Execution Copy
CREDIT AGREEMENT
This Credit Agreement (the "Agreement"), dated as of December 1, 2006, is
among each of the Banks (as defined below), LaSalle Bank Midwest National
Association, as Agent (as defined below), and Xxxxxxx Industries, Inc., a
Delaware corporation, as Borrower (as defined below).
In consideration of the mutual covenants, conditions and provisions as
hereinafter set forth, the parties hereto agree as follows:
1. DEFINITIONS.
1.1 Definitions. For purposes of this Agreement, the following capitalized
terms will have the following meanings (such definitions to be equally
applicable to the singular and plural forms thereof):
"Acquired Debt" means any Indebtedness of any Person existing at the time
such Person became a Subsidiary or assumed by the Borrower or a Subsidiary of
the Borrower pursuant to an Acquisition permitted hereunder (and not created or
incurred in connection with or in anticipation of such Acquisition).
"Acquisition" means any transaction or series of related transactions for
the purpose of or resulting, directly or indirectly, in (a) the acquisition of
all or substantially all of the assets of a Person, or of all or substantially
all of any business or division of a Person, (b) the acquisition of' in excess
of 50% of the Capital Stock of any Person, or otherwise causing any Person to
become a Subsidiary, or (c) a merger or consolidation or any other combination
with another Person (other than a Person that is a Subsidiary).
"Advances" means the Loans and the Letter of Credit Advances.
"Advance Date" means a Business Day on which Borrower has requested in
accordance with this Agreement that an Advance be made hereunder.
"Affiliate" when used with respect to any person means any other person
which, directly or indirectly, controls or is controlled by or is under common
control with such person. For purposes of this definition "control" (including
the correlative meanings of the terms "controlled by" and "under common control
with"), with respect to any person, means possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of
such person, whether through the ownership of voting securities or by contract
or otherwise.
"Agent" means, LaSalle Bank Midwest National Association, a national
banking association, when acting in its capacity as contractual representative
of the Banks, and not in its individual capacity as a Bank, and any permitted
successor(s) thereto, when so acting.
"Agent's Address" means 000 Xxxxxxxx Xxxxxx, Xxxx Xxxxx, Xxxxxxxx 00000,
Attention: Xxxxxx X. Xxxx, or at such other address as Agent may hereafter
specify to Borrower in writing.
"Agent's Counsel" means Xxxxxxxxx Xxxxxx PLLC.
"Aggregate Commitment Amount" means the aggregate amount of all the
Commitments of the Banks.
"Alternate Base Rate" means the higher of (i) the Prime Rate or (ii) the
Federal Funds Rate plus 0.50% per annum.
"Alternative Base Rate Advance" means Advances which bear interest
calculated by reference to the Alternative Base Rate.
"Applicable Lending Office" means, with respect to any Advance made by any
Bank or with respect to such Bank's Commitment, the office or branch of such
Bank or of any Affiliate of such Bank located at the address specified as the
applicable lending office or branch for such Bank set forth next to the name of
such Bank in the signature pages hereof or any other office or Affiliate of such
Bank or of any Affiliate of such Bank hereafter selected and notified to the
Borrower and the Agent by such Bank.
"Applicable Margin" means, with respect to Eurocurrency Advances at any
time, the percentage rate per annum which is applicable at such time as set
forth in the Pricing Schedule.
"Bank" means each and, when used in the plural, includes all of the banking
institutions and other lenders which have signed (or which may hereafter become
parties to) this Agreement (including LaSalle Bank Midwest National Association,
when acting as a Bank and not as Agent) and their respective successor(s) and
permitted assign(s).
"Borrower's Address" means 0000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxxxx 00000, Attention: Chief Financial Officer, or at such other address as
Borrower may hereafter specify to Agent in writing.
"Borrower" means Xxxxxxx Industries, Inc., a Delaware corporation, and its
permitted successor(s) and assign(s).
"Borrowing Date" means the date on which an Advance is made hereunder.
"Borrowing Notice" is defined in Section 2.2.
"Borrower's Counsel" means Xxxx Xxxxxxxxx, General Counsel to Borrower.
"British Pounds Sterling" or "(pound)" means the lawful currency of the
United Kingdom.
"Business Day" means (i) with respect to any borrowing, payment or rate
selection of Eurocurrency Advances, a day (other than a Saturday or Sunday) on
which banks generally are
2
open in Detroit for the conduct of substantially all of their commercial lending
activities, interbank wire transfers can be made on the Fedwire system and
dealings in deposits in Dollars or the relevant Permitted Currency are carried
out in the relevant interbank market and (ii) for all other purposes, a day
(other than a Saturday or Sunday) on which banks generally are open in Detroit
for the conduct of substantially all of their commercial lending activities and
interbank wire transfers can be made on the Fedwire system.
"Capital Lease" of any Person means any lease which, in accordance with
GAAP, is or should be capitalized on the books of such Person.
"Capital Stock" means (i) in the case of any corporation, all capital stock
and any securities exchangeable for or convertible into capital stock and any
warrants, rights or other options to purchase or otherwise acquire capital stock
or such securities or any other form of equity securities, (ii) in the case of
an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock, (iii) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited) and (iv) any
other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing
Person.
"Capitalization" is the sum of Total Debt and Net Worth.
"Closing Date" means the date of this Agreement.
"Commitment" means, with respect to each Bank, the commitment of each such
Bank to make Line of Credit Loans and to participate in Letter of Credit
Advances and Swingline Loans made through the Agent pursuant to Section 2.1, in
amounts not exceeding the Equivalent in Dollars of the aggregate principal
amount outstanding at any time equal to the respective commitment amount for
each such Bank set forth for such Bank on the signature pages hereto or
otherwise established pursuant to Section 8.13 or 9.2, as such amounts may be
modified from time to time pursuant hereto.
"Consolidated Interest Expense" means interest expense of the Borrower and
its Subsidiaries on a consolidated basis under GAAP, excluding any amortization
of any premium or discount in respect of the issuance of the 2004 Subordinated
Debentures.
"Code" means the Internal Revenue Code of 1986, as amended.
"Consistent Basis" means, in reference to the application of GAAP (as
hereinafter defined), that the accounting principles observed in the current
period are comparable in all material respects to those applied in the preceding
period.
"Defaulting Bank" means any Bank that fails to make available to the Agent
such Bank's Loans required to be made hereunder or shall have not made a payment
required to be made to the Agent hereunder. Once a Bank becomes a Defaulting
Bank, such Bank shall continue as a Defaulting Bank until such time as such
Defaulting Bank makes available to the Agent the
3
amount of such Defaulting Bank's Loans and all other amounts required to be paid
to the Agent pursuant to this Agreement.
"Dollars" and "$" means the lawful money of the United States of America.
"Domestic Subsidiaries" means all Subsidiaries organized under the laws of
any of the states of the United States of America which are engaged in the
manufacturing business in the broadest sense of that term, but excluding Arava
Natural Resources Company, Inc. and its Subsidiaries.
"Documents" means, in upper or lower case form, all "documents" and
"instruments" as such terms are defined in the Uniform Commercial Code as
adopted and in effect in the State of Michigan, in which Borrower now or
hereafter has any right, title or interest.
"EBITDA" means consolidated net earnings of the Borrower and the
Subsidiaries excluding extraordinary gains, plus, to the extent deducted in
determining such net earnings, the sum of income taxes, interest expense,
depreciation and amortization, all determined in accordance with GAAP.
"Effective Rate" means the interest rate in effect for each respective Loan
from time to time when such Loan is not in default, as set forth in Section 2
hereof.
"Environmental Protection Statute" means any federal, state or local law,
statute, or regulation enacted in connection with or relating to the protection
or regulation of the environment, including, but not limited to, those laws,
statutes and regulations regulating, relating to or imposing liability or
standards of conduct concerning the disposal, removal, production, storing,
refining, handling, transferring, processing or transporting of hazardous
materials and any regulations issued or promulgated in connection with such
statutes by any governmental agency or instrumentality, including, without
limitation, the Comprehensive Environmental Response, Compensation and
Liabilities Act, as amended (42 U.S.C. '9601 et seq.) and the Resource
Conservation and Recovery Act of 1976, as amended (42 U.S.C. '6901 et seq.).
"Equivalent" of an amount of one currency (the "first currency")
denominated in another currency (the "second currency"), as of any date of
determination, means the amount of the second currency which could be purchased
with the amount of the first currency at the spot or other relevant rate of
exchange quoted by the Agent at approximately 11:00 a.m. local time on such
date.
"ERISA" means the Employee Retirement Income Security Act of 1974, as the
same may from time to time be amended or supplemented, including any rules or
regulations issued in connection therewith.
"Euro" and/or "(euro)" means the Euro referred to in Council Regulation
(EC) No. 1103/97 dated June 17, 1997 passed by the Council of the European
Union, or, if different, the then
4
lawful currency of the member states of the European Union that participate in
the third stage of Economic and Monetary Union.
"Eurocurrency Advance" means an Advance which, except as otherwise provided
in Section 3.1, bears interest at the applicable Eurocurrency Rate.
"Eurocurrency Base Rate" means, with respect to a Eurocurrency Advance for
the relevant Interest Period, the rate determined by the Agent to be the rate at
which the Agent offers to place deposits in Permitted Currency in which such
Eurocurrency Advance is to be denominated with first-class banks in the London
interbank market at approximately 11:00 a.m. (London time) two Business Days
prior to the first day of such Interest Period, approximately in the amount of
the Agent's relevant Eurocurrency Advance and having a maturity equal to such
Interest Period, plus all other applicable costs, expenses and reserves
(including without limitation the cost of compliance with any existing
requirements of the Bank of England Act of 1998 and/or Bank of England and/or
the Financial Services Authority to place non-interest bearing or special
deposits with the Bank of England and/or pay fees to the Financial Services
Authority in connection with Advances denominated in British Pounds Sterling)
for any Eurocurrency Advance denominated in any Optional Currency.
"Eurocurrency Rate" means, with respect to a Eurocurrency Advance for the
relevant Interest Period, the sum of (i) the quotient of (a) the Eurocurrency
Base Rate applicable to such Interest Period, divided by (b) one, minus the
Reserve Requirement (expressed as a decimal) applicable to such Interest Period,
plus (ii) the Applicable Margin.
"Event of Default" has the meaning set forth in Section 7.1 of this
Agreement.
"FASB" means the Financial Accounting Standards Board.
"Federal Funds Rate" means, for any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day, provided that (i) if the day for which such rate is to
be determined is not a Business Day, the Federal Funds Rate for such day shall
be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (ii) if such rate is not so
published for any day, the Federal Funds Rate for such day shall be the average
rate charged to the Agent on such day on such transactions, as determined by the
Agent.
"FLSA" means the federal Fair Labor Standards Act, as the same may from
time to time be amended or supplemented, including any rules or regulations
issued in connection therewith.
"Fundamental Subsidiaries" are those Subsidiaries identified on Exhibit
6.3.
"GAAP" means generally accepted accounting principles as set forth in the
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements and pronouncements of
the FASB or in such other statements
5
by such other Person as may be approved by a significant segment of the
accounting profession, which are applicable to the circumstances as of the date
of determination and which are applied on a Consistent Basis.
"Governmental Authority" means any nation or government, any state or other
political subdivision thereof, and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
"Guaranties" means, collectively, the guaranties of the Borrower's
obligations under the Loan Documents by each of the Domestic Subsidiaries listed
in Exhibit 1.15(b) to this Agreement and all Domestic Subsidiaries that are
hereafter required to sign Guaranties as provided in Section 5.12 hereof
(individually, a "Guarantor" and, collectively, the "Guarantors").
"Indebtedness" means all items of indebtedness of any Person, direct or
indirect, joint or several, including (without implied limitation):
(a) all obligations of such Person for borrowed money evidenced by bonds,
notes, debentures or similar instruments, all reimbursement and similar
obligations under outstanding letters of credit, banker's acceptances or similar
instruments in respect of drafts or other claims which may be presented or have
been presented and have not yet been paid, and the unpaid purchase price for
goods, property or services acquired by such Person, except for trade accounts
and accrued expenses payable arising in the ordinary course of business which
are not past due within customary payment terms;
(b) All indebtedness guaranteed, directly or indirectly, in any manner, or
endorsed (other than for collection or deposit in the ordinary course of
business), or discounted with recourse by the Person;
(c) All indebtedness in effect guaranteed by the Person, directly or
indirectly, through agreements, contingent or otherwise: (1) to purchase such
indebtedness; or (2) to purchase, sell, or lease (as lessee or lessor) property,
products, materials, or supplies or to purchase or sell services, primarily for
the purpose of enabling the Person to make payment of such indebtedness or to
insure the owner of the indebtedness against loss; or (3) to supply funds to, or
in any other manner invest in, the Person;
(d) All indebtedness secured by (or for which the holder of such
indebtedness has a right, contingent or otherwise, to be secured by), any
mortgage, deed of trust, pledge, lien, security interest, or other charge or
encumbrance upon property owned or acquired by the Person subject thereto,
whether or not the liabilities secured thereby have been assumed by the Person;
(e) the aggregate outstanding amount of all Off Balance Sheet Liabilities,
based on the aggregate outstanding amount as if such transactions were
structured as an on balance sheet financing, whether or not shown as a liability
on a consolidated balance sheet of such Person, determined in a manner
satisfactory to the Agent; and
6
(f) all obligations of such Person as lessee which are capitalized in
accordance with GAAP under any Capital Lease.
"Interest Coverage Ratio" means the sum of EBITDA, less extraordinary cash
and non-cash income of the Borrower and its Subsidiaries, divided by the amount
of Consolidated Interest Expense (including interest arising from any Capital
Leases) for the applicable period, computed as of the end of each fiscal quarter
for the period of four fiscal quarters then ended.
"Interest Period" means, with respect to a Eurocurrency Advance, a period
of one, two or three months commencing on a Business Day selected by the
Borrower pursuant to this Agreement. Such Interest Period shall end on the day
which corresponds numerically to such date one, two or three months thereafter,
provided, however, that if there is no such numerically corresponding day in
such next, second or third succeeding month, such Interest Period shall end on
the last Business Day of such next, second or third succeeding month. If an
Interest Period would otherwise end on a day which is not a Business Day, such
Interest Period shall end on the next succeeding Business Day, provided,
however, that if said next succeeding Business Day falls in a new calendar
month, such Interest Period shall end on the immediately preceding Business Day.
"Joint Venture" means a single-purpose corporation, partnership, limited
liability company, joint venture or other similar legal arrangement (whether
created by contract or conducted through a separate legal entity) now or
hereafter formed by the Borrower or any of its Subsidiaries with another Person
(or such a pre-existing entity in which the Borrower or any of its Subsidiaries
acquires an interest) in order to conduct a common venture or enterprise with
such Person, provided that (a) the Borrower or any of its Subsidiaries owns a
portion of the Capital Stock thereof, but such portion does not exceed 80% of
the total Capital Stock thereof and (b) neither the Borrower nor any of its
Subsidiaries is liable in any manner for any of its Indebtedness or other
obligations or has any Indebtedness with respect thereto.
"Letter of Credit" means any letter of credit issued pursuant to this
Agreement by the Agent, on behalf of the Banks, for the account of the Borrower.
"Letter of Credit Advance" has the meaning set forth in Section 2.2.5 of
this Agreement.
"Lien" means any lien, mortgage, pledge, assignment, security interest,
charge or encumbrance of any kind (including any conditional sale or other title
retention agreement or any lease in the nature thereof) and any agreement to
give any lien, mortgage, pledge, assignment, security interest, charge or other
encumbrance of any kind.
"Line of Credit" means the line of credit established under Section 2.1 of
this Agreement.
"Line of Credit Loans" means any loans made by the Banks pursuant to
Section 2.1 of this Agreement.
"Line of Credit Maturity" means the earlier of the date five years after
the Closing Date or the date the Commitments are terminated.
7
"Line of Credit Notes" has the meaning set forth in Section 2.3 of this
Agreement.
"Loans" means the Line of Credit Loans and the Swingline Loans.
"Loan Documents" means this Agreement, the Notes, the Guaranties,
applications for Letters of Credit, the Subordinated Debt Documents and all
other documents, instruments or certificates executed and delivered to the Banks
in connection with this Agreement and the Loans.
"Margin Stock" means "margin stock" as defined in Regulations U or X or
"marginable OTC stock" or "foreign margin stock" within the meaning of
Regulation T or X.
"Maximum Rate" means the maximum non-usurious rate of interest that the
Banks are allowed to contract for, charge, take, reserve or receive under the
applicable laws of any applicable state or of the United States of America
(whichever from time to time permits the highest rate for the use, forbearance
or detention of money) after taking into account, to the extent required by
applicable law, any and all relevant payments or charges under this Agreement,
the Notes or under any other document or instrument executed and delivered in
connection herewith and the indebtedness evidenced by the Notes.
"Net Worth" means the sum of the par or stated value of all outstanding
Capital Stock, amounts in excess of par or stated value, surplus and retained
earnings and other comprehensive income, all as determined in accordance with
GAAP for the Borrower and its Subsidiaries on a consolidated basis.
"Non-Recourse JV Indebtedness" means Indebtedness of Joint Ventures that is
non-recourse to the Borrower or any of its other Subsidiaries in any manner.
"Notes" means the Line of Credit Notes and any other promissory notes
issued by Borrower to the order of any one or more of the Banks evidencing the
Obligations of Borrower to repay the Loans.
"Obligations" means any and all liabilities, obligations, or indebtedness
owing by Borrower to the Agent and/or the Banks, of any kind or description,
irrespective of whether for the payment of money, whether direct or indirect,
absolute or contingent, due or to become due, now existing or hereafter arising
under any Loan Document.
"Off-Balance Sheet Liability" of a Person means (i) any obligation or
liability of such Person with respect to accounts or notes receivable sold by
such Person, asset securitizations, factoring or similar transactions, (ii) any
liability under any sale and leaseback transaction which is not a Capital Lease,
(iii) any liability under any so-called "synthetic lease" or "tax ownership
operating lease" transaction entered into by such Person, or (iv) any obligation
arising with respect to any other transaction which is the functional equivalent
of or takes the place of borrowing (as reasonably determined by the Agent) but
which does not constitute a liability on the balance sheets of such Person, but
excluding from this clause (iv) operating leases.
8
"Optional Currency" means any currency which is freely transferable and
convertible into Dollars and acceptable to all the Banks; provided, that,
subject to the terms of this Agreement, Euros and British Pounds Sterling shall
be deemed acceptable to the Banks.
"Overdue Rate" means (a) in respect of principal of Alternate Base Rate
Advance, a rate per annum that is equal to the sum of two percent (2%) per annum
plus the Alternate Base Rate, (b) in respect of principal of Eurocurrency
Advances, a rate per annum that is equal to the sum of two percent (2%) per
annum plus the per annum rate in effect thereon until the end of the then
current Interest Period for such Advance and, thereafter, a rate per annum that
is equal to the sum of two percent (2%) per annum plus the Alternate Base Rate
(or, in the case of any Eurocurrency Advance denominated in any Optional
Currency, the per annum rate equivalent to the Alternate Base Rate for such
currency as determined by the Agent), and (c) in respect of other amounts
payable by the Borrower hereunder (other than interest), a per annum rate that
is equal to the sum of two percent (2%) per annum plus the Alternate Base Rate.
"Permitted Currency" means Dollars and any Optional Currency.
"Permitted Liens" means (a) Liens for taxes, assessments or governmental
charges or levies which, for Borrower and all Subsidiaries other than Arava
Natural Resources Company and its Subsidiaries and XXXX Acquisition EURL and its
Subsidiaries are not yet due, or delinquent, or which can thereafter be paid
without penalty, or which are being contested in good faith in accordance with
this Agreement and against which appropriate reserves are being maintained under
GAAP, (b) unfiled inchoate construction Liens for construction work in progress,
(c) workmen's, repairmen's, warehousemen's and carrier's Liens and other similar
Liens, if any, arising in the ordinary course of business, (d) Liens granted by
Subsidiaries in favor of Borrower in connection with inter-company loans, (e)
each of the liens described in Schedule 1.1(a) attached to this Agreement, and
(f) other similar Liens incidental to the normal business conduct of the
ordinary course of business of the Borrower and Subsidiaries in an aggregate
amount not to exceed $1,000,000.
