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EXHIBIT 4(a)
CREDIT AGREEMENT
DATED AS OF JUNE 30, 2003
AMONG
COACHMEN INDUSTRIES, INC.,
THE LENDERS NAMED HEREIN,
AND
BANK ONE, INDIANA, N.A.
AS ADMINISTRATIVE AGENT
BANK ONE CAPITAL MARKETS, INC.
LEAD ARRANGER AND SOLE BOOK RUNNER
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TABLE OF CONTENTS
ARTICLE I. DEFINITIONS.........................................................1
ARTICLE II. THE CREDITS.......................................................13
2.1. Commitment........................................................13
2.2. Required Payments, Termination....................................14
2.3. Ratable Loans.....................................................14
2.4. Types of Advances.................................................14
2.5. Swing Line Loans..................................................14
2.6. Commitment Fee Reductions in Aggregate Commitment.................16
2.7. Minimum Amount of Each Advance....................................16
2.8. Optional Principal Payments.......................................16
2.9. Method of Selecting Types and Interest Periods for New Advances...17
2.10. Conversion and Continuation of Outstanding Advances...............17
2.11. Changes in Interest Rate, etc.....................................18
2.12. Rates Applicable After Default....................................18
2.13. Method of Payment.................................................18
2.14. Noteless Agreement; Evidence of Indebtedness......................19
2.15. Telephonic Notices................................................19
2.16. Interest Payment Dates; Interest and Fee Basis....................20
2.17. Notification of Advances, Interest Rates, Prepayments and Commitment
Reductions and Increases...................................................20
2.18. Lending Installations.............................................20
2.19. Non-Receipt of Funds by the Agent.................................21
2.20. Facility LCs......................................................21
ARTICLE III. YIELD PROTECTION; TAXES..........................................25
3.1. Yield Protection..................................................25
3.2. Changes in Capital Adequacy Regulations...........................26
3.3. Availability of Types of Advances.................................27
3.4. Funding Indemnification...........................................27
3.5. Taxes.............................................................27
3.6. Lender Statements; Survival of Indemnity..........................29
ARTICLE IV. CONDITIONS PRECEDENT..............................................30
4.1. Effectiveness.....................................................30
4.2. Each Credit Extension.............................................32
ARTICLE V. REPRESENTATIONS AND WARRANTIES.....................................32
5.1. Existence and Standing............................................32
5.2. Authorization and Validity........................................32
5.3. No Conflict; Government Consent...................................32
5.4. Financial Statements..............................................33
5.5. Material Adverse Change...........................................33
5.6. Taxes.............................................................33
5.7. Litigation and Contingent Obligations.............................33
5.8. Subsidiaries......................................................34
5.9. ERISA.............................................................34
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5.10. Accuracy of Information...........................................34
5.11. Regulation U......................................................34
5.12. Material Agreements...............................................34
5.13. Compliance With Laws..............................................34
5.14. Ownership of Properties...........................................35
5.15. Plan Assets; Prohibited Transactions..............................35
5.16. Environmental Matters.............................................35
5.17. Investment Company Act............................................35
5.18. Public Utility Holding Company Act................................35
5.19. Insurance.........................................................35
5.20. Solvency; No Bankruptcy Filing....................................35
ARTICLE VI. COVENANTS.........................................................36
6.1. Financial Reporting...............................................36
6.2. Use of Proceeds...................................................38
6.3. Notice of Default.................................................38
6.4. Conduct of Business...............................................38
6.5. Taxes.............................................................38
6.6. Insurance.........................................................38
6.7. Compliance with Laws..............................................38
6.8. Maintenance of Properties.........................................38
6.9. Inspection........................................................39
6.10. Dividends.........................................................39
6.11. Indebtedness......................................................39
6.12. Merger............................................................39
6.13. Sale of Assets....................................................39
6.14. Investments and Acquisitions......................................40
6.15. Liens.............................................................41
6.16. Affiliates........................................................42
6.17. Guarantors; Pledge of Stock of Foreign Subsidiaries...............42
6.18. Financial Covenants...............................................42
6.19. Bank Accounts.....................................................43
6.20. COA Finance.......................................................43
6.21. Prepayment of Other Debt..........................................43
6.22. Certain Agreements................................................43
ARTICLE VII. DEFAULTS.........................................................43
ARTICLE VIII. ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES..................46
8.1. Acceleration; Facility LC Collateral Account......................46
8.2. Amendments........................................................47
8.3. Preservation of Rights............................................48
ARTICLE IX. GENERAL PROVISIONS................................................48
9.1. Survival of Representations.......................................48
9.2. Governmental Regulation...........................................48
9.3. Headings..........................................................49
9.4. Entire Agreement..................................................49
9.5. Several Obligations; Benefits of this Agreement...................49
9.6. Expenses; Indemnification.........................................49
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9.7. Numbers of Documents..............................................50
9.8. Accounting........................................................50
9.9. Severability of Provisions........................................50
9.10. Nonability of Lenders.............................................50
9.11. Confidentiality...................................................50
9.12. Nonreliance.......................................................51
9.13. Disclosure........................................................51
ARTICLE X. THE AGENT..........................................................51
10.1. Appointment; Nature of Relationship...............................51
10.2. Powers............................................................51
10.3. General Immunity..................................................51
10.4. No Responsibility for Loans, Recitals, etc........................51
10.5. Action on Instructions of Lenders.................................52
10.6. Employment of Agents and Counsel..................................52
10.7. Reliance on Documents; Counsel....................................52
10.8. Agent's Reimbursement and Indemnification.........................52
10.9. Notice of Default.................................................53
10.10. Rights as a Lender................................................53
10.11. Lender Credit Decision............................................53
10.12. Successor Agent...................................................53
10.13. Agent and Arranger Fees...........................................54
10.14. Delegation to Affiliates..........................................54
10.15. Collateral Releases...............................................54
ARTICLE XI. SETOFF; RATABLE PAYMENTS..........................................54
11.1. Setoff............................................................54
11.2. Ratable Payments..................................................55
ARTICLE XII. BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS................55
12.1. Successors and Assigns............................................55
12.2. Participations....................................................55
12.3. Assignments.......................................................56
12.4. Dissemination of Information......................................57
12.5. Tax Treatment.....................................................57
ARTICLE XIII. NOTICES.........................................................57
13.1. Notices...........................................................57
13.2. Change of Address.................................................58
ARTICLE XIV. COUNTERPARTS.....................................................58
ARTICLE XV. CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL......58
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CREDIT AGREEMENT
This Agreement, dated as of June 30, 2003, is among Coachmen Industries,
Inc., the Lenders, and Bank One, Indiana, N.A., as Administrative Agent.
ARTICLE I.
DEFINITIONS
As used in this Agreement:
"Acquisition" means any transaction, or any series of related transactions,
consummated on or after the date of this Agreement, by which the Borrower or any
of its Subsidiaries (i) acquires any going business or all or substantially all
of the assets of any firm, corporation or limited liability company, or division
thereof, whether through purchase of assets, merger or otherwise or (ii)
directly or indirectly acquires (in one transaction or as the most recent
transaction in a series of transactions) at least a majority (in number of
votes) of the securities of a corporation which have ordinary voting power for
the election of directors (other than securities having such power only by
reason of the happening of a contingency) or a majority (by percentage or voting
power) of the outstanding ownership interests of a partnership or limited
liability company.
"Advance" means a borrowing hereunder, (i) made by some or all of the
Lenders on the same Borrowing Date, or (ii) converted or continued by the
Lenders on the same date of conversion or continuation, consisting, in either
case, of the aggregate amount of the several Loans of the same Type and, in the
case of Eurodollar Loans, for the same Interest Period. The term "Advance" shall
include Swing Line Loans unless otherwise expressly provided.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 10% or
more of any class of voting securities (or other ownership interests) of the
controlled Person or possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the controlled Person,
whether through ownership of stock, by contract or otherwise.
"Agent" means Bank One in its capacity as contractual representative of the
Lenders pursuant to Article X, and not in its individual capacity as a Lender,
and any successor Agent appointed pursuant to Article X.
"Aggregate Commitment" means the aggregate of the Commitments of all the
Lenders, as increased or reduced from time to time pursuant to the terms hereof.
As of the date hereof, the Aggregate Commitment is $35,000,000.
"Aggregate Outstanding Credit Exposure" means, at any time, the aggregate
of the Outstanding Credit Exposure of all the Lenders.
"Agreement" means this credit agreement, as it may be amended or modified
and in effect from time to time.
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"Agreement Accounting Principles" means generally accepted accounting
principles as in effect in the United States from time to time, applied in a
manner consistent with that used in preparing the financial statements referred
to in Section 5.4.
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (i) the Prime Rate for such day and (ii) the sum of the
Federal Funds Effective Rate for such day plus 1/2% per annum.
"Applicable Fee Rate" means at any time, the percentage rate per annum at
which Facility Fees are accruing on the Aggregate Commitment (without regard to
usage) and Commitment Fees are accruing on the unused portion of the Aggregate
Commitment at such time as set forth in the Pricing Schedule.
"Applicable Margin" means, with respect to Eurodollar Advances and Floating
Rate Advances at any time, the percentage rate per annum which is applicable at
such time with respect to such Advances as set forth in the Pricing Schedule.
"Arranger" means Banc One Capital Markets, Inc., a Delaware corporation,
and its successors, in its capacity as Lead Arranger and Sole Book Runner.
"Article" means an article of this Agreement unless another document is
specifically referenced.
"Authorized Officer" means any of the chief executive officer, president,
chief operating officer, chief financial officer, chief accounting officer or
treasurer of the Borrower, acting singly.
"Available Aggregate Commitment" means, at any time, the Aggregate
Commitment then in effect minus the Aggregate Outstanding Credit Exposure at
such time.
"Bank One" means Bank One, Indiana, N.A., a national banking association
having its main office in Chicago, Illinois, in its individual capacity, and its
successors.
"Borrower" means Coachmen Industries, Inc., an Indiana corporation, and its
successors and assigns.
"Borrowing Date" means a date on which an Advance is made hereunder.
"Borrowing Notice" is defined in Section 2.9.
"Business Day" means (i) with respect to any borrowing, payment or rate
selection of Eurodollar Advances, a day (other than a Saturday or Sunday) on
which banks generally are open in Chicago and New York for the conduct of
substantially all of their commercial lending activities, interbank wire
transfers can be made on the Fedwire system and dealings in United States
dollars are carried on in the London interbank market and (ii) for all other
purposes, a day (other than a Saturday or Sunday) on which banks generally are
open in Chicago for the conduct of substantially all of their commercial lending
activities and interbank wire transfers can be made on the Fedwire system.
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"Capitalized Lease" of a Person means any lease of Property by such Person
as lessee which would be capitalized on a balance sheet of such Person prepared
in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Cash Equivalent Investments" means (i) short-term obligations of, or fully
guaranteed by, the United States of America, (ii) commercial paper rated A-1 or
better by S&P or P-1 or better by Xxxxx'x at the time of investment therein,
(iii) demand deposit accounts maintained in the ordinary course of business,
(iv) certificates of deposit issued by and time deposits with commercial banks
(whether domestic or foreign) having capital and surplus in excess of
$100,000,000, (v) fully collateralized repurchase agreements with a term of not
more than 30 days for securities described in clause (i) above and entered into
with a financial institution satisfying the criteria described in clause (iv)
above, (vi) short-term obligations consisting of discount notes issued by the
Federal National Mortgage Association (FNMA), the Federal Farm Credit Banks
Funding Corporation (FFCB), the Federal Home Loan Bank System (FHLB), the
Student Loan Marketing Association (SLMA) or the Federal Home Loan Mortgage
Corporation (FHLMC), and (vii) shares of money market mutual funds having net
assets in excess of $500,000,000 the investments of which are limited to one or
more of the types of investments described in clauses (i), (ii), (iii), (iv),
(v) and (vi) above, provided that such mutual funds have maturities which occur
or redemption or withdrawal rights which are exercisable no later than one year
from the date of investment; and provided further in the case of investments
described in clauses (i) through (vi) above, that the same provide for payment
of both principal and interest (and not principal alone or interest alone) and
are not subject to any contingency regarding the payment of principal or
interest.
"Change in Control" means (i) the acquisition by any Person, or two or more
Persons acting in concert, of beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the Securities Exchange
Act of 1934) of 20% or more of the outstanding shares of voting stock of the
Borrower or (ii) the majority of the Board of Directors of the Borrower fails to
consist of Continuing Directors.
"COA Finance" means COA Finance Company, LTD, a Bermuda company, and its
successors and assigns.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time, and any rule or regulation issued
thereunder.
"Collateral Documents" means, collectively, all agreements, instruments and
documents executed in connection with this Agreement that are intended to create
or evidence Liens to secure the Obligations or the Guaranty of the Obligations,
including,, without limitation, any security agreement and any pledge agreement
executed pursuant to the terms of Section 6.17(b).
"Collateral Shortfall Amount" is defined in Section 8. 1.
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"Commitment" means, for each Lender, the obligation of such Lender to make
Loans to, and participate in Facility LCs issued upon the application of, the
Borrower in an aggregate amount not exceeding the amount set forth opposite its
name on Schedule I hereto or as set forth in any Notice of Assignment relating
to any assignment that has become effective pursuant to Section 12.3.2, as such
amount may be modified from time to time pursuant to the terms hereof.
"Commitment Fee" is defined in Section 2.6(a).
"Consolidated EBIT" means Consolidated Net Income plus, to the extent
deducted from revenues in determining Consolidated Net Income, (i) Consolidated
Interest Expense and (ii) expense for taxes paid or accrued, minus, to the
extent included in Consolidated Net Income, extraordinary gains realized other
than in the ordinary course of business, all calculated for the Borrower and its
Subsidiaries on a consolidated basis.
"Consolidated EBITDA" means Consolidated EBIT plus, to the extent deducted
from revenues in determining Consolidated Net Income, (i) depreciation and (ii)
amortization of intangibles, all calculated for the Borrower and its
Subsidiaries on a consolidated basis.
"Consolidated Interest Expense" means, with reference to any period, the
interest expense of the Borrower and its Subsidiaries calculated on a
consolidated basis for such period.
"Consolidated Net Income" means, with reference to any period, the net
after tax income (or loss) of the Borrower and its Subsidiaries calculated on a
consolidated basis for such period, excluding minority interests and including
only dividends actually received by the Borrower from any entity which is not a
Subsidiary.
"Consolidated Net Worth" means at any time the consolidated stockholders'
equity of the Borrower and its Subsidiaries calculated on a consolidated basis
as of such time.
"Consolidated Total Debt" means at any time the Indebtedness of the
Borrower and its Subsidiaries calculated on a consolidated basis as of such
time, including all guaranties of the Indebtedness of Persons other than the
Borrower and its Subsidiaries and all Off-Balance Sheet Liabilities of the
Borrower and its Subsidiaries calculated on a consolidated basis as of such time
regardless of the treatment of such guaranties or Off-Balance Sheet Liabilities
under Agreement Accounting Principles.
"Continuing Director" means, as of any date of determination, any member of
the board of directors of the Company who (a) was a member of such board of
directors on the date hereof, or (b) was nominated for election or elected to
such board of directors with the approval of the Continuing Directors who were
members of such board at the time of such nomination or election.
"Conversion/Continuation Notice" is defined in Section 2.10.
"Credit Extension" means the making of an Advance or the issuance of a
Facility LC hereunder.
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"Credit Extension Date" means the Borrowing Date for an Advance or the
issuance for a Facility LC.
"Current Ratio" means, as of any date of calculation, the ratio of current
assets to current liabilities, calculated for the Borrower and its Subsidiaries
on a consolidated basis.
"Default" means an event described in Article VII.
"Domestic Subsidiary" means any Subsidiary organized under the laws of the
United States of America, any State thereof or the District of Columbia.
"Effective Date" is defined in Section 4.1.
"Environmental Laws" means any and all federal, state, local and foreign
statutes, laws, judicial decisions, regulations, ordinances, rules, judgments,
orders, decrees, plans, injunctions, permits, concessions, grants, franchises,
licenses, agreements and other governmental restrictions relating to (i) the
protection of the environment, (ii) the effect of the environment on human
health, (iii) emissions, discharges or releases of pollutants, contaminants,
hazardous substances or wastes into surface water, ground water or land, or (iv)
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, hazardous substances or
wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"ERISA Affiliate" means, with respect to any Person, any trade or business
(whether or not incorporated) which, together with such Person or any Subsidiary
of such Person, would be treated as a single employer under Section 414 of the
Code.
"Eurodollar Advance" means an Advance which, except as otherwise provided
in Section 2.11, bears interest at the applicable Eurodollar Rate.
"Eurodollar Base Rate" means, with respect to a Eurodollar Advance for the
relevant Interest Period, the applicable British Bankers' Association Interest
Settlement Rate for deposits in U.S. dollars appearing on Reuters Screen FRBD as
of 11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period, and having a maturity equal to such Interest Period, provided
that, (i) if Reuters Screen FRBD is not available to the Agent for any reason,
the applicable Eurodollar Base Rate for the relevant Interest Period shall
instead be the applicable British Bankers' Association Interest Settlement Rate
for deposits in U.S. dollars as reported by any other generally recognized
financial information service as of 11:00 a.m. (London time) two Business Days
prior to the first day of such Interest Period, and having a maturity equal to
such Interest Period, and (ii) if no such British Bankers' Association Interest
Settlement Rate is available to the Agent, the applicable Eurodollar Base Rate
for the relevant Interest Period shall instead be the rate determined by the
Agent to be the rate at which Bank One or one of its Affiliate banks offers to
place deposits in U.S. dollars with first-class banks in the London interbank
market at approximately 11:00 a.m. (London time) two Business Days prior to the
first day of such Interest Period, in the approximate amount of Bank One's
relevant Eurodollar Loan and having a maturity equal to such Interest Period.
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"Eurodollar Loan" means a Loan which, except as otherwise provided in
Section 2.11, bears interest at the applicable Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Eurodollar Advance for the
relevant Interest Period, the sum of (i) the quotient of (a) the Eurodollar Base
Rate applicable to such Interest Period, divided by (b) one minus the Reserve
Requirement (expressed as a decimal) applicable to such Interest Period, plus
(ii) the Applicable Margin.
"Excluded Taxes" means, in the case of each Lender or applicable Lending
Installation and the Agent, taxes imposed on its overall net income, and
franchise taxes imposed on it, by (i) the jurisdiction under the laws of which
such Lender or the Agent is incorporated or organized or (ii) the jurisdiction
in which the Agent's or such Lender's principal executive office or such
Lender's applicable Lending, Installation is located.
"Exhibit" refers to an exhibit to this Agreement, unless another document
is specifically referenced.
"Facility LC" is defined in Section 2.20. 1.
"Facility LC Application" is defined in Section 2.20.3.
"Facility LC Collateral Account" is defined in Section 2.20.11.
"Facility Termination Date" means June 30, 2006 or any earlier date on
which the Aggregate Commitment is reduced to zero (other than amounts in respect
of Facility LCs, if any, then outstanding, provided that Borrower shall have
funded such amounts in cash in full into the Facility LC Collateral Account as
provided in Section 2.2 herein) or otherwise terminated pursuant to the terms
hereof.
"Federal Funds Effective Rate" means for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10:00 a.m. (Elkhart
time) on such day on such transactions received by the Agent from three Federal
funds brokers of recognized standing selected by the Agent in its sole
discretion.
"Fixed Charge Coverage Ratio" means, with reference to any period, the
ratio of (a) the sum of (i) Consolidated EBITDA plus (ii) rentals minus (iii)
capital expenditures made in cash to (b) the sum of (i) interest expense plus
(ii) rentals plus (iii) taxes (net of tax refunds received) plus (iv) dividends
and distributions on, and redemptions and repurchases of, the Borrower's capital
stock exclusive, however, of treasury stock that was repurchased and cancelled
before March 31, 2003 plus (v) scheduled payments of principal on all long term
Indebtedness, in each case calculated on a consolidated basis for such period.
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"Floating Rate" means, for any day, a rate per annum equal to (i) the
Alternate Base Rate for such day plus (ii) the Applicable Margin, in each case
changing when and as the Alternate Base Rate changes.
"Floating Rate Advance" means an Advance which, except as otherwise
provided in Section 2.11, bears interest at the Floating Rate.
"Floating Rate Loan" means, a Loan which, except as otherwise provided in
Section 2.11, bears interest at the Floating Rate.
"Foreign Subsidiary" means any Subsidiary that is not a Domestic
Subsidiary.
"Guarantor" means each Subsidiary that has executed or hereafter executes
the Guaranty pursuant to the terms of Section 6.17(a), and its successors and
assigns.
"Guaranty" means that certain Subsidiary Guaranty dated as of June 30,
2003, executed by the Guarantors in favor of the Agent, for the ratable benefit
of the Lenders, as it may be supplemented, amended or modified and in effect
from time to time.
"Indebtedness" of a Person means, without duplication, (a) the obligations
of such Person (i) for borrowed money, (ii) under or with respect to notes
payable and drafts accepted which represent extensions of credit (whether or not
representing obligations for borrowed money) to such Person, (iii) constituting
reimbursement obligations with respect to letters of credit issued for the
account of such Person or (iv) for the deferred purchase price of property or
services other than current accounts payable arising in the ordinary course of
business on terms customary in the trade, (b) the obligations of others, whether
or not assumed, secured by Liens on property of such Person or payable out of
the proceeds of or production from property now or hereafter owned or acquired
by such Person, (c) the Capitalized Lease Obligations of such Person, (d) the
obligations of such Person under guaranties by such Person of any Indebtedness
(other than obligations for borrowed money incurred to finance the purchase of
property leased to such Person pursuant to a Capitalized Lease of such Person)
of any other Person, and (e) Off-Balance Sheet Liabilities of such Person.
"Indebtedness" shall not include customary repurchase agreements related to
dealer stock.
"Interest Period" means, with respect to a Eurodollar Advance, a period of
one, two, three or six months commencing on a Business Day selected by the
Borrower pursuant to this Agreement. Such Interest Period shall end on the day
which corresponds numerically to such date one, two, three or six months
thereafter, provided, however, that if there is no such numerically
corresponding day in such next, second, third or sixth succeeding month, such
Interest Period shall end on the last Business Day of such next, second, third
or sixth succeeding month. If an Interest Period would otherwise end on a day
which is not a Business Day, such Interest Period shall end on the next
succeeding Business Day, provided, however, that if said next succeeding
Business Day falls in a new calendar month, such Interest Period shall end on
the immediately preceding Business Day.
"Investment" of a Person means any loan, advance (other than commission,
travel and similar advances to officers and employees made in the ordinary
course of business), extension of credit (other than accounts receivable arising
in the ordinary course of business on terms
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customary in the trade) or contribution of capital by such Person; stocks,
bonds, mutual funds, partnership interests, notes, debentures or other
securities owned by such Person; any deposit accounts and certificate of deposit
owned by such Person; and structured notes, derivative financial instruments and
other similar instruments or contracts owned by such Person.
"LC Fee" is defined in Section 2.20.4.
"LC Issuer" means Bank One (or any subsidiary or affiliate of Bank One
designated by Bank One) in its capacity as issuer of Facility LCs hereunder.
"LC Obligations" means, at any time, the sum, without duplication, of (i)
the aggregate undrawn stated amount under all Facility LCs outstanding at such
time plus (ii) the aggregate unpaid amount at such time of all Reimbursement
Obligations.
"LC Payment Date" is defined in Section 2.20.5.
"Lenders" means the lending institutions listed on the signature pages of
this Agreement and their respective successors and assigns. Unless otherwise
specified, the term "Lenders" includes Bank One in its capacity as Swing Line
Lender.
"Lending Installation" means, with respect to a Lender or the Agent, the
office, branch, subsidiary or affiliate of such Lender or the Agent listed on
the signature pages hereof or on a Schedule or otherwise selected by such Lender
or the Agent pursuant to Section 2.18.
"Leverage Ratio" means, as of any date of calculation, the ratio of (i)
Consolidated Total Debt outstanding on such date to (ii) Consolidated EBITDA for
the: Borrower's then most recently ended four fiscal quarters.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other title retention
agreement).
"Loan" means a Revolving Loan or a Swing Line Loan.
"Loan Documents" means this Agreement, the Facility LC Applications, any
Notes issued pursuant to Section 2.14, the Collateral Documents and the
Guaranty.
"Loan Party" means the Borrower and each Guarantor.
"Material Adverse Effect" means a material adverse effect on (i) the
business, Property, condition (financial or otherwise), results of operations,
or prospects of the Borrower and its Subsidiaries taken as a whole, (ii) the
ability of the Borrower to perform its obligations under the Loan Documents to
which it is a party, or (iii) the validity or enforceability of any of the Loan
Documents or the rights or remedies of the Agent or the Lenders thereunder.
"Material Indebtedness" is defined in Section 7.5.
