EXHIBIT 4.7
$50,000,000
CREDIT AGREEMENT
Dated as of September 23, 1997
among
BINKS XXXXX CORPORATION,
THE INSTITUTIONS FROM TIME TO TIME
PARTIES HERETO AS LENDERS
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Agent
TABLE OF CONTENTS
SECTION PAGE
ARTICLE I: DEFINITIONS
1.1 Certain Defined Terms...............................................................................1
1.2 References.........................................................................................22
1.3 Supplemental Disclosure............................................................................22
ARTICLE II: THE TERM LOAN AND REVOLVING LOAN FACILITIES
2.1. Term Loans.........................................................................................22
2.2 Revolving Loans....................................................................................24
2.3 Swing Line Loans...................................................................................24
2.4 Rate Options for all Advances......................................................................26
2.5 Optional Payments; Mandatory Prepayments...........................................................26
2.6 Reduction of Commitments...........................................................................28
2.7 Method of Borrowing................................................................................28
2.8 Method of Selecting Types and Interest Periods for Advances........................................28
2.9 Minimum Amount of Each Advance.....................................................................28
2.10 Method of Selecting Types and Interest Periods for Conversion and
Continuation of Advances.......................................................................29
2.11 Default Rate......................................................................................29
2.12 Method of Payment.................................................................................29
2.13 Notes.............................................................................................30
2.14 Telephonic Notices................................................................................30
2.15 Promise to Pay; Interest and Commitment Fees; Interest Payment
Dates; Interest and Fee Basis; Taxes; Loan and Control Accounts................................30
2.16 Notification of Advances, Interest Rates, Prepayments and Aggregate
Revolving Loan Commitment Reductions...........................................................35
2.17 Lending Installations.............................................................................35
2.18 Non-Receipt of Funds by the Agent.................................................................36
2.19 Termination Date..................................................................................36
2.20 Replacement of Certain Lenders....................................................................36
ARTICLE III: THE LETTER OF CREDIT FACILITY AND OUTSTANDING
ACCEPTANCES
3.1 Obligation to Issue Letters of Credit..............................................................37
3.2 Types and Amounts of Letters of Credit.............................................................37
3.3 Conditions with respect to Letters of Credit.......................................................38
3.4 Procedure for Issuance of Letters of Credit........................................................38
3.4-A The Outstanding Acceptances......................................................................38
3.5 Participation in Letters of Credit and Outstanding Acceptances.....................................39
3.6 Reimbursement Obligation...........................................................................40
3.7 Credit Support Fees................................................................................40
3.8 Issuing Bank Reporting Requirements................................................................41
i
SECTION PAGE
3.9 Indemnification; Exoneration.......................................................................41
3.10 Cash Collateral...................................................................................42
ARTICLE IV: CHANGE IN CIRCUMSTANCES
4.1 Yield Protection...................................................................................43
4.2 Changes in Capital Adequacy Regulations............................................................44
4.3 Availability of Types of Advances..................................................................44
4.4 Funding Indemnification............................................................................44
4.5 Lender Statements; Survival of Indemnity...........................................................45
ARTICLE V: CONDITIONS PRECEDENT
5.1 Initial Advances and Letters of Credit.............................................................45
5.2 Each Advance and Letter of Credit..................................................................46
ARTICLE VI: REPRESENTATIONS AND WARRANTIES
6.1 Organization; Corporate Powers.....................................................................46
6.2 Authority..........................................................................................47
6.3 No Conflict; Governmental Consents.................................................................47
6.4 Financial Statements...............................................................................48
6.5 No Material Adverse Change.........................................................................48
6.6 Taxes..............................................................................................48
6.7 Litigation; Loss Contingencies and Violations......................................................49
6.8 Subsidiaries.......................................................................................49
6.9 ERISA..............................................................................................50
6.10 Accuracy of Information...........................................................................51
6.11 Securities Activities.............................................................................51
6.12 Material Agreements...............................................................................51
6.13 Compliance with Laws..............................................................................51
6.14 Assets and Properties.............................................................................51
6.15 Statutory Indebtedness Restrictions...............................................................52
6.16 Insurance.........................................................................................52
6.17 Labor Matters.....................................................................................52
6.18 Environmental Matters.............................................................................52
6.19 Solvency..........................................................................................53
ARTICLE VII : COVENANTS
7.1 Reporting..........................................................................................53
7.2 Affirmative Covenants..............................................................................58
7.3 Negative Covenants.................................................................................60
7.4 Financial Covenants................................................................................68
ARTICLE VIII: DEFAULTS
ii
SECTION PAGE
8.1 Defaults...........................................................................................71
ARTICLE IX: ACCELERATION, DEFAULTING LENDERS; WAIVERS,
AMENDMENTS AND REMEDIES
9.1 Termination of Commitments; Acceleration...........................................................75
9.2 Defaulting Lender..................................................................................75
9.3 Amendments.........................................................................................77
9.4 Preservation of Rights.............................................................................78
ARTICLE X: GENERAL PROVISIONS
10.1 Survival of Representations.......................................................................78
10.2 Governmental Regulation...........................................................................78
10.3 Performance of Obligations........................................................................78
10.4 Headings..........................................................................................79
10.5 Entire Agreement..................................................................................79
10.6 Several Obligations; Benefits of this Agreement...................................................79
10.7 Expenses; Indemnification.........................................................................79
10.8 Numbers of Documents..............................................................................81
10.9 Accounting........................................................................................81
10.10 Severability of Provisions.......................................................................81
10.11 Nonliability of Lenders..........................................................................81
10.12 GOVERNING LAW....................................................................................81
10.13 CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL..........................................82
ARTICLE XI: THE AGENT
11.1 Appointment; Nature of Relationship...............................................................83
11.2 Powers............................................................................................83
11.3 General Immunity..................................................................................83
11.4 No Responsibility for Loans, Creditworthiness, Recitals, Etc......................................83
11.5 Action on Instructions of Lenders.................................................................84
11.6 Employment of Agents and Counsel..................................................................84
11.7 Reliance on Documents; Counsel....................................................................84
11.8 The Agent's Reimbursement and Indemnification.....................................................84
11.9 Rights as a Lender................................................................................85
11.10 Lender Credit Decision...........................................................................85
11.11 Successor Agent..................................................................................85
ARTICLE XII: SETOFF; RATABLE PAYMENTS
12.1 Setoff............................................................................................86
12.2 Ratable Payments..................................................................................86
12.3 Application of Payments...........................................................................86
12.4 Relations Among Lenders...........................................................................87
iii
SECTION PAGE
ARTICLE XIII: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
13.1 Successors and Assigns............................................................................88
13.2 Participations....................................................................................88
13.3 Assignments.......................................................................................89
13.4 Confidentiality...................................................................................90
13.5 Dissemination of Information......................................................................91
13.6 Guaranty Terminations and Pledge Releases.........................................................91
ARTICLE XIV: NOTICES
14.1 Giving Notice.....................................................................................91
14.2 Change of Address.................................................................................91
ARTICLE XV: COUNTERPARTS
iv
EXHIBITS AND SCHEDULES
EXHIBITS
EXHIBIT A -- Commitments
(Definitions)
EXHIBIT B-1 -- Form of Revolving Note
(Definitions)
EXHIBIT B-2 -- Form of Swing Line Note
(Definitions)
EXHIBIT B-3 -- Form of Term Note
Definitions
EXHIBIT C -- Form of Borrowing Notice (Section 2.8)
EXHIBIT D -- Form of Request for Letter of Credit (Section 3.3)
EXHIBIT E -- Form of Assignment and Acceptance Agreement
(Sections 2.20 and 13.3)
EXHIBIT F -- Form of Borrower's Counsel's Opinion
(Section 5.1)
EXHIBIT G -- List of Closing Documents
(Section 5.1)
EXHIBIT H -- Form of Officer's Certificate
(Sections 5.2 and 7.1(A)(iii))
EXHIBIT I -- Form of Compliance Certificate
(Sections 5.2 and 7.1(A)(iii))
DISCLOSURE -- Disclosure Letter (Definitions)
LETTER
v
SCHEDULES
Schedule 1.1.1 -- Permitted Existing Contingent Obligations (Definitions)
Schedule 1.1.2 -- Permitted Existing Indebtedness (Definitions)
Schedule 1.1.3 -- Permitted Existing Investments (Definitions)
Schedule 1.1.4 -- Permitted Existing Liens (Definitions)
Schedule 1.1.5 -- Outstanding Acceptances (Definitions)
Schedule 2.15 -- Closing Fees (Section 2.15)
Schedule 3.7 -- Calculation of Commissions on Outstanding Acceptances
(Section 3.7)
Schedule 6.3 -- Conflicts; Governmental Consents (Section 6.3)
Schedule 6.7 -- Litigation; Loss Contingencies (Section 6.7)
Schedule 6.8 -- Subsidiaries (Section 6.8)
Schedule 6.9 -- ERISA (Section 6.9)
Schedule 6.18 -- Environmental Matters (Section 6.18)
vi
CREDIT AGREEMENT
This Credit Agreement dated as of September 23, 1997 is entered into
among Binks Xxxxx Corporation, a Delaware corporation, the institutions from
time to time parties hereto as Lenders, whether by execution of this Agreement
or an Assignment Agreement pursuant to Section 13.3, and The First National Bank
of Chicago, in its capacity as contractual representative for itself and the
other Lenders. The parties hereto agree as follows:
ARTICLE I: DEFINITIONS
1.1 Certain Defined Terms. In addition to the terms defined above, the
following terms used in this Agreement shall have the following meanings,
applicable both to the singular and the plural forms of the terms defined.
As used in this Agreement:
"ACQUISITION" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Borrower or any of its Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any firm, corporation or division thereof,
whether through purchase of assets, merger or otherwise or (ii) directly or
indirectly acquires (in one transaction or as the most recent transaction in a
series of transactions) at least a majority (in number of votes) of the
securities of a corporation which have ordinary voting power for the election of
directors (other than securities having such power only by reason of the
happening of a contingency) or a majority (by percentage of voting power) of the
outstanding equity interests of another Person.
"ADVANCE" means a borrowing hereunder consisting of the aggregate
amount of the several Loans made by the Lenders to the Borrower of the same Type
and, in the case of Eurodollar Rate Advances, for the same Interest Period.
"AFFECTED LENDER" is defined in Section 2.20 hereof.
"ACCEPTANCE OBLIGATIONS" means, as at any date of determinations
thereof, all liabilities of the Borrower as at such date with respect to the
Outstanding Acceptances, including the Borrower's obligation to pay the
outstanding face amount of each Outstanding Acceptance on its Maturity Date.
"AFFILIATE" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person is the
"beneficial owner" (as defined in Rule 13d-3 under the Securities Exchange Act
of 1934) of greater than ten percent (10%) or more of any class of voting
securities (or other voting interests) of the controlled Person or possesses,
directly or
indirectly, the power to direct or cause the direction of the management or
policies of the controlled Person, whether through ownership of Capital Stock,
by contract or otherwise.
"AGENT" means First Chicago in its capacity as contractual
representative for itself and the Lenders pursuant to Article XI hereof and any
successor Agent appointed pursuant to Article XI hereof.
"AGGREGATE REVOLVING LOAN COMMITMENT" means the aggregate of the
Revolving Loan Commitments of all the Lenders, as reduced from time to time
pursuant to the terms hereof. The initial Aggregate Revolving Loan Commitment is
Thirty Million and 00/100 Dollars ($30,000,000.00).
"AGGREGATE TERM LOAN COMMITMENT" means the aggregate of the Term Loan
Commitments of all the Lenders. The Aggregate Term Loan Commitment is Twenty
Million and 00/100 Dollars ($20,000,000.00).
"AGREEMENT" means this Credit Agreement, as it may be amended, restated
or otherwise modified and in effect from time to time.
"AGREEMENT ACCOUNTING PRINCIPLES" means generally accepted accounting
principles as in effect as of the date of this Agreement, applied in a manner
consistent with that used in preparing the financial statements referred to in
Section 6.4(B)(1) hereof, provided, however, that with respect to the
calculation of financial ratios and other financial tests required by this
Agreement, "Agreement Accounting Principles" means generally accepted accounting
principles as in effect as of the date of this Agreement, applied in a manner
consistent with that used in preparing the financial statements referred to in
Section 6.4(A) hereof; provided, further, however, all pro forma financial
statements reflecting Acquisitions shall be prepared in accordance with the
requirements established by the Commission for acquisition accounting for
reporting acquisitions by public companies (whether or not such Acquisitions are
required to be publicly reported).
"ALTERNATE BASE RATE" means, for any day, a fluctuating rate of
interest per annum equal to the higher of (i) the Corporate Base Rate for such
day and (ii) the sum of (a) the Federal Funds Effective Rate for such day and
(b) one-half of one percent (0.5%) per annum.
"APPLICABLE COMMITMENT FEE PERCENTAGE" means, as at any date of
determination, the rate per annum then applicable in the determination of the
amount payable under Section 2.15(C)(i) hereof determined in accordance with the
provisions of Section 2.15(D)(ii) hereof.
"APPLICABLE EURODOLLAR MARGIN" means, as at any date of determination,
the rate per annum then applicable to Eurodollar Rate Loans determined in
accordance with the provisions of Section 2.15(D)(ii) hereof.
2
"APPLICABLE L/C FEE PERCENTAGE" means, as at any date of determination,
a rate per annum equal to the Applicable Eurodollar Margin in effect on such
date.
"ARRANGER"means First Chicago Capital Markets, Inc., in its capacity as
the arranger for the loan transaction evidenced by this Agreement.
"ASSIGNMENT AGREEMENT" shall mean an assignment and acceptance
agreement entered into in connection with an assignment pursuant to Section 13.3
hereof in substantially the form of Exhibit E.
"ASSET SALE" means, with respect to any Person, the sale, lease,
conveyance, disposition or other transfer by such Person of any of its assets
(including by way of a sale-leaseback transaction, and including the sale or
other transfer of any of the Equity Interests of any Subsidiary of such Person)
and expressly excluding the sale of (i) the Borrower's Franklin Park, Illinois
facility and (ii) Binks de Mexico, S.A. de C.V.'s Mexico City facility.
"AUTHORIZED OFFICER" means any of the President or Chief Financial
Officer of the Borrower, acting singly.
"BENEFIT PLAN" means a defined benefit plan as defined in Section 3(35)
of ERISA (other than a Multiemployer Plan) in respect of which the Borrower or
any other member of the Controlled Group is, or within the immediately preceding
six (6) years was, an "employer" as defined in Section 3(5) of ERISA.
"BORROWER" means Binks Xxxxx Corporation, a Delaware corporation,
together with its successors and assigns, including a debtor-in-possession on
behalf of the Borrower.
"BORROWING DATE" means a date on which an Advance or Swing Line Loan is
made hereunder.
"BORROWING NOTICE" is defined in Section 2.8 hereof.
"BUSINESS DAY" means (i) with respect to any borrowing, payment or rate
selection of Loans bearing interest at the Eurodollar Rate, a day (other than a
Saturday or Sunday) on which banks are open for business in Chicago, Illinois
and New York, New York and on which dealings in Dollars are carried on in the
London interbank market and (ii) for all other purposes a day (other than a
Saturday or Sunday) on which banks are open for business in Chicago, Illinois
and New York, New York.
"CAPITAL EXPENDITURES" means, for any period, the aggregate of all
expenditures (whether paid in cash or accrued as liabilities and including
Capitalized Leases and Permitted Purchase Money Indebtedness) by the Borrower
and its Subsidiaries during that period that, in conformity with Agreement
Accounting Principles, are required to be included in or reflected by
3
the property, plant, equipment or similar fixed asset accounts reflected in the
consolidated balance sheet of the Borrower and its Subsidiaries.
"CAPITAL STOCK" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership, partnership
interests (whether general or limited) and (iv) any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person.
"CAPITALIZED LEASE" of a Person means any lease of property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
"CAPITALIZED LEASE OBLIGATIONS" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be capitalized
on a balance sheet of such Person prepared in accordance with Agreement
Accounting Principles.
"CASH EQUIVALENTS" means (i) marketable direct obligations issued or
unconditionally guaranteed by the United States government and backed by the
full faith and credit of the United States government; (ii) domestic and
Eurodollar certificates of deposit and time deposits, bankers' acceptances and
floating rate certificates of deposit issued by any commercial bank organized
under the laws of the United States, any state thereof, the District of
Columbia, any foreign bank, or its branches or agencies (fully protected against
currency fluctuations for any such deposits with a term of more than ninety (90)
days); (iii) shares of money market, mutual or similar funds having assets in
excess of $100,000,000 and the investments of which are limited to investment
grade securities (i.e., securities rated at least Baa by Xxxxx'x Investors
Service, Inc. or at least BBB by Standard & Poor's Corporation); and (iv)
commercial paper of United States and foreign banks and bank holding companies
and their subsidiaries and United States and foreign finance, commercial
industrial or utility companies which, at the time of acquisition, are rated A-1
(or better) by Standard & Poor's Corporation or P-1 (or better) by Xxxxx'x
Investors Services, Inc.; provided that the maturities of such Cash Equivalents
shall not exceed 365 days.
"CHANGE" is defined in Section 4.2 hereof.
"CHANGE OF CONTROL" means an event or series of events by which:
(a) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act), becomes the "beneficial
owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act,
except that a person shall be deemed to have "beneficial ownership" of
all securities that such person has the right to acquire, whether such
right is exercisable immediately or only after the passage of time),
directly or indirectly, of 50%
4
or more of the combined voting power of the Borrower's Capital Stock
ordinarily having the right to vote at an election of directors; or
(b) during any period of twelve (12) consecutive calendar
months, individuals: (i) who were directors of the Borrower on the
first day of such period, or (ii) whose election or nomination for
election to the board of directors of the Borrower was recommended or
approved by at least a majority of the directors then still in office
who were directors of the Borrower on the first day of such period, or
whose election or nomination for election was so approved,
shall cease to constitute a majority of the board of directors of the
Borrower; or
(c) the Borrower consolidates with or merges into another
corporation or conveys, transfers or leases all or substantially all of
its property to any Person, or any corporation consolidates with or
merges into the Borrower, in either event pursuant to a transaction in
which the outstanding Capital Stock of the Borrower is reclassified or
changed into or exchanged for cash, securities or other property.
"CLOSING DATE" means the date on which this Credit Agreement is
executed by the parties hereto.
"CODE" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"COLLATERAL" means any property owned by the Borrower and pledged by
the Borrower to the Agent pursuant to the Pledge Agreements to secure payment
and performance of the Obligations.
"COLLATERAL SHARING AGREEMENT" means that certain Collateral Sharing
Agreement dated of even date herewith among the Agent, the Lenders and the
holders of the Senior Notes, as the same may from time to time be amended,
modified, supplemented and or restated.
"COMMISSION" means the Securities and Exchange Commission and any
Person succeeding to the functions thereof.
"COMMITMENT" means, for each Lender, collectively, such Lender's
Revolving Loan Commitment and Term Loan Commitment.
"CONSOLIDATED TANGIBLE ASSETS" means the total assets of the Borrower
and its Subsidiaries on a consolidated basis, but excluding therefrom all items
that are treated as intangibles under Agreement Accounting Principles.
"CONSOLIDATED TANGIBLE NET WORTH" means, at a particular date, all
amounts which would be included under shareholders' equity for the Borrower and
its consolidated Subsidiaries
5
determined in accordance with Agreement Accounting Principles, excluding all
items properly classified as intangibles in accordance with Agreement Accounting
Principles and calculated without giving effect to any foreign currency
translation adjustments.
"CONTAMINANT" means any waste, pollutant, hazardous substance, toxic
substance, hazardous waste, special waste, petroleum or petroleum-derived
substance or waste, asbestos, polychlorinated biphenyls ("PCBS"), or any
constituent of any such substance or waste, and includes but is not limited to
these terms as defined in Environmental, Health or Safety Requirements of Law.
"CONTINGENT OBLIGATION", as applied to any Person, means any
Contractual Obligation, contingent or otherwise, of that Person with respect to
any Indebtedness of another or other obligation or liability of another,
including, without limitation, any such Indebtedness, obligation or liability of
another directly or indirectly guaranteed, endorsed (otherwise than for
collection or deposit in the ordinary course of business), co-made or discounted
or sold with recourse by that Person, or in respect of which that Person is
otherwise directly or indirectly liable, including Contractual Obligations
(contingent or otherwise) arising through any agreement to purchase, repurchase,
or otherwise acquire such Indebtedness, obligation or liability or any security
therefor, or to provide funds for the payment or discharge thereof (whether in
the form of loans, advances, stock purchases, capital contributions or
otherwise), or to maintain solvency, assets, level of income, or other financial
condition, or to make payment other than for value received.
"CONTRACTUAL OBLIGATION", as applied to any Person, means any material
provision of any equity or debt securities issued by that Person or any
indenture, mortgage, deed of trust, security agreement, pledge agreement,
guaranty, contract, undertaking, agreement or instrument, in any case in
writing, to which that Person is a party or by which it or any of its properties
is bound, or to which it or any of its properties is subject, with obligations
in excess of $5,000,000.
"CONTROLLED GROUP" means the group consisting of (i) any corporation
which is a member of the same controlled group of corporations (within the
meaning of Section 414(b) of the Code) as the Borrower; (ii) a partnership or
other trade or business (whether or not incorporated) which is under common
control (within the meaning of Section 414(c) of the Code) with the Borrower;
and (iii) a member of the same affiliated service group (within the meaning of
Section 414(m) of the Code) as the Borrower, any corporation described in clause
(i) above or any partnership or trade or business described in clause (ii)
above.
"CONTROLLED SUBSIDIARY" of any Person means a Subsidiary of such Person
(i) 90% or more of the total Equity Interests or other ownership interests of
which (other than directors' qualifying shares) shall at the time be owned by
such Person or by one or more wholly-owned Subsidiaries of such Person and (ii)
of which such Person possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies, whether through the ownership
of voting securities, by agreement or otherwise.
"CONVERSION/CONTINUATION NOTICE" is defined in Section 2.10(D) hereof.
6
"CORPORATE BASE RATE" means the corporate base rate of interest
announced by First Chicago from time to time, changing when and as said
corporate base rate changes.
"CREDIT SUPPORT INTEREST" is defined in Section 3.5.
"CREDIT SUPPORT OBLIGATIONS" means, at any time, the sum of (i) all L/C
Obligations outstanding at such time and (ii) the aggregate face amount of all
Outstanding Acceptances outstanding at such time.
"CURE LOAN" is defined in Section 9.2(iii) hereof.
"CUSTOMARY PERMITTED LIENS" means:
(i) Liens (other than Environmental Liens and Liens in favor
of the IRS or the PBGC) with respect to the payment of taxes,
assessments or governmental charges in all cases which are not yet due
or (if foreclosure, distraint, sale or other similar proceedings shall
not have been commenced) which are being contested in good faith by
appropriate proceedings properly instituted and diligently conducted
and with respect to which adequate reserves or other appropriate
provisions are being maintained in accordance with Agreement Accounting
Principles;
(ii) statutory Liens of landlords and Liens of suppliers,
mechanics, carriers, materialmen, warehousemen or workmen and other
similar Liens imposed by law created in the ordinary course of business
for amounts not yet due or which are being contested in good faith by
appropriate proceedings properly instituted and diligently conducted
and with respect to which adequate reserves or other appropriate
provisions are being maintained in accordance with Agreement Accounting
Principles;
(iii) Liens (other than Environmental Liens and Liens in favor
of the IRS or the PBGC) incurred or deposits made in the ordinary
course of business in connection with worker's compensation,
unemployment insurance or other types of social security benefits or to
secure the performance of bids, tenders, sales, contracts (other than
for the repayment of borrowed money), surety, appeal and performance
bonds; provided that (A) all such Liens do not in the aggregate
materially detract from the value of the Borrower's or such
Subsidiary's assets or property taken as a whole or materially impair
the use thereof in the operation of the businesses taken as a whole,
and (B) all Liens securing bonds to stay judgments or in connection
with appeals do not secure at any time an aggregate amount exceeding
$5,000,000;
(iv) Liens arising with respect to zoning restrictions,
easements, licenses, reservations, covenants, rights-of-way, utility
easements, building restrictions and other similar charges or
encumbrances on the use of real property which do not in any case
materially detract from the value of the property subject thereto or
interfere with the ordinary conduct of the business of the Borrower or
any of its Subsidiaries;
7
(v) Liens of attachment or judgment with respect to judgments,
writs or warrants of attachment, or similar process against the
Borrower or any of its Subsidiaries which do not constitute a Default
under Section 8.1(H) hereof; and
(vi) any interest or title of the lessor in the property
subject to any operating lease entered into by the Borrower or any of
its Subsidiaries in the ordinary course of business.
"DEFAULT" means an event described in Article VIII hereof.
"DISCLOSURE LETTER" means that certain disclosure letter dated of even
date herewith issued by the Borrower and addressed to the Agent and the Lenders,
as the same may from time to time be amended, modified, supplemented or restated
with the consent of the Required Lenders.
"DISQUALIFIED STOCK" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the holder thereof, in whole or in part, on or prior to the date
that is 91 days after the Revolving Loan Termination Date.
"DOL" means the United States Department of Labor and any Person
succeeding to the functions thereof.
"DOLLAR" and "$" means dollars in the lawful currency of the United
States.
"EBITDA" means, for any period, on a consolidated basis for the
Borrower and its Subsidiaries, the sum of the amounts for such period, without
duplication, of (i) Net Income, plus (ii) Interest Expense, plus (iii) charges
against income for foreign, federal, state and local taxes to the extent
deducted in computing Net Income, plus (iv) depreciation expense to the extent
deducted in computing Net Income, plus (v) amortization expense, including,
without limitation, amortization of goodwill and other intangible assets to the
extent deducted in computing Net Income, plus (vi) other non-cash charges
classified as long-term deferrals in accordance with Agreement Accounting
Principles to the extent deducted in computing Net Income, plus (vii) other
extraordinary non-cash charges to the extent deducted in computing Net Income
minus (viii) extraordinary non-cash gains to the extent included in computing
Net Income.
"ENVIRONMENTAL, HEALTH OR SAFETY REQUIREMENTS OF LAW" means all
Requirements of Law derived from or relating to foreign, federal, state and
local laws or regulations relating to or addressing pollution or protection of
the environment, or protection of worker health or safety, including, but not
limited to, the Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. ss. 9601 et seq., the Occupational Safety and Health Act of 1970,
29 U.S.C. ss. 651 et seq., and the Resource Conservation and Recovery Act of
1976, 42 U.S.C. ss. 6901 et seq., in each case including any amendments thereto,
any successor statutes, and any regulations or guidance promulgated thereunder,
and any state or local equivalent thereof.
8
"ENVIRONMENTAL LIEN" means a lien in favor of any Governmental
Authority for (a) any liability under Environmental, Health or Safety
Requirements of Law, or (b) damages arising from, or costs incurred by such
Governmental Authority in response to, a Release or threatened Release of a
Contaminant into the environment.
"ENVIRONMENTAL PROPERTY TRANSFER ACT" means any applicable requirement
of law that conditions, restricts, prohibits or requires any notification or
disclosure triggered by the closure of any property or the transfer, sale or
lease of any property or deed or title for any property for environmental
reasons, including, but not limited to, any so-called "Industrial Site Recovery
Act" or "Responsible Property Transfer Act."
"EQUITY INTERESTS" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time including (unless the context otherwise requires) any
rules or regulations promulgated thereunder.
"EURODOLLAR BASE RATE" means, with respect to a Eurodollar Rate Loan
for the relevant Interest Period, (a) the rate at which deposits in Dollars are
offered by First Chicago to first-class banks in the London interbank market at
approximately 11 a.m. (London time) two Business Days prior to the first day of
such Interest Period, in the approximate amounts of the portions of the relevant
Eurodollar Rate Loan of First Chicago, and having a maturity approximately equal
to such Interest Period divided by (b) one minus the Reserve Requirement
(expressed as a decimal) applicable to such Interest Period.
"EURODOLLAR RATE" means, with respect to a Eurodollar Rate Loan for the
relevant Interest Period, the Eurodollar Base Rate applicable to such Interest
Period plus the then Applicable Eurodollar Margin. The Eurodollar Rate shall be
rounded to the next higher multiple of 1/16 of 1% if the rate is not such a
multiple.
"EURODOLLAR RATE ADVANCE" means an Advance which bears interest at the
Eurodollar Rate.
"EURODOLLAR RATE LOAN" means a Loan, or portion thereof, which bears
interest at the Eurodollar Rate.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10:00 a.m. (Chicago
time) on such
9
day on such transactions received by the Agent from three Federal funds brokers
of recognized standing selected by the Agent in its sole discretion.
"FINANCING" means, with respect to any Person, the issuance or sale by
such Person of any Equity Interests of such Person or any Indebtedness
consisting of debt securities of such Person.
"FIRST CHICAGO" means The First National Bank of Chicago, in its
individual capacity, and its successors.
"FIXED CHARGE COVERAGE RATIO" is defined in Section 7.4(A) hereof.
"FLOATING RATE" means, for any day for any Loan, a rate per annum equal
to the Alternate Base Rate for such day, changing when and as the Alternate Base
Rate changes.
"FLOATING RATE ADVANCE" means an Advance which bears interest at the
Floating Rate.
"FLOATING RATE LOAN" means a Loan, or portion thereof, which bears
interest at the Floating Rate.
"GOVERNMENTAL ACTS" is defined in Section 3.9(A) hereof.
"GOVERNMENTAL AUTHORITY" means any nation or government, any federal,
state, local or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"GROSS NEGLIGENCE" means recklessness, or actions taken or omitted with
conscious indifference to or the complete disregard of consequences. Gross
Negligence does not mean the absence of ordinary care or diligence, or an
inadvertent act or inadvertent failure to act. If the term "gross negligence" is
used with respect to the Agent or any Lender or any indemnitee in any of the
other Loan Documents, it shall have the meaning set forth herein.
"GUARANTY" means that certain Guaranty dated of even date herewith
executed by Xxxxx Electrostatic, Inc. in favor of the Agent, for the ratable
benefit of the Lenders, as it may be amended, modified, supplemented and/or
restated (including to add new Guarantors), and as in effect from time to time.
"HEDGING AGREEMENTS" is defined in Section 7.3(Q) hereof.