"Person" or "Persons" means natural persons, corporations, limited
partnerships, general partnerships, joint stock companies, joint ventures,
associations, companies, trusts, lenders, trust companies, land trusts, vehicle
trusts, business trusts or other organizations, irrespective of whether they are
legal entities, and governments and agencies and political subdivisions thereof.
"Pricing Schedule" means the following schedule:
-------- ------------------ ------------- ------------------------- ------------
Eurocurrency
Capitalization Facility Applicable Margin and All-In
Tier Ratio(1) Fee Letter of Credit Fee Drawn Cost
-------- ------------------ ------------- ------------------------- ------------
V(3) >55% 20.0 bp(2) 67.5 bp 87.5 bp
-------- ------------------ ------------- ------------------------- ------------
IV >45%, but = 55% 15.0 bp 60.0 bp 75.0 bp
-------- ------------------ ------------- ------------------------- ------------
III >35%, but = 45% 12.5 bp 50.0 bp 62.5 bp
-------- ------------------ ------------- ------------------------- ------------
II >25%, but = 35% 10.0 bp 40.0 bp 50.0 bp
-------- ------------------ ------------- ------------------------- ------------
9
-------- ------------------ ------------- ------------------------- ------------
I = 25% 10.0 bp 27.5 bp 37.5 bp
-------- ------------------ ------------- ------------------------- ------------
(1) Defined as Total Debt/Capitalization.
(2) "bp" means basis points per annum.
(3) All fees will be calculated by the Capitalization Ratio as of the
latest fiscal quarter for which financial statements have been
delivered pursuant to Section 5.3.1, provided, however, that if such
statements are not delivered as required by Section 5.3.1, the Tier V
fees shall apply.
As of the Closing Date, the Applicable Margin will be set at Tier III
above.
"Prime Rate" means and refers to the rate of interest announced publicly
from time to time by the Agent as its prime commercial lending rate. Reference
to the Prime Rate shall not be affected by the fact that Agent may make loans at
different rates from time to time with respect to the class of Loans for which
the Prime Rate is established. Any change in any of the interest rates
chargeable hereunder resulting from a change in the Prime Rate shall become
effective on the day on which each change in the Prime Rate is effective.
"Prohibited Transaction" has the meaning set forth in Section 406 or
Section 2003(a) of ERISA.
"Ratable Share" means for each Bank a percentage based on the ratio of such
Bank's Commitment to the aggregate Commitments of all Banks, which as to
aggregate Advances (including participations in Letter of Credit Advances and
Swingline Loans) of such Bank will be limited to the respective Commitment
amount for such Bank. If the Commitments have expired or been terminated, then
such Bank's Commitment for purposes of determining its Ratable Share shall be
deemed equal to the amount of its Commitment immediately prior to such
expiration or termination.
"Regulation D" means Regulation D of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor thereto or other
regulation or official interpretation of said Board of Governors relating to
reserve requirements applicable to member banks of the Federal Reserve System.
"Regulation T" means Regulation T of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors.
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors.
"Regulation X" means Regulation X of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors.
"Reportable Event" has the meaning set forth in Section 4043 of ERISA.
10
"Requirement of Law" means, with respect to any Person, the certificate (or
articles) of incorporation and bylaws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental Authority, in
each case applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"Requisite Banks" means Banks whose Ratable Shares equal or exceed 51%.
"Reserve Requirement" means, with respect to an Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on Eurocurrency
liabilities.
"Restricted Subsidiaries" means those Domestic Subsidiaries that have
executed or are required to execute Guarantees.
"Same Day Funds" means (a) with respect to disbursements and payments in
Dollars, immediately available funds, and (b) with respect to disbursements and
payments in any Optional Currency, same day or other funds as may be determined
by the Agent to be customary in the place of disbursement or payment for the
settlement of international banking transactions in such Optional Currency.
"SEC" means the Securities and Exchange Commission or any successor agency.
"Subordinated Debt" means (a) the 2004 Subordinated Debt and (b) any other
unsecured Indebtedness of the Borrower which has subordination terms, covenants,
pricing and other terms which have been approved in writing by the Required
Banks.
"Subordinated Debt Documents" means the 2004 Subordinated Debt Documents
and all other agreements, documents and instruments relating to any other
Subordinated Debt at any time and all amendments and modifications thereof
approved by the Required Banks.
"Subsidiaries" means those entities listed on Schedule 1.1(b) to this
Agreement and all entities in which the Borrower hereafter acquires, directly or
indirectly, any equity or ownership interest, except (1) Joint Ventures and (2)
minority interests in other Persons, the aggregate value of which interests (on
a cost basis) does not exceed $10,000,000.
"Swingline Loan" has the meaning set forth in Section 2.9 of this
Agreement.
"Taxes" means any taxes, charges, fees, levies or other assessments based
upon or measured by net or gross income, gross receipts, sales, use, ad valorem,
transfer, franchise, withholding, payroll, employment, excise, premium or
property taxes, together with any interest and penalties, additions to tax and
additional amounts imposed by any federal, state, local or foreign taxing
authority upon any Person.
"Total Debt" means all Indebtedness (other than Non-Recourse JV
Indebtedness) of the Borrower and its Subsidiaries on a consolidated basis.
11
"Total Outstanding Amount" means the aggregate principal amounts at any
time outstanding of the Line of Credit Advances, the outstanding face amount of
Letters of Credit and all outstanding Swingline Loans, which shall not exceed in
the aggregate an Equivalent in Dollars equal to the amount of the Aggregate
Commitment Amount.
"2004 Subordinated Debt" means all Indebtedness of the Borrower and the
Guarantors under the 2004 Subordinated Debt Documents.
"2004 Subordinated Debt Documents" means the 2004 Subordinated Indenture,
the 2004 Subordinated Debentures and all other agreements, documents and
instruments relating to the 2004 Subordinated Debentures at any time and all
amendments and modifications thereof approved by the Required Banks.
"2004 Subordinated Debentures" means the 6.00% Subordinated Debentures
issued by the Borrower in the aggregate outstanding principal amount (as of the
Closing Date) of $297,688,000 due 2014 issued pursuant to the 2004 Subordinated
Indenture and any other securities issued pursuant to the 2004 Subordinated
Indenture at any time.
"2004 Subordinated Indenture" means the Subordinated Indenture between the
Borrower, the subsidiary guarantors named therein and the trustee thereunder,
dated November 30, 2004, pursuant to which the 2004 Subordinated Debentures were
issued, as amended or modified from time to time.
"Type" means, with respect to any Advance, its nature as a Alternative Base
Rate Advance or a Eurocurrency Advance.
"United Kingdom" means the United Kingdom of Great Britain and Northern
Ireland.
"Unmatured Event of Default" means an event, act, or occurrence which with
the giving of notice or the lapse of time, or both, would become an Event of
Default.
1.2 Accounting Terms. (a) All accounting terms not specifically defined
herein, to the extent not inconsistent with definitions set forth in Section 1.1
of this Agreement, will be construed in accordance with GAAP as in effect from
time to time, including, without limitation, applicable statements, bulletins
and interpretations issued by the FASB and bulletins, opinions, interpretations
and statements issued by the American Institute of Certified Public Accountants
or its committees, provided that, if the Borrower notifies the Banks that it
wishes to amend any covenant or term hereof to eliminate the effect of any
change in GAAP (or if the Requisite Banks notify the Borrower that the Banks
wish to amend any covenant or term for such purpose), then the Borrower's
compliance with such covenants and terms shall be determined on the basis of
GAAP in effect immediately before the relevant change in GAAP became effective
until either such notice is withdrawn or such covenant or term is amended in a
manner satisfactory to the Borrower and the Requisite Banks. When used herein,
the term "financial statements" will include the notes and schedules thereto.
12
(b) Notwithstanding anything herein, in any financial statements of
the Borrower and its Subsidiaries or in GAAP to the contrary, for purposes of
calculating and determining compliance with the financial covenants in Section
5.4 and the Applicable Margin, including defined terms used therein, Joint
Ventures shall not be consolidated with the Borrower and its Subsidiaries and
all income, liabilities and assets of each Joint Venture, and all investments of
the Borrower or any Subsidiary in any Joint Venture, shall be excluded from all
such calculations and determinations thereunder.
(c) The Borrower shall deliver to the Banks, at the same time as the
delivery of any annual or quarterly financial statement, (i) a description in
reasonable detail of any material variation between the application or other
modification of accounting principles employed in the preparation of such
statement and the application or other modification of accounting principles
employed in the preparation of the immediately prior annual or quarterly
financial statements as to which no objection has been made in accordance with
the first sentence of subsection (a) above, (ii) a description in reasonable
detail of the adjustments made in calculating and determining compliance with
the financial covenants in Section 5.4 and the Applicable Margin due to the
requirements of subsection (b) above and (iii) if requested by the Agent,
reasonable estimates of the difference between such statements arising as a
consequence thereof.
(d) The Borrower agrees to take all necessary action, including
without limitation any necessary acknowledgments or consents from the Borrower's
auditors as may be required under applicable law, to ensure that the Agent and
the Banks may rely on the audited financial statements of the Borrower and its
Subsidiaries delivered to the Agent and the Banks after the Closing Date.
1.3 Other Definitional Provisions.
(a) Unless otherwise specified therein, all terms defined in this
Agreement will have the defined meanings when used in the Loan Documents or any
certificate or other document made or delivered pursuant hereto.
(b) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement will refer to this Agreement as a whole and
not to any particular provision of this Agreement. Section, subsection, Schedule
and Exhibit references contained in this Agreement are references of Sections,
subsections, Schedules and Exhibits in or to this Agreement unless otherwise
specified.
2. AMOUNT AND TERMS OF LOANS.
2.1 Amount of Line of Credit. Each Bank agrees, for itself only, subject to
the terms and conditions of this Agreement, to make Line of Credit Loans to the
Borrower and to participate in Letter of Credit Advances to the Borrower
pursuant to Section 3.6 from time to time from and including the Closing Date to
but excluding the Line of Credit Maturity not to exceed an aggregate principal
amount at any time outstanding the Dollar Equivalent of the amount of its
respective Commitment as of the date any such Advance is made; provided,
however, that (i) the Equivalent in Dollars of the aggregate principal amount of
Letter of Credit Advances outstanding at any time
13
shall not exceed $50,000,000, (ii) the Equivalent in Dollars of the aggregate
principal amount of all Advances in Optional Currencies outstanding at any time
shall not exceed $25,000,000, and (iii) the Equivalent in Dollars of the
aggregate principal amount of all Advances outstanding at any time shall not
exceed the Aggregate Commitment Amount; and the Borrower will not be entitled to
obtain any Advance if each such condition, in addition to other conditions
contained herein, is not satisfied both before and after giving effect to such
Advance.
2.2 Notice and Manner of Borrowing.
2.2.1 Nature of Advances. The Advances (other than Swingline Loans)
may be Alternative Base Rate Advances or Eurocurrency Advances, or a combination
thereof, selected by Borrower in accordance with Sections 2.2.2 and 2.2.3,
provided that, notwithstanding anything herein to the contrary, Advances
denominated in any Optional Currency cannot be Alternative Base Rate Advances.
2.2.2 Method of Selecting Types and Interest Periods for New Advances.
The Borrower shall select the Type of Advances and, in the case of each
Eurocurrency Advance, the Interest Period and Permitted Currency applicable
thereto from time to time. The Borrower shall give the Agent irrevocable notice
(a "Borrowing Notice") not later than 10:00 a.m. (Detroit time) at least one
Business Day before the Borrowing Date of each Alternative Base Rate Advance and
three Business Days before the Borrowing Date for each Eurocurrency Advance,
specifying:
(i) the Borrowing Date, which shall be a Business Day, of such
Advance,
(ii) the aggregate amount of such Advance,
(iii) the Type of Advance selected, and
(iv) in the case of each Eurocurrency Advance, the Interest Period
and Permitted Currency applicable thereto.
Agent shall deliver to each Bank a copy of the Borrowing Notice timely received
by Agent from Borrower on the day received. Not later than noon (local time) on
each Borrowing Date, each Bank shall make available its Loan or Loans in Same
Day Funds at the principal office of Agent in the case of Advances denominated
in Dollars and to the designated Applicable Lending Office of the Agent or at
such other place specified by the Agent in the case of Advances denominated in
any Optional Currency. The Agent will make the funds so received from the Banks
available to the Borrower at the Agent's aforesaid location.
2.2.3 Conversion and Continuation of Outstanding Advances. Alternative
Base Rate Advances shall continue as Alternative Base Rate Advances unless and
until such Alternative Base Rate Advances are converted into Eurocurrency
Advances pursuant to this Section 2.2.3. Each Eurocurrency Advance shall
continue as a Eurocurrency Advance until the end of the then applicable Interest
Period therefor, at which time such Eurocurrency Advance shall either be paid,
or it will automatically be converted into an Alternative Base Rate Advance
unless the Borrower shall have given the Agent a Conversion/Continuation Notice
(as defined
14
below) requesting that, at the end of such Interest Period, such Eurocurrency
Advance shall continue as a Eurocurrency Advance for the same or another
Interest Period; provided, that (a) Eurocurrency Advances may not be converted
from one Permitted Currency to a different Permitted Currency and (b)
Eurocurrency Advances owing in any Optional Currency shall not be automatically
converted but shall be due and payable at the end of the relevant Interest
Period. Subject to the terms of Section 2.6, the Borrower may elect from time to
time to convert all or any part of an Alternative Base Rate Advance into a
Eurocurrency Advance. The Borrower shall give the Agent irrevocable notice (a
"Conversion/Continuation Notice") of each conversion of an Alternative Base Rate
Advance into a Eurocurrency Advance or continuation of a Eurocurrency Advance
not later than 10:00 a.m. (Detroit time) at least three Business Days prior to
the date of the requested conversion or continuation, specifying:
(i) the requested date, which shall be a Business Day, of such
conversion or continuation,
(ii) the aggregate amount and Type of the Advance which is to be
converted or continued, and
(iii) the amount of such Advance which is to be converted into or
continued as a Eurocurrency Advance and the duration of the
Interest Period and Permitted Currency applicable thereto.
2.2.4 Changes in Interest Rate, etc. Each Alternative Base Rate
Advance shall bear interest on the outstanding principal amount thereof, for
each day from and including the date such Advance is made or is automatically
converted from a Eurocurrency Advance into a Alternative Base Rate Advance
pursuant to Section 2.2.3, but excluding the date it is paid or is converted
into a Eurocurrency Advance pursuant to Section 2.2.3 hereof, at a rate per
annum equal to the Alternative Base Rate for such day. Changes in the rate of
interest on that portion of any Advance maintained as a Alternative Base Rate
Advance will take effect simultaneously with each change in the Alternate Base
Rate. Each Eurocurrency Advance shall bear interest on the outstanding principal
amount thereof from and including the first day of the Interest Period
applicable thereto to (but not including) the last day of such Interest Period
at the interest rate determined by the Agent as applicable to such Eurocurrency
Advance based upon the Borrower's selections under Sections 2.2.2 and 2.2.3 and
otherwise in accordance with the terms hereof. No Interest Period may end after
the Line of Credit Maturity.
2.2.5 Ratable Advances. Each Bank, on the date any Advance (other than
Swingline Loans) is requested to be made, shall make its Ratable Share of such
Advance available in Same Day Funds at the principal office of Agent in the case
of Advances denominated in Dollars and to the designated Applicable Lending
Office of the Agent or at such other place specified by the Agent in the case of
Advances denominated in any Optional Currency, in each case for disbursement to
Borrower. Unless Agent shall have received notice from any Bank prior to the
date such Advance is requested to be made under this Section 2.2 that such Bank
will not make available to Agent such Bank's Ratable Share of such Advance,
Agent may assume that such Bank has made such portion available to Agent on the
date such Advance is requested to be made in accordance with this Section 2.2.
If and to the extent such Bank shall
15
not have so made such Ratable Share available to Agent, Agent may (but shall not
be obligated to) make such amount available to Borrower, and such Bank agrees to
pay to Agent forthwith on demand such amount together with interest thereon, for
each day from the date such amount is made available to Borrower by Agent until
the date such amount is repaid to Agent, at the Federal Funds Rate (or, in the
case of any Eurocurrency Advance denominated in any Optional Currency, the per
annum rate equivalent to the Federal Funds Rate for such currency as determined
by the Agent) for the first five days and thereafter at the applicable interest
rate. If such Bank shall pay such amount to Agent together with interest, such
amount so paid shall constitute a Loan by such Bank as a part of such Advance
for purposes of this Agreement. The failure of any Bank to make its Ratable
Share of any such Advance available to Agent shall not relieve any other Bank of
its obligations to make available its Ratable Share of such Advance on the date
such Advance is requested to be made, but no Bank shall be responsible for
failure of any other Bank to make such Ratable Share available to Agent on the
date of any such Advance. Subject to the terms and conditions of this Agreement,
Agent shall, on the date any issuance of a Letter of Credit advance (a "Letter
of Credit Advance") is requested to be made, issue the related Letter of Credit
on behalf of the Banks for the account of the Borrower. Notwithstanding anything
herein to the contrary, Agent may decline to issue any requested Letter of
Credit on the basis that the beneficiary, the purpose of issue or the terms and
conditions of drawing are unacceptable to it in its reasonable discretion,
including without limitation, if Agent determines that the purpose of such
issuance is outside the ordinary course of business of Borrower.
2.2.6 Disbursement. Upon fulfillment of the conditions set forth in
this Section 2.2, Section 3.5 (and subject to Agent's then current deadlines for
wire transfers and crediting of Agent and Bank accounts), and Sections 8.2.1 and
8.2.2, Agent will disburse such Advance to Borrower in Same Day Funds at
Borrower's expense.
2.2.7 Minimum Advances. Except for Swingline Loans, no Advances shall
be for an aggregate amount of less than $5,000,000 (or the approximate
Equivalent thereof in any applicable Optional Currency). No more than five
different Interest Periods may exist at any time.
2.3 Authorization and Issuance of Line of Credit Notes. All Advances made
by the Banks pursuant to the Line of Credit will be evidenced by separate
promissory notes of Borrower, in the form of Exhibit 2.3 to this Agreement (each
a "Line of Credit Note" and collectively the "Line of Credit Notes"), to be
executed and delivered by Borrower to each of the Banks, in the principal amount
of each such Bank's Commitment, on the Closing Date.
2.4 Facility Fees. On the last day of each March, June, September and
December, commencing December 31, 2006, for the pro rata benefit of the Banks,
the Borrower shall pay a Facility Fee equal to the per annum percentage
identified as the Facility Fee in the Pricing Schedule on the aggregate amount
of the Commitments, whether used or unused.
2.5 Use of Proceeds. The proceeds of the Line of Credit Loans will be used
by Borrower (i) for working capital, (ii) to finance Acquisitions, (iii) to
reimburse any Bank for any payment under Letters of Credit and (iv) for general
corporate purposes.
16
2.6 Interest Payment Dates; Interest Basis. Interest accrued on each
Alternative Base Rate Advance shall be payable on the last day of each March,
June, September and December, commencing with the first such date to occur after
the date hereof. Interest accrued on each Eurocurrency Advance shall be payable
on the last day of its applicable Interest Period, on any date on which the
Eurocurrency Advance is prepaid, whether by acceleration or otherwise, and at
maturity. Interest accrued on each Eurocurrency Advance having an Interest
Period longer than three months shall also be payable on the last day of each
three-month interval during such Interest Period. Interest shall be payable for
the day an Advance is made but not for the day of any payment on the amount paid
if payment is received prior to noon (local time) at the place of payment. If
any payment of principal of or interest on an Advance shall become due on a day
which is not a Business Day, such payment shall be made on the next succeeding
Business Day and, in the case of a principal payment, such extension of time
shall be included in computing interest in connection with such payment.
