EXECUTION COPY
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CREDIT AGREEMENT
Dated as of August 23, 1996
between
PEGASUS POLYMERS INTERNATIONAL INC.,
as Borrower
and
CITIBANK, N.A.,
as Lender
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
1.01. Certain Defined Terms......................................... 1
1.02. Computation of Time Periods................................... 8
1.03. Accounting Terms.............................................. 8
1.04. Other Definitional Provisions................................. 8
1.05. Other Terms................................................... 8
1.06. Payments by the Borrower...................................... 8
ARTICLE II
AMOUNTS AND TERMS OF LOANS
2.01. The Revolving Credit Facility................................. 9
2.02. Evidence of Indebtedness...................................... 10
2.03. Authorized Officers and Agents................................ 11
ARTICLE III
PAYMENTS AND PREPAYMENTS
3.01. Prepayments; Reductions in Commitment......................... 11
3.02. Payments...................................................... 12
3.03. Taxes......................................................... 13
3.04. Increased Capital............................................. 14
ARTICLE IV
INTEREST
4.01. Interest on the Loans and Other Obligations................... 14
4.02. Special Provisions Governing Fixed Rate Loans................. 17
4.03. Fees.......................................................... 20
ARTICLE V
CONDITIONS TO LOANS
5.01. Conditions Precedent to the Initial Loan...................... 21
5.02. Conditions Precedent to Each Loan............................. 22
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.01. Representations and Warranties of the Borrower............... 23
ARTICLE VII
COVENANTS OF THE BORROWER
-ii- Page
7.01. Affirmative Covenants........................................ 24
7.02. Negative Covenants........................................... 25
ARTICLE VIII
EVENTS OF DEFAULT; RIGHTS AND REMEDIES
8.01. Events of Default............................................. 26
8.02. Rights and Remedies; Acceleration and Termination............. 28
8.03. Rights and Remedies; Conversion of Currencies................. 28
ARTICLE IX
MISCELLANEOUS
9.01. Assignments................................................... 29
9.02. Expenses...................................................... 30
9.03. Indemnity..................................................... 31
9.04. Setoff........................................................ 32
9.05. Amendments and Waivers........................................ 32
9.06. Notices....................................................... 32
9.07. Survival of Warranties and Agreements......................... 33
9.08. Failure or Indulgence Not Waiver; Remedies Cumulative......... 33
9.09. Marshalling; Payments Set Aside............................... 33
9.10. Severability.................................................. 34
9.11. Headings...................................................... 34
9.12. Governing Law................................................. 34
9.13. Successors and Assigns........................................ 34
9.14. Counterparts; Effectiveness; Inconsistencies.................. 34
9.15. Confidentiality............................................... 34
9.16. Judgment Currency............................................. 35
9.17. Entire Agreement.............................................. 35
9.18. Intercreditor Agreement....................................... 35
9.19. Certain Consents and Waivers.................................. 35
iii
EXHIBITS
Exhibit A -- Form of Notice of Borrowing
Exhibit B -- Form of Notice of Continuation/Conversion
Exhibit C -- Form of Note
Exhibit D -- Form of Guaranty
Exhibit E -- Form of Pledge Agreement
2
CREDIT AGREEMENT
This Credit Agreement dated as of August 23, 1996 (as amended,
supplemented or modified from time to time, this "Agreement") is entered into
among Pegasus Polymers International Inc., a Connecticut corporation (the
"Borrower") and Citibank, N.A. (the "Lender").
ARTICLE I
DEFINITIONS
1.01. Certain Defined Terms. In addition to the terms defined above,
the following terms used in this Agreement shall have the following meanings,
applicable both to the singular and the plural forms of the terms defined:
"Affiliate" has the meaning ascribed to that term in the Syndicated
Credit Agreement.
"Applicable Fixed Rate Margin" means, as of any date, 40 basis
points per annum.
"Applicable Floating Rate Margin" means, as of any date, 40 basis
points per annum for Floating Rate Loans denominated in any Optional Currency.
"Applicable Lending Office" means the office of the Lender set forth
as such on the signature pages hereof or such other office as the Lender may
from time to time specify by written notice to the Borrower.
"Available Currency" means, with respect to any Loan, the currency
in which such Loan is denominated pursuant to the terms hereof.
"Bankruptcy Code" means Title 11 of the United States Code (11
U.S.C. xx.xx. 101 et seq.), as amended from time to time, and any successor
statute.
"Borrower" is defined in the preamble.
"Business Day" means a day, in the applicable local time, which is
not a Saturday or Sunday or a legal holiday and on which banks are not required
or permitted by law or other governmental action to close (i) in New York, New
York and (ii) in London, England.
"Citibank" means Citibank, N.A., a national banking association.
"Closing Date" means the initial Funding Date of the Loans.
"Collateral" has the meaning ascribed to that term in the Pledge
Agreement.
"Commitment" means the commitment of the Lender to make Loans to the
Borrower in the aggregate principal amount outstanding not to exceed $20,000,000
on the Closing Date as such amount may be reduced or modified pursuant to this
Agreement.
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"Contaminant" has the meaning ascribed to that term in the
Syndicated Credit Agreement.
"Default" means an event which, with the giving of notice or the
lapse of time, or both, would constitute an Event of Default.
"Disbursement Account" means the disbursement account of the
Borrower notified to the Lender from time to time.
"Dollar Equivalent" means, with respect to any amount denominated in
an Available Currency (other than Dollars) on the date of determination thereof,
the equivalent of such amount in Dollars determined at the rate of exchange
equal to the Spot Rate on such date of determination.
"Dollars" and "$" mean the lawful money of the United States.
"Environmental, Health or Safety Requirements of Law" has the
meaning ascribed to that term in the Syndicated Credit Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and any successor statute.
"Event of Default" means any of the occurrences set forth in Section
8.01 after the expiration of any applicable grace period and the giving of any
applicable notice, in each case as expressly provided in Section 8.01.
"Fixed Rate" means, with respect to any Interest Period applicable
to Fixed Rate Loans denominated in an Optional Currency, an interest rate per
annum equal to the Multicurrency LIBO Rate with respect to such Interest Period
and such Optional Currency.
"Fixed Rate Affiliate" means the Affiliate (if any) of the Lender
set forth below the Lender's name under the heading "Fixed Rate Affiliate" on
the signature pages hereof or such Affiliate of the Lender as it may from time
to time specify by written notice to the Borrower.
"Fixed Rate Determination Date" means, with respect to an Interest
Period for a Fixed Rate Loan, (i) the second Business Day prior to the first day
of such Interest Period for such Loan or (ii) in the case of a Fixed Rate Loan
denominated in Pounds and maintained in Pounds, the first day of such Interest
Period for such Loan.
"Fixed Rate Interest Payment Date" means (i) with respect to a Fixed
Rate Loan, the last day of each Interest Period applicable to such Loan and (ii)
with respect to any Fixed Rate Loan having a Interest Period in excess of three
(3) calendar months, the last day of each three (3) calendar month interval
during such Interest Period.
"Fixed Rate Loans" means all Loans outstanding which bear interest
at a rate determined by reference to the Fixed Rate applicable to such currency
as provided in Section 4.01(a).
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"Floating Rate" means, for any period applicable to any Floating
Rate Loan, a fluctuating interest rate per annum as shall be in effect from time
to time, which rate per annum shall be the Multicurrency Base Rate, in the case
of Floating Rate Loans denominated in any Optional Currency, or the U.S. Base
Rate (as defined in the Syndicated Credit Agreements) in the case of Floating
Rate Loans denominated in Dollars.
"Floating Rate Loans" means all Loans denominated in an Available
Currency which bear interest at a rate determined by reference to the Floating
Rate applicable to such currency as provided in Section 4.01(a).
"Funding Date" means, with respect to any Loan, the date of the
funding of such Loan.
"Governmental Authority" has the meaning ascribed to that term in
the Syndicated Credit Agreement.
"Guarantor" means Polymers International Financial Corporation, a
Delaware corporation.
"Guaranty" has the meaning specified in Section 5.01(d)(iv).
"Holder" means any Person entitled to enforce any of the
Obligations, whether or not such Person holds any evidence of Indebtedness,
including, without limitation, the Lender and its Fixed Rate Affiliate.
"Indebtedness" has the meaning ascribed to that term in the
Syndicated Credit Agreement.
"Indemnified Matter" is defined in Section 9.03.
"Indemnitee" is defined in Section 9.03.
"Intercreditor Agreement" means the Agreement dated August 23, 1996
between Citicorp USA, Inc. as agent, Citibank Canada as Canadian agent,
Citibank, N.A. as multicurrency lender, X. Xxxxxxxxxx & Co., Inc., Xxxxxxxxxx
International, Ltd. and Pegasus Polymers International Inc.
"Interest Period" is defined in Section 4.02(b).
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended to the date hereof and from time to time hereafter, any successor
statute and any regulations or guidance promulgated thereunder.
"Lender" is defined in the preamble.
"Lien" has the meaning ascribed to that term in the Syndicated
Credit Agreement.
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"Loan Documents" means this Agreement, the Note, the Guaranty, the
Pledge Agreement and the other documents executed or delivered pursuant to
Section 5.01 by any Loan Party.
"Loan Parties" means the Borrower and the Guarantor.
"Loans" has the meaning specified in Section 2.01(a).
"Material Adverse Effect" means a material adverse effect upon (i)
the business, condition (financial or otherwise), operations, performance,
properties or prospects of the Borrower, (ii) the ability of any of the Loan
Parties to perform their respective material obligations under the Loan
Documents or (iii) the ability of the Lender to enforce the Loan Documents.
"Maximum Revolving Credit Amount" means, at any particular time, an
amount equal to the lesser of (1) the Commitment in effect at such time and (2)
the "Invested Amount" (as defined in the Series 1996-2 Certificate) of the
Series 1996-2 Certificate at such time.
"Multicurrency Base Rate" means, for any period, a fluctuating
interest rate per annum as shall be in effect from time to time, which rate per
annum shall at all times be equal to the rate of interest designated and
published in London by the principal office of Citibank in London, England as
the "base rate" applicable to an Optional Currency, in the case of Floating Rate
Loans denominated in such Optional Currency.
"Multicurrency Facility" means the facility provided by the Lender
to make Loans to the Borrower in accordance with the terms and conditions
contained in this Agreement.
"Multicurrency LIBO Rate" means, with respect to any Interest Period
applicable to a Fixed Rate Loan denominated in an Optional Currency:
(i) the interest rate per annum equal to (A) the offered quotations
for deposits in the Optional Currency of the relevant Loan for a period
comparable to the relevant Interest Period which appears on the Telerate
Page 3750 or Telerate Page 3740 (as appropriate) at or about 11:00 a.m.
