when Company's
or such Subsidiary's liability for such presence, storage, use, disposal,
transportation or discharge of any Hazardous Material is being contested in
good faith by Company or such Subsidiary and such reserve or other appropriate
provision, if any, as shall be required in conformity with GAAP shall have
been made therefor.
B. Company shall not and shall not permit its Subsidiaries to
install or permit to be installed any asbestos in any property owned by any of
them and Company shall not and shall not permit its Subsidiaries to install,
and Company and its Subsidiaries shall otherwise use their best efforts to
prevent the installation of, any asbestos in any property leased by any of
them. With respect to any asbestos currently present in such property,
Company shall and shall cause its Subsidiaries to promptly and in accordance
with all applicable Environmental Laws and prudent industry practices maintain
such asbestos in good and safe condition.
5.10 BW-Other Corporation
A. Company and its Subsidiaries may not make direct or indirect
Investments in or become or be liable with respect to any Contingent
Obligation with respect to BW-Other Corporation except for existing
investments listed on Schedule 6.3; provided, however, that Company may pay
the Centaur Settlement Amount; and, provided further that Company may pay
routine costs and expenses related to BW-Other Corporation in the ordinary
course of business consistent with past practices. Company will not and will
not permit any of its Subsidiaries to directly or indirectly enter into or
permit to exist any transaction between Company and its Subsidiaries and
BW-Other Corporation on terms that are less favorable to Company and its
Subsidiaries than those that might be obtained from third parties.
B. Company will not, and will not permit any of its Consolidated
Subsidiaries to, merge or consolidate with or otherwise acquire, in one
transaction or a series of transactions, any material portion of BW-Other
Corporation.
5.11 Further Assurances as to Future Material Subsidiaries
Company will notify Administrative Agent promptly in the event
that any Subsidiary becomes a Material Subsidiary and from and after the
Closing Date will cause each such Subsidiary to execute counterparts of the
Xxxx-Xxxxxx Subsidiary Guaranty and the Xxxx-Xxxxxx Subsidiary Pledge
Agreement (or appropriate amendments thereof), in each case to the same extent
and subject to the same limitations as though such Subsidiary were a
Xxxx-Xxxxxx Guarantor Subsidiary or Xxxx-Xxxxxx Pledged Subsidiary on the date
hereof, and to take all such further action as may be required to perfect the
security interests granted thereunder as may be required by Agents and
Requisite Lenders.
5.12 FOCI Matters
Company will notify the Administrative Agent promptly in the event
that any governmental agency requests the Administrative Agent to take any
action necessary or desirable to maintain the security clearances of Company
and its Subsidiaries. The Administrative Agent hereby agrees that, if so
requested, it will provide an officer's certificate, in form and substance
satisfactory to the Administrative Agent, to the appropriate governmental
agency to the effect that after the occurrence and continuation of an Event of
Default, it will provide such governmental agency with not less than 30 days
advance notification of the time at which it believes it may commence
exercising its foreclosure rights with respect to any Pledged Shares and that
in the event that it forecloses on such Pledged Shares, it will notify such
governmental agency immediately of any intended sale, transfer or other
disposition of such Pledged Shares; provided that such officer's certificate
shall also include such acknowledgements, qualifications or limitations with
respect to the foregoing that Administrative Agent believes to be necessary
or desirable. The Company agrees that at any time it may be required to
notify any governmental agency with respect to such matters that it will
concurrently notify the Administrative Agent of such notice and provide a copy
of such notice to Administrative Agent. The Company also acknowledges and
agrees that any agreement of Administrative Agent to provide the foregoing
officer's certificate or to take any other appropriate action is not intended
to, and does not in fact, waive, modify, amend or change, in any respect, any
of the terms and conditions of any of the Loan Documents, including without
limitation, Administrative Agent's ability to exercise any of its rights or
remedies under any of the Loan Documents against any of the Loan Parties or
with respect to any of the Pledged Collateral at the times and in the manner
permitted by such Loan Documents, and that no Loan Party is intended to be,
and no Loan Party shall be, a third party beneficiary of any officer's
certificate provided by Administrative Agent to such governmental agency.
SECTION 6.
Company's Negative Covenants
Company covenants and agrees that, so long as any of the
Commitments shall be in effect and until payment in full of all of the Loans
and Notes and all other amounts owing hereunder and expiration of all Letters
of Credit, unless Requisite Lenders shall otherwise give prior written
consent, Company will perform all covenants in this Section 6.
6.1 Indebtedness
Company shall not, and shall not permit any of its Consolidated
Subsidiaries to, directly or indirectly, create, incur, assume, guaranty, or
otherwise become or remain directly or indirectly liable with respect to, any
Indebtedness, except:
(i) Company and its Consolidated Subsidiaries may become
and remain liable with respect to the Obligations;
(ii) Company and its Consolidated Subsidiaries (other than
Old Armored) may remain and may become and remain liable with respect to
Indebtedness to Company and its Consolidated Subsidiaries; provided that
(a) any Indebtedness owed by Company to any of its Subsidiaries shall,
to the extent permitted by applicable law, be subordinated in right of
payment, from and after such time as the Loans shall become due and
payable (whether at stated maturity, by acceleration or otherwise), to
the payment in full of the Obligations of Company under this Agreement
and the Obligations of a Subsidiary under the Loan Guaranties and the
Xxxx-Xxxxxx Subsidiary Pledge Agreement, and (b) any payment by any of
Company's Subsidiaries under any guaranty of the Obligations shall
result in a pro tanto reduction of the amount of any intercompany
Indebtedness owed by such Subsidiary to Company or any of its
Subsidiaries for whose benefit the payment is made;
(iii) Company and its Consolidated Subsidiaries may remain
liable with respect to each of the items of Existing Indebtedness
described in Schedule 6.1 annexed hereto and any Indebtedness incurred
to refinance such Existing Indebtedness; provided that after giving
effect to such refinancing Indebtedness and the repayment of the
corresponding Existing Indebtedness with the proceeds thereof, (a) the
aggregate principal amount of the refinancing Indebtedness and the
corresponding Existing Indebtedness so refinanced shall not be greater
than the outstanding principal amount of such Existing Indebtedness
immediately prior to such refinancing, (b) the weighted average life to
maturity of such refinancing Indebtedness shall be no shorter than the
Existing Indebtedness being refinanced and (c) such refinancing
Indebtedness shall not be secured by any additional property than that
which secures the Existing Indebtedness being refinanced;
(iv) Company and its Consolidated Subsidiaries may become
and remain liable with respect to Indebtedness in respect of Capital
Leases; provided that the aggregate outstanding amount of such Capital
Leases does not exceed $30,000,000 at any time;
(v) Company and its Consolidated Subsidiaries may become
and remain liable with respect to Contingent Obligations permitted by
subsection 6.4 and, upon any obligations actually arising pursuant
thereto, the Indebtedness incurred in connection with the satisfaction
of such Contingent Obligations so extinguished;
(vi) Company may remain liable with respect to $150,000,000
in aggregate principal amount of the 9 1/8% Subordinated Notes and
$125,000,000 in aggregate principal amount of the New Senior
Subordinated Notes;
(vii) BPS Financial Services, Inc. may become and remain
liable with respect to the Trade Receivables Facility and with respect
to intercompany promissory notes in favor of Company and its other
Consolidated Subsidiaries, evidencing BPS Financial Services, Inc.'s
obligations with respect to the purchase price of receivables purchased
by BPS Financial Services, Inc. under the Trade Receivables Facility
provided that all intercompany promissory notes issued to Company or
Material Subsidiaries shall be pledged by Company or such Material
Subsidiaries to Collateral Agent for the benefit of Lenders;
(viii) In addition to the Indebtedness permitted by clauses
(i)-(vii) and clauses (ix) and (xi), Company's Consolidated Subsidiaries
which constitute Foreign Entities may incur and remain liable with
respect to Indebtedness not exceeding at any one time $10,000,000 in
aggregate outstanding principal amount;
(ix) Xxxxx Fargo Alarm Services, Inc., BW-Canada Alarm
(Xxxxx Fargo) Corporation, and their respective wholly owned
subsidiaries may become and remain liable with respect to the Alarm
Services Contract Securitization Facility;
(x) Indebtedness of the Company and its Subsidiaries
assumed or acquired in connection with a Permitted Acquisition under
subsection 6.7 which Indebtedness existed immediately prior to the time
of such Permitted Acquisition; provided that such Indebtedness is not
incurred in contemplation of such Permitted Acquisition; and
(xi) Company and its Subsidiaries may become and remain
liable with respect to other Indebtedness; provided that the maximum
aggregate liability of Company and its Subsidiaries with respect to such
other Indebtedness, together with the Contingent Obligations permitted
pursuant to subsection 6.4(xi), shall not at any one time exceed
$25,000,000.
6.2 Liens
Company will not, and will not permit any of its Consolidated
Subsidiaries to, directly or indirectly, create, incur, assume or permit to
exist any Lien on or with respect to any property or asset (including any
document or instrument in respect of goods or accounts receivable), of Company
or any of its Consolidated Subsidiaries, whether now owned or hereafter
acquired, or any income or profits therefrom, except:
(i) Permitted Encumbrances;
(ii) Liens granted pursuant to the Collateral Documents in
favor of Collateral Agent for the benefit of the Lenders and the
beneficiaries of the guaranties permitted pursuant to subsection
6.4(iii);
(iii) Liens described in Schedule 6.2 annexed hereto securing
Indebtedness permitted pursuant to subsection 6.1(iii) or (v);
(iv) Liens encumbering deposits made to secure obligations
arising from statutory, regulatory, contractual or warranty requirements
of Company or its Subsidiaries;
(v) Liens on property subject to such Capital Leases
securing the Indebtedness described in subsection 6.1(iv);
(vi) Liens in favor of the purchaser and its assignee of
Company's and its Consolidated Subsidiaries' receivables with respect to
receivables purchased pursuant to the Trade Receivables Facility
permitted pursuant to subsection 6.1(vii);
(vii) Liens on the assets or property of a Consolidated
Subsidiary which is a Foreign Entity securing the Indebtedness incurred
by such Foreign Entity and permitted pursuant to subsection 6.1(viii);
(viii) Liens in favor of the purchaser of receivables,
contracts and/or leases from Xxxxx Fargo Alarm Services, Inc., BW-Canada
Alarm (Xxxxx Fargo) Corporation, and their respective subsidiaries, with
respect to such receivables, contracts and/or leases in connection with
the Alarm Services Contract Securitization Facility permitted under
subsection 6.1(ix);
(ix) Liens securing Indebtedness permitted under subsection
6.1(x), which Liens are existing prior to the time such Indebtedness was
assumed or acquired by the Company or its Consolidated Subsidiaries or
the time the entity which incurred such Indebtedness became a Subsidiary
of Company; provided that such Liens were not incurred in connection
with, or in contemplation of, the acquisition of such Subsidiary and
such Liens extend to or cover only the property and assets of such
entity which were covered by such Liens and which were owned by such
entity, in each case at the time such entity became a Subsidiary of
Company;
(x) The New Senior Subordinated Note Indenture or the 9
1/8% Subordinated Note Indenture may contain covenants requiring Company
to provide for equal and ratable Liens or security to the holders of the
New Senior Subordinated Notes and 9 1/8% Subordinated Notes,
respectively; provided that notwithstanding the foregoing, this
exception shall not be construed as a consent by Requisite Lenders to
any creation or assumption of any such Lien or security not otherwise
permitted by the provisions of this subsection 6.2; and
(xi) Liens securing Indebtedness permitted pursuant to
subsection 6.1(xi).