"HEDGING OBLIGATIONS" of a Person means any and all obligations of such
Person, whether absolute or contingent and howsoever and whensoever created,
arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (i) any and all
agreements, devices or arrangements designed to protect at least one of the
parties thereto from the fluctuations of interest rates, commodity prices,
exchange
10
rates or forward rates applicable to such party's assets, liabilities or
exchange transactions, including, but not limited to, dollar-denominated or
cross-currency interest rate exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements, forward rate
currency or interest rate options, puts and warrants, and (ii) any and all
cancellations, buy backs, reversals, terminations or assignments of any of the
foregoing.
"INDEBTEDNESS" of any Person means, without duplication, such Person's
(a) obligations for borrowed money, (b) obligations representing the deferred
purchase price of property or services (other than accounts payable arising in
the ordinary course of such Person's business payable on terms customary in the
trade), (c) obligations, whether or not assumed, secured by Liens or payable out
of the proceeds or production from property or assets now or hereafter owned or
acquired by such Person, (d) obligations which are evidenced by notes,
acceptances or other instruments, (e) Capitalized Lease Obligations, (f)
Contingent Obligations, (g) obligations with respect to letters of credit, (h)
Hedging Obligations and (i) Off Balance Sheet Liabilities. The amount of
Indebtedness of any Person at any date shall be without duplication (i) the
outstanding balance at such date of all unconditional obligations as described
above and the maximum liability of any such Contingent Obligations at such date
and (ii) in the case of Indebtedness of others secured by a Lien to which the
property or assets owned or held by such Person is subject, the lesser of the
fair market value at such date of any asset subject to a Lien securing the
Indebtedness of others and the amount of the Indebtedness secured.
"INDEMNIFIED MATTERS" is defined in Section 10.7(B) hereof.
"INDEMNITEES" is defined in Section 10.7(B) hereof.
"INTERCREDITOR AGREEMENT" means that certain Intercreditor Agreement
dated of even date herewith among the Lenders, the Agent and the holders of the
Senior Notes, as the same may from time to time be amended, modified,
supplemented and or restated.
"INTEREST EXPENSE" means, for any period, the total interest expense of
the Borrower and its consolidated Subsidiaries, whether paid or accrued
(including the interest component of Capitalized Leases, commitment and letter
of credit fees), but excluding interest expense not payable in cash (including
amortization of discount), all as determined in conformity with Agreement
Accounting Principles.
"INTEREST PERIOD" means, with respect to a Eurodollar Rate Loan, a
period of one (1), two (2), three (3) months or six (6) months commencing on a
Business Day selected by the Borrower pursuant to this Agreement. Such Interest
Period shall end on (but exclude) the day which corresponds numerically to such
date one, two, three or six months thereafter; provided, however, that if there
is no such numerically corresponding day in such next, second, third or sixth
succeeding month, such Interest Period shall end on the last Business Day of
such next, second, third or sixth succeeding month. If an Interest Period would
otherwise end on a day which is not a Business Day, such Interest Period shall
end on the next succeeding Business Day,
11
provided, however, that if said next succeeding Business Day falls in a new
calendar month, such Interest Period shall end on the immediately preceding
Business Day.
"INVESTMENT" means, with respect to any Person, (i) any purchase or
other acquisition by that Person of any Indebtedness, Equity Interests or other
securities, or of a beneficial interest in any Indebtedness, Equity Interests or
other securities, issued by any other Person, (ii) any purchase by that Person
of all or substantially all of the assets of a business conducted by another
Person, and (iii) any loan, advance (other than deposits with financial
institutions available for withdrawal on demand, prepaid expenses, accounts
receivable, advances to employees and similar items made or incurred in the
ordinary course of business) or capital contribution by that Person to any other
Person, including all Indebtedness to such Person arising from a sale of
property by such Person other than in the ordinary course of its business.
"IRS" means the Internal Revenue Service and any Person succeeding to
the functions thereof.
"ISSUING BANKS" means First Chicago, LaSalle National Bank and any
other Lender which, at the Borrower's request, agrees, in each such Lender's
sole discretion, to become an Issuing Bank for the purpose of issuing Letters of
Credit, and their respective successors and assigns, in each case in such
Lender's separate capacity as an issuer of Letters of Credit pursuant to Section
3.1. The designation of any Lender as an Issuing Bank after the date hereof
shall be subject to the prior written consent of the Agent.
"L/C DRAFT" means a draft drawn on an Issuing Bank pursuant to a Letter
of Credit.
"L/C INTEREST" shall have the meaning ascribed to such term in Section
3.5 hereof.
"L/C OBLIGATIONS" means, without duplication, an amount equal to the
sum of (i) the aggregate of the amount then available for drawing under each of
the Letters of Credit, (ii) the face amount of all outstanding L/C Drafts
corresponding to the Letters of Credit, which L/C Drafts have been accepted by
the applicable Issuing Bank, (iii) the aggregate outstanding amount of all
Reimbursement Obligations at such time and (iv) the aggregate face amount of all
Letters of Credit requested by the Borrower but not yet issued (unless the
request for an unissued Letter of Credit has been denied).
"LENDERS" means the lending institutions listed on the signature pages
of this Agreement and their respective successors and assigns.
"LENDING INSTALLATION" means, with respect to a Lender or the Agent,
any office, branch, subsidiary or affiliate of such Lender or the Agent.
"LETTER OF CREDIT" means the letters of credit to be issued by the
Issuing Banks pursuant to Section 3.1 hereof.
12
"LEVERAGE RATIO" is defined in Section 7.4(B) hereof.
"LIEN" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or security agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, the interest of a vendor or lessor
under any conditional sale, Capitalized Lease or other title retention
agreement).
"LOAN(S)" means, with respect to a Lender, such Lender's portion of any
Advance made pursuant to Section 2.1 or Section 2.2 hereof, as applicable, and
in the case of the Swing Line Bank, any Swing Line Loan made pursuant to Section
2.3 hereof, and collectively all Term Loans, Revolving Loans and Swing Line
Loans, whether made or continued as or converted to Floating Rate Loans or
Eurodollar Rate Loans.
"LOAN ACCOUNT" is defined in Section 2.15(F) hereof.
"LOAN DOCUMENTS" means this Agreement, the Notes, the Guaranty, the
Pledge Agreements, the Intercreditor Agreement, the Collateral Sharing
Agreement, the Outstanding Acceptances and all other documents, instruments and
agreements executed in connection therewith or contemplated thereby, as the same
may be amended, restated or otherwise modified and in effect from time to time.
"MARGIN STOCK" shall have the meaning ascribed to such term in
Regulation U.
"MASTER NOTE AGREEMENT" means that certain Master Note Agreement dated
as of November 30, 1993 pursuant to which the Borrower issued the Senior Notes.
"MATERIAL ADVERSE EFFECT" means a material adverse effect upon (a) the
business, condition (financial or otherwise), operations, performance,
properties or prospects of the Borrower and its Subsidiaries, taken as a whole,
(b) the ability of the Borrower or any of its Subsidiaries to perform their
respective obligations under the Loan Documents in any material respect, or (c)
the ability of the Lenders or the Agent to enforce in any material respect the
Obligations.
"MATERIAL SUBSIDIARIES" means Subsidiaries with (i) assets as of any
"Subsidiary Test Date" (as defined herein) in an amount equal to or greater than
$15,000,000 or (ii) year-to-date revenues as of any Subsidiary Test Date in an
amount equal to or greater than $15,000,000. "Subsidiary Test Date" shall mean
(a) for all Subsidiaries, the last day of each fiscal quarter and the last day
of each fiscal year, calculated as of the date of delivery of the financial
statements required to be delivered pursuant to Section 7.1(A)(i) and Section
7.1(A)(ii); and (b) for any Subsidiary which has consummated an Acquisition or
is formed or acquired in connection with an Acquisition, as of the date of the
consummation of such Acquisition.
"MATURITY DATE" shall mean the date with respect to each Outstanding
Acceptance on which such Outstanding Acceptance matures as specified on Schedule
1.1.5.
13
"MULTIEMPLOYER PLAN" means a "Multiemployer Plan" as defined in Section
4001(a)(3) of ERISA which is, or within the immediately preceding six (6) years
was, contributed to by either the Borrower or any member of the Controlled
Group.
"NET CASH PROCEEDS" means, with respect to any Asset Sale by any
Person, (a) cash (freely convertible into Dollars) received by such Person or
any Subsidiary of such Person from such Asset Sale (including cash received as
consideration for the assumption or incurrence of liabilities incurred in
connection with or in anticipation of such Asset Sale), after (i) provision for
all income or other taxes measured by or resulting from such Asset Sale, (ii)
payment of all brokerage commissions and other fees and expenses related to such
Asset Sale, (iii) all amounts used to repay Indebtedness secured by a Lien on
any asset disposed of in such Asset Sale or which is or may be required (by the
express terms of the instrument governing such Indebtedness) to be repaid in
connection with such Asset Sale (including payments made to obtain or avoid the
need for the consent of any holder of such Indebtedness), and (iv) deduction of
appropriate amounts to be provided by such Person or a Subsidiary of such Person
as a reserve, in accordance with Agreement Accounting Principles, against any
liabilities associated with the assets sold or disposed of in such Asset Sale
and retained by such Person or a Subsidiary of such Person after such Asset
Sale, including, without limitation, pension and other post- employment benefit
liabilities and liabilities related to environmental matters or against any
indemnification obligations associated with the assets sold or disposed of in
such Asset Sale; and (b) cash payments in respect of any other consideration
received by such Person or any Subsidiary of such Person from such Asset Sale
upon receipt of such cash payments by such Person or such Subsidiary.
"NET INCOME" means, for any period, the net earnings (or loss) after
taxes of the Borrower and its Subsidiaries on a consolidated basis for such
period taken as a single accounting period determined in conformity with
Agreement Accounting Principles.
"NON PRO RATA LOAN" is defined in Section 9.2 hereof.
"NOTES" means the Revolving Notes, Swing Line Notes and Term Notes.
"NOTICE OF ASSIGNMENT" is defined in Section 13.3(B) hereof.
"OBLIGATIONS" means all Loans, Credit Support Obligations, advances,
debts, liabilities, obligations, covenants and duties owing by the Borrower to
the Agent, any Lender, the Swing Line Bank, the Arranger, any Affiliate of the
Agent or any Lender, or any Indemnitee, of any kind or nature, present or
future, arising under this Agreement, the Notes or any other Loan Document,
whether or not evidenced by any note, guaranty or other instrument, whether or
not for the payment of money, whether arising by reason of an extension of
credit, loan, guaranty, indemnification, or in any other manner, whether direct
or indirect (including those acquired by assignment), absolute or contingent,
due or to become due, now existing or hereafter arising and however acquired.
The term includes, without limitation, all interest, charges, expenses, fees,
14
attorneys' fees and disbursements, paralegals' fees (in each case whether or not
allowed), and any other sum chargeable to the Borrower under this Agreement or
any other Loan Document.
"OFF BALANCE SHEET LIABILITIES" of a Person means (a) any repurchase
obligation or liability of such Person or any of its Subsidiaries with respect
to accounts or notes receivable sold by such Person or any of its Subsidiaries,
(b) any liability under any sale and leaseback transactions which do not create
a liability on the consolidated balance sheet of such Person, (c) any liability
under any financing lease or so-called "synthetic" lease transaction, or (d) any
obligations arising with respect to any other transaction which is the
functional equivalent of or takes the place of borrowing but which does not
constitute a liability on the consolidated balance sheets of such Person and its
Subsidiaries.
"OTHER TAXES" is defined in Section 2.15(E)(ii) hereof.
"OUTSTANDING ACCEPTANCES" means the acceptances with one or more of the
Lenders or their Affiliates in connection with which the Borrower is indebted as
of the Closing Date as set forth on Schedule 1.1.5.
"PARTICIPANTS" is defined in Section 13.2(A) hereof.
"PAYMENT DATE" means the 15th day of each month.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"PERMITTED ACQUISITION" is defined in Section 7.3(G) hereof.
"PERMITTED EXISTING CONTINGENT OBLIGATIONS" means the Contingent
Obligations of the Borrower and its Subsidiaries identified as such on Schedule
1.1.1.
"PERMITTED EXISTING INDEBTEDNESS" means the Indebtedness of the
Borrower and its Subsidiaries identified as such on Schedule 1.1.2 to this
Agreement.
"PERMITTED EXISTING INVESTMENTS" means the Investments of the Borrower
and its Subsidiaries identified as such on Schedule 1.1.3 to this Agreement.
"PERMITTED EXISTING LIENS" means the Liens on assets of the Borrower
and its Subsidiaries identified as such on Schedule 1.1.4 to this Agreement.
"PERMITTED PURCHASE MONEY INDEBTEDNESS" is defined in Section
7.3(A)(viii) hereof.
"PERMITTED REFINANCING INDEBTEDNESS" means any replacement, renewal,
refinancing or extension of any Indebtedness permitted by this Agreement that
(i) does not exceed the aggregate principal amount (plus accrued interest and
any applicable premium and associated fees and expenses) of the Indebtedness
being replaced, renewed, refinanced or extended, (ii) does not have
15
a Weighted Average Life to Maturity at the time of such replacement, renewal,
refinancing or extension that is less than the Weighted Average Life to Maturity
of the Indebtedness being replaced, renewed, refinanced or extended, (iii) does
not rank at the time of such replacement, renewal, refinancing or extension
senior to the Indebtedness being replaced, renewed, refinanced or extended, and
(iv) does not contain terms (including, without limitation, terms relating to
security, amortization, interest rate, premiums, fees, covenants, event of
default and remedies) materially less favorable to the Borrower or to the
Lenders than those applicable to the Indebtedness being replaced, renewed,
refinanced or extended.
"PERMITTED SUBORDINATED INDEBTEDNESS" is defined in Section 7.3(A)(x)
"PERSON" means any individual, corporation, firm, enterprise,
partnership, trust, incorporated or unincorporated association, joint venture,
joint stock company, limited liability company or other entity of any kind, or
any government or political subdivision or any agency, department or
instrumentality thereof.
"PLAN" means an employee benefit plan defined in Section 3(3) of ERISA
in respect of which the Borrower or any member of the Controlled Group is, or
within the immediately preceding six (6) years was, an "employer" as defined in
Section 3(5) of ERISA.
"PLEDGE AGREEMENTS" shall mean the pledge agreements from time to time
executed pursuant to the terms of clause (i) and clause (iii) of Section 7.2(K),
as the same may from time to time be amended, modified, supplemented or
restated.
"PRIOR ACCEPTANCE AGREEMENTS" is defined in Section 3.4-A.
"PRO RATA SHARE" means, with respect to any Lender, (i) at any time
prior to the Closing Date, the percentage obtained by dividing (A) such Lender's
Commitments at such time (in each case, as adjusted from time to time in
accordance with the provisions of this Agreement) by (B) the sum of the
Aggregate Term Loan Commitment and the Aggregate Revolving Loan Commitment at
such time and (ii) at any time after the Closing Date, the percentage obtained
by dividing (A) the sum of such Lender's Term Loan and Revolving Loan Commitment
at such time (in each case, as adjusted from time to time in accordance with the
provisions of this Agreement) by (B) the sum of the aggregate amount of all of
the Term Loans and the Aggregate Revolving Loan Commitment at such time;
provided, however, if all of the Commitments are terminated pursuant to the
terms of this Agreement, then "Pro Rata Share" means the percentage obtained by
dividing (x) the sum of such Lender's Term Loan, Revolving Loans, Credit Support
Obligations and, in the case of the Swing Line Bank, Swing Lines Loans, by (y)
the aggregate amount of all Term Loans, Revolving Loans, Credit Support
Obligations and Swing Line Loans.
"PURCHASERS" is defined in Section 13.3(A) hereof.
"RATE OPTION" means the Eurodollar Rate or the Floating Rate.
16
"REGISTER" is defined in Section 13.3(C) hereof.
"REGULATION G" means Regulation G of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by nonbank, nonbroker lenders for the purpose of purchasing
or carrying margin stock (as defined therein).
"REGULATION T" means Regulation T of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by and to brokers and dealers of securities for the purpose
of purchasing or carrying margin stock (as defined therein).
"REGULATION U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks for the purpose of purchasing or carrying Margin
Stock applicable to member banks of the Federal Reserve System.
"REGULATION X" means Regulation X of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by foreign lenders for the purpose of purchasing or carrying
margin stock (as defined therein).
"REIMBURSEMENT OBLIGATION" is defined in Section 3.6 hereof.
"RELEASE" means any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the indoor or outdoor environment, including the movement of Contaminants
through or in the air, soil, surface water or groundwater.
"RENTALS" of a Person means the aggregate fixed amounts payable by such
Person under any lease of real or personal property but does not include any
amounts payable under Capitalized Leases of such Person.
"REPLACEMENT LENDER" is defined in Section 2.20 hereof.
"REPORTABLE EVENT" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within 30 days after
such event occurs, provided, however, that a failure to meet the minimum funding
standards of Section 412 of the Code and of Section 302 of ERISA shall be a
Reportable Event regardless of the issuance of any such waiver of the notice
requirement in accordance with either Section 4043(a) of ERISA or Section 412(d)
of the Code.
17
"REQUIRED LENDERS" means Lenders whose Pro Rata Shares, in the
aggregate, are greater than fifty percent (50%); provided, however, that, if any
of the Lenders shall have failed to fund its Pro Rata Share of (i) any Revolving
Loan requested by the Borrower, (ii) any Revolving Loan required to be made in
connection with reimbursement for any Credit Support Obligations or (iii) any
Swing Line Loan as requested by the Agent, which such Lenders are obligated to
fund under the terms of this Agreement and any such failure has not been cured,
then for so long as such failure continues, "REQUIRED LENDERS" means Lenders
(excluding all Lenders whose failure to fund their respective Pro Rata Shares of
such Revolving Loans or Swing Line Loans has not been so cured) whose Pro Rata
Shares represent greater than fifty percent (50%) of the aggregate Pro Rata
Shares of such Lenders; provided further, however, that, if the Commitments have
been terminated pursuant to the terms of this Agreement, "REQUIRED LENDERS"
means Lenders (without regard to such Lenders' performance of their respective
obligations hereunder) whose aggregate ratable shares (stated as a percentage)
of the aggregate outstanding principal balance of all Loans and Credit Support
Obligations are greater than fifty percent (50%).
"REQUIREMENTS OF LAW" means, as to any Person, the charter and by-laws
or other organizational or governing documents of such Person, and any law, rule
or regulation, or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is subject
including, without limitation, the Securities Act of 1933, the Securities
Exchange Act of 0000, Xxxxxxxxxxx X, X, U and X, ERISA, the Fair Labor Standards
Act, the Worker Adjustment and Retraining Notification Act, Americans with
Disabilities Act of 1990, and any certificate of occupancy, zoning ordinance,
building, environmental or land use requirement or permit or environmental,
labor, employment, occupational safety or health law, rule or regulation,
including Environmental, Health or Safety Requirements of Law.
"RESERVE REQUIREMENT" shall mean the maximum reserve requirement, as
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) with respect to "Eurocurrency liabilities" or in respect of any other
category of liabilities which includes deposits by reference to which the
interest rate on Eurodollar Rate Loans is determined or category of extensions
of credit or other assets which includes loans by a non-United States office of
any Lender to United States residents.
"RESTRICTED PAYMENT" means (i) any dividend or other distribution,
direct or indirect, on account of any Equity Interests of the Borrower now or
hereafter outstanding, except a dividend payable solely in the Borrower's
Capital Stock (other than Disqualified Stock) or in options, warrants or other
rights to purchase such Capital Stock, (ii) any redemption, retirement, purchase
or other acquisition for value, direct or indirect, of any Equity Interests of
the Borrower or any of its Subsidiaries now or hereafter outstanding, other than
in exchange for, or out of the proceeds of, the substantially concurrent sale
(other than to a Subsidiary of the Borrower) of other Equity Interests of the
Borrower (other than Disqualified Stock), (iii) any redemption, purchase,
retirement, defeasance, prepayment or other acquisition for value, direct or
indirect, of any Indebtedness other than the Obligations, and (iv) any payment
of a claim for the rescission of the purchase or sale of, or for material
damages arising from the purchase or sale of, any
18
Indebtedness (other than the Obligations) or any Equity Interests of the
Borrower or any of the Borrower's Subsidiaries, or of a claim for reimbursement,
indemnification or contribution arising out of or related to any such claim for
damages or rescission.
"REVOLVING CREDIT AVAILABILITY" means, at any particular time, the
amount by which the Aggregate Revolving Loan Commitment at such time exceeds the
Revolving Credit Obligations at such time.
"REVOLVING CREDIT OBLIGATIONS" means, at any particular time, the sum
of (i) the outstanding principal amount of the Revolving Loans at such time,
plus (ii) the outstanding principal amount of the Swing Line Loans at such time,
plus (iii) the outstanding Credit Support Obligations at such time.
"REVOLVING LOAN" is defined in Section 2.2 hereof.
"REVOLVING LOAN COMMITMENT" means, for each Lender, the obligation of
such Lender to make Revolving Loans and to purchase participations in Letters of
Credit and Outstanding Acceptances not exceeding the amount set forth on Exhibit
A to this Agreement opposite its name thereon under the heading "Revolving Loan
Commitment" or the signature page of the assignment and acceptance by which it
became a Lender, as such amount may be modified from time to time pursuant to
the terms of this Agreement or to give effect to any applicable assignment and
acceptance.
"REVOLVING LOAN TERMINATION DATE" means September 23, 2002.
"REVOLVING NOTE" means a promissory note, in substantially the form of
Exhibit B-1 hereto, duly executed by the Borrower and payable to the order of a
Lender in the amount of its Revolving Loan Commitment, including any amendment,
restatement, modification, renewal or replacement of such Revolving Note.
"RISK-BASED CAPITAL GUIDELINES" is defined in Section 4.2 hereof.
"SENIOR NOTES" means those certain Senior Notes due December 6, 2008,
issued by the Borrower in the aggregate principal amount of $15,000,000 pursuant
to the Master Note Agreement.
"SHARE REPURCHASE" is defined in Section 6.4(A).
"SINGLE EMPLOYER PLAN" means a Plan maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower or any member of
the Controlled Group.
"SOLVENT" shall mean, when used with respect to any Person, that at the
time of determination:
19
(i) the fair value of its assets (both at fair valuation and at present
fair saleable value) is equal to or in excess of the total amount of its
liabilities, including, without limitation, contingent liabilities; and
(ii) it is then able and expects to be able to pay its debts as they
mature; and
(iii) it has capital sufficient to carry on its business as conducted
and as proposed to be conducted.
With respect to contingent liabilities (such as litigation, guarantees and
pension plan liabilities), such liabilities shall be computed at the amount
which, in light of all the facts and circumstances existing at the time,
represent the amount which can be reasonably be expected to become an actual or
matured liability.
"SUBORDINATED INDEBTEDNESS" means any Indebtedness of the Borrower or
any Subsidiary of the Borrower, the payment of which is subordinated to payment
of the Obligations to the written satisfaction of the Agent.
"SUBSIDIARY" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(ii) any partnership, association, joint venture or similar business
organization more than 50% of the ownership interests having ordinary voting
power of which shall at the time be so owned or controlled. Unless otherwise
expressly provided, all references herein to a "Subsidiary" shall mean a
Subsidiary of the Borrower.
"SWING LINE BANK" means First Chicago or any other Lender as a
successor Swing Line Bank.
"SWING LINE COMMITMENT" means the obligation of the Swing Line Bank to
make Swing Line Loans up to a maximum of $3,000,000 at any one time outstanding.
"SWING LINE LOAN" means a Loan made available to the Borrower by the
Swing Line Bank pursuant to Section 2.3 hereof.
"SWING LINE NOTE" means a promissory note, in substantially the form of
Exhibit B-2 hereto, duly executed by the Borrower and payable to the order of
the Swing Line Bank in the amount of its Swing Line Commitment, including any
amendment, restatement, modification, renewal or replacement of such Swing Line
Note.
"TAXES" is defined in Section 2.15(E)(i) hereof.
20
"TERMINATION DATE" means the earlier of (a) the Revolving Loan
Termination Date, and (b) the date of termination of the Aggregate Revolving
Loan Commitment pursuant to Section 2.6 hereof or the Commitments pursuant to
Section 9.1 hereof.
"TERMINATION EVENT" means (i) a Reportable Event with respect to any
Benefit Plan; (ii) the withdrawal of the Borrower or any member of the
Controlled Group from a Benefit Plan during a plan year in which the Borrower or
such Controlled Group member was a "substantial employer" as defined in Section
4001(a)(2) of ERISA or the cessation of operations which results in the
termination of employment of twenty percent (20%) of Benefit Plan participants
who are employees of the Borrower or any member of the Controlled Group; (iii)
the imposition of an obligation on the Borrower or any member of the Controlled
Group under Section 4041 of ERISA to provide affected parties written notice of
intent to terminate a Benefit Plan in a distress termination described in
Section 4041(c) of ERISA; (iv) the institution by the PBGC of proceedings to
terminate a Benefit Plan; (v) any event or condition which might constitute
grounds under Section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, any Benefit Plan; or (vi) the partial or complete
withdrawal of the Borrower or any member of the Controlled Group from a
Multiemployer Plan.
"TERM LOAN" is defined in Section 2.1(A) hereof.
"TERM LOAN COMMITMENT" means, for each Lender, the obligation of such
Lender to make its Term Loan pursuant to the terms and conditions of this
Agreement, and which shall not exceed the principal amount set forth on Exhibit
A to this Agreement opposite its name thereon under the heading "Term Loan
Commitment", as such amount may be modified from time to time pursuant to the
terms hereof.
"TERM LOAN TERMINATION DATE" means November 30, 2002.
"TERM NOTE" means a promissory note, in substantially the form of
Exhibit B-3 hereto, duly executed by the Borrower and payable to the order of a
Lender in the amount of its Term Loan Commitment, including any amendment,
restatement, modification, renewal or replacement of such Term Note.
"TRANSFEREE" is defined in Section 13.5 hereof.
"TYPE" means, with respect to any Loan, its nature as a Floating Rate
Loan or a Eurodollar Rate Loan.
"UNFUNDED LIABILITIES" means (i) in the case of Single Employer Plans,
the amount (if any) by which the present value of all vested nonforfeitable
benefits under all Single Employer Plans exceeds the fair market value of all
such Plan assets allocable to such benefits, all determined as of the then most
recent valuation date for such Plans, and (ii) in the case of Multiemployer
Plans, the withdrawal liability that would be incurred by the Controlled Group
if all members of the Controlled Group completely withdrew from all
Multiemployer Plans.
21
"UNMATURED DEFAULT" means an event which, but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"WEIGHTED AVERAGE LIFE TO MATURITY" means when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then outstanding principal
amount of such Indebtedness.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms. Any accounting terms used in
this Agreement which are not specifically defined herein shall have the meanings
customarily given them in accordance with generally accepted accounting
principles in existence as of the date hereof.
1.2 References. The existence throughout the Agreement of references to
the Borrower's Subsidiaries is for a matter of convenience only. Any references
to Subsidiaries of the Borrower set forth herein shall not in any way be
construed as consent by the Agent or any Lender to the establishment,
maintenance or acquisition of any Subsidiary, except as may otherwise be
permitted hereunder. In addition, NBD Bank (formerly known as NBD Bank, N.A.)
("NBD") is a party to this Agreement solely for the purpose of the Outstanding
Acceptances created by it. Any references to Lenders set forth herein shall
refer to NBD solely in such capacity and shall not in any way be construed as an
agreement by NBD to make any Loans or participate in any Letters of Credit.
1.3 Supplemental Disclosure. At any time at the request of the Agent
and at such additional times as the Borrower determines, the Borrower shall
supplement each schedule or representation herein or in the other Loan Documents
with respect to any matter hereafter arising which, if existing or occurring at
the date of this Agreement, would have been required to be set forth or
described in such schedule or as an exception to such representation or which is
necessary to correct any information in such schedule or representation which
has been rendered inaccurate thereby. Unless any such supplement to such
schedule or representation discloses the existence or occurrence of events,
facts or circumstances which are not prohibited by the terms of this Agreement
or any other Loan Documents, such supplement to such schedule or representation
shall not be deemed an amendment thereof unless expressly consented to in
writing by Agent and the Required Lenders, and no such amendments, except as the
same may be consented to in a writing which expressly includes a waiver, shall
be or be deemed a waiver by the Agent or any Lender of any Default disclosed
therein.
ARTICLE II: THE TERM LOAN AND REVOLVING LOAN FACILITIES
22
2.1. Term Loans. (A) Amount of Term Loans. Subject to the terms and
conditions set forth in this Agreement, each Lender on the date that is not
later than five (5) Business Days following the Closing Date and as specified in
the applicable Borrowing Notice severally and not jointly agrees to make on the
specified date, a term loan, in Dollars, to the Borrower in an amount equal to
such Lender's Term Loan Commitment (each individually, a "TERM LOAN" and,
collectively, the "TERM LOANS"). All Term Loans shall be made by the Lenders on
the specified date for borrowing simultaneously and proportionately to their
respective Pro Rata Shares, it being understood that no Lender shall be
responsible for any failure by any other Lender to perform its obligation to
make any Term Loan hereunder nor shall the Term Loan Commitment of any Lender be
increased or decreased as a result of any such failure.
(B) Borrowing Notice. The Borrower shall deliver to the Agent a
Borrowing Notice, signed by it, on the Closing Date. Such Borrowing Notice shall
specify (i) the aggregate amount of the Term Loans, (ii) instructions for the
disbursement of the proceeds of the Term Loans and (iii) the date on which the
Term Loans are to be made, which date shall not be later than five (5) Business
Days following the Closing Date. The Term Loans shall initially be Floating Rate
Loans and thereafter may be continued as Floating Rate Loans or converted into
Eurodollar Rate Loans in the manner provided in Section 2.10 and subject to the
other conditions and limitations therein set forth and set forth in this Article
II. Any Borrowing Notice given pursuant to this Section 2.1(B) shall be
irrevocable.
(C) Making of Term Loans. Promptly after receipt of the Borrowing
Notice under Section 2.1(B) in respect of the Term Loans, the Agent shall notify
each Lender by telex or telecopy, or other similar form of transmission, of the
proposed Advance. Each Lender shall deposit an amount equal to its Pro Rata
Share of the Term Loans with the Agent at its office in Chicago, Illinois, in
immediately available funds, on the date specified in the Borrowing Notice.
