CONFORMED COPY
CREDIT AGREEMENT
dated as of
August 25, 1999
among
ETHAN XXXXX INC.,
as Borrower,
ETHAN XXXXX INTERIORS INC.,
The Lenders Party Hereto,
THE CHASE MANHATTAN BANK,
as Administrative Agent,
FLEET BANK, N.A.,
as Co-Documentation Agent,
and
WACHOVIA BANK, N.A.,
as Co-Documentation Agent
---------------------------
CHASE SECURITIES INC.,
as Arranger
===============================================================================
[CS&M Reference Number: 6700-868]
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms..................................................1
SECTION 1.02. Terms Generally...............................................11
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments...................................................11
SECTION 2.02. Loans.........................................................11
SECTION 2.03. Borrowing Procedure; Interest Rate Elections..................12
SECTION 2.04. Evidence of Debt; Repayment of Loans..........................13
SECTION 2.05. Fees..........................................................14
SECTION 2.06. Interest on Loans.............................................14
SECTION 2.07. Default Interest..............................................15
SECTION 2.08. Alternate Rate of Interest....................................15
SECTION 2.09. Termination and Reduction of Commitments......................15
SECTION 2.10. Prepayment....................................................15
SECTION 2.11. Reserve Requirements; Change in Circumstances.................16
SECTION 2.12. Change in Legality............................................17
SECTION 2.13. Indemnity.....................................................17
SECTION 2.14. Pro Rata Treatment............................................17
SECTION 2.15. Sharing of Setoffs............................................18
SECTION 2.16. Payments......................................................18
SECTION 2.17. Taxes.........................................................18
SECTION 2.18. Assignment of Commitments Under Certain Circumstances.........20
SECTION 2.19. Swingline Loans...............................................22
SECTION 2.20. Letters of Credit.............................................22
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Organization; Powers..........................................25
SECTION 3.02. Authorization.................................................25
SECTION 3.03. Enforceability................................................25
SECTION 3.04. Governmental Approvals........................................25
SECTION 3.05. Financial Statements..........................................25
SECTION 3.06. No Material Adverse Change....................................26
SECTION 3.07. Title to Properties; Possession Under Leases..................26
SECTION 3.08. Subsidiaries..................................................26
SECTION 3.09. Litigation; Compliance with Laws..............................25
SECTION 3.10. Agreements....................................................26
SECTION 3.11. Federal Reserve Regulations...................................26
SECTION 3.12. Investment Company Act; Public Utility Holding Company Act....27
SECTION 3.13. Use of Proceeds...............................................27
SECTION 3.14. Tax Returns...................................................27
SECTION 3.15. No Material Misstatements.....................................27
SECTION 3.16. Employee Benefit Plans........................................27
SECTION 3.17. Environmental Matters.........................................27
SECTION 3.18. Insurance.....................................................28
SECTION 3.19. Labor Matters.................................................28
SECTION 3.20. Patents, Trademarks, etc......................................28
SECTION 3.21. Year 2000.....................................................28
ARTICLE IV
CONDITIONS
SECTION 4.01. All Credit Events.............................................28
SECTION 4.02. Effectiveness.................................................29
ARTICLE V
AFFIRMATIVE COVENANTS
SECTION 5.01. Existence; Businesses and Properties..........................30
SECTION 5.02. Insurance.....................................................30
SECTION 5.03. Obligations and Taxes.........................................30
SECTION 5.04. Financial Statements, Reports, etc............................30
SECTION 5.05. Litigation and Other Notices..................................31
SECTION 5.06. Employee Benefits.............................................32
SECTION 5.07. Maintaining Records; Access to Properties and Inspections.....32
SECTION 5.08. Use of Proceeds...............................................32
SECTION 5.09. Further Assurances............................................32
SECTION 5.10. Environmental Matters.........................................32
ARTICLE VI
NEGATIVE COVENANTS
SECTION 6.01. Indebtedness..................................................33
SECTION 6.02. Liens.........................................................33
SECTION 6.03. Certain Acquisitions..........................................34
SECTION 6.04. Mergers, Consolidations and Sales of Assets...................34
SECTION 6.05. Business of Holdings, Borrower and Subsidiaries...............35
SECTION 6.06. Consolidated Net Worth........................................35
SECTION 6.07. Consolidated Fixed Charge Coverage Ratio......................35
SECTION 6.08. Leverage Ratio................................................35
SECTION 6.09. Restrictive Agreements........................................35
ARTICLE VII
EVENTS OF DEFAULT
ARTICLE VIII
THE ADMINISTRATIVE AGENT
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices.......................................................40
SECTION 9.02. Survival of Agreement.........................................40
SECTION 9.03. Binding Effect................................................40
SECTION 9.04. Successors and Assigns........................................40
SECTION 9.05. Expenses; Indemnity...........................................43
SECTION 9.06. Right of Setoff...............................................43
SECTION 9.07. APPLICABLE LAW................................................44
SECTION 9.08. Waivers; Amendment............................................44
SECTION 9.09. Interest Rate Limitation......................................44
SECTION 9.10. Entire Agreement..............................................44
SECTION 9.11. WAIVER OF JURY TRIAL..........................................44
SECTION 9.12. Severability..................................................45
SECTION 9.13. Counterparts..................................................45
SECTION 9.14. Headings......................................................45
SECTION 9.15. Jurisdiction; Consent to Service of Process...................45
SECTION 9.16. Confidentiality...............................................45
SECTION 9.17. Defaulting Lender.............................................46
SCHEDULES:
Schedule 2.01 -- Commitments
Schedule 3.08 -- Excluded Subsidiaries
Schedule 3.09 -- Litigation
Schedule 3.17 -- Environmental Matters
Schedule 3.18 -- Insurance
Schedule 6.02 -- Existing Liens
Schedule 6.09 -- Existing Restrictions
EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance
Exhibit B -- Form of Opinion of Xxxxxxx Xxxxxxxxx, Esq.
Exhibit C -- Form of Guarantee Agreement
Exhibit D -- Form of Indemnity, Subrogation and Contribution Agreement
CREDIT AGREEMENT dated as of August 25,
1999, among ETHAN XXXXX INC., a Delaware corporation
(the "Borrower"), ETHAN XXXXX INTERIORS INC., a
Delaware corporation ("Holdings"), the financial
institutions from time to time parties hereto
(together with the Swingline Lender (as defined
below), the "Lenders"), THE CHASE MANHATTAN BANK, a
New York banking corporation, as swingline lender (in
such capacity, the "Swingline Lender"), and as
administrative agent (in such capacity, the
"Administrative Agent") for the Lenders, and FLEET
BANK, N.A., a national banking association, and
WACHOVIA BANK, N.A., a national banking association,
as co-documentation agents (in such capacity, the
"Co-Documentation Agents") for the Lenders.
The parties hereto agree as follows:
ARTICLE I. DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms shall have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any Loan bearing interest at the Alternate
Base Rate in accordance with the provisions of Article II.
"Adjusted LIBO Rate" shall mean, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded, if
necessary, to the next 1/16 of 1%) equal to the product of (a) the LIBO Rate in
effect for such Interest Period and (b) Statutory Reserves.
"Administrative Agent Fees" shall have the meaning assigned to
such term in Section 2.05(b).
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in the form of Exhibit A.
"Affiliate" shall mean, when used with respect to a specified
person, another person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common Control with the
person specified.
"Aggregate Revolving Credit Exposure" shall mean the aggregate
amount of the Lenders' Revolving Credit Exposures.
"Alternate Base Rate" shall mean, for any day, a rate per annum
(rounded, if necessary, to the next 1/16 of 1%) equal to the greatest of (a) the
Prime Rate in effect on such day, (b) the Base CD Rate in effect on such day
plus 1% and (c) the Federal Funds Effective Rate in effect on such day plus 1/2
of 1%. If for any reason the Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error) that it is unable to
ascertain the Base CD Rate or the Federal Funds Effective Rate or both for any
reason, including the inability or failure of the Administrative Agent to obtain
sufficient quotations in accordance with the terms thereof, the Alternate Base
Rate shall be determined without regard to clause (b) or (c), or both, of the
preceding sentence, as appropriate, until the circumstances giving rise to such
inability no longer exist. Any change in the Alternate Base Rate due to a change
in the Prime Rate, the Three-Month Secondary CD Rate or the Federal Funds
Effective Rate shall be effective on the effective date of such change in the
Prime Rate, the Three-Month Secondary CD Rate or the Federal Funds Effective
Rate, respectively.
"Applicable Fixed Charge Coverage Ratio" shall mean, at any time,
the Consolidated Fixed Charge Coverage Ratio for the most recent period of four
consecutive fiscal quarters of the Borrower for which financial statements have
been delivered to the Administrative Agent pursuant to Section 5.04.
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"Applicable Percentage" shall mean, with respect to any
Eurodollar Loan or ABR Loan, or with respect to the Commitment Fees or L/C
Participation Fees, as the case may be, the applicable percentage set forth
below under the caption "Eurodollar Spread" or "ABR Spread" or "Commitment Fee"
or "L/C Participation Fee", as the case may be, based upon the Borrower's
senior, unsecured, noncredit enhanced debt ratings by Xxxxx'x and S&P,
respectively, applicable on such date:
Eurodollar ABR Commitment L/C Participation
Index Debt Ratings: Spread Spread Fee Fee
------------------- ------ ------ ---------- -----------------
Category 1
----------
A-/A3 or better 0.500% 0.000% 0.125% 0.500%
Category 2
----------
BBB+/Baa1 0.625% 0.000% 0.150% 0.625%
Category 3
----------
BBB/Baa2 0.750% 0.000% 0.175% 0.750%
Category 4
----------
BBB-/Baa3 1.00% 0.000% 0.200% 1.00%
Category 5
----------
Below BBB-/Baa3 1.25% 0.250% 0.250% 1.25%
For purposes of the foregoing, (i) if either Xxxxx'x or S&P shall
not have in effect a rating for the Borrower's senior, unsecured, noncredit
enhanced debt (other than by reason of the circumstances referred to in the last
sentence of this definition), then such rating agency shall be deemed to have
established a rating in Category 5; (ii) if the ratings established or deemed to
have been established by Xxxxx'x and S&P for the Borrower's senior, unsecured,
noncredit enhanced debt shall fall within different Categories, the Applicable
Percentage shall be based on the higher of the two ratings unless one of the two
ratings is two or more Categories lower than the other, in which case the
Applicable Percentage shall be determined by reference to the Category next
below that of the higher of the two ratings; and (iii) if the ratings
established or deemed to have been established by Xxxxx'x and S&P for the
Borrower's senior, unsecured, noncredit enhanced debt shall be changed (other
than as a result of a change in the rating system of Xxxxx'x or S&P), such
change shall be effective as of the date on which it is first announced by the
applicable rating agency. Each change in the Applicable Percentage shall apply
during the period commencing on the effective date of such change and ending on
the date immediately preceding the effective date of the next such change. If
the rating system of Xxxxx'x or S&P shall change, or if either such rating
agency shall cease to be in the business of rating corporate debt obligations,
the Borrower and the Lenders shall negotiate in good faith to amend this
definition to reflect such changed rating system or the unavailability of
ratings from such rating agency and, pending the effectiveness of any such
amendment, the Applicable Percentage shall be determined by reference to the
rating most recently in effect prior to such change or cessation.
"Assessment Rate" shall mean for any date the annual rate
(rounded, if necessary, to the next 1/100 of 1%) most recently estimated by the
Administrative Agent as the then current net annual assessment rate that will be
employed in determining amounts payable by the Administrative Agent to the
Federal Deposit Insurance Corporation (or any successor) for insurance by such
Corporation (or such successor) of time deposits made in Dollars at the
Administrative Agent's domestic offices.
"Assignment and Acceptance" shall mean an assignment and
acceptance entered into by a Lender and an assignee, and accepted by the
Administrative Agent, substantially in the form of Exhibit B or such other form
as shall be approved by the Administrative Agent.
"Base CD Rate" shall mean the sum of (a) the product of (i) the
Three-Month Secondary CD Rate and (ii) Statutory Reserves and (b) the Assessment
Rate.
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"Board" shall mean the Board of Governors of the Federal
Reserve System of the United States.
"Borrowing" shall mean a group of Loans of a single Type made
by the Lenders on a single date and as to which a single Interest Period is in
effect.
"Borrowing Request" shall mean a request by the Borrower in
accordance with the terms of Section 2.03 and substantially in the form of
Exhibit C.
"Business Day" shall mean any day other than a Saturday,
Sunday or day on which banks in New York City are authorized or required by law
to close; provided, however, that when used in connection with a Eurodollar
Loan, the term "Business Day" shall also exclude any day on which banks are not
open for dealings in Dollar deposits in the London interbank market.
"Capital Lease Obligations" of any person shall mean the
obligations of such person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Cash Equivalents" shall mean (a) securities with maturities
of one year or less from the date of acquisition issued or fully guaranteed by
the United States or any agency or instrumentality thereof, (b) certificates of
deposit, banker's acceptances and time deposits with maturities of one year or
less from the date of acquisition and overnight bank deposits, in each case of
any commercial bank having a long-term unsecured debt rating of at least "A" by
S&P or "A2" by Xxxxx'x, (c) repurchase obligations with a term of not more than
twelve days for underlying securities of the types described in clauses (a) and
(b) above entered into with any of the Lenders and (d) commercial paper of a
domestic issuer with maturities of one year or less rated at least A-1 by S&P or
P-1 by Xxxxx'x; (e) commercial paper of any bank or other financial institution
meeting the qualifications in clause (b) above; and (f) investments in money
market funds, substantially all assets of which comprise securities of the types
described in clauses (a) through (e) above.
A "Change in Control" shall be deemed to have occurred if (a)
Holdings shall cease to own 100% of the capital stock of the Borrower, (b) any
person or group (within the meaning of Rule 13d-5 of the Securities Exchange Act
of 1934 as in effect on the date hereof) shall own directly or indirectly,
beneficially or of record, shares representing 30% or more of the aggregate
ordinary voting power represented by the issued and outstanding capital stock of
Holdings; (c) a majority of the seats (other than vacant seats) on the board of
directors of Holdings shall at any time have been occupied by persons who were
neither (i) nominated by the board of directors of Holdings, nor (ii) appointed
by directors so nominated; or (d) any person or group shall otherwise directly
or indirectly Control Holdings.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"Commitment" shall mean, with respect to any Lender, such
Lender's Revolving Credit Commitment and Swingline Commitment and, with respect
to the Issuing Bank, its L/C Commitment.
"Commitment Fee" shall have the meaning assigned to such term
in Section 2.05(a).
"Consolidated Capital Expenditures" shall mean, for any
period, the sum of (a) the aggregate of all expenditures (whether paid in cash
or other consideration or accrued as a liability) by the Borrower and its
consolidated Subsidiaries during such period that, in conformity with GAAP,
should be included in "additions to property, plant or equipment" or comparable
items reflected in the consolidated statement of cash flows of the Borrower and
its consolidated Subsidiaries; provided that "Consolidated Capital Expenditures"
shall not include (i) any of the foregoing expenditures to the extent made with
the proceeds from property or casualty insurance or compensation with respect to
eminent domain or condem nation proceedings or (ii) any of the foregoing
expenditures to the extent constituting an acquisition made in reliance upon
clause (b) of Section 6.04; plus (b) the aggregate of all payments of Capital
Lease Obligations during such period (except to the extent allocable to
interest).
"Consolidated EBITDA" shall mean, for any period, Consolidated
Net Income for such period, before giving effect to any extraordinary gains or
losses or any gains or losses resulting from sales of assets (other than sales
of inventory in the ordinary course of business), plus, to the extent deducted
in
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computing such Consolidated Net Income, the sum of (a) income tax expense
(whether paid or deferred), (b) Consolidated Interest Expense, (c) depreciation
and amortization and (d) any non-cash charges resulting from any restructuring
or consolidation of operations or any grant, exercise or cancellation of stock
options or warrants.
"Consolidated Fixed Charge Coverage Ratio" shall mean, for any
period, the ratio of (a) the sum of (i) Consolidated EBITDA plus (ii) Rental
Expense minus (iii) Consolidated Capital Expenditures to (b) the sum of (i)
Consolidated Interest Expense plus (ii) Rental Expense, in each case for such
period.
"Consolidated Interest Expense" shall mean, for any period,
the gross consolidated interest expense of the Borrower for such period
determined on a consolidated basis in accordance with GAAP, and including, to
the extent not otherwise included, Capital Lease Obligations (to the extent
allocable to interest) and all commissions, discounts and other fees and charges
with respect to letters of credit and bankers' acceptances and the net costs
(i.e. costs minus benefits) under interest rate protection agreements and other
interest hedging arrangements, but excluding amortization of deferred financing
costs to the extent otherwise included.
"Consolidated Net Income" shall mean, for any period, the
consolidated net income or loss of the Borrower for such period determined on a
consolidated basis in accordance with GAAP.
"Consolidated Net Worth" shall mean, as of any date of
determination, the consolidated stockholders' equity of the Borrower determined
on a consolidated basis in accordance with GAAP less the amount of any
Indebtedness of Holdings to the Borrower included as an asset of the Borrower in
determining such consolidated stockholders' equity.
"Consolidated Total Assets" shall mean, as of any date of
determination, the total assets which would properly be classified as
consolidated assets of the Borrower and its Subsidiaries at such date in
accordance with GAAP.
"Consolidated Total Debt" shall mean, as of any date of
determination, all Indebtedness (excluding (a) Guarantees of Indebtedness, to
the extent the Guaranteed Indebtedness is already included, (b) Indebtedness of
the type described in clause (i) of the definition of the term Indebtedness and
(c) to the extent such Indebtedness is contingent in nature, Indebtedness of the
type described in clause (j) of the definition of the term Indebtedness) of the
Borrower and its consolidated Subsidiaries determined on a consolidated basis in
accordance with GAAP.
"Control" shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of a
person, whether through the ownership of voting securities, by contract or
otherwise, and "Controlling" and "Controlled" shall have meanings correlative
thereto.
"Credit Event" shall have the meaning assigned to such term in
Section 4.01.
"Default" shall mean any event or condition which upon notice,
lapse of time or both would constitute an Event of Default.
"Dollars" or "$" shall mean lawful money of the United States
of America.
"Effective Date" means the date on which the conditions
specified in Section 4.02 are satisfied (or waived in accordance with Section
9.08).
"Environment" shall mean ambient air, surface water and
groundwater (including potable water, navigable water and wetlands), the land
surface or subsurface strata, the workplace or as otherwise defined in any
Environmental Law.
"Environmental Claim" means any written accusation,
allegation, notice of violation, claim, demand, order, directive, cost recovery
action or other cause of action by, or on behalf of, any Governmental Authority
or any person for damages, injunctive or equitable relief, personal injury
(including sickness, disease or death), Remedial Action costs, tangible or
intangible property damage, natural resource damages, nuisance, pollution, any
adverse effect on the environment caused by any Hazardous Material, or for
fines, penalties or restrictions, resulting from or based upon: (a) the
existence,
-4-
or the continuation of the existence, of a Release (including sudden or
non-sudden, accidental or nonaccidental Releases); (b) exposure to any Hazardous
Material; (c) the presence, use, handling, transpor tation, storage, treatment
or disposal of any Hazardous Material; or (d) the violation or alleged violation
of any Environmental Law or Environmental Permit.
"Environmental Law" means any and all applicable present and
future treaties, laws, rules, regulations, codes, ordinances, orders, decrees,
judgments, injunctions, notices or binding agreements issued, promulgated or
entered into by any Governmental Authority, relating in any way to the
environment, preservation or reclamation of natural resources, the management,
Release or threatened Release of any Hazardous Material or to health and safety
matters, including the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986, 42 U.S.C. xx.xx. 9601 et seq. (collectively
"CERCLA"), the Solid Waste Disposal Act, as amended by the Resource Conservation
and Recovery Act of 1976 and Hazardous and Solid Amendments of 1984, 42 U.S.C.
xx.xx. 6901 et seq., the Federal Water Pollution Control Act, as amended by the
Clean Water Act of 1977, 33 U.S.C. xx.xx. 1251 et seq., the Clean Air Act of
1970, as amended 42 U.S.C. xx.xx. 7401 et seq., the Toxic Substances Control Act
of 1976, 15 U.S.C. xx.xx. 2601 et seq., the Occupational Safety and Health Act
of 1970, as amended, 29 U.S.C. xx.xx. 651 et seq., the Emergency Planning and
Community Right- to-Know Act of 1986, 42 U.S.C. xx.xx. 11001 et seq., the Safe
Drinking Water Act of 1974, as amended, 42 U.S.C. xx.xx. 300(f) et seq., the
Hazardous Materials Transportation Act, 49 U.S.C. xx.xx. 1801 et seq., and any
similar or implementing state or local law, and all amendments or regulations
promulgated thereunder.
"Environmental Permit" means any permit, approval,
authorization, certificate, license, variance, filing or permission required by
or from any Governmental Authority pursuant to any Environ mental Law.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or
not incorporated) that, together with the Borrower, is treated as a single
employer under Section 414 of the Code.
"Eurodollar Borrowing" shall mean a Borrowing comprised of
Eurodollar Loans.
"Eurodollar Loan" shall mean any Loan bearing interest at a
rate determined by reference to the Adjusted LIBO Rate in accordance with the
provisions of Article II.
"Event of Default" shall have the meaning assigned to such
term in Article VII.
"Excluded Subsidiary" shall mean, at any time, any Subsidiary
of the Borrower identified on Schedule 3.08 as an "Excluded Subsidiary" and that
has not ceased to be an "Excluded Subsidiary" as provided below; provided that
such Subsidiary (a) does not own assets or properties that, together with the
assets and properties owned by all other Subsidiaries that are treated as
"Excluded Subsidiaries", have a fair market value, in the aggregate, in excess
of $5,000,000, (b) did not, during the period of four consecutive fiscal
quarters of the Borrower ended on the most recent date for which quarterly or
annual financial statements of Holdings are available, have revenues that,
together with the revenues of all other Subsidiaries that are treated as
"Excluded Subsidiaries", accounted for more than 3% of the consolidated revenues
of the Borrower and its Subsidiaries during such period, and (c) does not have
any Indebtedness or any other material liabilities. At any time the Borrower
may, and shall if one or more Excluded Subsidiaries fail to satisfy one or more
of the conditions described in clauses (a) through (d) above, notify the
Administrative Agent that one or more Excluded Subsidiaries shall cease to
constitute an "Excluded Subsidiary", whereupon such Subsidiary or Subsidiaries
shall cease to constitute an "Excluded Subsidiary" for all purposes hereof. The
Borrower may not designate any Subsidiary that is not an Excluded Subsidiary as
an Excluded Subsidiary.
"Existing Credit Agreement" means the Amended and Restated
Credit Agreement dated as of March 10, 1995, as amended and restated as of
December 4, 1996, among the Borrower, Holdings, the financial institutions from
time to time parties thereto and The Chase Manhattan Bank, as administrative
agent.
"Existing Letters of Credit" means any Letters of Credit that
remain outstanding under the Existing Credit Agreement on the Effective Date.
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"Federal Funds Effective Rate" shall mean, for any day, 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 on the next succeeding Business Day by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day which is a Business Day,
the average of the quotations for the day of such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by it.
"Financial Officer" of any corporation shall mean the chief
financial officer, principal accounting officer, Treasurer or Controller of such
corporation, and the Assistant Treasurer and Assistant Controller for the
purpose of giving notice pursuant to Sections 2.03, 2.10, 2.19 and 2.20.
"Foreign Subsidiary" shall mean any Subsidiary organized
outside of the United States.
"GAAP" shall mean generally accepted accounting principles
applied on a consistent basis.
"Governmental Authority" shall mean any Federal, state, local
or foreign court or governmental agency, authority, instrumentality or
regulatory body.
"Guarantee" of or by any person shall mean any obligation,
contingent or otherwise, of such person guaranteeing or having the economic
effect of guaranteeing any Indebtedness of any other person (the "primary
obligor") in any manner, whether directly or indirectly, and including any
obligation of such person, direct or indirect, (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or to
purchase (or to advance or supply funds for the purchase of) any security for
the payment of such Indebtedness, (b) to purchase or lease property, securities
or services for the purpose of assuring the owner of such Indebtedness of the
payment of such Indebtedness or (c) to maintain working capital, equity capital
or any other financial statement condition or liquidity of the primary obligor
so as to enable the primary obligor to pay such Indebtedness; provided, however,
that the term Guarantee shall not include endorsements for collection or deposit
in the ordinary course of business.
"Guarantee Agreement " shall mean the Guarantee Agreement,
substantially in the form of Exhibit C, among the Guarantors and the
Administrative Agent.
"Guarantors" shall mean Holdings and the Subsidiary
Guarantors.
"Hazardous Materials" means all explosive or radioactive
substances or wastes, hazardous or toxic substances or wastes, pollutants,
solid, liquid or gaseous wastes, including petroleum or petroleum distillates,
asbestos or asbestos containing materials, polychlorinated biphenyls ("PCBs") or
PCB-containing materials or equipment, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Indebtedness" of any person shall mean, without duplication,
(a) all obligations of such person for borrowed money or with respect to
deposits or advances of any kind, (b) all obligations of such person evidenced
by bonds, debentures, notes or similar instruments, (c) all obligations of such
person upon which interest charges are customarily paid, (d) all obligations of
such person under conditional sale or other title retention agreements relating
to property or assets purchased by such person, (e) all obligations of such
person issued or assumed as the deferred purchase price of property or services
(excluding trade accounts payable and accrued obligations incurred in the
ordinary or customary course of business), (f) all Indebtedness of others
secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such person, whether or not the obligations secured thereby have
been assumed, (g) all Guarantees by such person of Indebtedness of others, (h)
all Capital Lease Obligations of such person, (i) all obligations of such person
in respect of Rate Protection Agreements and (j) all obligations of such person
as an account party in respect of letters of credit and bankers' acceptances.
The Indebtedness of any person shall include the Indebtedness of any partnership
in which such person is a general partner.
"Indemnity, Subrogation and Contribution Agreement" shall mean
the Indemnity, Subrogation and Contribution Agreement, substantially in the form
of Exhibit D, among the Borrower, the Subsidiary Guarantors and the
Administrative Agent.
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"Information Memorandum" shall mean the confidential
information memorandum, dated as of July 1999, prepared by the Borrower and
distributed by the Administrative Agent to the Lenders.
