CREDIT AGREEMENT
Dated as of March 28, 2001
AMERICAN SAFETY RAZOR COMPANY, a Delaware corporation (the "Borrower"), and
BANK OF AMERICA, N.A. (together with its successors and assigns, the
"Lender"), agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. Capitalized terms not
otherwise defined in this Agreement shall have the same meanings as specified
therefor in the Credit Agreement dated as of April 23, 1999 (as amended,
supplemented or otherwise modified, the "Existing Credit Agreement") among the
Borrower, RSA Holdings Corp. of Delaware, a Delaware corporation, the lender
parties party thereto, DLJ Capital Funding, Inc. ("DLJ"), as syndication agent,
DLJ and Banc of America Securities LLC, as successor by merger to NationsBanc
Xxxxxxxxxx Securities LLC, as co-arrangers, and BofA, as successor by merger to
NationsBank, N.A., as administrative agent and collateral agent for the lender
parties thereunder. As used in this Agreement, the following terms shall have
the following meanings (such meanings to be equally applicable to both the
singular and plural forms of the terms defined):
"2001 EBITDA" means Consolidated EBITDA of the Borrower and its
Subsidiaries for the fiscal year 2001 as reported to the Administrative
Agent in accordance with the provisions of the Existing Credit
Agreement.
"Applicable Lending Office" means the Lender's Domestic Lending
Office in the case of a Base Rate Loan and the Lender's Eurodollar
Lending Office in the case of a Eurodollar Rate Loan.
"Base Rate" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to
the higher of:
(a) the rate of interest announced publicly by Bank of
America, N.A., in New York, New York, from time to time, as its
prime rate; and
(b) 0.50% per annum above the Federal Funds Rate.
"Base Rate Loan" means a Loan that bears interest as provided in
Section 2.06(a)(i).
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurodollar Rate Loans, on which
dealings are carried on in the London interbank market.
"Commitment" has the meaning specified in Section 2.01.
"Convert", "Conversion" and "Converted" each refers to a
conversion of Loans of one Type into Loans of the other Type pursuant to
Section 2.07 or 2.08.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Domestic Lending Office" means the office of the Lender
specified as its "Domestic Lending Office" opposite its name on Schedule
I hereto, or such other office of the Lender as the Lender may from time
to time specify to the Borrower.
"Effective Date" has the meaning specified in Section 3.01.
"Eurocurrency Liabilities" has the meaning assigned to that term
in Regulation D of the Board of Governors of the Federal Reserve System,
as in effect from time to time.
"Eurodollar Lending Office" means the office of the Lender
specified as its "Eurodollar Lending Office" opposite its name on
Schedule I hereto, or such other office of the Lender as the Lender may
from time to time specify to the Borrower.
"Eurodollar Rate" means, for any Interest Period for a Eurodollar
Rate Loan, an interest rate per annum equal to the rate per annum
obtained by dividing (a) the rate per annum appearing on page 3750 (or
any successor page) of the Dow Xxxxx Markets Telerate Screen as the
London interbank offered rate for deposits in U.S. dollars at 11:00 A.M.
(London time) two Business Days before the first day of such Interest
Period and for a term comparable to such Interest Period; provided that,
if for any reason such rate is not available, the term "Eurodollar Rate"
shall mean, for any Interest Period for a Eurodollar Rate Loan, the rate
per annum appearing on Reuters Screen LIBO Page as the London interbank
offered rate for deposits in U.S. dollars at approximately 11:00 A.M.
(London time) two Business Days before the first day of such Interest
Period for a term comparable to such Interest Period (and, if more than
one rate is specified on Reuters Screen LIBO Page at such time, the
applicable rate shall be the arithmetic mean of all such rates), by (b)
a percentage equal to 100% minus the Eurodollar Rate Reserve Percentage
for such Interest Period.
"Eurodollar Rate Loan" means a Loan that bears interest as
provided in Section 2.06(a)(ii).
"Eurodollar Rate Reserve Percentage" means, for any Interest
Period for a Eurodollar Rate Loan, the reserve percentage applicable two
Business Days before the first day of such Interest Period under
regulations issued from time to time by the Board of Governors of the
Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement) for a member bank of
the Federal Reserve System in New York City with respect to liabilities
or assets consisting of or including Eurocurrency Liabilities (or with
respect to any other category of liabilities that includes deposits by
reference to which the interest rate on Eurodollar Rate Loans is
determined) having a term equal to such Interest Period.
"Event of Default" has the meaning specified in Section 5.01.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank of
New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day on such
transactions received by the Lender from three Federal funds brokers of
recognized standing selected by it.
"Guarantor" means X.X. Childs Equity Partners II, L.P., a
Delaware limited partnership.
"Guaranty" has the meaning specified in Section 3.01(e)(ii).
"Indemnified Party" has the meaning specified in Section 6.04(b).
"Interest Period" means, for each Eurodollar Rate Loan, the
period commencing on the date of such Eurodollar Rate Loan or the date
of the Conversion of any Base Rate Loan into such Eurodollar Rate Loan
and ending on the last day of the period selected by the Borrower
pursuant to the provisions below and, thereafter, each subsequent period
commencing on the last day of the immediately preceding Interest Period
and ending on the last day of the period selected by the Borrower
pursuant to the provisions below. The duration of each such Interest
Period shall be one week or one, two, three or six months, as the
Borrower may, upon notice received by the Lender not later than 12:00
Noon (New York time) on the third Business Day prior to the first day of
such Interest Period, select; provided, however, that:
(a) the Borrower may not select any Interest Period that
ends after the Termination Date;
(b) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day
of such Interest Period shall be extended to occur on the next
succeeding Business Day, provided, however, that, if such
extension would cause the last day of such Interest Period to
occur in the next following calendar month, the last day of such
Interest Period shall occur on the next preceding Business Day;
and
(c) whenever the first day of any Interest Period occurs
on a day of an initial calendar month for which there is no
numerically corresponding day in the calendar month that succeeds
such initial calendar month by the number of months equal to the
number of months in such Interest Period, such Interest Period
shall end on the last Business Day of such succeeding calendar
month.
.
"Internal Revenue Code" means the Internal Revenue Code of 1986,
as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"Loan" means a Loan by the Lender to the Borrower pursuant to
Article II, and refers to a Base Rate Loan or a Eurodollar Rate Loan
(each of which shall be a "Type" of Loan).
"BofA Loan Documents" means, collectively, this Agreement, the
Note and the Guaranty.