(London time) on the applicable Fixed Rate Determination Date; or (B) if
no such interest rate determined under clause (A) is available, the
arithmetic mean (rounded upward to the nearest one-sixteenth of one
percent (0.0625%)) of the interest rates, as supplied to Citibank at its
request, quoted by the "London Reference Banks" to leading banks in the
London interbank market at or about 11:00 a.m. (London time) on the
applicable Fixed Rate Determination Date for the offering of deposits in
the Optional Currency of the relevant Loan for a period comparable to the
relevant Interest Period; plus
(ii) in the case of Fixed Rate Loans denominated in Pounds, the
amount (expressed as a percentage) of "associated reserve costs" being
imposed by the Bank of England on the relevant Fixed Rate Determination
Date. The Multicurrency LIBO Rate shall be adjusted automatically on and
as of the effective date of any change in the amount of associated reserve
costs so imposed. The Lender shall provide to the Borrower, upon the
reasonable request of the Borrower, a reasonably detailed
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explanation of any associated reserve costs used in the determination of
the Multicurrency LIBO Rate.
For the purposes of this definition, "Telerate Page 3750" means the display
designated as "Page 3750", and "Telerate Page 3740" means the display designated
as "Page 3740" in each case on the Telerate Service (or such other page as may
replace Page 3750 or Page 3740, as applicable, on the service as may be
nominated by the British Bankers' Association as the information vendor for the
purpose of displaying British Bankers' Association Interest Settlement Rates for
deposits in the Optional Currency concerned).
"Note" means a note made payable to the Lender evidencing the
Borrower's Obligation to repay the Loans, and all amendments thereto,
replacements thereof and substitutions therefor.
"Notice of Borrowing" means a notice substantially in the form of
Exhibit A.
"Notice of Continuation/Conversion" means a notice substantially in
the form of Exhibit B.
"Obligation" means, with respect to the Loan Parties and to the
extent arising under the Loan Documents, any payment, performance or other
obligation of any Loan Party of any kind, including, without limitation, any
liability of such Loan Party on any claim, whether or not the right of any
creditor to payment in respect of such claim is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, disputed, undisputed, legal,
equitable, secured or unsecured, and whether or not such claim is discharged,
stayed or otherwise affected by any proceeding referred to in Section 8.01(f) or
(g). Without limiting the generality of the foregoing, the Obligations of the
Loan Parties under the Loan Documents include (a) the obligation to pay
principal, interest, charges, expenses, attorneys' fees and disbursements,
indemnities and other amounts payable by any Loan Party under any Loan Document
to which such Loan Party is party and (b) the obligation of any Loan Party to
reimburse any amount in respect of any of the foregoing that the Lender, in its
sole discretion, may pursuant to any Loan Document elect to pay or advance on
behalf of such Loan Party.
"Optional Currency" means any of the lawful currencies of France,
Germany, Italy, Spain or the United Kingdom.
"Payment Account" means each account of the Lender into which
fundings of Loans and payments in respect of Obligations shall be made. The
Payment Accounts shall be notified by the Lender to the Borrower from time to
time.
"Pledge Agreement" has the meaning specified in Section 5.01(a)(v).
"Person" has the meaning ascribed to that term in the Syndicated
Credit Agreement.
"Pounds" means the lawful currency of the United Kingdom.
"Property" has the meaning ascribed to that term in the Syndicated
Credit Agreement as applicable to each Loan Party (rather than to the other
Persons referred to in the Syndicated Credit Agreement).
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"Regulation A" means Regulation A of the Federal Reserve Board as in
effect from time to time.
"Release" has the meaning ascribed to that term in the Syndicated
Credit Agreement.
"Requirements of Law" has the meaning ascribed to that term in the
Syndicated Credit Agreement.
"Responsible Person" means any of the president, any vice president,
the chief financial officer, any secretary-treasurer, assistant secretary or
assistant treasurer of the Borrower.
"Revolving Credit Availability" means, at any particular time, the
amount by which the Maximum Revolving Credit Amount exceeds the Revolving Credit
Obligations outstanding at such time.
"Revolving Credit Obligations" means, at any particular time, the
outstanding principal amount of the Loans at such time. For purposes of
determining at any time the amount of Revolving Credit Obligations in respect of
any Loan which is denominated in any Available Currency (other than Dollars),
such amount shall equal the Dollar Equivalent of the amount of such currency at
such time.
"Series 1996-2 Certificate" means the "Certificate", as defined in
the Pledge Agreement.
"Series 1996-2 Supplement" means the Agreement dated as of August
23, 1996 among Xxxxxxxxxx Financial Corporation as Transferor, X. Xxxxxxxxxx &
Co., Inc. as Servicer and Bankers Trust Company as Trustee.
"Spot Rate" means, as of any date of determination with respect to
the conversion of an amount in one currency (the "Original Currency") to another
currency (the "Other Currency"), the rate of exchange quoted by the Lender (or
its Affiliate) in New York, New York (if the Original Currency is Dollars),
London, England (if the Original Currency is an Optional Currency), at 11:00
a.m. (New York time or London time, as applicable) on such date of determination
(or if no such quote is available on such date, then on the immediately
preceeding date on which such quote is available) to prime banks in New York,
New York or London, England, as appropriate, for the spot purchase in the
foreign exchange market of such city of such amount of the Original Currency
with such Other Currency.
"Subsidiary" has the meaning ascribed to that term in the Syndicated
Credit Agreement.
"Syndicated Credit Agreement" means the Credit Agreement dated as of
February 9, 1996 among Xxxxxxxxxx Holding Corporation, as guarantor, X.
Xxxxxxxxxx & Co., Inc., Pegasus Polymers International Inc., Xxxxxxxxxx
International Ltd. and X. Xxxxxxxxxx & Co. (Canada) Limited, as borrowers, the
lenders and issuing bank parties thereto, Citicorp USA, Inc., as agent, and
Citibank Canada, as Canadian agent, as such agreement may be amended,
supplemented or otherwise modified, refinanced or replaced from
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time to time.
"Taxes" is defined in Section 3.03(a).
"Termination Date" means the earlier to occur of (i) the date of
termination of the Commitment pursuant to the terms hereof and (ii) the fourth
anniversary of the Closing Date.
"Uniform Commercial Code" means the Uniform Commercial Code as
enacted in the State of New York, as it may be amended from time to time.
1.02. Computation of Time Periods. In this Agreement, in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding". Periods of days referred to in this Agreement shall be
counted in calendar days unless Business Days are expressly prescribed. Any
period determined hereunder by reference to a month or months or year or years
shall end on the day in the relevant calendar month in the relevant year, if
applicable, immediately preceding the date numerically corresponding to the
first day of such period, provided that if such period commences on the last day
of a calendar month (or on a day for which there is no numerically corresponding
day in the calendar month during which such period is to end), such period
shall, unless otherwise expressly required by the other provisions of this
Agreement, end on the last day of the calendar month.
1.03. Accounting Terms. All accounting terms not otherwise defined
herein shall have the meanings assigned to them in conformity with generally
accepted accounting principles.
1.04. Other Definitional Provisions. References to the "preamble",
"Articles", "Sections", "subsections", and "Exhibits" shall be to the preamble,
Articles, Sections, subsections and Exhibits, respectively, of this Agreement
unless otherwise specifically provided. The words "hereof", "herein", and
"hereunder" and words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision of this
Agreement. Whenever in any Loan Document a term is defined by reference to the
meaning ascribed to such term in the Syndicated Credit Agreement, then such term
shall have the meaning ascribed in the Syndicated Credit Agreement as in
existence on the date hereof without giving effect to any amendment, supplement
or other modification thereto or any refinancing or replacement thereof and
irrespective of any repayment or termination thereof, unless otherwise agreed in
writing by the parties hereto.
1.05. Other Terms. All other terms contained herein shall, unless
the context indicates otherwise, have the meanings assigned to such terms by the
Uniform Commercial Code to the extent the same are defined therein.
1.06. Payments by the Borrower. Except as expressly set forth herein
to the contrary, all payments made by the Borrower in respect of principal and
interest on any Loans shall be made in the Optional Currency in which such Loan
was made.
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ARTICLE II
AMOUNTS AND TERMS OF LOANS
2.01. The Revolving Credit Facility. (a) Loans. Subject to the terms
and conditions set forth herein, the Lender hereby agrees to make revolving
loans (each a "Loan") to the Borrower from time to time on any Business Day
during the period from the Closing Date to the Termination Date, in an aggregate
amount (converted to the Dollar Equivalent thereof) not to exceed at any time
outstanding the Revolving Credit Availability at such time, provided, however,
at no time shall the aggregate Revolving Credit Obligations owed by the Borrower
exceed the Maximum Revolving Credit Amount at such time. Subject to the
provisions hereof, the Borrower may repay any outstanding Loan on any day which
is a Business Day and any amounts so repaid may be reborrowed, up to the amount
available under this Section 2.01(a) at the time of such Loan, until the
Termination Date. Each Loan shall be denominated in a single Optional Currency.
Each Loan shall be in a minimum amount of the Dollar Equivalent of $500,000 for
Floating Rate Loans (and in approximately similar intervals in the applicable
Optional Currency in excess thereof) and $1,000,000 for Fixed Rate Loans (and in
approximately similar intervals in the applicable Optional Currency in excess
thereof). The Borrower shall not request Loans on more than two (2) Business
Days during any calendar week (it being agreed and understood that the Borrower
may request more than one Loan on any such Business Day) and shall not request
Loans in any Optional Currency if, after giving effect to such Loan, the
aggregate Dollar Equivalent principal amount of all outstanding Loans
denominated in such Optional Currency would equal or exceed the Maximum
Revolving Credit Amount.
(b) Notice of Borrowing. When the Borrower desires to make a Loan
under this Section 2.01, it shall deliver to the Lender in a manner specified in
Section 9.06 a signed Notice of Borrowing no later than 11:00 a.m. (London time)
at least two (2) Business Days in advance of the proposed Funding Date for such
Loan. All Loans made under this Section 2.01 on the Closing Date shall be made
initially as Floating Rate Loans and may thereafter be continued as Floating
Rate Loans or converted into Fixed Rate Loans in the manner provided in Section
4.01(c). In the case of a Notice of Borrowing delivered in connection with a
proposed Loan, the Borrower shall request, within one-half hour prior to the
issuance of such Notice of Borrowing, the advice of the Lender as to the Dollar
Equivalent of the amount of such Loan, and the Borrower shall specify such
amount in such Notice of Borrowing, provided that such advice shall not be
deemed to be a prediction or guaranty of the Dollar Equivalent of such amount
after the Notice of Borrowing is submitted and shall in no way limit the
Borrower's Obligations under this Agreement due to fluctuations in the
applicable Available Currency.
