EXHIBIT 10(g)
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$275,000,000
CREDIT AGREEMENT
dated as of
May 21, 1998
among
APOGEE ENTERPRISES, INC.
THE LENDERS FROM TIME TO TIME PARTIES HERETO
and
THE BANK OF NEW YORK,
as Administrative Agent,
Letter of Credit Issuer and
Swing Line Lender
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U.S. BANK NATIONAL ASSOCIATION
Syndication Agent
XXXXXX TRUST AND SAVINGS BANK
Documentation Agent
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BNY CAPITAL MARKETS, INC.
Arranger
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS............................................................... 1
Section 1.01 Definitions........................................... 1
(a) Terms Generally...................................... 1
(b) Accounting Terms..................................... 1
(c) Other Terms.......................................... 2
ARTICLE II
THE CREDIT FACILITY....................................................... 15
Section 2.01 Revolving Credit Loans; Borrowing Procedure........... 15
Section 2.02 Swing Line Loans; Borrowing Procedure................. 16
Section 2.03 Termination and Reduction of Commitments.............. 17
Section 2.04 Repayment............................................. 18
Section 2.05 Prepayment............................................ 18
Section 2.06 Letters of Credit..................................... 18
(a) Letters of Credit..................................... 18
(b) Procedure for Obtaining Letter of Credit.............. 19
(c) Participation by Xxxxxxx.............................. 19
(d) Drawings and Reimbursement............................ 19
(e) Security Deposit...................................... 20
ARTICLE III
INTEREST AND FEES......................................................... 20
Section 3.01 Interest Rate Determination; Conversion............... 20
Section 3.02 Interest on ABR Loans................................. 21
Section 3.03 Interest on Eurodollar Loans.......................... 21
Section 3.04 Interest on Overdue Amounts........................... 22
Section 3.05 Day Counts............................................ 22
Section 3.06 Maximum Interest Rate................................. 22
Section 3.07 Fees.................................................. 23
(a) The Commitment Fee.................................... 23
(b) Letter of Credit Fees................................. 23
ARTICLE IV
DISBURSEMENT AND PAYMENT.................................................. 24
Section 4.01 Disbursement.......................................... 24
Section 4.02 Method and Time of Payments; Sharing among Lenders.... 25
Section 4.03 Compensation for Losses............................... 26
Section 4.04 Withholding and Additional Costs...................... 26
(a) Withholding........................................... 26
(b) Additional Costs...................................... 27
(c) Lending Office Designations........................... 28
(d) Certificate, Etc...................................... 28
Section 4.05 Impracticability...................................... 29
Section 4.06 Expenses; Indemnity................................... 29
Section 4.07 Replacement of Lenders................................ 31
Section 4.08 Survival.............................................. 31
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ARTICLE V
REPRESENTATIONS AND WARRANTIES............................................ 31
Section 5.01 Representations and Warranties........................ 31
(a) Corporate Organization and Power...................... 31
(b) Subsidiaries.......................................... 32
(c) Corporate Authority................................... 32
(d) Authorizations........................................ 32
(e) Binding Obligation.................................... 32
(f) Litigation; Labor Controversies....................... 32
(g) No Conflicts.......................................... 33
(h) Financial Condition................................... 33
(i) Taxes................................................. 33
(j) Margin Regulations; Xxxxxx Xxxxx; Use of Proceeds..... 34
(k) Compliance with ERISA................................. 34
(l) Not an Investment Company............................. 34
(m) Properties............................................ 34
(n) Compliance with Laws.................................. 34
(o) Environmental Protection.............................. 34
(p) Insurance............................................. 35
(q) No Burdensome Restrictions; Compliance with Agreements 35
(r) Security Agreements................................... 36
(s) Systems............................................... 36
(t) Full Disclosure....................................... 36
Section 5.02 Survival.............................................. 36
ARTICLE VI
CONDITIONS PRECEDENT...................................................... 36
Section 6.01 Conditions to the Availability of the Commitments..... 36
(a) Credit Documents...................................... 36
(b) Security Documents.................................... 37
(c) Evidence of Corporate Action.......................... 37
(d) Opinions of Counsel................................... 38
(e) Representations and Warranties........................ 38
(f) Existing Facility..................................... 38
(g) Other Documents....................................... 38
(h) Fees.................................................. 38
Section 6.02 Conditions to All Loans............................... 38
(a) Borrowing Request..................................... 39
(b) No Default............................................ 39
(c) Representations and Warranties; Covenants............. 39
Section 6.03 Satisfaction of Conditions Precedent.................. 39
ARTICLE VII
COVENANTS................................................................. 39
Section 7.01 Affirmative Covenants................................. 39
(a) Financial Statements; Compliance Certificates......... 39
(b) Corporate Existence................................... 40
(c) Conduct of Business................................... 40
(d) Authorizations........................................ 41
(e) Taxes................................................. 41
(f) Insurance............................................. 41
(g) Inspection............................................ 41
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(h) Maintenance of Records................................ 41
(i) Maintenance of Property............................... 42
(j) ERISA................................................. 42
(k) Notice of Defaults and Adverse Developments........... 43
(l) Use of Proceeds....................................... 43
(m) Environmental Matters................................. 44
(n) Measurement Date...................................... 44
Section 7.02 Negative Covenants.................................... 44
(a) Mergers, Consolidations and Sales of Assets........... 44
(b) Liens................................................. 44
(c) Indebtedness.......................................... 46
(d) Investments, Acquisitions, Xxxxx, Advances and
Guaranties......................................... 47
(e) Capital Expenditures.................................. 49
(f) Dividends and Purchase of Stock....................... 49
(g) Stock of Subsidiaries................................. 50
(h) Use of Proceeds....................................... 50
(i) Subordinated Debt Transaction......................... 50
Section 7.03 Financial Covenants................................... 50
(a) Net Worth............................................. 50
(b) Interest Coverage Ratio............................... 50
(c) Senior Debt to EBITDA Ratio........................... 51
(d) Debt/EBITDA Ratio..................................... 51
ARTICLE VIII
EVENTS OF DEFAULT......................................................... 51
Section 8.01 Events of Default..................................... 51
ARTICLE IX
THE ADMINISTRATIVE AGENT.................................................. 54
Section 9.01 The Agency............................................ 54
Section 9.02 The Agent's Duties.................................... 54
Section 9.03 Limitation of Liabilities............................. 55
Section 9.04 The Administrative Agent as a Lender.................. 55
Section 9.05 Lender Credit Decision................................ 55
Section 9.06 Indemnification....................................... 55
Section 9.07 Successor Administrative Agent........................ 56
ARTICLE X
EVIDENCE OF LOANS; TRANSFERS.............................................. 57
Section 10.01 Evidence of Loans.................................... 57
Section 10.02 Participations....................................... 57
Section 10.03 Assignments.......................................... 58
Section 10.04. Certain Pledges..................................... 58
ARTICLE XI
MISCELLANEOUS............................................................. 59
Section 11.01. Applicable Law...................................... 59
Section 11.02. Waiver of Jury...................................... 59
Section 11.03. Jurisdiction and Venue; Service of Process.......... 59
Section 11.04. Set-off............................................. 59
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Section 11.05. Amendments and Waivers.............................. 60
Section 11.06. Cumulative Rights; No Waiver........................ 60
Section 11.07. Notices............................................. 60
Section 11.08 Separate Debts....................................... 62
Section 11.09 Certain Acknowledgments.............................. 62
Section 11.10 Separability......................................... 62
Section 11.11 Parties in Interest.................................. 62
Section 11.12 Execution in Counterparts............................ 62
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SCHEDULES
Schedule I -- Lenders and Commitments
Schedule 5.01(b) -- Subsidiaries of the Borrower
Schedule 5.01(f) -- Certain Litigation
Schedule 5.01(h)(ii) -- Financial Condition
Schedule 7.02(b) -- Liens
Schedule 7.02(c) -- Indebtedness
EXHIBITS
Exhibit A-1 -- Form of Revolving Credit Request
Exhibit A-2 -- Form of Swing Line Request
Exhibit B -- Form of Continuation/Conversion Request
Exhibit C-1 -- Form of Revolving Credit Note
Exhibit C-2 -- Form of Swing Line Note
Exhibit D-1 -- Form of Opinion of Counsel for the Borrower
Exhibit D-2 -- Form of Opinion of Counsel for the Administrative
Agent
Exhibit E -- Form of Compliance Certificate
Exhibit F -- Form of Assignment and Acceptance
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CREDIT AGREEMENT, dated as of May 21, 1998, among Apogee Enterprises, Inc.,
a Minnesota corporation (the "BORROWER"), each of the lenders from time to time
parties to this Agreement (collectively, the "LENDERS"), and The Bank of New
York, as letter of credit issuer, administrative agent for the Lenders and swing
line lender.
W I T N E S S E T H:
WHEREAS, the Borrower has requested the Lenders severally to commit to lend
to the Borrower up to $275,000,000 on a revolving basis for general corporate
purposes; and
WHEREAS, the Borrower also has requested the Lenders to establish a
procedure pursuant to which it may obtain as part of the Lenders' commitments to
lend, up to $25,000,000 in face amount of letters of credit for general
corporate purposes; and
WHEREAS, the Lenders are willing to make loans, and to establish such a
procedure, on the terms and conditions provided herein;
NOW, THEREFORE, the parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions.
(a) Terms Generally. The definitions ascribed to terms in this Agreement
apply equally to both the singular and plural forms of such terms. Whenever the
context may require, any pronoun shall be deemed to include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed followed by the phrase "without limitation". The
phrase "individually or in the aggregate" shall be deemed general in scope and
not to refer to any specific Section or clause of this Agreement. All references
herein to Articles, Sections, Exhibits and Schedules shall be deemed references
to Articles and Sections of, and Exhibits and Schedules to, this Agreement
unless the context shall otherwise require. The table of contents, headings and
captions herein shall not be given effect in interpreting or construing the
provisions of this Agreement. All references herein to "dollars" or "$" shall be
deemed references to the lawful money of the United States of America. All
references to laws or regulations refer to such laws or regulations, and
interpretations thereof, as now in effect or as amended, modified or superceded
from time to time. All references to a specific Governmental Authority shall be
deemed to include a reference to any successor to such authority.
(b) Accounting Terms. Except as otherwise expressly provided herein, the
term "consolidated" and all other terms of an accounting nature shall be
interpreted and construed in accordance with GAAP, as in effect from time to
time; PROVIDED, HOWEVER, that, for purposes of determining compliance with any
covenant set forth in Article VII, such terms shall be construed in accordance
with GAAP as in effect on the date of this Agreement, applied on a basis
consistent with the construction thereof applied in preparing the Borrower's
audited financial statements referred to in Section 5.01(h). If there shall
occur a change in GAAP which but for the foregoing proviso would affect the
computation used to determine compliance with any covenant set forth
in Article VII, the Borrower and the Lenders agree to negotiate in good faith in
an effort to agree upon an amendment to this Agreement that will permit
compliance with such covenant to be determined by reference to GAAP as changed
while affording the Lenders the protection originally intended by such covenant
(it being understood, however, that such covenant shall remain in effect in
accordance with its existing terms unless and until such amendment shall become
effective).
(c) Other Terms. The following terms are used herein with the meanings
assigned below:
"ABR LOANS" means Loans that bear interest at a rate or rates
determined by reference to the Alternate Base Rate.
"ADMINISTRATIVE AGENT" means The Bank of New York, acting in the
capacity of administrative agent for the Lenders, or any successor
administrative agent appointed pursuant to the terms of this Agreement.
"ADMINISTRATIVE QUESTIONNAIRE" means an administrative details reply
form delivered by a Lender to the Administrative Agent, in substantially
the form provided by the Administrative Agent or the form attached to an
Assignment and Acceptance.
"AFFECTED LENDER" has the meaning assigned in Section 4.07.
"AFFILIATE" means, with respect to any Person, any other Person that
controls, is controlled by, or is under common control with, such Person.
"AGREEMENT" means this credit agreement, as it may be amended,
modified or supplemented from time to time in accordance with Section
11.05.
"ALTERNATE BASE RATE" means, for any day, a rate per annum equal to
the greater of:
(i) the rate of interest from time to time publicly announced by
the Administrative Agent in The City of New York as its prime
commercial loan rate in effect on such day; and
(ii) the sum of (a) 1/2 of 1% per annum and (b) the Federal Funds
Rate in effect on such day.
The Alternate Base Rate shall change as and when the greater of the
foregoing rates shall change. Any change in the Alternate Base Rate shall
become effective as of the opening of business on the day of such change.
"APPLICABLE LENDING OFFICE" means, with respect to a Lender and a
Loan, the applicable office of the Lender for making such Loan, as
specified in SCHEDULE I or in an Administrative Questionnaire delivered to
the Administrative Agent as the office from which such Xxxxxx makes Loans
of the relevant type.
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"APPLICABLE MARGIN" means, at any date and with respect to each Loan,
the applicable margin set forth below based upon the Debt/EBITDA Ratio as
of such date (it being understood that measurement of the Debt/EBITDA as of
any Measurement Date is sufficient for this purpose):
Applicable Margin
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Eurodollar
Debt/EBITDA Ratio ABR Loans Loans
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4.00 or greater 0.250% 1.500%
3.50 or greater, but less than 4.00 0.000 1.250
3.00 or greater, but less than 3.50 0.000 1.125
2.50 or greater, but less than 3.00 0.000 0.750
2.00 or greater, but less than 2.50 0.000 0.625
Less than 2.00 0.000 0.500
Notwithstanding the foregoing:
(i) Prior to the date of final determination of EBITDA for the fiscal
quarter of the Borrower to end on May 31, 1998, the Applicable Margin for
Eurodollar Loans shall not be less than 1.125%; and
(ii) If the Subordinated Debt Transaction shall not have been
completed on or prior to the 180th day after the Effective Date, then the
Applicable Margin shall be 0.250% per annum above the rate otherwise
determined until the Security Release Date.
"ASSIGNEE" has the meaning assigned in Section 10.03.
"ASSIGNMENT AND ACCEPTANCE" has the meaning assigned in Section 10.03.
"AVAILABLE COMMITMENT" means, on any day, an amount equal to (i) the
Total Commitment on such day MINUS (ii) the aggregate outstanding principal
amount of Loans and L/C Obligations on such day.
"BORROWER" shall have the meaning assigned in the preamble.
"BORROWING DATE" means, (i) with respect to any Loan, the Business Day
set forth in the relevant Borrowing Request as the date upon which the
Borrower desires to borrow such Loan and (ii) with respect to any Letter of
Credit, the Business Day set forth in the relevant L/C Request as the date
upon which the Borrower desires the L/C Issuer to issue such Letter of
Credit.
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"BORROWING REQUEST" means a Revolving Credit Request, a Swing Line
Request or a L/C Request.
"BUSINESS DAY" means any day that is (i) not a Saturday, Sunday or
other day on which commercial banks in The City of New York are authorized
or required by law to close and (ii) with respect to any Eurodollar Loan, a
day on which commercial banks are open for domestic and international
business (including dealings in dollar deposits) in London and The City of
New York.
"CAPITAL EXPENDITURES" means, for any period, the aggregate of all
expenditures (whether paid in cash or accrued as liabilities, and including
that portion of Capital Lease Obligations that is capitalized on the
consolidated balance sheet of the Borrower and its Subsidiaries) by the
Borrower and its Subsidiaries during such period that are included in the
property, plant or equipment reflected in the consolidated balance sheet of
the Borrower and its Subsidiaries.
"CAPITAL LEASE OBLIGATIONS" means, with respect to any Person, the
obligation of such Person to pay rent or other amounts under any lease with
respect to any property (whether real, personal or mixed) acquired or
leased by such Person that is required to be accounted for as a liability
on a consolidated balance sheet of such Person.
"CODE" means the Internal Revenue Code of 1986.
"COLLATERAL AGENT" means The Bank of New York, acting in its capacity
of agent for the Lenders under the various Security Documents.
"COMMITMENT" means, with respect to a Lender, (i) on the date hereof,
the amount set forth opposite such Xxxxxx's name under the heading
"Commitment" on SCHEDULE I, and (ii) after the date hereof, the amount
recorded as such in the records maintained by the Administrative Agent
pursuant to Section 10.01, as such amount may be reduced from time to time
pursuant to Section 2.03.
"COMMITMENT FEE" has the meaning assigned in Section 3.07(a).
"COMMITMENT TERMINATION DATE" means the earlier to occur of (i) May
21, 2003 and (ii) the date, if any, on which the Total Commitment is
otherwise terminated pursuant to this Agreement.
"CONTRACTUAL OBLIGATION" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or
undertaking to which such Person is a party or by which it or any of its
Property is bound.
"CONTRIBUTION AGREEMENT" means a contribution agreement, dated as of
the date hereof, to be entered into in substantially the form of the
Existing Contribution Agreement.
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"CONVERSION DATE" means, with respect to a Revolving Credit Loan, the
date on which a conversion of interest rates on such Revolving Credit Loan
shall take effect.
"CONVERSION REQUEST" means a request by the Borrower to convert the
interest rate basis for all or portions of outstanding Revolving Credit
Loans, which shall specify (i) the requested Conversion Date, which shall
not be sooner than the third Business Day after the date of delivery of
such Conversion Request, (ii) the aggregate amount of such Revolving Credit
Loans, on and after the Conversion Date, which are to bear interest as ABR
Loans or Eurodollar Loans and (iii) the term of the Interest Periods
therefor, if any.
"CREDIT DOCUMENTS" means this Agreement, any Notes, if and when issued
in accordance with Section 10.01(d), any Letters of Credit and the related
applications and agreements, the Supplemental Credit Documents and the
Security Documents.
"DEBT" means, for any Person, Indebtedness of such Person of the types
described in clauses (i), (ii), (iii), (iv), (vi), (vii) and (viii) of the
definition of such term but excluding any Indebtedness of such Person
consisting of (a) any surety bond or any other obligations of like nature,
including, without limitation, letters of credit serving the same function
as a surety bond, PROVIDED that such surety bond or other obligation has
been provided to such Person in the ordinary course of such Person's
business and PROVIDED, FURTHER, that if there has been a demand or drawing
made under any such surety bond or other obligation, then such surety bond
or other obligation shall be included as Indebtedness of such Person in an
amount equal to the unreimbursed amount of such demand or the unreimbursed
amount of such drawing and (b) any trade payable incurred in the ordinary
course of such Person's business so long as no note or similar instrument
has been executed by such Person in connection with such trade payable.
"DEBT/EBITDA RATIO" means, at any date of determination, the ratio of
consolidated Debt of the Borrower, as of such date, to EBITDA at the most
recent fiscal quarter-end for the preceding four fiscal quarters.
"DEFAULT" means any event or circumstance which, with the giving of
notice or the passage of time, or both, would be an Event of Default.
"EBITDA" means, for any period, the consolidated net income of the
Borrower for such period, before subtracting consolidated income taxes,
Interest Expense, depreciation, and amortization (including, without
limitation, amortization associated with goodwill, deferred debt expenses,
restricted stock and option costs and non-competition agreements) of the
Borrower for such period. For purposes of this Agreement, the parties
hereto agree that, for the avoidance of doubt, the calculation of EBITDA
for each quarter in the fiscal year ended February 28, 1998 is $15,925,000.
In addition, the parties agree that income, expenses and charges for
Xxxxxx, Ltd. in future fiscal years beginning with fiscal year 1999
relating to discontinued operations or "unusual items", as listed on the
Borrower's consolidated income statements (subject to a maximum of
$5,000,000 per annum), shall be excluded from EBITDA.
"EFFECTIVE DATE" shall mean the day during which the Effective Time
occurs.
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"EFFECTIVE TIME" has the meaning assigned in Section 6.01.
"ELIGIBLE AFFILIATE" means an Affiliate that is (i) a commercial bank
organized or licensed under the laws of the United States, or any state
thereof, and having a combined capital and surplus of at least
$500,000,000; (ii) a commercial bank organized under the laws of any other
country which is a member of the Organization for Economic Cooperation and
Development, or a political subdivision of any such country, and having a
combined capital and surplus of at least $100,000,000, provided that such
bank is acting through a branch or agency located in the United States;
(iii) a Person that is primarily engaged in the business of commercial
banking and having a combined capital and surplus of at least $100,000,000;
or (iv) a special purpose corporation which is engaged in making,
purchasing or otherwise investing in commercial loans in the ordinary
course of business and having a combined capital and surplus of at least
$100,000,000.
"ENVIRONMENTAL CLAIM" means any claim, assertion, demand, notice of
violation, suit, administrative or judicial proceeding, regulatory action,
investigation, information request or order involving any hazardous
substance, Environmental Law, noise or odor pollution or any injury or
threat of injury to human health, property or the environment.
"ENVIRONMENTAL LAW" means any federal, state, local or foreign law,
regulation, order, decree, opinion or agency requirement relating to (i)
the handling, use, presence, disposal or release of any hazardous substance
or (ii) the protection, preservation or restoration of the environment,
natural resources or human health or safety.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA GROUP" means the Borrower and all members of a controlled group
of corporations and all trades or businesses (whether or not incorporated)
under common control which, together with the Borrower, are treated as a
single employer under Section 414 of the Code or are considered to be one
employer under Section 4001 of ERISA.
"EURODOLLAR LOANS" means Revolving Credit Loans that bear interest at
a rate or rates determined by reference to LIBOR.
"EURODOLLAR RESERVE PERCENTAGE" means, for any day, the percentage
prescribed by the Federal Reserve Board for determining the maximum reserve
requirement (including any marginal, supplemental or emergency reserve
requirements) on such day for a member bank of the Federal Reserve System
in The City of New York with deposits exceeding one billion dollars in
respect of "eurocurrency liabilities" (as defined in Regulation D of the
Federal Reserve Board).
"EUROPEAN SUBSIDIARY" means a Subsidiary of the Borrower which, as of
the date hereof, exists and is organized under the laws of, and of which
the principal place of business is located in, a European country.
"EVENT OF DEFAULT" has the meaning assigned in Section 8.01.
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"EXCLUDED TAXES" means all present and future taxes, levies, imposts,
duties, deductions, withholdings, fees, liabilities and similar charges
imposed on or measured by the overall net income of any Lender (or any
office, branch or subsidiary of such Lender) or any franchise taxes, taxes
on doing business or taxes measured by capital or net worth imposed on any
Lender (or any office, branch or subsidiary of such Lender), in each case
imposed by the United States of America or any political subdivision or
taxing authority thereof or therein, or taxes on or measured by the overall
net income of any office, branch or subsidiary of a Lender or any franchise
taxes, taxes imposed on doing business or taxes measured by capital or net
worth imposed on any office, branch or subsidiary of such Lender, in each
case imposed by any foreign country or subdivision thereof in which such
Lender's principal office or Eurodollar Lending Office (as set forth in the
Administrative Questionnaire) is located.
"EXISTING CREDIT AGREEMENT" means the Credit Agreement, dated as of
April 29, 1996 and thereafter amended, by and among the Borrower, the banks
from time to time parties thereto, ABN AMRO Bank N.V., as agent, and First
Bank National Association, as co-agent.
"EXISTING CONTRIBUTION AGREEMENT" means the Contribution Agreement,
dated as of the 23rd day of April, 1998, by and among the Borrower and each
of its Subsidiaries.
"EXISTING INTERCREDITOR AGREEMENT" means the Intercreditor Agreement,
dated as of the 23rd day of April, 1998, by and among ABN AMRO Bank N.V.,
the banks party to the Existing Credit Agreement and the other creditors
and lenders parties thereto.
"EXISTING PLEDGE AGREEMENT" means the Pledge Agreement, dated as of
April 23, 1998, by and among the Borrower, the other pledgors party thereto
and ABN AMRO Bank N.V., as administrative and collateral agent.
"EXISTING SECURITY AGREEMENT" means the Security Agreement, dated as
of April 23, 1998, by and among the Borrower, the other debtors party
thereto and ABN AMRO Bank N.V., as administrative and collateral agent.
"EXISTING SUBSIDIARY GUARANTY" means the Subsidiary Guaranty
Agreement, dated as of April 23, 1998, by the guarantors party thereto in
favor of ABN AMRO Bank N.V., as agent for the secured creditors identified
therein.
"FEDERAL FUNDS RATE" means, for any day, the rate per annum (rounded,
if necessary, to the next greater 1/16 of 1%) equal to the weighted average
of the rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day; PROVIDED that (i) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions
on the next preceding Business Day, and (ii) if no such rate is so
published on such next succeeding Business Day, then the Federal Funds Rate
for such day shall be the average rate quoted to the Administrative Agent
on such day on such transactions, as determined by the Administrative
Agent.
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"FEDERAL RESERVE BOARD" means the Board of Governors of the Federal
Reserve System.
"FINANCIAL COVENANTS" means, collectively, the covenants of the
Borrower contained in Section 7.03.
"GAAP" means generally accepted accounting principles, as set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entities as may be approved by a significant
segment of the accounting profession of the United States of America.
"GOVERNMENTAL AUTHORITY" means any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"GUARANTY" means, with respect to any Person, any obligation,
contingent or otherwise, of such Person guaranteeing or having the economic
effect of guaranteeing any Indebtedness of any other Person (the "PRIMARY
OBLIGOR") in any manner, whether directly or indirectly, and including any
obligation of such Person, (i) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Indebtedness or to purchase (or
to advance or supply funds for the purchase of) any security for the
payment of such Indebtedness, (ii) to purchase property, securities or
services for the purpose of assuring the holder of such Indebtedness of the
payment of such Indebtedness or (iii) to maintain working capital, equity
capital or the financial condition or liquidity of the primary obligor so
as to enable the primary obligor to pay such Indebtedness. The terms
"GUARANTEED", "GUARANTEEING" and "GUARANTOR" shall have corresponding
meanings.
"HAZARDOUS SUBSTANCE" means any substance, in any concentration or
mixture, that is (i) listed, classified or regulated pursuant to any
Environmental Law, (ii) petroleum product or by-product, asbestos
containing material, polychlorinated biphenyls, radioactive material or
radon or (iii) any waste or other substance regulated by any Governmental
Authority or any Environmental Law.
"INDEBTEDNESS" means, with respect to any Person, (i) all obligations
of such Person for borrowed money or for the deferred purchase price of
property or services (including all obligations, contingent or otherwise,
of such Person in connection with letters of credit, bankers' acceptances,
Interest Rate Protection Agreements (limited to the exposure) or other
similar instruments, including currency swaps) other than indebtedness to
trade creditors and service providers incurred in the ordinary course of
business and payable on usual and customary terms, (ii) all obligations of
such Person evidenced by bonds, notes, debentures or other similar
instruments, (iii) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the remedies available to the
seller or lender under such agreement are limited to repossession or sale
of such property), (iv) all Capital Lease Obligations of such Person, (v)
all obligations of the
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types described in clauses (i), (ii), (iii) or (iv) above secured by (or
for which the obligee has an existing right, contingent or otherwise, to be
secured by) any Lien upon or in any property (including accounts, contract
rights and other intangibles) owned by such Person, even though such Person
has not assumed or become liable for the payment of such Indebtedness, (vi)
all preferred stock issued by such Person which is redeemable, prior to
full satisfaction of the Borrower's obligations under the Credit Documents
(including repayment in full of the Loans and all interest accrued
thereon), other than at the option of such Person, valued at the greater of
its voluntary or involuntary liquidation preference plus accrued and unpaid
dividends, (vii) all Indebtedness of others Guaranteed by such Person and
(viii) all Indebtedness of any partnership of which such Person is a
general partner.
"INDEMNITEE" has the applicable meaning assigned in Sections 4.06(b)
and 4.06(c).
"INTEREST EXPENSE" means, for any period, the sum of all interest
charges of the Borrower and its Subsidiaries for such period determined on
a consolidated basis in accordance with GAAP, including all commitment
fees, letter of credit fees and related charges.
"INTEREST PERIOD" means, with respect to any Eurodollar Loan, each
one, two, three or six-month period, such period being the one selected by
the Borrower pursuant to Section 2.02 or 3.01 or 3.03(b) and commencing on
the date such Loan is made or at the end of the preceding Interest Period,
as the case may be; PROVIDED, HOWEVER, that:
(i) any Interest Period that otherwise would end on a day that is
not a Business Day shall, subject to clause (iii) below, be extended
to the next Business Day, unless such Business Day falls in another
calendar month, in which case such Interest Period shall end on the
next preceding Business Day;
(ii) any Interest Period that begins on the last Business Day of
a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall, subject to clause (iii) below, end on the last Business
Day of a calendar month; and
(iii) any Interest Period that otherwise would end after the
Commitment Termination Date shall end on such Termination Date.
"INTERCREDITOR AGREEMENT" means an intercreditor agreement, dated as
of the date hereof, to be entered into in substantially the form of the
Existing Intercreditor Agreement.
"INTEREST RATE PROTECTION AGREEMENT" means any interest rate swap
agreement, interest rate cap agreement or similar hedging arrangement used
by a Person to fix or cap a floating rate of interest on Indebtedness to a
negotiated maximum rate or amount.
"INVESTMENTS" has the meaning assigned in Section 7.02(d).
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"L/C ISSUER" means The Bank of New York, acting in the capacity of
issuer of Letters of Credit.
"L/C OBLIGATIONS" means, with respect to any Lender at any date of
determination, the sum of (i) such Xxxxxx's participating share of the
maximum aggregate amount which is or at any time thereafter may become
available for drawings under all Letters of Credit then outstanding AND
(ii) the aggregate amount such Lender is obligated to fund or has funded to
the L/C Issuer as a result of such Xxxxxx's participating share in all
drawings under Letters of Credit honored by the L/C Issuer and not yet
reimbursed by the Borrower; PROVIDED that the L/C Issuer's participating
share of such aggregate amounts shall be equal to the portions of such
undrawn amounts in which the other Lenders have not acquired participating
interests, or the portions of such drawings which the other Lenders are not
obligated to fund pursuant to Section 2.06.
"L/C REQUEST" means a request by the Borrower for a Letter of Credit,
which shall (i) specify (A) the requested Borrowing Date and (B) the
aggregate amount of the L/C Obligations with respect to the requested
Letter of Credit, (ii) certify that, after issuance of the requested Letter
of Credit, (A) the aggregate amount of the L/C Obligations of all the
Lenders then outstanding will not exceed $25,000,000, and (B) the sum of
the aggregate amount of the L/C Obligations of all the Lenders then
outstanding and the aggregate amount of the Loans of all the Lenders then
outstanding will not exceed the Total Commitment then in effect and (iii)
be accompanied by such application and agreement for letter of credit, and
such other documents, as the L/C Issuer may reasonably specify to the
Borrower from time to time, all in form and substance reasonably
satisfactory to the L/C Issuer.
"LENDERS" has the meaning assigned in the preamble and includes the
Swing Line Lender, as applicable.
"LETTER OF CREDIT" has the meaning assigned in Section 2.06(a).
"LETTER OF CREDIT FEES" has the meaning assigned in Section 3.07(b).
"LIBOR" means, with respect to any Interest Period, the rate per annum
determined by the Administrative Agent to be the offered rate for dollar
deposits with a term comparable to such Interest Period that appears on the
display designated as Page 3750 on the Dow Xxxxx Telerate Service (or such
other page as may replace such page on such service, or on another service
designated by the British Bankers' Association, for the purpose of
displaying the rates at which dollar deposits are offered by leading banks
in the London interbank deposit market) at approximately 11:00 A.M., London
time, on the second Business Day preceding the first day of such Interest
Period. If such rate does not appear on such page, "LIBOR" shall mean the
arithmetic mean (rounded, if necessary, to the next higher 1/16 of 1%) of
the respective rates of interest communicated by the LIBOR Reference Banks
to the Administrative Agent as the rate at which U.S. dollar deposits are
offered to the LIBOR Reference Banks by leading banks in the London
interbank deposit market at approximately 11:00 A.M., London time, on the
second Business Day preceding the first day of such Interest Period in an
amount
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substantially equal to the respective LIBOR Reference Amounts for a term
equal to such Interest Period.
"LIBOR REFERENCE AMOUNT" means, with respect to any LIBOR Reference
Bank and Interest Period, the amount of the Eurodollar Loan of the Lender
which is, or is affiliated with, such LIBOR Reference Bank, scheduled to be
outstanding during that Interest Period without taking into account any
assignment or participation and rounded up to the nearest integral multiple
of $1,000,000.
"LIBOR REFERENCE BANK" means each of The Bank of New York, U.S. Bank
National Association and Xxxxxx Trust and Savings Bank; PROVIDED that if
any such LIBOR Reference Bank assigns its Commitment or all its Loans to an
unaffiliated institution, such Person shall be replaced as a LIBOR
Reference Bank by the Administrative Agent's appointment, in consultation
with the Borrower and with the consent of the Required Lenders, of another
bank which is a Lender (or an Affiliate of a Lender).
"LIEN" means, with respect to any asset of a Person, (i) any mortgage,
deed of trust, lien, pledge, encumbrance, charge or security interest in or
on such asset, (ii) the interest of a vendor or lessor under any
conditional sale agreement, capital lease or title retention agreement
relating to such asset, and (iii) in the case of securities, any purchase
option, call or similar right of any other Person with respect to such
securities.
"LOANS" means, collectively, the Revolving Credit Loans and the Swing
Line Loans outstanding hereunder from time to time.
"MARGIN REGULATIONS" means, collectively, Regulations G, T, U and X of
the Federal Reserve Board.
"MATERIAL ADVERSE EFFECT" means (i) any material and adverse effect on
the consolidated business, properties, condition (financial or otherwise)
or operations, present or prospective, of the Borrower and its
Subsidiaries, (ii) any material and adverse effect on the ability of the
Borrower timely to perform any of its material obligations, or of the
Lenders to exercise any remedy, under any Credit Document or (iii) any
adverse effect on the legality, validity, binding nature or enforceability
of any Credit Document.
"MATERIAL PLAN" has the meaning assigned in Section 8.01(j).
"MEASUREMENT DATE" means any of the dates specified in Section
7.01(n).
"MULTIEMPLOYER PLAN" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA to which any member of the ERISA Group is making or
accruing an obligation to make contributions or has within the preceding
five plan years made or accrued contributions.
"NET WORTH" means, as of any date of determination, the total
consolidated stockholders' equity (determined without duplication) of the
Borrower and its Subsidiaries at such date.
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"NEW INDEBTEDNESS" means, with respect to any Person, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, notes, debentures or other similar instruments,
and (iii) all preferred stock issued by such Person which is redeemable,
prior to full satisfaction of the Borrower's obligations under the Credit
Documents (including repayment in full of the Loans and all interest
accrued thereon), other than at the option of such Person, valued at the
greater of its voluntary or involuntary liquidation preference plus accrued
and unpaid dividends, PROVIDED, HOWEVER, that New Indebtedness shall not
include (a) new issuances of industrial revenue bonds or industrial
development bonds which do not exceed an aggregate amount of $10,000,000
per issuance, and (b) any New Indebtedness defined in clauses (i) through
(iii) having a maturity of six months or less.
"NOTES" means, collectively, the Revolving Credit Notes and the Swing
Line Note.
"PARTICIPANT" has the meaning assigned in Section 10.02.
"PBGC" means the Pension Benefit Guaranty Corporation.
"PENSION PLAN" means a Plan that (i) is an employee pension benefit
plan, as defined in Section 3(3) of ERISA (other than a Multiemployer Plan)
and (ii) is subject to the provisions of Title IV of ERISA or is subject to
the minimum funding standards under Section 412 of the Code.
"PERMITTED LIENS" has the meaning assigned in Section 7.02(b).
"PERSON" means any individual, sole proprietorship, partnership, joint
venture, limited liability company trust, unincorporated organization,
association, corporation, institution, public benefit corporation, entity
or government (whether federal, state, county, city, municipal or
otherwise, including any instrumentality, division, agency, body or
department thereof).
"PLAN" means an employee benefit plan as defined in Section 3(3) of
ERISA (other than a Multiemployer Plan) which is maintained or contributed
to by the Borrower or any member of the ERISA Group.
"PLEDGE AGREEMENT" means a pledge agreement, dated as of the date
hereof, to be entered into in substantially the form of the Existing Pledge
Agreement.
"PRESCRIBED FORMS" has the meaning assigned in Section 4.04(a).
"PRO RATA SHARE" means, with respect to any Lender at any time of
determination, the proportion of such Xxxxxx's Commitment to the Total
Commitment then in effect or, after the Commitment Termination Date, the
proportion of such Xxxxxx's Loans and L/C Obligations to the aggregate
amount of Loans and L/C Obligations then outstanding.
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"PROPERTY" means any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible, whether now
owned or hereafter acquired.
"REQUIRED LENDERS" means, at any date of determination, Lenders having
at least 51% of the Total Commitment then in effect or, if the Total
Commitment has been cancelled or terminated, holding at least 51% of the
aggregate unpaid principal amount of the Loans then outstanding; PROVIDED
that to the extent there is more than one Lender, Required Lenders shall
include at least two Lenders.
"RESPONSIBLE OFFICER" means the chief executive officer, president,
chief financial officer, chief accounting officer, treasurer or any vice
president, senior vice president or executive vice president of the
Borrower.