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"Material Portion" means, with respect to the Property of the Borrower and
its Subsidiaries, Property which (i) represents more than 5% of the consolidated
assets of the Borrower and its Subsidiaries as would be shown in the
consolidated financial statements of the Borrower and its Subsidiaries as at the
end of the four fiscal quarter period ending with the fiscal quarter immediately
prior to the fiscal quarter in which such determination is made, or (ii) is
responsible for more than 5% of the consolidated net income of the Borrower and
its Subsidiaries as reflected in the Financial statements referred to in clause
(i) above.
"Material Subsidiary" means any Subsidiary of the Borrower which (i)
represents more than 5% of the consolidated assets of the Borrower and its
Subsidiaries as would be shown in the consolidated financial statements of the
Borrower and its Subsidiaries as at the end of the four fiscal quarter period
ending with the fiscal quarter immediately prior to the fiscal quarter in which
such determination is made, or (ii) is responsible for more than 5% of the
consolidated net sales or of the consolidated net income of the Borrower and its
Subsidiaries as reflected in the financial statements referred to in clause (i)
above; provided that a Subsidiary shall not be deemed to be a Material
Subsidiary solely as a result of being responsible for more than 5% of the
consolidated net income of the Borrower and its Subsidiaries unless such
Subsidiary's pre-tax income for the relevant period on an unconsolidated basis
was at least $250,000. Notwithstanding the foregoing, COA Finance shall not be
deemed to be a Material Subsidiary.
"Modify" and "Modification" are defined in Section 2.20. 1.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means any "multiemployer plan" as defined in Section
4001(a)(3) of ERISA or Section 414(f) of the Code.
"Non-U.S. Lender" is defined in Section 3.5(iv).
"Note" is defined in Section 2.14.
"Notice of Assignment" is defined in Section 12.3.2.
"Obligations" means all unpaid principal of and accrued and, unpaid
interest on the Loans, all Reimbursement Obligations, all accrued and unpaid
fees and all expenses, reimbursements, indemnities and other obligations of the
Borrower to the Lenders or to any Lender, the Agent, the LC Issuer or any
indemnified party arising under the Loan Documents.
"Off-Balance Sheet Liability" of a Person means (i) any repurchase
obligation or liability of such Person with respect to accounts or notes
receivable sold by such Person, (ii) any liability under any Sale and Leaseback
Transaction which is not a Capitalized Lease, (iii) any liability under any
financing lease or so-called "synthetic lease" transaction entered into by such
Person, or (iv) any obligation arising with respect to any other transaction
which is the functional equivalent of or takes the place of borrowing but which
does not constitute a liability on the balance sheets of such Person, but
excluding from this clause (iv) Operating Leases.
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"Operating Lease" of a Person means any lease of Property (other than a
Capitalized Lease) by such Person as lessee which has an original term
(including any required renewals and any renewals effective at the option of the
lessor) of one year or more.
"Other Taxes" is defined in Section 3.5(ii).
"Outstanding Credit Exposure" means, as to any Lender at any time, the sum
of (i) the aggregate principal amount of its Revolving Loans outstanding at such
time, plus (ii) an amount equal to its Pro Rata Share of the aggregate principal
amount of Swing Line Loans outstanding at such time, plus (iii) an amount equal
to its Pro Rata Share of LC Obligations at such time, plus (iv) an amount equal
to its Pro Rata share of certain other issued and outstanding letters of credit
described on Schedule III hereto.
"Participants" is defined in Section 12.2. 1.
"Payment Date" means the last day of each month.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Permitted Acquisition" means any Acquisition made by the Borrower or any
of its Subsidiaries, provided that (i) as of the date of the consummation of
such Acquisition, no Default or Unmatured Default shall have occurred and be
continuing or would result from such Acquisition, and the representation and
warranty contained in Section. 5.11 shall be true both before and after giving
effect to such Acquisition, (ii) such Acquisition is consummated on a
non-hostile basis pursuant to a negotiated acquisition agreement approved by the
board of directors or other applicable governing body of the seller or entity to
be acquired, and no material challenge to such Acquisition (excluding the
exercise of appraisal rights) shall be pending or threatened by any shareholder
or director of the seller or entity to be acquired, (iii) the business to be
acquired in such Acquisition is similar or related to one or more of the lines
of business in which the Borrower and its Subsidiaries are engaged on the date
hereof and is located in the United States or in Canada, and (iv) as of the date
of the consummation of such Acquisition, all material approvals required in
connection therewith shall have been obtained.
"Person" means any natural person, corporation, firm, joint venture,
partnership, limited liability company, association, enterprise, trust or other
entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
"Plan" means, with respect to any Person, any pension plan (other than a
Multiemployer Plan) subject to Title IV of ERISA or to the minimum funding
standards of Section 412 of the Code which has been established or maintained by
such Person, any Subsidiary of such Person or any ERISA Affiliate, or by any
other Person if such Person, any Subsidiary of such Person or any ERISA
Affiliate could have liability with respect to such pension plan.
"Prime Rate" means a rate per annum equal to the prime rate of interest
announced from time to time by Bank One or its parent (which is not necessarily
the lowest rate charged to any customer), changing when and as said prime rate
changes.
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"Prohibited Transaction" means any transaction involving any Plan which is
proscribed by Section 406 of ERISA or Section 4975 of the Code.
"Property" of a Person means any and all property, whether real, personal,
tangible, intangible, or mixed, of such Person, or other assets owned, leased or
operated by such Person.
"Pro Rata Share" means, with respect to a Lender, a portion equal to a
fraction, the numerator of which is such Lender's Commitment and the denominator
of which is the Aggregate Commitment.
"Purchase Price" means the total consideration and other amounts payable in
connection with any Acquisition or Investment, including, without limitation,
any portion of the consideration payable in cash, the value of any capital stock
or other equity interests of the Borrower or any Subsidiary issued as
consideration for such Acquisition or Investment, all Indebtedness, liabilities
and contingent obligation incurred or assumed in connection with such
Acquisition or Investment and all transaction costs and expenses incurred in
connection with such Acquisition or Investment.
"Purchasers" is defined in Section 12.3. 1.
"Rate Management Obligations" means any and all obligations of the
Borrower, whether absolute or contingent and howsoever and whensoever created,
arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (i) any and all Rate
Management Transactions, and (ii) any and all cancellations, buy backs,
reversals, terminations or assignments of any Rate Management Transactions.
"Rate Management Transaction" means any transaction (including an agreement
with respect thereto) now existing or hereafter entered by the Borrower and any
Lender or Affiliate thereof which is a rate swap, 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,
forward transaction, currency swap transaction, cross-currency rate swap
transaction, currency option or any other similar transaction (including any
option with respect to any of these transactions) or any combination thereof,
whether linked to one or more interest rates, foreign currencies, commodity
prices, equity prices or other financial measures.
"Regulation D" means Regulation D of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor thereto or other
regulation or official interpretation of said Board of Governors relating to
reserve requirements applicable to member banks of the Federal Reserve System.
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors; relating to
the extension of credit by banks for the purpose of purchasing or carrying
margin stocks applicable to member banks of the Federal Reserve System.
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"Reimbursement Obligations" means, at any time, the aggregate of all
obligations of the Borrower then outstanding under Section 2.20 to reimburse the
LC Issuer for amounts paid by the LC Issuer in respect of any one or more
drawings under Facility LCs.
"Reportable Event" means a reportable event as defined in Section 4043 of
ERISA and the regulations issued under such section, with respect to a Plan,
including such events as to which the PBGC has by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within 30 days of
the occurrence of such event.
"Required Lenders" means Lenders in the aggregate having at least 66.67% of
the Aggregate Commitment or, if the Aggregate Commitment has been terminated,
Lenders in the aggregate holding at least 66.67% of the Aggregate Outstanding
Credit Exposure,
"Reserve Requirement" means, with respect to an Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on Eurocurrency
liabilities.
"Revolving Loan" means, with respect to a Lender, such Lender's loan made
pursuant to its commitment to lend set forth in Section 2.1 (or any conversion
or continuation thereof).
"S&P" means Standard and Poor's Ratings Services, a division of The McGraw
Hill Companies, Inc.
"Sale and Leaseback Transaction" means any sale or other transfer of
Property by any Person with the intent to lease such Property as lessee.
"Schedule" refers to a specific schedule to this Agreement, unless another
document is specifically referenced.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Subsidiary" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(ii) any partnership, limited liability company, association, joint venture or
similar business organization more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled.
Unless otherwise expressly provided, all references herein to a "Subsidiary"
shall mean a Subsidiary of the Borrower.
"Substantial Portion" means, with respect to the Property of the Borrower
and its Subsidiaries, Property which (i) represents more than 10% of the
consolidated assets of the Borrower and its Subsidiaries as would be shown in
the consolidated financial statements of the Borrower and its Subsidiaries as at
the end of the four fiscal quarter period ending with the fiscal quarter
immediately prior to the fiscal quarter in which such determination is made, or
(ii) is responsible for more than 10% of the consolidated net income of the
Borrower and its Subsidiaries as reflected in the financial statements referred
to in clause (i) above.
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"Swing Line Borrowing Notice" is defined in Section 2.5.2.
"Swing Line Commitment" means the obligation of the Swing Line Lender to
make Swing Line Loans up to a maximum principal amount of $5,000,000 at any one
time outstanding.
"Swing Line Lender" means Bank One or such other Lender which may succeed
to its rights and obligations as Swing, Line Lender pursuant to the terms of
this Agreement.
"Swing Line Loan" means a Loan made available to the Borrower by the Swing
Line Lender pursuant to Section 2.5.
"Taxes" means any and all present or future taxes, duties, levies, imposts,
deductions, charges or withholdings, and any and all liabilities with respect to
the foregoing, but excluding Excluded Taxes and Other Taxes.
"Transferee" is defined in Section 12.4.
"Type" means, with respect to any Advance, its nature as a Floating Rate
Advance or a Eurodollar Advance.
"Unfunded Benefit Liabilities" means, with respect to any Plan as of any
date, the amount of the unfunded benefit liabilities determined in accordance
with Section 4001(a)(18) of ERISA.
"Unmatured Default" means an event which but for the lapse of time or the
giving of notice, or both, would constitute a Default.
"Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary all of the
outstanding voting securities of which shall at the time be owned or controlled,
directly or indirectly, by such Person or one or more Wholly-Owned Subsidiaries
of such Person, or by such Person and one or more Wholly-Owned Subsidiaries of
such Person, or (ii) any partnership, limited liability company, association,
joint venture or similar business organization 100% of the ownership interests
having ordinary voting power of which shall at the time be so owned or
controlled.
The foregoing definitions shall be equally applicable to both the singular
and plural forms of the defined terms.
ARTICLE II.
THE CREDITS
2.1 COMMITMENT. From and including the date of this Agreement and prior to
the Facility Termination Date, each Lender severally agrees, on the terms and
conditions set forth in this Agreement, to (i) make Loans to the Borrower and
(ii) participate in Facility LCs issued upon the request of the Borrower,
provided that after giving effect to the making of each such Loan and the
issuance of each such Facility LC, such Lender's Outstanding Credit Exposure
shall not exceed its Commitment. Subject to the terms of this Agreement, the
Borrower may borrow, repay and reborrow at any time prior to the Facility
Termination Date. The Commitments to
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extend credit hereunder shall expire on the Facility Termination Date. The LC
Issuer will issue Facility LCs hereunder on the terms and conditions set forth
in Section 2.20.
2.2. REQUIRED PAYMENTS, TERMINATION. The Aggregate Outstanding Credit
Exposure and all other unpaid Obligations shall be paid in full by the Borrower
on the Facility Termination Date. Without limiting the generality of the
foregoing, if on the Facility Termination Date any Facility LCs are outstanding
having expiry dates later than the Facility Termination Date, then on the
Facility Termination Date the Borrower shall pay to the Agent an amount in
immediately available funds, which funds shall be held in the Facility LC
Collateral Account, equal to the difference of (x) 105% of the sum of (A) the
amount of LC Obligations at such time and (B) the aggregate maximum amount of LC
Fees that are accrued and unpaid on the Facility Termination Date or could
accrue with respect to such Facility LCs from and after the Facility Termination
Date until all such Facility LCs expire on their then applicable expiry dates,
assuming no amounts are drawn thereunder, less (y) the amount on deposit in the
Facility LC Collateral Account at such time which is free and clear of all
rights and claims of third parties and has not been applied against the
Obligations. The foregoing sentence shall not apply to any Facility LC as to
which the Borrower shall have caused the beneficiary thereof to surrender such
Facility LC to the LC Issuer for cancellation to the extent that such Facility
LC is undrawn when cancelled.
2.3. RATABLE LOANS. Each Advance hereunder (other than any Swing Line Loan)
shall consist of Revolving Loans made from the several Lenders ratably according
to their Pro Rata Shares.
2.4. TYPES OF ADVANCES. The Advances may be Floating Rate Advances or
Eurodollar Advances, or a combination thereof, selected by the Borrower in
accordance with Sections 2.9 and 2.10, or Swing Line Loans selected by the
Borrower in accordance with Section 2.5.
2.5. SWING LINE LOANS.
2.5.1. AMOUNT OF SWING LINE LOANS. Subject to the provisions of Section
2.5.5, upon the satisfaction of the conditions precedent set forth in Section
4.2 and, if such Swing Line Loan is to be made on the date of the initial
Advance hereunder, the satisfaction of the conditions precedent set forth in
Section 4.1 as well, from and including the date of this Agreement and prior to
the Facility Termination Date, the Swing Line Lender agrees, on the terms and
conditions set forth in this Agreement, to make Swing Line Loans to the Borrower
from time to time in an aggregate principal amount not to exceed the Swing Line
Commitment, provided that the Aggregate Outstanding Credit Exposure shall not at
any time exceed the Aggregate Commitment, and provided further that at no time
shall the sum of (i) the Swing Line Lender's Pro Rata Share of the Swing Line
Loans, plus (ii) the outstanding Revolving Loans made by the Swing Line Lender
pursuant to Section 2.1, exceed the Swing Line Lender's Commitment at such time.
Subject to the terms of this Agreement, the Borrower may borrow, repay and
reborrow Swing Line Loans at any time prior to the Facility Termination Date.
2.5.2. BORROWING NOTICE. The Borrower shall deliver to the Agent and the
Swing Line Lender irrevocable notice (a "Swing Line Borrowing Notice") not later
than noon (Elkhart time) on the Borrowing Date of each Swing Line Loan,
specifying (i) the applicable Borrowing Date (which date shall be a Business
Day), and (ii) the aggregate amount of the requested Swing Line
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Loan which shall be an amount not less than $100,000. The Swing Line Loans shall
bear interest at the Floating Rate.
2.5.3. MAKING OF SWING LINE LOANS. Subject to the provisions of Section
2.5.5, promptly after receipt of a Swing Line Borrowing Notice, the Agent shall
notify each Lender by fax, or other similar form of transmission, of the
requested Swing Line Loan. Not later than 2:00 p.m. (Elkhart time) on the
applicable Borrowing Date, the Swing Line Lender shall make available the Swing,
Line Loan, in funds immediately available in Elkhart, to the Agent at its
address specified pursuant to Article XIII. The Agent will promptly make the
funds so received from the Swing Line Lender available to the Borrower on the
Borrowing Date at the Agent's aforesaid address.
2.5.4. REPAYMENT OF SWING LINE LOANS. Each Swing Line Loan shall be paid in
full by the Borrower on or before the fifth (5th) Business Day after the
Borrowing Date for such Swing Line Loan. In addition, the Swing Line Lender (i)
may at any time in its sole discretion with respect to any outstanding Swing
Line Loan, or (ii) shall on the fifth (5th) Business Day after the Borrowing,
Date of any Swing Line Loan, require each Lender (including the Swing Line
Lender) to make a Revolving Loan in the amount of such Lender's Pro Rata Share
of such Swing Line Loan (including, without limitation, any interest accrued and
unpaid thereon), for the purpose of repaying such Swing Line Loan. Not later
than noon (Elkhart time) on the date of any notice received pursuant to this
Section 2.5.4, each Lender shall make available its required Revolving Loan, in
funds immediately available in Elkhart to the Agent at its address specified
pursuant to Article XIII. Revolving Loans made pursuant to this Section 2.5.4
shall initially be Floating Rate Loans and thereafter may be continued as
Floating Rate Loans or converted into Eurodollar Loans in the manner provided in
Section 2. 10 and subject to the other conditions and limitations set forth in
this Article II. Unless a Lender shall have notified the Swing Line Lender,
prior to its making any Swing Line Loan, that any applicable condition precedent
set forth in Sections 4.1 or 4.2 had not then been satisfied, such Lender's
obligation to make Revolving Loans pursuant to this Section 2.5.4 to repay Swing
Line Loans shall be unconditional, continuing, irrevocable and absolute and
shall not be affected by any circumstances, including, without limitation, (a)
any set-off, counterclaim, recoupment, defense or other right which such Lender
may have against the Agent, the Swing Line Lender or any other Person, (b) the
occurrence or continuance of a Default or Unmatured Default, (c) any adverse
change in the condition (financial or otherwise) of the Borrower, or (d) any
other circumstances, happening or event whatsoever. In the event that any Lender
fails to make payment to the Agent of any amount due under this Section 2.5.4,
the Agent shall be entitled to receive, retain and apply against such obligation
the principal and interest otherwise payable to such Lender hereunder until the
Agent receives such payment from such Lender or such obligation is otherwise
fully satisfied. In addition to the foregoing, if for any reason any Lender
fails to make payment to the Agent of any amount due under this Section 2.5.4,
such Lender shall be deemed, at the option of the Agent, to have unconditionally
and irrevocably purchased from the Swing Line Lender, without recourse or
warranty, an undivided interest and participation in the applicable Swing Line
Loan in the amount of such Revolving Loan, and such interest and participation
may be recovered from such Lender together with interest thereon at the Federal
Funds Effective Rate for each day during the period commencing on the date of
demand and ending on the date such amount is received. On the Facility
Termination Date, the Borrower shall repay in full the outstanding principal
balance of the Swing Line Loans.
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2.5.5. DISCRETIONARY LENDING. Notwithstanding any term or provision set
forth in this Section 2.5 to the contrary, and as acknowledged and understood by
Borrower, the making and the decision to make any Swing Line Loan shall be in
the sole discretion of the Swing Line Lender.
2.6. COMMITMENT FEE REDUCTIONS IN AGGREGATE COMMITMENT.
(a) COMMITMENT FEE. The Borrower agrees to pay to the Agent for
the account of each Lender ratably in accordance with their respective
Pro Rata shares a commitment fee (the "Commitment Fee") at a per annum
rate equal to the Applicable Fee Rate on the daily unborrowed portion
of such Lender's Commitment from the Effective Date to and including
the Facility Termination Date, payable quarterly in arrears from the
Effective Date until the Facility Termination Date.
(b) REDUCTIONS IN AGGREGATE COMMITMENT. The Borrower may
permanently reduce the Aggregate Commitment in whole, or in part
ratably among the Lenders in integral multiples of $5,000,000, upon at
least three Business Days' written notice to the Agent, which notice
shall specify the amount of any such reduction, provided, however,
that the amount of the Aggregate Commitment may not be reduced below
the Aggregate Outstanding Credit Exposure. All accrued Commitment Fees
shall be payable on the effective date of any termination of the
obligations of the Lenders to make Credit Extensions hereunder.
2.7. MINIMUM AMOUNT OF EACH ADVANCE. Each Eurodollar Advance shall be in
the minimum amount of $5,000,000 (and in multiples of $1,000,000 if in excess
thereof), and each Floating Rate Advance (other than an Advance to repay Swing
Line Loans) shall be in the minimum amount of $5,000,000 (and in multiples of
$1,000,000 if in excess thereof), provided, however, that any Floating Rate
Advance may be in the amount of the Available Aggregate Commitment.
2.8. OPTIONAL PRINCIPAL PAYMENTS. The Borrower may from time to time
pay, without penalty or premium, all outstanding Floating Rate Advances (other
than Swing Line Loans), or, in a minimum amount of $1,000,000 and increments of
$100,000 in excess thereof, any portion of the outstanding Floating Rate
Advances (other than Swing Line Loans) upon one Business Day's prior notice to
the Agent. The Borrower may at any time pay, without penalty or premium, all
outstanding Swing Line Loans, or, in a minimum amount of $100,000 and increments
of $50,000 in excess thereof, any portion of the outstanding Swing Line Loans,
with notice to the Agent and the Swing Line Lender by 11:00 a.m. (Elkhart time)
on the date of repayment. The Borrower may from time to time prior to the last
day of the Applicable Interest Period pay, subject to the payment of any funding
indemnification amounts required by Section 3.4 but without penalty or premium,
all outstanding Eurodollar Advances, or, in a minimum aggregate amount of
$5,000,000 or any integral multiple of $1,000,000 in excess thereof, any portion
of the outstanding Eurodollar Advances upon three Business Days' prior notice to
the Agent.
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2.9. METHOD OF SELECTING TYPES AND INTEREST PERIODS FOR NEW ADVANCES. The
Borrower shall select the Type of Advance and, in the case of each Eurodollar
Advance, the Interest Period applicable thereto from time to time. The Borrower
shall give the Agent irrevocable notice (a "Borrowing Notice") not later than
10:00 a.m. (Elkhart time) on the Borrowing Date of each Floating Rate Advance
(other than a Swing Line Loan) and three Business Days before the Borrowing Date
for each Eurodollar Advance, specifying:
(i) the Borrowing Date, which shall be a Business Day, of such
Advance,
(ii) the aggregate amount of such Advance,
(iii) the Type of Advance selected, and
(iv) in the case of each Eurodollar Advance, the Interest Period
applicable thereto,
Not later than noon (Elkhart time) on each Borrowing Date, each Lender shall
make available its Revolving Loan or Revolving Loans in funds immediately
available in Elkhart to the Agent at its address specified pursuant to Article
XIII. The Agent will make the funds so received from the Lenders available to
the Borrower at the Agent's aforesaid address.
2.10. CONVERSION AND CONTINUATION OF OUTSTANDING ADVANCES. Floating Rate
Advances (other than Swing Line Loans) shall continue as Floating Rate Advances
unless and until such Floating Rate Advances are converted into Eurodollar
Advances pursuant to this Section 2.10 or are repaid in accordance with Section
2.8. Each Eurodollar Advance shall continue as a Eurodollar Advance until the
end of the then applicable Interest Period therefore, at which time such
Eurodollar Advance shall be automatically converted into a Floating Rate Advance
unless (x) such Eurodollar Advance is or was repaid in accordance with Section
2.8 or (y) the Borrower shall have given the Agent a Conversion/Continuation
Notice (as defined below) requesting that, at the end of such Interest Period,
such Eurodollar Advance continue as a Eurodollar Advance for the same or another
Interest Period. Subject to the terms of Section 2.7, the Borrower may elect
from time to time to convert all or any part of a Floating Rate Advance (other
than a Swing Line Loan) into a Eurodollar Advance. The Borrower shall give the
Agent irrevocable notice (a "Conversion/Continuation Notice") of each conversion
of a Floating Rate Advance into a Eurodollar Advance or continuation of a
Eurodollar Advance not later than 10:00 a.m. (Elkhart time) at least three
Business Days prior to the date of the requested conversion or continuation,
specifying:
(i) the requested date, which shall be a Business Day, of such
conversion or continuation,
(ii) the aggregate amount and Type of the Advance which is to be
converted or continued, and
(iii)the amount of such Advance which is to be converted into or
continued as a Eurodollar Advance and the duration of the
Interest Period applicable thereto.
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2.11. CHANGES IN INTEREST RATE, ETC. Each Floating Rate Advance (other than
a Swing Line Loan) shall bear interest on the outstanding principal amount
thereof, for each day from and including the date such Advance is made or is
automatically converted from a Eurodollar Advance into a Floating Rate Advance
pursuant to Section 2.10, to but excluding the date it is paid or is converted
into a Eurodollar Advance pursuant to Section 2.10 thereof, at a rate per annum
equal to the Floating Rate for such day. Each Swing Line Loan shall bear
interest on the outstanding principal amount thereof, for each day from and
including the day such Swing Line Loan is made to but excluding the date it is
paid, at a rate per annum equal to the Floating Rate for such day. Changes in
the rate of interest on that portion of any Advance maintained as a Floating
Rate Advance will take effect simultaneously with each change in the Alternate
Base Rate. Each Eurodollar Advance shall bear interest on the outstanding
principal amount thereof from and including the first day of the Interest Period
applicable thereto to (but not including) the last day of such Interest Period
at the interest rate determined by the Agent as applicable to such Eurodollar
Advance based upon the Borrower's selections under Sections 2.9 and 2.10 and
otherwise in accordance with the terms hereof. No Interest Period may end after
the Facility Termination Date.