6.3 Investments
Company will not, and will not permit any of its Consolidated
Subsidiaries to, directly or indirectly, make or own any Investment in any
Person, except:
(i) Company and its Consolidated Subsidiaries may make and
own Investments in Cash Equivalents;
(ii) Company and its Consolidated Subsidiaries may make and
own Investments described on Schedule 6.3 annexed hereto;
(iii) Company and its Consolidated Subsidiaries may make
intercompany loans to the extent permitted under subsection 6.1(ii);
Company and its Consolidated Subsidiaries may own the Investments
existing on the Closing Date in Company's Subsidiaries; Company and its
Consolidated Subsidiaries may make and own additional Investments after
the Closing Date in Consolidated Subsidiaries (other than Old Armored)
which constitute Material Subsidiaries or in Consolidated Subsidiaries
(other than Old Armored) which are both Xxxx-Xxxxxx Guarantor
Subsidiaries and Xxxx-Xxxxxx Pledged Subsidiaries;
(iv) Company and its Consolidated Subsidiaries may acquire
and retain ownership of Investments in connection with Asset Sales
permitted by subsection 6.7(iii);
(v) Company and its Consolidated Subsidiaries may make and
own Investments 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) Company and its Consolidated Subsidiaries may make
intercompany investments in BPS Financial Services, Inc. to the extent
permitted pursuant to subsection 6.1(vii); and
(vii) Company and its Consolidated Subsidiaries may create
or acquire new Consolidated Subsidiaries, make Investments in such
Consolidated Subsidiaries, make additional Investments in the Armored
Joint Venture and make other Investments, including in Joint Ventures,
to the extent not otherwise prohibited under this Agreement provided
that the aggregate amount of all such Investments in any Fiscal Year
together with the Adjusted Consolidated Capital Expenditure Amount in
such Fiscal Year plus all amounts expended for Permitted Acquisitions
pursuant to subsection 6.7(ii) in such Fiscal Year does not exceed
$75,000,000, as such amount may be increased by any Reinvested Asset
Sale Proceeds for such Fiscal Year.
6.4 Contingent Obligations
Company will not, and will not permit any of its Consolidated
Subsidiaries to, directly or indirectly, create or become or be liable with
respect to any Contingent Obligation except:
(i) Guaranties resulting from endorsement of negotiable
instruments for collection in the ordinary course of business;
(ii) Contingent Obligations under the Loan Guaranties;
(iii) Guaranties in favor of Lenders or their respective
Affiliates of Interest Rate Agreements and Currency Agreements entered
into by Company;
(iv) Contingent Obligations relating to obligations of
Company to make payments with respect to the cancellation or repurchase
of certain stock or stock options granted or to be granted to employees
of Company and its Subsidiaries under the Xxxx-Xxxxxx Security
Corporation Management Stock Option Plan, the 1993 Stock Incentive Plan
or any other employee or director stock option, incentive, purchase,
retirement, savings or similar plan or pursuant to subscription
agreements with respect to shares of Common Stock;
(v) Interest Rate Agreements and Currency Agreements
entered into by Company or its Subsidiaries;
(vi) Contingent Obligations described on Schedule 6.4
annexed hereto;
(vii) Contingent Obligations in respect of liabilities of
Company and its Subsidiaries permitted pursuant to subsection 6.1(vii)
and in respect of any other obligation of Company or its Consolidated
Subsidiaries which constitute Material Subsidiaries which is permitted
under this Agreement;
(viii) Contingent Obligations relating to guaranties of the
obligations of suppliers, customers, franchisees and licensees of
Company and its Consolidated Subsidiaries; provided that the maximum
aggregate liability of Company and its Consolidated Subsidiaries under
all such Contingent Obligations, shall not at any one time exceed
$5,000,000 (including any Contingent Obligations in existence as of the
date hereof);
(ix) Contingent Obligations of Company relating to
Indebtedness permitted under subsection 6.1(viii) that is incurred by a
Foreign Entity which is a Consolidated Subsidiary;
(x) Contingent Obligations with respect to the Alarm
Services Contract Securitization Facility;
(xi) Company and its Subsidiaries may become and remain
liable with respect to Contingent Obligations in respect of letters of
credit issued other than under this Agreement; provided that the maximum
aggregate liability of Company and its Subsidiaries under all such
Contingent Obligations, together with the Indebtedness permitted
pursuant to subsection 6.1(xi), shall not at any one time exceed
$25,000,000;
(xii) Company and its Subsidiaries may become and remain
liable with respect to Contingent Obligations in respect of Letters of
Credit; and
(xiii) In addition to the Contingent Obligations permitted
by clauses (i)-(xii), Company and its Consolidated Subsidiaries may
become and remain liable with respect to other Contingent Obligations;
provided that the maximum aggregate liability of Company and its
Consolidated Subsidiaries in respect of all such Contingent Obligations
shall not at any one time exceed $10,000,000.
6.5 Restricted Junior Payments
Company shall not, and shall not permit any of its Consolidated
Subsidiaries to, directly or indirectly, declare, order, pay, make or set
apart any sum for any Restricted Junior Payment; except:
(i) Company may make Restricted Junior Payments to cancel or
repurchase stock or stock options granted or to be granted to directors
or employees of Company or any of its Consolidated Subsidiaries under
the Xxxx-Xxxxxx Security Corporation Management Stock Option Plan, the
1993 Stock Incentive Plan or any other employee or director stock
option, incentive, purchase, retirement, savings or similar plan or
pursuant to any stock subscription agreements with respect to shares of
Common Stock in an aggregate amount which does not exceed $5,000,000 in
any calendar year and $20,000,000 in the aggregate;
(ii) On or after the first anniversary of the Closing Date,
Company may make Restricted Junior Payments to repurchase shares of
Common Stock then outstanding in an aggregate annual amount which does
not exceed $10,000,000; provided, that after giving effect to any
Restricted Junior Payment permitted under this subsection 6.5(ii), the
Company is in pro forma compliance with the financial covenants referred
to in subsection 6.6; and
(iii) Company may make Restricted Junior Payments in respect of
Company's obligations to pay interest on its Subordinated Indebtedness
in accordance with the terms of, and only to the extent required by, the
terms of such Subordinated Indebtedness, as such terms are in effect on
the Closing Date;
provided that immediately prior to and immediately after giving effect to any
Restricted Junior Payment permitted by this subsection 6.5, no Event of
Default or Potential Event of Default exists or will exist.
Company will not, and will not permit any of its Subsidiaries to,
deposit any funds for the purpose of making any Restricted Junior Payment with
a trustee, paying agent or registrar or other payment intermediary more than
three (3) Business Days prior to the date such payment is due, unless required
to do so by the terms, as of the Closing Date, of the applicable indenture.
In addition, Company will not, and will not permit any of its
Subsidiaries to, create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or restriction of any kind on the ability
of any Subsidiary to (a) pay dividends or make any other distribution on any
of such Subsidiary's capital stock owned by Company or any Subsidiary of
Company, (b) subject to subordination provisions, pay any indebtedness owed to
Company or any other Subsidiary, (c) make loans or advances to Company or any
other Subsidiary or (d) transfer any of its property or assets to Company or
any other Subsidiary, except as provided herein, in the 9 1/8% Subordinated
Note Indenture, in the New Senior Subordinated Note Indenture or in the Trade
Receivables Facility (with respect to BPS Financial Services, Inc.), any
restrictions existing under any other agreements as in effect on the Closing
Date or any renewals or extensions thereof; provided that the terms and
conditions of any such renewals or extensions are no less favorable to Lenders
than the agreements being renewed or extended.
6.6 Financial Covenants
A. Interest Coverage Ratio. Company will not permit its
Interest Coverage Ratio as of the last day of each of the fiscal quarters
shown below for the four consecutive preceding fiscal quarters ended on such
date, to be less than the correlative ratio indicated below:
Minimum
Fiscal Quarter Ended Interest Coverage Ratio
-------------------- -----------------------
March 31, 1997 2.20:1.00
June 30, 1997 2.20:1.00
September 30, 1997 2.20:1.00
December 31, 1997 2.20:1.00
March 31, 1998 2.25:1.00
June 30, 1998 2.25:1.00
September 30, 1998 2.30:1.00
December 31, 1998 2.30:1.00
March 31, 1999 2.40:1.00
June 30, 1999 2.40:1.00
September 30, 1999 2.40:1.00
December 31, 1999 2.40:1.00
March 31, 2000 2.50:1.00
June 30, 2000 2.50:1.00
September 30, 2000 2.60:1.00
December 31, 2000 2.75:1.00
March 31, 2001 2.75:1.00
June 30, 2001 2.75:1.00
September 30, 2001 2.75:1.00
December 31, 2001 2.75:1.00
March 31, 2002 2.75:1.00
B. Leverage Ratio. Company will not permit the ratio as of the
last day of each of the fiscal quarters shown below of Funded Debt to
Consolidated EBITDA for the four consecutive preceding fiscal quarters ended
on such date to be more than the correlative ratio indicated for such date:
Fiscal Quarter Ended Maximum Leverage Ratio
-------------------- ----------------------
March 31, 1997 3.40:1.00
June 30, 1997 3.40:1.00
September 30, 1997 3.45:1.00
December 31, 1997 3.50:1.00
March 31, 1998 3.50:1.00
June 30, 1998 3.50:1.00
September 30, 1998 3.45:1.00
December 31, 1998 3.45:1.00
March 31, 1999 3.30:1.00
June 30, 1999 3.30:1.00
September 30, 1999 3.30:1.00
December 31, 1999 3.30:1.00
March 31, 2000 3.20:1.00
June 30, 2000 3.20:1.00
September 30, 2000 3.10:1.00
December 31, 2000 3.10:1.00
March 31, 2001 3.00:1.00
June 30, 2001 3.00:1.00
September 30, 2001 3.00:1.00
December 31, 2001 3.00:1.00
March 31, 2002 3.00:1.00
C. Consolidated Net Worth. Company will not permit its
Consolidated Net Worth as of the last day of the fiscal quarters set forth
below and at all times thereafter (until the last day of the next fiscal
quarter when such amounts shall be increased as provided for herein) to be
less than the correlative amount indicated below:
Fiscal Quarter Ended Consolidated Net Worth
-------------------- ----------------------
March 31, 1997 $ 30,000,000
June 30, 1997 33,000,000
September 30, 1997 36,000,000
December 31, 1997 40,000,000
March 31, 1998 44,500,000
June 30, 1998 49,000,000
September 30, 1998 54,000,000
December 31, 1998 58,000,000
March 31, 1999 63,000,000
June 30, 1999 68,500,000
September 30, 1999 74,000,000
December 31, 1999 81,000,000
March 31, 2000 85,500,000
June 30, 2000 94,000,000
September 30, 2000 99,000,000
December 31, 2000 106,000,000
March 31, 2001 108,000,000
June 30, 2001 114,000,000
September 30, 2001 119,000,000
December 31, 2001 121,000,000
March 31, 2002 121,000,000
D. Consolidated EBITDA. Company will not permit Consolidated
EBITDA as of the last day of each of the fiscal quarters shown below for the
four consecutive preceding fiscal quarters ended on such date to be less than
the correlative amount indicated below:
Minimum Consolidated
Fiscal Quarter Ended EBITDA
-------------------- --------------------
March 31, 1997 $ 115,000,000
June 30, 1997 111,000,000
September 30, 1997 104,000,000
December 31, 1997 95,000,000
March 31, 1998 96,000,000
June 30, 1998 97,000,000
September 30, 1998 99,000,000
December 31, 1998 100,000,000
March 31, 1999 100,000,000
June 30, 1999 101,000,000
September 30, 1999 102,000,000
December 31, 1999 103,000,000
March 31, 2000 105,000,000
June 30, 2000 105,000,000
September 30, 2000 108,000,000
December 31, 2000 110,000,000
March 31, 2001 110,000,000
June 30, 2001 112,000,000
September 30, 2001 112,000,000
December 31, 2001 112,000,000
March 31, 2002 112,000,000
E. Consolidated Capital Expenditures. Company and its
Subsidiaries shall not permit the sum of (x) the Adjusted Consolidated Capital
Expenditure Amount in any Fiscal Year plus (y) the amount of the Investments
permitted under subsection 6.3(vii) made in such Fiscal Year plus (z) the
amount of the Permitted Acquisitions permitted under subsection 6.7(ii) made
in such Fiscal Year to exceed $75,000,000, as such amount may be increased by
any Reinvested Asset Sale Proceeds for such Fiscal Year. Notwithstanding the
foregoing, if any portion of such $75,000,000 for any Fiscal Year has not been
incurred within such Fiscal Year (the unutilized portion of such $75,000,000
being referred to as the "Unutilized Amount"), Company and its Subsidiaries
may, in the immediately succeeding Fiscal Year, make additional Consolidated
Capital Expenditures in an amount not to exceed the lesser of (i) the
Unutilized Amount and (ii) $10,000,000. In determining the Unutilized Amount
for any Fiscal Year, such amount shall be determined solely on the basis of
the $75,000,000 of permitted expenditures for that Fiscal Year and shall not
include any Unutilized Amount from any prior period.