"REVOLVING CREDIT LOANS" means, collectively, the loans outstanding
pursuant to Section 2.01 from time to time.
"REVOLVING CREDIT NOTES" means, collectively, promissory notes of the
Borrower, issued in accordance with Section 10.01(d), in order to evidence
Revolving Credit Loans and substantially in the form of EXHIBIT C-1.
"REVOLVING CREDIT REQUEST" means a request by the Borrower for
Revolving Credit Loans, which shall specify (i) the requested Borrowing
Date, (ii) the aggregate amount of such Revolving Credit Loans, (iii)
whether such Revolving Credit Loans are to bear interest initially as ABR
Loans or Eurodollar Loans and (iv) if applicable, the initial Interest
Period therefor.
"SEC" means the Securities and Exchange Commission.
"SECURITY AGREEMENT" means a security agreement, dated as of the date
hereof, to be entered into in substantially the form of the Existing
Security Agreement.
"SECURITY DOCUMENTS" means, collectively, the Contribution Agreement,
the Intercreditor Agreement, the Pledge Agreement, the Security Agreement
and the Subsidiary Guaranty, as well as any financing statements filed or
to be filed in connection therewith.
"SECURITY RELEASE DATE" means the earlier to occur of (i) completion
of the Subordinated Debt Transaction and (ii) delivery by the Borrower of a
certificate, signed by a Responsible Officer, to the effect that during two
consecutive fiscal quarters the Debt/EBITDA Ratio has been below 2.50.
"SENIOR DEBT" means all Debt of the Borrower or its Subsidiaries that
is not by its terms subordinated to any other Debt of the Borrower or its
Subsidiaries.
"SENIORDEBT/EBITDA RATIO" means, at any date of determination, the
ratio of consolidated Senior Debt of the Borrower, as of such date, to
EBITDA at the most recent fiscal quarter-end for the preceding four fiscal
quarters.
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"SUBORDINATED DEBT TRANSACTION" means the issuance by the Borrower of
subordinated notes having an aggregate initial offering price of at least
$100,000,000 in an underwritten transaction, either registered under the
Securities Act of 1933 or exempt from such registration pursuant to Rule
144A thereunder, on terms and conditions satisfactory to the Administrative
Agent, and the application of up to $100,000,000 of the net proceeds
thereof to prepay Loans and reduce the Total Commitment.
"SUBSIDIARY" means, at any time and with respect to any Person, any
other Person the shares of stock or other ownership interests of which
having ordinary voting power to elect a majority of the board of directors
or other matters of such Person are at the time owned, or the management or
policies of which is otherwise at the time controlled, directly or
indirectly through one or more intermediaries (including other
Subsidiaries) or both, by such first Person. Unless otherwise qualified or
the context indicates clearly to the contrary, all references to a
"Subsidiary" or "Subsidiaries" in this Agreement refer to a Subsidiary or
Subsidiaries of the Borrower.
"SUBSIDIARY GUARANTY" means a Guaranty, dated as of the date hereof,
to be entered into in substantially the form of the Existing Subsidiary
Guaranty.
"SUPPLEMENTAL CREDIT DOCUMENTS" means, collectively, Interest Rate
Protection Agreements, letters of credit and other extensions of credit and
similar instruments entered into between The Bank of New York, any Lender
or any of their Affiliates and one or more of the Borrowers or its
Subsidiaries in connection with the transactions contemplated by the other
Credit Documents.
"SWING LINE LENDER" means The Bank of New York, acting in the capacity
of Lender of Swing Line Loans hereunder.
"SWING LINE LOANS" means, collectively, the loans outstanding pursuant
to Section 2.02 from time to time.
"SWING LINE NOTE" means a promissory note of the Borrower, issued in
accordance with Section 10.01(d), in order to evidence a Swing Line Loan
and substantially in the form of EXHIBIT C-2.
"SWING LINE MATURITY DATE" means, with respect to any Swing Line Loan,
the Business Day set forth in the relevant Swing Line Request as the date
upon which such Swing Line Loan matures; PROVIDED that such date shall be
no later than the seventh calendar day following the relevant Borrowing
Date.
"SWING LINE REQUEST" means a request by the Borrower for a Swing Line
Loan, which shall specify (i) the requested Borrowing Date, (ii) the
requested date of maturity and (iii) the amount of such Swing Line Loan.
"TAXES" has the meaning assigned to such term in Section 4.04(a).
"TOTAL COMMITMENT" means, on any day, the aggregate Commitment of all
the Lenders on such day.
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"UNFUNDED VESTED LIABILITIES" means, with respect to any Plan at any
time, the amount (if any) by which (i) the present value of all vested
nonforfeitable accrued benefits under such Plan exceeds (ii) the fair
market value of all Plan assets allocable to such benefits, all determined
as of the then most recent valuation date for such Plan, but only to the
extent that such excess represents a potential liability of a member of the
ERISA Group to the PBGC or the Plan under Title IV of ERISA.
"U.S. SUBSIDIARY" means a Subsidiary of the Borrower which, as of the
date hereof, exists and is organized under the laws of, and of which the
principal place of business is located in, any state in the United States
of America.
"WELFARE PLAN" means a "WELFARE PLAN", as defined in Section 3(1) of
ERISA.
"WHOLLY OWNED SUBSIDIARY" means, at any time and with respect to any
Person, a Subsidiary, all the shares of stock of all classes of which
(other than directors' qualifying shares) or other ownership interests at
the time are owned directly or indirectly by such Person and/or one or more
other Wholly Owned Subsidiaries of such Person.
ARTICLE II
THE CREDIT FACILITY
Section 2.01 Revolving Credit Loans; Borrowing Procedure. (a) Until the
Commitment Termination Date, subject to the terms and conditions of this
Agreement, each of the Lenders, severally and not jointly with the other
Lenders, agrees to make Revolving Credit Loans in dollars to the Borrower in an
aggregate principal amount at any one time outstanding not to exceed such
Xxxxxx's Commitment. Revolving Credit Loans shall be made on any Borrowing Date
only (i) in the minimum aggregate principal amount of (A) in the case of
Eurodollar Loans, $5,000,000 or integral multiples of $1,000,000 in excess
thereof or (B) in the case of ABR Loans, $1,000,000 or integral multiples of
$500,000 in excess thereof (PROVIDED that ABR Loans may always be borrowed in
the aggregate amount of the Available Commitment) and (ii) when taken together
with all Loans and L/C Obligations then outstanding in a maximum aggregate
principal amount not exceeding the Available Commitment (after giving effect to
any repayments or prepayments and any other borrowings of Loans on such
Borrowing Date). The Available Commitment may be utilized by the Borrower to
obtain Letters of Credit in accordance with Section 2.06.
(b) In order to borrow Revolving Credit Loans, the Borrower shall give a
Revolving Credit Request to the Administrative Agent, by telephone, telex or
telecopy or in writing, not later than 12:00 P.M. (noon) (if by telephone, to be
so confirmed in substantially the form of EXHIBIT A-1 not later than 2:00 P.M.),
New York time, (i) on the Borrowing Date for ABR Loans and (ii) on the third
Business Day before the Borrowing Date for Eurodollar Loans. Upon receipt, the
Administrative Agent forthwith shall give notice to each Lender of the substance
of the Revolving Credit Request. With respect to any Borrowing Date, the
Borrower may only deliver a single Revolving Credit Request to the
Administrative Agent. Not later than 3:00 P.M., New York time, on the Borrowing
Date, each Lender shall make available to the Administrative
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Agent such Xxxxxx's Pro Rata Share of the requested Revolving Credit Loans in
funds immediately available at the Administrative Agent's office specified
pursuant to Section 11.07(a). Subject to satisfaction, or waiver by all of the
Lenders, of each of the applicable conditions precedent contained in Article VI,
on the Borrowing Date the Administrative Agent shall make available, in like
funds, to the Borrower the amounts received by the Administrative Agent from the
Lenders.
Section 2.02 Swing Line Loans; Borrowing Procedure. (a) Until the
Commitment Termination Date, subject to the terms and conditions of this
Agreement, the Swing Line Lender may, at its option, make one or more Swing Line
Loans in dollars to the Borrower in an aggregate principal amount at any one
time outstanding not to exceed $5,000,000. Swing Line Loans, if made, shall be
made on any Borrowing Date only (i) in the minimum aggregate principal amount of
$250,000 or integral multiples of $100,000 in excess thereof and (ii), when
taken together with all other Loans and L/C Obligations then outstanding, in a
maximum aggregate principal amount not exceeding the Available Commitment (after
giving effect to any repayments or prepayments and any other borrowings of Loans
on such Borrowing Date). Each Swing Line Loan shall mature on the Swing Line
Maturity Date.
(b) The Borrower may request a Swing Line Loan by delivering a Swing Line
Request to the Administrative Agent by telephone, telex or telecopy or in
writing, not later than 2:00 P.M. (if by telephone, to be so confirmed in
substantially the form of EXHIBIT A-2 not later than 3:00 P.M.), New York time
on any Borrowing Date. With respect to any Borrowing Date, the Borrower may
deliver only a single Swing Line Request to the Administrative Agent. Any Swing
Line Request, once delivered to the Administrative Agent in accordance with this
Agreement, shall be irrevocable. On the Borrowing Date, if the Swing Line Lender
elects to make the requested Swing Line Loan, the Swing Line Lender shall make
available to the Administrative Agent the requested Swing Line Loan in funds
immediately available at the Administrative Agent's office specified pursuant to
Section 11.07(a). Subject to satisfaction, or waiver by the Swing Line Lender,
of each of the applicable conditions precedent contained in Article VI and to
the Swing Line Lender's election to make the requested Swing Line Loan, on the
Borrowing Date the Administrative Agent shall make available, in like funds, to
the Borrower the amounts received by the Administrative Agent from the Swing
Line Lender.
(c) Immediately upon the making of each Swing Line Loan, each Lender other
than the Swing Line Lender shall be deemed to, and hereby agrees to, have
irrevocably and unconditionally purchased from the Swing Line Lender a
participation in such Swing Line Loan in an amount equal to such Xxxxxx's Pro
Rata Share of the principal amount thereof. If the Swing Line Lender notifies
each such other Lender by not later than 4:30 P.M., New York time, on a Business
Day that the Swing Line Lender wishes the Lenders to fund their participation
interests in a Swing Line Loan, each such other Lender shall make available to
the Administrative Agent in immediately available funds by Fedwire or, in the
case of transfers from an account maintained at The Bank of New York, SWIFT
transfer, the amount of its respective participation in such Swing Line Loan by
not later than 5:30 P.M., New York time, on such day (which amount the
Administrative Agent shall promptly remit to the Swing Line Lender). To the
extent that the Swing Line Lender has notified a Lender and such Lender has not
funded its participation in any such Swing Line Loan, the amount of such
participation shall be deemed, for purposes of determining the Required Lenders
and distributions by the Administrative Agent to the Lenders of payments of
principal and interest received from the Borrower, to be subtracted from such
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Xxxxxx's participation therein and added to the Swing Line Lender's
participation therein. In the event that any Lender fails to make available to
the Administrative Agent such Xxxxxx's Pro Rata Share of the requested Swing
Line Loan as provided above, the Swing Line Lender shall be entitled to recover
such amount on demand from such Lender, and together with interest thereon at a
rate per annum equal to the interest rate provided for ABR Loans in Section
3.02. The Administrative Agent shall distribute to each other Lender which has
paid all amounts payable by it under this Section 2.02(c) with respect to any
Swing Line Loans such other Lender's Pro Rata Share of all payments received by
the Administrative Agent from the Borrower thereunder with respect to a period
for which such other Lender has funded its participation, PROVIDED, HOWEVER,
that in the event such payment received by the Administrative Agent is required
to be returned, such Lender will promptly return to the Administrative Agent any
portion thereof previously distributed to it by the Administrative Agent.
(d) As among the Swing Line Lender and the Lenders, and without limiting
the obligations of the Lenders to make Loans to the Borrower or any of the
conditions precedent to the making of such Loans, each Lender's obligations
pursuant to Section 2.02(c) shall be absolute and unconditional and shall not be
affected by any circumstance (except as set forth below in this Section
2.02(d)), including (i) any set-off, claim, counterclaim, right of recoupment,
defense or other right which such Lender or the Borrower may have against the
Swing Line Lender, the Administrative Agent, the Borrower or any other Person
for any reason whatsoever; (ii) the occurrence or continuance of a Default or
Event of Default or (except to the extent that (A) the Swing Line Lender made
the subject Swing Line Loan at a time when an officer of the Swing Line Lender
involved in the administration of this Agreement had actual knowledge that one
or more of the conditions specified in Section 6.02 had not been satisfied in
any material respect and (B) such condition is not satisfied at the time the
Swing Line Lender makes a Swing Line Loan or directs the Lenders to purchase
participations pursuant to subsection (c) of this Section 2.02) the failure to
satisfy any of the other conditions specified in Sections 6.01 and 6.02; (iii)
any breach of any Credit Document by any Person other than the Swing Line
Lender; (iv) the termination or reduction of such Lender's Commitment pursuant
to Section 2.03 or the expiration of such Lender's Commitment, PROVIDED that the
relevant Swing Line Loan was made prior to such termination, reduction or
expiration.
Section 2.03 Termination and Reduction of Commitments. (a) The Borrower may
terminate the Total Commitment, or reduce the amount thereof, by (i) giving
written notice to the Administrative Agent, not later than 5:00 P.M., New York
time, on the fifth Business Day prior to the date of termination or reduction
and (ii) paying the amount of the Commitment Fee and Letter of Credit Fees
accrued through such date of termination or reduction. Reductions of the Total
Commitment shall be in the amount of $5,000,000 or in integral multiples of
$1,000,000 in excess thereof (or, if the amount of the Available Commitment is
less than $5,000,000, then all of such lesser amount), but shall not exceed the
Available Commitment in effect immediately before giving effect to such
reduction. Any termination, and all reductions, of the Total Commitment shall be
permanent.
(b) Upon completion of the Subordinated Debt Transaction, the Total
Commitment shall be reduced by an amount equal to the net proceeds thereof, up
to a maximum of $100,000,000.
(c) In the event that the Borrower or any Subsidiary shall issue (whether
through public offerings of securities or otherwise) New Indebtedness (including
the Subordinated Debt
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Transaction), then as of the close of business on the third Business Day
thereafter, the Total Commitment shall be reduced by an amount equal to the net
proceeds of such issuance; PROVIDED that reductions pursuant to this Section
2.03(c) and Section 2.03(b) shall not be required to exceed $100,000,000 in the
aggregate during the term of this Agreement.
Section 2.04 Repayment. Revolving Credit Loans shall be repaid, together
with all accrued and unpaid interest thereon, on the Commitment Termination
Date. Swing Line Loans shall be repaid, together with all accrued and unpaid
interest thereon, on the earlier to occur of (i) the Swing Line Maturity Date
and (ii) the Commitment Termination Date.
Section 2.05 Prepayment. (a) The Borrower may prepay Loans bearing interest
on the same basis and having the same Interest Periods, if any, by giving notice
to the Administrative Agent, by telephone, telex, telecopy or in writing not
later than 12:00 P.M. (if by telephone, to be so confirmed not later than 2:00
P.M.), New York time, (i) on the third Business Day, in the case of Eurodollar
Loans, or (ii) on the Business Day in the case of ABR Loans, preceding the
proposed date of prepayment. Each such prepayment shall be in an aggregate
principal amount of $5,000,000 or in integral multiples of $1,000,000 in excess
thereof (or, if the aggregate amount of outstanding Loans is less than
$5,000,000, then all of such lesser amount), together with accrued interest on
the principal being prepaid to the date of prepayment and, in the case of
Eurodollar Loans, the amounts required by Section 4.03. Subject to the terms and
conditions of this Agreement, prepaid Loans may be reborrowed.
(b) In the event that the Borrower or any Subsidiary shall issue (whether
through public offerings of securities or otherwise) New Indebtedness (except
for the Subordinated Debt Transaction) or (except for issuances of common stock
to employees pursuant to employee stock option plans or similar employee benefit
plans adopted in the ordinary course of business) equity, then not later than
the close of business on the third Business Day thereafter, the Borrower shall
prepay Loans in an amount equal to the lesser of (i) the net proceeds of such
issuance and (ii) the aggregate principal amount of Loans then outstanding.
(c) The Borrower shall prepay Loans, if necessary, so that the aggregate
amount of Loans and L/C Obligations at any time outstanding shall not exceed the
Total Commitment then in effect.
Section 2.06 Letters of Credit.
(a) Letters of Credit. Prior to the Commitment Termination Date, and
subject to the terms and conditions of this Agreement, from time to time the
Borrower may request that the L/C Issuer issue under this Agreement, and the L/C
Issuer shall, upon such request of the Borrower and upon the satisfaction or
waiver of each of the conditions contained in Article VI applicable thereto,
issue for the account of the Borrower, one or more nontransferable letters of
credit (each, a "LETTER OF CREDIT") in the L/C Issuer's then-customary form;
PROVIDED that the L/C Issuer shall not issue any Letter of Credit: (i) if, after
giving effect to such issuance, the sum of the aggregate amount of the L/C
Obligations of all the Lenders then outstanding and the aggregate amount of
Loans of all the Lenders then outstanding would exceed the Total Commitment then
in effect; (ii) having a stated amount of less than $10,000; (iii) having an
expiration date later than the Business Day four Business Days prior to the
Revolving Credit Termination Date; or (iv) if, after
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giving effect to such issuance, the aggregate amount of L/C Obligations of all
the Lenders then outstanding would exceed $25,000,000.
(b) Procedure for Obtaining Letter of Credit. The Borrower may request that
the L/C Issuer issue a Letter of Credit pursuant to Section 2.06(a) by giving a
L/C Request to the Admin istrative Agent in writing not later than 11:00 A.M.,
New York time, on the fifth Business Day prior to the proposed date of issuance
of the Letter of Credit. Upon receipt of any L/C Request, the Administrative
Agent shall forthwith give notice to each Lender of the substance thereof. On
the date specified by the Borrower in such notice and upon fulfillment of the
applicable conditions set forth in this Section 2.06 and Article VI or the
waiver thereof by Xxxxxxx, the L/C Issuer will issue such Letter of Credit in
the form specified in such L/C Request.
(c) Participation by Xxxxxxx. Immediately upon the issuance of a Letter of
Credit, each Lender other than the L/C Issuer shall be deemed to, and hereby
agrees to, have irrevocably and unconditionally purchased from the L/C Issuer a
participation in such Letter of Credit and each drawing thereunder in an amount
equal to such Xxxxxx's Pro Rata Share of the maximum amount which is or at any
time may become available to be drawn thereunder.
(d) Drawings and Reimbursement. (i) In the event of any request for a
drawing under any Letter of Credit by the beneficiary thereof, the L/C Issuer
shall notify the Borrower and the Administrative Agent as promptly as
practicable following receipt of such request, and the Borrower shall reimburse
the L/C Issuer on or prior to the third Business Day after the day on which such
drawing is honored in an amount in immediately available funds equal to the
amount of such drawing.
(ii) If the Borrower shall fail to immediately reimburse the L/C Issuer in
an amount equal to the amount of any drawing honored by the L/C Issuer
under a Letter of Credit, then the L/C Issuer shall promptly notify each
Lender of the unreimbursed amount of such drawing and of such Xxxxxx's
respective participation therein. Not later than 2:00 P.M., New York time,
on the Business Day after the date notified by the L/C Issuer or if the
Lenders are notified by the L/C Issuer prior to 11:00 A.M., New York time,
on the date so notified, each Lender shall make available to the L/C Issuer
in immediately available funds at the office of the L/C Issuer in The City
of New York an amount equal to its respective participation. For so long as
any Lender fails so to fund its participation in any such Letter of Credit,
the amount of such participation shall be deemed, for purposes of
determining the Required Lenders, to be subtracted from such Xxxxxx's L/C
Obligations and added to the L/C Issuer's L/C Obligations. If any Lender
fails to make available to the L/C Issuer on such Business Day the amount
of such Lender's participation in such Letter of Credit as provided in this
Section 2.06(d), then the L/C Issuer shall be entitled to recover such
amount on demand from such Lender, together with interest thereon at a rate
per annum equal to (A) from (and including) such Business Day to (and
including) the third Business Day thereafter, the Federal Funds Rate, and
(B) from (but excluding) such third Business Day, the sum of 2% and the
Federal Funds Rate. The L/C Issuer shall distribute to each Lender that has
paid all amounts payable by it under this Section 2.06 with respect to any
Letter of Credit such Xxxxxx's Pro Rata Share of all payments received by
the L/C Issuer from the Borrower in reimbursement of drawings honored by
the L/C Issuer under such Letter of Credit when such payments are received.
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(iii) The obligation of the Borrower to reimburse the L/C Issuer for
drawings made under the Letters of Credit and the obligations of the
Lenders under Section 2.06(d)(ii) shall be unconditional and irrevocable
and shall be paid strictly in accordance with the terms of the Credit
Documents under all circumstances, including the following circumstances:
(A) any lack of validity or enforceability of any Letter of
Credit;
(B) the existence of any claim, set-off, defense or other right
which the Borrower or any Affiliate of the Borrower may have at any
time against a beneficiary or any transferee of any Letter of Credit
(or any Persons for whom any such beneficiary or transferee may be
acting), the L/C Issuer, any Lender or any other Person, whether in
connection with any Credit Document, any transaction contemplated
thereby or any unrelated transaction;
(C) any draft, demand, certificate or any other document
presented under any Letter of Credit proving to be forged, fraudulent,
invalid or insuffi cient in any respect or any statement therein being
untrue or inaccurate in any respect;
(D) payment by the L/C Issuer under any Letter of Credit against
presentation of a demand, draft or certificate or other document that
does not comply with the terms of the Credit Documents;
(E) any other circumstance or happening whatsoever, which is
similar to any of the foregoing; or
(F) the fact that a Default or Event of Default shall have
occurred.
(e) Security Deposit. If a Default or Event of Default shall have occurred
and be continuing, the L/C Issuer may require the deposit of funds in an
interest-bearing account as agreed to between the Administrative Agent, the L/C
Issuer and the Borrower to secure payment to the beneficiary of any outstanding
Letter of Credit. Any funds so deposited shall be paid to the beneficiary of
such Letter of Credit if all conditions to such payment are satisfied or
returned to the L/C Issuer for distribution to the Lenders (or, if all
obligations under this Agreement shall have been indefeasibly paid in full, to
the Borrower), if no payment to the beneficiary has been made and the final date
available for drawings under such Letter of Credit has passed. Each payment or
deposit of funds by the L/C Issuer as provided in this paragraph shall be
treated for all purposes of this Agreement as a drawing duly honored by the L/C
Issuer under the related Letter of Credit.
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ARTICLE III
INTEREST AND FEES
Section 3.01 Interest Rate Determination; Conversion. (a) Except to the
extent that the Borrower shall request, in a Revolving Credit Request or
Conversion Request, that a Revolving Credit Loan bear interest as a Eurodollar
Loan, each Loan shall bear interest as an ABR Loan. All Swing Line Loans shall
bear interest as ABR Loans and may not be converted into Eurodollar Loans.
(b) The Borrower may request, by giving a Conversion Request to the
Administrative Agent, by telephone, telex, telecopy or in writing not later than
12:00 noon, New York time (if by telephone, to be so confirmed in substantially
the form of EXHIBIT B not later than 2:00 P.M., New York time), on the third
Business Day prior to the requested Conversion Date, that all or portions of the
outstanding Revolving Credit Loans, in the aggregate principal amount of
$5,000,000 or in integral multiples of $1,000,000 in excess thereof (or, if the
aggregate principal amount of outstanding Loans is less than $5,000,000, then
all such lesser amount), bear interest from and after the Conversion Date as
either ABR Loans or Eurodollar Loans; PROVIDED, HOWEVER, that during the
continuance of any Default or Event of Default that shall have occurred, no
Revolving Credit Loan (or portion thereof) may be converted into Eurodollar
Loans. Upon receipt, the Administrative Agent forthwith shall give notice to
each Lender of the substance of each Conversion Request. Upon payment by the
Borrower of the amounts, if any, required by Section 4.03, on the Conversion
Date the Revolving Credit Loans or portions thereof as to which the Conversion
Request was made shall commence to accrue interest in the manner selected by the
Borrower therein.
Section 3.02 Interest on ABR Loans. Each ABR Loan shall bear interest from
the date made until the date repaid, or (if converted into a Eurodollar Loan) to
(but excluding) the first day of any relevant Interest Period, as the case may
be, payable in arrears on the last day of each calendar quarter of each year,
commencing with the first such date after the Effective Date, and on the date
such Loan is repaid, at a rate per annum equal to the sum of (a) the Alternate
Base Rate in effect from time to time and (b) the Applicable Margin.
Section 3.03 Interest on Eurodollar Loans. (a) Each Eurodollar Loan shall
bear interest from the date made until the date repaid or converted to an ABR
Loan, payable in arrears, with respect to Interest Periods of three months or
less, on the last day of such Interest Period, and with respect to Interest
Periods longer than three months, on the day which is three months after the
commencement of such Interest Period and on the last day of such Interest
Period, at a rate per annum equal to the sum of (i) the Applicable Margin, and
(ii) LIBOR.
(b) Each Eurodollar Loan shall become an ABR Loan at the end of the
Interest Period therefor unless (i) there shall not have occurred and be
continuing a Default or Event of Default and (ii) not later than the third
Business Day prior to the last day of such Interest Period, the Borrower shall
have delivered to the Administrative Agent (x) an irrevocable written election
of the subsequent Interest Period therefor, in which case such Eurodollar Loan
shall remain outstanding as a Eurodollar Loan, or (y) a Conversion Request with
respect thereto, in which case such Eurodollar Loan shall be converted in
accordance with Section 3.01(b).
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(c) If, during any period, a Lender shall be required to maintain reserves
against "eurocurrency liabilities" in accordance with Federal Reserve Board
Regulation D, the Borrower shall pay additional interest during such period on
each outstanding Eurodollar Loan of such Lender (contemporaneously with each
interest payment due thereon commencing with the first such payment due at least
two Business Days after receipt of the notice referred to in the next sentence)
at a rate per annum up to but not exceeding the marginal rate determined by the
following formula:
LIBOR
------------------------------------ - LIBOR
1 - Eurodollar Reserve Percentage
Each Lender shall promptly notify the Borrower, with a copy to the
Administrative Agent, upon becoming aware that the Borrower may be required to
make a payment of additional interest to such Lender. When requesting payment
pursuant to this Section 3.03(c), a Lender shall provide to the Borrower, with a
copy to the Administrative Agent, a certificate, signed by an officer of such
Lender setting forth, in reasonable detail, the basis of such claim, the amount
required to be paid by the Borrower to such Lender and the computations made by
such Lender to determine such amount. Absent manifest error, such certificate
shall be binding as to the amounts of additional interest owing in respect of
such Xxxxxx's Eurodollar Loans. Any Lender that gives notice under this Section
3.03(c) shall promptly withdraw such notice (by written notice of withdrawal
given to the Administrative Agent and the Borrower) whenever such Lender is no
longer required to maintain such reserves or the circumstances giving rise to
such notice shall otherwise cease.
Section 3.04 Interest on Overdue Amounts. Anything herein to the contrary
notwithstanding, all overdue amounts hereunder, and, during the continuance of
any Event of Default that shall have occurred, each Loan, shall bear interest,
payable on demand, at a rate per annum equal to the sum of (i) 2% and (ii) the
rate then applicable, in the case of Eurodollar Loans, until the end of the
current Interest Period therefor, and thereafter the rate of interest applicable
to ABR Loans, changing as and when such rate shall change.
Section 3.05 Day Counts. Interest on ABR Loans shall be calculated on the
basis of (a) a 365-day, or, if applicable, a 366-day, year for the actual number
of days elapsed for so long as interest is determined pursuant to clause (i) of
the definition of "Alternate Base Rate" and (b) a 360-day year for the actual
number of days elapsed otherwise. Interest on all other Loans, and all fees
shall be calculated on the basis of a 360-day year for the actual number of days
elapsed.
Section 3.06 Maximum Interest Rate. (a) Nothing in this Agreement shall
require the Borrower to pay interest at a rate exceeding the maximum rate
permitted by applicable law. Neither this Section 3.06 nor Section 11.01 is
intended to limit the rate of interest payable for the account of any Lender to
the maximum rate permitted by the laws of the State of New York (or any other
applicable law) if a higher rate is permitted with respect to such Lender by
supervening provisions of U.S. federal law.
(b) If the amount of interest payable for the account of any Lender on any
interest payment date in respect of the immediately preceding interest
computation period, computed pursuant to this Article III, would exceed the
maximum amount permitted by applicable law to be
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charged by such Lender, the amount of interest payable for its account on such
interest payment date shall automatically be reduced to such maximum permissible
amount.
(c) If the amount of interest payable for the account of any Lender in
respect of any interest computation period is reduced pursuant to Section
3.06(b) and the amount of interest payable for its account in respect of any
subsequent interest computation period would be less than the maximum amount
permitted by law to be charged by such Lender, then the amount of interest
payable for its account in respect of such subsequent interest computation
period shall be automatically increased to such maximum permissible amount;
PROVIDED that at no time shall the aggregate amount by which interest paid for
the account of any Lender has been increased pursuant to this Section 3.06(c)
exceed the aggregate amount by which interest paid for its account has
theretofore been reduced pursuant to Section 3.06(b).
Section 3.07 Fees.
(a) The Commitment Fee. The Borrower agrees to pay to the Administrative
Agent, for the respective accounts of the Lenders, on the last day of each
calendar quarter of each year, commencing with the first such day after the
Effective Date, and on the Commitment Termination Date, a fee (the "COMMITMENT
FEE") computed by applying (i) the applicable percentage per annum set forth
below based on the Debt/EBITDA Ratio on each day during the then-ending quarter
(or shorter period ending with the Commitment Termination Date) (it being
understood that measurement of the Debt/EBITDA as of any Measurement Date is
sufficient for this purpose) to (ii) the Available Commitment on such day:
Commitment Fee
Debt/EBITDA Ratio Percentage Per Annum
----------------- --------------------
4.00 or greater 0.350%
3.50 or greater, but less than 4.00 0.300
3.00 or greater, but less than 3.50 0.250
2.50 or greater, but less than 3.00 0.225
2.00 or greater, but less than 2.50 0.175
Less than 2.00 0.125
Prior to the date of final determination of EBITDA for the fiscal quarter of the
Borrower to end on May 31, 1998, the Commitment Fee percentage per annum shall
not be less than 0.250%.
(b) Letter of Credit Fees. In lieu of any letter of credit commissions or
fees provided for in any letter of credit application (other than documentary
and processing charges referred to in clause (iv) below), the Borrower agrees to
pay to the L/C Issuer in funds immediately available at the office of the L/C
Issuer specified in Section 11.07(a) the following fees and other amounts with
respect to each outstanding Letter of Credit (collectively, the "LETTER OF
CREDIT FEES"):
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(i) an administrative fee equal to 0.100% per annum on the daily
amount stated to be available from time to time for drawing under such
Letter of Credit from (and including) the date of issuance until (but
excluding) the expiration date of such Letter of Credit, payable to the L/C
Issuer for its account in arrears on the last day of each calendar quarter,
commencing on the first such date after the Borrowing Date, and on such
expiration date;
(ii) a letter of credit fee, at a rate per annum equal to the
Applicable Margin from time to time in effect for Eurodollar Loans, on the
daily amount stated to be available from time to time for drawing under
such Letter of Credit from (and including) the date of issuance until (but
excluding) the expiration date of such Letter of Credit payable to the L/C
Issuer for the account of the Lenders in arrears on the last day of each
calendar quarter, commencing on the first such date after the Borrowing
Date, and on such expiration date;
(iii) with respect to drawings made thereunder, interest, payable on
demand to the L/C Issuer (if applicable, for the benefit of the Lenders
that have funded a participation therein pursuant to Section 2.06(d)(ii)),
on the amount paid by the L/C Issuer in respect of each such drawing from
(and including) the date of the drawing to (but excluding) the date such
amount is reimbursed by the Borrower, at a rate per annum equal to (A) from
(and including) the date of such drawing to (and including) the third
Business Day after the date of such drawing, the rate of interest then
applicable to ABR Loans, changing as and when said rate shall change, and
(B) from (but excluding) the third Business Day after the date of such
drawing, the sum of (x) 2% and (y) the rate specified in clause (A); and
(iv) with respect to the issuance, amendment or transfer of such
Letter of Credit and each drawing made thereunder, customary documentary
and processing charges payable to the L/C Issuer in accordance with the L/C
Issuer's standard schedule for such charges in effect at the time of such
issuance, amendment, transfer or drawing, as the case may be.
Promptly upon receipt by the L/C Issuer of any amount described in clause (ii)
or (iii) of this Section 3.07(b), the L/C Issuer shall distribute to each Lender
that has paid all amounts payable by it under Section 2.06(d) such Xxxxxx's
ratable share of such amount. Amounts payable under clauses (i) and (iv) of this
Section 3.07(b) shall be retained by the L/C Issuer.
ARTICLE IV
DISBURSEMENT AND PAYMENT
Section 4.01 Disbursement. (a) Each Loan shall be made by the relevant
Lender from such Lender's branch or affiliate identified as its Applicable
Lending Office.
(b) The failure of any Lender to make any Loan to be made by it on the
Borrowing Date therefor shall not relieve any other Lender of its obligation to
make its Loan or Loans on such
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date, but neither any Lender nor the Administrative Agent shall be responsible
for the failure of any other Lender to make a Loan to be made by such other
Lender.
(c) The Administrative Agent may, but shall not be required to, advance on
behalf of any Lender the amount of such Xxxxxx's Loans to be made on a Borrowing
Date, unless such Lender shall have notified the Administrative Agent prior to
such Borrowing Date that it does not intend to make such Loans on such date. If
the Administrative Agent makes any such advance, the Administrative Agent shall
be entitled to recover the amount so advanced on demand from the Lender on whose
behalf such advance was made and, if such Xxxxxx does not pay the Administrative
Agent the amount of such advance on demand, the Borrower agrees promptly to
repay such amount to the Administrative Agent. Until such amount is repaid to
the Administrative Agent by such Lender or the Borrower, such advance shall be
deemed for all purposes to be a Loan made on such Borrowing Date by the
Administrative Agent. The Administrative Agent shall be entitled to recover from
the Lender or the Borrower, as the case may be, interest on the amount advanced
by it for each day from the Borrowing Date therefor until repaid to the
Administrative Agent, at a rate per annum equal to the Federal Funds Rate until
the third Business Day after the date of the advance and, thereafter, at the
rate per annum equal to the relevant rate on Loans made on the relevant
Borrowing Date.
Section 4.02 Method and Time of Payments; Sharing among Lenders. (a) All
funds received by the Administrative Agent for the account of the Lenders in
respect of payments made by the Borrower under, or from any other Person on
account of, any Credit Document shall be distributed promptly by the
Administrative Agent among the Lenders, in like funds as received, ratably in
proportion to their respective interests therein. Each payment of the Commitment
Fee and each reduction of Commitments shall be apportioned among the Lenders in
proportion to each Lender's Pro Rata Share.
(b) All payments by the Borrower hereunder shall be made without setoff or
counterclaim to the Administrative Agent, for its account or for the account of
the Lender or Lenders entitled thereto, as the case may be, in dollars and in
immediately available funds at the office of the Administrative Agent
theretofore designated in writing to the Borrower not later than 11:00 A.M., New
York time, on the date when due or, in the case of payments pursuant to Sections
3.04, 4.03, 4.04, 4.06 or payments otherwise specified as payable upon demand,
forthwith upon written demand therefor.
(c) Whenever any payment from the Borrower shall be due on a day that is
not a Business Day, the date of payment thereof shall be extended to the next
succeeding Business Day. If the date for any payment of principal is extended by
operation of law or otherwise, interest thereon shall be payable for such
extended time.
(d) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment from the Borrower is due that
the Borrower will not make such payment in full, the Administrative Agent may
assume that the Borrower has made such payment in full to the Administrative
Agent on such date and the Administrative Agent may, in reliance upon such
assumption, but shall not be obligated to, cause to be distributed to each
Lender on such due date an amount equal to the amount then due to such Lender.
If and to the extent that the Borrower shall not have so made such payment, each
Lender shall repay to the Administrative Agent forthwith on demand such amount
distributed to such Lender together with
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interest thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Administrative
Agent, at the Federal Funds Rate.
(e) If any Lender shall receive from the Borrower or any other Person any
amount owing under any Credit Document (whether received pursuant to the
exercise of any right of set-off, banker's lien, realization upon any security
held for or appropriated to such obligation or otherwise) other than in
proportion to such Xxxxxx's ratable share thereof, then such Lender shall
purchase from each other Lender a participating interest in so much of the other
Lenders' Loans as shall be necessary in order that each Lender shall share such
payment with each of the other Lenders in proportion to each Lender's ratable
share; PROVIDED that nothing herein contained shall obligate any Lender to apply
any set-off or banker's lien or collateral security permitted hereby first to
the obligations of the Borrower hereunder if the Borrower is obligated to such
Lender pursuant to other loans or notes. If any purchasing Lender shall be
required to return any excess payment received by it, such participation shall
be rescinded and the purchase price restored to the extent of such return, but
without interest.