2.12. RATES APPLICABLE AFTER DEFAULT. Notwithstanding anything, to the
contrary contained in Section 2.9 or 2.10, during the continuance of a Default
or Unmatured Default the Required Lenders may, at their option, by notice to the
Borrower (which notice may be revoked at the option of the Required Lenders
notwithstanding any provision of Section 8.2 requiring unanimous consent of the
Lenders to changes in interest rates), declare that no Advance may be made as,
converted into or continued as a Eurodollar Advance. During the continuance of a
Default the Required Lenders may, at their option, by notice to the Borrower
(which notice may be revoked at the option of the Required Lenders
notwithstanding any provision of Section 8.2 requiring unanimous consent of the
Lenders to changes in interest rates), declare that (i) each Eurodollar Advance
shall bear interest for the remainder of the applicable Interest Period at the
rate otherwise applicable to such Interest Period plus 2% per annum,, (ii) each
Floating Rate Advance shall bear interest at a rate per annum equal to the
Floating Rate in effect from time to time plus 2% per annum. and (iii) the LC
Fee shall be increased by 2% per annum, provided that, during the continuance of
a Default under Section 7.6 or 7.7, the interest rates set forth in clauses (i)
and (ii) above and the increase in the LC Fee set forth in clause (iii) above
shall be applicable to all Credit Extensions without any election or action on
the part of the Agent or any Lender.
2.13. METHOD OF PAYMENT. All payments of the Obligations hereunder shall be
made, without setoff, deduction, or counterclaim, in immediately available funds
to the Agent at the Agent's address specified pursuant to Article XIII, or at
any other Lending Installation of the Agent specified in writing by the Agent to
the Borrower, by noon (Elkhart time) on the date when due and shall (except with
respect to repayments of Swing Line Loans, or in the case of Reimbursement
Obligations for which the LC Issuer has not been fully indemnified by the
Lenders, or as otherwise specifically required hereunder) be applied ratably by
the Agent among the Lenders. Each payment delivered to the Agent for the account
of any Lender shall be delivered promptly by the Agent to such Lender in the
same type of funds that the Agent received at its address specified pursuant to
Article XIII or at any Lending Installation specified in a notice received by
the Agent from such Lender. The Agent is hereby authorized to charge the account
of the Borrower maintained with Bank One for each payment of principal,
interest, Reimbursement Obligations and fees as it becomes due hereunder. Each
reference to the Agent
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in this Section 2.13 shall also be deemed to refer, and shall apply equally, to
the LC Issuer, in the case of payments required to be made by the Borrower to
the LC Issuer pursuant to Section 2.20.6
2.14. NOTELESS AGREEMENT; EVIDENCE OF INDEBTEDNESS.
(i) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the
Borrower to such Lender resulting from each Loan made by such
Lender from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time
hereunder.
(ii) The Agent shall also maintain accounts in which it will record
(a) the amount of each Loan made hereunder, the Type thereof and
the Interest Period with respect thereto, (b) the amount of any
principal or interest due and payable or to become due and
payable from the Borrower to each Lender hereunder and (c) the
original stated amount of each Facility LC and the amount of LC
Obligations outstanding at any time, and (d) the amount of any
sum received by the Agent hereunder from the Borrower and each
Lender's share thereof.
(iii)The entries maintained in the accounts maintained pursuant to
paragraphs (1) and (ii) above shall be prima facie evidence of
the existence and amounts of the Obligations therein recorded;
provided, however, that the failure of the Agent or any Lender to
maintain such accounts or any error therein shall not in any
manner affect the obligation of the Borrower to repay the
Obligations in accordance with their terms.
(iv) Any Lender may request that its Loans be evidenced by a
promissory note or, in the case of the Swing Line Lender,
promissory notes representing its Revolving Loans and Swing Line
Loans, respectively, substantially in the form of Exhibit C, with
appropriate changes for notes evidencing Swing Line Loans (each a
"Note"). In such event, the Borrower shall prepare, execute and
deliver to such Lender such Note or Notes payable to the order of
such Lender. Thereafter, the Loans evidenced by each such Note
and interest thereon shall at all times (including after any
assignment pursuant to Section 12.3) be represented by one or
more Notes payable to the order of the payee named therein or any
assignee pursuant to Section 12.3, except to the extent that any
such Lender or assignee subsequently returns any such Note for
cancellation and requests that such Loans once again be evidenced
as described in paragraphs (i) and (ii) above.
2.15. TELEPHONIC NOTICES. The Borrower hereby authorizes the Lenders and
the Agent to extend, convert or continue Advances, effect selections of Types of
Advances and to transfer funds based on telephonic notices made by any person or
persons the Agent or any Lender in good faith believes to be acting on behalf of
the Borrower, it being understood that the foregoing authorization is
specifically intended to allow Borrowing Notices and Conversion/Continuation
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Notices to be given telephonically. The Borrower agrees to deliver promptly to
the Agent a written confirmation, if such confirmation is requested by the Agent
or any Lender, of each telephonic notice signed by an Authorized Officer. If the
written confirmation differs in any material respect from the action taken by
the Agent and the Lenders, the records of the Agent and the Lenders shall govern
absent manifest error.
2.16. INTEREST PAYMENT DATES; INTEREST AND FEE BASIS. Interest accrued on
each Floating Rate Advance shall be payable on each Payment Date, commencing
with the first such date to occur after the date hereof, on any date on which
the Floating Rate Advance is prepaid, whether due to acceleration or otherwise,
and at maturity. Interest accrued on that portion of the outstanding principal
amount of any Floating Rate Advance converted into a Eurodollar Advance on a day
other than a Payment Date shall be payable on the date of conversion. Except as
set forth in the immediately succeeding sentence, interest accrued on each
Eurodollar Advance shall be payable on the last day of its applicable Interest
Period, on any date on which the Eurodollar Advance is prepaid, whether by
acceleration or otherwise, and at maturity. Interest accrued on each Eurodollar
Advance having an Interest Period longer than three months shall also be payable
on the last day of each three-month interval during such Interest Period.
Interest on Floating Rate Advances and Eurodollar Advances, LC Fees and Facility
Fees shall be calculated for actual days elapsed on the basis of a 360-day year.
Interest shall be payable for the day an Advance is made but not for the day of
any payment on the amount paid if payment is received prior to noon (Elkhart
time) at the place of payment. If any payment of principal of or interest on an
Advance shall become due on a day which is not a Business Day, such payment
shall be made on the next succeeding Business Day and, in the case of a
principal payment, such extension of time shall be included in computing
interest in connection with such payment.
2.17. NOTIFICATION OF ADVANCES, INTEREST RATES, PREPAYMENTS AND COMMITMENT
REDUCTIONS AND INCREASES. Promptly after receipt thereof, the Agent will notify
each Lender of the contents of each Aggregate Commitment reduction notice,
Commitment Increase Request, Borrowing Notice, Swing Line Borrowing Notice,
Conversion/Continuation Notice, and repayment notice received by it hereunder.
Promptly after notice from the LC Issuer, the Agent will notify each Lender of
the contents of each request for issuance of a Facility LC hereunder. The Agent
will notify each Lender of the interest rate applicable to each Eurodollar
Advance promptly upon determination of such interest rate and will give each
Lender prompt notice of each change in the Alternate Base Rate.
2.18. LENDING INSTALLATIONS. Each Lender may book its Loans and its
participation in any LC Obligations and the LC Issuer may book the Facility LC
at any Lending Installation selected by such Lender or the LC Issuer, as the
case may be, and may change its Lending Installation from time to time. All
terms of this Agreement shall apply to any such Lending Installation and the
Loans, Facility LCs, participations in LC Obligations and any Notes issued
hereunder shall be deemed held by each Lender or the LC Issuer, as the case may
be, for the benefit of any such Lending Installation. Each Lender and the LC
Issuer may, by written notice to the Agent and the Borrower in accordance with
Article XIII, designate replacement or additional Lending Installations through
which Loans will be made by it or Facility LCs will be issued by it and for
whose account Loan payments or payments with respect to Facility LCs are to be
made.
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2.19. NON-RECEIPT OF FUNDS BY THE AGENT. Unless the Borrower or a Lender,
as the case may be, notifies the Agent prior to the date on which it is
scheduled to make payment to the Agent of (i) in the case of a Lender, the
proceeds of a Loan or (ii) in the case of the Borrower, a payment of principal,
interest or fees to the Agent for the account of the Lenders, that it does not
intend to make such payment, the Agent may assume that such payment has been
made. The Agent may, but shall not be obligated to, make the amount of such
payment available to the intended recipient in reliance upon such assumption. If
such Lender or the Borrower, as the case may be, has not in fact made such
payment to the Agent, the recipient of such payment shall, on demand by the
Agent, repay to the Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date such
amount was so made available by the Agent until the date the Agent recovers such
amount at a rate per annum equal to (x) in the case of payment by a Lender, the
Federal Funds Effective Rate for such day for the first three days and,
thereafter, the interest rate applicable to the relevant Loan or (y) in the case
of payment by the Borrower, the interest rate applicable to the relevant Loan.
2.20. FACILITY LCS.
2.20.1. ISSUANCE. The LC Issuer hereby agrees, on the terms and conditions
set forth in this Agreement, to issue standby and commercial letters of credit
(each, a "Facility LC") and to renew, extend, increase, decrease or otherwise
modify each Facility LC ("Modify," and each such action a "Modification"), from
time to time from and including the date of this Agreement and prior to the
Facility Termination Date upon the request of the Borrower; provided that
immediately after each such Facility LC is issued or Modified, (i) the aggregate
amount of the outstanding LC Obligations shall not exceed $5,000,000 and (ii)
the Aggregate Outstanding Credit Exposure shall not exceed the Aggregate
Commitment. No Facility LC shall have an expiry date later than one year after
its issuance or, in the case of any renewal or extension thereof, one year after
such renewal or extension provided, however in all events, that no Facility LC
shall be issued, renewed or extended following the Facility Termination Date.
2.20.2. PARTICIPATIONS. Upon the issuance or Modification by the LC Issuer
of a Facility LC in accordance with this Section 2.20, the LC Issuer shall be
deemed, without further action by any party hereto, to have unconditionally and
irrevocably sold to each Lender, and each Lender shall be deemed, without
further action by any party hereto, to have unconditionally and irrevocably
purchased from the LC Issuer, a participation in such Facility LC (and each
Modification thereof) and the related LC Obligations in proportion to its Pro
Rata Share.
2.20.3. NOTICE. Subject to Section 2.20.1, the Borrower shall give the LC
Issuer notice prior to 10:00 a.m. (Elkhart time) at least five Business Days
prior to the proposed date of issuance or Modification of each Facility LC,
specifying the beneficiary, the proposed date of issuance (or Modification) and
the expiry date of such Facility LC, and describing the proposed terms of such
Facility LC and the nature of the transactions proposed to be supported thereby.
Upon receipt of such notice, the LC Issuer shall promptly notify the Agent, and
the Agent shall promptly notify each Lender, of the contents thereof and of the
amount of such Lender's participation in such proposed Facility LC. The issuance
or Modification by the LC Issuer of any Facility LC shall, in addition to the
conditions precedent set forth in Article IV (the satisfaction of which the LC
Issuer shall have no duty to ascertain), be subject to the conditions precedent
that such Facility LC shall be satisfactory to the LC Issuer and that the
Borrower shall have
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executed and delivered such application agreement and/or such other instruments
and agreements relating to such Facility LC as the LC Issuer shall have
reasonably requested (each, a "Facility LC Application"). In the event of any
conflict between the terms of this Agreement and the terms of any Facility LC
Application, the terms of this Agreement shall control.
2.20.4. LC FEES. The Borrower shall pay to the Agent, for the account of
the Lenders ratably in accordance with their respective Pro Rata Shares, with
respect to each standby Facility LC, a letter of credit fee at a per annum rate
equal to the Applicable Margin for Eurodollar Loans in effect from time to time
on the initial stated amount, such standby Facility LC, such fee to be payable
in advance on the date of issuance of the Facility LC and each anniversary or
extension or renewal date, as applicable, thereof.
2.20.5. ADMINISTRATION; REIMBURSEMENT BY LENDERS. Upon receipt from the
beneficiary of any Facility LC of any demand for payment under such Facility LC,
the LC Issuer shall notify the Agent and the Agent shall promptly notify the
Borrower and each other Lender as to the amount to be paid by the LC Issuer as a
result of such demand and the proposed payment date (the "LC Payment Date"). The
responsibility of the LC Issuer to the Borrower and each Lender shall be only to
determine that the documents (including each demand for payment) delivered under
each Facility LC in connection with such presentment shall be in conformity in
all material respects with such Facility LC. The LC Issuer shall endeavor to
exercise the same care in the issuance and administration of the Facility LCs as
it does with respect to letters of credit in which no participations are
granted, it being understood that in the absence of any gross negligence or
willful in misconduct by the LC Issuer, each Lender shall be unconditionally and
irrevocably liable without regard to the occurrence of any Default or any
condition precedent whatsoever, to reimburse the LC Issuer on demand for (i)
such Lender's Pro Rata Share of the amount of each payment made by the LC Issuer
under each Facility LC to the extent such amount is not reimbursed by the
Borrower pursuant to Section 2.20.6 below, plus (ii) interest on the foregoing
amount to be reimbursed by such Lender, for each day from the date of the LC
Issuer's demand for such reimbursement (or, if such demand is made after 11:00
a.m. (Elkhart time) on such date, from the next succeeding Business Day) to the
date on which such Lender pays the amount to be reimbursed by it, at a rate of
interest per annum equal to the Federal Funds Effective Rate for the first three
days and, thereafter, at a rate of interest equal to the rate applicable to
Floating Rate Advances.
2.20.6. REIMBURSEMENT BY BORROWER. The Borrower shall be irrevocably and
unconditionally obligated to reimburse the LC Issuer on or before the applicable
LC Payment Date for any amounts to be paid by the LC Issuer upon any drawing
under any Facility LC, without presentment, demand, protest or other formalities
of any kind; provided that neither the Borrower nor any Lender shall hereby be
precluded from asserting any claim, for direct (but not consequential) damages
suffered by the Borrower or such Lender to the extent, but only to the extent,
caused by (i) the willful misconduct or gross negligence of the LC Issuer in
determining whether a request presented under any Facility LC issued by it
complied with the terms of such Facility LC or (ii) the LC Issuer's failure to
pay under any Facility LC issued by it after the presentation to it of a request
strictly complying with the terms and conditions of such Facility LC. All such
amounts paid by the LC Issuer and remaining unpaid by the Borrower shall bear
interest, payable on demand, for each day until paid at a rate per annum equal
to (x) the rate applicable to Floating Rate Advances for such day if such day
falls on or before the applicable
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LC Payment Date and (y) the sum of 2% plus the rate applicable to Floating Rate
Advances for such day if such day falls after such LC Payment Date. The LC
Issuer will pay to each Lender ratably in accordance with its Pro Rata Share all
amounts received by it from the Borrower for application in payment, in whole or
in part, of the Reimbursement Obligation in respect of any Facility LC issued by
the LC Issuer, but only to the extent such Lender has made payment to the LC
Issuer in respect of such Facility LC pursuant to Section 2.20.5. Subject to the
terms and conditions of this Agreement (including without limitation the
submission of a Borrowing Notice in compliance with Section 2.9 and the
satisfaction of the applicable conditions precedent set forth in Article IV),
the Borrower may request an Advance hereunder for the purpose of satisfying any
Reimbursement Obligation.
2.20.7. OBLIGATIONS ABSOLUTE. The Borrower's obligations under this Section
2.20 shall be absolute and unconditional under any and all circumstances and
irrespective of any setoff, counterclaim or defense to payment which the
Borrower may have or have had against the LC Issuer, any Lender or any
beneficiary of a Facility LC. The Borrower further agrees with the LC Issuer and
the Lenders that the LC Issuer and the Lenders shall not be responsible for, and
the Borrower's Reimbursement Obligation in respect of any Facility LC shall not
be affected by, among other things, the validity or genuineness of documents or
of any endorsements thereon, even if such documents should in fact prove to be
in any or all respects invalid, fraudulent or forged, or any dispute between or
among the Borrower, any of its Affiliates, the beneficiary of any Facility LC or
any financing institution or other party to whom any Facility LC may be
transferred or any claims or defenses whatsoever of the Borrower or of any of
its Affiliates against the beneficiary of any Facility LC or any such
transferee. The LC Issuer shall not be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any message or
advice, however transmitted, in connection with any Facility LC. The Borrower
agrees that any action taken or omitted by the LC Issuer or any Lender under or
In connection with each Facility LC and the related drafts and documents, if
done without gross negligence or willful misconduct, shall be binding upon the
Borrower and shall not put the LC Issuer or any Lender under any liability to
the Borrower. Nothing in this Section 2.20.7 is intended to limit the right of
the Borrower to make a claim against the LC Issuer for damages as contemplated
by the proviso to the first sentence of Section 2.20.6.
2.20.8. ACTIONS OF LC ISSUER. The LC Issuer shall be entitled to rely, and
shall be fully protected in relying, upon any Facility LC, draft, writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other
document believed by it to be genuine and correct and to have been signed, sent
or made by the proper Person or Persons, and upon advice and statements of legal
counsel, independent accountants and other experts selected by the LC Issuer.
The LC Issuer shall be fully justified in failing or refusing to take any action
under this Agreement unless it shall first have received such advice or
concurrence of the Required Lenders as it reasonably deems appropriate or it
shall first be indemnified to its reasonable satisfaction by the Lenders against
any and all liability and expense which may be incurred by it by reason of
taking or continuing to take any such action. Notwithstanding any other
provision of this Section 2.20, the LC Issuer shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement in
accordance with a request of the Required Lenders, and such request and any
action taken or failure to act pursuant thereto shall be binding upon the
Lenders and any future holders of a participation in any Facility LC.
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2.20.9. INDEMNIFICATION. The Borrower hereby agrees to indemnify and hold
harmless each Lender, the LC Issuer and the Agent, and their respective
directors, officers, agents and employees from and against any, and all claims
and damages, losses, liabilities, costs or expenses which such Lender, the LC
Issuer or the Agent may incur (or which may be claimed against such Lender, the
LC Issuer or the Agent by any Person whatsoever) by reason of or in connection
with the issuance, execution and delivery or transfer of or payment or failure
to pay under any Facility LC or any actual or proposed use of any Facility LC,
including, without limitation, any claims, damages, losses, liabilities, costs
or expenses which the LC Issuer may incur, (i) by reason of or in connection
with the failure of any other Lender to fulfill or comply with its obligations
to the LC Issuer hereunder (but nothing herein contained shall affect any rights
the Borrower may have against any defaulting Lender) or (ii) by reason of or on
account of the LC Issuer issuing any Facility LC which specifies that the term
"Beneficiary" included therein includes any successor by operation of law of the
named Beneficiary, but which Facility LC does not require that any drawing by
any such successor Beneficiary be accompanied by a copy of a legal document,
satisfactory to the LC Issuer, evidencing the appointment of such successor
Beneficiary, provided that the Borrower shall not be required to indemnify any
Lender, the LC Issuer or the Agent for any claims, damages, losses, liabilities,
costs or expenses to the extent, but only to the extent, caused by (x) the
willful misconduct or gross negligence o f the LC Issuer in determining whether
a request presented under any Facility LC complied with the terms of such
Facility LC or (y) the LC Issuer's failure to pay under any Facility LC after
the presentation to it of a request strictly complying with the terms and
conditions of such Facility LC. Nothing in this Section 2.20.9 is intended to
limit the obligations of the Borrower under any other provision of this
Agreement.
2.20.10. LENDERS' INDEMNIFICATION. Each Lender shall, ratably in accordance
with its Pro Rata Share, indemnify the LC Issuer, its affiliates and their
respective directors, officers, agents and employees (to the extent not
reimbursed by the Borrower) against any cost, expense (including reasonable
counsel fees and disbursements), claim, demand, action, loss or liability
(except such as result from such indemnities' gross negligence or willful
misconduct or the LC Issuer's failure to pay under any Facility LC after the
presentation to it of a request strictly complying with the terms and conditions
of the Facility LC) that such indemnities may suffer or incur in connection with
this Section 2.20 or any action taken or omitted by such indemnities hereunder.
2.20.11. FACILITY LC COLLATERAL ACCOUNT. The Borrower agrees that it will,
upon the request of the Agent or the Required Lenders and until the final
expiration date of any Facility LC and thereafter as long as any amount is
payable to the LC Issuer or the Lenders in respect of any Facility LC, maintain
a special collateral account pursuant to arrangements satisfactory to the Agent
(the "Facility LC Collateral Account") at the Agent's office at the address
specified pursuant to Article XIII, in the name of such Borrower but under the
sole dominion and control of the Agent, for the benefit of the Lenders and in
which such Borrower shall have no interest other than as set forth in Section
8.1. The Borrower hereby pledges, assigns and grants to the Agent, on behalf of
and for the ratable benefit of the Lenders and the LC Issuer, a security
interest in all of the Borrower's right, title and interest in and to all funds
which may from time to time be on deposit in the Facility LC Collateral Account
to secure the prompt and complete payment and performance of the Obligations.
The Agent will invest any funds on deposit from time to time in the Facility LC
Collateral Account in certificates of deposit of Bank One having a
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maturity not exceeding 30 days. Nothing in this Section 2.20.11 shall either
obligate the Agent to require the Borrower to deposit any funds in the Facility
LC Collateral Account or limit the right of the Agent to release any funds held
in the Facility LC Collateral Account in each case other than as required by
Section 2.2 or Section 8.1.
2.20.12. RIGHTS AS A LENDER. In its capacity as a Lender, the LC Issuer
shall have the same rights and obligations as any other Lender.
2.20.13. REPLACEMENT OF LENDER. If the Borrower is required pursuant to
Section 3.1, 3.2 or 3.5 to make any additional payment to any Lender or if any
Lender's obligation to make or continue, or to convert Floating Rate Advances
into, Eurodollar Advances shall be suspended pursuant to Section 3.3 (any Lender
so affected an "Affected Lender"), the Borrower may elect, if such amounts
continue to be charged or such suspension is still effective, to replace such
Affected Lender as a Lender party to this Agreement, provided that no Default or
Unmatured Default shall have occurred and be continuing at the time of such
replacement, and provided further that, concurrently with such replacement, (i)
another bank or other entity which is reasonably satisfactory to the Borrower
and the Agent shall agree, as of such date, to purchase for cash the Advances
and other Obligations due to the Affected Lender pursuant to an assignment
substantially in the Form of Exhibit B and to become a Lender for all purposes
under this Agreement and to assume all obligations of the Affected Lender to be
terminated as of such date and to comply with the requirements of Section 12.3
applicable to assignments, and (ii) the Borrower shall pay to such Affected
Lender in same day funds on the day of such replacement (A) all interest, fees
and other amounts then accrued but unpaid to such Affected Lender by the
Borrower hereunder to and including the date of termination, including without
limitation payments due to such Affected Lender under Sections 3.1, 3.2 and 3.5,
and (B) an amount, if any, equal to the payment which would have been due to
such Lender on the day of such replacement under Section 3.4 had the Loans of
such Affected Lender been prepaid on such date rather than sold to the
replacement Lender.
ARTICLE III.
YIELD PROTECTION; TAXES
3.1. YIELD PROTECTION. If, on or after the date of this Agreement, the
adoption of any law or any governmental or quasi-governmental rule, regulation,
policy, guideline or directive (whether or not having the force of law), or any
change in the interpretation or administration thereof by any governmental or
quasi-governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender or
applicable Lending Installation or the LC Issuer with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency:
(i) subjects any Lender or any applicable Lending Installation or the
LC Issuer to any Taxes, or changes the basis of taxation of
payments (other than with respect to Excluded Taxes) to any
Lender or the LC Issuer in respect of its Eurodollar Loans,
Facility LCs or participations therein, or
(ii) imposes or increases or deems applicable any reserve, assessment,
insurance charge, special deposit or similar requirement against
assets of,
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deposits with or for the account of, or credit extended by, any
Lender or any applicable Lending Installation or the LC Issuer
(other than reserves and assessments taken into account in
determining the interest rate applicable to Eurodollar Advances),
or
(iii)imposes any other condition the result of which is to increase
the cost to any Lender or any applicable Lending Installation or
the LC Issuer of making, funding or maintaining its Eurodollar
Loans, or of issuing or participating in Facility LCs, or reduces
any amount receivable by any Lender or any applicable Lending
Installation or the LC Issuer in connection with its Eurodollar
Loans, Facility LCs or participations therein, or requires any
Lender or any applicable Lending Installation or LC Issuer to
make any payment calculated by reference to the amount of
Eurodollar Loans, Facility LCs or participations therein held or
interest or LC Fees received by it, by an amount deemed material
by such Lender or the LC Issuer as the case may be,
and the result of any of the foregoing is to increase the cost to such Lender or
applicable Lending Installation or the LC Issuer, as the case may be, of making
or maintaining its Eurodollar Loans or Commitment or of issuing or participating
in Facility LCs or to reduce the return received by such Lender or applicable
Lending Installation or the LC Issuer, as the case may be, in connection with
such Eurodollar Loans, Commitment or Facility LCs or participations therein,
then, within 15 days of demand by such Lender or the LC Issuer, as the case may
be, the Borrower shall pay such Lender or the LC Issuer, as the case may be,
such additional amount or amounts as will compensate such Lender for such
increased cost or reduction in amount received.
