CREDIT AGREEMENT
among
LILLY INDUSTRIES, INC.
an Indiana corporation
the Lenders Signatory Hereto
and
NBD BANK, N.A., as Agent
Dated as of October 24, 1997
TABLE OF CONTENTS
Page
PREAMBLE.......................................................................1
RECITALS.......................................................................1
SECTION 1 Definitions....................................................1
1.1. Defined Terms..................................................1
1.2. Rules of Construction.........................................16
1.3. Accounting Terms..............................................16
SECTION 2 Credit........................................................16
2.1. Commitments...................................................16
2.1.1. Revolving Loans.............................16
2.1.2. Cash Management Line........................17
2.1.3. Ratable Loans/Mandatory Funding.............17
2.2. Interest......................................................18
2.2.1. Revolving Loans.............................18
2.2.2. Cash Management Line........................18
2.2.3. General/Default Rate........................18
2.3. Payments of Principal and Interest............................18
2.3.1. Revolving Loans.............................18
2.3.2. Cash Management Line........................19
2.3.3. Optional Prepayment.........................19
2.3.4. Taxes.......................................20
2.3.5. Method of Payment...........................21
2.3.6. Business Day................................21
2.4. Method of Advance.............................................21
2.4.1. Revolving Loans.............................21
2.4.2. Cash Management Line........................22
2.4.3. General.....................................22
2.5. Procedures for Electing the Fixed Rate Option.................23
2.6. Fees..........................................................24
2.6.1. Commitment Fee..............................24
2.6.2 Initial Facility Fees.......................24
2.6.3. Agent Fees..................................24
2.6.4 Letter of Credit Fees.......................24
2.6.5. General.....................................24
2.7. Reductions in Revolving Loan Commitment.......................24
2.8. Non-Receipt of Funds by the Agent.............................25
2.8.1. From the Lenders............................25
2.8.2. From Borrower...............................25
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2.9. Issuance of Letters of Credit.................................25
2.10. Letters of Credit Participation...............................27
2.11. Compensation for Letters of Credit............................28
2.11.1. Letter of Credit Facility Fee...............28
2.11.2. Letter of Credit Fronting Fees..............28
2.12. Reimbursement of Letters of Credit............................28
2.13. Lending Installations.........................................29
2.14. Notification of Advances, Interest Rates, Prepayments and
Commitment Reductions.........................................29
2.15. Use of Proceeds...............................................30
SECTION 3 Change in Circumstances.......................................30
3.1. Yield Protection..............................................30
3.2. Changes in Capital Adequacy Regulations.......................31
3.3. Availability of Types of Advances.............................31
3.4. Funding Indemnification.......................................31
3.5. Lender Statements; Survival of Indemnity......................32
SECTION 4 Representations and Warranties................................32
4.1. Due Organization..............................................32
4.2. Due Qualification.............................................33
4.3. Corporate Power...............................................33
4.4. Corporate Authority...........................................33
4.5. Financial Statements..........................................33
4.6. No Material Adverse Change....................................33
4.7. Subsidiaries..................................................33
4.8. Binding Obligations...........................................33
4.9. Marketable Title..............................................34
4.10. Indebtedness..................................................34
4.11. Default.......................................................34
4.12. Tax Returns...................................................34
4.13. Litigation....................................................34
4.14. ERISA.........................................................34
4.15. Full Disclosure...............................................35
4.16. Contingent Obligations........................................35
4.17. Licenses......................................................35
4.18. Compliance with Law...........................................35
4.19. Force Majeure.................................................35
4.20. Margin Stock..................................................35
4.21. Approvals.....................................................35
4.22. Insolvency; Financial Condition...............................35
4.23. Regulation....................................................36
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4.24. Environmental Matters.........................................36
4.25. General.......................................................38
SECTION 5 Covenants.....................................................38
5.1. Affirmative Covenants.........................................38
5.1.1. Financial Reporting.........................38
5.1.2. Good Standing...............................39
5.1.3. Taxes, Etc..................................40
5.1.4. Maintain Properties.........................40
5.1.5. Insurance...................................40
5.1.6. Books and Records...........................40
5.1.7. Reports.....................................40
5.1.8. Licenses....................................41
5.1.9. Conduct of Business.........................41
5.1.10. Compliance with Laws........................41
5.1.11. Trade Accounts..............................41
5.1.12. Use of Proceeds.............................41
5.1.13. Loan Payments...............................41
5.1.14. Environmental Covenant......................41
5.1.15. Change Name and Place of Business...........42
5.1.16. Adjusted Consolidated Net Worth.............42
5.1.17. Leverage Ratio..............................42
5.1.18. Fixed Charge Coverage Ratio.................42
5.2. Negative Covenants............................................42
5.2.1. Dispose of Property.........................42
5.2.2. Liens and Encumbrances......................43
5.2.3. Indebtedness................................43
5.2.4. Investments and Acquisitions................43
5.2.5. Contingent Obligations......................45
5.2.6. Mergers and Consolidations..................45
5.2.7. New Subsidiaries............................45
5.2.8. Accounting Policies.........................45
5.2.9. Change of Business..........................45
5.2.10. Benefit Plans...............................45
5.2.11. Affiliates..................................45
5.2.12. Sale and Leaseback..........................45
5.2.13. Operating Leases; Rentals...................45
5.2.14. Dividends, Etc..............................45
5.2.15. Restrictive Agreements......................46
SECTION 6 Conditions Precedent to Loans.................................46
6.1. Conditions to Initial Advance.................................46
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6.1.1. Secretary's Certificates....................46
6.1.2. Insurance...................................47
6.1.3. Loan Documents..............................47
6.1.4. Opinion of Counsel..........................47
6.1.5. UCC Searches................................47
6.1.6. Litigation..................................47
6.1.7. Solvency Certificate........................47
6.1.8. Environmental Matters.......................47
6.1.9. Existing Facilities.........................47
6.1.10. Legal.......................................48
6.1.11. Regulations.................................48
6.1.12. No Default; No Material Adverse Change......48
6.1.13. Commitment Fees and Expenses................48
6.1.14. Senior Notes................................48
6.1.15. Money Transfer Instructions.................48
6.1.16. Additional Documentation....................48
6.2. Conditions to Subsequent Advances.............................48
6.2.1. No Default..................................48
6.2.2. Representations and Warranties..............49
6.2.3. Legal Matters...............................49
6.2.4. Expenses....................................49
6.3. General.......................................................49
SECTION 7 Default.......................................................49
SECTION 8 Remedy........................................................51
8.1. Acceleration..................................................51
8.2. Deposit to Secure Reimbursement Obligations...................52
8.3. Subrogation...................................................52
8.4. Preservation of Rights........................................52
SECTION 9 The Agent.....................................................52
9.1. Appointment...................................................52
9.2. Powers........................................................53
9.3. Exculpatory Provisions........................................53
9.4. Reliance by Agent.............................................53
9.5. Non-Reliance on Agent and Other Lenders.......................53
9.6. Employment of Agents and Counsel..............................54
9.7. Reliance on Documents; Counsel................................54
9.8. Defaults; Notices.............................................54
9.9. Rights as Lender..............................................54
9.10. Agent's Indemnification and Reimbursement.....................55
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9.11. Successor Agent...............................................55
SECTION 10 Benefit of Agreement; Assignments;
Participations.............................56
10.1. Successors and Assigns........................................56
10.2. Participations................................................56
10.2.1. Permitted Participations; Effect............56
10.2.2. Voting Rights...............................56
10.2.3. Benefit of Setoff...........................57
10.3. Assignments...................................................57
10.3.1. Permitted Assignments.......................57
10.3.2. Effect; Effective Date......................57
10.4. Registered Notes..............................................58
10.5. Dissemination of Information..................................58
10.6. Tax Treatment.................................................59
SECTION 11 General Provisions..........................59
11.1. Waivers and Amendments........................................59
11.2. Set-off by Lenders............................................59
11.3. Survival......................................................60
11.4. Governmental Regulation.......................................60
11.5. Taxes.........................................................60
11.6. Choice of Law.................................................60
11.7. Headings......................................................60
11.8. Entire Agreement..............................................60
11.9. Expenses......................................................60
11.10. Indemnification...............................................61
11.11. Confidentiality...............................................61
11.12. Notice........................................................61
11.13. Counterparts..................................................62
11.14. Incorporation by Reference...................................62
11.15. No Joint Venture..............................................62
11.16. Severability..................................................62
11.17. Waiver of Set-off by Borrower.................................62
11.18. Lenders Not Controlling Borrower..............................62
11.19. Foreign Lender Withholding Tax................................62
11.20. Replacement of Lenders........................................63
11.21 Relationship of Parties.......................................63
11.22. Several Obligations; Benefits of this Agreement...............64
11.23. Agreement Effective............................................64
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SECTION 12 Ratable Payments............................64
SECTION 13 Waiver of Jury Trial........................64
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SCHEDULES
Schedule 1 - Lenders
Schedule 4.7 - Subsidiaries
Schedule 4.10
and 5.2.3 - Indebtedness
Schedule 4.13 - Litigation
Schedule 4.16
and 5.2.5 - Contingent Obligations
Schedule 5.2.2 - Permitted Liens
EXHIBITS
Exhibit A - Form of Revolving Credit Note
Exhibit A-1 - Form of Registered Note
Exhibit B - Form of Credit Note
Exhibit C - Compliance Certificate
Exhibit D - Money Transfer Instructions
Exhibit E - Assignment Agreement
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of the 24th day of October, 1997, is
among LILLY INDUSTRIES, INC., an Indiana corporation (the "Borrower"), the
Lenders party hereto from time to time as listed on Schedule 1 hereto, NBD BANK,
N.A., a national banking association, as agent for the Lenders hereunder (in
such capacity, the "Agent"). The parties agree as follows:
SECTION 1
Definitions
1.1. Defined Terms. As used herein:
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which
Borrower or any of its Subsidiaries (a) acquires any going business or all or
substantially all of the assets of any Person, whether through purchase of
assets, merger or otherwise, or (b) directly or indirectly acquires (in one
transaction or as a result of the most recent transaction in a series of
transactions) at least a majority (in number of votes) of the securities of a
corporation which have ordinary voting power for the election of directors
(other than securities having such power only by reason of the happening of a
contingency) or a majority (by percentage or voting power) of the outstanding
ownership interests of a partnership or limited liability company.
"Adjusted Consolidated Net Worth" means Borrower's Consolidated Net
Worth, excluding from such calculation any non-cash foreign currency translation
adjustment as reflected from time to time on the consolidated balance sheet of
Borrower and its Subsidiaries.
"Advance" means a borrowing hereunder (or conversion or continuation
thereof) consisting of the aggregate amount of the several Loans made on the
same Borrowing Date (or date of conversion or continuation) by the Lenders to
Borrower of the same.
"Affiliate" means, as to any Person, any other Person (a) directly or
indirectly through one or more intermediaries, controlling, controlled by, or
under common control with, such Person, and (b) that directly or indirectly owns
more than Ten Percent (10%) of any class of the voting securities or capital
stock of or equity interests in such Person. A Person shall be deemed to control
another Person if such Person possesses, directly or indirectly, the power to
direct or cause the direction of the management and policies of such other
Person, whether through the ownership of voting securities, by contract or
otherwise.
"Agent" means NBD Bank, N.A., in its capacity as agent for the Lenders
hereunder, and any successor Agent appointed pursuant to this Agreement.
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"Agreement" means this First Amended and Restated Credit Agreement, as
amended or modified and in effect from time to time.
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the greater of (a) the Prime Rate for such day, or (b) the sum of the
Federal Funds Effective Rate for such day plus One-Half Percent (1/2%).
"ABR Advance" mean an advance which bears interest at the Alternate
Base Rate.
"ABR Loan" means a Loan which bears interest at the Alternate Base
Rate.
"Applicable Commitment Fee" means the fee payable to the Agent for the
pro rata benefit of the Lenders, which fee shall be based on the Leverage Ratio
in accordance with the table set forth below. The Leverage Ratio shall be
determined by the Agent (which determination if made in good faith shall be
conclusive absent manifest error) based on the audited and unaudited Financial
Statements delivered by Borrower pursuant to Sections 5.1.1 (a) and (b). The
adjustment, if any, to the Applicable Commitment Fee shall be effective
beginning on the fifth Business Day after the delivery of such Financial
Statements. In the event that Borrower shall at any time fail to furnish to the
Agent in timely fashion the Financial Statements required to be delivered
pursuant to Sections 5.1.1(a) or (b), together with the Compliance Certificate
to be delivered with respect thereto, the Applicable Commitment Fee for Level 1
shall apply until such time as such Financial Statements and Compliance
Certificate are so delivered.