Section 4.03 Compensation for Losses. (a) If (i) the Borrower prepays
Loans, or a Conversion Date occurs (except pursuant to Section 4.05), other than
on the last day of the relevant Interest Period, (ii) the Borrower revokes any
Borrowing Request, (iii) Loans (or portions thereof) are converted into ABR
Loans (except pursuant to Section 4.05) or (iv) Loans (or portions thereof)
shall become or be declared to be due prior to the Commitment Termination Date,
then the Borrower shall pay to each Lender an amount that will compensate such
Lender for any loss (other than lost profit) or premium or penalty incurred by
such Xxxxxx as a result of such prepayment, conversion, declaration or
revocation in respect of funds obtained for the purpose of making or maintaining
such Lenders's Loans, or any portion thereof. Such compensation shall include an
amount equal to the excess, if any, of (i) the amount of interest that would
have accrued on the amount so paid or prepaid, or not borrowed or converted, for
the period from the date of such payment or prepayment or conversion or failure
to borrow to the last day of such Interest Period (or, in the case of a failure
to borrow, the Interest Period that would have commenced on the expected
Borrowing Date) in each case at the applicable rate of interest for such Loan
(excluding, however, any margin included therein) over (ii) the amount of
interest (as reasonably determined by such Lender) that would have accrued on
such amount were it on deposit for a comparable period with leading banks in the
London interbank market or in the New York certificate of deposit market, as the
case may be.
(b) If requested by the Borrower, in connection with a payment due pursuant
to this Section 4.03, a Lender shall provide to the Borrower, with a copy to the
Administrative Agent, a certificate setting forth in reasonable detail the
amount required to be paid by the Borrower to such Lender and the computations
made by such Lender to determine such amount. In the absence of manifest error,
such certificate shall be conclusive as to the amount required to be paid.
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Section 4.04 Withholding and Additional Costs.
(a) Withholding. (i) All payments under this Agreement and under the
Notes (including payments of principal and interest) shall be payable to
each Lender free and clear of any and all present and future taxes, levies,
imposts, duties, deductions, withholdings, fees, liabilities and similar
charges other than Excluded Taxes (collec tively, "TAXES"). If any Taxes
are required to be withheld or deducted from any amount payable under this
Agreement, then the amount payable under this Agreement shall be increased
to the amount which, after deduction from such increased amount of all
Taxes required to be withheld or deducted therefrom, will yield to such
Lender the amount stated to be payable under this Agreement. The Borrower
shall also hold each Lender harmless and indemnify it for any stamp or
other taxes with respect to the preparation, execution, delivery,
recording, performance or enforcement of the Credit Documents (all of which
shall be included within "Taxes"). If any of the Taxes specified in this
Section 4.04(a) are paid by any Lender, the Borrower shall, upon demand of
such Lender, promptly reimburse such Lender for such payments, together
with any interest, penalties and expenses incurred in connection therewith.
The Borrower shall deliver to the Administrative Agent certificates or
other valid vouchers for all Taxes or other charges deducted from or paid
with respect to payments made by the Borrower hereunder. Notwithstanding
the foregoing, the Borrower shall be entitled, to the extent required to do
so by law, to deduct or withhold (and shall not be required to make
payments as otherwise required by this Section 4.04 on account of such
deductions or withholdings) income or other similar taxes imposed by the
United States of America from interest, fees or other amounts payable
hereunder for the account of any Lender other than a Lender (A) that is a
U.S. Person for U.S. federal income tax purposes or (B) that has the
Prescribed Forms on file with the Borrower for the applicable year to the
extent deduction or withholding of such taxes is not required as a result
of such filing of such Prescribed Forms; PROVIDED that, if the Borrower
shall so deduct or withhold any such taxes, the Borrower shall provide a
statement to the Administrative Agent and such Lender, setting forth the
amount of such taxes so deducted or withheld, the applicable rate and any
other information or documentation which such Lender may reasonably request
for assisting such Lender to obtain any allowable credits or deductions for
the taxes so deducted or withheld in the jurisdiction or jurisdictions in
which such Lender is subject to tax.
(ii) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof shall deliver to the Borrower and the
Administrative Agent two duly completed copies of United States Internal
Revenue Service Form 1001 or 4224 (or any successor form or forms),
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 ("PRESCRIBED FORMS"). Each Lender that so delivers
such Prescribed Forms further undertakes to deliver to the Borrower and the
Administrative Agent two additional copies of such Prescribed Forms on or
before the date that such Prescribed Forms expire or become obsolete or
after the occurrence of any event requiring a change in the most recent
Prescribed Forms so delivered by it, and such amendments thereto or
extensions or renewals thereof as may be reasonably requested by the
Borrower or the Administrative Agent, in each case certifying that such
Lender is entitled to receive payments under this Agreement without
deduction or withholding of
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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 Prescribed Forms inapplicable or which would prevent such
Lender from duly completing and delivering Prescribed Forms with respect to
it and such Lender advises the Borrower and the Administrative Agent that
it is not capable of receiving payments without any deduction or
withholding of United States federal income tax. If any Lender that is not
incorporated under the laws of the United States of America or a state
thereof fails to comply with the provisions of this Section, the Borrower
and/or the Administrative Agent, may, as required by law, deduct and
withhold federal income tax payments from payments to such Lender under
this Agreement.
(b) Additional Costs. Subject to Sections 4.04(c) and (d):
(i) Without duplication of any amounts payable described in
Section 3.03(c), 4.03 or 4.04(a) or 4.04(b)(ii), if any change in any
law or regulation or in the interpretation thereof by any court or
administrative or Governmental Authority charged with the
administration thereof, or the enactment of any law or regulation
shall result in the imposition upon any Lender (or such Lender's
Applicable Lending Office) of (1) any reserve, special deposit or
similar requirement against any Lender's Commitment, Loans or L/C
Obligations or (2) any other condition regarding this Agreement, its
Commitment, Loans or L/C Obligations, and the result of any event
referred to in clause (1) or (2) shall be to increase the cost of
maintaining such Commitment, Loan or L/C Obligation (which increase in
cost shall be calculated in accordance with such Lender's reasonable
averaging and attribution methods) by an amount which such Lender
deems to be material, then, upon demand by such Lender, the Borrower
shall pay to such Lender an amount equal to such increase in cost; and
(ii) Without duplication of any amounts payable described in
Section 3.03(c), 4.03, 4.04(a) or 4.04(b)(i), if any Lender shall have
determined that the adoption of any applicable law, rule, regulation
or guideline regarding capital adequacy, or any change therein, or any
change in the interpretation or administration thereof by any
Governmental Authority, central bank or comparable agency charged with
the interpretation or administration thereof, (including any such
adoption or change made prior to the date hereof but not effective
until after the date hereof) or compliance by such Lender (or such
Lender's Applicable Lending Office) with any request or directive
regarding capital adequacy (whether or not having the force of law) of
any such authority, central bank or comparable agency, has or would
have the effect of reducing the rate of return on capital for such
Lender (or such Lender's Applicable Lending Office) or any corporation
controlling such Lender as a consequence of its obligations under this
Agreement to a level below that which such Lender (or such Lender's
Applicable Lending Office) or such corporation could have achieved but
for such adoption, change or compliance (taking into consideration
such Lender's (or such Lender's Applicable Lending Office) or such
corporation's policies with respect to capital adequacy), then from
time to time, upon demand by such Lender, then the Borrower shall pay
to such Lender such additional amount or amounts as will compen sate
such Lender (or such Lender's Applicable Lending Office) or such
corporation for such reduction.
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(c) Lending Office Designations. Before making any demand for payment
pursuant to this Section 4.04, each Lender shall, if possible, designate a
different Applicable Lending Office if such designation will avoid the need
for giving such notice and will not, in the judgment of such Lender, be
otherwise disadvantageous to such Lender.
(d) Certificate, Etc. If requested by the Borrower, in connection with
any demand for payment pursuant to this Section 4.04, a Lender shall
provide to the Borrower, with a copy to the Administrative Agent, a
certificate setting forth in reasonable detail the basis for such demand,
the amount required to be paid by the Borrower to such Lender, the
computations made by such Lender to determine such amount and satisfaction
of the conditions set forth in the next sentence. Anything to the contrary
herein notwithstanding, no Lender shall have the right to demand any
payment or compensation under this Section 4.04 (i) with respect to any
period more than 90 days prior to the date it has made a demand pursuant to
this Section 4.04 or (ii) to the extent that such Lender determines in good
faith that the interest rate or margin on the relevant Loans appropriately
accounts for any increased cost or reduced rate of return. In the absence
of manifest error, the certificate referred to above shall be conclusive as
to the amount required to be paid.
Section 4.05 Impracticability. If at any time any Lender shall determine in
good faith (which determination shall be conclusive) that the making or
maintenance of all or any part of such Lender's Eurodollar Loans has been made
impracticable or unlawful because of compliance by such Lender in good faith
with any law or guideline or interpretation or administration thereof by any
Governmental Authority charged with the interpretation or administration thereof
or with any request or directive of such body (whether or not having the effect
of law) or because dollar deposits in the amount and requested maturity of such
Eurodollar Loans are not available to such Lender in the London eurodollar
interbank market, then the Administrative Agent, upon notice to it of such
determination by such Xxxxxx, shall promptly advise the other Lenders and the
Borrower thereof. Upon such date as shall be specified in such notice and until
such time as the Administrative Agent, upon notice to it by such Lender, shall
notify the Borrower and the other Lenders that the circumstances specified by it
in such notice no longer apply, (a) notwithstanding any other provision of this
Agreement, such Eurodollar Loans shall, automatically and without requirement of
further notice, or any payment pursuant to Section 4.03 or 4.04, be converted to
ABR Loans and (b) the obligation of such Lender to make or continue Eurodollar
Loans shall be suspended, and, if the Borrower shall request in a Revolving
Credit Request or Conversion Request that the Lenders make Eurodollar Loans, the
Revolving Credit Loan requested so to be made by such Lender shall instead be
made as an ABR Loan.
Section 4.06 Expenses; Indemnity. (a) The Borrower will (i) pay or
reimburse the Administrative Agent for all reasonable out-of-pocket costs and
expenses incurred in connection with the preparation and execution of, and any
amendment, supplement or modification to, this Agreement, any other Credit
Documents, and any other documents prepared in connection herewith or therewith,
and the consummation of the transactions contemplated hereby and thereby,
including, without limitation, the reasonable fees and disbursements of Xxxxxxxx
& Xxxxxxxx, counsel to the Administrative Agent; (ii) pay or reimburse each
Lender and the Administrative Agent for all reasonable costs and expenses
incurred in connection with the enforcement or preservation of any rights under
this Agreement, any other Credit Documents, and any such other documents,
including, without limitation, the reasonable fees and disbursements of counsel
to the Lenders and the Lenders; and (iii) pay and reimburse (A) each
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Lender for any payments made by such Lender to the Administrative Agent pursuant
to Section 9.06 and (B) the Administrative Agent for any and all liabilities,
expenses or disbursements incurred by it which are the subject of
indemnification payments from the Lenders to the extent that the Administrative
Agent, for whatever reason, did not receive such indemnification payments from
any Lender or Lenders. The Borrower also agrees to indemnify each Lender against
any transfer taxes, documentary taxes, assessments or charges made by any
Governmental Authority by reason of the execution and delivery of any Credit
Document.
(b) The Borrower will indemnify the Administrative Agent and each of the
Lenders and their respective directors, officers, employees, agents and
Affiliates (for purposes of this paragraph, each, an "INDEMNITEE") against, and
to hold each Indemnitee harmless from, any and all claims, liabilities, damages,
losses, costs, charges and expenses (including reasonable fees and expenses of
counsel) incurred by or asserted against any Indemnitee arising out of, in any
way connected with, or as a result of (i) the execution or delivery of any
Credit Document or any agreement or instrument contemplated by any Credit
Document, the performance by the parties thereto of their respective obligations
under any Credit Document or the consummation of the transactions and the other
transactions contemplated by any Credit Document, (ii) the use of the proceeds
of the Loans or (iii) any claim, litigation, investigation or proceeding
relating to any of the foregoing, whether or not any Indemnitee is a party
thereto; PROVIDED that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses are determined by a court of competent jurisdiction by final
and nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Indemnitee; PROVIDED, FURTHER, that the Lenders will make
reasonable efforts to coordinate and to utilize the minimum number of law firms
or counsel reasonably necessary to conduct properly any litigation with respect
to which indemnity is sought under this Section 4.06(b).
(c) The Borrower will indemnify the Administrative Agent and the L/C Issuer
and their respective directors, officers, employees, agents and Affiliates (for
purposes of this paragraph, each, an "INDEMNITEE") against, and to hold each
Indemnitee harmless from, any and all claims, liabilities, damages, losses,
costs, charges and expenses (including fees and expenses of counsel) incurred by
or asserted against any of them arising out of, in any way connected with, or as
a result of (i) the issuance of any Letter of Credit or (ii) the failure of the
L/C Issuer to honor a drawing under any Letter of Credit as a result of any act
or omission, whether rightful or wrongful, of any Governmental Authority;
PROVIDED that such indemnity shall not, as to any such Indemnitee, be available
to the extent that such losses, claims, damages, liabilities or related expenses
(i) are determined by a court of competent jurisdiction by final and
nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Indemnitee or (ii) are attributable to taxes, levies,
imposts, duties, deductions, withholdings, fees, liabilities or similar charges
whether or not the Borrower is required to pay amounts with respect thereto
under this Agreement. As between the Borrower and the L/C Issuer, the Borrower
assumes all risks of the acts and omissions of, or misuse of a Letter of Credit
by, a beneficiary of such Letter of Credit. In furtherance and not in limitation
of the foregoing, no Indemnitee shall be responsible for any of the following:
(A) the form, validity, sufficiency, accuracy, genuineness or legal effects of
any documents submitted by any party in connection with the request and
application for and issuance of any Letter of Credit, even if it should in fact
prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent
or forged; (B) the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign any Letter of Credit or rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove to
be
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invalid or ineffective for any reason whatsoever; (C) any failure of a
beneficiary of any Letter of Credit to comply with any condition of drawing
thereunder; (D) any errors, omissions, inter ruptions or delays in transmission
or delivery of any messages, by mail, cable, telegraph, telex or otherwise,
whether or not in cipher; (E) any error in interpretation; (F) any loss or delay
in the transmission or otherwise of any document required in order to make a
drawing under any Letter of Credit or of the proceeds thereof; (G) any
misapplication by a beneficiary of any Letter of Credit of the proceeds of any
drawing thereunder; or (H) any consequences arising from or related to events or
circumstances beyond the control of the L/C Issuer, including any act or
omission, whether rightful or wrongful, of any Governmental Authority. In
furtherance and not in limitation of the specific provisions herein set forth,
any action taken or omitted by the L/C Issuer under or in connection with any
Letter of Credit or related certificates, if taken or omitted in good faith,
shall not result in or give rise to any liability of any Indemnitee to the
Borrower. Notwithstanding any of the foregoing, nothing in this Section 4.06(c)
shall relieve the L/C Issuer of any liability determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of the L/C Issuer.
(d) All amounts due under this Section 4.06 shall be payable in immediately
available funds upon written demand therefor.
Section 4.07 Replacement of Lenders. If no Default or Event of Default
shall have occurred and be continuing, the Borrower may, at any time, replace
any Lender that has requested the Borrower to pay amounts pursuant to Section
4.04 or whose obligation to make any Loans has been suspended pursuant to
Section 4.05 (each, an "AFFECTED LENDER"), by giving not less than 10 Business
Days' prior written notice to the Administrative Agent (which shall promptly
notify such Affected Lender and each other Lender), that it intends to replace
such Affected Lender with one or more lenders (including, but not limited to,
any other Lender under this Agreement) selected by the Borrower and reasonably
acceptable to the Administrative Agent, PROVIDED that such replacement Lender
shall also agree to become a replacement Lender. The method (whether by
assignment or otherwise) of and documentation for such replacement shall be
reasonably acceptable to the Affected Lender, the other Lenders and the
Administrative Agent. Upon the effective date of any replacement under this
Section 4.07, and as a condition thereto, the Borrower shall, or shall cause the
replacement Lender or Lenders to, pay to the Affected Lender being replaced any
amounts owing to such Affected Lender hereunder (including, without limitation,
interest, fees, compensation and additional amounts under this Article IV, in
each case accrued to the effective date of such replacement), whereupon (i) each
replacement lender shall become a "Lender" for all purposes of this Agreement
having a Commitment in the amount of such Affected Lender's Commitment assumed
by it, (ii) the Commitment of the Affected Lender being replaced shall be
terminated upon such effective date and (iii) the Affected Lender shall cease to
be a "Lender" as of such effective date.
Section 4.08 Survival. The provisions of Sections 4.03, 4.04 and 4.06,
shall remain in effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any Loans, the reduction or termination of any Commitments, the
invalidity or unenforceability of any term or provision of any Credit Document
or any investigation made by or on behalf of the Lenders.
ARTICLE V
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REPRESENTATIONS AND WARRANTIES
Section 5.01 Representations and Warranties. The Borrower represents and
warrants to the Administrative Agent, the L/C Issuer and each Lender as follows:
(a) Corporate Organization and Power. The Borrower is a corporation,
duly incorporated and validly existing in good standing under the laws of
the jurisdiction of its incorporation; it has all necessary corporate power
to own its property and to carry on its business as now being conducted;
and it is duly qualified to do business and is in good standing in each
jurisdiction in which the character of the properties owned or leased by it
therein or in which the transaction of its business makes such
qualification necessary, except where the failure to be so qualified, or to
be in good standing, could not reasonably be expected, individually or in
the aggregate, to have a Material Adverse Effect.
(b) Subsidiaries. SCHEDULE 5.01(B) (as updated from time to time
pursuant to Section 7.01) identifies each Subsidiary, the jurisdiction of
its incorporation, the percentage of issued and outstanding shares of each
class of its capital stock owned by the Borrower and the Subsidiaries and,
if such percentage is not 100% (excluding directors' qualifying shares as
required by law), a description of each class of its authorized capital
stock and the number of shares of each class issued and outstanding. Each
Subsidiary (other than inactive Subsidiaries, as identified on SCHEDULE
5.01(B)) is a corporation, duly incorporated and validly existing in good
standing under the laws of the jurisdiction of its incorporation, has all
necessary corporate power to carry on its present business, and is duly
licensed or qualified and in good standing in each jurisdiction in which
the nature of the business transacted by it or the nature of the property
owned or leased by it makes such licensing or qualification necessary,
except where the failure to be so licensed or qualified could not
reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect. All of the issued and outstanding shares of
capital stock of each Subsidiary have been duly authorized and validly
issued and are fully paid and nonassessable. All such shares owned by the
Borrower are owned beneficially, and of record, free of any Lien, other
than Liens granted under the Pledge Agreement.
(c) Corporate Authority. The Borrower has all necessary corporate
power and authority to execute and deliver, and to incur and perform its
obligations under, each of the Credit Documents, all of which have been
duly authorized by all proper and necessary corporate action. No consent or
approval of stockholders is required as a condition to the validity or
performance of, or the exercise by the Administrative Agent or the Lenders
of any of their rights or remedies under, any Credit Document.
(d) Authorizations. All authorizations, consents, approvals,
registrations, notices, exemptions and licenses with or from any
Governmental Authority or other Person necessary for the execution,
delivery and performance by the Borrower of, and the incurrence and
performance of each of its obligations under, each of the Credit Documents,
and the exercise by the Administrative Agent and the Lenders of their
remedies under each of the Credit Documents have been effected or obtained
and are in full force and effect.
(e) Binding Obligation. Each of the Credit Documents (other than the
Notes) constitutes and, when issued in accordance with the terms hereof,
each Note will constitute, the valid and legally binding obligation of the
Borrower enforceable in accordance with its terms, subject as to
enforcement to bankruptcy, insolvency,
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reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
(f) Litigation; Labor Controversies. Except as described in SCHEDULE
5.01(F) hereto, there are no proceedings or investigations now pending or,
to the knowledge of the Borrower, threatened before any court or arbitrator
or before or by any Governmental Authority which, individually or in the
aggregate, if determined adversely to the interests of the Borrower or any
Subsidiary, could reasonably be expected to have a Material Adverse Effect.
Except as set forth on SCHEDULE 5.01(F), there are no labor controversies
pending or, to the best knowledge of the Borrower, threatened against the
Borrower or any Subsidiary which could reasonably be expected, individually
or in the aggregate, to have a Material Adverse Effect.
(g) No Conflicts. There is no law, regulation, rule, order or
judgment, and no provision of any material agreement or instrument binding
upon the Borrower or any Subsidiary, or affecting their properties, and no
provision of the certificate of incorporation or by-laws (or similar
constitutive instruments) of the Borrower or any Subsidiary, that would
prohibit, conflict with or in any way impair the execution or delivery of,
or the incurrence or performance of any obligations of the Borrower under,
any Credit Document, or result in or require the creation or imposition of
any Lien on property of the Borrower or any Subsidiary as a consequence of
the execution, delivery and performance of any Credit Document.
(h) Financial Condition. (i) The consolidated balance sheet of the
Borrower as of March 1, 1997, together with consolidated statements of
income, retained earnings, paid-in capital and surplus and cash flows for
the fiscal year then ended, reported upon by KPMG Peat Marwick LLP, and the
consolidated balance sheet of the Borrower as of November 29, 1997,
together with statements of income and cash flows for the three and nine
months then ended, heretofore delivered to the Administrative Agent and the
Lenders, fairly present the consolidated financial condition, consolidated
results of operations and transactions in surplus accounts of the Borrower
as of the dates and for the periods referred to and have been prepared in
accordance with GAAP consistently applied throughout the period involved.
There are no material liabilities (whether known or unknown, direct or
indirect, fixed or contingent, and of any nature whatsoever) of the
Borrower or any Subsidiary as of the date of such balance sheet that are
not reflected therein or in the notes thereto.
(ii) Except as provided in SCHEDULE 5.01(H)(II), there has been no
material adverse change in the business, properties, condition (financial
or otherwise) or operations, present or prospective, of the Borrower and
the Subsidiaries, taken as a whole, since the date of the balance sheet
dated November 29, 1997 referred to in Section 5.01(h)(i).
(i) Taxes. The Borrower and its Subsidiaries (with the exception of
Xxxxxx LTS, S.A., as long as such Subsidiary does not have a tax liability
of greater than $3,500,000) have filed all United States federal tax
returns, and all other tax returns, required to be filed and have paid all
taxes due pursuant to such returns or pursuant to any assessment received
by the Borrower or any Subsidiary, except such taxes, if any, as
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are being contested in good faith and for which adequate reserves have been
provided. No notices of tax liens have been filed and no claims are being
asserted concerning any such taxes, which liens or claims could reasonably
be expected, individually or in the aggregate, to have a Material Adverse
Effect. The charges, accruals and reserves on the books of the Borrower and
its Subsidiaries for any taxes or other governmental charges are adequate.
(j) Margin Regulations; Xxxxxx Xxxxx; Use of Proceeds. Neither the
Borrower nor any Subsidiary is engaged principally, or as one of its
primary activities, in the business of extending credit for the purpose of
purchasing or carrying margin stock. The proceeds of the Loans and Letters
of Credit are to be used solely for the purposes set forth in and permitted
by Section 7.01(k). The Borrower will not use the proceeds of any Loan or
Letter of Credit in a manner that violates any provision of the Margin
Regulations.
(k) Compliance with ERISA. With respect to each Plan, the Borrower and
each other member of the ERISA Group has fulfilled its obligations under
the minimum funding standards of and is in compliance in all material
respects with ERISA, and with the Code to the extent applicable to it and
has not incurred any liability to the PBGC or a Plan under Title IV of
ERISA other than a liability to the PBGC for premiums under Section 4007 of
ERISA. Neither the Borrower nor any Subsidiary has any contingent
liabilities for any post-retirement benefits under a Welfare Plan, other
than liability for continuation coverage described in Part 6 of Title I of
ERISA.
(l) Not an Investment Company. Neither the Borrower nor any Subsidiary
is (i) an "investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended, or (ii) subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act, each as amended, or any
foreign, federal, state or local statute or regulation limiting its ability
to incur indebtedness for money borrowed as contemplated hereby.
(m) Properties. The Borrower and the Subsidiaries each has good and
marketable title to, or valid leasehold interests in, all of its respective
properties and assets that are reflected on the consolidated balance sheet
of the Borrower as of the most recent date, except for such immaterial
properties and assets as have been disposed of in the ordinary course of
business and except for minor defects in title that do not interfere with
the ability of the Borrower or any Subsidiary to conduct its business as
now conducted. All such assets and properties are so owned or held free and
clear of all Liens, except Permitted Liens.
(n) Compliance with Laws. The Borrower and each of its Subsidiaries
has all necessary licenses, permits and governmental authorizations to own
and operate its Properties and to carry on its business as currently
conducted and contemplated, except to the extent failure to have the same
could not, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect. The Borrower and each of its Subsidiaries is in
material compliance with all applicable laws, regulations, ordinances and
orders of any governmental or judicial authorities except for any such law,
regulation, ordinance or order which, the failure to comply therewith,
could not,
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individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(o) Environmental Protection. To the Borrower's knowledge, based upon
reasonable investigation, all real property owned or leased by the Borrower
or any Subsidiary is free of contamination from any substance that could
reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect, or constituent thereof, currently identified or
listed as hazardous or toxic pursuant to the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. 9601, et seq., or any
other Environmental Laws, or any other substance which has in the past or
could at any time in the future cause or constitute a health, safety or
environmental hazard to any person or property, including asbestos in any
building, petroleum products, PCBs, pesticides, or radioactive materials.
To the Borrower's knowledge, based upon reasonable investigation, neither
the Borrower nor any Subsidiary has caused or suffered to occur any release
of any Hazardous Substance into the environment or any other conditions
that, individually or in the aggregate, could reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect or
result in any violations of any Environmental Laws that could reasonably be
expected, individually or in the aggregate, to have a Material Adverse
Effect. To the Borrower's knowledge, based upon reasonable investigation,
neither the Borrower nor any Subsidiary has caused or suffered to occur any
condition on any of their property that could give rise to the imposition
of any Lien under the Environmental Laws. To the Borrower's knowledge,
based on reasonable investigation, to the extent that any Subsidiary is
engaged in any manufacturing or any other operations, other than the use of
petroleum products for vehicles, that require the use, handling,
transportation, storage or disposal of any Hazardous Substance, such
Subsidiary possesses all necessary permits required for such manufacturing
or operations and are in compliance with the laws, rules and regulations
applicable to such permit holders, except to the extent failure to have the
same could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect. The Borrower is not engaged in any
manufacturing or any other operations, other than the use of petroleum
products for vehicles, that require the use, handling, transportation,
storage or disposal of any Hazardous Substance, where such operations
require permits or are otherwise regulated pursuant to the Environmental
Laws.
(p) Insurance. All of the properties and operations of the Borrower
and each Subsidiary of a character usually insured by companies of
established reputation engaged in the same or a similar business similarly
situated are adequately insured, by financially sound and reputable
insurers, against loss or damage of the kinds and in amounts customarily
insured against by such Persons, and the Borrower and the Subsidiaries
carry, with such insurers in customary amounts, such other insurance,
including larceny, embezzlement or other criminal misappropriation
insurance and business interruption insurance, as is usually carried by
companies of established reputation engaged in the same or a similar
business similarly situated.
(q) No Burdensome Restrictions; Compliance with Agreements. Neither
the Borrower nor any Subsidiary is (a) subject to any law, regulation, rule
or order that (individually or in the aggregate) materially adversely
affects the business, operations,
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Property or financial or other condition of the Borrower or the Borrower
and its Subsidiaries taken as a whole or (b) in default in the performance,
observance or fulfillment of any of the obligations, covenants or
conditions contained in any Contractual Obligation to which it is a party,
which default could reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect on the business, operations,
Property or financial or other condition of the Borrower and its
Subsidiaries taken as a whole.
(r) Security Agreements. The provisions of each of the Security
Agreement and the Pledge Agreement will be effective to create in favor of
the Collateral Agent a valid, binding and enforceable security interest in
the Collateral described therein, which, upon the filing of financing
statements and the taking of the other actions specified in the Security
Documents, will constitute a fully perfected first and prior security
interest superior in right to any Liens, except (i) as otherwise
contemplated by such Security Documents, (ii) for Liens, if any, permitted
to be prior hereunder or under any Credit Document, existing or future,
which any Person may have against such Collateral or interests therein,
including, without limitation, Permitted Liens, and (iii) that such
enforceability is subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
(s) Systems. The Borrower and its Subsidiaries are using reasonable
efforts to ensure that all essential data processing systems used by them
are "year 2000 compliant."
(t) Full Disclosure. All information relating to the Borrower or its
Subsidiaries delivered in writing to the Administrative Agent or any Lender
in connection with the negotiation, execution and delivery of this
Agreement and the other Credit Documents is true and complete in all
material respects. There is no material fact of which the Borrower is aware
which, individually or in the aggregate, would reasonably be expected to
influence adversely any Lender's credit analysis relating to the Borrower
and its Subsidiaries which has not been disclosed to the Lenders in
writing.
Section 5.02 Survival. All representations and warranties made by the
Borrower in this Agreement, and in the certificates or other instruments
prepared or delivered in connection with or pursuant to this Agreement, shall
(i) be considered to have been relied upon by the Lenders, (ii) survive the
making of Loans and the issuance of Letters of Credit regardless of any
investigation made by, or on behalf of, the Lenders, and (iii) continue in full
force and effect as long as the Commitments have not been terminated and,
thereafter, so long as any Loan, L/C Obligation, Commitment Fee, Letter of
Credit Fee or other amount payable under any Credit Document remains unpaid.
ARTICLE VI
CONDITIONS PRECEDENT
Section 6.01 Conditions to the Availability of the Commitments. The
obligations of each Lender and the L/C Issuer hereunder are subject to, and the
Lenders' Commitments shall not
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become available until the earliest time (the "EFFECTIVE TIME") (which shall be
no later than the close of business in The City of New York on May 22, 1998) on
which each of the following conditions precedent shall have been satisfied or
waived in writing by each of the Lenders:
(a) Credit Documents. The Administrative Agent shall have received
this Agreement duly executed and delivered by each of the Lenders and the
Borrower and the Contribution Agreement, the Intercreditor Agreement and
the Subsidiary Guaranty, as well as any other Credit Documents, duly
executed and delivered by each of the parties thereto.
(b) Security Documents. The Administrative Agent shall have received
each of the Pledge Agreement and the Security Agreement duly executed and
delivered by the parties thereto granting to the Collateral Agent, for its
benefit and the equal and ratable benefit of the Lenders, a security
interest in the collateral described therein together with (i) copies of
Financing Statements (Form UCC-1) to be filed under the Uniform Commercial
Code, and other financing documents as provided in the Pledge Agreement and
Security Agreement, (ii) evidence reasonably satisfactory to the
Administrative Agent with respect to the Collateral Agent's first priority
security interest in such collateral, other than collateral subject to
Permitted Liens (which may include, but shall not be limited to, certified
copies of Request for Information (Form UCC-11) or equivalent reports,
listing all financing statements which name the Borrower or any Subsidiary
as debtor and which are on file, as of a recent date prior to the Closing
Date, in all relevant jurisdictions listed in the Security Documents) and
(iii) stock powers, duly endorsed in blank, with respect to all shares of
stock of Subsidiaries included in the collateral. In the case of clause
(iii) of the preceding sentence, the stock certificates representing all
shares of stock of Subsidiaries included in the collateral may be delivered
to the Administrative Agent in the form they exist as of the Effective
Time, PROVIDED, HOWEVER, that (A) the stock certificates delivered at the
Effective Time represent all shares of stock of Subsidiaries included in
the collateral and (B) the Borrower provides the Administrative Agent with
(x) an explanation of the necessary changes to be made to the stock
certificates so provided, so as to enable the Administrative Agent to
assess the completeness of the stock certificates so provided in light of
currently existing Subsidiaries and (y) a commitment to provide the
Administrative Agent with all reissued, revised or replaced stock
certificates as soon as practicable after the Effective Time, but in no
case later than 14 Business Days after the Effective Date (or such later
date as the Administrative Agent may in writing agree).
(c) Evidence of Corporate Action. The Administrative Agent, for each
of the Lenders, shall have received the following:
(i) a copy of the Articles of Incorporation of the Borrower, as
in effect on the Effective Date, certified by the Secretary of State
of Minnesota, and a certificate from such Secretary of State as to the
good standing of the Borrower, in each case as of a date reasonably
close to the Effective Date;
(ii) a certificate of the Secretary or an Assistant Secretary of
the Borrower, dated the Effective Date, stating (A) that attached
thereto is a true and complete copy of the by-laws of the Borrower as
in effect on such date and at all times since the date of the
resolutions described in clause (B) below, (B) that
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attached thereto is a true and complete copy of resolutions duly
adopted by the Board of Directors of the Borrower authorizing the
execution, delivery and performance of the various Credit Documents,
and that such resolutions have not been modified, rescinded or amended
and are in full force and effect, (C) that the articles of
incorporation of the Borrower has not been amended since the date of
the last amendment thereto shown on the certificate of good standing
furnished pursuant to clause (i) above, and (D) as to the incumbency
and signature of each officer executing this Agreement or any document
delivered in connection herewith on behalf of the Borrower; and
(iii) copies of a certificate of the Secretary or Assistant
Secretary of each of the Subsidiaries that is a party to any Security
Document, dated the Effective Date, stating (A) that attached thereto
is a true and complete copy of resolutions duly adopted by the Board
of Directors of such Subsidiary authorizing the execution, delivery
and performance of each such Security Document, and that such
resolutions have not been modified, rescinded or amended and are in
full force and effect; and (B) as to the incumbency and signature of
each officer executing each such Security Document or any document
delivered in connection with this Agreement or any such Security
Document on behalf of such Subsidiary.
(d) Opinions of Counsel. The Administrative Agent, for each of the
Lenders, shall have received a favorable written opinion, dated the
Effective Date and addressed to the Lenders under this Agreement, of (i)
Xxxxxx & Xxxxxxx LLP, counsel for the Borrower, in substantially the form
of EXHIBIT D-1, and (ii) Xxxxxxxx & Xxxxxxxx, counsel for the
Administrative Agent, in substantially the form of EXHIBIT D-2.
(e) Representations and Warranties. The representations and warranties
contained in Section 5.01 shall be true and correct on the Effective Date,
and the Lenders shall have received a certificate, signed by a Responsible
Officer of the Borrower, to that effect.
(f) Existing Facility. Each of the Existing Credit Agreement, the
Existing Contribution Agreement, the Existing Intercreditor Agreement, the
Existing Pledge Agreement, the Existing Security Agreement and the Existing
Subsidiary Guaranty shall have been cancelled or terminated in accordance
with its respective terms, any promissory notes issued thereunder shall
have been cancelled or returned to the Borrower, and the Administrative
Agent shall have received written evidence thereof.
(g) Other Documents. The Lenders shall have received such other
certificates, opinions and other documents as the Administrative Agent or
the Required Lenders reasonably may require.
(h) Fees. The Administrative Agent shall have received any fees or
other payments which are due and payable pursuant to the fee letter
agreement, dated as of April 24, 1998, among the Borrower, The Bank of New
York and BNY Capital Markets, Inc., on or prior to the Effective Time.
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Section 6.02 Conditions to All Loans. The obligations of each Lender to
make each Loan and of the L/C Issuer to issue each Letter of Credit are subject
to the conditions precedent that, on the date of each Loan or Letter of Credit
and after giving effect thereto, each of the following conditions precedent
shall have been satisfied, or waived in writing by the Lenders:
(a) Borrowing Request. The Administrative Agent shall have received a
Revolving Credit Request, Swing Line Request or L/C Request in accordance
with the terms of this Agreement.
(b) No Default. No Default or Event of Default shall have occurred and
be continuing, nor shall any Default or Event of Default occur as a result
of the making of such Loan or the issuance of such Letter of Credit.
(c) Representations and Warranties; Covenants. The representations and
warranties contained in Section 5.01 shall have been true and correct when
made and (except to the extent that any representation or warranty speaks
as of a date certain) shall be true and correct on the Borrowing Date with
the same effect as though such representations and warranties were made on
such Borrowing Date; and the Borrower shall have complied with all of its
covenants and agreements under the Credit Documents.
Section 6.03 Satisfaction of Conditions Precedent. Each of (i) the delivery
by the Borrower of a Revolving Credit Request, Swing Line Request or L/C Request
and (ii) the acceptance of the proceeds of a Loan shall be deemed to constitute
a certification by the Borrower that, as of the Borrowing Date, each of the
conditions precedent contained in Section 6.02 has been satisfied with respect
to any Loans then being made.