3.2. CHANGES IN CAPITAL ADEQUACY REGULATIONS. If a Lender or the LC Issuer
determines the amount of capital required or expected to be maintained by such
Lender or the LC Issuer, any Lending Installation of such Lender or the LC
Issuer or any corporation controlling such Lender or the LC Issuer is increased
as a result of a Change, then, within 15 days of demand by such Lender or the LC
Issuer, the Borrower shall pay such Lender or the LC Issuer the amount necessary
to compensate for any shortfall in the rate of return on the portion of such
increased capital which such Lender or the LC Issuer determines is attributable
to this Agreement, its Outstanding Credit Exposure or its Commitment to make
Loans and issue or participate in Facility LCs, as the case may be, hereunder
(after taking into account such Lender's or the LC Issuer's policies as to
capital adequacy). "Change" means (i) any change after the date of this
Agreement in the Risk Based Capital Guidelines or (ii) any adoption of or change
in any other law, governmental or quasi governmental rule, regulation, policy,
guideline, interpretation, or directive (whether or not having the force of law)
after the date of this Agreement which affects the amount of capital required or
expected to be maintained by any Lender or the LC Issuer or any Lending
Installation or any corporation controlling any Lender or the LC Issuer. "Risk
Based Capital Guidelines" means (i) the risk based capital guidelines in effect
in the United States on the date of this Agreement, including transition rules,
and (ii) the corresponding capital regulations promulgated by regulatory
authorities outside the United States implementing the July 1988 report of the
Basle Committee on Banking Regulation and Supervisory Practices Entitled
"International Convergence of Capital Measurements and Capital Standards,"
including
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transition rules, and any amendments to such regulations adopted prior to the
date of this Agreement.
3.3. AVAILABILITY OF TYPES OF ADVANCES. If any Lender determines that
maintenance of its Eurodollar Loans at a suitable Lending Installation would
violate any applicable law, rule, regulation, or directive, whether or not
having the force of law, or if the Required Lenders determine that (i) deposits
of a type and maturity appropriate to match fund Eurodollar Advances are not
available or (ii) the interest rate applicable to Eurodollar Advances does not
accurately reflect the cost of making or maintaining Eurodollar Advances, then
the Agent shall suspend the availability of Eurodollar Advances and require any
affected Eurodollar Advances to be repaid or converted to Floating Rate
Advances, subject to the payment of any funding indemnification amounts required
by Section 3.4.
3.4. FUNDING INDEMNIFICATION. If any payment of a Eurodollar Advance occurs
on a date which is not the last day of the applicable Interest Period, whether
because of acceleration, prepayment or otherwise, or a Eurodollar Advance is not
made on the date specified by the Borrower for any reason other than default by
the Lenders, the Borrower will indemnify each Lender for any loss or cost
incurred by it resulting therefrom, including, without limitation, any loss or
cost in liquidating or employing deposits acquired to fund or maintain such
Eurodollar Advance.
3.5. TAXES.
(i) All payments by the Borrower to or for the account of any Lender,
the LC Issuer or the Agent hereunder or under any Note or
Facility LC Application shall be made free and clear of and
without deduction for any and all Taxes. If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum
payable hereunder to any Lender, the LC Issuer or the Agent, (a)
the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable
to additional sums payable under this Section 3.5) such Lender,
the LC Issuer or the Agent (as the case may be) receives an
amount equal to the sum it would have received had no such
deductions been made, (b) the Borrower shall make such
deductions, (c) the Borrower shall pay the full amount deducted
to the relevant authority in accordance with applicable law and
(d) the Borrower shall furnish to the Agent the original copy of
a receipt evidencing payment thereof within 30 days after such
payment is made.
(ii) In addition, the Borrower hereby agrees to pay any present or
future stamp or documentary taxes and any other excise or
property taxes, charges or similar levies which arise from any
payment made hereunder or under any Note or Facility LC
Application or from the execution or delivery of, or otherwise
with respect to, this Agreement or any Note or Facility LC
Application ("Other Taxes").
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(iii)The Borrower hereby agrees to indemnify the Agent, the LC Issuer
and each Lender for the full amount of Taxes or Other Taxes
(including, without limitation, any Taxes or Other Taxes imposed
on amounts payable under this Section 3.5) paid by the Agent, the
LC Issuer or such Lender and any liability (including penalties,
interest and expenses) arising therefrom or with respect thereto.
Payments due under this indemnification shall be made within 30
days of the date the Agent, the LC Issuer or such Lender makes
demand therefore pursuant to Section 3.6.
(iv) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof (each a "Non-U.S. Lender")
agrees that it will, not more than ten Business Days after the
date of this Agreement, (i) deliver to each of the Borrower and
the Agent two duly completed copies of United States Internal
Revenue Service Form W-8BEN or W-8ECI, certifying in either case
that such Lender is entitled to receive Payments under this
Agreement without deduction or withholding of any United States
federal income taxes, and (ii) deliver to each of the Borrower
and the Agent a United States Internal Revenue Form W-8 or W- 9,
as the case may be, and certify that it is entitled to an
exemption from United States backup withholding tax. Each
Non-U.S. Lender further undertakes to deliver to each of the
Borrower and the Agent (x) renewals or additional copies of such
form (or any successor form) on or before the date that such form
expires or becomes obsolete, and (y) after the occurrence of any
event requiring a change in the most recent forms so delivered by
it, such additional forms or amendments thereto as may be
reasonably requested by the Borrower or the Agent. All forms or
amendments described in the preceding sentence shall certify that
such Lender is entitled to receive payments under this Agreement
without deduction or withholding of any United States federal
income taxes, unless an event (including without limitation any
change in treaty, law or regulation) has occurred prior to the
date on which any such delivery would otherwise be required which
renders all such forms inapplicable or which would prevent such
Lender from duly completing and delivering any such form or
amendment with respect to it and such Lender advises the Borrower
and the Agent that it is not capable of receiving payments
without any deduction or withholding of United States federal
income tax.
(v) For any period during which a Non-U.S. Lender has failed to
provide the Borrower with an appropriate form pursuant to clause
(iv), above (unless such failure is due to a change in treaty,
law or regulation, or any change in the interpretation or
administration thereof by any governmental authority, occurring
subsequent to the date on which a form originally was required to
be provided), such Non-U.S. Lender shall not be entitled to
indemnification under this Section 3.5 with respect to Taxes
imposed by the United States; provided that, should a Non- U.S.
Lender which is otherwise exempt from or subject to a reduced
rate of withholding tax become subject to Taxes because of its
failure to deliver a form required
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under clause (iv), above, the Borrower shall take such steps, at
the expense of such Non-U.S. Lender, as such Non- U.S. Lender
shall reasonably request to assist such Non-U.S. Lender to
recover such Taxes.
(vi) Any Lender that is entitled to an exemption from or reduction of
withholding tax with respect to payments under this Agreement or
any Note pursuant to the law of any relevant jurisdiction or any
treaty shall deliver to the Borrower (with a copy to the Agent),
at the time or times prescribed by applicable law, such properly
completed and executed documentation prescribed by applicable law
as will permit such payments to be made without withholding or at
a reduced rate.
(vii)If the U.S. Internal Revenue Service or any other governmental
authority of the United States or any other country or any
political subdivision thereof asserts a claim that the Agent did
not properly withhold tax from amounts paid to or for the account
of any Lender (because the appropriate form was not delivered or
properly completed, because such Lender failed to notify the
Agent of a change in circumstances which rendered its exemption
from withholding ineffective, or for any other reason), such
Lender shall indemnify the Agent fully for all amounts paid,
directly or indirectly, by the Agent as tax, withholding
therefor, or otherwise, including penalties and interest, and
including, taxes imposed by any jurisdiction on amounts payable
to the Agent under this subsection, together with all costs and
expenses related thereto (including attorneys fees and time
charges of attorneys for the Agent, which attorneys may be
employees of the Agent). The obligations of the Lenders under
this Section 3.5(vii) shall survive the payment of the
Obligations and termination of this Agreement.
3.6. LENDER STATEMENTS; SURVIVAL OF INDEMNITY. To the extent reasonably
possible, each Lender shall designate an alternate Lending Installation with
respect to its Eurodollar Loans to reduce any liability of the Borrower to such
Lender under Sections 3.1, 3.2 and 3.5 or to avoid the unavailability of
Eurodollar Advances under Section 3.3, so long as such designation is not, in
the judgment of such Lender, disadvantageous to such Lender. Each Lender shall
deliver a written statement of such Lender to the Borrower (with a copy to the
Agent) as to the amount due, if any, under Section 3.1, 3.2, 3.4 or 3.5. Such
written statement shall set forth in reasonable detail the calculations upon
which such Lender determined such amount and shall be final, conclusive and
binding on the Borrower in the absence of manifest error. Determination of
amounts payable under such Sections in connection with a Eurodollar Loan shall
be calculated as though each Lender funded its Eurodollar Loan through the
purchase of a deposit of the type and maturity corresponding to the deposit used
as a reference in determining the Eurodollar Rate applicable to such Loan,
whether in fact that is the case or not. Unless otherwise provided herein, the
amount specified in the written statement of any Lender shall be payable on
demand after receipt by the Borrower of such written statement. The obligations
of the Borrower under Sections 3.1, 3.2, 3.4 and 3.5 shall survive payment of
the Obligations and termination of this Agreement.
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ARTICLE IV.
CONDITIONS PRECEDENT
4.1. EFFECTIVENESS. This Agreement shall become effective as of the date
hereof (the "Effective Date"). The Lenders shall not be required to make the
initial Advance hereunder unless Borrower has furnished Agent with, except as
otherwise specifically noted,
(i) counterparts of this Agreement duly executed by the Borrower and
the Required Lenders;
(ii) the Guaranty, in form and substance satisfactory to the Agent,
duly executed by each of the Guarantors;
(iii)audited financial statements of the Borrower and its
consolidated Subsidiaries as of December 31, 2002 and for the
fiscal year then ended;
(iv) such other documents as the Agent or any Lender may reasonably
request;
(v) all fees and other amounts due and payable on or prior to the
Effective Date, including, to the extent invoiced, payment or
reimbursement of all expenses required to be paid or reimbursed
by the Borrower hereunder. In addition to items (i) through (v)
inclusive, the Agent shall have received on or before the
Effective Date the following, each in form and substance
satisfactory to the Agent and, unless indicated otherwise, dated
the Effective Date;
(vi) certified copies of request for copies of information on Form
UCC-11, listing all effective financing statements which name as
debtor Borrower and any Loan Party and which are filed in the
offices referred to in paragraph (vii) above, together with
copies of such and the results of searches for any tax Lien and
judgment Lien filed against such Person or its property, which
results, except as otherwise agreed to in writing by the Agent,
shall not show any such Liens and shall be current as of a recent
date not more than 15 days prior to the Effective Date;
(vii)within no later than thirty (30) days after the Effective Date a
copy of the resolutions certified or ratified as of the Effective
Date by an Authorized Officer thereof, authorizing (A) in the
case of the Borrower, the borrowings hereunder and, in the case
of the Borrower and the other Loan Parties, and the transactions
contemplated by the Loan Documents to which such Loan Party is or
will be a party, and (B) the execution, delivery and performance
by such Loan Document to which such Loan Party is or will be a
party and the execution and delivery of the other documents to be
delivered by such Person in connection herewith and therewith;
(viii) a certificate of an Authorized Officer of each Loan Party,
certifying the names and true signatures of the representatives
of such Loan Party is or
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will be a party and the other documents to be executed and
delivered by such Loan Party in connection herewith and
therewith, together with evidence of the incumbency of such
authorized officers;
(ix) a certificate of the appropriate official(s) of the state of
organization and each state of foreign qualification of each Loan
Party certifying as to the subsistence in good standing of such
Loan Party in such states;
(x) a true and complete copy of the charter, certificate of
formation, certificate of limited partnership or other publicly
filed organizational document of each Loan Party certified as of
a recent date not more than 30 days prior to the Effective Date
by an appropriate official of the sate of organization of such
Loan Party which shall set forth the same complete legal name of
such Loan Party as is set forth herein and the organizational
number of such Loan Party, if an organizational number is issued
in such jurisdiction;
(xi) a copy of any and all amendments to the charter and by-laws,
limited liability company agreement, operating agreement,
agreement of limited partnership or other organizational document
of each Loan Party becoming effective after June 28, 2002;
(xii)an opinion of counsel to the Loan Parties, substantially in the
form of Exhibit D;
(xiii) a copy of the most recent unaudited financial statements of the
Borrower and its consolidated subsidiaries, together with a
certificate of an Authorized Officer of the Borrower setting
forth all (A) existing Indebtedness, (B) pending or threatened
litigation or claims and (C) other contingent liabilities of the
Borrower and its Subsidiaries, which, in the case of clauses (B)
and (C) hereof, could reasonably be expected to have a Material
Adverse Effect;
(xiv)a certificate of an Authorized Officer of the Borrower,
certifying the names and true signatures of the persons that are
authorized to provide a Borrowing Notice and all other notices
under this Agreement and the other Loan Documents;
(xv) the Credit Agreement dated as of October 1, 2000, as amended from
time to time, among the Borrower, the Lenders party thereto and
the Agent named therein shall have been terminated, all
indebtedness, liabilities and obligations outstanding thereunder
shall have been paid in full and all liens, if any, granted
thereunder, (however, exclusive of the Security Agreement) shall
have been released;
(xvi)the absence of any Material Adverse Change prior to closing in
primary or secondary loan syndication markets or capital markets
generally that would impair syndication of the Facility.
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4.2. EACH CREDIT EXTENSION. The Lenders shall not (except as otherwise set
forth in Section 2.5.4 with respect to Revolving Loans for the purpose of
repaying Swing Line Loans) be required to make any Credit Extension unless on
the applicable Credit Extension Date:
(i) There exists no Default or Unmatured Default.
(ii) The representations and warranties contained in Article V are
true and correct as of such Credit Extension Date except to the
extent any such representation or warranty is stated to relate
solely to an earlier date, in which case such representation or
warranty shall have been true and correct in all material
respects on and as of such earlier date.
(iii)All legal matters incident to the making of such Credit
Extension shall be satisfactory to the Lenders and their counsel.
Each Borrowing Notice or Swing Line Borrowing Notice, as the case may be,
or request for issuance of a Facility LC with respect to each such Credit
Extension shall constitute a representation and warranty by the Borrower that
the conditions contained in Section 4.2(i) and (ii) have been satisfied.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
5.1. EXISTENCE AND STANDING. Each of the Borrower and its Subsidiaries is a
corporation, partnership (in the case of Subsidiaries only) or limited liability
company duly and properly incorporated or organized, as the case may be, validly
existing and (to the extent such concept applies to such entity) in good
standing under the laws of its jurisdiction of incorporation or organization and
has all requisite authority to conduct its business in each jurisdiction in
which its business is conducted.
5.2. AUTHORIZATION AND VALIDITY. Each Loan Party has the power and
authority and legal right to execute and deliver the Loan Documents to which it
is a party and to perform its obligations thereunder. The execution and delivery
by each Loan Party of the Loan Documents to which it is a party and the
performance of its obligations thereunder have been duly authorized by proper
corporate proceedings, and the Loan Documents to which each Loan Party is a
party constitute legal, valid and binding obligations of such Loan Party
enforceable against such Loan Party in accordance with their terms, except as
enforceability may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally.
5.3. NO CONFLICT; GOVERNMENT CONSENT. Neither the execution and delivery by
the Loan Parties of the Loan Documents, nor the consummation of the transactions
therein contemplated, nor compliance with the provisions thereof will violate
(i) any law, rule, regulation, order, writ, judgment, injunction, decree or
award binding on the Borrower or any of its Subsidiaries or (ii) the Borrower's
or any Subsidiary's articles or certificate of incorporation, partnership
agreement, certificate of partnership, articles or certificate of organization,
by-laws, or operating or other management agreement, as the case may be, or
(iii) the provisions of any
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indenture, instrument or agreement to which the Borrower or any of its
Subsidiaries is a party or is subject, or by which it, or its Property, is
bound, or conflict with or constitute a default thereunder, or result in, or
require, the creation or imposition of any Lien in, of or on the Property of the
Borrower or a Subsidiary pursuant to the terms of any such indenture, instrument
or agreement. No order, consent, adjudication, approval, license, authorization,
or validation of, or filing, recording or registration with, or exemption by, or
other action in respect of any governmental or public body or authority, or any
subdivision thereof, which has not been obtained by the Borrower or any of its
Subsidiaries, is required to be obtained by the Borrower or any of its
Subsidiaries in connection with the execution and delivery of the Loan
Documents, the borrowings under this Agreement, the payment and performance by
the Borrower of the Obligations or the legality, validity, binding effect or
enforceability of any of the Loan Documents.
5.4. FINANCIAL STATEMENTS. The December 31, 2002 and March, 2003
consolidated financial statements of the Borrower and its Subsidiaries
heretofore delivered to the Lenders were prepared in accordance with generally
accepted accounting principles in effect on the respective dates such statements
were prepared and fairly present, in all material respects, the consolidated
financial position of the Borrower and its Subsidiaries at such dates and the
consolidated results of their operations and cash flows for the respective
periods then ended, subject in the case of the March 31, 2003 financial
statements to normal year end adjustments and the absence of notes.
5.5. MATERIAL ADVERSE CHANGE. Since December 31, 2002 there has been no
change in the business, Property, prospects, condition (financial or otherwise)
or results of operations of the Borrower and its Subsidiaries which could
reasonably be expected to have a Material Adverse Effect.
5.6. TAXES. The Borrower and its Subsidiaries have filed all United States
federal tax returns and all other tax returns which are required to be filed and
have paid all taxes due pursuant to said returns or pursuant to any assessment
received by the Borrower or any of its Subsidiaries, except such taxes, if any,
as are being contested in good faith and as to which adequate reserves have been
provided in accordance with Agreement Accounting Principles. The United States
income tax returns of the Borrower and its Subsidiaries have been audited by the
Internal Revenue Service through the fiscal year ended December 31, 1996. No tax
liens have been filed and no claims are being asserted with respect to any such
taxes. The charges, accruals and reserves on the books of the Borrower and its
Subsidiaries in respect of any taxes or other governmental charges are adequate.
5.7. LITIGATION AND CONTINGENT OBLIGATIONS. Except as set forth on Schedule
5.7, there is no litigation, arbitration, governmental investigation, proceeding
or inquiry pending or, to the knowledge of any of their officers, threatened
against or affecting the Borrower or any of its Subsidiaries which could
reasonably be expected to have a Material Adverse Effect or which seeks to
prevent, enjoin or delay the making of any Credit Extensions. Other than any
liability incident to any litigation, arbitration or proceeding which (i) could
not reasonably be expected to have a Material Adverse Effect or (ii) is set
forth on Schedule 5.7, the Borrower has no material contingent obligations not
provided for or disclosed in the financial statements referred to In Section
5.4.
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5.8. SUBSIDIARIES. Amended Schedule 5.8 contains an accurate list of all
Subsidiaries of the Borrower as of the date of this Agreement, setting forth
their respective jurisdictions of organization and the percentage of their
respective capital stock or other ownership interests owned by the Borrower or
other Subsidiaries and identifying those Subsidiaries that are Material
Subsidiaries. All of the issued and outstanding shares of capital stock or other
ownership interests of such Subsidiaries have been (to the extent such concepts
are relevant with respect to such ownership interests) duly authorized and
issued and are fully paid and non-assessable.
5.9. ERISA. The Borrower, its Subsidiaries, their ERISA Affiliates and
their respective Plans are in compliance in all material respects with those
provisions of ERISA and of the Code which are applicable with respect to any
Plan. No Prohibited Transaction and no Reportable Event has occurred with
respect to any such Plan. None of the Borrower, any of its Subsidiaries or any
of their EFUSA Affiliates is an employer with respect to any Multiemployer Plan.
The Borrower, its Subsidiaries and their ERISA Affiliates have met all of the
minimum funding requirements under Section 302 of ERISA and Section 412 of the
Code with respect to each of their respective Plans, if any, and have not
incurred any liability to the PBGC or any Plan. The execution, delivery and
performance of this Agreement and the other Loan Documents do not constitute a
Prohibited Transaction. There are no unfunded benefit liabilities, determined in
accordance with Section 4001(a)(18) of ERISA, with respect to any Plan of the
Borrower, its Subsidiaries or their ERISA Affiliates in excess of $5,000,000 in
the aggregate for all such Plans.
5.10. ACCURACY OF INFORMATION. No information, exhibit or report furnished
by the Borrower or any of its Subsidiaries to the Agent or to any Lender in
connection with the negotiation of, or compliance with, the Loan Documents
contained any material misstatement of fact or omitted to state a material fact
or any fact necessary to make the statements contained therein not misleading.
5.11. REGULATION U. Margin stock (as defined in Regulation U) constitutes
less than 25% of the value of those assets of the Borrower and its Subsidiaries
which are subject to any limitation on sale, pledge, or other restriction
hereunder.
5.12. MATERIAL AGREEMENTS. Neither the Borrower nor any Subsidiary is a
party to any agreement or instrument or subject to any charter or other
corporate restriction which could reasonably be expected to have a Material
Adverse Effect. Neither the Borrower nor any Subsidiary is in default in the
performance, observance or fulfillment of any, of the obligations, covenants or
conditions contained in any agreement to which it is a party, which default
could reasonably be expected to have a Material Adverse Effect.
5.13. COMPLIANCE WITH LAWS. The Borrower and its Subsidiaries have complied
with all applicable statutes, rules, regulations, orders and restrictions of any
domestic or foreign government or any instrumentality or agency thereof having
jurisdiction over the conduct of their respective businesses or the ownership of
their respective Property, except for any failure to comply with any of the
foregoing, which could not reasonably be expected to have a Material Adverse
Effect.
5.14. OWNERSHIP OF PROPERTIES. Except as set forth on Schedule 5.14, on the
date of this Agreement, the Borrower and its Subsidiaries will have good title,
free of all Liens other than
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those permitted by Section 6.15, to all of the Property and assets reflected in
the Borrower's most recent consolidated financial statements provided to the
Agent as owned by the Borrower and its Subsidiaries.
5.15. PLAN ASSETS; PROHIBITED TRANSACTIONS. The Borrower is not an entity
deemed to hold "plan assets" within the meaning of 29 C.F.R. ss. 2510.3 101 of
an employee benefit plan (as defined in Section 3(3) of ERISA) which is subject
to Title I of ERISA or any plan (within the meaning of Section 4975 of the
Code), and neither the execution of this Agreement nor the making of Credit
Extensions hereunder gives rise to a prohibited transaction (within the meaning
of Section 406 of ERISA or Section 4975 of the Code) with respect to "plan
assets" of the Borrower and its Subsidiaries.
5.16. ENVIRONMENTAL MATTERS. In the ordinary course of its business, the
officers of the Borrower consider the effect of Environmental Laws on the
business of the Borrower and its Subsidiaries, in the course of which they
identify and evaluate potential risks and liabilities accruing to the Borrower
due to Environmental Laws. On the basis of this consideration, the Borrower has
concluded that Environmental Laws cannot reasonably be expected to have a
Material Adverse Effect. Except as set forth on Schedule 5.16, neither the
Borrower nor any Subsidiary has received any notice to the effect that its
operations are not in material compliance with any of the requirements of
applicable Environmental Laws or are the subject of any federal or state
investigation evaluating whether any remedial action is needed to respond to a
release of any toxic or hazardous waste or substance into the environment, which
non-compliance or remedial action could reasonably be expected to have a
Material Adverse Effect.
5.17. INVESTMENT COMPANY ACT. Neither the Borrower nor any Subsidiary is an
"investment company" or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended.
5.18. PUBLIC UTILITY HOLDING COMPANY ACT. Neither the Borrower nor any
Subsidiary is a "holding company" or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
5.19. INSURANCE. The Property of the Borrower and its Subsidiaries is
insured with financially sound and reputable insurance companies not Affiliates
of the Borrower, in such amounts, with such deductibles and covering such risks
as are customarily carried by companies engaged in similar business and owning
similar properties.
5.20. SOLVENCY; NO BANKRUPTCY FILING.
(i) Immediately after the consummation of the transactions to occur
on the date hereof and immediately following the making of each
Loan, if any, made on the date hereof and after giving effect to
the application of the proceeds of such Loans, (a) the fair value
of the assets of the Borrower and its Subsidiaries on a
consolidated basis, at a fair valuation, will exceed the debts
and liabilities, subordinated, contingent or otherwise, of the
Borrower and its Subsidiaries on a consolidated basis; (b) the
present fair
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saleable value of the Property of the Borrower and its
Subsidiaries on a consolidated basis will be greater than the
amount that will be required to pay the probable liability of the
Borrower and its Subsidiaries on a consolidated basis on their
debts and other liabilities, subordinated, contingent or
otherwise, as such debts and other liabilities become absolute
and matured; (c) the Borrower and its Subsidiaries on a
consolidated basis will be able to pay their debts and
liabilities, subordinated, contingent or otherwise, as such debts
and liabilities become absolute and matured; and (d) the Borrower
and its Subsidiaries on a consolidated basis will not have
unreasonably small capital with which to conduct the businesses
in which they are engaged as such businesses are now conducted
and are proposed to be conducted after the date hereof.