"Interest Payment Date" shall mean, with respect to any Loan,
the last day of the Interest Period applicable to the Borrowing of which such
Loan is a part and, in the case of a Eurodollar Borrowing with an Interest
Period of more than three months' duration, each day that would have been an
Interest Payment Date had successive Interest Periods of three months' duration
been applicable to such Borrowing, and, in addition, any date on which such Loan
shall be changed to a different Type.
"Interest Period" shall mean (a) as to any Eurodollar
Borrowing, the period commencing on the date of such Borrowing or on the last
day of the immediately preceding Interest Period applicable to such Borrowing,
as the case may be, and ending on the numerically corresponding day (or, if
there is no numerically corresponding day, on the last day) in the calendar
month that is 1, 2, 3, 6 or (if available, as determined by the Administrative
Agent and the Lenders) 9 or 12 months thereafter, as the Borrower may elect and
(b) as to any ABR Borrowing, the period commencing on the date of such Borrowing
or on the last day of the immediately preceding Interest Period applicable to
such Borrowing, as the case may be, and ending on the earliest of (i) the next
succeeding March 31, June 30, September 30 or December 31, (ii) the Revolving
Credit Maturity Date and (iii) the date such Borrowing is prepaid in accordance
with Section 2.10(b); provided, however, that if any Interest Period would end
on a day other than a Business Day, such Interest Period shall be extended to
the next succeeding Business Day unless, in the case of a Eurodollar Borrowing
only, such next succeeding Business Day would fall in the next calendar month,
in which case such Interest Period shall end on the next preceding Business Day.
Interest shall accrue from and including the first day of an Interest Period to
but excluding the last day of such Interest Period.
"Issuing Bank" shall mean, as the context may require, (a) The
Chase Manhattan Bank or (b) any other Lender that may become an Issuing Bank
pursuant to Section 2.20(i) or 2.20(k), with respect to Letters of Credit issued
by such Lender. The Issuing Bank may, in its discretion, arrange for one or more
Letters of Credit to be issued by Affiliates of the Issuing Bank, in which case
the term "Issuing Bank" shall include any such Affiliate with respect to Letters
of Credit issued by such Affiliate.
"Issuing Bank Fees" shall have the meaning assigned to such
term in Section 2.05(c).
"L/C Commitment" shall mean the commitment of the Issuing Bank
to issue Letters of Credit pursuant to Section 2.20.
"L/C Disbursement" shall mean a payment or disbursement made
by the Issuing Bank pursuant to a Letter of Credit.
"L/C Exposure" shall mean at any time the sum of (a) the
aggregate undrawn amount of all outstanding Letters of Credit at such time plus
(b) the aggregate principal amount of all L/C Disburse ments that have not yet
been reimbursed at such time. The L/C Exposure of any Revolving Credit Lender at
any time shall mean its Pro Rata Percentage of the aggregate L/C Exposure at
such time.
"L/C Participation Fee" shall have the meaning assigned to
such term in Section 2.05(c).
"Letter of Credit" shall mean any letter of credit issued
pursuant to Section 2.20.
"Leverage Ratio" shall mean, on any date, the ratio of (a)
Consolidated Total Debt to (b) the sum of (i) Consolidated Total Debt and (ii)
Consolidated Net Worth, in each case as of such date.
"LIBO Rate" shall mean, with respect to any Eurodollar
Borrowing, the rate (rounded, if necessary, to the next 1/16 of 1%) at which
Dollar deposits approximately equal in principal amount to the Administrative
Agent's portion of such Eurodollar Borrowing and for a maturity comparable to
such Interest Period are offered to the principal London office of the
Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"Lien" shall mean, with respect to any asset, (a) any
mortgage, deed of trust, lien, pledge, encumbrance, charge or security interest
in or on such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement relating
to such asset and (c) in the case of securities, any purchase option, call or
similar right of a third party with respect to such securities.
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"Loan Documents" shall mean this Agreement, the Guarantee
Agreement, the Indemnity, Subrogation and Contribution Agreement and the Notes,
if any.
"Loan Parties" shall mean the Borrower and the Guarantors.
"Loans" shall mean the Revolving Loans and the Swingline
Loans.
"Margin Stock" shall have the meaning assigned to such term in
Regulation U.
"Material Adverse Effect" shall mean (a) a materially adverse
effect on the business, assets, operations, prospects or condition, financial or
otherwise, of Holdings, or the Borrower, or the Borrower and the Subsidiaries
taken as a whole, (b) material impairment of the ability of any Loan Party to
perform any of its obligations under any Loan Document to which it is or will be
a party or (c) material impairment of the rights of or benefits available to the
Lenders under any Loan Document.
"Moody's" shall mean Xxxxx'x Investors Service, Inc., and its
successors.
"Multiemployer Plan" shall mean a multiemployer plan as
defined in Section 4001(a)(3) of ERISA to which the Borrower or any ERISA
Affiliate (other than one considered an ERISA Affiliate only pursuant to
subsection (m) or (o) of Code Section 414) is making or accruing an obligation
to make contributions, or has within any of the preceding five plan years made
or accrued an obligation to make contributions.
"Non Wholly Owned Subsidiary" shall mean a Subsidiary that is
not a Wholly Owned Subsidiary.
"Note" shall mean a promissory note of the Borrower,
substantially in the form of Exhibit D.
"Obligations" shall mean all obligations defined as
"Obligations" in the Guarantee Agreement.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
referred to and defined in ERISA.
"Person" or "person" shall mean any natural person,
corporation, business trust, joint venture, association, company, partnership or
government, or any agency or political subdivision thereof.
"Plan" shall mean any employee pension benefit plan (other
than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or
Section 412 of the Code that is maintained for current or former employees, or
any beneficiary thereof, of the Borrower or any ERISA Affiliate.
"Pro Rata Percentage" of any Revolving Credit Lender at any
time shall mean the percentage of the Total Revolving Credit Commitment
represented by such Lender's Revolving Credit Commitment.
"Prime Rate" shall mean the rate of interest per annum
publicly announced from time to time by the Administrative Agent as its prime
rate in effect at its principal office in New York City; each change in the
Prime Rate shall be effective on the date such change is publicly announced as
being effective.
"Rate Protection Agreements" shall mean interest rate
protection agreements, foreign currency exchange agreements, commodity price
protection agreements and other interest or currency exchange rate or commodity
price hedging arrangements.
"Register" shall have the meaning given such term in Section
9.04(d).
"Regulation T" shall mean Regulation T of the Board as from
time to time in effect and all official rulings and interpretations thereunder
or thereof.
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"Regulation U" shall mean Regulation U of the Board as from
time to time in effect and all official rulings and interpretations thereunder
or thereof.
"Regulation X" shall mean Regulation X of the Board as from
time to time in effect and all official rulings and interpretations thereunder
or thereof.
"Release" means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping,
disposing, depositing, dispersing, emanating or migrating of any Hazardous
Material in, into, onto or through the environment.
"Remedial Action" means (a) "remedial action" as such term is
defined in CERCLA, 42 U.S.C. Section 9601(24), and (b) all other actions
required by any Governmental Authority or voluntarily undertaken to: (i)
cleanup, remove, treat, xxxxx or in any other way address any Hazardous Material
in the environment; (ii) prevent the Release or threat of Release, or minimize
the further Release of any Hazardous Material so it does not migrate or endanger
or threaten to endanger public health, welfare or the environment; or (iii)
perform studies and investigations in connection with, or as a precondition to,
(i) or (ii) above.
"Rental Expense" shall mean, for any period, all payment
obligations of Borrower and its consolidated Subsidiaries accrued during such
period under agreements for rent, lease, hire or use of any real or personal
property, including obligations in the nature of operating leases but excluding
Capital Lease Obligations.
"Reportable Event" shall mean any reportable event as defined
in Section 4043(b) of ERISA or the regulations issued thereunder with respect to
a Plan (other than a Plan maintained by an ERISA Affiliate that is considered an
ERISA Affiliate only pursuant to subsection (m) or (o) of Code Section 414).
"Required Lenders" shall mean, at any time, Lenders having
Revolving Credit Exposure and unused Revolving Credit Commitments representing
in excess of 50% of the sum of the Aggregate Revolving Credit Exposure and
unused Revolving Credit Commitments at such time.
"Responsible Officer" of any corporation shall mean any
executive officer or Financial Officer of such corporation and any other officer
or similar official thereof responsible for the administration of the
obligations of such corporation in respect of this Agreement.
"Revolving Credit Borrowing" shall mean a Borrowing comprised
of Revolving Loans.
"Revolving Credit Commitment" shall mean, with respect to each
Lender, the commitment of such Lender to make Revolving Loans hereunder as set
forth in Schedule 2.01, or in the Assignment and Acceptance pursuant to which
such Lender assumed its Revolving Credit Commitment, as applicable, as the same
may be reduced from time to time pursuant to Section 2.09 and pursuant to
assignments by such Lender pursuant to Section 9.04.
"Revolving Credit Exposure" shall mean, with respect to any
Lender at any time, the aggregate principal amount at such time of all
outstanding Revolving Credit Loans of such Lender, plus the aggregate amount at
such time of such Lender's L/C Exposure, plus the aggregate amount at such time
of such Lender's Swingline Exposure.
"Revolving Credit Lender" shall mean a Lender with a Revolving
Credit Commitment.
"Revolving Credit Maturity Date" shall mean August 25, 2004.
"Revolving Loans" shall mean the revolving loans made by the
Lenders to the Borrower pursuant to Section 2.01. Each Revolving Loan shall be a
Eurodollar Revolving Loan or an ABR Revolving Loan.
"S&P" shall mean Standard & Poor's Ratings Group and its
successors.
"Statutory Reserves" shall mean a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves)
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expressed as a decimal established by the Board and any other banking authority,
domestic or foreign, to which the Administrative Agent or any Lender (including
any branch, Affiliate, or other Funding Office making or holding a Loan) is
subject (a) with respect to the Base CD Rate, for new negotiable nonpersonal
time deposits in Dollars of over $100,000 with maturities approximately equal to
three months, and (b) with respect to the Adjusted LIBO Rate, for Eurocurrency
Liabilities (as defined in Regulation D of the Board). Such reserve percentages
shall include those imposed pursuant to such Regulation D. Eurodollar Loans
shall be deemed to constitute Eurocurrency Liabilities and to be subject to such
reserve requirements without benefit of or credit for proration, exemptions or
offsets which may be available from time to time to any Lender under such
Regulation D. Statutory Reserves shall be adjusted automatically on and as of
the effective date of any change in any reserve percentage.
"subsidiary" shall mean, with respect to any person (herein
referred to as the "parent"), any corporation, partnership, association or other
business entity (a) of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary voting
power or more than 50% of the general partnership interests are, at the time any
determination is being made, owned, controlled or held, or (b) which is, at the
time any determination is made, otherwise Controlled, by the parent or one or
more subsidiaries of the parent or by the parent and one or more subsidiaries of
the parent.
"Subsidiary" shall mean any subsidiary of the Borrower.
"Subsidiary Guarantor" shall mean each Subsidiary that is not
a Foreign Subsidiary or an Excluded Subsidiary.
"Swingline Commitment" shall mean the commitment of the
Swingline Lender to make loans pursuant to Section 2.19, as the same may be
reduced from time to time pursuant to Section 2.09.
"Swingline Exposure" shall mean at any time the aggregate
principal amount at such time of all outstanding Swingline Loans. The Swingline
Exposure of any Revolving Credit Lender at any time shall equal its Pro Rata
Percentage of the aggregate Swingline Exposure at such time.
"Swingline Loan" shall mean any loan made by the Swingline
Lender pursuant to Section 2.19.
"Three-Month Secondary CD Rate" shall mean, for any day, the
secondary market rate for three-month certificates of deposit reported as being
in effect on such day (or, if such day shall not be a Business Day, the next
preceding Business Day) by the Board through the public information telephone
line of the Federal Reserve Bank of New York (which rate will, under the current
practices of the Board, be published in Federal Reserve Statistical Release
H.15(519) during the week following such day), or, if such rate shall not be so
reported on such day or such next preceding Business Day, the average of the
secondary market quotations for three-month certificates of deposit of major
money center banks in New York City received at approximately 10:00 a.m., New
York City time, on such day (or, if such day shall not be a Business Day, on the
next preceding Business Day) by the Administrative Agent from three New York
City negotiable certificate of deposit dealers of recognized standing selected
by it.
"Total Revolving Credit Commitment" shall mean, at any time,
the aggregate amount of the Revolving Credit Commitments, as in effect at such
time.
"Transactions" shall have the meaning assigned to such term in
Section 3.02.
"Type", when used in respect of any Loan or Borrowing, shall
refer to the Rate by reference to which interest on such Loan or on the Loans
comprising such Borrowing is determined. For purposes hereof, "Rate" shall
include the Adjusted LIBO Rate and the Alternate Base Rate.
"Withdrawal Liability" shall mean liability to a Multiemployer
Plan as a result of a complete or partial withdrawal from such Multiemployer
Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
"Wholly Owned Subsidiary" shall mean a Subsidiary of which
securities (except for directors' qualifying shares) or other ownership
interests representing 100% of the equity, including 100% of the ordinary voting
power, are, at the time any determination is being made, owned by the Borrower,
either directly or indirectly through other Subsidiaries that satisfy the
requirements of this definition.
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SECTION 1.02. Terms Generally. The definitions in Section 1.01
shall apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to,
this Agreement unless the context shall otherwise require. Except as otherwise
expressly provided herein, (a) any reference in this Agreement to any Loan
Document shall mean such document as amended, restated, supplemented or
otherwise modified from time to time and (b) all terms of an accounting or
financial nature shall be construed in accordance with GAAP, as in effect from
time to time; provided, however, that for purposes of determining compliance
with the covenants contained in Article VI, all accounting terms herein shall be
interpreted and all accounting determinations hereunder shall be made in
accordance with GAAP as in effect on the date of this Agreement and applied on a
basis consistent with the application used in the financial statements referred
to in Section 3.05.
ARTICLE II. THE CREDITS
SECTION 2.01. Commitments. Subject to the terms and conditions
and relying upon the representations and warranties herein set forth, each
Lender agrees, severally and not jointly, to make Revolving Loans to the
Borrower, at any time and from time to time on or after the date hereof, and
until the earlier of the Revolving Credit Maturity Date and the termination of
the Revolving Credit Commitment of such Lender in accordance with the terms
hereof, in an aggregate principal amount at any time outstan ding that will not
result in (i) such Lender's Revolving Credit Exposure exceeding (ii) such
Lender's Revolving Credit Commitment.
Within the limits set forth in the preceding sentence, the
Borrower may borrow, pay or prepay and reborrow Revolving Loans on or after the
Effective Date and prior to the Revolving Credit Maturity Date, subject to the
terms, conditions and limitations set forth herein.
SECTION 2.02. Loans. (a) Each Loan (other than a Swingline
Loan, as to which this Section 2.02 shall not apply) shall be made as part of a
Borrowing consisting of Loans made by the Lenders ratably in accordance with
their applicable Revolving Credit Commitments; provided, however, that the
failure of any Lender to make any Loan shall not in itself relieve any other
Lender of its obligation to lend hereunder (it being understood, however, that
no Lender shall be responsible for the failure of any other Lender to make any
Loan required to be made by such other Lender). The Loans comprising any
Borrowing shall be in an aggregate principal amount which is (i) not less than
$500,000 and is an integral multiple of $100,000, in the case of an ABR
Borrowing, (ii) not less than $500,000 and is an integral multiple of $500,000,
in the case of a Eurodollar Borrowing, or (iii) equal to the remaining available
balance of the Revolving Credit Commitments.
(b) Subject to Sections 2.08 and 2.12, each Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may request
pursuant to Section 2.03. Each Lender may at its option make any Eurodollar Loan
by causing any domestic or foreign branch or Affiliate of such Lender to make
such Loan; provided that any exercise of such option shall not affect the
obligation of the Borrower to repay such Loan in accordance with the terms of
this Agreement. Borrowings of more than one Type may be outstanding at the same
time; provided, however, that the Borrower shall not be entitled to request any
Borrowing which, if made, would result in more than 20 Eurodollar Borrowings
outstanding hereunder at any time. For purposes of the foregoing, Borrowings
having different Interest Periods, regardless of whether they commence on the
same date, shall be considered separate Borrowings.
(c) Each Lender shall make each Loan to be made by it
hereunder on the proposed date thereof by wire transfer to such account as the
Administrative Agent may designate in federal funds not later than 11:00 a.m.,
New York City time, and the Administrative Agent shall by 12:00 (noon), New York
City time, credit the amounts so received to an account with the Administrative
Agent designated by the Borrower in the applicable Borrowing Request, which
account must be in the name of the Borrower or, if a Borrowing shall not occur
on such date because any condition precedent herein specified shall not have
been met, return the amounts so received to the respective Lenders.
(d) Unless the Administrative Agent shall have received notice
from a Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's portion of such Borrowing,
the Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on the date of such Borrowing in
accordance with
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paragraph (c) above and the Administrative Agent may, in reliance upon such
assumption, make available to the Borrower on such date a corresponding amount.
If the Administrative Agent shall have so made funds available then, to the
extent that such Lender shall not have made such portion available to the
Administrative Agent, such Lender and the Borrower severally agree to repay to
the Administrative Agent forthwith on demand such corresponding amount together
with interest thereon, for each day from the date such amount is made avail able
to the Borrower until the date such amount is repaid to the Administrative Agent
at (i) in the case of the Borrower, the interest rate applicable at the time to
the Loans comprising such Borrowing and (ii) in the case of such Lender, a rate
determined by the Administrative Agent to represent its cost of overnight or
short-term funds (which determination shall be conclusive absent manifest
error). If such Lender shall repay to the Administrative Agent such
corresponding amount, such amount shall constitute such Lender's Loan as part of
such Borrowing for purposes of this Agreement. Nothing in this paragraph shall
be construed to relieve any Lender of its obligation to make Loans hereunder or
to prejudice any rights that the Borrower may have against any Lender as a
result of any failure by such Lender to make Loans hereunder.
(e) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request any Borrowing if the Interest Period
requested with respect thereto would end after the Revolving Credit Maturity
Date.
(f) If the Issuing Bank shall not have received from the
Borrower any payment required to be made under Section 2.20(e) by the time such
payment is required to be made, then, the Issuing Bank will promptly notify the
Administrative Agent of the L/C Disbursement and the Administrative Agent will
promptly notify each Revolving Credit Lender of such L/C Disbursement and its
Pro Rata Percentage thereof. Each Revolving Credit Lender shall pay by wire
transfer of immediately available funds to the Administrative Agent not later
than 2:00 p.m., New York City time, on such date (or, if such Revolving Credit
Lender shall have received such notice later than 12:00 (noon), New York City
time, on any day, not later than 10:00 a.m., New York City time, on the
immediately following Business Day), an amount equal to such Lender's Pro Rata
Percentage of such L/C Disbursement and the Administrative Agent will promptly
pay to the Issuing Bank amounts so received by it from the Revolving Credit
Lenders. The Administrative Agent will promptly pay to the Issuing Bank any
amounts received by it from the Borrower pursuant to Section 2.20(e) prior to
the time that any Revolving Credit Lender makes any payment pursuant to this
paragraph (f); any such amounts received by the Administrative Agent thereafter
will be promptly remitted by the Administrative Agent to the Revolving Credit
Lenders that shall have made such payments and to the Issuing Bank, as their
interests may appear. If any Revolving Credit Lender shall not have made its Pro
Rata Percentage of such L/C Disbursement available to the Administrative Agent
as provided above, such Lender and the Borrower severally agree to pay interest
on such amount, for each day from and including the date such amount is required
to be paid in accordance with this paragraph to but excluding the date such
amount is paid, to the Administrative Agent for the account of the Issuing Bank
at (i) in the case of the Borrower, the applicable rate per annum under Section
2.20(h), without duplication and (ii) in the case of such Lender, for the first
such day, the Federal Funds Effective Rate, and for each day thereafter, the
Alternate Base Rate. If (i) the Revolving Credit Lenders make the payments
required pursuant to this paragraph (f) in respect of any L/C Disbursement, (ii)
the Borrower notifies the Administrative Agent in accordance with Section
2.20(e) that all or any portion of such payments should be financed with ABR
Loans, specifying the amount thereof to be so financed, (iii) the amount so
specified is not less than $500,000 and is an integral multiple of $100,000, and
(iv) the conditions to Borrowing set forth in Section 4.01 are satisfied at the
time, then the amount of such payments so specified shall constitute ABR Loans
made on the date such payments were made for all purposes hereof and the
Administrative Agent shall promptly advise the Lenders thereof.
(g) Any Borrowing made on the Effective Date shall be made as
an ABR Borrowing.
SECTION 2.03. Borrowing Procedure; Interest Rate Elections.
(a) In order to request a Borrowing (other than a Swingline Loan, as to which
this Section 2.03 shall not apply), the Borrower shall give to the
Administrative Agent telephonic notice of the contents of its Borrowing Request
(promptly confirmed by hand delivery or telecopy notice to the Administrative
Agent of a duly completed Borrowing Request substantially in the form of Exhibit
C) (i) in the case of a Eurodollar Borrowing, not later than 11:00 a.m., New
York City time, three Business Days before a proposed Borrowing, and (ii) in the
case of an ABR Borrowing, not later than 12:00 noon, New York City time, one
Business Day before a proposed Borrowing; provided, however, that Borrowing
Requests with respect to Borrowings to be made on the Effective Date may, at the
discretion of the Administrative Agent, be delivered later than the times
specified above. Each Borrowing Request shall be irrevocable, signed by or on
behalf of the Borrower and shall specify the following information: (i) whether
the Borrowing then being requested is to be a
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Eurodollar Borrowing or an ABR Borrowing; (ii) the date of such Borrowing (which
shall be a Business Day), (iii) the number and location of the account to which
funds are to be disbursed (which shall be an account that complies with the
requirements of Section 2.02(c)); (iv) the amount of such Borrowing; and (v) if
such Borrowing is to be a Eurodollar Borrowing, the Interest Period with respect
thereto; provided, however,that, notwithstanding any contrary specification in
any Borrowing Request, each requested Borrowing shall comply with the
requirements set forth in Section 2.02. If no election as to the Type of
Borrowing is specified in any such notice, then the requested Borrowing shall be
an ABR Borrowing. If no Interest Period with respect to any Eurodollar Borrowing
is specified in any such notice, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration. The Administrative Agent
shall promptly (and in any event on the same day that the Administrative Agent
receives such notice, if received by 1:00 p.m., New York City time, on such day)
advise the Lenders of any notice given pursuant to this Section 2.03 (and the
contents thereof) and of each Lender's portion of the requested Borrowing.
(b) The Revolving Loans included in any Revolving Credit
Borrowing shall initially be of the Type and have the Interest Period determined
as provided in paragraph (a) above. Thereafter, the Borrower may from time to
time elect to change or continue the Type of all or a portion of the Loans
included in such Borrowing, as follows:
(i) if such Loans are ABR Loans, the Borrower may elect to
change such Loans to Eurodollar Loans; or
(ii) if such Loans are Eurodollar Loans, the Borrower may
elect to change such Loans to ABR Loans or to continue such Loans as
Eurodollar Loans for an additional Interest Period.
Each such election shall be made by delivering a notice to the Administrative
Agent at the time and in the manner applicable to a Borrowing Request under
paragraph (a) above, and specifying the information required to be specified in
such a Borrowing Request, and the contents thereof shall be communicated by the
Administrative Agent to the Lenders, in each case as though the Loans resulting
from such election were being advanced as a Borrowing on the date such election
is to become effective. In any event (i) the Borrower may not elect to change or
continue any Eurodollar Loans except pursuant to an election that is effective
on the last day of the Interest Period applicable thereto, (ii) each Borrowing
resulting from any such election (including each separate Borrowing resulting
from an election that applies to a portion of the Loans included in a Borrowing)
shall comply with the requirements set forth in Section 2.02, and (iii) if any
election applies to a portion of the Loans included in a Borrowing, such portion
shall be allocated ratably among the Loans included in such Borrowing. If the
Borrower shall not have delivered a notice in accordance with this paragraph
prior to 11:00 a.m., New York City time, three Business Days before the last day
of the Interest Period then in effect for any Borrowing, then, except to the
extent that the Borrower is required to repay or elects to prepay such Borrowing
in accordance with Section 2.04 or 2.10, the Loans included in such Borrowing
shall be converted into or continued as ABR Loans on the last day of such
Interest Period then if effect.
SECTION 2.04. Evidence of Debt; Repayment of Loans. (a) The
outstanding principal balance of each Revolving Loan and Swingline Loan shall be
payable on the Revolving Credit Maturity Date. Each Loan shall bear interest
from the date of the first Borrowing hereunder on the outstanding principal
balance thereof as set forth in Section 2.06.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness to such Lender
resulting from each Loan made by such Lender from time to time, including the
amounts of principal and interest payable and paid such Lender from time to time
under this Agreement.
(c) The Administrative Agent shall maintain accounts in which
it will record (i) the amount of each Loan made hereunder, the Type of each Loan
made and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder from the Borrower and each Lender's share
thereof.
(d) The entries made in the accounts maintained pursuant to
paragraphs (b) and (c) of this Section 2.04 shall be prima facie evidence of the
existence and amounts of the obligations therein recorded, absent manifest
error; provided, however, that the failure of any Lender or the Administrative
Agent to maintain such accounts or any error therein shall not in any manner
affect the obligations of the Borrower to repay the Loans in accordance with
their terms.
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(e) Notwithstanding any other provision of this Agreement, in
the event any Lender shall request and receive a Note payable to such Lender and
its registered assigns, the interests represented by that Note shall at all
times (including after any assignment of all or part of such interests pursuant
to Section 9.04) be represented by one or more Notes payable to the payee named
therein or its registered assigns.
SECTION 2.05. Fees. (a) The Borrower agrees to pay to each
Lender, through the Administrative Agent, on the last day of March, June,
September and December in each year, and on the date on which the Revolving
Credit Commitment of such Lender shall be terminated as provided herein, a
commitment fee (a "Commitment Fee") equal to the Applicable Percentage per annum
on the average daily unused amount of the Revolving Credit Commitment of such
Lender during the preceding quarter (or other period commencing with the
Effective Date or ending with the Revolving Credit Maturity Date or the date on
which the Revolving Credit Commitment of such Lender shall be terminated). All
Commitment Fees shall be computed on the basis of the actual number of days
elapsed in a year of 360 days. The Commit ment Fee due to each Lender shall
commence to accrue on the Effective Date and shall cease to accrue on the date
on which the Revolving Credit Commitment of such Lender shall be terminated as
provided herein. For purposes of calculating Commitment Fees only, no portion of
the Revolving Credit Commitments shall be deemed utilized under Section 2.14 as
a result of outstanding Swingline Loans.