2.7 Prepayments. Borrower may prepay, in whole or in part, but in an amount
not less than $10,000,000 (or the approximate Equivalent thereof in the
applicable Optional Currency) at any time upon one (1) Business Day's notice,
without premium or penalty, any Alternative Base Rate Advances. Eurocurrency
Advances may only be prepaid at the end of an Interest Period as provided above
in Section 2.2.3. Swingline Loans may only be prepaid with the permission of the
Agent. Any other provisions of this Agreement to the contrary notwithstanding,
if at any time during the term of this Agreement, (a) the Equivalent in Dollars
of the aggregate principal amount of Letter of Credit Advances outstanding at
any time shall exceed $50,000,000, (b) the Equivalent in Dollars of the
aggregate principal amount of all Advances in Optional Currencies outstanding at
any time shall exceed $25,000,000, or (c) the Equivalent in Dollars of the
aggregate principal amount of all Advances outstanding at any time shall exceed
the Aggregate Commitment Amount, the Borrower will immediately, and in any event
within two (2) Business Days, remit and pay to Agent such amounts as may be
necessary so that no such excess as described in the foregoing clauses (a), (b)
or (c) shall exist. Borrower may terminate the Line of Credit at any time upon
delivery of written notice to Agent sixty (60) days prior to such termination.
2.8 Loan Account. Advances will be charged to an account in Borrower's name
on Agent's books, and Agent will debit to such account the amount of each
Advance when made and credit to such account the amount of each repayment
thereunder. Agent will render Borrower, from time to time, a statement setting
forth the debit balance in the loan account, which will be deemed conclusive
absent manifest error. Such statement will be prima facie evidence of the
correctness of the Advances owing to the Banks by Borrower hereunder, unless
there is manifest error evident on its face. Similarly, each Bank is hereby
authorized by Borrower to record in its books and records, the date, and amount
and type of each Advance and the duration of the related Interest Period (if
applicable), the amount of each payment or prepayment of principal thereon,
which books and records shall constitute prima facie evidence of the information
so recorded, provided, however, that failure of any Bank to record, or any error
in recording, any such information shall not relieve Borrower of its obligation
to repay the outstanding principal amounts of the Loans, all accrued interest
thereon and other amounts payable with respect thereto in accordance with the
terms of the Notes and this Agreement.
17
2.9 Swingline Loans. The Agent may, in its sole discretion and without
having any obligation to do so, make interim advances (hereinafter sometimes
referred to as "Swingline Loans") of its own funds to the Borrower prior to the
Line of Credit Maturity in an aggregate amount not to exceed an Equivalent in
Dollars of $15,000,000 at any one time outstanding; provided, however, that no
Swingline Loans shall be made after the Agent has received written requests not
to make Swingline Loans from the Requisite Banks. Swingline Loans shall bear
interest at a rate determined by the Agent, and interest and principal shall be
payable by the Borrower upon demand by the Agent. The aggregate amount of all
Swingline Loans outstanding on the date any regular Advance is made shall be
included as a previously disbursed portion of such regular Advance in which each
Bank shall participate based upon its Ratable Share and the Agent shall
thereupon be immediately reimbursed for the full amount of such Swingline Loans
from the proceeds of such regular Advance. If no regular Advance is made for any
period of 60 days, whether by reason of the failure to comply with any condition
for a regular Advance or otherwise, or at any other time as determined by the
Agent in its sole discretion, each Bank shall absolutely and unconditionally,
upon request of the Agent, on the Business Day after receiving such request,
remit to the Agent such Bank's Ratable Share of all outstanding Swingline Loans,
whereupon, such Swingline Loans shall be automatically converted to a regular
Alternative Base Rate Advance in Dollars effective on such next Business Day. In
no event will any Swingline Loan be made if, after giving effect to such
Swingline Loan, the Equivalent in Dollars of the aggregate principal amount of
all Advances would exceed the Aggregate Commitment Amount or the Equivalent in
Dollars of the aggregate principal amount of all Swingline Loans would exceed
$15,000,000.
2.10 Reduction or Termination of Commitments. The Borrower may from time to
time on at least five Business Days' prior written notice received by the Agent
(which shall promptly advise each Bank thereof) permanently reduce the
Commitment to an amount not less than the Total Outstanding Amount. Any such
reduction shall be in an amount not less than $10,000,000 or a higher integral
multiple of $10,000,000 or such other amount agreed to between the Borrower and
the Agent. Concurrently with any reduction of the Commitments to zero, the
Borrower shall pay all interest on the Loans, all fees and all other amounts
owing hereunder and shall cash collateralize in full all obligations arising
with respect to the Letters of Credit in a manner satisfactory to the Agent. All
reductions of the Commitments shall reduce the Commitments ratably among the
Banks according to their respective Ratable Share.
2.11 Increase of Commitments. With the prior consent of the Agent, the
Borrower may request to increase the Aggregate Commitment Amount in increments
of $10,000,000 from time to time, provided that the aggregate increase in the
Aggregate Commitment Amount from the date hereof shall not exceed $50,000,000.
Any such request to increase the Aggregate Commitment Amount shall be deemed to
be a certification by the Borrower that at the time of such request, there
exists no Default or Unmatured Event of Default and the representations and
warranties contained in Section 4 are true and correct in all material respects
as of such date or, if applicable only to a prior date, as of such prior date.
Any request from the Borrower to increase the Aggregate Commitment Amount shall
be implemented by one or more existing Banks agreeing to increase their
Commitments (provided that no Bank shall have any obligation to increase its
Commitment) or by one or more new lenders agreeing to become a Bank hereunder or
by any combination of the foregoing, as determined by the Agent in consultation
with the
18
Borrower. Any such new lender agreeing to become a Bank under this Agreement
shall become a Bank party hereto upon the execution and delivery by it, the
Agent and the Borrower of a joinder and assumption agreement in form and
substance satisfactory to the Agent. Prior to any such increase in the Aggregate
Commitment Amount becoming effective, the Agent shall have received:
(i) copies, certified by the secretary of the Borrower of their Board of
Directors' resolutions and of resolutions or actions of any other
body authorizing the increase in the Aggregate Commitment Amount and
the confirmation and ratification of the Loan Documents;
(ii) a certificate, signed by the chief financial officer of the
Borrower, showing that after giving effect to the increase in the
Aggregate Commitment Amount, no Default or Unmatured Event of
Default shall occur, the Borrower shall be in compliance in all
material respects with all covenants in this Agreement and the
representations and warranties contained in Section 4 are true and
correct in all material respects;
(iii) a confirmation and ratification of all Loan Documents signed by the
Borrower and the Guarantors and in form and substance satisfactory
to the Agent; and
(iv) such other documents and conditions as the Agent or its counsel may
have reasonably requested.
On the effective date of any such increase, (x) each Bank's Ratable Share(and
its participation interest in all outstanding Letters of Credit) shall be
adjusted to equal its Ratable Share thereof determined after giving effect to
such increase and (y) all Loans will be replaced with new Loans hereunder from
the Banks based on such adjusted Ratable Share.
3. GENERAL PROVISIONS.
3.1 Overdue Rate.
3.1.1 Overdue Rate. Upon the occurrence and during the continuance of
an Event of Default, all outstanding Advances will bear interest thereafter, at
the option of Agent and/or at the request of the Requisite Banks or
automatically without any action by the Agent or the Banks in the case of any
Event of Default under Section 7.1.6 or 7.1.7, and without affecting any of the
Bank's rights and remedies provided for herein and in the Notes, at the Overdue
Rate.
3.1.2 Late Charge. If any required payment under any Advance is not
paid within ten (10) days from the date it is due, at the option of Agent and/or
at the request of the Requisite Banks, a late charge of five cents ($.05) for
each Dollar of the payment so overdue may be charged.
3.2 Computation of Interest and Fees; Maximum Interest Rate.
19
3.2.1 Calculation Of Interest and Fees. Interest and Facility Fees
under Section 2.4 shall be calculated for actual days elapsed on the basis of a
360-day year, except for interest on Loans denominated in British Pounds
Sterling and Alternate Base Rate Loans which shall be calculated for actual days
elapsed on the basis of a 365/366-day year. Interest will accrue from the date
of any Advance up to but excluding the date of repayment of the Loan, in
accordance with the provisions hereof.
3.2.2 Maximum Rate. Notwithstanding anything to the contrary contained
in this Agreement, Borrower will not be obligated to pay, and the Banks will not
be entitled to charge, collect or receive, interest in excess of the Maximum
Rate and in the event the Banks ever receive, collect or apply, as interest, any
such excess, such amount which would be excessive interest will be deemed a
partial prepayment of principal and treated hereunder as such; and, if the
principal hereof is paid in full, any remaining excess will immediately be
returned to Borrower. If any construction of this Agreement, the Notes or the
other Loan Documents indicates a different right given to the Banks to ask for,
demand or receive any larger sum as interest, such as a mistake in calculation
or wording, this clause will override and control, it being the intention of
Borrower and the Banks that this Agreement, the Notes and the other Loan
Documents will in all respects comply with applicable law, and proper adjustment
will automatically be made accordingly. In determining whether or not the
interest paid or payable, under any specific contingency, exceeds the Maximum
Rate, Borrower and the Banks will, to the maximum extent permitted by law (i)
characterize any non-principal payment as an expense, fee or premium rather than
as interest; (ii) exclude voluntary prepayments and the effects thereof; and
(iii) amortize, prorate, allocate and spread the total amount of interest
through the entire contemplated term of such indebtedness until payment in full
of the principal (including the period of any extension or renewal thereof) so
that the interest on account of such indebtedness will not exceed the Maximum
Rate.
3.3 Conditions Precedent to the Execution and Delivery of this Agreement.
The obligation of the Banks to execute and deliver this Agreement and make any
Advance hereunder is subject to the fulfillment, in form and substance
satisfactory to Agent and its counsel, of each of the following conditions,
unless otherwise noted:
3.3.1 Line Of Credit Note, Guaranties, etc. Agent will have received
each of the following documents, duly executed and delivered by Borrower, each
of which will be in full force and effect:
(a) The Line of Credit Notes, in the form of Exhibit 2.3.
(b) The Guaranties, in the form of Exhibit 3.3.1(b) to this
Agreement.
(c) Such other documents and certificates as may be necessary or
desirable to evidence the Obligations, representations,
warranties and covenants of Borrower hereunder and the
Guarantors under the Guaranties.
20
3.3.2 Good Standing Certificates. Agent will have received a good
standing certificate of Borrower and each of the Guarantors listed on Exhibit
3.3.2 hereto from each state in which Borrower and each such Guarantor is
organized and each other state, if different, in which the principal part of its
business activity is conducted, dated a recent date, indicating that Borrower
and each such Guarantor is in good standing in each such state; provided, if
such good standing certificates for any Guarantor is not available at closing,
Borrower shall certify that such Guarantor is in good standing.
3.3.3 Resolutions. Agent will have received a copy of the resolutions
of the Board of Directors of Borrower and each Restricted Subsidiary (i)
authorizing the execution, delivery and performance of the Loan Documents, (ii)
authorizing the borrowing contemplated hereunder, and (iii) certified by the
Secretary of Borrower or the Restricted Subsidiary, respectively, as of the
Closing Date, which certificate will state that the resolutions thereby
certified have not been amended, modified, revoked or rescinded as of the date
of such certificate.
3.3.4 Charter. Agent will have received certified copies of the
charter of Borrower and each Restricted Subsidiary, certified by an officer of
Borrower and each Restricted Subsidiary, respectively, on the Closing Date, as
true, complete and correct copies thereof.
3.3.5 Incumbency Certificates. Agent will have received a certificate
of the Secretary of Borrower and each Restricted Subsidiary as to the incumbency
and signatures of the person or persons authorized to execute and deliver the
Loan Documents.
3.3.6 Certificate Regarding Representations and Warranties. Agent will
have received a certificate of the Chief Financial Officer, the Vice
President-Legal or Chief Executive Officer of Borrower stating, on behalf of
Borrower, that each of the representations and warranties made in or pursuant to
Section 4 of this Agreement or which are contained in any other Loan Document or
any certificate, document or financial or other statement furnished by Borrower
at any time under or in connection herewith, is true and correct in all respects
on and as of the Closing Date.
3.3.7 Reimbursement. Agent will have received reimbursement for legal
fees and expenses incurred by Agent in the preparation of the transactions
contemplated by this Agreement.
3.3.8 No Litigation or Investigation. No suit, action, investigation,
inquiry or other proceeding, including, without limitation, the enactment or
promulgation of a statute or rule by or before any arbitrator or any
Governmental Authority will be pending and no preliminary or permanent
injunction or order by a state or federal court will have been entered (i) in
connection with any Loan Document or any of the transactions contemplated hereby
or thereby or (ii) which, in any such case, in the reasonable judgment of the
Banks, would have a material adverse effect on (A) the transactions contemplated
by this Agreement or (B) the business, operations, properties, condition
(financial or otherwise) or prospects of Borrower.
21
3.3.9 Insurance. Agent will have received a schedule, entitled
Schedule 3.3.9, setting forth the policies of insurance, including the effective
dates of such policies, carried by Borrower and its Subsidiaries on the Closing
Date.
3.3.10 No Event of Default. No Event of Default and no Unmatured Event
of Default will have occurred and be continuing on the date of the Loans, nor
will either result from the making of such Loans.
3.3.11 Opinion of Counsel. Agent and each of the Banks will have
received the written opinion, dated the Closing Date, of Borrower's and
Restricted Subsidiaries' Counsel in substantially the same form as that attached
hereto as Exhibit 3.3.11.
3.3.12 Repayment of Existing Obligations. The entire amount owing
under the Credit Agreement dated November 6, 2003 among the Borrower, the Banks
named therein and the Agent is fully paid and all obligations to loan money or
make advances thereunder are terminated.
3.3.13 Fees. The Borrower shall have paid the Agent and the Banks all
closing fees agreed upon among the Borrower, the Agent and the Banks, or any of
them.
3.3.14 Financial Statements. The Agent shall have received audited
consolidated financial statements for the Borrower and its Subsidiaries for the
fiscal years ending in 2003, 2004 and 2005, unaudited interim consolidated
financial statements for the Borrower and its Subsidiaries for each fiscal
quarter ended after the most recently ended fiscal year, and such other
financial statements as required by the Agent, in each case in form and
substance satisfactory to the Agent.
3.3.15 Lien Searches. The Agent shall have received satisfactory
results of such Lien searches as required by the Agent.
3.3.16 Certificate Regarding USA Patriot Act. Agent shall have
received a certificate of the Borrower with respect to the USA Patriot Act in
form satisfactory to the Agent.
3.3.17 Other Matters. All other documents and legal matters in
connection with the transactions contemplated by this Agreement will have been
delivered and/or executed and will be in form and substance satisfactory to
Agent and its counsel.
3.4 Conditions Precedent to all Advances under the Line of Credit Loans.
The obligation of the Banks and each of them to make Advances, including any
Letter of Credit Advance, is subject to the fulfillment, in form and substance
satisfactory to Agent and its counsel, of each of the following conditions on or
before the date of each such Advance:
3.4.1 No Event Of Default. As of the date of making the Advance, no
Event of Default and no Unmatured Event of Default will have occurred or be
continuing, nor will either result from or exist after the making of such
Advance.
22
3.4.2 Agreement in Full Force and Effect. This Agreement and each of
the other Loan Documents will be in full force and effect.
3.4.3 Representations and Warranties True and Correct. Each of the
representations and warranties made in or pursuant to Section 4 of this
Agreement or which are contained in any other Loan Document or any certificate,
document or financial or other statement furnished by Borrower and/or any
Subsidiary at any time under or in connection with any of the transactions
contemplated by the Loan Documents, will be true and correct in all material
respects on and as of the date of the Advance as if made on and as of the date
of the Advance (unless stated to relate to a specific earlier date, in which
case such representations and warranties will be true and correct in all
material respects as of such earlier date).
3.4.4 Financial Statements. Agent will have received the consolidated
quarterly financial statements of Borrower as delivered to Agent in accordance
with Sections 5.3.1 and 5.3.2 below.
3.4.5 No Change. There has been no change that has a materially
adverse effect on the business, operations, properties, condition (financial or
otherwise) or prospects of Borrower and its Subsidiaries, taken as a whole,
since the date of the last financial statements of Borrower delivered to Agent.
3.5 Compensation for Increased Costs.
(a) In the event after the date of execution of this Agreement,
any introduction of any law, or any change in any law, or the interpretation or
application thereof by any court or Governmental Authority charged with the
administration thereof, or the compliance with any guideline or request from any
Governmental Authority (whether or not having the force of law), which has the
effect of:
(i) subjecting any Bank to any tax, deduction or withholding
with respect to this Agreement or any other Loan Document (other than any tax
based upon the overall net income of any such Bank), or
(ii) imposing, modifying or deeming applicable any reserve,
special deposit, insurance premium or similar requirement against assets held
by, or deposits in or for the account of, or loans by, any Bank, with respect to
this Agreement or the other Loan Documents, or
(iii) imposing upon any Bank any other condition or expense
with respect to this Agreement or any other Loan Document and the result of any
of the foregoing is to increase the cost to any such Bank, reduce the income
receivable by any such Bank, impose any expense upon any such Banker reduce the
amount of any payment receivable by any such Bank with respect to any Note, or
with respect to any Bank's Commitment hereunder or under any Letter of Credit
Advance, or any portion thereof, by an amount which any such Bank deems to be
material, such Bank shall from time to time notify the Agent and Borrower
thereof by delivery of a certificate of an officer of such Bank of the nature
described in
23
the next sentence, and the Borrower shall pay to the Agent for delivery to such
Bank that amount which shall compensate such Bank (on an after tax basis) for
such increase in cost, reduction in income, additional expense, reduced amount
or reduced rate of return. A certificate setting forth in reasonable detail such
increase in cost, reduction in income or additional expense or reduced amount or
reduced rate of return, and the manner of calculating the same as determined by
such Bank, shall be submitted by such Bank to the Agent and Borrower and, absent
manifest error, shall be conclusive as to the amount thereof (provided that such
determination be made reasonably and in good faith).
(b) If any Bank shall have determined that the introduction of or
any change in any applicable law regarding capital adequacy, or any change in
the interpretation or administration thereof by any Governmental Authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or any of its branches) with
any request or directive regarding capital adequacy (whether or not having the
force of law) or any such authority, central bank or comparable agency, has or
would have the effect of reducing the rate of return on such Bank's capital as a
consequence of its obligations hereunder, its Commitment hereunder, or the
transactions contemplated hereby to a level below that which such Bank could
have achieved but for such adoption, change or compliance (taking into
consideration such Bank's policies with respect to liquidity and capital
adequacy) by an amount deemed by such Bank to be material, then the Borrower
shall pay to the Agent for delivery to such Bank promptly, such additional
amount or amounts determined by such Bank as will compensate such Bank for such
reduced rate of return.
(c) Borrower acknowledges that compensation to the Bank for any
increased costs incurred by the Bank and payable by Borrower pursuant to this
subsection may take the form of an effective increase in the interest rate
payable under the Loans.
(d) Borrower shall have access to any and all documentation
relied upon by the Bank in determining the events set forth in subsection (b) of
this Section 3.5, any calculations of a reduced rate of return, and the interest
rate calculation pursuant to Section 3.5(c).
3.6 Letters of Credit. Any Letter of Credit shall have a term expiring
no later than the Line of Credit Maturity. In no event shall the aggregate face
amount of all outstanding Letter of Credit Advances exceed an Equivalent in
Dollars of $50,000,000. Borrower will pay to Agent for the pro rata benefit of
the Banks a per annum fee equal to the Applicable Margin multiplied by the face
amount of any newly issued or renewed Letter of Credit at the time of issuance
or renewal of such Letter of Credit. Additionally, Borrower will pay a fee to
the Agent for its own account computed at a rate agreed upon between the Agent
and the Borrower multiplied by the face amount of any newly issued or renewed
Letter of Credit at the time of issuance or renewal of such Letter of Credit.