"BofA Loan Material Adverse Effect" means (a) a Material Adverse
Effect or (b) a material adverse effect on (i) the assets, business,
condition (financial or otherwise), operations, performance, properties
or prospects of the Borrower or the Guarantor, (ii) the rights and
remedies of the Lender under any BofA Loan Document or (iii) the ability
of any BofA Loan Party to perform its Obligations under any BofA Loan
Document to which it is or is to be a party.
"BofA Loan Parties" means the Borrower and the Guarantor.
"Note" means a promissory note of the Borrower payable to the
order of the Lender, in substantially the form of Exhibit A hereto,
evidencing the aggregate indebtedness of the Borrower to the Lender
resulting from the Loans made by the Lender hereunder.
"Notice of Loan" has the meaning specified in Section 2.02.
"Other Taxes" has the meaning specified in Section 2.12(b).
"Taxes" has the meaning specified in Section 2.12(a).
"Termination Date" means the earlier of (a) March 31, 2003 and
(b) the date of termination in whole of the Commitment pursuant to
Section 2.04 or 5.01.
SECTION 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".
ARTICLE II
AMOUNTS AND TERMS OF THE LOANS
SECTION 2.01. The Loans. The Lender agrees, on the terms and
conditions hereinafter set forth, to make Loans to the Borrower from time to
time on any Business Day during the period from the Effective Date until the
Termination Date in an aggregate amount not to exceed $5,000,000 (the
"Commitment"); provided, however, that after March 31, 2002, or such
earlier date on which the Borrower has provided to the Lender notice of
Borrower's Consolidated EBITDA for fiscal year 2001, the Lender shall only make
Loans to the Borrower hereunder if either (i) 2001 EBITDA is less than
$48,925,000 or (ii) the aggregate amount of the Unused Working Capital
Commitments under the Existing Credit Agreement is equal to zero. Each Loan
shall be in a minimum amount of $250,000 or an integral multiple of $50,000 in
excess thereof. Within the limits of the Commitment, the Borrower may borrow
under this Section 2.01, prepay pursuant to Section 2.09 and reborrow under this
Section 2.01.
SECTION 2.02. Making the Loans. (a) Each Loan shall be made on
notice, given not later than 12:00 Noon (New York time) on the third Business
Day prior to the date of the proposed Loan in the case of a Eurodollar Rate
Loan, or the first Business Day prior to the date of the proposed Loan in the
case of a Base Rate Loan, by the Borrower to the Lender. Each such notice of a
Loan (a "Notice of Loan") shall be by telephone, confirmed immediately in
writing, or telecopier or telex, specifying therein the requested (i) date of
such Loan, (ii) Type of such Loan, (iii) aggregate amount of such Loan, and (iv)
in the case of a Eurodollar Rate Loan, initial Interest Period for such Loan.
Upon fulfillment of the applicable conditions set forth in Article III, the
Lender will make such funds available to the Borrower at its Applicable Lending
Office.
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(b) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrower may not select Eurodollar Rate Loans for any
Loan if the amount of such Loan is less than $250,000 or if the obligation of
the Lender to make Eurodollar Rate Loans shall then be suspended pursuant to
Section 2.07 or 2.10(c) and (ii) no more than five separate Eurodollar Rate
Loans may be outstanding at any time.
(c) Each Notice of Loan shall be irrevocable and binding on the
Borrower. In the case of any Loan that the related Notice of Loan specifies it
to be a Eurodollar Rate Loan, the Borrower shall indemnify the Lender against
any loss, cost or expense incurred by the Lender as a result of any failure to
fulfill on or before the date specified in the Notice of Loan for such Loan the
applicable conditions set forth in Article III and if, as a result of such
failure, the related Loan is not made on such date, the Borrower will pay to the
Lender an amount equal to the present value (calculated in accordance with this
Section 2.02(c)) of interest for the Interest Period specified in such Notice of
Loan on the amount of such Loan, at a rate per annum equal to the excess of (a)
the Eurodollar Rate that would have been in effect for such Interest Period over
(b) the Eurodollar Rate applicable on the date of determination to a deemed
Interest Period ending on the last day of such Interest Period. The present
value of such additional interest shall be calculated by discounting the amount
of such interest for each day in the Interest Period specified in such Notice of
Loan from such day to the date of such repayment or termination at an interest
rate per annum equal to the interest rate determined pursuant to the immediately
preceding sentence, and by adding all such amounts for all such days during such
period. The determination by the Lender of such amount of interest shall be
conclusive and binding, absent manifest error.
SECTION 2.03. Commitment Fee. The Borrower agrees to pay to the
Lender a commitment fee on the average daily unused portion of the Commitment at
a rate per annum equal to 0.375%, payable in arrears quarterly on the last
Business Day of each March, June, September and December, commencing March 31,
2001, and on the Termination Date.
SECTION 2.04. Termination or Reduction of the Commitments.
Subject to the approval of the Required Lenders, the Borrower shall have the
right, upon at least five Business Days' notice to the Lender, to terminate in
whole or reduce in part the unused portion of the Commitment, provided that each
partial reduction shall be in the minimum amount of $250,000 or an integral
multiple of a $50,000 in excess thereof.
SECTION 2.05. Repayment. The Borrower shall repay to the Lender
on the Termination Date the aggregate principal amount of the Loans
then outstanding.
SECTION 2.06. Interest. (a) Scheduled Interest. The Borrower
shall pay interest on the unpaid principal amount of each Loan from
the date of such Loan until such principal amount shall be paid in
full, at the following rates per annum:
(i) Base Rate Loans. During such periods as such Loan is a Base
Rate Loan, a rate per annum equal at all times to the sum of (x) the
Base Rate in effect from time to time minus (y) 0.50% per annum, payable
in arrears quarterly on the last Business Day of each March, June,
September and June during such periods and on the date such Base Rate
Loan shall be Converted or paid in full.
(ii) Eurodollar Rate Loans. During such periods as such Loan is a
Eurodollar Rate Loan, a rate per annum equal at all times during each
Interest Period for such Loan to the sum of (x) the Eurodollar Rate for
such Interest Period for such Loan plus (y) 1.75% per annum, payable in
arrears on the last day of such Interest Period and, if such Interest
Period has a duration of more than three months, on each day that occurs
during such Interest Period every three months from the first day of
such Interest Period and on the date such Eurodollar Rate Loan shall be
Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the
continuance of a Default under paragraph (a) or (f) of Article V, the Borrower
shall pay interest on (i) the unpaid principal amount of each Loan, payable in
arrears on the dates referred to in clause (a)(i) or (a)(ii) above, at a rate
per annum equal at all times to 2% per annum above the rate per annum required
to be paid on such Loan pursuant to clause (a)(i) or (a)(ii) above and (ii) to
the fullest extent permitted by law, the amount of any interest, fee or other
amount payable hereunder that is not paid when due, from the date such amount
shall be due until such amount shall be paid in full, payable in arrears on the
date such amount shall be paid in full and on demand, at a rate per annum equal
at all times to 2% per annum above the rate per annum required to be paid, in
the case of interest, on the Type of Loan on which such interest has accrued
pursuant to clause (a)(i) or (a)(ii) above, and, in all other cases, on Base
Rate Loans pursuant to clause (a)(i) above.