(b) The Borrower agrees to pay to the Administrative Agent,
for its own account, the administrative fees separately agreed to between the
Borrower and the Administrative Agent at the time so agreed to be payable (the
"Administrative Agent Fees").
(c) The Borrower agrees to pay (i) to each Revolving Credit
Lender, through the Administrative Agent, on the last day of March, June,
September and December of each year and on the date on which the Revolving
Credit Commitment of such Lender shall be terminated as provided herein, a fee
(an "L/C Participation Fee") equal to the Applicable Percentage per annum on
such Lender's Pro Rata Percentage of the average daily aggregate L/C Exposure
(excluding the portion thereof attributable to unreimbursed L/C Disbursements)
during the preceding quarter (or shorter period commencing with the Effective
Date or ending with the later of the date on which the Revolving Credit
Commitment of such Lender shall be terminated and the date on which such Lender
ceases to have any L/C Exposure) and (ii) to the Issuing Bank with respect to
each Letter of Credit, on the last day of March, June, September and December in
each year and on the date on which the L/C Commitment of such Issuing Bank shall
be terminated as provided herein, a fee equal to 0.125% per annum (or such other
rate as the Borrower and such Issuing Bank may agree) on the aggregate face
amount of such Letter of Credit during the preceding quarter (or shorter period
commencing with the date of issuance of such Letter of Credit or ending with the
expiration or termination such Letter of Credit) plus, in connection with the
issuance, amendment, extension, renewal or transfer of any Letter of Credit or
any L/C Disbursement, the Issuing Bank's customary documentary and processing
charges (collectively, the "Issuing Bank Fees"), provided, in each case, that
any fees accruing after the Revolving Credit Maturity Date shall be payable on
demand. All L/C Participation Fees and Issuing Bank Fees shall be computed on
the basis of the actual number of days elapsed in a year of 360 days.
(d) All fees shall be paid on the dates due, in immediately
available funds, to the Administrative Agent for distribution, if and as
appropriate, among the Lenders, except that the Issuing Bank Fees shall be paid
directly to the Issuing Bank. Once paid, none of the fees shall be refundable
under any circumstances.
SECTION 2.06. Interest on Loans. (a) Subject to the provisions
of Section 2.07, the Loans comprising each ABR Borrowing shall bear interest
(computed on the basis of the actual number of days elapsed over a year of 365
or 366 days, as the case may be, when determined by reference to the Prime Rate
and over a year of 360 days at all other times) at a rate per annum equal to the
Alternate Base Rate plus the Applicable Percentage.
(b) Subject to the provisions of Section 2.07, the Loans
comprising each Eurodollar Borrowing shall bear interest (computed on the basis
of the actual number of days elapsed over a year of 360 days) at a rate per
annum equal to the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Percentage.
(c) Interest on each Loan shall be payable on the Interest
Payment Dates applicable to such Loan except as otherwise provided in this
Agreement. The applicable Alternate Base Rate or
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Adjusted LIBO Rate for each Interest Period or day within an Interest Period, as
the case may be, shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.07. Default Interest. If the Borrower shall default
in the payment of the principal of or interest on any Loan or any other amount
becoming due hereunder, by acceleration or otherwise, the Borrower shall on
demand from time to time pay interest, to the extent permitted by law, on such
defaulted amount up to (but not including) the date of actual payment (after as
well as before judg ment) at a rate per annum (computed on the basis of the
actual number of days elapsed over a year of 360 days) equal to the sum of the
Alternate Base Rate plus the Applicable Percentage plus 2.00%.
SECTION 2.08. Alternate Rate of Interest. In the event, and on
each occasion, that on the day two Business Days prior to the commencement of
any Interest Period for a Eurodollar Borrowing the Administrative Agent shall
have determined that Dollar deposits in the principal amount of the Loans
comprising such Borrowing are not generally available in the London interbank
market, or that the rates at which such Dollar deposits are being offered will
not adequately and fairly reflect the cost to any Lender of making or
maintaining its Eurodollar Loan during such Interest Period, or that reasonable
means do not exist for ascertaining the Adjusted LIBO Rate, the Administrative
Agent shall, as soon as practicable thereafter, give written or telecopy notice
of such determination to the Borrower and the Lenders. In the event of any such
determination, until the Administrative Agent shall have advised the Borrower
and the Lenders that the circumstances giving rise to such notice no longer
exist, any request by the Borrower for a Eurodollar Borrowing pursuant to
Section 2.03 shall be deemed to be a request for an ABR Borrowing. Each
determination by the Administrative Agent hereunder shall be conclusive absent
manifest error.
SECTION 2.09. Termination and Reduction of Commitments. (a)
The Revolving Credit Commitments and the Swingline Commitment shall be
automatically terminated on the Revolving Credit Maturity Date.
(b) Upon at least three Business Days' prior irrevocable
telephonic notice (promptly confirmed by hand delivery or telecopy notice) to
the Administrative Agent, the Borrower may at any time in whole permanently
terminate, or from time to time in part permanently reduce, the Revolving Credit
Commitments or the Swingline Commitment; provided, however, that (i) each
partial reduction of the Revolving Credit Commitments shall be in an integral
multiple of $1,000,000 and in a minimum principal amount of $1,000,000 and (ii)
the Total Revolving Credit Commitment shall not be terminated at any time that
there is any Revolving Credit Exposure, nor reduced to an amount that is less
than the sum of the Aggregate Revolving Credit Exposure at the time.
(c) Each reduction in the Revolving Credit Commitments
hereunder shall be made ratably among the Lenders in accordance with their
respective Commitments. The Borrower shall pay to the Administrative Agent for
the account of the Lenders, on the date of each termination or reduction, the
Commitment Fees on the amount of the Commitments so terminated or reduced
accrued to the date of such termination or reduction.
SECTION 2.10. Prepayment. (a) The Borrower shall have the
right at any time and from time to time to prepay any Borrowing, in whole or in
part, upon prior telephonic notice (promptly confirmed by hand delivery or
telecopy notice) to the Administrative Agent before 11:00 a.m., New York City
time, on the date three Business Days prior to the prepayment date, in the case
of a Eurodollar Borrowing, or one Business Day prior to the prepayment date, in
the case of an ABR Borrowing; provided, however, that each partial prepayment
shall be in an amount which is an integral multiple of $100,000 and not less
than $500,000.
(b) In the event of any termination of the Revolving Credit
Commitments, the Borrower shall repay or prepay all its outstanding Revolving
Credit Borrowings on the date of such termination. In the event of any partial
reduction of the Revolving Credit Commitments, then (i) at or prior to the
effective date of such reduction, the Administrative Agent shall notify the
Borrower and the Revolving Credit Lenders of the Aggregate Revolving Credit
Exposure and (ii) if the Aggregate Revolving Credit Exposure would exceed the
Total Revolving Credit Commitment after giving effect to such reduction, then
the Borrower shall, on the date of such reduction, repay or prepay Revolving
Credit Borrowings or Swingline Loans (or a combination thereof) in an amount
sufficient to eliminate such excess.
(c) Each notice of prepayment shall specify the prepayment
date and the principal amount of each Borrowing (or portion thereof) to be
prepaid, shall be irrevocable and shall commit the Borrower to prepay such
Borrowing by the amount stated therein on the date stated therein. All
prepayments
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under this Section 2.10 shall be subject to Section 2.13 but without premium or
penalty. All prepayments of Loans (other than ABR Loans prepaid pursuant to
paragraph (a) of this Section 2.10) under this Section 2.10 shall be accompanied
by accrued interest on the principal amount being prepaid to the date of
payment.
SECTION 2.11. Reserve Requirements; Change in Circumstances.
(a) If after the date of this Agreement any change in applicable law or
regulation or in the interpretation or administration thereof by any
Governmental Authority charged with the interpretation or administration thereof
(whether or not having the force of law) shall change the basis of taxation of
payments to any Lender or the Issuing Bank of the principal of or interest on
any Eurodollar Loan made by such Lender or any fees or other amounts payable
hereunder (other than changes in respect of taxes imposed on the overall net
income of such Lender or the Issuing Bank by the jurisdiction in which such
Lender or the Issuing Bank has its principal office or by any political
subdivision or taxing authority therein), or shall impose, modify or deem
applicable any reserve, special deposit or similar requirement against assets
of, deposits with or for the account of or credit extended by such Lender or the
Issuing Bank (except any such reserve requirement which is reflected in the
Adjusted LIBO Rate) or shall impose on such Lender or the Issuing Bank or the
London interbank market any other condition affecting this Agreement or
Eurodollar Loans made by such Lender or any Letter of Credit or participation
therein, and the result of any of the foregoing shall be to increase the cost to
such Lender or the Issuing Bank of making or maintaining any Eurodollar Loan or
of issuing or maintaining any Letter of Credit or purchasing or maintaining a
participation therein, or to reduce the amount of any sum received or receivable
by such Lender or the Issuing Bank hereunder (whether of principal, interest or
otherwise) by an amount deemed by such Lender or the Issuing Bank to be
material, then the Borrower will pay to such Lender or the Issuing Bank, as the
case may be, upon demand such additional amount or amounts as will compensate
such Lender or the Issuing Bank, as the case may be, for such additional costs
incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined
that the adoption after the date hereof of any law, rule, regulation, agreement
or guideline regarding capital adequacy, or any change after the date hereof in
any such law, rule, regulation, agreement or guideline (whether such law, rule,
regulation, agreement or guideline has been adopted) or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof, or compliance by any Lender (or any
lending office of such Lender) or the Issuing Bank or any Lender's or the
Issuing Bank's holding company with any request or directive regarding capital
adequacy (whether or not having the force of law) of any Governmental Authority
has or would have the effect of reducing the rate of return on such Lender's or
the Issuing Bank's capital or on the capital of such Lender's or the Issuing
Bank's holding company, if any, as a consequence of this Agreement or the Loans
made or participation in Letters of Credit purchased by such Lender pursuant
hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a
level below that which such Lender or the Issuing Bank or such Lender's or the
Issuing Bank's holding company could have achieved but for such applicability,
adoption, change or compliance by an amount deemed by such Lender or the Issuing
Bank to be material, then from time to time the Borrower shall pay to such
Lender or the Issuing Bank, as the case may be, such additional amount or
amounts as will compensate such Lender or the Issuing Bank or such Lender's or
the Issuing Bank's holding company for any such reduction suffered. Any Lender
or Issuing Bank may utilize reasonable averaging and attribution methods in
determining any amount or amounts under this paragraph.
(c) A certificate of a Lender or the Issuing Bank setting
forth the amount or amounts necessary to compensate such Lender or the Issuing
Bank or its holding company, as applicable, as specified in paragraph (a) or (b)
above shall be delivered to the Borrower, shall set forth in reasonable detail
the circumstances giving rise to such certificate and the basis for calculation
of the amount or amounts for which compensation is required, shall constitute
rebuttable presumptive evidence of such amount or amounts and, if not rebutted
within five Business Days, shall be conclusive and binding. The Borrower shall
pay each Lender or the Issuing Bank the amount shown as due on any such
certificate delivered by it within 10 days after its receipt of the same.
(d) The protection of this Section shall be available to each
Lender and the Issuing Bank regardless of any possible contention of the
invalidity or inapplicability of the law, rule, regulation, agreement, guideline
or other change or condition which shall have occurred or been imposed.
(e) Each Lender or Issuing Bank will promptly notify the
Borrower and the Administrative Agent of any event of which it has knowledge
that will entitle such Lender or Issuing Bank to compensation pursuant to this
Section (any such event, a "Compensation Event"). No Lender or Issuing Bank
shall be entitled to compensation pursuant to this Section in respect of any
Compensation Event for
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any period of time in excess of 365 days prior to such notice; provided that, if
a Compensation Event by its terms is retroactive, such 365-day period shall be
increased by the duration of the retroactive effect of such Compensation Event.
SECTION 2.12. Change in Legality. (a) Notwithstanding any
other provision herein, if, after the date hereof, any change in any law or
regulation or in the interpretation thereof by any Gov ernmental Authority
charged with the administration or interpretation thereof shall make it unlawful
for any Lender to make or maintain any Eurodollar Loan or to give effect to its
obligations as contemplated hereby with respect to any Eurodollar Loan, then, by
written notice to the Borrower and to the Administrative Agent:
(i) such Lender may declare that Eurodollar Loans will not
thereafter (for the duration of such unlawfulness or impracticability)
be made by such Lender hereunder, whereupon such Lender will not make
any further Eurodollar Loans and any request for a Eurodollar
Borrowing, shall, as to such Lender only, be deemed a request for an
ABR Loan unless such declaration shall be subsequently withdrawn (or,
if a Loan to the Borrower cannot be made for the reasons specified
above, such request shall be deemed to have been withdrawn); and
(ii) such Lender may require that all outstanding Eurodollar
Loans made by it be converted to ABR Loans, in which event all such
Eurodollar Loans shall be automatically con verted to ABR Loans as of
the effective date of such notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal which would otherwise have been applied to
repay the Eurodollar Loans that would have been made by such Lender or the
converted Eurodollar Loans of such Lender shall instead be applied to repay the
ABR Loans made by such Lender in lieu of, or resulting from the conversion of,
such Eurodollar Loans.
(b) For purposes of this Section 2.12, a notice to the
Borrower by any Lender shall be effective as to each Eurodollar Loan, if lawful,
on the last day of the Interest Period currently applicable to such Eurodollar
Loan; in all other cases such notice shall be effective on the date of receipt
by the Borrower.
SECTION 2.13. Indemnity. The Borrower shall indemnify each
Lender against any loss or expense which such Lender may sustain or incur as a
consequence of (a) any event, other than a default by such Lender in the
performance of its obligations hereunder, which results in (i) such Lender
receiving or being deemed to receive any amount on account of the principal of
any Loan prior to the end of the Interest Period in effect therefor or (ii) any
Eurodollar Loan to be made, continued or converted by such Lender not being
made, continued or converted after notice thereof shall have been given by the
Borrower hereunder (any of the events referred to in this clause (a) being
called a "Breakage Event") or (b) any default in the making of any payment or
prepayment required to be made hereunder. In the case of any Breakage Event,
such loss shall include an amount equal to the excess, as reasonably determined
by such Lender, of (i) its cost of obtaining funds for the Loan which is the
subject of such Breakage Event for the period from the date of such Breakage
Event to the last day of the Interest Period in effect (or which would have been
in effect) for such Loan over (ii) the amount of interest likely to be realized
by such Lender in redeploying the funds released or not utilized by reason of
such Breakage Event for such period. A certifi cate of any Lender setting forth
any amount or amounts which such Lender is entitled to receive pursuant to this
Section shall be delivered to the Borrower, shall set forth in reasonable detail
the basis for such amount or amounts, shall constitute rebuttable presumptive
evidence of such amount or amounts and, if not rebutted within five Business
Days, shall be conclusive and binding.
SECTION 2.14. Pro Rata Treatment. Except as required under
Section 2.12, each Borrowing, each reduction of the Revolving Credit Commitments
and each change of any Borrowing to a Borrowing of another Type shall be
allocated pro rata among the Lenders in accordance with their respective
Revolving Credit Commitments (or, if such Commitments shall have expired or been
terminated, in accordance with the respective principal amounts of their
outstanding Revolving Loans) and each payment or prepayment of principal of any
Borrowing, each payment of interest on the Loans and each payment of Commitment
Fees shall be allocated pro rata among the Lenders entitled thereto. Each Lender
agrees that in computing such Lender's portion of any Borrowing to be made
hereunder, the Administrative Agent may, in its discretion, round each Lender's
percentage of such Borrowing, computed in accordance with Section 2.01, to the
next higher or lower whole Dollar amount.
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SECTION 2.15. Sharing of Setoffs. Each Lender agrees that if
it shall, through the exercise of a right of banker's lien, setoff or
counterclaim against any Loan Party, or pursuant to a secured claim under
Section 506 of Title 11 of the United States Code or other security or interest
arising from, or in lieu of, such secured claim, received by such Lender under
any applicable bankruptcy, insolvency or other similar law or otherwise, or by
any other means, obtain payment (voluntary or involuntary) in respect of any
Loan or Loans or L/C Disbursement as a result of which the unpaid principal
portion of its Loans and participations in L/C Disbursements shall be
proportionately less than the unpaid principal portion of the Loans and
participations in L/C Disbursements of any other Lender, it shall be deemed
simultaneously to have purchased from such other Lender at face value, and shall
promptly pay to such other Lender the purchase price for, a participation in the
Loans and L/C Exposure of such other Lender, so that the aggregate unpaid
principal amount of the Loans and L/C Exposure and participations in Loans and
L/C Exposure held by each Lender shall be in the same proportion to the
aggregate unpaid principal amount of all Loans and L/C Exposure then outstanding
as the principal amount of its Loans and L/C Exposure prior to such exercise of
banker's lien, setoff or counterclaim or other event was to the principal amount
of all Loans and L/C Exposure outstanding prior to such exercise of banker's
lien, setoff or counterclaim or other event; provided, however, that, if any
such purchase or purchases or adjustments shall be made pursuant to this Section
and the payment giving rise thereto shall thereafter be recovered, such purchase
or purchases or adjustments shall be rescinded to the extent of such recovery
and the purchase price or prices or adjustment restored without interest. The
Borrower expressly consents to the foregoing arrangements and agrees that any
Lender holding a participation in a Loan or L/C Disbursement deemed to have been
so purchased may exercise any and all rights of banker's lien, setoff or
counterclaim with respect to any and all moneys owing by the Borrower to such
Lender by reason thereof as fully as if such Lender had made a Loan directly to
the Borrower in the amount of such participation.
SECTION 2.16. Payments. (a) The Borrower shall make each
payment (including principal of or interest on any Borrowing or any L/C
Disbursement or any fees or other amounts) hereunder and under any other Loan
Document not later than 12:00 (noon), New York City time, on the date when due
in immediately available funds. Each such payment (other than (i) Issuing Bank
Fees, which shall be paid directly to the Issuing Bank, and (ii) principal of
and interest on Swingline Loans, which shall be paid directly to the Swingline
Lender except as otherwise provided in Section 2.19(e)) shall be made to the
Administrative Agent at its offices at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx. Each
such payment shall be made in Dollars.
(b) Whenever any payment (including principal of or interest
on any Borrowing or any fees or other amounts) hereunder or under any other Loan
Document shall become due, or otherwise would occur, on a day that is not a
Business Day, such payment may be made on the next succeeding Business Day, and
such extension of time shall in such case be included in the computation of
interest or fees, if applicable.
SECTION 2.17. Taxes. (a) Any and all payments by the Borrower
hereunder and under any other Loan Document shall be made, in accordance with
Section 2.16, free and clear of and without deduction for any and all current or
future taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding (i) income taxes and interest and
penalties thereon imposed on the net income of the Administrative Agent, any
Lender or the Issuing Bank (or any transferee or assignee thereof, including a
participation holder (any such entity a "Transferee")) and (ii) franchise taxes
imposed on the net income of the Administrative Agent, any Lender or the Issuing
Bank (or Transferee), in each case by the jurisdiction under the laws of which
the Administrative Agent, such Lender or the Issuing Bank (or Transferee) is
organized or any political subdivision thereof (all such nonexcluded taxes,
levies, imposts, deductions, charges, withholdings and liabilities and interest
and penalties thereon, collectively or individually, being called "Taxes"). If
the Borrower shall be required to deduct any Taxes from or in respect of any sum
payable hereunder or under any other Loan Document to the Administrative Agent,
any Lender or the Issuing Bank (or any Transferee), (i) the sum payable shall be
increased by the amount (an "additional amount") necessary so that after making
all required deductions (including deductions applicable to additional sums
payable under this Section 2.17) the Administrative Agent, such Lender or the
Issuing Bank (or Transferee), as the case may be, shall receive 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 Governmental Authority in accordance with
applicable law.
(b) In addition, the Borrower agrees to pay to the relevant
Governmental Authority in accordance with applicable law any current or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies (including, mortgage recording taxes and similar fees) and
interest
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and penalties thereon that arise from any payment made hereunder or under any
other Loan Document or from the execution, delivery or registration of, or
otherwise with respect to, this Agreement or any other Loan Document ("Other
Taxes").
(c) The Borrower will indemnify the Administrative Agent, each
Lender and the Issuing Bank (or Transferee) for the full amount of Taxes and
Other Taxes paid by the Administrative Agent, such Lender or the Issuing Bank
(or Transferee), as the case may be, and any liability (including penalties,
interest and expenses (including reasonable attorney's fees and expenses)
arising therefrom or with respect thereto, whether or not such Taxes or Other
Taxes were correctly or legally asserted by the relevant Governmental Authority.
A certificate as to the amount of such payment or liability prepared by the
Administrative Agent, a Lender or the Issuing Bank (or Transferee), or the
Administrative Agent on its behalf, absent manifest error, shall be final,
conclusive and binding for all purposes. Such indemnification shall be made
within 30 days after the date the Administrative Agent, any Lender or the
Issuing Bank (or Transferee), as the case may be, makes written demand therefor.
(d) If the Administrative Agent, a Lender or the Issuing Bank
(or Transferee) shall become aware that it is entitled to claim a refund from a
Governmental Authority in respect of Taxes or Other Taxes as to which it has
been indemnified by the Borrower, or with respect to which the Borrower has paid
additional amounts, pursuant to this Section 2.17, it shall promptly notify the
Borrower of the availability of such refund claim and shall, within 30 days
after receipt of a request by the Borrower, make a claim to such Governmental
Authority for such refund at the Borrower's expense. If the Administrative
Agent, a Lender or the Issuing Bank (or Transferee) receives a refund (including
pursuant to a claim for refund made pursuant to the preceding sentence) in
respect of any Taxes or Other Taxes as to which it has been indemnified by the
Borrower or with respect to which the Borrower has paid additional amounts
pursuant to this Section 2.17, it shall within 30 days from the date of such
receipt pay over such refund to the Borrower (but only to the extent of
indemnity payments made, or additional amounts paid, by the Borrower under this
Section 2.17 with respect to the Taxes or Other Taxes giving rise to such
refund), net of all reasonable and necessary out-of-pocket expenses of the
Administrative Agent, such Lender or the Issuing Bank (or Transferee) and
without interest (other than interest paid by the relevant Governmental
Authority with respect to such refund); provided, however, that the Borrower,
upon the request of the Administrative Agent, such Lender or the Issuing Bank
(or Transferee), agrees to repay the amount paid over to the Borrower (plus
penalties, interest or other charges) to the Administrative Agent, such Lender
or the Issuing Bank (or Transferee) in the event the Administrative Agent, such
Lender or the Issuing Bank (or Transferee) is required to repay such refund to
such Governmental Authority.
(e) As soon as practicable after the date of any payment of
Taxes or Other Taxes by the Borrower to the relevant Governmental Authority, the
Borrower will deliver to the Administrative Agent, at its address referred to in
Section 9.01, the original or a certified copy of a receipt issued by such
Governmental Authority evidencing payment thereof.
(f) Without prejudice to the survival of any other agreement
contained herein, the agreements and obligations contained in this Section 2.17
shall survive the payment in full of the principal of and interest on all Loans
made hereunder, the expiration or cancellation of all Letters of Credit and the
reimbursement of all draws thereunder.
(g) Each Lender (or Transferee) that is organized under the
laws of a jurisdiction other than the United States, any State thereof or the
District of Columbia (a "Non-U.S. Lender") shall deliver to the Borrower and the
Administrative Agent two copies of either United States Internal Revenue Service
Form 1001 or Form 4224, or, in the case of a Non-U.S. Lender claiming exemption
from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code
with respect to payments of "portfolio interest", a Form W-8, or any subsequent
versions thereof or successors thereto (and, if such Non-U.S. Lender delivers a
Form W-8, a certificate representing that such Non-U.S. Lender is not a bank for
purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within
the meaning of Section 871(h)(3)(B) of the Code) of the Borrower and is not a
controlled foreign corporation related to the Borrower (within the meaning of
Section 864(d)(4) of the Code)), properly completed and duly executed by such
Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S.
Federal withholding tax on payments by the Borrower under this Agreement and the
other Loan Documents. Such forms shall be delivered by each Non-U.S. Lender on
or before the date it becomes a party to this Agreement (or, in the case of a
Transferee that is a participation holder, on or before the date such
participation holder becomes a Transferee hereunder) and on or before the date,
if any, such Non-U.S. Lender changes its applicable lending office by
designating a different lending office (a "New Lending Office"). In addition,
each Non-U.S. Lender shall deliver such forms promptly upon the obsolescence or
invalidity of any form
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previously delivered by such Non-U.S. Lender. Notwithstanding any other
provision of this Section 2.17(g), a Non-U.S. Lender shall not be required to
deliver any form pursuant to this Section 2.17(g) that such Non-U.S. Lender is
not legally able to deliver.
(h) The Borrower shall not be required to indemnify any
Non-U.S. Lender or to pay any additional amounts to any Non-U.S. Lender in
respect of United States Federal withholding tax pursuant to paragraph (a) or
(c) above to the extent that (i) the obligation to withhold amounts with respect
to United States Federal withholding tax existed on the date such Non U.S.
Lender became a party to this Agreement (or, in the case of a Transferee that is
a participation holder, on the date such participation holder became a
Transferee hereunder) or, with respect to payments to a New Lending Office, the
date such Non-U.S. Lender designated such New Lending Office with respect to a
Loan ; provided, however, that this paragraph (h) shall not apply (x) to any
Transferee or New Lending Office that becomes a Transferee or New Lending Office
as a result of an assignment, participation, transfer or designation made at the
request of the Borrower and (y) to the extent the indemnity payment or
additional amounts any Transferee, or any Lender (or Transferee), acting through
a New Lending Office, would be entitled to receive (without regard to this
paragraph (h)) do not exceed the indemnity payment or additional amounts that
the person making the assignment, participation or transfer to such Transferee,
or Lender (or Transferee) making the designation of such New Lending Office,
would have been entitled to receive in the absence of such assignment,
participation, transfer or designation or (ii) the obligation to pay such
additional amounts would not have arisen but for a failure by such Non-U.S.