The Borrower further agrees to pay to the Agent, on demand, such other customary
administrative fees, charges and expenses of the Agent in respect of the
issuance, negotiation, acceptance, amendment, transfer and payment of such
Letter of Credit or otherwise payable pursuant to the application and related
documentation under which such Letter of Credit is issued. Such fees are
non-refundable and Borrower shall not be entitled to any rebate of any portion
thereof if such Letter of Credit does not remain outstanding through its stated
expiry
24
date or for any other reason. Nothing in this Agreement shall be construed to
require or authorize any Bank to issue any Letter of Credit, it being recognized
that Agent has the sole obligation under this Agreement (subject to the terms
and conditions of this Agreement) to issue Letters of Credit on behalf of the
Banks. Upon such issuance by Agent, each Bank shall automatically acquire a pro
rata risk participation interest in such Letter of Credit Advance based on its
Ratable Share. If Agent shall honor a draft or other demand for payment
presented or made under any Letter of Credit, Agent shall provide notice thereof
to each Bank prior to 2:00 p.m. Eastern Time on the second Business Day
immediately preceding the date such draft or demand is to be honored. Unless
Borrower shall have satisfied its reimbursement obligation by payment to Agent
on the date that such draft or demand is to be honored, each Bank, on the date
the draw under the Letter of Credit is to be honored, shall make its Ratable
Share of the amount paid by Agent available in Same Day Funds at the principal
office of Agent for the account of Agent. If and to the extent such Bank shall
not have made such Ratable Share portion available to Agent, such Bank agrees to
pay to Agent forthwith on demand such amount together with interest thereon, for
each day from the date such amount was paid by Agent until such amount is so
made available to Agent at a per annum rate equal to the Federal Funds Rate (or,
in the case of any Eurocurrency Advance denominated in any Optional Currency,
the per annum rate equivalent to the Federal Funds Rate for such currency as
determined by the Agent) for the first five days and thereafter at the
applicable interest rate. If such Bank shall pay such amount to Agent together
with such interest, such amount so paid shall constitute an Advance by such Bank
disbursed in respect of the reimbursement obligation of Borrower. The failure of
any Bank to make its pro rata portion of any such amount paid by Agent available
to Agent shall not relieve any other Bank of its obligation to make available
its pro rata portion of such amount, but no Bank shall be responsible for
failure of any other Bank to make such pro rata portion available to Agent. All
existing letters of credit issued listed on Schedule 3.6 shall be deemed (a)
Letters of Credit issued under this Agreement and shall be subject to the terms
of this Agreement and (b) issued on the date hereof for purposes of determining
fees payable under this Agreement for Letters of Credit.
3.7 Termination of Commitments and Payment on Line of Credit Maturity.
Notwithstanding anything to the contrary contained herein, no Bank shall be
obligated to make any Line of Credit Advance beyond the date of the Line of
Credit Maturity, and all amounts due and owing the Banks shall be due and
payable on the date of the Line of Credit Maturity.
3.8 Tax Documents (a) At least five Business Days prior to the first date
on which interest or fees are payable hereunder for the account of any Bank,
each Bank that is not incorporated under the laws of the United States of
America or a state thereof agrees that it will deliver to each of the Borrower
and the Agent two duly completed copies of United States Internal Revenue
Service Form W-8BEN or W-8ECI and Form W-8 or W-9 and any additional forms
necessary for claiming complete exemption from United States withholding taxes
(or any successor or substitute forms), certifying in either case that such Bank
is entitled to receive payments under this Agreement and the Loans without
deduction or withholding of any United States federal income taxes. Each Bank
which so delivers a Form W-8BEN or W-8ECI and a Form W-8 or W-9 and any
additional forms necessary for claiming complete exemption from United States
withholding taxes (or any successor or substitute forms) further undertakes to
deliver to each of the Borrower and the Agent two additional copies of such
forms (or any successor or substitute forms) on or before the date that such
form expires or becomes obsolete
25
or after the occurrence of any event requiring a change in the most recent form
so delivered by it, and such amendments thereto or extensions or renewals
thereof as may be reasonably requested by the Borrower or the Agent to the
extent it may lawfully do so, in each case certifying that such Bank is entitled
to receive payments under this Agreement and the Loans without deduction or
withholding of any United States federal income taxes, unless an event
(including without limitation any change in treaty, law or regulation) has
occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent such
Bank from duly completing and delivering any such form with respect to it and
such Bank advises the Borrower and the Agent that it is not capable of receiving
payments without any deduction or withholding of United States federal income
tax.
(b) Each Bank which is neither a resident of the United Kingdom nor a
bank carrying on a bona fide banking business in the United Kingdom agrees to
furnish, to the extent it is required to do so to be exempt from any withholding
tax, on or before the date such Bank makes a Loan to the Borrower in British
Pounds Sterling in the United Kingdom, to the Agent and the relevant Borrower
evidence satisfactory to the Agent and the Borrower that such Bank has filed
with the United Kingdom Inland Revenue a "Claim on Behalf of a United States
Domestic Corporation to Relief from United Kingdom Income Tax on Interest and
Royalties Arising in the United Kingdom" or other appropriate form or forms of
exemption from withholding tax and received from the Inland Revenue authority
that payments to such Bank by the Borrower hereunder may be made gross; provided
that such Bank's failure to furnish such evidence shall not relieve the Borrower
of any of its obligations under this Agreement.
(c) If any governmental authority of any jurisdiction asserts a claim
that the Agent did not properly withhold tax from amounts paid to or for
the account of any Bank (because the appropriate form was not delivered or was
not properly executed, or because such Bank failed to notify the Agent of a
change in circumstances which rendered the exemption from, or reduction of,
withholding tax ineffective, or for any other reason relating to such Bank's
failure to comply with the terms of this Agreement) such Bank shall indemnify
the Agent fully for all amounts paid, directly or indirectly, by the Agent as
tax or otherwise, including penalties and interest, and including any taxes
imposed by any jurisdiction on the amounts payable to the Agent under this
Section, together with all costs and expenses (including attorney costs). The
obligations of the Banks under this subsection shall survive the payment of all
Obligations.
3.9 Applicable Lending Office. Each Bank and the Agent may make and book
its Loans and, in the case of the Agent, issue Letters of Credit, at any
Applicable Lending Office(s) selected by such Bank or the Agent, as the case may
be, and each Bank and the Agent may change its Applicable Lending Office(s) from
time to time. Each Bank may, by written notice to the Agent and the Borrower,
designate one or more Applicable Lending Offices which are to make and book
Loans and for whose account Loan payments are to be made. The Agent may, by
written notice to the Borrower, designate one or more Applicable Lending Offices
which are to make and book Swingline Loans and issue and book Letters of Credit
and for whose accounts Loan payments and Letter of Credit reimbursements are to
be made and through which its functions are to be performed. All terms of this
Agreement shall apply to any such Applicable Lending Office(s) and the Notes
shall be deemed held by each Bank and the Agent, as the case may be, for the
benefit of such Applicable Lending Office.
26
3.10 Limitation of Requests and Elections. Notwithstanding any other
provision of this Agreement to the contrary, if, upon receiving a request for a
Eurocurrency Advance, or a request for a continuation or conversion of a
Eurocurrency Advance or a request for a conversion of a Alternate Base Rate
Advance to a Eurocurrency Advance, (a) in the case of any Eurocurrency Advance,
deposits in the relevant Permitted Currency for periods comparable to the
Interest Period elected by the Borrower are not available to any Bank in the
relevant interbank or secondary market, or (b) any Bank reasonably determines
that the Eurocurrency Base Rate will not adequately and fairly reflect the cost
to such Bank of making, funding or maintaining the related Eurocurrency Advance
and such Bank has provided to the Agent and the Borrower a certificate prepared
in good faith to that effect, or (c) by reason of national or international
financial, political or economic conditions or by reason of any applicable law,
treaty, rule or regulation (whether domestic or foreign) now or hereafter in
effect, or the interpretation or administration thereof by any governmental
authority charged with the interpretation or administration thereof, or
compliance by any Bank with any directive of such authority (whether or not
having the force of law), including without limitation exchange controls, it is
impracticable, unlawful or impossible for any Bank (i) to make or fund the
relevant Eurocurrency Advance or (ii) to continue such Eurocurrency Advance as a
Eurocurrency Advance of the then existing type or (iii) to convert a Loan to
such a Eurocurrency Advance, then the Borrower shall not be entitled, so long as
such circumstances continue, to request a Eurocurrency Advance of the affected
type or a continuation of or conversion to a Eurocurrency Advance of the
affected type. In the event that such circumstances no longer exist, the Banks
shall again honor requests, subject to this Agreement, for Eurocurrency Advances
of the affected type and requests for continuations of and conversions to
Eurocurrency Advances of the affected type.
3.11 Substitution of Bank. If (i) the obligation of any Bank to make or
maintain Eurocurrency Advances has been suspended pursuant to Section 3.10 when
not all Banks' obligations have been suspended, (ii) any Bank does not agree to
an amendment or other modification to this Agreement or any other Loan Document
which requires the approval of all Banks when the Requisite Banks have agreed or
(iii) any Bank is a Defaulting Bank, the Borrower shall have the right, if no
Default or Event of Default then exists, to replace such Bank (a "Replaced
Bank") with one or more other Banks or other lenders (collectively, the
"Replacement Bank") acceptable to the Agent, provided that (x) at the time of
any replacement pursuant to this Section 3.11, the Replacement Bank shall enter
into one or more Assignment and Acceptances, pursuant to which the Replacement
Bank shall acquire the Commitments and outstanding Advances and other
obligations of the Replaced Bank and, in connection therewith, shall pay to the
Replaced Bank in respect thereof an amount equal to the sum of (A) the amount of
principal of, and all accrued interest on, all outstanding Loans of the Replaced
Bank, (B) the amount of all accrued, but theretofore unpaid, fees owing to the
Replaced Bank and (C) the amount which would be payable by the Borrower to the
Replaced Bank pursuant to Section 7.4 if the Borrower prepaid at the time of
such replacement all of the Loans of such Replaced Bank outstanding at such time
and (y) all obligations of the Borrower then owing to the Replaced Bank (other
than those specifically described in clause (x) above in respect of which the
assignment purchase price has been, or is concurrently being, paid) shall be
paid in full to such Replaced Bank concurrently with such replacement. Upon the
execution of the respective Assignment and Acceptances, the payment of amounts
referred to in clauses (x) and (y) above and, if so requested by the Replacement
Bank, delivery to the Replacement Bank of the appropriate Note or Notes
27
executed by the Borrower, the Replacement Bank shall become a Bank hereunder and
the Replaced Bank shall cease to constitute a Bank hereunder. The provisions of
this Agreement shall continue to govern the rights and obligations of a Replaced
Bank with respect to any Loans made or any other actions taken by such Bank
while it was a Bank. Nothing herein shall release any Defaulting Bank from any
obligation it may have to the Borrower, the Agent or any other Bank. Each Bank
agrees to take such actions, at the Borrower's expense, as may be reasonably
necessary to effect the foregoing if it shall become a Replaced Bank.
3.12 No Setoff or Deduction. All payments of principal of and interest on
the Advances and other amounts payable by the Borrower hereunder shall be made
by the Borrower without setoff or counterclaim, and free and clear of, and
without deduction or withholding for, or on account of, any present or future
taxes, levies, imposts, duties, fees, assessments, or other charges of whatever
nature, imposed by any governmental authority, or by any department, agency or
other political subdivision or taxing authority, unless required by applicable
laws. If any such taxes, levies, imposts, duties, fees, assessments, or other
charges are required to be withheld from any amounts payable hereunder with
respect to any Advance in any Optional Currency, the amounts so payable shall be
increased to the extent necessary to yield to the payee thereof the interest or
any such other amounts payable hereunder at the rates and in the amounts
specified in this Agreement.
3.13 International Transaction. (a) This Agreement arises in the context of
an international transaction, and the specification of payment in a specific
currency at a specific place pursuant to this Agreement is of the essence. Such
specified currency shall be the currency of account and payment under this
Agreement. The obligations of the Borrower hereunder shall not be discharged by
an amount paid in any other currency or at another place, whether pursuant to a
judgment or otherwise, to the extent that the amount so paid, on prompt
conversion into the applicable currency and transfer to the Banks under normal
banking procedure, does not yield the amount of such currency due under this
Agreement. In the event that any payment, whether pursuant to a judgment or
otherwise, upon conversion and transfer, does not result in payment of the
amount of such currency due under this Agreement, the Banks shall have an
independent cause of action against the Borrower for the currency deficit.
(b) If for purposes of obtaining judgment in any court it becomes
necessary to convert any currency due hereunder into any other currency, the
Borrower will pay such additional amount, if any, as may be necessary to ensure
that the amount paid in respect of such judgment is the amount in such other
currency which, when converted at the Agent's spot rate of exchange prevailing
on the date of payment, would yield the same amount of the currency due
hereunder. Any amount due from the Borrower under this Section 3.12(b) will be
due as a separate debt and shall not be affected by judgment being obtained for
any other sum due under or in respect of this Agreement.
4. REPRESENTATIONS AND WARRANTIES. In order to induce each Bank to enter into
this Agreement and to provide the Loans, Borrower represents and warrants to
each Bank that the following statements are true, correct and complete at the
date hereof and at the date of each Advance and the issuance of each Letter of
Credit:
28
4.1 Organization, Powers, Good Standing.
4.1.1 Organization and Good Standing. Each of the Borrower and its
Subsidiaries (a) is a legal entity duly organized, validly existing and in good
standing under the laws of the respective jurisdiction of its organization, (b)
has full power, authority and legal right to own and operate its property and to
conduct the business in which it is currently engaged, (c) is duly qualified and
is in good standing under the laws of each jurisdiction in which the failure to
so qualify may have a material adverse affect on its business, its Subsidiaries,
taken as a whole, or the ability of the Borrower to repay the Loan or to observe
and perform its obligations under the Loan Documents, and (d) is in compliance
in all material respects with all Requirements of Law, except where the lack of
compliance could not reasonably be expected to materially adversely impact the
business, operations, properties or condition (financial or otherwise) of the
Borrower and its Subsidiaries, taken as a whole, or the ability of the Borrower
to repay the Loan or to observe and perform its obligations under the Loan
Documents.
4.1.2 Power and Authority. Borrower has full power and authority to
execute, deliver and perform the Loan Documents, including, without limitation,
to borrow under this Agreement. Each Guarantor has full power and authority to
execute, deliver and perform the Guaranties. Borrower and each Guarantor has
taken all necessary action to authorize the execution, delivery and performance
of the Loan Documents and Borrower has taken all necessary action to borrow
under this Agreement. No consent or authorization of, or filing with, any Person
(including, without limitation, any Governmental Authority) is required in
connection with the execution, delivery and performance by Borrower or any
Guarantor or the validity or enforceability against Borrower or any Guarantor of
the Loan Documents.
4.2 Authorization of Borrowing; Etc.
4.2.1 No Violation. The execution, delivery and performance by
Borrower of this Agreement and the other Loan Documents and the execution,
delivery and performance by any Guarantor of the Guaranties do not and will not
(a) violate any Requirement of Law applicable to Borrower or any Subsidiary, (b)
conflict with, result in a breach of or constitute (with due notice or lapse of
time or both) a default under any contractual obligation of Borrower or any
Subsidiary, (c) result in or require the creation or imposition of any Lien of
any nature whatsoever upon any of Borrower's or any Subsidiary's properties or
assets, other than in favor of the Banks, or (d) require any approval of any
court or Governmental Authority or any approval or consent of any Person under
any contractual obligation of Borrower.
4.2.2 Legally Valid and Binding. The Loan Documents and all other
documents contemplated hereby and thereby, when executed and delivered, will be
the legally valid and binding obligations of Borrower and of the Guarantors, as
the case may be, enforceable against it and them in accordance with their
respective terms, except as enforcement may be limited by equitable principals
or by bankruptcy, insolvency, reorganization, moratorium or similar laws, or
equitable principles relating to or limiting creditors' rights generally.
29
4.3 Subsidiaries. Schedule 1.1(b) correctly sets forth as to each
Subsidiary, its name, the jurisdiction of its organization, the name of its
immediate parent and the percentage of its Capital Stock that is directly or
indirectly owned by Borrower. Other than (1) as set forth in its annual reports
as filed with the SEC, which have been disclosed in writing to the Banks, (2)
stock acquisitions made since its most recent annual report filed with the SEC,
and (3) the Subsidiaries, Borrower does not own more than $10,000,000 (on a cost
basis) in the aggregate of Capital Stock in any Persons.
4.4 Title. Borrower and Subsidiaries, as applicable, have good and valid
legal title to the assets reflected in Borrower's consolidated financial
statements dated as of December 31, 2005 previously submitted to each of the
Banks. There are no Liens, charges or encumbrances (other than Permitted Liens),
on such property or assets referenced in the prior sentence except those
reflected on such financial statements.
4.5 Litigation; Adverse Facts. Except as set forth on Schedule 4.5 to this
Agreement, there is no action, suit, dispute, investigation, inquiry,
arbitration, tax claim or other proceeding (including, without limitation, the
enactment or promulgation of a statute or rule) at law or in equity or before or
by any arbitrator or Governmental Authority pending or, to the knowledge of
Borrower, threatened, against Borrower or any Subsidiary which might reasonably
be expected to result in any material adverse change in the business,
operations, properties or in the business prospects or condition (financial or
otherwise), of Borrower and its Subsidiaries, taken as a whole, or would
materially adversely affect Borrower's ability to perform its Obligations
hereunder and under any other Loan Document.
4.6 Payment of Taxes. Other than Mining Remedial Recovery Corporation and
its Subsidiaries and XXXX Acquisition EURL and its Subsidiaries all material tax
returns and reports required to be filed by Borrower and each Subsidiary have
been prepared in accordance with acceptable standards and have been timely
filed, and all Taxes, assessments, fees and amounts required to be withheld and
paid to a Governmental Authority, and other governmental charges upon Borrower
and each Subsidiary and upon their properties, assets, income and franchises
which are shown on such returns to be due and payable have been paid when due
and payable. Borrower does not know of any proposed, asserted or assessed tax
deficiency against it or any Subsidiary which might reasonably be expected to
result in any material adverse change in the condition (financial or otherwise)
of Borrower or any Subsidiary (other than Mining Remedial Recovery Corporation
and its Subsidiaries). Neither Borrower nor any Subsidiary is a party to, bound
by or obligated under any tax sharing or similar agreement.
4.7 Materially Adverse Agreements; Performance.
4.7.1 No Material Adverse Agreements. Neither Borrower nor any
Subsidiary is a party to or subject to any material agreement, instrument,
charter or other internal restriction materially adversely affecting the
business, properties or assets of Borrower or any Guarantor or the operations,
business prospects or condition (financial or otherwise) of Borrower and
Guarantors, taken as a whole.
30
4.7.2 No Default. Neither Borrower nor any Subsidiary is in material
default in the performance, observance or fulfillment of any of the material
obligations, covenants or conditions contained in any of its contractual
obligations and no condition exists which, with the giving of notice or the
lapse of time or both, would constitute such a default, which, taken as a whole,
could reasonably be expected to adversely affect the business, operations,
property or assets, the business prospects, or condition (financial or
otherwise), of its Subsidiaries taken as a whole, or the ability of Borrower to
repay the Loan or to observe and perform its obligations under the Loan
Documents
4.7.3 Ownership of Intellectual Property. Borrower and each Domestic
Subsidiary owns or possesses all patents, trademarks, service marks, trade
names, copyrights, licenses and rights necessary for the present and planned
future conduct of its business, without any known conflict with the rights of
others, except as listed on Schedule 4.7.3 to this Agreement.