Leverage Ratio Applicable Commitment Fee
Greater than But less than
or equal to
Level 1 3.0 --- 0.25%
Xxxxx 0 2.5 3.0 0.25%
Xxxxx 0 2.0 2.5 0.20%
Xxxxx 0 1.5 2.0 0.175%
Xxxxx 0 --- 1.5 0.15%
"Applicable Margin" means the incremental margin to be paid by Borrower
on Loans hereunder, which margin shall be based on the Leverage Ratio in
accordance with the table set forth below. The Leverage Ratio shall be
determined by the Agent (which determination if made in good faith shall be
conclusive absent manifest error) based on the audited and unaudited Financial
Statements delivered by Borrower pursuant to Sections 5.1.1 (a) and (b). The
adjustment, if any, to the Applicable Margin shall be effective beginning on the
fifth Business Day after the delivery of such Financial Statements. In the event
that Borrower shall at any time fail to furnish to the Agent in timely fashion
the Financial Statements required to be delivered pursuant to Sections 5.1.1(a)
or (b), together with the Compliance Certificate to be delivered with respect
thereto, the Applicable Margin
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for Level 1 shall apply until such time as such Financial Statements and
Compliance Certificate are so delivered.
Leverage Ratio Applicable Margin
But less than
Greater than or equal to ABR Loans Eurodollar
Loans
Level 1 3.0 --- 0% 1.00%
Xxxxx 0 2.5 3.0 0% 0.75%
Xxxxx 0 2.0 2.5 0% 0.625%
Xxxxx 0 1.5 2.0 0% 0.50%
Xxxxx 0 --- 1.5 0% 0.40%
"Authorized Officer" means the President, Vice President and Chief
Financial Officer, Corporate Accounting Director, and Corporate Finance Director
or such other officer of Borrower imbued with authority, as evidenced by
certified resolutions of Borrower's Board of Directors, to perform as an
Authorized Officer under this Agreement.
"Benefitted Lender " shall have the meaning ascribed thereto in Section
12.3.
"Borrower" shall have the meaning ascribed in the preamble to this
Agreement.
"Borrowing Date" means a date on which an Advance is made hereunder.
"Business Day" means (a) with respect to any borrowing, payment or rate
selection of an Eurodollar Loan, a day (other than a Saturday or Sunday) on
which banks generally are open in Indianapolis, New York and Chicago for the
conduct of substantially all of their commercial lending activities and on which
dealings in United States dollars are carried on in the London interbank market,
and (b) for all other purposes, a day (other than a Saturday or Sunday) on which
banks generally are open in Indianapolis for the conduct of substantially all of
their commercial lending activities.
"Capital Expenditures" means, without duplication, any expenditures for
any purchase or other acquisition of any asset which would be classified as a
fixed or capital asset on a Consolidated balance sheet of Borrower and its
Subsidiaries prepared in accordance with GAAP.
"Capitalized Lease" means any lease of Property which would be
capitalized on a balance sheet of a Person prepared in accordance with GAAP.
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"Capitalized Lease Obligations" means the aggregate amount of the
obligations of a Person under Capitalized Leases which would be shown as
liabilities on a balance sheet of such Person prepared in accordance with GAAP.
"Cash Management Line" means the unsecured cash management line of
credit in the maximum principal amount of Fifteen Million Dollars ($15,000,000)
provided by NBD to Borrower, governed by this Agreement, including any renewal
or extension thereof.
"Cash Management Line Advance" means Advances under the Cash Management
Line.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response Compensation
Liability Information System List under CERCLA.
"Change in Control" means (a) the acquisition by any Person, or two or
more Persons acting in concert, of beneficial ownership (within the meaning of
Rule 13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934) of thirty-three and one-third percent (33- 1/3%) or more
of the outstanding shares of Class A common stock of Borrower, or (b) the
occurrence during any period of twelve (12) consecutive months, commencing
before or after the date of this Agreement, individuals who on the first day of
such period were directors of Borrower (together with any replacement or
additional directors who were nominated or elected by a majority of directors
then in office) cease to constitute a majority of the Board of Directors of
Borrower.
"Changes " shall have the meaning ascribed thereto in Section 2.14.
"Closing Date" means the date of the initial Advance hereunder.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Commitment" means, for each Lender, such Lender's Revolving Loan
Commitment and such other commitments that may be provided in this Agreement or
as set forth in any Notice of Assignment relating to any assignment that has
become effective pursuant to Section 10, as such amount may be modified from
time to time pursuant to the terms hereof.
"Compliance Certificate" means a Compliance Certificate, in the form of
Exhibit C hereto, duly completed, executed and delivered by the chief executive
officer or chief financial officer of Borrower from time to time pursuant to
Section 5.1.1 reflecting and certifying the calculations necessary to determine
compliance with this Agreement and further certifying that there exists no
Default or Unmatured Default under the Loan Documents, or if any Default or
Unmatured Default exists, stating the nature and status thereof.
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"Consolidated" means a calculation or a determination for a Person and
its Subsidiaries made in accordance with GAAP, including principles of
consolidation.
"Consolidated Net Worth" means the excess of Borrower's Consolidated
Total Assets over Borrower's Consolidated Total Liabilities, each determined in
accordance with GAAP and as shown on the Financial Statements.
"Consolidated Total Assets" means the total assets of Borrower and its
Subsidiaries, determined on a consolidated basis in accordance with GAAP and as
shown on the Financial Statements.
"Consolidated Total Liabilities" means the total liabilities of
Borrower and its Subsidiaries, determined on a consolidated basis in accordance
with GAAP and as shown on the Financial Statements.
"Consolidated Subsidiary" means any Subsidiary of Borrower which would
be consolidated on Borrower's Consolidated balance sheet in accordance with
GAAP.
"Contingent Obligation" of a Person means any agreement, undertaking or
arrangement by which such Person assumes, guarantees, endorses, contingently
agrees to purchase or provide funds for the payment of, or otherwise becomes or
is contingently liable upon, the obligation or liability of any other Person, or
agrees to maintain the net worth or working capital or other financial condition
of any other Person, or otherwise assures any creditor of such other Person
against loss, including, without limitation, any comfort letter, operating
agreement or take-or-pay contract; provided, however, notwithstanding the above,
that the following shall not constitute a Contingent Obligation of Borrower or
any of its Subsidiaries: (a) any guarantee, comfort letter or similar
accommodation provided by Borrower or any of its Subsidiaries to or for the
benefit of Borrower or any of its Consolidated Subsidiaries, (b) any
indemnification obligations of Borrower or any of its Subsidiaries in respect of
the officers, directors or employees of Borrower or such Subsidiaries, (c) any
contractual indemnification for breaches of obligations of Borrower or any of
its Subsidiaries created pursuant to documents executed in connection with any
acquisition or merger transaction, and (d) any contractual indemnification for
breaches of obligations of Borrower or any of its Subsidiaries pursuant to
contracts or agreements entered into in the ordinary course of business to which
Borrower or any of its Subsidiaries are a party.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with Borrower or any of its Subsidiaries, are
treated as a single employer under Section 414 of the Code.
"Credit Note" means the Credit Note (Cash Management Line) in
substantially the form of Exhibit B hereto, duly executed by Borrower to NBD to
evidence Advances under the Cash Management Line, including any amendment,
modification, renewal, extension or replacement thereof.
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"Default" means an event described in Section 7.
"Dollars" and/or "$" means lawful money of the United States of
America.
"EBITDA" means, with respect to Borrower and its Subsidiaries
determined on a Consolidated basis, the sum of (a) Net Income, plus (b) to the
extent deducted in determining Net Income, income taxes paid or accrued, minus
(c) extraordinary gains, plus (d) extraordinary losses, plus (e) interest
expense, minus (f) interest income, plus (g) to the extent deducted in
determining Net Income, depreciation, amortization and other non-cash charges;
in each instance determined for the trailing four (4) quarter period ending on
the date of determination.
"Effective Date" means the date all of the conditions precedent set
forth in Section 6.1 have been fulfilled to the satisfaction of the Agent or
otherwise waived in writing by the Lenders.
"Eligible Assignee" means a commercial bank, financial institution or
other "accredited investor," as defined in Regulation D of the Securities Act of
1933, as amended, and the rules and regulations promulgated thereunder.
"Environmental Laws" means all provisions of laws, statutes,
ordinances, rules, regulations, permits, licenses, judgments, writs,
injunctions, decrees, orders, awards and standards promulgated by any
Governmental Authority concerning the protection of, or regulation of the
discharge of substances into, the environment or concerning the health or safety
of persons with respect to environmental hazards, and includes, without
limitation, the Hazardous Materials Transportation Act, 42 U.S.C. ss.1801 et
seq., the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986,
42 U.S.C. ss.ss.9601 et seq., the Solid Waste Disposal Act, as amended by the
Resource Conservation and Recovery Act of 1976 and the Solid and Hazardous Waste
Amendments of 1984, 42 U.S.C. ss.ss.6901 et seq., the Federal Water Pollution
Control Act, as amended by the Clean Water Act of 1977, 33 U.S.C. ss.ss.1251 et
seq., the Clean Air Act of 1966, as amended, 42 U.S.C. ss.ss.7401 et seq., the
Toxic Substances Control Act of 1976, 15 U.S.C. ss.ss.2601 et seq., the Federal
Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. ss.7401 et seq., the
Occupational Safety and Health Act of 1970, as amended, 29 U.S.C. ss.ss.651 et
seq., the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C.
ss.ss.11001 et seq., the National Environmental Policy Act of 1975, 42 U.S.C.
ss.ss.4321 et seq., the Safe Drinking Water Act of 1974, as amended, 42 U.S.C.
ss.ss.300(f) et seq., and any similar or implementing state law, and all
amendments, rules, and regulations promulgated thereunder.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"ERISA Affiliate" means a Person which, together with another Person,
would be treated as a single employer under ERISA.
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"Eurodollar Advance" means an Advance which bears interest by reference
to the Eurodollar Rate.
"Eurodollar Base Rate" means, for the relevant Eurodollar Interest
Period, the applicable London interbank offered rate for deposits in U.S.
dollars appearing on Telerate Page 3750 as of 11:00 a.m. (London time) two
Business Days prior to the first day of such Eurodollar Interest Period, and
having a maturity approximately equal to such Eurodollar Interest Period. If no
London interbank offered rate of such maturity then appears on Telerate Page
3750, then the Eurodollar Base Rate shall be equal to the London interbank
offered rate for deposits in U.S. dollars maturing immediately before or
immediately after such maturity, whichever is higher, as determined by the Agent
from Telerate Page 3750. If Telerate Page 3750 is not available, the applicable
Eurodollar Base Rate for the relevant Eurodollar Interest Period shall be the
rate determined by the Agent to be the arithmetic average of the rates reported
to the Agent by each Reference Lender as the rate at which each Reference Lender
offers to place deposits in U.S. dollars with first-class banks in the London
interbank market at approximately 11:00 a.m. (London time) two Business Days
prior to the first day of such Eurodollar Interest Period, in the approximate
amount of such Reference Lender's relevant Eurodollar Loan and having a maturity
approximately equal to such Eurodollar Interest Period. If any Reference Lender
fails to provide such quotation to the Agent, then the Agent shall determine the
Eurodollar Base Rate on the basis of the quotations of the remaining Reference
Lender(s).
"Eurodollar Interest Period" means, with respect to a Eurodollar
Advance, a period of one, two, three or six months commencing on a Business Day
selected by Borrower pursuant to this Agreement. Such Eurodollar Interest Period
shall end on the day which corresponds numerically to such date one, two, three
or six months thereafter, provided, however, that if there is no such
numerically corresponding day in such next, second, third, or sixth succeeding
month, such Eurodollar Interest Period shall end on the last Business Day of
such next, second, third or sixth succeeding month. If a Eurodollar Interest
Period would otherwise end on a day which is not a Business Day, such Eurodollar
Interest Period shall end on the next succeeding Business Day, provided,
however, that if said next succeeding Business Day falls in a new calendar
month, such Eurodollar Interest Period shall end on the immediately preceding
Business Day.