(ii) The Borrower does not intend to, or to permit any of its
Subsidiaries to, and does not believe that it or any of its
Subsidiaries will, incur debts beyond its ability to pay such
debts as they mature, taking into account the timing of and
amounts of cash to be payable on or in respect of its
Indebtedness or the Indebtedness of any such Subsidiary.
ARTICLE VI.
COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.1. FINANCIAL REPORTING. The Borrower will maintain, for itself and each
Subsidiary, a system of accounting established and administered in accordance
with generally accepted accounting principles, and furnish to the Lenders:
(i) Within 90 days after the close of each of its fiscal years, an
unqualified (except for qualifications relating to changes in
accounting principles or practices reflecting changes in
generally accepted accounting principles and required or approved
by the Borrower's independent certified public accountants) audit
report certified by independent certified public accountants
acceptable to the Lenders, prepared in accordance with Agreement
Accounting Principles on a consolidated basis for itself and its
Subsidiaries, including a balance sheet as of the end of such
period, related statements of income, shareholders' equity and
cash flows, accompanied by (a) any management letter prepared by
said accountants and (b) a certificate of said accountants that,
in the course of their examination necessary for their
certification of the foregoing, they have obtained no knowledge
of any Default or Unmatured Default, or if, in the opinion of
such accountants, any Default or Unmatured Default shall exist,
stating the nature and status thereof.
(ii) Within 45 days after the close of the first three quarterly
periods of each of its fiscal years, for itself and its
Subsidiaries, a consolidated unaudited
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balance sheet as at the close of each such period and
consolidated statements of income and cash flows for the period
from the beginning of such fiscal year to the end of such
quarter, all certified by its chief financial officer, chief
accounting officer or treasurer.
(iii)Together with the financial statements required under Sections
6.1(i) and (ii), a compliance certificate in substantially the
form of Exhibit A and with schedules and attachments satisfactory
in form to the Agent, signed by its chief financial officer,
chief accounting officer or treasurer, showing the calculations
necessary to determine compliance with this Agreement and stating
that no Default or Unmatured Default exists, or if any Default or
Unmatured Default exists, stating the nature and status thereof.
(iv) Within 270 days after the close of each fiscal year, a statement
of the Unfunded Liabilities of each Single Employer Plan,
certified as correct by an actuary enrolled under ERISA.
(v) As soon as possible and in any event within 10 days after the
Borrower knows that any Reportable Event has occurred with
respect to any Plan, a statement, signed by the chief financial
officer, chief accounting officer or treasurer of the Borrower,
describing said Reportable Event and the action which the
Borrower proposes to take with respect thereto.
(vi) As soon as possible and in any event within 10 days after receipt
by the Borrower, a copy of (a) any notice or claim to the effect
that the Borrower or any of its Subsidiaries is or may be liable
to any Person as a result of the release by the Borrower, any of
its Subsidiaries, or any other Person of any toxic or hazardous
waste or substance into the environment, and (b) any notice
alleging any violation of any federal, state or local
environmental, health or safety law or regulation by the Borrower
or any of its Subsidiaries, which, in either case, could
reasonably be expected to have a Material Adverse Effect.
(vii)Promptly upon the furnishing thereof to the shareholders of the
Borrower, copies of all financial statements, reports and proxy
statements so furnished.
(viii) Promptly upon the filing thereof, copies of all registration
statements and annual, quarterly, monthly or other regular
reports which the Borrower or any of its Subsidiaries files with
the Securities and Exchange Commission.
(ix) Such other information (including non-financial information) as
the Agent or any Lender may from time to time reasonably request.
If any information which is required to be furnished to the Lender under
this Section 6.1 is required by law or regulation to be filed with a government
body or an earlier date, then the information required hereunder shall be
furnished to Lenders at such earlier date.
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6.2. USE OF PROCEEDS. The Borrower will, and will cause each Subsidiary to,
use the proceeds of the Credit Extensions for working capital and other general
corporate purposes, provided, however, that proceeds of the Credit Extensions
may also be used for Permitted Acquisitions or other Investments permitted by
Section 6.14.
6.3. NOTICE OF DEFAULT. The Borrower will, and will cause each Subsidiary
to, give prompt notice in writing to the Lenders of the occurrence of any
Default or Unmatured Default and of any other development, financial or
otherwise, which could reasonably be expected to have a Material Adverse Effect.
6.4. CONDUCT OF BUSINESS. The Borrower will, and will cause each Subsidiary
to, carry on and conduct its business in substantially the same manner and only
in substantially the same fields of enterprise as it is presently conducted and,
except as otherwise permitted by Section 6.12, do all things necessary to remain
duly incorporated or organized, validly existing and (to the extent such concept
applies to such entity) in good standing as a domestic corporation, partnership
or limited liability company in its jurisdiction of incorporation or
organization, as the case may be, and maintain all requisite authority to
conduct its business in each jurisdiction in which its business is conducted,
except to the extent that a failure to do so could not reasonably be expected to
have a Material Adverse Effect.
6.5. TAXES. The Borrower will, and will cause each Subsidiary to, file on a
timely basis, including allowable extensions of time to file, complete and
correct United States federal and applicable foreign, state and local tax
returns required by law and pay when due all taxes, assessments and governmental
charges and levies upon it or its income, profits or Property, except those
which are being contested in good faith by, appropriate proceedings and with
respect to which adequate reserves have been set aside in accordance with
Agreement Accounting Principles.
6.6. INSURANCE. The Borrower will, and will cause each Subsidiary to,
maintain with financially sound and reputable insurance companies insurance on
all their Property in such amounts and covering such risks as is consistent with
sound business practice, and the Borrower will furnish to any Lender upon
request full information as to the insurance carried.
6.7. COMPLIANCE WITH LAWS. The Borrower will, and will cause each
Subsidiary to, comply in all material respects with all laws, rules,
regulations, orders, writs, judgments, injunctions, decrees or awards to which
it may be subject including, without limitation, all Environmental Laws.
6.8. MAINTENANCE OF PROPERTIES. The Borrower will, and will cause each
Subsidiary to, do all things necessary to maintain, preserve, protect and keep
its Property in good repair, working order and condition, and make all necessary
and proper repairs, renewals and replacements so that its business carried on in
connection therewith may be properly conducted at all times.
6.9. INSPECTION. The Borrower will, and will cause each Subsidiary to,
permit the Agent and the Lenders, by their respective representatives and
agents, to inspect any of the Property, books and financial records of the
Borrower and each Subsidiary, to examine and make
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copies of the books of accounts and other financial records of the Borrower and
each Subsidiary, and to discuss the affairs, finances and accounts of the
Borrower and each Subsidiary with, and to be advised as to the same by, their
respective officers at such reasonable times and intervals as the Agent or any
Lender may designate.
6.10. DIVIDENDS. The Borrower will not, nor will it permit any Subsidiary
to, declare or pay any dividends or make any distributions on its capital stock
(other than dividends payable in its own capital stock) or redeem, repurchase or
otherwise acquire or retire any of its capital stock at any time outstanding,
unless at the time thereof no Default or Unmatured Default has occurred and is
continuing or would result therefrom, except that any Subsidiary may declare and
pay dividends or make distributions to the Borrower or to another Subsidiary of
the Borrower.
6.11. INDEBTEDNESS. The Borrower will not, nor will it permit any
Subsidiary to, create, incur or suffer to exist any Indebtedness, except:
(i) The Loans and the Reimbursement Obligations.
(ii) Indebtedness existing on the date hereof and described on
Schedule 6.11.
(iii)Indebtedness owed by COA Finance to the Borrower and
Indebtedness owed by any other Subsidiary to COA Finance,
provided that Indebtedness owed by any Guarantor to COA Finance
shall be subordinated to the payment of the obligations of such
Guarantor pursuant to the Guaranty on terms satisfactory to the
Agent in form and substance.
(iv) Indebtedness owed to the Borrower by any Guarantor.
(v) Off-Balance Sheet Liabilities other than Rate Management
Transactions permitted or required under the terms of this
Agreement and guaranties of Indebtedness of Persons other than
the Borrower and its Subsidiaries, in each case incurred after
receipt by the Lenders of the financial statements of the
Borrower and its Subsidiaries for the three month period ending
March 31, 2003 pursuant to Section 6.1(ii), provided, in the case
of any, such Off-Balance Sheet Liability or guaranty incurred
after March 31, 2003 calculated on a pro forma basis as if such
Off-Balance Sheet Liability or guaranty had been incurred on the
last day of such four fiscal quarter period, as applicable, was
not greater than 2.0 to 1.
6.12. MERGER. The Borrower will not, nor will it permit any Subsidiary to,
merge or consolidate with or into any other Person, except that a Subsidiary may
merge (i) into the Borrower or a Wholly Owned Subsidiary or (ii) in connection
with a Permitted Acquisition.
6.13. SALE OF ASSETS. The Borrower will not, nor will it permit any
Subsidiary to, lease, sell or otherwise dispose of its Property to any other
Person, except:
(i) Sales of inventory and obsolete or excess assets in the ordinary
course of business.
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(ii) Leases, sales or other dispositions of its Property, other than
notes receivable and accounts receivable, provided that (1) the
aggregate value of the Property sold in any calendar year does
not exceed 5% of all Property of the Borrower or Subsidiary, as
applicable, or (2) the aggregate net income derived from Property
sold in any calendar year does not exceed 5% of the net income of
the Borrower or Subsidiary, as applicable.
(iii)Leases, sales or other dispositions of Property described in
Section 6.14(iii) or in Schedule 6.13.
(iv) Sales of marketable securities and real estate being held for
resale.
6.14. INVESTMENTS AND ACQUISITIONS. The Borrower will not, nor will it
permit any Subsidiary to, make or suffer to exist any Investments (including
without limitation, loans and advances to, and other Investments in,
Subsidiaries), or commitments therefore, or to create any Subsidiary or to
become or remain a partner in any partnership or joint venture, or to make any
Acquisition, except:
(i) Cash Equivalent Investments.
(ii) Existing Investments in Subsidiaries and other Investments in
existence on the date hereof and described in Schedule 6.14.
(iii)Investments in corporate preferred stock rated A or better by
S&P or A2 or better by Xxxxx'x at the time of investment therein,
not exceeding $25,000,000 in the aggregate at any time, including
any such Investments described in Schedule 6.14.
(iv) Investments in any Guarantor.
(v) Permitted Acquisitions and other Investments in joint ventures or
minority interests in other Persons, provided that not less than
ten days prior to the consummation of any Permitted Acquisition,
the Borrower shall have delivered to the Agent, in form and
substance reasonably satisfactory to the Agent, a pro forma
consolidated balance sheet, income statement and cash flow
statement of the Borrower and its Subsidiaries (the "Acquisition
Pro Forma"), based on the Borrower's most recent financial
statements delivered pursuant to Section 6.1(i) or (ii), which
shall be complete and shall fairly present, in all material
respects, the financial position, results of operations and cash
flows of the Borrower and its Subsidiaries in accordance with
Agreement Accounting Principles, but taking into account such
Permitted Acquisition, and such Acquisition Pro Forma shall
reflect that, on a pro forma basis, the Borrower would have been
in compliance with the financial covenants set forth in Section
6.18 for the four fiscal quarter period (the "Pro Forma Period")
reflected in the compliance certificate most recently delivered
to the Agent pursuant to Section 6.1(iii) prior to the
consummation of such Permitted Acquisition (giving effect to such
Permitted Acquisition as if made on the first day of
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such period). Cash used by the Borrower and its Subsidiaries as
part or all of the Purchase Price for any Permitted Acquisition
or other Investment pursuant to this Section 6.14(v) shall not
exceed $30,000,000 in the aggregate on a cumulative basis for all
such Investments. All Indebtedness incurred by the Borrower and
its Subsidiaries as part or all of the Purchase Price for any
such Investment must comply with Section 6.11.
(vi) Investments consisting of Indebtedness permitted by Section 6.11
(iii).
6.15. LIENS. The Borrower will not, nor will it permit any Subsidiary to,
create, incur, or suffer to exist any Lien in, of or on the Property of the
Borrower or any of its Subsidiaries, except:
(i) Liens for taxes, assessments or governmental charges or levies on
its Property if the same shall not at the time be delinquent or
thereafter can be paid without penalty, or are being contested in
good faith and by appropriate proceedings and for which adequate
reserves in accordance with Agreement Accounting Principles shall
have been set aside on its books.
(ii) Liens imposed by law, such as carriers', warehousemen's and
mechanics' liens and other similar liens arising in the ordinary
course of business which secure payment of obligations not more
than 60 days past due or which are being contested in good faith
by appropriate proceedings and for which adequate reserves in
accordance with Agreement Accounting Principles shall have been
set aside on its books.
(iii)Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions, or
other social security or retirement benefits, or similar
legislation.
(iv) Utility easements, building restrictions and such other
encumbrances or charges against real property as are of a nature
generally existing with respect to properties of a similar
character and which do not in any material way affect the
marketability of the same or interfere with the use thereof in
the business of the Borrower or its Subsidiaries.
(v) Liens existing on the date hereof and described on Schedule 6.15.
(vi) Liens securing Indebtedness permitted by Section 6.11 (vi).
(vii)Liens granted pursuant to any Collateral Document to secure the
Obligations or the obligations of the Guarantors under the
Guaranty.
6.16. AFFILIATES. The Borrower will not, and will not permit any Subsidiary
to, enter into any transaction (including, without limitation, the purchase or
sale of any Property or service) with, or make any payment or transfer to, any
Affiliate except in the ordinary course of business and pursuant to the
reasonable requirements of the Borrower's or such Subsidiary's
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business and upon fair and reasonable terms no less favorable to the Borrower or
such Subsidiary than the Borrower or such Subsidiary would obtain in a
comparable arms-length transaction.
6.17. GUARANTORS; PLEDGE OF STOCK OF FOREIGN SUBSIDIARIES.
(a) GUARANTORS. The Borrower shall cause each Material Subsidiary
that is a Domestic Subsidiary and each Domestic Subsidiary acquired
pursuant to a Permitted Acquisition, within ten days after such
Domestic Subsidiary becomes a Material Subsidiary or is so acquired,
to become a Guarantor by delivering to the Agent a duly executed
Guaranty, together with such supporting documentation, including
authorizing resolutions and opinions of counsel and such documents as
the Agent may reasonably request and in form and substance reasonably
satisfactory to the Agent.
(b) PLEDGE OF STOCK. At any time prior to the Facility
Termination Date upon Agent's request, in its sole discretion, the
--------------- Borrower shall pledge, or cause one or more of its
Domestic Subsidiaries to pledge, to the Agent, for the ratable benefit
of the Lenders, 65% of the capital stock or other equity interests
held by the Borrower and its Domestic Subsidiaries of each Foreign
Subsidiary that is a Material Subsidiary or is acquired pursuant to a
Permitted Acquisition within ten days after such Foreign Subsidiary
becomes a Material Subsidiary or is so acquired, pursuant to one or
more pledge agreements (each a "Pledge Agreement"), in each case
together with supporting documentation, including authorizing
resolutions and opinions of counsel (including counsel from the
jurisdiction of organization of such Foreign Subsidiary), as the Agent
may reasonably request, all in form and substance reasonably
satisfactory to the Agent.
6.18. FINANCIAL COVENANTS.
6.18.1. FIXED CHARGE COVERAGE RATIO. The Borrower will not permit the Fixed
Charge Coverage Ratio, determined as of June 30, 2003 for the prior four fiscal
quarters, and as of the end of each of its fiscal quarters thereafter for the
then most-recently ended four fiscal quarter period to be less than 1.25 to 1.0.
6.18.2. LEVERAGE RATIO. The Borrower will not permit the ratio, determined
as of June 30, 2003 of (i) Consolidated Total Debt to (ii) Consolidated EBITDA
for the then most recently ended three fiscal quarter period to be greater than
2.0 to 1.0.
6.18.3. MINIMUM NET WORTH. The Borrower will at all times maintain
Consolidated Net Worth of not less than the sum of (i) $185,000,000 plus (ii)
50% of Consolidated Net Income earned in each fiscal quarter beginning with the
quarter ending June 30, 2003 (without deduction for losses) plus (iii) the
amount of any addition to the consolidated shareholders' equity of the Borrower
and its Subsidiaries at any time resulting from the issuance or sale of any
capital stock or other equity interests by the Borrower after the date of this
Agreement.
6.18.4. CURRENT RATIO. The Borrower will not permit the Current Ratio at
any time to be less than 1.5 to 1.0.
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6.19. BANK ACCOUNTS. The Borrower will at all times maintain its primary
concentration and disbursement accounts with a Lender.
6.20. COA FINANCE. The Borrower will not permit COA Finance to have any
material liabilities other than Indebtedness owed to the Borrower or to own any
material Property other than Investments consisting of loans to other
Subsidiaries of the Borrower and Cash Equivalent Investments, provided that Cash
Equivalent Investments held by COA Finance shall not exceed $500,000 in the
aggregate at any time.
6.21. PREPAYMENT OF OTHER DEBT. Except for the Obligations as permitted in
this Agreement, Borrower will not, and will not permit any of its Subsidiaries,
to make any voluntary or optional payment or prepayment or redemption,
defeasance, sinking fund payment or other acquisition for value of any of its or
its Subsidiaries' Indebtedness (including, without limitation, by way of
depositing money or securities with the trustee therefor before the date
required for the purpose of paying any portion of such Indebtedness when due),
or refund, refinance, replace or exchange any other Indebtedness for any such
Indebtedness or make any payment or prepayment, redemption, defeasance, sinking
fund payment or repurchase of any outstanding Indebtedness as a result of any
asset sale, change of control, issuance and sale of debt or equity securities or
similar event, or giving any notice with respect to any of the foregoing.
6.22. CERTAIN AGREEMENTS. Borrower will not, and will not permit any of its
Subsidiaries to, agree to any amendment or other change to or waiver of any of
its rights under any material contract if the effect thereof (A) would be
adverse to the rights or interests of the Agent or any Lender, (B) would impair
any Loan Party's ability to conduct any aspect of its business or perform or
satisfy any representation, warranty or covenant contained in this Agreement or
any other Loan Document, or (C) would adversely affect the financial condition
of the Borrower or any Subsidiary.
ARTICLE VII.
DEFAULTS
The occurrence of any one or more of the following events shall constitute
a Default:
Any representation or warranty made or deemed made by or on behalf of the
Borrower or any of its Subsidiaries to the Lenders or the Agent under or in
connection with this Agreement, any Credit Extension, or any certificate or
information delivered in connection with this Agreement or any other Loan
Document shall be materially false on the date as of which made.
Nonpayment of principal of any Loan when due, nonpayment of any
Reimbursement Obligation within one Business Day after the same becomes due, or
nonpayment of interest upon any Loan or of any Facility Fee, LC Fee or other
obligations under any of the Loan Documents within five days after the same
becomes due.
The breach by the Borrower of any of the terms or provisions of Sections
6.2, 6.3, 6.9, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, 6.17, 6.18, 6.19 or
6.20; or the breach by the Borrower of any of the terms or provisions of Section
6.1 which is not remedied within five Business Days after written notice from
the Agent or any Lender.
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The breach by the Borrower (other than a breach which constitutes a Default
under another Section of this Article VII) of any of the terms or provisions of
this Agreement or any other Loan Document which is not remedied within 30 days
after written notice from the Agent or any Lender.
Failure of the Borrower or any of its Subsidiaries to pay when due any
Indebtedness aggregating in excess of $5,000,000 ("Material Indebtedness"); or
the default by the Borrower or any of its Subsidiaries in the performance
(beyond the applicable grace period with respect thereto, if any) of any term,
provision or condition contained in any agreement under which any such Material
Indebtedness was created or is governed, or any other event shall occur or
condition exist, the effect of which default or event is to cause, or to permit
the holder or holders of such Material Indebtedness to cause, such Material
Indebtedness to become due prior to its stated maturity; or any Material
Indebtedness of the Borrower or any of its Subsidiaries shall be declared to be
due and payable or required to be prepaid or repurchased (other than by a
regularly scheduled payment) prior to the stated maturity thereof, or the
Borrower or any of its Subsidiaries shall not pay, or admit in writing its
inability to pay, its debts generally as they become due.
The Borrower or any of its Subsidiaries shall (i) have an order for relief
entered with respect to it under the Federal bankruptcy laws as now or hereafter
in effect, (ii) make an assignment for the benefit of creditors, (iii) apply
for, seek, consent to, or acquiesce in, the appointment of a receiver,
custodian, trustee, examiner, liquidator or similar official for it or any
Substantial Portion of its Property, (iv) institute any proceeding seeking an
order for relief under the Federal bankruptcy laws as now or hereafter in effect
or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution,
winding up, liquidation, reorganization, arrangement, adjustment or composition
of it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors or fail to file an answer or other pleading
denying the material allegations of any such proceeding filed against it, (v)
take any corporate or partnership action to authorize or effect any of the
foregoing actions set forth in this Section 7.6 or (vi) fall to contest in good
faith any appointment or proceeding described in Section 7.7.
Without the application, approval or consent of the Borrower or any of its
Subsidiaries, a receiver, trustee, examiner, liquidator or similar official
shall be appointed for the Borrower or any of its Subsidiaries or any
Substantial Portion of its Property, or a proceeding described in Section
7.6(iv) shall be instituted against the Borrower or any of its Subsidiaries and
such appointment continues undischarged or such proceeding continues undismissed
or unstayed for a period of 30 consecutive days.
Any court, government or governmental agency shall condemn, seize or
otherwise appropriate, or take custody or control of, all or any portion of the
Property of the Borrower and its Subsidiaries which, when taken together with
all other Property of the Borrower and its Subsidiaries so condemned, seized,
appropriated, or taken custody or control of, during the twelve-month period
ending with the month in which any such action occurs, constitutes a Substantial
Portion.
The Borrower or any of its Subsidiaries shall fail within 30 days to pay,
bond or otherwise discharge one or more (i) judgments or orders for the payment
of money (except to the
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extent covered by insurance as to which the insurer has not disclaimed coverage)
in excess of $5,000,000 (or the equivalent thereof in currencies other than U.S.
Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect, which judgment(s), in any such case, is/are not stayed
on appeal or otherwise being appropriately contested in good faith.
A Reportable Event shall occur that results in or could result in liability
of the Borrower, any Subsidiary of the Borrower or their ERISA Affiliates to the
PBGC or to any Plan and such Reportable Event is not corrected within ten (10)
days after the occurrence thereof, or any Reportable Event shall occur which
could constitute grounds for termination of any Plan of the Borrower, its
Subsidiaries or their ERISA Affiliates by the PBGC or for the appointment by the
appropriate United States District Court of a trustee to administer any such
Plan and such Reportable Event is not corrected within ten (10) days after the
occurrence thereof; or the Borrower, any Subsidiary of the Borrower or any of
their ERISA Affiliates shall file a notice of intent to terminate a Plan or
other proceedings shall be instituted to terminate a Plan; or the Borrower, any
Subsidiary of the Borrower or any of their ERISA Affiliates shall fail to pay
when due any liability to the PBGC or to a Plan; or the PBGC shall have
instituted proceedings to terminate, or to cause a trustee to be appointed to
administer, any Plan of the Borrower, its Subsidiaries or their ERISA
Affiliates; or any Person shall engage in a Prohibited Transaction with respect
to any Plan which results in or could result in liability of the Borrower, any
Subsidiary of the Borrower, any of their ERISA Affiliates, any Plan of the
Borrower, its Subsidiaries or their ERISA Affiliates or fiduciary of any such
Plan; or the Borrower, any Subsidiary of the Borrower or any of their ERISA
Affiliates shall fail to make a required installment or other payment to any
Plan within the meaning of Section 302(f) of ERISA or Section 412(n) of the
Code, which failure results in or could result in liability of the Borrower, any
Subsidiary of the Borrower or any of their ERISA Affiliates to the PBGC or any
Plan; or the Borrower, any of its Subsidiaries or any of their ERISA Affiliates
shall withdraw from a Plan during a plan year in which it was a "substantial
employer" as defined in Section 4001(a)(2) of ERISA; or the Borrower, any of its
Subsidiaries or any of their ERISA Affiliates shall become an employer with
respect to any Multiemployer Plan without the prior written consent of the
Required Lenders.
The Borrower or any of its Subsidiaries shall (i) be the subject of any
proceeding or investigation pertaining to the release by the Borrower, any of
its Subsidiaries or any other Person of any toxic or hazardous waste or
substance into the environment, or (ii) violate any Environmental Law, which, in
the case of an event described in clause (i) or clause (ii), could reasonably be
expected to have a Material Adverse Effect and is not remedied within 30 days.
Any Change in Control shall occur.
The Guaranty shall fail to remain in full force or effect as to any
Guarantor or any action shall be taken to discontinue or to assert the
invalidity or unenforceability of the Guaranty, or any Guarantor shall fail to
comply with any of the terms or provisions of the Guaranty, or any Guarantor
shall deny that it has any further liability under the Guaranty, or shall give
notice to such effect.
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Any Collateral Document shall for any reason fail to create a valid and
perfected first priority security interest in any collateral purported to be
covered thereby, except as permitted by the terms of any Collateral Document, or
any Collateral Document shall fall to remain in full force or effect or any
action shall be taken to discontinue or to assert the invalidity or
unenforceability of any Collateral Document.
Nonpayment by the Borrower or any Subsidiary of any Rate Management
Obligation when due or the breach by the Borrower or any Subsidiary of any term,
provision or condition contained in any Rate Management Transaction or any
transaction of the type described in the definition of "Rate Management
Transactions," whether or not any Lender or Affiliate of a Lender is a party
thereto.
Borrower or any other Loan Party fails to deliver to Agent, as of the
deadline specified therein, the items stated in Section 4.1(vii).
ARTICLE VIII.
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. ACCELERATION; FACILITY LC COLLATERAL ACCOUNT.
(i) If any Default described in Section 7.6 or 7.7 occurs with
respect to the Borrower, the obligations of the Lenders to make
Loans hereunder and the obligation and power of the LC Issuer to
issue Facility LCs shall automatically terminate and the
Obligations shall immediately become due and payable without any
election or action on the part of the Agent, the LC Issuer or any
Lender and the Borrower will be and become thereby
unconditionally obligated, without any further notice, act or
demand, to pay to the Agent an amount in immediately available
funds, which funds shall be held in the Facility LC Collateral
Account, equal to the difference of (x) the amount of LC
Obligations at such time, less (y) the amount on deposit in the
Facility LC Collateral Account at such time which is free and
clear of all rights and claims of third parties and has not been
applied against the Obligations (such difference, the "Collateral
Shortfall Amount"). If any other Default occurs, the Required
Lenders (or the Agent with the consent of the Required Lenders)
may (a) terminate or suspend the obligations of the Lenders to
make Loans hereunder and the obligation and power of the LC
Issuer to issue Facility LCs, or declare the Obligations to be
due and payable, or both, whereupon the Obligations shall become
immediately due and payable, without presentment, demand, protest
or notice of any kind, all of which the Borrower hereby expressly
waives, and (b) upon notice to the Borrower and in addition to
the continuing right to demand payment of all amounts payable
under this Agreement, make demand on the Borrower to pay, and the
Borrower will, forthwith upon such demand and without any further
notice or act, pay to the Agent the Collateral Shortfall Amount,
which funds shall be deposited in the Facility LC Collateral
Account.
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(ii) If at any time while any Default is continuing, the Agent
determines that the Collateral Shortfall Amount at such time is
greater than zero, the Agent may make demand on the Borrower to
pay, and the Borrower will, forthwith upon such demand and
without any further notice or act, pay to the Agent the
Collateral Shortfall Amount, which funds shall be deposited in
the Facility LC Collateral Account.
(iii)The Agent may at any time or from time to time after funds are
deposited in the Facility LC Collateral Account, apply such funds
to the payment of the Obligations and any other amounts as shall
from time to time have become due and payable by the Borrower to
the Lenders or the LC Issuer under the Loan Documents.
(iv) At any time while any Default is continuing, neither the Borrower
nor any Person claiming on behalf of or through the Borrower
shall have any right to withdraw any of the funds held in the
Facility LC Collateral Account. After all of the Obligations have
been indefeasibly paid in full and the Aggregate Commitment has
been terminated, any funds remaining in the Facility LC
Collateral Account shall be returned by the Agent to the Borrower
or paid to whomever may be legally entitled thereto at such time.
(v) If, within 30 days after acceleration of the maturity of the
Obligations or termination of the obligations of the Lenders to
make Loans and the obligation and power of the LC Issuer to issue
Facility LCs hereunder as a result of any Default (other than any
Default as described in Section 7.6 or 7.7 with respect to the
Borrower) and before any judgment or decree for the payment of
the Obligations due shall have been obtained or entered, the
Required Lenders (in their sole discretion) shall so direct, the
Agent shall, by notice to the Borrower, rescind and annul such
acceleration and/or termination.
8.2. AMENDMENTS. Subject to the provisions of this Article VIII, the
Required Lenders (or the Agent with the consent in writing of the Required
Lenders) and the Borrower may enter into agreements supplemental hereto for the
purpose of adding or modifying any provisions to the Loan Documents or changing
in any manner the rights of the Lenders or the Borrower hereunder or waiving any
Default hereunder; provided, however, that no such supplemental agreement shall,
without the consent of each Lender affected thereby:
(i) Extend the final maturity of any Loan, or extend the expiry date
of any Facility LC to a date after the Facility Termination Date
or forgive all or any portion of the principal amount thereof or
any Reimbursement Obligation related thereto, or reduce the rate
or extend the time of payment of interest or fees thereon or
Reimbursement Obligations related thereto.
(ii) Reduce the percentage specified in the definition of Required
Lenders.
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(iii)Extend the Facility Termination Date, or reduce the amount or
extend the payment date for, the mandatory payments required
under Section 2.2, or increase the amount of the Commitment of
any Lender hereunder or the commitment to issue Facility LCs, or
permit the Borrower to assign its rights under this Agreement.
(iv) Amend this Section 8.2.
(v) Release any Guarantor or, except as provided in the Loan
Documents, release all or substantially all of the collateral
covered thereby.
No amendment of any provision of this Agreement relating to the Agent shall be
effective without the written consent of the Agent. No amendment of any
provision of this Agreement relating to the Swing Line Lender or any Swing Line
Loans shall be effective without the written consent of the Swing Line Lender.
No amendment of any provisions relating to the LC Issuer shall be effective
without the written consent of the LC Issuer. The Agent may waive payment of the
fee required under Section 12.3.2 without obtaining the consent of any, other
party to this Agreement.
8.3. PRESERVATION OF RIGHTS. No delay or omission of the Lenders, the LC
Issuer or the Agent to exercise any right under the Loan Documents shall impair
such right or be construed to be a waiver of any Default or an acquiescence
therein, and the making of a Credit Extension notwithstanding the existence of a
Default or the inability of the Borrower to satisfy the conditions precedent to
such Credit Extension shall not constitute any waiver or acquiescence. Any
single or partial exercise of any such right shall not preclude other or further
exercise thereof or the exercise of any other right, and no waiver, amendment or
other variation of the terms, conditions or provisions of the Loan Documents
whatsoever shall be valid unless in writing signed by the Lenders required
pursuant to Section 8.2, and then only to the extent in such writing
specifically set forth. All remedies contained in the Loan Documents or by law
afforded shall be cumulative and all shall be available to the Agent, the LC
Issuer and the Lenders until the Obligations have been paid in full.
ARTICLE IX.
GENERAL PROVISIONS
9.1. SURVIVAL OF REPRESENTATIONS. All representations and warranties of the
Borrower contained in this Agreement shall survive the making of the Credit
Extensions herein contemplated.
9.2. GOVERNMENTAL REGULATION. Anything contained in this Agreement to the
contrary notwithstanding, neither the LC Issuer nor any Lender shall be
obligated to extend credit to the Borrower in violation of any limitation or
prohibition provided by any applicable statute or regulation.
9.3. HEADINGS. Section headings in the Loan Documents are for convenience
of reference only, and shall not govern the interpretation of any of the
provisions of the Loan Documents.
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9.4. ENTIRE AGREEMENT. The Loan Documents embody the entire agreement and
understanding among the Borrower, the Agent, the LC Issuer and the Lenders and
supersede all prior agreements and understandings among the Borrower, the Agent,
the LC Issuer and the Lenders relating to the subject matter thereof other than
the fee letter described in Section 10.13.
9.5. SEVERAL OBLIGATIONS; BENEFITS OF THIS AGREEMENT. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other (except to the extent to which the
Agent is authorized to act as such). The failure of any Lender to perform any of
its obligations hereunder shall not relieve any other Lender from any of its
obligations hereunder. This Agreement shall not be construed so as to confer any
right or benefit upon any Person other than the parties to this Agreement and
their respective successors and assigns, provided, however, that the parties
hereto expressly agree that the Arranger shall enjoy the benefits of the
provisions of Sections 9.6, 9. 10 and 10. 11 to the extent specifically set
forth therein and shall have the right to enforce such provisions on its own
behalf and in its own name to the same extent as if it were a party to this
Agreement.
9.6. EXPENSES; INDEMNIFICATION.
(i) The Borrower shall reimburse the Agent and the Arranger for any
costs, internal charges and out-of-pocket expenses (including
reasonable attorneys' fees, time charges and expenses of
attorneys for the Agent, paid or incurred by the Agent or the
Arranger in connection with the preparation, negotiation,
execution, delivery, syndication, distribution (including,
without limitation, via the internet) review, amendment,
modification, and administration of the Loan Documents. The
Borrower also agrees to reimburse the Agent, the Arranger, the LC
Issuer and the Lenders for any costs, internal charges and out of
pocket expenses (including reasonable attorneys' fees, time
charges and expenses of attorneys for the Agent, the Arranger,
the LC Issuer and the Lenders, which attorneys may be employees
of the Agent, the Arranger, the LC Issuer or the Lenders) paid or
incurred by the Agent, the Arranger, the LC Issuer or any Lender
in connection with the collection and enforcement of the Loan
Documents.
(ii) The Borrower hereby further agrees to indemnify the Agent, the
Arranger, the LC Issuer and each Lender, their respective
affiliates, and each of their directors, officers and employees
against all losses, claims, damages, penalties, judgments,
liabilities and expenses (including, without limitation, all
reasonable expenses of litigation or preparation therefore
whether or not the Agent, the Arranger, the LC Issuer or any
Lender or any affiliate is a party thereto) which any of them may
pay or incur arising out of or relating to this Agreement, the
other Loan Documents, the transactions contemplated hereby or the
direct or indirect application or proposed application of the
proceeds of any Credit Extension hereunder, except to the extent
that any of the foregoing is due to the gross negligence or
willful misconduct of the party seeking indemnification. The
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obligations of the Borrower under this Section 9.6 shall survive
the termination of this Agreement.
9.7. NUMBERS OF DOCUMENTS. All statements, notices, closing documents, and
requests hereunder shall be furnished to the Agent with sufficient counterparts
so that the Agent may furnish one to each of the Lenders.
9.8. ACCOUNTING. Except as provided to the contrary herein, all accounting
terms used herein shall be interpreted and all accounting determinations
hereunder shall be made in accordance with Agreement Accounting Principles.
9.9. SEVERABILITY OF PROVISIONS. Any provision in any Loan Document that is
held to be inoperative, unenforceable, or invalid in any jurisdiction shall, as
to that jurisdiction, be inoperative, unenforceable, or invalid without
affecting the remaining provisions in that jurisdiction or the operation,
enforceability, or validity of that provision in any other jurisdiction, and to
this end the provisions of all Loan Documents are declared to be severable.
9.10. NONABILITY OF LENDERS. The relationship between the Borrower on the
one hand and the Lenders, the LC Issuers and the Agent on the other hand shall
be solely that of borrower and lender. Neither the Agent, the Arranger, the LC ,
Issuer nor any Lender shall have any fiduciary responsibilities to the Borrower.
Neither the Agent, the Arranger, the LC Issuer nor any Lender undertakes any
responsibility to the Borrower to review or inform the Borrower of any matter in
connection with any phase of the Borrower's business or operations. The Borrower
agrees that neither the Agent, the Arranger, the LC Issuer nor any Lender shall
have liability to the Borrower (whether sounding in tort, contract or otherwise)
for losses suffered by the Borrower in connection with, arising out of, or in
any way related to, the transactions contemplated and the relationship
established by the Loan Documents, or any act, omission or event occurring in
connection therewith, unless such losses resulted from the gross negligence or
willful misconduct of the party from which recovery is sought. Neither the
Agent, the Arranger, the LC Issuer nor any Lender shall have any liability with
respect to, and the Borrower hereby waives, releases and agrees not to xxx for,
any special, indirect, consequential or punitive damages suffered by the
Borrower in connection with, arising out of, or in any way related to the Loan
Documents or the transactions contemplated thereby.
9.11. CONFIDENTIALITY. Each Lender agrees to hold any confidential
information which it may receive from the Borrower pursuant to this Agreement in
confidence, except for disclosure (i) to its Affiliates and to other Lenders and
their respective Affiliates, (ii) to legal counsel, accountants, and other
professional advisors to such Lender or to a Transferee, (iii) to regulatory
officials, (iv) to any Person as requested pursuant to or as required by law,
regulation, or legal process, (v) to any Person in connection with any legal
proceeding to which such Lender is a party, (vi) to such Lender's direct or
indirect contractual counterparties in swap agreements or to legal counsel,
accountants and other professional advisors to such counterparties, and (vii)
permitted by Section 12.4.
9.12. NONRELIANCE. Each Lender hereby represents that it is not relying on
or looking to any margin stock (as defined in Regulation U of the Board of
Governors of the Federal Reserve System) for the repayment of the Credit
Extensions provided for herein.
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9.13. DISCLOSURE. The Borrower and each Lender hereby acknowledge and agree
that Bank One and/or its Affiliates from time to time may hold investments in,
make other loans to or have other relationships with the Borrower and its
Affiliates.
ARTICLE X.
THE AGENT
10.1. APPOINTMENT; NATURE OF RELATIONSHIP. Bank One, Indiana, N.A. is
hereby appointed by each of the Lenders as its contractual representative
(herein referred to as the "Agent") hereunder and under each other Loan
Document, and each of the Lenders irrevocably authorizes the Agent to act as the
contractual representative of such Lender with the rights and duties expressly
set forth herein and in the other Loan Documents. The Agent agrees to act as
such contractual representative upon the express conditions contained in this
Article X. Notwithstanding the use of the defined term "Agent," it is expressly
understood and agreed that the Agent shall not have any fiduciary
responsibilities to any Lender by reason of this Agreement or any other Loan
Document and that the Agent is merely acting as the contractual representative
of the Lenders with only those duties as are expressly set forth in this
Agreement and the other Loan Documents. In its capacity as the Lenders'
contractual representative, the Agent (i) does not hereby assume any fiduciary
duties to any of the Lenders, (ii) is a "representative" of the Lenders within
the meaning of Section 9-102 of Revised Article 9 of the Uniform Commercial Code
and (ill) is acting as an independent contractor, the rights and duties of which
are limited to those expressly set forth in this Agreement and the other Loan
Documents. Each of the Lenders hereby agrees to assert no claim against the
Agent on any agency theory or any other theory of liability for breach of
fiduciary duty, all of which claims each Lender hereby waives.
10.2. POWERS. The Agent shall have and may exercise such powers under the
Loan Documents as are specifically delegated to the Agent by the terms of each
thereof, together with such powers as are reasonably incidental thereto. The
Agent shall have no implied duties to the Lenders, or any obligation to the
Lenders to take any action thereunder except any action specifically provided by
the Loan Documents to be taken by the Agent.
10.3. GENERAL IMMUNITY. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable to the Borrower, the Lenders or
any Lender for any action taken or omitted to be taken by it or them hereunder
or under any other Loan Document or in connection herewith or therewith except
to the extent such action or inaction due to the gross negligence or willful
misconduct of such Person.
10.4. NO RESPONSIBILITY FOR LOANS, RECITALS, ETC. Neither the Agent nor any
of its directors, officers, agents or employees shall be responsible for or have
any duty to ascertain, inquire into, or verify (a) any statement, warrant, or
representation made in connection with any Loan Document or any borrowing
hereunder; (b) the performance or observance of any of the covenants or
agreements of any obligor under any Loan Document, including, without
limitation, any agreement by an obligor to furnish information directly to each
Lender; (c) the satisfaction of any condition specified in Article IV, except
receipt of items required to be delivered solely to the Agent; (d) the existence
or possible existence of any Default or Unmatured Default; (e) the validity,
enforceability, effectiveness, sufficiency or genuineness of any Loan Document
or any other instrument or writing furnished in connection therewith; (f) the
value, sufficiency, creation,
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perfection or priority of any Lien in any collateral security; or (g) the
financial condition of the Borrower or any guarantor of any of the Obligations
or of any of the Borrower's or any such guarantor's respective Subsidiaries. The
Agent shall have no duty to disclose to the Lenders information that is not
required to be furnished by the Borrower to the Agent at such time, but is
voluntarily furnished by the Borrower to the Agent (either in its capacity as
Agent or in its individual capacity).
10.5. ACTION ON INSTRUCTIONS OF LENDERS. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, hereunder and under any
other Loan Document in accordance with written instructions signed by the
Required Lenders, and such instructions and any action taken or failure to act
pursuant thereto shall be binding on all of the Lenders. The Lenders hereby
acknowledge that the Agent shall be under no duty to take any discretionary
action permitted to be taken by it pursuant to the provisions of this Agreement
or any other Loan Document unless it shall be requested in writing to do so by
the Required Lenders. The Agent shall be fully justified in failing or refusing
to take any action hereunder and under any other Loan Document unless it shall
first be indemnified to its satisfaction by the Lenders ratably against any and
all liability, cost and expense that it may incur by reason of taking or
continuing to take any such action.
10.6. EMPLOYMENT OF AGENTS AND COUNSEL. The Agent may execute any of its
duties as Agent hereunder and under any other Loan Document by or through
employees, agents, and attorneys-in-fact and shall not be answerable to the
Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Agent shall be entitled to advice of
counsel concerning the contractual arrangement between the Agent and the Lenders
and all matters pertaining to the Agent's duties hereunder and under any other
Loan Document.
10.7. RELIANCE ON DOCUMENTS; COUNSEL. The Agent shall be entitled to rely
upon any Note, notice, consent, certificate, affidavit, letter, telegram,
statement, paper or document believed by it to be genuine and correct and to
have been signed or sent by the proper person or persons, and, in respect to
legal matters, upon the opinion of counsel selected by the Agent, which counsel
may be employees of the Agent.
10.8. AGENT'S REIMBURSEMENT AND INDEMNIFICATION. The Lenders agree to
reimburse and indemnify the Agent ratably in proportion to their respective
Commitments (or, if the Commitments have been terminated, in proportion to their
Commitments immediately prior to such termination) (i) for any amounts not
reimbursed by the Borrower for which the Agent is entitled to reimbursement by
the Borrower under the Loan Documents, (ii) for any other expenses incurred by
the Agent on behalf of the Lenders, in connection with the preparation,
execution, delivery, administration and enforcement of the Loan Documents
(including, without limitation, for any expenses incurred by the Agent in
connection with any dispute between the Agent and any Lender or between two or
more of the Lenders) and (iii) for any liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind and nature whatsoever which may be imposed on, incurred by or
asserted against the Agent in any way relating to or arising out of the Loan
Documents or any other document delivered in connection therewith or the
transactions contemplated thereby (including, without limitation, for any such
amounts incurred by or asserted against the Agent in
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connection with any dispute between the Agent and any Lender or between two or
more of the Lenders), or the enforcement of any of the terms of the Loan
Documents or of any such other documents, provided that (i) no Lender shall be
liable for any of the foregoing to the extent any of the foregoing resulted from
the gross negligence or willful misconduct of the Agent and (ii) any
indemnification required pursuant to Section 3.5(vii) shall, notwithstanding the
provisions of this Section 10.8, be paid by the relevant Lender in accordance
with the provisions thereof. The obligations of the Lenders under this Section
10.8 shall survive payment of the Obligations and termination of this Agreement.
10.9. NOTICE OF DEFAULT. The Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Unmatured Default hereunder unless
the Agent has received written notice from a Lender or the Borrower referring to
this Agreement describing such Default or Unmatured Default and stating that
such notice is a "notice of default". In the event that the Agent receives such
a notice, the Agent shall give prompt notice thereof to the Lenders.
10.10. RIGHTS AS A LENDER. In the event the Agent is a Lender, the Agent
shall have the same rights and powers hereunder and under any other Loan
Document with respect to its Commitment and its Loans as any Lender and may
exercise the same as though it were not the Agent, and the term "Lender" or
"Lenders" shall, at any time when the Agent is a Lender, unless the context
otherwise indicates, include the Agent in its individual capacity. The Agent and
its Affiliates may accept deposits from, lend money to, and generally engage in
any kind of trust, debt, equity or other transaction, in addition to those
contemplated by this Agreement or any other Loan Document, with the Borrower or
any of its Subsidiaries in which the Borrower or such Subsidiary is not
restricted hereby from engaging with any other Person.
10.11. LENDER CREDIT DECISION. Each Lender acknowledges that it has,
independently and without reliance upon the Agent, the Arranger or any other
Lender and based on the financial statements prepared by the Borrower and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and the other Loan
Documents. Each Lender also acknowledges that it will, independently and without
reliance upon the Agent, the Arranger or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement and the other Loan Documents.
10.12. SUCCESSOR AGENT. The Agent may resign at any time by giving written
notice thereof to the Lenders and the Borrower, such resignation to be effective
upon the appointment of a successor Agent or, if no successor Agent has been
appointed, forty five days after the retiring Agent gives notice of its
intention to resign. The Agent may be removed at any time with or without cause
by written notice received by the Agent from the Required Lenders, such removal
to be effective on the date specified by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint, on
behalf of the Borrower and the Lenders, a successor Agent. If no successor Agent
shall have been so appointed by the Required Lenders within thirty days after
the resigning Agent's giving notice of its intention to resign, then the
resigning Agent may appoint, on behalf of the Borrower and the Lenders, a
successor Agent. Notwithstanding the previous sentence, the Agent may at any
time without the consent of the Borrower or any Lender, appoint any of its
Affiliates which is a commercial bank as a successor Agent hereunder. If the
Agent has resigned or been removed and
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no successor Agent has been appointed, the Lenders may perform all the duties of
the Agent hereunder and the Borrower shall make all payments in respect of the
Obligations to the applicable Lender and for all other purposes shall deal
directly with the Lenders. No successor Agent shall be deemed to be appointed
hereunder until such successor Agent has accepted the appointment. Any such
successor Agent shall be a commercial bank having capital and retained earnings
of at least $100,000,000. Upon the acceptance of any appointment as Agent
hereunder by a successor Agent, such successor Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
resigning or removed Agent. Upon the effectiveness of the resignation or removal
of the Agent, the resigning or removed Agent shall be discharged from its duties
and obligations hereunder and under the Loan Documents. After the effectiveness
of the resignation or removal of an Agent, the provisions of this Article X
shall continue in effect for the benefit of such Agent in respect of any actions
taken or omitted to be taken by it while it was acting as the Agent hereunder
and under the other Loan Documents. In the event that there is a successor to
the Agent by merger, or the Agent assigns its duties and obligations to an
Affiliate pursuant to this Section 10.12, then the term "Prime Rate" as used in
this Agreement shall mean the prime rate, base rate or other analogous rate of
the new Agent.
10.13. AGENT AND ARRANGER FEES. The Borrower agrees to pay to the Agent and
the Arranger, for their respective accounts, the fees agreed to by the Borrower,
the Agent and the Arranger pursuant to that certain letter agreement dated May
22, 2003, or as otherwise agreed from time to time.
10.14. DELEGATION TO AFFILIATES. The Borrower and the Lenders agree that
the Agent may delegate any of its duties under this Agreement to any of its
Affiliates. Any such Affiliate (and such Affiliate's directors, officers, agents
and employees) which performs duties in connection with this Agreement shall be
entitled to the same benefits of the indemnification, waiver and other
protective provisions to which the Agent is entitled under Articles IX and X.
10.15. COLLATERAL RELEASES. The Lenders hereby empower and authorize the
Agent to execute and deliver to the Borrower on their behalf any agreements,
documents or instruments as shall be necessary or appropriate to effect any
releases of Collateral Documents which shall be permitted by the terms hereof or
of any other Loan Document or which shall otherwise have been approved by the
Required Lenders (or, if required by the terms of Section 8.2, all of the
Lenders) in writing.
ARTICLE XI.
SETOFF; RATABLE PAYMENTS
11.1. SETOFF. In addition to, and without limitation of, any rights of the
Lenders under applicable law, if the Borrower becomes insolvent, however
evidenced, or any Default occurs, any and all deposits (including all account
balances, whether provisional or final and whether or not collected or
available) and any other Indebtedness at any time held or owing by any Lender or
any Affiliate of any Lender to or for the credit or account of the Borrower may
be offset and applied toward the payment of the Obligations owing to such
Lender, whether or not the Obligations, or any part thereof, shall then be due.
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11.2. RATABLE PAYMENTS. If any Lender, whether by setoff or otherwise, has
payment made to it upon its Outstanding Credit Exposure (other than payments
received pursuant to Section 3.1, 3.2, 3.4 or 3.5) in a greater proportion than
that received by any other Lender, such Lender agrees, promptly upon demand, to
purchase a portion of the Aggregate Outstanding Credit Exposure held by the
other Lenders so that after such purchase each Lender will hold its Pro Rata
Share of the Aggregate Outstanding Credit Exposure. If any Lender, whether in
connection with setoff or amounts which might be subject to setoff or otherwise,
receives collateral or other protection for its Obligations or such amounts
which may be subject to setoff, such Lender agrees, promptly upon demand, to
take such action necessary such that all Lenders share in the benefits of such
collateral ratably in proportion to their respective Pro Rata Shares of the
Aggregate Outstanding Credit Exposure. In case any such payment is disturbed by
legal process, or otherwise, appropriate further adjustments shall be made.
ARTICLE XII.