Subject to the fulfillment of the conditions precedent set forth in Sections 5.1
and 5.2, the Agent shall make the proceeds of such amounts received by it
available to the Borrower at the Agent's office in Chicago, Illinois on such
date and shall disburse such proceeds in accordance with the Borrower's
disbursement instructions set forth in such Borrowing Notice. The failure of any
Lender to deposit the amount described above with the Agent on the specified
date shall not relieve any other Lender of its obligations hereunder to make its
Term Loan on the Closing Date.
(D) Repayment of the Term Loans. (i) The Term Loans shall be repaid in
eighteen (18) consecutive quarterly installments, payable on the last Business
Day of each fiscal quarter of the Borrower, commencing on August 31, 1998 and
continuing thereafter until the Term Loan Termination Date, and the Term Loans
shall be permanently reduced by the amount of each installment on the date
payment thereof is made hereunder. The installments shall be in the aggregate
amounts set forth below:
INSTALLMENT DATE INSTALLMENT AMOUNT
August 31, 1998 $1,000,000
November 30, 1998 $1,000,000
23
February 28, 1999 $1,000,000
May 31, 1999 $1,000,000
August 31, 1999 $1,000,000
November 30, 1999 $1,000,000
February 29, 2000 $1,000,000
May 31, 2000 $1,000,000
August 31, 2000 $1,000,000
November 30, 2000 $1,000,000
February 28, 2001 $1,000,000
May 31, 2001 $1,000,000
August 31, 2001 $1,000,000
November 30, 2001 $1,000,000
February 28, 2002 $1,500,000
May 31, 2002 $1,500,000
August 31, 2002 $1,500,000
November 30, 2002 $1,500,000
Notwithstanding the foregoing, the final installment shall be in the amount of
the then outstanding principal balance of the Term Loans. In addition, the then
outstanding principal balance of the Term Loans, if any, shall be due and
payable on the Termination Date. No installment of any Term Loan shall be
reborrowed once repaid.
(ii) In addition to the scheduled payments on the Term Loans, the
Borrower (a) may make the voluntary prepayments described in Section 2.5(A) for
credit against the scheduled payments on the Term Loans pursuant to Section
2.5(A) and (b) shall make the mandatory prepayments prescribed in Section 2.5(B)
for credit against the scheduled payments on the Term Loans pursuant to Section
2.5(B).
2.2 Revolving Loans. Upon the satisfaction of the conditions precedent
set forth in Sections 5.1 and 5.2, from and including the date of this Agreement
and prior to the Termination Date, each Lender severally and not jointly agrees,
on the terms and conditions set forth in this Agreement, to make revolving loans
to the Borrower from time to time, in Dollars, in an amount not to exceed such
Lender's Pro Rata Share of Revolving Credit Availability at such time (each
individually, a "REVOLVING LOAN" and, collectively, the "REVOLVING LOANS");
provided, however, at no time shall the Revolving Credit Obligations exceed the
Aggregate Revolving Loan Commitment. Subject to the terms of this Agreement, the
Borrower may borrow, repay and reborrow Revolving Loans at any time prior to the
Termination Date. The Revolving Loans made on the Closing Date shall initially
be Floating Rate Loans and thereafter may be continued as Floating Rate Loans or
converted into Eurodollar Rate Loans in the manner provided in Section 2.10 and
subject to the other conditions and limitations therein set forth and set forth
in
24
this Article II. On the Termination Date, the Borrower shall repay in full the
outstanding principal balance of the Revolving Loans. Each Advance under this
Section 2.2 shall consist of Revolving Loans made by each Lender ratably in
proportion to such Lender's respective Pro Rata Share.
2.3 Swing Line Loans. (A) Amount of Swing Line Loans. Upon the
satisfaction of the conditions precedent set forth in Section 5.1 and 5.2, from
and including the date of this Agreement and prior to the Termination Date, the
Swing Line Bank agrees, on the terms and conditions set forth in this Agreement,
to make swing line loans to the Borrower from time to time, in Dollars, in an
amount not to exceed the Swing Line Commitment (each, individually, a "SWING
LINE LOAN" and collectively, the "SWING LINE LOANS"); provided, however, at no
time shall the Revolving Credit Obligations exceed the Aggregate Revolving Loan
Commitment; and provided, further, that at no time shall the sum of (a) the
outstanding amount of the Swing Line Loans, plus (b) the outstanding amount of
Revolving Loans made by the Swing Line Bank pursuant to Section 2.2, exceed the
Swing Line Bank's Revolving Loan Commitment at such time. Subject to the terms
of this Agreement, the Borrower may borrow, repay and reborrow Swing Line Loans
at any time prior to the Termination Date.
(B) Borrowing Notice. The Borrower shall deliver to the Agent and the
Swing Line Bank a Borrowing Notice, signed by it, not later than 12:00 noon
(Chicago time) on the Borrowing Date of each Swing Line Loan, specifying (i) the
applicable Borrowing Date (which shall be a Business Day), and (ii) the
aggregate amount of the requested Swing Line Loan which shall be an amount not
less than $100,000. The Swing Line Loans shall at all times be Floating Rate
Loans.
(C) Making of Swing Line Loans. Promptly after receipt of the Borrowing
Notice under Section 2.3(B) in respect of Swing Line Loans, the Agent shall
notify each Lender by telex or telecopy, or other similar form of transmission,
of the requested Swing Line Loan. Not later than 2:00 p.m. (Chicago time) on the
applicable Borrowing Date, the Swing Line Bank shall make available its Swing
Line Loan, in funds immediately available in Chicago to the Agent at its address
specified pursuant to Article XIV. The Agent will promptly make the funds so
received from the Swing Line Bank available to the Borrower at the Agent's
aforesaid address.
(D) Repayment of Swing Line Loans. The Swing Line Loans shall be
evidenced by the Swing Line Note, and each Swing Line Loan shall be paid in full
by the Borrower on or before the thirtieth Business Day after the Borrowing Date
for such Swing Line Loan. The Borrower may at any time pay, without penalty or
premium, all outstanding Swing Line Loans or, in a minimum amount and increments
of $100,000, any portion of the outstanding Swing Line Loans, upon notice to the
Agent and the Swing Line Bank. In addition, the Agent (i) may at any time in its
sole discretion with respect to any outstanding Swing Line Loan, or (ii) shall
on the thirtieth Business Day after the Borrowing Date of any Swing Line Loan,
require each Lender (including the Swing Line Bank) to make a Revolving Loan in
the amount of such Lender's Pro Rata Share of such Swing Line Loan, for the
purpose of repaying such Swing Line Loan. Not later than 2:00 p.m. (Chicago
time) on the date of any notice received pursuant to this Section 2.3(D), each
25
Lender shall make available its required Revolving Loan or Revolving Loans, in
funds immediately available in Chicago to the Agent at its address specified
pursuant to Article XIV. Revolving Loans made pursuant to this Section 2.3(D)
shall initially be Floating Rate Loans and thereafter may be continued as
Floating Rate Loans or converted into Eurodollar Rate Loans in the manner
provided in Section 2.10 and subject to the other conditions and limitations
therein set forth and set forth in this Article II. Unless a Lender shall have
notified the Swing Line Bank, prior to its making any Swing Line Loan, that any
applicable condition precedent set forth in Sections 5.1 and 5.2 had not then
been satisfied, such Lender's obligation to make Revolving Loans pursuant to
this Section 2.3(D) to repay Swing Line Loans shall be unconditional,
continuing, irrevocable and absolute and shall not be affected by any
circumstances, including, without limitation, (a) any set-off, counterclaim,
recoupment, defense or other right which such Lender may have against the Agent,
the Swing Line Bank or any other Person, (b) the occurrence or continuance of a
Default or Unmatured Default, (c) any adverse change in the condition (financial
or otherwise) of the Borrower, or (d) any other circumstances, happening or
event whatsoever. In the event that any Lender fails to make payment to the
Agent of any amount due under this Section 2.3(D), the Agent shall be entitled
to receive, retain and apply against such obligation the principal and interest
otherwise payable to such Lender hereunder until the Agent receives such payment
from such Lender or such obligation is otherwise fully satisfied. In addition to
the foregoing, if for any reason any Lender fails to make payment to the Agent
of any amount due under this Section 2.3(D), such Lender shall be deemed, at the
option of the Agent, to have unconditionally and irrevocably purchased from the
Swing Line Bank, without recourse or warranty, an undivided interest and
participation in the applicable Swing Line Loan in the amount of such Revolving
Loan, and such interest and participation may be recovered from such Lender
together with interest thereon at the Federal Funds Effective Rate for each day
during the period commencing on the date of demand and ending on the date such
amount is received. On the Termination Date, the Borrower shall repay in full
the outstanding principal balance of the Swing Line Loans.
2.4 Rate Options for all Advances. The Revolving Loans and Term Loans
may be Floating Rate Advances or Eurodollar Rate Advances, or a combination
thereof, selected by the Borrower in accordance with Section 2.10. The Borrower
may select, in accordance with Section 2.10, Rate Options and Interest Periods
applicable to portions of the Revolving Loans and the Term Loans; provided that
there shall be no more than ten (10) Interest Periods in effect with respect to
all of the Loans at any time. The Swing Line Loans shall at all times be
Floating Rate Loans.
2.5 Optional Payments; Mandatory Prepayments.
(A) Optional Payments. The Borrower may from time to time repay or
prepay, without penalty or premium all or any part of outstanding Floating Rate
Advances; provided, that the Borrower may not so prepay Floating Rate Advances
consisting of Term Loans unless it shall have provided at least one Business
Day's written notice to the Agent of such prepayment. Eurodollar Rate Advances
may be voluntarily repaid or prepaid prior to the last day of the applicable
Interest Period, subject to the indemnification provisions contained in Section
4.4,
26
provided, that the Borrower may not so prepay Eurodollar Rate Advances unless it
shall have provided at least three Business Days' written notice to the Agent of
such prepayment. Unless the aggregate outstanding principal balance of the Term
Loans is to be prepaid in full, voluntary prepayments of the Term Loans shall be
in an aggregate minimum amount of $500,000 and integral multiples of $100,000 in
excess of that amount, and shall be applied to each of the then remaining
installments payable thereunder, on a ratable basis based upon the respective
amounts of such installments.
(B) Mandatory Prepayments.
(i) Mandatory Prepayments of Term Loans.
(a) Upon the consummation of any Asset Sale by the Borrower or
any Subsidiary of the Borrower, other than those Asset Sales permitted
pursuant to Section 7.3(B)(i) and (ii), except to the extent that the
Net Cash Proceeds of such Asset Sale, when combined with the Net Cash
Proceeds of all such Asset Sales during the immediately preceding
twelve-month period, do not exceed $3,000,000, and except as provided
in the second sentence of this Section 2.5(B)(i)(a), within thirty (30)
days after the Borrower's or any of its Subsidiaries' (i) receipt of
any Net Cash Proceeds from any such Asset Sale, or (ii) conversion to
cash or Cash Equivalents of non-cash proceeds (whether principal or
interest and including securities, release of escrow arrangements or
lease payments) received from any Asset Sale, the Borrower shall make a
mandatory prepayment of the Obligations in an amount equal to one
hundred percent (100%) of such Net Cash Proceeds or such proceeds
converted from non-cash to cash or Cash Equivalents. Net Cash Proceeds
of Asset Sales with respect to which the Borrower shall have given the
Agent written notice of its intention to replace the assets within
twelve (12) months, in the case of a sale of equipment, or eighteen
(18) months, in the case of a sale of real property, following such
Asset Sale shall not be subject to the provisions of the first sentence
of this Section 2.5(B)(i)(a) unless and to the extent that such
applicable period shall have expired without such replacement having
been made.
(b) Nothing in this Section 2.5(B)(i) shall be construed to
constitute the Lenders' consent to any transaction referred to in
clause (a) above which is not expressly permitted by the terms of this
Agreement.
(c) Each mandatory prepayment required by clause (a) of this
Section 2.5(B) shall be referred to herein as a "Designated
Prepayment." Designated Prepayments shall be allocated and applied to
the Obligations as follows:
(I) the amount of each Designated Prepayment shall be
applied to each of the then remaining installments payable
under the Term Loans, in the inverse order of their maturity;
and
27
(II) following the payment in full of the Term Loans,
the amount of each Designated Prepayment shall be applied to
repay Revolving Loans (but shall reduce Revolving Loan
Commitments only at the option of the Required Lenders) and
following the payment in full of the Revolving Loans, the
amount of each Designated Prepayment shall be applied first to
interest on the Credit Support Obligations, then to principal
on the Credit Support Obligations, then to fees and
commissions on account of Letters of Credit and Outstanding
Acceptances and then, to the extent any Credit Support are
contingent, deposited with the Agent as cash collateral in
respect of such Credit Support Obligations.
(d) On the date any Designated Prepayment is received by the
Agent, such prepayment shall be applied first to Floating Rate Loans
and to any Eurodollar Rate Loans maturing on such date and then to
subsequently maturing Eurodollar Rate Loans in order of maturity.
(ii) Mandatory Prepayments of Revolving Loans. In addition to
repayments under Section 2.5(B)(i)(c)(II), if at any time and for any reason the
Revolving Credit Obligations are greater than the Aggregate Revolving Loan
Commitment, the Borrower shall immediately make a mandatory prepayment of the
Obligations in an amount equal to such excess. In addition, if Revolving Credit
Availability is at any time less than the amount of contingent L/C Obligations
outstanding at any time, the Borrower shall deposit cash collateral with the
Agent in an amount equal to the amount by which such L/C Obligations exceed such
Revolving Credit Availability.
(iii) Subject to the preceding provisions of this Section 2.5(B), all
of the mandatory prepayments made under this Section 2.5(B) shall be applied
first to Floating Rate Loans and to any Eurodollar Rate Loans maturing on such
date and then to subsequently maturing Eurodollar Rate Loans in order of
maturity.
2.6 Reduction of Commitments. The Borrower may permanently reduce the
Aggregate Revolving Loan Commitment in whole, or in part ratably among the
Lenders, in an aggregate minimum amount of $500,000 and integral multiples of
$100,000 in excess of that amount (unless the Aggregate Revolving Loan
Commitment is reduced in whole), upon at least one Business Day's written notice
to the Agent, which notice shall specify the amount of any such reduction;
provided, however, that the amount of the Aggregate Revolving Loan Commitment
may not be reduced below the aggregate principal amount of the outstanding
Revolving Credit Obligations. All accrued commitment fees shall be payable on
the effective date of any termination of the obligations of the Lenders to make
Loans hereunder.
2.7 Method of Borrowing. Not later than 2:00 p.m. (Chicago time) on
each Borrowing Date, each Lender shall make available its Revolving Loan or
Revolving Loans, in funds immediately available in Chicago to the Agent at its
address specified pursuant to Article XIV. The Agent will promptly make the
funds so received from the Lenders available to the Borrower at the Agent's
aforesaid address.
28
2.8 Method of Selecting Types and Interest Periods for Advances. The
Borrower shall select the Type of Advance and, in the case of each Eurodollar
Rate Advance, the Interest Period applicable to each Advance from time to time.
The Borrower shall give the Agent irrevocable notice in substantially the form
of Exhibit C hereto (a "BORROWING NOTICE") not later than 12:00 noon (Chicago
time) (a) on the Borrowing Date of each Floating Rate Advance and (b) three
Business Days before the Borrowing Date for each Eurodollar Rate Advance,
specifying: (i) the Borrowing Date (which shall be a Business Day) of such
Advance; (ii) the aggregate amount of such Advance; (iii) the Type of Advance
selected; and (iv) in the case of each Eurodollar Rate Advance, the Interest
Period applicable thereto. The Borrower shall use its best efforts to select
Interest Periods so that, to the best of the Borrower's knowledge, it will not
be necessary to prepay all or any portion of any Eurodollar Rate Advance prior
to the last day of the applicable Interest Period in order to make mandatory
prepayments as required pursuant to the terms hereof. Each Floating Rate Advance
and all Obligations other than Loans shall bear interest from and including the
date of the making of such Advance to (but not including) the date of repayment
thereof at the Floating Rate, changing when and as such Floating Rate changes.
Changes in the rate of interest on that portion of any Advance maintained as a
Floating Rate Loan will take effect simultaneously with each change in the
Alternate Base Rate. Each Eurodollar Rate Advance shall bear interest from and
including the first day of the Interest Period applicable thereto to (but not
including) the last day of such Interest Period at the interest rate determined
as applicable to such Eurodollar Rate Advance.
2.9 Minimum Amount of Each Advance. Each Advance (other than an Advance
to repay Swing Line Loans or a Reimbursement Obligation) shall be in the minimum
amount of $1,000,000 (and in multiples of $100,000 if in excess thereof),
provided, however, that any Floating Rate Advance may be in the amount of the
unused Aggregate Revolving Loan Commitment.
2.10 Method of Selecting Types and Interest Periods for Conversion and
Continuation of Advances.
(A) Right to Convert. The Borrower may elect from time to time, subject
to the provisions of Section 2.4 and this Section 2.10, to convert all or any
part of a Loan of any Type into any other Type or Types of Loans; provided that
any conversion of any Eurodollar Rate Advance shall be made on, and only on, the
last day of the Interest Period applicable thereto.
(B) Automatic Conversion and Continuation. Floating Rate Loans shall
continue as Floating Rate Loans unless and until such Floating Rate Loans are
converted into Eurodollar Rate Loans. Eurodollar Rate Loans shall continue as
Eurodollar Rate Loans until the end of the then applicable Interest Period
therefor, at which time such Eurodollar Rate Loans shall be automatically
converted into Floating Rate Loans unless the Borrower shall have given the
Agent notice in accordance with Section 2.10(D) requesting that, at the end of
such Interest Period, such Eurodollar Rate Loans continue as a Eurodollar Rate
Loan.
29
(C) No Conversion Post-Default. Notwithstanding anything to the
contrary contained in Section 2.10(A) or Section 2.10(B), no Loan may be
converted into or continued as a Eurodollar Rate Loan (except with the consent
of the Required Lenders) when any Default has occurred and is continuing.
(D) Conversion/Continuation Notice. The Borrower shall give the Agent
irrevocable notice (a "CONVERSION/CONTINUATION NOTICE") of each conversion of a
Floating Rate Loan into a Eurodollar Rate Loan or continuation of a Eurodollar
Rate Loan not later than 12:00 noon (Chicago time) three Business Days prior to
the date of the requested conversion or continuation, specifying: (1) the
requested date (which shall be a Business Day) of such conversion or
continuation; (2) the amount and Type of the Loan to be converted or continued;
and (3) the amount of Eurodollar Rate Loan(s) into which such Loan is to be
converted or continued and the duration of the Interest Period applicable
thereto.
2.11 Default Rate. After the occurrence and during the continuance of a
Default, at the option of the Agent or at the direction of the Required Lenders,
the interest rate(s) applicable to the Obligations and the fees payable under
Section 3.7 with respect to Letters of Credit shall be increased by two percent
(2.0%) per annum above the Floating Rate or Eurodollar Rate, as applicable.
2.12 Method of Payment. All payments of principal, interest, fees,
commissions and Credit Support Obligations hereunder shall be made, without
setoff, deduction or counterclaim, in immediately available funds to the Agent
at the Agent's address specified pursuant to Article XIV, or at any other
Lending Installation of the Agent specified in writing by the Agent to the
Borrower, by 2:00 p.m. (Chicago time) on the date when due and shall be made
ratably among the Lenders (unless such amount is not to be shared ratably in
accordance with the terms hereof). Each payment delivered to the Agent for the
account of any Lender shall be delivered promptly by the Agent to such Lender in
the same type of funds which the Agent received at its address specified
pursuant to Article XIV or at any Lending Installation specified in a notice
received by the Agent from such Lender. The Borrower authorizes the Agent to
charge the account of the Borrower maintained with First Chicago for each
payment of principal, interest, fees, commissions and Credit Support Obligations
as it becomes due hereunder.
2.13 Notes. Each Lender is authorized to record the principal amount of
each of its Loans and each repayment with respect to its Loans on the schedule
attached to its respective Notes; provided, however, that the failure to so
record shall not affect the Borrower's obligations under any such Note.
2.14 Telephonic Notices. The Borrower authorizes the Lenders and the
Agent to extend Advances, effect selections of Types of Advances and to transfer
funds based on telephonic notices made by any person or persons the Agent or any
Lender in good faith believes to be acting on behalf of the Borrower. The
Borrower agrees to deliver promptly to the Agent a written confirmation, signed
by an Authorized Officer, if such confirmation is requested by the Agent or any
Lender, of each telephonic notice. If the written confirmation differs in any
30
material respect from the action taken by the Agent and the Lenders, (i) the
telephonic notice shall govern absent manifest error and (ii) the Agent or the
Lender, as applicable, shall promptly notify the Authorized Officer who provided
such confirmation of such difference.
2.15 Promise to Pay; Interest and Commitment Fees; Interest Payment
Dates; Interest and Fee Basis; Taxes; Loan and Control Accounts.
(A) Promise to Pay. The Borrower unconditionally promises to pay when
due the principal amount of each Loan and all other Obligations incurred by it,
and to pay all unpaid interest accrued thereon, in accordance with the terms of
this Agreement and the Notes.
(B) Interest Payment Dates. Interest accrued on each Floating Rate Loan
shall be payable on each Payment Date, commencing with the first such date to
occur after the date hereof, and at maturity (whether by acceleration or
otherwise). Interest accrued on each Eurodollar Rate Loan shall be payable on
the last day of its applicable Interest Period, on any date on which the
Eurodollar Rate Loan is prepaid, whether by acceleration or otherwise, and at
maturity. Interest accrued on each Eurodollar Rate Loan having an Interest
Period longer than three months shall also be payable on the last day of each
three-month interval during such Interest Period. Interest accrued on the
principal balance of all other Obligations shall be payable in arrears (i) on
the last day of each calendar month, commencing on the first such day following
the incurrence of such Obligation, (ii) upon repayment thereof in full or in
part, and (iii) if not theretofore paid in full, at the time such other
Obligation becomes due and payable (whether by acceleration or otherwise).
(C) Fees. (i) The Borrower shall pay to the Agent, for the account of
the Lenders in accordance with their Pro Rata Shares, from and after the Closing
Date until the date on which the Aggregate Revolving Loan Commitment shall be
terminated in whole, a commitment fee accruing at the rate of the then
Applicable Commitment Fee Percentage, on the amount by which (A) the Aggregate
Revolving Loan Commitment in effect from time to time exceeds (B) the Revolving
Credit Obligations in effect from time to time. All such commitment fees payable
under this clause (C) shall be payable quarterly in arrears on the last day of
each fiscal quarter of the Borrower occurring after the Closing Date (with the
first such payment being calculated for the period from the Closing Date and
ending on November 30, 1997), and, in addition, on the date on which the
Aggregate Revolving Loan Commitment shall be terminated in whole.
(ii) The Borrower agrees to pay to the Agent for the sole account of
the Agent and the Arranger (unless otherwise agreed between the Agent and the
Arranger and any Lender) the fees set forth in the letter agreement between the
Agent and the Borrower dated July 23, 1997, payable at the times and in the
amounts set forth therein. In addition, the Borrower agrees to pay to the Agent
for the account of the Lenders the amounts set forth on Schedule 2.15 hereto,
payable on the Closing Date.
(D) Interest, Commission and Fee Basis; Applicable Eurodollar Margin
and Applicable Commitment Fee Percentage.
31
(i) Interest, fees and commissions shall be calculated for actual days
elapsed on the basis of a 360-day year. Interest shall be payable for the day an
Obligation is incurred but not for the day of any payment on the amount paid if
payment is received prior to 2:00 p.m. (Chicago time) at the place of payment.
If any payment of principal of or interest on a Loan or any payment of any other
Obligations shall become due on a day which is not a Business Day, such payment
shall be made on the next succeeding Business Day and, in the case of a
principal payment, such extension of time shall be included in computing
interest, fees and commissions.
(ii) The Applicable Eurodollar Margin and Applicable Commitment Fee
Percentage shall be determined from time to time by reference to the table set
forth below, on the basis of the then applicable Leverage Ratio as described in
this Section 2.15(D)(ii):
Leverage Ratio Applicable Eurodollar Applicable Commitment
-------------- Margin Fee Percentage
------ --------------
Greater than 3.5 to 1.0 1.25% 0.25%
Greater than 3.0 to 1.0 and less than 1.00% 0.25%
or equal to 3.5 to 1.0
Greater than 2.5 to 1.0 and less than 0.75% 0.25%
or equal to 3.0 to 1.0
Less than or equal to 2.5 to 1.0 0.50% 0.25%
For purposes of this Section 2.15(D)(ii), the Leverage Ratio shall be determined
as of the last day of each fiscal quarter based upon (a) for Indebtedness for
borrowed money (which shall include, without limitation, the Borrower's
obligations with respect to Outstanding Acceptances), the amount as of the last
day of each such fiscal quarter; and (b) for EBITDA, the actual amount for the
four-quarter period ending on such day, calculated, with respect to Permitted
Acquisitions, on a pro forma basis using historical audited and reviewed
unaudited financial statements obtained from the seller, broken down by fiscal
quarter in the Borrower's reasonable judgment. Upon receipt of the financial
statements delivered pursuant to Sections 7.1(A)(ii) and (iii), as applicable,
the Applicable Eurodollar Margin and Applicable Commitment Fee Percentage shall
be adjusted, such adjustment being effective five (5) Business Days following
the Agent's receipt of such financial statements and the compliance certificate
required to be delivered in connection therewith pursuant to Section 7.1(A)(iv);
provided, that if the Borrower shall not have timely delivered its financial
statements in accordance with Section 7.1(A)(ii) or (iii), as applicable, then
commencing fifteen (15) days after the date upon which such financial statements
should have been delivered and continuing until such financial statements are
actually delivered, it shall be assumed for purposes of determining the
Applicable Eurodollar Margin and Applicable Commitment Fee Percentage that the
Leverage Ratio was greater than 3.5 to 1.0. Notwithstanding anything herein to
the contrary, from the Closing Date to but not including the
32
fifth Business Day following receipt of the Borrower's financial statements in
accordance with Section 7.1(A)(ii) for the fiscal quarter ending February 28,
1998, the Applicable Eurodollar Margin and Applicable Commitment Fee Percentage
shall be determined based upon an assumption that the Leverage Ratio is greater
than 3.0 to 1.0 and less than or equal to 3.5 to 1.0.
(E) Taxes.
(i) Any and all payments by the Borrower hereunder shall be
made free and clear of and without deduction for any and all present or
future taxes, levies, imposts, deductions, charges or withholdings or
any liabilities with respect thereto including those arising after the
date hereof as a result of the adoption of or any change in any law,
treaty, rule, regulation, guideline or determination of a Governmental
Authority or any change in the interpretation or application thereof by
a Governmental Authority but excluding, in the case of each Lender and
the Agent, such taxes (including income taxes, franchise taxes and
branch profit taxes) as are imposed on or measured by such Lender's or
Agent's, as the case may be, income by the United States of America or
any Governmental Authority of the jurisdiction under the laws of which
such Lender or Agent, as the case may be, is organized or maintains a
Lending Installation (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings, and liabilities which the Agent or a
Lender determines to be applicable to this Agreement, the other Loan
Documents, the Revolving Loan Commitments, the Loans, the Outstanding
Acceptances or the Letters of Credit being hereinafter referred to as
"TAXES"). If the Borrower shall be required by law to deduct any Taxes
from or in respect of any sum payable hereunder or under the other Loan
Documents to any Lender or the Agent, (i) the sum payable shall be
increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums payable
under this Section 2.15(E)) such Lender or the Agent (as the case may
be) receives an amount equal to the sum it would have received had no
such deductions been made, (ii) the Borrower shall make such
deductions, and (iii) the Borrower shall pay the full amount deducted
to the relevant taxation authority or other authority in accordance
with applicable law. If a withholding tax of the United States of
America or any other Governmental Authority shall be or become
applicable (y) after the date of this Agreement, to such payments by
the Borrower made to the Lending Installation or any other office that
a Lender may claim as its Lending Installation, or (z) after such
Lender's selection and designation of any other Lending Installation,
to such payments made to such other Lending Installation, such Lender
shall use reasonable efforts to make, fund and maintain its Loans
through another Lending Installation of such Lender in another
jurisdiction so as to reduce the Borrower's liability hereunder, if the
making, funding or maintenance of such Loans through such other Lending
Installation of such Lender does not, in the judgment of such Lender,
otherwise adversely affect such Loans, or obligations under the
Revolving Loan Commitments or such Lender.
(ii) In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property
taxes, charges, or similar levies which arise from any payment made
hereunder, from the issuance of Letters of Credit
33
hereunder, or from the execution, delivery or registration of, or
otherwise with respect to, this Agreement, the other Loan Documents,
the Revolving Loan Commitments, the Loans, the Letters of Credit or the
Outstanding Acceptances (hereinafter referred to as "OTHER TAXES").
(iii) The Borrower indemnifies each Lender and the Agent for
the full amount of Taxes and Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any Governmental
Authority on amounts payable under this Section 2.15(E)) paid by such
Lender or the Agent (as the case may be) and any liability (including
penalties, interest, and expenses) arising therefrom or with respect
thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted. This indemnification shall be made within thirty (30)
days after the date such Lender or the Agent (as the case may be) makes
written demand therefor. A certificate as to any additional amount
payable to any Lender or the Agent under this Section 2.15(E) submitted
to the Borrower and the Agent (if a Lender is so submitting) by such
Lender or the Agent shall show in reasonable detail the amount payable
and the calculations used to determine such amount and shall, absent
manifest error, be final, conclusive and binding upon all parties
hereto. With respect to such deduction or withholding for or on account
of any Taxes and to confirm that all such Taxes have been paid to the
appropriate Governmental Authorities, the Borrower shall promptly (and
in any event not later than thirty (30) days after receipt) furnish to
each Lender and the Agent such certificates, receipts and other
documents as may be required (in the judgment of such Lender or the
Agent) to establish any tax credit to which such Lender or the Agent
may be entitled.