(c) Making of Loans. (i) The Lender shall deposit an amount equal to
the Loan requested in any Notice of Borrowing delivered to the Lender pursuant
Section 2.01(b) in the applicable Payment Account in immediately available funds
and in the appropriate currency, not later than 12:00 noon (London time) on any
Funding Date applicable thereto (or, if the Funding Date is the Closing Date,
such earlier time as the Lender shall determine). Subject to the fulfillment of
the conditions precedent set forth in Article V, the Lender shall make the
proceeds of such amounts received by it available to the Borrower at the
Lender's office in London, England, on such Funding Date (or as soon thereafter
as is customarily practicable) and shall disburse such proceeds to the
Disbursement Account referred to in the applicable Notice of Borrowing.
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(ii) Anything hereinabove to the contrary notwithstanding, if the
Lender shall, not later than 2:00 p.m. (London time) one Business Day before the
date of any requested Loan, notify the Borrower that the Lender is not satisfied
that deposits in the relevant Optional Currency will be freely available to it
in the relevant amount and, if applicable, for the relevant Interest Period, the
right of the Borrower to request Loans in such Optional Currency shall be
suspended until the Lender shall notify the Borrower that the circumstances
causing such suspension no longer exist, and, at the option of the Borrower, the
Loan to be made by the Lender (and any subsequent Loan to be made by the Lender
in respect of which such Optional Currency shall have been requested during such
period of suspension) shall be denominated in any other Available Currency
requested on the same Business Day which is available, or in Pounds if no such
currency has been requested or is available, and having a Interest Period
coextensive with the Interest Period in effect in respect of all other Loans
made on such Funding Date. The Lender shall, upon becoming aware that the
circumstances causing any such suspension no longer apply, promptly so notify
the Borrower, provided that the failure of the Lender to so notify the Borrower
shall not impair the rights of the Lender under this Section 2.01(c)(ii) or
expose the Lender to any liability.
(d) Use of Proceeds. Proceeds of Loans shall be used (i) to repay or
prepay Indebtedness to the Lender or (ii) except with respect to the initial
loan hereunder, to provide for ongoing working capital needs in the ordinary
course of the business of the Borrower and its Subsidiaries or for other lawful
general corporate purposes not prohibited hereunder.
(e) Termination Date. The Commitment shall terminate, and all
outstanding Revolving Credit Obligations shall be due and payable, on the
Termination Date.
2.02. Evidence of Indebtedness. The Borrower hereby agrees to pay
when due the principal amount of each Loan which is made to it (whether or not
evidenced by a Note), and further agrees to pay all unpaid interest accrued
thereon, in accordance with the terms hereof and, to the extent evidenced
thereby, of the Note. On the Closing Date, the Borrower shall execute and
deliver to the Lender a Note substantially in the form of Exhibit C in a
principal amount equal to the Lender's Commitment, evidencing the Loans made to
the Borrower under the Multicurrency Facility. The Lender shall maintain in
accordance with its usual practice an account or accounts evidencing the
Indebtedness of the Borrower resulting from each Loan made hereunder from time
to time, including the amount of principal and interest payable and paid to the
Lender from time to time hereunder and under the Note.
2.03. Authorized Officers and Agents. On the Closing Date and from
time to time thereafter, the Borrower shall deliver to the Lender an Officers'
Certificate setting forth the names of the officers, employees and agents
authorized to request Loans and containing a specimen signature of each such
officer, employee or agent. The officers, employees and agents so authorized
shall also be authorized to act for the Borrower in respect of all other matters
relating to the Loan Documents. The Lender shall be entitled to rely
conclusively on such officer's or employee's authority to request such Loan
until the Lender receives written notice to the contrary. In addition, the
Lender shall be entitled to rely conclusively on any written notice sent to it
by telecopy. The Lender shall have no duty to verify the authenticity of the
signature appearing on, or any telecopy or facsimile of, any written Notice of
Borrowing or any other document, and, with respect to an oral request for such a
Loan, the Lender shall have no duty to verify the identity of any person
representing himself or herself as one of the officers, employees or agents
authorized to make such request or otherwise to act
Credit Agreement
11
on behalf of the Borrower. The Lender shall not incur any liability to the
Borrower or any other Person in acting upon any telecopy or facsimile or
telephonic notice referred to above which the Lender reasonably believes to have
been given by a duly authorized officer or other person authorized to act on
behalf of the Borrower.
ARTICLE III
PAYMENTS AND PREPAYMENTS
3.01. Prepayments; Reductions in Commitment. (a) Voluntary
Reductions of Commitment. The Borrower, upon at least five (5) Business Days'
prior written notice to the Lender, shall have the right, from time to time, to
terminate in whole or permanently reduce in part the Commitment, provided that
the Borrower shall have made or caused to be made any payment required to be
made pursuant to Section 3.01(b) after giving effect to such reduction. Any
partial reduction of the Lender's Commitment shall be in an aggregate minimum
amount of $2,000,000 and integral multiples of $1,000,000 in excess of that
amount. Any notice of termination or reduction given to the Lender under this
Section 3.01(a) shall specify the date (which shall be a Business Day) of such
termination or reduction and, with respect to a partial reduction, the aggregate
principal amount thereof. When notice of termination or reduction of the
Commitment is delivered as provided herein, the principal amount of the Loans
shall become due and payable on the date specified in such notice to the extent
the Revolving Credit Obligations would exceed the Maximum Revolving Credit
Amount after giving effect to such reduction. The payments in respect of
reductions and terminations described in this Section 3.01(a) may be made
without premium or penalty (except as provided in Section 4.02(f)).
(b) Mandatory Prepayments of Loans. Immediately, if at any time the
Revolving Credit Obligations are greater than the Maximum Revolving Credit
Amount, the Borrower agrees to make a mandatory repayment of such Revolving
Credit Obligations in an aggregate amount sufficient to reduce any such excess
to zero, such amounts to be applied to the Obligations of the Borrower in
accordance with Section 3.02.
3.02. Payments. (a) Manner and Time of Payment. All payments of
principal of and interest on the Loans and other Obligations (including, without
limitation, expenses) which are payable to the Lender shall be made without
condition or reservation of right, in immediately available funds, delivered to
the Lender not later than 1:00 p.m. (London time) on the date and at the place
due, to the applicable Payment Account. Thereafter payments in respect of any
Loan received by the Lender shall be applied in accordance with the provisions
of Section 3.02(b) on the date received, if received prior to 1:00 p.m. (London
time), and on the next succeeding Business Day if received thereafter. All
payments of principal of and interest on the Loans, shall be made upon at least
two (2) Business Days' prior notice to the Lender.
(b) Apportionment of Payments. (i) Except as set forth in Sections
3.01(a) and (b) and unless otherwise designated by the Borrower, (A) all
principal payments made by the Borrower in respect of Loans shall be applied
first, to repay outstanding Floating Rate Loans, and then to repay outstanding
Fixed Rate Loans, with those Loans which have earlier expiring Interest Periods
being repaid prior to those which have later expiring Interest Periods.
(ii) After the occurrence and during the continuance of an Event of
Default, the Lender may, and shall upon the acceleration of the Obligations
pursuant to Section 8.02(a),
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12
apply all payments in respect of any Obligations and all proceeds of Collateral
to the Obligations in the following order (it being understood that the Lender
shall have the right to convert, at a rate of exchange equal to the Spot Rate as
of such conversion date and at the Borrower's expense, any of such payments or
proceeds of Collateral into the currency in which such Obligations are
denominated):
(A) first, to pay Obligations in respect of any expense
reimbursements or indemnities then due to the Lender;
(B) second, to pay interest due in respect of the Loans;
(C) third, to pay or prepay principal outstanding on Loans;
(D) fourth, to the ratable payment of all other Obligations.
(c) Payments on Non-Business Days. Whenever any payment to be made
by the Borrower hereunder or under the Note is stated to be due on a day which
is not a Business Day, the payment shall instead be due on the next succeeding
Business Day (or, as set forth in Section 4.02(b)(iii), the next preceding
Business Day), and any such extension of time shall be included in the
computation of the payment of interest hereunder.
3.03. Taxes. (a) Payment of Taxes. Any and all payments by the
Borrower hereunder or under the Note or other document evidencing any
Obligations shall be made free and clear of and without reduction for any and
all taxes, levies, imposts, deductions, charges, withholdings, and all stamp or
documentary taxes, excise taxes, ad valorem taxes and other taxes imposed on the
value of the Property, charges or levies which arise from the execution,
delivery or registration, or from payment or performance under, or otherwise
with respect to, any of the Loan Documents or the Commitment and all other
liabilities with respect thereto excluding, in the case of the Lender, taxes
imposed on its income, capital, profits or gains and franchise taxes imposed on
it by (i) the United States, (ii) the Governmental Authority of any jurisdiction
(or any political subdivision thereof) in which any Applicable Lending Office of
the Lender is located, (iii) the Governmental Authority in which such Person is
organized, managed and controlled or any political subdivision thereof or (iv)
any political subdivision of the United States, unless such taxes are imposed
solely as a result of the Lender's performance of any of the Loan Documents in
such political subdivision and the Lender would not otherwise be subject to tax
by such political subdivision (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred to
as "Taxes"). If the Borrower shall be required by law to withhold or deduct any
Taxes from or in respect of any sum payable hereunder or under any such Note or
document to the Lender, (x) the sum payable to the Lender shall be increased as
may be necessary so that after making all required withholding or deductions
(including withholding or deductions applicable to additional sums payable under
this Section 3.03) the Lender receives an amount equal to the sum it would have
received had no such withholding or deductions been made, (y) the Borrower shall
make such withholding or deductions, and (z) the Borrower shall pay the full
amount withheld or deducted to the relevant taxation authority or other
authority in accordance with applicable law.
(b) Indemnification. The Borrower agrees to indemnify the Lender
against, and reimburse it on demand for, the full amount of all Taxes
(including, without limitation, any Taxes imposed by any Governmental Authority
on amounts payable under this Section
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13
3.03 and any additional income or franchise taxes resulting therefrom) incurred
or paid by the Lender or any of its Affiliates and any liability (including
penalties, interest, and out-of-pocket expenses paid to third parties) arising
therefrom or with respect thereto, whether or not such Taxes were lawfully
payable (other than any liability that results from the gross negligence or
willful misconduct of the Lender, whether or not such Taxes were correctly or
legally asserted by the relevant taxing authority or other governmental
authority). A certificate as to any additional amount payable to any Person
under this Section 3.03 submitted by it to the Borrower shall, absent manifest
error, be final, conclusive and binding upon all parties hereto. The Lender
agrees (i) within a reasonable time after receiving a written request from the
Borrower, to provide the Borrower and the Lender with such certificates as are
reasonably required, and (ii) take such other actions as are reasonably
necessary to claim such exemptions as the Lender or the Affiliate may be
entitled to claim in respect of all or a portion of any Taxes which are
otherwise required to be paid or deducted or withheld pursuant to this Section
3.03 in respect of any payments under this Agreement or under the Note. If the
Lender receives a refund in respect of any Taxes for which the Lender has
received payment from the Borrower hereunder, it shall promptly apply such
refund (including any interest received by the Lender from the taxing authority
with respect to the refund with respect to such Taxes) to the Obligations of the
Borrower, net of all out-of-pocket expenses of the Lender; provided that the
Borrower, upon the request of the Lender, agrees to reimburse such refund (plus
penalties, interest or other charges) to the Lender in the event the Lender is
required to repay such refund.