6.7 Restriction on Fundamental Changes
Subject to subsection 5.2, each of Company and its Consolidated
Subsidiaries will not enter into any transaction of merger or consolidate, or
liquidate, wind-up or dissolve itself (or suffer any liquidation or
dissolution), or convey, sell, exchange, lease, sub-lease, transfer or
otherwise dispose of, in one transaction or a series of related transactions,
all or any of its business, property or fixed assets, or all or any portion of
the stock or beneficial ownership, whether now owned or hereafter acquired, or
acquire by purchase or otherwise all or substantially all the business,
property or fixed assets of, or stock or other evidence of beneficial
ownership of, any Person, except:
(i) any Subsidiary of Company may be merged or
consolidated with or into Company or any wholly-owned Subsidiary of
Company, or be liquidated, wound up or dissolved, or all or
substantially all of its business, property or assets may be conveyed,
sold, leased, transferred or otherwise disposed of, in one transaction
or a series of transactions, to Company or any wholly-owned Subsidiary
of Company; provided that, in the case of such a merger or
consolidation, Company or such wholly-owned Subsidiary shall be the
continuing or surviving corporation; provided further that, in the case
of such a merger or consolidation or disposition of a majority of the
stock of a Subsidiary or substantially all of the business, property or
assets of such a Subsidiary (the "Affected Subsidiary") of Company which
is a guarantor of any of the Obligations, (a) the continuing, surviving
or transferee corporation shall expressly assume the obligations of the
Affected Subsidiary under such guaranty and (b) in the case of a merger
or consolidation, the net worth of the continuing or surviving
corporation (calculated without giving effect to any increase in the
amount of intercompany Indebtedness for which the continuing or
surviving corporation is liable as compared to the amount of
intercompany Indebtedness for which the Affected Subsidiary was liable
immediately prior to such merger or consolidation) shall not be less
than the net worth of the Affected Subsidiary immediately prior to such
merger or consolidation; and provided still further that, subject to the
terms of the applicable Collateral Document, in the case of such a
merger or consolidation or disposition of a majority of the stock of a
Subsidiary or substantially all of the business, property or assets of
such a Subsidiary of Company the stock of which is pledged to secure the
Obligations, the stock of the continuing, surviving or transferee
corporation shall, at the time of consummation of such merger,
consolidation or transfer, be pledged to secure the Obligations;
(ii) Company and its Consolidated Subsidiaries may acquire
the business, property or fixed assets of, or stock or other evidence of
beneficial ownership of, any Person or any operating division of such
Person engaged in businesses substantially similar to those currently
conducted by the Company and its Consolidated Subsidiaries (such asset
or stock acquisitions being herein collectively referred to as
"Permitted Acquisitions"); provided that (x) the aggregate purchase
price (including the amount of all assumed Indebtedness) paid with
respect to such Permitted Acquisitions in any Fiscal Year plus (y) the
Adjusted Consolidated Capital Expenditure Amount in such Fiscal Year
plus (z) Investments permitted pursuant to subsection 6.3(vii) in such
Fiscal Year shall not exceed $75,000,000, as such amount may be
increased by any Reinvested Asset Sale Proceeds for such Fiscal Year;
provided that in calculating the purchase price of such Permitted
Acquisitions, that to the extent that Company pays all or any portion
of the purchase price for a Permitted Acquisition through the issuance
of shares of Common Stock, the value of the shares of such Common Stock
shall be deducted from the calculation of the purchase price payable by
Company or its Consolidated Subsidiaries for such Permitted Acquisition
for purposes of determining compliance with the provisions of this
subsection 6.7(ii); provided further that no Potential Event of Default
or Event of Default shall then exist or shall occur under this Agreement
as a result of any Permitted Acquisition; provided further that after
giving effect to any such Permitted Acquisition, the Company is in pro
forma compliance with the financial covenants referred to in subsection
6.6; and provided further that any such Person so acquired that
constitutes a Material Subsidiary shall execute counterparts of the
Xxxx-Xxxxxx Subsidiary Guaranty and the Xxxx-Xxxxxx Subsidiary Pledge
Agreement as provided in subsection 5.11;
(iii) Company may sell, exchange or otherwise dispose of
assets to the extent sold or disposed of in connection with the
Receivables Facilities or pursuant to Asset Sale transactions; provided
that (a) any such Asset Sale is made for the fair market value of such
assets and for at least eighty-five percent (85%) cash, and (b) the Net
Cash Proceeds of each such Asset Sale are applied in conformity with
subsection 2.4; and, provided, further, that Company and its
Subsidiaries may not sell, exchange or otherwise dispose of all or a
substantial portion of any Division without the prior written consent
of Requisite Lenders;
(iv) Company and its Subsidiaries may, in the ordinary
course of business, sell, lease, assign or transfer for value personal
property held for sale or lease in ordinary course of business of
Company and its Subsidiaries;
(v) Company and its Subsidiaries may make Restricted
Junior Payments permitted under subsection 6.5; and
(vi) Company may sell, exchange or otherwise dispose of
assets relating to its discontinued courier services business unit;
provided, (a) that such Asset Sale (1) is made for the fair market value
of such assets and for all cash and (2) does not result in any
continuing liabilities for the Company and its Subsidiaries other than
ordinary and customary indemnification obligations relating to such
sales or (b) such Asset Sale is otherwise consented to in writing by
Requisite Lenders and, in each case, the Net Cash Proceeds of such Asset
Sale is applied in conformity with subsection 2.4A(ii)(a).
6.8 Sales and Leasebacks
Company and its Consolidated Subsidiaries shall not, directly or
indirectly, become or remain liable as lessee or as a guarantor or other
surety with respect to any lease, whether an operating lease or a Capital
Lease, of any property (whether real, personal or mixed), whether now owned or
hereafter acquired, (i) which Company or any of its Subsidiaries has sold or
transferred or is to sell or transfer to any other Person (other than Company
or any of its Subsidiaries) or (ii) which Company or any of its Subsidiaries
intends to use for substantially the same purpose as any other property which
has been or is to be sold or transferred by Company or any of its Subsidiaries
to any Person (other than Company or any of its Subsidiaries) in connection
with such lease, except to the extent that the proceeds of all such sales or
transfers does not exceed $15,000,000 in the aggregate or the Net Cash
Proceeds of any such transactions are applied in accordance with the
provisions of subsection 2.4A(ii)(a).
6.9 Sale or Discount of Receivables
Company will not, and will not permit any of its Consolidated
Subsidiaries to, directly or indirectly, sell with recourse, or discount or
otherwise sell for less than the face value thereof, notes, accounts
receivable, contracts, leases or other receivables, other than pursuant to the
Receivables Facilities.
6.10 Transactions with Shareholders and Affiliates
Company will not, and will not permit any of its Subsidiaries to,
directly or indirectly, enter into or permit to exist any transaction
(including, without limitation, the purchase, sale, lease or exchange of any
property or the rendering of any service) with any holder of 5% or more of any
class of equity securities of Company or with any Affiliate of Company or of
any such holder, as the case may be, on terms that are less favorable to
Company or that Subsidiary, as the case may be, than those that might be
obtained at the time from Persons who are not such a holder or Affiliate;
provided that the foregoing restriction shall not apply to (i) any transaction
between Company and any of its wholly-owned Subsidiaries or between any of its
wholly-owned Subsidiaries, (ii) customary fees paid to members of the Board
of Directors of Company and its Subsidiaries; or (iii) financial advisory
arrangements for services rendered by Stonington or ML & Co. or any of its
Affiliates to Company or any of its Subsidiaries; provided that such
arrangements are no less favorable to Company and its Subsidiaries than those
obtainable in a comparable arm's-length transaction with a Person that is not
an Affiliate of the Company.
6.11 Disposal of Subsidiary Stock
Except as permitted by subsection 6.7 and as contemplated by the
Pledge Agreements, Company will not,
(i) directly or indirectly sell, assign, pledge or
otherwise encumber or dispose of any shares of capital stock or other
equity securities of (or warrants, rights or options to acquire shares
or other equity securities of) any of its Consolidated Subsidiaries,
except to qualify directors if required by applicable law; or
(ii) permit any of its Consolidated Subsidiaries directly
or indirectly to sell, assign, pledge or otherwise encumber or dispose
of any shares of capital stock or other securities of (or warrants,
rights or options to acquire shares or other securities of) such
Subsidiary, except to Company, another Subsidiary of Company or to
qualify directors if required by applicable law.
6.12 Conduct of Business
Company will not and will not permit any of its Subsidiaries to
engage in any business other than (i) the business engaged in by Company and
its Subsidiaries (other than Discontinued Operations) on the date hereof as
described in Schedule 4.1C and substantially similar or related businesses and
(ii) such other lines of business as may be consented to by Requisite Lenders.