SECTION 2.07. Interest Rate Determination. (a) The Lender shall give prompt
notice to the Borrower of the applicable interest rate determined by the Lender
for purposes of Section 2.06(a)(i) or (ii).
(b) If, with respect to any Eurodollar Rate Loans, the Lender
determines that the Eurodollar Rate for any Interest Period for such Loans will
not adequately reflect the cost to the Lender of making, funding or maintaining
the Eurodollar Rate Loans for such Interest Period, the Lender shall forthwith
so notify the Borrower, whereupon (i) each such Eurodollar Rate Loan will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Loan, and (ii) the obligation of the Lender to make, or
to Convert Loans into, Eurodollar Rate Loans shall be suspended until the Lender
shall notify the Borrower that the circumstances causing such suspension no
longer exist.
(c) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Loans in accordance with the provisions
contained in the definition of "Interest Period" in Section 1.01, the Lender
will forthwith so notify the Borrower and such Loans will automatically, on the
last day of the then existing Interest Period therefor, Convert into Base Rate
Loans.
(d) On the date on which the unpaid principal amount of any
Eurodollar Rate Loan shall be reduced, by payment or prepayment or otherwise, to
less than $250,000, such Loans shall automatically Convert into Base Rate Loans.
(e) Upon the occurrence and during the continuance of any Default
under Section 5.01(a) or 5.01(f) or any Event of Default, (i) each Eurodollar
Rate Loan will automatically, on the last day of the then existing Interest
Period therefor, Convert into a Base Rate Loan and (ii) the obligation of the
Lender to make, or to Convert Loans into, Eurodollar Rate Loans shall be
suspended.
SECTION 2.08. Optional Conversion of Loans. The Borrower may on
any Business Day, upon notice given to the Lender not later than 12:00 Noon (New
York time) on the third Business Day prior to the date of the proposed
Conversion and subject to the provisions of Sections 2.07 and 2.10(c), Convert
any Loan of one Type into a Loan of the other Type; provided, however, that any
Conversion of a Eurodollar Rate Loan into a Base Rate Loan shall be made only on
the last day of the Interest Period for such Eurodollar Rate Loan then in
effect, any Conversion of a Base Rate Loan into a Eurodollar Rate Loan shall be
in an amount not less than the minimum amount specified in Section 2.02(b) and
no Conversion of any Loan shall result in more separate Loans than permitted
under Section 2.02(b). Each such notice of a Conversion shall, within the
restrictions specified above, specify (i) the date of such Conversion, (ii) the
Loan to be Converted, and (iii) if such Conversion is into a Eurodollar Rate
Loan, the duration of the initial Interest Period for such Loan. Each notice of
Conversion shall be irrevocable and binding on the Borrower.
SECTION 2.09. Optional Prepayments. The Borrower may, upon at
least one Business Day's notice in the case of Base Rate Loans and three
Business Days' notice in the case of Eurodollar Rate Loans, in each case to the
Lender received not later than 12:00 Noon (New York time) stating the proposed
date and aggregate principal amount of the prepayment, and if such notice is
given the Borrower shall, prepay the outstanding principal amount of the Loans
in whole or in part, together with accrued interest to the date of such
prepayment on the aggregate principal amount so prepaid; provided, however, that
(x) each partial prepayment shall be in a minimum aggregate principal amount of
$250,000 or an integral multiple of $50,000 in excess thereof and (y) if any
prepayment of a Eurodollar Rate Loan shall be made other than on the last day of
an Interest Period therefor, the Borrower shall also pay any amounts owing
pursuant to Section 6.04(c); provided, further, that no prepayment shall be
permitted to be made pursuant to this Section 2.09 at any time when the
aggregate amount of outstanding Working Capital Advances under the Existing
Credit Agreement is in excess of $20,000,000.
SECTION 2.10. Increased Costs, Etc. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law),
there shall be any increase in the cost to the Lender of agreeing to make or of
making, funding or maintaining Eurodollar Rate Loans (excluding for purposes of
this Section 2.10 any such increased costs resulting from (i) Taxes or Other
Taxes (as to which Section 2.12 shall govern) and (ii) changes in the basis of
taxation of overall net income or overall gross income by the United States or
by the foreign jurisdiction or state under the laws of which the Lender is
organized or has its Applicable Lending Office or any political subdivision
thereof), then the Borrower shall from time to time, upon demand by the Lender,
pay to the Lender additional amounts sufficient to compensate the Lender for
such increased cost; provided, however, that the Borrower shall not be
responsible for costs under this Section 2.10(a) arising more than 90 days prior
to receipt by the Borrower of the certificate from the Lender pursuant to this
Section 2.10(a) with respect to such costs; and provided further that the Lender
claiming additional amounts under this Section 2.10(a) agrees to use reasonable
efforts (consistent with its internal policy and legal and regulatory
restrictions) to designate a different Applicable Lending Office if the making
of such a designation would avoid the need for, or reduce the amount of, such
increased cost that may thereafter accrue and would not, in the reasonable
judgment of the Lender, be otherwise disadvantageous to the Lender. A
certificate as to the amount of such increased cost (together with a schedule
setting forth in reasonable detail the calculation thereof) submitted to the
Borrower by the Lender, shall be conclusive and binding for all purposes, absent
manifest error. In determining such amount, the Lender may use any reasonable
averaging and attribution methods.
(b) If the Lender determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or would
affect the amount of capital required or expected to be maintained by the Lender
or any corporation controlling the Lender and that the amount of such capital is
increased by or based upon the existence of the Lender's commitment to lend
hereunder and other commitments of this type, then, upon demand by the Lender,
the Borrower shall pay to the Lender, from time to time as specified by the
Lender, additional amounts sufficient to compensate the Lender or such
corporation in the light of such circumstances, to the extent that the Lender
reasonably determines such increase in capital to be allocable to the existence
of the Lender's commitment to lend hereunder; provided, however, that the
Borrower shall not be responsible for costs under this Section 2.10(b) arising
more than 90 days prior to receipt by the Borrower of the certificate from the
Lender pursuant to this Section 2.10(b) with respect to such costs. A
certificate as to such amounts (together with a schedule setting forth in
reasonable detail the calculation thereof) submitted to the Borrower by the
Lender shall be conclusive and binding for all purposes, absent manifest error.