(c) Receipts. Within thirty (30) days after the date of any payment
of Taxes pursuant to this Section 3.03 by the Borrower or any of the Borrower's
Subsidiaries, the Borrower will furnish to the Lender at its request, at its
notice address in effect under Section 9.06, a copy of a receipt, if any, or
other documentation reasonably satisfactory to the Lender, evidencing payment
thereof. The Borrower shall furnish to the Lender, within thirty (30) days after
the request of the Lender from time to time, an Officer's Certificate stating
that all Taxes of which they are aware are due have been paid and that no
additional Taxes of which it is aware are due.
3.04. Increased Capital. If after the date hereof the Lender
determines that (i) the adoption or implementation of or any change in or in the
interpretation or administration of any law or regulation or any guideline or
request from any central bank or other Governmental Authority or
quasi-governmental authority exercising jurisdiction, power or control over the
Lender or banks or financial institutions generally (whether or not having the
force of law), compliance with which affects or would affect the amount of
capital required or expected to be maintained by the Lender or any corporation
controlling the Lender and (ii) the amount of such capital is increased by or
based upon the making or maintenance by the Lender of its Loans, or the
existence of the Lender's obligation to make Loans, then, in any such case, upon
written demand by the Lender, the Borrower agrees immediately to pay to the
Lender, from time to time as specified by the Lender, additional amounts
sufficient to compensate the Lender or such corporation therefor. Such demand
shall be accompanied by a reasonably detailed statement as to the amount of such
compensation and include a summary of the basis for such demand. Such statement
shall be conclusive and binding for all purposes, in the absence of manifest
error.
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14
ARTICLE IV
INTEREST
4.01. Interest on the Loans and Other Obligations. (a) Rate of
Interest. All Loans and the outstanding principal balance of all other
Obligations shall bear interest on the unpaid principal amount thereof from the
date such Loans are made and such other Obligations are due and payable until
paid in full, except as otherwise provided in Section 4.01(d), as follows:
(i) If a Floating Rate Loan or such other Obligation, at a rate per
annum equal to the sum of (A) the Floating Rate applicable to the currency
in which such Obligation is denominated in effect from time to time as
interest accrues, plus (B) the Applicable Floating Rate Margin in effect
from time to time;
(ii) If a Fixed Rate Loan, at a rate per annum equal to the sum of
(A) the Fixed Rate determined for the applicable Interest Period and the
applicable currency, plus (B) the Applicable Fixed Rate Margin in effect
from time to time during such Interest Period;
The applicable basis for determining the rate of interest on any Loan shall be
initially determined in accordance with Section 2.01(b). The applicable basis
for determining the rate of interest on such Loan shall be selected thereafter
by the Borrower at the time a Notice of Continuation/Conversion is delivered by
the Borrower to the Lender. Notwithstanding the foregoing, the Borrower may not
select the Fixed Rate as the applicable basis for determining the rate of
interest on such a Loan if (x) such Loan is to be made on the Closing Date or
(y) at the time of such selection an Event of Default or Default would occur or
has occurred and is continuing. If on any day any Loan is outstanding with
respect to which notice has not been timely delivered to the Lender in
accordance with the terms hereof specifying the basis for determining the rate
of interest on that day, then for that day interest on that Loan shall be
determined by reference to the applicable Floating Rate.
(b) Interest Payments. (i) Interest accrued on each Floating Rate
Loan shall be payable in arrears in the currency in which such Loan is
denominated (A) on the first Business Day of each calendar month for the
preceding calendar month, commencing on the first such day following the making
of such Floating Rate Loan, and (B) if not theretofore paid in full, at maturity
(whether by acceleration or otherwise) of such Floating Rate Loan.
(ii) Interest accrued on each Fixed Rate Loan shall be payable in
arrears in the currency in which such Loan is denominated (A) on the last day of
each Fixed Rate Interest Payment Date with respect to such Loan and (B) if not
theretofore paid in full, at maturity (whether by acceleration or otherwise) of
such Fixed Rate Loan.
(iii) Interest accrued on the principal balance of all other
Obligations shall be payable in arrears in the currency in which such Obligation
is denominated (A) on the first Business Day of each month, commencing on the
first such day following the incurrence of such Obligation and (B) if not
theretofore paid in full, at the time such other Obligation becomes due and
payable (whether by acceleration or otherwise).
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15
(c) Conversion or Continuation. (i) The Borrower shall have the
option (A) to convert at any time all or any part of its outstanding Floating
Rate Loans to Fixed Rate Loans denominated in the same Available Currency; (B)
to convert all or any part of its outstanding Fixed Rate Loans having Interest
Periods which expire on the same date to Floating Rate Loans denominated in the
same currency on such expiration date; or (C) to continue all or any part of its
outstanding Fixed Rate Loans having Interest Periods which expire on the same
date as Fixed Rate Loans denominated in the same currency, and the succeeding
Interest Period of such continued Loans shall commence on such expiration date;
provided, however, no such outstanding Loan may be continued as, or be converted
into, a Fixed Rate Loan (i) if the continuation of, or the conversion into,
would violate any of the provisions of Section 4.02 or (ii) if an Event of
Default or Default would occur or has occurred and is continuing. Any conversion
into or continuation of Fixed Rate Loans under this Section 4.01(c) shall be in
a minimum amount of $2,000,000 (or the Dollar Equivalent of $1,000,000 for Fixed
Rate Loans denominated in an Optional Currency) and in integral Dollar
Equivalent multiples of $1,000,000 (or approximately similar intervals in
Optional Currencies) in excess of that amount.
(ii) To convert or continue a Loan under Section 4.01(c)(i), the
Borrower shall deliver a Notice of Continuation/Conversion to the Lender no
later than 12:00 noon (London time) at least two (2) Business Days in advance of
the proposed continuation/conversion date. Any Notice of Continuation/Conversion
for conversion to, or continuation of, a Loan shall be irrevocable, and the
Borrower shall be bound to convert or continue in accordance therewith.
(d) Default Interest. Notwithstanding the rates of interest
specified in Section 4.01(a) or elsewhere herein, and to the extent permitted by
applicable law, effective immediately upon the occurrence of any Event of
Default and for as long thereafter as such Event of Default shall be continuing,
the principal balance of all Loans and of all other Obligations shall bear
interest at a rate which is two percent (2.0%) per annum in excess of the rate
of interest applicable to such Loans and Obligations from time to time.
(e) Computation of Interest. Interest on all Obligations shall be
computed on the basis of the actual number of days elapsed in the period during
which interest accrues and a year of 360 days. In computing interest on any
Loan, the date of the making of the Loan shall be included and the date of
payment shall be excluded.
(f) Changes; Legal Restrictions. If after the date hereof the Lender
determines that the adoption or implementation of or any change in or in the
interpretation or administration of any law or regulation or any guideline or
request from any central bank or other Governmental Authority or
quasi-governmental authority exercising jurisdiction, power or control over the
Lender or over banks or financial institutions generally (whether or not having
the force of law), compliance with which, in each case after the date hereof:
(i) subjects the Lender (or its Applicable Lending Office) to
charges (other than Taxes) of any kind which is applicable to the
Commitment of the Lender to make Fixed Rate Loans; or
(ii) imposes, modifies or holds applicable, any reserve (other than
reserves taken into account in calculating any Fixed Rate), special
deposit,
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16
compulsory loan, FDIC insurance or similar requirement against assets held
by, or deposits or other liabilities in or for the account of, advances or
loans by, commitments made or other credit extended by, or any other
acquisition of funds by, the Lender or any Applicable Lending Office or
Fixed Rate Affiliate of the Lender;
and the result of any of the foregoing is to increase the cost to the Lender of
making, renewing or maintaining the Loans or its Commitment or to reduce any
amount receivable thereunder; then, in any such case, upon written demand by the
Lender, the Borrower agrees promptly to pay to the Lender, from time to time as
specified by the Lender, such amount or amounts as may be necessary to
compensate the Lender or its Fixed Rate Affiliate for any such additional cost
incurred or reduced amount received. Such demand shall be accompanied by a
statement as to the amount of such compensation and include a reasonably
detailed summary of the basis for such demand. Such statement shall be
conclusive and binding for all purposes, absent manifest error.
(g) Confirmation of Fixed Rate. Upon the reasonable request of the
Borrower from time to time, the Lender shall promptly provide to the Borrower
such information with respect to the applicable Fixed Rate as may be so
requested.
4.02. Special Provisions Governing Fixed Rate Loans. With respect to
Fixed Rate Loans:
(a) Amount of Advance. Each Fixed Rate Loan shall be for a minimum
amount of $2,000,000 (or the Dollar Equivalent of $1,000,000 for Fixed
Rate Loans denominated in an Optional Currency) and in integral $1,000,000
(or approximately similar intervals in Optional Currencies) in excess of
that amount.
(b) Determination of Interest Period. By giving notice as set forth
in Section 2.01(b) (with respect to a new Loan) or Section 4.01(c) (with
respect to a conversion into or continuation of a Fixed Rate Loan), the
Borrower shall have the option, subject to the other provisions of this
Section 4.02, to select an interest period (each, an "Interest Period") to
apply to the Loans described in such notice, subject to the following
provisions:
(i) The Borrower may only select, as to a particular Fixed
Rate Loan, an Interest Period of either one (1), two (2), three (3)
or, to the extent consented to by the Lender, six (6) months in
duration;
(ii) In the case of immediately successive Interest Periods
applicable to a Fixed Rate Loan, each successive Interest Period
shall commence on the day on which the next preceding Interest
Period expires;
(iii) If any Interest Period would otherwise expire on a day
which is not a Business Day, such Interest Period shall be extended
to expire on the next succeeding Business Day if the next succeeding
Business Day occurs in the same calendar month, and if there shall
be no succeeding Business Day in such calendar month, such Interest
Period shall expire on the immediately preceding Business Day;
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17
(iv) The Borrower may not select an Interest Period as to any
Loan if such Interest Period terminates later than the Termination
Date;
(v) There shall be no more than ten (10) Interest Periods in
the aggregate for Fixed Rate Loans denominated in Optional
Currencies in effect at any one time; and
(vi) No Fixed Rate Loan may be borrowed on the Closing Date,
and no Notice of Continuation/Conversion may be delivered prior to
the Closing Date.