Lender to comply with the provisions of paragraph (g) above.
(i) Any Lender or Issuing Bank (or Transferee) claiming any
indemnity payment or additional amounts payable pursuant to this Section 2.17
shall use reasonable efforts (consistent with legal and regulatory restrictions)
to file any certificate or document reasonably requested in writing by the
Borrower or to change the jurisdiction of its applicable lending office if the
making of such a filing or change would avoid the need for or reduce the amount
of any such indemnity payment or additional amounts that may thereafter accrue
and would not, in the sole determination of such Lender or Issuing Bank (or
Transferee), be otherwise disadvantageous to such Lender or Issuing Bank (or
Transferee).
(j) Nothing contained in this Section 2.17 shall require any
Lender or the Issuing Bank (or any Transferee) or the Administrative Agent to
make available any of its tax returns (or any other information that it deems to
be confidential or proprietary).
SECTION 2.18. Assignment of Commitments Under Certain
Circumstances. (a) In the event (i) any Lender or the Issuing Bank delivers a
certificate requesting compensation pursuant to Section 2.11, (ii) any Lender or
the Issuing Bank delivers a notice described in Section 2.12 or (iii) the
Borrower is required to pay any additional amount to any Lender or the Issuing
Bank or any Governmental Authority on account of any Lender or the Issuing Bank
pursuant to Section 2.17, the Borrower may, at its sole expense and effort, upon
notice to such Lender or the Issuing Bank and the Administrative Agent,
require such Lender or the Issuing Bank to transfer and assign, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all of its interests, rights and obligations under this Agreement
to an assignee which shall assume such assigned obligations (which assignee may
be another Lender, if a Lender accepts such assignment); provided that (w) no
Default or Event of Default has occurred and is continuing, (x) such assignment
shall not conflict with any law, rule or regulation or order of any court or
other Governmental Authority having jurisdiction, (y) the Borrower shall have
received the prior written consent of the Administrative Agent (and, if a
Revolving Credit Commitment is being assigned, of the Issuing Bank and Swingline
Lender), which consent shall not unreasonably be withheld, and (z) the Borrower
or such assignee shall have paid to the affected Lender or the Issuing Bank in
immediately available funds an amount equal to the sum of the principal of and
interest accrued to the date of such payment on the outstanding Loans and
participations in L/C Disbursements and Swingline Loans of such Lender or the
Issuing Bank plus all fees and other amounts accrued for the account of such
Lender or the Issuing Bank hereunder (including any amounts under Section 2.11
and Section 2.13); provided further that if prior to any such transfer and
assignment the circumstances or event that resulted in such Lender's or the
Issuing Bank's claim for compensation under Section 2.11 or notice under Section
2.12 or the amounts paid pursuant to Section 2.17, as the case may be, cease to
cause such Lender or the Issuing Bank to suffer increased costs or reductions in
amounts received or receivable or reduction in return on capital, or cease to
have the consequences specified in Section 2.12, or cease to result in amounts
being payable under Section 2.17, as the case may be (including as a result of
any action taken by such Lender or the Issuing Bank pursuant to paragraph (b)
below), or if such Lender or the Issuing Bank shall waive its right to claim
further compensation under Section 2.11 in respect of such circumstances or
event or shall withdraw its notice under Section 2.12 or shall waive its right
to further payments under Section 2.17 in
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respect of such circumstances or event, as the case may be, then such Lender or
the Issuing Bank shall not thereafter be required to make any such transfer and
assignment hereunder. In the case of any such assignment by an Issuing Bank,
such assignment shall not affect the Issuing Bank's rights under this Agreement
in respect of any Letters of Credit issued by it that remain outstanding.
(b) If (i) any Lender or the Issuing Bank shall request
compensation under Section 2.11, (ii) any Lender or the Issuing Bank delivers a
notice described in Section 2.12 or (iii) the Borrower is required to pay any
additional amount to any Lender or the Issuing Bank or any Governmental
Authority on account of any Lender or the Issuing Bank pursuant to Section 2.17,
then such Lender or the Issuing Bank shall exercise reasonable efforts (which
shall not require such Lender or the Issuing Bank to incur an unreimbursed loss
or unreimbursed cost or expense or otherwise take any action inconsistent with
its internal policies or suffer any disadvantage or burden deemed by it to be
significant) to assign its rights and delegate and transfer its obligations
hereunder to another of its offices, branches or affiliates, if such assignment
would reduce its claims for compensation under Section 2.11 or enable it to
withdraw its notice pursuant to Section 2.12 or would reduce amounts payable
pursuant to Section 2.17, as the case may be, in the future. The Borrower hereby
agrees to pay all reasonable costs and expenses incurred by any Lender or the
Issuing Bank in connection with any such assignment, delegation and transfer.
SECTION 2.19. Swingline Loans. (a) Swingline Commitment.
Subject to the terms and conditions and relying upon the representations and
warranties herein set forth, the Swingline Lender agrees to make loans to the
Borrower at any time and from time to time on and after the Effective Date and
until the earlier of the Revolving Credit Maturity Date and the termination of
the Revolving Credit Commitments in accordance with the terms hereof, in an
aggregate principal amount at any time outstanding that will not result in (i)
the aggregate principal amount of all Swingline Loans exceeding $3,000,000 in
the aggregate or (ii) the Aggregate Revolving Credit Exposure, after giving
effect to any Swingline Loan, exceeding the Total Revolving Credit Commitment.
Each Swingline Loan shall be in a principal amount that is not less than
$100,000 and is an integral multiple of $50,000. The Swingline Commitment may be
terminated or reduced from time to time as provided herein. Within the foregoing
limits, the Borrower may borrow, pay or prepay and reborrow Swingline Loans
hereunder on and after the Effective Date and prior to the Revolving Credit
Maturity Date, subject to the terms, conditions and limitations set forth
herein.
(b) Swingline Loans. The Borrower shall notify the
Administrative Agent by telephonic notice (promptly confirmed by hand delivery
or telecopy notice) not later than 12:00 noon, New York City time, on the day of
a proposed Swingline Loan. Such notice shall be delivered on a Business Day,
shall be irrevocable and shall refer to this Agreement and shall specify the
requested date (which shall be a Business Day) and amount of such Swingline
Loan. The Administrative Agent will promptly advise the Swingline Lender of any
notice received from the Borrower pursuant to this paragraph (b). The Swingline
Lender shall make each Swingline Loan available to the Borrower by means of a
credit to the general deposit account of the Borrower with the Swingline Lender
by 3:00 p.m. on the date such Swingline Loan is so requested to be made.
(c) Prepayment. The Borrower shall have the right at any time
and from time to time to prepay any Swingline Loan, in whole or in part, upon
giving telephonic notice (promptly confirmed by hand delivery or telecopy
notice) to the Swingline Lender and to the Administrative Agent before 12:00
(noon), New York City time on the date of prepayment at the Swingline Lender's
address for notices specified on Schedule 2.01; provided, however, that partial
prepayments shall be in a principal amount that is an integral multiple of
$50,000. All principal payments of Swingline Loans pursuant to Section 2.10(b)
shall be accompanied by accrued interest on the principal amount being repaid to
the date of payment.
(d) Interest. Each Swingline Loan shall be an ABR Loan and,
subject to the provisions of Section 2.07, shall bear interest as provided in
Section 2.06(a).
(e) Participations. The Swingline Lender may by written notice
given to the Administrative Agent not later than 10:00 a.m., New York City time,
on any Business Day require the Revolving Credit Lenders to acquire
participations in all or a portion of the Swingline Loans outstanding. Such
notice shall specify the aggregate amount of Swingline Loans and accrued
interest thereon in which Revolving Credit Lenders will participate. The
Administrative Agent will, promptly upon receipt of such notice, give notice to
each Revolving Credit Lender, specifying in such notice such Lender's Pro Rata
Percentage of such Swingline Loan or Loans and accrued interest thereon. In
consideration and in furtherance of the foregoing, each Revolving Credit Lender
hereby absolutely and unconditionally agrees, upon receipt of notice as provided
above, to pay to the Administrative Agent, for the account of the
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Swingline Lender, such Revolving Credit Lender's Pro Rata Percentage of such
Swingline Loan or Loans and accrued interest thereon. Each Lender acknowledges
and agrees that its obligation to acquire participations in Swingline Loans
pursuant to this paragraph is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including the occurrence and
continuance of a Default or an Event of Default, and that each such payment
shall be made without any offset, abatement, withholding or reduction
whatsoever. Each Lender shall comply with its obligation under this paragraph by
wire transfer of immediately available funds, in the same manner as provided in
Section 2.02(c) with respect to Loans made by such Lender (and Section 2.02(c)
shall apply, mutatis mutandis, to the payment obligations of the Lenders) and
the Administrative Agent shall promptly pay to the Swingline Lender amounts so
received by it from the Lenders. The Administrative Agent shall notify the
Borrower of any participations in any Swingline Loan acquired pursuant to this
paragraph and thereafter payments in respect of such Swingline Loan shall be
made to the Administrative Agent and not to the Swingline Lender. Any amounts
received by the Swingline Lender from the Borrower (or other party on behalf of
the Borrower) in respect of a Swingline Loan after receipt by the Swingline
Lender of the proceeds of a sale of participations therein shall be promptly
remitted to the Administrative Agent; any such amounts received by the
Administrative Agent shall be promptly remitted by the Administrative Agent to
the Lenders that shall have made their payments pursuant to this paragraph and
to the Swingline Lender, as their interests may appear. The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not relieve
the Borrower (or other party liable for obligations of the Borrower) of its
default in respect of the payment thereof.
SECTION 2.20. Letters of Credit. (a) General. The Borrower may
request the issuance of a Letter of Credit, in a form reasonably acceptable to
the Administrative Agent and the Issuing Bank, appropriately completed, for the
account of the Borrower, at any time and from time to time while the Revolving
Credit Commitments remain in effect. This Section shall not be construed to
impose an obligation upon the Issuing Bank to issue any Letter of Credit that is
inconsistent with the terms and conditions of this Agreement.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. In order to request the issuance of a Letter of Credit (or to amend,
renew or extend an existing Letter of Credit), the Borrower shall hand deliver
or telecopy to the Issuing Bank and the Administrative Agent (reasonably in
advance of the requested date of issuance, amendment, renewal or extension) a
notice requesting the issuance of a Letter of Credit, or identifying the Letter
of Credit to be amended, renewed or extended, the date of issuance, amendment,
renewal or extension, the date on which such Letter of Credit is to expire
(which shall comply with paragraph (c) below), the amount of such Letter of
Credit, the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare such Letter of Credit. Following
receipt of such notice and prior to the issuance of the requested Letter of
Credit or the applicable amendment, renewal or extension, the Administrative
Agent shall notify the Borrower and the Issuing Bank of the amount of the
Aggregate Revolving Credit Exposure after giving effect to (i) the issuance,
amendment, renewal or extension of such Letter of Credit, (ii) the issuance or
expiration of any other Letter of Credit that is to be issued or will expire
prior to the requested date of issuance of such Letter of Credit and (iii) the
borrowing or repayment of any Revolving Credit Loans or Swingline Loans that
(based upon notices delivered to the Administrative Agent by the Borrower) are
to be borrowed or repaid prior to the requested date of issuance of such Letter
of Credit. A Letter of Credit shall be issued, amended, renewed or extended only
if, and upon issuance, amendment, renewal or extension of each Letter of Credit
the Borrower shall be deemed to represent and warrant that, after giving effect
to such issuance, amendment, renewal or extension (A) the L/C Exposure shall not
exceed $25,000,000, and (B) the Aggregate Revolving Credit Exposure shall not
exceed the Total Revolving Credit Commitment. Promptly following the end of each
month, the Administrative Agent shall notify the Lenders of the L/C Exposure as
of the end of such month.
(c) Expiration Date. Each Letter of Credit shall expire at or
prior to the close of business on the date that is five Business Days prior to
the Revolving Credit Maturity Date or, if such Letter of Credit is a commercial
letter of credit, the earlier of such date and date 180 days after the date of
issuance of such Letter of Credit.
(d) Participations. By the issuance of a Letter of Credit and
without any further action on the part of the Issuing Bank or the Lenders, the
Issuing Bank hereby grants to each Lender, and each such Lender hereby acquires
from the applicable Issuing Bank, a participation in such Letter of Credit equal
to such Lender's Pro Rata Percentage of the aggregate amount available to be
drawn under such Letter of Credit, effective upon the issuance of such Letter of
Credit. In consideration and in furtherance of the foregoing, each Lender hereby
absolutely and unconditionally agrees to pay to the Administrative Agent, for
the account of the Issuing Bank, such Lender's Pro Rata Percentage of each L/C
Disbursement
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made by the Issuing Bank and not reimbursed by the Borrower (or, if applicable,
another party pursuant to its obligations under any other Loan Document)
forthwith on the date due as provided in Section 2.02(f). Each Lender
acknowledges and agrees that its obligation to acquire participations pursuant
to this paragraph in respect of Letters of Credit is absolute and unconditional
and shall not be affected by any circumstance whatsoever, including the
occurrence and continuance of a Default or an Event of Default, and that each
such payment shall be made without any offset, abatement, withholding or
reduction whatsoever; provided, however, that the foregoing shall not be
construed to impose an obligation of the Lenders to reimburse an L/C
Disbursement that the Borrower is not required to reimburse due to the gross
negligence or wilful misconduct of the Issuing Bank (determined as provided in
Section 2.20(f)).
(e) Reimbursement. If the Issuing Bank shall make any L/C
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such
L/C Disbursement by paying an amount equal to such L/C Disbursement to the
Administrative Agent not later than 12:00 (noon) on the date that such L/C
Disbursement is made or, if the Borrower shall have received notice of such L/C
Disbursement later than 10:00 a.m., New York City time, on the date that such
L/C Disbursement is made, not later than 12:00 (noon), New York City time, on
the immediately following Business Day; provided that the Borrower may, to the
extent that such L/C Disbursement is not less than $500,000 and is an integral
multiple of $100,000 and subject to the conditions to Borrowing set forth in
Section 4.01, request by notice to the Administrative Agent not later than the
time that payment would be required as aforesaid that such payment be financed
with ABR Loans as contemplated by Section 2.02(f) and, to the extent such
payment is so financed with ABR Loans in accordance with Section 2.02(f), such
payment shall not be required to be made by the Borrower under this Section
2.20(e).
(f) Obligations Absolute. The Borrower's obligations to
reimburse L/C Disbursements as provided in paragraph (e) above shall be
absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement, under any and all circumstances
whatsoever, and irrespective of:
(i) any lack of validity or enforceability of any Letter of
Credit or any Loan Document, or any term or provision therein;
(ii) any amendment or waiver of or any consent to departure
from all or any of the provisions of any Letter of Credit or any Loan
Document;
(iii) the existence of any claim, setoff, defense or other
right that the Borrower, any other party guaranteeing, or otherwise
obligated with, the Borrower, any Subsidiary or other Affiliate thereof
or any other person may at any time have against the beneficiary under
any Letter of Credit, the Issuing Bank, the Administrative Agent or any
Lender or any other person, whether in connection with this Agreement,
any other Loan Document or any other related or unrelated agreement or
transaction;
(iv) any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any
respect;
(v) payment by the Issuing Bank under a Letter of Credit
against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit; and
(vi) any other act or omission to act or delay of any kind of
the Issuing Bank, the Lenders, the Administrative Agent or any other
person or any other event or circumstance whatsoever, whether or not
similar to any of the foregoing, that might, but for the provisions of
this Section, constitute a legal or equitable discharge of the
Borrower's obligations hereunder;
provided that the foregoing shall not be construed to impose an obligation upon
the Borrower to reimburse the Issuing Bank to the extent that neither the
Borrower nor any Subsidiary received any benefit from such L/C Disbursement as a
direct result of the Issuing Bank's gross negligence or wilful misconduct in
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof; it is understood that the Issuing Bank may
accept documents that are on their face in order, without responsibility for
further investigation, regardless of any notice or information to the contrary
and, in making any payment under any Letter of Credit (A) the Issuing Bank's
exclusive reliance on the documents presented to it under such Letter of Credit
as to any and all matters set forth therein, including reliance on the amount of
any draft presented under such Letter of Credit, whether or not the amount due
to the
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beneficiary thereunder equals the amount of such draft and whether or not any
document presented pursuant to such Letter of Credit proves to be insufficient
in any respect, if such document on its face appears to be in order, and whether
or not any other statement or any other document presented pursuant to such
Letter of Credit proves to be forged or invalid or any statement therein proves
to be inaccurate or untrue in any respect whatsoever and (B) any noncompliance
in any immaterial respect of the documents presented under such Letter of Credit
with the terms thereof shall, in each case, be deemed not to constitute wilful
misconduct or gross negligence of the Issuing Bank.
(g) Disbursement Procedures. The Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. The Issuing Bank shall as promptly
as possible give telephonic notification, confirmed by telecopy, to the
Administrative Agent and the Borrower of such demand for payment and whether the
Issuing Bank has made or will make an L/C Disbursement thereunder; provided that
any failure to give or delay in giving such notice shall not relieve the
Borrower of its obligation to reimburse the Issuing Bank and the Lenders with
respect to any such L/C Disbursement. The Administrative Agent shall promptly
give each Lender notice thereof.
(h) Interim Interest. If the Issuing Bank shall make any L/C
Disbursement in respect of a Letter of Credit, then, unless the Borrower shall
reimburse such L/C Disbursement in full not later than 12:00 (noon), New York
City time, on the date that such L/C Disbursement is made, the unpaid amount
thereof shall bear interest, for each day from and including the date of such
L/C Disbursement to but excluding the date of payment at the Alternate Base
Rate; provided that to the extent that such L/C Disbursement is not reimbursed
by the Borrower prior to 12:00 (noon), New York City time on the third Business
Day after the date such L/C Disbursement is made and is not financed with ABR
Loans in accordance with Section 2.02(f), then such unpaid amount shall bear
interest from and including such third Business Day to but excluding the date of
payment as provided in Section 2.07.
(i) Resignation or Removal of the Issuing Bank. The Issuing
Bank may resign at any time by giving 180 days' prior written notice to the
Administrative Agent, the Lenders and the Borrower, and may be removed at any
time by the Borrower by notice to the Issuing Bank, the Administrative Agent and
the Lenders. Subject to the last sentence of this paragraph, upon the acceptance
of any appointment as the Issuing Bank hereunder by a successor Issuing Bank,
such successor shall succeed to and become vested with all the interests, rights
and obligations of the retiring Issuing Bank and the retiring Issuing Bank shall
be discharged from its obligations to issue additional Letters of Credit
hereunder. At the time such removal or resignation shall become effective, the
Borrower shall pay all accrued and unpaid Issuing Bank Fees. The acceptance of
any appointment as the Issuing Bank hereunder by a successor Lender shall be
evidenced by an agreement entered into by such successor, in a form satisfactory
to the Borrower and the Administrative Agent, and, from and after the effective
date of such agreement, (i) such successor Lender shall have all the rights and
obligations of the previous Issuing Bank under this Agreement and the other Loan
Documents and (ii) references herein and in the other Loan Documents to the term
"Issuing Bank" shall be deemed to refer to such successor or to any previous
Issuing Bank, or to such successor and all previous Issuing Banks, as the
context shall require. After the resignation or removal of the Issuing Bank
hereunder, the retiring Issuing Bank shall remain a party hereto and shall
continue to have all the rights and obligations of an Issuing Bank under this
Agreement and the other Loan Documents with respect to Letters of Credit issued
by it prior to such resignation or removal, but shall not be required to issue
additional Letters of Credit.
(j) Cash Collateralization. If any Event of Default shall
occur and be continuing, the Borrower shall, on the Business Day it receives
notice from the Administrative Agent or the Required Lenders thereof and the
amount to be deposited, deposit in an account with the Administrative Agent, for
the benefit of the Revolving Credit Lenders, an amount in cash equal to the L/C
Exposure as of such date. Such deposit shall be held by the Administrative Agent
as collateral for the payment and performance of the Obligations. The
Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. Other than any interest earned
on the investment of such deposits in Cash Equivalents, which investments shall
be made at the option and sole discretion of the Administrative Agent, such
deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account. Moneys in such account shall (i)
automatically be applied by the Administrative Agent to reimburse the Issuing
Bank for L/C Disbursements for which it has not been reimbursed, (ii) be held
for the satisfaction of the reimbursement obligations of the Borrower for the
L/C Exposure at such time and (iii) if the maturity of the Loans has been
accelerated, be applied to satisfy the Obligations. If the Borrower is required
to provide an amount of cash collateral hereunder as a result of the
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occurrence of an Event of Default, such amount (to the extent not applied as
aforesaid) shall be returned to the Borrower within three Business Days after
all Events of Default have been cured or waived.
(k) Additional Issuing Banks. The Borrower may, at any time
and from time to time with the consent of the Administrative Agent (which
consent shall not be unreasonably withheld) and such Lender, designate one or
more additional Lenders to act as an issuing bank under the terms of this
Agreement. Any Lender designated as an issuing bank pursuant to this paragraph
(k) shall be deemed to be an "Issuing Bank" (in addition to being a Lender) in
respect of Letters of Credit issued or to be issued by such Lender, and, with
respect to any Letter of Credit, such term shall thereafter apply to the Issuing
Bank that shall have issued such Letter of Credit.
(l) Existing Letters of Credit. All Existing Letters of Credit
shall be deemed to be Letters of Credit issued under this Agreement as of the
Effective Date and shall constitute Letters of Credit for all purposes of the
Loan Documents.
ARTICLE III. REPRESENTATIONS AND WARRANTIES
Each of Holdings and the Borrower represents and warrants to
each of the Lenders that:
SECTION 3.01. Organization; Powers. Each of Holdings and the
Borrower and each of the Subsidiaries (other than the Excluded Subsidiaries) (a)
is a corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, (b) has all requisite power and
authority to own its property and assets and to carry on its business as now
conducted and as proposed to be conducted, (c) is qualified to do business in
every jurisdiction where such qualification is required, except where the
failure so to qualify could not reasonably be expected to result in a Material
Adverse Effect, and (d) has the corporate power and authority to execute,
deliver and perform its obligations under each of the Loan Documents and each
other agreement or instrument contemplated thereby to which it is or will be a
party and, in the case of the Borrower, to borrow hereunder.
SECTION 3.02. Authorization. The execution, delivery and
performance by each Loan Party of each of the Loan Documents to which it is or
will be a party and, in the case of the Borrower, the borrowings hereunder
(collectively, the "Transactions") (a) have been duly authorized by all
requisite corporate and, if required, stockholder action and (b) will not (i)
violate (A) any provision of law, statute, rule or regulation, or of the
certificate or articles of incorporation or other constitutive documents or
by-laws of Holdings, the Borrower or any Subsidiary, (B) any order of any
Governmental Authority or (C) any provision of any indenture, agreement or other
instrument to which Holdings, the Borrower or any Subsidiary is a party or by
which any of them or any of their property is or may be bound, (ii) be in
conflict with, result in a breach of or constitute (alone or with notice or
lapse of time or both) a default under any such indenture, agreement or other
instrument or (iii) result in the creation or imposition of any Lien upon or
with respect to any property or assets now owned or hereafter acquired by
Holdings, the Borrower or any Subsidiary.
SECTION 3.03. Enforceability. This Agreement has been duly
executed and delivered by Holdings and the Borrower and constitutes, and each
other Loan Document when executed and delivered by each Loan Party party thereto
will constitute, a legal, valid and binding obligation of Holdings and the
Borrower and such Loan Party enforceable against Holdings and the Borrower and
such Loan Party in accordance with its terms.
SECTION 3.04. Governmental Approvals. No action, consent or
approval of, registration or filing with or any other action by any Governmental
Authority is or will be required in connection with the Transactions, except for
such as have been made or obtained and are in full force and effect.
SECTION 3.05. Financial Statements. Holdings has heretofore
furnished to the Lenders its consolidated and consolidating balance sheet and
statement of operations and consolidated statement of cash flows as of and for
the fiscal year ended June 30, 1998, which consolidated statements were audited
by and accompanied by the opinion of KPMG Peat Marwick LLP, independent public
accountants, and its unaudited consolidated and consolidating balance sheet and
statement of operations and consolidated statement of cash flows as of and for
the nine month period ended March 31, 1999. Such financial state ments present
fairly the financial condition and results of operations and cash flows of
Holdings and its consolidated subsidiaries as of such dates and for such
periods. Each such balance sheet and the notes
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thereto disclose all material liabilities, direct or contingent, of Holdings on
a consolidated basis as of the date thereof. Such financial statements were
prepared in accordance with GAAP applied on a consistent basis.
SECTION 3.06. No Material Adverse Change. There has been no
material adverse change in the business, assets, operations, prospects or
condition, financial or otherwise, of the Borrower and the Subsidiaries, taken
as a whole, since June 30, 1998.
SECTION 3.07. Title to Properties; Possession Under Leases.
(a) Each of Holdings, the Borrower and the Subsidiaries (other than the Excluded
Subsidiaries) has good and marketable title to, or valid leasehold interests in,
all its material properties and assets, except for minor defects in title that
do not interfere with its ability to conduct its business as currently conducted
or to utilize such properties and assets for their intended purposes. All such
material properties and assets are free and clear of Liens, other than Liens
expressly permitted by Section 6.02.
(b) Each of Holdings, the Borrower and the Subsidiaries (other
than the Excluded Subsidiaries) has complied with all obligations under all
material leases to which it is a party as a lessee and all such leases are in
full force and effect. Each of Holdings, the Borrower and the Subsidiaries
(other than the Excluded Subsidiaries) enjoys peaceful and undisturbed
possession under all such material leases.
SECTION 3.08. Subsidiaries. Schedule 3.08 sets forth as of the
Effective Date a list of all Subsidiaries of the Borrower and the percentage
ownership interest of the Borrower therein. Each Subsidiary that is an "Excluded
Subsidiary" satisfies the conditions set forth in the definition of the term
"Excluded Subsidiary".
SECTION 3.09. Litigation; Compliance with Laws. (a) Except as
set forth in Schedule 3.09, there are not any actions, suits or proceedings at
law or in equity or by or before any Governmental Authority now pending or, to
the knowledge of Holdings or the Borrower, threatened against or affecting
Holdings or the Borrower or any Subsidiary or any business, property or rights
of any such person (i) which involve any Loan Document or the Transactions or
(ii) as to which there is a reasonable possibility of an adverse determination
and which, if adversely determined, could, individually or in the aggregate,
result in a Material Adverse Effect.