"Eurodollar Loan" means a Loan which bears interest by reference to the
Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Eurodollar Advance for the
relevant Eurodollar Interest Period, the quotient of (a) the Eurodollar Base
Rate applicable to such Eurodollar Interest Period, divided by (b) one minus the
Reserve Requirement (expressed as a decimal) applicable to such Eurodollar
Interest Period.
"Facilities" means the Revolving Loans, the Cash Management Line, the
Letters of Credit, and any other credit facility provided by the Lenders from
time to time pursuant to this Agreement.
"Facility Termination Date" means October 24, 2002.
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"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to the Fed Effective rate appearing on Telerate Page 15 for such
day. If Telerate Page 15 is not available, the applicable Federal Funds
Effective Rate shall be the rate per annum equal to the consensus (or if no
consensus exists, the arithmetic average) of the rates at which reserves are
offered by first-class banks to other first-class banks (at approximately 10:00
a.m. Chicago time) on such day (or if such day is not a Business Day, on the
immediately preceding Business Day) on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers,
received by the Agent from three Federal funds brokers of recognized standing
selected by the Agent it its sole discretion; such interest rate to be rounded
up, if necessary, to the nearest whole multiple of One One-Hundredth of One
Percent (1/100th of 1%).
"Fee Letter" means that certain letter agreement issued by the Agent,
and First Chicago Capital Markets, Inc. dated September 30, 1997, accepted by
Borrower on October 3, 1997.
"Financial Contract" of a Person means (a) any exchange-traded or
over-the-counter futures, forward, swap or option contract or other financial
instrument with similar characteristics, (b) any agreements, devices or
arrangements providing for payments related to fluctuations of interest rates,
exchange rates or forward rates, including, but not limited to, interest rate
exchange agreements, forward currency exchange agreements, interest rate cap or
collar protection agreements, forward rate currency or interest rate options, or
(c) to the extent not otherwise included in the foregoing, any Rate Hedging
Agreement.
"Financial Statements" means, as the context may require, (a) the
Consolidated balance sheet of Borrower and its Subsidiaries as of May 31, 1997,
and their Consolidated statements of income and cash flows for the period then
ended, and/or (b) the similar Consolidated (and consolidating) Financial
Statements for Borrower and its Subsidiaries furnished from time to time
pursuant to Section 5.1.1; in all cases, together with any accompanying notes to
such Financial Statements, and any other documents or data furnished in
connection therewith.
"Fixed Charge Coverage Ratio" means, with respect to Borrower and its
Subsidiaries determined on a Consolidated basis, the ratio of (a)(i) EBITDA
minus (ii) Capital Expenditures, to (b) the sum of (i) interest expense, plus
(ii) scheduled principal payments in respect of Indebtedness paid in such
period, plus (iii) taxes paid, plus (iv) Rentals, plus (v) dividends paid in
such period, all as determined on the last day of each fiscal quarter of
Borrower by reference to the Financial Statements; in each instance determined
for the trailing four (4) quarter period ending on the date of determination.
"Fixed Rate Option" means the option of Borrower to have the interest
on any Advance determined by reference to the Eurodollar Rate.
"Fixed Rate Option Notice" shall have the meaning ascribed thereto in
Section 2.5(b).
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"Foreign Subsidiaries" means all Subsidiaries of Borrower which are
organized or incorporated outside the United States of America including any
United States territories or possessions.
"GAAP" means generally accepted accounting principles in the United
States of America in effect from time to time as promulgated by the Financial
Standards Accounting Board and recognized and interpreted by the American
Institute of Certified Public Accountants.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of, or pertaining
to, government, including, without limiting the generality of the foregoing, any
agency, body, commission, court or department thereof, whether federal, state,
local or foreign.
"Hazardous Materials" means (a) any "hazardous substance," as defined
by CERCLA, (b) any "hazardous waste," as defined by the Resource Conservation
and Recovery Act, as amended, (c) any petroleum product, or (d) any pollutant or
contaminant or hazardous, dangerous or toxic chemical, material or substance
within the meaning of any other federal, state or local law, regulation,
ordinance or requirement (including consent decrees and administrative orders)
relating to, or imposing liability or standards of conduct concerning, any
hazardous, toxic or dangerous waste, substance or material, all as amended or
hereafter amended.
"Indebtedness" of a Person means 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 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)
reimbursement or other obligations in connection with letters of credit, (h)
obligations in connection with Sale and Leaseback Transactions, (i) any Net
Xxxx-To-Market Exposure of Rate Hedging Agreements or other Financial Contracts,
and (j) any other transaction which is the functional equivalent of, or takes
the place of borrowing, but which would not constitute a liability on a balance
sheet of such Person prepared in accordance with GAAP.
"Investment" of a Person means any loan, advance (other than
commission, travel and similar advances to officers and employees made in the
ordinary course of business), extension of credit (other than accounts
receivable arising in the ordinary course of business on terms customary in the
trade) or contribution of capital by such Person; stocks, bonds, mutual funds,
partnership interests, notes, debentures or other securities owned by such
Person; any deposit accounts and certificate of deposit owned by such Person;
and structured notes, derivative financial instruments and other similar
instruments or contracts owned by such Person.
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"Lenders" means the financial institution listed on Schedule 1 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 Application" or "Application" means an Application
for Standby Letter of Credit, in the form prescribed by NBD, duly executed by
Borrower in favor of NBD, from time to time, to govern a Letter of Credit issued
pursuant to this Agreement, as any such Application may be amended from time to
time.
"Letters of Credit" means standby letters of credit now or hereafter
issued by NBD from time to time at the request of, and for the account of,
Borrower issued pursuant to this Agreement.
"Leverage Ratio" means, with respect to Borrower and its Subsidiaries
determined on a Consolidated basis, the ratio of (a) total Indebtedness
(exclusive of any Net Xxxx-to-Market Exposure of Rate Hedging Agreements or
other Financial Contracts), to (b) EBITDA, all as determined on the last day of
each fiscal quarter of Borrower by reference to the Financial Statements.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment for the purpose of security, deposit arrangement for
the purpose of security, encumbrance or preference, priority or other security
agreement 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 Documents" means, this Agreement, the Notes, any Letter of Credit
Applications, and any other documents or instruments now or hereafter executed
and delivered by or on behalf of Borrower to any Lender or the Agent in order to
evidence, govern or secure the Obligations.
"Loan" means with respect to a Lender, such Lender's loan made pursuant
to Section 2 ( or any conversion or continuation thereof).
"Mandatory Funding" shall have the meaning ascribed thereto in Section
2.1.3.
"Material Adverse Effect" means any event, circumstance or condition
that could reasonably be expected to have a material adverse effect on (a) the
business, operations, financial condition, Properties or prospects of Borrower
and its Subsidiaries taken as a whole, (b) the ability of Borrower to perform
Obligations, (c) the validity or enforceability of any of the Loan Documents, or
any material provision thereof or any transaction contemplated thereby, or (d)
the rights and remedies of the Lenders and the Agent under any of the Loan
Documents.
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"Multi-employer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which Borrower or any member of
the Controlled Group is a party to which more than one employer is obligated to
make contributions.
"NBD" means NBD Bank, N.A., a national banking association, having its
principal offices in Indianapolis, Indiana, in its individual capacity, and its
successors.
"Net Income" means, for any period, the net income of Borrower and its
Consolidated Subsidiaries after deductions for income taxes, determined on a
Consolidated basis in accordance with GAAP and as shown on the Financial
Statements.
"Net Xxxx-to-Market Exposure" of a Person means, as of any date of
determination, the excess (if any) of all unrealized losses over all unrealized
profits of such Person arising from Rate Hedging Agreements, where "unrealized
losses" means the fair market value of the cost to such Person of replacing such
Rate Hedging Agreement as of the date of determination (assuming the Rate
Hedging Agreement were to be terminated as of that date), and "unrealized
profits" means the fair market value of the gain to such Person of replacing
such Rate Hedging Agreement as of the date of determination (assuming such Rate
Hedging Agreement were to be terminated as of that date).
"Non U.S. Lender" means any Lender (including each Purchaser) that is
not (a) a citizen or resident of the United States of America, (b) a
corporation, partnership or other entity created or organized in or under the
laws of the United States of America or any state thereof, or (c) any estate or
trust that is subject to United States Federal Income taxation regardless of the
source of its income.
"Notes" means, collectively, the Revolving Credit Notes and the Credit
Note.
"Notice of Assignment" shall have the meaning ascribed in Section
10.3.2.
"Obligations" means all of the unpaid principal amount of, and accrued
interest on, the Notes, actual and contingent reimbursement obligations under
Letters of Credit, the Commitment Fees, Agent fees, Letter of Credit fees,
obligations of Borrower to a Lender or an Affiliate of a Lender or the Agent in
respect of any Rate Hedging Obligations with respect to Rate Hedging Agreements
entered into with a Lender or the Agent at a time such Lender or such Agent was
a party to this Agreement, notwithstanding such Lender or Agent later ceases to
be a party to this Agreement, all other obligations, indemnities, reimbursements
and liabilities of Borrower to the Lenders or to any Lender or to the Agent or
any indemnified party hereunder in connection with the Facilities of every type
and description, direct or indirect, absolute or contingent, due or to become
due, now existing or hereafter arising, or otherwise arising under the Loan
Documents whether or not contemplated by Borrower or the Lenders as of the date
hereof, including, without limitation, all reasonable costs of collection and
enforcement of any and all thereof, including reasonable attorneys' fees.
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"Offering Letter" means that certain letter issued by First Chicago
Capital Markets, Inc. to the Lenders dated September 19, 1997, and acknowledged
by Borrower on October 10, 1997.
"Operating Lease" of a Person means any lease of Property (other than a
Capitalized Lease) by such Person as lessee which has an original term
(including any required renewals and any renewals effective at the option of the
lessor) of one year or more.
"Participants" shall have the meaning ascribed thereto in Section
10.2.1.
"PBGC" means the Pension Benefit Guaranty Corporation established
pursuant to ERISA, or any successor thereto.
"Permissible Increment" means (a) with respect to Revolving Loan
Advances, a minimum principal amount of Five Million Dollars ($5,000,000) and
minimum increments of One Million Dollars ($1,000,000) above Five Million
Dollars ($5,000,000), and (b) with respect to Cash Management Line Advances, a
minimum principal amount of One Hundred Thousand Dollars ($100,000) and minimum
increments of Ten Thousand Dollars ($10,000) above One Hundred Thousand Dollars
($100,000).
"Permitted Liens" shall have the meaning ascribed thereto in Section
5.2.2.
"Person" means any natural person, corporation, firm, joint venture,
general or limited partnership, limited liability company, association,
enterprise, trust or other entity or organization, or any government or
political subdivision or any agency, department or instrumentality thereof.
"Plan" means an employee pension benefit plan which is covered by Title
IV of ERISA or subject to the minimum funding standards under Section 412 of the
Code as to which Borrower or any member of the Controlled Group may have any
liability.
"Plan Assets" shall have the meaning ascribed in ERISA.
"Prime Rate" means the variable per annum rate of interest established
and quoted by NBD from time to time as its "prime rate," as adjusted on the
effective date of each change in such established and quoted rate; provided that
such prime rate shall not necessarily be representative of the rate of interest
actually charged by NBD on any loan or class of loans.
"Property" of a Person means any and all Property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets owned,
leased or operated by such Person.
"Pro Rata Share" means, as to any Lender, when used with reference to
an aggregate or total amount, an amount equal to the product of (a) such
aggregate or total amount, multiplied by (b) a fraction, the numerator of which
shall be the sum of such Lender's Revolving Loan Commitment (or, if the
Revolving Loan Commitments have been terminated, the sum of such Lender's
outstanding
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Revolving Loan and share of the face amount of outstanding Letters of Credit)
and the denominator of which shall be the sum of the total Revolving Loan
Commitments (or, if the Revolving Loan Commitments have been terminated, the sum
of the total outstanding Revolving Loan Advances and the aggregate face amount
of outstanding Letters of Credit).
"Purchasers" shall have the meaning ascribed thereto in Section 10.3.1.
"Rate Hedging Agreement" means an agreement, device or arrangement
providing for payments which are related to fluctuations of interest rates,
exchange rates or forward rates, 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.