In determining such amount, the Lender may use any reasonable averaging and
attribution methods.
(c) Notwithstanding any other provision of this Agreement, if the
introduction of or any change in or in the interpretation of any law or
regulation shall make it unlawful, or any central bank or other governmental
authority shall assert that it is unlawful, for the Lender or its Eurodollar
Lending Office to perform its obligations hereunder to make Eurodollar Rate
Loans or to continue to fund or maintain Eurodollar Rate Loans hereunder, then,
on notice thereof and demand therefor by the Lender to the Borrower, (i) each
Eurodollar Rate Loan will automatically, upon such demand, Convert into a Base
Rate Loan and (ii) the obligation of the Lender to make, or to Convert Loans
into, Eurodollar Rate Loans shall be suspended until the Lender shall notify the
Borrower that the Lender has determined that the circumstances causing such
suspension no longer exist; provided, however, that, before making any such
demand, the Lender agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to designate a different
Eurodollar Lending Office if the making of such a designation would allow the
Lender or its Eurodollar Lending Office to continue to perform its obligations
to make Eurodollar Rate Loans or to continue to fund or maintain Eurodollar Rate
Loans and would not, in the judgment of the Lender, be otherwise disadvantageous
to the Lender.
SECTION 2.11. Payments and Computations. (a) The Borrower shall make each
payment hereunder and under the Note, irrespective of any right of counterclaim
or set-off, not later than 12:00 Noon (New York time) on the day when due in
U.S. dollars to the Lender for the account of its Applicable Lending Office, in
same day funds.
(b) The Borrower hereby authorizes the Lender, if and to the
extent payment owed to the Lender is not made when due hereunder or under the
Note, to charge from time to time against any or all of the Borrower's accounts
with the Lender any amount so due. The Lender hereby agrees to notify the
Borrower promptly after any such setoff and application shall be made by the
Lender; provided, however, that the failure to give such notice shall not affect
the validity of such charge.
(c) All computations of interest and fees shall be made by the
Lender on the basis of a year of 360 days, in each case for the actual number of
days (including the first day but excluding the last day) occurring in the
period for which such interest or fees are payable. Each determination by the
Lender of an interest rate or fee hereunder shall be conclusive and binding for
all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Note shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or commitment fees,
as the case may be; provided, however, that, if such extension would cause
payment of interest on or principal of Eurodollar Rate Loans to be made in the
next following calendar month, such payment shall be made on the next preceding
Business Day.
SECTION 2.12. Taxes. (a) Any and all payments by the Borrower
hereunder or under the Note shall be made, in accordance with Section 2.11, free
and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of the Lender, taxes that are imposed on
its overall net income by the United States and taxes that are imposed on its
overall net income (and franchise taxes imposed in lieu thereof) by the state or
foreign jurisdiction under the laws of which the Lender is organized or any
political subdivision thereof and taxes that are imposed on its overall net
income (and franchise taxes imposed in lieu thereof) by the state or foreign
jurisdiction of the Lender's Applicable Lending Office or any political
subdivision thereof (all such nonexcluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities in respect of payments hereunder and under
the Note being hereinafter referred to as "Taxes"). If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder or under the Note to the Lender, (i) the sum payable shall be
increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.12) the Lender receives an amount equal to the sum it would have received had
no such deductions been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the relevant taxation
authority or other governmental authority in accordance with applicable law.
(b) In addition, the Borrower hereby agrees to pay any present or
future stamp, documentary, excise, property or similar taxes, charges or levies
that arise from any payment made hereunder or under the Note or from the
execution, delivery or registration of, performing under, or otherwise with
respect to, this Agreement or the Note (hereinafter referred to as "Other
Taxes").
(c) The Borrower shall indemnify the Lender for and hold it
harmless against the full amount of Taxes and Other Taxes, and the full amount
of taxes of any kind imposed by any jurisdiction on amounts payable under this
Section 2.12, imposed on or paid by the Lender and any liability (including
penalties, additions to tax, interest and expenses) arising therefrom or with
respect thereto. This indemnification shall be made within 30 days from the date
on which the Lender makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower shall furnish to the Lender, at its address referred to in Section
6.02, the original or a certified copy of a receipt evidencing such payment, to
the extent such a receipt is issued therefor, or other written proof of payment
thereof that is reasonably satisfactory to the Lender. In the case of any
payment hereunder or under the Note by or on behalf of the Borrower through an
account or branch outside the United States or by or on behalf of the Borrower
by a payor that is not a United States person, if the Borrower determines that
no Taxes are payable in respect thereof, the Borrower shall furnish, or shall
cause such payor to furnish, to the Lender, at its address referred to in
Section 6.02, an opinion of counsel acceptable to the Lender stating that such
payment is exempt from Taxes. For purposes of this subsection (d) and subsection
(e) of this Section 2.14, the terms "United States" and "United States person"
shall have the meanings specified in Section 7701 of the Internal Revenue Code.
SECTION 2.13. Use of Proceeds. The proceeds of the Loans shall be
available (and the Borrower agrees that it shall use such proceeds) solely to
provide working capital from time to time to the Borrower and its Subsidiaries.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Section
2.01. Section 2.01 of this Agreement shall become effective on and as of the
first date (the "Effective Date") on which the following conditions precedent
have been satisfied:
(a) The Lender shall have received a true and complete copy of
Amendment No. 2 to the Existing Credit Agreement dated as of March 28,
2001. All of the conditions precedent to the effectiveness of such
Amendment No. 2 shall have been satisfied or shall be satisfied
concurrently with the effectiveness of this Agreement.
(b) All governmental and third party consents and approvals
necessary in connection with any BofA Loan Document or any of the
transactions contemplated thereby 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 any BofA Loan Document or any
of the transactions contemplated thereby.
(c) The Borrower shall have paid all accrued fees and expenses of
the Lender (including the accrued fees and expenses of counsel to the
Lender).
(d) On the Effective Date, the following statements shall be true
and the Lender shall have received a certificate signed by a duly
authorized officer of the Borrower, dated the Effective Date, stating
that:
(i) The representations and warranties contained in, and
incorporated by reference from the Existing Credit Agreement
into, this Agreement and the other BofA Loan Documents are
correct in all material respects on and as of the Effective Date
(except for any such representation and warranty that, by its
terms, refers to a specific date other than the Effective Date,
in which case as of such specific date), and
(ii) No event has occurred and is continuing that
constitutes a Default.