(c) Determination of Interest Rate. As soon as practicable on the
applicable Fixed Rate Determination Date, the Lender shall determine
(pursuant to the procedures set forth in the definition of "Fixed Rate")
the interest rate which shall apply to Fixed Rate Loans for which an
interest rate is then being determined for the applicable Interest Period
and currency and shall promptly give notice thereof (in writing or by
telephone confirmed in writing) to the Borrower. The Lender's
determination shall be presumed to be correct, absent manifest error, and
shall be binding upon the Borrower.
(d) Interest Rate Unascertainable, Inadequate or Unfair. In the
event that on the Fixed Rate Determination Date with respect to any Fixed
Rate Loan in the relevant currency:
(i) the Lender determines that adequate and fair means do not
exist for ascertaining the applicable interest rates by reference to
which the applicable Fixed Rate for the applicable Available
Currency then being determined is to be fixed;
(ii) the Lender determines that deposits in such currency and
in the principal amount of the Fixed Rate Loan are not generally
available in the London interbank market for a period equal to such
Interest Period; or
(iii) the Lender advises the Borrower that the applicable
Fixed Rate for the applicable Available Currency, as determined by
the Lender, after taking into account the adjustments for reserves
and increased costs provided for in Section 4.01(f), will not
adequately and fairly reflect the cost to the Lender of funding the
relevant Fixed Rate Loans in the currency in which such Loans are
denominated;
then (until the Lender notifies the Borrower that the circumstances giving
rise to such suspension no longer exist) the right of the Borrower to
elect to have Loans bear interest based upon the Fixed Rate in such
currency shall be suspended and each outstanding Fixed Rate Loan which is
denominated in the affected currency shall be converted into a Floating
Rate Loan denominated in such currency on the last day of the then current
Interest Period therefor, and any Notice of Borrowing with respect to
Loans denominated in such currency for which Loans have not then been made
shall be deemed to be a request for Floating Rate Loans in such currency,
notwithstanding any prior election by the Borrower to the contrary.
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18
(e) Illegality. (i) If at any time the Lender determines (which
determination shall, absent manifest error, be final and conclusive and
binding upon all parties) that the making or continuation of any Fixed
Rate Loan in any currency has become unlawful or impermissible by
compliance by the Lender with any law, governmental rule, regulation or
order of any Governmental Authority (whether or not having the force of
law and whether or not failure to comply therewith would be unlawful or
would result in costs or penalties), then, and in any such event, the
Lender may give notice of that determination, in writing, to the Borrower.
(ii) When notice is given by the Lender under Section 4.02(e)(i),
(A) the Borrower's right to request from the Lender and the Lender's
obligation, if any, to make Fixed Rate Loans in such currency shall be
immediately suspended, and the Lender shall make a Floating Rate Loan in
such currency and (B) if the affected Fixed Rate Loan or Loans are then
outstanding, the Borrower shall immediately, or if not permitted by
applicable law to do so immediately, then by no later than the date it is
permitted to do so in accordance with applicable law, upon at least one
(1) Business Day's prior written notice to the Lender, convert each such
Loan into a Floating Rate Loan.
(iii) If at any time after the Lender gives notice under Section
4.02(e)(i) in respect of a Fixed Rate Loan in any currency the Lender
determines that it may lawfully make Fixed Rate Loans in such currency,
the Lender shall promptly give notice of that determination, in writing,
to the Borrower. The Borrower's right to request, and the Lender's
obligation to make Fixed Rate Loans shall thereupon be restored.
(f) Compensation. In addition to all amounts required to be paid by
the Borrower pursuant to Section 4.01, the Borrower agrees to compensate
the Lender, upon demand, for all losses, expenses and liabilities
(including, without limitation, any loss or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by the
Lender to fund or maintain the Lender's Fixed Rate Loans made to the
Borrower but excluding any loss of the Applicable Fixed Rate Margin on the
relevant Loans) which the Lender may sustain (i) if for any reason the
making of, conversion into or continuation of such Fixed Rate Loans does
not occur on a date specified therefor in a Notice of Borrowing or a
Notice of Continuation/Conversion given by the Borrower or a successive
Interest Period does not commence after notice therefor is given pursuant
to Section 4.01(c), including, without limitation, pursuant to Section
4.02(d), (ii) if for any reason any Fixed Rate Loan made to the Borrower
is prepaid (including, without limitation, mandatorily pursuant to Section
3.01) on a date which is not the last day of the applicable Interest
Period, (iii) as a consequence of a required conversion of such Fixed Rate
Loan to a Floating Rate Loan as a result of any of the events indicated in
Section 4.02(d) or (e) or Section 8.03 or (iv) as a consequence of any
failure by the Borrower to repay Fixed Rate Loans when required by the
terms hereof. The Lender shall deliver to the Borrower concurrently with
such demand a written statement in reasonable detail as to such losses,
expenses and liabilities, and this statement shall be conclusive as to the
amount of compensation due to the Lender, absent manifest error.
(g) Booking of Fixed Rate Loans. The Lender may make, carry or
transfer
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19
Fixed Rate Loans at, to or for the account of its Applicable Lending
Office or Fixed Rate Affiliate or its other offices or Affiliates. The
Lender shall not be entitled, however, to receive any greater amount under
Sections 3.03, 3.04, 4.01(f) or 4.02(f) as a result of the transfer of any
such Fixed Rate Loan to any office (other than such Applicable Lending
Office) or any Affiliate (other than such Fixed Rate Affiliate) than the
Lender would have been entitled to receive immediately prior thereto,
unless, the Lender provides reasonably satisfactory evidence to the
Borrower that (i) the transfer occurred at a time when circumstances
giving rise to the claim for such greater amount did not exist and (ii)
such claim in the relevant amount would have arisen even if such transfer
had not occurred.
(h) Affiliates Not Obligated. No Fixed Rate Affiliate or other
Affiliate of the Lender shall be deemed a party hereto or shall have any
liability or obligation hereunder.
4.03. Fees. No fees are payable in respect of the Loan Documents
except as expressly provided in that certain fee letter dated August 23, 1996
addressed to X. Xxxxxxxxxx & Co. Inc. from Citicorp North America, Inc.
ARTICLE V
CONDITIONS TO LOANS
5.01. Conditions Precedent to the Initial Loan. The obligation of
the Lender to make a Loan on the Closing Date is subject to the satisfaction of
the following conditions precedent before or concurrently with the making of
such Loan:
(a) There shall exist no action, suit, investigation, litigation or
proceeding affecting either Loan Party or any of their respective
Subsidiaries pending or threatened before any court, governmental agency
or arbitrator that (i) is reasonably likely to have a Material Adverse
Effect or (ii) purports to affect the legality, validity or enforceability
of this Agreement or any other Loan Document or the consummation of the
transactions contemplated hereby.
(b) All governmental and third party consents and approvals
necessary in connection with the transactions contemplated hereby shall
have been obtained (without the imposition of any conditions that are not
acceptable to the Lender) and shall remain in effect, and no law or
regulation shall be applicable in the reasonable judgment of the Lender
that restrains, prevents or imposes materially adverse conditions upon the
transactions contemplated hereby.
(c) The Borrower shall have paid all expenses of the Lender
(including the invoiced reasonable fees and expenses of counsel to the
Lender).
(d) The Lender shall have received on or before the Closing Date the
following, each dated such day, in form and substance satisfactory to the
Lender:
(i) The Note to the order of the Lender.
(ii) Certified copies of the resolutions of the Board of
Directors of
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20
each Loan Party approving this Agreement, the Note, each other Loan
Document to which it is or is to be a party, and of all documents
evidencing other necessary corporate action and governmental
approvals, if any, with respect to this Agreement, the Note and each
other Loan Document.
(iii) A certificate of the Secretary or an Assistant Secretary
of each Loan Party certifying the names and true signatures of the
officers of such Loan Party authorized to sign this Agreement, the
Note, each other Loan Document to which it is or is to be a party
and the other documents to be delivered hereunder and thereunder.
(iv) A guaranty in substantially the form of Exhibit D (as
amended, supplemented or modified from time to time in accordance
with its terms, the "Guaranty"), duly executed by the Guarantor.
(v) A pledge agreement in substantially the form of Exhibit E
(as amended, supplemented or modified from time to time in
accordance with its terms, the "Pledge Agreement"), duly executed by
the Guarantor, together with:
(A) the Series 1996-2 Certificate referred to therein
registered in the name of such nominee as the Lender shall
specify,
(B) executed financing statements in proper form to be
filed under the Uniform Commercial Code of the State of
Connecticut covering the Collateral described in the Pledge
Agreement, and
(C) evidence that all other action that the Lender may
deem necessary or desirable in order to perfect and protect
the first priority liens and security interests created under
the Pledge Agreement has been taken.
(vi) A favorable opinion of XxXxxxxxx, Will & Xxxxx, counsel
for the Loan Parties, in form and substance satisfactory to the
Lender.
(vii) A favorable opinion of Shearman & Sterling, counsel for
the Administrative Agent, in form and substance satisfactory to the
Lender.
SECTION 5.02. Conditions Precedent to Each Loan. The obligation of
the Lender to make a Loan (including the initial Loan) shall be subject to the
further conditions precedent on the date of such Loan (a) the following
statements shall be true (and each of the giving of the applicable Notice of
Borrowing and the acceptance by the Borrower of the proceeds of such Loan shall
constitute a representation and warranty by the Borrower that on the date of
such Loan such statements are true):
(i) the representations and warranties contained in Section 6.01 of
this Agreement and in each other Loan Document are correct on and as of
the date of such Borrowing, before and after giving effect to such
Borrowing and to the application of the proceeds therefrom, as though made
on and as of such date, and
(ii) no event has occurred and is continuing, or would result from
such Loan
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21
or from the application of the proceeds therefrom, that constitutes a
Default; and
(b) the Lender shall have received such other approvals, opinions or documents
as it may reasonably request.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.01. Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
(a) Due Organization, Etc. Each Loan Party is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation.
(b) Due Authorization and Execution, Etc. The execution, delivery
and performance by each Loan Party of this Agreement, the Note, and each
other Loan Document to which it is or is to be a party and the
consummation of the transactions contemplated hereby, are within such Loan
Party's corporate powers, have been duly authorized by all necessary
corporate action, and do not contravene (i) such Loan Party's charter or
by-laws or (ii) any law, regulation (including, without limitation,
Regulation U or X of the Board of Governors of the Federal Reserve System)
or any contractual or legal restriction binding on or affecting any Loan
Party.
(c) Government Consents. No authorization or approval or other
action by, and no notice to or filing with, any governmental authority or
regulatory body or any other third party is required for the due
execution, delivery and performance by either Loan Party to this
Agreement, the Note or any other Loan Document to which it is or is to be
a party, except for those authorizations, approvals, actions, notices and
filings which have been duly obtained, taken, given or made and are in
full force and effect.
(d) Due Execution and Delivery; Legal, Valid and Binding Nature.