(b) None of Holdings, the Borrower or any of the Subsidiaries
or any of their respective material properties or assets is in violation of, nor
will the continued operation of their material properties and assets as
currently conducted violate, any law, rule or regulation (including any zoning,
building, Environmental and Safety Law, ordinance, code or approval or any
building permits), or is in default with respect to any judgment, writ,
injunction or decree of any Governmental Authority, except any such violations
or defaults that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 3.10. Agreements. (a) None of Holdings, the
Borrower or any of the Subsidiaries is a party to any agreement or instrument or
subject to any corporate restriction that has resulted or could reasonably be
anticipated to result in a Material Adverse Effect.
(b) None of Holdings, the Borrower or any of the Subsidiaries
is in default in any manner under any provision of any indenture or other
agreement or instrument evidencing Indebtedness, or any other material agreement
or instrument to which it is a party or by which it or any of its properties or
assets are or may be bound, where such default could reasonably be anticipated
to result in a Material Adverse Effect.
SECTION 3.11. Federal Reserve Regulations. (a) None of
Holdings, the Borrower or any of the Subsidiaries is engaged principally, or as
one of its important activities, in the business of extending credit for the
purpose of purchasing or carrying Margin Stock.
(b) No part of the proceeds of any Loan will be used, whether
directly or indirectly, and whether immediately, incidentally or ultimately, (i)
to purchase or carry Margin Stock or to extend credit to others for the purpose
of purchasing or carrying Margin Stock or to refund indebtedness originally
incurred for such purpose, or (ii) for any purpose which entails a violation of,
or which is inconsistent with, the provisions of the Regulations of the Board,
including Regulation T, U or X.
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SECTION 3.12. Investment Company Act; Public Utility Holding
Company Act. None of Holdings, the Borrower or any Subsidiary is (a) an
"investment company" as defined in, or subject to regulation under, the
Investment Company Act of 1940 or (b) a "holding company" as defined in, or
subject to regulation under, the Public Utility Holding Company Act of 1935.
SECTION 3.13. Use of Proceeds. The Borrower will use the
proceeds of the Loans and will request the issuance of Letters of Credit only
for the purposes specified in Section 5.08 of this Agreement.
SECTION 3.14. Tax Returns. Each of Holdings, the Borrower and
the Subsidiaries has filed or caused to be filed all Federal, state and local
tax returns required to have been filed by it and has paid or caused to be paid
all taxes due and payable by it and all assessments received by it, except taxes
that are being contested in good faith by appropriate proceedings and for which
adequate reserves have been established in accordance with GAAP.
SECTION 3.15. No Material Misstatements. (a) No factual
information, including factual information contained in the Information
Memorandum or in any report, financial statement, exhibit or schedule, furnished
by or on behalf of Holdings or the Borrower to the Administrative Agent or any
Lender in connection with the negotiation of any Loan Document or included
therein or delivered pursuant thereto (when considered as a whole with all other
factual information so furnished) contained, contains or will contain, as of the
date so furnished, any material misstatement of fact or omitted, omits or will
omit to state, as of the date so furnished, any material fact necessary to make
the statements therein, in the light of the circumstances under which they were,
are or will be made, not misleading.
(b) All financial projections furnished by or on behalf of
Holdings or the Borrower to the Administrative Agent or any Lender in connection
with the negotiation of any Loan Document have been and will be prepared in good
faith based upon estimates and assumptions believed by management of the
Borrower to be reasonable at the time of preparation thereof (except as
otherwise disclosed in writing therein), it being understood that projections as
to future performance are not to be viewed as facts and that actual results may
differ from projected results and such differences may be material.
SECTION 3.16. Employee Benefit Plans. Each of the Borrower and
its ERISA Affiliates is in compliance in all material respects with the
applicable provisions of ERISA and the Code and the regulations and published
interpretations thereunder. No Reportable Event has occurred in respect of any
Plan of the Borrower or any ERISA Affiliate. The present value of all benefit
liabilities under each Plan (based on those assumptions used to fund such Plan)
did not, as of the last annual valuation date applicable thereto, exceed by more
than $1,000,000 the value of the assets of such Plan, and the present value of
all benefit liabilities of all underfunded Plans (based on those assumptions
used to fund each such Plan) did not, as of the last annual valuation dates
applicable thereto, exceed by more than $5,000,000 the value of the assets of
all such underfunded Plans. Neither the Borrower nor any ERISA Affiliate has
incurred any Withdrawal Liability that materially adversely affects the
financial condition of the Borrower and its ERISA Affiliates taken as a whole.
Neither the Borrower nor any ERISA Affiliate has received any notification that
any Multiemployer Plan is in reorganization or has been terminated, within the
meaning of Title IV of ERISA, and no Multiemployer Plan is reasonably expected
to be in reorganization or to be terminated, where such reorganization or
termination has resulted or can reasonably be expected to result in an increase
in the contributions required to be made to such Plan that would materially and
adversely affect the financial condition of the Borrower and its ERISA
Affiliates taken as a whole.
SECTION 3.17. Environmental Matters. Except as set forth in
Schedule 3.17:
(a) The soils and groundwater beneath the properties owned or
operated by Holdings, the Borrower and the Subsidiaries (the "Properties") do
not contain any Hazardous Materials in amounts or concentrations which (i)
constitute a violation of, or (ii) give rise to liability under, Environmental
Laws, which violations and liabilities, in the aggregate, could reasonably be
anticipated to result in a Material Adverse Effect.
(b) The Properties and all operations of the Borrower and the
Subsidiaries are in compliance, and in the last three years have been in
compliance, with all Environmental Laws and all necessary Environmental Permits
have been obtained and are in effect, except to the extent that such
non-compliance or failure to obtain any necessary permits, in the aggregate,
could not reasonably be anticipated to result in a Material Adverse Effect.
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(c) There have been no Releases or threatened Releases at,
from, under or proximate to the Properties or otherwise in connection with the
operations of the Borrower or the Subsidiaries, which Releases or threatened
Releases, in the aggregate, could reasonably be anticipated to result in a
Material Adverse Effect.
(d) None of Holdings, the Borrower or any of the Subsidiaries
has received any notice of an Environmental Claim in connection with the
Properties or the operations of the Borrower or the Subsidiaries or with regard
to any person whose liabilities for environmental matters Holdings, the Borrower
or the Subsidiaries has retained or assumed, in whole or in part, contractually,
by operation of law or otherwise, which, in the aggregate, could reasonably be
anticipated to result in a Material Adverse Effect, nor do Holdings, the
Borrower or the Subsidiaries have reason to believe that any such notice will be
received or is being threatened.
SECTION 3.18. Insurance. Schedule 3.18 sets forth a true,
complete and correct description of all insurance maintained by the Borrower or
by the Borrower for its Subsidiaries as of the Effective Date. As of each such
date, such insurance is in full force and effect and all premiums have been duly
paid. The Borrower and its Subsidiaries have insurance in such amounts and
covering such risks and liabilities as are in accordance with normal industry
practice.
SECTION 3.19. Labor Matters. There are no significant strikes,
lockouts, slowdowns or other labor disputes against Holdings, the Borrower or
any of its Subsidiaries pending or, to the knowledge of Holdings or the
Borrower, threatened that could reasonably be expected to, individually or in
the aggregate, have a Material Adverse Effect. The hours worked by and payment
made to employees of Holdings, the Borrower or any of its Subsidiaries have not
been in violation of the Fair Labor Standards Act or any other applicable
Federal, state, local or foreign law dealing with such matters, where such
violations could reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect. The consummation of the Transactions will
not give rise to a right of termination or right of renegotiation on the part of
any union under any collective bargaining agreement to which Holdings, the
Borrower or any of its Subsidiaries is a party or by which Holdings, the
Borrower or any of its Subsidiaries is bound.
SECTION 3.20. Patents, Trademarks, etc. Each of the Borrower
and each of its Subsidiaries owns, or is licensed to use, all patents,
trademarks, trade names, copyrights, technology, know-how and processes, service
marks and rights with respect to the foregoing that are (a) used in or necessary
for the conduct of their respective businesses as currently conducted and (b)
material to the business, assets, operations, properties, prospects or condition
(financial or otherwise) of the Borrower and its Subsidiaries taken as a whole.
The use of such patents, trademarks, trade names, copyrights, technology,
know-how, processes and rights with respect to the foregoing by the Borrower and
its Subsidiaries does not infringe on the rights of any Person. Holdings and the
Excluded Subsidiaries do not own or license any such patents, trademarks, trade
names, copyrights, technology, know-how or processes, service marks or rights.
SECTION 3.21. Year 2000. All reprogramming required to permit
the proper functioning, in and following the year 2000, of (a) the computer
systems of the Borrower and the Subsidiaries and (b) equipment containing
embedded microchips (including systems and equipment supplied by others or with
which the Borrower's or any Subsidiary's systems interface) that are, in the
case of (a) and (b), material to the business, assets, operations, properties,
prospects or condition (financial or otherwise) of the Borrower and its
Subsidiaries, taken as a whole, and the testing of all such systems and
equipment, as so reprogrammed, has been completed, except as could not
reasonably be expected to result in a Material Adverse Effect.
ARTICLE IV. CONDITIONS
SECTION 4.01. All Credit Events. The obligations of the
Lenders to make Loans and of the Issuing Bank to issue Letters of Credit are
subject to the satisfaction, on the date of each Borrowing, including each
Borrowing of a Swingline Loan, and on the date of each issuance of a Letter of
Credit (each such event, a "Credit Event"), of each of the following conditions:
(a) The Administrative Agent shall have received a notice of
such Borrowing as required by Section 2.03 or, in the case of the
issuance of a Letter of Credit, the Issuing Bank and the Administrative
Agent shall have received a notice requesting the issuance of such
Letter of Credit
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as required by Section 2.20(b) or, in the case of the
Borrowing of a Swingline Loan, the Swingline Lender and the
Administrative Agent shall have received a notice requesting such
Swingline Loan as required by Section 2.19(b).
(b) The representations and warranties set forth in Article
III hereof and in the other Loan Documents shall be true and correct in
all material respects on and as of the date of such Credit Event with
the same effect as though made on and as of such date, except to
the extent such representations and warranties expressly relate to
an earlier date.
(c) Each Loan Party shall be in compliance with all the terms
and provisions set forth herein and in each other Loan Document on its
part to be observed or performed, and at the time of and immediately
after such Credit Event, no Event of Default or Default shall have
occurred and be continuing.
Each Credit Event shall be deemed to constitute a representation and warranty by
the Borrower on the date of such Credit Event as to the matters specified in
paragraphs (b) and (c) of this Section 4.01.
SECTION 4.02. Effectiveness. The effectiveness of this
Agreement and the obligations of the Lenders and the Issuing Bank hereunder are
subject to the satisfaction of the following conditions:
(a) The Administrative Agent shall have received counterparts
of this Agreement signed on behalf of Holdings, the Borrower, the
Issuing Bank and all the Lenders.
(b) The Administrative Agent shall have received a favorable
written opinion (addressed to the Lenders and dated the Effective Date)
of Xxxxxxx Xxxxxxxxx, Esq., counsel for the Loan Parties, substantially
in the form of Exhibit B and covering such other matters relating to
the Loan Parties, the Loan Documents or the Transactions as the
Required Lenders shall reasonably request. The Borrower hereby requests
such counsel to deliver such opinion.
(c) All legal matters incident to this Agreement, the
borrowings and extensions of credit hereunder and the other Loan
Documents shall be reasonably satisfactory to the Lenders, to the
Issuing Bank and to Cravath, Swaine & Xxxxx, counsel for the
Administrative Agent.
(d) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its counsel
may reasonably request relating to the organization, existence and good
standing of the Loan Parties, the authorization of the Transactions and
any other legal matters relating to the Loan Parties, this Agreement or
the Transactions, all in form and substance satisfactory to the
Administrative Agent and its counsel.
(e) The Administrative Agent shall have received a
certificate, dated the Effective Date and signed by the President, a
Vice President or a Financial Officer of the Borrower, confirming
compliance with the conditions set forth in paragraphs (b) and (c) of
Section 4.01.
(f) The Administrative Agent shall have received all fees, and
other amounts due and payable on or prior to the Effective Date,
including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by the
Borrower hereunder or under any other Loan Document.
(g) The Administrative Agent shall have received from each
Loan Party a counterpart of each of the Guarantee Agreement and the
Indemnity, Subrogation and Contribution Agreement duly executed and
delivered on behalf of such Loan Party.
(h) All outstanding Loans, accrued and unpaid interest thereon
and accrued and unpaid fees (other than Administrative Agent Fees)
under the Existing Credit Agreement shall be paid in full (without
prejudice to the Borrower's right to borrow hereunder in order to
finance such payment), all Liens securing the obligations under the
Existing Credit Agreement shall have been released and all commitments
under the Existing Credit Agreement shall have been terminated.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans and of the Issuing
Bank to issue Letters of Credit hereunder shall not become effective unless each
of the foregoing conditions is satisfied (or waived pursuant to Section 9.08) at
or prior to 5:00 p.m.,
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New York City time, on August 31, 1999 (and, in the event such conditions are
not so satisfied or waived, the Commitments shall terminate at such time).
ARTICLE V. AFFIRMATIVE COVENANTS
Each of Holdings and the Borrower covenants and agrees with
each Lender that so long as this Agreement shall remain in effect and until the
Commitments have been terminated and the principal of and interest on each Loan,
all fees and all other expenses or amounts payable under any Loan Document shall
have been paid in full and all Letters of Credit have been canceled or have
expired and all amounts drawn thereunder have been reimbursed in full, unless
the Required Lenders shall otherwise consent in writing, each of Holdings and
the Borrower will, and will cause each of the Subsidiaries to:
SECTION 5.01. Existence; Businesses and Properties. (a) Do or
cause to be done all things necessary to preserve, renew and keep in full force
and effect its legal existence, except as otherwise expressly permitted under
Section 6.04 and except that the foregoing shall not apply to Excluded
Subsidiaries.
(b) Do or cause to be done all things necessary to (i) obtain,
preserve, renew, extend and keep in full force and effect the rights, licenses,
permits, franchises, authorizations, patents, copyrights, trademarks and trade
names material to the conduct of its business; (ii) maintain and operate such
business in substantially the manner in which it is presently conducted and
operated; (iii) comply in all material respects with all applicable laws, rules,
regulations and orders of any Governmental Authority, whether now in effect or
hereafter enacted; and (iv) at all times maintain and preserve all property
material to the conduct of such business and keep such property in good repair,
working order and condition and from time to time make, or cause to be made, all
needful and proper repairs, renewals, additions, improvements and replacements
thereto necessary in order that the business carried on in connection therewith
may be properly conducted at all times; provided that (A) clauses (i), (ii), and
(iv) above shall not apply to Excluded Subsidiaries, (B) the foregoing shall not
prevent any transaction expressly permitted under Section 6.04, (C) the
foregoing shall not prevent Holdings, the Borrower or any Subsidiary from
withdrawing its qualification as a foreign corporation in any jurisdiction and
(D) the foregoing clause (i) shall not prevent Holdings, the Borrower or any
Subsidiary from taking or failing to take any action respecting any right,
license, permit, franchise, authorization, patent, copyright, trademark or trade
name determined by it to be in the best interest of the Borrower and the
Subsidiaries; provided further that the foregoing clauses (C) and (D) shall not
be construed to permit the taking of, or failure to take, any action that could
reasonably be expected to result in a Material Adverse Effect.
SECTION 5.02. Insurance. Keep its insurable properties
adequately insured at all times by financially sound and reputable insurers;
maintain such other insurance, to such extent and against such risks, including
fire and other risks insured against by extended coverage, as is customary with
companies in the same or similar businesses, including public liability
insurance against claims for personal injury or death or property damage
occurring upon, in, about or in connection with the use of any properties owned,
occupied or controlled by it; and maintain such other insurance as may be
required by law.
SECTION 5.03. Obligations and Taxes. Pay its Indebtedness and
other material obliga tions promptly and in accordance with their terms and pay
and discharge promptly when due all taxes, assessments and governmental charges
or levies imposed upon it or upon its income or profits or in respect of its
property, before the same shall become delinquent or in default, as well as all
lawful claims for labor, materials and supplies or otherwise which, if unpaid,
might give rise to a Lien upon such properties or any part thereof; provided,
however, that such payment and discharge shall not be required with respect to
any such obligation, tax, assessment, charge, levy or claim so long as the
validity or amount thereof shall be contested in good faith by appropriate
proceedings and the Borrower shall have set aside on its books adequate reserves
with respect thereto and such contest operates to suspend collection of the
contested obligation, tax, assessment charge, levy or claim and enforcement of a
Lien.
SECTION 5.04. Financial Statements, Reports, etc. In the case
of Holdings and the Borrower, furnish to the Administrative Agent and each
Lender:
(a) within 95 days after the end of each fiscal year, its
consolidated and consolidating balance sheets and related consolidated
and consolidating statements of operations and xxxxxxx dated statements
of shareholders' equity and cash flows showing the financial condition
of Holdings and its consolidated subsidiaries as of the close of such
fiscal year and the results of its
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operations and the operations of such subsidiaries during such year,
all audited (in the case of such consolidated and consolidating
statements) by any "Big 5" accounting firm or other independent
publi c accountants of recognized national standing reasonably
acceptable to the Required Lenders, and accompanied by an opinion of
such accountants (which shall not contain any "going concern" or other
materially adverse qualification) to the effect that such
consolidated financial statements fairly present the financial
condition and results of operations of Holdings on a consolidated
basis in accordance with GAAP consistently applied;
(b) within 50 days after the end of each of the first three
fiscal quarters of each fiscal year, its consolidated and consolidating
balance sheets and related consolidated and consolidating statements of
operations and consolidated statements of shareholders' equity and cash
flows showing the financial condition of Holdings and its consolidated
subsidiaries as of the close of such fiscal quarter and the results of
its operations and the operations of such subsidiaries during such
fiscal quarter and the then elapsed portion of the fiscal year, all
certified by one of its Xxxxx cial Officers as fairly presenting the
financial condition and results of operations of Holdings on a
consolidated basis in accordance with GAAP consistently applied,
subject to the absence of footnotes and normal year-end reserves,
accruals and audit adjustments;
(c) concurrently with any delivery of financial statements
under (a) or (b) above, a certificate of a Financial Officer (i)
certifying that no Event of Default or Default has occurred or, if such
an Event of Default or Default has occurred, specifying the nature and
extent thereof and any corrective action taken or proposed to be taken
with respect thereto and (ii) setting forth computations in reasonable
detail satisfactory to the Administrative Agent demonstrating
compliance with the covenants contained in Sections 6.06, 6.07 and
6.08;
(d) concurrently with any delivery of financial statements
under paragraph (a) above, a certificate of the accounting firm opining
on such statements (which certificate may be limited to accounting
matters and disclaim responsibility for legal interpretations)
certifying (i) whether in connection with its audit examination any
Default or Event of Default has come to its attention and, if such
event has come to its attention, the nature and extent thereof and (ii)
that based on its audit examination and its review of the computations
referred to in clause (ii) of paragraph (c) above, nothing has come to
its attention that leads it to believe that the information contained
in the certificate delivered therewith pursuant to paragraph (c) above
is not correct; provided that the requirements of this clause (d) shall
be subject to any limitations and qualifications adopted after the date
hereof by any professional association or organization or any
Governmental Authority, in each case that affects the content of, or
ability of accounting firms to deliver, certificates of the type
contemplated by this paragraph;
(e) promptly after the same become publicly available or are
filed or distributed, as applicable, copies of all periodic and other
reports, proxy statements and other materials filed by Holdings or the
Borrower or any Subsidiary with the Securities and Exchange Commission,
or any Governmental Authority succeeding to any of or all the functions
of said Commission, or with any national securities exchange, or
distributed to the holders of any Indebtedness with a then outstanding
principal amount of $15,000,000 or more (or any trustee, agent or
representative for any such holders) or to Holdings' shareholders, as
the case may be;
(f) promptly upon the occurrence of any change of rating of
the Borrower's senior, unsecured, noncredit enhanced senior debt by
Xxxxx'x or S&P, a certificate of a Financial Officer setting forth the
new rating, the effective date thereof and, if applicable, notice of
any change in the Applicable Percentage as a result thereof; and
(g) promptly, from time to time, such other information
regarding the operations, business affairs and financial condition of
Holdings and the Borrower or any Subsidiary, or compliance with the
terms of any Loan Document, as the Administrative Agent or any Lender
may reasonably request.
SECTION 5.05. Litigation and Other Notices. Furnish to the
Administrative Agent and each Lender prompt written notice of the following:
(a) any Event of Default or Default, specifying the nature and
extent thereof and the corrective action (if any) proposed to be taken
with respect thereto;
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(b) the filing or commencement of, or any threat or notice of
intention of any person to file or commence, any action, suit or
proceeding, whether at law or in equity or by or before any
Governmental Authority, against the Borrower or any Affiliate thereof
which could reasonably be expected to result in a Material Adverse
Effect; and
(c) any other development that has resulted in, or could
reasonably be expected to result in, a Material Adverse Effect.
SECTION 5.06. Employee Benefits. (a) Comply in all material
respects with the applicable provisions of ERISA and the Code and (b) furnish to
the Administrative Agent (i) as soon as possible after, and in any event within
30 days after any Responsible Officer of the Borrower or any ERISA Affiliate
knows or has reason to know that, any Reportable Event has occurred that alone
or together with any other Reportable Event could reasonably be expected to
result in liability of the Borrower to the PBGC in an aggregate amount exceeding
$5,000,000, a statement of a Financial Officer setting forth details as to such
Reportable Event and the action that the Borrower proposes to take with respect
thereto, together with a copy of the notice, if any, of such Reportable Event
given to the PBGC, (ii) promptly after receipt thereof, a copy of any notice
that the Borrower or any ERISA Affiliate may receive from the PBGC relating to
the intention of the PBGC to terminate any Plan or Plans (other than a Plan
maintained by an ERISA Affiliate that is considered an ERISA Affiliate only
pursuant to subsection (m) or (o) of Code Section 414) or to appoint a trustee
to administer any such Plan, (iii) within 10 days after the due date for filing
with the PBGC pursuant to Section 412(n) of the Code a notice of failure to make
a required installment or other payment with respect to a Plan, a statement of a
Financial Officer setting forth details as to such failure and the action that
the Borrower proposes to take with respect thereto, together with a copy of any
such notice given to the PBGC and (iv) promptly and in any event within 30 days
after receipt thereof by the Borrower or any ERISA Affiliate from the sponsor of
a Multiemployer Plan, a copy of each notice received by the Borrower or any
ERISA Affiliate concerning (A) the imposition of Withdrawal Liability or (B) a
determination that a Multiemployer Plan is, or is expected to be, terminated or
in reorganization, both within the meaning of Title IV of ERISA.
SECTION 5.07. Maintaining Records; Access to Properties and
Inspections. Maintain all financial records in accordance with GAAP and permit
any representatives designated by any Lender, upon reasonable prior notice, to
visit and inspect the financial records and the properties of Holdings, the
Borrower or any Subsidiary at reasonable times (during normal business hours)
and as often as requested and to make extracts from and copies of such financial
records, and permit any representatives designated by any Lender to discuss the
affairs, finances and condition of Holdings, the Borrower or any Subsidiary with
the officers thereof and independent accountants therefor; provided that any
such visitation and inspection rights shall be exercised in a reasonable manner
that does not disrupt the business activities of the Borrower and its
Subsidiaries.
SECTION 5.08. Use of Proceeds. Use the proceeds of the Loans
and request the issuance of Letters of Credit only for (i) working capital
purposes of the Borrower and its Subsidiaries or (ii) general corporate purposes
(including all proper and legitimate business purposes) of the Borrower and its
Subsidiaries.
SECTION 5.09. Further Assurances. (a) Cause each Subsidiary
(including any Subsidiary that becomes a Subsidiary after the date hereof, but
excluding (i) any Foreign Subsidiary so long as such Foreign Subsidiary has not
entered into any Guarantee with respect to any other Indebtedness of the
Borrower and (ii) any Excluded Subsidiary that has not ceased to qualify as an
"Excluded Subsidiary") to undertake the obligations of and to become a
Subsidiary Guarantor pursuant to the Guarantee Agreement and a party to the
Indemnity, Subrogation and Contribution Agreement pursuant to one or more
instruments or agreements satisfactory in form and substance to the
Administrative Agent.
SECTION 5.10. Environmental Matters. (a) Promptly give notice
to the Administrative Agent upon becoming aware of (i) any violation of any
Environmental Law, (ii) any claim, inquiry, proceeding, investigation or other
action, including a request for information or a notice of an actual or
threatened Environmental Claim or (iii) the discovery of the Release of any
Hazardous Material at, on, under or from any of the properties owned or occupied
by the Borrower or any Subsidiary in excess of reportable or allowable
standards, threshold amounts or levels under any Environmental Law, or in a
manner or amount that could reasonably be expected to result in liability under
any Environmental Law.
(b) Upon discovery of the presence on any of the properties
owned or occupied by the Borrower or any Subsidiary of any Hazardous Material
that is in violation of, or that could reasonably be expected to result in
liability under, any Environmental Law, take all necessary steps to initiate and
expeditiously complete all Remedial Action to eliminate any such adverse effect,
and keep the Administrative Agent informed of such actions and the results
thereof.
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ARTICLE VI. NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the
principal of and interest on each Loan, all fees and all other expenses or
amounts payable under any Loan Document have been paid in full and all Letters
of Credit have been cancelled or have expired and all amounts drawn thereunder
have been reimbursed in full, unless the Required Lenders shall otherwise
consent in writing, each of Holdings and the Borrower covenants and agrees that:
SECTION 6.01. Indebtedness. (a) The Borrower will not permit
any Subsidiary to incur, create, assume or permit to exist any Indebtedness,
except:
(i) intercompany Indebtedness, including open accounts,
incurred by Subsidiaries from the Borrower or from other Subsidiaries;
(ii) unsecured Indebtedness in an aggregate principal amount
at any time outstanding not to exceed 10% of Consolidated Net Worth;
and
(iii) Indebtedness consisting of Guarantees of the
Obligations.