4.8 Disclosure. No representation or warranty of Borrower contained in this
Agreement or in any other Loan Document or other document, certificate or
written statement furnished to the Banks by or on behalf of Borrower with
respect to the business prospects or condition (financial or otherwise) of
Borrower and each Subsidiary for use in connection with the transactions
contemplated by this Agreement, contains any untrue statement of a material fact
or omits to state a material fact necessary in order to make the statements
contained herein or therein not misleading. For purposes of the previous
sentence the phrase "material fact," is a fact or facts which, taken as a whole,
could reasonably be expected to adversely affect the business, operations,
property or assets, the business prospects, or condition (financial or
otherwise), of Borrower and its Subsidiaries taken as a whole, or the ability of
Borrower to repay the Loans or to observe and perform its obligations under the
Loan Documents. There is no material fact known to Borrower which adversely
affects the business, operations, property or assets, the business prospects, or
condition (financial or otherwise), of Borrower and its Subsidiaries, taken as a
whole, which has not been disclosed herein or in such other documents,
certificates and statements furnished to the Banks for use in connection with
the transactions contemplated hereby.
4.9 ERISA Compliance. Borrower and Subsidiaries are in compliance in all
material respects with any applicable provisions of ERISA. Except as set forth
on Schedule 4.9 to this Agreement, (i) neither a Reportable Event nor a
Prohibited Transaction has occurred or is continuing in relation to any pension
plan, which, taken as a whole, could reasonably be expected to adversely affect
the business, operations, property or assets, the business prospects, or
condition (financial or otherwise), of Borrower and its Subsidiaries taken as a
whole, or the ability of Borrower to repay the Loan or to observe and perform
its obligations under the Loan Documents, and (ii) Borrower and each Subsidiary
have not incurred any liability to the Pension Benefit Guaranty Corporation,
except where the occurrence of such event could not reasonably be expected to
adversely affect the business, operations, property or assets, the business
prospects, or condition (financial or otherwise), of Borrower and its
Subsidiaries taken as a whole, or the ability of Borrower to repay the Loan or
to observe and perform its obligations under the Loan Documents.
31
4.10 Environmental Matters. Except as set forth in Schedule 4.10 to this
Agreement, Borrower and each Subsidiary has complied in all respects with all
Environmental Protection Statutes, except where the lack of compliance could not
reasonably be expected to materially adversely impact the business, operations,
properties or condition (financial or otherwise) of Borrower and its
Subsidiaries, taken as a whole, or the ability of Borrower to repay the Loan or
to observe and perform its obligations under the Loan Documents. Except as set
forth on Schedule 4.10 to this Agreement, neither Borrower nor any Subsidiary,
nor, to the best of Borrower's knowledge, any other person, used any real
property owned or leased by Borrower or any Subsidiary in the disposal of or to
refine, generate, produce, store, treat, transfer, release or transport any
hazardous waste or hazardous substance, or been designated by the United States
Environmental Protection Agency or under any Environmental Protection Statute as
a hazardous waste or hazardous substance disposal or removal site, superfund or
clean-up site or candidate for removal or closure pursuant to any Environmental
Protection Statute, which, taken as a whole, could reasonably be expected to
materially adversely affect the business, operations, property or assets, the
business prospects, or condition (financial or otherwise), of its Subsidiaries
taken as a whole, or the ability of Borrower to repay the Loan or to observe and
perform its obligations under the Loan Documents. Other than Mining Remedial
Recovery Corporation and its Subsidiaries and XXXX Acquisition EURL and its
Subsidiaries, no lien arising under or in connection with any environmental
protection statute has attached to any revenues or to any real or personal
property owned by Borrower or any Subsidiary. Borrower agrees to indemnify and
hold each Bank harmless from any and all violations by Borrower or any
Subsidiary of any Environmental Protection Statute.
4.11 Investment Company. Borrower is not directly or indirectly controlled
by, or acting on behalf of, a Person which is an "Investment Company" within the
meaning of the Investment Company Act of 1940, as amended, that is organized or
otherwise created under the laws of the United States, any State of the United
States, the District of Columbia, Puerto Rico, the Philippine Islands, the
Virgin Islands or any other possession of the United States.
4.12 Regulations T, U and X. No part of the proceeds of the Advances will
be used to purchase or carry any Margin Stock or to extend credit to others for
the purpose of purchasing or carrying any Margin Stock. Neither Borrower nor any
Subsidiary is engaged principally, or as one of its important activities, in the
business of extending credit for the purposes of purchasing or carrying any
Margin Stock. If requested by Agent, Borrower will furnish Agent with a
statement in conformity with the requirements of Federal Reserve Form U-1
referred to in said Regulation. Borrower also warrants that no part of the
proceeds of the borrowings hereunder will be used by it for any purpose which
violates, or which is inconsistent with, the provisions of Regulation T, U or X.
After applying the proceeds of each Advance, Margin Stock will not constitute
more than 25% of the value of the assets (either of the Borrower alone or of the
Borrower and its Subsidiaries on a consolidated basis) that are subject to any
provisions of this Agreement that may cause the Advances to be deemed secured,
directly or indirectly, by Margin Stock.
4.13 Indebtedness. Neither Borrower nor any Subsidiary has any outstanding
Indebtedness except Indebtedness described in (1) Schedule 4.13 to this
Agreement or (2) permitted under Section 6.1 of this Agreement.
32
4.14. Solvency. Immediately after the consummation of the transactions to
occur on the date hereof and immediately following the making of each Advance,
including Line of Credit Loans and the issuance of any Letter of Credit, if any,
made on the date hereof and after giving effect to the application of the
proceeds of such Advances, (a) the fair value of the assets of the Borrower and
its Fundamental Subsidiaries on a consolidated basis will exceed the debts and
liabilities, subordinated, contingent or otherwise, of the Borrower and its
Fundamental Subsidiaries on a consolidated basis; (b) the Borrower and its
Fundamental Subsidiaries on a consolidated basis will be able to pay their debts
and liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and (c) the Borrower and its
Fundamental Subsidiaries on a consolidated basis will not have unreasonably
small capital with which to conduct the businesses in which they are engaged as
such businesses are not conducted and are proposed to be conducted after the
date hereof.
4.15 Reportable Transaction. Unless the Borrower has made the determination
referred to in the following sentence, the Borrower does not intend to treat the
Obligations and related transactions contemplated by the Loan Documents as a
"reportable transaction" under Sections 6011, 6111 or 6112 of the Internal
Revenue Code or the treasury regulations promulgated thereunder. In the event
the Borrower determines to treat any of the Obligations or such transactions as
such a "reportable transaction", the Borrower shall immediately notify the
Agent.
4.16 Survival. All of the representations and warranties set forth in this
Section 4 will survive until all of the Obligations are satisfied in full and
there remain no outstanding Commitments hereunder.
4.17 Subordinated Debt Documents. All representations and warranties of the
Borrower contained in any Subordinated Debt Document are true and correct in all
material respects as of the date such representations and warranties are made.
The subordination provisions of the Subordinated Debt are enforceable against
the holders of the Subordinated Debt by the Agent and the Banks. All Obligations
are senior debt as defined in the Subordinated Debt Documents entitled to the
benefits of the subordination provisions contained in the Subordinated Debt
Documents, and are and will be incurred in compliance with all Subordinated Debt
Documents. There is no event of default or event or condition which would become
an event of default with notice or lapse of time or both, under any Subordinated
Debt Document and each of the Subordinated Debt Documents is in full force and
effect. The Borrower acknowledges that the Agent and each Bank are entering into
this Agreement and are extending the Commitments and making Advances in reliance
upon the subordination provisions of the Subordinated Debt.
5. AFFIRMATIVE COVENANTS. Borrower covenants and agrees that, until all of the
Obligations are satisfied and the Commitments hereunder have been terminated,
Borrower will perform each and all of the following:
5.1 Use of Proceeds. Borrower will use the proceeds of the Advances only
for the purposes set forth in Section 2.5.
33
5.2 Accounting Records. Borrower will maintain adequate records in
accordance with sound business practices and GAAP, applied on a Consistent
Basis, except for changes required by GAAP, changes in accordance with GAAP and
approved by the Agent or other changes consented to in writing by the Requisite
Banks (which consent will not be unreasonably withheld). Upon five (5) days'
prior notice, Borrower will provide, and cause each Subsidiary to provide,
access to representatives of each Bank to visit any of the properties of
Borrower or any Subsidiary and examine the books of account and discuss
Borrower's and each Subsidiary's affairs, finances and accounts with, and be
advised of the same by, Borrower's and each Subsidiary's officers and outside
auditors, all at such reasonable times and as often as any Bank may reasonably
request.
5.3 Reports. Borrower will deliver to the Banks and the Agent:
5.3.1 Quarterly Reports. As soon as available and in any event within
forty five (45) days after the end of each of the first three quarters of each
fiscal year of Borrower, management prepared consolidated financial statements
of Borrower and Subsidiaries as of the end of such quarter, and the consolidated
statements of profit and loss and surplus of Borrower and Subsidiaries from the
beginning of Borrower's and Subsidiaries' fiscal year to the end of such
quarter, certified as correct (subject to year end adjustments) by the chief
financial officer of Borrower.
5.3.2 Annual Reports. As soon as available, and in any event within
ninety (90) days after the end of each fiscal year of Borrower, the complete
audited, consolidated financial statements of Borrower and Subsidiaries,
including the consolidated balance sheet of Borrower and Subsidiaries as of the
end of such year and the consolidated statements of profit and loss and surplus
of Borrower and Subsidiaries for the fiscal year then ended, certified by Ernst
& Young (without a going concern or similar financially adverse qualification),
or such other independent certified public accountants of recognized standing,
to be prepared in accordance with GAAP and to present fairly the financial
position and results of operation of Borrower and Subsidiaries. Additionally, if
requested by the Agent, the Borrower will provide internally prepared
consolidating financial statements within 90 days after the end of each fiscal
year.
5.3.3 Accounts Receivable and Payable Aging. Upon the request of Agent
or Requisite Banks, accounts receivable aging reports, accounts payable aging
reports and inventory certifications.
5.3.4 Compliance Certificate. Within forty five (45) days after the
end of each calendar quarter, a compliance certificate in the form of Exhibit
5.3.4 to this Agreement, duly completed and executed by the Chief Financial
Officer of Borrower.
5.3.5 Copies of Reports Sent to the Banks. Unless otherwise specified,
copies of all of the reports furnished under this Section 5.3 shall be sent by
Borrower directly to the Banks.
5.3.6 Report of Certain Events. Promptly upon Borrower becoming aware
of the occurrence of any: (a) Unmatured Event of Default or Event of Default;
(b) Reportable
34
Event; or (c) Prohibited Transaction in connection with any pension plan or any
trust created thereunder, a written notice specifying the nature thereof, what
action Borrower is taking or proposes to take with respect thereto, and, when
known, any action taken by the Internal Revenue Service with respect thereto,
will be delivered to Agent by Borrower.
5.3.7 Threat of Bankruptcy. Promptly upon becoming aware of
any Person's seeking to obtain or threatening in writing to seek to obtain a
decree or order for relief with respect to Borrower or any Restricted Subsidiary
in an involuntary case under any applicable bankruptcy, insolvency, or other
similar law now or hereafter in effect, a written notice thereof specifying what
action Borrower or such Restricted Subsidiary is taking or proposes to take with
respect thereto.
5.3.8 Amendments to Charter or Bylaws. Promptly, copies of all
amendments to the charter or bylaws of Borrower and, if requested by the Agent,
any Guarantor.
5.3.9 Copy of Process. Promptly, and in any event within five (5) days
after the receipt thereof by Borrower or any Subsidiary, a copy of any notice,
summons, citation, directive, letter or other form of communication from any
Governmental Agency or instrumentality, in any way concerning any action or
omission on the part of Borrower or any Subsidiary in connection with any
Environmental Protection Statute, or concerning the filing of a lien upon,
against or in connection with Borrower or any Subsidiary, or any of their real
or personal property, in connection with any Environmental Protection Statute,
except where such action or omission by Borrower or any Subsidiary could not
reasonably be expected to materially adversely impact the business, operations,
properties or condition (financial or otherwise) of the Borrower and its
Subsidiaries, taken as a whole, or the ability of the Borrower to repay the Loan
or to observe and perform its obligations under the Loan Documents.
5.3.10 Copy of SEC Filings. Promptly after the sending or filing
thereof, notice of the filing of all reports, proxy statements and financial
statements which Borrower files with its shareholders or any securities exchange
or the SEC, including, without limitation, all reports on Form 10-K, 10-Q, and
8-K. Such reports need not include exhibits. Borrower agrees to promptly provide
Agent with exhibits specifically requested by Agent or any Bank.
5.3.11 Copy of Process From Governmental Authority. Promptly, and in
any event within five (5) days of the receipt thereof by Borrower, a copy of a
notice, summons, citation, directive, letter, complaint, or other form of
communication from the U.S. Department of Labor, or any other Governmental
Authority or instrumentality, or any other Person, in any way concerning any
action or omission on the part of Borrower or any Subsidiary in connection with
the payment of minimum and/or overtime wages to its employees, or concerning the
filing of a lien upon, against or in connection with Borrower or any Subsidiary,
or any of its real or personal property, in connection with the FLSA, except
where such action or omission by Borrower or any Subsidiary could not reasonably
be expected to materially adversely impact the business, operations, properties
or condition (financial or otherwise) of the Borrower and its Subsidiaries,
taken as a whole, or the ability of the Borrower to repay the Loan or to observe
and perform its obligations under the Loan Documents.
35
5.3.12 Notice Of Litigation. Promptly, upon Borrower making a
determination with respect to any litigation or proceeding in which it or any
Restricted Subsidiary is a party that an adverse decision in any such matter is
reasonably likely to require it to pay more than $10,000,000 in excess of the
amount of any insurance covering such claim, or deliver assets the value of
which exceeds such sum or of the institution of any other suit or proceeding to
which Borrower or any Subsidiary is a party that, by itself or together with any
other such matters, might materially and adversely affect the operations,
financial condition, property, or business prospects of the Borrower and its
Subsidiaries, taken as a whole.
5.3.13 Other Information. Promptly, such other information and data
with respect to Borrower or any Subsidiary as from time to time may be
reasonably requested by any Bank.
5.3.14 Pro Forma Compliance Certificate. Not less than 30 days prior
to the consummation of any proposed Acquisition which, when aggregated with all
other Acquisitions consummated directly or indirectly by the Borrower since the
date of the most recent Compliance Certificate furnished pursuant to Section
5.3.4 hereof, will result in a cumulative increase in the Borrower's Total Debt
as a result of all such Acquisitions of $25,000,000 or more, a pro forma
management compliance certificate certifying that all covenants set forth in
Sections 5 and 6 hereof will be complied with as of the date of such
Acquisition(s).
5.3.15 Subordinated Debt Notices. Promptly following receipt or
filing, copies of (i) any notices of default or acceleration or of the exercise
of any material rights or remedies received from any holder or trustee (or
similar representative) with respect to any Subordinated Debt, (ii) any notices
of reports required by the Trust Indenture Act of 1939, or any successor
statute, or filed with the Securities and Exchange Commission with respect to
any Subordinated Debt, (iii) any other notice from the trustee (or similar
representative) with respect to any Subordinated Debt and (iv) any other notices
with respect to any Subordinated Debt requested by the Agent.
5.3.16 Other Information. Such other information as any Bank may
reasonably request.
5.4 Financial Covenants. Borrower will at all times comply with the
following financial covenants:
5.4.1 Total Debt to Capitalization Ratio. Borrower will not permit the
ratio of Borrower's Total Debt to Capitalization to exceed 60.0%, on a
consolidated basis.
5.4.2 Interest Coverage Ratio. Borrower will not permit the Interest
Coverage Ratio to be less than 3.50 to 1.00, on a consolidated basis as
calculated on a rolling four (4) quarter basis.
5.5 Corporate Existence. Except as permitted under Section 6.3, Borrower
will at all times preserve and keep in full force and effect its and each
Restricted Subsidiary's corporate existence except for (i) Mining Remedial
Recovery Corporation and its Subsidiaries, the book
36
value of which, when combined with other Restricted Subsidiaries made subject to
this exception is less than $5,000,000 in the aggregate, and (ii) individual
Restricted Subsidiaries whose book value is less than $1,000,000 and any rights
material to its business and will maintain its and each Restricted Subsidiary's
right to transact business in each jurisdiction where its assets or the nature
of its activities makes such qualification necessary, except where the failure
could not reasonably be expected to materially impact, adversely impact for
business, operations, properties or condition (financial or otherwise) of the
Borrower and its Subsidiaries, taken as a whole, or the ability of Borrower to
repay the Loan or to observe and perform its obligations under the Loan
Documents.
5.6 Payment of Taxes and Claims. Borrower will pay all Taxes, assessments
and other governmental charges imposed upon Borrower or any Restricted
Subsidiary (other than Mining Remedial Recovery Corporation and its
Subsidiaries) before any penalty or interest accrues thereon; provided, however,
that Borrower will not be required to pay any such Taxes, assessments, or
charges if (a) the validity thereof will currently be contested in good faith by
appropriate proceedings, (b) Borrower will have set aside on its books adequate
reserves with respect to such Taxes, assessments, or charges and (c) Borrower
gives notice in writing of such action to Agent and the Banks; provided that any
such Taxes, assessments, or charges will be paid immediately upon the
commencement of proceedings to foreclose any liens securing the same, or upon
institution of distrait proceedings.
5.7 Insurance. Borrower will maintain and cause each Subsidiary to
maintain, in full force and effect, adequate fire and extended risk coverage,
business interruption, workers' compensation, public liability and such other
insurance coverage's as may be required by law and/or in such amounts as is
customary in the case of entities of well-established reputation engaged in the
same or similar business. Borrower will allow representatives of each Bank to
meet with senior management of Borrower and any Subsidiary, from time to time as
the Banks reasonably request in order to assess the adequacy of such insurance
policies.
5.8 Compliance With Laws, etc. Borrower will exercise all due diligence in
order to comply, in all material respects, with all Requirements of Laws, except
where the lack of compliance could not reasonably be expected to materially
adversely impact the business, operations, properties or condition (financial or
otherwise) of Borrower and the Subsidiaries, taken as a whole, or the ability of
Borrower to repay the Loan or observe and perform any of its obligations under
the Loan Documents, including, without limitation, the following:
5.8.1 Workers Compensation Laws. Borrower will comply with all
applicable workers' compensation laws, regulations and administrative rules,
directives or requirements. Borrower will furnish Agent upon demand evidence in
form and substance as Agent or its counsel may reasonably require in order to
verify such compliance. In the event that Borrower is qualified to self-insure
under such laws, regulations and administrative rules, directives or
requirements, and that Borrower is not otherwise precluded from so self-insuring
by the terms of this Agreement, Borrower will fully comply with all such laws,
regulations, rules, directives and requirements pertaining to its self-insured
status.
37
5.8.2 Pension Plans. Neither Borrower nor any of its pension plans
will engage in any Prohibited Transaction; incur any "accumulated funding
deficiency" (as such term is defined in Section 302 of ERISA)whether or not
waived; or terminate any such pension plan in a manner which could result in the
imposition of a lien on the property of Borrower, pursuant to Section 4068 of
ERISA or any successor provision thereto.
5.8.3 FLSA Compliance. Borrower will comply with FLSA and will furnish
Agent upon demand evidence in form and substance as Agent or its counsel will
require to verify such compliance.
5.8.4 Environmental Compliance. Borrower will comply with all
applicable Environmental Protection Statutes.
5.9 Payment of Indebtedness. Borrower and each of its majority owned
Subsidiaries (except Mining Remedial Recovery Corporation and its Subsidiaries
and XXXX Acquisition EURL and its Subsidiaries) will pay all of its
Indebtedness, promptly when due in accordance with the terms of such
Indebtedness, except to the extent that failure to pay such Indebtedness would
not constitute an Event of Default under Section 7.1.4 hereof.