This Agreement has been, and the Note and each other Loan Document when
delivered hereunder will have been, duly executed and delivered by each
Loan Party thereto. This Agreement is, and the Note and each other Loan
Document when delivered hereunder will be, the legal, valid and binding
obligation of each Loan Party party thereto enforceable against each such
Loan Party in accordance with its terms, subject to the effect of any
applicable bankruptcy, insolvency, reorganization, fraudulent conveyance
and other laws affecting the enforcement of creditor's rights generally
and to general principles of equity (whether considered in a proceeding in
equity or law).
(e) Absence of Litigation; Litigation Description. There is no
pending or, to the knowledge of any Loan Party, threatened action, suit,
investigation, litigation or proceeding, including, without limitation,
under any Environmental, Health or Safety Requirements of Law, affecting
any Loan Party before any court, governmental agency or arbitrator that
purports to affect the legality, validity or enforceability of this
Agreement, the Note or any other Loan Document or the consummation of the
transactions contemplated hereby.
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ARTICLE VII
COVENANTS OF THE BORROWER
SECTION 7.01. Affirmative Covenants. So long as any Loan shall
remain unpaid or the Lender shall have any Commitment hereunder, the Borrower
will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, with all applicable laws, rules, regulations and
orders, such compliance to include, without limitation, compliance with
ERISA and Environmental, Health or Safety Requirements of Law, except
where the failure to do so would not have or be reasonably likely to have
a Material Adverse Effect.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges or levies
imposed upon it or upon its property and (ii) all material lawful claims
that, if unpaid, might by law become a Lien upon its property other than
such Liens on Property the fair market value of which in the aggregate is
less than $100,000; provided, however, that neither the Borrower nor any
of its Subsidiaries shall be required to pay or discharge any such tax,
assessment, charge or claim that is being contested in good faith and by
proper proceedings and as to which appropriate reserves are being
maintained, unless and until any Lien resulting therefrom attaches to its
property and becomes enforceable against its other creditors.
(c) Preservation of Corporate Existence, Etc. Preserve and maintain,
and cause each of its Subsidiaries to preserve and maintain, its corporate
existence, rights (charter and statutory) and franchises; provided,
however, that the Borrower and its Subsidiaries may consummate any merger
or consolidation permitted under Section 7.02(a) and may fail to maintain
any such right or franchise where the failure to do so would not,
individually or in the aggregate, have or be reasonably likely to have a
Material Adverse Effect.
(d) Visitation Rights. At any reasonable time and from time to time,
permit the Lender or any authorized agents or representatives thereof to
examine and make copies of and abstracts from the records and books of
account of, and visit the properties of, the Borrower and any of its
Subsidiaries, and to discuss the affairs, finances and accounts of the
Borrower and any of its Subsidiaries with any of their officers or
directors and with their independent certified public accountants, in each
case upon reasonable notice and at such times during normal business
hours, as often as may be reasonably requested.
(e) Keeping of Books. Keep, and cause each of its Subsidiaries to
keep, proper books of record and account, in which in all material
respects full and correct entries shall be made of all financial
transactions and the assets and business of the Borrower and each such
Subsidiary in accordance with generally accepted accounting principles in
effect from time to time.
(f) Maintenance of Properties, Etc. Maintain and preserve, and cause
each of its Subsidiaries to maintain and preserve, all of its material
properties that are used or useful in the conduct of its business in good
working order and condition, ordinary
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wear and tear excepted; provided, however, that nothing in this Section
shall prevent the Borrower or any such Subsidiary from discontinuing the
operation or maintenance of any such Property if discontinuance is, in the
judgment of the Borrower, necessary or appropriate in the conduct of its
business or the business of any of its Subsidiaries and not
disadvantageous to the Lender.
(g) Reporting Requirements. Furnish to the Lender:
(i) as soon as possible and in any event within five Business
Days after the occurrence of each Default continuing on the date of
such statement, a statement of a Responsible Person setting forth
details of such Default and the action that the Borrower has taken
and proposes to take with respect thereto;
(ii) as soon as possible and in any event within ten Business
Days after the commencement thereof, notice of all actions and
proceedings before any court, governmental agency or arbitrator
materially affecting either Loan Party or any of its Subsidiaries of
the type described in Section 6.01(3); and
(iii) such other information respecting either Loan Party or
any of its Subsidiaries as the Lender may from time to time
reasonably request.
(h) Adjusted Net Assets of Guarantor. Cause the Guarantor to
maintain at all times Adjusted Net Assets (as defined in the Guaranty) of
not less than 102% of the Series 1996-2 Invested Amount (as defined in the
Series 1996-2 Supplement).
(i) Additional Special Purpose Covenants. The Borrower will conduct,
and will cause each of its Subsidiaries to conduct, its affairs in a
manner at all times consistent with the assumptions applicable to it set
forth in Parts III through VI, inclusive, of the opinion letter of Messrs.
XxXxxxxxx, Will & Xxxxx delivered pursuant to Section 5.01(d)(vi) of this
Agreement; provided that any references therein to any agreements shall
refer to such agreement as amended, restated, refinanced, supplemented or
otherwise modified from time to time.
SECTION 7.02. Negative Covenants. So long as any Loan shall remain
unpaid or the Lender shall have any Commitment hereunder, the Borrower will not:
(a) Mergers, Etc. Merge or consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or in
a series of transactions) all or substantially all of its assets (whether
now owned or hereafter acquired) to, any Person, or permit any of its
Subsidiaries to do so, except that any Subsidiary of the Borrower that is
not a Loan Party may merge or consolidate with or into, or dispose of
assets to, any other Subsidiary of the Borrower, and except that any
Subsidiary of the Borrower that is not a Loan Party may merge into or
dispose of assets to the Borrower and the Borrower may merge with any
other Person so long as the Borrower is the surviving corporation,
provided, in each case, that no Default shall have occurred and be
continuing at the time of such proposed transaction or would result
therefrom.
(b) Change in Nature of Business. Make, or permit any of its
Subsidiaries to make, any material change in the nature of the business as
carried on at the Closing Date.
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ARTICLE VIII
EVENTS OF DEFAULT; RIGHTS AND REMEDIES
8.01. Events of Default. Each of the following occurrences shall
constitute an Event of Default hereunder:
(a) Failure to Make Payments When Due. (i) The Borrower shall fail
to pay when due any principal or interest on the Loans payable hereunder
or (ii) any Loan Party shall fail to pay any other Obligation, and if such
non-payment relates to Obligations other than interest or principal, such
non-payment continues for a period of five (5) Business Days after the due
date thereof.
(b) Breach of Certain Covenants. The Borrower shall fail to perform
or observe duly and punctually any agreement, covenant or obligation under
Section 7.01(c), (g)(i) or (g)(ii) or Section 7.02.
(c) Breach of Representation or Warranty. Any representation or
warranty made or deemed made by any Loan Party to the Lender herein or in
any other Loan Document or in any certificate at any time given by any
such Person pursuant to any Loan Document shall be false or misleading in
any material respect on the date made (or deemed made).
(d) Other Defaults. Any Loan Party shall default in the performance
of or compliance with any term contained herein (other than as covered by
paragraph (a), (b) or (c) of this Section 8.01), or any Loan Party shall
default in the performance of or compliance with any term contained in any
other Loan Document, and such default shall continue for thirty (30) days
after the occurrence thereof.
(e) Acceleration under Syndicated Credit Agreement. Any event shall
occur or condition shall exist under the Syndicated Credit Agreement and
shall continue after the applicable grace period, if any, specified
therein, if the effect of such event or condition is to accelerate the
maturity of Indebtedness under the Syndicated Credit Agreement, or such
Indebtedness shall be declared to be due and payable prior to the stated
maturity thereof.
(f) Involuntary Bankruptcy; Appointment of Receiver, Etc. (i) An
involuntary case, proceeding or other action shall be commenced against
any Loan Party (A) under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency, reorganization or
relief of debtors, seeking to have any order for relief entered with
respect to it, or seeking to adjudicate it as bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, wind-up, liquidation,
dissolution, composition or other relief with respect to it or its debts,
or (B) seeking appointment of a receiver, trustee, receiver-manager,
liquidator, sequestrator, administrator, custodian or similar official for
it or of all or any substantial part of its assets which case, proceeding
or other action results in entry of an order for relief or any such
adjudication or appointment or (C) remains undismissed, undischarged or
unbonded for period of sixty (60) days; or a court having jurisdiction in
the premises shall enter a decree or order for relief in respect of any
Loan Party in an involuntary
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25
case, under any applicable bankruptcy, insolvency or other similar law now
or hereinafter in effect; or any other similar relief shall be granted
under any applicable federal, state, local or foreign law.
(ii) A decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, receiver-manager, liquidator,
sequestrator, trustee, custodian or other officer having similar powers
over any Loan Party or over all or a substantial part of the Property of
any Loan Party shall be entered; or an interim receiver, trustee or other
custodian of any Loan Party or of all or a substantial part of the
property of any Loan Party shall be appointed or a warrant of attachment,
execution or similar process against any substantial part of the Property
of any Loan Party shall be issued and any such event shall not be stayed,
dismissed, bonded or discharged within sixty (60) days after entry,
appointment or issuance.
(g) Voluntary Bankruptcy; Appointment of Receiver, Etc. Any Loan
Party shall (i) commence any voluntary case, proceeding or other action
(A) under any existing or future law or any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have any order for relief entered with respect to it,
or seeking to adjudicate it as bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, wind-up, liquidation,
dissolution, composition or other relief with respect to it or its debts,
or (B) seeking appointment of a receiver, trustee, receiver-manager,
liquidator, sequestrator, administrator, custodian or similar official for
it or for all or any substantial part of its assets, or (ii) shall consent
to the entry of an order for relief in an involuntary case, or to the
conversion of a voluntary case, under any such law, or (iii) shall consent
to the appointment of or taking possession by a receiver,
receiver-manager, liquidator, sequestrator, trustee or other custodian or
other officer for all or a substantial part of its property; or (iv) any
Loan Party shall generally not pay its debts as such debts become due, or
shall admit in writing its inability to pay its debts generally, or shall
make any general assignment for the benefit of creditors; or (v) any Loan
Party shall take any other action to authorize any of the actions set
forth in this paragraph (g).
(h) Loan Documents; Failure of Security. At any time, for any
reason, (i) any Loan Document ceases to be in full force and effect
(except in accordance with its terms) or any Loan Party party thereto
seeks to repudiate its obligations thereunder and the Liens intended to be
created thereby are, or any Loan Party seeks to render such Liens, invalid
or unperfected, or (ii) Liens in favor of the Lender contemplated by the
Loan Documents shall, at any time, for any reason, be invalidated or
otherwise cease to be in full force and effect, or such Liens shall be
subordinated or shall not have the priority contemplated hereby or by the
other Loan Documents.