"Rate 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 (a) any and all Rate
Hedging Agreements, and (b) any and all cancellations, buy backs, reversals,
terminations or assignments of any Rate Hedging Agreement.
"Reference Lenders" means NBD Bank, N.A., Xxxxxx Trust and Savings Bank
and Bank One, Indiana, N.A.
"Register" shall have the meaning ascribed thereto in Section 10.4.
"Registered Note" shall mean promissory notes that have been issued in
registered form as provided by Section 10.4.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor thereto
or other regulation or official interpretation of said Board of Governors
relating to reserve requirements applicable to member banks of the Federal
Reserve System.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor thereto
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.
"Rentals" of a Person means the aggregate fixed amounts payable by such
Person under any lease of Property having an original term (including any
required renewals or any renewals at the option of the lessor or lessee) of one
year or more.
"Replaced Lender" and "Replacement Lender" shall have the respective
meanings ascribed thereto in Section 11.20.
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"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 thirty (30)
days of the occurrence of such event, provided, however, that a failure to meet
the minimum funding standard 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.
"Required Lenders" means Lenders in the aggregate having at least
Fifty-One Percent (51%) of the Revolving Loan Commitments, or if the Revolving
Loan Commitments have been terminated, the outstanding Advances.
"Reserve Requirement" means, as to any Eurodollar Loan for any
Eurodollar Interest Period, the daily average of the stated maximum rate
(expressed as a decimal) at which reserves, including any marginal,
supplemental, or emergency reserves, are required to be maintained during such
Eurodollar Interest Period under Regulation D by member banks of the Federal
Reserve System against "Eurocurrency liabilities" (as such term is used in
Regulation D), but without the benefit or credit of any prorations, exemptions,
or offsets that might otherwise be available from time to time under Regulation
D. Without limiting the generality or effect of the foregoing, the Reserve
Requirement shall reflect any reserves required to be maintained by the Lenders
against (a) any category of liabilities that includes deposits by reference to
which the Eurodollar Rate is to be determined, or (b) any extensions of credit
or other assets of any category that includes Eurodollar Loans.
"Revolving Loan" means, with respect to a Lender, such Lender's portion
of the outstanding Revolving Loan Advances made by such Lender to Borrower
pursuant to its respective Revolving Loan Commitment, including any extensions
or renewals thereof.
"Revolving Loan Advances" means an Advance under the Revolving Loan
Commitment.
"Revolving Loan Commitment" means, for each Lender, the obligation of
such Lender to make Revolving Loans not exceeding the amount set forth opposite
such Lender's name on Schedule 1 hereto as such Lender's Revolving Loan
Commitment or as set forth in any Notice of Assignment relating to any
assignment that has become effective pursuant to Section 10.3.2, as such amount
may be modified from time to time pursuant to the terms hereof, and "Revolving
Loan Commitments" means the sum of each Lender's Revolving Loan Commitment.
"Revolving Credit Notes" means the Revolving Credit Notes, each
substantially in the form of Exhibit A hereto, duly executed by Borrower to the
respective Lenders to evidence the Revolving Loans, including any and all
renewals, extensions, replacements and modifications thereof.
"Risk-Based Capital Guidelines" shall have the meaning ascribed thereto
in Section 3.2.
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"Sale and Leaseback Transaction" means any sale or other transfer of
Property by any Person with the intent to lease such Property as lessee.
"Senior Notes" means Borrower's unsecured promissory notes to be issued
in a principal amount not less than Seventy-Five Million Dollars ($75,000,000)
and not exceeding One Hundred Million Dollars ($100,000,000), having a maturity
of not less than ten (10) years and requiring payments of interest only (but not
principal) until maturity, including any and all replacements, refundings,
refinancings, extensions, or renewals thereof or permitted additions thereto.
"Single Employer Plan" means a Plan maintained by Borrower or any
member of the Controlled Group for employees of Borrower or any member of the
Controlled Group.
"Subsidiary" of a Person means (a) any corporation more than Fifty
Percent (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 (b) any partnership, limited liability company,
association, joint venture or similar business organization more than Fifty
Percent (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
Borrower.
"Substantial Portion" means, with respect to the Property of Borrower
and its Subsidiaries, Property which as at the date of determination (a)
represents more than Ten Percent (10%) of the Consolidated Total Assets of
Borrower and its Subsidiaries determined in accordance with GAAP by reference to
the then most recent Financial Statements, or (b) is responsible for more than
Ten Percent (10%) of the Consolidated net sales or of the Consolidated Net
Income of Borrower and its Subsidiaries determined in accordance with GAAP for
the four fiscal quarter period ending on the date of the then most recent
Financial Statements.
"Telerate" means, when used in connection with any designated page and
the Eurodollar Base Rate and/or the Federal Funds Effective Rate, the display
page so designated on the Dow Xxxxx Telerate Service (or such other page as may
replace that page on that service, or such other service as may be nominated as
the information vendor) for the purpose of displaying rates or prices comparable
to the Eurodollar Base Rate and/or the Federal Funds Effective Rate.
"Transferee" shall have the meaning ascribed thereto in Section 10.4.
"Type" means, with respect to any Advance, its nature as an ABR Advance
or Eurodollar Advance.
"Unfunded Liabilities" means the amount (if any) by which the present
value of all vested and unvested accrued benefits under all Single Employer
Plans exceeds the fair market value of all such
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Plan assets allocable to such benefits, all determined as of the then most
recent valuation date for such Plans using PBGC actuarial assumptions for single
employer plan terminations.
"Unmatured Default" means any event which with notice, or lapse of time
or both, would constitute a Default.
"U.S. Subsidiaries" means all Subsidiaries of Borrower which are
organized or incorporated within the United States of America or within any
United States territories or possessions.
"Wholly-Owned Subsidiary" of a Person means (a) any Subsidiary, all of
the outstanding voting securities (other than director's qualifying shares) of
which shall at the time be owned or controlled, directly or indirectly, by such
Person or one or more Wholly-Owned Subsidiaries of such Person, or (b) any
partnership, limited liability company, association, joint venture or similar
business organization, One Hundred Percent (100%) of the ownership interests
having ordinary voting power of which shall at the time be so owned or
controlled.
1.2. Rules of Construction. The foregoing definitions shall be equally
applicable to both the singular and plural forms of the defined terms and shall
be construed accordingly. Use of the terms "herein," "hereof" and "hereunder"
shall be deemed references to this Agreement in its entirety and not to the
Section clause in which such term appears. References to "Sections" and
"subsections" shall be to Sections and subsections, respectively, of this
Agreement unless otherwise specifically provided.
1.3. Accounting Terms. All accounting terms not specifically defined
herein shall be construed in accordance with GAAP consistent with those applied
in the preparation of the Financial Statements.
SECTION 2
Credit
2.1. Commitments.
2.1.1. Revolving Loans. Subject to the terms and conditions of
this Agreement, from and after the Effective Date and prior to the
Facility Termination Date, each Lender severally agrees to make
Revolving Loans to Borrower from time to time in amounts not to exceed
in the aggregate at any one time outstanding the amount of its
Revolving Loan Commitment. No requested Revolving Loan Advance shall
cause the aggregate outstanding principal balance of the Revolving Loan
Advances plus the aggregate outstanding principal balance of the Cash
Management Line Advances plus outstanding Letters of Credit and
unreimbursed drawings thereunder to exceed the Revolving Loan
Commitments. Subject to the terms of this Agreement, Borrower may
borrow, repay and reborrow at any time prior to
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the Facility Termination Date. The Revolving Loan Commitments to lend
hereunder shall expire on the Facility Termination Date. The Revolving
Loans made by the Lenders pursuant hereto shall be evidenced by the
Revolving Credit Notes.
2.1.2. Cash Management Line. Subject to the terms and
conditions of this Agreement, from and after the Effective Date and
prior to the Facility Termination Date, NBD shall make the Cash
Management Line available to Borrower in a maximum principal amount
equal to the lesser of (a) the unborrowed portion of its Revolving Loan
Commitment, or (b) Fifteen Million Dollars ($15,000,000). No requested
Advance shall cause the aggregate outstanding principal balance of the
Cash Management Line Advances to exceed Fifteen Million Dollars
($15,000,000) and no requested Advance shall cause the aggregate
outstanding principal balance of the Cash Management Line Advances plus
the aggregate outstanding principal balance of the Revolving Loan
Advances plus outstanding Letters of Credit and unreimbursed drawings
thereunder to exceed the Revolving Loan Commitments. Prior to the
Facility Termination Date, Borrower may borrow, prepay and reborrow
such available amount under the Cash Management Line from time to time,
all in accordance with the terms and conditions hereof. Advances under
the Cash Management Line shall be evidenced by the Credit Note.
2.1.3. Ratable Loans/Mandatory Funding. With respect to the
Revolving Loan Commitments, each Advance thereunder shall consist of
Revolving Loans made from the several Lenders in accordance with their
respective Pro Rata Share. On any Business Day, NBD may, in its sole
discretion, give notice to the Lenders that the outstanding principal
balance of the Cash Management Line shall be funded with a Revolving
Loan Advance (provided that such notice shall be deemed to have been
automatically given upon the occurrence of a Default under Section 7(f)
or (g) hereof), in which case an Advance under the Revolving Loan
Commitments constituting an ABR Loan (each such Advance being referred
to herein as a "Mandatory Funding") shall be made on the immediately
succeeding Business Day by all Lenders according to each Lender's Pro
Rata Share of the Revolving Loan Commitments, and the proceeds thereof
shall be applied directly to NBD to repay such outstanding Cash
Management Line Advances. Each Lender hereby irrevocably agrees to make
such Revolving Loans, pursuant to each Mandatory Funding in the amount
and in the manner specified in the preceding sentence and on the date
specified to it by NBD notwithstanding: (a) that the amount of the
Mandatory Funding may not be in a Permissible Increment; (b) whether
any conditions specified in Section 6 hereof are then satisfied; (c)
the date of such Mandatory Funding; and (d) any reduction in the total
Revolving Loan Commitment after any such Advances under the Cash
Management Line were made. In the event that any Mandatory Funding
cannot for any reason be made on the date otherwise required above
(including, without limitation, as a result of the commencement of a
proceeding under the Bankruptcy Code in respect of Borrower), each
Lender hereby agrees that it shall forthwith purchase from NBD (without
recourse or warranty) such assignment of the outstanding Advances under
the Cash Management Line as shall be necessary to cause such Lenders to
share in such Advances ratably based upon their respective Revolving
Loan
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Commitments, provided that all interest payable on such Advances shall
be for the account of NBD until the date the respective assignment is
purchased and, to the extent attributable to the purchased assignment,
shall be payable to the Lender purchasing same from and after such date
of purchase.
2.2. Interest.
2.2.1. Revolving Loans. Prior to maturity or Default, the
principal amount of the Revolving Loans outstanding from time to time
shall bear interest at a rate per annum equal to the Alternate Base
Rate plus the Applicable Margin, except that at the option of Borrower,
exercised as provided in Section 2.5, interest may accrue prior to
maturity on any Permissible Increment of outstanding Advances of the
Revolving Loans at a per annum rate equal to the Eurodollar Rate plus
the Applicable Margin. At the expiration of the Eurodollar Interest
Period on such Permissible Increment, unless, in each case, Borrower
selects the Fixed Rate Option as provided in Section 2.5, interest
shall again accrue at the Alternate Base Rate plus the Applicable
Margin.
2.2.2. Cash Management Line. Prior to maturity or Default,
outstanding Advances under the Cash Management Line from time to time
shall bear interest at a rate per annum equal to the Alternate Base
Rate.
2.2.3. General/Default Rate. Interest shall be due and payable
for the exact number of days principal is outstanding and shall be
calculated on the basis of a three hundred sixty (360) day year. Any
change in the interest rates occasioned by a change in the Alternate
Base Rate shall be effective on the same day as the change in the
Alternate Base Rate. After the maturity of any Facility, whether by
acceleration or otherwise, and while and so long as there shall exist
any uncured Default, the Required Lenders may, at their option, by
notice to Borrower and the Agent (which notice may be revoked at the
option of the Required Lenders notwithstanding any provision of Section
11.1 requiring unanimous consent of the Lenders to changes in interest
rates), declare that each Revolving Loan Advance shall bear interest at
a rate per annum equal to the otherwise applicable rate plus Two
Percent (2%) per annum. If any Advance under the Cash Management Line
is not paid at maturity, whether by acceleration or otherwise, or
during the continuance of a Default, NBD may, at its option, by notice
to Borrower and the Agent (which notice may be revoked at its option
notwithstanding any provision of Section 11.1 requiring unanimous
consent of the Lenders to changes in interest rates), declare that each
Cash Management Line Advance shall bear interest at a rate per annum
equal to the otherwise applicable rate plus Two Percent (2%) per annum.
