EXHIBIT 10.1
AMENDED AND RESTATED CREDIT AGREEMENT dated as of August 3, 1999
among TREX COMPANY, LLC, a Delaware limited liability company, TREX
COMPANY, INC., a Delaware corporation,
and FIRST UNION NATIONAL BANK,
a national banking association.
RECITALS
WHEREAS, the Borrower and the Bank entered into an Amended and Restated
Credit Agreement dated as of March 23, 1999 (the "Original Credit Agreement")
pursuant to which the Bank made available to the Borrower a revolving line of
credit and a term loan facility;
WHEREAS, the Borrower and the Bank have agreed that the revolving line of
credit shall be unsecured and the terms of the Original Credit Agreement shall
be amended in certain other respects;
WHEREAS, TREX COMPANY, INC. owns all of the issued and outstanding limited
liability company interests in the Borrower, operates the Borrower as its
wholly-owned subsidiary and has agreed to guaranty payment of the Obligations;
WHEREAS, in furtherance of the foregoing the Borrower and the Bank have
agreed to amend and restate the Original Credit Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Borrower and the Bank agree to amend, restate and replace the
Original Credit Agreement as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. All capitalized terms used in this Agreement
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or in any Appendix, Schedule or Exhibit hereto which are not otherwise defined
herein or therein shall have the respective meanings set forth in the Appendix
attached hereto identified as the Definitions Appendix. The Definitions Appendix
is incorporated herein by reference in its entirety and is a part of this
Agreement to the same extent as if it had been set forth in this Section 1.01 in
full.
Section 1.02 Accounting Terms and Determinations. Unless otherwise
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specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared, in accordance with
generally accepted accounting principles in the United States of America as in
effect from time to time, applied on a basis consistent (except for changes
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concurred in by the Borrower's independent public accountants) with the most
recent audited consolidated financial statements of the Borrower and its
Consolidated Subsidiaries delivered to the Bank.
ARTICLE II
THE CREDIT
Section 2.01 Commitment to Lend.
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(a) Revolving Commitment. The Bank agrees, on the terms and conditions
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set forth in this Agreement, to make Revolving Loans to the Borrower from time
to time during the Revolving Credit Period in amounts such that the aggregate
principal amount of Revolving Loans at any one time outstanding will not exceed
the Revolving Commitment. Within the foregoing limit, the Borrower may borrow,
prepay and reborrow Revolving Loans at any time during the Revolving Credit
Period.
(b) Term Commitment. The Bank agrees, on the terms and conditions set
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forth in this Agreement, to make Term Loans to the Borrower from time to time
during the Term Loan Period in amounts such that the aggregate principal amount
of Term Loans will not exceed the Term Commitment. This commitment to make Term
Loans is not revolving in nature, and any Term Loans repaid may not be
reborrowed.
Section 2.02 Methods of Borrowing.
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(a) Notice of Borrowing. Except as otherwise provided in this Section,
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the Borrower may, with the approval of the Bank, give the Bank notice
substantially in the form of Exhibit A hereto (a "Notice of Borrowing") not
later than 12:00 P.M. (local time in Winchester, Virginia) on the date of each
requested Loan, specifying the date of such Loan and the amount of such Loan.
(b) Cash Management Services. The Borrower subscribes to the Bank's
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cash management services and such services are applicable to the Revolving
Loans. The terms of such services, as set forth in the Services Agreement,
shall control the manner in which funds are transferred between the Operating
Account and the Revolving Loans for credit or debit to the Revolving Loans.
(c) Overdrafts in Other Accounts. The Bank may, at its option, pay
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any Item which will cause any deposit account maintained by the Borrower with
the Bank to become overdrawn, and such payment shall be deemed a Revolving Loan
hereunder.
Section 2.03 Funding of Loans. The Bank shall disburse the proceeds
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of each Loan made pursuant to Section 2.02 as follows:
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(a) The proceeds of each Loan under Section 2.02(a) shall be made
available by the Bank to the Borrower in Federal or other funds immediately
available at the Bank's address referred to in Section 8.01.
(b) The proceeds of each Loan under Section 2.02(b) or (c) shall be
disbursed by the Bank by way of direct payment of the relevant Item or by way of
deposit to the Operating Account pursuant to the Services Agreement, as the case
may be.
Section 2.04 Note.
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(a) Evidence of Loans. The Revolving Loans and the Term Loans shall each
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be evidenced by a single Note payable to the order of the Bank in an amount
equal to the Revolving Commitment and the Term Commitment, respectively.
(b) Records of Amounts Due. The Bank shall record the date and amount of
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each Loan made by it and the date and amount of each payment of principal made
by the Borrower with respect thereto, and may, if the Bank so elects in
connection with any transfer or enforcement of each Note, endorse on the
schedule forming a part thereof appropriate notations to evidence the foregoing
information with respect to each such Loan then outstanding; provided that the
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failure of the Bank to make any such recordation or endorsement shall not affect
the obligations of the Borrower hereunder or under such Note. The Bank is
hereby irrevocably authorized by the Borrower so to endorse each Note and to
attach to and make a part of such Note a continuation of any such schedule as
and when required. The Bank shall send the Borrower a copy of any endorsements
and continuations so made.
Section 2.05 Interest Rate.
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(a) LIBOR Market Index-Based Rate. Each Loan shall bear interest on the
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outstanding principal amount thereof, for each day from the date such Loan is
made until it becomes due, at a rate per annum equal to the applicable LIBOR
Market Index-Based Rate for such day. Such interest shall be payable for each
month in arrears on the first day of the immediately succeeding calendar month.
"LIBOR Market Index-Based Rate" shall be the rate per annum equal to
the LIBOR Market Index Rate plus one percent (1.0%) as that rate may change from
day to day. "LIBOR Market Index Rate", for any day, is the rate for 1 month
U.S. dollar deposits as reported on Telerate page 3750 as of 11:00 a.m., London
time, on such day, or if such day is not a London business day, then the
immediately preceding London business day (or if not so reported, then as
determined by the Bank from another recognized source or interbank quotation).
(b) Overdue Amounts. Any overdue principal of or interest on any Loan
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shall bear interest, payable on demand, for each day from and including the date
payment thereof was due to but excluding the date of actual payment, at a rate
per annum equal to the sum of 2% plus the LIBOR Market Index-Based Rate
applicable to such Loan on such day.
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Section 2.06 Unused Commitment Fee. The Borrower shall pay to the an
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unused commitment fee (the "Commitment Fee") for each day at a rate per annum
equal to the product of (i) 12.5 basis points multiplied by (ii) the excess of
the Revolving Commitment over the aggregate amount of the Revolving Loans on
such day. Such unused commitment fee shall accrue from and including the
Effective Date to but excluding the Termination Date (or earlier date of
termination of the Revolving Commitment in its entirety) and shall be payable
quarterly in arrears on each Quarterly Date and on the Termination Date.
Section 2.07 Adjustments of Commitment.
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(a) Optional Termination or Reductions of Revolving Commitment. The
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Borrower may, upon at least three Business Days' notice to the Bank, (i)
terminate the Revolving Commitment at any time, if no Revolving Loans are
outstanding at such time or (ii) reduce from time to time the amount of the
Revolving Commitment in excess of the aggregate outstanding principal amount of
the Revolving Loans. If the Revolving Commitment is terminated in its entirety,
all accrued fees shall be payable on the effective date of such termination.
(b) Optional Extension of Commitment.
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(i) The Bank may elect, by notice to the Borrower not less than 15
days and not more than 45 days prior to June 30, 2000 or the first
anniversary of an Extension Date (as applicable, an "Anniversary Date"), to
extend the Revolving Credit Period until the second anniversary of such
Anniversary Date (each of the first and subsequent Anniversary Dates on
which the Revolving Credit Period is extended hereunder being referred to
herein as an "Extension Date"). Failure by the Bank to notify the Borrower
of such election within the above time period shall be deemed to constitute
an election by the Bank not to extend the Revolving Credit Period.
(ii) If the Bank shall have elected to extend the Revolving Credit
Period as provided in this Section 2.07(b), then the Revolving Credit
Period shall continue until the second anniversary of the Extension Date in
effect, and the term "Termination Date", as used herein, shall mean such
second anniversary.
Section 2.08 Maturity and Repayment of Loans.
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(a) Maturity on Termination Date. Each Revolving Loan shall mature, and
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the principal amount thereof shall be due and payable, on the Termination Date.
(b) Cash Management Services. The Revolving Loans shall be repaid as set
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forth in the Services Agreement, and consistent with Section 2.02(b) of this
Agreement.
(c) Term Loans. The unpaid principal balance of the Term Loans on
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December 31, 1999 shall be payable in consecutive monthly payments on the first
day of each month, beginning February 1, 2000, equal to the quotient of the
amount of such unpaid principal balance on December 31, 1999 divided by 60;
provided, however, that the entire unpaid principal balance
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of the Term Loans and all accrued interest thereon shall be due and payable in
full on July 31, 2000.
(d) Optional Prepayments of Loans. The Borrower may upon at least one
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Business Day's notice to the Bank, prepay any Loan, in whole at any time, or
from time to time in part, without penalty, by paying the principal amount to be
prepaid together with accrued interest thereon to the date of prepayment. The
notice of prepayment delivered by the Borrower to the Bank shall not be
revocable by the Borrower following its receipt by the Bank. Any prepayment of
the Term Loans shall be applied to the Term Loans in the inverse order of their
maturities.
Section 2.09 General Provisions as to Payments. The Borrower shall make
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each payment of principal of and interest on the Loans and fees hereunder not
later than 12:00 Noon (local time in Winchester, Virginia) on the date when due,
without set-off, counterclaim or other deduction, in Federal or other funds
immediately available to the Bank at its address referred to in Section 9.01 or
such other location as designated by the Bank. Whenever any payment of principal
of, or interest on, the Loans or of fees shall be due on a day which is not a
Business Day, the date for payment thereof shall be extended to the next
succeeding Business Day. If the date for any payment of principal is extended by
operation of law or otherwise, interest thereon shall be payable for such
extended time.
Section 2.10 Computation of Interest and Fees. Interest on Loans
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hereunder shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day).
ARTICLE III
CONDITIONS
Section 3.01 Conditions to Closing. The obligation of the Bank to make
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the first Loan hereunder is subject to the satisfaction of the following
conditions:
(a) Effectiveness. This Agreement shall have become effective in
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accordance with Section 10.08.
(b) Notes. On or prior to the Closing Date, the Bank shall have received a
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duly executed Revolving Note and Term Note dated on or before the Closing Date
complying with the provisions of Section 2.04.
(c) Other Loan Documents. Each of the Loan Documents to be executed on or
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before the Closing Date shall be in form and substance reasonably satisfactory
to the Bank and shall have been duly executed and delivered to the Bank by each
of the parties thereto.
(d) Adverse Change, etc. On the Closing Date, nothing shall have occurred
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(and the Bank shall not have become aware of any facts or conditions not
previously known) which has, or could reasonably be expected to have, a Material
Adverse Effect.
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(e) Officer's Certificate. The Bank shall have received a certificate
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dated the Closing Date signed on behalf of the Borrower by the Chairman of the
Board, the President, any Vice President or the Treasurer of the Borrower
stating that (x) on the Closing Date and after giving effect to the Loan being
made on the Closing Date, no Default or Event of Default shall have occurred and
be continuing and (y) to the best knowledge and belief of such officer, the
representations and warranties of the Borrower contained in the Loan Documents
are true and correct on and as of the Closing Date.
(f) Opinion of Counsel. On the Closing Date, the Bank shall have received
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from counsel to the Borrower and Guarantor an opinion addressed to the Bank,
dated the Closing Date, substantially in the form of Exhibit C hereto and
covering such additional matters incident to the transactions contemplated
hereby as the Bank may reasonably request.
(g) (i) Borrower Proceedings. On the Closing Date, the Bank shall have
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received (i) a copy of the Borrower's Certificate of Formation, as amended,
certified by the Secretary of State of Delaware and dated as of a recent date
prior to the Closing Date; (ii) a certificate of the Secretary of State of
Delaware and each other state in which the Borrower is qualified as a foreign
limited liability company to do business, dated as of a recent date prior to the
Closing Date, as to the good standing of the Borrower; (iii) a copy of the
Borrower's Limited Liability Company Agreement, including all amendments
thereto; and (iv) a certificate of the appropriate officer or other authorized
person of the Borrower dated the Closing Date and certifying (A) that the
documents referred to in clause (iii) above have not been amended since the date
of said certificate, (B) that attached thereto is a true, correct and complete
copy of resolutions adopted by the managers of the Borrower authorizing the
execution, delivery and performance of the Credit Agreement, the Notes and the
Security Agreement and each other document delivered in connection herewith or
therewith and that said resolutions have not been amended and are in full force
and effect on the date of such certificate, (C) as to the incumbency and
specimen signatures of each officer or other authorized person of the Borrower
executing this Agreement, the Notes and the Security Agreement or any other
document delivered in connection herewith or therewith and (D) certifying as to
the names and respective jurisdictions of organization of all Subsidiaries of
the Borrower existing on the Closing Date.
(ii) Guarantor Proceedings. On the Closing Date, the Bank shall have
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received (i) a copy of the Guarantor's Certificate of Incorporation, as amended,
certified by the Secretary of State of Delaware and dated as of a recent date
prior to the Closing Date; (ii) a certificate of the Secretary of State of
Delaware and each other state in which the Guarantor is qualified as a foreign
corporation to do business, dated as of a recent date prior to the Closing Date,
as to the good standing of the Guarantor, (iii) a copy of the Guarantor's by-
laws, including all amendments thereto; and (iv) a certificate of the
appropriate officer or other authorized person of the Guarantor dated the
Closing Date and certifying (A) that the documents referred to in clause (iii)
above have not been amended since the date of said certificate, (B) that
attached thereto is a true, correct and complete copy of resolutions adopted by
the directors of the Guarantor authorizing the execution, delivery and
performance of the Credit Agreement and each other document delivered in
connection herewith or therewith to which the Guarantor is a party and that said
resolutions have not been amended and are in full force and effect on the date
of such certificate, (C) as to the incumbency and specimen signatures of each
officer or other authorized
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person of the Guarantor executing this Agreement or any other document delivered
in connection herewith or therewith and (D) certifying as to the names and
respective jurisdictions of organization of all Subsidiaries of the Guarantor
existing on the Closing Date.
All company and legal proceedings and instruments and agreements
relating to the transactions contemplated by this Agreement or in any other
document delivered in connection therewith shall be satisfactory in form and
substance to the Bank and its counsel, and the Bank shall have received all
information and copies of all documents and papers, including records of company
proceedings, governmental approvals, good standing certificates and bring-down
telegrams, if any, which the Bank reasonably may have requested in connection
therewith, such documents and papers where appropriate to be certified by proper
company or governmental authorities.
(h) Perfection of Security Interests; Search Reports. On or prior to the
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Closing Date, the Bank shall have received:
(i) a Perfection Certificate of the Borrower, substantially in the
form of Exhibit A to the Security Agreement;
(ii) appropriate Financing Statements (Form UCC-1 or such other
financing statements or similar notices as shall be required by local law)
fully executed for filing under the Uniform Commercial Code or other
applicable local law of each jurisdiction in which the filing of a
financing statement or giving of notice may be required, or reasonably
requested by the Bank, to perfect the security interests purported to be
created by the Loan Documents;
(iii) copies of reports from Xxxxxxxx-Xxxx Financial Services or other
independent search service reasonably satisfactory to the Bank listing all
effective financing statements that name the Borrower (under its present
name and any previous name and, if requested by the Bank, under any trade
names) as debtor or seller that are filed in the jurisdictions referred to
in clause (i) above, together with copies of such other financing
statements (none of which shall cover the Collateral (as that term is
defined in the Security Agreement) except to the extent evidencing
Permitted Liens or for which the Bank shall have received termination
statements (Form UCC-3) or such other termination statements as shall be
required by local law) fully executed for filing; and
(iv) evidence of the completion of all other filings and recordings
of, or with respect to, the Loan Documents as may be necessary or, in the
opinion of the Bank, desirable to perfect the security interests intended
to be created by the Loan Documents. (After the aforementioned filings and
recordings have been effected, the Bank shall execute all termination
statements submitted by the Borrower effecting the termination of all
filings and recordings pertaining to previous terminated or superseded
agreements between the parties.)
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(i) Payment of Fees. All reasonable costs, fees and expenses due to
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the Bank on or before the Closing Date (including, without limitation, legal
fees and expenses) shall have been paid.
(j) Counsel Fees. The Bank shall have received payment from the
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Borrower of the reasonable fees and expenses of McGuire, Woods, Battle & Xxxxxx,
LLP described in Section 8.03 which are billed through the Closing Date.
The Bank shall promptly notify the Borrower of the Closing Date, and
such notice shall be conclusive and binding on all parties hereto. The
documents referred to in this Section shall be delivered to the Bank no later
than the Closing Date. The certificates and opinion referred to in this Section
shall be dated the Closing Date.
Section 3.02 Conditions to All Loans. The obligation of the Bank to
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make each Loan is subject to the satisfaction of the following conditions:
(i) the fact that the Closing Date shall have occurred;
(ii) with respect to each Revolving Loan, the fact that, immediately
after the making of such Loan, the aggregate outstanding principal amount
of all Revolving Loans will not exceed the Revolving Commitment;
(iii) with respect to each Term Loan, the fact that, immediately
after the making of such Loan, the aggregate principal amount of all Term
Loans made shall not exceed the Term Commitment.
(iv) the fact that, immediately before and after the making of such
Loan, no Default shall have occurred and be continuing;
(v) the fact that the representations and warranties of the Borrower
contained in this Agreement shall be true on and as of the date of such
Loan; and
(vi) (A) the Bank shall in good faith have determined that its
prospect of receiving payment in full of the Obligations then outstanding
or its ability to exercise its rights and remedies hereunder and under the
other Loan Documents have not been impaired, (B) no event or condition
shall have occurred since the Effective Date which has or could reasonably
be expected to have a Material Adverse Effect or (C) the Bank shall not
reasonably suspect that one or more Events of Default have occurred and is
continuing.
Each Loan hereunder shall be deemed to be a representation and warranty by the
Borrower on the date of such Loan as to the facts specified in clauses (iv) and
(v) of this Section.
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ARTICLE IV
GUARANTY
Section 4.01 Guaranty. Guarantor hereby guaranties to the Bank the
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prompt payment of the Obligations in full when due (whether at stated maturity,
as a mandatory prepayment, by acceleration or otherwise) strictly in accordance
with the terms thereof. Guarantor hereby further agrees that if any of the
Obligations are not paid in full when due (whether at stated maturity, as a
mandatory prepayment, by acceleration or otherwise), Guarantor will promptly pay
the same, without any demand or notice whatsoever, and that in the case of any
extension of time of payment or renewal of any of the Obligations, the same will
be promptly paid in full when due (whether at extended maturity, as a mandatory
prepayment, by acceleration or otherwise) in accordance with the terms of such
extension or renewal.
Section 4.02 Obligations Unconditional. The obligation of the Guarantor
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under Section 4.01 hereof is absolute and unconditional, irrespective of the
value, genuineness, validity, regularity or enforceability of any of the Loan
Documents, or any other agreement or instrument referred to therein, or any
substitution, release or exchange of any other guaranty of or security for any
of the Obligations, and, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever which might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor,
it being the intent of this Section 4.02 that the obligations of the Guarantor
hereunder shall be absolute and unconditional under any and all circumstances.
The Guarantor agrees that it shall have no right of subrogation, indemnity,
reimbursement or contribution against the Borrower for amounts paid under this
guaranty until such time as the Bank has been paid in full, all commitments
under this Agreement have been terminated and no Person shall have any right to
request any return or reimbursement of funds from the Bank in connection with
monies received under the Loan Documents. Without limiting the generality of the
foregoing, it is agreed that, to the fullest extent permitted by law, the
occurrence of any one or more of the following shall not alter or impair the
liability of the Guarantor hereunder which shall remain absolute and
unconditional as described above:
(i) at any time or from time to time, without notice to the
Guarantor, the time for any performance of or compliance with any of the
Obligations shall be extended, or such performance or compliance shall be
waived;
(ii) any of the acts mentioned in any of the provisions of any of the
Loan Documents or any other agreements or instrument referred to therein shall
be done or omitted;
(iii) the maturity of any of the Obligations shall be accelerated, or
any of the Obligations shall be modified, supplemented or amended in any
respect, or any right under any of the Loan Documents or any other agreement or
instrument referred to therein shall be waived or any other guaranty of any of
the Obligations or any security therefor shall be released or exchanged in whole
or in part or otherwise dealt with;
(iv) any Lien granted to, or in favor of, the Bank as security for
any of the Obligations shall fail to attach or be perfected; or
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(v) any of the Obligations shall be determined to be void or voidable
(including, without limitation, for the benefit of any creditor of the
Guarantor) or shall be subordinated to the claims of any Person (including,
without limitation, any creditor of the Guarantor).
With respect to its obligations hereunder, the Guarantor hereby expressly waives
diligence, presentment, demand of payment, protest and all notices whatsoever,
and any requirement that the Bank exhaust any right, power or remedy or proceed
against any Person under any of the Loan Documents or any other agreement or
instrument referred to therein, or against any other Person under any other
guaranty of, or security for, any of the Obligations.
Section 4.03 Reinstatement. The obligation of the Guarantor under this
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Article IV shall be automatically reinstated if and to the extent that for any
reason any payment by or on behalf of any Person in respect of the Obligations
is rescinded or must be otherwise restored by any holder of any of the
Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and the Guarantor agrees that it will indemnify the
Bank on demand for all reasonable costs and expenses (including, without
limitation, fees and expenses of counsel) incurred by the Bank in connection
with such rescission or restoration, including any such costs and expenses
incurred in defending against any claim alleging that such payment constituted a
preference, fraudulent transfer or similar payment under any bankruptcy,
insolvency or similar law.
Section 4.04 Certain Additional Waivers. Without limiting the generality
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of the provisions of this Article IV, the Guarantor hereby agrees that it shall
have no right of recourse to security for the Obligations.
Section 4.05 Remedies. The Guarantor agrees that, to the fullest extent
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permitted by law, as between the Guarantor, on the one hand, and the Bank, on
the other hand, the Obligations may be declared to be forthwith due and payable
as provided in Article VI hereof for purposes of Section 4.01 hereof
notwithstanding any stay, injunction or other prohibition preventing such
declaration as against any other Person and that, in the event of such
declaration, the Obligations (whether or not due and payable by any other
Person) shall forthwith become due and payable by the Guarantor for purposes of
said Section 4.01.
Section 4.06 Continuing Guaranty. The guaranty in this Article IV is a
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continuing guaranty, and shall apply to all the Obligations whenever arising.
Section 4.07 Representations and Warranties. The Guarantor represents
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and warrants that:
(a) The Guarantor is a corporation duly incorporated, validly
existing and in good standing under the laws of Delaware, and has all corporate
powers and all material governmental licenses, authorizations, consents and
approvals required to carry on its business as now conducted. The Guarantor is
duly qualified as a foreign corporation, licensed and in good standing in each
other jurisdiction where qualification or licensing is required by the nature of
its business or the character and location of its property, business or
customers and in which the
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failure to so qualify or be licensed, as the case may be, could have a material
adverse affect on the business, financial position, results of operations,
properties or prospects of the Guarantor.
(b) The execution, delivery and performance by the Guarantor of this
Agreement are within its corporate power, have been duly authorized by all
necessary corporate action, require no action by or in respect of, or filing
with, any governmental authority and do not contravene, or constitute (with or
without the giving of notice or lapse of time or both) a default under, any
provision of applicable law or of the articles of incorporation or by-laws of
the Guarantor or of any agreement, judgment, injunction, order, decree or other
instrument binding upon or affecting the Guarantor.
(c) This Agreement constitutes a legal, valid and binding agreement
of the Guarantor, enforceable against it in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity (whether
enforcement is sought by proceedings in equity or at law).
(d) The Guarantor is not in default in the payment of the principal
of or interest on any indebtedness and is not in default under any instrument
under and subject to which any such indebtedness has been incurred, and no event
has occurred and is continuing under the provisions of any such agreement which,
with the lapse of time or the giving of notice, or both, would constitute an
event of default thereunder or permit the acceleration of the indebtedness
represented thereby.
(e) There is no action, suit or proceeding pending against, or to the
knowledge of the Guarantor threatened against or affecting it before any court
or arbitrator or any governmental authority in which there is a reasonable
possibility of an adverse decision which could materially adversely affect its
financial condition or which in any manner draws into question the validity of
this Guaranty.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
Section 5.01 Existence and Power. The Borrower is a limited liability
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company duly organized, validly existing and in good standing under the laws of
the State of Delaware, and has all powers and all material governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted. Each of the Subsidiaries is duly organized, validly
existing and in good standing under the laws of the state of its organization
and has all powers and all material governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted. Each
of the Borrower and the Subsidiaries is duly qualified as a foreign entity,
licensed and in good standing in each jurisdiction where qualification or
licensing is required by the nature of its business or the character and
location of its property, business or customers and in which the failure to so
qualify or be licensed, as the case may be, in the aggregate, could have a
Material Adverse Effect.
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Section 5.02 Company and Governmental Authorization; No Contravention.
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The execution, delivery and performance by the Borrower of the Loan Documents to
which it is a party are within the limited liability company powers of the
Borrower, have been duly authorized by all necessary company action, require no
action by or in respect of, or filing with, any governmental body, agency or
official (except for any such action or filing as shall have been taken or made
and that is in full force and effect from and after the Closing Date) and do not
contravene, or constitute (with or without the giving of notice or lapse of time
or both) a default under, any provision of applicable law or of the
organizational documents of the Borrower or any Subsidiary or of any agreement,
judgment, injunction, order, decree or other instrument binding upon or
affecting the Borrower or any Subsidiary or result in the creation or imposition
of any Lien on any asset of the Borrower or any of its Subsidiaries.
Section 5.03 Binding Effect. Each Loan Document other than the Notes to
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which the Borrower is a party constitutes a valid and binding agreement of the
Borrower and each Note, when executed and delivered in accordance with this
Agreement, will constitute a valid and binding obligation of the Borrower, in
each case enforceable against the Borrower in accordance with its terms except
in each case as such enforceability may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and by equitable principles
of general applicability (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
Section 5.04 Financial Condition.
-------------------
(a) [Intentionally Deleted].
-----------------------
(b) Interim Financial Statements. The unaudited consolidated balance
----------------------------
sheet of the Borrower and its Consolidated Subsidiaries as of May 31, 1999 and
the related unaudited consolidated income statements for the month then ended,
copies of which have been delivered to the Bank, fairly present, in conformity
with generally accepted accounting principles applied on a basis consistent with
the audited financial statements for the fiscal year ended December 31, 1998,
the consolidated financial position of the Borrower and its Consolidated
Subsidiaries as of such date and their consolidated results of operations and
changes in financial position for such 12 month period (subject to normal year-
end audit adjustments).
(c) Material Adverse Change. Since December 31, 1998 there has been no
-----------------------
material adverse change in condition (financial or otherwise), results of
operations, properties, assets, business or prospects of the Borrower or of the
Borrower and its Consolidated Subsidiaries, considered as a whole.
Section 5.05 Litigation. Except as set forth on Schedule 5.05, there is
----------
no material action, suit, proceeding or investigation pending against, or to the
knowledge of the Borrower threatened against, contemplated or affecting, the
Borrower or any of its Subsidiaries before any court, arbitrator or any
governmental body, agency or official which has, or could reasonably be expected
to have, a Material Adverse Effect, or which in any manner draws into question
the
12
validity or enforceability of this Agreement or the Notes, and there is no basis
known to the Borrower or any of its Subsidiaries for any such action, suit,
proceeding or investigation.
Section 5.06 Regulation U; Use of Proceeds. The Borrower and its
-----------------------------
Subsidiaries do not own any "margin stock" as such term is defined in Regulation
U. The proceeds of the Loans will be used by the Borrower only for the purposes
set forth in Section 6.16 hereof.
Section 5.07 Regulatory Restrictions on Borrowing. Neither the Borrower
------------------------------------
nor any of its Subsidiaries is an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, a "holding company" within the
meaning of the Public Utility Holding Company Act of 1935, as amended, or
otherwise subject to any regulatory scheme which restricts its ability to incur
debt.
Section 5.08 Subsidiaries. Part I of Schedule 5.08 (as such Schedule may
------------
be supplemented by a writing delivered by the Borrower to the Bank from time to
time after the Effective Date) hereto lists each Subsidiary of the Borrower (and
the direct and indirect ownership interests of the Borrower therein), in each
case existing on the Effective Date and, if applicable, upon completion of the
Reorganization. Except as set forth on Part I of such Schedule 5.08, each such
Subsidiary existing on the date hereof is, and, in the case of any additional
corporate Subsidiaries formed after the Effective Date, each of such additional
corporate Subsidiaries will be at each time that this representation is made or
deemed to be made after the Effective Date, a wholly-owned Subsidiary that is a
corporation duly incorporated, validly existing and, to the extent relevant in
such jurisdiction, in good standing under the laws of its jurisdiction of
incorporation, and has all corporate powers and all material governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted. Except as listed on Part II of Schedule 5.08 (as such
Schedule may be supplemented by a writing delivered by the Borrower to the Bank
from time to time after the Effective Date), neither the Borrower nor any of its
Subsidiaries is engaged in any joint venture or partnership with any other
Person.
Section 5.09 Full Disclosure. All factual information (taken as a whole)
---------------
furnished by or on behalf of the Borrower or any of its Subsidiaries in writing
to the Bank for purposes of or in connection with this Agreement or any
transaction contemplated hereby is true and accurate in all material respects on
the date as of which such information is dated or certified and is not
incomplete by omitting to state any material fact necessary to make such
information (taken as a whole) not misleading at such time in light of the
circumstances under which such information was provided. Except for economic
trends generally known to the public affecting generally the industry in which
the Borrower and its Subsidiaries conduct their business, the Borrower has
disclosed to the Bank in writing any and all facts which materially and
adversely affect or may materially and adversely affect (to the extent the
Borrower can now reasonably foresee), the business, operations or financial
condition of the Borrower and its Consolidated Subsidiaries, taken as a whole,
or the ability of the Borrower to perform its obligations under this Agreement.
Section 5.10 Tax Returns and Payments. Each of the Borrower and its
------------------------
Subsidiaries has filed all United States Federal income tax returns and all
other material tax returns, domestic and foreign, required to be filed by it and
has paid all taxes and assessments payable by it which
13
have become due pursuant to such returns or pursuant to any assessment received
by the Borrower or any Subsidiary, other than those not yet delinquent and
except for those contested in good faith. Each of the Borrower and its
Subsidiaries has paid, or has provided adequate reserves (in good faith judgment
of the management of the Borrower) for the payment of, all federal, state and
foreign income taxes applicable for all prior fiscal years and for the current
fiscal year to the date hereof.
Section 5.11 Compliance with ERISA. Each member of the ERISA Group has
---------------------
fulfilled its obligations under the minimum funding standards of ERISA and the
Internal Revenue Code with respect to each Plan and is in compliance in all
material respects with the presently applicable provisions of ERISA and the
Internal Revenue Code with respect to each Plan. No member of the ERISA Group
has (i) sought a waiver of the minimum funding standard under Section 412 of the
Internal Revenue Code in respect of any Plan, (ii) failed to make any
contribution or payment to any Plan or Multiemployer Plan or in respect of any
Benefit Arrangement, or made any amendment to any Plan or Benefit Arrangement,
which has resulted or could result in the imposition of a Lien or the posting of
a bond or other security under ERISA or the Internal Revenue Code or (iii)
incurred any liability under Title IV of ERISA other than a liability to the
PBGC for premiums under Section 4007 of ERISA.
Section 5.12 Intellectual Property. Each of the Borrower and its
---------------------
Subsidiaries owns or possesses or holds under valid non-cancelable licenses all
Patents, Trademarks, service marks, trade names, copyrights, Licenses and other
intellectual property rights that are necessary for the operation of their
respective properties and businesses, and neither the Borrower nor any of its
Subsidiaries is in violation of any provision thereof. The Borrower and its
Subsidiaries conduct their business without infringement or claim of
infringement of any material license, patent, trademark, trade name, service
xxxx, copyright, trade secret or any other intellectual property right of others
and there is no infringement or, except as set forth on Schedule 5.12, claim of
infringement by others of any material license, patent, trademark, trade name,
service xxxx, copyright, trade secret or other intellectual property right of
the Borrower and its Subsidiaries.
Section 5.13 No Burdensome Restrictions. No contract, lease, agreement
--------------------------
or other instrument to which the Borrower or any of its Subsidiaries is a party
or by which any of its property is bound or affected, no charge, corporate
restriction, judgment, decree or order and no provision of applicable law or
governmental regulation has had or is reasonably expected to have a Material
Adverse Effect.
Section 5.14 Environmental Matters. In the ordinary course of its
---------------------
business, the Borrower conducts an ongoing review of the effect of Environmental
Laws on the business, operations and properties of the Borrower and its
Subsidiaries, in the course of which it identifies and evaluates associated
liabilities and costs (including, without limitation, any capital or operating
expenditures required for clean-up or closure of properties presently or
previously owned, any capital or operating expenditures required to achieve or
maintain compliance with environmental protection standards imposed by law or as
a condition of any license, permit or contract, any related constraints on
operating activities, including any periodic or permanent shutdown of any
facility or reduction in the level of or change in the nature of operations
conducted at any such facility, any costs or liabilities in connection with off-
site disposal of
14
wastes or Hazardous Substances, and any actual or potential liabilities to third
parties, including employees, and any related costs and expenses). On the basis
of this review, the Borrower has reasonably concluded that such associated
liabilities and costs, including the costs of compliance with Environmental
Laws, are unlikely to have a material adverse effect on the business, financial
condition, results of operations or prospects of the Borrower and its
Consolidated Subsidiaries, considered as a whole.
ARTICLE VI
COVENANTS
The Borrower agrees that, so long as the Bank has any commitment to make
Revolving Loans or Term Loans hereunder or any Obligation remains unpaid:
Section 6.01 Information. The Borrower will deliver or cause to be
-----------
delivered to the Bank:
(a) Annual Financial Statements. As soon as available and in any event
---------------------------
within 90 days after the end of each fiscal year of the Borrower, a consolidated
and consolidating balance sheet of each of the Borrower and Guarantor and its
Consolidated Subsidiaries as of the end of such fiscal year and the related
consolidated and consolidating statements of income, changes in equity and cash
flows for such fiscal year, setting forth in each case in comparative form the
figures for the previous fiscal year, all in reasonable detail and accompanied
by an opinion thereon by Ernst & Young, LLP or other independent public
accountants reasonably satisfactory to the Bank, which opinion shall not be
qualified as to the scope of the audit and which shall state that such
consolidated financial statements present fairly the consolidated financial
position of each of the Borrower and Guarantor and its Consolidated Subsidiaries
as of the date of such financial statements and the results of their operations
for the period covered by such financial statements in conformity with generally
accepted accounting principles applied on a consistent basis (except for changes
in the application of which such accountants concur) and shall not contain any
"going concern" or like qualification or exception or qualification arising out
of the scope of the audit.
(b) Monthly Financial Statements. As soon as available and in any event
----------------------------
within 45 days after the end of each of the first three fiscal quarters of each
fiscal year of each of the Borrower and Guarantor a consolidated balance sheet
of each of the Borrower and Guarantor and its Consolidated Subsidiaries as of
the end of such fiscal quarter (with all supporting schedules) and the related
consolidated statements of income, changes in equity and cash flows of each of
the Borrower and Guarantor and its Consolidated Subsidiaries for such quarter,
setting forth in each case in comparative form the figures for the corresponding
quarter of the previous fiscal year, all certified (subject to normal year-end
audit adjustments) as to fairness of presentation, generally accepted accounting
principles and consistency by the chief financial officer or chief accounting
officer of each of the Borrower and Guarantor.
(c) Officer's Certificate. Simultaneously with the delivery of each set of
---------------------
financial statements referred to in subsections (a) and (b) above, a certificate
of the chief financial officer or chief accounting officer of the Borrower, (i)
if applicable, setting forth in reasonable detail the
15
calculations required to establish whether the Borrower was in compliance with
the requirements of Sections 6.17 through 6.19, on the date of such financial
statements, (ii) setting forth in reasonable detail the business outlook and
performance of the Borrower and its Consolidated Subsidiaries as of the date of
such certificate, (iii) stating whether there exists on the date of such
certificate any Default and, if any Default then exists, setting forth the
details thereof and the action which the Borrower is taking or proposes to take
with respect thereto, and (iv) stating whether, since the date of the most
recent previous delivery of financial statements pursuant to subsections (a) and
(b) of this Section, there has been any material adverse change in the condition
(financial or otherwise), results of operations, properties, assets, business or
prospects of the Borrower or of the Borrower and its Consolidated Subsidiaries,
considered as a whole, and, if so, the nature of such material adverse change.
(d) Accountant's Certificate. Simultaneously with the delivery of each set
------------------------
of financial statements referred to in subsection (a) above, a statement of the
firm of independent public accountants which reported on such statements (x)
whether anything has come to their attention to cause them to believe that any
Default existed on the date of such statements and (y) confirming the
calculations set forth in the officer's certificate delivered simultaneously
therewith pursuant to subsection (c) above.
(e) Default. Forthwith upon the occurrence of any Default, a certificate
-------
of the chief financial officer or chief accounting officer of the Borrower
setting forth the details thereof and the action which the Borrower is taking or
proposes to take with respect thereto.
(f) Litigation. As soon as reasonably practicable after obtaining
----------
knowledge of the commencement of, or of a material threat of the commencement
of, an action, suit, proceeding or investigation against the Borrower or any of
its Subsidiaries which could materially adversely affect the condition
(financial or otherwise), results of operations, properties, assets, business or
prospects of the Borrower and its Consolidated Subsidiaries, considered as a
whole, or could otherwise have a Material Adverse Effect or which in any manner
questions the validity of this Agreement or any of the other transactions
contemplated hereby or thereby, an explanation of the nature of such pending or
threatened action, suit, proceeding or investigation and such additional
information as may be reasonably requested by the Bank.
(g) Auditors' Management Letters. Promptly upon receipt thereof, copies of
----------------------------
each report submitted to either of the Borrower or the Guarantor or any of their
respective Consolidated Subsidiaries by independent public accountants in
connection with any annual, interim or special audit made by them of the books
of either of the Borrower or the Guarantor or any of their respective
Consolidated Subsidiaries including, without limitation, each report submitted
to either of the Borrower or the Guarantor or any of their respective
Consolidated Subsidiaries concerning its accounting practices and systems and
any final comment letter submitted by such accountants to management in
connection with the annual audit of either of the Borrower or the Guarantor and
their respective Consolidated Subsidiaries.
(h) [Intentionally Deleted.]
---------------------
16
(i) ERISA Matters. If and when any member of the ERISA Group (i) gives or
-------------
is required to give notice to the PBGC of any "reportable event" (as defined in
Section 4043 of ERISA) with respect to any Plan which might constitute grounds
for a termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or
required to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA or notice that any Multiemployer
Plan is in reorganization, is insolvent or has been terminated, a copy of such
notice; (iii) receives notice from the PBGC under Title IV of ERISA of an intent
to terminate, impose liability (other than for premiums under Section 4007 of
ERISA) in respect of, or appoint a trustee to administer any Plan, a copy of
such notice; (iv) applies for a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code, a copy of such application; (v) gives
notice of intent to terminate any Plan under Section 4041(c) of ERISA, a copy of
such notice and other information filed with the PBGC; (vi) gives notice of
withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of such
notice; or (vii) fails to make any payment or contribution to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement or makes any
amendment to any Plan or Benefit Arrangement which has resulted or could
reasonably be expected to result in the imposition of a Lien or the posting of a
bond or other security, a certificate of the chief financial officer or the
chief accounting officer of the Borrower setting forth details as to such
occurrence and action, if any, which the Borrower or applicable member of the
ERISA Group is required or proposes to take.
(j) Environmental Matters. Promptly, upon receipt of any complaint, order,
---------------------
citation, notice or other written communication from any Person with respect to,
or upon the Borrower's obtaining knowledge of, (A) the existence or alleged
existence of a violation of any applicable Environmental Law in connection with
any property now or previously owned, leased or operated by the Borrower or any
of its Subsidiaries, (B) any release on such property or any part thereof in a
quantity that is reportable under any applicable Environmental Law and (C) any
pending or threatened proceeding for the termination, suspension or non-renewal
of any permit required under any applicable Environmental Law, in each such case
under clause (A), (B) or (C) in which there is a reasonable likelihood of an
adverse decision or determination which could result in a Material Adverse
Effect.
(k) Other Information. From time to time such additional financial or
-----------------
other information regarding the condition (financial or otherwise), results of
operations, properties, assets, business or prospects of the Borrower, the
Guarantor or any of their respective Subsidiaries as the Bank may reasonably
request.
Section 6.02 Payment of Obligations. The Borrower will pay and discharge,
----------------------
and will cause each of its Subsidiaries to pay and discharge, as the same shall
become due and payable, (i) all their respective obligations and liabilities,
including all claims or demands of materialmen, mechanics, carriers,
warehousemen, landlords and other like persons which, in any such case, if
unpaid, might by law give rise to a Lien upon any of their properties or assets
and (ii) all lawful taxes, assessments and charges or levies made upon their
properties or assets, by any governmental body, agency or official, except where
any of the items in clause (i) or (ii) of this Section 6.02 may be diligently
contested in good faith by appropriate proceedings and the
17
Borrower or such Subsidiary shall have set aside on its books, if required under
generally accepted accounting principles, appropriate reserves for the accrual
of any such items.
Section 6.03 Maintenance of Property; Insurance.
----------------------------------
(a) Maintenance of Properties. The Borrower will keep, and will cause
-------------------------
each of its Subsidiaries to keep, all property useful and necessary in their
respective businesses in good working order and condition, subject to ordinary
wear and tear.
(b) Insurance. The Borrower will maintain, and will cause each of its
---------
Subsidiaries to maintain, insurance with financially sound and responsible
companies in such amounts (and with such risk retentions) and against such risks
as is usually carried by owners of similar businesses and properties in the same
general areas in which the Borrower and its Subsidiaries operate. The Borrower
will deliver to the Bank upon request from time to time full information as to
the insurance carried.
Section 6.04 Conduct of Business and Maintenance of Existence. The
------------------------------------------------
Borrower will continue, and will cause each of its Subsidiaries to continue, to
engage in business of the same general type as now conducted by the Borrower and
its Subsidiaries, and will preserve, renew and keep in full force and effect,
and will cause each of its Subsidiaries to preserve, renew and keep in full
force and effect, their respective corporate existence and their respective
rights, privileges and franchises necessary or desirable in the normal conduct
of business.
Section 6.05 Compliance with Laws. The Borrower will comply, and
--------------------
will cause each of its Subsidiaries to comply, with all applicable laws,
ordinances, rules, regulations, and requirements of governmental authorities
(including, without limitation, Environmental Laws, ERISA and the rules and
regulations thereunder) except (i) where the necessity of compliance therewith
is contested in good faith by appropriate proceedings or (ii) where
noncompliance could not reasonably be expected to have a Material Adverse
Effect.
Section 6.06 Accounting: Inspection of Property, Books and Records.
-----------------------------------------------------
Each of the Borrower and the Guarantor will keep, and will cause each of its
Subsidiaries to keep, proper books of record and account in which full, true and
correct entries in conformity with generally accepted accounting principles
shall be made of all dealings and transactions in relation to their respective
businesses and activities, will maintain, and will cause each of their
respective Subsidiaries to maintain, their respective fiscal reporting periods
on the present basis and will permit, and will cause each of their respective
Subsidiaries to permit, representatives of the Bank to visit and inspect any of
their respective properties, to examine and make copies from any of their
respective books and records and to discuss their respective affairs, finances
and accounts with their officers, employees and independent public accountants,
all at such reasonable times and as often as may reasonably be desired, but in
no event less than one year since the most recent examination, unless a Default
has occurred. Notwithstanding the above, each of the Borrower and the Guarantor
shall be permitted to make adjustments to its books of record and accounts as
may be required or as may be requested by an audit or outside review, so long as
the purpose of such adjustment is to bring said books or accounts into
conformity with generally accepted accounting principles.
18
Section 6.07 Intentionally Deleted.
---------------------
Section 6.08 Intentionally Deleted.
---------------------
Section 6.09 Restriction on Liens. The Borrower will not, and will not
--------------------
permit any of its Subsidiaries to, create, incur, assume or suffer to exist any
Lien upon or with respect to any Accounts, Inventory or proceeds thereof, or
sell any Accounts, Inventory or proceeds thereof subject to an understanding or
agreement, contingent or otherwise, to repurchase such Accounts, Inventory or
proceeds thereof (including sales of accounts receivable or notes with recourse
to the Borrower or any of its Subsidiaries) or assign any right to receive
income, or file or permit the filing of any financing statement under the
Uniform Commercial Code as in effect in any applicable jurisdiction or any other
similar notice of Lien under any similar recording or notice statute; provided
that the provisions of this Section 6.09 shall not prevent the creation,
incurrence, assumption or existence of the following (with such Liens described
below being herein referred to as "Permitted Liens"):
(i) Liens created by the Loan Documents;
(ii) Liens for taxes not yet due or Liens for taxes being contested
in good faith and by appropriate proceedings for which adequate reserves
(in the good faith judgment of the management of the Borrower) have been
established; and
(iii) Liens imposed by law securing the charges, claims, demands or
levies of carriers, warehousemen, mechanics and other like persons which
were incurred in the ordinary course of business which (A) do not in the
aggregate materially detract from the value of the property or assets
subject to such Lien or materially impair the use thereof in the operation
of the business of the Borrower or any Subsidiary or (B) are being
contested in good faith by appropriate proceedings, which proceedings have
the effect of preventing the forfeiture or sale of the property or assets
subject to such lien.
Section 6.10 Limitation on Guarantees. Neither the Borrower nor any of
------------------------
its Subsidiaries shall Guarantee any Debt of any Person or Persons in excess of
$250,000.00 in the aggregate at any time.
Section 6.11 [Intentionally Deleted].
-----------------------
Section 6.12 Consolidations, Mergers and Sales of Assets. Neither the
-------------------------------------------
Borrower nor any Subsidiary will (i) consolidate or merge with or into any other
Person or (ii) sell, lease or otherwise transfer, directly or indirectly, all or
substantially all of the assets of the Borrower or such Subsidiary to any other
Person or Persons; provided that so long as no Default shall have occurred after
--------
giving effect thereto, (A) a Subsidiary may merge into the Borrower if the
Borrower is the surviving entity, and (B) the Borrower or any Subsidiary may
merge into or consolidate with another Person if the Borrower or such
Subsidiary, as the case may be, is the entity surviving such merger or
consolidation.
19
Section 6.13 Investments: Asset Acquisitions.
-------------------------------
(a) Investments. Neither the Borrower nor any Subsidiary will hold, make
-----------
or acquire any Investment in any Person, except:
(i) the Borrower and any Subsidiary may invest in cash and Cash
Equivalents;
(ii) the Borrower and any Subsidiary may acquire and hold receivables
owing to them, if created or acquired in the ordinary course of business
and payable or dischargeable in accordance with customary trade terms;
(iii) the Borrower and any Subsidiary may acquire and own investments
(including Debt obligations) received in connection with the bankruptcy or
reorganization of suppliers and customers and in settlement of delinquent
obligations of, and other disputes with, customers and suppliers arising in
the ordinary course of business;
(iv) the Borrower and any Subsidiary may make loans and advances to
any employees in the ordinary course of business, provided such loans and
advances do not exceed at any time, in the aggregate, $250,000; and
(v) any Acquisition permitted by Section 6.13(b).
(b) Acquisitions. The Borrower will not, and will not permit any of its
------------
Subsidiaries to, enter into any Acquisition transaction except:
(i) the Borrower and any Subsidiary may acquire assets in the
ordinary course of business for fair consideration;
(ii) the Borrower and any Subsidiary may enter into any Acquisition
transaction with respect to which the purchase price consists of capital
stock of the acquiring Person; and
(iii)the Borrower and any Subsidiary may enter into any other
Acquisition transaction, but only to the extent (A) the purchase price
(including any assumption of liabilities in connection therewith, but
excluding any portion of the purchase price for any such Acquisition
consisting of capital stock or other securities of the purchaser) of all
such Acquisitions occurring during the Revolving Credit Period does not
exceed $17,000,000 and (B) after giving effect on a pro forma basis to such
Acquisition (including but not limited to any Debt to be incurred or
assumed by the purchaser in connection therewith), no Default would exist
hereunder.
Section 6.14 Payments, etc. The Borrower will not, and will not permit
--------------
any of its Subsidiaries to, make any distribution, dividend, payment or delivery
of property or cash to its members as such, or redeem, retire, purchase or
otherwise acquire, directly or indirectly, for a consideration, any membership
or other interests or shares of any class of its capital stock now or
20
hereafter outstanding (or any warrants for or options or stock appreciation
rights in respect of any of such shares), or set aside any funds for any of the
foregoing purposes, or permit any of its Subsidiaries to purchase or otherwise
acquire for consideration any membership interest in the Borrower or any shares
of capital stock or other interest in any other Subsidiary, as the case may be,
now or hereafter outstanding (or any options or warrants or stock appreciation
rights issued by such Person with respect to its capital stock), except that:
(i) any Subsidiary of the Borrower may pay dividends to the Borrower;
and
(ii) the Borrower may pay any other dividends or distributions if,
after giving effect on a pro forma basis to such payment (A) no Default
would exist, and (B) the ratio of Total Consolidated Debt to Total
Consolidated Capitalization, as a percentage, would not exceed 50%.
Section 6.15 Use of Proceeds. The proceeds of the Revolving Loans made
---------------
under this Agreement will be used by the Borrower for permanent working capital
financing of the Borrower's accounts receivable and inventory and/or other
general corporate purposes. The proceeds of the Term Loans made under this
Agreement will be used by the Borrower to purchase equipment and/or other
general corporate purposes. No such use of the proceeds for general corporate
purposes will be, directly or indirectly, for the purpose, whether immediate,
incidental or ultimate, of buying or carrying any "margin stock" within the
meaning of Regulation U.
Section 6.16 Transactions with Other Persons. The Borrower will not,
-------------------------------
and will not permit any of its Subsidiaries to, enter into any agreement with
any Person whereby any of them shall agree to any restriction on the right of
the Borrower or any of its Subsidiaries to amend or waive any of the provisions
of this Agreement or any other Loan Document.
Section 6.17 Limitations on Debt. The Borrower will not at any time
-------------------
permit the ratio of Total Consolidated Debt to Total Consolidated
Capitalization, as a percentage, to exceed fifty percent (50%).
Section 6.18 Fixed Charge Coverage Ratio. The Borrower will not, as of
---------------------------
the end of any fiscal quarter on or after the end of the fiscal quarter ending
March 31, 1999, permit the Fixed Charge Coverage Ratio to be less than 2.5:1.0.
Section 6.19 Limitation on Operating Leases. The Borrower will not, and
------------------------------
will not cause any Subsidiary to, enter into any operating lease at any time if
the pro forma Fixed Charge Coverage Ratio after giving effect to such operating
lease during the most recent period used to determine compliance under Section
6.18 would be less than 2.5:1.0.
Section 6.20 Year 2000 Compatibility. The Borrower and its Subsidiaries
-----------------------
shall take all action necessary to assure that the computer based systems of the
Borrower and its Subsidiaries are able to operate and effectively process data
including dates on or after January 1, 2000. At the request of the Bank, the
Borrower shall provide the Bank reasonable assurance
21
reasonably acceptable to the Bank of the year 2000 compatibility of the Borrower
and its Subsidiaries.
Section 6.21 Deposit Accounts. To facilitate the administration of the
----------------
Loans, the Borrower shall maintain its principal operating deposit accounts with
the Bank.
Section 6.22 Independence of Covenants. All covenants contained herein
-------------------------
shall be given independent effect so that if a particular action or condition is
not permitted by any of such covenants, the fact that such action or condition
would be permitted by an exception to, or otherwise be within the limitations of
another covenant shall not avoid the occurrence of a Default if such action is
taken or condition exists.
ARTICLE VII
DEFAULTS
Section 7.01 Events of Default. If one or more of the following events
-----------------
("Events of Default") shall have occurred and be continuing:
(i) the Borrower shall fail to pay, within 5 days after the date
when due, any principal, interest, fee, or any other amount payable
hereunder or under the Notes;
(ii) the Borrower shall fail to observe or perform any covenant
contained in Article V (other than those contained in Sections 6.01 through
6.03);
(iii) the Borrower or Guarantor shall fail to observe or perform any
covenant or agreement contained in this Agreement (other than those covered
by clauses (i) or (ii) above) for 30 days after notice thereof has been
given to the Borrower by the Bank;
(iv) any representation, warranty, certification or statement made
by the Borrower or Guarantor in this Agreement or in any certificate,
financial statement or other document delivered pursuant hereto or thereto
shall prove to have been incorrect in any material respect when made;
(v) the Borrower or any Subsidiary shall fail to make any payment
or perform any collateralization obligation in respect of any Material
Financial Obligations when due or within any applicable grace period;
(vi) any event or condition shall occur which results in the
acceleration of the maturity of any Material Debt of the Borrower or any
Subsidiary or enables (or, with the giving of notice or lapse of time or
both, would enable) the holder of such Material Debt or any Person acting
on such holder's behalf to accelerate the maturity thereof;
(vii) the Borrower, the Guarantor or any Subsidiary shall commence a
voluntary case or other proceeding seeking liquidation, reorganization or
other relief with respect to itself or its debts under any bankruptcy,
insolvency or other similar law now or
22
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial
part of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary
case or other proceeding commenced against it, or shall make a general
assignment for the benefit of creditors, or shall fail generally to pay its
debts as they become due, or shall take any corporate action to authorize
any of the foregoing;
(viii) an involuntary case or other proceeding shall be commenced
against the Borrower, the Guarantor or any Subsidiary seeking liquidation,
reorganization or other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its property, and
such involuntary case or other proceeding shall remain undismissed and
unstayed for a period of 90 days; or an order for relief shall be entered
against the Borrower, the Guarantor or any Subsidiary under the federal
Bankruptcy laws as now or hereafter in effect;
(ix) any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $25,000 which it shall have
become liable to pay under Title IV of ERISA; or notice of intent to
terminate a Material Plan shall be filed under Title IV of ERISA by any
member of the ERISA Group, any plan administrator or any combination of the
foregoing; or the PBGC shall institute proceedings under Title IV of ERISA
to terminate, to impose liability (other than for premiums under Section
4007 of ERISA) in respect of, or to cause a trustee to be appointed to
administer any Material Plan; or a condition shall exist by reason of which
the PBGC would be entitled to obtain a decree adjudicating that any
Material Plan must be terminated; or there shall occur a complete or
partial withdrawal from, or default, within the meaning of Section
4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which
could reasonably be expected to cause one or more members of the ERISA
Group to incur a current payment obligation in excess of $25,000;
(x) one or more judgments or orders for the payment of money in
excess of $25,000 in the aggregate shall be rendered against the Borrower
or any Subsidiary of the Borrower and such judgments or orders shall
continue unsatisfied and unstayed for a period of 30 days; or
(xi) a Change of Control shall have occurred;
then, and in every such event, while such event is continuing, the Bank may (A)
by notice to the Borrower terminate the Commitment and it shall thereupon
terminate, and (B) by notice to the Borrower declare the Loans (together with
accrued interest thereon) to be, and the Loans shall thereupon become,
immediately due and payable without presentment, demand, protest or other notice
of any kind (except as set forth in clause (A) above), all of which are hereby
waived by the Borrower; provided that in the case of any Default or any Event of
--------
Default specified in clause 7.1(vii) or 7.1(viii) above with respect to the
Borrower, without any notice to the Borrower or any other act by the Bank, the
commitment to make Revolving Loans and Term Loans shall thereupon terminate and
the Loans (together with accrued interest and accrued and unpaid fees
23
thereon) shall become immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the
Borrower. In addition to any rights now or hereafter granted under applicable
law or otherwise, and not by way of limitation of any such rights, upon the
occurrence of an Event of Default, the Bank is authorized at any time and from
time to time, without presentment, demand, protest or other notice of any kind
(all of which rights being hereby expressly waived), to set-off and to
appropriate and apply any and all deposits and any other indebtedness at any
time held or owing by the Bank to or for the credit or the account of the
Borrower against obligations and liabilities of the Borrower to the Bank
hereunder, under the Notes, or the other Loan Documents.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
Section 8.01 [Intentionally Deleted].
-----------------------
Section 8.02 Illegality. If, on or after the date of this Agreement, the
----------
adoption of any applicable law, rule or regulation, or any change in any
applicable law, rule or regulation, 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 the Bank with any request or directive (whether or not having the force of
law) of any such authority, central bank or comparable agency shall make it
unlawful or impossible for the Bank to make, maintain or fund Loans and the Bank
shall so notify the Borrower, until the Bank notifies the Borrower that the
circumstances giving rise to such suspension no longer exist, each Loan then
outstanding which bears interest at the LIBOR Market Index-Based Rate shall be
converted immediately to a Base Rate Loan and all new Loans shall be Base Rate
Loans.
Section 8.03 [Intentionally Deleted].
-----------------------
Section 8.04 Base Rate Loans Substituted for Affected LIBOR Market
-----------------------------------------------------
Index-Based Loans. Upon the occurrence of any event or condition set forth in
-----------------
Section 8.02, each Loan then outstanding which bears interest at the LIBOR
Market Index-Based Rate shall be converted immediately to a Base Rate Loan and
all new Loans shall be Base Rate Loans. If the Bank notifies the Borrower that
the circumstances giving rise to such change in interest rate no longer apply,
the principal amount of each such Base Rate Loan shall cease immediately to
constitute a Base Rate Loan and shall thereafter bear interest in accordance
with Section 2.05(a).
ARTICLE IX
MISCELLANEOUS
Section 9.01 Notices. Unless otherwise specified herein, all notices,
-------
requests and other communications to a party hereunder shall be in writing
(including bank wire, telex, facsimile transmission or similar writing) and
shall be given to such party: (i) at its address, facsimile
24
number or telex number set forth on the signature pages hereof, or (ii) at such
other address, facsimile number or telex number as such party may hereafter
specify for the purpose of communication hereunder by notice to the other party
hereto. Each such notice, request or other communication shall be effective (i)
if given by telex, when such telex is transmitted to the telex number specified
in this Section and the appropriate answer back is received, (ii) if given by
facsimile transmission, when transmitted to the facsimile number specified in
this Section and confirmation of receipt is received, (iii) if given by mail, 72
hours after such communication is deposited in the mails, certified mail, return
receipt requested, with appropriate first class postage prepaid, addressed as
specified in this Section or (iv) if given by any other means, when delivered at
the address specified in this Section 9.01. Rejection or refusal to accept, or
the inability to deliver because of a changed address of which no notice was
given shall not affect the validity of notice given in accordance with this
Section.
Section 9.02 No Waivers. No failure by either party to exercise, no
----------
course of dealing with respect to, and no delay in exercising any right, power
or privilege hereunder or under the Notes shall operate as a waiver thereof nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies provided herein shall be cumulative and not exclusive of any
rights or remedies provided by law.
Section 9.03 Expenses. The Borrower shall pay (i) all reasonable
--------
out-of-pocket expenses of the Bank, including reasonable fees and disbursements
of special and local counsel for the Bank, in connection with the preparation
and administration of this Agreement and the other Loan Documents, any waiver or
consent thereunder or any amendment thereof or any Default or alleged Default
thereunder and (ii) if an Event of Default occurs, all reasonable out-of-pocket
expenses incurred by the Bank, including (without duplication) the reasonable
fees and disbursements of outside counsel, in connection with such Event of
Default and collection, bankruptcy, insolvency and other enforcement proceedings
resulting therefrom.
Section 9.04 Amendments and Waivers. Any provision of this Agreement or
----------------------
the Notes may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed by the Borrower and the Bank.
Section 9.05 Successors and Assigns. The provisions of this Agreement
----------------------
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that the Borrower may not assign or
otherwise transfer any of its rights under this Agreement without the prior
written consent of the Bank; provided, however, the Borrower may assign or
otherwise transfer any of its rights under this Agreement to the Guarantor
without the prior written consent of the Bank if (i) no Default has occurred and
is continuing, (ii) there has not occurred a material adverse change in the
financial condition of the Guarantor and (iii) the Borrower and the Guarantor
have taken such action and executed such documents as the Bank may reasonably
require to effect such assignment, reflecting the changing roles of the Borrower
and Guarantor and the continuing liability of the Borrower and Guarantor with
respect to the Obligations.
25
Section 9.06 Governing Law. This Agreement and the Notes shall be
-------------
governed by and construed in accordance with the laws of the Commonwealth of
Virginia.
Section 9.07 Arbitration: Submission to Jurisdiction.
---------------------------------------
(a) Upon demand of any party hereto, whether made before or after
institution of any judicial proceeding, any claim or controversy arising out of,
or relating to the Loan Documents between the parties hereto (a "Dispute") shall
be resolved by binding arbitration conducted under and governed by the
Commercial Financial Disputes Arbitration Rules (the "Arbitration Rules") of the
American Arbitration Association (the "AAA") and the Federal Arbitration Act.
Disputes may include, without limitation, tort claims, counterclaims, disputes
as to whether a matter is subject to arbitration, claims brought as class
actions, or claims arising from documents executed in the future. A judgment
upon the award may be entered in any court having jurisdiction. Notwithstanding
the foregoing, this arbitration provision does not apply to disputes under or
related to swap agreements.
(b) All arbitration hearings shall be conducted in the city in which
the office of the Bank set forth on the signature page hereof is located. A
hearing shall begin within 90 days of demand for arbitration and all hearings
shall be concluded within 120 days of demand for arbitration. These time
limitations may not be extended unless a party shows cause for extension and
then for no more than a total of 60 days. The expedited procedures set forth in
Rule 51 et seq. of the Arbitration Rules shall be applicable to claims of less
than $1,000,000. Arbitrators shall be licensed attorneys selected from the
Commercial Financial Dispute Arbitration Panel of the AAA. The parties do not
waive applicable Federal or state substantive law except as provided herein.
(c) Notwithstanding the preceding binding arbitration provisions, the
parties agree to preserve, without diminution, certain remedies that any party
may exercise before or after an arbitration proceeding is brought. The parties
shall have the right to proceed in any court of proper jurisdiction or by self-
help to exercise or prosecute the following remedies, as applicable: (i) all
rights to foreclose against any real or personal property or other security by
exercising a power of sale or under applicable law by judicial foreclosure
including a proceeding to confirm the sale; (ii) all rights of self-help
including peaceful occupation of real property and collection of rents, set-off,
and peaceful possession of personal property; (iii) obtaining provisional or
ancillary remedies including injunctive relief, sequestration, garnishment,
attachment, appointment of receiver and filing an involuntary bankruptcy
proceeding; and (iv) when applicable, a judgment by confession of judgment. Any
claim or controversy with regard to the parties' entitlement to such remedies is
a Dispute.
(d) Each party agrees that it shall not have a remedy of punitive or
exemplary damages against the other in any Dispute and hereby waives any right
or claim to punitive or exemplary damages it may have now or which may arise in
the future in connection with any Dispute, whether the Dispute is resolved by
arbitration or judicially.
(e) The parties acknowledge that by agreeing to binding arbitration
they have irrevocably waived any right they may have to a jury trial with regard
to a Dispute.
26
Section 9.08 Counterparts; Integration; Effectiveness. This Agreement
----------------------------------------
may be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. Each of this Agreement, the Notes and the other Loan Documents shall
be deemed to incorporate the other of said documents by reference and all of
said documents shall constitute the entire agreement and understanding among the
parties hereto and supersede any and all prior agreements and understandings,
oral or written, relating to the subject matter hereof. This Agreement shall
become effective upon receipt by the Bank of counterparts hereof signed by each
of the parties hereto.
Section 9.09 Confidentiality. The Bank agrees to hold all non-public
---------------
information obtained pursuant to the requirements of this Agreement in
accordance with its customary procedure for handling confidential information of
this nature and in accordance with safe and sound banking practices, provided
--------
that nothing herein shall prevent the Bank from disclosing such information (i)
to any other Person if reasonably incidental to the administration of the Loans,
(ii) upon the order of any court or administrative agency, (iii) upon the
request or demand of any regulatory agency or authority, (iv) which had been
publicly disclosed other than as a result of a disclosure by the Bank prohibited
by this Agreement, (v) in connection with any litigation to which the Bank or
its subsidiaries or parent may be a party, (vi) to the extent necessary in
connection with the exercise of any remedy hereunder and (vii) to the Bank's
legal counsel and independent auditors.
Section 9.10 Severability; Modification. If any provision hereof is
--------------------------
invalid or unenforceable in any jurisdiction, then, to the fullest extent
permitted by law, (i) the other provisions hereof shall remain in full force and
effect in such jurisdiction; and (ii) the invalidity or unenforceability of any
provision hereof in any jurisdiction shall not affect the validity or
enforceability of such provisions in any other jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
TREX COMPANY, LLC
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx, Chief Executive Officer
TREX COMPANY, INC.
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx, Chief Financial Officer
27
FIRST UNION NATIONAL BANK
Commercial Banking
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000 By: /s/ B. Xxxxx Xxxxxx
-------------------------------------
B. Xxxxx Xxxxxx, Vice President
28
EXHIBIT A
Form of Notice of Borrowing
_______________, ____
First Union National Bank
Commercial Finance Division
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attn:
Ladies and Gentlemen:
This notice shall constitute a "Notice of Borrowing" pursuant to Section
2.02(a) of the Amended and Restated Credit Agreement dated as of ____________,
1999 (the "Credit Agreement") between TREX COMPANY, LLC (the "Borrower") and
First Union National Bank (the "Bank"). Capitalized terms not otherwise defined
herein have the meanings ascribed to them in the Credit Agreement.
The date of the Loan will be ,
The principal amount of the Loan will be $
Transfer Instructions:
[Insert appropriate delivery instructions, which shall include bank and
account number].
TREX COMPANY, LLC
By:
Name:
Title:
EXHIBIT B-1
Form of Note
Roanoke, Virginia
_______________, 1999
For value received, TREX COMPANY, LLC, a Delaware limited liability company
(the "Borrower"), promises to pay to the order of FIRST UNION NATIONAL BANK (the
"Bank") the unpaid principal amount of each Revolving Loan made by the Bank to
the Borrower pursuant to the Credit Agreement referred to below on the maturity
date provided for in the Credit Agreement. The Borrower promises to pay
interest on the unpaid principal amount of each such Loan on the dates and at
the rate or rates provided for in the Credit Agreement. All such payments of
principal and interest shall be made in accordance with the provisions of the
Credit Agreement.
All Loans made by the Bank and all repayments of the principal thereof
shall be recorded by the Bank and, if the Bank so elects in connection with any
transfer or enforcement hereof, appropriate notations to evidence the foregoing
information with respect to each Revolving Loan then outstanding shall be
endorsed by the Bank on the schedule attached to and made a part hereof,
provided that the failure of the Bank to make any such recordation or
--------
endorsement shall not affect the obligations of the Borrower hereunder or under
the Credit Agreement.
This note is the Revolving Note referred to in the Amended and Restated
Credit Agreement dated as of the date hereof between the Borrower and the Bank
(as the same may be amended from time to time, the "Credit Agreement"). Terms
defined in the Credit Agreement are used herein with the same meanings.
Reference is made to the Credit Agreement for provisions for the mandatory and
optional prepayment hereof and the acceleration of the maturity hereof.
TREX COMPANY, LLC
By:
Name:
Title:
EXHIBIT B-2
Form of Note
Roanoke, Virginia
_______________, 1999
For value received, TREX COMPANY, LLC, a Delaware limited liability company
(the "Borrower"), promises to pay to the order of FIRST UNION NATIONAL BANK (the
"Bank") the unpaid principal amount of each Term Loan made by the Bank to the
Borrower pursuant to the Credit Agreement referred to below on the maturity date
provided for in the Credit Agreement. The Borrower promises to pay interest on
the unpaid principal amount of each such Loan on the dates and at the rate or
rates provided for in the Credit Agreement. All such payments of principal and
interest shall be made in accordance with the provisions of the Credit
Agreement.
All Loans made by the Bank and all repayments of the principal thereof
shall be recorded by the Bank and, if the Bank so elects in connection with any
transfer or enforcement hereof, appropriate notations to evidence the foregoing
information with respect to each Term Loan then outstanding shall be endorsed by
the Bank on the schedule attached to and made a part hereof, provided that the
--------
failure of the Bank to make any such recordation or endorsement shall not affect
the obligations of the Borrower hereunder or under the Credit Agreement.
This note is the Term Note referred to in the Amended and Restated Credit
Agreement dated as of the date hereof between the Borrower and the Bank (as the
same may be amended from time to time, the "Credit Agreement"). Terms defined
in the Credit Agreement are used herein with the same meanings. Reference is
made to the Credit Agreement for provisions for the mandatory and optional
prepayment hereof and the acceleration of the maturity hereof.
TREX COMPANY, LLC
By:
Name:
Title:
Definitions Appendix
--------------------
The definitions set forth in this Definitions Appendix are incorporated by
reference into Section 1.01 of the Amended and Restated Credit Agreement dated
as of ______________, 1999 among TREX COMPANY, LLC, TREX COMPANY, INC. and First
Union National Bank (as the same may be amended, modified or supplemented from
time to time, the "Credit Agreement"). Reference in this Definitions Appendix
to "this Agreement", "herein", "hereof", "hereunder" and to any Article or
Section shall be interpreted to mean the Credit Agreement and the referenced
Article or Section, including this Definitions Appendix.