6.13 Amendments or Waivers Relating to Subordinated Indebtedness
A. Neither Company nor any of its Subsidiaries will (i) amend,
waive or otherwise change the terms of any Subordinated Indebtedness, or make
any payment consistent with an amendment, waiver or change thereto, without
the consent of Requisite Lenders; provided that notwithstanding the foregoing
Company may agree to amend any provisions of the Subordinated Indebtedness (a)
to cure any ambiguity, or to correct or supplement any provision therein which
may be defective or inconsistent with any other provision of such Subordinated
Indebtedness, (b) to comply with the Trust Indenture Act of 1939, or (c) to
make modifications of a technical or clarifying nature which are no less
favorable to the Lenders than the provisions of the Subordinated Indebtedness
in effect on the Closing Date; or (ii) defease, or make any payments the
effect of which is to defease (whether pursuant to the defeasance provisions
of the Subordinated Indebtedness or otherwise and including without limitation
any covenant defeasance), the Subordinated Indebtedness in whole or in part.
B. Neither Company nor any of its Subsidiaries will amend,
modify, waive or supplement or otherwise change any of the terms of the
Receivables Facilities from those in effect on the Closing Date, without the
prior written consent of Requisite Lenders if such amendment, modification,
waiver, supplement or change would be less favorable to, or increase the
obligations of, Company or any of its Subsidiaries or would confer additional
rights on any other party to such agreement adverse to the Company or any of
its Subsidiaries or would be adverse to the Lenders under this Agreement.
Company agrees to deliver to Administrative Agent upon execution thereof
copies of all program documents (other than any fee or expense letters) for
the Receivables Facilities and any amendments, modifications, waivers,
supplements or changes thereto (without regard to whether the prior written
consent of Requisite Lenders is required thereto).
6.14 Designation of Senior Indebtedness
Neither Company nor any of its Subsidiaries will, without
obtaining the prior written consent of Requisite Lenders, enter into any
agreements or instruments creating or evidencing Indebtedness if such
agreements or instruments (other than this Agreement and the Notes)
specifically designate such Indebtedness to be "Specified Senior Indebtedness",
"Designated Senior Indebtedness" or any similar characterization under any of
the Subordinated Indebtedness (or any comparable provision of any refinancing
agreement entered into in respect thereof). The Company acknowledges and
agrees that its Obligations under this Agreement are "Specified Senior
Indebtedness" for purposes of the 9 1/8% Subordinated Note Indenture and, to
the extent required under the terms of such indenture, hereby designates its
Obligations under this Agreement as "Specified Senior Indebtedness" for
purposes of the 9 1/8% Subordinated Note Indenture.
6.15 Fiscal Year
Company shall not change its Fiscal Year-end from December 31.
SECTION 7.
Events of Default
If any of the following conditions or events ("Events of Default")
shall occur and be continuing:
7.1 Failure to Make Payments When Due
Failure to pay any installment of principal of any Loan when due,
whether at stated maturity, by acceleration, by declaration of acceleration,
by notice of prepayment or otherwise; or failure to pay any interest on any
Loan or any other amount due under this Agreement within five days after the
date due; or
7.2 Default in Other Agreements
(i) Failure of Company or any of its Subsidiaries to pay when due
(a) any principal of or interest on any Indebtedness (other than Indebtedness
referred to in subsection 7.1) in an individual principal amount of $3,000,000
or more or any items of Indebtedness with an aggregate principal amount of
$6,000,000 or more or (b) any Contingent Obligation in an individual principal
amount of $3,000,000 or more or any Contingent Obligations with an aggregate
principal amount of $6,000,000 or more, in each case beyond the end of any
grace period provided therefor; or (ii) breach or default by Company or any of
its Subsidiaries with respect to any other material term of (a) any evidence
of any Indebtedness in an individual principal amount of $3,000,000 or more or
any items of Indebtedness with an aggregate principal amount of $6,000,000 or
more or any Contingent Obligation in an individual principal amount of
$3,000,000 or more or any Contingent Obligations with an aggregate principal
amount of $6,000,000 or more or (b) any loan agreement, mortgage, indenture or
other agreement relating to such Indebtedness or Contingent Obligation(s), if
the effect of such breach or default is to cause, or to permit the holder or
holders of that Indebtedness or Contingent Obligation(s) (or a trustee on
behalf of such holder or holders) to cause, that Indebtedness or Contingent
Obligation(s) to become or be declared due and payable prior to its stated
maturity or the stated maturity of any underlying obligation, as the case may
be (upon the giving or receiving of notice, lapse of time, both, or
otherwise); or
7.3 Breach of Certain Covenants
Failure of Company to perform or comply with any term or condition
contained in clauses (i) and (ii) of the third paragraph of subsection 2.1A,
subsections 2.4A, 2.5, 5.2 or 5.6 or Section 6; or
7.4 Breach of Warranty
Any representation, warranty, certification or other statement
made by any Loan Party in any Loan Document or in any statement or certificate
at any time given by such Person in writing pursuant hereto or in connection
herewith shall be false in any material respect on the date as of which made;
or
7.5 Other Defaults Under Agreement or Loan Documents
Company or any other Loan Party shall default in the performance
of or compliance with any term contained in this Agreement or the other Loan
Documents other than those referred to above in subsections 7.1, 7.3 or 7.4
and such default shall not have been remedied or waived within 30 days after
receipt by Company of notice from any Agent or any Lender of such default; or
7.6 Involuntary Bankruptcy; Appointment of Receiver, etc.
(i) A court having jurisdiction in the premises shall enter a
decree or order for relief in respect of Company or any of its Material
Subsidiaries in an involuntary case under the Bankruptcy Code or any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, which decree or order is not stayed; or any other similar relief shall
be granted under any applicable federal or state law; or (ii) an involuntary
case is commenced against Company or any of its Material Subsidiaries under
any applicable bankruptcy, insolvency or other similar law now or hereafter in
effect; or a decree or order of a court having jurisdiction in the premises
for the appointment of a receiver, liquidator, sequestrator, trustee,
custodian or other officer having similar powers over Company or any of its
Material Subsidiaries, or over all or a substantial part of its property,
shall have been entered; or the involuntary appointment of an interim
receiver, trustee or other custodian of Company or any of its Material
Subsidiaries for all or a substantial part of its property; or the issuance of
a warrant of attachment, execution or similar process against any substantial
part of the property of Company or any of its Material Subsidiaries, and the
continuance of any such event in clause (ii) for 60 days unless dismissed,
bonded or discharged; or
7.7 Voluntary Bankruptcy; Appointment of Receiver, etc.
(i) Company or any of its Material Subsidiaries shall have an
order for relief entered with respect to it or commence a voluntary case under
the Bankruptcy Code or any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or shall consent to the entry of an order for
relief in an involuntary case, or to the conversion of an involuntary case to
a voluntary case, under any such law, or shall consent to the appointment of
or taking possession by a receiver, trustee or other custodian for all or a
substantial part of its property; the making by Company or any of its Material
Subsidiaries of any assignment for the benefit of creditors; or
(ii) the inability or failure of Company or any of its Material
Subsidiaries, or the admission by Company or any of its Material Subsidiaries
in writing of its inability, to pay its debts as such debts become due; or the
Board of Directors of Company or any of its Material Subsidiaries (or any
committee thereof) adopts any resolution or otherwise authorizes action to
approve any of the actions referred to in clause (i) or this clause (ii); or
7.8 Judgments and Attachments
(i) One or more judgments or decrees shall be entered against
Company or any of its Material Subsidiaries involving in the aggregate a
liability of $1,000,000 or more (to the extent not covered by insurance) and
all such judgments or decrees shall not have been vacated, discharged, stayed
or bonded pending appeal within 60 days from the entry thereof or (ii) Company
or any of its Material Subsidiaries shall settle or otherwise resolve any
litigation or proceeding, and the aggregate liability in connection therewith,
whether current or prospective, shall exceed $5,000,000, and in the case of
clause (ii) such aggregate liability could reasonably be expected to result in
a Material Adverse Effect; or
7.9 Dissolution
Any order, judgment or decree shall be entered against Company or
any of its Material Subsidiaries decreeing the dissolution or split up of
Company or that Material Subsidiary and such order shall remain undischarged
or unstayed for a period in excess of 30 days; or
7.10 Employee Benefit Plans
There occurs one or more ERISA Events (determined without regard
to any materiality standard in that definition) which individually or in the
aggregate results in or is reasonably expected to result in liability of a
Loan Party or any of its ERISA Affiliates in excess of $10,000,000 (or
$5,000,000 if as a result of any such ERISA Event a Lien has been or is
reasonably likely to be imposed) during the term of this Agreement; or there
exists an excess of aggregated accumulated benefit obligations, as defined in
Statement of Financial Accounting Standards No. 87 (the "ABO"), over the
aggregate total fair market value for all Pension Plans (excluding for
purposes of such computation each Pension Plan with respect to which the fair
market value of the assets exceeds the ABO) which exceeds $40,000,000; or
7.11 Invalidity of Guaranties
Any of the Loan Guaranties for any reason, other than the
satisfaction in full of all Obligations and termination of this Agreement,
ceases to be in full force and effect or is declared to be null and void, or
Company or any Xxxx-Xxxxxx Guarantor Subsidiary denies that it has any further
liability under the Loan Guaranty to which it is party, or gives notice to such
effect; or
7.12 Failure of Security
Any Pledge Agreement or any other Collateral Document shall, at
any time, cease to be in full force and effect or shall be declared null and
void, or the validity or enforceability thereof shall be contested by any Loan
Party or the Collateral Agent shall not have or shall cease to have a valid
and perfected first priority security interest in the Collateral in each case
for any reason other than the failure of Collateral Agent or any Lender to
take any action within its control; or
7.13 Change in Control
(i) A change shall occur in the Board of Directors of Company so
that a majority of the Board of Directors of Company ceases to consist
of the individuals who constituted the Board of Directors of Company on
the Closing Date (or individuals whose election or nomination for
election was approved by a vote of at least 75% of the directors then in
office who either were directors on the Closing Date or whose election
or nomination for election was previously so approved); or
(ii) Any Person or group (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission) other than ML & Co. and its
Affiliates and members of Company's management on the Closing Date shall
become or be the owner, directly or indirectly, beneficially or of
record, of shares representing more than 30% of the aggregate ordinary
voting power represented by the issued and outstanding capital stock of
Company on a fully diluted basis, unless ML & Co. and its Affiliates
shall own and continue to so own a majority of such capital stock; or
7.14 Receivables Facilities
(i) Any condition or event shall occur under the Trade Receivables
Facility that constitutes an Early Amortization Event (as such term is defined
in the Trade Receivables Facility as of the Closing Date) or an event or
condition which, after notice or lapse of time or both, would constitute an
Early Amortization Event if that event or condition were not cured or removed
within any applicable grace or cure period (a "Unmatured Early Amortization
Event"), or any condition or event shall occur under any Receivables Facility
the effect of which is the same as, or similar to, any such Early Amortization
Event or Unmatured Early Amortization Event; (ii) any condition or event shall
occur, or any breach or default by Company or any of its Subsidiaries shall
occur, under any Receivables Facility if the effect of such condition, event,
breach or default is to cause, or to permit any purchaser or other investor
under any Receivables Facility to cause, upon the giving or receiving of
notice, lapse of time, both or otherwise, any commitment to purchase
receivables or to advance or invest funds for the purchase of receivables
under any such Receivables Facility in whole or in part to be suspended or
terminated or any principal repayment or amortization or accumulation period