5.10 Maintenance of Franchises, etc. Borrower and each Restricted
Subsidiary will do or cause to be done all things necessary to preserve, renew
and keep in full force and effect the rights, licenses, permits, franchises,
agency agreements, and trade names material to the conduct of its business, and
maintain and operate such businesses properly and efficiently, and in
substantially the manner in which they are presently conducted and operated
(subject to changes in the ordinary course of business), except where the
failure to do so could not reasonably be expected to materially adversely impact
the business, operations, properties or condition (financial or otherwise) of
Borrower and the Subsidiaries, taken as a whole, or the ability of Borrower to
repay the Loan or observe and perform any of its obligations under the Loan
Documents.
5.11 Further Assurances. At any time or from time to time, upon the request
of Agent, Borrower will execute and deliver such further documents and do such
other acts and things as Agent may reasonably request in order to effect fully
the purpose of this Agreement, the other Loan Documents and other agreements
contemplated hereby and to provide for payment of and security for the Loan made
hereunder in accordance with the terms of this Agreement.
5.12 New Guaranties. If at the end of any Fiscal Year, as required under
Section 6.3 or as otherwise required hereunder, the Restricted Subsidiaries do
not meet the test set forth in the following sentence, additional Domestic
Subsidiaries must, within sixty (60) days of the end of such most recent Fiscal
Year, execute Guaranties so that the Domestic Subsidiaries that have executed
guarantees meet such test. The test is that the Domestic Subsidiaries that have
executed Guarantees must have (a) the net earnings, before taxes, which,
together with the respective Subsidiaries, and Borrower (but excluding
Subsidiaries that are not Restricted Subsidiaries) for the most recent fiscal
year of the Borrower constitute seventy-five percent (75%) percent or more of
the consolidated net earnings of the Borrower and the Subsidiaries, as
determined in accordance with GAAP, and (b) total assets, calculated in
accordance with GAAP, which,
38
together with their respective Subsidiaries and Borrower (but excluding
Subsidiaries that are not Restricted Subsidiaries) for most recent fiscal year
end of the Borrower, constitute sixty percent (60%) percent or more of the
consolidated Total Assets of the Borrower and the Subsidiaries. The Borrower
represents that this test is satisfied (based on the most recent financial
statements of the Borrower and its Subsidiaries prior to the Closing Date) for
the Guarantors as of the Closing Date. The Guaranty shall be in the form of
Exhibit 3.3.1(b) and the Subsidiaries executing the guaranty shall deliver with
the executed guaranty certified copies of such Subsidiary's organizational
documents, including resolutions authorizing the execution and delivery of such
Guaranty, and together with an opinion of counsel for such Subsidiary in form
and substance satisfactory to the Agent and its counsel. Notwithstanding the
foregoing, no newly acquired Domestic Subsidiary shall be required to deliver
such a guaranty so long as the giving of such a guaranty would constitute a
default under the terms of any loan document between such acquired Domestic
Subsidiary and a bona fide lending institution which was entered into prior to,
but not in contemplation of, such Acquisition.
5.13 Additional Covenants. If at any time the Borrower shall enter into or
be a party to any instrument or agreement with respect to any Indebtedness which
in the aggregate, together with any related Indebtedness, exceeds $5,000,000,
including all such instruments or agreements in existence as of the date hereof
and all such instruments or agreements entered into after the date hereof,
relating to or amending any terms or conditions applicable to any of such
Indebtedness which includes covenants or defaults or the equivalent thereof not
substantially provided for in this Agreement or more favorable to the lender or
lenders thereunder than those provided for in this Agreement, then the Borrower
shall promptly so advise the Agent and the Banks. Thereupon, if the Required
Banks shall request, upon notice to the Borrower, the Agent and the Banks shall
enter into an amendment to this Agreement or an additional agreement (as the
Required Banks may request), providing for substantially the same covenants or
defaults or the equivalent thereof, as those provided for in such instrument or
agreement to the extent required and as may be selected by the Required Banks.
6. NEGATIVE COVENANTS. Borrower covenants and agrees that, until all of the
Obligations are satisfied and the Commitments hereunder have been terminated,
Borrower will not, without the prior written consent of the Requisite Banks do
any of the following:
6.1 Indebtedness. Except as set forth on Schedule 4.13 to this Agreement,
Borrower will not, and will cause each of the Subsidiaries (but excluding any
Subsidiary organized in Europe and any Subsidiary in which Borrower directly or
indirectly owns less than a majority interest) not to, create, incur, assume,
permit or otherwise become or remain, directly or indirectly, liable with
respect to any Indebtedness except for:
(i) the Obligations,
(ii) Indebtedness under the 2004 Subordinated Debt Documents in an
aggregate principal amount not to exceed $297,688,000, as reduced from time to
time,
39
(iii) consolidating inter-company indebtedness among Borrower and its
Subsidiaries as shown on consolidating financial statements delivered pursuant
to Section 5.3.1 of this Agreement, and
(iv) Other Indebtedness of Borrower and its Subsidiaries in an aggregate
amount not to exceed 10% of Net Worth.
Furthermore, Borrower and Restricted Subsidiaries, from and after the Closing
Date, shall not make new loans or advances to transfer assets to, or make
investments in Subsidiaries that are not Restricted Subsidiaries, net of
repayments or advances from Subsidiaries that are not Restricted Subsidiaries,
in excess of $45,000,000.
6.2 Liens. Borrower will not, and will cause each Restricted Subsidiary not
to, directly or indirectly, create, incur, assume or permit to exist any Lien on
or with respect to any property or asset of any kind of Borrower or any
Subsidiary, whether now owned or hereafter acquired except (i) Permitted Liens,
(ii) liens created by or resulting from any litigation or legal proceeding
(including any regulatory enforcement actions) and against which adequate
reserves under GAAP are being maintained which is currently being contested in
good faith by appropriate proceedings, and, if the amount of any such Lien
exceeds $1,000,000 and the Requisite Banks so request, such Lien shall have been
bonded over in a manner reasonably satisfactory to the Requisite Banks, (iii)
Liens for taxes not delinquent or being contested in good faith, (iv) Liens
created in connection with workers' compensation, unemployment insurance, and
social security, or to secure the performance of bids, tenders or contracts
(other than for the repayment of borrowed money), leases, statutory obligations,
surety and appeal bonds, (v) Liens existing on the Closing Date as set forth on
Schedule 6.2 hereof, (vi) Liens representing the extension, renewal or
replacement of a Lien under immediately preceding clause (v) in respect of the
same property of the same Subsidiary, (vii) Liens securing other Indebtedness
permitted under Section 6.1(iv) up to an aggregate amount not to exceed 5% of
Net Worth.
6.3 Restriction on Fundamental Changes. Borrower will not, and will cause
each Fundamental Subsidiary not to fundamentally change the nature of its
business, enter into any merger, consolidation, reorganization or
recapitalization, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), or convey, sell (other than in the ordinary course
of its business), assign, lease, transfer or otherwise dispose of, in one
transaction or a series of transactions, all or any part of its business,
property, assets or securities, whether now owned or hereafter acquired, or
acquire by purchase or otherwise, all or substantially all the business,
property, assets, securities or interest of any Person; provided that (a) a
Domestic Subsidiary may merge or consolidate with Borrower, provided that the
Borrower will be the surviving corporation; (b) a Domestic Subsidiary may merge
or consolidate with another Domestic Subsidiary that is both a Fundamental
Subsidiary and a Restricted Subsidiary; (c) a Domestic Subsidiary may sell,
lease, transfer or otherwise dispose of any of its assets to Borrower or another
Domestic Subsidiary that is both a Fundamental Subsidiary and a Restricted
Subsidiary; (d) Borrower may acquire or form additional Subsidiaries; provided
that each such newly formed or acquired Subsidiary is wholly-owned by Borrower
(unless Borrower has obtained the prior written consent of the Requisite Banks
to acquire or form a Subsidiary which will not be wholly-owned, which consent
will not be unreasonably withheld); and further provided that each such
40
newly formed or acquired Subsidiary becomes, on its formation, both a Restricted
Subsidiary and a Fundamental Subsidiary; and (e) Borrower and its Subsidiaries
may dispose of any assets if the aggregate book value (disregarding any
write-downs of such book value other than ordinary depreciation and
amortization) of all of the business, assets, rights, revenues and property
disposed of after the date of this Agreement shall be less than 5% of such
aggregate book value of the Consolidated total assets of the Borrower and its
Subsidiaries as of the most recently ended fiscal year, and if immediately after
such transaction, no Unmatured Event of Default or Event of Default shall exist
or shall have occurred and be continuing. On the closing of any transaction
permitted by this Section 6.3, the test required by Section 5.12 must be met.
6.4 Environmental Statutes. Borrower will not, and will not permit any
other Person to violate an Environmental Protection Statute, except where such
violation could not reasonably be expected to materially adversely impact the
business, operations, properties or condition (financial or otherwise) of the
Borrower and its Subsidiaries, taken as a whole, or the ability of the Borrower
to repay the Loan or to observe and perform its obligations under the Loan
Documents.
6.5 Conflicting Agreements. Borrower will not, and will cause each
Subsidiary not to, enter into any agreement containing any material provisions
which would be violated or breached by the performance of its obligations
hereunder or under any instrument or document delivered or to be delivered by it
hereunder or in connection herewith.
6.6 Misrepresentations. Borrower will not, and will cause each Subsidiary
not to, furnish any Bank any certificate or other document that will contain any
untrue statement of material fact or that will omit to state a material fact
necessary to make it not misleading in light of the circumstances under which it
was furnished. For purposes of the previous sentence the phrase "material fact,"
is a fact or facts which, taken as a whole, could reasonably be expected to
adversely affect the business, operations, property or assets, the business
prospects, or condition (financial or otherwise), of Borrower and its
Subsidiaries taken as a whole, or the ability of Borrower to repay the Loan or
to observe and perform its obligations under the Loan Documents.
6.7 Violation of Regulations. Borrower will not make any investment of any
nature which would result in the violation of Regulations T, U or X.
6.8 Subsidiary Distribution of Earnings. Borrower will not, and will cause
each Subsidiary not to, enter into any agreement which could prohibit, or have
the effect of prohibiting, the payment of dividends by or other distribution of
the earnings of any Subsidiary to Borrower.
6.9 Scope of Business Activity. Borrower will not and will cause each
Subsidiary not to engage in any business or activities other than those
representing its respective, present business, provided that Borrower or any
Subsidiary may acquire or commence new or additional related businesses which do
not materially adversely affect the nature or operation of Borrower's or such
Subsidiary's existing business.
41
6.10 Dividends and Distributions; Capital Structure. Borrower will not, and
will cause each Subsidiary not to, pay or declare any dividends or other
distributions upon its Capital Stock (except, in the case of the Subsidiaries,
dividends or other distributions to such Subsidiary's parent corporation), or
purchase or retire, or commit Borrower or any Subsidiary to purchase or retire,
any of its Capital Stock at any time, during any period that Borrower is in
default under Section 5.4 hereof or such distribution, purchase or retirement
would render Borrower in default under Section 5.4 hereof.
6.11 Payments and Modification of Debt. The Borrower will not, nor will it
permit any Subsidiary to:
(i) make any optional payment, defeasance (whether a covenant defeasance,
legal defeasance or other defeasance), prepayment, repurchase (including without
limitation any offer to repurchase) or other redemption of any of its or any of
its Subsidiaries' Subordinated Debt unless, in each of the foregoing cases,
immediately before and after giving effect thereto on a pro forma basis, (a) no
Event of Default and no Unmatured Event of Default will have occurred or be
continuing, nor will either result from or exist after any such payment or other
transaction is consummated, and (b) the representations and warranties contained
in Section 4 of this Agreement or which are contained in any other Loan Document
shall be true and correct in all material respects on and as of the date thereof
(both before and after any such payment or other transaction is consummated) as
if made on the date any such payment or other transaction is consummated; or
(ii) amend or modify, or consent or agree to any amendment or modification
of (including without limitation any supplemental agreement or other direct of
indirect method of providing additional or supplemental terms or consideration)
any Subordinated Debt Document.
7. EVENTS OF DEFAULT; ACCELERATION; REMEDIES.
7.1 Events of Default. The occurrence of any one or more of the following
events, acts or occurrences will constitute an event of default (an "Event of
Default") hereunder:
7.1.1 Failure to Make Payments When Due. Borrower fails to pay any
principal and/or interest owing under any Note when such amount is due (whether
at stated maturity, as a result of a mandatory prepayment requirement, by
acceleration, by notice of prepayment or otherwise) and the continuation thereof
for three (3) days beyond the date due, or Borrower fails to pay any other
amounts (including, without limitation, interest, fees, costs and expenses)
payable under this Agreement, and the continuation thereof for three (3) days
beyond the date due, or any other Loan Document or in connection with any Letter
of Credit, when such amounts are due.
7.1.2 Breach of Representation, Warranty or Certification. Any
representation, warranty or certification made or furnished by Borrower or any
Subsidiary under this Agreement, any other Loan Document or in any statement,
document, letter or other writing or instrument furnished or delivered to any
Bank pursuant to or in connection with this Agreement
42
or other Loan Document or as an inducement to the Banks to enter into this
Agreement, will, at any time, prove to have been materially false, incorrect or
incomplete when made, effective or reaffirmed, as the case maybe.
7.1.3 Default Under Loan Documents, etc. Borrower or any Subsidiary
(to the extent such term, covenant, condition or agreement is applicable to such
Subsidiary) fails to observe, or perform any term, covenant, condition,
agreement set forth in Sections 5.1, 5.2, 5.4, 5.5, 5.8, 6.1, 6.2, 6.3, 6.5,
6.6, 6.7, 6.8, 6.9 and 6.10.
7.1.4 Default on Other Agreements. (i) the Borrower or any Subsidiary
shall fail to make any payment in respect of Indebtedness owing on any bond,
debenture, note or other evidence of Indebtedness for borrowed money in an
aggregate amount in excess of $15,000,000 (other than the Notes) when due or
within any applicable grace period; or (ii) any event or condition shall occur
which results in the acceleration of the maturity of Indebtedness owing on any
bond, debenture, note or other evidence of Indebtedness for borrowed money
outstanding in an aggregate amount in excess of $15,000,000 of the Borrower or
any Subsidiary (including, without limitation, any required mandatory prepayment
or "put" of such Indebtedness to the Borrower or any Subsidiary) or enables (or,
with the giving of notice or lapse of time or both, would enable) the holders of
such Indebtedness or commitment or any Person acting on such holders' behalf to
accelerate the maturity thereof or terminate any such commitment (including,
without limitation, any required mandatory prepayment or "put" of such
Indebtedness to the Borrower or any Subsidiary). As used in this Section 7.1.4,
the term "Subsidiary" shall be deemed to exclude Mining Remedial Recovery
Corporation and its Subsidiaries and XXXX Acquisition EURL and its Subsidiaries.
7.1.5 Other Defaults Under Loan Documents. Borrower or any Subsidiary
will default in the performance of or compliance with any term or covenant
contained in this Agreement or the other Loan Documents (other than those
referred to above in Sections 7.1.1, 7.1.2 or 7.1.3 of this Agreement or in the
following sentence), and such default will continue unremedied for a period of
thirty (30) days; provided, that the thirty (30)day time period will not start
until Agent or any Bank provides Notice to Borrower in the case of defaults
under Sections 5.3.1, 5.3.2, 5.3.3, 5.3.4,5.3.5, 5.9, 5.10, 5.11 and 5.12.
7.1.6 Involuntary Bankruptcy; Appointment of Trustee, etc.
(a) If an involuntary case seeking the liquidation or
reorganization of Borrower or any Restricted Subsidiary under any chapter of the
federal Bankruptcy Code or any similar proceeding will be commenced against
Borrower or any Restricted Subsidiary under any other applicable law and any one
or more of the following events occur: (i) Borrower or such Subsidiary consents
to the institution of the involuntary case; (ii) the petition commencing the
involuntary case is not timely controverted; (iii) the petition commencing the
involuntary case is not dismissed within sixty (60) days of its filing; (iv) an
interim trustee is appointed to take possession of all or a substantial portion
of the property and/or to operate all or any substantial portion of the business
of Borrower or such Subsidiary; or (v) an order for relief will have been issued
or entered therein.
43
(b) A decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, liquidator, sequestrator, custodian,
trustee or other officer having similar powers of Borrower or any Restricted
Subsidiary to take possession of all or a substantial portion of the property
and/or to operate all or a substantial portion of the business of Borrower or
such Subsidiary will have been entered and, within sixty (60) days from the date
of entry, is not vacated, discharged or bonded against, or any similar relief
will be granted against Borrower or such Subsidiary under any applicable federal
or state law, and, within sixty (60) days from the date of entry, is not
vacated, discharged or bonded against.
7.1.7 Voluntary Bankruptcy; Appointment of Trustee, etc.
(a) Borrower or any Restricted Subsidiary will (i) institute a
voluntary case seeking liquidation or reorganization under any chapter of the
federal Bankruptcy Code; (ii) file a petition, answer or complaint or will
otherwise institute any similar proceeding under any other applicable law, or
will consent thereto; (iii) consent to the conversion of a voluntary case to an
involuntary case; (iv) consent to the conversion of an involuntary case to a
voluntary case; (v) consent or acquiesce to the appointment of a trustee,
receiver, liquidator, sequestrator, custodian or other officer with similar
powers to take possession of all or a substantial portion of the property and/or
to operate all or a substantial portion of the business of Borrower or any
Restricted Subsidiary; or (vi)make a general assignment for the benefit of
creditors.
(b) The Board of Directors of Borrower or the governing body of
any Restricted Subsidiary adopts any resolution or otherwise authorizes action
to approve any of the foregoing; provided, that nothing herein shall be
construed to prevent Arava Natural Resources Company, Inc., in its capacity as a
shareholder of Mining Remedial Recovery Corporation, from adopting resolutions
or authorizing action with respect to Mining Remedial Recovery Corporation and
or its Subsidiaries.
7.1.8 Judgments and Attachments.
(a) Borrower or any Restricted Subsidiary will suffer any money
judgment(s), fines or penalties not covered by insurance, writ(s) or warrant(s)
of attachment or similar process(es) involving an amount, in the aggregate, in
excess of $15,000,000 and will not satisfy, discharge, vacate, bond or stay the
same within a period of thirty (30) days or, in any event, within ten (10) days
of the date of any proposed sale thereunder.
(b) A judgment creditor will obtain possession of any material
portion of the properties or assets of Borrower or any Restricted Subsidiary by
any means, including, without limitation, levy, distraint, replevin or
self-help.
7.1.9 Dissolution. Any order, judgment or decree will be entered
against Borrower or any Restricted Subsidiary having assets in excess of
$1,000,000 decreeing the dissolution or division of it and such order will
remain undischarged or unstayed for a period in excess of thirty (30) days.
44
7.1.10 Termination of Loan Documents, etc. Any of the Loan Documents
will cease to be in full force and effect for any reason other than a release or
termination thereof upon the full payment and satisfaction of the Obligations.
7.1.11 Environmental Violations. A breach of Sections 4.10, 5.8.4 or
6.4 will have occurred.
7.1.12 Change of Control. (i) Any Person or two or more Persons acting
in concert shall have acquired beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the Securities Exchange
Act of 1934) of 35% or more of the outstanding shares of the voting stock of the
Borrower; or (ii) as of any date a majority of the Board of Directors of the
Borrower consists of individuals who were not either (A) directors of the
Borrower as of the corresponding date of the previous year, (B) selected or
nominated to become directors by the Board of Directors of the Borrower of which
a majority consisted of individuals described in clause (A), or (C) selected or
nominated to become directors by the Board of Directors of the Borrower of which
a majority consisted of individuals described in clause (A) and individuals
described in clause (B), or (iii) any "Change of Control", "Change in Control"
or similar default or event shall occur under any Subordinated Debt Document.