ARTICLE VII
COVENANTS
Section 7.01 Affirmative Covenants. Until satisfaction in full of all the
obligations of the Borrower under the Credit Documents and termination of the
Commitments of the Lenders hereunder, the Borrower will:
(a) Financial Statements; Compliance Certificates. Furnish to the
Lenders:
(i) as soon as available, but in no event more than 45 days
following the end of each of the first three quarters of each fiscal
year, copies of the Borrower's Quarterly Report on Form 10-Q being
filed with the SEC, which shall include a consolidated balance sheet
and consolidated income statement of the Borrower and the Subsidiaries
for such quarter;
(ii) as soon as available, but in no event more than 90 days
following the end of each fiscal year, a copy of the Borrower's Annual
Report on Form 10- K being filed with the SEC, which shall include the
consolidated financial statements of the Borrower and the
Subsidiaries, together with a report thereon
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by KPMG Peat Marwick LLP (or another firm of independent certified
public accountants reasonably satisfactory to the Lenders), for such
year;
(iii) together with each report delivered pursuant to Sections
7.01(a)(i) and (ii), a certificate of the Borrower, signed by a
Responsible Officer, in substantially the form of EXHIBIT E, stating
whether, as of the last date of the financial statements included in
such report, any event occurred or circumstance existed which,
individually or in the aggregate, constituted a Default or Event of
Default (and, if so, detailing the facts with respect thereto) and
whether the Borrower was in compliance with the covenants set forth in
this Article VII, together with calculations to establish the
Borrower's compliance with the covenants contained in Section 7.03;
(iv) promptly upon the filing by the Borrower with the SEC or any
national securities exchange of any registration statement (other than
a registration statement on Form S-8 or an equivalent form) or regular
periodic report (other than the reports referred to in Sections
7.01(a)(i) and (ii)), notification of such filing; and, at the request
of any Lender, the Borrower shall deliver to such Lender a copy of
such filing (excluding exhibits);
(v) promptly upon the mailing thereof to the shareholders of the
Borrower generally copies of all financial statements, reports and
proxy statements so mailed;
(vi) within two Business Days of any Responsible Officer of the
Borrower obtaining knowledge of any Default or Event of Default, a
certificate of a Responsible Officer of the Borrower stating that such
certificate is a "Notice of Default" and setting forth the details
thereof and the action which the Borrower is taking or proposes to
take with respect thereto; and
(vii) such additional information, reports or statements,
regarding the business, financial condition or results of operations
of the Borrower and its Subsidiaries, as the Administrative Agent or
any of the Lenders from time to time may reasonably request.
(b) Corporate Existence. Except as permitted by Section 7.02(a),
maintain, and cause each Subsidiary to maintain, its corporate existence in
good standing and qualify and remain qualified to do business in each
jurisdiction in which the character of the properties owned or leased by it
therein or in which the transaction of its business is such that the
failure to qualify, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
(c) Conduct of Business. Preserve, renew and keep in full force and
effect, and cause each Subsidiary to preserve, renew and keep in full force
and effect, all its franchises and licenses necessary or desirable in the
normal conduct of its business and the loss of which, individually or in
the aggregate, could reasonably be expected to have a Material Adverse
Effect; and comply, and cause each Subsidiary to comply, with all
applicable laws, orders, rules and regulations of all Governmental
Authorities the failure
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with which so to comply, individually or in the aggregate, could reasonably
be expected to have a Material Adverse Effect.
(d) Authorizations. Xxxxxx, make and keep in full force and effect all
authorizations from and registrations with Governmental Authorities
required for the validity or enforceability of the Credit Documents.
(e) Taxes. Pay and discharge, and cause each Subsidiary to pay and
discharge, all taxes, assessments and governmental charges upon it, its
income and its properties prior to the date on which penalties are attached
thereto, except to the extent that (i) such taxes, assessments and
governmental charges shall be contested in good faith and by appropriate
proceedings by the Borrower or such Subsidiary, as the case may be, (ii)
unless the amount thereof is not material to the Borrower's consolidated
financial condition, adequate reserves are maintained (in accordance with
GAAP) by the Borrower or such Subsidiary, as the case may be, with respect
thereto, and (iii) any failure to pay and discharge such taxes, assessments
and governmental charges could not reasonably be expected, individually or
in the aggregate, to have a Material Adverse Effect.
(f) Insurance. Maintain, and cause each Subsidiary to maintain,
insurance with reputable insurance companies against such risks, of such
types (including general liability, larceny, embezzlement or other criminal
misappropriation insurance), on such properties and in such amounts as is
customarily maintained by similar businesses similarly situated; provide
evidence that, to the extent required by the Administrative Agent and the
Lenders, the Administrative Agent, for its benefit and the benefit of the
Lenders, has been named as loss payee by endorsement to the policies for
such insurance; and file and cause each Subsidiary to file with the
Administrative Agent upon its request or the request of any Lender a
detailed list of the insurance companies, the amounts and rates of the
insurance, the dates of the expiration thereof and the properties and risks
covered thereby.
(g) Inspection. Upon reasonable notice, permit, and cause each
Subsidiary to permit, the Administrative Agent and the Lenders to have one
or more of their officers and employees, or any other Person or Persons
designated by the Administrative Agent or the Lenders, reasonable access,
prior to the occurrence and continuance of any Default or Event of Default,
at the expense of the Administrative Agent and the Lenders and at any time
a Default or Event of Default has occurred and is continuing, at the
Borrower's expense, to any of the properties of the Borrower and the
Subsidiaries and to examine the minute books, books of account and other
records of the Borrower and the Subsidiaries, and discuss its affairs,
finances and accounts with its officers and with the Borrower's independent
accountants, during normal business hours and at such other reasonable
times, for the purpose of monitoring the Borrower's compliance with its
obligations under the Credit Documents; PROVIDED, HOWEVER, that except upon
the occurrence and during the continuance of any Default or Event of
Default, not more than one such set of visits and inspections may be
conducted each calendar quarter.
(h) Maintenance of Records. For the Borrower and each of its
Subsidiaries (i) keep proper books of record and account in which full,
true and correct entries will be made of all dealings or transactions of or
in relation to its business and affairs; (ii) set up
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on its books reserves with respect to all taxes, assessments, charges,
reviews and claims; and (iii) on a current basis, set up on its books, from
its earnings, appropriate reserves against doubtful accounts receivable,
advances and investments and all other proper reserves (including by reason
of enumeration, reserves for premiums, if any, due on required prepayments
and reserves for depreciation, obsolescence, or amortization of
properties), which should be set aside from such earnings in connection
with its business. (All determinations pursuant to this Section 7.01(h)
shall be made in accordance with, or as required by, GAAP consistently
applied in the opinion of the independent auditors regularly engaged by the
Borrower.)
(i) Maintenance of Property. Maintain, keep and preserve and cause
each Subsidiary to maintain, keep and preserve all of its properties in
good repair, working order and condition and from time to time make all
necessary and proper repairs, renewals, replacements, and improvements
thereto, except to the extent that any failure so to maintain, keep and
preserve such properties, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
(j) ERISA. Furnish to the Lenders:
(i) within ten days after a Responsible Officer learns that any
"reportable event" (as defined in Section 4043(c) of ERISA), other
than a reportable event for which the 30-day notice requirement has
been waived by the PBGC, has occurred with respect to a Pension Plan,
a statement setting forth details as to such reportable event and the
action proposed to be taken with respect thereto;
(ii) within ten days after receipt thereof, a copy of any notice
that any member of the ERISA Group may receive from the PBGC relating
to the intention of the PBGC to terminate any Pension Plan or to
appoint a trustee to administer any Plan;
(iii) within ten days after filing with any affected party (as
such term is defined in Section 4001 of ERISA) of a notice of intent
to terminate a Pension Plan, a copy of such notice and a statement
setting forth the details of such termination, including the amount of
liability, if any, of any member of the ERISA Group under Title IV of
ERISA;
(iv) within ten days after the adoption of an amendment to a
Pension Plan if, after giving effect to such amendment, the Pension
Plan is a plan described in Section 4021(b) of ERISA, a statement
setting forth the details thereof;
(v) within 30 days after withdrawal from a Pension Plan during a
plan year for which any member of the ERISA Group could be subject to
liability under Section 4063 or 4064 of ERISA, a statement setting
forth the details thereof, including the amount of such liability;
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(vi) within 30 days after cessation of operations by any member
of the ERISA Group at a facility under the circumstances described in
Section 4062(e) of ERISA, a statement setting forth the details
thereof, including the amount of liability of the Borrower or a member
of the ERISA Group under Title IV of ERISA;
(vii) within ten days after adoption of an amendment to a Pension
Plan which would require security to be given to the Pension Plan
pursuant to Sec tion 401(a)(29) of the Code or Section 307 of ERISA, a
statement setting forth the details thereof, including the amount of
such security;
(viii) within ten days after failure by any member of the ERISA
Group to make payment to a Pension Plan which would give rise to a
lien in favor of the Plan under Section 302(f) of ERISA, a statement
setting forth the details thereof, including the amount of such lien;
(ix) within ten days after the due date for filing with the PBGC,
pursuant to Section 412(n) of the Code, of a notice of failure to make
a required installment or other payment with respect to a Pension
Plan, a statement setting forth details as to such failure and the
action proposed to be taken with respect thereto; and
(x) within 30 days after receipt thereof by any member of the
ERISA Group from the sponsor of a Multiemployer Plan, a copy of each
notice concerning the imposition of withdrawal liability or the
termination or reorganization of a Multiemployer Plan.
(k) Notice of Defaults and Adverse Developments. Promptly notify the
Administrative Agent upon the discovery by any Responsible Officer of the
occurrence of (i) any Default or Event of Default; (ii) any event,
development or circumstance whereby the financial statements most recently
furnished to the Agent fail in any material respect to present fairly, in
accordance with GAAP, the financial condition and operating results of the
Borrower and the Subsidiaries as of the date of such financial statements;
(iii) any litigation or proceedings that are instituted or threatened (to
the knowledge of the Borrower) against the Borrower or any Subsidiary or
any of their respective assets that could reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect; (iv)
any event, development or circumstance which, individually or in the
aggregate, could reasonably be expected to result in an event or default
(or, with the giving of notice or lapse of time or both, an event of
default) under any Indebtedness and the amount thereof; and (v) any other
development in the business or affairs of the Borrower or any Subsidiary if
the effect thereof would reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect; in each case describing the
nature thereof and the action the Borrower proposes to take with respect
thereto. (Upon receipt, the Administrative Agent shall promptly advise each
Lender of the contents of any such notice.)
(l) Use of Proceeds. Use each Loan, and the credit provided by Letters
of Credit, only (i) to repay Indebtedness outstanding at the Effective
Time, (ii) for working
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capital requirements and (iii) for general corporate purposes, including
Capital Expenditures. Following application of the proceeds of each Loan,
not more than 25% of the value of the assets (either of the Borrower only
or of the Borrower and its Subsidiaries on a consolidated basis) subject to
the provisions of Section 7.02(b) hereof will be margin stock (within the
meaning of the Margin Regulations).
(m) Environmental Matters. (i) Comply, and cause each Subsidiary to
comply, in all material respects with all applicable Environmental Laws,
(ii) notify the Administrative Agent promptly after becoming aware of any
Environmental Claim, or any fact or circumstance that could reasonably be
expected to result in an Environmental Claim or a violation of any
Environmental Law that could reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect, with respect to the
Borrower's or any Subsidiaries' properties or facilities, and (iii)
promptly forward to the Administrative Agent a copy of any material order,
notice, permit, application, or any other communication or report received
in connection with any such matters as they may affect such premises.
(n) Measurement Date. Provide to the Administrative Agent the
Debt/EBITDA Ratio and the Senior Debt/EBITDA Ratio within one Business Day
of (i) the date a Revolving Credit Request (which designates Eurodollar
Loans), L/C Request or Conversion Request is submitted by the Borrower,
(ii) the date any Responsible Officer obtains actual knowledge of a change
in the Debt/EBITDA Ratio or the Senior Debt/EBITDA Ratio, (iii) the date
the Administrative Agent or any Lender requests such ratio and (iv) the
last day of every month, in each case calculated as of the date of such
event or occurrence.
Section 7.02 Negative Covenants. Until satisfaction in full of all the
obligations of the Borrower under the Credit Documents and termination of the
Commitments of the Lenders hereunder, the Borrower will not:
(a) Mergers, Consolidations and Sales of Assets. Be a party to any
merger, consolidation or share exchange, or sell, transfer, lease or
otherwise dispose of all or any substantial part of its assets or property,
including any disposition of assets or property as part of a sale and
leaseback transaction, or in any event sell or discount (with or without
recourse) any of its notes or accounts receivable, or permit any Subsidiary
so to do; PROVIDED, HOWEVER, that this Section shall not apply to nor
operate to prevent (i) the Borrower being a party to any merger where the
Borrower is the surviving Person if, after given effect to such merger, no
Default or Event of Default would then exist, (ii) any Subsidiary (a)
merging into the Borrower or (b) being a party to any merger which does not
involve the Borrower where a Subsidiary is the surviving Person if, after
giving effect to such merger, no Default or Event of Default would then
exist, or (iii) the Borrower or any Subsidiary from selling its inventory
in the ordinary course of its business. The term "SUBSTANTIAL" as used
herein shall mean an amount in excess of 5% of the total assets of the
Borrower or such Subsidiary (computed based upon the total assets of the
Borrower or such Subsidiary set forth in the most recently prepared balance
sheet) per year. For purposes of this Section 7.02(a) the Property of the
Borrower and its Subsidiaries shall be valued at the greater of book or
fair market value of such Property.
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(b) Liens. Create, incur, assume or suffer to exist any Lien, or
permit any Subsidiary so to do, upon or in any of its property or assets,
whether now owned or hereafter acquired, except the following Liens
(collectively, "PERMITTED LIENS"):
(i) Liens arising by operation of law in connection with worker's
compensation, unemployment insurance, social security obligations,
taxes, assessments, statutory obligations or other similar charges,
good faith deposits, pledges or Liens in connection with bids,
tenders, contracts or leases to which the Borrower or any Subsidiary
is a party (other than contracts for borrowed money), or other
deposits required to be made or surety bonds or other obligations of
like nature (which for the purposes of this Agreement shall include
letters of credit in the nature of a surety bond) required to be
obtained in the ordinary course of business in connection with any of
the foregoing; PROVIDED that in each case the obligation secured is
not overdue or, if overdue, is being contested in good faith by
appropriate proceedings and for which reserves in conformity with GAAP
have been provided on the books of the Borrower;
(ii) mechanics', workmen's, materialmen's, landlords', carriers'
or other similar Liens arising in the ordinary course of business (or
deposits to obtain the release of such Liens) securing obligations not
due or, if due, being contested in good faith by appropriate
proceedings and for which reserves in conformity with GAAP have been
provided on the books of the Borrower;
(iii) Liens for taxes or assessments or other government charges
or levies on the Borrower or any Subsidiary of the Borrower or their
respective Properties, not yet due or delinquent, or which can
thereafter be paid without penalty, or which are being contested in
good faith by appropriate proceedings and for which reserves in
conformity with GAAP have been provided on the books of the Borrower;
(iv) Liens arising out of judgments or awards against the
Borrower or any Subsidiary of the Borrower, or in connection with
surety or appeal bonds in connection with bonding such judgments or
awards, the time for appeal from which or petition for rehearing of
which shall not have expired or with respect to which the Borrower or
such Subsidiary shall be prosecuting an appeal or proceeding for
review, and with respect to which it shall have obtained a stay of
execution pending such appeal or proceeding for review; PROVIDED that
the aggregate amount of liabilities (including interest and penalties,
if any) of the Borrower and its Subsidiaries secured by such Liens
shall not exceed $2,500,000 at any one time outstanding;
(v) Liens upon any Property acquired by the Borrower or any
Subsidiary of the Borrower to secure any Indebtedness of the Borrower
or any Subsidiary incurred at the time of the acquisition of such
Property to finance the purchase price of such Property, or Liens upon
property resulting from the sale by the Borrower or any Subsidiary of
Property and the leasing of the same or similar property from the
purchaser thereof (or a subsequent purchaser or lessee), PROVIDED that
any such Lien shall apply only to the Property that was so acquired
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or sold and leased back and the aggregate principal amount of
Indebtedness secured by such Liens shall not exceed $15,000,000 at any
time outstanding;
(vi) Survey exceptions or encumbrances, easements or
reservations, or rights of others for rights-of-way, utilities and
other similar purposes, or zoning or other restrictions as to the use
of real properties which are necessary for the conduct of the
activities of the Borrower and any Subsidiary of the Borrower or which
customarily exist on properties of corporations engaged in similar
activities and similarly situated and which do not in any event
materially impair their use in the operation of the business of the
Borrower or any Subsidiary of the Borrower;
(vii) Liens listed on SCHEDULE 7.02(B), as modified as soon as
practicable following the Effective Date in order to add all real
property Liens in existence on the Effective Date (which real property
Liens could not reasonably be expected, in the aggregate, to have a
Material Adverse Effect);
(viii) Liens securing Indebtedness of a Subsidiary of the
Borrower incurred in connection with the acquisition or construction
of Property of such Subsidiary; PROVIDED that such Lien is limited to
the Property being financed by such Indebtedness and any revenues of
such Subsidiary directly attributable to such Property; and PROVIDED,
FURTHER, that the Indebtedness secured by such Lien is non-recourse to
the Borrower and its Subsidiaries;
(ix) Any extension, renewal or replacement (or successive
extensions, renewals or replacements) in whole or in part of any Lien
referred to in the foregoing paragraphs (i) through (viii), inclusive,
PROVIDED, HOWEVER, that the principal amount of Indebtedness secured
thereby shall not exceed the principal amount of the Indebtedness so
secured at the time of any extension, renewal or refinancing, and that
such extension, renewal or refinancing shall be limited to the
Property which was subject to the Lien so extended, renewed or
refinanced;
(x) Liens securing obligations under the Credit Documents,
including Liens provided for in the Security Documents; and
(xi) Liens securing Indebtedness existing or incurred in
connection with industrial revenue bonds or industrial development
bonds, as permitted by Section 7.02(c), PROVIDED such Liens are
limited to Liens on the capital assets that have been acquired or
construction of which has been financed by the proceeds of such
industrial revenue bonds or industrial development bonds.
(c) Indebtedness. Create, incur, assume, suffer to exist, Guaranty or
become or remain contingently liable for any Indebtedness, or permit any
Subsidiary so to do, except:
(i) Indebtedness to the Administrative Agent and one or more
Lenders under the Credit Documents;
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(ii) Indebtedness of the Borrower which, when in place, will not
cause the Borrower to be in violation of the covenants contained in
Section 7.03;
(iii) Indebtedness of Subsidiaries secured by Liens permitted
pursuant to Sections 7.02(b)(v) or (viii) which, when in place, will
not cause the Borrower to be in violation of such Sections or of the
covenants contained in Section 7.03;
(iv) (A) Debt of Subsidiaries of the Borrower in an aggregate
outstanding amount at any time not to exceed $2,500,000 (B)
Indebtedness of Subsidiaries of the Borrower to the Borrower, (C)
Indebtedness of Subsidiaries of the Borrower consisting of any surety
bond or other obligations of like nature, PROVIDED that such
Indebtedness shall be permitted pursuant to this Section 7.02(c)(iii)
only (x) with respect to the portion of such surety bond or other
obligation as to which no demand or unreimbursed drawing has been
made, (y) if such surety bond or other obligation has been provided in
the ordinary course of such Subsidiaries' business and (z) if such
Indebtedness, when in place, will not cause the Borrower to be in
violation of the Financial Covenants, (D) Indebtedness of Subsidiaries
of the Borrower consisting of trade payables not evidenced by a note
or similar instrument incurred in the ordinary course of such Person's
business, if such Indebtedness, when in place, will not cause the
Borrower to be in violation of the Financial Covenants, and (E)
Indebtedness of Subsidiaries of the Borrower consisting of industrial
revenue bonds or obligations of like nature, but only to the extent
permitted by the final sentence of this Section 7.02(c), if such
Indebtedness, when in place, will not cause the Borrower to be in
violation of the Financial Covenants;
(v) Subordinated debt issued in the Subordinated Debt
Transaction; and
(vi) Existing Indebtedness listed on SCHEDULE 7.02(C).
In no case, however, will the Borrower or its Subsidiaries, individually or
in the aggregate, create, incur, assume, suffer to exist, Guaranty or
become or remain contingently liable for any Indebtedness (excluding Loans,
L/C Obligations, subordinated indebtedness issued in the Subordinated Debt
Transaction and any surety bond or other obligations of like nature as to
which no demand or unreimbursed drawing has been made) in excess of
$50,000,000; PROVIDED that $25,000,000 of such amount may only include
industrial revenue bonds or obligations of like nature.
(d) Investments, Acquisitions, Loans, Advances and Guaranties.
Directly or indirectly, make, retained or have outstanding any investments
(whether through purchase of stock or obligations or otherwise) in, or
loans or advances to, any other Person, or acquire all or any substantial
part of the assets or business or any other Person or division thereof, or
Guaranty or become liable as endorser, guarantor, surety or otherwise (such
as liability as a general partner) for any debt, obligation or undertaking
of any other Person, or otherwise agree to provide funds for payment of the
obligations of another, or supply funds thereto or invest therein or
otherwise assure a creditor of another against loss, or apply for or become
liable to the issuer of a letter of credit which supports an obligation of
another, or subordinate any claim or demand it may have to the
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claim or demand of any other Person (cumulatively, all of the foregoing,
being "INVESTMENTS"), or permit any Subsidiary to do any of the foregoing;
PROVIDED, HOWEVER, that the foregoing provisions shall not apply to nor
operate to prevent:
(i) investments in direct obligations of the United States of
America or of any agency or instrumentality thereof whose obligations
constitute full faith and credit obligations of the United States of
America PROVIDED that any such obligation matures within one year from
the date it is acquired by the Borrower or Subsidiary;
(ii) investments in commercial paper rated P-1 by Xxxxx'x
Investors Services, Inc. or A-1 by Standard & Poor's Corporation
maturing within one year of its date of issuance;
(iii) investments in certificates of deposit issued by any Lender
or any United States commercial bank having capital and surplus of not
less than $500,000,000 maturing within one year from the date of
issuance thereof or in banker's acceptances endorsed by any Lender or
other such commercial bank and maturing within six months of the date
of acceptance;
(iv) investments in repurchase obligations with a term of not
more than seven (7) days for underlying securities of the types
described in subsection (i) above entered into with any bank meeting
the qualifications specified in subsection (iii) above, provided all
such agreements require physical delivery of the securities securing
such repurchase agreement, except those delivered through the Federal
Reserve Book Entry System;
(v) investments in money market funds that invest solely, and
which are restricted by their respective charters to invest solely, in
investments of the type described in the immediately preceding
subsections (i), (ii), (iii) and (iv) above;
(vi) ownership of stock, obligations or securities received in
settlement of debts (created in the ordinary course of business) owing
to the Borrower or any Subsidiary;
(vii) endorsements of negotiable instruments for collection in
the ordinary course of business;
(viii) loans and advances to employees in the ordinary course of
business for travel, relocation, and similar purposes;
(ix) acquisitions of all or any substantial part of the assets or
business of any other Person or division thereof engaged in a line of
business directly related to that of the Borrower, or of a majority of
the voting stock of such a Person; PROVIDED that such Person is
engaged (or promptly after such acquisition will be engaged) in a line
of business directly related to that of the Borrower; and PROVIDED,
FURTHER, that (A) such Person becomes a Subsidiary of the Borrower as
a result of such acquisition, (B) no Default or Event of Default
exists or would
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exist after giving effect to such acquisition, (C) the Board of
Directors or other governing body of such Person whose Property, or
voting stock or other interests in which, are being so acquired has
approved the terms of such acquisition, (D) such acquisition does not
exceed $15,000,000 in aggregate purchase price;
(x) Investments consisting of performance bonds and letters of
credit and other similar surety devices obtained to support, or in
lieu of, performance bonds, in each case entered into in the ordinary
course of business;
(xi) Investments in Subsidiaries;
(xii) other Investments in stock or other securities, PROVIDED
that the aggregate amount of any such Investments at any time
outstanding does not exceed $1,000,000;
(xiii) notwithstanding Section 7.02(d)(ix), additional
Investments in joint ventures existing as of the date hereof; PROVIDED
that (A) no Default or Event of Default exists or would exist after
giving effect to such Investments and (B) the aggregate purchase price
to be paid after the date hereof for such Investments do not exceed
$40,000,000; and
(xiv) any Guaranty or liability as endorser, guarantor, surety or
otherwise (such as liability as a general partner) for any debt,
obligation or undertaking of any other Person, or agreement to provide
funds for payment of the obligations of another, or supplying of funds
thereto or investing therein or otherwise assuring a creditor of
another against loss, or applying for or becoming liable to the issuer
of a letter of credit which supports an obligation of another, to the
extent such instrument or action would constitute Indebtedness
permitted under Section 7.02(c).
In determining the amount of investments, acquisitions, loans,
advances and guarantees permitted under this Section 7.02(d), investments
and acquisitions shall always be taken at the original cost thereof
(regardless of any subsequent appreciation or depreciation therein), loans
and advances shall be taken at the principal amount thereof then remaining
unpaid, and guarantees shall be taken at the amount of obligations
guaranteed thereby.
(e) Capital Expenditures. Make any Capital Expenditures, or permit any
Subsidiary so to do, exceeding, in the aggregate for the Borrower and the
Subsidiaries, $105,000,000 in the first fiscal year ending after the date
hereof and $50,000,000 in any one fiscal year thereafter; PROVIDED that
after the second anniversary hereof and notwithstanding the foregoing, the
Borrower and its Subsidiaries may make additional Capital Expenditures up
to an aggregate of $50,000,000 for the construction of glass technology
facilities.
(f) Dividends and Purchase of Stock. (i) Declare any dividends (other
than dividends payable in capital stock of the Borrower) on any shares of
any class of its capital stock, or apply any of its property or assets to
the purchase, redemption or other
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retirement of, or set apart any sum for the payment of any dividends on, or
for the purchase, redemption or other retirement of, or make any other
distribution by reduction of capital or otherwise in respect of, any shares
of any class of capital stock of the Borrower, or permit any Subsidiary
which is not a Wholly Owned Subsidiary so to do, or permit any Subsidiary
to purchase or acquire any shares of any class of capital stock of the
Borrower, unless, immediately after giving effect to such action, (A) there
shall not have occurred any Default or Event of Default that is continuing
and (B) the aggregate amount of such payments and distributions during any
12-month period shall not have exceeded 110% of such aggregate amounts paid
or distributed in the 12-month period preceding such 12-month period; and
(ii) Permit any Subsidiary to (x) issue a Guaranty or (y) enter into
any agreement or instrument which by its terms restricts the ability of
such Subsidiary to (A) declare or pay dividends or make similar
distributions, (B) repay principal of, or pay any interest on, any
Indebtedness owed to the Borrower or any Subsidiary described in Section
7.02(d)(xi)(A), (C) make payments of royalties, licensing fees and similar
amounts to the Borrower or any other Subsidiary, (D) make loans or advances
to the Borrower or any other Subsidiary or (E) permit the Borrower to
engage in consolidated cash management consistent with its current
practices.
(g) Stock of Subsidiaries. Sell or otherwise dispose of any shares of
capital stock of any Subsidiary (except in connection with a merger or
consolidation of a Wholly Owned Subsidiary permitted by Section 7.02(a) or
with the dissolution of any Subsidiary) or permit any Subsidiary to issue
any additional shares of its capital stock except PRO RATA to its
stockholders.
(h) Use of Proceeds. Use the proceeds of Loans or Letters of Credit
other than (i) to repay Indebtedness outstanding at the Effective Time,
(ii) for working capital requirements and (iii) for general corporate
purposes, including Capital Expenditures.
(i) Subordinated Debt Transaction. (i) Amend or supplement the
indenture or other instruments defining the rights of securityholders
relating to Indebtedness issued in the Subordinated Debt Transaction
without the written consent of the Administrative Agent (which consent will
not be unreasonably withheld) or (ii) exchange such Indebtedness for other
notes or securities except on terms and conditions substantially the same
as the terms and conditions of the Subordinated Debt Transaction with
respect to amounts, pricing, timing of payments thereunder and
subordination provisions or terms and conditions otherwise satisfactory to
the Administrative Agent.
Section 7.03 Financial Covenants. Until satisfaction in full of all the
obligations of the Borrower under the Credit Documents and termination of the
Commitments of the Lenders hereunder, the Borrower will not permit:
(a) Net Worth. Net Worth at any time to be less than the sum of (i)
$90,000,000, (ii) 50% of the Borrower's consolidated net income for each
fiscal quarter then completed (without deduction for any net losses) and
(iii) 75% of all contributions to the equity of the Borrower made after the
Effective Date.
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(b) Interest Coverage Ratio. The ratio of (i) EBITDA to (ii) Interest
Expense for the twelve-month period ending on the last day of any fiscal
quarter to be less than 3.00.
(c) Senior Debt/EBITDA Ratio. The Senior Debt/EBITDA Ratio to exceed
the ratio specified below:
Date Ratio
---- -----
Through February 26, 2000 3.75
After February 26, 2000 through March 3, 2001 3.25
After March 3, 2001 through March 2, 2002 2.75
After March 2, 2002 2.50;
PROVIDED that the maximum permitted ratio for the period through February
26, 2000 shall be 3.25 following the Security Release Date.
(d) Debt/EBITDA Ratio. The Debt/EBITDA Ratio to exceed the ratio
specified below:
Date Ratio
---- -----
Through February 26, 2000 4.25
After February 26, 2000 through March 3, 2001 3.50
After March 3, 2001 through March 2, 2002 3.00
After March 2, 2002 2.75.
ARTICLE VIII
EVENTS OF DEFAULT
Section 8.01 Events of Default. If one or more of the following events
(each, an "EVENT OF DEFAULT") shall occur:
(a) The Borrower shall fail duly to pay any principal of any Loan or
any L/C Obligations when due, whether at maturity, by notice of intention
to prepay or otherwise; or
(b) The Borrower shall fail duly to pay any interest, fee or any other
amount payable under the Credit Documents when due; or
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(c) The Borrower shall fail duly to observe or perform any term,
covenant, or agreement contained in Section 7.02, Section 7.03 or in the
proviso of the last sentence of Section 6.01(b); or
(d) The Borrower shall fail duly to observe or perform any other term,
covenant or agreement contained in this Agreement, and such failure shall
have continued unremedied for a period of 30 days after any Responsible
Officer becomes aware of such failure; or
(e) Any representation or warranty made or deemed made by the Borrower
in a Credit Document, or any statement or representation made in any
certificate, report or opinion delivered by or on behalf of the Borrower in
connection with a Credit Document, shall prove to have been false or
misleading in any material respect when so made or deemed made; or
(f) The Borrower or any Subsidiary shall fail to pay any Indebtedness
(other than obligations hereunder) in an amount of $5,000,000 or more when
due or default shall occur under one or more indentures, agreements or
other instruments under which any Indebtedness of the Borrower or any
Subsidiary in an aggregate principal amount of $5,000,000 or more may be
issued or created and such default shall continue for a period of time
sufficient to permit the holder or beneficiary of such Indebtedness or a
trustee therefor to cause the acceleration of the maturity of any such
Indebtedness or any mandatory unscheduled prepayment, purchase or funding
thereof; or
(g) An involuntary case or other proceeding shall be commenced against
the Borrower or any Subsidiary (other than a European Subsidiary existing
as of the date hereof) seeking liquidation, reorganization or other relief
with respect to it or its debts under any applicable bankruptcy,
insolvency, reorganization or similar law or seeking the appointment of a
custodian, receiver, liquidator, assignee, trustee, sequestrator or similar
official of it or any substantial part of its property, and such
involuntary case or other proceeding shall remain undismissed and unstayed
for a period of more than 60 days; or an order or decree approving or
ordering any of the foregoing shall be entered and continued unstayed and
in effect; or
(h) The Borrower or any Subsidiary (other than a European Subsidiary)
shall commence a voluntary case or proceeding under any applicable
bankruptcy, insolvency, reorganization or similar law or any other case or
proceeding to be adjudicated a bankrupt or insolvent, or any of them shall
consent to the entry of a decree or order for relief in respect of the
Borrower or any such Subsidiary in an involuntary case or proceeding under
any applicable bankruptcy, insolvency, reorganization or other similar law
or to the commencement of any bankruptcy or insolvency case or proceeding
against any of them, or any of them shall file a petition or answer or
consent seeking reorganization or relief under any applicable law, or any
of them shall consent to the filing of such petition or to the appointment
of or taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Borrower or any such
Subsidiary or any substantial part of their respective property, or any of
them shall make an assignment for the benefit of creditors, or any of them
shall admit in
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writing its inability to pay its debts generally as they become due, or the
Borrower or any such Subsidiary shall take corporate action in furtherance
of any such action; or
(i) One or more judgments against the Borrower or any Subsidiary or
attachments against its property, (a) which in the aggregate exceed
$5,000,000, (other than (A) a judgment against a European Subsidiary or (B)
a judgment obtained in Europe against a U.S. Subsidiary with respect to
which judgment by a United States Federal or a state court has not been
entered and relates to a project that has been undertaken as of the date
hereof) or (b) the operation or result of which, individually or in the
aggregate, could be to interfere materially and adversely with the conduct
of the business of the Borrower and its Subsidiaries, taken as a whole,
remain unpaid, unstayed on appeal, undischarged, unbonded, or undismissed
for a period of more than 30 days; or
(j) The Borrower or any other member of the ERISA Group shall fail to
pay when due an amount or amounts which it shall have become liable to pay
to the PBGC or to a Plan or a Multiemployer Plan under Title IV of ERISA in
excess of $200,000; or notice of intent to terminate a Plan or Plans having
aggregate Unfunded Vested Liabilities in excess of $200,000 (collectively,
a "MATERIAL PLAN") shall be filed under Title IV of ERISA by the Borrower
or any Subsidiary or any other member of the ERISA Group, any plan
administrator or any combination of the foregoing; or the PBGC shall
institute proceedings under Title IV of ERISA terminate or to cause a
trustee to be appointed to administer any Material Plan or a proceeding
shall be instituted by a fiduciary of any Material Plan against the
Borrower or any other member of the ERISA Group to enforce Section 515 or
4219(c)(5) of ERISA and such proceeding shall not have been dismissed
within thirty (30) days thereafter; or a condition shall exist by reason of
which the PBGC would be entitled to obtain a decree adjudicating that any
Material Plan must be terminated; or
(k) The Borrower or any Subsidiary, or any Person acting on behalf of
the Borrower or a Subsidiary, or any governmental authority challenges the
validity of any Credit Document or the Borrower's or a Subsidiary's
obligations thereunder or any Credit Document ceases to be in full force
and effect or is modified other than in accordance with the terms thereof
and hereof; or
(l) The Borrower or any Subsidiary, or any Person acting on behalf of
the Borrower or a Subsidiary, or any Governmental Authority challenges the
validity of any Credit Document or the Borrower's or a Subsidiary's
obligations thereunder or any Credit Document ceases to be in full force
and effect or is modified other than in accordance with the terms thereof
and hereof or any security interest purported to be created in any
collateral by or under any Security Document shall cease to be a valid and
perfected first priority Lien in such collateral, except as expressly
contemplated by such Security Document; or
(m) Any court or governmental or regulatory authority shall have
enacted, issued, promulgated, enforced or entered any statute, rule,
regulation, judgment, decree, injunction or other order (whether temporary,
preliminary or permanent) which is in effect and which prohibits, enjoins
or otherwise restricts, in a manner that, individually or
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in the aggregate, could reasonably be expected to have a Material Adverse
Effect, any of the transactions contemplated under the Credit Documents; or
(n) Any person or group of persons (within the meaning of Section 13
or 14 of the Securities Exchange Act of 1934, as amended) shall have
acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated
by the Securities and Exchange Commission under said Act), or shall have
acquired control, directly or indirectly, of 20% or more of the outstanding
shares of common stock of the Borrower; or, during any period of 24
consecutive calendar months, individuals who were directors of the Borrower
on the first day of such period shall cease to constitute a majority of the
board of directors of the Borrower;
then, and at any time during the continuance of such Event of Default, the
Required Lenders, may, by written notice to the Borrower, take either or both of
the following actions, at the same or different times: (i) terminate forthwith
the Commitments and (ii) declare any Loans and L/C Obligations then outstanding
to be due, whereupon the principal of the Loans and the L/C Obligations so
declared to be due, together with accrued interest thereon and any unpaid
amounts accrued under the Credit Documents, shall become forthwith due, without
presentment, demand, protest or any other notice of any kind (all of which are
hereby expressly waived by the Borrower); PROVIDED that, in the case of any
Event of Default described in Section 8.01(g) or (h) occurring with respect to
the Borrower, the Commitments shall automatically and immediately terminate and
the principal of all Loans and the L/C Obligations then outstanding, together
with accrued interest thereon and any unpaid amounts accrued under the Credit
Documents, shall automatically and immediately become due without presentment,
demand, protest or any other notice of any kind (all of which are hereby
expressly waived by the Borrower).