to commence prior to January 1, 1999 in the case of the Trade Receivables
Facility or prior to the scheduled commencement date for such repayment,
amortization or accumulation as in effect on the initial closing date for such
Receivables Facility in the case of the Alarm Services Contract Securitization
Facility; (iii) Company or any of its Subsidiaries shall optionally redeem,
retire, prepay, purchase for value or make any similar optional payment of the
principal of, any Receivables Certificates (as defined in subsection 9.18)
issued to finance the purchase of receivables under the Trade Receivables
Facility; or (v) any condition or event shall occur which constitutes a Lessee
Notice Event (as defined in the Alarm Services Contract Securitization
Facility) under clause (iv) of Section 20.1 of the Alarm Services Contract
Securitization Facility involving an amount in excess of $3,000,000 or clause
(vii) of Section 20.1 of the Alarm Services Contract Securitization Facility;
or any condition or event shall occur which constitutes an Event of Seller
Default (as defined in the Security Agreement executed in connection with the
Alarm Services Contract Securitization Facility) involving an amount in excess
of $3,000,000;
THEN (i) upon the occurrence of any Event of Default described in
the foregoing subsections 7.6 or 7.7(i), each of (a) the unpaid principal
amount of and accrued interest on the Loans, (b) an amount equal to the
maximum amount that may at any time be drawn under all Letters of Credit then
outstanding (whether or not any beneficiary under any Letter of Credit shall
have presented or be entitled to present, the drafts and other documents
required to draw under the Letter of Credit), and (c) all other Obligations
shall automatically become immediately due and payable, without presentment,
demand, protest or other requirements of any kind, all of which are hereby
expressly waived by Company and the obligation of each Lender to make any Loan
and the obligation of any Lender to issue any Letter of Credit shall thereupon
terminate and (ii) upon the occurrence and during the continuance of any other
Event of Default, Requisite Lenders may, by written notice to Company, declare
all or any portion of the amounts described in clauses (a) through (c) above
to be, and the same shall forthwith become, immediately due and payable,
together with accrued interest thereon, and the obligation of each Lender to
make any Loan and the obligation of any Lender to issue any Letter of Credit
shall thereupon terminate; provided, that the foregoing shall not affect in
any way the obligations of Lenders to make Loans to reimburse drawings under
Letters of Credit as provided in subsection 2.9C. So long as any Letter of
Credit shall remain outstanding, any amounts described in clause (b) above
with respect to Letters of Credit, when received by the Issuing Lender, shall
be held by the Issuing Lender, pursuant to such documentation as the Issuing
Lender shall request, as cash collateral for the obligation of Company to
reimburse the Issuing Lender in the event of any drawing under such Letters of
Credit, and so much of such funds shall at all times remain on deposit as cash
collateral as aforesaid as shall equal the maximum amount available at any
time for drawing under all Letters of Credit (the "Maximum Available Amount");
provided that in the event of cancellation or expiration of any Letter of
Credit or any reduction in the Maximum Available Amount, the Issuing Lender
shall apply the difference between the cash collateral held by the Issuing
Lender immediately prior to such cancellation, expiration or reduction and the
Maximum Available Amount immediately after such cancellation, expiration or
reduction first to the payment of any outstanding Obligations, and second to
the payment to whomsoever shall be lawfully entitled to receive such funds.
Notwithstanding anything contained in the foregoing paragraph, if
at any time within 60 days after acceleration of the maturity of any Loan,
Company shall pay all arrears of interest and all payments on account of the
principal which shall have become due otherwise than by acceleration (with
interest on principal and, to the extent permitted by law, on overdue
interest, at the rates specified in this Agreement or the Notes) and all
Events of Default and Potential Events of Default (other than non-payment of
principal of and accrued interest on the Loans and the Notes and payments of
amounts referred to in clause (b) above, in each case which is due and payable
solely by virtue of acceleration) shall be remedied or waived pursuant to
subsection 9.6, then Requisite Lenders, by written notice to Company, may at
their option rescind and annul the acceleration and its consequences and any
Issuing Lender shall return to Company any amounts held as cash collateral in
respect of the amounts described in clause (b) above; but such action shall
not affect any subsequent Event of Default or Potential Event of Default or
impair any right consequent thereon.
SECTION 8.
Agents
8.1 Appointment
Bankers is hereby appointed Administrative Agent and Collateral
Agent hereunder by each Lender, CIBC is hereby appointed Documentation Agent
and NationsBank is hereby appointed Syndication Agent. Each Lender hereby
authorizes each Agent to act hereunder and under the other instruments and
agreements referred to herein (including, without limitation, the Collateral
Documents) as its agent hereunder and thereunder. Each Agent agrees to act as
such upon the express conditions contained in this Section 8 and in the
Collateral Documents. The provisions of this Section 8 are solely for the
benefit of Agents and Lenders, and Company shall not have any rights as a
third party beneficiary of any of the provisions hereof. In performing its
functions and duties under this Agreement, each Agent shall act solely as agent
of Lenders and does not assume and shall not be deemed to have assumed any
obligation towards or relationship of agency or trust with or for Company or
any of its Subsidiaries.
8.2 Powers; General Immunity
A. Duties Specified. Each Lender irrevocably authorizes each
Agent to take such action on such Lender's behalf and to exercise such powers
hereunder and under the other instruments and agreements referred to herein
(including, without limitation, the Collateral Documents) as are specifically
delegated to such Agent by the terms hereof and thereof, together with such
powers as are reasonably incidental thereto. Each Agent shall have only those
duties and responsibilities that are expressly specified in this Agreement and
the Collateral Documents and it may perform such duties by or through its
agents or employees. The duties of each Agent shall be mechanical and
administrative in nature; each Agent shall not have by reason of this
Agreement a fiduciary relationship in respect of any Lender; and nothing in
this Agreement, expressed or implied, is intended to or shall be so construed
as to impose upon any Agent any obligations in respect of this Agreement or
the other instruments and agreements referred to herein except as expressly
set forth herein or therein.
B. No Responsibility for Certain Matters. Each Agent shall not
be responsible to any Lender for the execution, effectiveness, genuineness,
validity, enforceability, collectability or sufficiency of this Agreement, any
other Loan Document or the Notes or Letters of Credit, or for any
representations, warranties, recitals or statements made herein or therein or
made 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 any Agent to Lenders or by or on
behalf of Company to any 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 Letters of Credit or of the existence or
possible existence of any Event of Default or Potential Event of Default.
Anything contained in this Agreement to the contrary notwithstanding Agent
shall not have any liability arising from confirmations of the amount of
outstanding Loans.
C. Exculpatory Provisions. No Agent and none of their
respective officers, directors, employees or agents shall be liable to Lenders
for any action taken or omitted hereunder or in connection herewith
(including, without limitation, any act or omission under the Collateral
Documents) unless caused by its or their gross negligence or willful
misconduct. If any Agent shall request instructions from Lenders with respect
to any act or action (including the failure to take an action) in connection
with this Agreement, such Agent shall be entitled to refrain from such act or
taking such action unless and until such Agent shall have received
instructions from Requisite Lenders or, to the extent such action requires the
consent of all Lenders pursuant to the express terms of this Agreement, from
all Lenders. Without prejudice to the generality of the foregoing, (i) each
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any communication, instrument or document believed by it to be genuine and
correct and to have been signed or sent by the proper person or persons, and
shall be entitled to rely and shall be protected in relying on opinions and
judgments of attorneys (who may be attorneys for Company), accountants,
experts and other professional advisors selected by it; and (ii) no Lender
shall have any right of action whatsoever against any Agent as a result of
such Agent acting or (where so instructed) refraining from acting under this
Agreement or the other instruments and agreements referred to herein in
accordance with the instructions of Requisite Lenders or all Lenders, as
applicable. Each Agent shall be entitled to refrain from exercising any
power, discretion or authority vested in it under this Agreement or the other
instruments and agreements referred to herein unless and until it has obtained
the instructions of Requisite Lenders or all Lenders, as applicable.
D. Agents Entitled to Act as Lenders. The agency hereby
created shall in no way impair or affect any of the rights and powers of, or
impose any duties or obligations upon, any Agent in its individual capacity as
a Lender hereunder. With respect to its participation in the Loans and
Letters of Credit, each Agent shall have the same rights and powers hereunder
as any other Lender and may exercise the same as though it were not performing
the duties and functions delegated to it hereunder and the term "Lender" or
"Lenders" or any similar term shall, unless the context clearly otherwise
indicates, include each Agent in its individual capacity. Each Agent and each
of their respective Affiliates may accept deposits from, lend money to and
generally engage in any kind of banking, trust, financial advisory or other
business with Company or any Affiliate of Company as if it were not performing
the duties specified herein, and may accept fees and other consideration from
Company for services in connection with this Agreement and otherwise without
having to account for the same to Lenders.
8.3 Representations and Warranties; No Responsibility For Appraisal of
Creditworthiness
Each Lender represents and warrants that it has made its own
independent investigation of the financial condition and affairs of Company in
connection with the making of the Loans hereunder and has made and shall
continue to make its own appraisal of the creditworthiness of Company. No
Agent shall have any duty or responsibility either initially or on a
continuing basis to make any such investigation or any such appraisal on
behalf of Lenders or, unless expressly required hereunder, to provide any
Lender with any credit or other information with respect thereto whether
coming into its possession before the making of the Loans or any time or times
thereafter and no Agent shall further have any responsibility with respect to
the accuracy of or the completeness of the information provided to Lenders.
8.4 Right to Indemnity
Each Lender, proportionately to its Commitment, severally agrees
to indemnify each Agent to the extent such Agent shall not have been
reimbursed by Company, for and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses
(including, without limitation, counsel fees and disbursements) or
disbursements of any kind or nature whatsoever which may be imposed on,
incurred by or asserted against such Agent in performing its duties hereunder
in its capacity as Administrative Agent, Collateral Agent, Documentation Agent
or Syndication Agent, as applicable, in any way relating to or arising out of
this Agreement; provided that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from such Agent's gross
negligence or willful misconduct. If any indemnity furnished to such Agent
for any purpose shall, in the opinion of such Agent, be insufficient or become
impaired, such Agent may call for additional indemnity and cease, or not
commence, to do the acts indemnified against until such additional indemnity
is furnished.
8.5 Registered Persons Treated as Owner
Administrative Agent may deem and treat the Persons listed as
Lenders in the Register as the owner of the corresponding Loan listed therein
for all purposes hereof unless and until a written notice of the assignment or
transfer thereof shall have been filed with Administrative Agent and recorded
in the Register. Any request, authority or consent of any person or entity
who, at the time of making such request or giving such authority or consent,
is listed in the Register as a Lender shall be conclusive and binding on any
subsequent holder, transferee or assignee of the corresponding Loan.
8.6 Successor Agents
Any Agent may resign at any time by giving 30 days' prior written
notice thereof to Lenders and Company, and any Agent may be removed at any
time with or without cause by an instrument or concurrent instruments in
writing delivered to Company and such Agent and signed by Requisite Lenders.