(b) The Borrower will not incur, create, assume or permit to
exist any Indebtedness in respect of letters of credit or bankers' acceptances
other than (i) Indebtedness in respect of Letters of Credit and (ii)
Indebtedness in respect thereof in an aggregate principal amount not to exceed
$10,000,000 at any one time outstanding.
SECTION 6.02. Liens. Neither Holdings nor the Borrower will,
nor will they permit any Subsidiary to, create, incur, assume or permit to exist
any Lien on any property or assets (including stock or other securities of any
person, including any Subsidiary) now owned or hereafter acquired by it or on
any income or revenues or rights in respect of any thereof, except:
(a) Liens on property or assets of the Borrower and its
Subsidiaries existing on the Effective Date and set forth in Schedule
6.02;
(b) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary; provided that
(i) such Lien is not created in contemplation of or in connection with
such acquisition, and (ii) such Lien does not apply to any other
property or assets of the Borrower or any Subsidiary;
(c) Liens for taxes, assessments or governmental charges or
levies not yet due or which are being contested in compliance with
Section 5.03;
(d) Liens imposed by law that do not secure Indebtedness for
borrowed money and were incurred in the ordinary course of business,
such as carriers', warehousemen's, mechanic's, materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business; provided that such Liens either (i) do not in the aggregate
materially detract from the value of the property or assets to which
such Liens apply or materially impair the use thereof in the operation
of the business of Holdings, the Borrower and the Subsidiaries or (ii)
are being contested in compliance with Section 5.03;
(e) Liens upon equipment, machinery or real property
(including improvements thereto and fixtures thereon), assets subject
to Capital Lease Obligations and assets financed with industrial
revenue bonds; provided that (i) such Liens only secure Indebtedness
incurred (A) to finance the acquisition of such equipment, machinery or
real property, or the improvement of such real property, (B) in respect
of Capital Lease Obligations or (C) in respect of industrial revenue
bonds, (ii) such Liens (other than Liens securing Capital Lease
Obligations) are incurred, and the related Indebtedness is created,
within 180 days after the acquisition or construction of the assets
financed thereby and (iii) in each case, such Liens do not encumber any
other assets or properties;
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(f) leases or subleases granted to other persons not
materially interfering with the conduct of the business of the Borrower
and its Subsidiaries taken as a whole;
(g) easements, licenses, rights-of-way, zoning or other
restrictions, encroachments and other similar charges or encumbrances,
and minor title deficiencies, statutory and common law
landlords' liens under leases to which Holdings, the Borrower or any of
its Subsidiaries is a party, in each case not securing Indebtedness and
not materially interfering with the conduct of the business of
Holdings, the Borrower or any of its Subsidiaries;
(h) Liens (other than any Lien imposed by ERISA) for worker's
compensation, unemployment compensation and other forms of government
insurance incurred in the ordinary course of business;
(i) Liens to secure (i) performance of tenders, statutory
obligations, bids, leases and contracts or other similar obligations
(other than for borrowed money) entered into in the ordinary course of
business or (ii) obligations on surety or appeal bonds, provided that
the obligations secured by such Liens (and, to the extent (without
duplication) the value of cash or property (other than Letters of
Credit) forming a part of the security with respect to such surety or
appeal bonds exceeds the obligations so secured, the amount of such
excess) do not exceed in the aggregate $5,000,000;
(j) Liens arising from precautionary Uniform Commercial Code
financing statement filings regarding operating leases otherwise
permitted hereunder;
(k) any interest or title of a lessor under any operating
lease of property to, or of any consignor of goods consigned to, or any
creditor of any consignee in goods consigned to such consignee by, the
Borrower or any of its Subsidiaries, in each case in the ordinary
course of business;
(l) Liens arising out of judgments or awards, which have been
in existence for less than 45 days from the date of creation thereof or
which have been stayed or bonded pending appeal or fully covered by
insurance (subject to applicable deductibles) and for which no
enforcement action has been commenced, provided that the aggregate
amount of all such judgments or awards (and, to the extent (without
duplication) the value of cash or property (other than Letters of
Credit) forming a part of the security with respect to such judgment or
award exceeds the obligations so secured, the amount of such excess)
does not exceed $5,000,000 at any time outstanding; and
(m) Liens securing obligations under any Rate Protection
Agreement consisting solely of an assignment of the Borrower's rights
under such Rate Protection Agreement.
SECTION 6.03. Certain Acquisitions. Neither Holdings nor the
Borrower will, nor will they permit any Subsidiary to, purchase, lease or
otherwise acquire (in one transaction or a series of related transactions) any
property or assets outside the ordinary course of business, except acquisitions
by the Borrower of the capital stock of a Person (the "Issuer") or of property
or assets outside the ordinary course of business, provided that (i) the
aggregate consideration paid in connection with all such acquisitions does not
exceed $450,000,000; (ii) the Issuer shall be engaged in, or the property and
assets acquired shall be used in connection with, the same or related (ancillary
or complementary) line of business as the Borrower; (iii) all necessary
governmental approvals and third party consents for the acquisition have been
obtained without imposing burdensome conditions, all appeal periods have expired
and there shall be no governmental or judicial action, pending or threatened,
restraining or imposing burdensome conditions on such acquisition; (iv) after
giving effect to the acquisition, and on a pro forma basis (including the
financial results of the Borrower and the Subsidiaries and the Issuer or the
property and assets to be acquired, as the case may be, and giving pro forma
effect to any Indebtedness to be incurred in connection with such acquisition)
for the period of four consecutive fiscal quarters ending immediately prior to
such acquisition, no Event of Default or Default shall have occurred and be
continuing and the Borrower shall have delivered to the Administrative Agent a
certificate of a Financial Officer certifying compliance with the conditions set
forth in this clause (iv) and setting forth pro forma calculations demonstrating
such compliance; and (v) in the case of any such acquisition of capital stock,
the Issuer shall become a Subsidiary Guarantor under the Guarantee Agreement.
SECTION 6.04. Mergers, Consolidations and Sales of Assets. (a)
Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to,
merge into or consolidate with any other person,
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or permit any other person to merge into or consolidate with it, or sell,
transfer, lease or otherwise dispose of (in one transaction or in a series of
transactions) all or any substantial part of its assets (whether now owned or
hereafter acquired), including any capital stock of any Subsidiary; provided,
however, that if at the time thereof and immediately after giving effect thereto
no Default or Event of Default shall have occurred and be continuing, (i) any
Person may be liquidated into or may merge into or with the Borrower in a
transaction in which the Borrower is the surviving corporation, (ii) any Person
may merge into or with or consolidate with any Wholly Owned Subsidiary of the
Borrower in a transaction in which the surviving entity is a Wholly Owned
Subsidiary of the Borrower, provided in each case that (x) no Person other than
the Borrower or a Wholly Owned Subsidiary of the Borrower receives any
consideration (except in the case of a merger or consolidation that is permitted
by Section 6.03) and (y) in the event that any Loan Party is a party to such
merger or consolidation and is not the surviving entity, the surviving entity
shall, simultaneously with such merger or consolidation, assume all the
obligations of such Loan Party hereunder and under the other Loan Documents, and
(iii) any Excluded Subsidiary may be liquidated or may sell, transfer or
otherwise dispose of its assets to the Borrower or to another Subsidiary.
(b) Notwithstanding the provisions of paragraph (a) above:
(i) the Borrower and its Subsidiaries may sell, transfer
or otherwise dispose of assets to each other; and
(ii) the Borrower and its Subsidiaries may sell, transfer or
otherwise dispose of assets; provided that (A) such dispositions are
made for fair value and (B) after giving effect to any such sale,
transfer or disposition the aggregate fair market value of all assets
disposed of on and after the Effective Date in reliance upon this
clause (ii) would not exceed 15% of the Consolidated Total Assets
determined by reference to the most recent quarterly or annual balance
sheet of the Borrower which precedes such sale, transfer or disposition
that is delivered to the Administrative Agent pursuant to Section 5.04.
SECTION 6.05. Business of Holdings, Borrower and Subsidiaries.
Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to,
engage at any time in any business or business activity other than the business
currently conducted by the Borrower and its Subsidiaries and business activities
reasonably related, supportive or incidental thereto. Without limiting the
generality of the foregoing, Holdings will not engage in any business or
business activity other than the ownership of the capital stock of the Borrower.
SECTION 6.06. Consolidated Net Worth. Neither Holdings nor the
Borrower will, nor will they permit any Subsidiary to, permit Consolidated Net
Worth at any time to be less than the sum of (a) $300,000,000, plus (b) 50% of
Consolidated Net Income for each fiscal quarter of the Borrower for which
Consolidated Net Income is positive, commencing with the fiscal quarter ended
June 30, 1999, plus (c) 50% of any increase in Consolidated Net Worth after June
30, 1999, attributable to capital contributions or the issuance of additional
shares of capital stock.
SECTION 6.07. Consolidated Fixed Charge Coverage Ratio.
Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to,
permit the Consolidated Fixed Charge Coverage Ratio for any period of four
consecutive fiscal quarters of the Borrower ended on or after June 30, 1999, to
be less than 2.50 to 1.
SECTION 6.08. Leverage Ratio. Neither Holdings nor the
Borrower will, nor will they permit any Subsidiary to, permit the Leverage Ratio
at any time to be greater than 0.40 to 1.
SECTION 6.09. Restrictive Agreements. Neither Holdings nor the
Borrower will, nor will they permit any Subsidiary to, enter into, incur or
permit to exist, directly or indirectly, any agreement or other arrangement that
prohibits, restricts or imposes any condition upon (a) the ability of Holdings,
the Borrower or any Subsidiary to create, incur or permit to exist any Lien upon
any of its property or assets, or (b) the ability of any Subsidiary to pay
dividends or other distributions with respect to any shares of its capital stock
or to make or repay loans or advances to the Borrower or any other Subsidiary or
to Guarantee Indebtedness of the Borrower or any other Subsidiary, provided that
(i) the foregoing shall not apply to restrictions and conditions imposed by law
or by any Loan Document, (ii) the foregoing shall not apply to restrictions and
conditions existing on the date hereof identified on Schedule 6.09 (but shall
apply to any extension or renewal of, or any amendment or modification if it
expands the scope of, any such restriction or condition), (iii) the foregoing
shall not apply to customary restrictions and conditions contained in agreements
relating to the sale of a Subsidiary pending such sale, provided such
restrictions
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and conditions apply only to the Subsidiary that is to be sold and such sale is
permitted hereunder, (iv) clause (a) of the foregoing shall not apply to
restrictions or conditions imposed by any agreement relating to secured
Indebtedness permitted by this Agreement if such restrictions or conditions
apply only to the property or assets securing such Indebtedness and (v) clause
F(a) of the foregoing shall not apply to customary
provisions in leases or other contracts entered into in the ordinary course of
business restricting the assignment thereof.
ARTICLE VII. EVENTS OF DEFAULT
In case of the happening of any of the following events
("Events of Default"):
(a) any representation or warranty made or deemed made in or
in connection with any Loan Document or the borrowings or issuances of
Letters of Credit hereunder, or any representa tion, warranty,
statement or information contained in any report, certificate,
financial statement or other instrument furnished in connection with or
pursuant to any Loan Document, shall prove to have been false or
misleading in any material respect when so made, deemed made or
furnished;
(b) default shall be made in the payment of any principal of
any Loan when and as the same shall become due and payable, whether at
the due date thereof or at a date fixed for prepay ment thereof or by
acceleration thereof or otherwise;
(c) default shall be made in the reimbursement with respect to
any L/C Disbursement or the payment of any Fee or any interest on any
Loan or on L/C Disbursement or any other amount (other than an amount
referred to in (b) above) due under any Loan Document, when and as the
same shall become due and payable, and such default shall continue
unremedied for a period of three Business Days;
(d) default shall be made in the due observance or performance
by Holdings, the Borrower or any Subsidiary of any covenant, condition
or agreement contained in Section 5.01(a), or 5.08 or in Article VI;
(e) default shall be made in the due observance or performance
by Holdings, the Borrower or any Subsidiary of any covenant, condition
or agreement contained in any Loan Document (other than those specified
in (b), (c) or (d) above) and such default shall continue unremedied
for a period of (i) in the case of a default under Section 5.05, three
Business Days after any Responsible Officer of the Borrower has actual
knowledge of any matter required to be disclosed to the Administrative
Agent and the Lenders pursuant to such Section that has not been so
disclosed or (ii) in the case of any other such default, 30 days after
notice thereof from the Administrative Agent or any Lender to the
Borrower;
(f) Holdings, the Borrower or any Subsidiary shall (i) fail to
pay any principal or interest, regardless of amount, due in respect of
any Indebtedness in a principal amount in excess of $5,000,000, when
and as the same shall become due and payable, or (ii) fail to observe
or perform any other term, covenant, condition or agreement contained
in any agreement or instrument evidencing or governing any such
Indebtedness referred to in clause (i) if the effect of any failure
referred to in this clause (ii) is to cause, or to permit the holder or
holders of such Indebtedness or a trustee on its or their behalf (with
or without the giving of notice, the lapse of time or both) to cause,
such Indebtedness to become due prior to its stated maturity;
(g) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent
jurisdiction seeking (i) relief in respect of Holdings, the Borrower or
any Subsidiary (other than an Excluded Subsidiary), or of a substantial
part of the property or assets of Holdings, the Borrower or a
Subsidiary (other than an Excluded Subsidiary), under Title 11 of the
United States Code, as now constituted or hereafter amended, or any
other Federal or state bankruptcy, insolvency, receivership or similar
law, (ii) the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for Holdings, the
Borrower or any Subsidiary (other than an Excluded Subsidiary) or for a
substantial part of the property or assets of Holdings, the Borrower or
a Subsidiary (other than an Excluded Subsidiary) or (iii) the
winding-up or liquidation of Holdings, the Borrower or any Subsidiary
(other than an Excluded Subsidiary); and such proceeding or petition
shall continue undismissed for 60 days or an order or decree approving
or ordering any of the foregoing shall be entered;
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(h) Holdings, the Borrower or any Subsidiary (other than an
Excluded Subsidiary) shall (i) voluntarily commence any proceeding or
file any petition seeking relief under Title 11 of the United States
Code, as now constituted or hereafter amended, or any other Federal or
state bankruptcy, insolvency, receivership or similar law, (ii) consent
to the institution of, or fail to contest in a timely and appropriate
manner, any proceeding or the filing of any petition described in (g)
above, (iii) apply for or consent to the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for
Holdings, the Borrower or any Subsidiary (other than an Excluded
Subsidiary) or for a substantial part of the property or assets of
Holdings, the Borrower or any Subsidiary (other than an Excluded
Subsidiary), (iv) file an answer admitting the material allegations of
a petition filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors, (vi) become unable, admit in
writing its inability or fail generally to pay its debts as they become
due or (vii) take any corporate action for the purpose of effecting any
of the foregoing;
(i) one or more judgments for the payment of money in an
aggregate amount in excess of $5,000,000 shall be rendered against
Holdings, the Borrower, any Subsidiary (other than an Excluded
Subsidiary) or any combination thereof and the same shall remain
undischarged for a period of 30 consecutive days during which execution
shall not be effectively stayed, or any action shall be legally taken
by a judgment creditor to levy upon assets or properties of Holdings,
the Borrower or any Subsidiary (other than an Excluded Subsidiary) to
enforce any such judgment;
(j) (i) a Reportable Event or Reportable Events, or a failure
to make a required installment or other payment (within the meaning of
Section 412(n)(1) of the Code), shall have occurred with respect to any
Plan or Plans that reasonably could be expected to result in liability
of the Borrower to the PBGC or to a Plan in an aggregate amount
exceeding $5,000,000 and, within 30 days after the reporting of any
such Reportable Event to the Administrative Agent or after the receipt
by the Administrative Agent of a statement required pursuant to Section
5.06(b)(iii) hereof, the Administrative Agent shall have notified the
Borrower in writing that (A) the Required Leaders have made a
determination that, on the basis of such Reportable Event or Reportable
Events or the failure to make a required payment, there are reasonable
grounds for the termination of such Plan or Plans by the PBGC, the
appointment by the appropriate United States district court of a
trustee to administer such Plan or Plans or the imposition of a lien in
favor of a Plan and (B) as a result thereof an Event of Default exists
hereunder; or (ii) a trustee shall be appointed by a United States
district court to administer any such Plan or Plans; or (iii) the PBGC
shall institute proceedings (including giving notice of intent thereof)
to terminate any such Plan or Plans;
(k) (i) the Borrower 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, (ii) the Borrower or
such ERISA Affiliate does not have reasonable grounds for contesting
such With drawal Liability or is not contesting such Withdrawal
Liability in a timely and appropriate manner and (iii) the amount of
such Withdrawal Liability specified in such notice, when aggregated
with all other amounts required to be paid to Multiemployer Plans in
connection with Withdrawal Liabilities (determined as of the date or
dates of such notification), either (A) exceeds $5,000,000 or requires
payments exceeding $1,000,000 in any year or (B) is less than
$5,000,000 but any Withdrawal Liability payment remains unpaid 30 days
after such payment is due;
(l) the Borrower 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, if solely as a result of such reorganization or
termination the aggregate annual contributions of the Borrower and its
ERISA Affiliates to all Multiemployer Plans that are then in
reorganization or have been or are being terminated have been or will
be increased over the amounts required to be contributed to such
Multiemployer Plans for their most recently completed plan years by an
amount exceeding $1,000,000;
(m) at any time after the Effective Date, the Guarantee
Agreement shall cease to be, or shall be asserted by any Guarantor not
to be, a valid, binding and enforceable agreement;
(n) there shall have occurred a Change in Control; or
(o) it is discovered that (i) Hazardous Materials have been
transported from any of the Properties or generated, treated, stored or
disposed of at, on or under any of the Properties in a
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manner that has resulted in, or could reasonably be anticipated to
result in, an Environmental Claim, or (ii) the Borrower or any of its
Subsidiaries has retained or assumed any liability, contractually, by
operation of law or otherwise, with respect to the generation,
treatment, storage or disposal of Hazardous Materials, and, in any
such case described in clause (i) or (ii) above, the Administrative
Agent shall have notified the Borrower in writing that the Required
Lenders have determined that such Environmental Claims and other
liabilities, in the aggregate, have resulted in, or could
reasonably be anticipated to result in, a Material Adverse Effect and,
as a result thereof, an Event of Default exists hereunder;
then, and in every such event (other than an event with respect to the Borrower
described in paragraph (g) or (h) above), and at any time thereafter during the
continuance of such event, the Administrative Agent may, and at the request of
the Required Lenders shall, by notice to the Borrower, take either or both of
the following actions, at the same or different times: (i) terminate forthwith
the Commitments and (ii) declare the Loans then outstanding to be forthwith due
and payable in whole or in part, whereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and any
unpaid accrued fees and all other liabilities of the Borrower accrued hereunder
and under any other Loan Document, shall become forthwith due and payable,
without presentment, demand, protest or any other notice of any kind, all of
which are hereby expressly waived by the Borrower, anything contained herein or
in any other Loan Document to the contrary notwithstanding; and in any event
with respect to the Borrower described in para graph (g) or (h) above, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and any unpaid accrued fees
and all other liabilities of the Borrower accrued hereunder and under any other
Loan Document, including the obligation to provide cash collateral pursuant to
Section 2.20(j), shall automatically become due and payable, without present
ment, demand, protest or any other notice of any kind, all of which are hereby
expressly waived by the Borrower, anything contained herein or in any other Loan
Document to the contrary notwithstanding.
ARTICLE VIII. THE ADMINISTRATIVE AGENT
In order to expedite the transactions contemplated by this
Agreement, The Chase Manhattan Bank is hereby appointed to act as Administrative
Agent on behalf of the Lenders and the Issuing Bank. Each of the Lenders and
each assignee of any such Lender hereby irrevocably authorizes the
Administrative Agent to take such actions on behalf of such Lender or assignee
or the Issuing Bank and to exercise such powers as are specifically delegated to
the Administrative Agent by the terms and provisions hereof and of the other
Loan Documents, together with such actions and powers as are reasonably
incidental thereto. The Administrative Agent is hereby expressly authorized by
the Lenders and the Issuing Bank, without hereby limiting any implied authority,
(a) to receive on behalf of the Lenders and the Issuing Bank all payments of
principal of and interest on the Loans, all payments in respect of L/C
Disbursements and all other amounts due to the Lenders hereunder, and promptly
to distribute to each Lender or the Issuing Bank its proper share of each
payment so received; (b) to give notice on behalf of each of the Lenders to the
Borrower of any Event of Default specified in this Agreement of which the
Administrative Agent has actual knowledge acquired in connection with its agency
hereunder; and (c) to distribute to each Lender copies of all notices, financial
statements and other materials delivered by the Borrower pursuant to this
Agreement as received by the Administrative Agent.
Neither the Agent nor any of its directors, officers,
employees or agents shall be liable as such for any action taken or omitted by
any of them except for its or his own gross negligence or wilful misconduct, or
be responsible for any statement, warranty or representation herein or the
contents of any document delivered in connection herewith, or be required to
ascertain or to make any inquiry concerning the performance or observance by the
Borrower or any other Loan Party of any of the terms, conditions, covenants or
agreements contained in any Loan Document. The Administrative Agent shall not be
responsible to the Lenders for the due execution, genuineness, validity,
enforceability or effectiveness of this Agreement or any other Loan Documents or
other instruments or agreements. The Administrative Agent shall in all cases be
fully protected in acting, or refraining from acting, in accordance with written
instructions signed by the Required Lenders and, except as otherwise
specifically provided herein, such instructions and any action or inaction
pursuant thereto shall be binding on all the Lenders. The Administrative Agent
shall, in the absence of knowledge to the contrary, be entitled to rely on any
instrument or document believed by it in good faith to be genuine and correct
and to have been signed or sent by the proper person or persons. Neither the
Administrative Agent nor any of its directors, officers, employees or agents
shall have any responsibility to the Borrower or any other Loan Party on account
of the failure of or delay in performance or breach by any Lender or the Issuing
Bank of any of its obligations hereunder or to any Lender or the Issuing Bank on
account of the failure of or delay in performance or
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breach by any other Lender or the Issuing Bank or the Borrower or any other Loan
Party of any of their respective obligations hereunder or under any other Loan
Document or in connection herewith or therewith. The Administrative Agent may
execute any and all duties hereunder by or through agents or employees and shall
be entitled to rely upon the advice of legal counsel selected by it with respect
to all matters arising hereunder and shall not be liable for any action taken or
suffered in good faith by it in accordance with the advice of such counsel.
The Lenders hereby acknowledge that the Administrative Agent
shall not be under any duty to take any discretionary action permitted to be
taken by it pursuant to the provisions of this Agree ment unless it shall be
requested in writing to do so by the Required Lenders.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided below, the Administrative Agent may resign at
any time by notifying the Lenders and the Borrower. Upon any such resignation,
the Required Lenders shall have the right to appoint a successor reasonably
acceptable to the Borrower (it being understood that any Lender is deemed to be
acceptable to the Borrower). If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after
the retiring Administrative Agent gives notice of its resignation, then the
retiring Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent reasonably acceptable to the Borrower (it being understood
that any Lender is deemed to be acceptable to the Borrower) which shall be
either a Lender or a bank with an office in New York, New York, having a
combined capital and surplus of at least $500,000,000 or an Affiliate of any
such bank. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor bank, such successor shall succeed to and become vested
with all the rights, powers, privileges and duties of the retiring
Administrative Agent and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder. After the Administrative Agent's
resignation hereunder, the provisions of this Article and Section 9.05 shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as Administrative Agent.
With respect to the Loans made or Letters of Credit issued by
it hereunder, the Administrative Agent in its individual capacity and not as
Administrative Agent shall have the same rights and powers as any other Lender
and may exercise the same as though it were not the Administrative Agent, and
the Administrative Agent and its Affiliates may accept deposits from, lend money
to and generally engage in any kind of business with the Borrower or any
Subsidiary or other Affiliate thereof as if it were not the Administrative
Agent.
Each Lender agrees (i) to reimburse the Administrative Agent,
on demand, in the amount of its Pro Rata Percentage of any expenses incurred for
the benefit of the Lenders by the Administrative Agent, including counsel fees
and compensation of agents and employees paid for services rendered on behalf of
the Lenders, which shall not have been reimbursed by the Borrower and (ii) to
indemnify and hold harmless the Administrative Agent and any of its directors,
officers, employees or agents, on demand, in the amount of such Pro Rata
Percentage, from and against any and all liabilities, taxes, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by or asserted against it in its capacity as Administrative Agent or any of them
in any way relating to or arising out of this Agreement or any other Loan
Document or any action taken or omitted by it or any of them under this
Agreement or any other Loan Document, to the extent the same shall not have been
reimbursed by the Borrower; provided that no Lender shall be liable to the
Administrative Agent for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the gross negligence or wilful misconduct of the Administrative
Agent or any of its directors, officers, employees or agents.
Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement
or any other Loan Document, any related agreement or any document furnished
hereunder or thereunder.
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ARTICLE IX. MISCELLANEOUS
SECTION 9.01. Notices. Notices and other communications
provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by
telecopy, as follows:
(a) if to the Borrower or Holdings, to it at Ethan Xxxxx
Drive, Danbury, CT 06811, Attention of Chief Financial Officer or
Treasurer (Telecopy No. (000) 000-0000), with copies to (i) in the case
of any notice or communication other than routine notices and
communications under Article II, the attention of General Counsel at
the aforesaid address and (ii) in the case of any notice or
communication relating to a Default or an Event of Default, Xxxxx,
Xxxxx & Xxxxx, 0000 Xxxxxxxx, Xxx Xxxx, XX 00000, Attention of Xxxxx X.
Xxxxxxx, Esq. (Telecopy No.
(000) 000-0000);
(b) if to the Administrative Agent, to The Chase Manhattan
Bank Loan and Agency Services Group, One Chase Xxxxxxxxx Xxxxx, 0xx
Xxxxx, Xxx Xxxx, XX 00000, Attention of Xxxxxx Xxxxxx (Telecopy No.
(000) 000-0000), with a copy to The Chase Manhattan Bank, at 000 Xxxx
Xxxxxx, Xxx Xxxx 00000, Attention of Xxxxxxxx X. Xxxx (Telecopy No.
(000) 000-0000); and
(c) if to a Lender, to it at its address (or telecopy number)
set forth in Schedule 2.01 or in the Assignment and Acceptance pursuant
to which such Lender shall have become a party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy or on the date five Business Days after dispatch by certified or
registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) to such party as provided in this Section 9.01 or in accordance with
the latest unrevoked direction from such party given in accordance with this
Section 9.01.