(iv) Within thirty (30) days after the date of any payment of
Taxes or Other Taxes by the Borrower, the Borrower shall furnish to the
Agent the original or a certified copy of a receipt evidencing payment
thereof.
(v) Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the
Borrower contained in this Section 2.15(E) shall survive the payment in
full of principal and interest hereunder, the termination of the
Letters of Credit and Outstanding Acceptances and the termination of
this Agreement.
(vi) Without limiting the obligations of the Borrower under
this Section 2.15(E), each Lender that is not created or organized
under the laws of the United States of America or a political
subdivision thereof shall deliver to the Borrower and the Agent on or
before the Closing Date, or, if later, the date on which such Lender
becomes a Lender pursuant to Section 13.3, a true and accurate
certificate executed in duplicate by a duly authorized officer of such
Lender, in a form satisfactory to the Borrower and the Agent, to the
effect that such Lender is capable under the provisions of an
applicable tax treaty concluded by the United States of America (in
which case the certificate shall be accompanied by two executed copies
of Form 1001 of the IRS) or under Section 1442 of the Code (in which
case the certificate shall be accompanied by two copies of Form 4224
34
of the IRS) of receiving payments of interest hereunder without
deduction or withholding of United States federal income tax. Each such
Lender further agrees to deliver to the Borrower and the Agent from
time to time a true and accurate certificate executed in duplicate by a
duly authorized officer of such Lender substantially in a form
satisfactory to the Borrower and the Agent, before or promptly upon the
occurrence of any event requiring a change in the most recent
certificate previously delivered by it to the Borrower and the Agent
pursuant to this Section 2.15(E)(vi). Further, each Lender which
delivers a certificate accompanied by Form 1001 of the IRS covenants
and agrees to deliver to the Borrower and the Agent within fifteen (15)
days prior to January 1, 1998, and every third (3rd) anniversary of
such date thereafter on which this Agreement is still in effect,
another such certificate and two accurate and complete original signed
copies of Form 1001 (or any successor form or forms required under the
Code or the applicable regulations promulgated thereunder), and each
Lender that delivers a certificate accompanied by Form 4224 of the IRS
covenants and agrees to deliver to the Borrower and the Agent within
fifteen (15) days prior to the beginning of each subsequent taxable
year of such Lender during which this Agreement is still in effect,
another such certificate and two accurate and complete original signed
copies of IRS Form 4224 (or any successor form or forms required under
the Code or the applicable regulations promulgated thereunder). Each
such certificate shall certify as to one of the following:
(a) that such Lender is capable of receiving payments
of interest hereunder without deduction or withholding of
United States of America federal income tax;
(b) that such Lender is not capable of receiving
payments of interest hereunder without deduction or
withholding of United States of America federal income tax as
specified therein but is capable of recovering the full amount
of any such deduction or withholding from a source other than
the Borrower and will not seek any such recovery from the
Borrower; or
(c) that, as a result of the adoption of or any
change in any law, treaty, rule, regulation, guideline or
determination of a Governmental Authority or any change in the
interpretation or application thereof by a Governmental
Authority after the date such Lender became a party hereto,
such Lender is not capable of receiving payments of interest
hereunder without deduction or withholding of United States of
America federal income tax as specified therein and that it is
not capable of recovering the full amount of the same from a
source other than the Borrower.
Each Lender shall promptly furnish to the Borrower and the Agent such
additional documents as may be reasonably required by the Borrower or
the Agent to establish any exemption from or reduction of any Taxes or
Other Taxes required to be deducted or withheld and which may be
obtained without undue expense to such Lender.
35
(F) Loan Account. Each Lender shall maintain in accordance with its
usual practice an account or accounts (a "LOAN ACCOUNT") evidencing the
Obligations of the Borrower to such Lender owing to such Lender from time to
time, including the amount of principal and interest payable and paid to such
Lender from time to time hereunder and under the Notes.
(G) Control Account. The Register maintained by the Agent pursuant to
Section 13.3(C) shall include a control account, and a subsidiary account for
each Lender, in which accounts (taken together) shall be recorded (i) the date
and amount of each Advance made hereunder, the type of Loan comprising such
Advance and any Interest Period applicable thereto, (ii) the effective date and
amount of each Assignment Agreement delivered to and accepted by it and the
parties thereto pursuant to Section 13.3, (iii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder or under the Notes, (iv) the amount of any sum received by the
Agent from the Borrower hereunder and each Lender's share thereof, and (v) all
other appropriate debits and credits as provided in this Agreement, including,
without limitation, all fees, charges, expenses and interest.
(H) Entries Binding. The entries made in the Register and each Loan
Account shall be presumptive evidence, absent manifest error, unless the
Borrower objects in writing to information contained in the Register and each
Loan Account within sixty (60) days of the Borrower's receipt of such
information in written form.
2.16 Notification of Advances, Interest Rates, Prepayments and
Aggregate Revolving Loan Commitment Reductions. Promptly after receipt thereof,
the Agent will notify each Lender of the contents of each Aggregate Revolving
Loan Commitment reduction notice, Borrowing Notice, Continuation/Conversion
Notice, and repayment notice received by it hereunder. The Agent will notify
each Lender of the interest rate applicable to each Eurodollar Rate Loan
promptly upon determination of such interest rate and will give each Lender
prompt notice of each change in the Alternate Base Rate.
2.17 Lending Installations. Each Lender may book its Loans, Letters of
Credit, or Outstanding Acceptances at any Lending Installation selected by such
Lender and may change its Lending Installation from time to time. All terms of
this Agreement shall apply to any such Lending Installation and the Notes shall
be deemed held by each Lender for the benefit of such Lending Installation. Each
Lender may, by written or facsimile notice to the Agent and the Borrower,
designate a Lending Installation through which Loans will be made by it and for
whose account Loan payments and/or payments of Credit Support Obligations are to
be made.
2.18 Non-Receipt of Funds by the Agent. Unless the Borrower or a
Lender, as the case may be, notifies the Agent prior to the date on which it is
scheduled to make payment to the Agent of (i) in the case of a Lender, the
proceeds of a Loan or (ii) in the case of the Borrower, a payment of principal,
interest or fees to the Agent for the account of the Lenders, that it does not
intend to make such payment, the Agent may assume that such payment has been
made. The Agent may, but shall not be obligated to, make the amount of such
payment available to the intended recipient in reliance upon such assumption. If
such Lender or the Borrower, as the case
36
may be, has not in fact made such payment to the Agent, the recipient of such
payment shall, on demand by the Agent, repay to the Agent the amount so made
available together with interest thereon in respect of each day during the
period commencing on the date such amount was so made available by the Agent
until the date the Agent recovers such amount at a rate per annum equal to (i)
in the case of payment by a Lender, the Federal Funds Effective Rate for such
day or (ii) in the case of payment by the Borrower, the Floating Rate.
2.19 Termination Date. This Agreement shall be effective until the
Termination Date. Notwithstanding the termination of this Agreement on the
Termination Date, until all of the Obligations (other than contingent indemnity
obligations) shall have been fully and indefeasibly paid and satisfied, all
financing arrangements among the Borrower and the Lenders shall have been
terminated (other than under Hedging Agreements or other agreements with respect
to Hedging Obligations) and all of the Letters of Credit shall have expired,
been cancelled or terminated, all of the rights and remedies under this
Agreement and the other Loan Documents shall survive.
2.20 Replacement of Certain Lenders. In the event a Lender ("AFFECTED
LENDER") shall have: (i) failed to fund its Pro Rata Share of any Advance
requested by the Borrower, or to fund a Revolving Loan in order to repay Swing
Line Loans pursuant to Section 2.3(D), which such Lender is obligated to fund
under the terms of this Agreement and which failure has not been cured, (ii)
requested compensation from the Borrower under Sections 2.15(E), 4.1 or 4.2 to
recover Taxes, Other Taxes or other additional costs incurred by such Lender
which are not being incurred generally by the other Lenders, (iii) delivered a
notice pursuant to Section 4.3 claiming that such Lender is unable to extend
Eurodollar Rate Loans to the Borrower for reasons not generally applicable to
the other Lenders or (iv) has invoked Section 10.2, then, in any such case, the
Borrower or the Agent may make written demand on such Affected Lender (with a
copy to the Agent in the case of a demand by the Borrower and a copy to the
Borrower in the case of a demand by the Agent) for the Affected Lender to
assign, and such Affected Lender shall use its best efforts to assign pursuant
to one or more duly executed Assignments Agreements five (5) Business Days after
the date of such demand, to one or more financial institutions that comply with
the provisions of Section 13.3(A) which the Borrower or the Agent, as the case
may be, shall have engaged for such purpose ("REPLACEMENT LENDER"), all of such
Affected Lender's rights and obligations under this Agreement and the other Loan
Documents (including, without limitation, its Revolving Loan Commitment, all
Loans owing to it, all of its participation interests in existing Letters of
Credit and Outstanding Acceptances, and its obligation to participate in
additional Letters of Credit hereunder) in accordance with Section 13.3. The
Agent agrees, upon the occurrence of such events with respect to an Affected
Lender and upon the written request of the Borrower, to use its reasonable
efforts to obtain the commitments from one or more financial institutions to act
as a Replacement Lender. The Agent is authorized to execute one or more of such
assignment agreements as attorney-in-fact for any Affected Lender failing to
execute and deliver the same within five (5) Business Days after the date of
such demand. Further, with respect to such assignment the Affected Lender shall
have concurrently received, in cash, all amounts due and owing to the Affected
Lender hereunder or under any other Loan Document, including, without
limitation, the aggregate outstanding principal amount
37
of the Loans owed to such Lender, together with accrued interest thereon through
the date of such assignment, amounts payable under Sections 2.15(E), 4.1, and
4.2 with respect to such Affected Lender and compensation payable under Section
2.15(C) in the event of any replacement of any Affected Lender under clause (ii)
or clause (iii) of this Section 2.20; provided that upon such Affected Lender's
replacement, such Affected Lender shall cease to be a party hereto but shall
continue to be entitled to the benefits of Sections 2.15(E), 4.1, 4.2, 4.4, and
10.7, as well as to any fees accrued for its account hereunder and not yet paid,
and shall continue to be obligated under Section 11.8. Upon the replacement of
any Affected Lender pursuant to this Section 2.20, the provisions of Section 9.2
shall continue to apply with respect to Borrowings which are then outstanding
with respect to which the Affected Lender failed to fund its Pro Rata Share and
which failure has not been cured.
ARTICLE III: THE LETTER OF CREDIT FACILITY AND OUTSTANDING
ACCEPTANCES
3.1 Obligation to Issue Letters of Credit. Subject to the terms and
conditions of this Agreement and in reliance upon the representations,
warranties and covenants of the Borrower herein set forth, each Issuing Bank
hereby agrees to issue for the account of the Borrower through such Issuing
Bank's branches as it and the Borrower may jointly agree, one or more Letters of
Credit denominated in Dollars in accordance with this Article III, from time to
time after the date hereof.
3.2 Types and Amounts of Letters of Credit. No Issuing Bank shall have
any obligation to and no Issuing Bank shall:
(i) issue any Letter of Credit if on the date of issuance,
before or after giving effect to the Letter of Credit requested
hereunder, (a) the Revolving Credit Obligations at such time would
exceed the Aggregate Revolving Loan Commitment at such time, or (b) the
aggregate outstanding amount of the L/C Obligations would exceed
$5,000,000; or
(ii) issue any Letter of Credit which has an expiration date
later than the date which is the earlier of one (1) year after the date
of issuance thereof or five (5) Business Days immediately preceding the
Termination Date.
3.3 Conditions with respect to Letters of Credit. In addition to being
subject to the satisfaction of the conditions contained in Sections 5.1 and 5.2,
the obligation of an Issuing Bank to issue any Letter of Credit is subject to
the satisfaction in full of the following conditions:
(i) the Borrower shall have delivered to the applicable
Issuing Bank at such times and in such manner as such Issuing Bank may
reasonably prescribe, a request for issuance of such Letter of Credit
in substantially the form of Exhibit D hereto, duly executed
applications for such Letter of Credit, and such other
38
documents, instructions and agreements as may be required pursuant to
the terms thereof, and the proposed Letter of Credit shall be
reasonably satisfactory to such Issuing Bank as to form and content;
and
(ii) as of the date of issuance no order, judgment or decree
of any court, arbitrator or Governmental Authority shall purport by its
terms to enjoin or restrain the applicable Issuing Bank from issuing
such Letter of Credit and no law, rule or regulation applicable to such
Issuing Bank and no request or directive (whether or not having the
force of law) from a Governmental Authority with jurisdiction over such
Issuing Bank shall prohibit or request that such Issuing Bank refrain
from the issuance of Letters of Credit generally or the issuance of
that Letter of Credit.
3.4 Procedure for Issuance of Letters of Credit. (a) Subject to the
terms and conditions of this Article III and provided that the applicable
conditions set forth in Sections 5.1 and 5.2 hereof have been satisfied, the
applicable Issuing Bank shall, on the requested date, issue a Letter of Credit
on behalf of the Borrower in accordance with such Issuing Bank's usual and
customary business practices and, in this connection, such Issuing Bank may
assume that the applicable conditions set forth in Section 5.2 hereof have been
satisfied unless it shall have received notice to the contrary from the Agent or
a Lender or has knowledge that the applicable conditions have not been met.
(b) The applicable Issuing Bank shall give the Agent written or telex
notice, or telephonic notice confirmed promptly thereafter in writing, of the
issuance of a Letter of Credit, provided, however, that the failure to provide
such notice shall not result in any liability on the part of such Issuing Bank.
(c) No Issuing Bank shall extend or amend any Letter of Credit unless
the requirements of this Section 3.4 are met as though a new Letter of Credit
was being requested and issued.
3.4-A The Outstanding Acceptances. Set forth on Schedule 1.1.5 are the
Outstanding Acceptances previously created by certain one of the Lenders for the
account of the Borrower. From and after the date of this Agreement, the terms of
this Agreement, rather than any other agreement pursuant to which such
Outstanding Acceptances were created (the "Prior Acceptance Agreements"), shall
govern the terms and conditions of such Outstanding Acceptances. The Prior
Acceptance Agreements shall hereby be terminated on the date of this Agreement
provided nothing herein shall affect or impair the rights of the applicable
Lenders parties to such Prior Acceptance Agreements with respect to indemnities
or other provisions stated to survive the termination of such Prior Acceptance
Agreements. The Borrower is obligated, and hereby unconditionally agrees, to pay
to the Agent for the account of the applicable Lender which created an
Outstanding Acceptance the face amount of each Outstanding Acceptance on the
Maturity Date of such Outstanding Acceptance. If the Borrower at any time fails
to repay on the applicable Maturity Date the face amount of any Outstanding
Acceptance pursuant to this Section 3.4-A, the Borrower shall be deemed to have
elected to borrow Revolving Loans from
39
the Lenders, as of the applicable Maturity Date, equal in amount to the face
amount of the maturing Outstanding Acceptance. Such Revolving Loans shall be
made as of such Maturity Date, automatically, without notice and without any
requirement to satisfy the conditions precedent otherwise applicable to an
Advance of Revolving Loans. Such Revolving Loans shall constitute a Floating
Rate Advance, the proceeds of which Advance shall be used to pay the applicable
creating Lender. If, for any reason, the Borrower fails to repay on the
applicable Maturity Date the face amount of any Outstanding Acceptance on the
applicable Maturity Date and, for any reason, the Lenders have no obligation to
make Revolving Loans, then such matured amount shall bear interest from and
after such day, until paid in full, at the interest rate applicable to a
Floating Rate Advance.
3.5 Participation in Letters of Credit and Outstanding Acceptances. On
the date of this Agreement, with respect to the Outstanding Acceptances, and
immediately upon the issuance of each Letter of Credit hereunder, each Lender
shall be deemed to have automatically, irrevocably and unconditionally purchased
and received from the applicable Lender which created such Outstanding
Acceptance and/or Issuing Bank an undivided interest and participation in and to
each of the Outstanding Acceptances and each such Letter of Credit, the
obligations of the Borrower in respect thereof, and the liability of such
creating Lender and/or Issuing Bank thereunder (individually, an "Acceptance
Interest" or "L/C Interest," as applicable and collectively, a "CREDIT SUPPORT
INTEREST") in an amount equal to the face amount of the Outstanding Acceptances
and/or the amount available for drawing under such Letter of Credit multiplied
by such Lender's Pro Rata Share. The applicable creating Lender and/or Issuing
Bank shall give to each Lender notice in the event that the Borrower fails to
reimburse the applicable Issuing Bank with respect to any Outstanding
Acceptance, any L/C Draft or any other draw on a Letter of Credit pursuant to
the provisions of Section 3.4-A or Section 3.6, and each Lender shall promptly
and unconditionally pay to the Agent for the account of the applicable creating
Lender and/or Issuing Bank, in immediately available funds, an amount equal to
such Lender's Pro Rata Share of the amount of such payment or draw. The
obligation of each Lender to reimburse the creating Lenders and Issuing Banks
under this Section 3.5 shall be unconditional, continuing, irrevocable and
absolute. In the event that any Lender fails to make payment to the Agent of any
amount due under this Section 3.5, the Agent shall be entitled to receive,
retain and apply against such obligation the principal and interest otherwise
payable to such Lender hereunder until the Agent receives such payment from such
Lender or such obligation is otherwise fully satisfied; provided, however, that
nothing contained in this sentence shall relieve such Lender of its obligation
to reimburse the applicable creating Lender and/or Issuing Bank for such amount
in accordance with this Section 3.5.
3.6 Reimbursement Obligation. The Borrower agrees unconditionally,
irrevocably and absolutely to pay immediately to reimburse the applicable
Issuing Bank for the amount of each drawing under or pursuant to a Letter of
Credit or an L/C Draft related thereto (such obligation of the Borrower to
reimburse the Agent for an advance made under a Letter of Credit or L/C Draft
being hereinafter referred to as a "REIMBURSEMENT OBLIGATION" with respect to
such Letter of Credit or L/C Draft), each such reimbursement to be made by the
Borrower no later than the Business Day on which the applicable Issuing Bank
makes payment of each such L/C Draft or, in
40
the case of any other draw on a Letter of Credit, the date specified in the
demand of such Issuing Bank. If the Borrower at any time fails to repay a
Reimbursement Obligation pursuant to this Section 3.6, the Borrower shall be
deemed to have elected to borrow Revolving Loans from the Lenders, as of the
date of the advance giving rise to the Reimbursement Obligation, equal in amount
to the amount of the unpaid Reimbursement Obligation. Such Revolving Loans shall
be made as of the date of the payment giving rise to such Reimbursement
Obligation, automatically, without notice and without any requirement to satisfy
the conditions precedent otherwise applicable to an Advance of Revolving Loans.
Such Revolving Loans shall constitute a Floating Rate Advance, the proceeds of
which Advance shall be used to repay such Reimbursement Obligation. If, for any
reason, the Borrower fails to repay a Reimbursement Obligation on the day such
Reimbursement Obligation arises and, for any reason, the Lenders are unable to
make or have no obligation to make Revolving Loans, then such Reimbursement
Obligation shall bear interest from and after such day, until paid in full, at
the interest rate applicable to a Floating Rate Advance.
3.7 Credit Support Fees. The Borrower agrees to pay: (i) quarterly, in
arrears, to the Agent for the ratable benefit of the Lenders, except as set
forth in Section 9.2, a letter of credit fee at a rate per annum equal to the
Applicable L/C Fee Percentage on the average daily outstanding face amount
available for drawing under all Letters of Credit;
(ii) quarterly, in arrears, to the Agent for the sole account
of each Issuing Bank, a letter of credit fronting fee at such
percentage rate as may be agreed between the Borrower and each Issuing
Bank on the average daily outstanding face amount available for drawing
under all Letters of Credit issued by such Issuing Bank;
(iii) to the Agent for the benefit of each Issuing Bank, all
customary fees and other issuance, amendment, document examination,
negotiation and presentment expenses and related charges in connection
with the issuance, amendment, presentation of L/C Drafts, and the like
customarily charged by such Issuing Banks with respect to standby and
commercial Letters of Credit, including, without limitation, standard
commissions with respect to commercial Letters of Credit, payable at
the time of invoice of such amounts;
(iv) for the period from and including the date of this
Agreement to and including the applicable Maturity Date, to the Agent
for the ratable benefit of the Lenders, the acceptance commission
amount as set forth on Schedule 3.7, with respect to each Outstanding
Acceptance, on the face amount of such Outstanding Acceptance, payable
on the date of this Agreement; and
(v) to the Agent for the benefit of the applicable Lender
which created the Outstanding Acceptances, all customary fees and other
document, examination, negotiation and presentment fees, expenses and
related charges in connection with the payment of Outstanding
Acceptances, and the like customarily charged by such Lender with
respect to acceptances payable at the time of invoice of such amounts.
41
3.8 Issuing Bank Reporting Requirements. In addition to the notices
required by Section 3.4(b), each Issuing Bank shall, no later than the tenth
Business Day following the last day of each month, provide to the Agent, upon
the Agent's request, schedules, in form and substance reasonably satisfactory to
the Agent, showing the date of issue, account party, amount, expiration date and
the reference number of each Letter of Credit issued by it outstanding at any
time during such month and the aggregate amount payable by the Borrower during
such month. In addition, upon the request of the Agent, each Issuing Bank shall
furnish to the Agent copies of any Letter of Credit and any application for or
reimbursement agreement with respect to a Letter of Credit to which the Issuing
Bank is party and such other documentation as may reasonably be requested by the
Agent. Upon the request of any Lender, the Agent will provide to such Lender
information concerning such Letters of Credit.
3.9 Indemnification; Exoneration. (A) In addition to amounts payable as
elsewhere provided in this Article III, the Borrower hereby agrees to protect,
indemnify, pay and save harmless the Agent, each Issuing Bank and each Lender
from and against any and all liabilities and costs which the Agent, such Issuing
Bank or such Lender may incur or be subject to as a consequence, direct or
indirect, of (i) the issuance of any Letter of Credit other than, in the case of
the applicable Issuing Bank, as a result of its Gross Negligence or willful
misconduct, as determined by the final judgment of a court of competent
jurisdiction, or (ii) the failure of the applicable Issuing Bank to honor a
drawing under a Letter of Credit as a result of any act or omission, whether
rightful or wrongful, of any present or future de jure or de facto Governmental
Authority (all such acts or omissions herein called "GOVERNMENTAL ACTS").
(B) As among the Borrower, the Lenders, the Agent and the Issuing
Banks, the Borrower assumes all risks of the acts and omissions of, or misuse of
such Letter of Credit by, the beneficiary of any Letters of Credit. In
furtherance and not in limitation of the foregoing, subject to the provisions of
the Letter of Credit applications and Letter of Credit reimbursement agreements
executed by the Borrower at the time of request for any Letter of Credit,
neither the Agent, any Issuing Bank nor any Lender shall be responsible (in the
absence of Gross Negligence or willful misconduct in connection therewith, as
determined by the final judgment of a court of competent jurisdiction): (i) for
the form, validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the application for and
issuance of the Letters of Credit, even if it should in fact prove to be in any
or all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii)
for the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason; (iii) for failure of the beneficiary of a
Letter of Credit to comply duly with conditions required in order to draw upon
such Letter of Credit; (iv) for errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph, telex, or
other similar form of teletransmission or otherwise; (v) for errors in
interpretation of technical trade terms; (vi) for 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; (vii) for the
misapplication by the beneficiary of a Letter of Credit of the proceeds of any
drawing under such Letter of Credit; and (viii) for any consequences arising
42
from causes beyond the control of the Agent, the Issuing Banks and the Lenders,
including, without limitation, any Governmental Acts. None of the above shall
affect, impair, or prevent the vesting of any Issuing Bank's rights or powers
under this Section 3.9.
(C) In furtherance and extension and not in limitation of the specific
provisions hereinabove set forth, any action taken or omitted by any Issuing
Bank under or in connection with the Letters of Credit or any related
certificates shall not, in the absence of Gross Negligence or willful
misconduct, as determined by the final judgment of a court of competent
jurisdiction, put the applicable Issuing Bank, the Agent or any Lender under any
resulting liability to the Borrower or relieve the Borrower of any of its
obligations hereunder to any such Person.
(D) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 3.9 shall survive the payment in full of principal and interest
hereunder, the termination of the Letters of Credit and the termination of this
Agreement.
3.10 Cash Collateral. Notwithstanding anything to the contrary herein
or in any application for a Letter of Credit, after the occurrence and during
the continuance of a Default, the Borrower shall, upon the Agent's demand,
deliver to the Agent for the benefit of the Lenders and the Issuing Banks, cash,
or other collateral of a type satisfactory to the Required Lenders, having a
value, as reasonably determined by such Lenders, equal to the aggregate
outstanding Credit Support Obligations. In addition, if the Revolving Credit
Availability is at any time less than the amount of contingent L/C Obligations
outstanding at any time, the Borrower shall deposit cash collateral with the
Agent in an amount equal to the amount by which such L/C Obligations exceed such
Revolving Credit Availability. Any such collateral shall be held by the Agent in
a separate account appropriately designated as a cash collateral account in
relation to this Agreement, the Letters of Credit and the Outstanding
Acceptances and retained by the Agent for the benefit of the Lenders and the
Issuing Banks as collateral security for the Borrower's obligations in respect
of this Agreement and each of the Letters of Credit, L/C Drafts and Outstanding
Acceptances. Such amounts shall be applied to reimburse the Issuing Banks for
drawings or payments under or pursuant to Letters of Credit or L/C Drafts, and
to reimburse the applicable creating Lender for drafts presented for payment
with respect to the Outstanding Acceptances or if no such reimbursement is
required, to payment of such of the other Obligations as the Agent shall
determine. If no Default shall be continuing, amounts remaining in any cash
collateral account established pursuant to this Section 3.10 which are not to be
applied to reimburse an Issuing Bank for amounts actually paid or to be paid by
such Issuing Bank in respect of a Letter of Credit or L/C Draft or a creating
Lender for drafts presented for payment with respect to Outstanding Acceptances,
shall be returned to the Borrower (after deduction of the Agent's expenses
incurred in connection with such cash collateral account).
ARTICLE IV: CHANGE IN CIRCUMSTANCES
43
4.1 Yield Protection. If any law or any governmental or
quasi-governmental rule, regulation, policy, guideline or directive (whether or
not having the force of law) adopted after the date of this Agreement and having
general applicability to all banks within the jurisdiction in which such Lender
operates (excluding, for the avoidance of doubt, the effect of and phasing in of
capital requirements or other regulations or guidelines passed prior to the date
of this Agreement), or any interpretation or application thereof by any
Governmental Authority charged with the interpretation or application thereof,
or the compliance of any Lender therewith,
(i) subjects any Lender or any applicable Lending Installation
to any tax, duty, charge or withholding on or from payments due from
the Borrower (excluding federal taxation of the overall net income of
any Lender or applicable Lending Installation), or changes the basis of
taxation of payments to any Lender in respect of its Loans, its L/C
Interests, the Outstanding Acceptances, the Letters of Credit or other
amounts due it hereunder, or
(ii) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit
extended by, any Lender or any applicable Lending Installation (other
than reserves and assessments taken into account in determining the
interest rate applicable to Eurodollar Rate Loans) with respect to its
Loans, Credit Support Interests, the Outstanding Acceptances, or the
Letters of Credit, or
(iii) imposes any other condition the result of which is to
increase the cost to any Lender or any applicable Lending Installation
of making, funding or maintaining the Loans, the Credit Support
Interests, the Outstanding Acceptances, or the Letters of Credit or
reduces any amount received by any Lender or any applicable Lending
Installation in connection with Loans, Outstanding Acceptances or
Letters of Credit, or requires any Lender or any applicable Lending
Installation to make any payment calculated by reference to the amount
of Loans or Credit Support Interests held or interest received by it or
by reference to the Letters of Credit or Outstanding Acceptances, by an
amount deemed material by such Lender;
and the result of any of the foregoing is to increase the cost to that Lender of
making, renewing or maintaining its Loans, Credit Support Interests, Outstanding
Acceptances or Letters of Credit or to reduce any amount received under this
Agreement, then, within thirty (30) days after receipt by the Borrower of
written demand by such Lender pursuant to Section 4.5, the Borrower shall, upon
receipt of a written statement setting forth the basis for calculating such
additional amounts, pay such Lender that portion of such increased expense
incurred or reduction in an amount received which such Lender determines is
attributable to making, funding and maintaining its Loans, Credit Support
Interests, Outstanding Acceptances, Letters of Credit and its Revolving Loan
Commitment.
4.2 Changes in Capital Adequacy Regulations. If a Lender determines (i)
the amount of capital required or expected to be maintained by such Lender, any
Lending Installation of such
44
Lender or any corporation controlling such Lender is increased as a result of a
"Change" (as defined below), and (ii) such increase in capital will result in an
increase in the cost to such Lender of maintaining its Loans, Credit Support
Interests, Outstanding Acceptances, the Letters of Credit or its obligation to
make Loans hereunder, then, within 15 days after receipt by the Borrower of
written demand by such Lender pursuant to Section 4.5, the Borrower shall pay
such Lender the amount necessary to compensate for any shortfall in the rate of
return on the portion of such increased capital which such Lender reasonably
determines is attributable to this Agreement, its Loans, its Credit Support
Interests, Outstanding Acceptances, the Letters of Credit or its obligation to
make Loans hereunder (after taking into account such Lender's policies as to
capital adequacy). "CHANGE" means (i) any change after the date of this
Agreement in the "Risk-Based Capital Guidelines" (as defined below) excluding,
for the avoidance of doubt, the effect of any phasing in of such Risk-Based
Capital Guidelines or any other capital requirements passed prior to the date
hereof, or (ii) any adoption of or change in any other law, governmental or
quasi-governmental rule, regulation, policy, guideline, interpretation, or
directive (whether or not having the force of law) after the date of this
Agreement and having general applicability to all banks and financial
institutions within the jurisdiction in which such Lender operates which affects
the amount of capital required or expected to be maintained by any Lender or any
Lending Installation or any corporation controlling any Lender. "RISK-BASED
CAPITAL GUIDELINES" means (i) the risk-based capital guidelines in effect in the
United States on the date of this Agreement, including transition rules, and
(ii) the corresponding capital regulations promulgated by regulatory authorities
outside the United States implementing the July 1988 report of the Basle
Committee on Banking Regulation and Supervisory Practices Entitled
"International Convergence of Capital Measurements and Capital Standards,"
including transition rules, and any amendments to such regulations adopted prior
to the date of this Agreement.