Upon any such notice of resignation or any such removal, Requisite Lenders
shall have the right, upon five days' notice to Company, to appoint a
successor Agent. Upon the acceptance of any appointment as an Agent hereunder
by a successor Agent, that successor Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the
retiring or removed Agent, and the retiring or removed Agent shall be
discharged from its duties and obligations under this Agreement. After any
retiring or removed Agent's resignation or removal hereunder as Agent, the
provisions of this Section 8 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Agreement.
8.7 Loan Guaranties and Collateral Documents
A. Authorization of Agents. Each Lender hereby authorizes the
Collateral Agent to enter into the Loan Guaranties and the Collateral
Documents; provided that Collateral Agent shall not enter into or consent to
any amendment, modification, termination or waiver of any provision contained
in any Loan Guaranty or Collateral Document without the prior consent of
Requisite Lenders or, to the extent required by subsection 9.6A(ii), all of
the Lenders. Each Lender agrees that no Lender shall have any right
individually to seek or to enforce any Loan Guaranty or to realize upon the
security granted by any Collateral Documents, it being understood and agreed
that such rights and remedies may be exercised by Collateral Agent for the
benefit of Lenders upon the terms of the Loan Guaranties and the Collateral
Documents. Each Lender and Agent hereby authorizes Collateral Agent to
release Collateral as permitted or required under this Agreement or the
Collateral Documents, and agrees that a certificate executed by Collateral
Agent evidencing such release of Collateral shall be conclusive evidence of
such release as to any third party.
B. Conflict in Loan Documents. If there is any conflict
between this Agreement and any other Loan Document, this Agreement and such
other Loan Document shall be interpreted and construed, if possible, so as to
avoid or minimize such conflict but, to the extent (and only to the extent) of
such conflict, this Agreement shall prevail and control.
SECTION 9.
Miscellaneous
9.1 Assignments and Participations in Loans and Letters of Credit.
A. General. Subject to subsection 9.1B, each Lender shall have
the right at any time to (i) sell, assign or transfer to any Eligible
Assignee, or (ii) sell participations to any Person in, all or any part of its
Commitment or any Loan or Loans made by it or its Letters of Credit or
participations therein or any other interest herein or in any other
Obligations owed to it; provided that no such sale, assignment, transfer or
participation shall, without the consent of Company, require Company to file a
registration statement with the Securities and Exchange Commission or apply to
qualify such sale, assignment, transfer or participation under the securities
laws of any state; provided, further that no such sale, assignment or transfer
described in clause (i) above shall be effective unless and until an
Assignment Agreement substantially in the form of Exhibit XII annexed hereto
effecting such sale, assignment or transfer shall have been accepted by
Administrative Agent and recorded in the Register as provided in subsection
9.1B(ii); and provided, further that no such sale, assignment, transfer or
participation of any Letter of Credit or any participation therein may be made
separately from a sale, assignment, transfer or participation of a
corresponding interest in the Commitment and the Loans of the Lender effecting
such sale, assignment, transfer or participation. Except as otherwise provided
in this subsection 9.1, no Lender shall, as between Company and such Lender,
be relieved of any of its obligations hereunder as a result of any sale,
assignment or transfer of, or any granting of participations in, all or any
part of its Commitment or the Loans, the Letters of Credit or participations
therein, or the other Obligations owed to such Lender.
B. Assignments.
(i) Amounts and Terms of Assignments. Each Commitment,
Loan, Letter of Credit or participation therein, or other Obligation may
(a) be assigned by any Lender in an amount not less than $5,000,000 or
the entire remaining amount of its Loans and Commitments and Letters of
Credit if less than $5,000,000, provided that assignments by any Lender
to an Affiliate of such Lender or to any other Lender shall not be
subject to the limitations of this clause (a) so long as such
assignments to Affiliates are made in accordance with clause (b) below,
or (b) be assigned to any other Eligible Assignee with the giving of
notice to Company and Administrative Agent and with the prior consent of
Company and, in the case of assignments by Lenders other than the
Administrative Agent, consent of Administrative Agent (which consent of
Company and Administrative Agent shall not be unreasonably withheld or
delayed). To the extent of any such assignment in accordance with
either clause (a) or (b) above, the assigning Lender shall be relieved
of its obligations with respect to its Commitment, Loans, Letters of
Credit or participations therein, or other Obligations or the portion
thereof so assigned. The parties to each such assignment shall execute
and deliver to Administrative Agent, for its acceptance and recording in
the Register, an Assignment Agreement, together with a processing and
recordation fee of $3,500 and such forms, certificates or other
evidence, if any, with respect to United States federal income tax
withholding matters as the assignee under such Assignment Agreement may
be required to deliver to Administrative Agent pursuant to subsection
2.8B. Upon such execution, delivery, and acceptance and recordation,
from and after the effective date specified in such Assignment
Agreement, (y) the assignee thereunder shall be a party hereto and, to
the extent that rights and obligations hereunder have been assigned to
it pursuant to such Assignment Agreement, shall have the rights and
obligations of a Lender hereunder and (z) the assigning Lender
thereunder shall, to the extent that rights and obligations hereunder
have been assigned by it pursuant to such Assignment Agreement,
relinquish its rights (other than any rights which survive the
termination of this Agreement under subsection 9.9B) and be released
from its obligations under this Agreement (and, in the case of an
Assignment Agreement covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall not relinquish its
rights which survive the termination of this Agreement under subsection
9.9B; provided that, anything contained in any of the Loan Documents to
the contrary notwithstanding, if such Lender is the Issuing Lender with
respect to any outstanding Letters of Credit such Lender shall continue
to have all rights and obligations of an Issuing Lender with respect to
such Letters of Credit until the cancellation or expiration of such
Letters of Credit and the reimbursement of any amounts drawn
thereunder). The Commitments hereunder shall be modified to reflect the
Commitment of such assignee and any remaining Commitment of such
assigning Lender and, if any such assignment occurs after the issuance
of the Notes hereunder, the assigning Lender shall, upon the
effectiveness of such assignment or as promptly thereafter as
practicable, surrender its Note to Administrative Agent for
cancellation, and thereupon Company shall issue and deliver to
Administrative Agent new Notes, substantially in the form of Exhibit III
annexed hereto with appropriate insertions, to be delivered to the
assignee and, if applicable, to the assigning Lender, which new Notes
will reflect the new Commitments of the assignee and, if applicable, the
assigning Lender.
(ii) Acceptance by Administrative Agent; Recordation in
Register. Upon its receipt of an Assignment Agreement executed by an
assigning Lender and an assignee representing that it is an Eligible
Assignee, together with the processing and recordation fee referred to
in subsection 9.1B(i) and any forms, certificates or other evidence with
respect to United States federal income tax withholding matters that such
assignee may be required to deliver to Administrative Agent pursuant to
subsection 2.8B, Administrative Agent shall, if Administrative Agent and
Company have consented to the assignment evidenced thereby (to the
extent such consent is required pursuant to subsection 9.1B(i)), (a)
accept such Assignment Agreement by executing a counterpart thereof as
provided therein (which acceptance shall evidence any required consent of
Administrative Agent to such assignment), (b) record the information
contained therein in the Register, and (c) give prompt notice thereof to
Company. Administrative Agent shall maintain a copy of each Assignment
Agreement delivered to and accepted by it as provided in this subsection
9.1B(ii).
C. Participations. The amount and number of participations
shall not be limited. The holder of any participation, other than an
Affiliate of the Lender granting such participation, shall not be entitled to
require such Lender to take or omit to take any action hereunder except action
directly affecting (i) the extension of the scheduled final maturity date of or
interest on any Loan allocated to such participation or (ii) the reduction of
any fees related thereto allocated to such participation, or (iii) a reduction
of the principal amount of or the rate of interest payable on any Loan
allocated to such participation or any fees related thereto, and all amounts
payable by Company hereunder (including amounts payable to such Lender pursuant
to subsections 2.6B, 2.6E, 2.6H, 2.7, 2.8 and 2.9G) shall be determined as if
such Lender had not sold such participation. Company and each Lender hereby
acknowledge and agree that, solely for purposes of subsections 2.6, 2.7, 9.4
and 9.5, (a) any participation will give rise to a direct obligation of
Company to the participant and (b) the participant shall be considered to be a
"Lender".
D. Assignments to Federal Reserve Banks. In addition to the
assignments and participations permitted under the foregoing provisions of
this subsection 9.1, any Lender may assign and pledge all or any portion of
its Loans, the other Obligations owed to such Lender, and its Note to any
Federal Reserve Bank as collateral security pursuant to Regulation A of the
Board of Governors of the Federal Reserve System and any operating circular
issued by such Federal Reserve Bank; provided that (i) no Lender shall, as
between Company and such Lender, be relieved of any of its obligations
hereunder as a result of any such assignment and pledge and (ii) in no event
shall such Federal Reserve Bank be considered to be a "Lender" or be entitled
to require the assigning Lender to take or omit to take any action hereunder.
E. Information. Each Lender may furnish any information
concerning Company and its Subsidiaries in the possession of that Lender from
time to time to assignees and participants (including prospective assignees
and participants); provided, that each Lender shall obtain the agreement of
such prospective assignees and participants to maintain confidentiality of
such confidential information in accordance with subsection 5.5B.
F. Representations of Lenders. Each Lender listed on the
signature pages hereof hereby represents and warrants (i) that it is an
Eligible Assignee described in clause (A) of the definition thereof; (ii) that
it has experience and expertise in the making of loans such as the Loans; and
(iii) that it will make its Loans for its own account in the ordinary course
of its business and without a view to distribution of such Loans within the
meaning of the Securities Act or the Exchange Act or other federal securities
laws (it being understood that, subject to the provisions of this subsection
9.1, the disposition of such Loans or any interests therein shall at all times
remain within its exclusive control). Each Lender that becomes a party hereto
pursuant to an Assignment Agreement shall be deemed to agree that the
representations and warranties of such Lender contained in Section 2(c) of
such Assignment Agreement are incorporated herein by this reference.
9.2 Expenses
Whether or not the transactions contemplated hereby shall be
consummated, Company agrees to pay promptly (i) all the actual and reasonable
costs and expenses of preparation of the Loan Documents and all the costs of
furnishing all opinions by counsel for Company (including without limitation
any opinions requested by Lenders as to any legal matters arising hereunder),
and of Company's performance of and compliance with all agreements and
conditions contained herein on its part to be performed or complied with; (ii)
the reasonable fees, expenses and disbursements of counsel to Administrative
Agent, in connection with the negotiation, preparation, execution and
administration of the Loan Documents, the Loans and Letters of Credit
hereunder, and any amendments and waivers hereto or thereto; (iii) all the
actual costs and expenses of creating and perfecting Liens in favor of Lenders
pursuant to any Loan Document, including filing and recording fees and
expenses, title insurance, fees and expenses of counsel for providing such
opinions as Lenders may reasonably request and reasonable fees and expenses of
legal counsel to Administrative Agent; (iv) all other actual and reasonable
costs and expenses incurred by Agents in connection with the syndication of the
Loans and Letters of Credit and the negotiation, preparation and execution of
the Loan Documents and the transactions contemplated hereby; and (v) after the
occurrence of an Event of Default, all costs and expenses (including
reasonable attorneys' fees, including allocated costs of internal counsel, and
costs of settlement) incurred by Lenders in enforcing any Obligations of or in
collecting any payments due from Company or any Guarantor hereunder or under
the Letters of Credit or the Notes or any of the other Loan Documents by
reason of such Event of Default or in connection with any refinancing or
restructuring of the credit arrangements provided under this Agreement in the
nature of a "work-out" or of any insolvency or bankruptcy proceedings.