ARTICLE IX
THE ADMINISTRATIVE AGENT
Section 9.01 The Agency. Each Lender appoints The Bank of New York as its
Administrative Agent hereunder and irrevocably authorizes the Administrative
Agent to take such action on its behalf and to exercise such powers hereunder
and thereunder as are specifically delegated to the Administrative Agent by the
terms hereof and thereof, together with such powers as are reasonably incidental
thereto, including the exercise of powers delegated to the Administrative Agent
and the Lenders thereby, and the Administrative Agent hereby accepts such
appointment subject to the terms hereof. The relationship between the
Administrative Agent and the Lenders shall be that of agent and principal only
and nothing herein shall be construed to constitute the Administrative Agent a
trustee or fiduciary for any Lender nor to impose on the Administrative Agent
duties or obligations other than those expressly provided for herein.
Section 9.02 The Agent's Duties. (a) The Administrative Agent shall
promptly forward to each Lender copies, or notify each Lender as to the
contents, of all notices received from the Borrower pursuant to the terms of
this Agreement and, in the event that the Borrower fails to pay when due the
principal of or interest on any Loan, the Administrative Agent shall promptly
give notice thereof to the Lenders. As to any other matter not expressly
provided for herein, the Administrative Agent shall have no duty to act or
refrain from acting with respect to the Borrower, except upon the instructions
of the Required Lenders. The Administrative Agent shall
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not be bound by any waiver, amendment, supplement, or modification of this
Agreement or the other Credit Documents which changes its duties hereunder and
thereunder, unless it shall have given its prior written consent thereto. The
Administrative Agent shall have no duty to ascertain or inquire as to the
performance or observance of any of the terms, conditions, covenants or
agreements binding on the Borrower pursuant to any Credit Document nor shall the
Administrative Agent be deemed to have knowledge of the occurrence of any
Default or Event of Default (other than a failure of the Borrower to pay when
due the principal or interest on any Loan), unless it shall have received
written notice from the Borrower or a Lender specifying such Default or Event of
Default and stating that such notice is a "Notice of Default".
(b) Anything in the Credit Documents notwithstanding, neither U.S. Bank,
National Association nor Xxxxxx Trust and Savings Bank shall have any obligation
hereunder other than as Lenders.
Section 9.03 Limitation of Liabilities. Each of the Lenders and the
Borrower agree that (i) neither the Administrative Agent nor any of its officers
or employees shall be liable for any action taken or omitted to be taken by any
of them hereunder except for its or their own gross negligence or wilful
misconduct, (ii) neither the Administrative Agent nor any of its officers or
employees shall be liable for any action taken or omitted to be taken by any of
them in good faith in reliance upon the advice of counsel, independent public
accountants or other experts selected by the Administrative Agent, and (iii) the
Administrative Agent shall be entitled to rely upon any notice, consent,
certificate, statement or other document believed by it to be genuine and
correct and to have been signed and/or sent by the proper Persons.
Section 9.04 The Administrative Agent as a Lender. The Administrative Agent
may, without any liability to account, maintain deposits or credit balances for,
invest in, lend money to and generally engage in any kind of banking business
with the Borrower or any Subsidiary or Affiliate of the Borrower as if it were
any other borrower and without any duty to account therefor to the other
Lenders.
Section 9.05 Lender Credit Decision. Neither the Administrative Agent, nor
any of its Affiliates, officers or employees has any responsibility for, gives
any guaranty in respect of, nor makes any representation to the Lenders as to,
(i) the condition, financial or otherwise, of the Borrower or any Subsidiary
thereof or the truth of any representation or warranty given or made in this
Agreement, or in connection herewith or therewith or (ii) the validity,
execution, suffic iency, effectiveness, construction, adequacy, enforceability
or value of this Agreement or any other document or instrument related hereto or
thereto. Except as specifically provided herein, neither the Administrative
Agent nor any of its Affiliates, officers or employees shall have any duty or
responsibility, either initially or on a continuing basis, to provide any Lender
with any credit or other information with respect to the operations, business,
property, condition or credit worthiness of the Borrower or any of its
Subsidiaries, whether such information comes into the Administrative Agent's
possession on or before the date hereof or at any time thereafter. Each Lender
acknowledges that (i) it has, independently and without reliance upon the
Administrative Agent or any other Lender, based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and (ii) all information reviewed by it in
its credit analysis or otherwise in connection herewith (including information
relating to the Administrative Agent) has been provided solely by or on behalf
of the Borrower, and the Administrative Agent has no responsibility for such
information. Each Lender
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also acknowledges that it will independently and without reliance upon the
Administrative Agent or any other Lender, 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 any Credit Document.
Section 9.06 Indemnification. (a) Each Xxxxxx agrees to indemnify the
Administrative Agent, to the extent not reimbursed by the Borrower, ratably in
proportion to its Commitment (as of the time of the incurrence of the liability
being indemnified against), from and against any and all liabilities,
obligations, losses, claims, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against the Administrative Agent in any way
relating to or arising out of any Credit Document, or any action taken or
omitted to be taken by the Administrative Agent hereunder or thereunder;
PROVIDED that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the gross negligence or wilful
misconduct of the Administrative Agent or any of its officers or employees.
Without limiting the foregoing, each Xxxxxx agrees to reimburse the
Administrative Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including fees and disbursements of counsel) incurred by
the Administrative Agent in such capacity in connection with the preparation,
execution or enforcement of, or legal advice in respect of rights or
responsibilities under, any Credit Document or any amendments or supplements
hereto or thereto, to the extent that the Administrative Agent is not reimbursed
for such expenses by the Borrower.
(b) Except for action expressly required of the Administrative Agent
hereunder, the Administrative Agent shall in all cases be fully justified in
failing or refusing to act hereunder unless it shall receive further assurances
to its satisfaction from the Lenders of their indemnification obligations under
this Section 9.06 hereof against any and all liability and expense that may be
incurred by it by reason of taking or continuing to take any such action.
(c) The provisions of this Section 9.06, shall remain operative and in full
force and effect regardless of the expiration of the term of this Agreement, the
consummation of the transactions contemplated hereby, the repayment of any of
the Loans, the reduction or termination of any Commitments, the invalidity or
unenforceability of any term or provision of any Credit Document, or any
investigation made by or on behalf of the Lenders.
Section 9.07 Successor Administrative Agent. The Administrative Agent may
resign at any time by giving written notice thereof to the Lenders and the
Borrower. Upon any such resignation or removal, the Required Lenders with the
consent of the Borrower (which consent shall not be unreasonably withheld) shall
have the right to appoint a successor Administrative Agent. If no successor
Administrative Agent shall have been so appointed by the Required Xxxxxxx and
shall have accepted such appointment within 30 days after the resigning
Administrative Agent's giving of notice of resignation the resigning
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be a commercial bank organized or licensed
under the laws of the United States of America or of any State thereof and
having a combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the resigned Administrative Agent, and the resigned
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Administrative Agent shall be discharged from its duties and obligations under
this Agreement. After any Administrative Agent's resignation as Administrative
Agent, the provisions of this Article IX shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Administrative Agent
under this Agreement.
ARTICLE X
EVIDENCE OF LOANS; TRANSFERS
Section 10.01 Evidence of Loans. (a) Each Lender shall maintain, in
accordance with its customary and usual practice, 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 in respect of Loans. To the extent requested by
any Lender, each Loan made under this Agreement may be evidenced by one or more
Notes, in substantially the form of Exhibit C-1 or Exhibit C-2, as applicable.
(b) The Administrative Agent shall maintain, in accordance with its
customary and usual practice, (i) a copy of each Assignment and Acceptance
delivered to it and (ii) written or electronic records for the recordation of
(A) the amount of each Lender's Commitments, (B) the amount of each Loan,
whether such Loan is a Loan and the interest rate and the Interest Period
applicable thereto, (iii) the amount of any principal or interest due and
payable or to become due and payable from the Borrower to each Lender hereunder,
(D) the amount of any payments received by the Administrative Agent hereunder
from the Borrower and each Xxxxxx's share thereof and (E) with respect to each
Assignment and Acceptance delivered to the Administrative Agent, the name and
address of the Assignee, the amount of the Assignee's Commitment and the
principal amount of each Loan owing to such Assignee. The Administrative Agent's
written records described above shall be available for inspection during
ordinary business hours by the Borrower or any Lender or Assignee from time to
time upon reasonable prior notice to the Administrative Agent.
(c) The entries made in the Administrative Agent's written or electronic
records and the foregoing accounts shall be PRIMA FACIE evidence of the
existence and amounts of the indebtedness of the Borrower therein recorded;
PROVIDED, HOWEVER, that the failure of any Lender or the Administrative Agent to
maintain any such account or such records, as applicable, or any error therein,
shall not in any manner affect the validity or enforceability of any obligation
of the Borrower to repay any Loan actually made by such Lender in accordance
with the terms of this Agreement. The entries in such records relating to
assignments shall be conclusive, in the absence of manifest error, and the
Borrower, the Administrative Agent and the Lenders may treat each Person whose
name is recorded in such records as the owner of the Loans recorded therein for
all purposes of this Agreement.
(d) The Borrower's obligations to repay any Loan assigned to a Federal
Reserve Bank by a Lender shall, to the extent requested by such Lender in order
to effect such assignment, be evidenced by one or more Notes, in substantially
the form of EXHIBIT C-1 or EXHIBIT C-2, as applicable. Such Note shall be in the
principal amount of the Loan or Loans so assigned and stated to mature on the
applicable Commitment Termination Date and bear interest from its date
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until paid in full on the principal amount of the Loan outstanding thereunder
payable at the rates and in the manner provided herein.
Section 10.02 Participations. Any Lender may at any time grant to one or
more financial institutions (each a "PARTICIPANT") participating interests in
its Commitment or any or all of its Loans. In the event of any such grant by a
Lender of a participating interest to a Participant, whether or not upon notice
to the Borrower and the Administrative Agent, such Lender shall remain
responsible for the performance of its obligations hereunder, and, except to the
extent such participating interest has been granted pursuant to Section 4.02(e),
the Borrower and the Administrative Agent shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement pursuant to which any Lender may
grant such a participating interest shall provide that such Lender shall retain
the sole right and responsibility to enforce the obligations of the Borrower
hereunder including the right to approve any amendment, modification or waiver
of any provi sion of this Agreement; PROVIDED that such participation agreement
may provide that such Lender will not agree to any modification, amendment or
waiver of this Agreement described in clauses (i) through (vi), inclusive, of
Section 11.05. An assignment or other transfer which is not permitted by Section
10.03 shall be given effect for purposes of this Agreement only to the extent of
a participating interest granted in accordance with this Section 10.02.
Section 10.03 Assignments. (a) Any Lender may at any time assign to one or
more financial institutions (each an "ASSIGNEE") all, or a proportionate part of
all, of its rights and obligations under this Agreement, and such Assignee shall
assume such rights and obligations, pursuant to an instrument, in substantially
the form of EXHIBIT F (an "ASSIGNMENT AND ACCEPTANCE"), executed by such
Assignee and such transferor Lender, with (and subject to) the signed consent of
the Borrower (which consent shall not be unreasonably withheld, PROVIDED that it
shall not be unreasonable to withhold consent if such assignment would result in
there being more than fifteen (15) Lenders (such number to be increased to
twenty (20) Lenders should the Subordinated Debt Transaction not be consummated
within 90 days of the Effective Date)) and the Administrative Agent (which
consent shall not be unreasonably withheld); PROVIDED that (i) the foregoing
consent requirement shall not be applicable in the case of an assignment or
other transfer by any Lender to an Eligible Affiliate of such Lender, to another
Lender or to a Federal Reserve Bank, (ii) the aforementioned consent of the
Borrower shall not be required if there shall have occurred an Event of Default
that is continuing and (iii) a Lender may only make an assignment or other
transfer of its Loans or Commitment in the minimum amount of $5,000,000 or
integral multiples of $1,000,000 in excess thereof unless such Xxxxxx's Loans or
Commitment is less than $5,000,000, in which case such Lender may only make an
assignment or other transfer of all of its Loans or Commitment. Upon execution
and delivery of an Assignment and Acceptance and payment by such Assignee to
such transferring Lender of an amount equal to the purchase price agreed between
such transferring Lender and such Assignee and payment by the transferring
Lender or the Assignee of an assignment fee of $3,500 to the Administrative
Agent, such Assignee shall be a Lender party to this Agreement and shall have
all the rights and obligations of a Lender with a Commitment as set forth in
such Assignment and Acceptance, and the transferring Lender shall be released
from its obligations hereunder to a corresponding extent, and no further consent
or action by any party shall be required.
(b) No Assignee of any Lender's rights shall be entitled to receive any
greater payment under Section 4.03 or 4.04 than such Lender would have been
entitled to receive with respect to
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the rights transferred, unless such transfer is made with the Borrower's prior
written consent or by reason of the provisions of Section 4.04(c) requiring such
Lender to designate a different Applicable Lending Office under certain
circumstances or at a time when the circumstances giving rise to such payment
did not exist.
Section 10.04. Certain Pledges. Notwithstanding any other provision in this
Agreement, any Lender may at any time create a security interest in, or pledge,
all or any portion of its rights under this Agreement and any Note held by it in
favor of any Federal Reserve Bank in accordance with Federal Reserve Board
Regulation A or U.S. Treasury Regulation 31 C.F.R. ss. 203.14, and such Federal
Reserve Bank may enforce such pledge or security interest in any manner
permitted under applicable law.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PER FORMED ENTIRELY WITHIN SUCH STATE.
SECTION 11.02. WAIVER OF JURY. THE BORROWER, THE ADMINISTRATIVE AGENT AND
THE LENDERS EACH HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT,
CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH
THIS AGREEMENT, THE NOTES OR THE RELATIONSHIPS ESTABLISHED HEREUNDER.
Section 11.03. Jurisdiction and Venue; Service of Process. The Borrower,
the Administrative Agent and the Lenders each hereby irrevocably submits to the
non-exclusive jurisdiction of any state or federal court in the Borough of
Manhattan, The City of New York for the purpose of any suit, action, proceeding
or judgment relating to or arising out of any Credit Document and to the laying
of venue in the Borough of Manhattan, The City of New York. The Borrower, the
Administrative Agent and the Lenders each hereby irrevocably waives, to the
fullest extent permitted by applicable law, any objection to the laying of the
venue of any such suit, action or proceeding brought in the aforesaid courts and
hereby irrevocably waives any claim that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum.
(b) The Borrower agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to the
Borrower at its address set forth in subsection 10.2(c) or at such other address
of which the Agent shall have been notified pursuant thereto. The Borrower
further agrees that nothing herein shall affect the right to effect service of
process in any other manner permitted by law or shall limit the right to sue in
any other jurisdiction; and
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(c) The Borrower waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding referred
to in this subsection any special, exemplary, punitive or consequential damages.
Section 11.04. Set-off. The Borrower hereby authorizes each Lender
(including each Lender in its capacity as a purchaser of a participation
interest pursuant to Section 4.02(e)), upon the occurrence of an Event of
Default and at any time and from time to time during the continuance thereof, to
the fullest extent permitted by law, to set-off and apply any and all deposits
(whether general or special, time or demand, provisional or final and in
whatever currency) at any time held, and other Indebtedness at any time owing,
by such Lender to or for the credit or the account of the Borrower against any
of the obligations of the Borrower, now or hereafter existing under any Credit
Document, held by such Xxxxxx, irrespective of whether such Lender shall have
made any demand under this Agreement and although such obligations may be
unmatured. The rights of each Lender under this Section 11.04 are in addition to
other rights and remedies (including other rights of set-off) which such Lender
may have. Any Lender exercising its rights under this Section 11.04 shall give
notice thereof to the Borrower and the Administrative Agent concurrently with or
prior to the exercise of such rights; PROVIDED that failure to give such notice
shall not affect the validity of such exercise.
Section 11.05. Amendments and Waivers. (a) Any provision of this Agreement
may be amended, modified, supplemented or waived, but only by a written
amendment or supplement, or written waiver, signed by the Borrower and either
the Required Lenders (and, if the rights or duties of the Administrative Agent
are affected thereby, by the Administrative Agent), or the Administrative Agent
with the consent of the Required Lenders; PROVIDED, HOWEVER, that no such
amendment, modification, or waiver shall, unless signed by all the Lenders, or
by the Administrative Agent with the consent of all the Lenders, (i) increase or
decrease (other than a PRO RATA decrease) the Commitment of any Lender or
subject any Lender to any additional obligation, (ii) reduce the principal of or
rate of interest on any Loan or any fees hereunder, (iii) postpone any scheduled
payment of principal of or interest on any Loan or any fees hereunder, (iv)
postpone any reduction or termination of any Commitment or any mandatory
prepayment related thereto, (v) release any collateral that would result in an
aggregate amount of $1,000,000 of collateral released from the date hereof, (vi)
release the Subsidiary Guaranties, (vii) change the definition of "Required
Lenders" or (viii) amend, modify, supplement or waive the provisions of this
Section 11.05.
(b) Except to the extent expressly set forth therein, any waiver shall be
effective only in the specific instance and for the specific purpose for which
such waiver is given.
Section 11.06. Cumulative Rights; No Waiver. Each and every right granted
to the Administrative Agent, the L/C Issuer and the Lenders hereunder or under
any other document delivered in connection herewith, or allowed them by law or
equity, shall be cumulative and not exclusive and may be exercised from time to
time. No failure on the part of the Administrative Agent, the L/C Issuer or any
Lender to exercise, and no delay in exercising, any right will operate as a
waiver thereof, nor will any single or partial exercise by the Administrative
Agent, the L/C Issuer or any Lender of any right preclude any other or future
exercise thereof or the exercise of any other right.
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Section 11.07. Notices. (a) Any communication, demand or notice to be given
hereunder will be duly given when delivered in writing or by telecopy to a party
at its address as indicated below or such other address as such party may
specify in a notice to each other party hereto. A communication, demand or
notice given pursuant to this Section 11.07 shall be addressed:
If to the Borrower, at
Apogee Enterprises, Inc.
0000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Mr. Xxxxxxx Xxxxxxxxxx
Treasurer
If to the Administrative Agent, at
The Bank of New York
Xxx Xxxx Xxxxxx, 18th Floor
New York, New York 10286
Telecopy: (000) 000-0000 or 6366
Attention: Agency Function Administration
with copy to:
Xxxxxxx X. Xxxxxxxx
The Bank of New York
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
If to the L/C Issuer, at
The Bank of New York
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xx. Xxx Xxxxxxx
Letter of Credit Department
with a copy to:
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Xxxxxxx X. Xxxxxxxx
The Bank of New York
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
If to any Lender (including the Swing Line Lender), at its address
indicated on SCHEDULE I hereto, or at such other address as may be designated by
such Lender in an Administrative Questionnaire or other appropriate writing,
delivered to the Administrative Agent and the Borrower.
This Section 11.07 shall not apply to notices referred to in Article II of
this Agreement, except to the extent set forth therein.
(b) Unless otherwise provided to the contrary herein, any notice which is
required to be given in writing pursuant to the terms of this Agreement may be
given by telecopy.
Section 11.08 Separate Debts. The amounts payable by the Borrower at any
time under the Credit Documents to each Lender shall be a separate and
independent debt and each Lender shall be entitled to protect and enforce its
rights in accordance with the Credit Documents, and it shall not be necessary
for any other Lender or the Administrative Agent to consent to, or be joined as
an additional party in, any proceedings for such purposes.
Section 11.09 Certain Acknowledgments. The Borrower hereby confirms and
acknowledges that (a) neither the Administrative Agent , the L/C Issuer nor any
Lender has any fiduciary or similar relationship to the Borrower and that the
relationship established by the Credit Documents between the Administrative
Agent, the L/C Issuer and the Lenders, on the one hand, and the Borrower, on the
other hand, is solely that of creditors and debtor and (b) that no joint venture
exists among the Lender or among the Borrower and the Lenders.
Section 11.10 Separability. In case any one or more of the provisions
contained in any Credit Document shall be invalid, illegal or unenforceable in
any respect under any law, the validity, legality and enforceability of the
remaining provisions contained herein or in any other Credit Document shall not
in any way be affected or impaired thereby.
Section 11.11 Parties in Interest. This Agreement shall be binding upon and
inure to the benefit of the Borrower and the Lenders and their respective
successors and assigns, except that the Borrower may not assign any of its
rights hereunder without the prior written consent of all of the Lenders, and
any purported assignment by the Borrower without such consent shall be void.
Section 11.12 Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original,
but all the counterparts shall together constitute one and the same instrument.
[THE NEXT PAGE IS THE SIGNATURE PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
APOGEE ENTERPRISES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title:Treasurer
THE BANK OF NEW YORK, as
Administrative Agent, L/C Issuer
and Swing Line Lender
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title:Vice President
THE BANK OF NEW YORK, as a Lender
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title:Vice President
U.S. BANK NATIONAL ASSOCIATION, as
a Syndication Agent and as a Lender
By: /s/ Xxxxxxx X. Xxxx
-----------------------------
Name:Xxxxxxx X. Xxxx
Title:Vice President
XXXXXX TRUST AND SAVINGS BANK, as
a Documentation Agent and as a
Lender
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxxx
Title:Vice President
================================================================================
SECURITY AGREEMENT
dated as of
May 21, 1998
among
APOGEE ENTERPRISES, INC.
THE DEBTORS PARTIES HERETO
and
THE BANK OF NEW YORK,
as Administrative Agent
and Collateral Agent
================================================================================
TABLE OF CONTENTS
-----------------
Page
----
Section 1. Terms and Definitions..............................................2
Section 2. Grant of Security Interest in the Collateral; Obligations Secured..2
(i) Receivables.....................................................2
(ii) General Intangibles.............................................2
(iii) Inventory.......................................................3
(iv) Equipment.......................................................3
(v) Deposits and Property in Possession.............................3
(vi) Records.........................................................3
(vii) Accessions and Additions........................................3
(viii) Proceeds and Products...........................................3
Section 3. Covenants, Agreements, Representations and Warranties..............5
Section 4. Special Provisions Re: Receivables.................................9
Section 5. Collection of Receivables.........................................10
Section 6. Special Provisions Re: Inventory and Equipment...................11
Section 7. Power of Attorney.................................................12
Section 8. Defaults and Remedies.............................................12
Section 9. Application of Proceeds...........................................14
Section 10. Continuing Agreement..............................................14
Section 11. The Agent.........................................................14
Section 12. Representations and Warranties....................................15
Section 13. Miscellaneous.....................................................16
SCHEDULES
Schedule A -- Locations
Schedule B -- Trade names
Schedule C -- Assumption and Supplemental Security Agreement
Schedule D -- Permitted Liens
SECURITY AGREEMENT (the "AGREEMENT"), dated as of May 21, 1998, among
Apogee Enterprises, Inc., a Minnesota corporation (the "BORROWER"), and the
other parties executing this Agreement under the heading "Debtors" (the Borrower
and such other parties, along with any parties who execute and deliver to the
Agent an agreement attached hereto as SCHEDULE C, being hereinafter referred to
collectively, as the "DEBTORS" and individually, as a "DEBTOR"), each with its
mailing address as set forth on its signature page hereto, and The Bank of New
York ("BNY"), with its mailing address at Xxx Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, acting as administrative and collateral agent hereunder for the Secured
Creditors hereinafter identified (BNY acting as such agent and any successor or
successors to BNY acting in such capacity being hereinafter referred to as the
"AGENT");
PRELIMINARY STATEMENTS
A. The Borrower and BNY, individually and as administrative agent, have
entered into a Credit Agreement dated as of May 21, 1998 (such Credit Agreement
as the same may be amended, modified or restated from time to time being
hereinafter referred to as the "CREDIT AGREEMENT"), pursuant to which BNY and
such other lenders and letter of credit issuers from time to time parties
thereto (BNY acting as such agent and any successor or successors to BNY acting
in such capacity being hereinafter referred to as the "Administrative Agent";
BNY, as a lender, the letter of credit issuer and the swing line lender, and
such other lenders party to the Credit Agreement being hereinafter referred to
collectively, as the "LENDERS" and individually, as a "LENDER") have agreed,
subject to certain terms and conditions, to extend credit to the Borrower (the
Administrative Agent, the Lenders and the Other Lenders and Creditors being
hereinafter referred to, collectively, as the "SECURED CREDITORS" and
individually, as a "SECURED CREDITOR"). As used herein, (i) "OTHER LENDERS" and
"CREDITORS" shall mean those Other Lenders and Creditors party to, and defined
in, the Intercreditor Agreement, dated the date hereof, and (ii) "OTHER
FINANCING DOCUMENTS" shall mean the agreements and instruments referred to in
the Intercreditor Agreement under which the Other Lenders and Creditors have
extended credit to the Borrower as of the date hereof.
B. As a condition to extending (or continuing the extension of) credit
to the Borrower under the Credit Agreement, the Secured Creditors have required,
among other things, that each Debtor grant to the Agent a lien on and security
interest in the personal property of such Debtor described herein subject to the
terms and conditions hereof.
C. The Borrower owns, directly or indirectly, equity interests in each
other Debtor and the Borrower provides each other Debtor with financial,
management, administrative, and technical support which enables such Debtor to
conduct its business in an orderly and efficient manner in the ordinary course.
D. Each Debtor will benefit, directly or indirectly, from credit
extended by the Secured Creditors to the Borrower.
NOW, THEREFORE, for and in consideration of the execution and delivery
by the Secured Creditors of the Credit Agreement, and other good and valuable
consideration, receipt whereof is hereby acknowledged, the parties hereto hereby
agree as follows:
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Section 1. Terms and Definitions. All capitalized terms used herein
without definition shall have the same meanings herein as such terms have in the
Credit Agreement. All terms which are used herein which are defined in the
Uniform Commercial Code of the State of New York ("UCC") shall have the same
meanings herein as such terms are defined in the UCC, unless this Agreement
shall otherwise specifically provide. The headings herein shall not be given
effect in interpreting or construing the provisions of this Agreement. The terms
"DEBTOR" and "DEBTORS" as used herein shall mean and include the Debtors
collectively, and also each individually, with all grants, representations,
warranties and covenants of and by the Debtors, or any of them, herein contained
to constitute joint and several grants, representations, warranties and
covenants of and by the Debtors; provided, however, that unless the context in
which the same is used shall otherwise require, any grant, representation,
warranty or covenant contained herein related to the Collateral shall be made by
each Debtor only with respect to the Collateral owned by it or represented by
such Debtor as owned by it.
Section 2. Grant of Security Interest in the Collateral; Obligations
Secured. (a) Each Debtor hereby grants to the Agent, for the ratable benefit of
the Secured Creditors, a lien on and security interest in, and right of set-off
against, and acknowledges and agrees that the Agent has and shall continue to
have, for the ratable benefit of the Secured Creditors, a continuing lien on and
security interest in, and right of set-off against, any and all right, title and
interest of each Debtor, whether now owned or existing or hereafter created,
acquired or arising, in and to the following:
(i) Receivables. All Receivables, whether now owned or
existing or hereafter created, acquired or arising, and however
evidenced or acquired, or in which such Debtor now has or hereafter
acquires any rights (the term "RECEIVABLES" means and includes all
accounts, accounts receivable, contract rights, instruments, notes,
drafts, acceptances, documents, chattel paper, any right of such Debtor
to payment for goods sold or leased or for services rendered, whether
or not earned by performance, and all other forms of obligations owing
to such Debtor, and all of such Debtor's rights to any merchandise or
other goods (including without limitation any returned or repossessed
goods and the right of stoppage in transit) which is represented by,
arises from or is related to any of the foregoing);
(ii) General Intangibles. All General Intangibles, whether now
owned or existing or hereafter created, acquired or arising, or in
which such Debtor now has or hereafter acquires any rights (the term
"GENERAL INTANGIBLES" means and includes all general intangibles, all
patents, patent applications, patent licenses, trademarks, trademark
registrations, trademark licenses, trade styles, trade names,
copyrights, copyright registrations, copyright licenses and other
licenses and similar intangibles, all customer, client and supplier
lists (in whatever form maintained), all rights in leases and other
agreements relating to real or personal property, all causes of action
and tax refunds of every kind and nature, all privileges, franchises,
immunities, licenses, permits and similar intangibles, and all other
personal property (including things in action) not otherwise covered by
this Agreement);
(iii) Inventory. All Inventory, whether now owned or existing
or hereafter created, acquired or arising, or in which such Debtor now
has or hereafter acquires any rights and all documents of title at any
time evidencing or representing any part thereof (the term
-2-
"INVENTORY" means and includes all inventory and other goods which are
held for sale or lease or are to be furnished under contracts of
service or consumed in such Debtor's business, all goods which are raw
materials, work-in-process, finished goods, materials or supplies of
every kind and nature, in each case used or usable in connection with
the acquisition, manufacture, processing, supply, servicing, storing,
packing, shipping, advertising, selling, leasing or furnishing of such
goods, and any constituents or ingredients thereof, and all goods which
are returned or repossessed goods);
(iv) Equipment. All Equipment, whether now owned or existing
or hereafter created, acquired or arising, or in which such Debtor now
has or hereafter acquires any rights (the term "EQUIPMENT" means and
includes all equipment and other machinery, tools, fixtures, trade
fixtures, furniture, furnishings, office equipment, vehicles (including
vehicles subject to a certificate of title law) and all other goods now
or hereafter used or usable in connection with such Debtor's business,
together with all parts, accessories and attachments relating to any of
the foregoing);
(v) Deposits and Property in Possession. All deposit accounts
(whether general, specific or otherwise, matured or unmatured and in
whatever currency denominated) of such Debtor maintained with any of
the Secured Creditors and all sums now or hereafter on deposit therein
or payable thereon, and any and all other property and interests in
property which now is or may from time to time hereafter come into the
possession, custody or control of any of the Secured Creditors, or any
agent of any of them, in any way and for any purpose (whether for
safekeeping, custody, pledge, transmission, collection or otherwise);
(vi) Records. All supporting evidence and documents relating
to any of the above-described property, including, without limitation,
computer programs, disks, tapes and related electronic data processing
media, and all rights of such Debtor to retrieve the same from third
parties, written applications, credit information, account cards,
payment records, correspondence, delivery and installation
certificates, invoice copies, delivery receipts, notes and other
evidences of indebtedness, insurance certificates and the like,
together with all books of account, ledgers and cabinets in which the
same are reflected or maintained, all whether now existing or hereafter
arising;
(vii) Accessions and Additions. All accessions and additions
to and substitutions and replacements of any and all of the foregoing,
whether now existing or hereafter arising; and
(viii) Proceeds and Products. All proceeds and products of the
foregoing and all insurance of the foregoing and proceeds thereof,
whether now existing or hereafter arising;
all of the foregoing being herein sometimes referred to as the "COLLATERAL";
PROVIDED, HOWEVER, that the term "Collateral" shall not include any property
related to projects financed by the issuance of so-called industrial revenue
bonds and with respect to which the granting of a lien or security interest
would either give rise to a breach under the related documents as in effect on
the date hereof or would cause such bonds to lose their tax-exempt status.
-3-
(b) This Agreement is made and given to secure, and shall secure, the
prompt payment and performance when due of (i) (A) any and all indebtedness,
obligations and liabilities of the Borrower to the Secured Creditors, and to any
of them individually, under or in connection with or evidenced by the Credit
Agreement, the Notes of the Borrower heretofore or hereafter issued under the
Credit Agreement, the obligations of the Borrower to reimburse the Secured
Creditors for the amount of all drawings on all Letters of Credit issued
pursuant to the Credit Agreement and under or in connection with or evidenced by
the Other Financing Documents and (B) any and all liability of the Debtors, and
of any of them individually, arising under any guaranty issued by it relating to
the foregoing or any part thereof, in each case whether now existing or
hereafter arising (and whether arising before or after the filing of a petition
in bankruptcy and including all interest accrued after the petition date), due
or to become due, direct or indirect, absolute or contingent, and howsoever
evidenced, held or acquired and (ii) any and all reasonable expenses and
charges, legal or otherwise, suffered or incurred by the Agent or the Secured
Creditors, and any of them individually, in collecting or enforcing any of such
indebtedness, obligations and liabilities or in realizing on or protecting or
preserving any security therefor, including, without limitation, the lien and
security interest granted hereby (all of the indebtedness, obligations,
liabilities, expenses and charges described above being hereinafter referred to
as the "OBLIGATIONS").
(c) This Agreement and the security interests granted or created
hereunder shall terminate if:
(i) either (x) the Lenders release their security interest in
the Collateral, (y) the Commitment Termination Date shall have occurred
and all payment obligations of the Borrower due and owing on such date
under the Credit Documents shall have been paid in full or (z) the
Security Release Date shall have occurred;
(ii) no Default or Event of Default under the Credit Agreement
shall have occurred and be continuing; and
(iii) no Liens exist with respect to any of the assets or
properties of the Borrower and its Subsidiaries except as permitted by
Section 7.02(b) of the Credit Agreement.
Notwithstanding the foregoing provisions of this subsection (c), this Agreement
and the security interests granted or created hereunder shall not terminate, in
the event that, and solely to the extent that and for so long as, the Borrower
shall have consented in writing to the continued effectiveness of this Agreement
and such security interests. If this Agreement shall terminate, the Collateral
Agent shall take all reasonable action necessary to release any Collateral from
such security interests (including but not limited to the execution and delivery
of termination statements and releases and, where appropriate, the return of
physical possession and control of such Collateral). All indemnities by the
Borrower contained in this Agreement shall survive its termination and remain in
full force and effect regardless of the termination of such security interests
or this Agreement.
Section 3. Covenants, Agreements, Representations and Warranties. The
Debtors hereby covenant and agree with, and represent and warrant to, the
Secured Creditors that:
(a) Each Debtor is duly organized, validly existing and in
good standing under the laws of the state of its incorporation or
organization, is the sole and lawful owner of the
-4-
Collateral for which a security interest is granted by it hereunder and
has the power and authority to enter into this Agreement and to perform
each and all of the matters and things herein provided for. Each
Debtor's Federal tax identification number is set forth under its name
under Column 1 on SCHEDULE A.
(b) Each Debtor's respective chief executive office is at the
location listed under Column 2 on SCHEDULE A attached hereto opposite
such Debtor's name; and such Debtor has no other executive offices or
places of business other than those listed under Column 3 on SCHEDULE A
attached hereto opposite such Debtor's name. The Collateral owned or
leased by each Debtor is and shall remain in such Debtor's possession
or control at the locations listed under Columns 2 and 3 on SCHEDULE A
attached hereto opposite such Debtor's name (collectively for each
Debtor, the "PERMITTED COLLATERAL LOCATIONS"), except as to any
Collateral sold or otherwise disposed of in accordance with this
Agreement and the Credit Agreement. If for any reason any Collateral is
at any time kept or located at a location other than a Permitted
Collateral Location, the Agent shall nevertheless have and retain a
lien on and security interest therein. No Debtor shall move its chief
executive office or maintain a place of business at a location other
than those specified under Columns 2 or 3 on SCHEDULE A or permit any
Collateral to be located at a location other than a Permitted
Collateral Location, in each case without first providing the Agent at
least 30 days' prior written notice of the Debtor's intent to do so;
PROVIDED that each Debtor shall at all times maintain its chief
executive office and places of business in the United States of America
and Permitted Collateral Locations in the United States of America and,
with respect to any new chief executive office or place of business or
location of Collateral, such Debtor shall have taken all action
reasonably requested by the Agent to maintain the lien and security
interest of Agent in the Collateral at all times fully perfected and in
full force and effect.
(c) The Collateral and every part thereof is and shall be free
and clear of all security interests, liens (including, without
limitation, mechanics', laborers' and statutory liens), attachments,
levies and encumbrances of every kind, nature and description and
whether voluntary or involuntary, except for (i) the lien and security
interest of the Agent therein, and other Liens permitted by the Credit
Agreement, (ii) liens in existence as of the date hereof related to
projects financed by industrial revenue bonds or granted in connection
with retention, performance or similar bonds to secure performance of
such Debtor's indemnity obligation with respect thereto and (iii) liens
set forth on SCHEDULE D hereto (herein, the "PERMITTED LIENS"). Each
Debtor shall warrant and defend the Collateral against any claims and
demands of all persons at any time claiming the same or any interest in
the Collateral adverse to any of the Secured Creditors other than
holders of Permitted Liens.
(d) Each Debtor will promptly pay when due all material taxes,
assessments and governmental charges and levies upon or against it or
its Collateral, in each case before the same become delinquent and
before penalties accrue thereon, unless and to the extent that the same
are being contested in good faith by appropriate proceedings which
prevent attachment of any Lien resulting therefrom to, foreclosure on
or other realization upon any Collateral and preclude interference with
the operation of its business in the ordinary course and such Debtor
shall have established adequate reserves therefor.
-5-
(e) Each Debtor agrees it will not waste or destroy the
Collateral or any part thereof and will not be negligent in the care or
use of any Collateral unless such portion of collateral is of nominal
value. Each Debtor agrees it will not use, manufacture, sell or
distribute any Collateral in violation of any material statute,
ordinance or other governmental requirement. Each Debtor will perform
in all material respects its obligations under any contract or other
agreement constituting part of the Collateral, it being understood and
agreed that the Secured Creditors have no responsibility to perform
such obligations.