7.1.13 Invalidity of Subordination Provisions, etc. Any subordination
provision in any document or instrument governing any Subordinated Debt, or any
subordination provision in any guaranty by any Subsidiary of any Subordinated
Debt, shall cease to be in full force and effect, or the Borrower or any
Subsidiary shall contest in any manner the validity, binding nature or
enforceability of any such provision.
7.2 Remedies; Termination of Commitments. Upon the occurrence of an Event
of Default all Obligations will, at the request of the Requisite Banks,
immediately be due and payable without presentment, demand, protest, notice or
other requirements of any kind, all of which are hereby expressly waived by
Borrower, and all Commitments of the Banks hereunder will terminate, at the
direction of the Requisite Banks, without further action of any kind, provided,
however, if any of the events described in Section 7.1.6 or 7.1.7 occurs, all
Obligations and Commitments of the Banks shall immediately terminate. Upon
acceleration, Agent will proceed to protect, exercise and enforce the Banks'
rights and remedies hereunder and under the other Loan Documents and any other
rights and remedies as are provided bylaw or equity. If the Loan being repaid is
a Eurocurrency Advance, the Borrower shall pay the compensation set forth in
Section 7.4 below. Agent may determine, in its sole discretion, the order and
manner in which the Banks' rights and remedies are to be exercised, and all
payments received by Agent will be applied as follows: first, to all costs and
expenses incurred by Agent in collecting any Obligations by reason of such Event
of Default; second, pro rata to accrued interest; third, pro rata to other
Obligations; fourth, to a cash collateral account maintained at the Agent up to
the aggregate face amount of all outstanding Letters of Credit issued hereunder
to secure Borrower's reimbursement obligation in connection with such Letters of
Credit; and fifth, to Borrower or as otherwise provided by any Requirement of
Law. During the existence of any Event of Default, at the request of the Agent
and/or the Requisite Banks, Borrower shall forthwith deposit into a cash
collateral account with the Agent an amount of cash equal to the aggregate face
amount of
45
all outstanding Letters of Credit issued hereunder, to secure Borrower's
reimbursement obligation in connection with such Letters of Credit.
7.3 Right of Set-Off. In addition to all other remedies available to the
Banks, after any Event of Default, each Bank is hereby authorized at any time
and from time to time, without further notice to Borrower, to setoff and
proportionately apply said amount between the other Banks, 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 Bank to or for the credit or the
account of Borrower, against any and all the obligations of Borrower, now or
hereafter existing under any Loan Document.
7.4 Compensation. Upon the request of any Bank, delivered to the Borrower
and the Agent, the Borrower shall pay to such Bank such amount or amounts as
shall compensate such Bank for any loss, cost or expense incurred by such Bank
as a result of:
(a) any payment or prepayment of a Eurocurrency Advance on a date
other than the last day of an Interest Period for such Loan; or
(b) any failure by the Borrower to prepay a Eurocurrency Advance on
the date for such prepayment specified in the relevant notice of prepayment
hereunder; or
(c) any failure by the Borrower to borrow a Eurocurrency Advance on
the date for the Borrowing of which such Eurocurrency Advance is a part
specified in the applicable Borrowing Notice delivered pursuant to Section
2.2.2; such compensation to include, without limitation, an amount equal to the
excess, if any, of (x) the amount of interest which would have accrued on the
amount so paid or prepaid or not prepaid or borrowed for the period from the
date of such payment, prepayment or failure to prepay or borrow to the last day
of the then current Interest Period for such Eurocurrency Advance (or, in the
case of a failure to prepay or borrow, the Interest Period for such Eurocurrency
Advance which would have commenced on the date of such failure to prepay or
borrow) at the applicable rate of interest for such Eurocurrency Advance
provided for herein over (y) the amount of interest (as reasonably determined by
such Bank) such Bank would have paid on deposits in Dollars of comparable
amounts having terms comparable to such period placed with it by leading lenders
in the London interbank market (if such Loan is a Eurocurrency Advance).
8. THE AGENT AND RELATIONS AMONG BANKS, ETC.
8.1 Appointment. Each Bank hereby designates and appoints the Agent the
limited administrative agent for all Banks under this Agreement and the other
Loan Documents. Each Bank hereby irrevocably authorizes Agent on its behalf to
take or refrain from taking any action, and to exercise or refrain from the
exercise of any power, as is required or permitted by the Banks to be taken
under the provisions of this Agreement and the other Loan Documents, together
with such other powers as are reasonably incidental thereto, subject only to the
express limitations of this Agreement. The duties of Agent under this Agreement
and the other Loan Documents are mechanical and administrative in nature, are
limited to those expressly provided herein, and do not establish a fiduciary
relationship as between the Agent and any Bank. In
46
performing its function and duties under this Agreement and the other Loan
Documents, Agent will act solely as an agent of Banks and assumes no obligation
towards or relationship of agency or trust with Borrower. Agent may perform any
of its duties under this Agreement or another Loan Document by or through its
agents or employees.
8.2 Advances and Payments.
8.2.1 Advances: In General. All Advances will be made by Agent on
behalf of the Banks on the requested Advance Date, except that the Ratable Share
of any Bank which the Agent receives after 12:00 p.m. Eastern Time on the
Advance Date, or at any time after the Advance Date, will be disbursed on the
Business Day following its receipt. Nothing in this Agreement or any other Loan
Document is to be construed to require Agent to advance funds on behalf of any
Bank or to relieve any Bank from its obligation to make Advances or to prejudice
any rights that Borrower may have against any Bank as a result of any default by
that Bank hereunder.
8.2.2 Advances. In order to minimize transfers between the Agent and
each Bank of funds representing the Bank's Ratable Share of an Advance, a
Borrower payment, or (to the extent that Agent has not been promptly reimbursed
by Borrower) other amounts for which the Agent is entitled to Bank reimbursement
or indemnification, coincidental transfer and loan account adjustments may be
made on a "net" basis. Not later than the Business Day immediately preceding an
Advance Date or a date on which Bank reimbursement of the Agent is requested,
Agent will advise each Bank by telephone or telecopy as to the purpose and
aggregate amount to be disbursed or paid by Agent and the Advance Date or actual
or anticipated payment date, as the case may be; the amount which is such Bank's
Ratable Share thereof; and, if in order to cause all loan accounts maintained by
Agent for such Bank to conform to its Ratable Share of the Loan, the amount
which such Bank is requested to remit to Agent will be different, the identity
of the loan account(s) requiring adjustment and the nature and amounts due to or
from the Bank with respect thereto. All amounts which a Bank is required to
remit to Agent will be made available to Agent by transfer of same day funds to
the designated wire account of Agent not later than 12:00 p.m. Eastern Time on
the Advance Date, as evidenced by a wire transfer number or actual receipt by
Agent. Agent will have no liability to Borrower for the failure of any Bank to
make an Advance on the Advance Date, and if any Advance Date is on a day when
any of the Banks are not open for business, then each Bank shall transfer to
Agent its Ratable Share on the next day such Bank is open for business.
8.2.3 Distribution of Payments. All Loan payments in respect of
Advances, interest, fees or expenses incurred by the Banks and required by
Borrower to be reimbursed will be deemed paid when immediately available U.S.
currency or its equivalent is paid in the amount required by Borrower to Agent.
On the Business Day Agent receives a Borrower payment, Agent will advise each
Bank by telephone or telecopy of the aggregate amount and such Bank's Ratable
Share of amounts actually received by Agent in respect of Advances, interest,
fees, or, to the extent that the Banks previously have remitted to Agent
therefor, reimbursements for other amounts for which Agent has required Bank
reimbursement or indemnification. Agent will pay to such Bank on the same
Business Day, by transfer to such Bank's wire account (as specified by such Bank
on Exhibit 8.2.3 to this Agreement or as amended by such Bank from time to time
47
after the date hereof) its Ratable Share, "netted" as permitted herein, of any
such payment received by Agent not later than 12:00 p.m. (Eastern Time), and
otherwise on the next Business Day.
8.2.4 Return of Payments. Any Agent payment to a Bank under this
Agreement in the belief or expectation that a related payment has been or will
be received by Agent from Borrower, which related payment in fact is not
received by Agent, will entitle Agent to recover such amount from the Bank
without set-off, counterclaim or deduction of any kind. If Agent determines at
any time that an amount received by Agent under this Agreement must be returned
to Borrower or paid to any other Person pursuant to any solvency law or
otherwise, then, notwithstanding any other term or condition of this Agreement,
Agent will not be required to distribute any portion thereof to any Bank.
However, if Agent has previously distributed such amount, each Bank will repay
to Agent on demand any portion of such amount that Agent has distributed to such
Bank, together with interest at such rate, if any, as Agent is required to pay
to Borrower or such other Person, without set-off, counterclaim or deduction of
any kind by the Bank.
8.3 Dissemination of Information. Agent will distribute promptly to each
Bank the executed promissory notes evidencing such Bank's Ratable Share of the
Loans. Agent will have no duty or responsibility, either initially or on a
continuing basis, to provide any Bank with any credit or other information with
respect to Borrower (other than information or notices received by it in
accordance herewith and only if not received by the Banks from Borrower),
whether coming into its possession before the date of this Agreement or at any
time or times thereafter. Agent will use its best efforts after written request
therefor by any Bank, and only if not received by such Bank from Borrower, to
distribute promptly to each Bank copies of every notice, request, communication,
report or other information received by Agent from Borrower pursuant to this
Agreement or another Loan Document; provided, that Agent will be liable to the
Banks for a failure to do so only if such failure is attributable to Agent's
gross negligence or willful misconduct, which will not include the Agent's
failure to obtain any of the foregoing from Borrower.
8.4 Amendments, Consents and Waivers for Certain Actions. Agent is
authorized and empowered on behalf of the Banks to amend or modify in writing
any provision of this Agreement or another Loan Document which relates or
pertains to the Borrower, or to consent to or waive Borrower's performance of
any obligation hereunder or of any Event of Default, only with the prior written
consent of the Requisite Banks or, if required under Section 9.2, all of the
Banks, as the case may be. When Agent requests the written consent of any Bank
and does not receive a written approval of such consent from any Bank within ten
(10) Business Days after such Bank's receipt of such request, then such Bank
will be deemed to have denied such consent. Borrower agrees that it will not
assert any claim of amendment, modification, consent or waiver which is not in
writing, which writing (i) references this Agreement or any of the other Loan
Documents and (ii) is signed by the Requisite Banks or all of the Banks, as the
case may be.
8.5 Exculpation. Agent and its officers, directors, employees and agents
will be liable to any Bank only for the performance of their express obligations
under this Agreement and the other Loan Documents and for their own gross
negligence or willful misconduct in the
48
performance of any action taken or omitted in connection therewith. If any
apportionment or distribution of payments made by Agent in good faith is
subsequently determined to have been made in error, Agent will not be liable
therefor, but the sole recourse of any Bank to whom payment was due but not made
will be to recover from other Banks any payment in excess of the amount to which
they are determined to be entitled (and such other Banks hereby agree to return
to such Bank any such erroneous payments received by them). The Agent shall use
its best efforts to assist the Banks in determining when any such excess payment
has been made and in facilitating the recovery thereof. In performing its
functions and duties hereunder, Agent will exercise the same care which it would
in dealing with loans for its own account. Agent will not be responsible to any
Bank for the truth or completeness of any recitals, statements, representations
or warranties herein, the execution, effectiveness, genuineness, validity,
enforceability, collectability, or sufficiency of this Agreement or any other
Loan Document or the transactions contemplated thereby, or the financial
condition of Borrower. Agent will not be required to make any inquiry concerning
either the performance or observance of any of the terms, provisions or
conditions of this Agreement or any other Loan Document, the financial condition
of Borrower, or the existence or possible existence of any Event of Default.
Agent at any time may request instructions from the Requisite Banks with respect
to any action, inaction, failure or approval which, by the terms of this
Agreement or any other Loan Document, Agent is permitted or required to take or
to grant, and if such instructions are promptly requested, Agent may refrain
from taking any action or withhold any approval and may refrain from any action
or withhold any approval until it has received such instructions from the
Requisite Banks. No Bank will have any right of action whatsoever against Agent
as a result of Agent acting or refraining from acting in accordance with
instructions of the Requisite Banks or all of the Banks, as the case may
require.
8.6 Reliance. Agent may rely upon any written notices, statements,
certificates, orders or other documents or any telephone message or other
communication (including any writing, telecopy or telegram) believed by it in
good faith to be genuine and correct and to have been signed, sent or made by
the proper Person, and with respect to all matters pertaining to this Agreement
or any other Loan Document, upon advice of legal counsel as to legal matters,
independent accountants as to audit and accounting matters, and other experts
selected by it, and when doing so will not be liable to any Bank for any action
taken or omitted by Agent in good faith. If any written confirmation of a
telephonic notice or instructions differs from the action taken by Agent in
connection with such telephonic notice of instructions, Agent's records will
govern absent manifest error.
8.7 Credit Decisions. Each Bank acknowledges that, independently of Agent
and each other Bank and based on the financial information received by it and
such other documents, information, and independent investigation of the
financial condition and affairs of Borrower as it has deemed appropriate, it has
made and will continue to make its own appraisal of the creditworthiness of
Borrower and credit decisions to participate in the Loans in accordance with
this Agreement. Each Bank also acknowledges that, independently of Agent and
each other Bank, and based on such other documents, information, and
investigations as it deems appropriate at anytime, it will continue to make its
own credit decisions as to exercising or not exercising from time to time any
rights and privileges available to it under this Agreement or any other Loan
Document.
49
8.8 Indemnification.
8.8.1 Agent Indemnification. Each Bank agrees (which agreement shall
survive any termination of this Agreement) to indemnify Agent according to such
Bank's Ratable Share from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses, excess
Advances or payments of any kind or nature whatsoever which may at any time be
imposed on, incurred by, or asserted against Agent in any way relating to or
arising out of this Agreement or another Loan Document, including (without
limitation) the reimbursement of Agent for all expenses (including reasonable
attorneys' and paralegals' fees, the allocated expense of in-house attorneys and
paralegals, and all out-of-pocket expenses) incurred by Agent under or in
connection with this Agreement or another Loan Document or in enforcing the
Obligations, in all cases as to which Agent is not reimbursed by Borrower,
provided that no Bank will be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses, Advances or payments as are determined by a court of competent
jurisdiction in a final, non-appealable decision or order to have resulted
solely from Agent's gross negligence or, willful misconduct. Agent will not be
required to take any action hereunder or under any other Loan Document, or to
prosecute or defend any action or proceeding in respect of this Agreement or
another Loan Document, unless it is indemnified to its satisfaction by the Banks
against losses, costs, liabilities, and expenses. If any indemnity in favor of
Agent is impaired, Agent may call for additional indemnity and cease to do the
acts indemnified against until such additional indemnity is given.
8.8.2 Borrower Indemnification. The Borrower hereby agrees to
indemnify the Agent, each Bank, their respective affiliates, and each of their
directors, officers and employees against all losses, claims, damages,
penalties, judgments, liabilities and expenses (including, without limitation,
all expenses of litigation or preparation therefor whether or not the Agent, any
Bank or any affiliate is a party thereto) which any of them may pay or incur
arising out of or relating to this Agreement, the other Loan Documents, the
transactions contemplated hereby or the direct or indirect application or
proposed application of the proceeds of any Loan hereunder except to the extent
that they are determined in a final non-appealable judgment by a court of
competent jurisdiction to have resulted from the gross negligence or willful
misconduct of the party seeking indemnification. In no event will any Bank's
claim for indemnification, as damages, losses arising, in the ordinary course of
each Bank's business, out of Loans for which the rate charged by Bank is less
than the rate paid by such Bank for borrowed funds. The obligations of the
Borrower under this Section 8.8.2 shall survive the termination of this
Agreement.
8.9 Successor. Agent may resign as such at any time upon at least 30 days'
prior notice to Borrower and all Banks, which resignation will be effective when
a successor Agent is in place. If Agent resigns, the Requisite Banks may appoint
another Person as a successor Agent which thereupon will become the Agent. If no
successor to the Agent is appointed by the Requisite Banks and accepts such
appointment within 30 days after the retiring Agent's notice of resignation,
then the retiring Agent may, on behalf of the Banks, appoint a successor Agent,
which will be one of the Banks or a commercial banking institution organized
under the laws of
50
the United States or a United States branch or agency of a commercial banking
institution, and having a combined capital and surplus of at least $250,000,000.
Upon the acceptance by any successor an appointment as Agent hereunder, such
successor Agent will be entitled to receive from the retiring Agent such
documents of transfer and assignment as such successor Agent may reasonably
request, and will thereupon succeed to, and become vested with all rights,
powers, privileges, and duties of the retiring Agent, and the retiring Agent
will be discharged from all duties and obligations arising under this Agreement
and the other Loan Documents from and after the date on which its resignation is
effective. After any retiring Agent's resignation or removal hereunder as Agent,
the provisions of this Agreement and the other Loan Documents will continue to
bind and inure to its benefit as to any actions taken or omitted to be taken by
it while it was Agent. If the successor Agent is not one of the Banks, Borrower
shall have right to reasonably approve such successor Agent.
8.10 Agent as a Bank. Agent, in its capacity as a Bank, will have the same
rights, powers, duties and liabilities with respect to the Loans as any other
Bank and may exercise the same as if it were not the Agent. Unless otherwise
required by the context, the terms "Bank", "Banks" and" Requisite Banks" or any
similar terms will include the Agent when acting in its individual capacity.
Agent may lend money to, and generally engage in any kind of banking, trust or
other business with Borrower to the same extent as any other financial
institution.
8.11 Borrower Not A Beneficiary. The provisions of this Section 8 are
solely for the benefit of Agent and the Banks and Borrower will have no rights
as a third party beneficiary of any of the provisions hereof; provided, however,
Borrower will be bound by the provisions hereof. Borrower will have no right
against Agent acting in its capacity as Agent, for any claims of Borrower
arising from this Agreement, all such claims being assertable only against the
Banks.
8.12 Sharing Among Banks. Without affecting the rights of the Borrower
hereunder, each of the Banks agrees with every other Bank that, in the event it
shall receive payment on account of the Loan in excess of its pro rata portion,
according to the principal amount of its participation in Advances then
outstanding, of a payment due all of the Banks, whether such payment be
voluntary, involuntary or by operation of law, by application of setoff of any
indebtedness or otherwise, then such Bank shall promptly purchase from each of
the other Banks, without recourse, for cash and at face value, ratably in
accordance with the principal amounts of the participations in Advances then
outstanding, interest of the other Banks in the Loans in such an amount that
each of the Banks shall have received payment pro rata on account of its
participation in the Loans in accordance with the unpaid principal amount
thereof then owing to it; provided, that if any such purchase be made by any
Bank and if any such excess payment relating thereto or any part thereof is
thereafter recovered from such Bank, appropriate adjustments in the related
purchases from the other Banks shall be made by rescission and restoration of
the purchase price as to the portion of such excess payment so recovered.
8.13 Assignments/Participations
8.13.1. Permitted Assignments. Any Bank may, in the ordinary course of
its business and in accordance with applicable law, at any time assign to one or
more banks or other
51
entities ("Purchasers") all or any part of its rights and obligations under the
Loan Documents. Such assignment shall be substantially in the form of Exhibit
8.13.1 or in such other form as may be agreed to by the parties thereto. The
consent of the Borrower and the Agent shall be required prior to an assignment
becoming effective with respect to a Purchaser which is not a Bank or an
affiliate thereof; provided, however, that if an Event of Default has occurred
and is continuing, the consent of the Borrower shall not be required. Such
consent shall not be unreasonably withheld or delayed. Each such assignment with
respect to a Purchaser which is not a Bank or an affiliate thereof shall (unless
each of the Borrower and the Agent otherwise consents) be in an amount not less
than the lesser of (i) $10,000,000 or (ii) the remaining amount of the assigning
Bank's outstanding Loans.