9.3 Indemnity
In addition to the payment of expenses pursuant to subsection 9.2,
whether or not the transactions contemplated hereby shall be consummated,
Company agrees to indemnify, pay and hold harmless Lenders and any holder of
any of the Notes, and the officers, directors, employees, agents, and
affiliates of Lenders and such holders (collectively called the "Indemnitees")
from and against, any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, claims, costs, expenses and
disbursements of any kind or nature whatsoever (including, without limitation,
the reasonable fees and disbursements of counsel for such Indemnitees in
connection with any investigative, administrative or judicial proceeding
commenced or threatened, whether or not such Indemnitee shall be designated a
party thereto), that may be imposed on, incurred by, or asserted against that
Indemnitee, in any manner relating to or arising out of this Agreement or the
other Loan Documents, the statements contained in the commitment letters
delivered by any Lender, any activity related to the Refinancings, Lenders'
agreement to make the Loans and to issue Letters of Credit hereunder and
Lenders' agreements to purchase participations therein as provided herein, or
the use or intended use of the Letters of Credit or the proceeds of any of the
Loans hereunder (the "indemnified liabilities"); provided that Company shall
have no obligation to an Indemnitee hereunder with respect to indemnified
liabilities arising from the gross negligence or willful misconduct of that
Indemnitee. To the extent that the undertaking to indemnify, pay and hold
harmless set forth in the preceding sentence may be unenforceable because it
is violative of any law or public policy, Company shall contribute the maximum
portion that it is permitted to pay and satisfy under applicable law, to the
payment and satisfaction of all indemnified liabilities incurred by the
Indemnitees or any of them.
9.4 Set Off
In addition to any rights now or hereafter granted under
applicable law and not by way of limitation of any such rights, upon the
occurrence and during the continuation of any Event of Default, each Lender
and each subsequent holder of any Note is hereby authorized by Company at any
time or from time to time, without notice to Company, or to any other Person,
any such notice being hereby expressly waived, to set off and to appropriate
and to apply any and all deposits (general or special, including, but not
limited to, Indebtedness evidenced by certificates of deposit, whether matured
or unmatured but not including trust accounts) and any other Indebtedness at
any time held or owing by that Lender or that subsequent holder to or for the
credit or the account of Company, against and on account of the obligations
and liabilities of Company to that Lender or that subsequent holder under this
Agreement and such Note or with respect to the Letters of Credit, including,
but not limited to, all claims of any nature or description arising out of or
connected with this Agreement or with respect to the Letters of Credit, the
Notes or any other Loan Document, irrespective of whether or not (a) that
Lender or that subsequent holder shall have made any demand hereunder or (b)
the principal of or the interest on the Loans, Notes or any Obligations with
respect to the Letters of Credit, and other amounts due hereunder shall have
become due and payable pursuant to Section 7 and although said obligations and
liabilities, or any of them, may be contingent or unmatured.
9.5 Ratable Sharing
Each Lender and each subsequent holder by acceptance of a Note
agree among themselves that if any of them shall, through the exercise of any
right of counterclaim, set-off, banker's lien or otherwise or as adequate
protection of a deposit treated as cash collateral under the Bankruptcy Code,
receive payment or reduction of a proportion of the aggregate amount of
principal and interest then due with respect to the Notes held by that Lender
or holder, the amount then due to that Lender or holder with respect to any
Letter of Credit or any participation therein or amounts due to that Lender or
holder in respect of facility fees or commitment fees hereunder (collectively,
the "Aggregate Amounts Due" to such Lender or holder), which is greater than
the proportion received by any other Lender or holder of the Notes in respect
to the Aggregate Amounts Due to such other Lender or holder, then the Lender
or holder of the Notes receiving such proportionately greater payment shall
(y) notify each other Lender and Administrative Agent of such receipt and (z)
purchase participations (which it shall be deemed to have done simultaneously
upon the receipt of such payment) in the Aggregate Amounts Due to the other
Lenders and holders so that all such recoveries of Aggregate Amounts Due shall
be shared by the Lenders and holders of the Notes in proportion to the
Aggregate Amounts Due them; provided that if all or part of such
proportionately greater payment received by such purchasing Lender or holder
is thereafter recovered from such Lender or holder, those purchases shall be
rescinded and the purchase prices paid for such participations shall be
returned to that Lender or holder to the extent of such recovery, but without
interest. Company expressly consents to the foregoing arrangement and agrees
that any holder of a participation so purchased and any other subsequent
holder of a participation in any Note or Letter of Credit otherwise acquired
may exercise any and all rights of banker's lien, set-off or counterclaim with
respect to any and all monies owing by Company to that holder as fully as if
that holder were a holder of such a Note or Letter of Credit in the amount of
the participation held by that holder.
9.6 Amendments and Waivers
A. No amendment, modification, termination or waiver of any
provision of this Agreement or of the Notes, and no consent to any departure
by Company therefrom, shall in any event be effective without the written
concurrence of Requisite Lenders; provided that no such amendment,
modification, termination, waiver or consent shall, without the consent of each
Lender (with Obligations directly affected in the case of the following clause
(i)): (i) extend the scheduled final maturity of any Loan or Note, or extend
the stated expiration date of any Letter of Credit beyond the Maturity Date,
or reduce the rate of interest (other than any waiver of any increase in the
interest rate applicable to any of the Loans pursuant to subsection 2.2E) or
fees thereon, or extend the time of payment of interest or fees thereon, or
reduce the principal amount thereof, (ii) release all or substantially all of
the Collateral or all or substantially all of the Xxxx-Xxxxxx Guarantor
Subsidiaries from the Xxxx-Xxxxxx Subsidiary Guaranty except as expressly
provided in the Loan Documents, (iii) amend, modify, terminate or waive any
provision of this subsection 9.6, (iv) reduce the percentage specified in the
definition of Requisite Lenders (it being understood that, with the consent of
the Requisite Lenders, additional extensions of credit pursuant to this
Agreement may be included in the determination of the Requisite Lenders on
substantially the same basis as the extensions of Commitments are included on
the Closing Date) or (v) consent to the assignment or transfer by Company of
any of its rights and obligations under this Agreement; provided further that
no such amendment, modification, termination or waiver shall (1) increase the
Commitments of any Lender over the amount thereof then in effect without the
consent of such Lender (it being understood that amendments, modifications or
waivers of conditions precedent, covenants, Potential Events of Default or
Events of Default or of a mandatory reduction in the Commitments shall not
constitute an increase of the Commitment of any Lender, and that an increase
in the available portion of any Commitment of any Lender shall not constitute
an increase in the Commitment of such Lender); (2) no amendment, modification,
termination or waiver relating to the obligations of Lenders relating to the
purchase of participations in Letters of Credit shall be effective without the
written concurrence of each Issuing Lender having a Letter of Credit then
outstanding or which has not been reimbursed for a drawing under a Letter of
Credit issued by Administrative Agent and of Administrative Agent; or (3)
without the consent of Agents, amend, modify, terminate or waive any provision
of Section 8 as the same applies to Agents or of any other provision of this
Agreement as the same applies to the rights or obligations of Agents.
B. If, in connection with any proposed amendment, modification,
termination or waiver of any of the provisions of this Agreement or the Notes
as contemplated by clauses (i) through (v) of the first proviso of subsection
9.6A, the consent of the Requisite Lenders is obtained but the consent of one
or more of such other Lenders whose consent is required is not obtained, then
Company shall have the right, so long as all non-consenting Lenders whose
individual consent is required are treated as described in either clause (i)
or (ii) below, to either (i) replace each such non-consenting Lender or
Lenders with one or more Replacement Lenders pursuant to subsection 2.10 so
long as at the time of such replacement, each such Replacement Lender consents
to the proposed amendment, modification, termination or waiver, or (ii)
terminate such non-consenting Lender's Commitments and repay in full its
outstanding Loans in accordance with subsections 2.4A(i)(b) and 2.4G(ii);
provided that unless the Commitments that are terminated and the Loans that
are repaid pursuant to the preceding clause (ii) are immediately replaced in
full at such time through the addition of new Lenders or the increase of the
Commitments and/or outstanding Loans of existing Lenders (who in each case must
specifically consent thereto), then in the case of any action pursuant to the
preceding clause (ii), the Requisite Lenders (determined before giving effect
to the proposed action) shall specifically consent thereto; provided further
that Company shall not have the right to terminate such non-consenting
Lender's Commitment and repay in full its outstanding Loans pursuant to clause
(ii) of this subsection 9.6B if, immediately after the termination of such
Lender's Commitment in accordance with subsection 2.4G(ii), the aggregate
principal amount of outstanding Loans of all Lenders plus the Letter of Credit
Usage would exceed the Commitments of all Lenders; provided still further that
Company shall not have the right to replace a Lender solely as a result of the
exercise of such Lender's rights (and the withholding of any required consent
by such Lender) pursuant to the second proviso to subsection 9.6A.
C. Administrative Agent may, but shall have no obligation to,
with the concurrence of any Lender, execute amendments, modifications, waivers
or consents on behalf of that Lender. Any waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
it was given. No notice to or demand on Company in any case shall entitle
Company to any other or further notice or demand in similar or other
circumstances. Any amendment, modification, termination, waiver or consent
effected in accordance with this subsection 9.6 shall be binding upon each
Lender at the time outstanding, each future Lender and, if signed by Company,
on Company.
9.7 Independence of Covenants
All covenants hereunder shall be given independent effect so that
if a particular action or condition is not permitted by any of such covenants,
the fact that it would be permitted by an exception to, or be otherwise within
the limitations of, another covenant shall not avoid the occurrence of an
Event of Default or Potential Event of Default if such action is taken or
condition exists.
9.8 Notices
Unless otherwise specifically provided herein, any notice or other
communication herein required or permitted to be given shall be in writing and
may be personally served, telecopied, telexed or sent by United States mail or
courier service and shall be deemed to have been given when delivered in
person, receipt of telecopy or telex or four Business Days after depositing it
in the United States mail, registered or certified, with postage prepaid and
properly addressed; provided that notices to any Agent shall not be effective
until received. For the purposes hereof, the addresses of the parties hereto
(until notice of a change thereof is delivered as provided in this subsection
9.8) shall be as set forth under each party's name on the signature pages
hereof.
9.9 Survival of Warranties and Certain Agreements
A. All agreements, representations and warranties made herein
shall survive the execution and delivery of this Agreement, the making of the
Loans hereunder and the execution and delivery of the Notes.