(e) The Lender shall have received on or before the Effective
Date the following, each dated such day and in form and substance
satisfactory to the Lender:
(i) The Note to the order of the Lender.
(ii) A guaranty in favor of the Lender (as amended,
supplemented or other wise modified from time to time in
accordance with its terms, the "Guaranty"), duly executed by the
Guarantor.
(iii) Certified copies of the resolutions of the Board of
Directors of the Borrower and of the Guarantor approving this
Agreement, the Note and the Guaranty, and of all documents
evidencing other necessary corporate action and governmental
approvals, if any, with respect to this Agreement, the Note and
the Guaranty.
(iv) A certificate of the Secretary or an Assistant
Secretary of each of the Borrower and the Guarantor certifying
the names and true signatures of the officers of the Borrower or
the Guarantor, as the case may be, authorized to sign the BofA
Loan Documents to which it is or is to be a party and the other
documents to be delivered in connection herewith.
(v) A favorable opinion of Simpson, Thacher & Xxxxxxxx,
counsel for the Guarantor and Holdings and its Subsidiaries.
(f) The Lender shall have received a schedule of the Guarantor's
Unencumbered Liquid Assets (defined in the Guaranty) as of March 27,
2001, prepared in such a form and detail as is acceptable to the Lender.
SECTION 3.02. Conditions Precedent to Each Loan. The obligation
of the Lender to make a Loan shall be subject to the conditions precedent that
the Effective Date shall have occurred and on the date of such Loan (a) the
following statements shall be true (and each of the giving of the applicable
Notice of Loan and the acceptance by the Borrower of the proceeds of such Loan
shall constitute a representation and warranty by the Borrower that both on the
date of such notice and on the date of such Loan such statements are true):
(i) the representations and warranties contained in, and
incorporated by reference from the Existing Credit Agreement into, this
Agreement and the other BofA Loan Documents are correct in all material
respects on and as of the date of such Loan, before and after giving
effect to such Loan and to the application of the proceeds therefrom, as
though made on and as of such date (except for any such representation
and warranty that, by its terms, refers to a specific date other than
date of such Loan, in which case as of such specific date), and
(ii) no event has occurred and is continuing, or would result
from such Loan or from the application of the proceeds therefrom, that
constitutes a Default;
and (b) the Lender shall have received (i) a certificate of the Guarantor,
signed by a duly authorized officer thereof, certifying that the Guarantor is in
compliance with the requirements of Section 7(d) of the Guaranty, and (ii) such
other approvals, opinions or documents as the it shall have reasonably
requested.
ARTICLE IV
INCORPORATION BY REFERENCE
SECTION 4. 01 Incorporation by Reference. (a) All of the
representations and warranties and covenants of the Existing Credit Agreement
(including, without limitation, all defined terms used therein and exhibits and
schedules to the Existing Credit Agreement referred to therein) are specifically
incorporated herein by reference with the same force and effect as if the same
were set out in this Agreement in full. Except as otherwise provided herein:
(i) all references in such incorporated provisions to the
"Administrative Agent" (other than in Sections 5.01(m) and (o)), a
"Lender Party", the "Lender Parties" (other than in Section 5.01(o)), a
"Lender" or the "Lenders" or words of similar import , to "this
Agreement", "hereof", "hereto" or "hereunder" or words of similar import
or to a "Note" or the "Notes", "thereof", "thereto" or "thereunder" or
words of similar import shall, without further reference, mean and refer
to the Lender under this Agreement, to this Agreement and to the Note,
respectively;
(ii) all references in such incorporated provisions to the
"Borrower" or to "Material Adverse Effect" shall, without further
reference, mean and refer to the Borrower hereunder and to BofA Loan
Material Adverse Effect, respectively;
(iii) for purposes of the representations and warranties in
Sections 4.01(a), (b), (c), (d), (e), (i), (j), (k), (l) and (m) of the
Existing Credit Agreement, all references in such incorporated
provisions to a "Loan Party" or words of similar import, to a "Loan
Document", the "Loan Documents", "thereof", "thereto" or "thereunder" or
words of similar import or to an "Advance", the "Advances", a
"Borrowing" or the "Borrowing" or words of similar import shall, without
further reference, mean and refer to a BofA Loan Party, to a BofA Loan
Document or the BofA Loan Documents, as appropriate, and to a Loan or
the Loans, as appropriate, respectively;
(iv) for purposes of the first sentence of each of Sections 5.01,
5.02, 5.03 and 5.04, all references in such incorporated provisions to
an "Advance", a "Letter of Credit" or words of similar import or to a
"Commitment" or words of similar import shall, without further
reference, mean and refer to a Loan or the Commitment hereunder,
respectively; and
(v) except as otherwise provided in subclauses (i), (ii), (iii)
and (iv) above, the defined terms used in the incorporated provisions
shall have the meanings ascribed thereto in the Existing Credit
Agreement.
Similarly, to the extent any word or phrase is defined in this Agreement, any
such word or phrase appearing in any of the provisions so incorporated by
reference from the Existing Credit Agreement shall have the meaning given to it
in this Agreement. The incorporation by reference into this Agreement of certain
of the terms and provisions of the Existing Credit Agreement is for convenience
only, and this Agreement and the Existing Credit Agreement shall at all times
be, and be deemed to be and be treated as, separate and distinct loan
obligations. The incorporation by reference into this Agreement of certain of
the terms and provisions of the Existing Credit Agreement shall not be affected
or impaired by any subsequent expiration or termination of the Existing Credit
Agreement.
(b) The Borrower, by its execution of this Agreement, hereby
agrees to amend and restate this Agreement at the request of the Lender to set
forth in full the provisions incorporated by reference herein from the Existing
Credit Agreement and to modify the terms and provisions of this Agreement, as
appropriate, to provide for the inclusion of additional lenders upon any
assignment or proposed assignment by the Lender of its rights and obligations
hereunder effected in accordance with Section 6.07. In addition, the Borrower
hereby agrees to notify the Lender promptly and in any event within three
Business Days of any amendment, supplement or other modification to the Existing
Credit Agreement and, at the request of the Lender, to enter into any amendment
or supplement to this Agreement proposed by the Lender to incorporate comparable
amendments, supplements or other modifications to this Agreement.