4.3 Availability of Types of Advances. If (i) any Lender determines
that maintenance of its Eurodollar Rate Loans at a suitable Lending Installation
would violate any applicable law, rule, regulation or directive, whether or not
having the force of law, or (ii) the Required Lenders determine that (x)
deposits of a type and maturity appropriate to match fund Eurodollar Rate
Advances are not available or (y) the interest rate applicable to a Type of
Advance does not accurately reflect the cost of making or maintaining such an
Advance, then the Agent shall suspend the availability of the affected Type of
Advance and, in the case of any occurrence set forth in clause (i) require any
Advances of the affected Type to be repaid.
4.4 Funding Indemnification. If any payment of a Eurodollar Rate
Advance occurs on a date which is not the last day of the applicable Interest
Period, whether because of acceleration, prepayment, or otherwise, or a
Eurodollar Rate Advance is not made on the date specified by the Borrower for
any reason other than default or Gross Negligence by the Lenders, the Borrower
indemnifies each Lender for any loss or reasonable cost incurred by it resulting
therefrom, including, without limitation, any loss or reasonable cost in
liquidating or employing deposits acquired to fund or maintain the Eurodollar
Rate Advance.
45
4.5 Lender Statements; Survival of Indemnity. If reasonably possible,
each Lender shall designate an alternate Lending Installation with respect to
its Eurodollar Rate Loans to reduce any liability of the Borrower to such Lender
under Sections 4.1 and 4.2 or to avoid the unavailability of a Type of Advance
under Section 4.3, so long as such designation is not materially, financially
disadvantageous to such Lender. Each Lender requiring compensation pursuant to
Section 2.15(E) or to this Article IV shall use its reasonable efforts to notify
the Borrower and the Agent in writing of any Change, law, policy, rule,
guideline or directive giving rise to such demand for compensation not later
than ninety (90) days following the date upon which the responsible account
officer of such Lender knows or should have known of such Change, law, policy,
rule, guideline or directive. Any demand for compensation pursuant to this
Article IV shall be in writing and shall state the amount due, if any, under
Section 4.1, 4.2 or 4.4 and shall set forth in reasonable detail the
calculations upon which such Lender determined such amount. Such written demand
shall be rebuttably presumed correct for all purposes. Determination of amounts
payable under such Sections in connection with a Eurodollar Rate Loan shall be
calculated as though each Lender funded its Eurodollar Rate Loan through the
purchase of a deposit of the type and maturity corresponding to the deposit used
as a reference in determining the Eurodollar Rate applicable to such Loan,
whether in fact that is the case or not. The obligations of the Borrower under
Sections 4.1, 4.2 and 4.4 shall survive payment of the Obligations and
termination of this Agreement.
ARTICLE V: CONDITIONS PRECEDENT
5.1 Initial Advances and Letters of Credit. The Lenders shall not be
required to make the initial Loans or issue any Letters of Credit unless the
Borrower has furnished to the Agent each of the following, with sufficient
copies for the Lenders, all in form and substance satisfactory to the Agent and
the Lenders:
(1) Copies of the Articles of Incorporation of the Borrower,
together with all amendments and a certificate of good standing, both
certified by the appropriate governmental officer in its jurisdiction
of incorporation;
(2) Copies, certified by the Secretary or Assistant Secretary
of the Borrower, of its By-Laws and of its Board of Directors'
resolutions (and resolutions of other bodies, if any are deemed
necessary by counsel for any Lender) authorizing the execution of the
Loan Documents;
(3) An incumbency certificate, executed by the Secretary or
Assistant Secretary of the Borrower, which shall identify by name and
title and bear the signature of the officers of the Borrower authorized
to sign the Loan Documents and to make borrowings hereunder, upon which
certificate the Lenders shall be entitled to rely until informed of any
change in writing by the Borrower;
46
(4) A certificate, in form and substance satisfactory to the
Agent, signed by the chief financial officer of the Borrower, stating
that on Closing Date no Default or Unmatured Default has occurred and
is continuing;
(5) A written opinion of the Borrower's counsel, addressed to
the Agent and the Lenders, addressing the issues identified in Exhibit
F hereto containing assumptions and qualifications acceptable to the
Agent and the Lenders;
(6) Notes payable to the order of each of the applicable
Lenders;
(7) Written money transfer instructions reasonably requested
by the Agent, addressed to the Agent and signed by an Authorized
Officer; and
(8) Such other documents as the Agent or any Lender or its
counsel may have reasonably requested, including, without limitation
all of the documents reflected on the List of Closing Documents
attached as Exhibit G to this Agreement.
5.2 Each Advance and Letter of Credit. The Lenders shall not be
required to make any Advance or issue any Letter of Credit, unless on the
applicable Borrowing Date, or in the case of a Letter of Credit, the date on
which the Letter of Credit is to be issued:
(i) There exists no Default or Unmatured Default; and
(ii) The representations and warranties contained in Article
VI are true and correct as of such Borrowing Date except for changes in
the Schedules to this Agreement reflecting transactions permitted by
this Agreement.
Each Borrowing Notice with respect to each such Advance and the letter
of credit application with respect to a Letter of Credit shall constitute a
representation and warranty by the Borrower that the conditions contained in
Sections 5.2(i) and (ii) have been satisfied. Any Lender may require a duly
completed officer's certificate in substantially the form of Exhibit H hereto
and/or a duly completed compliance certificate in substantially the form of
Exhibit I hereto as a condition to making an Advance.
ARTICLE VI: REPRESENTATIONS AND WARRANTIES
In order to induce the Agent and the Lenders to enter into this
Agreement and to make the Loans and the other financial accommodations to the
Borrower and to issue the Letters of Credit described herein, the Borrower
represents and warrants as follows to each Lender and the Agent as of the
Closing Date, and thereafter on each date as required by Section 5.2:
6.1 Organization; Corporate Powers. The Borrower and each of
its Subsidiaries (i) is a corporation duly organized, validly existing
and in good standing under the laws of the
47
jurisdiction of its organization, (ii) is duly qualified to do business as a
foreign corporation and is in good standing under the laws of each jurisdiction
in which failure to be so qualified and in good standing could not reasonably be
expected to have a Material Adverse Effect, and (iii) has all requisite
corporate power and authority to own, operate and encumber its property and to
conduct its business as presently conducted and as proposed to be conducted
other than any failure under clause (i) or (iii) the effect of which is not
reasonably likely to impair in any material respect the conduct of the
Borrower's business, or the business of the Borrower and its Subsidiaries taken
as a whole or the ability of the Borrower's or its Subsidiaries' ability to
perform their obligations under the Loan Documents.
6.2 Authority.
(A) The Borrower and each of its Subsidiaries that is a party thereto
has the requisite corporate power and authority to execute, deliver and perform
each of the Loan Documents.
(B) The execution, delivery and performance of each of the Loan
Documents and the consummation of the transactions contemplated thereby, have
been duly approved by the respective boards of directors and, if necessary, the
shareholders of the Borrower and each of its Subsidiaries that is a party
thereto, and such approvals have not been rescinded. No other corporate action
or proceedings on the part of the Borrower or such Subsidiaries are necessary to
consummate such transactions.
(C) Each of the Loan Documents to which the Borrower or any of its
Subsidiaries is a party has been duly executed and delivered by it and
constitutes its legal, valid and binding obligation, enforceable against it in
accordance with its terms (except as enforceability may be limited by
bankruptcy, insolvency, or similar laws affecting the enforcement of creditors'
rights generally), and no unmatured default, default or breach of any covenant
by any such party exists thereunder.
6.3 No Conflict; Governmental Consents. The execution, delivery and
performance of each of the Loan Documents to which the Borrower or any of its
Subsidiaries is a party do not and will not (i) conflict with the certificate or
articles of incorporation or by-laws of the Borrower or any such Subsidiary,
(ii) constitute a tortious interference with any Contractual Obligation of any
Person or conflict with, result in a breach of or constitute (with or without
notice or lapse of time or both) a default under any Requirement of Law
(including, without limitation, any Environmental Property Transfer Act) or
Contractual Obligation of the Borrower or any such Subsidiary, or require
termination of any Contractual Obligation, except such interference, breach,
default or termination which individually or in the aggregate could not
reasonably be expected to have a Material Adverse Effect, (iii) with respect to
the Loan Documents, constitute a tortious interference with any Contractual
Obligation of any Person or conflict with, result in a breach of or constitute
(with or without notice or lapse of time or both) a default under any
Requirement of Law (including, without limitation, any Environmental Property
Transfer Act) or Contractual Obligation of the Borrower or any such Subsidiary,
or require termination of any Contractual Obligation, except such interference,
breach, default or
48
termination which individually or in the aggregate could not reasonably be
expected to have a Material Adverse Effect, (iv) result in or require the
creation or imposition of any Lien whatsoever upon any of the property or assets
of the Borrower or any such Subsidiary, other than Liens permitted by the Loan
Documents, or (v) require any approval of the Borrower's or any such
Subsidiary's Board of Directors or shareholders except such as have been
obtained. Except as set forth on Schedule 6.3 to this Agreement, the execution,
delivery and performance of each of the Transaction Documents to which the
Borrower or any of its Subsidiaries is a party do not and will not require any
registration with, consent or approval of, or notice to, or other action to,
with or by any Governmental Authority, including under any Environmental
Property Transfer Act, except filings, consents or notices which have been made,
obtained or given, or which, if not made, obtained or given, individually or in
the aggregate could not reasonably be expected to have a Material Adverse
Effect.
6.4 Financial Statements.
(A) The pro forma financial statements of the Borrower and its
Subsidiaries, copies of which are attached to the Disclosure Letter, present on
a pro forma basis the financial condition of the Borrower and such Subsidiaries
as of such date, and reflect on a pro forma basis those liabilities reflected in
the notes thereto and resulting from the planned purchase for retirement of
approximately 125,000 shares of the Capital Stock of the Borrower (the "SHARE
REPURCHASE") and the other transactions contemplated by this Agreement, and the
payment or accrual of all transaction costs payable on the Closing Date with
respect to any of the foregoing. The projections and assumptions expressed in
the pro forma financials referenced in this Section 6.4(A) were prepared in good
faith and represent management's opinion based on the information available to
the Borrower at the time so furnished.
(B) Complete and accurate copies of the following financial statements
and the following related information have been delivered to the Agent: (1) the
balance sheet of the Borrower as at November 30, 1996, the related combined
statements of income, changes in stockholders' equity and cash flows of the
Borrower and its consolidated Subsidiaries for the fiscal year then ended, and
the audit report related thereto; and (2) the unaudited balance sheet of the
Borrower and its consolidated Subsidiaries for the fiscal period ended May 31,
1997 and the related statements of operations, changes in stockholder's equity
and cash flows of the Borrower and its consolidated Subsidiaries for the two
fiscal quarter period then ended.
6.5 No Material Adverse Change. (a) Since May 31, 1997 up to the
Closing Date, there has occurred no change in the business, properties,
condition (financial or otherwise) or results of operations of the Borrower, or
the Borrower and its Subsidiaries taken as a whole or any other event which has
had or could reasonably be expected to have a Material Adverse Effect.
(b) Since the Closing Date, there has occurred no change in the
business, properties, condition (financial or otherwise) or results of
operations of the Borrower or the Borrower and its Subsidiaries taken as a whole
or any other event which has had or could reasonably be expected to have a
Material Adverse Effect.
49
6.6 Taxes.
(A) Tax Examinations. Except as described in the Disclosure Letter, all
material deficiencies which have been asserted against the Borrower or any of
the Borrower's Subsidiaries as a result of any federal, state, local or foreign
tax examination for each taxable year in respect of which an examination has
been conducted have been fully paid or finally settled or are being contested in
good faith, and as of the Closing Date no issue has been raised by any taxing
authority in any such examination which, by application of similar principles,
reasonably can be expected to result in assertion by such taxing authority of a
material deficiency for any other year not so examined which has not been
reserved for in the Borrower's consolidated financial statements to the extent,
if any, required by Agreement Accounting Principles. Except as permitted
pursuant to Section 7.2(D), neither the Borrower nor any of the Borrower's
Subsidiaries anticipates any material tax liability with respect to the years
which have not been closed pursuant to applicable law.
(B) Payment of Taxes. All tax returns and reports of the Borrower and
its Subsidiaries required to be filed have been timely filed, and all material
taxes, assessments, fees and other governmental charges thereupon and upon their
respective property, assets, income and franchises which are shown in such
returns or reports to be due and payable have been paid except those items which
are being contested in good faith and have been reserved for in accordance with
Agreement Accounting Principles. The Borrower has no knowledge of any proposed
tax assessment against the Borrower or any of its Subsidiaries that will have or
could reasonably be expected to have a Material Adverse Effect.
(C) For purposes of this Section 6.6, "material" means any
noncompliance or basis for liability which could reasonably be likely to subject
the Borrower or the Borrower's Subsidiaries to liability, individually for the
Borrower or any Subsidiary in excess of $1,000,000 or in the aggregate for the
Borrower and its Subsidiaries in excess of $5,000,000.
6.7 Litigation; Loss Contingencies and Violations. Except as set forth
in Schedule 6.7 to this Agreement, there is no action, suit, proceeding,
arbitration or (to the Borrower's knowledge) investigation before or by any
Governmental Authority or private arbitrator pending or, to the Borrower's
knowledge, threatened against the Borrower or any of its Subsidiaries or any
property of any of them which will have or could reasonably be expected to have
a Material Adverse Effect. There is no material loss contingency within the
meaning of Agreement Accounting Principles which has not been reflected in the
consolidated financial statements of the Borrower prepared and delivered
pursuant to Section 7.1(A) for the fiscal period during which such material loss
contingency was incurred. Neither the Borrower nor any of its Subsidiaries is
(A) in violation of any applicable Requirements of Law which violation will have
or could reasonably be expected to have a Material Adverse Effect, or (B)
subject to or in default with respect to any final judgment, writ, injunction,
restraining order or order of any nature, decree, rule or regulation of any
court or Governmental Authority which will have or could reasonably be expected
to have a Material Adverse Effect.
50
6.8 Subsidiaries. Schedule 6.8 to this Agreement (i) contains a
description of the corporate structure of the Borrower, its Subsidiaries and any
other Person in which the Borrower or any of its Subsidiaries holds an Equity
Interest (both narratively and in chart form); and (ii) accurately sets forth
(A) the correct legal name, the jurisdiction of incorporation and the
jurisdictions in which each of the Borrower and the direct and indirect domestic
Subsidiaries and Material Subsidiaries which are foreign Subsidiaries of the
Borrower is qualified to transact business as a foreign corporation, (B) for
every domestic Subsidiary and for each foreign Subsidiary which is a Material
Subsidiary, the authorized, issued and outstanding shares of each class of
Capital Stock of each of such Subsidiaries and the owners of such shares (both
as of the Closing Date and on a fully-diluted basis), (C) for each foreign
Subsidiary which is not a Material Subsidiary, the percentage of ownership by
the Borrower of such Subsidiary's Capital Stock, and (D) a summary of the direct
and indirect partnership, joint venture, or other Equity Interests, if any, of
the Borrower and each Subsidiary of the Borrower in any Person that is not a
corporation. The outstanding Capital Stock of the Borrower and each of the
Borrower's Material Subsidiaries is duly authorized, validly issued, fully paid
and nonassessable.
6.9 ERISA. Except as disclosed on Schedule 6.9, no Benefit Plan has
incurred any accumulated funding deficiency (as defined in Sections 302(a)(2) of
ERISA and 412(a) of the Code) whether or not waived. Neither the Borrower nor
any member of the Controlled Group has incurred any liability to the PBGC which
remains outstanding other than the payment of premiums, and there are no premium
payments which have become due which are unpaid. Schedule B to the most recent
annual report filed with the IRS with respect to each Benefit Plan is complete
and accurate. Since the date of each such Schedule B, there has been no material
adverse change in the funding status or financial condition of the Benefit Plan
relating to such Schedule B. Neither the Borrower nor any member of the
Controlled Group has (i) failed to make a required contribution or payment to a
Multiemployer Plan or (ii) made a complete or partial withdrawal under Sections
4203 or 4205 of ERISA from a Multiemployer Plan. Neither the Borrower nor any
member of the Controlled Group has failed to make a required installment or any
other required payment under Section 412 of the Code on or before the due date
for such installment or other payment. Neither the Borrower nor any member of
the Controlled Group is required to provide security to a Benefit Plan under
Section 401(a)(29) of the Code due to a Plan amendment that results in an
increase in current liability for the plan year. Except for benefits provided to
a select group of management employees which in any event are not material,
neither the Borrower nor any of its Subsidiaries maintains or contributes to any
employee welfare benefit plan within the meaning of Section 3(1) of ERISA which
provides benefits to employees after termination of employment other than as
required by Section 601 of ERISA. Each Plan which is intended to be qualified
under Section 401(a) of the Code as currently in effect is so qualified, and
each trust related to any such Plan is exempt from federal income tax under
Section 501(a) of the Code as currently in effect. The Borrower and all
Subsidiaries are in compliance in all material respects with the
responsibilities, obligations and duties imposed on them by ERISA and the Code
with respect to all Plans. Neither the Borrower nor any of its Subsidiaries nor
any fiduciary of any Plan has engaged in a nonexempt prohibited transaction
described in Sections 406 of ERISA or 4975 of the Code which could reasonably be
expected to subject the Borrower to liability in excess of $1,000,000. Neither
the Borrower nor any member of the Controlled
51
Group has taken or failed to take any action which would constitute or result in
a Termination Event, which action or inaction could reasonably be expected to
subject the Borrower and its Subsidiaries to liability, individually or in the
aggregate, in excess of $1,000,000. Neither the Borrower nor any Subsidiary is
subject to any liability under Sections 4063, 4064, 4069, 4204 or 4212(c) of
ERISA and no other member of the Controlled Group is subject to any liability
under Sections 4063, 4064, 4069, 4204 or 4212(c) of ERISA which could reasonably
be expected to subject the Borrower and its Subsidiaries to liability,
individually or in the aggregate, in excess of $1,000,000. Neither the Borrower
nor any of its Subsidiaries has, by reason of the transactions contemplated
hereby, any obligation to make any payment to any employee pursuant to any Plan
or existing contract or arrangement.
6.10 Accuracy of Information. The information, exhibits and reports
furnished by or on behalf of the Borrower and any of its Subsidiaries to the
Agent or to any Lender in connection with the negotiation of, or compliance
with, the Loan Documents, the representations and warranties of the Borrower and
its Subsidiaries contained in the Loan Documents, and all certificates and
documents delivered to the Agent and the Lenders pursuant to the terms thereof,
taken as a whole, do not contain as of the date furnished any untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements contained herein or therein, in light of the circumstances under
which they were made, not materially misleading.
6.11 Securities Activities. Neither the Borrower nor any of its
Subsidiaries is engaged in the business of extending credit for the purpose of
purchasing or carrying Margin Stock.
6.12 Material Agreements. Neither the Borrower nor any Subsidiary is a
party to any Contractual Obligation or subject to any charter or other corporate
restriction which individually or in the aggregate will have or could reasonably
be expected to have a Material Adverse Effect. Neither the Borrower nor any of
its Subsidiaries has received notice or has knowledge that (i) it is in default
in the performance, observance or fulfillment of any of the obligations,
covenants or conditions contained in any Contractual Obligation applicable to
it, or (ii) any condition exists which, with the giving of notice or the lapse
of time or both, would constitute a default with respect to any such Contractual
Obligation, in each case, except where such default or defaults, if any,
individually or in the aggregate will not have or could not reasonably be
expected to have a Material Adverse Effect.
6.13 Compliance with Laws. The Borrower and its Subsidiaries are in
compliance with all Requirements of Law applicable to them and their respective
businesses, in each case where the failure to so comply individually or in the
aggregate could reasonably be expected to have a Material Adverse Effect.
6.14 Assets and Properties. The Borrower and each of its Subsidiaries
has good and marketable title to substantially all of its assets and properties
(tangible and intangible, real or personal) owned by it or a valid leasehold
interest in substantially all of its leased assets (except insofar as
marketability may be limited by any laws or regulations of any Governmental
Authority affecting such assets), and all such assets and property are free and
clear of all Liens,
52
except Liens permitted under Section 7.3(C). Substantially all of the assets and
properties owned by, leased to or used by the Borrower and/or each such
Subsidiary of the Borrower are in adequate operating condition and repair,
ordinary wear and tear excepted. Neither this Agreement nor any other
Transaction Document, nor any transaction contemplated under any such agreement,
will affect any right, title or interest of the Borrower or such Subsidiary in
and to any of such assets in a manner that would have or could reasonably be
expected to have a Material Adverse Effect.
6.15 Statutory Indebtedness Restrictions. Neither the Borrower nor any
of its Subsidiaries is subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act, the Interstate Commerce Act, or the
Investment Company Act of 1940, or any other federal or state statute or
regulation which limits its ability to incur indebtedness or its ability to
consummate the transactions contemplated hereby.
6.16 Insurance. The Borrower and its Subsidiaries currently maintain
such insurance policies and programs reflect coverage that is reasonably
consistent with prudent industry practice.
6.17 Labor Matters.
As of the Closing Date, no attempt to organize the employees of the
Borrower, and no labor disputes, strikes or walkouts affecting the operations of
the Borrower or any of its Subsidiaries, is pending, or, to the Borrower's
knowledge, threatened, planned or contemplated.
6.18 Environmental Matters. (A) Except as disclosed on Schedule 6.18 to
this Agreement:
(i) the operations of the Borrower and its Subsidiaries comply
in all material respects with Environmental, Health or Safety
Requirements of Law;
(ii) the Borrower and its Subsidiaries have all permits,
licenses or other authorizations required under Environmental, Health
or Safety Requirements of Law and are in material compliance with such
permits;
(iii) neither the Borrower, any of its Subsidiaries nor any of
their respective present property or operations, or, to the best of,
the Borrower's or any of its Subsidiaries' knowledge, any of their
respective past property or operations, are subject to or the subject
of, any investigation known to the Borrower or any of its Subsidiaries,
any judicial or administrative proceeding, order, judgment, decree,
settlement or other agreement respecting: (A) any material violation of
Environmental, Health or Safety Requirements of Law; (B) any material
remedial action; or (C) any material claims or liabilities arising from
the Release or threatened Release of a Contaminant into the
environment;
53
(iv) there is not now, nor to the best of the Borrower's or
any of its Subsidiaries' knowledge has there ever been on or in the
property of the Borrower or any of its Subsidiaries, in material
violation of Environmental, Health or Safety Requirements of Law, any
landfill, waste pile, underground storage tanks, aboveground storage
tanks, surface impoundment or hazardous waste storage facility of any
kind, any polychlorinated biphenyls (PCBs) used in hydraulic oils,
electric transformers or other equipment, or any asbestos containing
material which in any such instance or all such instances in the
aggregate is in material violation of Environmental, Health or Safety
Requirements of Law; and
(v) neither the Borrower nor any of its Subsidiaries has any
material liability in connection with any Release or threatened Release
of a Contaminant into the environment.
(B) For purposes of this Section 6.18 "material" means any
noncompliance or basis for liability which could reasonably be likely to subject
the Borrower or the Borrower's Subsidiaries to liability, individually or in the
aggregate, in excess of $5,000,000.
6.19 Solvency. After giving effect to (i) the Loans to be made on the
Closing Date or such other date as Loans requested hereunder are made, (ii) the
Share Repurchase and the other transactions contemplated by this Agreement and
(iii) the payment and accrual of all transaction costs with respect to the
foregoing, the Borrower and its Subsidiaries taken as a whole are Solvent.
ARTICLE VII : COVENANTS
The Borrower covenants and agrees that so long as any Commitments are
outstanding and thereafter until payment in full of all of the Obligations
(other than contingent indemnity obligations) and termination of all Letters of
Credit and Outstanding Acceptances, unless the Required Lenders shall otherwise
give prior written consent:
7.1 Reporting. The Borrower shall:
(A) Financial Reporting. Furnish to the Lenders:
(i) Quarterly Reports. As soon as practicable, and in any
event within forty-five (45) days after the end of each fiscal quarter
in each fiscal year, the consolidated and consolidating balance sheet
of the Borrower and its Subsidiaries as at the end of such period and
the related consolidated and consolidating statements of income and
cash flows of the Borrower and its Subsidiaries for such fiscal quarter
and for the period from the beginning of the then current fiscal year
to the end of such fiscal quarter, certified by the chief financial
officer of the Borrower on behalf of the Borrower as fairly presenting
the consolidated and consolidating financial position of the Borrower
and its Subsidiaries
54
as at the dates indicated and the results of their operations and cash
flows for the periods indicated in accordance with Agreement Accounting
Principles, subject to normal year end adjustments.
(ii) Annual Reports. As soon as practicable, and in any event
within ninety (90) days after the end of each fiscal year, (a) the
consolidated balance sheet of the Borrower and its Subsidiaries as at
the end of such fiscal year and the related consolidated statements of
income, stockholders' equity and cash flows of the Borrower and its
Subsidiaries for such fiscal year, and in comparative form the
corresponding figures for the previous fiscal year along with
consolidating schedules in form and substance sufficient to calculate
the financial covenants set forth in Section 7.4 and (b) an audit
report on the items listed in clause (a) hereof (other than the
consolidating schedules) of independent certified public accountants of
recognized national standing, which audit report shall be unqualified
and shall state that such financial statements fairly present the
consolidated and consolidating financial position of the Borrower and
its Subsidiaries as at the dates indicated and the results of their
operations and cash flows for the periods indicated in conformity with
Agreement Accounting Principles and that the examination by such
accountants in connection with such consolidated and consolidating
financial statements has been made in accordance with generally
accepted auditing standards. The deliveries made pursuant to this
clause (ii) shall be accompanied by (x) any management letter
identifying material weaknesses in internal accounting controls
prepared by the above-referenced accountants, (y) a certificate of such
accountants that, in the course of their examination necessary for
their certification of the foregoing, they have obtained no knowledge
of any Default or Unmatured Default, or if, in the opinion of such
accountants, any Default or Unmatured Default shall exist, stating the
nature and status thereof.
(iii) Officer's Certificate. Together with each delivery of
any financial statement (a) pursuant to clauses (i) and (ii) of this
Section 7.1(A), an Officer's Certificate of the Borrower, substantially
in the form of Exhibit H attached hereto and made a part hereof,
stating that no Default or Unmatured Default exists, or if any Default
or Unmatured Default exists, stating the nature and status thereof and
(b) a compliance certificate, substantially in the form of Exhibit I
attached hereto and made a part hereof, signed by the Borrower's Chief
Financial Officer or Treasurer, setting forth calculations for the
period then ended for Section 2.5(B), if applicable, which demonstrate
compliance with the provisions of Section 7.3(B) and Section 7.4, and
which calculate the Leverage Ratio for purposes of determining the then
Applicable Eurodollar Margin and Applicable Commitment Fee Percentage.
(iv) Budgets; Business Plans; Financial Projections. As soon
as practicable and in any event not later than thirty (30) days after
the beginning of each fiscal year, a copy of the plan and forecast
(including a projected balance sheet, income statement and a statement
of cash flow) of the Borrower and its Subsidiaries for the upcoming
fiscal year.
55
(B) Notice of Default. Promptly upon any of the chief executive
officer, chief operating officer, chief financial officer, treasurer or
controller of the Borrower obtaining knowledge (i) of any condition or event
which constitutes a Default or Unmatured Default, or becoming aware that any
Lender or Agent has given any written notice with respect to a claimed Default
or Unmatured Default under this Agreement, or (ii) that any Person has given any
written notice to the Borrower or any Subsidiary of the Borrower or taken any
other action with respect to a claimed default or event or condition of the type
referred to in Section 8.1(E), deliver to the Agent and the Lenders an Officer's
Certificate specifying (a) the nature and period of existence of any such
claimed default, Default, Unmatured Default, condition or event, (b) the notice
given or action taken by such Person in connection therewith, and (c) what
action the Borrower has taken, is taking and proposes to take with respect
thereto.
(C) Lawsuits. (i) Promptly upon the Borrower obtaining knowledge of the
institution of, or written threat of, any action, suit, proceeding, governmental
investigation or arbitration against or affecting the Borrower or any of its
Subsidiaries or any property of the Borrower or any of its Subsidiaries not
previously disclosed pursuant to Section 6.7, which action, suit, proceeding,
governmental investigation or arbitration exposes, or in the case of multiple
actions, suits, proceedings, governmental investigations or arbitrations arising
out of the same general allegations or circumstances which expose, in the
Borrower's reasonable judgment, the Borrower or any of its Subsidiaries to
liability in an amount aggregating $1,000,000 or more (exclusive of claims
covered by insurance policies of the Borrower or any of its Subsidiaries unless
the insurers of such claims have disclaimed coverage or reserved the right to
disclaim coverage on such claims and exclusive of claims covered by the
indemnity of a financially responsible indemnitor in favor of the Borrower or
any of its Subsidiaries unless the indemnitor has disclaimed or reserved the
right to disclaim coverage thereof), give written notice thereof to the Agent
and the Lenders and provide such other information as may be reasonably
available to enable each Lender and the Agent and its counsel to evaluate such
matters; and (ii) in addition to the requirements set forth in clause (i) of
this Section 7.1(C), upon request of the Agent or the Required Lenders, promptly
give written notice of the status of any action, suit, proceeding, governmental
investigation or arbitration covered by a report delivered pursuant to clause
(i) above and provide such other information as may be reasonably available to
it that would not jeopardize any attorney-client privilege by disclosure to the
Lenders to enable each Lender and the Agent and its counsel to evaluate such
matters.