B. Notwithstanding anything in this Agreement or implied by law
to the contrary, the agreements of Company set forth in subsections 2.6B,
2.6C, 2.6E, 2.6H, 2.7, 2.8, 2.9E, 2.9G, 2.9H, 4.13, 5.5B, 9.2, 9.3 and 9.4 and
the agreements of Lenders set forth in subsections 8.2C, 8.4, 9.4 and 9.5
shall survive the payment of the Loans and the Notes, the expiration of the
Letters of Credit, the termination of a non-consenting Lender's Commitment
pursuant to subsection 9.6B, and the termination of this Agreement.
9.10 Failure or Indulgence Not Waiver; Remedies Cumulative
No failure or delay on the part of any Lender or any holder of any
Note in the exercise of any power, right or privilege hereunder or under the
Notes shall impair such power, right or privilege or be construed to be a
waiver of any default or acquiescence therein, nor shall any single or partial
exercise of any such power, right or privilege preclude other or further
exercise thereof or of any other right, power or privilege. All rights and
remedies existing under this Agreement, the Notes or the Letters of Credit are
cumulative to, and not exclusive of, any rights or remedies otherwise
available.
9.11 Severability
In case any provision in or obligation under this Agreement, the
Notes or the Letters of Credit shall be invalid, illegal or unenforceable in
any jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
9.12 Obligations Several; Independent Nature of Lenders' Rights
The obligation of each Lender hereunder is several, and no Lender
shall be responsible for the obligation or commitment of any other Lender
hereunder. Nothing contained in this Agreement and no action taken by Lenders
pursuant hereto shall be deemed to constitute Lenders to be a partnership, an
association, a joint venture or any other kind of entity. The amounts payable
at any time hereunder to each Lender shall be a separate and independent debt,
and each Lender shall be entitled to protect and enforce its rights arising
out of this Agreement and it shall not be necessary for any other Lender to be
joined as an additional party in any proceeding for such purpose.
9.13 Headings
Section and subsection headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of
this Agreement for any other purpose or be given any substantive effect.
9.14 APPLICABLE LAW
THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE
OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
9.15 Successors and Assigns; Subsequent Holders of Notes
This Agreement shall be binding upon the parties hereto and their
respective successors and assigns and shall inure to the benefit of the
parties hereto and the successors and assigns of Lenders. The terms and
provisions of this Agreement shall inure to the benefit of any assignee or
transferee of the Notes, and in the event of such transfer or assignment, the
rights and privileges herein conferred upon Lenders shall automatically extend
to and be vested in such transferee or assignee, all subject to the terms and
conditions hereof. Company's rights or any interest therein hereunder may not
be assigned without the written consent of all Lenders. Lenders' rights of
assignment are subject to subsection 9.1.
9.16 CONSENT TO JURISDICTION AND SERVICE OF PROCESS; WAIVER OF JURY
TRIAL
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST COMPANY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, ANY NOTE OR ANY OBLIGATION MAY BE BROUGHT IN ANY
STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF NEW YORK AND
BY EXECUTION AND DELIVERY OF THIS AGREEMENT COMPANY ACCEPTS FOR ITSELF AND IN
CONNECTION WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE
NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF
FORUM NON CONVENIENS AND ANY OBJECTION TO THE VENUE OF ANY SUCH PROCEEDING,
AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN
CONNECTION WITH THIS AGREEMENT, SUCH NOTE OR SUCH OBLIGATION. ALL PARTIES TO
THIS AGREEMENT IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY NOTE OR ANY
OBLIGATION. COMPANY DESIGNATES AND APPOINTS MLCP, ATTENTION: PRESIDENT, AND
SUCH OTHER PERSONS AS MAY HEREAFTER BE SELECTED BY COMPANY IRREVOCABLY
AGREEING IN WRITING TO SO SERVE, AS ITS AGENT TO RECEIVE ON ITS BEHALF SERVICE
OF ALL PROCESS IN ANY SUCH PROCEEDINGS IN ANY SUCH COURT, SUCH SERVICE BEING
HEREBY ACKNOWLEDGED BY COMPANY TO BE EFFECTIVE AND BINDING SERVICE IN EVERY
RESPECT. A COPY OF ANY SUCH PROCESS SO SERVED SHALL BE MAILED BY REGISTERED
MAIL TO COMPANY AT ITS ADDRESS PROVIDED IN THE APPLICABLE SIGNATURE PAGE
HERETO, EXCEPT THAT UNLESS OTHERWISE PROVIDED BY APPLICABLE LAW, ANY FAILURE TO
MAIL SUCH COPY SHALL NOT AFFECT THE VALIDITY OF SERVICE OF PROCESS. IF ANY
AGENT APPOINTED BY COMPANY REFUSES TO ACCEPT SERVICE, COMPANY HEREBY AGREES
THAT SERVICE UPON IT BY MAIL SHALL CONSTITUTE SUFFICIENT NOTICE. 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
COMPANY IN THE COURTS OF ANY OTHER JURISDICTION.
COMPANY, EACH AGENT AND EACH LENDER HEREBY MUTUALLY AGREE TO WAIVE
THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED
UPON OR ARISING OUT OF THIS AGREEMENT, ANY OF THE LOAN DOCUMENTS, OR ANY
DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION
AND THE LENDER/
BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. The scope of this waiver is
intended to be all-encompassing of any and all disputes that may be filed in
any court and that relate to the subject matter of this transaction, including
without limitation, contract claims, tort claims, breach of duty claims, and
all other common law and statutory claims. Company, each Agent and each
Lender each acknowledge that this waiver is a material inducement to enter
into a business relationship, that each has already relied on the waiver in
entering into this Agreement, and that each will continue to rely on the
waiver in their related future dealings. Company, each Agent and each Lender
further warrant and represent that each has reviewed this waiver with its
legal counsel, and that each knowingly and voluntarily waives its jury trial
rights following consultation with legal counsel. THIS WAIVER IS IRREVOCABLE,
MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE
WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT, THE LOAN DOCUMENT OR ANY OTHER DOCUMENTS OR
AGREEMENTS RELATING TO THE LOANS OR THE LETTERS OF CREDIT. In the event of
litigation, this Agreement may be filed as a written consent to a trial by the
court.
9.17 Counterparts; Effectiveness
This Agreement and any amendments, waivers, consents, or
supplements may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so executed and
delivered shall be deemed an original, but all such counterparts, together
shall constitute but one and the same instrument. This Agreement shall become
effective upon the execution of a counterpart hereof by each of the parties
hereto and written or telephonic notification of such execution and
authorization of delivery thereof has been received by Company and
Administrative Agent.
9.18 Certain Agreements
Lenders agree, for the benefit of the holders from time to time of
trade receivables backed certificates issued in connection with the Trade
Receivables Facility (the "Receivables Certificates"), not to:
(a) challenge the transfers of receivables and related assets
from the sellers under such Trade Receivables Facilities (the "Sellers")
to BPS Financial Services, Inc. (the "Transferor"), whether on the
grounds that such sales were disguised financings or fraudulent
conveyances or otherwise, so long as such transfers are carried out in
all material respects in accordance with the Trade Receivables Facility;
(b) assert that the Transferor and any Seller should be
substantively consolidated; or
(c) institute or join any other Person in instituting any
bankruptcy or other insolvency proceeding against the Transferor so long
as any of the Receivables Certificates shall be outstanding or there
shall not have lapsed one year plus one day since the last day on which
any of the Receivables Certificates shall have been outstanding.
[Remainder of page intentionally left blank]
Witness the due execution hereof by the respective duly authorized
officers of the undersigned as of the date first written above.
XXXX-XXXXXX SECURITY CORPORATION
By: /s/ Xxxxx X. Xxxxxx
-------------------
Title: Treasurer
Notice Address:
Xxxx-Xxxxxx Security Corporation
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
LENDERS:
BANKERS TRUST COMPANY,
individually and as Administrative Agent
By: /s/ Xxxx Xx Xxxxx
-----------------
Title: Senior Vice President
Notice Address:
Bankers Trust Company
One Bankers Trust Plaza
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxx
with a copy to
Bankers Trust Company
000 Xxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx
CIBC INC.,
individually and as Documentation Agent
By: /s/ Xxxx Xxxxxx
-----------------------
Title: Authorized Signatory
Notice Address:
CIBC Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx
With a copy to:
CIBC Inc.
000 Xxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxx
NATIONSBANK, N.A., individually and as
Syndication Agent
By: /s/ Xxxx Xxxxx Xxxx
-------------------
Title: Vice President
Notice Address:
NationsBank, N.A.
NC 1-001-15-04
000 X. Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxxx Xxxxxx
ABN AMRO BANK, N.V., CHICAGO BRANCH
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Title: Assistant Vice President
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Title: Group Vice President
Notice Address:
ABN AMRO Bank, N.V., Chicago Branch
000 X. XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
ARAB BANKING CORPORATION
By: /s/ Xxxxxxx Xxxxxx
------------------
Title: Deputy General Manager
Notice Address:
Arab Banking Corporation
000 Xxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx XxXxxxxx
BANK OF HAWAII
By: /s/ Xxxxx X. Xxxxxx
-------------------
Title: Vice President
Notice Address:
Bank of Hawaii
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxx
THE BANK OF NEW YORK
By: /s/ Xxxx X. Xxxxx, Xx.
----------------------
Title: Vice President
Notice Address:
The Bank of New York
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx
BANQUE PARIBAS
By: /s/ Xxxxxxxx X. Xxxx
--------------------
Title: Vice President
Branch Manager
By: /s/ Xxxx X. Xxxxx
--------------------
Title: Asst. Vice President
Notice Address:
Banque Paribas
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxx
CAISSE NATIONALE DE CREDIT AGRICOLE
By: /s/ Xxxx Xxxxxx
---------------
Title: Senior Vice President
Branch Manager
Notice Address:
Caisse Nationale de Credit Agricole
00 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxx
CITY NATIONAL BANK
By: /s/ Xxxx Xxxxx
--------------
Title: Vice President
Notice Address:
City National Bank
000 Xxxxx Xxxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxx
THE FUJI BANK, LIMITED
CHICAGO BRANCH
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Title: Joint General Manager
Notice Address:
The Fuji Bank, Limited
Chicago Branch
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxx
THE LONG-TERM CREDIT BANK OF JAPAN,
LTD., CHICAGO BRANCH
By: /s/ Xxxxx X. Xxxxx
------------------
Title: Vice President & Deputy
General Manager
Notice Address:
The Long-Term Credit Bank of Japan, Ltd.,
Chicago Branch
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
MERCANTILE BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx Xxxxxx
----------------
Title: Vice President
Notice Address:
Mercantile Bank National Association
0 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxx
XXXXXX BANK
By: /s/ Xxxx X. Xxxxxx
------------------
Title: Vice President
By: /s/ Xxxxx Xxxxxx
------------------
Title: Vice President
Notice Address:
Xxxxxx Bank
000 Xxxxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxxx
THE NIPPON CREDIT BANK, LTD.
By: /s/ Xxxxx X. Xxxx
-----------------
Title: Asst. Vice President
Notice Address:
The Nippon Credit Bank, Ltd.
000 Xxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxx
TORONTO DOMINION (TEXAS), INC.
By: /s/ Xxxx Xxxxxxx
------------------
Title: Vice President
Notice Address:
Toronto Dominion
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx
With a copy to:
Toronto Dominion
Houston Agency
000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxxx