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1. SUCCESSORS AND ASSIGNS. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower and the
Lenders and their respective successors and assigns, except that (i) the
Borrower shall not have the right to assign its rights or obligations under the
Loan Documents and (ii) any assignment by any Lender must be made in compliance
with Section 12.3. The parties to this Agreement acknowledge that clause (ii) of
this Section 12.1 relates only to absolute assignments and does not prohibit
assignments creating security interests, including, without limitation, (x) any
pledge or assignment by any Lender of all or any portion of its rights under
this Agreement and any Note to a Federal Reserve Bank or (y) in the case of a
Lender which is a fund, any pledge or assignment of all or any portion of its
rights under this Agreement and any Note to its trustee in support of its
obligations to its trustee; provided, however, that no such pledge or assignment
creating a security interest shall release the transferor Lender from its
obligations hereunder unless and until the parties thereto have complied with
the provisions of Section 12.3. The Agent may treat the Person which made any
Loan or which holds any Note as the owner thereof for all purposes hereof unless
and until such Person complies with Section 12.3; provided, however, that the
Agent may in its discretion (but shall not be required to) follow instructions
from the Person which made any Loan or which holds any Note to direct payments
relating to such Loan or Note to another Person. Any assignee of the rights to
any Loan or any Note agrees by acceptance of such assignment to be bound by all
the terms and provisions of the Loan Documents. Any request, authority or
consent of any Person, who at the time of making such request or giving such
authority or consent is the owner of the rights to any Loan (whether or not a
Note has been issued in evidence thereof), shall be conclusive and binding on
any subsequent holder or assignee of the rights to such Loan.
12.2. PARTICIPATIONS.
12.2.1. PERMITTED PARTICIPANTS; EFFECT. Any Lender may, in the ordinary
course of its business and in accordance with applicable law, at any time sell
to one or more banks or other entities ("Participants") participating interests
in any Outstanding Credit Exposure of such Lender, any Note held by such Lender,
any Commitment of such Lender or any other interest of such Lender under the
Loan Documents. In the event of any such sale by a Lender of participating
interests to a Participant, such Lender's obligations under the Loan Documents
shall
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remain unchanged, such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, such Lender shall remain
the owner of its Outstanding Credit Exposure and the holder of any Note issued
to it in evidence thereof for all purposes under the Loan Documents, all amounts
payable by the Borrower under this Agreement shall be determined as if such
Lender had not sold such participating interests, and the Borrower and the Agent
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under the Loan Documents.
12.2.2. VOTING RIGHTS. Each Lender shall retain the sole right to approve,
with the consent of any Participant, any amendment, modification or waiver of
any provision of the Loan Documents other than any amendment, modification or
waiver with respect to any Credit Extension or Commitment in which such
Participant has an interest which would require consent of all of the Lenders
pursuant to the terms of Section 8.2 or of any other Loan Document.
12.2.3. BENEFIT OF SETOFF. The Borrower agrees that each Participant shall
be deemed to have the right of setoff provided in Section 11.1 in respect of its
participating interest in amounts owing under the Loan Documents to the same
extent as if the amount of its participating interest were owing directly to it
as a Lender under the Loan Documents, provided that each Lender shall
anticipating retain the right of setoff provided in Section 11.1 with respect to
the amount of participating interests sold to each Participant. The Lenders
agree to share with each Participant, and each Participant, by exercising the
right of setoff provided in Section 11.1, agrees to share with each Lender, any
amount received pursuant to the exercise of its right of setoff, such amounts to
be shared in accordance with Section 11.2 as if each Participant were a Lender.
12.3. ASSIGNMENTS.
12.3.1. PERMITTED ASSIGNMENTS. Any Lender may, in the ordinary course of
its business and in accordance with applicable law, at any time assign to one or
more banks or other entities ("Purchasers") all or any part of its rights and
obligations under the Loan Documents. Such assignment shall be substantially in
the form of Exhibit B or in such other form as may be agreed to by the parties
thereto. The consent of the Borrower and the Agent and the LC Issuer shall be
required prior to an assignment becoming effective with respect to a Purchaser
which is not a Lender or an Affiliate thereof, provided, however, that if a
Default has occurred and is continuing, the consent of the Borrower shall not be
required. Such consent shall not be unreasonably withheld or delayed. Each such
assignment with respect to a Purchaser which is not a Lender or an Affiliate
thereof shall (unless each of the Borrower and the Agent otherwise consents) be
in an amount not less than the lesser of (i) $5,000,000 or (ii) the remaining
amount of the assigning Lender's Commitment (calculated as at the date of such
assignment) or outstanding Loans (if the applicable Commitment has been
terminated).
12.3.2. EFFECT; EFFECTIVE DATE. Upon (i) delivery to the Agent of a notice
of assignment, substantially in the form attached as Exhibit I to Exhibit B (a
"Notice of Assignment"), together with any consents required by Section 12.3. 1,
and (ii) payment of a $3,500 fee to the Agent for processing such assignment
(unless such fee is waived by the Agent), such assignment shall become effective
on the effective date specified in such assignment. The assignment shall contain
a representation by the Purchaser to the effect that none of the consideration
used to make the purchase of the Commitment and Outstanding Credit Exposure
under the applicable
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assignment agreement constitutes "plan assets" as defined under ERISA and that
the rights and interests of the Purchaser in and under the Loan Documents will
not be "plan assets" under ERISA. On and after the effective date of such
assignment, such Purchaser shall for all purposes be a Lender party to this
Agreement and any other Loan Document executed by or on behalf of the Lenders
and shall have all the rights and obligations of a Lender under the Loan
Documents, to the same extent as if it were an original party hereto, and no
further consent or action by the Borrower, the Lenders or the Agent shall be
required to release the transferor Lender with respect to the percentage of the
Aggregate Commitment and Outstanding Credit Exposure assigned to such Purchaser.
Upon the consummation of any assignment to a Purchaser pursuant to this Section
12.3.2, the transferor Lender, the Agent and the Borrower shall, if the
transferor Lender or the Purchaser desires that its Loans be evidenced by Notes,
make appropriate arrangements so that new Notes or, as appropriate, replacement
Notes are issued to such transferor Lender and new Notes or, as appropriate,
replacement Notes, are issued to such Purchaser, in each case in principal
amounts reflecting their respective Commitments, as adjusted pursuant to such
assignment.
12.4. DISSEMINATION OF INFORMATION. The Borrower authorizes each Lender to
disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "Transferee") and any
prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Borrower and its Subsidiaries, including
without limitation any information contained in any Reports, provided that each
Transferee and prospective Transferee agrees to be bound by Section 9.11 of this
Agreement.
12.5. TAX TREATMENT. If any interest in any Loan Document is transferred to
any Transferee which is organized under the laws of any jurisdiction other than
the United States or any State thereof, the transferor Lender shall cause such
Transferee, concurrently with the effectiveness of such transfer, to comply with
the provisions of Section 3.5(iv).
ARTICLE XIII.
NOTICES
13.1. NOTICES. Except as otherwise permitted by Section 2.15 with respect
to Borrowing Notices, all notices, requests and other communications to any
party hereunder shall be in writing (including electronic transmission,
facsimile transmission or similar writing) and shall be given to such party: (x)
in the case of the Borrower or the Agent, at its address or facsimile number set
forth on the signature pages hereof, (y) in the case of any Lender, at its
address or facsimile number set forth in its administrative questionnaire or (z)
in the case of any party, at such other address or facsimile number as such
party may hereafter specify for the purpose by notice to the Agent and the
Borrower in accordance with the provisions of this Section 13.1. Each such
notice, request or other communication shall be effective (i) if given by
facsimile transmission, when transmitted to the facsimile number specified in
this Section and confirmation of receipt is received, (ii) if given by mail, 72
hours after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid, or (iii) if given by any other means,
when delivered (or, in the case of electronic transmission, received) at the
address specified in this Section; provided that notices to the Agent under
Article II shall not be effective until received.
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13.2. CHANGE OF ADDRESS. The Borrower, the Agent and any Lender may each
change the address for service of notice upon it by a notice in writing to the
other parties hereto.
ARTICLE XIV.
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one agreement, and any of the parties hereto may
execute this Agreement by signing any such counterpart. This Agreement shall be
effective when it has been executed by the Borrower, the Agent and the Lenders
and each party has notified the Agent by facsimile transmission or telephone
that it has taken such action.
ARTICLE XV.
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
15.1. CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS (WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS) OF THE
STATE OF INDIANA, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL
BANKS.
15.2. CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY SUBMITS TO
THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL COURT SITTING IN THE
NORTHERN DISTRICT OF INDIANA OR INDIANA STATE COURT SITTING IN ELKHART COUNTY,
INDIANA IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN
DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT
OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND
IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF
ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT
IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE AGENT, THE
LC ISSUER OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE BORROWER IN THE COURTS
OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY THE BORROWER AGAINST THE
AGENT, THE LC ISSUER OR ANY LENDER OR ANY AFFILIATE OF THE AGENT, THE LC ISSUER
OR ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING
OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN
A COURT IN ELKHART COUNTY, INDIANA OR THE CITY IN WHICH THE PRINCIPAL OFFICE OF
THE AGENT, THE LC ISSUER OR SUCH LENDER OR AFFILIATE, AS THE CASE MAY BE, IS
LOCATED.
15.3. WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT, THE LC ISSUER AND EACH
LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY
OR INDIRECTLY, ANY MATTER
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(WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF,
RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED
THEREUNDER.
IN WITNESS WHEREOF, the Borrower, the Agent and the Lenders have caused
this Credit Agreement to be duly executed and delivered by its officer thereunto
duly authorized as of the date first above written.
COACHMEN INDUSTRIES, INC.
By: //XXXXXX X. XXXXXXX
Name: Xxxxxx X. Xxxxxxx
Title: Treasurer
By: //XXXXXX X. XXXXXXX
Name: Xxxxxx X. Xxxxxxx
Title Chief Financial Officer
BANK ONE, INDIANA, N.A., as a Lender,
as the LC Issuer and as Administrative
Agent
By: //XXXX X. XXXXXXXX
Name: Xxxx X. Xxxxxxxx
Title: First Vice President
NATIONAL CITY BANK OF INDIANA,
as a Lender
By: //XXXXXX X. XXXXXX XX.
Name: Xxxxxx X. Xxxxxx Xx.
Title: Vice President
59
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EXHIBIT A
FORM OF COMPLIANCE CERTIFICATE
To: The Lenders Parties to the
Credit Agreement Described Below
This Compliance Certificate is furnished pursuant to that certain Credit
Agreement dated as of June 30, 2003 (as the same may be amended, modified,
renewed or extended from time to time, the "Credit Agreement") among Coachmen
Industries, Inc. (the "Borrower"), the lenders party thereto (the "Lenders") and
Bank One, Indiana, N.A., as Agent for the Lenders. Unless otherwise defined
herein, capitalized terms used in this Compliance Certificate have the meanings
ascribed thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected _________ of the Borrower;
2. I have reviewed the terms of the Credit Agreement and I have made, or
have caused to be made under my supervision, a detailed review of the
transactions and conditions of the Borrower and its Subsidiaries, including,
without limitation, the Guarantors, during the accounting period covered by the
attached financial statements;
3. The examinations described in paragraph 2 did not disclose, and I have
no knowledge of, the existence of any condition or event which constitutes a
Default or Unmatured Default during or at the end of the accounting period
covered by the attached financial statements or as of the date of this
Certificate, except as set forth below;
4. Schedule I attached hereto sets forth financial data and computations
evidencing the Borrower's compliance with certain covenants of the Credit
Agreement, all of which data and computations are true, complete and correct;
and
5. Schedule II attached hereto sets forth the various reports and
deliveries which are required at this time under the Credit Agreement and the
status of compliance.
Described below are the exceptions, if any, to paragraph 3 by listing, in
detail, the nature of the condition or event, the period during which it has
existed and the action which the Borrower has taken, is taking, or proposes to
take with respect to each such condition or event:
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
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The foregoing certifications, together with the computations set forth in
Schedule I hereto and the financial statements delivered with this Certificate
in support hereof, are made and delivered this ______ day of _______________,
20_____.
______________________________
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SCHEDULE I TO COMPLIANCE CERTIFICATE
Compliance as of ________, _______ with
Provisions of Section 6.11, 6.13, 614 and 6.18 of
the Credit Agreement
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SCHEDULE II TO COMPLIANCE CERTIFICATE
Reports and Deliveries Currently Due
Attached
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EXHIBIT B
FORM OF ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignment Agreement") between
_______________ (the "Assignor") and ____________________________ (the
"Assignee") is dated as of __________ 200___. The parties hereto agree as
follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to a Credit Agreement
(which, as may be amended, modified, renewed or extended from time to time are
herein called the "Credit Agreement") described in Item 1 of Schedule 1 attached
hereto ("Schedule 1). Capitalized terms used herein and not otherwise defined
herein shall have the meanings attributed to them in the Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and assigns to the
Assignee, and the Assignee hereby purchases and assumes from the Assignor, an
interest in and to the Assignor's rights and obligations under the Credit
Agreement and the other Loan Documents, such that after giving effect to such
assignment the Assignee shall have purchased pursuant to this Assignment
Agreement the percentage interest specified in Item 3 of Schedule 1 of all
outstanding rights and obligations under the Credit Agreement and the other Loan
Documents relating to the facilities listed in Item 3 of Schedule 1. The
aggregate Commitment (or Outstanding Credit Exposure, if the applicable
Commitment has been terminated) purchased by the Assignee hereunder is set forth
in Item 4 of Schedule 1.
3. EFFECTIVE DATE. The, effective date of this Assignment Agreement (the
"Effective Date") shall be the later of the date specified in Item 5 of Schedule
1 or two Business Days (or such shorter period agreed to by the Agent) after
this Assignment Agreement, together with any consents required under the Credit
Agreement, are delivered to the Agent. In no event will the Effective Date occur
if the payments required to be made by the Assignee to the Assignor on the
Effective Date are not made on the proposed Effective Date.
4. PAYMENT OBLIGATIONS. In consideration for the sale and assignment of
Outstanding Credit Exposure hereunder, the Assignee shall pay the Assignor, on
the Effective Date, the amount agreed to by the Assignor and the Assignee. On
and after the Effective Date, the Assignee shall be entitled to receive from the
Agent all payments of principal, interest, Reimbursement Obligations and fees
with respect to the interest assigned hereby. The Assignee will promptly remit
to the Assignor any interest on Loans and fees received from the Agent which
relate to the portion of the Commitment or Outstanding Credit Exposure assigned
to the Assignee hereunder and not previously paid by the Assignee to the
Assignor. In the event that either party hereto receives any payment to which
the other party hereto is entitled under this Assignment Agreement, then the
party receiving such amount shall promptly remit it to the other party hereto.
5. RECORDATION FEE. The Assignor and Assignee each agree to pay one-half of
the recordation fee required to be paid to the Agent in connection with this
Assignment Agreement unless otherwise specified in Item 6 of Schedule 1.
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6. REPRESENTATIONS OF THE ASSIGNOR, LIMITATIONS ON THE ASSIGNOR'S
LIABILITY. The Assignor represents and warrants that (i) it is the legal and
beneficial owner of the interest being assigned by it hereunder, (ii) such
interest is free and clear of any adverse claim created by the Assignor and
(iii) the execution and delivery of this Assignment Agreement by the Assignor is
duly authorized. It is understood and agreed that the assignment and assumption
hereunder are made without recourse to the Assignor and that the Assignor makes
no other representation or warranty of any kind to the Assignee. Neither the
Assignor nor any of its officers, directors, employees, agents or attorneys
shall be responsible for (i) the due execution, legality, validity,
enforceability, genuineness, sufficiency or collectability of any Loan Document,
including without limitation, documents granting the Assignor and the other
Lenders a security interest in assets of the Borrower or any Guarantor, (ii) any
representation, warranty or statement made in or in connection with any of the
Loan Documents, (iii) the financial condition or creditworthiness of the
Borrower or any Guarantor, (iv) the performance of or compliance with any of the
terms or provisions of any of the Loan Documents, (v) inspecting any of the
property, books or records of the Borrower, (vi) the validity, enforceability,
perfection, priority, condition, value or sufficiency of any collateral securing
or purporting to secure the Loans or (vii) any mistake, error of judgment, or
action taken or omitted to be taken in connection with the Loans or the Loan
Documents.
7. REPRESENTATIONS AND UNDERTAKINGS OF THE ASSIGNEE. The Assignee (i)
confirms that it has received a copy of the Credit Agreement, together with
copies of the financial statements requested by the Assignee and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment Agreement, (ii) agrees that
it will, independently and without reliance upon the Agent, the Assignor or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Loan Documents, (iii) appoints and authorizes the
Agent to take such action as agent on its behalf and to exercise such powers
under the Loan Documents as are delegated to the Agent by the terms thereof,
together with such powers as are reasonably incidental thereto, (iv) confirms
that the execution and delivery of this Assignment Agreement by the Assignee is
duly authorized, (v) agrees that it will perform in accordance with their terms
all of the obligations which by the terms of the Loan Documents are required to
be performed by it as a Lender, (vi) agrees that its payment instructions and
notice instructions are as set forth in the attachment to Schedule 1, (vii)
confirms that none of the funds, monies, assets or other consideration being
used to make the purchase and assumption hereunder are "plan assets" as defined
under ERISA and that its rights, benefits and interests in and under the Loan
Documents will not be "plan assets" under ERISA, (viii) agrees to indemnify and
hold the Assignor harmless against all losses, costs and expenses (including,
without limitation, reasonable attorneys' fees) and liabilities incurred by the
Assignor in connection with or arising in any manner from the Assignee's
non-performance of the obligations assumed under this Assignment Agreement, and
(ix) if applicable, attaches the forms prescribed by the Internal Revenue
Service of the United States certifying that the Assignee is entitled to receive
payments under the Loan Documents without deduction or withholding of any United
States federal income taxes.
8. GOVERNING LAW. This Assignment Agreement shall be governed by the
internal law, and not the law of conflicts, of the State of Indiana.
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9. NOTICES. Notices shall be given under this Assignment Agreement in the
manner set forth in the Credit Agreement. For the purpose hereof, the addresses
of the parties hereto (until notice of a change is delivered) shall be the
address set forth in the attachment to Schedule 1.
10. COUNTERPARTS, DELIVERY BY FACSIMILE. This Assignment Agreement may be
executed in counterparts. Transmission by facsimile of an executed counterpart
of this Assignment Agreement shall be deemed to constitute due and sufficient
delivery of such counterpart and such facsimile shall be deemed to be an
original counterpart of this Assignment Agreement.
IN WITNESS WHEREOF, the duly authorized officers of the parties hereto have
executed this Assignment Agreement by executing Schedule I hereto as of the date
first above written.
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SCHEDULE 1
to Assignment Agreement
1. Description and Date of Credit Agreement: Credit Agreement, dated as of
June 30, 2003, among Coachman Industries, Inc., the Lenders party thereto
as "Lenders", and Bank One, Indiana, N.A., as Agent for the Lenders.
2. Date of Assignment Agreement: ______________________, 20____
3. Amounts (As of Date of Item 2 above):
a. Assignee's percentage
Of the Facility purchased
Under the Assignment
Agreement _____% (percentage to be taken 10
decimal places)
b. Amount of the Facility
Purchased under the
Assignment Agreement $__________
4. Assignee's Commitment (or Outstanding Credit Exposure with respect to
terminated Commitments) purchased hereunder:
$________________
5. Proposed Effective Date: _________________
6. Non-standard Recordation Fee Arrangement [N/A]
[Assignor Assignee
to pay 100% of fee]
[Fee waived by Agent]
Accepted and Agreed:
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: By:
----------------------------------- -----------------------------------
Title: Title:
-------------------------------- --------------------------------
4
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ACCEPTED AND CONSENTED TO BY* ACCEPTED AND CONSENTED TO BY*
COACHMEN INDUSTRIES, INC. BANK ONE, INDIANA, N.A., as Agent
By: By:
---------------------------------- -------------------------------
Title: Title:
-------------------------------- -----------------------------
*Delete if not required by Credit Agreement
5
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Attachment to SCHEDULE 1 to ASSIGNMENT AGREEMENT
ADMINISTRATIVE INFORMATION SHEET
Attach Assignor's Administrative Information Sheet, which must
include notice addresses for the Assignor and the Assignee
6
96
EXHIBIT C
FORM OF PROMISSORY NOTE
COACHMEN INDUSTRIES, INC., an Indiana corporation (the "Borrower"),
promises to pay to the order of __________________________________ (the
"Lender") the aggregate unpaid principal amount of all Loans made by the Lender
to the Borrower pursuant to Article II of the Agreement (as hereinafter
defined), in immediately available funds at the main office of Bank One,
Indiana, N.A., as Agent, together with interest on the unpaid principal amount
hereof at the rates and on the dates set forth in the Agreement. The Borrower
shall pay the principal of and accrued and unpaid interest on the Loans in full
on the Facility Termination Date.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Loan and the date and amount of each principal
payment hereunder.
This Note is one of the Notes issued pursuant to, and entitled to the
benefits of, the Credit Agreement dated as of June 30, 2003 (which, as it may be
amended or modified and in effect from time to time, is herein called the
"Agreement"), among the Borrower, the lenders party thereto, including the
Lender, and Bank One, Indiana, N.A., as Agent, to which Agreement reference is
hereby made for a statement of the terms and conditions governing this Note,
including the terms and conditions under which this Note may be prepaid or its
maturity date accelerated. This Note is guaranteed pursuant to the Guaranty, as
more specifically described in the Agreement, and reference is made thereto for
a statement of the terms and provisions thereof. Capitalized terms used herein
and not otherwise defined herein are used with the meanings attributed to them
in the Agreement.
COACHMEN INDUSTRIES, INC.
By:
------------------------------------------
Print Name:
----------------------------------
Title:
---------------------------------------
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SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE OF COACHMEN INDUSTRIES, INC.,
DATED _________________,
Date Principal Maturity Principal Unpaid
Amount of of Interest Amount Balance
Loan Period Paid
----------- ---------- ------------ ---------- --------
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EXHIBIT D
FORM OF OPINION
----------, ----
The Agent and the Lenders who are parties to the
Credit Agreement described below.
Gentlemen/Ladies:
We are counsel for _____________ (the "Borrower") and _______________
("Subsidiaries"), and have represented the Borrower and subsidiaries in
connection with the execution and delivery of a Credit Agreement dated as of
_______________ (the "Agreement") among the Borrower, the Lenders named therein,
and Bank One, NA, as Agent, and providing for Advances in an aggregate principal
amount not exceeding $________ at any one time outstanding. All capitalized
terms used in this opinion and not otherwise defined herein shall have the
meanings attributed to them in the Agreement.
We have examined Borrower's **[describe constitutive documents of Borrower
and appropriate evidence of authority to enter into the transaction]**, the Loan
Documents and such other matters of fact and law which we deem necessary in
order to render this opinion. Based upon the foregoing, it is our opinion that:
1. Each of the Borrower and its Subsidiaries is a corporation, partnership
or limited liability company duly and properly incorporated or organized, as the
case may be, validly existing and (to the extent such concept applies to such
entity) in good standing under the laws of its jurisdiction of incorporation or
organization and has all requisite authority to conduct its business in each
jurisdiction in which its business is conducted.
2. The execution and delivery by the Borrower of the Loan Documents and
each Subsidiary of the Subsidiary Guaranty and the performance by the Borrower
and Subsidiaries of their respective obligations thereunder have been duly
authorized by proper corporate proceedings on the part of the Borrower and each
Subsidiary, as applicable, and will not:
(a) require any consent of the Borrower's or Subsidiaries shareholders
or members (other than any such consent as has already been given and
remains in full force and effect).
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(b) violate (i) any law, rule, regulation, order, writ, judgment,
injunction, decree or award binding on the Borrower or any of its
Subsidiaries or (ii) the Borrower's or any Subsidiary's articles or
certificate of incorporation, partnership agreement, certificate of
partnership, articles or certificate of organization, by-laws, or operating
or other management agreement, as the case may be, or (iii) the provisions
of any indenture, instrument or agreement to which the Borrower or any of
its Subsidiaries is a party or is subject, or by which it, or its Property,
is bound, or conflict with or constitute a default thereunder; or
(c) result in, or require, the creation or imposition of any Lien in,
of or on the Property of the Borrower or a Subsidiary pursuant to the terms
of any indenture, instrument or agreement binding upon the Borrower or any
of its Subsidiaries.
3. The Loan Documents have been duly executed and delivered by the Borrower
and constitute legal, valid and binding obligations of the Borrower enforceable
against the Borrower in accordance with their terms except to the extent the
enforcement thereof may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally and subject also to the
availability of equitable remedies if equitable remedies are sought.
4. The Subsidiary Guarantys have been duly executed and delivered by the
Subsidiary and constitute legal, valid and binding obligations of each
Subsidiary enforceable against the Subsidiary in accordance with their terms
except to the extent the enforcement thereof may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of creditors' rights
generally and subject also to the availability of equitable remedies if
equitable remedies are sought.