ARTICLE V
EVENTS OF DEFAULT
SECTION 5.01. Events of Default. If any of the following events ("Events of
Default") shall occur and be continuing:
(a) (i) the Borrower shall fail to pay any principal of any Loan
when the same shall become due and payable or (ii) the Borrower shall
fail to pay any interest on any Loan, or any BofA Loan Party shall fail
to make any other payment under any BofA Loan Document, in each case
under this clause (ii) within three Business Days after the same becomes
due and payable; or
(b) any representation or warranty made by any BofA Loan Party or
any Loan Party (or any of their respective officers) under (or
incorporated by reference into) or in connection with any BofA Loan
Document shall prove to have been incorrect in any material respect when
made; or
(c) (i) the Borrower or Holdings, as the case may be, shall fail
to perform or observe any term, covenant or agreement contained in
Section 2.13 herein or Section 5.01(e), 5.01(m), 5.01(p) or 5.01(q),
5.02 or 5.04 of the Existing Credit Agreement, as incorporated by
reference herein pursuant to Section 4.01, or (ii) the Guarantor shall
fail to perform or observe any term, covenant or agreement contained in
the Guaranty; or
(d) the Borrower or Holdings shall fail to perform any other
term, covenant or agreement contained in any BofA Loan Document on its
part to be performed or observed if such failure shall remain unremedied
for 30 days; or
(e) (i) any BofA Loan Party or Holdings or any of its
Subsidiaries shall fail to pay any principal of, premium or interest on
or any other amount payable in respect of one or more items of Debt of
the BofA Loan Parties and Holdings and its Subsidiaries (excluding Debt
outstanding hereunder) that is outstanding in an aggregate principal or
notional amount of at least $5,000,000 when the same becomes due and
payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreements
or instruments relating to all such Debt; or (ii) any other event shall
occur or condition shall exist under the agreements or instruments
relating to one or more items of Debt of the BofA Loan Parties and
Holdings and its Subsidiaries (excluding Debt outstanding hereunder)
that is outstanding in an aggregate principal or notional amount of at
least $5,000,000, and such other event or condition shall continue after
the applicable grace period, if any, specified in all such agreements or
instruments, if the effect of such event or condition is to accelerate,
or to permit the acceleration of, the maturity of such Debt or otherwise
to cause, or to permit the holder thereof to cause, such Debt to mature;
or (iii) one or more items of Debt of the BofA Loan Parties and Holdings
and its Subsidiaries (excluding Debt outstanding hereunder) that is
outstanding in an aggregate principal or notional amount of at least
$5,000,000 shall be declared to be due and payable or required to be
prepaid or redeemed (other than by a regularly scheduled or required
prepayment or redemption), purchased or defeased, or an offer to prepay,
redeem, purchase or defease such Debt shall be required to be made, in
each case prior to the stated maturity thereof; or
(f) any BofA Loan Party, Holdings or any of the Material
Subsidiaries 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 a general assignment for the benefit of creditors; or any
proceeding shall be instituted by or against any BofA Loan Party,
Holdings or any of the Material Subsidiaries seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief or
composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry
of an order for relief or the appointment of a receiver, trustee or
other similar official for it or for any substantial part of its
property and, in the case of any such proceeding instituted against it
(but not instituted by it) that is being diligently contested by it in
good faith, either such proceeding shall remain undismissed or unstayed
for a period of 45 days or any of the actions sought in such proceeding
(including, without limitation, the entry of an order for relief
against, or the appointment of a receiver, trustee, custodian or other
similar official for, it or any substantial part of its property) shall
occur; or any BofA Loan Party, Holdings or any of the Material
Subsidiaries shall take any corporate action to authorize any of the
actions set forth above in this subsection (f); or
(g) one or more judgments or orders for the payment of money in
excess of $5,000,000 shall be rendered against, any BofA Loan Party,
Holdings or any of its Subsidiaries and either (i) enforcement
proceedings shall have been commenced by any creditor upon any such
judgment or order or (ii) there shall be any period of at least thirty
consecutive days during which a stay of enforcement of any such judgment
or order, by reason of a pending appeal or otherwise, shall not be in
effect; provided, however, that any such judgment, order or payment
shall be disregarded for the purposes of this Section 5.01(g) to the
extent that (A) the amount of such judgment, order or payment is covered
by a valid and binding policy of insurance between the defendant and the
insurer covering full payment thereof and (B) such insurer has been
notified, and, in the case of such judgment, order or payment, has not
disputed the claim made for payment, of the amount of such judgment or
order or payment; or
(h) (i) any provision of any BofA Loan Document after delivery
thereof pursuant to Section 3.01 shall for any reason cease to be valid
and binding on or enforceable against any BofA Loan Party intended to be
a party to it, or any such BofA Loan Party shall so state in writing, or
(ii) any provision of any Loan Document after delivery thereof pursuant
to Section 3.01, 5.01(m) or 5.01(q) of the Existing Credit Agreement
shall for any reason (other than pursuant to the terms thereof) cease to
be valid and binding on or enforceable against any Loan Party intended
to be a party to it, or any such Loan Party shall so state in writing;
or
(j) a Change of Control shall occur; or
(k) any ERISA Event shall have occurred with respect to a Plan
and the sum (determined as of the date of occurrence of such ERISA
Event) of the Insufficiency of such Plan and the Insufficiency of any
and all other Plans with respect to which an ERISA Event shall have
occurred and then exist (or the liability of the Guarantor, the Loan
Parties and the ERISA Affiliates related to such ERISA Event) exceeds
$5,000,000; or
(l) the Guarantor, any Loan Party or any ERISA Affiliate shall
have been notified by the sponsor of a Multiemployer Plan that it has
incurred Withdrawal Liability to such Multiemployer Plan in an amount
that, when aggregated with all other amounts required to be paid to
Multiemployer Plans by the Guarantor, the Loan Parties and the ERISA
Affiliates as Withdrawal Liability (determined as of the date of such
notification), exceeds $5,000,000; or
(m) the Guarantor, any Loan Party or any ERISA Affiliate shall
have been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being terminated, within
the meaning of Title IV of ERISA, and as a result of such reorganization
or termination the aggregate annual contributions of the Guarantor, the
Loan Parties and the ERISA Affiliates to all Multiemployer Plans that
are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for
the plan years of such Multiemployer Plans immediately preceding the
plan year in which such reorganization or termination occurs by an
amount exceeding $5,000,000;
then, and in any such event, the Lender (i) may, by notice to the Borrower,
declare the Commitment and the obligation of the Lender to make Loans to be
terminated, whereupon the same shall forthwith terminate, and (ii) may, by
notice to the Borrower, declare the Note, all interest thereon and all other
amounts payable under this Agreement to be forthwith due and payable, whereupon
the Note, all such interest and all such amounts shall become and be forthwith
due and payable, without presentment, demand, protest or further notice of any
kind, all of which are hereby expressly waived by the Borrower; provided,
however, that in the event of an actual or deemed entry of an order for relief
with respect to the Borrower under the Federal Bankruptcy Code, (A) the
Commitment and the obligation of the Lender to make Loans shall automatically be
terminated and (B) the Note, all such interest and all such amounts shall
automatically become and be due and payable, without presentment, demand,
protest or any notice of any kind, all of which are hereby expressly waived by
the Borrower.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Note, nor consent to any departure by the
Borrower therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Lender, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
SECTION 6.02. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telecopier, telegraphic or
telex communication) and mailed, telecopied, telegraphed, telexed or delivered,
if to the Borrower, at its address at 000 Xxxxx Xxxxxx Xxxx, Xxxxx Xxxxxx, Xxx
Xxxxxx 00000. Attention: Xxxxxx Xxxx; if to the Lender, at its Domestic Lending
Office specified opposite its name on Schedule I hereto; or in the case of each
party, at such other address as shall be designated by such party in a written
notice to the other party. All such notices and communications shall, when
mailed, telecopied or telegraphed be effective when deposited in the mails,
telecopied or delivered to the telegraph company, respectively, except that
notices and communications to the Lender pursuant to Article II or III shall not
be effective until received by the Lender. Delivery by telecopier of an executed
counterpart of any amendment or waiver of any provision of this Agreement or any
other BofA Loan Document to be executed and delivered hereunder shall be
effective as delivery of an originally executed counterpart thereof.