2.3. Payments of Principal and Interest.
2.3.1. Revolving Loans. Interest only on the outstanding
Advances of the Revolving Loans from time to time shall be due and
payable throughout the term of the Revolving Loan Commitment (a) on the
last day of each fiscal quarter of Borrower with
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respect to each ABR Loan, and (b) on the last day of an applicable
Eurodollar Interest Period with respect to each Eurodollar Loan and, in
the case of an Eurodollar Interest Period greater than three (3)
months, at three (3) month intervals after the first day of such
Eurodollar Interest Period. Any outstanding Advances and all other
unpaid Obligations, together with all accrued and unpaid interest
thereon, and all fees and charges payable in connection therewith,
shall be paid in full on the Facility Termination Date.
2.3.2. Cash Management Line. Interest only on the outstanding
balance of the Cash Management Line Advances from time to time shall be
due and payable throughout the term of the Cash Management Line on the
last day of each fiscal quarter of Borrower. From time to time,
Borrower shall make principal payments in respect of the Cash
Management Line in an amount sufficient so that the outstanding
principal balance of Cash Management Line Advances plus the outstanding
balance of the Revolving Loan Advances plus outstanding Letters of
Credit and unreimbursed drawings thereunder do not exceed the aggregate
Revolving Loan Commitments. Any Cash Management Line Advances, together
with all accrued and unpaid interest thereon, and all fees and charges
payable in connection therewith, shall be paid in full on the Facility
Termination Date.
2.3.3. Optional Prepayment.
(a) Except as provided in, and subject to, Section 2.5 and 3.4
with respect to Eurodollar Advances, Borrower may from time to time,
(i) upon one Business Day notice to the Agent, without penalty or
premium, prepay in full all outstanding Revolving Loan Advances
constituting ABR Advances and, if paid on the last day of the
applicable Eurodollar Interest Period, Eurodollar Advances, or, prepay
in partial prepayment in a minimum aggregate amount of One Million
Dollars ($1,000,000) or any integral multiple of One Million Dollars
($1,000,000) in excess thereof, any portion of the outstanding
Revolving Loan Advances constituting ABR Advances or, if paid on the
last day of the applicable Eurodollar Interest Period, Eurodollar
Advances, and (ii) upon three Business Days notice to the Agent,
without penalty or premium, prepay in full all outstanding Revolving
Loan Advances constituting Eurodollar Advances if paid on any day other
than the last day of the applicable Eurodollar Interest Period, or,
prepay in partial prepayment in a minimum aggregate amount of Five
Million Dollars ($5,000,000) or any integral multiple of One Million
Dollars ($1,000,000) in excess thereof, any portion of the outstanding
Revolving Loan Advances constituting Eurodollar Advances if paid on any
day other than the last day of the applicable Eurodollar Interest
Period.
(b) Borrower may from time to time, upon one Business Day
prior notice to NBD, without penalty or premium, prepay in full all
outstanding Cash Management Line Advances, or, prepay in partial
prepayment in a minimum aggregate amount of One Hundred Thousand
Dollars ($100,000) or any integral multiple of Ten Thousand Dollars
($10,000) in excess thereof, any portion of the outstanding Cash
Management Line Advances.
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2.3.4. Taxes.
(a) All payments by Borrower under this Agreement or the Notes
shall be made free and clear of, and without deduction or withholding
for, any present or future income, stamp or other taxes, levies,
duties, imposts, charges or fees or any related penalties, interest or
other liabilities ("Taxes"). If any Taxes are required to be deducted
or withheld from any amount payable to the Agent or any Lender under
this Agreement or the Notes, Borrower shall pay additional amounts so
that the amount received by the Agent or such Lender after the
deduction of such Taxes (including Taxes on such additional amounts)
equals the amount that the Agent or such Lender would have received if
no Taxes had been deducted. Borrower shall pay to the appropriate
taxing authority all Taxes required to be deducted or withheld. Within
thirty (30) days after paying any such Taxes, Borrower shall deliver to
the Agent the original or a certified copy of the receipt for such
payment. Borrower shall not be required to pay additional amounts to
the Agent or a Lender on account of any Taxes, including, but not
limited to, income taxes, imposed solely by reason of (i) a present or
past connection between such person and the jurisdiction imposing such
Taxes (except a connection arising solely from the execution, delivery,
performance, enforcement of or the receipt of payments under this
Agreement or the Notes) or (ii) a failure of such Person to comply with
the requirements of subsection (b).
(b) Any Agent and each Lender that is not incorporated under
the laws of the United States of America or a state thereof shall:
(i) deliver to Borrower by the date when the
Agent or the Lender becomes a party to this Agreement (A)(1)
two duly completed copies of United States Internal Revenue
Service Form 1001 or 4224 certifying that such Agent or Lender
is entitled to receive payments under this Agreement and the
Notes without deduction or withholding of any United States
federal income taxes and (2) a duly completed United States
Internal Revenue Service Form W-8 or W-9 certifying that such
Agent or Lender is entitled to an exemption from United States
backup withholding tax or (B) in the case of an Agent or
Lender not treated as a bank for regulatory, tax or other
legal purposes in any jurisdiction, (1) a certificate under
penalties of perjury that such Agent or Lender is not (x) a
bank, a shareholder of Borrower or a controlled foreign
corporation related to Borrower for purposes of section
881(c)(3) of the Code or (y) a conduit entity within the
meaning of United States Treasury Regulations section 1.881-3
and (2) a duly completed Internal Revenue Service Form W-8;
(ii) deliver to Borrower a renewed form or
certificate (or applicable successor) upon reasonable request
of Borrower unless such Agent or Lender is not entitled to
deliver a renewed form or certificate due to change in
applicable law or in the interpretation or administration of
applicable law; and
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(iii) deliver to Borrower a further form or
certificate (or applicable successor) upon the occurrence of
any event requiring a change in a form or certificate
previously delivered and notify Borrower upon the occurrence
of any event requiring the withdrawal of a form or
certification previously delivered.
(c) Borrower shall indemnify the Agent and each Lender against
any Taxes imposed on (and any related expenses reasonably incurred by)
the Agent or such Lender on account of the execution, delivery,
performance or enforcement of or the receipt of payments under this
Agreement or the Notes other than Taxes imposed solely by reason of
either cause specified in the last sentence of subsection (a). Borrower
also shall pay and indemnify the Agent and each Lender against any
stamp or other documentary, excise or property taxes or similar levies,
imposts, or charges (or any related liability) arising from the
execution, delivery, registration, performance or enforcement of this
Agreement or the Notes.
2.3.5. Method of Payment. All payments of principal and
interest hereunder shall be made by Borrower to the Agent at its main
office in Indianapolis, Indiana by 12:00 Noon (Indianapolis time) on
the date when due, and shall be applied pro rata among the Lenders in
accordance with their respective Pro Rata Shares. Each payment timely
delivered to the Agent for the account of any Lender shall be delivered
by the Agent for the account of any Lender no later than 2:00 P.M.
(Indianapolis time) on the same day.
2.3.6. Business Day. If any payment Obligation becomes due and
payable on a date other than a Business Day, the maturity of such
Obligation shall be extended to the next succeeding Business Day, and
interest shall be payable during such extension of maturity.
2.4. Method of Advance.
2.4.1. Revolving Loans. As Borrower desires to obtain
Revolving Loans, Borrower shall give the Agent notice of Borrower's
request to borrow pursuant to the Revolving Loan Commitments by not
later than 11:00 A.M. (Indianapolis time), on the proposed Business Day
of borrowing, subject to Section 2.5 with respect to Eurodollar
Advances. Such request may be made orally by an Authorized Officer, or
upon a request transmitted to the Agent by telex, facsimile machine or
other form of written electronic communication signed by an Authorized
Officer, and, once received by the Agent, shall be irrevocable. The
Agent may rely, without further inquiry, on all such requests which
shall have been received by it in good faith by any Person reasonably
believed to be an Authorized Officer. The Agent may require telephonic
or other oral requests to be followed immediately by a written request.
Each request shall, in and of itself, constitute a representation and
warranty that the conditions precedent to such Advance as set forth in
Sections 6.2.1 and 6.2.2 have been satisfied as of, and after giving
effect to, such Advance and that the requested Advance shall not cause
the principal balance of the Revolving Loans to exceed the aggregate
Revolving Loan Commitments. The Agent shall notify the Lenders of
Borrower's intent to borrow by 12:00 P.M. (Indianapolis time) on the
proposed Business Day of borrowing,
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subject to Section 2.5 with respect to Eurodollar Advances. Each
Advance under the Revolving Loan Commitments shall consist of Revolving
Loans made by the several Lenders ratably in the proportions that their
Revolving Loan Commitments bear to the aggregate of the Revolving Loan
Commitments. By 2:00 P.M. (Indianapolis time) on each such borrowing
date, each Lender shall advance its portion of such Revolving Loan
Advance by making available to the Agent, either by wire transfer to
the Agent's main office in Indianapolis, Indiana, or by deposit to any
correspondent account which Agent may maintain with that Lender, the
amount to be advanced by such Lender. Borrower hereby authorizes the
disbursement of such Revolving Loans (other than Revolving Loans made
by payment of Letters of Credit) by deposit to the account of Borrower
with NBD, and NBD, as Agent, shall, by 2:30 P.M. (Indianapolis time) on
the date received, credit the amount so received from each Lender to
the account of Borrower with NBD. The aggregate principal amount of
Revolving Loans (other than Revolving Loans made by payment of Letters
of Credit) made on any borrowing date shall be in Permissible
Increments.
2.4.2. Cash Management Line. As Borrower desires to obtain
Advances under the Cash Management Line hereunder, Borrower shall give
the Agent and NBD notice thereof by not later than 11:00 a.m.
(Indianapolis time), on the proposed Business Day of borrowing. Each
request once received by NBD shall be irrevocable. Such notice may be
made orally by an Authorized Officer, or upon a request transmitted to
the Agent and NBD by telex, facsimile machine or other form of written
electronic communication and signed by an Authorized Officer. The Agent
and NBD may rely, without further inquiry, on all such requests which
shall have been received by it in good faith by anyone reasonably
believed to be an Authorized Officer. NBD may require telephonic or
other oral requests to be followed immediately by a written request.
Each request shall in and of itself constitute a representation and
warranty that no Default or Unmatured Default has occurred and is
continuing or would result from the making of the requested Advance,
that the requested Advance shall not cause the principal balance of the
Cash Management Line Advances to exceed Fifteen Million Dollars
($15,000,000) and that the requested Advance shall not cause the
outstanding principal balance of the Cash Management Line plus the
outstanding balance of the Revolving Loan Advances plus outstanding
Letters of Credit and unreimbursed drawings thereunder to exceed the
aggregate Revolving Loan Commitments. By 2:00 p.m. (Indianapolis time)
on each such borrowing date, NBD agrees to make its Advance under the
Cash Management Line to Borrower by deposit to the account of Borrower
with NBD. The aggregate principal amount of Cash Management Line made
on any borrowing date shall be in Permissible Increments.
2.4.3. General. All Advances by the Lenders and payments by
Borrower shall be recorded by the Agent and may be recorded by the
Lenders on its or their books and records, and the principal amount
outstanding from time to time, plus interest payable thereon shall be
determined from such books and records. The books and records of the
Agent and/or the Lenders as to such matters shall be presumed correct
absent manifest error.
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2.5. Procedures for Electing the Fixed Rate Option. The Fixed Rate
Option may be elected only in accordance with the following procedures and
subject to the other conditions contained in this Agreement:
(a) Unless the Required Lenders otherwise agree, no Fixed Rate
Option may be elected or renewed at any time a Default or Unmatured
Default exists.