(D) ERISA Notices. Deliver or cause to be delivered to the Agent and
the Lenders, at the Borrower's expense, the following information and notices as
soon as reasonably possible, and in any event:
(i) (a) within fifteen (15) Business Days after the Borrower
obtains knowledge that a Termination Event has occurred, a written
statement of the chief financial officer of the Borrower describing
such Termination Event and the action, if any, which the Borrower has
taken, is taking or proposes to take with respect thereto, and when
known, any action taken or threatened by the IRS, DOL or PBGC with
respect thereto and (b) within fifteen (15) Business Days after any
member of the Controlled Group obtains
56
knowledge that a Termination Event has occurred which could reasonably
be expected to subject the Borrower to liability in excess of
$1,000,000, a written statement of the chief financial officer of the
Borrower describing such Termination Event and the action, if any,
which the member of the Controlled Group has taken, is taking or
proposes to take with respect thereto, and when known, any action taken
or threatened by the IRS, DOL or PBGC with respect thereto;
(ii) within fifteen (15) Business Days after the Borrower or
any of its Subsidiaries obtains knowledge that a prohibited transaction
(defined in Sections 406 of ERISA and Section 4975 of the Code) has
occurred, a statement of the chief financial officer of the Borrower
describing such transaction and the action which the Borrower or such
Subsidiary has taken, is taking or proposes to take with respect
thereto;
(iii) within fifteen (15) Business Days after the material
increase in the benefits of any existing Plan or the establishment of
any new Benefit Plan or the commencement of, or obligation to commence,
contributions to any Benefit Plan or Multiemployer Plan to which the
Borrower or any member of the Controlled Group was not previously
contributing, notification of such increase, establishment,
commencement or obligation to commence and the amount of such
contributions;
(iv) within fifteen (15) Business Days after the Borrower or
any of its Subsidiaries receives notice of any unfavorable
determination letter from the IRS regarding the qualification of a Plan
under Section 401(a) of the Code, copies of each such letter;
(v) within fifteen (15) Business Days after the establishment
of any foreign employee benefit plan or the commencement of, or
obligation to commence, contributions to any foreign employee benefit
plan to which the Borrower or any Subsidiary was not previously
contributing, notification of such establishment, commencement or
obligation to commence and the amount of such contributions;
(vi) within fifteen (15) Business Days of request of any
Lender, copies of each annual report (form 5500 series), including
Schedule B thereto, filed with respect to each Benefit Plan;
(vii) within fifteen (15) Business Days of request of any
Lender, each actuarial report for any Benefit Plan or Multiemployer
Plan and each annual report for any Multiemployer Plan, copies of each
such report;
(viii) within fifteen (15) Business Days after the filing
thereof with the IRS, a copy of each funding waiver request filed with
respect to any Benefit Plan and all communications received by the
Borrower or a member of the Controlled Group with respect to such
request;
57
(ix) within fifteen (15) Business Days after receipt by the
Borrower or any member of the Controlled Group of the PBGC's intention
to terminate a Benefit Plan or to have a trustee appointed to
administer a Benefit Plan, copies of each such notice;
(x) within fifteen (15) Business Days after receipt by the
Borrower or any member of the Controlled Group of a notice from a
Multiemployer Plan regarding the imposition of withdrawal liability,
copies of each such notice;
(xi) within fifteen (15) Business Days after the Borrower or
any member of the Controlled Group fails to make a required installment
or any other required payment under Section 412 of the Code on or
before the due date for such installment or payment, a notification of
such failure; and
(xii) within fifteen (15) Business Days after the Borrower or
any member of the Controlled Group knows or has reason to know that (a)
a Multiemployer Plan has been terminated, (b) the administrator or plan
sponsor of a Multiemployer Plan intends to terminate a Multiemployer
Plan, or (c) the PBGC has instituted or will institute proceedings
under Section 4042 of ERISA to terminate a Multiemployer Plan.
(E) Labor Matters. Notify the Agent and the Lenders in writing,
promptly upon the Borrower's learning thereof, of (i) any material labor dispute
to which the Borrower or any of its Material Subsidiaries may become a party,
including, without limitation, any strikes, lockouts or other disputes relating
to such Persons' plants and other facilities and (ii) any Worker Adjustment and
Retraining Notification Act liability incurred with respect to the closing of
any plant or other facility of the Borrower or any of its Material Subsidiaries.
(F) Other Indebtedness. Deliver to the Agent (i) a copy of each regular
report, notice or communication regarding potential or actual defaults
(including any accompanying officer's certificate) delivered by or on behalf of
the Borrower or any of its Subsidiaries to the holders of funded Indebtedness
which has an outstanding principal balance of $5,000,000 or more pursuant to the
terms of the agreements governing such Indebtedness, such delivery to be made at
the same time and by the same means as such notice or other communication is
delivered to such holders, and (ii) a copy of each notice received by the
Borrower or any of its Subsidiaries from the holders of funded Indebtedness
pursuant to the terms of such Indebtedness, such delivery to be made promptly
after such notice or other communication is received by the Borrower or
Subsidiary, as applicable.
(G) Other Reports. Deliver or cause to be delivered to the Agent and
the Lenders copies of all financial statements, reports and notices, if any,
sent or made available generally by the Borrower to its securities holders or
filed with the Commission by the Borrower, all press releases made available
generally by the Borrower or any of the Borrower's Subsidiaries to the public
concerning material developments in the business of the Borrower or any such
Subsidiary and all notifications received from the Commission by the Borrower or
its Subsidiaries pursuant to the Securities Exchange Act of 1934 and the rules
promulgated thereunder.
58
(H) Environmental Notices. As soon as possible and in any event within
ten (10) days after receipt by the Borrower, deliver to the Agent and the
Lenders a copy of (i) any notice or claim to the effect that the Borrower or any
of its Subsidiaries is or may be liable to any Person as a result of the Release
by the Borrower, any of its Subsidiaries, or any other Person of any Contaminant
into the environment, and (ii) any notice alleging any violation of any
Environmental, Health or Safety Requirements of Law by the Borrower or any of
its Subsidiaries if, in either case, such notice or claim relates to an event
which could reasonably be expected to subject the Borrower and its Subsidiaries
to liability individually or in the aggregate in excess of $3,000,000.
(I) Other Information. Promptly upon receiving a request therefor from
the Agent, prepare and deliver to the Agent and the Lenders such other
information with respect to the Borrower, any of its Subsidiaries, or the
Collateral, including, without limitation, schedules identifying and describing
the Collateral and any dispositions thereof or any Asset Sale or Financing (and
the use of the Net Cash Proceeds thereof), as from time to time may be
reasonably requested by the Agent.
7.2 Affirmative Covenants.
(A) Corporate Existence, Etc. Except as permitted pursuant to Section
7.3(I), the Borrower shall, and shall cause each of its Subsidiaries to, at all
times maintain its corporate existence and preserve and keep, or cause to be
preserved and kept, in full force and effect its rights and franchises material
to its businesses.
(B) Corporate Powers; Conduct of Business. The Borrower shall, and
shall cause each of its Subsidiaries to, qualify and remain qualified to do
business in each jurisdiction in which the nature of its business requires it to
be so qualified and where the failure to be so qualified will have or could
reasonably be expected to have a Material Adverse Effect. The Borrower will, and
will cause each Subsidiary to, carry on and conduct its business in
substantially the same manner and in substantially the same fields of enterprise
as it is presently conducted.
(C) Compliance with Laws, Etc. The Borrower shall, and shall cause its
Subsidiaries to, (a) comply with all Requirements of Law and all restrictive
covenants affecting such Person or the business, properties, assets or
operations of such Person unless failure to comply could not reasonably be
expected to have a Material Adverse Effect and (b) obtain as needed all Permits
necessary for its operations and maintain such Permits in good standing unless
failure to obtain such Permits could not reasonably be expected to have a
Material Adverse Effect.
(D) Payment of Taxes and Claims; Tax Consolidation. The Borrower shall
pay, and cause each of its Subsidiaries to pay, (i) all taxes, assessments and
other governmental charges imposed upon it or on any of its properties or assets
or in respect of any of its franchises, business, income or property before any
penalty or interest accrues thereon, and (ii) all material claims (including,
without limitation, claims for labor, services, materials and supplies) for sums
which have become due and payable and which by law have or may become a Lien
(other than a
59
Lien permitted by Section 7.3(C)) upon any of the Borrower's or such
Subsidiary's property or assets, prior to the time when any penalty or fine
shall be incurred with respect thereto; provided, however, that no such taxes,
assessments and governmental charges referred to in clause (i) above or claims
referred to in clause (ii) above (and interest, penalties or fines relating
thereto) need be paid if being contested in good faith by appropriate
proceedings diligently instituted and conducted and if such reserve or other
appropriate provision, if any, as shall be required in conformity with Agreement
Accounting Principles shall have been made therefor.
(E) Insurance. The Borrower shall maintain for itself and its
Subsidiaries, or shall cause each of its Subsidiaries to maintain in full force
and effect, the insurance policies and programs required by Section 6.16 of this
Agreement as reflect coverage that is reasonably consistent with prudent
industry practice.
(F) Inspection of Property; Books and Records; Discussions. The
Borrower shall permit and cause each of the Borrower's Subsidiaries to permit,
any authorized representative(s) designated by either the Agent or any Lender to
visit and inspect any of the properties of the Borrower or any of its
Subsidiaries, to examine, audit, check and make copies of their respective
financial and accounting records, books, journals, orders, receipts and any
correspondence and other data relating to their respective businesses or the
transactions contemplated hereby (including, without limitation, in connection
with environmental compliance, hazard or liability), and to discuss their
affairs, finances and accounts with their officers and upon prior written notice
to Borrower, independent certified public accountants, all upon reasonable
notice and at such reasonable times during normal business hours, as often as
may be reasonably requested. The Borrower shall keep and maintain, and cause
each of the Borrower's Subsidiaries to keep and maintain, in all material
respects, proper books of record and account in which entries in conformity with
Agreement Accounting Principles shall be made of all dealings and transactions
in relation to their respective businesses and activities. If a Default has
occurred and is continuing, the Borrower, upon the Agent's request, shall turn
over copies of any such records to the Agent or its representatives and, upon
any Lender's request, the Agent shall turn over copies of any such records to
such Lender or its representatives.
(G) ERISA Compliance. The Borrower shall, and shall cause each of the
Borrower's Subsidiaries to, establish, maintain and operate all Plans to comply
in all material respects with the provisions of ERISA, the Code, all other
applicable laws, and the regulations and interpretations thereunder and the
respective requirements of the governing documents for such Plans.
(H) Maintenance of Property. The Borrower shall cause all property used
or useful in the conduct of its business or the business of any Subsidiary to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Borrower may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section 7.2(H) shall prevent the
Borrower from discontinuing the
60
operation or maintenance of any of such property if such discontinuance is, in
the judgment of the Borrower, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material respect to
the Agent or the Lenders.
(I) Environmental Compliance. The Borrower and its Subsidiaries shall
comply with all Environmental, Health or Safety Requirements of Law, except
where noncompliance will not have or is not reasonably likely to subject the
Borrower or any of its Subsidiaries to liability, individually or in the
aggregate, in excess of $5,000,000.
(J) Use of Proceeds. The Borrower shall use the proceeds of the
Revolving Loans and the Term Loans to (i) consummate the Share Repurchase, (ii)
repay certain existing Indebtedness, and (iii) provide funds for the additional
working capital needs and other general corporate purposes of the Borrower.
Except to the limited extent set forth above, the Borrower will not, nor will it
permit any Subsidiary to, use any of the proceeds of the Loans to purchase or
carry any Margin Stock or to make any Acquisition, other than a Permitted
Acquisition pursuant to Section 7.3(G).
(K) Subsidiary Guarantees and Pledges. The Borrower shall (i) on or
prior to the sixtieth (60th) day following the Closing Date, execute one or more
pledge agreements or share mortgages with respect to 65% of the shares of each
of Binks Xxxxx, Ltd. and Xxxxx, X.X., together with appropriate corporate
resolutions and other documentation (including opinions, if requested by the
Agent, the stock certificates representing the shares subject to such pledge,
stock powers with respect thereto executed in blank, and such other documents as
shall be reasonably requested to perfect the Lien of such pledge) in each case
in form and substance reasonably satisfactory to the Agent, and the Agent shall
be reasonably satisfied that it has a first priority perfected pledge of or
charge over such shares, which lien shall be extended equally and ratably to the
holders of the Senior Notes pursuant to the Collateral Sharing Agreement; (ii)
cause each domestic Subsidiary that is, at any time, a Material Subsidiary to
deliver to the Agent an executed guaranty supplement to become a guarantor under
the Guaranty in the form attached to the Guaranty and appropriate corporate
resolutions, opinions and other documentation in form and substance reasonably
satisfactory to the Agent; and (iii) for each foreign Subsidiary that is, at any
time, a Material Subsidiary, within sixty (60) days of the date following which
the Borrower knew or should have known such Subsidiary became a Material
Subsidiary to execute and deliver to the Agent one or more pledge agreements or
share mortgages with respect to 65% of the shares of each such Material
Subsidiary together with appropriate corporate resolutions and other
documentation (including opinions, if requested by the Agent, the stock
certificates representing the shares subject to such pledge, stock powers with
respect thereto executed in blank, and such other documents as shall be
reasonably requested to perfect the Lien of such pledge) in each case in form
and substance reasonably satisfactory to the Agent, and the Agent shall be
reasonably satisfied that it has a first priority perfected pledge of or charge
over such shares, which lien shall be extended equally and ratably to the
holders of the Senior Notes pursuant to the Collateral Sharing Agreement.
61
7.3 Negative Covenants.
(A) Indebtedness. Neither the Borrower nor any of its Subsidiaries
shall directly or indirectly create, incur, assume or otherwise become or remain
directly or indirectly liable with respect to any Indebtedness, except:
(i) the Obligations;
(ii) Indebtedness evidenced by the Senior Notes;
(iii) Permitted Existing Indebtedness and Permitted
Refinancing Indebtedness;
(iv) Indebtedness in respect of obligations secured by
Customary Permitted Liens;
(v) Indebtedness constituting Contingent Obligations permitted
by Section 7.3(E);
(vi) Indebtedness arising from intercompany loans (a) from any
Subsidiary to the Borrower or any wholly-owned Subsidiary and (b)
intercompany loans from the Borrower to its Subsidiaries permitted
under Section 7.3(S);
(vii) Indebtedness in respect of Hedging Obligations permitted
under Section 7.3(Q);
(viii) secured or unsecured purchase money Indebtedness
(including Capitalized Leases) incurred by the Borrower or any of its
Subsidiaries after the Closing Date to finance the acquisition of fixed
assets, if (1) at the time of such incurrence, no Default or Unmatured
Default has occurred and is continuing or would result from such
incurrence, (2) such Indebtedness has a scheduled maturity and is not
due on demand, (3) such Indebtedness does not exceed the lower of the
fair market value or the cost of the applicable fixed assets on the
date acquired, (4) such Indebtedness does not exceed $5,000,000 in the
aggregate outstanding at any time, and (5) any Lien securing such
Indebtedness is permitted under Section 7.3(C) (such Indebtedness being
referred to herein as "PERMITTED PURCHASE MONEY INDEBTEDNESS");
(ix) Indebtedness with respect to surety, appeal and
performance bonds obtained by the Borrower or any of its Subsidiaries
in the ordinary course of business;
(x) Unsecured Subordinated Indebtedness the terms (including,
without limitation, maturity, amortization, interest rate, premiums,
fees, covenants, events of default, and remedies) of which are
acceptable to the Agent when issued, but in each case not any increase
in the principal amount thereof and not any refinancing, modification,
refunding or extension of maturity thereof, in whole or in part, unless
such refinancing,
62
modification, refunding or extension is not materially less favorable
to the Borrower, including, without limitation, with respect to amount,
maturity, amortization, interest rate, premiums, fees, covenants,
subordination terms, events of default and remedies; provided any such
Subordinated Indebtedness incurred by the Borrower or any Subsidiary to
the seller in any Permitted Acquisition as part of the consideration
therefor shall not exceed $10,000,000 in the aggregate outstanding at
any time (the Indebtedness under this clause (x) being referred to as
"PERMITTED SUBORDINATED INDEBTEDNESS");
(xi) Indebtedness evidenced by the Outstanding Acceptances;
(xii) Indebtedness which is outstanding at another Person
which is the target company in a Permitted Acquisition and either
remains outstanding at such Person when its Equity Interests are
acquired by the Borrower or one of its Subsidiaries or is assumed by
the Borrower or one of its Subsidiaries in connection with the purchase
of the assets of such target; provided none of such Indebtedness was
incurred in connection with or in anticipation of such Permitted
Acquisition; provided, further, any Liens in respect of such
Indebtedness shall extend only to the assets of such Person;
(xiii) Indebtedness in respect of judgments or awards which
have been in force for less than the applicable appeal period so long
as execution is not levied thereunder (or in respect of which the
Borrower or its Subsidiary, as applicable, shall at the time in good
faith be prosecuting an appeal or proceedings for review and in respect
of which a stay of execution shall have been obtained pending such
appeal or review) and which does not, in the aggregate, exceed
$1,000,000; and
(xiv) Indebtedness in addition to that referred to elsewhere
in this Section 7.3(A) in an outstanding principal amount not to exceed
(a) $10,000,000 in the aggregate at any time for the Borrower and its
Subsidiaries and (b) $7,500,000 in the aggregate at any time for the
Borrowers' Subsidiaries.
(B) Sales of Assets. Neither the Borrower nor any of its Subsidiaries
shall sell, assign, transfer, lease, convey or otherwise dispose of any
property, whether now owned or hereafter acquired, or any income or profits
therefrom, or enter into any agreement to do so, except:
(i) sales of Inventory and other assets in the ordinary course
of business;
(ii) the disposition in the ordinary course of business of
equipment that is obsolete, excess or no longer useful in the
Borrower's or its Subsidiaries' business;
(iii) the sale of the Borrower's Franklin Park, Illinois
facility;
(iv) the sale of Binks de Mexico, S.A. de C.V.'s Mexico City
facility; and
63
(v) sales, assignments, transfers, leases, conveyances or
other dispositions of other assets (other than receivables) to Persons
which are not Affiliates of the Borrower if the value of such assets
(which, for these purposes, shall mean the greater of such assets' book
value at the time of sale or other disposition or the proceeds realized
by the Borrower or its Subsidiaries from the sale or disposition of
such assets), when added to the value of all other assets sold or
disposed of by the Company and its Subsidiaries under this clause (v)
after the Closing Date, does not exceed ten percent (10%) of the
Borrower's Consolidated Tangible Assets determined at the end of the
fiscal year immediately preceding that in which such transaction is
proposed to be entered into.
(C) Liens. Neither the Borrower nor any of its Subsidiaries shall
directly or indirectly create, incur, assume or permit to exist any Lien on or
with respect to any of their respective property or assets except:
(i) Permitted Existing Liens;
(ii) Customary Permitted Liens;
(iii) purchase money Liens (including the interest of a lessor
under a Capitalized Lease and Liens to which any property is subject at
the time of the Borrower's acquisition thereof) securing Permitted
Purchase Money Indebtedness; provided that such Liens shall not apply
to any property of the Borrower or its Subsidiaries other than that
purchased or subject to such Capitalized Lease;
(iv) mortgages, pledges or security interests on the
properties or assets of a Subsidiary in favor of the Borrower or in
favor of any other Subsidiary;
(v) Liens created pursuant to applications or reimbursement
arrangements pertaining to Letters of Credit which encumber only the
goods, or documents of title covering the goods, which are sold or
shipped in the transaction for which such Letters of Credit were
issued;
(vi) any attachment or judgment Liens with respect to a
judgments not exceeding $1,000,000 in the aggregate, unless the
judgment(s) it secures shall not, within 30 days after the entry
thereof, have been discharged or execution thereof stayed pending
appeal, or shall not have been discharged within 30 days after the
expiration of any such stay; and
(vii) other Liens securing Indebtedness not to exceed $500,000
in the aggregate.
In addition, neither the Borrower nor any of its Subsidiaries shall become a
party to any agreement, note, indenture or other instrument, or take any other
action, which would prohibit the creation of a Lien on any of its properties or
other assets with an aggregate fair market value of $5,000,000 or more in favor
of the Agent for the benefit of itself and the Lenders, as collateral for the
Obligations; provided that any agreement, note, indenture or other instrument in
64
connection with Permitted Purchase Money Indebtedness (including Capitalized
Leases) may prohibit the creation of a Lien in favor of the Agent for the
benefit of itself and the Lenders on the items of property obtained with the
proceeds of such Permitted Purchase Money Indebtedness.
(D) Investments. Except to the extent permitted pursuant to paragraph
(G) below, neither the Borrower nor any of its Subsidiaries shall directly or
indirectly make or own any Investment except:
(i) Investments in Cash Equivalents;
(ii) Permitted Existing Investments in an amount not greater
than the amount thereof on the Closing Date;
(iii) Investments in trade receivables or received in
connection with the bankruptcy or reorganization of suppliers and
customers or in settlement of delinquent obligations of, and other
disputes with, customers and suppliers arising in the ordinary course
of business;
(iv) Investments consisting of deposit accounts maintained by
the Borrower;
(v) Investments consisting of non-cash consideration from a
sale, assignment, transfer, lease, conveyance or other disposition of
property permitted by Section 7.3(B);
(vi) Investments consisting of (a) intercompany loans from any
Subsidiary to the Borrower or any other Subsidiary permitted by Section
7.1(A)(vi) and (b) intercompany loans from the Borrower to its
Subsidiaries permitted under Section 7.3(S);
(vii) Investments constituting Permitted Acquisitions;
(viii) Investments resulting from advances to employees made
in the ordinary course of business not to exceed an aggregate of
$1,000,000 outstanding at any time;
(ix) Investments resulting from leasehold improvements not to
exceed an aggregate amount of $4,000,000; and
(x) Investments in addition to those referred to elsewhere in
this Section 7.3(D) in an amount not to exceed $10,000,000 in the
aggregate at any time outstanding;
provided, however, that the Investments described in clause (vii) above shall
not be permitted if either a Default or an Unmatured Default shall have occurred
and be continuing on the date thereof or would result therefrom.
65
(E) Contingent Obligations. Neither the Borrower nor any of its
Subsidiaries shall directly or indirectly create or become or be liable with
respect to any Contingent Obligation, except: (i) recourse obligations resulting
from endorsement of negotiable instruments for collection in the ordinary course
of business; (ii) Permitted Existing Contingent Obligations; (iii) obligations,
warranties, and indemnities, not relating to Indebtedness of any Person, which
have been or are undertaken or made in the ordinary course of business and,
except for product warranties extended to Subsidiaries or Affiliates of the
Borrower in the ordinary course of business and consistent with warranties given
to non-Affiliated parties, not for the benefit of or in favor of an Affiliate of
the Borrower or such Subsidiary; (iv) additional Contingent Obligations which do
not exceed $5,000,000 in the aggregate at any time; (v) Contingent Obligations
with respect to surety, appeal and performance bonds obtained by the Borrower or
any Subsidiary in the ordinary course of business; (vi) Contingent Obligations
of Borrower in respect of any Subsidiary; and (vii) contingent obligations
arising from any guaranty executed by a Subsidiary of the indebtedness evidenced
by the Senior Notes if such Subsidiary has also executed a Guaranty in
connection with the Obligations and provided the obligations under such guaranty
shall be governed by the terms of the Intercreditor Agreement..
(F) Restricted Payments. Neither the Borrower nor any of its
Subsidiaries shall declare or make any Restricted Payment, except:
(i) Restricted Payments made in connection with the
defeasance, redemption or repurchase of any Indebtedness with the Net
Cash Proceeds of Permitted Refinancing Indebtedness;
(ii) mandatory payments of interest, principal or premium, if
any, due on the Senior Notes in accordance with repayment provisions in
effect with respect to such Indebtedness as of the Closing Date;
(iii) Restricted Payments made in connection with the Share
Repurchase provided no Default or Unmatured Default has occurred and is
continuing at the date of declaration or payment thereof or would
result therefrom;
(iv) mandatory payments of interest, principal or premium, if
any, due on the Permitted Subordinated Indebtedness unless such
payments are prohibited by the terms of such Indebtedness or the
subordination agreements related thereto;
(v) Restricted Payments of any Subsidiary of the Borrower to
the Borrower or to another Subsidiary of the Borrower; and
(vi) additional Restricted Payments provided no Default or
Unmatured Default has occurred and is continuing at the date of
declaration or payment thereof or would result therefrom;
66
(G) Conduct of Business; Subsidiaries; Acquisitions. Neither the
Borrower nor any of its Subsidiaries shall engage in any business other than the
businesses engaged in by the Borrower on the date hereof and any business or
activities which are substantially similar, related or incidental thereto. The
Borrower shall not create, acquire or capitalize any Subsidiary after the date
hereof unless (i) no Default or Unmatured Default shall have occurred and be
continuing or would result therefrom; (ii) after such creation, acquisition or
capitalization, all of the representations and warranties contained herein shall
be true and correct; and (iii) after such creation, acquisition or
capitalization the Borrower shall be in compliance with the terms of Section
7.2(K). The Borrower shall not make any Acquisitions, other than Acquisitions
meeting the following requirements (each such Acquisition constituting a
"PERMITTED ACQUISITION"):
(i) no Default or Unmatured Default shall have occurred and be
continuing or would result from such Acquisition or the incurrence of
any Indebtedness in connection therewith;
(ii) the purchase is consummated pursuant to a negotiated
acquisition agreement on a non-hostile basis;
(iii) the businesses being acquired shall be substantially
similar, related or incidental to the businesses or activities engaged
in by the Borrower and its Subsidiaries taken as a whole on the Closing
Date; and
(iv) the aggregate purchase price (including assumed
liabilities) in connection with all such transactions from and after
the Closing Date shall not exceed $10,000,000.
(H) Transactions with Shareholders and Affiliates. Neither the Borrower
nor any of its Subsidiaries shall directly or indirectly enter into or permit to
exist any transaction (including, without limitation, the purchase, sale, lease
or exchange of any property or the rendering of any service) with any holder or
holders of any of the Equity Interests of the Borrower holding in excess of 5.0%
of the fully-diluted aggregate amount of Equity Interests outstanding, or with
any Affiliate of the Borrower which is not its Subsidiary, on terms that are
less favorable to the Borrower or any of its Subsidiaries, as applicable, than
those that might be obtained in an arm's length transaction at the time from
Persons who are not such a holder or Affiliate, except for Restricted Payments
permitted by Section 7.3(F) and Investments permitted by Section 7.3(D).
(I) Restriction on Fundamental Changes. Except as set forth in the
Disclosure Letter, neither the Borrower nor any of its Subsidiaries shall enter
into any merger or consolidation, or liquidate, wind-up or dissolve (or suffer
any liquidation or dissolution), or convey, lease, sell, transfer or otherwise
dispose of, in one transaction or series of transactions, all or substantially
all of the Borrower's or any such Subsidiary's business or property, whether now
or hereafter acquired, except (i) transactions permitted under Sections 7.3(B)
or 7.3(G), (ii) mergers, consolidations, or amalgamations of a Subsidiary of the
Borrower with and into the Borrower (with the Borrower as the surviving
corporation) or with another Subsidiary of the Borrower, and
67
(iii) any liquidation of any Subsidiary of the Borrower into
the Borrower or another Subsidiary of the Borrower.
(J) Sales and Leasebacks. Neither the Borrower nor any of its
Subsidiaries shall become liable, directly, by assumption or by Contingent
Obligation, with respect to any lease, whether an operating lease or a
Capitalized Lease, of any property (whether real or personal or mixed) (i) which
it or one of its Subsidiaries sold or transferred or is to sell or transfer to
any other Person, or (ii) which it or one of its Subsidiaries intends to use for
substantially the same purposes as any other property which has been or is to be
sold or transferred by it or one of its Subsidiaries to any other Person in
connection with such lease, unless in either case the sale involved is not
prohibited under Section 7.3(B) and the lease involved is not prohibited under
Section 7.3(A).
(K) Margin Regulations. Other than in connection with the Share
Repurchase, neither the Borrower nor any of its Subsidiaries, shall use all or
any portion of the proceeds of any credit extended under this Agreement to
purchase or carry Margin Stock.
(L) ERISA. The Borrower shall not
(i) engage, or permit any of its Subsidiaries to engage, in
any prohibited transaction described in Sections 406 of ERISA or 4975
of the Code for which a statutory or class exemption is not available
or a private exemption has not been previously obtained from the DOL;
(ii) permit to exist any accumulated funding deficiency (as
defined in Sections 302 of ERISA and 412 of the Code), with respect to
any Benefit Plan, whether or not waived;
(iii) fail, or permit any Controlled Group member to fail, to
pay timely required contributions or annual installments due with
respect to any waived funding deficiency to any Benefit Plan;
(iv) terminate, or permit any Controlled Group member to
terminate, any Benefit Plan which would result in any liability of the
Borrower or any Controlled Group member under Title IV of ERISA which
liability could reasonably be expected to have a Material Adverse
Effect;
(v) fail to make any contribution or payment to any
Multiemployer Plan which the Borrower or any Controlled Group member
may be required to make under any agreement relating to such
Multiemployer Plan, or any law pertaining thereto;
(vi) fail, or permit any Controlled Group member to fail, to
pay any required installment or any other payment required under
Section 412 of the Code on or before the due date for such installment
or other payment; or
68
(vii) amend, or permit any Controlled Group member to amend, a
Plan resulting in an increase in current liability for the plan year
such that the Borrower or any Controlled Group member is required to
provide security to such Plan under Section 401(a)(29) of the Code.
(M) Corporate Documents. Neither the Borrower nor any of its Material
Subsidiaries shall amend, modify or otherwise change any of the terms or
provisions in any of their respective constituent documents as in effect on the
date hereof in any manner adverse to the interests of the Lenders, without the
prior written consent of the Required Lenders.
(N) Other Indebtedness. The Borrower shall not amend, supplement or
otherwise modify the terms of the Senior Notes in any way that would be
materially less advantageous to the Borrower or materially adverse to the
Lenders, including, without limitation, with respect to amount, maturity,
amortization, interest rate, premiums, fees, covenants, events of default,
remedies and dividend provisions, except for the First Amendment to the Master
Note Agreement substantially in the form of Exhibit J to be entered into as of
the Closing Date.
(O) Fiscal Year. The Borrower shall not change its fiscal year for
accounting or tax purposes from a period consisting of the 12-month period
ending on the last day of November of each year.