Definitions
-----------
"Accounts" means all "accounts" (as defined in the UCC) now owned or
hereafter acquired by the Borrower, and shall also mean and include all accounts
receivable, contract rights, book debts, notes, drafts and other obligations or
indebtedness owing to the Borrower arising from the sale, lease or exchange of
goods or other property by it and/or the performance of services by it
(including, without limitation, any such obligation which might be characterized
as an account, contract right or general intangible under the Uniform Commercial
Code in effect in any jurisdiction) and all of the Borrower's rights in, to and
under all purchase orders for goods, services or other property, and all of the
Borrower's rights to any goods, services or other property represented by any of
the foregoing (including returned or repossessed goods and unpaid seller's
rights of rescission, replevin, reclamation and rights to stoppage in transit)
and all monies due to or to become due to the Borrower under all contracts for
the sale, lease or exchange of goods or other property and/or the performance of
services by it (whether or not yet earned by performance on the part of the
Borrower), in each case whether now in existence or hereafter arising or
acquired including, without limitation, the right to receive the proceeds of
said purchase orders and contracts and all collateral security and guarantees of
any kind given by any Person with respect to any of the foregoing.
"Acquisition," by any Person (herein called the "Acquiror"), means any
transaction involving the purchase, lease or other acquisition by such Acquiror
of any or all of the capital stock or assets of another Person that, for
purposes of preparing a statement of cash flows for such Acquiror prepared in
accordance with GAAP, would be considered "investing activity."
"Adjusted Consolidated Net Income" means, with reference to any period, the
net income (or loss) of the Borrower and its Subsidiaries for such period (taken
as a cumulative whole), as determined in accordance with GAAP, after eliminating
all offsetting debits and credits between the Borrower and its Subsidiaries and
all other items required to be eliminated in the course of the preparation of
consolidated financial statements of the Borrower and its Subsidiaries in
accordance with GAAP, provided that there shall be excluded:
--------
(i) the income (or loss) of any Person accrued prior to the date it
becomes a Subsidiary or is merged into or consolidated with the Borrower or
a Subsidiary, and the
1
income (or loss) of any Person, substantially all of the assets of which
have been acquired in any manner, realized by such other Person prior to
the date of acquisition,
(ii) the income (or loss) of any Person (other than a Subsidiary) in
which the Borrower or any Subsidiary has an ownership interest, except to
the extent that any such income has been actually received by the Borrower
or such Subsidiary in the form of cash dividends or similar cash
distributions,
(iii) the undistributed earnings of any Subsidiary to the extent that
the declaration or payment of dividends or similar distributions by such
Subsidiary is not at the time permitted by the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to such Subsidiary,
(iv) any restoration to income of any contingency reserve, except to
the extent that provision for such reserve was made out of income accrued
during such period,
(v) any aggregate net gain (but not any aggregate net loss) during
such period arising from the sale, conversion, exchange or other
disposition of capital assets (such term to include, without limitation,
(A) all non-current assets and, without duplication, (B) the following,
whether or not current: all fixed assets, whether tangible or intangible,
all inventory sold in conjunction with the disposition of fixed assets, and
all securities),
(vi) any gains resulting from any write-up of any assets (but not
any loss resulting from any write-down of any assets),
(vii) any net gain from the collection of the proceeds of life
insurance policies,
(viii) any gain arising from the acquisition of any security, or the
extinguishment, under GAAP, of any Debt, of the Borrower or any Subsidiary,
(ix) any net income or gain (but not any loss) during such period
from (A) any change in accounting principles in accordance with GAAP, (B)
any prior period adjustments resulting from any change in accounting
principles in accordance with GAAP, (C) any extraordinary items, or (D) any
discontinued operation or the disposition thereof,
(x) any deferred credit representing the excess of equity in any
Subsidiary at the date of acquisition over the cost of the investment in
such Subsidiary,
(xi) in the case of a successor to the Borrower by consolidation or
merger or as a transferee of its assets, any earnings of the successor
corporation prior to such consolidation, merger or transfer of assets, and
(xii) any portion of such net income that cannot be freely converted
into United States Dollars.
2
"Affiliate" means (i) any Person that directly, or indirectly through one
or more intermediaries, controls the Borrower (a "Controlling Person") or (ii)
any Person (other than the Borrower or a Subsidiary) which is controlled by or
is under common control with a Controlling Person. As used herein, the term
"control" means possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through
the ownership of voting securities, by contract or otherwise.
"Agreement" means this Amended and Restated Credit Agreement, as it may be
amended, modified or supplemented from time to time.
"Bank" means First Union National Bank, a national banking association, and
its successors and assigns.
"Base Rate" means for any day, the Prime Rate for such day adjusted by the
Variance.
"Base Rate Loan" means a Loan which bears interest at the Base Rate.
"Benefit Arrangement" means at any time an employee benefit plan within the
meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan and
which is maintained or otherwise contributed to by any member of the ERISA
Group.
"Borrower" means TREX COMPANY, LLC, a Delaware limited liability company,
and its successors.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in the Commonwealth of Virginia are authorized by law to
close.
"Capital Lease" means, at any time, a lease with respect to which the
lessee is required concurrently to recognize the acquisition of an asset and the
incurrence of a liability in accordance with GAAP.
"Capital Lease Obligations" means, with respect to any Person and a Capital
Lease, the amount of the obligation of such Person as the lessee under such
Capital Lease which would, in accordance with GAAP, appear as a liability on a
balance sheet of such Person.
"Cash Equivalents" means (i) direct obligations of the United States or any
agency thereof, or obligations guaranteed by the United States of any agency
thereof, (ii) commercial paper rated in the highest grade by a nationally
recognized credit rating agency or (iii) time deposits with, including
certificates of deposit issued by, any office located in the United States of
any bank or trust company which is organized under the laws of the United States
or any state thereof and has capital, surplus and undivided profits aggregating
at least $250,000,000; provided, in each case that such investment matures
--------
within one year from the date of acquisition thereof by the Borrower.
"Change of Control" means any event or condition, a result of which is that
(i) Xxxxxxx X. Xxxxxxx, Xxxxx X. Xxxxxxxxxx, Xxxxxx X. Xxxxxxx and Xxxxxx X.
Ferrari cease, as a group, to
3
own beneficially, at least 25% of the voting common stock of TREX COMPANY, INC.;
or (ii) TREX COMPANY, INC. ceases to own beneficially all of the membership
interests in the Borrower.
"Closing Date" means the date, not later than August 1, 1999 on which the
Bank determines that the conditions specified in or pursuant to Section 3.01
have been satisfied.
"Collateral Accounts" means the Cash Proceeds Account, the Operating
Account and the Insurance Account.
"Consolidated Debt" means at any date the Debt of the Borrower and its
Consolidated Subsidiaries, determined on a consolidated basis as of such date.
"Consolidated Income Available for Fixed Charges" means, with respect to
any period, Adjusted Consolidated Net Income for such period plus all amounts
deducted in the computation thereof on account of (i) Fixed Charges, (ii)
charges for depreciation and amortization for such period, (iii) charges for
management fees paid during such period, (iv) taxes imposed on or measured by
income or excess profits, (v) the charge of approximately $1.1 million in April
1999 relating to the extinguishment of debt of $26.25 million, and (vi) a charge
for deferred income taxes in April, 1999 of approximately $2.6 million.
"Consolidated Net Worth" means, as of the date of determination,
(i) the total assets of the Borrower and its Subsidiaries which would
be shown as assets on a consolidated balance sheet of the Borrower and its
Subsidiaries as of such time prepared in accordance with GAAP, after eliminating
all amounts properly attributable to minority interests, if any, in the stock
and surplus of Subsidiaries, minus
-----
(ii) the total liabilities of the Borrower and its Subsidiaries which
would be shown as liabilities on a consolidated balance sheet of the
Borrower and its Subsidiaries as of such time prepared in accordance with
GAAP.
"Consolidated Subsidiary" means with respect to any Person at any date any
Subsidiary of such Person or other entity the accounts of which would be
consolidated with those of such Person in its consolidated financial statements
if such statements were prepared as of such date in accordance with GAAP.
"Debt" of any Person means, at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services (other than trade accounts payable arising in the ordinary course of
business), (iv) all obligations of such Person as lessee under Capital Leases,
(v) all obligations of such Person to purchase securities or other property
which arise out of or in connection with the sale of the same or substantially
similar securities or property, (vi) all non-contingent obligations (and, for
purposes of Section 6.09 and the definitions of Material Debt and Material
Financial Obligations, all contingent obligations) of such Person to reimburse
4
any bank or other person in respect of amounts paid under a letter of credit,
bankers' acceptance or similar instrument, (vii) all obligations of others
secured by a Lien on any asset of such Person, whether or not such obligation is
assumed by such Person and (viii) all obligations of others Guaranteed by such
Person.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Derivatives Obligations" of any Person means all obligations of such
Person in respect of any rate swap transaction, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or any other similar transaction (including any option with respect to any of
the foregoing transactions) or any combination of the foregoing transactions.
"Dollars" and the sign "$" means lawful money of the United States of
America.
"Effective Date" means the date this Agreement becomes effective in
accordance with Section 9.08.
"Environmental Laws" means any and all federal, state, local and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions relating to the environment or to emissions,
discharges or releases of pollutants, contaminants, petroleum or petroleum
products, chemicals or industrial, toxic or hazardous substances or wastes into
the environment including, without limitation, ambient air, surface water,
ground water, or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, petroleum or petroleum products, chemicals or
industrial, toxic or hazardous substances or wastes or the clean-up or other
remediation thereof.
"Equipment" means all "equipment" (as defined in the UCC) now owned or
hereafter acquired by the Borrower, located in the Commonwealth of Virginia, and
shall also mean and include, without limitation, all vehicles, machinery, tools,
furniture, furnishings, office equipment and trade fixtures now owned or
hereafter acquired by the Borrower, located in the Commonwealth of Virginia.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA Group" means the Borrower, any Subsidiary and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Borrower or any
Subsidiary, are treated as a single employer under Section 414 of the Internal
Revenue Code.
5
"Event of Default" has the meaning set forth in Section 7.01.
"Fixed Charge Coverage Ratio" means, at any time, the ratio of (i)
Consolidated Income Available for Fixed Charges for the period of four
consecutive fiscal quarters ending on, or most recently ended prior to, such
time to (ii) Fixed Charges for such period.
"Fixed Charges" means, with respect to any period and without duplication,
the sum of (i) Interest Charges for such period and (ii) Lease Rentals for such
period.
"GAAP" means, generally accepted accounting principles as in effect from
time to time in the United States of America.
"Guarantee" by any Person means any obligation, contingent or otherwise, of
such Person directly or indirectly guaranteeing any Debt or other obligation of
any other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Debt or other obligation (whether arising by virtue of partnership arrangements,
by agreement to keep-well, to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions or otherwise) or (ii)
entered into for the purpose of assuring in any other manner the obligee of such
Debt or other obligation of the payment thereof or to protect such obligee
against loss in respect thereof (in whole or in part); provided that the term
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Guarantee shall not include endorsements for collection or deposit in the
ordinary course of business. The term "Guarantee" used as a verb has a
corresponding meaning.
"Guarantor" means TREX COMPANY, INC., a Delaware corporation, and its
---------
successors.
"Hazardous Substances" means any toxic, radioactive, caustic or otherwise
hazardous substance, including petroleum, its derivatives, by-products and other
hydrocarbons, or any substance having any constituent elements displaying any of
the foregoing characteristics.