(b) Borrower shall give the Agent irrevocable notice (a "Fixed
Rate Option Notice") of its election or renewal of a Fixed Rate Option
prior to 11:00 A.M. (Indianapolis time) not less than three Business
Days, prior to the commencement of the applicable Eurodollar Interest
Period therefor specifying (i) Borrowing Date which shall be a Business
Day, (ii) the amount of the Advance elected or renewed which amount
shall be in a Permissible Increment, and (iii) the duration of the
Eurodollar Interest Period selected to apply thereto. The Agent shall
promptly notify the Lenders whenever a new Fixed Rate Option is
selected by Borrower.
(c) An election of a Fixed Rate Option may be communicated by
telephone or by telex, facsimile machine or other form of written
electronic communication, or by a writing delivered to the Agent.
Borrower shall confirm in writing any election communicated by
telephone. The Agent shall be entitled to rely on any verbal
communication of the election of the Fixed Rate Option Notice which is
received by a designated employee of the Agent from anyone reasonably
believed in good faith by such employee to be authorized.
(d) Not more than eight (8) Eurodollar Interest Periods may be
selected at any one time to apply to outstanding Advances.
(e) If at the time of any voluntary or mandatory prepayment of
any portion of the principal of any Loan, interest accrues at both the
Fixed Rate Option and with reference to the Alternate Base Rate on
portions of a Loan or Loans, then any prepayment of principal will be
applied first to the portion of a Loan or Loans on which interest
accrues with reference to the Alternate Base Rate and next to the
portion or portions at which interest accrues at a Fixed Rate Option.
(f) In addition to the compensation required by Section 3,
Borrower shall indemnify each Lender (on a net basis) against any loss
or expense (including loss of margin) which any Lender has sustained or
incurred as a consequence of any attempt by Borrower to revoke
(expressly, by later inconsistent notices or otherwise) in whole or in
part any notice stated herein to be irrevocable (the Agent having, in
its sole discretion, the option (i) to give effect to such attempted
revocation and obtain indemnity under this Section, or (ii) to treat
such attempted revocation as having no force or effect, as if never
made). Calculation of all amounts payable to a Lender under this
Section shall be made as though such Lender had actually funded its
relevant Eurodollar Loan through the purchase of a deposit bearing
interest at the Eurodollar Rate in an amount equal to the amount of
such Eurodollar Loan and having
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a maturity comparable to the relevant Interest Period; provided,
however, that each Lender may fund each of its Eurodollar Loans in any
manner it sees fit, and the foregoing assumption shall be utilized only
for the calculation of amounts payable under this Section. If any
Lender sustains or incurs any such loss or expense it shall notify
Borrower of the amount determined in good faith by such Lender (which
determination shall be presumed to be correct) to be necessary to
indemnify such Lender for such loss or expense. Such amount shall be
due and payable by Borrower to such Lender ten (10) Business Days after
such notice is given.
2.6. Fees.
2.6.1. Commitment Fee. Borrower shall pay to the Agent, for
the pro rata benefit of the Lenders, the Applicable Commitment Fee on
the average daily unused portion of the aggregate Revolving Loan
Commitments from the Effective Date to and including the Facility
Termination Date, payable quarterly in arrears on the last day of each
August, November, February and May, and on the Facility Termination
Date. The Applicable Commitment Fee shall be calculated on the basis of
a three hundred sixty (360) day year.
2.6.2 Initial Facility Fees. Borrower shall pay to the Agent,
for the benefit of the Lenders, the initial facility fees in accordance
with the Offering Letter.
2.6.3. Agent Fees. Borrower shall pay to the Agent an annual
administrative fee in accordance with the Fee Letter.
2.6.4 Letter of Credit Fees. Borrower shall pay fees in
respect of the Letters of Credit as more fully provided in Section
2.11.
2.6.5. General. The compensation provided in this Section
shall be in consideration of the services of the Lenders in connection
with the Facilities and shall be in addition to any other fee, charge,
payment or expense required to be borne by Borrower under the Loan
Documents or in any other separate agreement between Borrower and the
Agent.
2.7. Reductions in Revolving Loan Commitment. Borrower shall have the
right to terminate or reduce the aggregate amount of the Revolving Loan
Commitment, provided that (a) Borrower shall give at least three Business Days'
prior written notice to the Agent and the Lenders of each such termination or
reduction, (b) each partial reduction shall be in Permissible Increments, (c)
each partial reduction shall apply to the Lenders ratably with respect to their
Revolving Loan Commitment, (d) the Revolving Loan Commitment shall not be
reduced to an amount less than the outstanding principal balance of the
Revolving Loan Advances plus the aggregate principal amount of the outstanding
Cash Management Line Advances plus the amount of any outstanding Letters of
Credit and unreimbursed drawings thereunder, and (e) the Revolving Loan
Commitment, once terminated or reduced, may not be reinstated without the prior
written approval of all the Lenders.
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2.8. Non-Receipt of Funds by the Agent.
2.8.1. From the Lenders. Unless the Agent shall have received
notice from a Lender by 2:00 P.M. (Indianapolis time) on a proposed
Business Day on which such Lender is to provide funds to the Agent for
a Loan to be made by such Lender that such Lender will not make
available to the Agent such funds, the Agent may assume that such
Lender has made such funds available to the Agent on the date of such
Loan in accordance with this Agreement, and the Agent, in its sole
discretion, may, but shall not be obligated to, in reliance upon such
assumption, make available to Borrower on such date a corresponding
amount. If and to the extent such Lender has not made such funds
available to the Agent (and provided such Lender was given timely
notice in accordance with this Agreement), and the Agent has made such
corresponding amount available to Borrower, such Lender agrees to repay
to the Agent forthwith on demand such corresponding amount together
with interest thereon, for each day from the date such amount is made
available to Borrower, at a rate per annum equal to the Federal Funds
Effective Rate, and if such Lender fails to repay the Agent for more
than three Business Days, such amount shall bear interest at a rate per
annum equal to the Federal Funds Effective Rate plus Two Percent (2%).
If such Lender shall repay to the Agent such corresponding amount, such
amount so repaid shall constitute such Lender's Loan for purposes of
this Agreement. If such Lender does not pay such corresponding amount
forthwith upon the Agent's demand therefor, the Agent shall promptly
notify Borrower, and Borrower shall immediately pay such corresponding
amount to the Agent with interest thereon, for each day from the date
such amount is made available to Borrower until the date such amount is
repaid to the Agent, at the rate of interest applicable at the time to
the relevant Loan. If Borrower repays such corresponding amount, the
Lender shall no longer be obligated to make such payment.
2.8.2. From Borrower. Unless the Agent shall have received
notice from Borrower prior to the date on which any payment is due to
the Lenders hereunder that Borrower will not make such payment in full,
the Agent may assume that Borrower has made such payment in full to the
Agent on such date, and the Agent, in its sole discretion, may, but
shall not be obligated to, in reliance upon such assumption, cause to
be distributed to each Lender on such due date an amount equal to the
amount then due such Lender. If and to the extent Borrower has not made
such payment in full to the Agent, and without limiting the Obligation
of Borrower to make such payment, each Lender shall repay to the Agent
forthwith on demand such amount distributed to such Lender together
with interest thereon, for each day from the date such amount is
distributed to such Lender until the date the Agent recovers such
amount at a rate per annum equal to the Federal Funds Effective Rate,
and if such Lender fails to repay the Agent for more than three
Business Days, such amount shall bear interest at a rate per annum
equal to the Federal Funds Effective Rate plus Two Percent (2%).
2.9. Issuance of Letters of Credit. Subject to the terms and conditions
hereof, NBD agrees, upon proper Application, to issue on behalf of the Lenders
from time to time prior to the
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Facility Termination Date, Letters of Credit for the account of Borrower. The
Letters of Credit shall have an expiration date not later than the earlier of
(a) one year from the date of issuance or (b) five days before the expiration of
the Facility Termination Date. The aggregate of the Letters of Credit
outstanding plus the aggregate amount of unreimbursed drawings under the Letters
of Credit shall not exceed Ten Million Dollars ($10,000,000). The amount of any
Letter of Credit outstanding at any time for all purposes hereof shall be the
maximum amount which could be drawn thereunder under any circumstances from and
after the date of determination. Each Letter of Credit issued pursuant to this
Agreement and each unreimbursed drawing thereunder shall count against and
reduce the Revolving Loan Commitments by the amount of such Letter of Credit
outstanding unless and until such Letter of Credit expires by its terms or
otherwise terminates or the amount of a drawing thereunder is reimbursed, in
which event the Revolving Loan Commitments shall be reinstated by the amount of
such Letter of Credit or the amount of such reimbursement, as the case may be.
Each such Letter of Credit shall be issued pursuant to a Letter of Credit
Application and shall conform to the general requirements of NBD for the
issuance of such credits, as to form and substance, shall be subject to the
Uniform Customs and Practices for Documentary Credits (1993 Revision),
International Chamber of Commerce Publication No. 500 and shall be a letter of
credit which NBD may lawfully issue. Each payment of a Letter of Credit by NBD
shall be reimbursed by Advances under the Revolving Loan Commitments evidenced
by the Revolving Credit Notes. If and to the extent a drawing is at any time
made under any Letter of Credit, NBD shall notify Borrower, the Agent and the
other Lenders of such draw and Borrower agrees to pay to NBD immediately and
unconditionally upon demand for reimbursement, in lawful money of the United
States, an amount equal to each amount which shall be so drawn, together with
interest from the date of such drawing to and including the date such payment is
reimbursed to NBD or converted to Revolving Loans as provided herein. Until
demand for reimbursement, such interest shall be calculated at a variable rate
per annum equal to the Alternate Base Rate plus the Applicable Margin for ABR
Loans, and interest shall be calculated after such demand at a variable rate per
annum equal to the Alternate Base Rate plus the Applicable Margin for ABR Loans
plus Two Percent (2%). All such interest shall be calculated on the basis that
an entire year's interest is earned in three hundred sixty (360) days. In the
event that a drawing under any Letter of Credit is not reimbursed by Borrower by
11:00 A.M. (Indianapolis time) on the first Business Day after such drawing, NBD
shall promptly notify the Agent and the other Lenders by 12:00 Noon
(Indianapolis time) that Advances under the Revolving Loan Commitments are
required to reimburse NBD. Borrower hereby irrevocably authorizes the Lenders to
refinance, without notice to Borrower, the reimbursement Obligation of Borrower
arising out of any such drawing into Revolving Loans, evidenced by the Revolving
Credit Notes and for all purposes under, on and subject to the terms and
conditions of this Agreement, but without regard to the conditions precedent to
making an Advance under the Revolving Loan Commitments or to any requirement of
this Agreement that each Revolving Loan be in a minimum amount or multiple;
provided, however, that an Advance under the Revolving Loan Commitments in spite
of Borrower's failure to satisfy any conditions precedent to making an Advance
shall not constitute a waiver of any Default by the Lenders. This Agreement and
the other Loan Documents shall supersede any terms of any Letter of Credit
Applications or other documents which are irreconcilably inconsistent with the
terms hereof or thereof. By 2:00 P.M. (Indianapolis time) on the date the
Lenders have received notice that Advances under the Revolving Loan Commitments
are required to reimburse NBD for
-26-
draws under the Letters of Credit, each Lender severally agrees to make its
portion of the Revolving Loan then being made by making available to the Agent,
either by wire transfer to the Agent's main office in Indianapolis, Indiana, or
by deposit to any correspondent account which the Agent may maintain with that
Lender, the amount to be advanced by such Lender. By 2:30 P.M. (Indianapolis
time) on such date, the Agent shall reimburse NBD, but only from funds received
by the Agent, the amount paid on Letters of Credit that date, either by wire
transfer or by deposit to NBD's correspondent account with the Agent (or as
otherwise agreed between NBD and the Agent).