(P) Subsidiary Covenants. The Borrower will not, and will not permit
any Subsidiary to, create or otherwise cause to become effective any material
consensual encumbrance or material restriction of any kind on the ability of any
Subsidiary to pay dividends or make any other distribution on its stock, or make
any other Restricted Payment, pay any Indebtedness or other Obligation owed to
the Borrower or any other Subsidiary, make loans or advances or other
Investments in the Borrower or any other Subsidiary, or sell, transfer or
otherwise convey any of its property to the Borrower or any other Subsidiary;
provided, nothing herein shall restrict the ability of any foreign Subsidiary to
capitalize retained earnings in the ordinary course of business if required in
connection with the incurrence of Indebtedness provided the maximum amount of
retained earnings capitalized after the date hereof shall not exceed $7,500,000
in the aggregate for all of the Borrower's foreign Subsidiaries.
(Q) Hedging Obligations. The Borrower shall not and shall not permit
any of its Subsidiaries to enter into any interest rate, commodity or foreign
currency exchange, swap, collar, cap or similar agreements evidencing Hedging
Obligations, other than interest rate, foreign currency or commodity exchange,
swap, collar, cap or similar agreements entered into by the Borrower or its
Subsidiaries pursuant to which the Borrower or such Subsidiary has hedged its
actual interest rate, foreign currency or commodity exposure. Such permitted
hedging agreements entered into by the Borrower and its Subsidiaries and any
Lender or any affiliate of any Lender are sometimes referred to herein as
"HEDGING AGREEMENTS."
(R) Subordinated Indebtedness. The Borrower shall not and shall not
permit any of its Subsidiaries to, amend, supplement or modify the terms of any
Permitted Subordinated
69
Indebtedness, or make any payment required as a result of an amendment or change
thereto other than amendments, supplements or modifications which (i) decrease
the rate of interest payable on the Permitted Subordinated Indebtedness, (ii)
provide for the payment in kind in lieu of cash of any portion of the interest
on the Permitted Subordinated Indebtedness, (iii) provide for the extension of
the maturity date with respect to any principal or interest payment to be made
under the instruments evidencing Permitted Subordinated Indebtedness, (iv)
provide more flexibility to the Borrower and its Subsidiaries in connection with
any financial covenants, (v) waives any defaults existing in connection with the
Permitted Subordinated Indebtedness, and (vi) do not adversely affect in any
respect the interests of the Agent or the Lenders.
(S) Intercompany Loans from the Borrower to its Subsidiaries. The
Borrower shall not make any loans to or Investments in any of its Subsidiaries
other than loans to the Borrower's Subsidiaries in an aggregate outstanding
principal amount not to exceed $7,500,000 outstanding at any time; provided,
however, loans from the Borrower to Subsidiaries which are not a guarantor of
the Obligations, in the case of domestic Subsidiaries, or 65% percent of the
stock of which has not been pledged, in the case of foreign Subsidiaries, shall
not exceed an aggregate outstanding principal amount of $2,500,000 for all such
loans. All loans by the Borrower to its Subsidiaries shall be evidenced by
promissory notes which provide that (i) a Default under this Agreement shall
constitute a default under such promissory note entitling the Borrower to
accelerate the payment thereof and (ii) if any acceleration of the Obligations
under this Agreement shall occur, the obligations under such promissory note
shall immediately become due and payable without any election or action on the
part of the Borrower.
7.4 Financial Covenants. The Borrower shall comply with the following:
(A) Minimum Fixed Charge Coverage Ratio. The Borrower shall maintain a
ratio ("FIXED CHARGE COVERAGE RATIO") of (i) the sum of the amounts, in each
case for the Borrower and its consolidated Subsidiaries, of (a) EBITDA minus (b)
Capital Expenditures plus (c) Rentals to (ii) the sum of the amounts of (x)
Interest Expense plus (y) scheduled amortization of the principal portion of the
Term Loans and scheduled amortization of the principal portion of all other
Indebtedness for borrowed money plus (z) Rentals plus (d) taxes paid in cash
during such period plus (e) Restricted Payments (other than in connection with
the Share Repurchase) paid during such period of at least:
(i) 1.10 to 1.00 for each fiscal quarter for the period
commencing with the fiscal quarter ending February 28, 1998 through the
fiscal quarter ending November 30, 1999;
(ii) 1.15 to 1.00 for each fiscal quarter thereafter until the
Termination Date.
In each case, the Fixed Charge Coverage Ratio shall be determined as of the last
day of each fiscal quarter for the four fiscal quarter period ending on such
day, and calculated, with respect to Permitted Acquisitions consummated during
such four-quarter period, for the period from the date of such Acquisition to
the last day of the fiscal quarter ending on such day.
70
(B) Maximum Leverage Ratio. The Borrower shall not permit the ratio
(the "LEVERAGE RATIO") of (i) the sum, in each case for the Borrower and its
consolidated Subsidiaries, of (a) Indebtedness for borrowed money (which shall
include, without limitation, the Borrower's obligations with respect to
Outstanding Acceptance) and (b) Capitalized Lease Obligations to (ii) EBITDA to
be greater than the ratio set forth below at the end of the fiscal quarter
ending on the corresponding date set forth below:
QUARTER ENDING RATIO
November 30, 1997 4.5 to 1.0
February 28, 1998 4.5 to 1.0
May 31, 1998 4.5 to 1.0
August 31, 1998 4.0 to 1.0
November 30, 1998 4.0 to 1.0
February 28, 1999 3.5 to 1.0
May 31, 1999 3.5 to 1.0
August 31, 1999 3.5 to 1.0
November 30, 1999 3.5 to 1.0
QUARTER ENDING RATIO
February 28, 2000 3.5 to 1.0
May 31, 2000 3.5 to 1.0
August 31, 2000 3.5 to 1.0
November 30, 2000 3.5 to 1.0
February 28, 2001 3.0 to 1.0
May 31, 2001 3.0 to 1.0
August 31, 2001 3.0 to 1.0
November 30, 2001 3.0 to 1.0
February 28, 2002 3.0 to 1.0
May 31, 2002 3.0 to 1.0
August 31, 2002 3.0 to 1.0
November 30, 2002
and each quarter
thereafter 3.0 to 1.0
The Leverage Ratio shall be calculated, in each case, determined as of the last
day of each fiscal quarter based upon (a) for Indebtedness for borrowed money
and Capitalized Lease Obligations
71
as of the last day of each such fiscal quarter; and (b) for EBITDA, the actual
amount for the four-quarter period ending on such day, and calculated, with
respect to Permitted Acquisitions, on a pro forma basis using historical audited
and reviewed unaudited financial statements obtained from the seller, broken
down by fiscal quarter in the Borrower's reasonable judgment.
(C) Minimum Consolidated Tangible Net Worth. The Borrower shall not
permit its Consolidated Tangible Net Worth at any time to be less than the sum
of (a) $70,000,000, plus (b) fifty percent (50%) of Net Income (if positive)
calculated separately for each fiscal quarter ending after November 30, 1997,
plus (c) one hundred percent (100%) of the net cash proceeds resulting from the
issuance by the Borrower of any Capital Stock.
(D) Interest Expense Coverage Ratio. The Borrower shall maintain a
ratio (the "INTEREST EXPENSE COVERAGE RATIO") of (i) EBITDA to (ii) Interest
Expense during each four fiscal quarter period ending on the date described
below of at least:
72
QUARTER ENDING RATIO
November 30, 1997 2.75 to 1.0
February 28, 1998 2.75 to 1.0
May 31, 1998 2.75 to 1.0
August 31, 1998 3.0 to 1.0
November 30, 1998 3.0 to 1.0
February 28, 1999 4.0 to 1.0
May 31, 1999 4.0 to 1.0
August 31, 1999 4.0 to 1.0
November 30, 1999 4.0 to 1.0
February 29, 2000 4.0 to 1.0
May 31, 2000 4.0 to 1.0
August 31, 2000 4.0 to 1.0
November 30, 2000 4.0 to 1.0
February 28, 2001 5.0 to 1.0
May 31, 2001 5.0 to 1.0
August 31, 2001 5.0 to 1.0
November 30, 2001 5.0 to 1.0
February 28, 2002 5.0 to 1.0
May 31, 2002 5.0 to 1.0
August 31, 2002 5.0 to 1.0
November 30, 2002
and each quarter
thereafter 5.0 to 1.0
In each case, the Interest Expense Coverage Ratio shall be determined as of the
last day of each fiscal quarter described above for the four fiscal quarter
period ending on such day, and calculated, with respect to Permitted
Acquisitions consummated during such four-quarter period, for the period from
the date of such Acquisition to the last day of the fiscal quarter ending on
such day.
ARTICLE VIII: DEFAULTS
8.1 Defaults. Each of the following occurrences shall constitute a
Default under this Agreement:
73
(A) Failure to Make Payments When Due. The Borrower shall (i) fail to
pay when due any Reimbursement Obligation or any of the Obligations consisting
of principal with respect to the Loans or the Outstanding Acceptances or (ii)
shall fail to pay within five (5) Business Days of the date when due any of the
other Obligations under this Agreement or the other Loan Documents.
(B) Breach of Certain Covenants. The Borrower shall fail duly and
punctually to perform or observe any agreement, covenant or obligation binding
on the Borrower under:
(i) Sections 7.2(F) or Section 7.2(J) and such failure shall
continue unremedied for ten (10) Business Days; or
(ii) Sections 7.3 or 7.4.
(C) Breach of Representation or Warranty. Any representation or
warranty made or deemed made by the Borrower to the Agent or any Lender herein
or by the Borrower or any of its Subsidiaries in any of the other Loan Documents
or in any statement or certificate at any time given by any such Person pursuant
to any of the Loan Documents shall be false or misleading in any material
respect on the date as of which made (or deemed made).
(D) Other Defaults. The Borrower shall default in the performance of or
compliance with any term contained in this Agreement (other than as covered by
paragraphs (A), (B) or (C) of this Section 8.1), or the Borrower or any of its
Subsidiaries shall default in the performance of or compliance with any term
contained in any of the other Loan Documents, and such default shall continue
for thirty (30) days after the earlier of (1) written notice thereof has been
given to the Borrower; and (2) any member of senior executive management of the
Borrower has "Knowledge" (as hereinafter defined) of such Default. For purposes
hereof and clause (Q) below, "Knowledge" means with respect to any Person, the
actual knowledge, after due inquiry, of any fact or circumstance or any fact or
circumstance of which such Person should have known, with respect to any of the
(A) chairman of the board of directors, chief executive officer, chief financial
officer, chief operating officer, executive vice president for operations,
treasurer and/or controller of the Borrower (or persons performing the functions
typically performed by persons with such titles) and (B) the senior corporate
executive officers and chairman of the board of each Material Subsidiary of the
Borrower; provided, however, with respect to Requirements of Law and other
matters regulated by any Governmental Authority the list of Persons in clauses
(A) and (B) shall include the persons primarily responsible for monitoring and
ensuring compliance with such Requirements of Law and other regulatory matters
or Persons succeeding to their respective duties as employees of such Person as
of the Closing Date.
(E) Default as to Other Indebtedness.
(i) Senior Note Defaults. The Borrower or any of its
Subsidiaries shall fail to pay any part of the principal of, the
premium, if any, or the interest on, or any other payment of money due
under the Senior Notes beyond any period of grace provided with respect
74
thereto; or any breach, default or event of default shall occur, or any
other condition shall exist under any instrument, agreement or
indenture pertaining to the Senior Notes, beyond any period of grace,
if any, provided with respect thereto, if the effect thereof is to
cause an acceleration, mandatory redemption, a requirement that the
Borrower offer to purchase the Indebtedness evidenced by the Senior
Notes or other required repurchase of such Indebtedness, or permit the
holder(s) of the Senior Notes to accelerate the maturity of any such
Indebtedness or require a redemption or other repurchase of such
Indebtedness; or any such Indebtedness evidenced by the Senior Notes
shall be otherwise declared to be due and payable (by acceleration or
otherwise) or required to be prepaid, redeemed or otherwise repurchased
by the Borrower or any of its Subsidiaries (other than by a regularly
scheduled required prepayment) prior to the stated maturity thereof.
(ii) Other Indebtedness. The Borrower or any of its
Subsidiaries shall fail to pay any part of the principal of, the
premium, if any, or the interest on, or any other payment of money due
under any Indebtedness (other than Indebtedness hereunder or under the
Outstanding Acceptances), beyond any period of grace provided with
respect thereto, which individually or together with other such
Indebtedness as to which any such failure exists has an aggregate
outstanding principal amount in excess of $5,000,000; or any breach,
default or event of default shall occur, or any other condition shall
exist under any instrument, agreement or indenture pertaining to any
such Indebtedness having such aggregate outstanding principal amount,
beyond any period of grace, if any, provided with respect thereto, if
the effect thereof is to cause an acceleration, mandatory redemption, a
requirement that the Borrower offer to purchase such Indebtedness or
other required repurchase of such Indebtedness, or permit the holder(s)
of such Indebtedness to accelerate the maturity of any such
Indebtedness or require a redemption or other repurchase of such
Indebtedness; or any such Indebtedness shall be otherwise declared to
be due and payable (by acceleration or otherwise) or required to be
prepaid, redeemed or otherwise repurchased by the Borrower or any of
its Subsidiaries (other than by a regularly scheduled required
prepayment) prior to the stated maturity thereof.
(F) Involuntary Bankruptcy; Appointment of Receiver, Etc.
(i) An involuntary case shall be commenced against the
Borrower or any of the Borrower's Material Subsidiaries and the
petition shall not be dismissed, stayed, bonded or discharged within
sixty (60) days after commencement of the case; or a court having
jurisdiction in the premises shall enter a decree or order for relief
in respect of the Borrower or any of the Borrower's Material
Subsidiaries in an involuntary case, under any applicable bankruptcy,
insolvency or other similar law now or hereinafter in effect; or any
other similar relief shall be granted under any applicable federal,
state, local or foreign law.
(ii) A decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, liquidator, sequestrator,
trustee, custodian or other officer having similar powers over the
Borrower or any of the Borrower's Material Subsidiaries
75
or over all or a substantial part of the property of the Borrower or
any of the Borrower's Material Subsidiaries shall be entered; or an
interim receiver, trustee or other custodian of the Borrower or any of
the Borrower's Material Subsidiaries or of all or a substantial part of
the property of the Borrower or any of the Borrower's Material
Subsidiaries shall be appointed or a warrant of attachment, execution
or similar process against any substantial part of the property of the
Borrower or any of the Borrower's Material Subsidiaries shall be issued
and any such event shall not be stayed, dismissed, bonded or discharged
within sixty (60) days after entry, appointment or issuance.
(G) Voluntary Bankruptcy; Appointment of Receiver, Etc. The Borrower or
any of the Borrower's Material Subsidiaries shall (i) commence a voluntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, (ii) consent to the entry of an order for relief in an
involuntary case, or to the conversion of an involuntary case to a voluntary
case, under any such law, (iii) consent to the appointment of or taking
possession by a receiver, trustee or other custodian for all or a substantial
part of its property, (iv) make any assignment for the benefit of creditors or
(v) take any corporate action to authorize any of the foregoing.
(H) Judgments and Attachments. Any money judgment(s) (other than a
money judgment covered by insurance as to which the insurance company has not
disclaimed or reserved the right to disclaim coverage), writ or warrant of
attachment, or similar process against the Borrower or any of its Material
Subsidiaries or any of their respective assets involving in any single case or
in the aggregate an amount in excess of $1,000,000 is or are entered and shall
remain undischarged, unvacated, unbonded or unstayed for a period of sixty (60)
days or in any event later than fifteen (15) days prior to the date of any
proposed sale thereunder.
(I) Dissolution. Any order, judgment or decree shall be entered against
the Borrower decreeing its involuntary dissolution and such order shall remain
undischarged and unstayed for a period in excess of sixty (60) days; or the
Borrower shall otherwise dissolve or cease to exist except as specifically
permitted by this Agreement.
(J) Loan Documents. At any time, for any reason, any Loan Document as a
whole that materially affects the ability of the Agent, or any of the Lenders to
enforce the Obligations ceases to be in full force and effect and Borrower fails
to cure any defect within ten (10) Business Days of written notice thereof by
Agent to Borrower or the Borrower or any of the Borrower's Material Subsidiaries
which is a party to any Loan Document seeks to repudiate its obligations
thereunder.
(K) Termination Event. Any Termination Event occurs which the Required
Lenders believe is reasonably likely to subject the Borrower to liability in
excess of $1,000,000.
(L) Waiver of Minimum Funding Standard. If the plan administrator of
any Plan applies under Section 412(d) of the Code for a waiver of the minimum
funding standards of Section 412(a) of the Code and the Agent reasonably
believes the substantial business hardship
76
upon which the application for the waiver is based could reasonably be expected
to subject either the Borrower or any Controlled Group member to liability in
excess of $1,000,000.
(M) Change of Control. A Change of Control shall occur.
(N) Hedging Agreements. Nonpayment by the Borrower of any obligation
under any Hedging Agreement or the declared default by the Borrower of any
material term, provision or condition contained in any such Hedging Agreement.
(O) Environmental Matters. The Borrower or any of its Material
Subsidiaries shall be the subject of any proceeding or investigation pertaining
to (i) the Release by the Borrower or any of its Material Subsidiaries of any
Contaminant into the environment, (ii) the liability of the Borrower or any of
its Material Subsidiaries arising from the Release by any other Person of any
Contaminant into the environment, or (iii) any violation of any Environmental,
Health or Safety Requirements of Law which by the Borrower or any of its
Material Subsidiaries, which, in any case, has or is reasonably likely to
subject the Borrower to liability in excess of $5,000,000.
(P) Guarantor Revocation. Any guarantor of the Obligations shall
terminate or revoke any of its obligations under the applicable guarantee
agreement or breach any of the material terms of such guarantee agreement.
(Q) Failure of Subordination. The subordination provisions of the
documents and instruments evidencing any Permitted Subordinated Indebtedness
shall, at any time, be invalidated or otherwise cease to be in full force and
effect and such event shall continue for ten (10) Business Days after the
earlier of (1) written notice thereof has been given to the Borrower or (2) any
member of senior management of the Borrower has Knowledge thereof.
A Default shall be deemed "continuing" until cured or until waived in
writing in accordance with Section 9.3.
ARTICLE IX: ACCELERATION, DEFAULTING LENDERS; WAIVERS,
AMENDMENTS AND REMEDIES
9.1 Termination of Commitments; Acceleration. If any Default described
in Section 8.1(F) or 8.1(G) occurs with respect to the Borrower, the obligations
of the Lenders to make Loans hereunder and the obligation of any Issuing Banks
to issue Letters of Credit hereunder shall automatically terminate and the
Obligations shall immediately become due and payable without any election or
action on the part of the Agent or any Lender. If any other Default occurs, the
Required Lenders may terminate or suspend the obligations of the Lenders to make
Loans hereunder and the obligation of the Issuing Banks to issue Letters of
Credit hereunder, or declare the Obligations to be due and payable, or both,
whereupon the Obligations shall become immediately due and payable, without
presentment, demand, protest or notice of any kind, all of which the Borrower
expressly waives.
77
9.2 Defaulting Lender. In the event that any Lender fails to fund its
Pro Rata Share of any Advance requested or deemed requested by the Borrower,
which such Lender is obligated to fund under the terms of this Agreement (the
funded portion of such Advance being hereinafter referred to as a "NON PRO RATA
LOAN"), until the earlier of such Lender's cure of such failure and the
termination of the Revolving Loan Commitments, the proceeds of all amounts
thereafter repaid to the Agent by the Borrower and otherwise required to be
applied to such Lender's share of all other Obligations pursuant to the terms of
this Agreement shall be advanced to the Borrower by the Agent on behalf of such
Lender to cure, in full or in part, such failure by such Lender, but shall
nevertheless be deemed to have been paid to such Lender in satisfaction of such
other Obligations. Notwithstanding anything in this Agreement to the contrary:
(i) the foregoing provisions of this Section 9.2 shall apply
only with respect to the proceeds of payments of Obligations and shall
not affect the conversion or continuation of Loans pursuant to Section
2.10;
(ii) any such Lender shall be deemed to have cured its failure
to fund its Pro Rata Share of any Advance at such time as an amount
equal to such Lender's original Pro Rata Share of the requested
principal portion of such Advance is fully funded to the Borrower,
whether made by such Lender itself or by operation of the terms of this
Section 9.2, and whether or not the Non Pro Rata Loan with respect
thereto has been repaid, converted or continued;
(iii) amounts advanced to the Borrower to cure, in full or in
part, any such Lender's failure to fund its Pro Rata Share of any
Advance ("CURE LOANS") shall bear interest at the rate applicable to
Floating Rate Loans in effect from time to time, and for all other
purposes of this Agreement shall be treated as if they were Floating
Rate Loans;
(iv) regardless of whether or not a Default has occurred or is
continuing, and notwithstanding the instructions of the Borrower as to
its desired application, all repayments of principal which, in
accordance with the other terms of this Agreement, would be applied to
the outstanding Floating Rate Loans shall be applied first, ratably to
all Floating Rate Loans constituting Non Pro Rata Loans, second,
ratably to Floating Rate Loans other than those constituting Non Pro
Rata Loans or Cure Loans and, third, ratably to Floating Rate Loans
constituting Cure Loans;
(v) for so long as and until the earlier of any such Lender's
cure of the failure to fund its Pro Rata Share of any Advance and the
termination of the Revolving Loan Commitments, the term "Required
Lenders" for purposes of this Agreement shall mean Lenders (excluding
all Lenders whose failure to fund their respective Pro Rata Shares of
such Advance have not been so cured) whose Pro Rata Shares represent
greater than fifty percent (50%) of the aggregate Pro Rata Shares of
such Lenders; and
78
(vi) for so long as and until any such Lender's failure to
fund its Pro Rata Share of any Advance is cured in accordance with
Section 9.2(ii), (A) such Lender shall not be entitled to, and Borrower
shall not be obligated to pay, any commitment fees with respect to its
Revolving Loan Commitment and (B) such Lender shall not be entitled to
any letter of credit fees or commission in connection with Outstanding
Acceptances.
9.3 Amendments. Subject to the provisions of this Article IX, the
Required Lenders (or the Agent with the consent in writing of the Required
Lenders) and the Borrower may enter into agreements supplemental hereto for the
purpose of adding or modifying any provisions to the Loan Documents or changing
in any manner the rights of the Lenders or the Borrower hereunder or waiving any
Default hereunder; provided, however, that no such supplemental agreement shall,
without the consent of each Lender affected thereby:
(i) Postpone or extend the Revolving Loan Termination Date or
Term Loan Termination Date or any other date fixed for any payment of
principal of, or interest on, the Loans, the Reimbursement Obligations,
the Acceptance Obligations or any fees or other amounts payable to such
Lender (except with respect to (a) any modifications of the provisions
relating to prepayments of Loans and other Obligations and (b) a waiver
of the application of the default rate of interest pursuant to Section
2.11 hereof).
(ii) Reduce the principal amount of any Loans or Credit
Support Obligations, or reduce the rate or extend the time of payment
of interest or fees thereon.
(iii) Reduce the percentage specified in the definition of
Required Lenders or any other percentage of Lenders specified to be the
applicable percentage in this Agreement to act on specified matters.
(iv) Increase the amount of the Revolving Loan Commitment of
any Lender hereunder.
(v) Permit the Borrower to assign its rights under this
Agreement.
(vi) Amend Section 7.2(K).
(vii) other than pursuant to a transaction permitted by the
terms of this Agreement, release any Collateral which is subject to any
Pledge Agreement.
(viii) other than pursuant to a transaction permitted by the
terms of this Agreement, release any Subsidiary from its obligations
under the Guaranty.
(ix) Amend this Section 9.3.
79
No amendment of any provision of this Agreement relating to (a) the Agent shall
be effective without the written consent of the Agent, and (b) Swing Line Loans
shall be effective without the written consent of the Swing Line Bank. The Agent
may waive payment of the fee required under Section 13.3(B) without obtaining
the consent of any of the Lenders.
9.4 Preservation of Rights. No delay or omission of the Lenders or the
Agent to exercise any right under the Loan Documents shall impair such right or
be construed to be a waiver of any Default or an acquiescence therein, and the
making of a Loan or the issuance of a Letter of Credit notwithstanding the
existence of a Default or the inability of the Borrower to satisfy the
conditions precedent to such Loan or issuance of such Letter of Credit shall not
constitute any waiver or acquiescence. Any single or partial exercise of any
such right shall not preclude other or further exercise thereof or the exercise
of any other right, and no waiver, amendment or other variation of the terms,
conditions or provisions of the Loan Documents whatsoever shall be valid unless
in writing signed by the Lenders required pursuant to Section 9.3, and then only
to the extent in such writing specifically set forth. All remedies contained in
the Loan Documents or by law afforded shall be cumulative and all shall be
available to the Agent and the Lenders until the Obligations have been paid in
full.
ARTICLE X: GENERAL PROVISIONS
10.1 Survival of Representations. All representations and warranties of
the Borrower contained in this Agreement shall survive delivery of the Notes and
the making of the Loans herein contemplated.
10.2 Governmental Regulation. Anything contained in this Agreement to
the contrary notwithstanding, no Lender shall be obligated to extend credit to
the Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
10.3 Performance of Obligations. The Borrower agrees that the Agent
may, but shall have no obligation, after the occurrence and during the
continuance of a Default, to make any other payment or perform any act required
of the Borrower under any Loan Document. The Agent shall use its reasonable
efforts to give the Borrower notice of any action taken under this Section 10.3
prior to the taking of such action or promptly thereafter provided the failure
to give such notice shall not affect the Borrower's obligations in respect
thereof. The Agent shall use its reasonable efforts to give the Lenders notice
of any action taken under this Section 10.3 prior to the taking of such action
or promptly thereafter and shall obtain the consent of the Required Lenders to
any such action which involves amounts in excess of $50,000; provided the
failure to give such notice shall not affect the Lenders' obligations in respect
thereof for amounts under $50,000 for which the Lenders have not received such
notice or shall not have provided consent. The Borrower agrees to pay the Agent,
upon demand, the principal amount of all funds advanced by the Agent under this
Section 10.3, together with interest thereon at the rate from time to time
applicable to Floating Rate Loans from the date of such advance until the
outstanding principal balance thereof is paid in full. If the Borrower fails to
make payment in respect of any such
80
advance under this Section 10.3 within three (3) Business Days after the date
the Borrower receives written demand therefor from the Agent, the Agent shall
promptly notify each Lender and each Lender agrees, subject to the third
sentence of this Section 10.3, that it shall thereupon make available to the
Agent, in Dollars in immediately available funds, the amount equal to such
Lender's Pro Rata Share of such advance. If such funds are not made available to
the Agent by such Lender within one (1) Business Day after the Agent's demand
therefor, the Agent will be entitled to recover any such amount from such Lender
together with interest thereon at the Federal Funds Effective Rate for each day
during the period commencing on the date of such demand and ending on the date
such amount is received. The failure of any Lender to make available to the
Agent its Pro Rata Share of any such unreimbursed advance under this Section
10.3 shall neither relieve any other Lender of its obligation hereunder to make
available to the Agent such other Lender's Pro Rata Share of such advance on the
date such payment is to be made nor increase the obligation of any other Lender
to make such payment to the Agent. All outstanding principal of, and interest
on, advances made under this Section 10.3 shall constitute Obligations.
10.4 Headings. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any of
the provisions of the Loan Documents.
10.5 Entire Agreement. The Loan Documents embody the entire agreement
and understanding among the Borrower, the Agent and the Lenders and supersede
all prior agreements and understandings among the Borrower, the Agent and the
Lenders relating to the subject matter thereof.
10.6 Several Obligations; Benefits of this Agreement. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other Lender (except to the extent to which
the Agent is authorized to act as such). The failure of any Lender to perform
any of its obligations hereunder shall not relieve any other Lender from any of
its obligations hereunder. This Agreement shall not be construed so as to confer
any right or benefit upon any Person other than the parties to this Agreement
and their respective successors and assigns.
10.7 Expenses; Indemnification.
(A) Expenses. The Borrower shall reimburse the Agent and the Arranger
(but not the Lenders) for any reasonable costs, internal charges and
out-of-pocket expenses (including attorneys' and paralegals' fees and time
charges of attorneys and paralegals for the Agent, which attorneys and
paralegals may be employees of the Agent) paid or incurred by the Agent or the
Arranger in connection with the preparation, negotiation, execution, delivery,
syndication, review, amendment, modification, and administration of the Loan
Documents. The Borrower also agrees to reimburse the Agent and the Arranger and
the Lenders for any reasonable costs, internal charges and out-of-pocket
expenses (including reasonable attorneys' and paralegals' fees and time charges
of attorneys and paralegals for the Agent and the Arranger and the Lenders,
81
which attorneys and paralegals may be employees of the Agent or the Arranger or
the Lenders) paid or incurred by the Agent or the Arranger or any Lender in
connection with the collection of the Obligations and enforcement of the Loan
Documents. In addition to expenses set forth above, the Borrower agrees to
reimburse the Agent, promptly after the Agent's request therefor, for each
audit, or other business analysis performed by or for the benefit of the Lenders
in connection with this Agreement or the other Loan Documents in an amount equal
to the Agent's then reasonable customary charges for each person employed to
perform such audit or analysis, plus all reasonable costs and expenses
(including without limitation, reasonable travel expenses) incurred by the Agent
in the performance of such audit or analysis. Agent shall provide the Borrower
with a detailed statement of all reimbursements requested under this Section
10.7(A).