SECTION 9.02. Survival of Agreement. All covenants,
agreements, representations and warranties made by the Borrower or Holdings
herein and in the certificates or other instruments prepared or delivered in
connection with or pursuant to this Agreement or any other Loan Document shall
be considered to have been relied upon by the Lenders and the Issuing Bank and
shall survive the making by the Lenders of the Loans and the issuance of Letters
of Credit by the Issuing Bank, regardless of any investigation made by the
Lenders or the Issuing Bank or on their behalf, and shall continue in full force
and effect as long as the principal of or any accrued interest on any Loan or
any Fee or any other amount payable under this Agreement or any other Loan
Document is outstanding and unpaid or any Letter of Credit is outstanding and so
long as the Commitments have not been terminated.
SECTION 9.03. Binding Effect. This Agreement shall become
effective when it shall have been executed by the Borrower, Holdings and the
Administrative Agent and when the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto, and the conditions to effectiveness set forth in
Section 4.02 have been satisfied or waived, and thereafter shall be binding upon
and inure to the benefit of the parties hereto and their respective permitted
successors and assigns.
SECTION 9.04. Successors and Assigns. (a) Whenever in this
Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the permitted successors and assigns of such party; and all
covenants, promises and agreements by or on behalf of the Borrower, Holdings,
the Administrative Agent, the Issuing Bank or the Lenders that are contained in
this Agreement shall bind and inure to the benefit of their respective
successors and assigns.
(b) Each Lender may assign to one or more assignees all or a
portion of its interests, rights and obligations under this Agreement (including
all or a portion of its Commitment and the Loans at the time owing to it);
provided, however, that (i) except in the case of an assignment to a Lender or
an Affiliate of such Lender, the Borrower and the Administrative Agent (and, in
the case of any assignment of a Revolving Credit Commitment, the Issuing Bank
and the Swingline Lender) must give their prior written consent to such
assignment (which consent shall not be unreasonably withheld), (ii) the amount
of the Commitment of the assigning Lender subject to each such assignment of
less than all its Commitment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the Administrative
Agent) shall not be less than $5,000,000, (iii) the parties to each such
assignment shall
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execute and deliver to the Administrative Agent an Assignment and Acceptance,
together with a processing and recordation fee of $3,500 and (iv) the assignee,
if it shall not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire. Upon acceptance and recording pursuant to
paragraph (e) of this Section 9.04, from and after the effective date specified
in each Assignment and Acceptance, which effective date shall be at least five
Business Days after the execution thereof, (A) the assignee thereunder shall be
a party hereto and, to the extent of the interest assigned by such Assignment
and Acceptance, have the rights and obligations of a Lender under this Agreement
and (B) the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all or the remaining portion of an assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be a party hereto but shall
continue to be entitled to the benefits of Sections 2.11, 2.13, 2.17 and 9.05,
as well as to any fees accrued for its account and not yet paid).
(c) By executing and delivering an Assignment and Acceptance,
the assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim and that
its Revolving Credit Commitment, and the outstanding balance of its Revolving
Loans, in each case without giving effect to assignments thereof which have not
become effective, are as set forth in such Assignment and Acceptance, (ii)
except as set forth in (i) above, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement, or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement, any other Loan Document or any other instrument or
document furnished pursuant hereto, or the financial condition of the Borrower
or any Subsidiary or the performance or observance by the Borrower or any
Subsidiary of any of its obligations under this Agreement, any other Loan
Document or any other instrument or document furnished pursuant hereto; (iii)
such assignee represents and warrants that it is legally authorized to enter
into such Assignment and Acceptance; (iv) such assignee confirms that it has
received a copy of this Agreement, together with copies of the most recent
financial statements, if any, delivered pursuant to Section 5.04 and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (v) such
assignee will independently and without reliance upon the Administrative Agent,
such assigning Lender or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement; (vi) such
assignee appoints and authorizes the Administrative Agent to take such action as
agent on its behalf and to exercise such powers under this Agreement as are
delegated to the Administrative Agent, respectively, by the terms hereof,
together with such powers as are reasonably incidental thereto; and (vii) such
assignee agrees that it will perform in accordance with their terms all the
obligations which by the terms of this Agreement are required to be performed by
it as a Lender.
(d) The Administrative Agent, acting for this purpose as an
agent of the Borrower, shall maintain at one of its offices in The City of New
York a copy of each Assignment and Acceptance delivered to it and a register for
the recordation of the names and addresses of the Lenders, and the Commitment
of, and principal amount of the Loans owing to, each Lender pursuant to the
terms hereof from time to time (the "Register"). The entries in the Register
shall be conclusive and the Borrower, the Administrative Agent, the Issuing Bank
and the Lenders may treat each person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower, the Issuing Bank and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, an Administrative
Questionnaire completed in respect of the assignee (unless the assignee shall
already be a Lender hereunder), the processing and recordation fee referred to
in paragraph (b) above and, if required, the written consent of the Borrower,
the Swingline Lender, the Issuing Bank and the Administrative Agent to such
assignment, the Administrative Agent shall (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Lenders, the Issuing Bank and the
Swingline Lender. No assignment shall be effective unless it has been recorded
in the Register as provided in this paragraph (e).
(f) Each Lender may without the consent of the Borrower, the
Swingline Lender, the Issuing Bank or the Administrative Agent sell
participations to one or more banks or other entities in all or a portion of its
rights and obligations under this Agreement (including all or a portion of its
Commitment
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and the Loans owing to it); provided, however, that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations, (iii) the participating banks or other entities shall be
entitled to the benefit of the cost protection provisions contained in Sections
2.11, 2.13 and 2.17 to the same extent as if they were Lenders and (iv) the
Borrower, the Administrative Agent, the Issuing Bank and the Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement, and such Lender shall
retain the sole right to enforce the obligations of the Borrower relating to the
Loans or L/C Disbursements and to approve any amendment, modification or waiver
of any provision of this Agreement (other than amendments, modifications or
waivers decreasing any fees payable hereunder or the amount of principal of or
the rate at which interest is payable on the Loans, extending any scheduled
principal payment date or date fixed for the payment of interest on the Loans or
changing or extending the Commitments.
(g) Any Lender or participant may, in connection with any
assignment or participation or proposed assignment or participation pursuant to
this Section 9.04, disclose to the assignee or participant or proposed assignee
or participant any information relating to any Loan Party furnished to such
Lender by or on behalf of the Borrower; provided that, prior to any such
disclosure of information designated by the Borrower as confidential, each such
assignee or participant or proposed assignee or participant shall execute an
agreement whereby such assignee or participant shall agree (subject to customary
exceptions) to preserve the confidentiality of such confidential information on
terms no less restrictive than those applicable to the Lenders pursuant to
Section 9.16.
(h) Any Lender may at any time assign all or any portion of
its rights under this Agree ment to a Federal Reserve Bank to secure extensions
of credit by such Federal Reserve Bank to such Lender; provided that no such
assignment shall release a Lender from any of its obligations hereunder or
substitute any such Bank for such Lender as a party hereto. In order to
facilitate such an assignment to a Federal Reserve Bank, the Borrower shall, at
the request of the assigning Lender, duly execute and deliver to the assigning
Lender a promissory note or notes evidencing the Loans made to the Borrower by
the assigning Lender hereunder.
(i) Neither Holdings nor the Borrower shall assign or delegate
any of its rights or duties hereunder without the prior written consent of the
Administrative Agent, the Issuing Bank and each Lender, and any attempted
assignment without such consent shall be null and void.
(j) In the event that S&P, Xxxxx'x or Xxxxxxxx'x BankWatch (or
InsuranceWatch Ratings Service, in the case of Lenders that are insurance
companies (or Best's Insurance Reports, if such insurance company is not rated
by Insurance Watch Ratings Service)) shall, after the date that any Lender
becomes a Lender, downgrade the long-term certificate deposit ratings of such
Lender, and the resulting ratings shall be below BBB-, Baa3 and C (or BB, in the
case of a Lender that is an insurance company (or B, in the case of an insurance
company not rated by InsuranceWatch Ratings Service)), then the Issuing Bank or
the Swingline Lender shall have the right, but not the obligation, at its own
expense, upon notice to such Lender and the Administrative Agent, to replace (or
to request the Borrower to use its reasonable efforts to replace) such Lender
with an assignee (in accordance with and subject to the restrictions contained
in paragraph (b) above), and such Lender hereby agrees to transfer and assign
without recourse (in accordance with and subject to the restrictions contained
in paragraph (b) above) all its interests, rights and obligations in respect of
its Revolving Credit Commitment to such assignee; provided, however, that (i) no
such assignment shall conflict with any law, rule and regulation or order of any
Governmental Authority and (ii) the Issuing Bank or the Swingline Lender or such
assignee, as the case may be, shall pay to such Lender in immediately available
funds on the date of such assignment the principal of and interest accrued to
the date of payment on the Loans made by such Lender hereunder and all other
amounts accrued for such Lender's account or owed to it hereunder.
(k) Notwithstanding anything to the contrary contained herein,
any Lender (a "Granting Lender") may grant to a special purpose funding vehicle
(an "SPC") of such Granting Lender, identified as such in writing from time to
time by the Granting Lender to the Administrative Agent and the Borrower, the
option to provide to the Borrower all or any part of any Loan that such Granting
Lender would otherwise be obliged to make to the Borrower pursuant to Section
2.01, provided that (i) nothing herein shall constitute a commitment to make any
Loan by any SPC and (ii) if an SPC elects not to exercise such option or
otherwise fails to provide all or any part of such Loan, the Granting Lender
shall be obligated to make such Loan pursuant to the terms hereof. The making of
a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender
to the same extent, and as if, such Loan were made by the Granting Lender. Each
party hereto hereby agrees that no SPC shall be liable for any payment or
indemnity
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obligation under this Agreement for which a Lender would otherwise be liable,
for so long as, and to the extent, the related Granting Lender makes such
payment or gives such indemnity. In furtherance of the foregoing, each party
hereto hereby agrees that, prior to the date that is one year and one day after
the payment in full of all outstanding senior indebtedness of any SPC, it will
not institute against, or join any other person in instituting against, such SPC
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or similar proceedings under the laws of the United States or any
State thereof with respect to any claim arising under or related to this
Agreement. In addition, notwithstanding anything to the contrary contained in
this Section 9.04 any SPC may (i) with notice to, but without the prior written
consent of, the Borrower or the Administrative Agent and without paying any
processing fee therefor, assign all or a portion of its interests in any Loans
to its Granting Lender or to any financial institutions (if consented to by the
Borrower and the Administrative Agent) providing liquidity and/or credit
facilities to or for the account of such SPC to fund the Loans made by such SPC
or to support the securities (if any) issued by such SPC to fund such Loans and
(ii) disclose on a confidential basis any non-public information relating to its
Loans to any rating agency, commercial paper dealer or provider of a surety,
guarantee or credit or liquidity enhancement to such SPC.
SECTION 9.05. Expenses; Indemnity. (a) The Borrower agrees to
pay all out-of-pocket expenses reasonably incurred by the Administrative Agent,
the Issuing Bank and the Swingline Lender in connection with the preparation and
administration of this Agreement and the other Loan Documents or in connection
with any amendments, modifications or waivers of the provisions hereof or
thereof (whether or not the transactions hereby contemplated shall be
consummated) or incurred by the Administrative Agent, the Issuing Bank or any
Lender in connection with the enforcement or protection of their rights in
connec tion with this Agreement and the other Loan Documents or in connection
with the Loans made or Letters of Credit issued hereunder, including the
reasonable fees, charges and disbursements of Cravath, Swaine & Xxxxx, counsel
for the Administrative Agent, and, in connection with any such enforcement or
protection, the reasonable fees, charges and disbursements of not more than one
other counsel for the Administrative Agent, the Issuing Bank and the Lenders in
each jurisdiction where enforcement is sought.
(b) The Borrower agrees to indemnify the Administrative Agent,
each Lender and the Issuing Bank, each Affiliate of any of the foregoing persons
and each of their respective directors, officers, employees and agents (each
such person being called an "Indemnitee") against, and to hold each Indemnitee
harmless from, any and all losses, claims, damages, liabilities and related
expenses, including reasonable counsel fees, charges and disbursements, incurred
by or asserted against any Indemnitee arising out of, in any way connected with,
or as a result of (i) the execution or delivery of this Agreement or any other
Loan Document or any agreement or instrument contemplated thereby, the
performance by the parties thereto of their respective obligations thereunder or
the consummation of the Transactions and the other transactions contemplated
thereby, (ii) the use of the proceeds of the Loans or issuance of Letters of
Credit, (iii) any claim, litigation, investigation or proceeding relating to any
of the foregoing, whether or not any Indemnitee is a party thereto, or (iv) any
actual or alleged presence or Release of Hazardous Materials on any property
owned or operated by the Borrower or any of the Subsidiaries, or any
Environmental Claim related in any way to the Borrower or the Subsidiaries;
provided that such indemnity shall not, as to any Indemnitee, be available to
the extent that such losses, claims, damages, liabilities or related expenses
resulted from the gross negligence or wilful misconduct of such Indemnitee.
(c) The provisions of this Section 9.05 shall remain operative
and in full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contem plated hereby, the
repayment of any of the Loans, the expiration of the Commitments, the expiration
of any Letter of Credit, the invalidity or unenforceability of any term or
provision of this Agreement or any other Loan Document, or any investigation
made by or on behalf of the Administrative Agent, any Lender or the Issuing
Bank. All amounts due under this Section 9.05 shall be payable on written demand
therefor.
SECTION 9.06. Right of Setoff. If an Event of Default shall
have occurred and be continuing, each Lender 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 such Lender
to or for the credit or the account of the Borrower against any of and all the
obligations of the Borrower now or hereafter existing under this Agreement and
other Loan Documents held by such Lender, irrespective of whether or not such
Lender shall have made any demand under this Agreement or such other Loan
Document and although such obligations may be unmatured. The rights of each
Lender under this Section are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
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SECTION 9.07. APPLICABLE LAW. THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF NEW YORK.
SECTION 9.08. Waivers; Amendment. (a) No failure or delay of
the Administrative Agent, any Lender or the Issuing Bank in exercising any power
or right hereunder or under any Loan Document shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent, the Issuing
Bank and the Lenders hereunder and under the other Loan Documents are cumulative
and are not exclusive of any rights or remedies which they would otherwise have.
No waiver of any provision of this Agreement or any other Loan Document or
consent to any departure by the Borrower, Holdings or any other Loan Party
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) below, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given. No notice or demand
on the Borrower or Holdings in any case shall entitle the Borrower or Holdings
to any other or further notice or demand in similar or other circumstances.
(b) Neither this Agreement, the other Loan Documents, nor any
provision thereof may be waived, amended or modified except pursuant to an
agreement or agreements in writing entered into by the Borrower, Holdings and
the Required Lenders; provided, however, that no such agreement shall (i)
decrease the principal amount of, or extend the maturity of or any scheduled
principal payment date or date for the payment of any interest on any Loan or
any date for reimbursement of an L/C Disbursement, or waive or excuse any such
payment or any part thereof, or decrease the rate of interest on any Loan or L/C
Disbursement, without the prior written consent of each Lender affected thereby,
(ii) increase or extend the Commitment or decrease or extend the date for
payment of any of the fees of any Lender without the prior written consent of
such Lender, or (iii) amend or modify the provisions of Section 2.14 or 2.15,
the provisions of this Section, the definition of "Required Lenders" or any
provision of any Loan Document that by its terms expressly requires the consent
or approval of all the Lenders, without the prior written consent of each
Lender; provided further that no such agreement shall amend, modify or otherwise
affect the rights or duties of the Administrative Agent, the Issuing Bank or the
Swingline Lender hereunder or under any other Loan Document without the prior
written consent of the Administrative Agent, the Issuing Bank or the Swingline
Lender.
SECTION 9.09. Interest Rate Limitation. Notwithstanding
anything herein to the contrary, if at any time the interest rate applicable to
any Loan or participation in any L/C Disbursement, together with all fees,
charges and other amounts which are treated as interest on such Loan or
participation in such L/C Disbursement under applicable law (collectively the
"Charges"), shall exceed the maximum lawful rate (the "Maximum Rate") which may
be contracted for, charged, taken, received or reserved by the Lender holding
such Loan or participation in accordance with applicable law, the rate of
interest payable in respect of such Loan or participation hereunder, together
with all Charges payable in respect thereof, shall be limited to the Maximum
Rate and, to the extent lawful, the interest and Charges that would have been
payable in respect of such Loan or participation but were not payable as a
result of the operation of this Section shall be cumulated and the interest and
Charges payable to such Lender in respect of other Loans or participations or
periods shall be increased (but not above the Maximum Rate therefor) until such
cumulated amount, together with interest thereon at the Federal Funds Effective
Rate to the date of repay ment, shall have been received by such Lender.
SECTION 9.10. Entire Agreement. This Agreement and the other
Loan Documents constitute the entire contract between the parties relative to
the subject matter hereof. Any previous agreement among the parties with respect
to the subject matter hereof is superseded by this Agreement and the other Loan
Documents. Nothing in this Agreement or in the other Loan Documents, expressed
or implied, is intended to confer upon any party other than the parties hereto
and thereto any rights, remedies, obligations or liabilities under or by reason
of this Agreement or the other Loan Documents.
SECTION 9.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT,
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IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.
SECTION 9.12. Severability. In the event any one or more of
the provisions contained in this Agreement or in any other Loan Document should
be held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby. The parties shall endeavor
in good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
SECTION 9.13. Counterparts. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original but all of which when taken together shall
constitute a single contract, and shall become effective as provided in Section
9.03. Delivery of an executed signature page to this Agreement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Agreement.
SECTION 9.14. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and are not to affect the construction of, or to be taken
into consideration in interpreting, this Agreement.
SECTION 9.15. Jurisdiction; Consent to Service of Process. (a)
Each of Holdings and the Borrower 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 or the other Loan
Documents, 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 such New
York State 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 Lender may otherwise have to bring any action or
proceeding relating to this Agreement or the other Loan Documents against the
Borrower, Holdings or their respective properties in the courts of any
jurisdiction.
(b) Each of Holdings and the Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which 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 or
the other Loan Documents 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.
(c) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 9.01. Nothing
in this Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
SECTION 9.16. Confidentiality. The Administrative Agent, the
Issuing Bank and each of the Lenders agrees to keep confidential (and to use its
best efforts to cause its respective agents and representatives to keep
confidential) the Information (as defined below) and all copies thereof,
extracts therefrom and analyses or other materials based thereon, except that
the Administrative Agent, the Issuing Bank or any Lender shall be permitted to
disclose Information (a) to such of its respective officers, directors,
employees, agents and representatives as need to know such Information, (b) to
the extent requested by any regulatory authority, (c) to the extent otherwise
required by applicable laws and regulations or by any subpoena or similar legal
process, (d) in connection with any suit, action or proceeding relating to the
enforcement of its rights hereunder or under the other Loan Documents, (e) to
any other party to this Agreement or (f) to the extent such Information (i)
becomes publicly available other than as a result of a breach of this Agreement
or (ii) becomes available to the Administrative Agent, the Issuing Bank or any
Lender on a nonconfidential basis from a source other than the Borrower or
Holdings. For the purposes of this Section, "Information" shall mean all
financial statements, certificates, reports, agreements and information
(including all analyses, compilations and studies prepared by the Administrative
Agent, the Issuing Bank or any Lender based on any of the foregoing) that are
received from the
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Borrower or Holdings and related to the Borrower or Holdings, any shareholder of
the Borrower or Holdings or any employee, customer or supplier of the Borrower
or Holdings, other than any of the foregoing that were available to the
Administrative Agent, the Issuing Bank or any Lender on a nonconfidential basis
prior to its disclosure thereto by the Borrower or Holdings, and which are in
the case of Information provided after the date hereof, clearly identified at
the time of delivery as confidential. The provisions of this Section 9.16 shall
remain operative and in full force and effect regardless of the expiration and
term of this Agreement.
SECTION 9.17. Defaulting Lender. If any Lender shall refuse to
make any Loan required to be made by it hereunder or to fund its participation
in any L/C Disbursement or Swingline Loan hereunder, or shall notify the
Borrower or the Administrative Agent in writing that it does not intend to make
any such Loan or fund any such participation, in either case as a result of any
takeover of such Lender by any regulatory authority or agency (any such Lender,
a "Defaulting Lender"), then, unless and until such Defaulting Lender retracts
in writing any such notice and cures all defaults on its part in respect of the
funding of its Pro Rata Percentage of all outstanding Loans, L/C Disbursements
and Swingline Loans, (a) any of the Borrower, the Administrative Agent, the
Issuing Bank and the Swingline Lender may require such Defaulting Lender to
transfer and assign all of its interests, rights and obligations under this
Agreement to an assignee in the same manner and effect as provided in Section
2.18(a), the provisions of which shall apply, mutatis mutandis, to any such
assignment, (b) such Defaulting Lender shall not be entitled to exercise any
right of setoff under Section 9.06 and (c) to the maximum extent permitted by
applicable law, such Defaulting Lender shall be deemed not to be a "Lender", the
Revolving Credit Commitment of such Defaulting Lender shall be deemed not to be
in effect and such Defaulting Lender's Revolving Credit Exposure shall be deemed
not to exist, in each case solely for purposes of the definition of the term
"Required Lenders" and determining whether any waiver, amendment or modification
has been approved by the requisite Lenders in accordance with Section 9.08 or
any other applicable provision of the Loan Documents. In no event shall the
provisions of this Section be construed to release any Defaulting Lender from
its obligations hereunder to any other party hereto, including its obligations
to make Loans and participate in Letters of Credit and Swingline Loans, and such
provisions shall not prejudice any claims, or be construed to waive any rights,
including any rights to bring legal proceedings against such Defaulting Lender,
which the Administrative Agent, any Lender, the Issuing Bank or any Loan Party
may
-46-
have against such Defaulting Lender as a result of any failure by such
Defaulting Lender to honor its obligations under this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
ETHAN XXXXX INC.,
by /s/ X. Xxxxxx Kathwari
------------------------------
Name: X. Xxxxxx Kathwari
Title: Chairman, CEO & President
ETHAN XXXXX INTERIORS INC.,
by /s/ Xxxxxxx Xxxxx
------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President & Treasurer
THE CHASE MANHATTAN BANK, individually
and as Administrative Agent and Swingline
Lender,
by /s/ Xxxxxxxx X. Xxxx
------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Vice President
FLEET BANK, N.A., individually and as
Co-Documentation Agent,
by /s/ Xxxxxxx X. Walk
------------------------------
Name: Xxxxxxx X. Walk
Title: Senior Vice President
WACHOVIA BANK, N.A., individually and as
Co-Documentation Agent,
by /s/ Xxxx X. Xxxxxx
------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK,
by /s/ Sovonna L. Day
------------------------------
Name: Sovonna L. Day
Title: Vice President
-47-
BANK OF NEW YORK,
by /s/ Xxxxxxx Xxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Assistant Vice President
SUNTRUST BANK, ATLANTA
by /s/ W. Xxxxx Xxxxxx
------------------------------
Name: W. Xxxxx Xxxxxx
Title: Vice President
-48-
EXECUTION COPY
GUARANTEE AGREEMENT dated as of August 25,
1999, among ETHAN XXXXX INTERIORS INC., a Delaware
corporation ("Holdings"), each of the subsidiaries of
ETHAN XXXXX INC., a Delaware corporation (the
"Borrower"), listed on Schedule I hereto
(individually, a "Subsidiary Guarantor" and
collectively, the "Subsidiary Guarantors"; the
Subsidiary Guarantors together with Holdings are
referred to individually as a "Guarantor" and
collectively as the "Guarantors") and THE CHASE
MANHATTAN BANK, as administrative agent (the
"Administrative Agent") for the Lenders (as defined
herein).
Reference is made to the Credit Agreement dated as of August
25, 1999 (as amended, supplemented or modified from time to time, the "Credit
Agreement"), among Holdings, the Borrower, the financial institutions party
thereto, as lenders (the "Lenders"), the Administrative Agent and the
CoDocumentation Agents. Capitalized terms used but not defined herein shall have
the meanings assigned to such terms in the Credit Agreement.
The Lenders have agreed to extend credit to, and the Issuing
Bank has agreed to issue Letters of Credit for the account of, the Borrower
pursuant to, and subject to the terms specified in, the Credit Agreement. The
obligations of the Lenders to extend credit and of the Issuing Bank to issue
Letters of Credit under the Credit Agreement are conditioned on, among other
things, the execution and delivery by the Guarantors of a guarantee agreement in
the form hereof. As the owner of all the issued and outstanding capital stock of
the Borrower, Holdings acknowledges that it will, and as Subsidiaries, the
Subsidiary Guarantors acknowledge that they will, derive substantial benefits
from the extension of credit to the Borrower under the Credit Agreement. As
consideration therefor and in order to induce the Lenders to continue to extend
credit and the Issuing Bank to issue Letters of Credit under the Credit
Agreement, the Guarantors are willing to execute and deliver this Agreement.
Accordingly, the parties hereto agree as follows:
SECTION 1. Each of the Guarantors unconditionally guarantees,
jointly with the other Guarantors and severally, as a primary obligor and not
merely as a surety, (a) the due and punctual payment by the Borrower of (i) the
principal of and interest (including interest accruing during the pendency of
any bankruptcy, insolvency, receivership or other similar proceeding, regardless
of whether allowed or allowable in such proceeding) on the Loans, when and as
due, whether at maturity, by acceleration, upon one or more dates set for
prepayment or otherwise, (ii) each payment required to be made by the Borrower
under the Credit Agreement in respect of any Letter or Letters of Credit, when
and as due, including payments in respect of reimbursement of disbursements,
interest thereon and obligations to provide cash collateral, and (iii) all other
monetary obligations of the Borrower to the Lenders, the Issuing Bank, the
Administrative Agent and the Co-Documentation Agents under the Credit Agreement
and the other Loan Documents to which the Borrower is or is to be a party, (b)
the due and punctual performance of all other obligations of the Borrower under
the Credit Agreement and the other Loan Documents, (c) the due and punctual
payment and performance of all obligations of the Borrower under each Rate
Protection Agreement entered into with any counterparty that was a Lender at the
time such Rate Protection Agreement was entered into and (d) the due and
punctual payment and performance of all obligations of each of Holdings and the
other Subsidiaries, in the case of any Subsidiary Guarantor, or of each
Subsidiary, in the case of Holdings, under the Loan Documents to which it is or
is to be a party (all the foregoing obligations being collectively called the
"Obligations"). Each of the Guarantors further agrees that the Obligations may
be extended or renewed, in whole or in part, without notice to or further assent
from it, and that it will remain bound upon its guarantee notwithstanding any
extension or renewal of any Obligation.