(i) Change of Control. Xxxxxxxxxx Holding Corporation, a Delaware
corporation, shall cease to retain beneficial ownership (within the
meaning of Rule 13d-3 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934), directly or indirectly, of 100% of the
voting stock of each Loan Party.
8.02. Rights and Remedies; Acceleration and Termination. Upon the
occurrence of any Event of Default described in Section 11.01(f) or 11.01(g),
the Commitment shall automatically and immediately terminate and the unpaid
principal amount of, and any and all accrued interest on, the Obligations shall
automatically become immediately due and
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26
payable, without presentment, demand, or protest or other requirements of any
kind (including, without limitation, valuation and appraisement, diligence,
presentment, notice of intent to demand or accelerate and of acceleration), all
of which are hereby expressly waived by the Borrower; and upon the occurrence
and during the continuance of any other Event of Default, the Lender may, by
written notice to the Borrower, (i) declare that all or any portion of the
Commitment is terminated, whereupon the Commitment and the obligation of the
Lender to make any Loan hereunder shall immediately terminate, and/or (ii)
declare the unpaid principal amount of and any and all accrued and unpaid
interest on the Obligations to be, and the same shall thereupon be, immediately
due and payable, without presentment, demand, or protest or other requirements
of any kind (including, without limitation, valuation and appraisement,
diligence, presentment, notice of intent to demand or accelerate and of
acceleration), all of which are hereby expressly waived by the Borrower.
8.03. Rights and Remedies; Conversion of Currencies. If an Event of
Default shall have occurred and be continuing for two Business Days or more, the
Lender may by notice to the Borrower (which notice shall be sent by both
facsimile and courier and, if so sent, shall become effective when sent) convert
the applicable currency of all Obligations of the Loan Parties into Dollars at
the Dollar Equivalent of each respective Available Currency on the date on which
such notice is given, which Obligations shall thereupon without further action
become Obligations denominated in Dollars at such Dollar Equivalent and shall
become Floating Rate Loans; provided, however, that the Lender agrees not to
make such conversion so long as either (i) the Revolving Credit Availability, as
calculated on a daily basis (including a daily xxxx to market of the Revolving
Credit Obligations based on the most current Spot Rates then applicable) is
equal to or greater than $500,000 or (ii) the Borrower shall have entered into,
and shall maintain in effect, one or more foreign currency hedging arrangements,
each in form and substance satisfactory to the Lender, that protect the Lender
from all foreign currency risks arising from its funding in Dollars each Loan it
has made in another currency.
ARTICLE IX
MISCELLANEOUS
9.01. Assignments. (a) Assignments. No assignments or participations
of the Lender's rights or obligations hereunder shall be made except in
accordance with this Section 9.01.
(b) Limitations on Assignments. The Lender shall not assign any of
its rights or obligations hereunder.
(c) Lender's Creation of Security Interests. Notwithstanding any
other provision set forth herein, the Lender may at any time create a security
interest in all or any portion of its rights hereunder (including, without
limitation, Obligations owing to it and the Note held by it) in favor of any
Federal Reserve bank in accordance with Regulation A; provided, however, such
assignment shall not release the Lender from any of its obligations hereunder.
(d) Participations. The Lender may sell participations to one or
more other financial institutions in or to all or a portion of its rights and
obligations under and in respect of any and all facilities hereunder (including,
without limitation, all or a portion of any or all of its Commitment hereunder
and the Loans owing to it); provided, however, that (i) the
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27
Lender's obligations hereunder (including, without limitation, its Commitment
hereunder) shall remain unchanged, (ii) the Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) the Borrower shall continue to deal solely and directly with the Lender in
connection with the Lender's rights and obligations hereunder and (iv) such
participant's rights to agree or to restrict the Lender's ability to agree to
the modification, waiver or release of any of the terms of the Loan Documents or
to the release of any Collateral covered by the Loan Documents, to consent to
any action or failure to act by any party to any of the Loan Documents or any of
their respective Subsidiaries or Affiliates, or to exercise or refrain from
exercising any powers or rights which the Lender may have under or in respect of
the Loan Documents or any Collateral, shall be limited to the right to consent
to (A) reduction of the principal of, or rate or amount of interest on the
Loans(s) subject to such participation (other than by the payment or prepayment
thereof), (B) postponement of any scheduled date for any payment of principal
of, or interest on, the Loan(s) subject to such participation (except with
respect to any modifications of the applicable provisions relating to the
prepayments of Loans and other Obligations) and (C) release of any guarantor of
the Obligations or all or any substantial portion of the Collateral. No holder
of a participation in all or any part of the Loans shall be a "Lender" or a
"Holder" for any purposes hereunder by reason of such participation; provided,
however, that each holder of a participation shall have the rights and
obligations of the Lender (including any right to receive payment) under
Sections 3.03, 3.04, 4.01(f), 4.02(d), 4.02(f), 9.02 and 9.04; provided,
however, that all requests for any payments pursuant to such Sections shall be
made by a participant through the Lender. The right of each holder of a
participation to receive payment under Sections 3.03, 3.04, 4.01(f), 4.02(d),
4.02(f), 9.02 and 9.04 shall be limited to the lesser of (i) the amounts
actually incurred by such holder for which payment is provided under said
Sections and (ii) the amounts that would have been payable under said Sections
by the Borrower to the Lender in respect of the participated interest to such
holder had such participation not been granted.
(e) Payment to Participants. Anything herein to the contrary
notwithstanding, in the case of any participation, all amounts payable by the
Borrower under the Loan Documents shall be calculated and made in the manner and
to the parties required hereby as if no such participation had been sold.
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28
9.02. Expenses. (a) Generally. The Borrower agrees upon demand to
pay, or reimburse the Lender for all of the Lender's reasonable internal and
external audit, legal, appraisal, valuation, filing, document duplication and
reproduction and investigation expenses and for all other reasonable
out-of-pocket costs and expenses of every type and nature (including, without
limitation, the reasonable fees, expenses and disbursements of the Lender's
counsel, auditors, accountants, appraisers, printers, insurance and
environmental advisers, and other consultants and agents), incurred by the
Lender in connection with (A) the Lender's audit and investigation of the Loan
Parties in connection with the preparation, negotiation, and execution of the
Loan Documents and the Lender's periodic audits of the Loan Parties; (B) the
preparation, negotiation, execution and interpretation hereof (including,
without limitation, the satisfaction or attempted satisfaction of any of the
conditions set forth in Article V), the other Loan Documents and the making of
the Loans hereunder; (C) the creation, perfection or protection of the Liens
under the Loan Documents (including, without limitation, any reasonable fees and
expenses for local counsel in various jurisdictions); (D) the ongoing
administration hereof and of the Loans, including consultation with attorneys in
connection therewith and with respect to the Lender's rights and
responsibilities hereunder and under the other Loan Documents; (E) the
protection, collection or enforcement of any of the Obligations or the
enforcement of any of the Loan Documents; (F) the commencement, defense or
intervention in any court proceeding relating in any way to the Obligations, any
Loan Party, this Agreement or any of the other Loan Documents; (G) the response
to, and preparation for, any subpoena or request for document production with
which the Lender is served or deposition or other proceeding in which the Lender
is called to testify, in each case, relating in any way to the Obligations, any
Loan Party, this Agreement or any of the other Loan Documents; and (H) any
amendments, consents, waivers, assignments, restatements, or supplements to any
of the Loan Documents and the preparation, negotiation, and execution of the
same.
(b) After Default. The Borrower further agrees to pay or reimburse
the Lender, within five (5) Business Days after such Person's informing the
Borrower thereof in writing accompanied by a copy of a related invoice or
similar statement in reasonable detail and reasonably detailed supporting
information with respect thereto, for all reasonable out-of-pocket costs and
expenses, including, without limitation, reasonable attorneys' fees, incurred by
the Lender (i) in enforcing any Loan Document or Obligation or any security
therefor or exercising or enforcing any other right or remedy available by
reason of any Event of Default; (ii) in connection with any refinancing or
restructuring of the credit arrangements provided hereunder in the nature of a
"work-out" or in any insolvency or bankruptcy proceeding; (iii) in commencing,
defending or intervening in any litigation or in filing a petition, complaint,
answer, motion or other pleadings in any legal proceeding relating to the
Obligations or any Loan Party and related to or arising out of the transactions
contemplated hereby or by any of the other Loan Documents; and (iv) in taking
any other action in or with respect to any suit or proceeding (bankruptcy or
otherwise) described in clauses (i) through (iii) above.
9.03. Indemnity. The Borrower further agrees to defend, protect,
indemnify, and hold harmless the Lender and each of its Affiliates, and each of
the Lender's or such Affiliate's respective officers, directors, employees,
attorneys and agents (including, without limitation, those retained in
connection with the satisfaction or attempted satisfaction of any of the
conditions set forth in Article V) (collectively, the "Indemnitees") from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, claims, costs, expenses and disbursements of any kind
or nature whatsoever (including, without
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29
limitation, the reasonable fees and disbursements of counsel for such
Indemnitees in connection with any investigative, administrative or judicial
proceeding, whether or not such Indemnitees shall be designated a party
thereto), imposed on, incurred by, or asserted against such Indemnitees in any
manner relating to or arising out of or in connection with (a) this Agreement,
the other Loan Documents or any act, event or transaction related or attendant
thereto, whether or not any such Indemnitee is a party thereto and whether or
not such transactions are consummated, the making of the Loans, the management
of such Loans, the use or intended use of the proceeds of the Loans hereunder,
or any of the other transactions contemplated hereunder, or (b) any liabilities
and costs under Environmental, Health or Safety Requirements of Law arising from
or in connection with the past, present or future operations of any Loan Party
or any of their respective predecessors in interest, or, the past, present or
future environmental, health or safety condition of any respective property of
any Loan Party, the presence of asbestos-containing materials or suspected
asbestos-containing materials at any respective property of any Loan Party or
the Release or threatened Release of any Contaminant into the environment
(collectively, the "Indemnified Matters"); provided, however, the Borrower shall
have no obligation to an Indemnitee hereunder with respect to Indemnified
Matters resulting from the willful misconduct or gross negligence of such
Indemnitee, as determined in a judgment by a court of competent jurisdiction. 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, the Borrower shall contribute the maximum portion which it is
permitted to pay and satisfy under applicable law, to the payment and
satisfaction of all Indemnified Matters incurred by the Indemnitees.