SECTION 6.03. No Waiver; Remedies. No failure on the part of the
Lender to exercise, and no delay in exercising, any right hereunder or under the
Note shall operate as a waiver thereof; nor shall any single or partial exercise
of any such right preclude any other or further exercise thereof or the exercise
of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 6.04. Costs and Expenses. (a) The Borrower agrees to pay
on demand (i) all costs and expenses of the Lender in connection with the
preparation, execution, delivery, administration, modification and amendment of
the BofA Loan Documents and the other documents to be delivered hereunder and
thereunder (including, without limitation, (A) all due diligence,
transportation, computer, duplication, consultant and audit expenses and (B) the
reasonable fees and expenses of counsel for the Lender with respect thereto and
with respect to advising the Lender as to its rights and responsibilities under
the BofA Loan Documents) and (ii) all costs and expenses of the Lender in
connection with the enforcement of the BofA Loan Documents, whether in any
action, suit or litigation, any bankruptcy, insolvency or other similar
preceding affecting creditor's rights generally (including, without limitation,
the reasonable fees and expenses of counsel for the Lenders with respect
thereto. The Borrower further agrees to pay on demand all costs and expenses of
the Lender, if any (including, without limitation, reasonable counsel fees and
expenses), in connection with the enforcement (whether through negotiations,
legal proceedings or otherwise) of this the BofA Loan Documents and the other
documents to be delivered hereunder and thereunder, including, without
limitation, the reasonable fees and expenses of counsel for the Lender in
connection with the enforcement of rights under this Section 6.04(a).
(b) The Borrower agrees to indemnify and hold harmless the Lender
and each of its Affiliates and its officers, directors, employees, agents and
advisors (each, an "Indemnified Party") from and against any and all claims,
damages, losses, liabilities and expenses (including, without limitation,
reasonable fees and expenses of counsel) that may be incurred by or asserted or
awarded against any Indemnified Party, in each case arising out of or in
connection with or by reason of (including, without limitation, in connection
with any investigation, litigation or proceeding or preparation of a defense in
connection therewith) (i) BofA Loan Documents, any of the transactions
contemplated herein or therein or the actual or proposed use of the proceeds of
the Loans or (ii) the actual or alleged presence of Hazardous Materials on any
property of the Borrower or any of its Subsidiaries or any Environmental Action
relating in any way to the Borrower or any of its Subsidiaries, except to the
extent such claim, damage, loss, liability or expense is found in a final,
non-appealable judgment by a court of competent jurisdiction to have resulted
from such Indemnified Party's gross negligence or willful misconduct. In the
case of an investigation, litigation or other proceeding to which the indemnity
in this Section 6.04(b) applies, such indemnity shall be effective whether or
not such investigation, litigation or proceeding is brought by any BofA Loan
Party, any Loan Party, its directors, shareholders or creditors or an
Indemnified Party, or any Indemnified Party is otherwise a party thereto and
whether or not the transactions contemplated hereby are consummated. The
Borrower also agrees not to assert any claim against the Lender, any of its
affiliates, or any of its directors, officers, employees, attorneys and agents,
on any theory of liability, for special, indirect, consequential or punitive
damages arising out of or otherwise relating to BofA Loan Documents, any of the
transactions contemplated herein or therein or the actual or proposed use of the
proceeds of the Loans.
(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate Loan is made by the Borrower to or for the account of the Lender
other than on the last day of the Interest Period for such Loan, as a result of
a payment or Conversion pursuant to Section 2.07(d) or (e), 2.09 or 2.10(c),
acceleration of the maturity of the Note pursuant to Section 5.01 or for any
other reason, the Borrower shall pay to the Lender an amount equal to the
present value (calculated in accordance with this Section 6.04(c)) of interest
for the remaining portion of the relevant Interest Period on the amount of such
Loan, at a rate per annum equal to the excess of (i) the Eurodollar Rate that
would have been in effect for such Interest Period over (ii) the Eurodollar Rate
applicable on the date of determination to a deemed Interest Period ending on
the last day of such Interest Period. The present value of such additional
interest shall be calculated by discounting the amount of such interest for each
day in the relevant Interest Period from such day to the date of such repayment
or termination at an interest rate per annum equal to the interest rate
determined pursuant to the immediately preceding sentence, and by adding all
such amounts for all such days during such period. The determination by the
Lender of such amount of interest shall be conclusive and binding, absent
manifest error.
(d) Without prejudice to the survival of any other agreement of
the Borrower hereunder, the agreements and obligations of the Borrower contained
in Sections 2.10, 2.12 and 6.04 shall survive the payment in full of principal,
interest and all other amounts payable hereunder and under the Note.