2.10. Letters of Credit Participation. For administrative convenience,
NBD shall issue the Letters of Credit for the account of Borrower pursuant to
the arrangements set forth herein, and, the outstanding portion of each Letter
of Credit shall be deemed to utilize a Pro Rata Share of the Revolving Loan
Commitment of each Lender. Each Lender severally agrees to participate in each
Letter of Credit according to its Pro Rata Share of the Revolving Loan
Commitments. Each Lender's participation shall be funded by funding its Pro Rata
Share of the Revolving Loan Commitments upon any drawing under any Letter of
Credit not reimbursed the same day as a drawing thereunder by Borrower by 2:00
P.M. (Indianapolis time) by making such funds available to the Agent in
accordance with Sections 2.4.1 and 2.9; and thereupon, each such Lender shall be
entitled to, and NBD or the Agent, as applicable, shall remit to each such
Lender, their respective Pro Rata Share of any amounts (including any interest
thereon) received by NBD or the Agent, as applicable, in reimbursement of such
drawing. NBD shall furnish to such Lenders, each time any Letter of Credit
either is issued or drawn under (whether in whole or in part), (i) a
participation certificate showing the aggregate amount of NBD's Letters of
Credit issued and unexpired or unfunded and the amount of their respective Pro
Rata Share thereof, and (ii) such other information with respect to the Letters
of Credit as any Lender may reasonably request from time to time. The
obligations of the Lenders to fund their respective Pro Rata Share of a
Revolving Loan for reimbursement of a draw under a Letter of Credit shall be
irrevocable and not subject to counterclaim, set-off or other defense or any
other qualification or exception whatsoever and shall be made in accordance with
the terms and conditions of this Agreement under all circumstances, including,
without limitation, any of the following circumstances (other than in the case
of gross negligence or wilful misconduct of NBD):
(a) Any lack of validity or enforceability of this Agreement
or any of the other Loan Documents;
(b) The existence of any claim, set-off, defense or other
right which Borrower may have at any time against a beneficiary named
in the Letter of Credit, any transferee of the Letter of Credit (or any
Person for whom any such transferee may be acting), the Agent, NBD as
the Letter of Credit issuer, any Lender, or other Person, whether in
connection with this Agreement, any Letter of Credit, the transactions
contemplated herein or any unrelated transactions (including any
underlying transaction between Borrower and the beneficiary named in
any such Letter of Credit);
-27-
(c) Any draft, certificate or other document presented under
the Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(d) The surrender or impairment of any security for the
performance or observance of any of the terms of any of the Loan
Documents; or
(e) The occurrence of any Default or Unmatured Default.
2.11. Compensation for Letters of Credit.
2.11.1. Letter of Credit Facility Fee. Borrower shall pay to
NBD, for the ratable benefit of the Lenders in accordance with their
Revolving Loan Commitments, a Letter of Credit facility fee at a per
annum rate equal to the Applicable Margin for Eurodollar Loans on the
average daily undrawn amount of all Letters of Credit outstanding
hereunder, such fee to be calculated on the basis of a three hundred
sixty (360) day year and to be paid in arrears on the last day of each
August, November, February and May and on the Facility Termination
Date.
2.11.2. Letter of Credit Fronting Fees. In addition to the
Letter of Credit facility fees, Borrower shall pay to NBD, for NBD's
own account a Letter of Credit fronting fee in the amount set forth in
the Fee Letter, as well as NBD's reasonable and customary costs of
issuing, servicing and negotiating draws under letters of credit.
2.12. Reimbursement of Letters of Credit. The obligation of Borrower to
reimburse any drawing under any Letter of Credit shall be absolute,
unconditional and irrevocable and shall be paid and performed strictly in
accordance with the terms of this Agreement under all circumstances, whatsoever,
including, without limitation, the following:
(a) Any lack of validity or enforceability of any Letter of
Credit, or any Loan Document;
(b) Any amendment or waiver of or consent to departure from
the terms of any Letter of Credit, or any Loan Document;
(c) The existence of any claim, set-off, defense or other
right which Borrower may have at any time against the beneficiary or
any Letter of Credit, any transferee of any Letter of Credit, the
Lenders or any other Person, whether in connection with the Loan
Documents, such Letter of Credit, or any unrelated transaction;
(d) Any statement, draft or other document presented under any
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect whatsoever;
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(e) The surrender or impairment of any security for the
performance or observance of the terms of the Loan Documents or such
Letter of Credit; or
(f) Any circumstance, happening or admission whatsoever,
whether or not similar to any of the foregoing, including, without
limitation, those matters described below.
The parties benefitted by any Letter of Credit shall be deemed to be the agents
of Borrower, and except as expressly set forth herein, Borrower assumes all
risks for their acts, omissions, or misrepresentations. Neither NBD nor any of
its Affiliates or correspondents shall be responsible for the validity,
sufficiency, truthfulness or genuineness of any document required to draw under
any Letter of Credit even if such document should in fact prove to be in any and
all respects invalid, insufficient, fraudulent or forged, provided only that the
document appears on its face to be in accordance with the terms of the Letter of
Credit. NBD, its Affiliates and correspondents shall not be responsible for any
failure of any draft to bear reference or adequate reference to the applicable
Letter of Credit or for the failure of any Person to note the amount of any
draft on any Letter of Credit or to surrender or take up any Letter of Credit,
each of which provisions may be waived by NBD, or for any errors, omissions,
interruptions, or delays in transmission or delivery of any messages or
documents. Without limiting the generality of the foregoing, Borrower agrees
that any action taken by NBD or any of its Affiliates or correspondents under or
in connection with any Letter of Credit shall be binding upon Borrower and shall
not put NBD or any such Affiliates or correspondents under any such resulting
liability to Borrower. NBD shall not be liable for action or failure to take
action under or in connection with any Letter of Credit except for any such
action or failure to take action which constitutes gross negligence or wilful
misconduct. NBD shall not be liable for consequential damages in connection with
any Letter of Credit. NBD is expressly hereby authorized to honor any request
for payment which is made under or in compliance with the terms of any Letter of
Credit without regard to, and without any duty on its part to inquire into, the
existence of any disputes or controversies between Borrower and any beneficiary
of any Letter of Credit or any other Person or into respective rights, duties or
liabilities of any of them or whether any facts or occurrences represented in
any of the documents presented under any Letter of Credit are true and correct.
No Person, other than the parties hereto, shall have any rights of any nature
under this Agreement or by reason hereof. In no event shall NBD's reliance and
payment against documents presented under a Letter of Credit appearing on its
face to substantially comply with the terms thereof be deemed to constitute
gross negligence or wilful misconduct.
2.13. Lending Installations. Each Lender may book its Loans 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 telex
notice to the Agent and Borrower, designate a Lending Installation through which
Loans will be made by it and for whose account Loan payments are to be made.
2.14. Notification of Advances, Interest Rates, Prepayments and
Commitment Reductions. Promptly after receipt thereof, the Agent will notify
each Lender of the contents of each Revolving
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Loan Commitment reduction notice, notice of Borrower's request to Borrower under
the Revolving Loan Commitments, Fixed Rate Option Notice, and repayment notice
received by it hereunder. The Agent will notify each Lender of the interest rate
applicable to each Eurodollar Advance promptly upon determination of such
interest rate and will give each Lender prompt notice of each change in the
Alternate Base Rate. If necessary, each Reference Lender agrees to furnish
timely information for the purpose of determining the Eurodollar Rate.
2.15. Use of Proceeds. The proceeds of Advances under the Revolving
Loan Commitments and the Cash Management Line shall be advanced by Borrower to
fund Acquisitions, for general working capital purposes of Borrower and its
Subsidiaries, and for other proper corporate purposes of Borrower not prohibited
by this Agreement.
SECTION 3
Change in Circumstances
3.1. 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), or any interpretation, or the compliance of any
Lender therewith,
(a) Subjects any Lender or any applicable Lending Installation
to any tax, duty, charge or withholding on or from payments due from
Borrower (excluding federal taxation of the overall net or gross income
of any Lender or applicable Lending Installation), or changes the basis
of taxation of payments to any Lender in respect of its Facilities,
Loans or other amounts due it hereunder, or
(b) 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 Advances), or
(c) 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 Facilities or Loans or reduces any
amount receivable by any Lender or any applicable Lending Installation
in connection with Facilities or Loans, or requires any Lender or any
applicable Lending Installation to make any payment calculated by
reference to the amount of Facilities or Loans held or interest
received by it, by an amount deemed material by such Lender,
then, within fifteen (15) days of demand by such Lender, Borrower shall pay such
Lender that portion of such increased expense incurred or reduction in an amount
received which such Lender reasonably determines is attributable to making,
funding and maintaining its Facilities and its Commitment.
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3.2. Changes in Capital Adequacy Regulations. If a Lender reasonably
determines the amount of capital required or expected to be maintained by such
Lender, any Lending Installation of such Lender or any corporation controlling
such Lender is increased as a result of a Change, then, within fifteen (15) days
of demand by such Lender, 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 Facilities, Loans or its obligation to make Loans hereunder
(after taking into account such Lender's policies as to capital adequacy).
"Change" means (a) any change after the date of this Agreement in the Risk-Based
Capital Guidelines or (b) any adoption of or change in any other law,
governmental or quasi-governmental rule, regulation, policy, guideline,
interpretation, or directive (whether or not having the force of law) after the
date of this Agreement which affects the amount of capital required or expected
to be maintained by any Lender or any Lending Installation or any corporation
controlling any Lender. "Risk-Based Capital Guidelines" means (aa) the
risk-based capital guidelines in effect in the United States on the date of this
Agreement, including transition rules, and (bb) 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.
3.3. Availability of Types of Advances. If any Lender reasonably
determines that maintenance of its Eurodollar Loans at a suitable Lending
Installation would violate any applicable law, rule, regulation, or directive,
whether or not having the force of law, or if the Required Lenders reasonably
determine that (a) deposits of a Type and maturity appropriate to match fund
Eurodollar Advances are not available, or (b) the interest rate applicable to a
Type of Advance does not accurately reflect the cost of making or maintaining
such Advance, then the Agent shall suspend the availability of the affected Type
of Advance and require any Eurodollar Advances of the affected Type to be
repaid.
3.4. Funding Indemnification. If any payment (whether mandatory or
optional) of an Eurodollar Advance occurs on a date which is not the last day of
the applicable Eurodollar Interest Period, whether because of acceleration,
prepayment or otherwise, or an Eurodollar Advance is not made on the date
specified by Borrower for any reason other than default by the Lenders, Borrower
will indemnify each Lender for any loss or cost incurred by it resulting
therefrom, including, without limitation, any loss or cost in liquidating or
employing deposits acquired to fund or maintain the Eurodollar Advance.
Calculation of all amounts payable to a Lender under this Section 3.4 shall be
made as though such Lender had actually funded its relevant Eurodollar Loan
through the purchase of a deposit bearing interest at the Eurodollar Rate in an
amount equal to the amount of such Eurodollar Loan and having a maturity
comparable to the relevant Interest Period; provided, however, that each Lender
may fund each of its Eurodollar Loans in any manner it sees fit, and the
foregoing assumption shall be utilized only for the calculation of amounts
payable under this Section 3.4. In the event of a prepayment, the calculation of
the cost owed to the Lenders under this Section 3.4 would be calculated using
the following formula:
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Cost = PA x (OCF-RR) x D
360
where PA is the principal amount prepaid, OCF is the original Eurodollar Rate
applicable to such prepayment, RR is the rate of interest that would accrue on
United States Treasury obligations selected by the Agent having a maturity
similar to the time remaining until expiration of the applicable Eurodollar
Interest Period that is subject to the prepayment, and D is the number of days
remaining in the applicable Eurodollar Interest Period that is subject to the
prepayment. In the event OCF minus RR results in a negative number, the cost to
be paid by Borrower would be zero.
3.5. Lender Statements; Survival of Indemnity. To the extent reasonably
possible, each Lender shall designate an alternate Lending Installation with
respect to its Eurodollar Loans to reduce any liability of Borrower to such
Lender under Sections 3.1 and 3.2 or to avoid the unavailability of a Type of
Advance under Section 3.3, so long as such designation is not, at the discretion
of such Lender, disadvantageous to such Lender. Each Lender shall deliver a
written statement of such Lender to Borrower (with a copy to the Agent) as to
the amount due, if any, under Section 3.1, 3.2 and/or 3.4. Such written
statement shall set forth in reasonable detail the calculations upon which such
Lender determined such amount and shall be final, conclusive and binding on
Borrower in the absence of manifest error. Determination of amounts payable
under such Sections in connection with a Eurodollar Loan shall be calculated as
though each Lender funded its Eurodollar Loan through the purchase of a deposit
of the type and maturity corresponding to the deposit used as a reference in
determining the Eurodollar Rate applicable to such Loan, whether in fact that is
the case or not. Unless otherwise provided herein, the amount specified in the
written statement of any Lender shall be payable on demand after receipt by
Borrower of such written statement. The Obligations of Borrower under Sections
3.1, 3.2 and 3.4 shall survive payment of all other Obligations and termination
of this Agreement.