(f) Subject to Sections 4(b), 5(a), 6(b), 6(c), and 8(c)
hereof and the terms of the Credit Agreement, each Debtor agrees it
will not, without the Agent's prior written consent, sell, assign,
mortgage, lease or otherwise dispose of the Collateral or any interest
therein.
(g) Each Debtor will insure its Collateral which is insurable
against such risks and hazards as other companies similarly situated
insure against, and including in any event loss or damage by fire,
theft, burglary, pilferage, and loss in transit, in amounts and under
policies containing loss payable clauses to the Agent as its interest
may appear (and, if the Agent requests, naming the Secured Creditors as
additional insureds therein) by insurers reasonably acceptable to the
Agent. All premiums on such insurance shall be paid by the Debtors and
the policies of such insurance (or certificates therefor) delivered to
the Agent. All insurance required hereby shall provide that no
cancellation thereof shall be effective until at least 30 days after
receipt by the relevant Debtor and the Agent of written notice thereof,
and shall be reasonably satisfactory to the Agent in all other
respects. In case of any material loss, damage to or destruction of the
Collateral or any part thereof, the relevant Debtor shall promptly give
written notice thereof to the Secured Creditors generally describing
the nature and extent of such damage or destruction. In case of any
loss, damage to or destruction of the Collateral or any part thereof,
the relevant Debtor, whether or not the insurance proceeds, if any,
received on account of such damage or destruction shall be sufficient
for that purpose, at such Debtor's cost and expense, will promptly
repair or replace the Collateral so lost, damaged or destroyed, except
to the extent such Collateral is not necessary to the conduct of such
Debtor's business in the ordinary course. In the event any Debtor shall
receive any proceeds of such insurance, such Debtor will immediately
pay over such proceeds to the Agent; PROVIDED that in the absence of
any Event of Default such Debtors shall be entitled to retain such
insurance proceeds to the extent such proceeds are used for such repair
or replacement or to retain for any purpose proceeds of any insurance
recovery that does not exceed $25,000 in the aggregate. Each Debtor
hereby authorizes the Agent, at the Agent's option, to adjust,
compromise and settle any losses under any insurance afforded at any
time after the occurrence and during the continuation of any Event of
Default, and such Debtor does hereby irrevocably constitute the Agent,
its officers, agents and attorneys, as such Debtor's attorneys-in-fact,
with full power and authority after the occurrence and during the
continuation of any Event of Default to effect such adjustment,
compromise and/or settlement and to endorse any drafts drawn by an
insurer of the Collateral or any part thereof and to do everything
necessary to carry out such purposes and to receive and receipt for any
unearned premiums due under policies of such insurance. Unless the
Agent elects to adjust, compromise or settle losses as aforesaid, any
adjustment, compromise and/or settlement of any losses under any
insurance shall be made by the relevant Debtor subject to final
approval of the Agent (regardless of whether or not an Event of Default
shall
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have occurred) in the case of losses exceeding $250,000. Net insurance
proceeds received by the Agent under the provisions hereof or under any
policy or policies of insurance covering the Collateral or any part
thereof pursuant to the terms hereof shall be applied to the reduction
of the Obligations (whether or not then due); PROVIDED, HOWEVER, that
the Agent agrees to release such insurance proceeds to the relevant
Debtor for replacement or restoration of the portion of the Collateral
lost, damaged or destroyed required by this Agreement to be so replaced
or restored if, but only if, (i) at the time of release no Event of
Default exists hereunder, (ii) written application for such release is
received from such Debtor within 30 days of receipt of, or in the event
received by the Agent, notice of Agent's receipt of, such proceeds and
(iii) the Agent has received evidence reasonably satisfactory to it
that the Collateral lost, damaged or destroyed has been or will be
replaced or restored, or that proceeds do not exceed $25,000 in the
aggregate. All insurance proceeds shall be subject to the lien and
security interest of the Agent hereunder.
(h) Each Debtor will allow the Secured Creditors, and their
respective representatives free access to and right of inspection of
the Collateral.
(i) If any Collateral is in the possession or control of any
agents or processors of a Debtor and the Agent so requests, such Debtor
agrees to notify such agents or processors in writing of the Agent's
security interest therein and instruct them to hold all such Collateral
for the Agent's account and subject to the Agent's instructions upon
Xxxxxx's receipt of notification of the occurrence and continuation of
an Event of Default. Each Debtor will, upon the request of the Agent
upon Xxxxxx's receipt of notification of the occurrence and
continuation of an Event of Default, authorize and instruct all bailees
and any other parties, if any, at any time processing, labeling,
packaging, holding, storing, shipping or transferring all or any part
of the Collateral to permit the Secured Creditors and their respective
representatives to examine and inspect any of the Collateral then in
such party's possession and to verify from such party's own books and
records any information concerning the Collateral or any part thereof
which the Secured Creditors or their respective representatives may
seek to verify. As to any premises not owned by a Debtor wherein any of
the Collateral is located, if any, such Debtor shall, upon the Agent's
request, cause each party having any right, title or interest in, or
lien on, any of such premises to enter into an agreement (any such
agreement to contain a legal description of such premises) whereby such
party disclaims any right, title and interest in, and lien on, the
Collateral, allowing the removal of such Collateral by the Agent and
otherwise in form and substance reasonably acceptable to the Agent.
(j) Upon the Agent's request, each Debtor agrees from time to
time to deliver to the Agent such evidence of the existence, identity
and location of its Collateral and of its availability as collateral
security pursuant hereto (including, without limitation, schedules
describing all Receivables created or acquired by such Debtor, copies
of customer invoices or the equivalent and original shipping or
delivery receipts for all merchandise and other goods sold or leased or
services rendered by it, together with such Debtor's warranty of the
genuineness thereof, and reports stating the book value of its
Inventory and Equipment by major category and location), in each case
as the Agent may reasonably request. The Agent shall have the right to
verify all or any part of the Collateral in any manner, and through any
medium, which the Agent considers appropriate and reasonable, and each
Debtor agrees to
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furnish all assistance and information, and perform any acts, which the
Agent may require in connection therewith.
(k) Each Debtor will comply in all material respects with the
(i) terms and conditions of any and all leases, easements, right-of-way
agreements and other agreements binding upon such Debtor or affecting
the Collateral, in each case which cover the premises wherein the
Collateral is located, and (ii) any orders, ordinances, laws or
statutes of any city, state or other governmental entity, department or
agency having jurisdiction with respect to such premises or the conduct
of business thereon.
(l) For at least the past five years, no Debtor has invoiced
Receivables or otherwise transacted business, and does not invoice
Receivables or otherwise transact business, under any trade names other
than its name set forth on its signature page to this Agreement or as
otherwise set forth on SCHEDULE B hereto. Each Debtor agrees it will
not change its name or transact business under any other trade name, in
each case without first giving the Agent at least 30 days' prior
written notice of its intent to do so.
(m) Each Debtor agrees to execute and deliver to the Agent
such further agreements, assignments, instruments and documents, and to
do all such other things, as the Agent may reasonably deem necessary or
appropriate to assure the Agent its lien and security interest
hereunder, including without limitation, executing such financing
statement or other instruments and documents as the Agent may from time
to time reasonably require to comply with the UCC. Each Debtor hereby
agrees that a carbon, photographic or other reproduction of this
Agreement or any such financing statement is sufficient for filing as a
financing statement by the Agent without prior notice thereof to such
Debtor wherever the Agent deems necessary or desirable to perfect or
protect the security interest granted hereby. In the event for any
reason the law of any jurisdiction other than New York becomes or is
applicable to the Collateral or any part thereof, or to any of the
Obligations, each Debtor agrees to execute and deliver all such
instruments and documents and to do all such other things as the Agent
deems necessary or appropriate to preserve, protect and enforce the
security interest of the Agent under the law of such other
jurisdiction.
(n) On failure of a Debtor to perform any of the covenants and
agreements herein contained, the Agent may, at its option, perform the
same and in so doing may expend such sums as the Agent deems advisable
in the performance thereof, including, without limitation, the payment
of any insurance premiums, the payment of any taxes, liens and
encumbrances, expenditures made in defending against any adverse
claims, and all other expenditures which the Agent may be compelled to
make by operation of law or which the Agent may make by agreement or
otherwise for the protection of the security hereof. To the extent
practicable, the Agent shall notify the Debtor in advance of such
performance by the Agent. All such sums and amounts so expended shall
be repayable by such Debtor immediately upon demand, shall constitute
additional Obligations secured hereunder, and shall bear interest from
the date said amounts are expended at the rate per annum (computed on
the basis of a year of 360 days for the actual number of days elapsed)
determined by adding 2% to the Alternate Base Rate from time to time in
effect plus the Applicable Margin, with any change in such rate per
annum as so determined by reason of a change in such Alternate Base
Rate to be effective on the date of such change in said Alternate Base
Rate
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(such rate per annum as so determined being hereinafter referred to as
the "DEFAULT RATE"). No such performance of any covenant or agreement
by the Agent on behalf of a Debtor, and no such advancement or
expenditure therefor, shall relieve any Debtor of any default under the
terms of this Agreement or in any way obligate any Secured Creditor to
take any further or future action with respect thereto. The Agent in
making any payment hereby authorized may do so according to any bill,
statement or estimate procured from the appropriate public office or
holder of the claim to be discharged without inquiry into the accuracy
of such bill, statement or estimate or into the validity of any tax
assessment, sale, forfeiture, tax lien or title or claim. The Agent in
performing any act hereunder shall be the sole judge of whether the
relevant Debtor is required to perform the same under the terms of this
Agreement. The Agent is hereby authorized to charge any depository or
other account of any Debtor maintained with the Agent for the amount of
such sums and amounts so expended.
Section 4. Special Provisions Re: Receivables. (a) As of the time any
Receivable becomes subject to the security interest provided for hereby and at
all times thereafter, each Debtor shall be deemed to have warranted as to each
and all of its Receivables that all warranties of such Debtor set forth in this
Agreement are true and correct with respect to each such Receivable; that each
of its Receivable and all papers and documents relating thereto are genuine and
in all respects what they purport to be; that each of its Receivable is valid
and existing and, if such Receivable is an account, arises out of a bona fide
sale of goods sold and delivered by such Debtor to, or in the process of being
delivered to, or out of and for services theretofore actually rendered by such
Debtor to, the account debtor named therein; and that no such Receivable is
evidenced by any instrument or chattel paper unless such instrument or chattel
paper has theretofore been endorsed by such Debtor and delivered to the Agent.
If any Receivable arises out of a contract with the United States of America or
any of its departments, agencies or instrumentalities, after the occurrence and
during the continuance of any Event of Default, the relevant Debtor agrees to
notify the Agent and, at the request of the Agent or the Required Creditors,
execute whatever instruments and documents are required by the Agent in order
that such Receivable shall be assigned to the Agent and that proper notice of
such assignment shall be given under the federal Assignment of Claims Act (or
any successor statute) or any similar statute relating to the assignment of such
Receivables.
(b) Unless and until an Event of Default hereunder occurs and is
continuing, any merchandise or other goods which are returned by a customer or
account debtor or otherwise recovered may be resold by the relevant Debtor in
the ordinary course of its business as presently conducted in accordance with
Section 6(b) hereof; upon the occurrence and during the continuation of any
Event of Default hereunder, such merchandise and other goods shall be set aside
at the request of the Agent and held by such Debtor as trustee for the Secured
Creditors and shall remain part of the Collateral. Unless and until an Event of
Default hereunder occurs and is continuing, the relevant Debtor may settle and
adjust disputes and claims with its customers and account debtors, handle
returns and recoveries and grant discounts, credits and allowances in the
ordinary course of its business as presently conducted for amounts and on terms
which such Debtor in good faith considers advisable. Upon the occurrence and
during the continuation of any Event of Default hereunder, unless the Agent
requests otherwise, each Debtor shall notify the Agent promptly of all returns
and recoveries and, on the Agent's request, deliver any such merchandise or
other goods to the Agent. Upon the occurrence and during the continuation of any
Event of Default hereunder, unless the Agent requests otherwise, each Debtor
shall also notify the Agent promptly of all disputes and claims and
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settle or adjust them at no expense to the Secured Creditors hereunder, but no
discount, credit or allowance other than on normal trade terms in the ordinary
course of business as presently conducted shall be granted to any customer or
account debtor and no returns of merchandise or other goods shall be accepted by
any Debtor without the Agent's consent. The Agent may, at all times upon the
occurrence and during the continuation of any Event of Default hereunder, settle
or adjust disputes and claims directly with customers or account debtors for
amounts and upon terms which the Agent considers advisable.
Section 5. Collection of Receivables. (a) Except as otherwise provided
in this Agreement, each Debtor shall make collection of all of its Receivables
and may use the same to carry on its business in accordance with sound business
practice and otherwise subject to the terms hereof.
(b) Upon the occurrence and during the continuation of any Event of
Default hereunder, whether or not the Agent has exercised any or all of its
rights under other provisions of this Section 5, in the event the Agent requests
any Debtor to do so:
(i) all instruments and chattel paper at any time constituting
part of the Receivables (including any postdated checks) shall, upon
receipt by such Debtor, be immediately endorsed to and deposited with
Agent; and/or
(ii) such Debtor shall instruct all of its customers and
account debtors to remit all payments in respect of its Receivables to
a lockbox or lockboxes under the sole custody and control of Agent and
which are maintained at post offices selected by the Agent.
(c) Upon the occurrence and during the continuation of any Event of
Default hereunder, whether or not the Agent has exercised any or all of its
rights under other provisions of this Section 5, the Agent or its designee may
notify the relevant Debtor's customers and account debtors at any time that
Receivables have been assigned to the Agent or of the Agent's security interest
therein, and either in its own name, or such Debtor's name, or both, demand,
collect (including, without limitation, through a lockbox analogous to that
described in Section 5(b)(ii) hereof), receive, receipt for, sue for, compound
and give acquittance for any or all amounts due or to become due on Receivables,
and in the Agent's discretion file any claim or take any other action or
proceeding which the Agent may deem reasonably necessary or appropriate to
protect and realize upon the security interest of the Agent in the Receivables.
(d) Any proceeds of Receivables or other Collateral transmitted to or
otherwise received by the Agent pursuant to any of the provisions of Sections
5(b) or 5(c) hereof may be handled and administered by the Agent in and through
a remittance account or accounts maintained at the Agent or by the Agent at a
commercial bank or banks selected by the Agent (collectively the "DEPOSITARY
BANKS" and individually a "DEPOSITARY BANK"), and each Debtor acknowledges that
the maintenance of such remittance accounts by the Agent is solely for the
Agent's convenience and that the Debtors do not have any right, title or
interest in such remittance accounts or any amounts at any time standing to the
credit thereof. The Agent may apply all or any part of any proceeds of
Receivables or other Collateral received by it from any source to the payment of
the Obligations (whether or not then due and payable), such applications to be
made in such amounts, in such manner and order and at such intervals as the
Agent may from time to time in its discretion determine. The
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Agent need not apply or give credit for any item included in proceeds of
Receivables or other Collateral until the Depositary Bank has received final
payment therefor at its office in cash or final solvent credits current at the
site of deposit acceptable to the Agent and the Depositary Bank as such.
However, if the Agent does permit credit to be given for any item prior to a
Depositary Bank receiving final payment therefor and such Depositary Bank fails
to receive such final payment or an item is charged back to the Agent or any
Depositary Bank for any reason, the Agent may at its election in either instance
charge the amount of such item back against any such remittance accounts or any
depository account of any Debtor maintained with the Agent, together with
interest thereon at the Default Rate. Concurrently with each transmission of any
proceeds of Receivables or other Collateral to any remittance account, upon the
Agent's request, the relevant Debtor shall furnish the Agent with a report in
such form as Agent shall reasonably require identifying the particular
Receivable or such other Collateral from which the same arises or relates. Each
Debtor hereby indemnifies the Agent and the Secured Creditors from and against
all liabilities, damages, losses, actions, claims, judgments, and all reasonable
costs, expenses, charges and attorneys' fees suffered or incurred by the Agent
or any Secured Creditor because of the maintenance of the foregoing
arrangements; provided, however, that no Debtor shall be required to indemnify
the Agent or any Secured Creditor for any of the foregoing to the extent they
arise solely from the gross negligence or willful misconduct of the person
seeking to be indemnified. The Secured Creditors shall have no liability or
responsibility to any Debtor for the Agent or any other Depositary Bank
accepting any check, draft or other order for payment of money bearing the
legend "payment in full" or words of similar import or any other restrictive
legend or endorsement whatsoever or be responsible for determining the
correctness of any remittance.
Section 6. Special Provisions Re: Inventory and Equipment. (a) Each
Debtor shall at its own cost and expense maintain, keep and preserve its
Inventory in good and merchantable condition and keep and preserve its Equipment
in good repair, working order and condition, ordinary wear and tear excepted,
and, without limiting the foregoing, make all necessary and proper repairs,
replacements and additions to its Equipment so that the operation thereof shall
be fully preserved and maintained to the extent necessary for the operation of
the Debtor's business.
(b) Each Debtor may, until an Event of Default has occurred and is
continuing and thereafter until otherwise notified by the Agent, use, consume
and sell the Inventory in the ordinary course of its business, but a sale in the
ordinary course of business shall not under any circumstance include any
transfer or sale in satisfaction, partial or complete, of a debt owing by such
Debtor.
(c) Each Debtor may, until an Event of Default has occurred and is
continuing and thereafter until otherwise notified by the Agent, sell (x)
obsolete, worn out or unusable Equipment which is concurrently replaced with
similar Equipment at least equal in quality and condition to that sold and owned
by such Debtor free of any lien, charge or encumbrance other than the security
interest granted hereby and (y) Equipment to the extent permitted by the Credit
Agreement.
(d) As of the time any Inventory or Equipment of a Debtor becomes
subject to the security interest provided for hereby and at all times
thereafter, such Debtor shall be deemed to have warranted as to any and all of
such Inventory and Equipment that all warranties of such Debtor set forth in
this Agreement are true and correct with respect to such Inventory and
Equipment; that
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all of such Inventory and Equipment is located at a location set forth pursuant
to Section 3(b) hereof. Each Debtor warrants and agrees that none of its
Inventory is or will be consigned to any other person or entity without the
Agent's prior written consent.
(e) If any of the Inventory is at any time evidenced by a document of
title, such document shall be promptly delivered by the relevant Debtor to the
Agent.
Section 7. Power of Attorney. In addition to any other powers of
attorney contained herein, each Debtor hereby appoints the Agent, its nominee,
or any other person whom the Agent may designate as such Debtor's
attorney-in-fact, with full power, after the occurrence and continuance of an
Event of Default, (i) to sign such Debtor's name on verifications of accounts
and other Collateral; (ii) to send requests for verification of Collateral to
such Debtor's customers, account debtors and other obligors; (iii) to endorse
such Debtor's name on any checks, notes, acceptances, money orders, drafts and
any other forms of payment or security that may come into the Agent's
possession; (iv) to endorse the Collateral in blank or to the order of the Agent
or its nominee; to sign such Debtor's name on any invoice or bill of lading
relating to any Collateral, on claims to enforce collection of any Collateral,
on notices to and drafts against customers and account debtors and other
obligors, on schedules and assignments of Collateral, on notices of assignment
and on public records; (v) to notify the post office authorities to change the
address for delivery of such Debtor's mail to an address designated by the
Agent; (vi) to receive, open and dispose of all mail addressed to such Debtor;
and to do all things necessary to carry out this Agreement. Each Debtor hereby
ratifies and approves all acts of any such attorney and agrees that neither the
Agent nor any such attorney will be liable for any acts or omissions nor for any
error of judgment or mistake of fact or law other than such person's gross
negligence or willful misconduct. The Agent may file one or more financing
statements disclosing its security interest in any material portion of or all of
the Collateral without any Debtor's signature appearing thereon, and each Debtor
also hereby grants the Agent a power of attorney to execute any such financing
statements, or amendments and supplements to financing statements, on behalf of
such Debtor without notice thereof to any Debtor. The foregoing powers of
attorney, being coupled with an interest, are irrevocable until the Obligations
have been fully paid and satisfied and the commitments of any Secured Creditor
to extend credit to or for the account of the Borrower have expired or otherwise
been terminated.
Section 8. Defaults and Remedies. (a) The occurrence of any event or
the existence of any condition which is specified as an "EVENT OF DEFAULT" under
the Credit Agreement or a "CREDIT EVENT" under the Intercreditor Agreement
referred to in Section 9 below shall constitute an "EVENT OF DEFAULT" hereunder.
(b) Upon the occurrence and during the continuation of any Event of
Default, the Agent shall have, in addition to all other rights provided herein
or by law, the rights and remedies of a secured party under the UCC (regardless
of whether the UCC is the law of the jurisdiction where the rights or remedies
are asserted and regardless of whether the UCC applies to the affected
Collateral), and further the Agent may, without demand and without
advertisement, notice, hearing or process of law, all of which each Debtor
hereby waives to the extent permitted by applicable law, at any time or times,
sell and deliver any or all Collateral held by or for it at public or private
sale, for cash, upon credit or otherwise, at such prices and upon such terms as
the Agent deems advisable, in its sole discretion. In the exercise of any such
remedies, the Agent may sell the Collateral as a unit
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even though the sales price thereof may be in excess of the amount remaining
unpaid on the Obligations. Also, if less than all the Collateral is sold, the
Agent shall have no duty to marshal or apportion the part of the Collateral so
sold as between the Debtors, or any of them, but may sell and deliver any or all
of the Collateral without regard to which of the Debtors are the owners thereof.
In addition to all other sums due any Secured Creditor hereunder, each Debtor
shall pay the Agent and the Secured Creditors all costs and expenses incurred by
the Agent and the Secured Creditors, including reasonable attorneys' fees and
court costs, in obtaining, liquidating or enforcing payment of Collateral or the
Obligations or in the prosecution or defense of any action or proceeding by or
against the Agent or any Secured Creditor or any Debtor concerning any matter
arising out of or connected with this Agreement or the Collateral or the
Obligations, including, without limitation, any of the foregoing arising in,
arising under or related to a case under the United States Bankruptcy Code (or
any successor statute). Any requirement of reasonable notice shall be met if
such notice is personally served on or mailed, postage prepaid, to the Debtors
in accordance with Section 13(b) hereof at least 10 days before the time of sale
or other event giving rise to the requirement of such notice; provided, however,
no notification need be given to a Debtor if such Debtor has signed, after an
Event of Default hereunder has occurred, a statement renouncing any right to
notification of sale or other intended disposition. The Agent shall not be
obligated to make any sale or other disposition of the Collateral regardless of
notice having been given. Any Secured Creditor may be the purchaser at any such
sale. Each Debtor hereby waives all of its rights of redemption from any such
sale. The Agent may postpone or cause the postponement of the sale of all or any
portion of the Collateral by announcement at the time and place of such sale,
and such sale may, without further notice, be made at the time and place to
which the sale was postponed or the Agent may further postpone such sale by
announcement made at such time and place.
(c) Without in any way limiting the foregoing, upon the occurrence and
during the continuation of any Event of Default hereunder, the Agent shall have
the right, in addition to all other rights provided herein or by law, to take
physical possession of any and all of the Collateral and anything found therein,
the right for that purpose to enter without legal process any premises where the
Collateral may be found (provided such entry be done lawfully), and the right to
maintain such possession on the relevant Debtor's premises (each Debtor hereby
agreeing, to the extent it may lawfully do so, to lease such premises without
cost or expense to the Agent or its designee if the Agent so requests) or to
remove the Collateral or any part thereof to such other places as the Agent may
desire. Upon the occurrence and during the continuation of any Event of Default
hereunder, the Agent shall have the right to exercise any and all rights with
respect to deposit accounts of each Debtor maintained with any Secured Creditor,
including, without limitation, the right to collect, withdraw and receive all
amounts due or to become due or payable under each such deposit account. Upon
the occurrence and during the continuation of any Event of Default hereunder,
each Debtor shall, upon the Agent's demand, assemble the Collateral and make it
available to the Agent at a place designated by the Agent. If the Agent
exercises its right to take possession of the Collateral, each Debtor shall also
at its expense perform any and all other steps requested by the Agent to
preserve and protect the security interest hereby granted in the Collateral,
such as placing and maintaining signs indicating the security interest of the
Agent, appointing overseers for the Collateral and maintaining Collateral
records.
(d) Without in any way limiting the foregoing, each Debtor hereby
grants to the Secured Creditors a royalty-free irrevocable license and right to
use all of such Debtor's patents,
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patent applications, patent licenses, trademarks, trademark registrations,
trademark licenses, trade names, trade styles, and similar intangibles in
connection with any foreclosure or other realization by the Agent or the Secured
Creditors on all or any part of the Collateral to the extent permitted by law.
(e) Failure by the Agent to exercise any right, remedy or option under
this Agreement or any other agreement between any Debtor and the Agent or
provided by law, or delay by the Agent in exercising the same, shall not operate
as a waiver; and no waiver shall be effective unless it is in writing, signed by
the party against whom such waiver is sought to be enforced and then only to the
extent specifically stated. Neither the Agent or any Secured Creditor, nor any
party acting as attorney for the Agent or any Secured Creditor, shall be liable
hereunder for any acts or omissions or for any error of judgment or mistake of
fact or law other than their gross negligence or willful misconduct. The rights
and remedies of the Agent and the Secured Creditors under this Agreement shall
be cumulative and not exclusive of any other right or remedy which the Agent or
any Secured Creditor may have.
Section 9. Application of Proceeds. The proceeds and avails of the
Collateral at any time received by the Agent upon the occurrence and during the
continuation of any Event of Default shall, when received by the Agent in cash
or its equivalent, be applied by the Agent in reduction of, or held as
collateral security for, the Obligations in accordance with the terms of the
Intercreditor Agreement among the Secured Parties dated the date hereof. The
Debtors shall remain liable to the Secured Creditors for any deficiency. Any
surplus remaining after the full payment and satisfaction of the Obligations
shall be returned to the Borrower, as agent for the Debtors, or as a court of
competent jurisdiction may direct.
Section 10. Continuing Agreement. This Agreement shall be a continuing
agreement in every respect and shall remain in full force and effect until all
of the Obligations, both for principal and interest, have been fully paid and
satisfied and the commitments of any Secured Creditor to extend credit to or for
the account of the Borrower under the Credit Agreement have expired or otherwise
terminated. Upon such termination of this Agreement, the Agent shall, upon the
request and at the expense of the Debtors, forthwith release its security
interest hereunder.
Section 11. The Agent. In acting under or by virtue of this Agreement,
the Agent shall be entitled to all the rights, authority, privileges and
immunities provided in Article IX of the Credit Agreement and Section 7 of the
Intercreditor Agreement, all of which provisions are incorporated by reference
herein with the same force and effect as if set forth herein in their entirety.
The Agent hereby disclaims any representation or warranty to the other Secured
Creditors or any other holders of the Obligations concerning the perfection of
the liens and security interests granted hereunder or in the value of any of the
Collateral.
Section 12. Representations and Warranties. In order to induce the
Secured Creditors to continue and extend the credit facilities and other
financial accommodations to the Borrower pursuant to the Credit Agreement, each
Debtor makes the following representations and warranties, all of which shall
survive the execution and delivery of this Agreement.
(a) Such Debtor (i) is a duly organized and validly existing
corporation (or limited liability company, as the case may be) in good standing
under the laws of the jurisdiction of
-14-
its organization, (ii) has the power and authority to own its property and
assets and to transact the business in which it is engaged and presently
proposes to engage and (iii) is duly qualified as a foreign corporation (or
limited liability company, as the case may be) and in good standing in each
jurisdiction where the ownership of property or the conduct of its business
requires such qualification except where the failure to be so qualified could
not reasonably be expected to have a material adverse effect on the business,
operations, properties or financial or other condition of such Debtor.
(b) Such Debtor has the power and authority to execute, deliver and
perform the terms and provisions of this Agreement and has taken all necessary
action to authorize the execution, delivery and performance by it of this
Agreement. Such Debtor has duly executed and delivered this Agreement, and this
Agreement constitutes its legal, valid and binding obligation enforceable in
accordance with its terms, except to the extent that the enforceability thereof
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws generally affecting creditors' rights and by equitable
principles (regardless of whether enforcement is sought in equity or at law).
(c) Neither the execution, delivery or performance by such Debtor of
this Agreement, nor compliance by it with the terms and provisions hereof, nor
the consummation of the transactions contemplated herein (i) will contravene any
material provision of any law, statute, rule or regulation or any order, writ,
injunction or decree of any court or governmental instrumentality, (ii) will
conflict or be inconsistent with or result in any breach of any of the terms,
covenants, conditions or provisions of, or constitute a default under, or (other
than pursuant to the Security Documents (as hereinafter defined)) result in the
creation or imposition of (or the obligation to create or impose) any Lien upon
any of the property or assets of such Debtor pursuant to the terms of any
indenture, mortgage, deed of trust, credit agreement, loan agreement or any
other material agreement, contract or instrument to which any of the Debtor or
its subsidiaries is a party or by which it or any of its property or assets are
bound or to which it may be subject or (iii) will violate any provision of the
certificate of incorporation or by-laws (or the equivalent charter documents) of
such Debtor. In this Agreement, the term "SECURITY DOCUMENTS" shall mean this
Agreement and the Pledge Agreement dated as of the even date herewith among the
Borrower, certain of its domestic Subsidiaries and The Bank of New York, as
Agent, and documents and instruments delivered hereunder and thereunder.
(d) No order, consent, approval, license, authorization or validation
of, or filing, recording or registration with (except as have been obtained or
made on or prior to the date hereof and which remain in full force and effect),
or exemption by, any governmental or public body or authority, or any
subdivision thereof, is required to authorize, or is required in connection
with, (i) the execution, delivery and performance of this Agreement by such
Debtor or (ii) the legality, validity, binding effect or enforceability of this
Agreement.
Section 13. Miscellaneous. (a) This Agreement cannot be changed or
terminated orally. This Agreement shall create a continuing lien on and security
interest in the Collateral and shall be binding upon each Debtor, its successors
and assigns and shall inure, together with the rights and remedies of the Agent
and the Secured Creditors hereunder, to the benefit of the Agent and the Secured
Creditors and their successors and permitted assigns; PROVIDED, HOWEVER, that no
Debtor may assign its rights or delegate its duties hereunder without the
Agent's prior written consent. Without limiting the generality of the foregoing,
and subject to the provisions of the Credit Agreement and the
-15-
Intercreditor Agreement, any Secured Creditor may assign or otherwise transfer
any indebtedness held by it secured by this Agreement to any other person, and
such other person shall thereupon become vested with all the benefits in respect
thereof granted to such Lender herein or otherwise.
(b) All communications provided for herein shall be in writing, except
as otherwise specifically provided for hereinabove.
(c) No Secured Creditor (other than the Agent, subject to the terms and
provisions of the Intercreditor Agreement) shall have the right to institute any
suit, action or proceeding in equity or at law for the foreclosure or other
realization upon any Collateral subject to this Agreement or for the execution
of any trust or power hereof or for the appointment of a receiver, or for the
enforcement of any other remedy under or upon this Agreement; it being
understood and intended that no one or more of the Secured Creditors (other than
the Agent) shall have any right in any manner whatsoever to affect, disturb or
prejudice the lien and security interest of this Agreement by its or their
action or to enforce any right hereunder, and that all proceedings at law or in
equity shall be instituted, had and maintained by the Agent in the manner herein
provided for the benefit of the Secured Creditors.
(d) In the event that any provision hereof shall be deemed to be
invalid or unenforceable by reason of the operation of any law or by reason of
the interpretation placed thereon by any court, this Agreement shall be
construed as not containing such provision, but only as to such jurisdictions
where such law or interpretation is operative, and the invalidity or
unenforceability of such provision shall not affect the validity of any
remaining provisions hereof, and any and all other provisions hereof which are
otherwise lawful and valid shall remain in full force and effect. Without
limiting the generality of the foregoing, in the event that this Agreement shall
be deemed to be invalid or otherwise unenforceable with respect to any Debtor,
such invalidity or unenforceability shall not affect the validity of this
Agreement with respect to the other Debtors.
(e) The lien and security interest herein created and provided for
stand as direct and primary security for the Obligations of the Borrower arising
under or otherwise relating to the Credit Agreement as well as for any of the
other Obligations secured hereby. No application of any sums received by the
Agent or the Secured Creditors in respect of the Collateral or any disposition
thereof to the reduction of the Obligations or any part thereof shall in any
manner entitle any Debtor to any right, title or interest in or to the
Obligations or any collateral or security therefor, whether by subrogation or
otherwise, unless and until all Obligations have been fully paid and satisfied
and all agreements of the Secured Creditors to extend credit to or for the
account of each Debtor and to or for the account of the Borrower have expired or
otherwise have been terminated. Each Debtor acknowledges that the lien and
security interest hereby created and provided are absolute and unconditional and
shall not in any manner be affected or impaired by any acts of omissions
whatsoever of the Agent, any Secured Creditor or any other holder of any
Obligations, and without limiting the generality of the foregoing, the lien and
security interest hereof shall not be impaired by any acceptance by the Agent,
the Secured Creditors or any other holder of any Obligations of any other
security for or guarantors upon any of the Obligations or by any failure,
neglect or omission on the part of the Agent, any Secured Creditor or any other
holder of any Obligations to realize upon or protect any of the Obligations or
any collateral or security therefor (including, without limitation, impairment
of collateral or failure to perfect security interest in collateral). The lien
and security
-16-
interest hereof shall not in any manner be impaired or affected by (and the
Secured Creditors, without notice to anyone, are hereby authorized to make from
time to time) any sale, pledge, surrender, compromise, settlement, release,
renewal, extension, indulgence, alteration, substitution, exchange, change in,
modification or disposition of any of the Obligations or of any collateral or
security therefor, or of any guaranty thereof, or of any instrument or agreement
setting forth the terms and conditions pertaining to any of the foregoing. A
Lender may at its discretion at any time grant credit to the Borrower without
notice to the other Debtors in such amounts and on such terms as such Lender may
elect (all of such to constitute additional Obligations hereby secured) without
in any manner impairing the lien and security interest created and provided for
herein. In order to realize hereon and to exercise the rights granted the Agent
for the benefit of the Secured Creditors hereunder and under applicable law,
there shall be no obligation on the part of the Agent or any Secured Creditor or
any other holder of any Obligations at any time to first resort for payment to
the Borrower or to any other Debtor or to any guaranty of the Obligations or any
portion thereof or to resort to any other collateral, security, property, liens
or any other rights or remedies whatsoever, and the Agent shall have the right
to enforce this Agreement against any Debtor or any of its Collateral
irrespective of whether or not other proceedings or steps seeking resort to or
realization upon or from any of the foregoing are pending.
(f) In the event the Secured Creditors shall at any time in their
discretion permit a substitution of Debtors hereunder or a party shall wish to
become a Debtor hereunder, such substituted or additional Debtor shall, upon
executing an agreement in the form attached hereto as SCHEDULE C, become a party
hereto and be bound by all the terms and conditions hereof to the same extent as
though such Debtor had originally executed this Agreement and, in the case of a
substitution, in lieu of the Debtor being replaced. Any such agreement shall
contain information as to such Debtor necessary to update SCHEDULES A, B, C and
D hereto with respect to it. No such substitution shall be effective absent the
written consent of Agent nor shall it in any manner affect the obligations of
the other Debtors hereunder.
(g) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York applicable to contracts made and to be
performed entirely within the State of New York.
(h) Each Debtor hereby submits to the non-exclusive jurisdiction of the
United States District Court for the Southern District of New York and of any
New York state court sitting in The City of New York for purposes of all legal
proceedings arising out of or relating to this Agreement, the other Loan
Documents or the transactions contemplated hereby or thereby. Each Debtor
irrevocably waives, to the fullest extent permitted by law, any objection which
it 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 DEBTOR AND EACH SECURED
CREDITOR HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE CREDIT
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
-17-
(i) This Agreement may be executed in any number of counterparts and by
different parties hereto on separate counterpart signature pages, each
constituting an original, but all together one and the same agreement.
[THE NEXT PAGE IS THE SIGNATURE PAGE]
-18-
IN WITNESS WHEREOF, each Debtor has caused this Agreement to be duly
executed and delivered in New York, New York as of the date first above written.
DEBTORS:
--------
APOGEE ENTERPRISES, INC.
By: Xxxxxxx X. Xxxxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention:
XXXXXX, INC.
By: Xxxxxxx X. Xxxxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
000 Xxxxx Xxxxxx, XX
Xxxxx 000
Xxx Xxxxxxxx, XX 00000-2702
Attention:
VIRACON/CURVELITE, INC.
By: Xxxxxxx X. Xxxxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
000 Xxxx Xxxxx
Xxxxxxxx, XX 00000
Attention:
-19-
XXXXXXX INDUSTRIES, INC.