SECTION 6.05. Right of Set-off. Upon (i) the occurrence and
during the continuance of any Event of Default and (ii) the making of the
request by or the actions of the Lender specified by Section 5.01 to declare the
Note due and payable pursuant to the provisions of Section 5.01, the Lender and
each of its affiliates is hereby authorized at any time and from time to time,
to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by the Lender or such affiliate to
or for the credit or the account of the Borrower against any and all of the
obligations of the Borrower now or hereafter existing under this Agreement and
the Note held by the Lender, whether or not the Lender shall have made any
demand under this Agreement or the Note and although such obligations may be
unmatured. The Lender agrees promptly to notify the Borrower after any such
set-off and application, provided that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of the Lender
and its affiliates under this Section 6.05 are in addition to other rights and
remedies (including, without limitation, other rights of set-off) that the
Lender and its affiliates may have.
SECTION 6.06. Binding Effect. This Agreement shall become
effective (other than Section 2.01, which shall only become effective upon
satisfaction of the conditions precedent set forth in Section 3.01) when it
shall have been executed by the Borrower and the Lender and, thereafter, shall
be binding upon and inure to the benefit of the Borrower and the Lender and
their respective successors and assigns, except that the Borrower shall not have
the right to assign its rights hereunder or any interest herein without the
prior written consent of the Lender.
SECTION 6.07. Assignments and Participations. (a) The Lender may
assign to one or more Persons reasonably satisfactory to the Borrower all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, the Loans owing to it and the
Note held by it). In connection with any such assignment, the Borrower agrees to
execute and deliver such documentation as the Lender or any such permitted
assignee may reasonably request to evidence such assignment and the rights and
obligations of such assignee hereunder.
(b) The Lender may sell participations to one or more banks or
other entities (other than any BofA Loan Party or any of its affiliates) in or
to all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment, the Loans
owing to it and the Note held by it); provided, however, that (i) the Lender's
obligations under this Agreement (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 Lender shall remain the holder of the Note for all purposes of this
Agreement, (iv) the Borrower, shall continue to deal solely and directly with
the Lender in connection with the Lender's rights and obligations under this
Agreement and (v) no participant under any such participation shall have any
right to approve any amendment or waiver of any provision of this Agreement or
the Note, or any consent to any departure by the Borrower therefrom, except to
the extent that such amendment, waiver or consent would reduce the principal of,
or interest on, the Note or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation, or postpone any date fixed for
any payment of principal of, or interest on, the Note or any fees or other
amounts payable hereunder, in each case to the extent subject to such
participation.
(c) The Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
6.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to any BofA Loan Party or any Loan Party
furnished to the Lender by or on behalf of the Borrower.
(d) Notwithstanding any other provision set forth in this
Agreement, the Lender may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Loans owing to it and the Note held by it) in favor of any Federal Reserve Bank
in accordance with Regulation A of the Board of Governors of the Federal Reserve
System.
SECTION 6.08. Governing Law. This Agreement and the Note shall be governed
by, and construed in accordance with, the laws of the State of New York.
SECTION 6.09. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 6.10. Jurisdiction, Etc. (a) Each of the parties hereto
hereby irrevocably and unconditionally submits, for itself and its property, to
the nonexclusive jurisdiction of any New York State court or federal court of
the United States of America sitting in New York City, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement, the Note or the Guaranty, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in any such New York State court or, to the extent permitted by
law, in such federal court. Each of the parties hereto agrees that a final
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. Nothing in this Agreement shall affect any right that any party
may otherwise have to bring any action or proceeding relating to this Agreement
or the Note in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement, the Note or
the Guaranty in any New York State or federal court. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any
such court.
SECTION 6.11. Waiver of Jury Trial. Each of the Borrower and the
Lender hereby irrevocably waives all right to trial by jury in any action,
proceeding or counterclaim (whether based on contract, tort or otherwise)
arising out of or relating to this Agreement or any other BofA Loan Document,
the Loans or the actions of the Lender in the negotiation, administration,
performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective officers thereunto duly authorized, as of the
date first above written.
AMERICAN SAFETY RAZOR COMPANY
By /s/J. Xxxxxx Xxxx
-----------------------------------
Name: J. Xxxxxx Xxxx
Title: Senior Vice President and
Chief Financial Officer
BANK OF AMERICA, N.A.
By /s/W. Xxxxx Xxxx
---------------------------
Name: W. Xxxxx Xxxx
Title: Managing Director
SCHEDULE I
APPLICABLE LENDING OFFICES
Name of Lender
BANK OF AMERICA, N.A.
Domestic Lending Office:
Credit: Administrative:
Eurodollar Lending Office:
Credit: Administrative:
U.S.$5,000,000 Dated March 28, 2001
FOR VALUE RECEIVED, the undersigned, AMERICAN SAFETY RAZOR
COMPANY, a Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the
order of BANK OF AMERICA, N.A. (the "Lender") for the account of its Applicable
Lending Office on the Termination Date (each as defined in the Credit Agreement
referred to below) the principal sum of U.S.$5,000,000 or, if less, the
aggregate principal amount of the Loans made by the Lender to the Borrower
pursuant to the Credit Agreement dated as of March 28, 2001 between the Borrower
and the Lender (as amended or modified from time to time, the "Credit
Agreement"; the terms defined therein being used herein as therein defined)
outstanding on the Termination Date.
The Borrower promises to pay interest on the unpaid principal
amount of each Loan from the date of such Loan until such principal amount is
paid in full, at such interest rates, and payable at such times, as are
specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to the Lender in same day funds. Each Loan owing to the
Lender by the Borrower pursuant to the Credit Agreement, and all payments made
on account of principal thereof, shall be recorded by the Lender and, prior to
any transfer hereof, endorsed on the grid attached hereto which is part of this
Promissory Note.
This Promissory Note is the Note referred to in, and is entitled
to the benefits of, the Credit Agreement. The Credit Agreement, among other
things, (i) provides for the making of Loans by the Lender to the Borrower from
time to time during the period from the Effective Date until the Termination
Date in an aggregate amount not to exceed at any time outstanding the U.S.
dollar amount first above mentioned, the indebtedness of the Borrower resulting
from each such Loan being evidenced by this Promissory Note, and (ii) contains
provisions for acceleration of the maturity hereof upon the happening of certain
stated events and also for prepayments on account of principal hereof prior to
the maturity hereof upon the terms and conditions therein specified.
AMERICAN SAFETY RAZOR COMPANY
By /s/J. Xxxxxx Xxxx
---------------------------------
Name: J. Xxxxxx Xxxx
Title: Senior Vice President and
Chief Financial Officer
LOANS AND PAYMENTS OF PRINCIPAL
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Amount of
Amount of Principal Paid Unpaid Principal Notation
Date Loan or Prepaid Balance Made By
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