(B) Indemnity. The Borrower further agrees to defend, protect,
indemnify, and hold harmless the Agent, the Arranger and each and all of the
Lenders and each of their respective Affiliates, and each of such Agent's,
Arranger's, Lender's, or Affiliate's respective officers, directors, employees,
attorneys and agents (including, without limitation, those retained in
connection with the satisfaction or attempted satisfaction of any of the
conditions set forth in Article V) (collectively, the "INDEMNITEES") from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, claims, reasonable costs and expenses of any kind or
nature whatsoever (including, without limitation, the reasonable fees and
disbursements of counsel for such Indemnitees in connection with any
investigative, administrative or judicial proceeding, whether or not such
Indemnitees shall be designated a party thereto), imposed on, incurred by, or
asserted against such Indemnitees in any manner relating to or arising out of:
(i) this Agreement, the other Loan Documents, or any act,
event or transaction related or attendant thereto or to the making of
the Loans, and the issuance of and participation in Letters of Credit
hereunder, the participation in Outstanding Acceptances, the management
of such Loans, Letters of Credit or Outstanding Acceptance, the use or
intended use of the proceeds of the Loans, Letters of Credit or
Outstanding Acceptance hereunder, or any of the other transactions
contemplated by the Loan Documents; or
(ii) any liabilities, obligations, responsibilities, losses,
damages, personal injury, death, punitive damages, economic damages,
consequential damages, treble damages, intentional, willful or wanton
injury, damage or threat to the environment, natural resources or
public health or welfare, costs and expenses (including, without
limitation, reasonable attorney, expert and consulting fees and costs
of investigation, feasibility or remedial action studies), fines,
penalties and monetary sanctions, interest, direct or indirect, known
or unknown, absolute or contingent, past, present or future relating to
violation of any Environmental, Health or Safety Requirements of Law
arising from or in connection with the past, present or future
operations of the Borrower, its Subsidiaries or any of their respective
predecessors in interest, or, the past, present or future
environmental, health or safety condition of any respective property of
the Borrower or its Subsidiaries, the presence of asbestos-containing
materials at any respective property
82
of the Borrower or its Subsidiaries or the Release or threatened
Release of any Contaminant into the environment (collectively, the
"INDEMNIFIED MATTERS");
provided, however, the Borrower shall have no obligation to an Indemnitee
hereunder with respect to Indemnified Matters arising from and to the extent
caused by or resulting from the willful misconduct or Gross Negligence of such
Indemnitee or breach of contract by such Indemnitee with respect to the Loan
Documents, in each case, as determined by the final non- appealed judgment of a
court of competent jurisdiction. If the undertaking to indemnify, pay and hold
harmless set forth in the preceding sentence may be unenforceable because it is
violative of any law or public policy, the Borrower shall contribute the maximum
portion which it is permitted to pay and satisfy under applicable law, to the
payment and satisfaction of all Indemnified Matters incurred by the Indemnitees.
(C) Waiver of Certain Claims; Settlement of Claims. The Borrower
further agrees to assert no claim against any of the Indemnitees on any theory
of liability seeking consequential, special, indirect, exemplary or punitive
damages in an amount which exceeds $100,000. No settlement shall be entered into
by the Borrower or any if its Subsidiaries with respect to any claim,
litigation, arbitration or other proceeding relating to or arising out of the
transactions evidenced by this Agreement or the other Loan Documents (whether or
not the Agent or any Lender or any Indemnitee is a party thereto) unless such
settlement releases all Indemnitees from any and all liability with respect
thereto.
(D) Survival of Agreements. The obligations and agreements of the
Borrower under this Section 10.7 shall survive the termination of this
Agreement.
10.8 Numbers of Documents. All statements, notices, closing documents,
and requests hereunder shall be furnished to the Agent with sufficient
counterparts so that the Agent may furnish one to each of the Lenders.
10.9 Accounting. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement Accounting
Principles.
10.10 Severability of Provisions. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
10.11 Nonliability of Lenders. The relationship between the Borrower
and the Lenders and the Agent shall be solely that of borrower and lender.
Neither the Agent nor any Lender shall have any fiduciary responsibilities to
the Borrower. Neither the Agent nor any Lender undertakes any responsibility to
the Borrower to review or inform the Borrower of any matter in connection with
any phase of the Borrower's business or operations.
83
10.12 GOVERNING LAW. THE AGENT ACCEPTS THIS AGREEMENT, ON BEHALF OF
ITSELF AND THE LENDERS, AT CHICAGO, ILLINOIS BY ACKNOWLEDGING AND AGREEING TO IT
THERE. ANY DISPUTE BETWEEN THE BORROWER AND THE AGENT OR ANY LENDER ARISING OUT
OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED
BETWEEN THEM IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS, AND WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE
RESOLVED IN ACCORDANCE WITH THE INTERNAL LAWS (WITHOUT REGARD TO THE CONFLICTS
OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS.
10.13 CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
(A) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN SUBSECTION (B), EACH
OF THE PARTIES HERETO AGREES THAT ALL DISPUTES AMONG THEM ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG
THEM IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS
WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED
EXCLUSIVELY BY STATE OR FEDERAL COURTS LOCATED IN CHICAGO, ILLINOIS, BUT THE
PARTIES HERETO ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE
HEARD BY A COURT LOCATED OUTSIDE OF CHICAGO, ILLINOIS. EACH OF THE PARTIES
HERETO WAIVES IN ALL DISPUTES BROUGHT PURSUANT TO THIS SUBSECTION (A) ANY
OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.
(B) OTHER JURISDICTIONS. THE BORROWER AGREES THAT THE AGENT, OR ANY
LENDER SHALL HAVE THE RIGHT TO PROCEED AGAINST THE BORROWER OR ITS PROPERTY IN A
COURT IN ANY LOCATION TO ENABLE SUCH PERSON TO OBTAIN PERSONAL JURISDICTION OVER
THE BORROWER OR IN ORDER TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN
FAVOR OF SUCH PERSON. THE BORROWER WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE
LOCATION OF THE COURT IN WHICH SUCH PERSON HAS COMMENCED A PROCEEDING DESCRIBED
IN THIS SUBSECTION (B).
(C) VENUE. THE BORROWER IRREVOCABLY WAIVES ANY OBJECTION (INCLUDING,
WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE OR BASED ON THE GROUNDS
OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF
ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH
IN ANY JURISDICTION SET FORTH ABOVE.
84
(D) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES
ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING
IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH. EACH OF THE PARTIES HERETO AGREES AND CONSENTS THAT ANY
SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A
COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
ARTICLE XI: THE AGENT
11.1 Appointment; Nature of Relationship. The First National Bank of
Chicago is appointed by the Lenders as the Agent hereunder and under each other
Loan Document, and each of the Lenders irrevocably authorizes the Agent to act
as the contractual representative of such Lender with the rights and duties
expressly set forth herein and in the other Loan Documents. The Agent agrees to
act as such contractual representative upon the express conditions contained in
this Article XI. Notwithstanding the use of the defined term "Agent," it is
expressly understood and agreed that the Agent shall not have any fiduciary
responsibilities to any Lender by reason of this Agreement and that the Agent is
merely acting as the representative of the Lenders with only those duties as are
expressly set forth in this Agreement and the other Loan Documents. In its
capacity as the Lenders' contractual representative, the Agent (i) does not
assume any fiduciary duties to any of the Lenders, (ii) is a "representative" of
the Lenders within the meaning of Section 9-105 of the Uniform Commercial Code
and (iii) is acting as an independent contractor, the rights and duties of which
are limited to those expressly set forth in this Agreement and the other Loan
Documents. Each of the Lenders agrees to assert no claim against the Agent on
any agency theory or any other theory of liability for breach of fiduciary duty,
all of which claims each Lender waives.
11.2 Powers. The Agent shall have and may exercise such powers under
the Loan Documents as are specifically delegated to the Agent by the terms of
each thereof, together with such powers as are reasonably incidental thereto.
The Agent shall have no implied duties or fiduciary duties to the Lenders, or
any obligation to the Lenders to take any action hereunder or under any of the
other Loan Documents except any action specifically provided by the Loan
Documents required to be taken by the Agent. Without limiting the foregoing, the
Agent is hereby authorized to execute and deliver the Collateral Sharing
Agreement and the Intercreditor Agreement, in each case, in substantially the
same form as last distributed to the Lenders prior to the Closing Date and shall
be authorized to enter into amendments thereto on behalf of each of the Lenders
upon the direction of or with the consent of the Required Lenders.
85
11.3 General Immunity. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable to the Borrower, the Lenders or
any Lender for any action taken or omitted to be taken by it or them hereunder
or under any other Loan Document or in connection herewith or therewith except
to the extent such action or inaction is found in a final judgment by a court of
competent jurisdiction to have arisen from and to the extent of the Gross
Negligence, willful misconduct or breach of this Agreement or any other Loan
Documents by such Person.
11.4 No Responsibility for Loans, Creditworthiness, Recitals, Etc.
Neither the Agent nor any of its directors, officers, agents or employees shall
be responsible for or have any duty to ascertain, inquire into, or verify (i)
any statement, warranty or representation made in connection with any Loan
Document or any borrowing hereunder; (ii) the performance or observance of any
of the covenants or agreements of any obligor under any Loan Document; (iii) the
satisfaction of any condition specified in Article V, except receipt of items
required to be delivered solely to the Agent; (iv) the existence or possible
existence of any Default or (v) the validity, effectiveness or genuineness of
any Loan Document or any other instrument or writing furnished in connection
therewith. The Agent shall not be responsible to any Lender for any recitals,
statements, representations or warranties herein or in any of the other Loan
Documents, or for the execution, effectiveness, genuineness, validity, legality,
enforceability, collectibility, or sufficiency of this Agreement or any of the
other Loan Documents or the transactions contemplated thereby, or for the
financial condition of any guarantor of any or all of the Obligations, the
Borrower or any of its Subsidiaries.
11.5 Action on Instructions of Lenders. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, hereunder and under any
other Loan Document in accordance with written instructions signed by the
Required Lenders (or all of the Lenders in the event that and to the extent that
this Agreement expressly requires such), and such instructions and any action
taken or failure to act pursuant thereto shall be binding on all of the Lenders
and on all holders of Notes. The Agent shall be fully justified in failing or
refusing to take any action hereunder and under any other Loan Document unless
it shall first be indemnified to its satisfaction by the Lenders pro rata
against any and all liability, cost and expense that it may incur by reason of
taking or continuing to take any such action.
11.6 Employment of Agents and Counsel. The Agent may execute any of its
duties as the Agent hereunder and under any other Loan Document by or through
employees, agents, and attorney-in-fact and shall not be answerable to the
Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Agent shall be entitled to advice of
counsel concerning the contractual arrangement between the Agent and the Lenders
and all matters pertaining to the Agent's duties hereunder and under any other
Loan Document; provided, however, it is expressly understood and agreed that the
expense reimbursement provisions of Section 10.7(A) shall not be applicable to
the expenses for such counsel to the extent such expenses do not arise out of
any action or omission on the part of the Borrower or any of its Subsidiaries or
any request of the Borrower or its Subsidiaries hereunder or under any of the
Loan Documents.
86
11.7 Reliance on Documents; Counsel. The Agent shall be entitled to
rely upon any Note, notice, consent, certificate, affidavit, letter, telegram,
statement, paper or document believed by it to be genuine and correct and to
have been signed or sent by the proper person or persons, and, in respect to
legal matters, upon the opinion of counsel selected by the Agent, which counsel
may be employees of the Agent; provided, however, it is expressly understood and
agreed that the expense reimbursement provisions of Section 10.7(A) shall not be
applicable to the expenses for counsel rendering such opinion to the extent it
relates to matters other than resulting from any action or omission on the part
of the Borrower or any of its Subsidiaries or any request of the Borrower or its
Subsidiaries hereunder or under any of the Loan Documents.
11.8 The Agent's Reimbursement and Indemnification. The Lenders agree
to reimburse and indemnify the Agent ratably in proportion to their respective
Revolving Loan Commitments (i) for any amounts not reimbursed by the Borrower
for which the Agent is entitled to reimbursement by the Borrower under the Loan
Documents, (ii) for any other expenses incurred by the Agent on behalf of the
Lenders, in connection with the preparation, execution, delivery, administration
and enforcement of the Loan Documents and (iii) for any liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever which may be imposed
on, incurred by or asserted against the Agent in any way relating to or arising
out of the Loan Documents or any other document delivered in connection
therewith or the transactions contemplated thereby, or the enforcement of any of
the terms thereof or of any such other documents, provided that no Lender shall
be liable for any of the foregoing to the extent any of the foregoing is found
in a final non-appealable judgment by a court of competent jurisdiction to have
arisen from the Gross Negligence or willful misconduct of the Agent.
11.9 Rights as a Lender. With respect to its Revolving Loan Commitment,
its Term Loan Commitment, Loans made by it and the Notes issued to it, the Agent
shall have the same rights and powers hereunder and under any other Loan
Document as any Lender and may exercise the same as through it were not the
Agent, and the term "Lender" or "Lenders" shall, unless the context otherwise
indicates, include the Agent in its individual capacity. The Agent may accept
deposits from, lend money to, and generally engage in any kind of trust, debt,
equity or other transaction, in addition to those contemplated by this Agreement
or any other Loan Document, with the Borrower or any of its Subsidiaries in
which such Person is not prohibited hereby from engaging with any other Person.
11.10 Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent or any other Lender and based
on the financial statements prepared by the Borrower and such other documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and the other Loan Documents. Each Lender
also acknowledges that it will, independently and without reliance upon the
Agent or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement and the other Loan Documents.
87
11.11 Successor Agent. The Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower. Upon any such
resignation, the Required Lenders shall have the right to appoint, on behalf of
the Borrower and the Lenders, a successor Agent. If no successor Agent shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within thirty days after the retiring Agent's giving notice of
resignation, then the retiring Agent may appoint, on behalf of the Borrower and
the Lenders, a successor Agent. Notwithstanding anything herein to the contrary,
so long as no Default has occurred and is continuing, each such successor Agent
shall be subject to approval by the Borrower, which approval shall not be
unreasonably withheld. Such successor Agent shall be a commercial bank having
capital and retained earnings of at least $500,000,000. Upon the acceptance of
any appointment as the Agent hereunder by a successor Agent, such successor
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations hereunder and under the other Loan
Documents. After any retiring Agent's resignation hereunder as Agent, the
provisions of this Article XI shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
the Agent hereunder and under the other Loan Documents.
ARTICLE XII: SETOFF; RATABLE PAYMENTS
12.1 Setoff. In addition to, and without limitation of, any rights of
the Lenders under applicable law, if any Default occurs and is continuing, any
indebtedness from any Lender to the Borrower (including all account balances,
whether provisional or final and whether or not collected or available) may be
offset and applied toward the payment of the Obligations owing to such Lender,
whether or not the Obligations, or any part hereof, shall then be due.
12.2 Ratable Payments. If any Lender, whether by setoff or otherwise,
has payment made to it upon its Loans (other than payments received pursuant to
Sections 4.1, 4.2 or 4.4) in a greater proportion than that received by any
other Lender, such Lender agrees, promptly upon demand, to purchase a portion of
the Loans held by the other Lenders so that after such purchase each Lender will
hold its ratable proportion of Loans. If any Lender, whether in connection with
setoff or amounts which might be subject to setoff or otherwise, receives
collateral or other protection for its Obligation or such amounts which may be
subject to setoff, such Lender agrees, promptly upon demand, to take such action
necessary such that all Lenders share in the benefits of such collateral ratably
in proportion to the obligations owing to them. In case any such payment is
disturbed by legal process, or otherwise, appropriate further adjustments shall
be made.
12.3 Application of Payments. Subject to the provisions of Section 9.2,
the Agent shall, unless otherwise specified at the direction of the Required
Lenders which direction shall be consistent with the last sentence of this
Section 12.3, apply all payments and prepayments in respect of any Obligations
in the following order:
88
(A) first, to pay interest on and then principal of any
portion of the Loans which the Agent may have advanced on behalf of any
Lender for which the Agent has not then been reimbursed by such Lender
or the Borrower;
(B) second, to pay interest on and then principal of any
advance made under Section 10.3 for which the Agent has not then been
paid by the Borrower or reimbursed by the Lenders;
(C) third, to pay Obligations in respect of any fees, expense
reimbursements or indemnities then due to the Agent;
(D) fourth, to pay Obligations in respect of any fees,
expenses, reimbursements or indemnities then due to the Lenders, the
issuer(s) of Letters of Credit and the Lenders which created the
Outstanding Acceptances;
(E) fifth, to pay interest due in respect of Swing Line Loans;
(F) sixth, to pay interest due in respect of Loans (other than
Swing Line Loans) and Credit Support Obligations;
(G) seventh, to the ratable payment or prepayment of principal
outstanding on Swing Line Loans;
(H) eighth, to the ratable payment or prepayment of principal
outstanding on Loans (other than Swing Line Loans), Reimbursement
Obligations, Acceptance Obligations and Hedging Obligations under
Hedging Agreements in such order as the
Agent may determine in its sole discretion;
(I) ninth, to provide required cash collateral, if required
pursuant to Section 3.10 and
(J) tenth, to the ratable payment of all other Obligations.
Unless otherwise designated (which designation shall only be applicable prior to
the occurrence of a Default) by the Borrower, all principal payments in respect
of Loans (other than Swing Line Loans) shall be applied first, to repay
outstanding Floating Rate Loans, and then to repay outstanding Eurodollar Rate
Loans with those Eurodollar Rate Loans which have earlier expiring Interest
Periods being repaid prior to those which have later expiring Interest Periods.
The order of priority set forth in this Section 12.3 and the related provisions
of this Agreement are set forth solely to determine the rights and priorities of
the Agent, the Lenders, the Swing Line Bank and the issuer(s) of Letters of
Credit as among themselves. The order of priority set forth in clauses (D)
through (J) of this Section 12.3 may at any time and from time to time be
changed by the Required Lenders without necessity of notice to or consent of or
approval by the Borrower, or any other Person; provided, that the order of
priority of payments in respect of Swing Line Loans
89
may be changed only with the prior written consent of the Swing Line Bank. The
order of priority set forth in clauses (A) through (C) of this Section 12.3 may
be changed only with the prior written consent of the Agent.
12.4 Relations Among Lenders.
(A) Except with respect to the exercise of set-off rights of any Lender
in accordance with Section 12.1, the proceeds of which are applied in accordance
with this Agreement, and except as set forth in the following sentence, each
Lender agrees that it will not take any action, nor institute any actions or
proceedings, against the Borrower or any other obligor hereunder or with respect
to any Loan Document, including, without limitation, under the Collateral
Sharing Agreement or the Intercreditor Agreement, without the prior written
consent of the Required Lenders or, as may be provided in this Agreement or the
other Loan Documents, at the direction of the Agent.
(B) The Lenders are not partners or co-venturers, and no Lender shall
be liable for the acts or omissions of, or (except as otherwise set forth herein
in case of the Agent) authorized to act for, any other Lender. The Agent shall
have the exclusive right on behalf of the Lenders to enforce on the payment of
the principal of and interest on any Loan after the date such principal or
interest has become due and payable pursuant to the terms of this Agreement.
ARTICLE XIII: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
13.1 Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower and the
Lenders and their respective successors and assigns, except that (i) the
Borrower shall not have the right to assign its rights or obligations under the
Loan Documents and (ii) any assignment by any Lender must be made in compliance
with Section 13.3 hereof. Notwithstanding clause (ii) of this Section 13.1, any
Lender may at any time, without the consent of the Borrower or the Agent, assign
all or any portion of its rights under this Agreement and its Notes to a Federal
Reserve Bank; provided, however, that no such assignment shall release the
transferor Lender from its obligations hereunder. The Agent may treat the payee
of any Note as the owner thereof for all purposes hereof unless and until such
payee complies with Section 13.3 hereof in the case of an assignment thereof or,
in the case of any other transfer, a written notice of the transfer is filed
with the Agent. Any assignee or transferee of a Note agrees by acceptance
thereof to be bound by all the terms and provisions of the Loan Documents. Any
request, authority or consent of any Person, who at the time of making such
request or giving such authority or consent is the holder of any Note, shall be
conclusive and binding on any subsequent holder, transferee or assignee of such
Note or of any Note or Notes issued in exchange therefor.
90
13.2 Participations.
(A) Permitted Participants; Effect. Subject to the terms set forth in
this Section 13.2, any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time sell to one or more banks or other
entities ("PARTICIPANTS") participating interests in any Loan owing to such
Lender, any Note held by such Lender, any Revolving Loan Commitment of such
Lender, any L/C Interest of such Lender or any other interest of such Lender
under the Loan Documents on a pro rata or non-pro rata basis. Notice of such
participation to the Borrower and the Agent and, prior to the occurrence of a
Default, the prior written consent of the Borrower (which shall not be
unreasonably withheld) shall be required prior to any participation becoming
effective with respect to a Participant which is not a Lender or an Affiliate
thereof. In the event of any such sale by a Lender of participating interests to
a Participant, such Lender's obligations under the Loan Documents shall remain
unchanged, such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, such Lender shall remain the
holder of any such Note for all purposes under the Loan Documents, all amounts
payable by the Borrower under this Agreement shall be determined as if such
Lender had not sold such participating interests, and the Borrower and the Agent
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under the Loan Documents except that, for
purposes of Article IV hereof, the Participants shall be entitled to the same
rights as if they were Lenders.
(B) Voting Rights. Each Lender shall retain the sole right to approve,
without the consent of any Participant, any amendment, modification or waiver of
any provision of the Loan Documents other than any amendment, modification or
waiver with respect to any Loan, Outstanding Acceptance, Letter of Credit or
Revolving Loan Commitment in which such Participant has an interest which
forgives principal, interest or fees or reduces the interest rate or fees
payable pursuant to the terms of this Agreement with respect to any such Loan,
Outstanding Acceptance, Letter of Credit or Revolving Loan Commitment, postpones
any date fixed for any regularly-scheduled payment of principal of, or interest
or fees on, any such Loan, Outstanding Acceptance, Letter of Credit or Revolving
Loan Commitment, or releases all or substantially all of the Collateral, if any,
securing any such Loan Letter of Credit or Outstanding Acceptance.
(C) Benefit of Setoff. The Borrower agrees that each Participant shall
be deemed to have the right of setoff provided in Section 12.1 hereof in respect
to its participating interest in amounts owing under the Loan Documents to the
same extent as if the amount of its participating interest were owing directly
to it as a Lender under the Loan Documents, provided that each Lender shall
retain the right of setoff provided in Section 12.1 hereof with respect to the
amount of participating interests sold to each Participant except to the extent
such Participant exercises its right of setoff. The Lenders agree to share with
each Participant, and each Participant, by exercising the right of setoff
provided in Section 12.1 hereof, agrees to share with each Lender, any amount
received pursuant to the exercise of its right of setoff, such amounts to be
shared in accordance with Section 12.2 as if each Participant were a Lender.
91
13.3 Assignments.
(A) Permitted Assignments. Any Lender may, in the ordinary course of
its business and in accordance with applicable law, at any time assign to one or
more banks or other entities ("PURCHASERS") all or a portion of its rights and
obligations under this Agreement (including, without limitation, its Revolving
Loan Commitment, all Loans owing to it, all Acceptance Obligations owing to it,
all of its participation interests in existing Letters of Credit and Outstanding
Acceptances, and its obligation to participate in additional Letters of Credit
hereunder) in accordance with the provisions of this Section 13.3. Each
assignment shall be of a constant, and not a varying, ratable percentage of all
of the assigning Lender's rights and obligations under this Agreement. Such
assignment shall be substantially in the form of Exhibit E hereto and shall not
be permitted hereunder unless such assignment is either for all of such Lender's
rights and obligations under the Loan Documents or, without the prior written
consent of the Agent, involves loans and commitments in an aggregate amount of
at least $5,000,000 (which minimum amount may be waived by the Required Lenders
after the occurrence of a Default). The consent of the Agent and, prior to the
occurrence of a Default, the Borrower (which consent, in each such case, shall
not be unreasonably withheld), shall be required prior to an assignment becoming
effective with respect to a Purchaser which is not a Lender or an Affiliate
thereof.
(B) Effect; Effective Date. Upon (i) delivery to the Agent of a notice
of assignment, substantially in the form attached as Appendix I to Exhibit E
hereto (a "NOTICE OF ASSIGNMENT"), together with any consent required by Section
13.3.(A) hereof, and (ii) payment of a $3,500 fee to the Agent for processing
such assignment, such assignment shall become effective on the effective date
specified in such Notice of Assignment. The Notice of Assignment shall contain a
representation by the Purchaser to the effect that none of the consideration
used to make the purchase of the Commitment, Loans and Credit Support
Obligations under the applicable assignment agreement are "plan assets" as
defined under ERISA and that the rights and interests of the Purchaser in and
under the Loan Documents will not be "plan assets" under ERISA. On and after the
effective date of such assignment, such Purchaser, if not already a Lender,
shall for all purposes be a Lender party to this Agreement and any other Loan
Documents executed by the Lenders and shall have all the rights and obligations
of a Lender under the Loan Documents, to the same extent as if it were an
original party hereto, and no further consent or action by the Borrower, the
Lenders or the Agent shall be required to release the transferor Lender with
respect to the percentage of the Aggregate Revolving Loan Commitment, Loans,
Outstanding Acceptances and Letter of Credit participations assigned to such
Purchaser. Upon the consummation of any assignment to a Purchaser pursuant to
this Section 13.3(B), the transferor Lender, the Agent and the Borrower shall
make appropriate arrangements so that replacement Notes are issued to such
transferor Lender and new Notes or, as appropriate, replacement Notes, are
issued to such Purchaser, in each case in principal amounts reflecting their
Revolving Loan Commitment and their Term Loans, as adjusted pursuant to such
assignment.
(C) The Register. The Agent shall maintain at its address referred to
in Section 14.1 a copy of each assignment delivered to and accepted by it
pursuant to this Section 13.3 and a
92
register (the "REGISTER") for the recordation of the names and addresses of the
Lenders and the Revolving Loan Commitment of and principal amount of the Loans
owing to, each Lender from time to time and whether such Lender is an original
Lender or the assignee of another Lender pursuant to an assignment under this
Section 13.3. The entries in the Register shall be conclusive and binding for
all purposes, absent manifest error, and the Borrower and each of its
Subsidiaries, the Agent and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
13.4 Confidentiality. Subject to Section 13.5, the Agent and the
Lenders shall hold all nonpublic information obtained pursuant to the
requirements of this Agreement and identified as such by the Borrower in
accordance with such Person's customary procedures for handling confidential
information of this nature and in accordance with safe and sound banking
practices and in any event may make disclosure reasonably required by a
prospective Transferee in connection with the contemplated participation or
assignment or as required or requested by any Governmental Authority or
representative thereof or pursuant to legal process and shall require any such
Transferee to agree (and require any of its Transferees to agree) to comply with
this Section 13.4. In no event shall the Agent or any Lender be obligated or
required to return any materials furnished by the Borrower; provided, however,
each prospective Transferee shall be required to agree that if it does not
become a participant or assignee it shall return all materials furnished to it
by or on behalf of the Borrower in connection with this Agreement; provided,
further, however if any such disclosure is to be made pursuant to legal process,
the Agent or Lender, as applicable, which may make such disclosure shall use its
reasonable efforts to notify the Borrower of such legal process prior to making
such disclosure, provided the failure to provide such notice shall not result in
any liability on the part of such Person.
13.5 Dissemination of Information. The Borrower authorizes each Lender
to disclose to any permitted Participant or Purchaser or any other Person
acquiring an interest in the Loan Documents by operation of law (each a
"TRANSFEREE") and any prospective Transferee any and all information in such
Lender's possession concerning the Borrower and its Subsidiaries; provided that
prior to any such disclosure, such prospective Transferee shall agree to
preserve in accordance with Section 13.4 the confidentiality of any confidential
information described therein.
13.6 Guaranty Terminations and Pledge Releases. Each of the Lenders,
Issuing Banks and the Agent agrees that upon the consummation of any transaction
involving the sale of all or substantially all of the assets or stock of a
Material Subsidiary, which sale is permitted pursuant to the terms of Section
7.3(B), the Agent, for itself and on behalf of the Lenders and the Issuing
Banks, shall release and terminate the Guaranty with respect to such Material
Subsidiary which is the subject of such transaction or, as applicable, release
the stock of such Material Subsidiary from the pledge to the Agent.
93
ARTICLE XIV: NOTICES
14.1 Giving Notice. Except as otherwise permitted by Section 2.14 with
respect to borrowing notices, all notices and other communications provided to
any party hereto under this Agreement or any other Loan Documents shall be in
writing or by telex or by facsimile and addressed or delivered to such party at
its address set forth below its signature hereto or at such other address as may
be designated by such party in a notice to the other parties. Any notice, if
mailed and properly addressed with postage prepaid, shall be deemed given when
received; any notice, if transmitted by telex or facsimile, shall be deemed
given when transmitted (answerback confirmed in the case of telexes).
14.2 Change of Address. The Borrower, the Agent and any Lender may each
change the address for service of notice upon it by a notice in writing to the
other parties hereto.
94
ARTICLE XV: COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the Borrower, the
Agent and the Lenders and each party has notified the Agent by telex or
telephone, that it has taken such action.
[Remainder of This Page Intentionally Blank]
95
IN WITNESS WHEREOF, the Borrower, the Lenders and the Agent have
executed this Agreement as of the date first above written.
BINKS XXXXX CORPORATION,
as the Borrower
By:/s/XXXXXXX X. XXXXXXXX
-------------------------
Xxxxxxx X. Xxxxxxxx
Vice President, Chief Financial Officer
Address:
0000 Xxxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxxxx
Telephone No.: 847/000-0000
Facsimile No.: 847/671-5690
THE FIRST NATIONAL BANK OF
CHICAGO, as Agent and as a Lender
By:/s/XXXXXXX X. XXXXXX
-----------------------
Name: Xxxxxxx X. Xxxxxx
Title: Assistant Vice President
Address:
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx
Telephone No.: 312/000-0000
Facsimile No.: 312/732-4033
Signature Page to Binks Xxxxx Corporation
Credit Agreement 9/23/97
96
NBD BANK, as a Lender
By:/s/XXXXXXX X. XXXXXX
-----------------------
Name: Xxxxxxx X. Xxxxxx
Title: Assistant Vice President
Address:
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx
Telephone No.: 312/000-0000
Facsimile No.: 312/732-4033
Signature Page to Binks Xxxxx Corporation
Credit Agreement 9/23/97
97
LASALLE NATIONAL BANK, as a Lender
By:/s/XXXXXX X. XXXXX
---------------------
Name: Xxxxxx X. Xxxxx
Title: First Vice President
Address:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Telephone No.: 312/000-0000
Facsimile No.: 312/904-6242
Signature Page to Binks Xxxxx Corporation
Credit Agreement 9/23/97
98
COMERICA BANK,
as a Lender
By:/s/XXXXXXX X. BLOCK
----------------------
Name: Xxxxxxx X. Block
Title: Vice President
Address:
0 XxxXxxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Block
Telephone No.: 630/000-0000
Facsimile No.: 630/575-2164
Signature Page to Binks Xxxxx Corporation
Credit Agreement 9/23/97
99