9.04. Setoff. In addition to any Liens granted under the Loan
Documents and any rights now or hereafter granted under applicable law, upon the
occurrence and during the continuance of any Event of Default, the Lender and
any Affiliate of the Lender is hereby authorized by the Borrower at any time or
from time to time, without notice to any Person (any such notice being hereby
expressly waived) to combine accounts or 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 the Lender or any of its Affiliates to or for the credit or the
account of the Borrower against and on account of the Obligations of the
Borrower to the Lender or any of its Affiliates, including, but not limited to,
all Loans and all claims of any nature or description arising out of or in con
nection herewith, irrespective of whether or not (i) the Lender shall have made
any demand hereunder or (ii) the Lender shall have declared the principal of and
interest on the Loans and other amounts due hereunder to be due and payable as
permitted by Article VIII and even though such Obligations may be contingent or
unmatured. The Lender shall give the Borrower notice of any action taken
pursuant to this Section 9.04 promptly upon the occurrence thereof provided that
any failure to do so shall not limit any right of the Lender to take such
action.
9.05. Amendments and Waivers. Unless otherwise provided herein, no
amendment or modification of any provision hereof shall be effective without the
written agreement of the Lender and the Borrower, and no termination or waiver
of any provision hereof, or consent to any departure by the Borrower therefrom,
shall be effective without the written concurrence of the Lender, which the
Lender shall have the right to grant or withhold in its sole discretion.
9.06. Notices. (a) Unless otherwise specifically provided herein,
any notice, consent or other communication herein required or permitted to be
given shall be in writing
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30
and may be personally served, telecopied, or sent by courier service or the
United States mails and shall be deemed to have been given (i) ten (10) days
following deposit in the United States mails, with proper postage prepaid, (ii)
upon delivery thereof to a reputable overnight courier service, with delivery
charges prepaid, (iii) when delivered in person or (iv) upon confirmation of
receipt of a telecopy. Notices to the Lender pursuant to Article II, III or IV
shall not be effective until received by the Lender. For the purposes hereof,
the addresses of the parties hereto (until notice of a change thereof is
delivered as provided in this Section 9.06) shall be as set forth below each
party's name on the signature pages hereof or, as to each party, at such other
address as may be designated by such party in a written notice to all of the
other parties hereto.
(b) The Borrower agrees to indemnify and hold harmless each
Indemnitee from and against any and all claims, damages, liabilities,
obligations, losses, penalties, actions, judgments, suits, costs, disbursements
and expenses of any kind or nature (including, without limitation, reasonable
fees and disbursements of counsel to any such Indemnitee) which may be imposed
on, incurred by or asserted against any such Indemnitee in any manner relating
to or arising out of any action taken or omitted by such Indemnitee in good
faith in reliance on any notice or other written communication in the form of a
telecopy or facsimile purporting to be from the Borrower; provided that the
Borrower shall not have any obligation under this Section 9.06(b) to an
Indemnitee with respect to any indemnified matter caused by or resulting from
the gross negligence or willful misconduct of that Indemnitee, as determined by
a court of competent jurisdiction.
9.07. Survival of Warranties and Agreements. All representations and
warranties made herein and all obligations of the Borrower in respect of taxes,
indemnification and expense reimbursement shall survive the execution and
delivery hereof and of the other Loan Documents, the making and repayment of the
Loans and the termination of the Commitment hereunder and shall not be limited
in any way by the passage of time or occurrence of any event and shall expressly
cover time periods when the Lender may have come into possession or control of
any of any Loan Party's property.
9.08. Failure or Indulgence Not Waiver; Remedies Cumulative. No
failure or delay on the part of the Lender in the exercise of any power, right
or privilege under any of the Loan Documents 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 the Loan Documents are
cumulative to and not exclusive of any rights or remedies otherwise available.
9.09. Marshalling; Payments Set Aside. The Lender shall not be under
any obligation to xxxxxxxx any assets in favor of the Borrower or any other
party or against or in payment of any or all of the Obligations. To the extent
that the Borrower makes a payment or payments to the Lender or the Lender
receives payment from the proceeds of the Collateral or exercise its of setoff,
and such payment or payments or the proceeds of such enforcement or setoff or
any part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside or required to be repaid to a trustee, receiver or any
other party, then to the extent of such recovery, the obligation or part thereof
originally intended to be satisfied, and all Liens, right and remedies therefor,
shall be revived and continued in full force and effect as if such payment had
not been made or such enforcement or setoff had not occurred.
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9.10. Severability. In case any provision in or obligation hereunder
or under the other Loan Documents 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.
9.11. Headings. Section headings herein are included herein for
convenience of reference only and shall not constitute a part hereof or be given
any substantive effect.
9.12. Governing Law. THIS AGREEMENT SHALL BE INTERPRETED, AND THE
RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED, IN ACCORDANCE WITH THE
LAW OF THE STATE OF NEW YORK.
9.13. Successors and Assigns. This Agreement and the other Loan
Documents shall be binding upon the parties hereto and their respective
successors and permitted assigns and shall inure to the benefit of the parties
hereto and the successors and permitted assigns of the Lender. The rights
hereunder and the interest herein of the Borrower may not be assigned without
the written consent of the Lender. Any attempted assignment without such written
consent shall be void.
9.14. Counterparts; Effectiveness; Inconsistencies. This Agreement
and any amendments, waivers, consents, or supplements hereto may be executed in
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 against the Borrower and
the Lender on the date hereof. This Agreement and each of the other Loan
Documents shall be construed to the extent reasonable to be consistent one with
the other, but to the extent that the terms and conditions hereof are actually
inconsistent with the terms and conditions of any other Loan Document, this
Agreement shall govern.
9.15. Confidentiality. The Lender shall hold all nonpublic
information obtained pursuant to the requirements hereof and identified as such
by the Borrower in accordance with safe and sound banking practices and in any
event may make disclosure reasonably required by a bona fide offeree or
participant in connection with the contemplated participation, or as required or
requested by any Governmental Authority or representative thereof, or pursuant
to legal process, or to its accountants, lawyers and other advisors who shall be
informed of the confidential nature of such information, and shall require any
such offeree or participant to agree (and require any of its offerees, assignees
or participants to agree) to comply with this Section 9.15. In no event shall
the Lender be obligated or required to return any materials furnished by the
Borrower; provided, however, each offeree shall be required to agree that if it
does not become a participant it shall return all materials furnished to it by
the Borrower in connection herewith. In the event the Lender is requested or
required by law to disclose any of such information, the Lender agrees to will
provide the Borrower with prompt notice thereof; provided, however, the Lender
may, without restriction hereunder, including the providing of such notice,
provide any and all of such information to any of the agencies or other
governmental entities which regularly regulate its ability to engage in any of
its businesses under state or federal law.
9.16. Judgment Currency. (a) If for the purposes of obtaining
judgment in any court it is necessary to convert a sum due hereunder or under
the Note in any currency to another currency the parties hereto agree, to the
fullest extent that they may effectively do so,
Credit Agreement
32
that the rate of exchange used shall be the Spot Rate on the 2nd Business Day
preceding that on which judgment is given.
(b) The obligation of the Borrower in respect of any sum due in the
original currency from it to the Lender hereunder or under the Note shall,
notwithstanding any judgment in any other currency, be discharged only to the
extent that on the Business Day following receipt by the Lender of any sum
adjudged to be so due in such other currency the Lender may in accordance with
normal banking procedures purchase the original currency with such other
currency; if the amount of the original currency so purchased is less than the
sum originally due to the Lender in the original currency, the Borrower agrees,
as a separate obligation and notwithstanding any such judgment, to indemnify the
Lender against such loss, and if the amount of the original currency so
purchased exceeds the sum originally due to the Lender in the original currency,
the Lender agrees to remit to the Borrower such excess.
9.17. Entire Agreement. This Agreement, taken together with all of
the other Loan Documents embodies the entire agreement and understanding among
the parties hereto and supersedes all prior agreements and understandings,
written and oral, relating to the subject matter hereof.
9.18. Intercreditor Agreement. The Lender and each holder of the
Note, by accepting the benefits of the Loan Documents, hereby consents to the
terms of the Intercreditor Agreement and agrees to be bound by the terms
thereof.
9.19. Certain Consents and Waivers. (a) Personal Jurisdiction. (i)
Each of the Lender and the Borrower irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any New York State
court or federal court sitting in New York, New York, and any court having
jurisdiction over appeals of matters heard in such courts, in any action or
proceeding arising out of, connected with, related to or incidental to the
relationship established among them in connection with this agreement or the
other loan documents, whether arising in contract, tort, equity or otherwise, or
for recognition or enforcement of any judgment, and each of the parties hereto
irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in such state court or, to the
extent permitted by law, in such federal court. Each of the Lender and the
Borrower agrees that a final non-appealable judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. The Borrower waives
in all disputes any objection that it may have to the location of the court
considering the dispute.
(ii) The Borrower agrees that the Lender shall have the right to
proceed against such Person or its property in a court in any location to enable
the Lender to realize on the Collateral or any other security for the
Obligations, or to enforce a judgment or other court order entered in favor of
the Lender. The Borrower waives any objection that it may have to the location
of the court in which the Lender may commence a proceeding described in this
Section.
(b) Service of Process. The Borrower irrevocably consents to the
service of process of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to the Process Agent or the Borrower's notice address specified
pursuant to Section 9.06, such service to become effective five (5) days after
such mailing. The Borrower irrevocably waives any objection (including,
Credit Agreement
33
without limitation, any objection to the laying of venue or based on the grounds
of forum non conveniens) which it may now or hereafter have to the bringing of
any such action or proceeding with respect to this Agreement or any other Loan
Document in any jurisdiction set forth above. Nothing herein shall affect the
right to serve process in any other manner permitted by law or shall limit the
right of the Lender to bring proceedings against the Borrower in the courts of
any other jurisdiction.
Credit Agreement
34
(c) Waiver of Jury Trial. Each of the Lender and the Borrower waives
any right to trial by jury in any dispute, whether sounding in contract, tort,
or otherwise, between the Lender or the Borrower arising out of or related to
the transactions contemplated by this Agreement or any other Loan Document. Any
such person may file an original counterpart or a copy of this Agreement with
any court as written evidence of the consent of the parties hereto to the waiver
of their right to trial by jury.
IN WITNESS WHEREOF, this Agreement has been duly executed as of the
date first above written.
PEGASUS POLYMERS INTERNATIONAL INC.
By:________________________________
Name:
Title:
Notice Address:
c/o X. Xxxxxxxxxx & Co., Inc.
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Chief Financial Officer
Telecopier No.: (000) 000-0000
Confirmation No.: (000) 000-0000
Credit Agreement
35
CITIBANK, N.A.
By:________________________________
Name:
Title:
Notice Address:
c/o Citicorp USA, Inc.
000 Xxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx
Telecopier No.: (000) 000-0000
Confirmation No.: (000) 000-0000
Applicable Lending Office:
Citibank, N.A.
Structured Finance Department
0xx Xxxxx
Xxxxxxx Xxxxxx
Xxxx Xxxx
Xxxxxx XX0 0XX Xxxxxxx
Attention: Xxxxxxx Xxxxx/Xxxx Xxxxxx
Telecopier No.: 011-441-71-234-2398
Confirmation No.: 011-441-71-234-2391 or -2392
Credit Agreement