SECTION 2. Each of the Guarantors waives presentment to,
demand of payment from and protest to Holdings, the Borrower or any Subsidiary
of any of the Obligations, and also waives notice of acceptance of its guarantee
and notice of protest for nonpayment. The obligations of each Guarantor here
under shall not be affected by (a) the failure of the Administrative Agent, the
Issuing Bank or any Lender to assert any claim or demand or to enforce any right
or remedy against Holdings, the Borrower or any Subsidiary under the provisions
of any Loan Document or otherwise; (b) any rescission, waiver, amendment or
modification of, or any release from any of the terms or provisions of, any Loan
Document, any guarantee or any other agreement, including with respect to any
other Guarantor under this Agreement; or (c) the failure of the Administrative
Agent, the Issuing Bank or any Lender to exercise any right or remedy against
any other Guarantor or guarantor of the Obligations.
1
SECTION 3. Each of the Guarantors further agrees that its
guarantee hereunder consti tutes a guarantee of payment when due and not of
collection, and waives any right to require that any resort be had by the
Administrative Agent, the Issuing Bank or any Lender to any security held for
payment of the Obligations or to any balance of any deposit account or credit on
the books of the Administrative Agent, the Issuing Bank or any Lender in favor
of the Borrower or any other person.
SECTION 4. The obligations of each Guarantor hereunder shall
not be subject to any reduction, limitation, impairment or termination for any
reason, including any claim of waiver, release, surrender, alteration or
compromise, and shall not be subject to any defense or setoff, counterclaim,
recoup ment or termination whatsoever by reason of the invalidity, illegality or
unenforceability of the Obligations or otherwise. Without limiting the
generality of the foregoing, the obligations of each Guarantor hereunder shall
not be discharged or impaired or otherwise affected by the failure of the
Administrative Agent, the Issuing Bank or any Lender to assert any claim or
demand or to enforce any remedy under any Loan Document, any guarantee or any
other agreement, by any waiver or modification of any thereof, by any default,
failure or delay, willful or otherwise, in the performance of the Obligations,
or by any other act or omission which may or might in any manner or to any
extent vary the risk of any Guarantor or otherwise operate as a discharge of any
Guarantor as a matter of law or equity (other than the indefeasible payment in
full of all the Obligations).
SECTION 5. Each of the Guarantors waives any defense based on
or arising out of any defense of the Borrower or the unenforceability of the
Obligations or any part thereof from any cause, or the cessation from any cause
of the liability of the Borrower, other than the final and indefeasible payment
in full in cash of the Obligations. The Administrative Agent may, at its
election, compromise or adjust any part of the Obligations, make any other
accommodation with the Borrower or any other guarantor or exercise any other
right or remedy available to it against the Borrower or any other guarantor,
without affecting or impairing in any way the liability of any Guarantor
hereunder except to the extent the Obligations have been fully, finally and
indefeasibly paid in cash. Pursuant to applicable law, each of the Guarantors
waives any defense arising out of any such election even though such election
operates pursuant to applicable law to impair or to extinguish any right of
reimbursement or subrogration or other right or remedy of such Guarantor against
the Borrower or any other Guarantor or guarantor, as the case may be.
SECTION 6. Each of the Guarantors further agrees that its
guarantee shall continue to be effective or be reinstated, as the case may be,
if at any time payment, or any part thereof, of any Obligation is rescinded or
must otherwise be restored by the Administrative Agent, the Issuing Bank or any
Lender upon the bankruptcy or reorganization of the Borrower, any other
Guarantor or otherwise.
SECTION 7. In furtherance of the foregoing and not in
limitation of any other right which the Administrative Agent, the Issuing Bank
or any Lender has at law or in equity against any Guarantor by virtue hereof,
upon the failure of Holdings, the Borrower or any Subsidiary to pay any
Obligation when and as the same shall become due, whether at maturity, by
acceleration, after notice of pre payment or otherwise, each of the Guarantors
hereby promises to and will, upon receipt of written demand by the
Administrative Agent, forthwith pay, or cause to be paid, to the Administrative
Agent for distribution to the Lenders and the Issuing Bank, if and as
appropriate, in cash the amount of such unpaid Obligation, and thereupon each of
the Administrative Agent, the Issuing Bank and any Lender that shall have
received any part of such payment shall, in a reasonable manner, assign the
amount of the Obligations owed to it and paid by such Guarantor pursuant to this
guarantee to such Guarantor, such assignment to be pro tanto to the extent to
which the Obligations in question were discharged by such Guarantor, or make
such other disposition thereof as such Guarantor shall direct (all without
recourse to the Administrative Agent, the Issuing Bank or such Lender and
without any representation or warranty by the Administrative Agent, the Issuing
Bank or such Lender); provided, however, that until the indefeasible payment in
full of all the Obligations, none of the Guarantors shall have any right by way
of subrogation or otherwise as a result of the payment of any sums hereunder.
SECTION 8. Each of the Guarantors jointly and severally
represents and warrants that all representations and warranties contained in the
Credit Agreement which relate to the Guarantors are true and correct.
SECTION 9. The guarantees made hereunder shall survive and be
in full force and effect so long as any Obligation is outstanding and has not
been indefeasibly paid and so long as any of the Lenders have any further
commitment to extend credit or the Issuing Bank has any further obligation to
issue Letters of Credit under the Credit Agreement or any Letter of Credit is
outstanding, and shall be rein stated to the extent provided in Section 6. Each
Subsidiary Guarantor shall be released from its guarantee
2
hereunder in the event that (a) it ceases to be a Subsidiary or (b) all the
capital stock of such Subsidiary Guarantor shall be sold, transferred or
otherwise disposed of, in accordance with the terms of the Credit Agreement, by
the Borrower to a person that is not an Affiliate of Holdings or the Borrower.
SECTION 10. This Agreement and the terms, covenants and
conditions hereof shall be binding upon each Guarantor and its successors and
shall inure to the benefit of the Administrative Agent, the Collateral Agent,
the Issuing Bank and the Lenders and their respective successors and assigns.
None of the Guarantors shall be permitted to assign or transfer any of its
rights or obligations under this Agreement, except as expressly contemplated by
this Agreement or the Credit Agreement.
SECTION 11. No failure on the part of the Administrative Agent
to exercise, and no delay in exercising, any right, power or remedy hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right, power or remedy by the Administrative Agent, the Issuing Bank or
any Lender preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. All remedies hereunder and under the other Loan
Documents are cumulative and are not exclusive of any other remedies provided by
law. Except as provided in the Credit Agreement, none of the Administrative
Agent, the Issuing Bank or the Lenders shall be deemed to have waived any rights
hereunder or under any other agreement or instrument unless such waiver shall be
in writing and signed by such parties.
SECTION 12. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 13. All communications and notices hereunder shall be
in writing and given as provided in Section 9.01 of the Credit Agreement. All
communications and notices hereunder to each Subsidiary Guarantor shall be given
to it at its address set forth in Schedule I hereto with a copy to the Borrower.
SECTION 14. In case any one or more of the provisions
contained in this Agreement should be held invalid, illegal or unenforceable in
any respect with respect to any Guarantor, no party hereto shall be required to
comply with such provision with respect to such Guarantor for so long as such
provision is held to be invalid, illegal or unenforceable and the validity,
legality and enforceability of the remaining provisions contained herein, and of
such provision with respect to any other Guarantor, shall not in any way be
affected or impaired. The parties shall endeavor in good-faith negotiations to
replace any invalid, illegal or unenforceable provisions with valid provisions,
the economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 15. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument; provided that this
Agreement shall be construed as a separate agreement with respect to each
Guarantor and may be amended, modified, supplemented, waived or released with
respect to any Guarantor without the approval of any other Guarantor and without
affecting the obligations of any other Guarantor hereunder. This Agreement shall
be effective with respect to any Guarantor when a counterpart which bears the
signature of such Guarantor shall have been delivered to the Administrative
Agent.
SECTION 16. Upon execution and delivery by the Administrative
Agent and a Subsidiary of an instrument in the form of Annex 1 attached hereto,
such Subsidiary shall become a Subsidiary Guarantor hereunder with the same
force and effect as if originally named as a Subsidiary Guarantor herein. The
execution and delivery of any such instrument shall not require the consent of
any
3
Guarantor hereunder. The rights and obligations of each Guarantor hereunder
shall remain in full force and effect notwithstanding the addition of any new
Subsidiary Guarantor as a party to this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
ETHAN XXXXX INTERIORS INC.,
by
----------------------------
Name:
Title:
EACH SUBSIDIARY GUARANTOR LISTED ON
SCHEDULE I HERETO,
by
----------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, as
Administrative Agent,
by
----------------------------
Name:
Title:
4
SCHEDULE I
to the Guarantee Agreement
SUBSIDIARY GUARANTORS
5
ANNEX 1
to the Guarantee Agreement
SUPPLEMENT NO. dated as of _______ , 199_, to the
Guarantee Agreement dated as of August 25, 1999 (as amended
and supplemented through the date hereof, the "Guarantee
Agreement"), among ETHAN XXXXX INTERIORS INC., a Delaware
corporation ("Holdings"), certain subsidiaries of Ethan Xxxxx
Inc. (collectively, the "Subsidiary Guarantors", and together
with Holdings, the "Guarantors") and THE CHASE MANHATTAN BANK,
as administrative agent (the "Administrative Agent") for the
Lenders, as defined therein.
A. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Guarantee Agreement.
B. Holdings and the Subsidiary Guarantors have entered into the
Guarantee Agreement in order to induce the Lenders to extend credit to, and to
induce the Issuing Bank to issue Letters of Credit for the account of, the
Borrower pursuant to the Credit Agreement. The Guarantee Agreement provides that
additional Subsidiaries may become Subsidiary Guarantors under the Guarantee
Agreement by execution and delivery of an instrument in the form of this
Supplement. Pursuant to the Credit Agreement, the under signed Subsidiary (the
"New Subsidiary Guarantor") is required to become a Subsidiary Guarantor under
the Guarantee Agreement. The New Subsidiary Guarantor desires to become a
Subsidiary Guarantor and Guarantor under the Guarantee Agreement in order to
induce the Lenders to continue to extend credit and the Issuing Bank to issue
Letters of Credit under the Credit Agreement and as consideration therefor.
Accordingly, the Administrative Agent and the New Subsidiary Guarantor
agree as follows:
SECTION 1. In accordance with the Guarantee Agreement, the New
Subsidiary Guarantor by its signature hereto shall become a Subsidiary Guarantor
and Guarantor under the Guarantee Agreement with the same force and effect as if
originally named therein as a Subsidiary Guarantor and Guarantor and the New
Subsidiary Guarantor hereby agrees to all the terms and provisions of the
Guarantee Agreement applicable to it as a Subsidiary Guarantor and Guarantor
thereunder. Each reference to a "Guarantor" or a "Subsidiary Guarantor" in the
Guarantee Agreement shall be deemed to include the New Subsidiary Guarantor. The
Guarantee Agreement is hereby incorporated herein by reference.
SECTION 2. This Supplement shall become effective when the
Administrative Agent shall have received a counterpart of this Supplement
executed on behalf of the New Subsidiary Guarantor.
SECTION 3. The New Subsidiary Guarantor hereby represents and warrants
that (i) this Supplement has been duly authorized, executed and delivered by the
New Subsidiary Guarantor and con stitutes a legal, valid and binding obligation
of the New Subsidiary Guarantor, enforceable against it in accordance with its
terms, and (ii) set forth under its signature hereto is its address for purposes
of notices under the Guarantee Agreement, which information supplements Schedule
I to the Guarantee Agreement and shall be deemed a part thereof for all purposes
of the Guarantee Agreement.
SECTION 4. Except as expressly supplemented hereby, the Guarantee
Agreement shall remain in full force and effect in accordance with its terms.
SECTION 5. THIS SUPPLEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remain ing provisions contained
herein and in the Guarantee Agreement shall not in any way be affected or
impaired. The parties hereto shall endeavor in good-faith negotiations to
replace any invalid, illegal or unenforceable provisions herein with valid
provisions, the economic effect of which comes as close as possible to that of
the invalid, illegal or unenforceable provisions.
SECTION 7. This Supplement may be executed in two or more counterparts,
each of which shall constitute an original, but all of which, when taken
together, shall constitute but one instrument.
2
SECTION 8. The New Subsidiary Guarantor agrees to reimburse the
Administrative Agent for its reasonable out-of-pocket expenses in connection
with this Supplement, including the reasonable fees and expenses of counsel for
the Administrative Agent.
IN WITNESS WHEREOF, the New Subsidiary Guarantor and the Administrative
Agent have duly executed this Supplement to the Guarantee Agreement as of the
day and year first above written.
[NAME OF NEW SUBSIDIARY GUARANTOR],
by
Title
Address--------------------------
--------------------------
--------------------------
THE CHASE MANHATTAN BANK, as
Administrative Agent,
by
Title
EXECUTION COPY
INDEMNITY, SUBROGATION AND CONTRIBUTION
AGREEMENT dated as of August 25, 1999, among ETHAN
XXXXX INC., a Delaware corporation, (the "Borrower"),
each Subsidiary of the Borrower party hereto
(collectively, the "Subsidiary Guarantors"), and THE
CHASE MANHATTAN BANK, a New York banking corporation
("Chase"), as administrative agent (in such capacity,
the "Administrative Agent") for the Lenders (as
defined herein).
Reference is made to the Credit Agreement dated as of August
25, 1999 (as amended, supplemented or modified from time to time, the "Credit
Agreement"), among the Borrower, Ethan Xxxxx Interiors Inc. ("Holdings"), the
financial institutions from time to time party thereto, as lenders (the
"Lenders"), the Administrative Agent and the Co-Documentation Agents.
Capitalized terms used and not defined herein shall have the meanings assigned
in the Credit Agreement.
The Lenders have agreed to extend credit to, and the Issuing
Bank has agreed to issue Letters of Credit for the account of, the Borrower,
pursuant to, and upon the terms and subject to the con ditions specified in, the
Credit Agreement. The Subsidiary Guarantors have guaranteed the obligations of
the Borrower pursuant to the Guarantee Agreement and have secured such
obligations pursuant to the Security Documents. The obligations of the Lenders
to extend credit and of the Issuing Bank to issue Letters of Credit under the
Credit Agreement are conditioned upon, among other things, the execution and
delivery by the Borrower and the Subsidiary Guarantors of an indemnity,
subrogation and contribution agreement in the form hereof.
Accordingly, the Borrower, each Subsidiary Guarantor and the
Administrative Agent agree as follows:
SECTION 1. Indemnity and Subrogation. In addition to all such
rights of indemnity and subrogation as the Subsidiary Guarantors may have under
applicable law (but subject to Section 3), the Borrower agrees that in the event
a payment shall be made by any Subsidiary Guarantor under the Guarantee
Agreement, the Borrower shall indemnify such Subsidiary Guarantor for the full
amount of such payment and such Subsidiary Guarantor shall be subrogated to the
rights of the Person to whom such payment shall have been made to the extent of
such payment.
SECTION 2. Contribution and Subrogation. Each Subsidiary
Guarantor (a "Contributing Guarantor") agrees (subject to Section 3) that, in
the event a payment shall be made by any other Subsidiary Guarantor under the
Guarantee Agreement and such other Subsidiary Guarantor (the "Claiming
Guarantor") shall not have been fully indemnified by the Borrower as provided in
Section 1, the Contributing Guarantor shall indemnify the Claiming Guarantor in
an amount equal to the amount of such payment multiplied by a fraction of which
the numerator shall be the net worth of the Contributing Guarantor on the date
hereof (or, in the case of any Subsidiary Guarantor becoming a party hereto
pursuant to Section 14, the date of the Supplement hereto executed and delivered
by such Subsidiary Guarantor) and the denominator shall be the aggregate net
worth of all the Subsidiary Guarantors on the date hereof (or the date of
execution and delivery of such Supplement). Any Contributing Guarantor making
any payment to a Claiming Guarantor pursuant to this Section 2 shall be
subrogated to the rights of such Claiming Guarantor under Section 1 to the
extent of such payment.
SECTION 3. Subrogation. Notwithstanding any provision of this
Agreement to the con trary, all rights of the Subsidiary Guarantors under
Sections 1 and 2 and all other rights of indemnity, contribution or subrogation
under applicable law or otherwise shall be fully subordinated to the
indefeasible payment in full of the Obligations. No failure on the part of the
Borrower or any Subsidiary Guarantor to make the payments required by Sections 1
and 2 (or any other payments required under applicable law or otherwise) shall
in any respect limit the obligations and liabilities of any Subsidiary Guarantor
with respect to any Guarantee, and each Subsidiary Guarantor shall remain liable
for the full amount of the obligations of such Guarantor under each such
Guarantee.
SECTION 4. Termination. This Agreement shall terminate when
all Obligations have been indefeasibly paid in full, no Letters of Credit are
outstanding and the Lenders and the Issuing Bank have no further commitments
under the Credit Agreement.
1
SECTION 5. Continued Effectiveness. This Agreement shall
continue to be effective or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any Obligation is rescinded or must otherwise
be restored by any Lender or Issuing Bank or any Subsidiary Guarantor upon the
bankruptcy or reorganization of the Borrower, any Subsidiary Guarantor or
otherwise.
SECTION 6. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
SECTION 7. Waivers; Amendment. Except for the operation of
Section 14 of this Agreement, neither this Agreement nor any provision hereof
may be waived, amended or modified except pursuant to a written agreement
entered into between the Subsidiary Guarantors and the Administrative Agent,
with the prior written consent of the Required Lenders.
SECTION 8. Notices. All communications and notice hereunder
shall be in writing and given as provided in the Credit Agreement, except that
to any Subsidiary Guarantor, communication and notice shall be directed to the
address set forth in or pursuant to the Guarantee Agreement.
SECTION 9. Binding Agreement; Assignments. This Agreement
shall become effective as to each of the Borrower or any Subsidiary Guarantor
when a counterpart hereof executed on behalf of the Borrower or such Subsidiary
Guarantor shall have been delivered to the Administrative Agent and a
counterpart hereof shall have been executed on behalf of the Administrative
Agent, and thereafter shall be binding upon each of the Borrower or such
Subsidiary Guarantor and the Administrative Agent and their respective
successors and permitted assigns, and shall inure to the benefit of such
Subsidiary Guarantor and the Lenders and their respective successors and
assigns, except that no Subsidiary Guarantor shall have the right to assign its
rights or obligations hereunder or any interest herein (and any such attempted
assignment shall be void), except as expressly contemplated by this Agreement or
the other Loan Documents. Notwithstanding the foregoing, at the time any
Subsidiary Guarantor is released from its obligations under the Guarantee
Agreement in accordance with such Guarantee Agreement and the Credit Agreement,
such Subsidiary Guarantor shall cease to have any rights or obligations under
this Agreement.
SECTION 10. Successors and Assigns. Whenever in this Agreement
any of the parties hereto is referred to, such reference shall be deemed to
include the successors and permitted assigns of such party, and all covenants,
promises and agreements by or on behalf of each of the Borrower or any
Subsidiary Guarantor that are contained in this Agreement shall bind and inure
to the benefit of their respective successors and permitted assigns.
SECTION 11. Survival of Agreement; Severability. (a) All
covenants, agreements and representations and warranties made by the Borrower
and each Subsidiary Guarantor herein and in the certificates or other
instruments prepared or delivered in connection with this Agreement shall be con
sidered to have been relied upon by the Lenders and each Subsidiary Guarantor
and shall survive the making by the Lenders of the Loans and the issuance of the
Letters of Credit by the Issuing Bank, and shall continue in full force and
effect as long as any Obligation is outstanding and unpaid and as long as the
Commitments have not been terminated.
(b) In the event any one or more of the provisions contained
in this Agreement should be held invalid, illegal or unenforceable in any
respect, no party hereto shall be required to comply with such provision for so
long as such provision is held to be invalid, illegal or unenforceable, but the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby (it being understood
that the invalidity of a particular provision in a particular jurisdiction shall
not in and of itself affect the validity of such provision in any other
jurisdiction). The parties shall endeavor in good-faith negotiations to replace
the invalid, illegal or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 12. Counterparts. This Agreement may be executed in
two or more counter parts, each of which shall constitute an original, but all
of which, when taken together, shall constitute but one instrument.
SECTION 13. Rules of Interpretation. The rules of
interpretation specified in Section 1.02 of the Credit Agreement shall be
applicable to this Agreement.
2
SECTION 14. Additional Guarantors. Pursuant to the Credit
Agreement, certain Subsidiaries of the Borrower that were not in existence or
not Subsidiaries on the date of the Credit Agreement are required to enter into
the Guarantee Agreement as Guarantors upon becoming Subsidiaries. Upon execution
and delivery, after the date hereof, by the Administrative Agent and such a
Subsidiary of an instrument in the form of Annex 1 to this Agreement, such
Subsidiary shall become a Subsidiary Guarantor hereunder with the same force and
effect as if originally named as a Subsidiary Guarantor hereunder. The execution
and delivery of any instrument adding an additional Subsidiary Guarantor as a
party
3
to this Agreement shall not require the consent of the Borrower or any
Subsidiary Guarantor hereunder. The rights and obligations of the Borrower and
each Subsidiary Guarantor as a party to this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized offers as of the date first
appearing above.
ETHAN XXXXX INC.,
by
----------------------------
Name:
Title:
EACH SUBSIDIARY GUARANTOR LISTED ON
SCHEDULE I HERETO,
by
----------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, as
Administrative Agent,
by
----------------------------
Name:
Title:
4
ANNEX I
to the Indemnity, Subrogation and
Contribution Agreement
SUPPLEMENT NO. dated as of , 199_, to the
Indemnity, Subrogation and Contribution Agreement
dated as of August 25, 1999 (as amended and
supplemented through the date hereof, the "Indemnity,
Subrogation and Contribution Agreement"), among ETHAN
XXXXX INC., a Delaware corporation (the "Borrower"),
certain subsidiaries of the Borrower (the "Subsidiary
Guarantors") and THE CHASE MANHATTAN BANK, as
administrative agent (the "Administrative Agent").
A. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Guarantee Agreement.
B. The Borrower and the Subsidiary Guarantors have entered into the
Indemnity, Subrogation and Contribution Agreement in order to induce the Lenders
to extend credit to, and to induce the Issuing Bank to issue Letters of Credit
for the account of, the Borrower pursuant to the Credit Agreement. The
Indemnity, Subrogation and Contribution Agreement provides that additional
Subsidiaries may become Subsidiary Guarantors under the Indemnity, Subrogation
and Contribution Agreement by execution and delivery of an instrument in the
form of this Supplement. Pursuant to the Credit Agreement, the under signed
Subsidiary (the "New Subsidiary Guarantor") is required to become a Subsidiary
Guarantor under the Indemnity, Subrogation and Contribution Agreement. The New
Subsidiary Guarantor desires to become a Subsidiary Guarantor and Guarantor
under the Indemnity, Subrogation and Contribution Agreement in order to induce
the Lenders to continue to extend credit and the Issuing Bank to issue Letters
of Credit under the Credit Agreement and as consideration therefor.
Accordingly, the Administrative Agent and the New Subsidiary Guarantor
agree as follows:
SECTION 1. In accordance with the Indemnity, Subrogation and
Contribution Agreement, the New Subsidiary Guarantor by its signature hereto
shall become a Subsidiary Guarantor and Guarantor under the Indemnity,
Subrogation and Contribution Agreement with the same force and effect as if
originally named therein as a Subsidiary Guarantor and Guarantor and the New
Subsidiary Guarantor hereby agrees to all the terms and provisions of the
Indemnity, Subrogation and Contribution Agreement applicable to it as a
Subsidiary Guarantor and Guarantor thereunder. Each reference to a "Guarantor"
or a "Subsidiary Guarantor" in the Indemnity, Subrogation and Contribution
Agreement shall be deemed to include the New Subsidiary Guarantor. The
Indemnity, Subrogation and Contribution Agreement is hereby incorporated herein
by reference.
SECTION 2. This Supplement shall become effective when the
Administrative Agent shall have received a counterpart of this Supplement
executed on behalf of the New Subsidiary Guarantor.
SECTION 3. The New Subsidiary Guarantor hereby represents and warrants
that (i) this Supplement has been duly authorized, executed and delivered by the
New Subsidiary Guarantor and con stitutes a legal, valid and binding obligation
of the New Subsidiary Guarantor, enforceable against it in accordance with its
terms, and (ii) set forth under its signature hereto is its address for purposes
of notices under the Indemnity, Subrogation and Contribution Agreement, which
information supplements Schedule I to the Indemnity, Subrogation and
Contribution Agreement and shall be deemed a part thereof for all purposes of
the Indemnity, Subrogation and Contribution Agreement.
SECTION 4. Except as expressly supplemented hereby, the Indemnity,
Subrogation and Contribution Agreement shall remain in full force and effect in
accordance with its terms.
SECTION 5. THIS SUPPLEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remain ing provisions contained
herein and in the Indemnity, Subrogation and Contribution Agreement shall not in
any way be affected or impaired. The parties hereto shall endeavor in good-faith
negotiations to replace any invalid, illegal or unenforceable provisions herein
with valid provisions, the economic effect of which comes as close as possible
to that of the invalid, illegal or unenforceable provisions.
2
SECTION 7. This Supplement may be executed in two or more counterparts,
each of which shall constitute an original, but all of which, when taken
together, shall constitute but one instrument.
SECTION 8. The New Subsidiary Guarantor agrees to reimburse the
Administrative Agent for its reasonable out-of-pocket expenses in connection
with this Supplement, including the reasonable fees and expenses of counsel for
the Administrative Agent.
IN WITNESS WHEREOF, the New Subsidiary Guarantor and the Administrative
Agent have duly executed this Supplement to the Indemnity, Subrogation and
Contribution Agreement as of the day and year first above written.
[NAME OF NEW SUBSIDIARY GUARANTOR],
by
Title
Address-------------------------
-------------------------
-------------------------
THE CHASE MANHATTAN BANK, as
Administrative Agent,
by
Title