5. There is no litigation, arbitration, governmental investigation,
proceeding or inquiry pending or, to the best of our knowledge after due
inquiry, threatened against the Borrower or any of its Subsidiaries which, if
adversely determined, could reasonably be expected to have a Material Adverse
Effect.
6. No order, consent, adjudication, approval, license, authorization, or
validation of, or filing, recording or registration with, or exemption by, or
other action in respect of any governmental or public body or authority, or any
subdivision thereof, which has not been obtained by the Borrower or any of its
Subsidiaries, is required to be obtained by the Borrower or any of its
Subsidiaries in connection with the execution and delivery of the Loan
Documents, the borrowings under the Agreement, the payment and performance of
the Borrower of the Obligations, or the legality, validity, binding effect or
enforceability of any of the Loan Documents.
This opinion may be relied upon by the Agent, the Lenders and their
participants, assignees and other transferees.
Very truly yours,
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SUBSIDIARY GUARANTY
THIS SUBSIDIARY GUARANTY (this "Guaranty") is made as of June 30, 2003, by
each of the undersigned (collectively, together with any Guarantor that becomes
a party hereto pursuant to Section 20 below, the "Subsidiary Guarantors") in
favor of the Agent, for the benefit of the Lenders (as each is defined below),
WITNESSETH:
WHEREAS, Coachmen Industries, Inc., an Indiana corporation (the
"Principal"), Bank One, Indiana, N.A., a national banking association ("Bank
One"), as Agent (the "Agent"), and certain other Lenders from time to time party
thereto (the "Lenders") have entered into a Credit Agreement dated as of June
30, 2003, (as the same may be amended or modified from time to time, the "Credit
Agreement"), providing, subject to the terms and conditions thereof, for
extensions of credit to be made by the Lenders to the Principal;
WHEREAS, it is a condition precedent to the Agent and the Lenders executing
the Credit Agreement that each of the Subsidiary Guarantors execute and deliver
this Guaranty whereby each of the Subsidiary Guarantors shall guarantee the
payment when due, subject to Section 9 hereof, of all Guaranteed Obligations, as
defined below; and
WHEREAS, in consideration of the financial and other support that the
Principal has provided, and such financial and other support as the Principal
may in the future provide, to the Subsidiary Guarantors, and in order to induce
the Lenders and the Agent to enter into to the Credit Agreement, and the Lenders
and their Affiliates to enter into one or more Rate Management Transactions with
the Principal, and because each Subsidiary Guarantor has determined that
executing this Guaranty is in its interest and to its financial benefit, each of
the Subsidiary Guarantors is willing to guarantee the obligations of the
Principal under the Credit Agreement, any Notes, any Rate Management
Transaction, and the other Loan Documents;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1.1 SELECTED TERMS USED HEREIN.
"Guaranteed Obligations" is defined in Section 3 below.
SECTION 1.2 TERMS IN CREDIT AGREEMENT. Other capitalized terms used herein
but not defined herein shall have the meanings set forth in the Credit
Agreement.
SECTION 2.1 REPRESENTATIONS AND WARRANTIES. Each of the Subsidiary
Guarantors represents and warrants (which representations and warranties shall
be deemed to have been renewed upon each Borrowing Date under the Credit
Agreement) that:
(a) It is a corporation, partnership or limited liability company duly
and properly incorporated or organized, as the case may be, validly existing and
(to the extent such
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concept applies to such entity) in good standing under the laws of its
jurisdiction of incorporation or organization and has all requisite authority to
conduct its business in each jurisdiction in which its business is conducted.
(b) It has the power and authority and legal right to execute and
deliver this Guaranty and to perform its obligations hereunder. The execution
and delivery by it of this Guaranty and the performance of its obligations
hereunder have been duly authorized by proper corporate proceedings, and this
Guaranty constitutes a legal, valid and binding obligation of such Subsidiary
Guarantor enforceable against it in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency or similar laws
affecting the, enforcement of creditors' rights generally.
(c) Neither the execution and delivery by it of this Guaranty, nor the
consummation of the transactions herein contemplated, nor compliance with the
provisions hereof will violate (i) any law, rule, regulation, order, writ,
judgment, injunction, decree or award binding on it or any of its subsidiaries
or (ii) its articles or certificate of incorporation, partnership agreement,
certificate of partnership, articles or certificate of organization, by-laws, or
operating or other management agreement, as the case may be, or (iii) the
provisions of any indenture, instrument or agreement to which it or any of its
subsidiaries is a party or is subject, or by which it, or its Property, is
bound, or conflict with or constitute a default thereunder, or result in, or
require, the creation or imposition of any Lien in, of or on the Property of
such Subsidiary Guarantor or a subsidiary thereof pursuant to the terms of any
such indenture, instrument or agreement. No order, consent, adjudication,
approval, license, authorization, or validation of, or filing, recording or
registration with, or exemption by, or other action in respect of any
governmental or public body or authority, or any subdivision thereof, which has
not been obtained by it or any of its subsidiaries, is required to be obtained
by it or any of its subsidiaries in connection with the execution and delivery
of this Guaranty or the performance by it of its obligations hereunder or the
legality, validity, binding effect or enforceability of this Guaranty.
SECTION 2.2 COVENANTS. Each of the Subsidiary Guarantors covenants that, so
long as any Lender has any Commitment outstanding under the Credit Agreement,
any Rate Management Transaction remains in effect or any of the Guaranteed
Obligations shall remain unpaid, that it will, and, if necessary, will enable
the Principal to, fully comply with those covenants and agreements set forth in
the Credit Agreement.
SECTION 3 THE GUARANTY. Subject to Section 9 hereof, each of the Subsidiary
Guarantors hereby absolutely and unconditionally guarantees, as primary obligor
and not as surety, the full and punctual payment (whether at stated maturity,
upon acceleration or early termination or otherwise, and at all times
thereafter) and performance of all obligations of the Principal under the Credit
Agreement and the Rate Management Obligations, including, without limitation,
any such obligations or Rate Management Obligations incurred or accrued during
the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, whether or not allowed or allowable in such proceeding
(collectively, subject to the provisions of Section 9 hereof, being referred to
collectively as the "Guaranteed Obligations"). Upon failure by the Principal to
pay punctually any such amount, each of the Subsidiary Guarantors agrees that it
shall forthwith on demand pay to the Agent for the benefit of the Lenders and,
if applicable, their
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102
Affiliates, the amount not so paid at the place and in the manner specified in
the Credit Agreement, any Note, any Rate Management Transaction or the relevant
Loan Document, as the case may be. This Guaranty is a guaranty of payment and
not of collection. Each of the Subsidiary Guarantors waives any right to require
the Lender to xxx the Principal, any other guarantor, or any other person
obligated for all or any part of the Guaranteed Obligations, or otherwise to
enforce its payment against any collateral securing all or any part of the
Guaranteed Obligations.
SECTION 4 GUARANTY UNCONDITIONAL. Subject to Section 9 hereof, the
obligations of each of the Subsidiary Guarantors hereunder shall be
unconditional and absolute and, without limiting the generality of the
foregoing, shall not be released, discharged or otherwise affected by:
(i) any extension, renewal, settlement, compromise, waiver or release
in respect of any of the Guaranteed Obligations, by operation of law or
otherwise, or any obligation of any other guarantor of any of the
Guaranteed Obligations, or any default, failure or delay, willful or
otherwise, in the payment or performance of the Guaranteed Obligations;
(ii) any modification or amendment of or supplement to the Credit
Agreement, any Note, any Rate Management Transaction or any other Loan
Document;
(iii) any release, nonperfection or invalidity of any direct or
indirect security for any obligation of the Principal under the Credit
Agreement, any Note, any Rate Management Transaction, any other Loan
Document, or any obligations of any other guarantor of any of the
Guaranteed Obligations, or any action or failure to act by the Agent, any
Lender or any Affiliate of any Lender with respect to any collateral
securing all or any part of the Guaranteed Obligations;
(iv) any change in the corporate existence, structure or ownership of
the Principal or any other guarantor of any of the Guaranteed Obligations,
or any insolvency, bankruptcy, reorganization or other similar proceeding
affecting the Principal, or any other guarantor of the Guaranteed
Obligations, or its assets or any resulting release or discharge of any
obligation of the Principal, or any other guarantor of any of the
Guaranteed Obligations;
(v) the existence of any claim, setoff or other rights which the
Subsidiary Guarantors may have at any time against the Principal, any other
guarantor of any of the Guaranteed Obligations, the Agent, any Lender or
any other Person, whether in connection herewith or any unrelated
transactions;
(vi) any invalidity or unenforceability relating to or against the
Principal, or any other guarantor of any of the Guaranteed Obligations, for
any reason related to the Credit Agreement, any Rate Management
Transaction, any other Loan Document, or any provision of applicable law or
regulation purporting to prohibit the payment by the Principal, or any
other guarantor of the Guaranteed Obligations, of the principal of or
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interest on any Note or any other amount payable by the Principal under the
Credit Agreement, any Note, any Rate Management Transaction or any other
Loan Document;
(vii) the failure of any other Subsidiary Guarantor to sign or become
a party to this Guaranty or any amendment, change or reaffirmation hereof,
or
(viii) any other act or omission to act or delay of any kind by the
Principal, any other guarantor of the Guaranteed Obligations, the Agent,
any Lender or any other Person or any other circumstance whatsoever which
might, but for the provisions of this paragraph, constitute a legal or
equitable discharge of any Subsidiary Guarantor's obligations hereunder.
SECTION 5 DISCHARGE ONLY UPON PAYMENT IN FULL: REINSTATEMENT IN CERTAIN
CIRCUMSTANCES. Each of the Subsidiary Guarantor's obligations hereunder shall
remain in full force and effect until all Guaranteed Obligations shall have been
indefeasibly paid in full, the Commitments under the Credit Agreement shall have
terminated or expired and all Rate Management Transactions have terminated or
expired. If at any time any payment of the principal of or interest on any Note
or any other amount payable by the Principal or any other party under the Credit
Agreement, any Rate Management Transaction or any other Loan Document is
rescinded or must be otherwise restored or returned upon the insolvency,
bankruptcy or reorganization of the Principal or otherwise, each of the
Subsidiary Guarantor's obligations hereunder with respect to such payment shall
be reinstated as though such payment had been due but not made at such time.
SECTION 6 WAIVERS. Each of the Subsidiary Guarantors irrevocably waives
acceptance hereof, presentment, demand, protest and, to the fullest extent
permitted by law, any notice not provided for herein, as well as any requirement
that at any time any action be taken by any Person against the Principal, any
other guarantor of any of the Guaranteed Obligations, or any other Person.
SECTION 7 SUBROGATION. Each of the Subsidiary Guarantors hereby agrees not
to assert any right, claim or cause of action, including, without limitation, a
claim for subrogation, reimbursement, indemnification or otherwise, against the
Principal arising out of or by reason of this Guaranty or the obligations
hereunder, including, without limitation, the payment or securing or purchasing
of any of the Guaranteed Obligations by any of the Subsidiary Guarantors unless
and until the Guaranteed Obligations are indefeasibly paid in full, any
commitment to lend under the Credit Agreement and any other Loan Documents is
terminated and all Rate Management Transactions have terminated or expired.
SECTION 8 STAY OF ACCELERATION. If acceleration of the time for payment of
any of the Guaranteed Obligations is stayed upon the insolvency, bankruptcy or
reorganization of the Principal, all such amounts otherwise subject to
acceleration under the terms of the Credit Agreement, any Note, any Rate
Management Transaction or any other Loan Document shall nonetheless be payable
by each of the Subsidiary Guarantors hereunder forthwith on demand by the Agent
made at the request of the Required Lenders.
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SECTION 9 CONTRIBUTION, SUBORDINATION OF INTERCOMPANY INDEBTEDNESS.
(a) To the extent that any Subsidiary Guarantor shall make a payment under
this Guaranty (a "Subsidiary Guarantor Payment") which, taking into account all
other Subsidiary Guarantor Payments then previously or concurrently made by any
other Subsidiary Guarantor, exceeds the amount which such Subsidiary Guarantor
would otherwise have paid if each Subsidiary Guarantor had paid the aggregate
Obligations satisfied by such Subsidiary Guarantor Payment in the same
proportion that such Subsidiary Guarantor's "Allocable Amount" (as defined
below) (as determined immediately prior to such Subsidiary Guarantor Payment)
bore to the aggregate Allocable Amounts of each of the Subsidiary Guarantors as
determined immediately prior to the making of such Subsidiary Guarantor Payment,
then following indefeasible payment in full in cash of the Guaranteed
Obligations, termination of the Commitments and termination or expiration of all
Rate Management Transactions, such Subsidiary Guarantor shall be entitled to
receive contribution and indemnification payments from, and be reimbursed by,
each other Subsidiary Guarantor for the amount of such excess, pro rata based
upon their respective Allocable Amounts in effect immediately prior to such
Subsidiary Guarantor Payment. As of any date of determination, the "Allocable
Amount" of any Subsidiary Guarantor shall be equal to the maximum amount of the
claim which could then be recovered from such Subsidiary Guarantor under this
Guaranty without rendering such claim voidable or avoidable under Section 548 of
Chapter 11 of the Bankruptcy Code or under any applicable state Uniform
Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or
common law.
(b) This Section 9 is intended only to define the relative rights of the
Subsidiary Guarantors and nothing set forth in this Section 9 is intended to or
shall impair the obligations of the Subsidiary Guarantors, jointly and
severally, to pay any amounts as and when the same shall become due and payable
in accordance with the terms of this Guaranty. The parties hereto acknowledge
that the rights of contribution and indemnification hereunder shall constitute
assets of the Subsidiary Guarantor to which such contribution and
indemnification is owing. The rights of the indemnifying Subsidiary Guarantors
against other Subsidiary Guarantors under this Section 9 shall be exercisable
upon the full and indefeasible payment of the Obligations and the termination of
the Commitments.
(c) Each Guarantor agrees that any and all claims of such Guarantor against
either the Principal or any other Guarantor hereunder (each, an "OBLIGOR") with
respect to any "Intercompany Indebtedness" (as hereinafter defined), any
endorser, obligor or any other guarantor of all or any part of the Guaranteed
Obligations, or against any of its properties shall be subordinate and subject
in right of payment to the prior payment, in full and in cash, of all Guaranteed
Obligations; provided that, and not in contravention of the foregoing, so long
as no Default has occurred and is continuing such Guarantor may make loans to
and receive payments in the ordinary course with respect to such Intercompany
Indebtedness from the Principal and each other Guarantor to the extent permitted
by the terms of the Credit Agreements and the other Loan Documents.
Notwithstanding any right of any Guarantor to ask, demand, xxx for, take or
receive any payment from any Obligor, all rights, liens and security interests
of such Guarantor, whether now or hereafter arising and howsoever existing, in
any assets of any other Obligor (whether constituting part of any collateral
given to the Agent to secure payment of all or any part
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of the Guaranteed Obligations or otherwise) shall be and are subordinated to the
rights of the Lenders and the Agent in those assets. No Guarantor shall have any
right to possession of any such asset or to foreclose upon any such asset,
whether by judicial action or otherwise, unless and until all of the Guaranteed
Obligations (other than contingent indemnity obligations) shall have been fully
paid and satisfied (in cash) and all financing arrangements pursuant to any Loan
Document among the Principal, the Lenders and the Agent, or any of them, have
been terminated. If all or any part of the assets of any Obligor, or the
proceeds thereof, are subject to any distribution, division or application to
the creditors of such Obligor, whether partial or complete, voluntary or
involuntary, and whether by reason of liquidation, bankruptcy, arrangement,
receivership, assignment for the benefit of creditors or any other action or
proceeding, or if the business of any such Obligor is dissolved or if
substantially all of the assets of any such Obligor are sold, then, and in any
such event (such events being herein referred to as an "INSOLVENCY EVENT"), any
Payment or distribution of any kind or character, either in cash, securities or
other property, which shall be payable or deliverable upon or with respect to
any indebtedness of any Obligor to any Guarantor ("INTERCOMPANY INDEBTEDNESS")
shall be paid or delivered directly to the Agent for application on any of the
Guaranteed Obligations due or to become due, until such Guaranteed Obligations
(other than contingent indemnity obligations) shall have first been fully paid
and satisfied (in cash). Should any payment, distribution, security or
instrument or proceeds thereof be received by the applicable Guarantor upon or
with respect to the Intercompany Indebtedness after any Insolvency Event and
prior to the satisfaction of all of the Guaranteed Obligations (other than
contingent indemnity obligations) and the termination of all financing
arrangements pursuant to any Loan Document among the Company, the Agent and the
Lenders, or any of them, such Guarantor shall receive and hold the same in
trust, as trustee, for the benefit of the Lenders and shall forthwith deliver
the same to the Agent, for the benefit of the Lenders, in precisely the form
received (except for the endorsement or assignment of the Guarantor where
necessary), for application to any of the Guaranteed Obligations due or not due,
and, until so delivered, the same shall be held in trust by the Guarantor as the
property of the Lenders. If any such Guarantor fails to make any such
endorsement or assignment to the Agent, the Agent or any of its, officers or
employees are irrevocably authorized to make the same. Each Guarantor agrees
that until the Guaranteed Obligations (other than the contingent indemnity
obligations) have been paid in full (in cash) and satisfied and all financing
arrangements pursuant to any Loan Document among the Company, the Agent and the
Lenders have been terminated, no Guarantor will assign or transfer to any Person
(other than the Agent) any claim any such Guarantor has or may have against any
Obligor.
SECTION 10 APPLICATION OF PAYMENTS. All payments received by the Agent
hereunder shall be applied by the Agent to payment of the Guaranteed Obligations
in the following order unless a court of competent jurisdiction shall otherwise
direct:
(a) FIRST, to payment of all costs and expenses of the Agent incurred in
connection with the collection and enforcement of the Guaranteed Obligations or
of any security interest granted to the Agent in connection with any collateral
securing the Guaranteed Obligations;
(b) SECOND, to payment of that portion of the Guaranteed Obligations
constituting accrued and unpaid interest and fees, pro rata among the Lenders
and their Affiliates in accordance with the amount of such accrued and unpaid
interest and fees owing to each of them;
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(c) THIRD, to payment of the principal of the Guaranteed Obligations and
the net early termination payments and any other Rate Management Obligations
then due and unpaid from the Borrower to any of the Lenders or their Affiliates,
pro rata among the Lenders and their Affiliates in accordance with the amount of
such principal and such net early termination payments and other Rate Management
Obligations then due and unpaid owing to each of them; and
(d) FOURTH, to payment of any Guaranteed Obligations (other than those
listed above) pro rata among those parties to whom such Guaranteed Obligations
are due in accordance with the amounts owing to each of them.
SECTION 11 NOTICES. All notices, requests and other communications to any
party hereunder shall be given or made by telecopier or other writing and
telecopied, or mailed or delivered to the intended recipient at its address or
telecopier number set forth on the signature pages hereof or such other address
or telecopy number as such party may hereafter specify for such purpose by
notice to the Agent in accordance with the provisions of Article XIII of the
Credit Agreement. Except as otherwise provided in this Guaranty, all such
communications shall be deemed to have been duly given when transmitted by
telecopier, or personally delivered or, in the case of a mailed notice sent by
certified mail return-receipt requested, on the date set forth on the receipt
(provided, that any refusal to accept any such notice shall be deemed to be
notice thereof as of the time of any such refusal), in each case given or
addressed as aforesaid.
SECTION 12 NO WAIVERS. No failure or delay by the Agent or any Lenders in
exercising any right, power or privilege hereunder 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 in this Guaranty, the Credit Agreement, any
Note, any Rate Management Transaction and the other Loan Documents shall be
cumulative and not exclusive of any rights or remedies provided by law.
SECTION 13 NO DUTY TO ADVISE. Each of the Subsidiary Guarantors assumes all
responsibility for being and keeping itself informed of the Principal's
financial condition and assets, and of all other circumstances bearing upon the
risk of nonpayment of the Guaranteed Obligations and the nature, scope and
extent of the risks that each of the Subsidiary Guarantors assumes and incurs
under this Guaranty, and agrees that neither the Agent nor any Lender has any
duty to advise any of the Subsidiary Guarantors of information known to it
regarding those circumstances or risks.
SECTION 14 SUCCESSORS AND ASSIGNS. This Guaranty is for the benefit of the
Agent and the Lenders and their respective successors and permitted assigns and
in the event of an assignment of any amounts payable under the Credit Agreement,
any Note, any Rate Management Transaction, or the other Loan Documents, the
rights hereunder, to the extent applicable to the indebtedness so assigned,
shall be transferred with such indebtedness. This Guaranty shall be binding upon
each of the Subsidiary Guarantors and their respective successors and permitted
assigns.
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SECTION 15 CHANGES IN WRITING. Neither this Guaranty nor any provision
hereof may be changed, waived, discharged or terminated orally, but only in
writing signed by each of the Subsidiary Guarantors and the Agent with the
consent of the Required Lenders.
SECTION 16 COSTS OF ENFORCEMENT. Each of the Subsidiary Guarantors agrees
to pay all costs and expenses including, without limitation, all court costs and
attorneys' fees and expenses paid or incurred by the Agent or any Lender or any
Affiliate of any Lender in endeavoring to collect all or any part of the
Guaranteed Obligations from, or in prosecuting any action against, the
Principal, the Subsidiary Guarantors or any other guarantor of all or any part
of the Guaranteed Obligations.
SECTION 17 GOVERNING LAW, SUBMISSION TO JURISDICTION, WAIVER OF JURY TRIAL.
THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF
THE STATE OF INDIANA. EACH OF THE SUBSIDIARY GUARANTORS HEREBY SUBMITS TO THE
NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF INDIANA AND OF ANY INDIANA STATE COURT SITTING IN ELKHART COUNTY,
INDIANA AND FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO
THIS GUARANTY (INCLUDING, WITHOUT LIMITATION, ANY OF THE OTHER LOAN DOCUMENTS)
OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH OF THE SUBSIDIARY GUARANTORS
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
ANY OF THEM MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH
PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING
BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH OF THE
SUBSIDIARY GUARANTORS, AND THE AGENT AND THE LENDERS ACCEPTING TIES GUARANTY,
HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
SECTION 18 TAXES. ETC. All payments required to be made by any of the
Subsidiary Guarantors hereunder shall be made without setoff or counterclaim and
free and clear of and without deduction or withholding for or on account of, any
present or future taxes, levies, imposts, duties or other charges of whatsoever
nature imposed by any government or any political or taxing authority thereof
(but excluding Excluded Taxes), provided, however, that if any of the Subsidiary
Guarantors is required by law to make such deduction or withholding, such
Subsidiary Guarantor shall forthwith (i) pay to the Agent or any Lender, as
applicable, such additional amount as results in the net amount received by the
Agent or any Lender, as applicable, equaling the full amount which would have
been received by the Agent or any Lender, as applicable, had no such deduction
or withholding been made, (ii) pay the full amount deducted to the relevant
authority in accordance with applicable law, and (iii) furnish to the Agent or
any Lender, as applicable, certified copies of official receipts evidencing
payment of such withholding taxes within 30 days after such payment is made.
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SECTION 19 SETOFF. Without limiting the rights of the Agent or the Lenders
under applicable law, if all or any part of the Guaranteed Obligations is then
due, whether pursuant to the occurrence of a Default or otherwise, then the
Guarantor authorizes the Agent and the Lenders to apply any sums standing to the
credit of the Guarantor with the Agent or any Lender or any Lending Installation
of the Agent or any Lender toward the payment of the Guaranteed Obligations.
SECTION 20 SUPPLEMENTAL GUARANTORS. Pursuant to Section 6.17(a) of the
Credit Agreement, Material Subsidiaries shall become obligated as Subsidiary
Guarantors hereunder (each as fully as though an original signatory hereto) by
executing and delivering to the Agent (with sufficient copies for the Agent and
each of the Lenders) a Subsidiary Guaranty in a form substantially similar to
this form of Subsidiary Guaranty (with blanks appropriately completed) together
with such additional supporting documentation required pursuant to Section
6.17(a) of the Credit Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, each of the Subsidiary Guarantors has caused this
Guaranty to be duly executed by its authorized officer as of the day and year
first above written.
ALL AMERICAN HOMES OF INDIANA, LLC
COACHMEN RECREATIONAL
VEHICLE COMPANY, LLC
GEORGIE BOY MANUFACTURING, LLC
COACHMEN RECREATIONAL
VEHICLE COMPANY OF GEORGIA, LLC
ALL AMERICAN HOMES OF IOWA, LLC
ALL AMERICAN HOMES OF KANSAS, LLC
ALL AMERICAN HOMES OF NORTH
CAROLINA, LLC
ALL AMERICAN HOMES OF OHIO, LLC
XXXXXX BUILDING SYSTEMS, INC.
MOD-U-KRAF HOMES, LLC
___________________________________
___________________________________
___________________________________
By: //XXXXXX X. XXXXXXX
Name: Xxxxxx X. Xxxxxxx
Title: Treasurer
By: //XXXXXXX X. XXXXXX
Name: Xxxxxxx X. Xxxxxx
Title: Secretary
Subsidiary Guaranty
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