"Interest Charges" means, with respect to any period, the sum (without
duplication) of the following (in each case, eliminating all offsetting debits
and credits between the Borrower and its Subsidiaries and all other items
required to be eliminated in the course of the preparation of consolidated
financial statements of the Borrower and its Subsidiaries in accordance with
GAAP); (i) all interest in respect of Debt of the Borrower and its Subsidiaries
(including imputed interest on Capital Lease Obligations) deducted in
determining Adjusted Consolidated Net Income for such period, together with all
interest capitalized or deferred during such period, and (ii) all debt discount
and expense (other than in respect of the Notes) amortized or required to be
amortized in the determination of Adjusted Consolidated Net Income for such
period.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"Inventory" means all "inventory" (as defined in the UCC) now owned or
hereafter acquired by the Borrower, wherever located, and shall also mean and
include, without limitation,
6
all raw materials and other materials and supplies, work-in-process and finished
goods and any products made or processed therefrom and all substances, if any,
commingled therewith or added thereto.
"Investment" means any investment in any Person, whether by means of share
purchase, capital contribution, loan, time deposit or otherwise.
"Item" means any "item" as defined in Section 4-104 of the UCC, and shall
also mean and include checks, drafts, money orders or other media of payment.
"Lease Rentals" means, with respect to any period, the sum of the rental
and other obligations required to be paid during such period by the Borrower or
any Subsidiary as lessee under all leases of real or personal property (other
than Capital Leases), excluding any amount required to be paid by the lessee
(whether or not therein designated as rental or additional rental) on account of
maintenance or repairs, insurance, taxes, assessments, water rates and similar
charges, provided that, if at the date of determination, any such rental or
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other obligations (or portion thereof) are contingent or not otherwise
definitely determinable by the terms of the related lease, the amount of such
obligations (or such portion thereof) (i) shall be assumed to be equal to the
amount of such obligations for the period of 12 consecutive calendar months
immediately preceding the date of determination or (ii) if the related lease was
not in effect during such preceding 12-month period, shall be the amount
estimated by the chief financial officer or chief accounting officer of the
Borrower on a reasonable basis and in good faith.
"LIBOR Market Index-Based Rate" has the meaning set forth in Section
2.05(a).
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset.
For the purposes of this Agreement, the Borrower or any Subsidiary shall be
deemed to own subject to a Lien any asset which it has acquired or holds subject
to the interest of a vendor or lessor under any conditional sale agreement,
Capital Lease or other title retention agreement relating to such asset.
"Loans" means the Revolving Loans and the Term Loans made pursuant to
Section 2.01.
"Loan Documents" means the Credit Agreement, the Notes and the Security
Agreement, collectively, and "Loan Document" means any of them.
"Material Adverse Effect" means (i) any material adverse effect upon the
condition (financial or otherwise), results of operations, properties, assets,
business or prospects of the Borrower or of the Borrower and its Consolidated
Subsidiaries, taken as a whole; (ii) a material adverse effect on the ability of
the Borrower to consummate the transactions contemplated hereby to occur on the
Closing Date; (iii) a material adverse effect on the ability of the Borrower to
perform its obligations under this Agreement and the Notes or (iv) a material
adverse effect on the rights and remedies of the Bank under this Agreement and
the Notes.
7
"Material Debt" means Debt (other than the Notes) of the Borrower and/or
one or more of its Subsidiaries, arising in one or more related or unrelated
transactions, in an aggregate principal or face amount exceeding $250,000.
"Material Financial Obligations" means a principal or face amount of Debt
and/or payment obligations in respect of Derivatives Obligations of the Borrower
and/or one or more of its Subsidiaries, arising in one or more related or
unrelated transactions, exceeding in the aggregate $250,000.
"Material Plan" means at any time a Plan or Plans having aggregate Unfunded
Liabilities in excess of $25,000.
"Multiemployer Plan" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five plan years made contributions, including for these
purposes any Person which ceased to be a member of the ERISA Group during such
five year period.
"Notes" means the Revolving Note and the Term Note.
"Notice of Borrowing" means a Notice of Borrowing (as defined in Section
2.02(a)).
"Obligations" means:
(i) all principal of and interest (including, without limitation,
any interest which accrues after the commencement of any case, proceeding or
other action relating to the bankruptcy, insolvency or reorganization of the
Borrower, whether or not allowed or allowable as a claim in any such proceeding)
on any Term Loan or Revolving Loan, fees payable or reimbursement obligation
under, or any note issued pursuant to, this Agreement or any other Loan
Document;
(ii) all other amounts now or hereafter payable by the Borrower and
all other obligations or liabilities now existing or hereafter arising or
incurred (including, without limitation, any amounts which accrue after the
commencement of any case, proceeding or other action relating to the
bankruptcy, insolvency or reorganization of the Borrower, whether or not
allowed or allowable as a claim in any such proceeding) on the part of the
Borrower pursuant to this Agreement or any other Loan Document;
(iii) all Derivatives Obligations (including, without limitation, any
amounts which accrue after the commencement of any case, proceeding or
other action relating to the bankruptcy, insolvency or reorganization of
the Borrower, whether or not allowed or allowable as a claim in any such
proceeding) of the Borrower to the Bank;
(iv) all other indebtedness, obligations and liabilities of the
Borrower to the Bank, now existing or hereafter arising or incurred,
whether or not evidenced by notes or other instruments, and whether such
indebtedness, obligations and liabilities are direct or
8
indirect, fixed or contingent, liquidated or unliquidated, due or to become
due, secured or unsecured, joint, several or joint and several, related to
the Loans;
together in each case with all renewals, modifications, consolidations or
extensions thereof.
"Operating Account" means the demand deposit account maintained with the
Bank by the Borrower on which the Borrower draws checks to pay its operating
expenses, which account is linked to the cash management services provided by
the Bank to the Borrower pursuant to the Services Agreement.
"Parent" means, with respect to the Bank, any Person controlling the Bank.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Perfection Certificate" means a certificate of the Borrower, substantially
in the form of Exhibit A to the Security Agreement, completed and supplemented
with the schedules and attachments contemplated thereby to the satisfaction of
the Bank, and duly executed by the chief executive officer, president or chief
financial officer of the Borrower.
"Permitted Liens" has the meaning set forth in Section 6.09.
"Person" means an individual, a corporation, a partnership, an association,
a trust or any other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
"Prime Rate" means the rate announced by the Bank from time to time as its
Prime Rate, as such rate may change from time to time with changes to occur on
the date the Bank's Prime Rate changes. The Bank's Prime Rate is one of several
interest rate bases used by the Bank. The Bank lends at rates above and below
the Bank's Prime Rate, and the Borrower acknowledges that the Bank's Prime Rate
is not represented or intended to be the lowest or most favorable rate of
interest offered by the Bank.
"Proceeds" means all proceeds of, and all other profits, products, rents or
receipts, in whatever form, arising from the collection, sale, lease, exchange,
assignment, licensing or other disposition of or other realization upon or
payment for the use of, Collateral (as that term is defined in the Security
Agreement, including (without limitation) all claims of the Borrower against
third parties for loss of, damage to or destruction of, or for proceeds payable
under, or
9
unearned premiums with respect to, policies of insurance in respect of, any
Collateral, and any condemnation or requisition payments with respect to any
Collateral, in each case whether now existing or hereafter arising.
"Quarterly Date" means the first Business Day of each January, April, July
and October.
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"Revolving Commitment" means $10,000,000.00.
"Revolving Credit Period" means the period from and including the Closing
Date to but not including the Termination Date.
"Revolving Loan" means a loan made pursuant to Section 2.01(a).
"Revolving Note" means a promissory note of the Borrower, substantially in
the form of Exhibit B-1 hereto, evidencing the obligation of the Borrower to
repay the Revolving Loans.
"Security Agreement" means the Amended and Restated Security Agreement
between the Borrower and the Bank, as it may be amended, modified or
supplemented from time to time.
"Services Agreement" means the description of the Sweep Plus Service
provided by the Bank to the Borrower, the terms of which are hereby incorporated
in this Agreement by reference.
"Subordinated Debt" of any Person means all Debt which (i) bears interest
at rates not greater than such Person shall reasonably determine to be the
prevailing market rate, at the time such Subordinated Debt is issued, for
interest on comparable subordinated debt issued by comparable issuers, (ii) is
subordinated in right of payment to such Person's indebtedness, obligations and
liabilities to the Bank under the Loan Documents pursuant to payment and
subordination provisions satisfactory in form and substance to the Bank and
(iii) is issued pursuant to loan documents having covenants and events of
default that are satisfactory in form and substance to the Bank but that in no
event are less favorable, including with respect to rights of acceleration, to
the Borrower than the terms hereof.
"Subsidiary" means any corporation or other entity of which securities or
other ownership interests having ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions are at the
time directly or indirectly owned by the Borrower.
"Term Commitment" means $7,500,000.
"Term Loan" means a loan made pursuant to Section 2.01(b).
10
"Term Loan Period" means the period from and including the Closing Date to
but not including December 31, 1999.
"Term Note" means a promissory note of the Borrower, substantially in the
form of Exhibit B-2 hereto, evidencing the obligation of the Borrower to repay
the Term Loans.
"Termination Date" means July 31, 2000, as said date may be extended
pursuant to Section 2.07(b).
"Total Consolidated Debt" means, as of the date of determination, the total
of all Debt of the Borrower and its Subsidiaries outstanding on such date, after
eliminating all offsetting debits and credits between the Borrower and its
Subsidiaries and all other items required to be eliminated in the course of the
preparation of consolidated financial statements of the Borrower and its
Subsidiaries in accordance with GAAP.
"Total Consolidated Capitalization" means, as of any date of determination
with respect to the Borrower, the sum of Total Consolidated Debt and
Consolidated Net Worth.
"UCC" means the Uniform Commercial Code as in effect on the date hereof in
the Commonwealth of Virginia; provided that if by reason of mandatory provisions
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of law, for matters pertaining only to the perfection or the effect of
perfection or non-perfection of the Security Interest in any Collateral (as that
term is defined in the Security Agreement) is governed by the Uniform Commercial
Code as in effect in a jurisdiction other than Virginia, "UCC" means the
Uniform Commercial Code as in effect in such other jurisdiction for purposes of
the provisions hereof relating to such perfection or effect of perfection or
non-perfection.
"Unfunded Liabilities" means, with respect to any Plan at any time, the
amount (if any) by which (i) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"United States" means the United States of America, including the States
and the District of Columbia, but excluding its territories and possessions.
"Variance" means a rate per annum (which may be a negative number) above or
below the Base Rate which the Bank, in its sole discretion, determines is
appropriate to adjust the Base Rate in order that the interest rate on the Loans
converted to Base Rate Loans in accordance with Section 7.04 of this Agreement
will be comparable to the LIBOR Market Index-Based Rate.
11
Usage
-----
The following rules of construction and usage shall be applicable to any
instrument that is governed by this Appendix:
(a) All terms defined in this Appendix shall have the defined meanings
when used in any instrument governed hereby and in any certificate or other
document made or delivered pursuant thereto unless otherwise defined therein.
(b) The words "hereof", "herein", "hereunder" and words of similar import
when used in an instrument refer to such instrument as a whole and not to any
particular provision or subdivision thereof; references in any instrument to
"Article", "Section" or another subdivision or to an attachment are, unless the
context otherwise requires, to an article, section or subdivision of or an
attachment to such instrument; and the term "including" means "including without
limitation".
(c) The definitions contained in this Appendix are equally applicable to
both the singular and plural forms of such terms and to the masculine as well as
to the feminine and neuter genders of such terms.
(d) Any agreement, instrument or statute defined or referred to below or
in any agreement or instrument that is governed by this Appendix means such
agreement or instrument or statute as from time to time amended, modified or
supplemented, including (in the case of agreements or instruments) by waiver or
consent and (in the case of statutes) by succession of comparable successor
statutes and includes (in the case of agreements or instruments) references to
all attachments thereto and instruments incorporated therein. References to a
Person are also to its permitted successors and assigns.
12