By: Xxxxxxx X. Xxxxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
0000 Xxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention:
APOGEE WAUSAU GROUP, INC.
By: Xxxxxxx X. Xxxxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxx 00000
Attention:
MILCO CONTRACTING, INC.
By: Xxxxxxx X. Xxxxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
0000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attention:
-20-
THE GLASS DEPOT, INC.
By: Xxxxxxx X. Xxxxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
0000 Xxxxx Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000-5334
Attention:
THE GLASS DEPOT OF NY, INC.
By: Xxxxxxx X. Xxxxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
0000 Xxxxx Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000-5334
Attention:
NORSHIELD CORPORATION
By: Xxxxxxx X. Xxxxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
0000 Xxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention:
VIRACON, INC.
By: Xxxxxxx X. Xxxxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
000 Xxxx Xxxxx
-21-
Owatonna, Minnesota 55060
Attention:
VIRATEC THIN FILMS, INC.
By: Xxxxxxx X. Xxxxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000-0000
Attention:
TRU VUE, INC.
By: Xxxxxxx X. Xxxxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
0000 Xxxxx Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention:
-22-
XXXXXX GLASS COMPANY
By: Xxxxxxx X. Xxxxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
0000 Xxxxx Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000-5334
Attention:
AMERICAN MANAGEMENT GROUP
By: Xxxxxxx X. Xxxxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
0000 Xxxxx Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000-5334
Attention:
DOVER GLASS COMPANY
By: Xxxxxxx X. Xxxxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
0000 Xxxxx Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000-5334
Attention:
XXXXXX, LTD.
By: Xxxxxxx X. Xxxxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
-23-
0000 Xxxxxxxxx Xxxxx, #000
Xxxxxxxxxxx, XX 00000
Attention:
-24-
Accepted and agreed to in New York, New York as of the date first above written.
THE BANK OF NEW YORK, as Agent
for the Secured Creditors
By: Xxxxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
Address:
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 10286
Attention:
Telephone: (000) 000-0000
Telecopy: (000) 000-0000 or 6366
-25-
================================================================================
CONTRIBUTION AGREEMENT
dated as of
May 21, 1998
among
APOGEE ENTERPRISES, INC.
and
THE CONTRIBUTING PARTIES HERETO
================================================================================
CONTRIBUTION AGREEMENT (the "AGREEMENT"), dated as of May 21, 1998,
among Apogee Enterprises, Inc., a Minnesota corporation (the "PRINCIPAL"), and
each of the undersigned corporations (other than the Principal) located at the
addresses set forth on the signature pages below their names (each, together
with any other parties who execute and deliver to the Agent referred to below a
supplement in the form attached hereto as EXHIBIT A, a "SUBSIDIARY", and
collectively, the "SUBSIDIARIES"). The Principal and each of the Subsidiaries
are sometimes hereinafter referred to individually as a "CONTRIBUTING PARTY"
(and collectively as the "CONTRIBUTING PARTIES").
W I T N E S S E T H:
WHEREAS, the Principal is a party to a Credit Agreement dated as of May
21, 1998, by and among the Principal, The Bank of New York, as Administrative
Agent, Letter of Credit Issuer and Swing Line Lender, the Lenders from time to
time parties thereto, U.S. Bank, National Association, as Syndication Agent, and
Xxxxxx Trust and Savings Bank, as Documentation Agent (the "CREDIT AGREEMENT";
capitalized terms used herein without definition have the meanings given them,
or incorporated by reference, in the Credit Agreement);
WHEREAS, as a condition, among others, to the willingness of the
Administrative Agent and the Lenders to enter into the Credit Agreement, the
Administrative Agent and the Lenders have required that each Subsidiary execute
and deliver that certain Subsidiary Guaranty Agreement, dated as of May 21, 1998
(such agreement, as the same may from time to time be amended, modified,
restated or extended, being hereinafter referred to as the "GUARANTY"), pursuant
to which, among other things, the Subsidiaries have jointly and severally agreed
to guarantee the indebtedness guaranteed to the Guaranteed Creditors pursuant to
Section 2 of the Guaranty (collectively, the "GUARANTEED OBLIGATIONS"); and
WHEREAS, the Administrative Agent and the Lenders have entered into an
Intercreditor Agreement, dated as of the date hereof, with certain Other Lenders
and Creditors (as defined therein) of the Principal, in order to set forth the
agreements between the parties thereto with respect to certain security
interests in assets or property of the Principal or Subsidiaries pursuant to
that certain Security Agreement, dated as of May 21, 1998, and that certain
Pledge Agreement, dated as of May 21, 1998; and
WHEREAS, each Subsidiary is a wholly-owned direct or indirect
subsidiary of the Principal and is engaged in businesses related to those of the
Principal and each other Subsidiary, and each of the Subsidiaries will derive
direct or indirect economic benefit from the effectiveness and existence of the
Credit Agreement;
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, and to induce each Subsidiary to enter into the Guaranty,
it is agreed as follows:
To the extent that any Subsidiary shall, under the Guaranty, make a
payment (a "SUBSIDIARY PAYMENT") of a portion of the Guaranteed Obligations,
THEN such Subsidiary shall be entitled to contribution and indemnification from,
and be reimbursed by, each of the other Contributing Parties in an amount, for
each such Contributing Party, equal to a fraction of such Subsidiary Payment,
the numerator of which fraction is such Contributing Party's Allocable Amount
and the denominator of which is the sum of the Allocable Amounts of all of the
Contributing Parties.
As of any date of determination, the "ALLOCABLE AMOUNT" of each
Contributing Party shall be equal to the maximum amount of liability which could
be asserted against such Contributing Party hereunder with respect to the
applicable Subsidiary Payment without (i) rendering such Contributing Party
"insolvent" within the meaning of Section 101(31) of the Federal Bankruptcy Code
(the "BANKRUPTCY CODE") or Section 2 of either the Uniform Fraudulent Transfer
Act (the "UFTA") or the Uniform Fraudulent Conveyance Act (the "UFCA"), (ii)
leaving such Contributing Party with unreasonably small capital, within the
meaning of Section 548 of the Bankruptcy Code or Section 4 of the UFTA or
Section 5 of the UFCA, or (iii) leaving such Contributing Party unable to pay
its debts as they become due within the meaning of Section 548 of the Bankruptcy
Code or Section 4 of the UFTA or Section 6 of the UFCA.
This Agreement is intended only to define the relative rights of the
Contributing Parties, and nothing set forth in this Agreement is intended to or
shall impair the obligations of the Subsidiaries, jointly and severally, to pay
any amounts, as and when the same shall become due and payable in accordance
with the terms of the Guaranty.
The parties hereto acknowledge that the rights of contribution and
indemnification hereunder shall constitute assets in favor of each Subsidiary to
which such contribution and indemnification is owing.
This Agreement shall become effective upon its execution by each of the
Contributing Parties and shall continue in full force and effect and may not be
terminated or otherwise revoked by any Contributing Party until all of the
Guaranteed Obligations under and as defined in the Guaranty shall have been
indefeasibly paid in full and discharged and the financing arrangements
evidenced and governed by the Credit Agreement and the Financing Documents shall
have been terminated. Each Contributing Party agrees that if, notwithstanding
the foregoing such Contributing Party shall have any right under applicable law
to terminate or revoke this Agreement, and such Contributing Party shall attempt
to exercise such right, then such termination or revocation shall not be
effective until a written notice of such revocation or termination, specifically
referring hereto and signed by such Contributing Party, is actually received by
each of the other Contributing Parties and by the Administrative Agent and the
Lenders. Such notice shall not affect the right or power of any Contributing
Party to enforce rights arising prior to receipt of such written notice by each
of the other Contributing Parties and the Administrative Agent and the Lenders.
If any Lender grants additional loans (in addition to the Credit Agreement) to
the Principal or takes other action giving rise to additional Guaranteed
Obligations after any Contributing Party has exercised any right to terminate or
revoke this Agreement but before the Administrative Agent or such Xxxxxx
receives such written notice, the rights of each other Contributing Party to
contribution and indemnification hereunder in connection with any Subsidiary
Payments made with respect to such loans or Guaranteed Obligations shall be the
same as if such termination or revocation had not occurred.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York applicable to contracts made and to be
performed entirely within the State of New York.
[THE NEXT PAGE IS THE SIGNATURE PAGE]
IN WITNESS WHEREOF, each Contributing Party has executed and delivered
this Agreement, under seal, as of the date first above written.
APOGEE ENTERPRISES, INC.
By: Xxxxxxx X. Xxxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention:
XXXXXX, INC.
By: Xxxxxxx X. Xxxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
000 Xxxxx Xxxxxx, XX
Xxxxx 000
Xxx Xxxxxxxx, XX 00000-2702
Attention:
VIRACON/CURVELITE, INC.
By: Xxxxxxx X. Xxxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
000 Xxxx Xxxxx
Xxxxxxxx, XX 00000
Attention:
-3-
XXXXXXX INDUSTRIES, INC.
By: Xxxxxxx X. Xxxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
0000 Xxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention:
APOGEE WARSAU GROUP, INC.
By: Xxxxxxx X. Xxxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
0000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attention:
MILCO CONTRACTING, INC.
By: Xxxxxxx X. Xxxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
0000 Xxxx Xxxxxx
Xxxxxx, XX 0000
Attention:
THE GLASS DEPOT, INC
By: Xxxxxxx X. Xxxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
-4-
0000 Xxxxx Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000-0000
Attention:
THE GLASS DEPOT OF NY, INC.
By: Xxxxxxx X. Xxxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
0000 Xxxxx Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000-5334
Attention:
NORSHIELD CORPORATION
By: Xxxxxxx X. Xxxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
0000 Xxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention:
VIRACON, INC.
By: Xxxxxxx X. Xxxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
000 Xxxx Xxxxx
Xxxxxxxx, XX 00000
Attention:
VIRATEC THIN FILMS, INC.
-5-
By: Xxxxxxx X. Xxxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000-0000
Attention:
TRU VUE, INC.
By: Xxxxxxx X. Xxxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
0000 Xxxxx Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention:
XXXXXX GLASS COMPANY
By: Xxxxxxx X. Xxxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
0000 Xxxxx Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000-5334
Attention:
AMERICAN MANAGEMENT GROUP
By: Xxxxxxx X. Xxxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
-6-
0000 Xxxxx Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000-0000
Attention:
DOVER GLASS COMPANY
By: Xxxxxxx X. Xxxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
0000 Xxxxx Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000-5334
Attention:
XXXXXX, LTD.
By: Xxxxxxx X. Xxxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
0000 Xxxxxxxxx Xxxxx, #000
Xxxxxxxxxxx, XX 00000
Attention:
-7-
================================================================================
PLEDGE AGREEMENT
dated as of
May 21, 1998
among
APOGEE ENTERPRISES, INC.
THE PLEDGORS PARTIES HERETO
and
THE BANK OF NEW YORK,
as Administrative Agent
and Collateral Agent
================================================================================
TABLE OF CONTENTS
-----------------
Page
----
Section 1. Terms and Definitions.............................................2
Section 2. Grant of Security Interest in the Collateral......................2
(a) Pledged Securities.......................................2
(b) Additional Securities....................................2
(c) Other Equity Interests...................................3
(d) Proceeds.................................................3
Section 3. Obligations Hereby Secured........................................3
Section 4. Covenants, Agreements, Representations and Warranties.............3
Section 5. Special Provisions Re: Pledged Securities.........................5
Section 6. Voting Rights and Dividends.......................................5
Section 7. Power of Attorney.................................................6
Section 8. Defaults and Remedies.............................................6
Section 9. Application of Proceeds...........................................9
Section 10. Continuing Agreement..............................................9
Section 11. Primary Security; Obligations Absolute............................9
Section 12. The Agent........................................................10
Section 13. Representations and Warranties...................................10
Section 14. Miscellaneous....................................................11
SCHEDULES
Schedule A -- The Pledged Securities
Schedule B -- Amendment to Pledge Agreement
Schedule C -- Assumption and Supplemental Pledge Agreement
-i-
PLEDGE AGREEMENT (the "AGREEMENT"), dated as of May 21, 1998, among
Apogee Enterprises, Inc., a Minnesota corporation (the "BORROWER"), and the
other parties executing this Agreement under the heading "Pledgors" (the
Borrower and such other parties, along with any parties who execute and deliver
to the Agent an agreement in the form attached hereto as SCHEDULE C being
hereinafter referred to collectively, as the "PLEDGORS" and individually, as a
"PLEDGOR"), each with its mailing address as set forth on its signature page
hereto and The Bank of New York ("BNY"), with its mailing address at Xxx Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, acting as administrative and collateral agent
hereunder for the Secured Creditors hereinafter identified (BNY acting as such
agent and any successor or successors to BNY acting in such capacity being
hereinafter referred to as the "AGENT");
PRELIMINARY STATEMENTS
A. The Borrower and BNY, individually and as administrative agent, have
entered into a Credit Agreement dated as of May 21, 1998 (such Agreement as the
same may be amended, modified or restated from time to time being hereinafter
referred to as the "CREDIT AGREEMENT"), pursuant to which BNY and other lenders
from time to time party to the Credit Agreement (BNY acting as such agent and
any successor or successors to BNY in such capacity being hereinafter referred
to as the "ADMINISTRATIVE AGENT"; BNY, as a lender, the letter of credit issuer
and the swing line lender, and such other lenders which from time to time become
party to the Credit Agreement being hereinafter referred to collectively as the
"LENDERS" and individually as a "LENDER") have agreed, subject to certain terms
and conditions, to extend credit and make certain other financial accommodations
available to the Borrower (the Administrative Agent, the Lenders and the Other
Lenders and Creditors being hereinafter referred to, collectively, as the
"SECURED CREDITORS" and individually, as a "SECURED CREDITOR"). As used herein,
(i) the "OTHER LENDERS" and "CREDITORS" shall mean those Other Lenders and
Creditors party to, and defined in, the Intercreditor Agreement, dated the date
hereof, and (ii) "OTHER FINANCING DOCUMENTS" shall mean the agreements and
instruments referred to in the Intercreditor Agreement under which the Other
Lenders and Creditors have extended credit to the Borrower as of the date
hereof.
B. As a condition to extending (or continuing the extension of) credit
and other financial accommodations to the Borrower under the Credit Agreement,
the Secured Creditors have required, among other things, that each Pledgor grant
to the Agent, for the benefit of the Secured Creditors, a security interest in
certain personal property of such Pledgor described herein subject to the terms
and conditions hereof.
C. The Borrower owns, directly or indirectly, equity interests in each
other Pledgor and the Borrower provides each other Pledgor with financial,
management, administrative, and technical support which enables such Pledgor to
conduct its business in an orderly and efficient manner in the ordinary course.
D. Each Pledgor will benefit, directly or indirectly, from credit and
other financial accommodations extended by the Secured Creditors to the
Borrower.
NOW, THEREFORE, for and in consideration of the execution and delivery
by the Secured Creditors of the Credit Agreement, and other good and valuable
consideration, receipt whereof is hereby acknowledged, the parties hereto hereby
agree as follows:
Section 1. Terms and Definitions. All capitalized terms used herein
without definition shall have the same meanings herein as such terms have in the
Credit Agreement. All terms which are used in this Agreement which are defined
in the Uniform Commercial Code of the State of New York ("UCC") shall have the
same meanings herein as such terms are defined in the UCC, unless this Agreement
shall otherwise specifically provide. The headings herein shall not be given
effect in interpreting or construing the provisions of this Agreement. The term
"Pledgor" and "Pledgors" as used herein shall mean and include the Pledgors
collectively, and also each individually, with all grants, representations,
warranties and covenants of and by the Pledgors, or any of them, herein
contained to constitute joint and several grants, representations, warranties
and covenants of and by the Pledgors; PROVIDED, HOWEVER, that unless the context
in which the same is used shall otherwise require, any grant, representation,
warranty or covenant contained herein related to the Collateral shall be made by
each Pledgor only with respect to the Collateral owned by it or represented by
such Pledgor as owned by it.
Section 2. Grant of Security Interest in the Collateral. Each Pledgor
hereby grants to the Agent, for the ratable benefit of the Secured Creditors, a
lien on and security interest in, and acknowledges and agrees that the Agent has
and shall continue to have, for the ratable benefit of the Secured Creditors, a
continuing lien on and security interest in, any and all right, title and
interest of such Pledgor in and to the following, whether now owned or existing
or hereafter created, acquired or arising, and in whatever form (sometimes
referred to herein as the "COLLATERAL"):
(a) Pledged Securities. 100% (or, if less, the full amount
owned by such Pledgor) of the issued and outstanding shares of capital
stock owned by such Pledgor of each domestic Subsidiary (as set forth
on SCHEDULE A attached hereto) and, together with the certificates (or
other agreements or instruments), if any, representing such shares, and
all options and other rights, contractual or otherwise, with respect
thereto (collectively, together with the shares of capital stock
described in Section 2(b) and 2(c) below and the rights and privileges
described hereunder with respect thereto, the "PLEDGED SECURITIES"),
including, but not limited to, the following:
(i) all shares of securities representing a dividend
on any of the Pledged Securities, or representing a
distribution or return of capital upon or in respect of the
Pledged Securities, or resulting from a stock split, revision,
reclassification or other exchange therefor, and any
subscriptions, warrants, rights or options issued to the
holder of, or otherwise in respect of, the Pledged Securities;
and
(ii) without affecting the obligations of such
Pledgor under any provision prohibiting such action hereunder,
in the event of any consolidation or merger in which a Person
set forth on SCHEDULE A is not the surviving corporation, all
shares of each class of the capital stock of the successor
corporation formed by or resulting from such consolidation or
merger.
(b) Additional Securities. 100% (or, if less, the full amount
owned by such Pledgor) of the issued and outstanding shares of capital
stock owned by such Pledgor of any Person which hereafter becomes a
domestic Subsidiary, including, without limitation, the certificates
(or other agreements or instruments), if any, representing such shares.
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(c) Other Equity Interests. Any and all other equity interests
of each Pledgor in any domestic Subsidiary.
(d) Proceeds. All proceeds and products of the foregoing,
however and whenever acquired and in whatever form.
Section 3. Obligations Hereby Secured. This Agreement is made and given
to secure, and shall secure, the prompt payment and performance when due of (i)
(A) any and all indebtedness, obligations and liabilities of the Borrower to the
Secured Creditors, and to any of them individually, under or in connection with
or evidenced by the Credit Agreement, the Notes of the Borrower heretofore or
hereafter issued under the Credit Agreement, the obligations of the Borrower to
reimburse the Secured Creditors for the amount of all drawings on all Letters of
Credit issued pursuant to the Credit Agreement and under or in connection with
or evidenced by the Other Financing Documents and (B) any and all liability of
the Pledgors, and of any of them individually, arising under any guaranty issued
by it relating to the foregoing or any part thereof, in each case whether now
existing or hereafter arising (and whether arising before or after the filing of
a petition in bankruptcy and including all interest accrued after the petition
date), due or to become due, direct or indirect, absolute or contingent, and
howsoever evidenced, held or acquired and (ii) any and all expenses and charges,
legal or otherwise, suffered or incurred by the Secured Creditors, and any of
them individually, in collecting or enforcing any of such indebtedness,
obligations and liabilities or in realizing on or protecting or preserving any
security therefor, including, without limitation, the lien and security interest
granted hereby (all of the indebtedness, obligations, liabilities, expenses and
charges described above being hereinafter referred to as the "OBLIGATIONS").
Section 4. Covenants, Agreements, Representations and Warranties. Each
Pledgor hereby covenants and agrees with, and represents and warrants to, the
Secured Creditors that:
(a) Each Pledgor is and shall be the sole and lawful legal,
record and beneficial owner of its Collateral. Each Pledgor's chief
executive office is at the address listed under such Xxxxxxx's name on
SCHEDULE A. Each Pledgor agrees that it will not change any location
set forth on the applicable Schedule hereto without at least 30 days'
prior written notice to the Agent (provided such locations shall be
within the United States of America). No Pledgor shall, without the
Agent's prior written consent, sell, assign, or otherwise dispose of
the Collateral or any interest therein. The Collateral, and every part
thereof, is and shall be free and clear of all security interests,
liens, rights, claims, attachments, levies and encumbrances of every
kind, nature and description and whether voluntary or involuntary,
except for the security interest of the Agent hereunder. Each Pledgor
shall warrant and defend the Collateral against any claims and demands
of all persons at any time claiming the same or any interest in the
Collateral adverse to the any Secured Creditor.
(b) Each Pledgor agrees to execute and deliver to the Agent
such further agreements, assignments, instruments and documents and to
do all such other things as the Agent may deem reasonably necessary or
appropriate to assure the Agent its lien and security interest
hereunder, including such assignments, acknowledgments, stock powers,
financing statements, instruments and documents as the Agent may from
time to time require in order to comply with the UCC. Each Pledgor
hereby agrees that a carbon, photographic or other
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reproduction of this Agreement or any such financing statement is
sufficient for filing as a financing statement by the Agent without
prior notice thereof to such Pledgor wherever the Agent in its
discretion desires to file the same. In the event for any reason the
law of any jurisdiction other than New York becomes or is applicable to
the Collateral or any part thereof, or to any of the Obligations, each
Pledgor agrees to execute and deliver all such agreements, assignments,
instruments and documents and to do all such other things as the Agent
in its discretion deems necessary or appropriate to preserve, protect
and enforce the lien and security interest of the Agent under the law
of such other jurisdiction.
(c) If, as and when any Pledgor delivers any securities for
pledge hereunder in addition to those listed on SCHEDULE A hereto, the
Pledgors shall furnish to the Agent a duly completed and executed
amendment to such Schedule in substantially the form (with appropriate
insertions) of SCHEDULE B hereto reflecting the additional securities
pledged hereunder after giving effect to such addition.
(d) None of the Collateral constitutes margin stock (within
the meaning of the Margin Regulations, as defined in the Credit
Agreement).
(e) On failure of any Pledgor to perform any of the agreements
and covenants herein contained, the Agent may, at its option, perform
the same and in so doing may expend such sums as the Agent deems
advisable in the performance thereof, including, without limitation,
the payment of any taxes, liens and encumbrances, expenditures made in
defending against any adverse claim, and all other expenditures which
the Agent may be compelled to make by operation of law or which Agent
may make by agreement or otherwise for the protection of the security
hereof. To the extent practicable, the Agent shall notify the Debtor in
advance of such performance by the Agent. All such sums and amounts so
expended shall be repayable by the Pledgors immediately without notice
or demand, shall constitute additional Obligations secured hereunder
and shall bear interest from the date said amounts are expended at the
rate per annum (computed on the basis of a year of 360 days, for the
actual number of days elapsed) determined by adding 2% to the Alternate
Base Rate from time to time in effect plus the Applicable Margin, with
any change in such rate per annum as so determined by reason of a
change in such Alternate Base Rate to be effective on the date of such
change in said Alternate Base Rate (such rate per annum as so
determined being hereinafter referred to as the "DEFAULT RATE"). No
such performance of any covenant or agreement by the Agent on behalf of
such Pledgor, and no such advancement or expenditure therefor, shall
relieve such Pledgor of any default under the terms of this Agreement
or in any way obligate any Secured Creditor to take any further or
future action with respect thereto. The Agent, in making any payment
hereby authorized, may do so according to any bill, statement or
estimate procured from the appropriate public office or holder of the
claim to be discharged without inquiry into the accuracy of such bill,
statement or estimate, or into the validity of any tax assessment,
sale, forfeiture, tax lien or title or claim. The Agent, in performing
any act hereunder, shall be the sole judge of whether the relevant
Pledgor is required to perform the same under the terms of this
Agreement. The Agent is hereby authorized to charge any depository or
other account of any Pledgor maintained with the Agent for the amount
of such sums and amounts so expended.
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Section 5. Special Provisions Re: Pledged Securities. Each Pledgor
hereby further covenants and agrees with, and represents and warrants to, the
Secured Creditors that:
(a) Each Pledgor has the right to vote the Pledged Securities
and there are no restrictions upon the voting rights associated with,
or the transfer of, any of the Pledged Securities, except as provided
by federal and state laws applicable to the sale of securities
generally and the terms of this Agreement.
(b) The certificates for all shares of the Pledged Securities
shall be delivered by the relevant Pledgor to the Agent duly endorsed
in blank for transfer or accompanied by an appropriate assignment or
assignments or an appropriate undated stock power or powers, in every
case sufficient to transfer title thereto. The Agent may at any time
after the occurrence of an Event of Default cause to be transferred
into its name or into the name of its nominee or nominees any and all
of the Pledged Securities. The Agent shall at all times have the right
to exchange the certificates representing the Pledged Securities for
certificates of smaller or larger denominations.
(c) The Pledged Securities have been validly issued and,
except as described on SCHEDULE A, are fully paid and non-assessable.
Except as set forth on SCHEDULE A, there are no outstanding commitments
or other obligations of the issuers of any of the Pledged Securities to
issue, and no options, warrants or other rights of any individual or
entity to acquire, any share of any class or series of capital stock of
such issuers. The Pledged Securities listed and described on SCHEDULE A
attached hereto constitute the percentage of the issued and outstanding
capital stock of each series and class of the issuers thereof as set
forth thereon owned by the relevant Pledgor. Each Pledgor further
agrees that in the event any such issuer shall issue any additional
capital stock of any series or class (whether or not entitled to vote)
to such Pledgor or otherwise on account of its ownership interest
therein, each Pledgor will forthwith pledge and deposit hereunder, or
cause to be pledged and deposited hereunder, all such additional shares
of such capital stock.
Section 6. Voting Rights and Dividends. Unless and until an Event of
Default hereunder has occurred and is continuing and thereafter until notified
by the Agent pursuant to Section 8(b) hereof:
(a) Each Pledgor shall be entitled to exercise all voting
and/or consensual powers pertaining to the Collateral of such Pledgor,
or any part thereof, for all purposes not inconsistent with the terms
of this Agreement, the Credit Agreement or any other document
evidencing or otherwise relating to any of the Obligations.
(b) Each Pledgor shall be entitled to receive and retain all
dividends and distributions in respect of the Collateral which are paid
in cash of whatsoever nature; PROVIDED, HOWEVER, that such dividends
and distributions representing stock or liquidating dividends or a
distribution or return of capital upon or in respect of the Pledged
Securities or any part thereof or resulting from a split-up, revision
or reclassification of the Pledged Securities or any part thereof or
received in addition to, in substitution of or in exchange for the
Pledged Securities or any part thereof as a result of a merger,
consolidation or otherwise
-5-
shall be paid, delivered or transferred, as appropriate, directly to
the Agent immediately upon the receipt thereof by such Pledgor and may,
in the case of cash, be applied by the Agent to the Obligations,
whether or not the same may then be due or otherwise adequately secured
and shall, in the case of all other property, together with any cash
received by the Agent and not applied as aforesaid, be held by the
Agent pursuant hereto as part of the Collateral pledged under and
subject to the terms of this Agreement.
(c) In order to permit each Pledgor to exercise such voting
and/or consensual powers which it is entitled to exercise under
subsection (a) above and to receive such distributions which such
Pledgor is entitled to receive and retain under subsection (b) above,
the Agent will, if necessary, upon the written request of such Pledgor,
from time to time execute and deliver to such Pledgor appropriate
proxies and dividend orders.
Section 7. Power of Attorney. Each Pledgor hereby appoints the Agent,
its nominee, or any other person whom the Agent may designate as such Xxxxxxx's
attorney-in-fact, with full power and authority, upon the occurrence and
continuation of an Event of Default, to ask, demand, collect, receive, receipt
for, sue for, compound and give acquittance for any and all sums or properties
which may be or become due, payable or distributable in respect of the
Collateral or any part thereof, with full power to settle, adjust or compromise
any claim thereunder or therefor as fully as such Pledgor could itself do, to
endorse or sign the Pledgor's name on any assignments, stock powers, or other
instruments of transfer and on any checks, notes, acceptances, money orders,
drafts, and any other forms of payment or security that may come into the
Agent's possession and on all documents of satisfaction, discharge or receipt
required or requested in connection therewith, and, in its discretion, to file
any claim or take any other action or proceeding, either in its own name or in
the name of such Pledgor, or otherwise, which the Agent deems necessary or
appropriate to collect or otherwise realize upon all or any part of the
Collateral, or effect a transfer thereof, or which may be necessary or
appropriate to protect and preserve the right, title and interest of the Agent
in and to such Collateral and the security intended to be afforded hereby. Each
Pledgor hereby ratifies and approves all acts of any such attorney and agrees
that neither the Agent nor any such attorney will be liable for any such acts or
omissions nor for any error of judgment or mistake of fact or law other than
such person's gross negligence or willful misconduct. The Agent may file one or
more financing statements disclosing its security interest in all or any part of
the Collateral without any Pledgor's signature appearing thereon, and each
Pledgor also hereby grants the Agent a power of attorney to execute any such
financing statements, and any amendments or supplements thereto, on behalf of
such Pledgor without notice thereof to such Pledgor. The foregoing powers of
attorney, being coupled with an interest, are irrevocable until the Obligations
have been fully satisfied and all commitments of the Secured Creditors to extend
credit to or for the account of the Borrower have expired or otherwise been
terminated.
Section 8. Defaults and Remedies. (a) The occurrence of any event or
the existence of any condition which is specified as an "EVENT OF DEFAULT" under
the Credit Agreement or a "CREDIT EVENT" under the Intercreditor Agreement
referred to in Section 9 below shall constitute an "EVENT OF DEFAULT" hereunder.
(b) Upon the occurrence and during the continuation of any Event of
Default, all rights of the Pledgors to receive and retain the distributions
which they are entitled to receive and
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retain pursuant to Section 6(b) hereof shall, at the option of the Agent cease
and thereupon become vested in the Agent which, in addition to all other rights
provided herein or by law, shall then be entitled solely and exclusively to
receive and retain the distributions which the Pledgors would otherwise have
been authorized to retain pursuant to Section 6(b) hereof and all rights of the
Pledgors to exercise the voting and/or consensual powers which they are entitled
to exercise pursuant to Section 6(a) hereof shall, at the option of the Agent
and upon not less than 5 days prior written notice from the Agent, cease and
thereupon become vested in the Agent which, in addition to all other rights
provided herein or by law, shall then be entitled solely and exclusively to
exercise all voting and other consensual powers pertaining to the Collateral and
to exercise any and all rights of conversion, exchange or subscription and any
other rights, privileges or options pertaining thereto as if the Agent were the
absolute owner thereof including, without limitation, the right to exchange, at
its discretion, the Collateral or any part thereof upon the merger,
consolidation, reorganization, recapitalization or other readjustment of the
respective issuer thereof or upon the exercise by or on behalf of any such
issuer or the Agent of any right, privilege or option pertaining to the
Collateral or any part thereof and, in connection therewith, to deposit and
deliver the Collateral or any part thereof with any committee, depositary,
transfer agent, registrar or other designated agency upon such terms and
conditions as the Agent may determine. In the event the Agent in good faith
believes any of the Collateral constitutes restricted securities within the
meaning of any applicable securities law, any disposition thereof in compliance
with such laws shall not render the disposition commercially unreasonable.
(c) Upon the occurrence and during the continuation of any Event of
Default, the Agent shall have, in addition to all other rights provided herein
or by law, the rights and remedies of a secured party under the UCC (regardless
of whether the UCC is the law of the jurisdiction where the rights or remedies
are asserted and regardless of whether the UCC applies to the affected
Collateral), and further the Agent may, without demand and without
advertisement, notice, hearing or process of law, all of which each Pledgor
hereby waives to the extent permitted by applicable law, at any time or times,
sell and deliver any or all of the Collateral held by or for it at public or
private sale, at any securities exchange or broker's board or at any of the
Agent's offices or elsewhere, for cash, upon credit or otherwise, at such prices
and upon such terms as the Agent deems advisable, in its sole discretion. In the
exercise of any such remedies, the Agent may sell the Collateral as a unit even
though the sales price thereof may be in excess of the amount remaining unpaid
on the Obligations. Also, if less than all the Collateral is sold, the Agent
shall have no duty to marshal or apportion the part of the Collateral so sold as
between the Pledgors, or any of them, but may sell and deliver any or all of the
Collateral without regard to which of the Pledgors are the owners thereof. In
addition to all other sums due any Secured Creditor hereunder, each Pledgor
shall pay the Agent and the Secured Creditors all costs and expenses incurred by
the Agent or the Secured Creditors, including reasonable attorneys' fees and
court costs, in obtaining, liquidating or enforcing payment of Collateral or the
Obligations or in the prosecution or defense of any action or proceeding by or
against the Agent or any Secured Creditor or any Pledgor concerning any matter
arising out of or connected with this Agreement or the Collateral or the
Obligations including, without limitation, any of the foregoing arising in,
arising under or related to a case under the United States Bankruptcy Code (or
any successor statute). Any requirement of reasonable notice shall be met if
such notice is personally served on or mailed, postage prepaid, to the Pledgors
in accordance with Section 14(b) hereof at least 10 days before the time of sale
or other event giving rise to the requirement of such notice; PROVIDED, HOWEVER,
no notification need be given to a Pledgor if such Pledgor has signed, after an
Event of Default has occurred, a statement renouncing any right to notification
of sale or other
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intended disposition. The Agent shall not be obligated to make any sale or other
disposition of the Collateral regardless of notice having been given. Any
Secured Creditor may be the purchaser at any such sale. Each Pledgor hereby
waives all of its rights of redemption from any such sale. The Agent may
postpone or cause the postponement of the sale of all or any portion of the
Collateral by announcement at the time and place of such sale, and such sale
may, without further notice, be made at the time and place to which the sale was
postponed or the Agent may further postpone such sale by announcement made at
such time and place.
EACH PLEDGOR AGREES THAT IF ANY PART OF THE COLLATERAL IS SOLD AT ANY
PUBLIC OR PRIVATE SALE, THE AGENT MAY ELECT TO SELL ONLY TO A BUYER WHO WILL
GIVE FURTHER ASSURANCES, SATISFACTORY IN FORM AND SUBSTANCE TO THE AGENT,
RESPECTING COMPLIANCE WITH THE REQUIREMENTS OF THE FEDERAL SECURITIES ACT OF
1933, AS AMENDED, AND A SALE SUBJECT TO SUCH CONDITION SHALL BE DEEMED
COMMERCIALLY REASONABLE.
EACH PLEDGOR FURTHER AGREES THAT IN ANY SALE OF ANY PART OF THE
COLLATERAL, THE AGENT IS HEREBY AUTHORIZED TO COMPLY WITH ANY LIMITATION OR
RESTRICTION IN CONNECTION WITH SUCH SALE AS IT MAY BE ADVISED BY COUNSEL IS
NECESSARY IN ORDER TO AVOID ANY VIOLATION OF APPLICABLE LAW (INCLUDING, WITHOUT
LIMITATION, COMPLIANCE WITH SUCH PROCEDURES AS MAY RESTRICT THE NUMBER OF
PROSPECTIVE BIDDERS AND PURCHASERS AND/OR FURTHER RESTRICT SUCH PROSPECTIVE
BIDDERS OR PURCHASERS TO PERSONS WHO WILL REPRESENT AND AGREE THAT THEY ARE
PURCHASING FOR THEIR OWN ACCOUNT FOR INVESTMENT AND NOT WITH A VIEW TO THE
DISTRIBUTION OR RESALE OF SUCH COLLATERAL ), OR IN ORDER TO OBTAIN ANY REQUIRED
APPROVAL OF THE SALE OR OF THE PURCHASER BY ANY GOVERNMENTAL REGULATORY
AUTHORITY OR OFFICIAL, AND EACH PLEDGOR FURTHER AGREES THAT SUCH COMPLIANCE
SHALL NOT RESULT IN SUCH SALE BEING CONSIDERED OR DEEMED NOT TO HAVE BEEN MADE
IN A COMMERCIALLY REASONABLE MANNER, NOR SHALL THE AGENT BE LIABLE OR
ACCOUNTABLE TO ANY PLEDGOR FOR ANY DISCOUNT ALLOWED BY REASON OF THE FACT THAT
SUCH COLLATERAL IS SOLD IN COMPLIANCE WITH ANY SUCH LIMITATION OR RESTRICTION.
(d) The powers conferred upon the Agent hereunder are solely to protect
its interest in the Collateral and shall not impose on it any duties to exercise
such powers. The Agent shall be deemed to have exercised reasonable care in the
custody and preservation of the Collateral in its possession if the Collateral
is accorded treatment substantially equivalent to that which the Agent accords
its own property, consisting of similar types securities, it being understood,
however, that the Agent shall have no responsibility for (i) ascertaining or
taking any action with respect to calls, conversions, exchanges, maturities,
tenders or other matters relating to any Collateral, whether or not the Agent
has or is deemed to have knowledge of such matters, (ii) taking any necessary
steps to preserve rights against any parties with respect to any Collateral, or
(iii) initiating any action to protect the Collateral or any part thereof
against the possibility of a decline in market value. This
-8-
Agreement constitutes an assignment of rights only and not an assignment of any
duties or obligations of the Pledgors in any way related to the Collateral, and
the Agent shall have no duty or obligation to discharge any such duty or
obligation. By its acceptance hereof, the Agent does not undertake to perform or
discharge and shall not be responsible or liable for the performance or
discharge of any such duties or responsibilities. Neither the Agent nor any
Secured Creditor, nor any party acting as attorney for the Agent or any Secured
Creditor, shall be liable hereunder for any acts or omissions or for any error
of judgment or mistake of fact or law other than such person's gross negligence
or willful misconduct.