8.13.2. Effect; Closing Date. Upon (i) delivery to the Agent of an
assignment, together with any consents required by Section 8.13.1, and (ii)
payment of a $3,500 fee to the Agent for processing such assignment (unless such
fee is waived by the Agent), such assignment shall become effective on the
effective date specified in such assignment. The assignment shall contain a
representation by the Purchaser to the effect that none of the consideration
used to make the purchase of the Loans under the applicable assignment agreement
constitutes "plan assets" as defined under ERISA and that the rights and
interests of the Purchaser in and under the Loan Documents will not be "plan
assets" under ERISA. On and after the effective date of such assignment, such
Purchaser shall for all purposes be a Bank party to this Agreement and any other
Loan Document executed by or on behalf of the Banks and shall have all the
rights and obligations of a Bank under the Loan Documents, to the same extent as
if it were an original party hereto, and no further consent or action by the
Borrower, the Banks or the Agent shall be required to release the transferor
Bank with respect to the percentage of the Aggregate Loans assigned to such
Purchaser. Upon the consummation of any assignment to a Purchaser pursuant to
this Section 8.13.2, the transferor Bank, the Agent and the Borrower shall, if
the transferor Bank or the Purchaser desires that its Loans be evidenced by
Notes, make appropriate arrangements so that new Notes or, as appropriate,
replacement Notes are issued to such transferor Bank and new Notes or, as
appropriate, replacement Notes, are issued to such Purchaser, in each casein
principal amounts reflecting their respective and outstanding Loans, as adjusted
pursuant to such assignment.
8.13.3. Participations. Any Bank may sell to any financial institution
or institutions, and such financial institution or institutions may further
sell, a participation interest (undivided or divided) in, the Advances and such
Bank's rights and benefits under this Agreement, the Notes and the other Loan
Documents, and to the extent of that participation interest such participant or
participants shall have the same rights and benefits against the Borrower under
Section 3.5 and 7.3 as it or they would have had if such participant or
participants were the Bank making the Advances to the Borrowers hereunder,
provided, however, that (i) such Bank's obligations under this Agreement shall
remain unmodified and fully effective and enforceable against such Bank, (ii)
such Bank shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) such Bank shall remain the holder of its
Notes for all purposes of this Agreement, (iv) the Borrowers, the Agent and the
other Banks shall continue to deal solely and directly with such Bank in
connection with such Bank's rights and obligations under this Agreement, and (v)
such Bank shall not grant to its participant (other than a participant which is
an Affiliate of that Bank)
52
any rights to consent or withhold consent to any action taken by such Bank or
the Agent under this Agreement other than action requiring the consent of all of
the Banks hereunder.
8.14 Other Agents. No Bank designated as a "managing agent", "syndication
agent", "documentation agent" or "co-agent" in its capacity as such shall have
any rights, duties or responsibilities hereunder, or any fiduciary relationship
with any Bank or the Borrower, and no implied covenants, functions,
responsibilities, duties, obligations, or liabilities shall be read into this
Agreement or otherwise exist against any it in such capacity.
9. MISCELLANEOUS.
9.1 Costs and Attorneys' Fees. All fees, costs and expenses incurred by
Agent in connection with the preparation, execution, delivery, performance and
administration of the Loan Documents, any and all amendments, supplements and
modifications thereof and the other instruments and documents to be delivered
hereunder in connection with any matters contemplated by or arising out of this
Agreement, whether (a) to commence, defend any action commenced by any party
other than Borrower, or intervene in any litigation or to file a petition,
complaint, answer, motion or other pleadings, (b) to take any other action in or
with respect to any suit or proceedings (bankruptcy or otherwise), (c) to
consult with officers of Agent or to advise Agent or (d) to enforce any rights
of the Banks to collect any of the Obligations, including, without limitation,
reasonable fees, costs and expenses of Agent's attorneys and paralegals, the
allocated costs of Agent's internal counsel, together with interest thereon at
the rate equal to 2% above the highest Effective Rate hereunder, will be part of
the Obligations, payable on demand. Upon and during the continuance of an Event
of Default, Borrower shall reimburse each Bank for such Bank's reasonable fees,
costs and expenses incurred in connection with the enforcement of this Agreement
and the other Loan Documents. All of the foregoing amounts may, at Agent's
option, be charged as an Advance under the Loan.
9.2 Waivers, Modifications in Writing. No failure or delay on the part of
Agent or any Bank in exercising any right, power or remedy hereunder will
operate as a waiver thereof, nor will any single or partial exercise of any such
right, power or remedy preclude any other or further exercise thereof or the
exercise of any other right, power or remedy. The remedies provided for under
this Agreement, in the Notes and in the other Loan Documents are cumulative and
are not exclusive of any remedies that may be available to the Banks at law, in
equity or otherwise. No amendment, modification, supplement, termination,
consent or waiver of or to any provision of this Agreement, the Notes or the
other Loan Documents, nor any consent to any departure therefrom, will in any
event be effective unless the same will be in writing and signed by or on behalf
of the Borrower and the Requisite Banks and, to the extent any rights or duties
of the Agent may be affected thereby, the Agent, provided, however, that no such
amendment, modification, termination, waiver or consent shall, without the
consent of the Agent and all of the Banks, (i) authorize or permit the extension
of time for, or any reduction of the amount of, any payment of the principal of,
or interest on, the Notes or any Letter of Credit reimbursement obligation, or
any fees or other amount payable hereunder, (ii) amend or terminate the
respective Commitment of any Bank or modify the provisions of this Section
regarding the taking of any action under this Section or the provisions of this
Section 9.2 or the definition of Requisite Banks,
53
or (iii) provide for the discharge of any material Guarantor, except to the
extent provided in this Agreement. Notwithstanding anything herein to the
contrary, no Defaulting Bank shall be entitled to vote (whether to consent or to
withhold its consent) with respect to any amendment, modification, termination
or waiver of any provision of this Agreement or any departure therefrom or any
direction from the Banks to the Agent, and, for purposes of determining the
Requisite Banks at any time when any Bank is a Defaulting Bank under this
Agreement, the Commitments and Advances of such Defaulting Banks shall be
disregarded.
9.3 Notices, etc. All notices, demands, instructions and other
communications required or permitted to be given to or made upon any party
hereto will be in writing and (except for financial statements and other related
informational documents to be furnished pursuant hereto which maybe sent by
first-class mail, postage prepaid), will be personally delivered or sent by
registered or certified mail, postage prepaid or sent by nationally recognized
overnight delivery service and, if mailed, will be deemed to be received for
purposes of this Agreement three (3) Business Days after mailing by the sender
or one (1) Business Day if sent by overnight delivery service. Unless otherwise
specified in a notice sent or delivered in accordance with the foregoing
provisions of this Section 9.3, notices, demands, instruments and other
communications in writing will be given to or made upon the respective parties
hereto as follows: if to Agent, at Agent's Address, with a copy to Agent's
Counsel; if to Borrower, at Borrower's Address, with a copy to Borrower's
Counsel and if to a Bank, the address that appears on the signature page to this
Credit Agreement.
9.4 Notice of Wrongful Act or Omission by Agent or Banks. No action will be
commenced by Borrower against Agent or any Bank arising out of or attributable
to any act or omission of Agent or any Bank unless a notice specifically
describing the act or omission will have been given to Agent or such Bank thirty
(30) days prior to such judicial action.
9.5 Agent's Failure to Advance. If Agent will be in breach of the Banks'
obligation under this Agreement by reason of failure to make an Advance,
notwithstanding Borrower's conformance with the provisions of hereof, Borrower's
sole remedies on account thereof will be: (a) to compel Agent to make the
Advance which is determined to have been wrongfully withheld; and (b) to recover
actual and provable damages on account of such breach, and neither Agent nor any
Bank will ever be liable to Borrower for consequential damages, whatever the
nature of the breach by Agent or such Bank hereunder.
9.6 Headings. Section headings used in this Agreement are for convenience
of reference only and will not constitute a part of this Agreement for any other
purpose or affect the construction of this Agreement.
9.7 Execution in Counterparts. This Agreement may be executed in
counterparts and by different parties on separate counterparts, both of which
counterparts, when so executed and delivered, will be deemed to be an original
and both of which counterparts, taken together, will constitute but one and the
same agreement. This Agreement will become effective upon the execution of a
counterpart hereof by each of the parties hereto.
54
9.8 Binding Effect; Assignment. This Agreement will be binding upon, and
inure to the benefit of, Borrower and the Banks, and the irrespective successors
and assigns; provided, however, that Borrower may not assign its rights
hereunder or in connection herewith or any interest herein (voluntarily, by
operation of law or otherwise) without the prior written consent of all of the
Banks. This Agreement will not be construed so as to confer any right or benefit
upon any Person other than the parties to this Agreement and each of their
respective successors and assigns.
9.9 Severability of Provisions. Any provision of this Agreement which is
illegal, invalid, prohibited or unenforceable in any jurisdiction will, as to
such jurisdiction, be ineffective to the extent of such illegality, invalidity,
prohibition or unenforceability without invalidating or impairing the remaining
provisions hereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
9.10 Survival of Agreements; Representations, Warranties Indemnities and
Covenants. All agreements, representations, warranties, indemnities and
covenants made herein will survive the execution and delivery of this Agreement,
the making of the Loans hereunder and the execution and delivery of the Notes.
9.11 Independence of Covenants. All covenants under this Agreement will
each be given independent effect so that if a particular action or condition is
not permitted by any such covenant, the fact that it would be permitted by
another covenant, by an exception thereto, or be otherwise within the
limitations thereof, will not avoid the occurrence of an Event of Default or
Unmatured Event of Default if such action is taken or condition exists.
9.12 Construction of Agreement. Neither this Agreement nor any uncertainty
or ambiguity herein will be construed or resolved against any Bank, whether
under any rule of construction or otherwise. On the contrary, this Agreement has
been reviewed by each of the parties and their counsel and will be construed and
interpreted according to the ordinary meaning of the words used so as to fairly
accomplish the purposes and intentions of all parties hereto.
9.13 Complete Agreement. This Agreement, together with the exhibits and
schedules to this Agreement, the Notes and the other Loan Documents, and the
other agreements referred to herein or by their terms referring hereto, is
intended by the parties as a final expression of their agreement and is intended
as a complete statement of the terms and conditions of their agreement.
9.14 Equitable Relief. Borrower recognizes that, in the event Borrower
fails to perform, observe or discharge any of its Obligations under this
Agreement, any remedy at law may prove to be inadequate relief to the Banks;
therefore, Borrower agrees that the Banks will be entitled to temporary and
permanent injunctive relief in any such case without the necessity of proving
actual damages.
9.15 No Fiduciary Relationship. No provision herein or in any of the other
Loan Documents and no course of dealing between the parties will be deemed to
create any fiduciary duty by Agent or the Banks to Borrower.
55
9.16 Choice of Law. The validity of this Agreement, its construction,
interpretation and enforcement and the rights of the parties hereto will be
determined under, governed by and construed in accordance with the internal laws
of the State of Michigan, without regard to principles of conflicts of law.
9.17 Venue; Jurisdiction. The parties agree that all actions or proceedings
arising in connection with this Agreement, the Loan Documents, the Advances may
be tried and litigated in the federal courts of the United States of the Eastern
District of Michigan. Borrower hereby irrevocably accepts for itself and in
respect of its property, generally and unconditionally, the jurisdiction of such
courts. Borrower irrevocably consents to the service of process out of any such
courts in any such action or proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, to Borrower, at its address set
forth for notices in this Agreement, such service to become effective ten (10)
days after such mailing. Nothing herein will affect the right of any Bank to
serve process in any other manner permitted by law. Borrower irrevocably waives
any right it may have to assert the doctrine of forum non conveniens or to
object to venue to the extent any proceeding is brought in accordance with this
Section 9.17.
9.18 Other Waivers. Borrower hereby waives, to the extent permitted by
applicable law, in connection with a "claim and delivery" action by any Bank or
Agent on any Bank's behalf pursuant to Michigan Court Rule 3.105, the right to
request that a court require any Bank to post a bond pursuant to Michigan Court
Rule 3.105(E)(4)(c)(i).
9.19 Waivers Voluntary. The waivers contained in this Agreement are freely,
knowingly and voluntarily given by each party, without any duress or coercion,
after each party has had opportunity to consult with its counsel and has
carefully and completely read all of the terms and provisions of this Agreement,
specifically including the waivers contained in this Section 9. Neither the
Banks nor Borrower will be deemed to have relinquished the waivers contained
herein except by a writing signed by the party to be charged with having
relinquished any such waiver.
9.20 Waiver of Jury Trial. Banks and Borrower acknowledge and agree that
there may be a constitutional right to a jury trial in connection with any
claim, dispute or lawsuit arising between them, but that such right may be
waived. Accordingly, the parties agree that notwithstanding such constitutional
right, in this commercial matter the parties believe and agree that it will be
in their best interest to waive such right, and accordingly, hereby waive such
right to jury trial, and further agree that the best forum for hearing any
claim, dispute or lawsuit, if any, arising in connection with this Agreement,
any Loan Document or the relationship between the Banks and Borrower, will be a
court of competent jurisdiction sitting without a jury.
9.21 Nonliability of Banks. The relationship between the Borrower on the
one hand and the Banks and the Agent on the other hand shall be solely that of
borrower and lender. Neither the Agent nor any Bank has any fiduciary
relationship with or duty to the Borrower or any Guarantor arising out of or in
connection with this Agreement or any of the other Loan Documents, and the
relationship between the Borrower and Guarantors, on the one hand, and the Agent
and the Banks, on the other hand, in connection herewith or therewith is solely
that of
56
debtor and creditor. Neither the Agent nor any Bank undertakes any
responsibility to the Borrower or any Guarantor to review or inform the Borrower
or any Guarantor of any matter in connection with any phase of the Borrower's or
any Guarantor's business or operations. The Borrower agrees, on behalf of itself
and each Guarantor, that neither the Agent nor any Bank shall have liability to
the Borrower or any Guarantor (whether sounding in tort, contract or otherwise)
for losses suffered by the Borrower or any Guarantor in connection with, arising
out of, or in any way related to the transactions contemplated and the
relationship established by the Loan Documents, or any act, omission or event
occurring in connection therewith, unless it is determined in a final
non-appealable judgment by a court of competent jurisdiction that such losses
resulted from the gross negligence or willful misconduct of the party from which
recovery is sought. NEITHER THE AGENT NOR ANY BANK SHALL BE LIABLE FOR ANY
DAMAGES ARISING FROM THE USE BY OTHERS OF ANY INFORMATION OR OTHER MATERIALS
OBTAINED THROUGH INTRALINKS OR OTHER SIMILAR INFORMATION TRANSMISSION SYSTEMS IN
CONNECTION WITH THIS AGREEMENT, NOR SHALL THE AGENT OR ANY BANK HAVE ANY
LIABILITY WITH RESPECT TO, AND THE BORROWER ON BEHALF OF ITSELF AND EACH OTHER
GUARANTOR, HEREBY WAIVES, RELEASES AND AGREES NOT TO XXX FOR ANY SPECIAL,
INDIRECT OR CONSEQUENTIAL DAMAGES RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR ARISING OUT OF ITS ACTIVITIES IN CONNECTION HEREWITH OR THEREWITH
(WHETHER BEFORE OR AFTER THE CLOSING DATE). The Borrower acknowledges that it
has been advised by counsel in the negotiation, execution and delivery of this
Agreement and the other Loan Documents to which it is a party. No joint venture
is created hereby or by the other Loan Documents or otherwise exists by virtue
of the transactions contemplated hereby among the Banks and the Agent or among
the Borrower, the Guarantors, the Agent and the Banks
BORROWER ACKNOWLEDGES THAT IT HAS BEEN ADVISED BY COUNSEL OF ITS CHOICE
WITH RESPECT TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY, AND
BORROWER ACKNOWLEDGES AND AGREES THAT (a) EACH OF THE WAIVERS SET FORTH HEREIN,
WERE KNOWINGLY AND VOLUNTARILY MADE; (b) THE OBLIGATIONS OF THE BANKS HEREUNDER,
INCLUDING THE OBLIGATION TO ADVANCE AND LEND FUNDS TO BORROWER IN ACCORDANCE
HEREWITH, WILL BE STRICTLY CONSTRUED AND WILL BE EXPRESSLY SUBJECT TO SUCH
BORROWER'S COMPLIANCE IN ALL RESPECTS WITH THE TERMS AND CONDITIONS HEREIN SET
FORTH; AND (c) NO REPRESENTATIVE OF ANY BANK HAS WAIVED OR MODIFIED ANY OF THE
PROVISIONS OF THIS AGREEMENT AS OF THE DATE HEREOF AND NO SUCH WAIVER OR
MODIFICATION FOLLOWING THE DATE HEREOF WILL BE EFFECTIVE UNLESS MADE IN
ACCORDANCE WITH SECTION 9.2 HEREOF.
[INTENTIONALLY LEFT BLANK - SIGNATURES ON FOLLOWING PAGES]
57
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first hereinabove set forth.
"BORROWER"
XXXXXXX INDUSTRIES, INC.
By: /s/ Xxxx X. Xxxxxxxxx
----------------------------------------------
Print Name: Xxxx X. Xxxxxxxxx
--------------------------------------
Its: Vice President, General Counsel and Secretary
---------------------------------------------
"BANKS"
LASALLE BANK MIDWEST NATIONAL
ASSOCIATION, as a Bank and as Agent
By: /s/ illegible
----------------------------------------------
Print Name:
--------------------------------------
Its:
---------------------------------------------
Ratable Share as of the Closing Date: 25.000000000%
------------------------------------
Commitment as of the Closing Date: $50,000,000.00
---------------------------------
Address for Notice:
------------------
000 Xxxxxxxx Xxxxxx
Xxxx Xxxxx, XX 00000-0000
Attn: Xxx Xxxx
58
REGIONS BANK
By: /s/ Xxxxx Xxxxxx
----------------------------------------------
Print Name: Xxxxx Xxxxxx
--------------------------------------
Its: Senior Vice President
---------------------------------------------
Ratable Share as of the Closing Date: 20.000000000%
------------------------------------
Commitment as of the Closing Date: $40,000,000.00
---------------------------------
Address for Notice:
------------------
__________________________________
__________________________________
Attn: ___________________________
59
SUNTRUST BANK
By: /s/ X.X. Xxxxx
----------------------------------------------
Print Name: X.X. Xxxxx
--------------------------------------
Its: Managing Director
---------------------------------------------
Ratable Share as of the Closing Date: 20.000000000%
------------------------------------
Commitment as of the Closing Date: $40,000,000.00
---------------------------------
Address for Notice:
------------------
000 Xxxxx Xxxx Xxxx #000
Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxx
60
FIRST TENNESSEE BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------------------
Print Name: Xxxxxxx X. Xxxxxxxxx
--------------------------------------
Its: Senior Vice President
---------------------------------------------
Ratable Share as of the Closing Date: 15.000000000%
------------------------------------
Commitment as of the Closing Date: $30,000,000.00
---------------------------------
Address for Notice:
------------------
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attn: Metropolitan Division
61
XXXXX FARGO BANK, N.A.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------------
Print Name: Xxxxx X. Xxxxxx
--------------------------------------
Its: Vice President
---------------------------------------------
Ratable Share as of the Closing Date: 11.250000000%
------------------------------------
Commitment as of the Closing Date: $22,500,000.00
---------------------------------
Address for Notice:
------------------
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
62
HSBC BANK USA, NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. XxXxxxx
----------------------------------------------
Print Name: Xxxxxx X. XxXxxxx
--------------------------------------
Its: Vice President
--------------------------------------------
Ratable Share as of the Closing Date: 8.750000000%
------------------------------------
Commitment as of the Closing Date: $17,500,000.00
---------------------------------
Address for Notice:
------------------
Xxx XXXX Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx X. XxXxxxx
Aggregate Commitment Amount as of the Closing Date: $200,000,000
--------------------------------------------------
63