(e) Failure by the Agent to exercise any right, remedy or option under
this Agreement or any other agreement between any Pledgor and the Agent or
provided by law, or delay by the Agent in exercising the same, shall not operate
as a waiver; and no waiver shall be effective unless it is in writing, signed by
the party against whom such waiver is sought to be enforced and then only to the
extent specifically stated. The rights and remedies of the Agent and the Secured
Creditors under this Agreement shall be cumulative and not exclusive of any
other right or remedy which the Agent and any Secured Creditor may have.
Section 9. Application of Proceeds. The proceeds and avails of the
Collateral at any time received by the Agent upon the occurrence and during the
continuation of any Event of Default shall, when received by the Agent in cash
or its equivalent, be applied by the Agent in reduction of, or held as
collateral security for, the Obligations in accordance with the terms of the
Intercreditor Agreement among the Secured Creditors dated May 21, 1998. The
Pledgors shall remain liable to the Secured Creditors for any deficiency. Any
surplus remaining after the full payment and satisfaction of the Obligations
shall be returned to the Borrower, as agent for Xxxxxxxx, or as a court of
competent jurisdiction may direct.
Section 10. Continuing Agreement. This Agreement shall be a continuing
agreement in every respect and shall remain in full force and effect until all
of the Obligations, both for principal and interest, have been fully paid and
satisfied and the commitments of the Secured Creditors to extend credit to or
for the account of the Borrower shall have expired or otherwise terminated. Upon
such termination of this Agreement, the Agent shall, upon the request and at the
expense of the Pledgors, forthwith release all its liens and security interests
hereunder.
Section 11. Primary Security; Obligations Absolute. The lien and
security herein created and provided for shall stand as direct and primary
security for the Obligations. No application of any sums received by the Agent
in respect of the Collateral or any disposition thereof to the reduction of the
Obligations or any portion thereof shall in any manner entitle any Pledgor to
any right, title or interest in or to the Obligations or any collateral security
therefor, whether by subrogation or otherwise, unless and until all Obligations
have been fully paid and satisfied and all commitments to extend credit
constituting Obligations to the Borrower shall have expired or otherwise
terminated. Each Pledgor acknowledges and agrees that the lien and security
hereby created and provided for are absolute and unconditional and shall not in
any manner be affected or impaired by any acts or omissions whatsoever of any
Secured Creditor or any other holder of any of the Obligations, and without
limiting the generality of the foregoing, the lien and security hereof shall not
be impaired by any acceptance by the Agent, any Secured Creditor or any other
holder of any of the Obligations of any other security for or guarantors upon
any Obligations or by any failure, neglect
-9-
or omission on the part of the Agent, any Secured Creditor or any other holder
of any of the Obligations to realize upon or protect any of the Obligations or
any collateral security therefor (including, without limitation, impairment of
collateral or failure to perfect security interest in collateral). The lien and
security hereof shall not in any manner be impaired or affected by (and the
Agent and the Secured Creditors, without notice to anyone, are hereby authorized
to make from time to time) any sale, pledge, surrender, compromise, settlement,
release, renewal, extension, indulgence, alteration, substitution, exchange,
change in, modification or disposition of any of the Obligations, or of any
collateral security therefor, or of any guaranty thereof, or of any instrument
or agreement setting forth the terms and conditions pertaining to any of the
foregoing. A Lender may at its discretion at any time grant credit to the
Borrower without notice to the other Pledgors in such amounts and on such terms
as such Lender may elect (all of such to consitute additional Obligations hereby
secured) without in any manner impairing the lien and security hereby created
and provided for. In order to realize hereon and to exercise the rights granted
the Agent and the Secured Creditors hereunder and under applicable law, there
shall be no obligation on the part of the Agent, any Secured Creditor or any
other holder of any of the Obligations at any time to first resort for payment
to the Borrower or any other Pledgor or to any guaranty of the Obligations or
any portion thereof or to resort to any other collateral security, property,
liens or any other rights or remedies whatsoever, and the Agent and the Secured
Creditors shall have the right to enforce this Agreement as against any Pledgor
or any of its Collateral irrespective of whether or not other proceedings or
steps seeking resort to or realization upon or from any of the foregoing are
pending.
Section 12. The Agent. In acting under or by virtue of this Agreement,
the Agent shall be entitled to all the rights, authority, privileges and
immunities provided in Article IX of the Credit Agreement and Section 7 of the
Intercreditor Agreement, all of which provisions of said Article IX and Section
7 are incorporated by reference herein with the same force and effect as if set
forth herein in their entirety. The Agent hereby disclaims any representation or
warranty to the other Secured Creditors or any other holders of the Obligations
concerning the perfection of the liens and security interests granted hereunder
or in the value of the Collateral.
Section 13. Representations and Warranties. In order to induce the
Secured Creditors to continue and extend the credit facilities and other
financial accommodations to the Borrower pursuant to the Credit Agreement, each
Pledgor makes the following representations and warranties, all of which shall
survive the execution and delivery of this Agreement.
(a) Such Pledgor (i) is a duly organized and validly existing
corporation (or limited liability company, as the case may be) in good standing
under the laws of the jurisdiction of its organization, (ii) has the power and
authority to own its property and assets and to transact the business in which
it is engaged and presently proposes to engage and (iii) is duly qualified as a
foreign corporation (or limited liability company, as the case may be) and in
good standing in each jurisdiction where the ownership of property or the
conduct of its business requires such qualification except where the failure to
be so qualified could not reasonably be expected to have a material adverse
effect on the business, operations, properties or financial or other condition
of such Pledgor.
(b) Such Pledgor has the power and authority to execute, deliver and
perform the terms and provisions of this Agreement and has taken all necessary
action to authorize the execution, delivery and performance by it of this
Agreement. Such Pledgor has duly executed and
-10-
delivered this Agreement, and this Agreement constitutes its legal, valid and
binding obligation enforceable in accordance with its terms, except to the
extent that the enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws generally affecting
creditors' rights and by equitable principles (regardless of whether enforcement
is sought in equity or at law).
(c) Neither the execution, delivery or performance by such Pledgor of
this Agreement, nor compliance by it with the terms and provisions hereof, nor
the consummation of the transactions contemplated herein (i) will contravene any
material provision of any law, statute, rule or regulation or any order, writ,
injunction or decree of any court or governmental instrumentality, (ii) will
conflict or be inconsistent with or result in any breach of any of the terms,
covenants, conditions or provisions of, or constitute a default under, or (other
than pursuant to the Security Documents (as hereinafter defined)) result in the
creation or imposition of (or the obligation to create or impose) any Lien upon
any of the property or assets of such Pledgor pursuant to the terms of any
indenture, mortgage, deed of trust, credit agreement, loan agreement or any
other material agreement, contract or instrument to which any of the Pledgor or
its Subsidiaries is a party or by which it or any of its property or assets are
bound or to which it may be subject or (iii) will violate any provision of the
certificate of incorporation or by-laws (or the equivalent charter documents) of
such Pledgor. In this Agreement, the term "SECURITY DOCUMENTS" shall mean the
Security Agreement dated as of the even date herewith among the Borrower, its
domestic Subsidiaries and The Bank of New York, as Agent, this Agreement and
documents and instruments delivered hereunder and thereunder.
(d) No order, consent, approval, license, authorization or validation
of, or filing, recording or registration with (except as have been obtained or
made on or prior to the date hereof and which remain in full force and effect),
or exemption by, any governmental or public body or authority, or any
subdivision thereof, is required to authorize, or is required in connection
with, (i) the execution, delivery and performance of this Agreement by such
Pledgor or (ii) the legality, validity, binding effect or enforceability of this
Agreement.
Section 14. Miscellaneous. (a) This Agreement cannot be changed or
terminated orally. This Agreement shall create a continuing lien on and security
interest in the Collateral and shall be binding upon each Pledgor, its
successors and permitted assigns, and shall inure, together with the rights and
remedies of the Secured Creditors hereunder, to the benefit of the Secured
Creditors, and their successors and assigns; PROVIDED, HOWEVER, that no Pledgor
may assign its rights or delegate its duties hereunder without the Agent's prior
written consent. Without limiting the generality of the foregoing, and subject
to the provisions of the Credit Agreement and the Intercreditor Agreement, any
Secured Creditor may assign or otherwise transfer any indebtedness held by it
secured by this Agreement to any other person, and such other person shall
thereupon become vested with all the benefits in respect thereof granted to such
Secured Creditor herein or otherwise.
(b) All communications provided for herein shall be in writing, except
as otherwise specifically provided for hereinabove.
(c) No Secured Creditor (other than the Agent, subject to the terms and
provisions of the Intercreditor Agreement) shall have the right to institute any
suit, action or proceeding in equity or at law for the foreclosure or other
realization upon any Collateral subject to
-11-
this Agreement or for the execution of any trust or power hereof or for the
appointment of a receiver, or for the enforcement of any other remedy under or
upon this Agreement; it being understood and intended that no one or more of the
Secured Creditors (other than the Agent) shall have any right in any manner
whatsoever to affect, disturb or prejudice the lien and security interest of
this Agreement by its or their action or to enforce any right hereunder, and
that all proceedings at law or in equity shall be instituted, had and maintained
by the Agent in the manner herein provided for the benefit of the Secured
Creditors.
(d) In the event that any provision hereof shall be deemed to be
invalid or unenforceable by reason of the operation of any law or by reason of
the interpretation placed thereon by any court, this Agreement shall be
construed as not containing such provision, but only as to such jurisdictions
where such law or interpretation is operative, and the invalidity or
unenforceability of such provision shall not affect the validity of any
remaining provision hereof, and any and all other provisions hereof which are
otherwise lawful and valid shall remain in full force and effect. Without
limiting the generality of the foregoing, in the event that this Agreement shall
be deemed to be invalid or otherwise unenforceable with respect to any Pledgor,
such invalidity or unenforceability shall not affect the validity of this
Agreement with respect to the other Pledgors.
(e) In the event the Secured Creditors shall at any time in their
discretion permit a substitution of Pledgors hereunder or a party shall wish to
become a Pledgor hereunder, such substituted or additional Pledgor shall, upon
executing an agreement in the form attached hereto as SCHEDULE C become a party
hereto and be bound by all the terms and conditions hereof to the same extent as
though such Pledgor had originally executed this Agreement and, in the case of a
substitution, in lieu of the Pledgor being replaced. Any such agreement shall
contain information as to such Pledgor necessary to update Schedule A with
respect to it. No such substitution shall be effective absent the written
consent of Agent nor shall it in any manner affect the obligations of the other
Pledgors hereunder.
(f) Each Pledgor hereby submits to the non-exclusive jurisdiction of
the United States District Court for the Southern District of New York and of
any New York state court sitting in The City of New York for purposes of all
legal proceedings arising out of or relating to this Agreement, the other Credit
Documents or the transactions contemplated hereby or thereby. Each Pledgor
irrevocably waives, to the fullest extent permitted by law, any objection which
it 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 PLEDGOR AND EACH SECURED
CREDITOR HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER CREDIT
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
(g) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York applicable to contracts made and to be
performed entirely within the State of New York.
-12-
(h) This Agreement may be executed in any number of counterparts and by
different parties hereto on separate counterpart signature pages, each
constituting an original, but all together one and the same instrument.
[THE NEXT PAGE IS THE SIGNATURE PAGE]
-13-
IN WITNESS WHEREOF, each Pledgor has caused this Agreement to be duly
executed and delivered as of the date first above written.
PLEDGORS:
APOGEE ENTERPRISES, INC.
By: Xxxxxxx X. Xxxxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention:
APOGEE WAUSAU, INC.
By: Xxxxxxx X. Xxxxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxx 00000
Attention:
THE GLASS DEPOT, INC
By: Xxxxxxx X. Xxxxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
0000 Xxxxx Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000-5334
Attention:
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VIRACON, INC.
By: Xxxxxxx X. Xxxxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
000 Xxxx Xxxxx
Xxxxxxxx, XX 00000
Attention:
XXXXXX GLASS COMPANY
By: Xxxxxxx X. Xxxxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
0000 Xxxxx Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000-5334
Attention:
AMERICAN MANAGEMENT GROUP
By: Xxxxxxx X. Xxxxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
0000 Xxxxx Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000-5334
Attention:
-15-
Acknowledged and agreed to in New York, New York as of the date first
above written.
THE BANK OF NEW YORK, as Agent for
the Secured Creditors
By: Xxxxxxx X. Xxxxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
-16-
================================================================================
SUBSIDIARY GUARANTY AGREEMENT
dated as of
May 21, 1998
among
THE GUARANTORS PARTIES HERETO
and
THE BANK OF NEW YORK,
as Agent
for the Guaranteed Creditors
================================================================================
SUBSIDIARY GUARANTY AGREEMENT (the "GUARANTY"), dated as of May 21,
1998, by the parties who have executed this Guaranty (such parties, along with
any other parties who execute and deliver to the Agent hereinafter identified
and defined an agreement in the form attached hereto as EXHIBIT A, being herein
referred to collectively, as the "GUARANTORS" and individually, as a
"GUARANTOR") in favor of The Bank of New York ("BNY") acting as agent hereunder
for the Guaranteed Creditors hereinafter identified and defined (BNY acting as
such agent and any successor or successors to BNY in such capacity being
hereinafter referred to as the "AGENT").
WITNESSETH:
WHEREAS, each of the Guarantors is a direct or indirect subsidiary of
Apogee Enterprises, Inc., a Minnesota corporation (the "BORROWER"); and
WHEREAS, the Borrower and BNY, individually and as administrative
agent, letter of credit issuer and saving line lender (BNY acting as such agent
and any successor or successors to BNY in such capacity being hereinafter
referred to as the "ADMINISTRATIVE AGENT") have entered into a Credit Agreement,
dated as of May 21, 1998 (such Credit Agreement as the same may from time to
time hereafter be modified, amended or restated being hereinafter referred to as
the "CREDIT AGREEMENT") pursuant to which BNY and such other lenders from time
to time parties thereto (BNY, as a lender, the letter of credit issuer and the
swing line lender, and such other lenders being hereinafter referred to
collectively, as the "LENDERS" and individually, as a "LENDER") have extended
various credit facilities to the Borrower (the Administrative Agent, the Lenders
and the Other Lenders and Creditors being hereinafter referred to, collectively,
as the "GUARANTEED CREDITORS" and individually, as a "GUARANTEED CREDITOR"). As
used herein, the "OTHER LENDERS" and "CREDITORS" shall mean those Others Lenders
and Creditors party to, and defined in, the Intercreditor Agreement, dated the
date hereof.
WHEREAS, the Borrower provides each of the Guarantors with substantial
financial, management, administrative, and technical support; and
WHEREAS, as a condition to extending the credit facilities and other
financial accommodations pursuant to the Credit Agreement, the Guaranteed
Creditors have required, among other things, that the Guarantors execute and
deliver this Guaranty; and
WHEREAS, each Guarantor will directly and substantially benefit from
credit and other financial accommodations extended and to be extended by the
Guaranteed Creditors to the Borrower; and
NOW, THEREFORE, FOR VALUE RECEIVED, and in consideration of advances
made or to be made, or credit accommodations given or to be given, to the
Borrower by the Guaranteed Creditors from time to time, each Guarantor hereby
makes the following representations and warranties to the Guaranteed Creditors
and hereby covenants and agrees with the Guaranteed Creditors as follows:
Section 1. All capitalized terms used herein without definition shall
have the same meanings herein as such terms have in the Credit Agreement.
-1-
Section 2. Each Guarantor hereby jointly and severally guarantees, for
the ratable benefit of the Guaranteed Creditors, the due and punctual payment
when due of (i) any and all indebtedness, obligations and liabilities of the
Borrower and the Guarantors, and of any of them individually, to the Guaranteed
Creditors, and to any of them individually, under or in connection with or
evidenced by the Credit Documents whether now existing or hereafter arising (and
whether arising before or after the filing of a petition in bankruptcy and
including all interest accrued after the petition date), due or to become due,
direct or indirect, absolute or contingent, and howsoever evidenced, held or
acquired and (ii) any and all expenses and charges, legal or otherwise, suffered
or incurred by the Guaranteed Creditors, or the Agent and any of them, in
collecting or enforcing any of such indebtedness, obligations and liabilities or
in realizing on or protecting or preserving any security therefor. The
indebtedness, obligations and liabilities described in the immediately preceding
clauses (i) and (ii) are hereinafter referred to as the "INDEBTEDNESS HEREBY
GUARANTEED". In case of failure by the Borrower or any Guarantor punctually to
pay any indebtedness hereby guaranteed, each Guarantor hereby jointly and
severally agrees to make such payment or to cause such payment to be made
punctually as and when the same shall become due and payable, whether at stated
maturity, by acceleration or otherwise. All payments hereunder by any Guarantor
shall be made in immediately available funds in the same currency in which the
indebtedness hereby guaranteed is payable, without setoff, counterclaim or other
defense or withholding or deduction of any nature.
Section 3. Each Guarantor further jointly and severally agrees to pay
on demand all reasonable expenses, legal and/or otherwise (including court costs
and reasonable attorneys' fees), paid or incurred by any Guaranteed Creditor in
endeavoring to collect the indebtedness hereby guaranteed, or any part thereof,
or in enforcing or endeavoring to enforce any Guarantor's obligations hereunder,
or any part thereof, or in protecting, defending or enforcing this Guaranty in
any litigation, bankruptcy or insolvency proceedings or otherwise.
Section 4. Each Guarantor agrees that, upon demand, such Guarantor will
then pay to the Agent, for the benefit of the Guaranteed Creditors, the full
amount of the indebtedness hereby guaranteed then due whether or not any one or
more of the other Guarantors shall then or thereafter pay any amount whatsoever
in respect to their obligations hereunder.
Section 5. Each of the Guarantors agrees that such Guarantor will not
exercise or enforce any right of exoneration, contribution, reimbursement,
recourse or subrogation available to such Guarantor against any person liable
for payment of the indebtedness hereby guaranteed, or as to any security
therefor, unless and until the full amount owing to the Guaranteed Creditors of
the indebtedness hereby guaranteed has been fully paid and satisfied and each of
the commitments by the Guaranteed Creditors to extend any indebtedness hereby
guaranteed shall have expired or otherwise terminated. The payment by any
Guarantor of any amount or amounts to the Guaranteed Creditors pursuant hereto
shall not in any way entitle any such Guarantor, either at law, in equity or
otherwise, to any right, title or interest (whether by way of subrogation or
otherwise) in and to the indebtedness hereby guaranteed or any part thereof or
any collateral security therefor or any other rights or remedies in any way
relating thereto or in and to any amounts theretofor, then or thereafter paid or
applicable to the payment thereof howsoever such payment may be made and from
whatsoever source such payment may be derived unless and until all of the
indebtedness hereby guaranteed and all costs and expenses suffered or incurred
by the Guaranteed Creditors in enforcing this Guaranty have been paid and
satisfied in full and each of
-2-
the commitments by the Guaranteed Creditors to extend any indebtedness hereby
guaranteed shall have expired or otherwise terminated and unless and until such
payment in full and termination, any payments made by any Guarantor hereunder
and any other payments from whatsoever source derived on account of or
applicable to the indebtedness hereby guaranteed or any part thereof shall be
held and taken to be merely payments in gross to the Guaranteed Creditors
reducing pro tanto the indebtedness hereby guaranteed.
Section 6. To the extent permitted by the Credit Agreement and the
Intercreditor Agreement among the Lenders, dated as of May 21, 1998 (the
"INTERCREDITOR AGREEMENT"), each Guaranteed Creditor may, without any notice
whatsoever to any of the Guarantors, sell, assign, or transfer all of the
indebtedness hereby guaranteed, or any part thereof, or grant participations
therein, and in that event each and every immediate and successive assignee,
transferee or holder of all or any part of the indebtedness hereby guaranteed,
shall have the right through the Agent pursuant to Section 18 hereof to enforce
this Guaranty, by suit or otherwise, for the benefit of such assignee,
transferee or holder, as fully as if such assignee, transferee or holder were
herein by name specifically given such rights, powers and benefits; but each
Guaranteed Creditor through the Agent pursuant to Section 18 hereof shall have
an unimpaired right to enforce this Guaranty for its own benefit, as to so much
of the indebtedness hereby guaranteed that it has not sold, assigned or
transferred.
Section 7. This Guaranty is a continuing, irrevocable, absolute and
unconditional guaranty of payment and not of collection, and shall remain in
full force and effect until any and all of the indebtedness hereby guaranteed
shall be fully paid and satisfied and each of the commitments by the Guaranteed
Creditors to extend any indebtedness hereby guaranteed shall have expired or
otherwise terminated. The Guaranteed Creditors may at any time or from time to
time release any Guarantor from its obligations hereunder or effect any
compromise with any Guarantor and no such release or compromise shall in any
manner impair or otherwise affect the obligations hereunder of the other
Guarantors. No release, compromise, or discharge of any one or more of the
Guarantors shall release, compromise or discharge the obligations of the other
Guarantors hereunder.
Section 8. In case of the dissolution, liquidation or insolvency
(howsoever evidenced) of, or the institution of bankruptcy or receivership
proceedings against the Borrower or any Guarantor, all of the indebtedness
hereby guaranteed which is then existing shall immediately become due or accrued
and payable from the Guarantors. All payments received from the Borrower or on
account of the indebtedness hereby guaranteed from whatsoever source, shall be
taken and applied as payment in gross, and this Guaranty shall apply to and
secure any ultimate balance that shall continue to remain owing to the
Guaranteed Creditors.
Section 9. The liability hereunder shall in no way be affected or
impaired by (and the Guaranteed Creditors are hereby expressly authorized to
make from time to time, without notice to any of the Guarantors), any sale,
pledge, surrender, compromise, settlement, release, renewal, extension,
impairment, indulgence, alteration, substitution, exchange, change in,
modification or other disposition of any of the indebtedness hereby guaranteed,
either express or implied, or of the Credit Agreement or any other contract or
contracts evidencing any thereof, or of any security or collateral therefor or
any guaranty thereof. The liability hereunder shall in no way be affected or
impaired by any acceptance by the Agent or the Guaranteed Creditors of any
-3-
security for or other guarantors upon any of the indebtedness hereby guaranteed,
or by any failure, neglect or omission on the part of the Agent or the
Guaranteed Creditors to realize upon or protect any of the indebtedness hereby
guaranteed, or any collateral or security therefor (including, without
limitation, impairment of collateral and failure to perfect security interest in
any collateral), or to exercise any lien upon or right of appropriation of any
moneys, credits or property of the Borrower or any Guarantor, possessed by the
Agent or any of the Guaranteed Creditors, toward the liquidation of the
indebtedness hereby guaranteed, or by any application of payments or credits
thereon. The Guaranteed Creditors shall have the exclusive right to determine
how, when and what application of payments and credits, if any, shall be made on
said indebtedness hereby guaranteed, or any part of same. In order to hold any
Guarantor liable hereunder, there shall be no obligation on the part of the
Agent or the Guaranteed Creditors, at any time, to resort for payment to the
Borrower or to any other Guarantor, or to any other person, its property or
estate, or resort to any collateral, security, property, liens or other rights
or remedies whatsoever, and the Agent and the Guaranteed Creditors shall have
the right to enforce this Guaranty against any Guarantor irrespective of whether
or not other proceedings or steps are pending seeking resort to or realization
upon or from any of the foregoing are pending.
Section 10. In the event the Guaranteed Creditors shall at any time in
their discretion permit a substitution of Guarantors hereunder or a party shall
wish to become Guarantor hereunder, such substituted or additional Guarantor
shall, upon executing an agreement in the form attached hereto as EXHIBIT A,
become a party hereto and be bound by all the terms and conditions hereof to the
same extent as though such Guarantor had originally executed this Guaranty and
in the case of a substitution, in lieu of the Guarantor being replaced. No such
substitution shall be effective absent the written consent of the Guaranteed
Creditors delivered in accordance with the terms of the Credit Agreement and the
Financing Documents, nor shall it in any manner affect the obligations of the
other Guarantors hereunder.
Section 11. All diligence in collection or protection, and all
presentment, demand, protest and/or notice, as to any and everyone, whether or
not the Borrower or the Guarantors or others, of dishonor and of default and of
non-payment and of the creation and existence of any and all of said
indebtedness hereby guaranteed, and of any security and collateral therefor, and
of the acceptance of this Guaranty, and of any and all extensions of credit and
indulgence hereunder, are expressly waived.
Section 12. No act of commission or omission of any kind, or at any
time, upon the part of the Agent or the Guaranteed Creditors in respect to any
matter whatsoever, shall in any way affect or impair this Guaranty.
Section 13. The Guarantors waive any and all defenses, claims and
discharges of the Borrower, or any other obligor or Guarantor, pertaining to the
indebtedness hereby guaranteed, except the defense of discharge by payment in
full. Without limiting the generality of the foregoing, the Guarantors will not
assert, plead or enforce against the Agent or the Guaranteed Creditors any
defense of waiver, release, discharge in bankruptcy, statute of limitations, res
judicata, statue of frauds, anti-deficiency statute, fraud, incapacity,
minority, usury, illegality or unenforceability which may be available to the
Borrower, or any other Guarantor or person liable in respect of any of the
indebtedness hereby guaranteed, or any set-off available against the Guaranteed
Creditors to the Borrower or any such other person, whether or not on account of
a
-4-
related transaction. The Guarantors agree that the Guarantors shall be and
remain jointly and severally liable for any deficiency remaining after
foreclosure or other realization on any lien or security interest securing the
indebtedness hereby guaranteed, whether or not the liability of the Borrower or
any other obligor for such deficiency is discharged pursuant to statute or
judicial decision.
Section 14. If any payment applied by the Guaranteed Creditors to the
indebtedness hereby guaranteed is thereafter set aside, recovered, rescinded or
required to be returned for any reason (including, without limitation, the
bankruptcy, insolvency or reorganization of the Borrower or any other Guarantor
or obligor), the indebtedness hereby guaranteed to which such payment was
applied shall for the purposes of this Guaranty be deemed to have continued in
existence, notwithstanding such application, and this Guaranty shall be
enforceable as to such of the indebtedness hereby guaranteed as fully as if such
application had never been made.
Section 15. The liability of the Guarantors under this Guaranty is in
addition to and shall be cumulative with all other liabilities of the Guarantors
after the date hereof to the Guaranteed Creditors as a Guarantor of the
indebtedness hereby guaranteed, without any limitation as to amount, unless the
instrument or agreement evidencing or creating such other liability specifically
provides to the contrary.
Section 16. Any invalidity or unenforceability of any provision or
application of this Guaranty shall not affect other lawful provisions and
applications hereof, and to this end the provisions of this Guaranty are
declared to be severable. Without limiting the generality of the foregoing, any
invalidity or unenforceability against any Guarantor of any provision or
application of the Guaranty shall not affect the validity or enforceability of
the provisions or application of this Guaranty as against the other Guarantors.
Section 17. Any demand for payment on this Guaranty or any other notice
required or desired to be given hereunder to any Guarantor shall be in writing
(including, without limitation, notice by telecopy) and shall be given to the
relevant party at its address or telecopier number set forth on the appropriate
signature page hereof, or such other address or telecopier number as such party
may hereafter specify by notice to the Agent given by United States certified or
registered mail, by telecopy or by other telecommunication device capable of
creating a written record of such notice and its receipt. Each such notice,
request or other communication shall be effective (i) if given by telecopier,
when such telecopy is transmitted to the telecopier number specified in this
Section and a confirmation of such telecopy has been received by the sender,
(ii) if given by mail, five (5) days after such communication is deposited in
the mail, certified or registered with return receipt requested, addressed as
aforesaid or (iii) if given by any other means, when delivered at the addresses
specified in this Section 17.
Section 18. No Guaranteed Creditor (other than the Agent subject to the
terms and provisions of the Intercreditor Agreement) shall have the right to
institute any suit, action or proceeding in equity or at law in connection with
this Guaranty for the enforcement of any remedy under or upon this Guaranty; it
being understood and intended that no one or more of the Guaranteed Creditors
(other than the Agent) shall have any right in any manner whatsoever to enforce
any right hereunder, and that all proceedings at law or in equity shall be
instituted, had
-5-
and maintained by the Agent in the manner herein provided and for the benefit of
the Guaranteed Creditors.
Section 19. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE
AND TO BE PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK and may not be waived,
amended, released or otherwise changed except by a writing signed by the
Guaranteed Creditors. This Guaranty and every part thereof shall be effective
upon delivery to the Agent, without further act, condition or acceptance by the
Guaranteed Creditors, shall be binding upon the Guarantors and upon the legal
representatives, successors and assigns of the Guarantors, and shall inure to
the benefit of the Agent or the Guaranteed Creditors, their successors, legal
representatives and assigns. The Guarantors waive notice of the Agent's or the
Guaranteed Creditors' acceptance hereof. This Guaranty may be executed in
counterparts and by different parties hereto on separate counterparts each of
which shall be an original, but all together to be one and the same instrument.
Section 20. The Guarantors' obligation hereunder to make payments in
the currency specified in the Credit Agreement (the "OBLIGATION CURRENCY") shall
not be discharged or satisfied by any tender or recovery pursuant to any
judgment expressed in or converted into any currency other than the Obligation
Currency, except to the extent that such tender or recovery results in the
effective receipt by the Guaranteed Creditors of the full amount of the
Obligation Currency expressed to be payable to the Guaranteed Creditors under
this Guaranty. If for the purpose of obtaining or enforcing judgment against any
Guarantor in any court or in any jurisdiction, it becomes necessary to convert
into or from any currency other than the Obligation Currency (such other
currency being hereinafter referred to as the "JUDGMENT CURRENCY") an amount due
in the Obligation Currency, the conversion shall be made at the rate of exchange
(as quoted by the Agent or if the Agent does not quote a rate of exchange on
such currency, by a known dealer in such currency designated by the Agent)
determined, in each case, as of the day immediately preceding the day on which
the judgment is given (such business day being hereinafter referred to as the
"JUDGMENT CURRENCY CONVERSION DATE"). If there is a change in the rate of
exchange prevailing between the Judgment Currency Conversion Date and the date
of actual payment of the amount due, the Guarantors covenant and agree to pay,
or cause to be paid, such additional amounts, if any (but in any event not a
lesser amount) as may be necessary to ensure that the amount paid in the
Judgment Currency, when converted at the rate of exchange prevailing on the date
of payment, will produce the amount of the Obligation Currency which could have
been purchased with the amount of Judgment Currency stipulated in the judgment
or judicial award at the rate or exchange prevailing on the Judgment Currency
Conversion Date. For purposes of determining any rate of exchange for this
Section 20, such amounts shall include any premium and costs payable in
connection with the purchase of the Obligation Currency.
Section 21. Each Guarantor hereby submits to the nonexclusive
jurisdiction of the United States District Court for the Southern District of
New York and of any New York State court sitting in The City of New York for
purposes of all legal proceedings arising out of or relating to this Guaranty or
the transactions contemplated hereby. Each Guarantor irrevocably waives, to the
fullest extent permitted by law, any objection which it 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 court has been brought in
an inconvenient forum.
-6-
EACH OF THE GUARANTORS, THE AGENT AND THE GUARANTEED CREDITORS 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 22. In order to induce the Guaranteed Creditors to continue and
extend the credit facilities and other financial accommodations to the Borrower
pursuant to the Credit Agreement and Financing Documents, each Guarantor makes
the following representations and warranties, all of which shall survive the
execution and delivery of this Guaranty.
(a) Such Guarantor (i) is a duly organized and validly existing
corporation (or limited liability company, as the case may be) in good standing
under the laws of the jurisdiction of its organization, (ii) has the power and
authority to own its property and assets and to transact the business in which
it is engaged and presently proposes to engage and (iii) is duly qualified as a
foreign corporation (or limited liability company, as the case may be) and in
good standing in each jurisdiction where the ownership of property or the
conduct of its business requires such qualification except where the failure to
be so qualified could not reasonably be expected to have a material adverse
effect on the business, operations, properties or financial or other condition
of such Guarantor.
(b) Such Guarantor has the power and authority to execute, deliver and
perform the terms and provisions of this Guaranty and has taken all necessary
action to authorize the execution, delivery and performance by it of this
Guaranty. Such Guarantor has duly executed and delivered this Guaranty, and this
Guaranty constitutes its legal, valid and binding obligation enforceable in
accordance with its terms, except to the extent that the enforceability thereof
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws generally affecting creditors' rights and by equitable
principles (regardless of whether enforcement is sought in equity or at law).
(c) Neither the execution, delivery or performance by such Guarantor of
this Guaranty, nor compliance by it with the terms and provisions hereof, nor
the consummation of the transactions contemplated herein (i) will contravene any
material provision of any law, statute, rule or regulation or any order, writ,
injunction or decree of any court or governmental instrumentality, (ii) will
conflict or be inconsistent with or result in any breach of any of the terms,
covenants, conditions or provisions of, or constitute a default under, or (other
than pursuant to the Security Documents (as hereinafter defined)) result in the
creation or imposition of (or the obligation to create or impose) any Lien upon
any of the property or assets of such Guarantor pursuant to the terms of any
indenture, mortgage, deed of trust, credit agreement, loan agreement or any
other material agreement, contract or instrument to which any of the Guarantor
or its subsidiaries is a party or by which it or any of its property or assets
are bound or to which it may be subject or (iii) will violate any provision of
the certificate of incorporation or by-laws (or the equivalent charter
documents) of such Guarantor. In this Guaranty, the term "SECURITY DOCUMENTS"
shall mean the Security Agreement dated as of the even date herewith among the
Borrower, its domestic Subsidiaries and The Bank of New York, as Agent, the
Pledge Agreement dated as of the even date herewith among the Borrower, certain
of its domestic Subsidiaries and The Bank of New York, as Agent, and documents
and instruments delivered thereunder.
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(d) No order, consent, approval, license, authorization or validation
of, or filing, recording or registration with (except as have been obtained or
made on or prior to the date hereof and which remain in full force and effect),
or exemption by, any governmental or public body or authority, or any
subdivision thereof, is required to authorize, or is required in connection
with, (i) the execution, delivery and performance of this Guaranty by such
Guarantor or (ii) the legality, validity, binding effect or enforceability of
this Guaranty.
[THE NEXT PAGE IS THE SIGNATURE PAGE]
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IN WITNESS WHEREOF, the Guarantors have caused this Guaranty to be
executed and delivered as of the date first above written.
GUARANTORS:
XXXXXX, INC.
By: Xxxxxxx X. Xxxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
000 Xxxxx Xxxxxx, XX
Xxxxx 000
Xxx Xxxxxxxx, XX 00000-2702
Attention:
VIRACON/CURVELITE, INC.
By: Xxxxxxx X. Xxxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
000 Xxxx Xxxxx
Xxxxxxxx, XX 00000
Attention:
XXXXXXX INDUSTRIES, INC.
By: Xxxxxxx X. Xxxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
0000 Xxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000-0129
Attention:
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APOGEE WAUSAU GROUP, INC.
By: Xxxxxxx X. Xxxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
0000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attention:
MILCO CONTRACTING, INC.
By: Xxxxxxx X. Xxxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
0000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attention:
THE GLASS DEPOT, INC.
By: Xxxxxxx X. Xxxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
0000 Xxxxx Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000-0000
Attention:
THE GLASS DEPOT OF NY, INC.
By: Xxxxxxx X. Xxxxxxxxxx
--------------------------------
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Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
0000 Xxxxx Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000-0000
Attention:
NORSHIELD CORPORATION
By: Xxxxxxx X. Xxxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
0000 Xxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000-0129
Attention:
VIRACON, INC.
By: Xxxxxxx X. Xxxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
000 Xxxx Xxxxx
Xxxxxxxx, XX 00000
Attention:
VIRATEC THIN FILMS, INC.
By: Xxxxxxx X. Xxxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
-11-
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000-0000
Attention:
TRU VUE, INC.
By: Xxxxxxx X. Xxxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention:
XXXXXX GLASS COMPANY
By: Xxxxxxx X. Xxxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
0000 Xxxxx Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000-0000
Attention:
AMERICAN MANAGEMENT GROUP
By: Xxxxxxx X. Xxxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
0000 Xxxxx Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000-0000
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Attention:
DOVER GLASS COMPANY
By: Xxxxxxx X. Xxxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
0000 Xxxxx Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000-0000
Attention:
XXXXXX, LTD.
By: Xxxxxxx X. Xxxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
Address:
0000 Xxxxxxxxx Xxxxx, #000
Xxxxxxxxxxx, XX 00000
Attention:
-13-
Accepted and agreed to in New York, New York as of the date first above written.
THE BANK OF NEW YORK, as Agent for the
Guaranteed Creditors
By: Xxxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
Address:
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 10286
Attention:
Telephone: (212) ____-______
Facsimile: (000) 000-0000 or 6366
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