SECTION 4
Representations and Warranties
In order to induce the Lenders to enter into this Agreement and to make
Loans pursuant to their Revolving Loan Commitments and the Cash Management Line,
and to induce NBD to issue Letters of Credit, Borrower represents and warrants
to NBD, the Agent and the Lenders, which representations and warranties will
survive the delivery of the Notes, the establishment of the Facilities, the
making of Loans and the issuance of Letters of Credit that:
4.1. Due Organization. Borrower and each Subsidiary is a corporation
duly organized, validly existing and, if applicable, in good standing under and
by virtue of the laws of its state of incorporation.
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4.2. Due Qualification. Borrower and each Subsidiary is qualified, in
good standing and authorized to do business as a foreign corporation in such
other states wherein the failure to so qualify could have a Material Adverse
Effect.
4.3. Corporate Power. Borrower possesses the requisite power to enter
into the Loan Documents, to borrow under the Loan Documents, to execute and
deliver the Loan Documents and to perform its obligations thereunder.
4.4. Corporate Authority. Borrower has taken the necessary corporate
action to authorize the execution and delivery of the Loan Documents and the
borrowings under the Loan Documents, and none of the provisions of the Loan
Documents violates, breaches, contravenes, conflicts with, or causes a default
under any provision of the articles of incorporation or the by-laws or
regulations of Borrower or any provision of any existing note, bond, mortgage,
debenture, indenture, trust, license, lease, instrument, decree, order,
judgment, or agreement to which Borrower is a party or by which it or its assets
may be bound or affected, the breach or default of which, singly or in the
aggregate, could have a Material Adverse Effect.
4.5. Financial Statements. The Financial Statements were prepared in
accordance with GAAP consistent with prior years, unless specifically otherwise
noted thereon, and present fairly the Consolidated financial condition of
Borrower and its Consolidated Subsidiaries, as of the dates thereof and the
results of their respective Consolidated operations for the periods then ended
(except, in the case of interim Financial Statements, for normal year-end
adjustments and for the absence of footnotes).
4.6. No Material Adverse Change. The Financial Statements disclose all
known or contingent material liabilities, whether direct or indirect, fixed or
contingent, liquidated or unliquidated, asserted or unasserted, matured or
unmatured, of Borrower and their respective Subsidiaries as of the dates thereof
in accordance with GAAP (except, in the case of interim Financial Statements,
for normal year-end adjustments and for the absence of footnotes), and since
such dates, there has been no material adverse change in the business,
operations, financial condition, Properties or prospects of Borrower and its
Subsidiaries, taken as a whole.
4.7. Subsidiaries. Except as set forth on Schedule 4.7 hereto, Borrower
has no Subsidiaries. There are no restrictions on Borrower or any of its
Subsidiaries which prohibit or otherwise restrict the transfer of cash or other
assets from any Subsidiary of Borrower to Borrower, other than prohibitions or
restrictions existing under or by reason of this Agreement and applicable law.
4.8. Binding Obligations. Each of the Loan Documents, upon execution
and delivery, will constitute a legal, valid and binding obligation of Borrower
enforceable against Borrower in accordance with its terms, except as the same
may be limited by reorganization, bankruptcy, insolvency, moratorium or other
laws affecting generally the enforcement of creditors' rights.
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4.9. Marketable Title. Borrower and each Subsidiary has good and
marketable title to all of its real property and good title to all of its other
properties and assets shown on the Financial Statements, except such properties
or assets as have been disposed of since the date of such Financial Statements
in the ordinary course of business. Except for Permitted Liens, none of the
assets of Borrower and its Subsidiaries are subject to any mortgage, pledge,
security interest, title retention lien or other encumbrance. Except to evidence
Permitted Liens, no financing statement or similar instrument which names
Borrower or its Subsidiaries as debtor or relates to any of its property, has
been filed in any state or other jurisdiction and remains unreleased, and
Borrower has not signed any financing statement or similar instrument or
security agreement authorizing the secured party thereunder to file any such
financing statement or similar instrument.
4.10. Indebtedness. Except as shown on the Financial Statements, except
trade debt incurred in the ordinary course of business since the date of the
Financial Statements, and except as shown on Schedule 4.10 hereto, neither
Borrower nor any of its Subsidiaries has any Indebtedness.
4.11. Default. Neither Borrower nor any of its Subsidiaries has
committed or suffered to exist any default or any circumstance which with
notice, lapse of time, or both, would constitute a default under the terms and
conditions of any trust, debenture, indenture, note, bond, instrument, mortgage,
lease, agreement, order, decree, or judgment to which Borrower or such
Subsidiary is a party or by which it or its assets may be bound or affected,
which default(s), singly or in the aggregate, could have a Material Adverse
Effect.
4.12. Tax Returns. All tax returns or reports of Borrower and its
Subsidiaries required by law have been filed, and all taxes, assessments,
contributions, fees and other governmental charges (other than those presently
payable without penalty or interest and those currently being contested in good
faith and against which adequate reserves have been established) upon Borrower,
its Subsidiaries or their assets, Properties or income, which are payable, have
been paid. The United States income tax returns of Borrower and its Subsidiaries
have been audited by the Internal Revenue Service through the fiscal year ended
November 30, 1993.
4.13. Litigation. Except as set forth on Schedule 4.13 hereto, no
litigation or proceeding of any Governmental Authority or other Person is
presently pending or, to Borrower's knowledge, threatened, nor has any claim
been asserted, against Borrower or any of its Subsidiaries which, in the
reasonable judgment of Borrower, singly or in the aggregate, could have a
Material Adverse Effect.
4.14. ERISA. Borrower, each Subsidiary and each ERISA Affiliate of
either is in compliance in all material respects with all applicable provisions
of ERISA, and none of such Persons has incurred any material liability to the
PBGC. No Reportable Event, has occurred under, nor has there occurred any
complete or partial withdrawal from, nor has there occurred any other event
which would constitute grounds for termination of or the appointment of a
trustee to administer any Plan (including any Multi-employer Plan) maintained
for employees of Borrower, any Subsidiary or any ERISA Affiliate of either.
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4.15. Full Disclosure. No information, exhibit, memorandum, or report
(excluding estimated future operating results) furnished by Borrower to the
Lenders in connection with the negotiation of the Facilities contains any
material misstatement of fact, or omits to state any fact necessary to make the
statements contained therein not materially misleading, and all estimated future
operating results, if furnished, were prepared on the basis of assumptions,
data, information, tests or other conditions believed to be valid or accurate or
to exist at the time such estimates were prepared and furnished. To the
knowledge of Borrower and its Subsidiaries, there presently exists no fact or
circumstance relative to Borrower or any Subsidiary, whether or not disclosed,
which, singly or in the aggregate, is presently anticipated to have a Material
Adverse Effect.
4.16. Contingent Obligations. Except for the endorsements of Borrower
and its Subsidiaries of negotiable instruments for deposit or collection in the
ordinary course of business and except as set forth on Schedule 4.16 hereto,
neither Borrower nor any of its Subsidiaries is a party to any Contingent
Obligations.
4.17. Licenses. Borrower and each Subsidiary possesses such franchises,
licenses, permits, patents, copyrights, trademarks, and consents of appropriate
Governmental Authorities as are necessary to own its Properties and to carry on
its business, except where the failure to possess the same, singly or in the
aggregate, could not have a Material Adverse Effect.
4.18. Compliance with Law. Borrower and each Subsidiary is in
compliance in all material respects with all applicable requirements of law and
of all Governmental Authorities, noncompliance with which, singly or in the
aggregate, could have a Material Adverse Effect.
4.19. Force Majeure. Neither the business nor the Properties of
Borrower or any Subsidiary are presently affected by any fire, explosion,
accident, strike, lockout or other labor dispute, drought, storm, hail,
earthquake, embargo, act of God or of the public enemy or other casualty that,
singly or in the aggregate, could have a Material Adverse Effect.
4.20. Margin Stock. (a) Neither Borrower nor any of its Subsidiaries is
engaged in the business of extending credit for the purpose of purchasing or
carrying margin stock (within the meaning of Regulations G, T, U or X of the
Board of Governors of the Federal Reserve System), and (b) no part of the
proceeds of the Facilities will be used for the purpose of purchasing or
carrying margin stock, as above defined.
4.21. Approvals. No authorization, consent, approval or any form of
exemption of any Governmental Authority not obtained is required in connection
with the issuance, execution or performance of any Loan Documents by Borrower.
4.22. Insolvency; Financial Condition. Neither Borrower nor any of its
Subsidiaries is "insolvent" within the meaning of that term as defined in the
Federal Bankruptcy Code, and Borrower and each Subsidiary is able to pay its
debts as they mature. Neither Borrower nor any of its Subsidiaries is entering
into the arrangements contemplated hereby with actual intent to hinder, delay or
defraud either present or future creditors. As of the initial funding of the
Facilities, on a pro forma
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basis: (a) the present fair salable value of the respective assets of each of
Borrower and its Subsidiaries will exceed its respective liabilities, (b)
neither Borrower nor any of its Subsidiaries has incurred or intends to, or
believes that it will, incur liabilities beyond its ability to pay such
liabilities as they mature, and (c) each of Borrower and its Subsidiaries will
have sufficient capital with which to conduct its present and proposed business
and the Property of Borrower and its Subsidiaries does not constitute
unreasonably small capital with which to conduct its present or proposed
business.
4.23. Regulation. Neither Borrower nor any of its Subsidiaries is an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended, or a "holding company" or an "affiliate of a holding company" or a
"subsidiary of a holding company" within the meanings of the Public Utility
Holding Company Act of 1935, as amended.
4.24. Environmental Matters. In the ordinary course of its business,
Borrower conducts an ongoing review of the effect of Environmental Laws on the
business, operations and Properties of Borrower and its Subsidiaries, in the
course of which it identifies and evaluates associated liabilities and costs
(including any capital or operating expenditures required for clean-up or
closure of Properties presently owned or operated, any capital or operating
expenditures required to achieve or maintain compliance with environmental
protection standards imposed by Environmental Laws or as a condition of any
license, permit or contract, any related constraints on operating activities,
including any periodic or permanent shutdown of any facility or reduction in the
level of or change in the nature of operations conducted thereat and any actual
or potential liabilities to third parties, including employees, and any related
costs and expenses). On the basis of this review, Borrower has reasonably
concluded that, except as disclosed in writing by Borrower to the Lenders and
the Agent as of the Closing Date, to the best of its knowledge after due inquiry
(provided that clause (e) below is not subject to any such knowledge
qualification except as specifically provided in clause (e)):
(a) All facilities and Property (including underlying
groundwater) owned, leased or operated by Borrower or any Subsidiary
have been, and continue to be, owned, leased or operated by Borrower or
any Subsidiary in compliance with all applicable Environmental Laws,
noncompliance with which could not, singly or, in the aggregate, have a
Material Adverse Effect;
(b) There have been no past unresolved, and there are no
pending or threatened,
(i) claims, complaints, notices or inquiries, to,
or requests for information received by, Borrower or any
Subsidiary with respect to any alleged violation of any
Environmental Law, that, singly or in the aggregate, have or
may reasonably be expected to have a Material Adverse Effect,
or
(ii) claims, complaints, notices or inquiries to,
or requests for information received by, Borrower or any
Subsidiary regarding potential liability under any
Environmental Law or under any common law theories relating to
operations or the condition of any facilities or Property by
Borrower or any
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Subsidiary that, singly or in the aggregate, have, or may
reasonably be expected to have a Material Adverse Effect.
(c) There have been no releases of Hazardous Materials, at, on
or under any Property now or previously owned or leased by Borrower or
any Subsidiary that, singly or in the aggregate, have, or may
reasonably be expected to have, a Material Adverse Effect;
(d) Borrower and each Subsidiary have been issued and are in
compliance with all permits, certificates, approvals, licenses and
other authorizations relating to environmental matters and necessary
for their businesses, the noncompliance with which could not, singly or
in the aggregate, have a Material Adverse Effect;
(e) No Property now or previously owned, leased or operated by
Borrower or any Subsidiary is listed or, to the best knowledge of
Borrower, proposed for listing on the National Priorities List pursuant
to CERCLA (or any similar Environmental Law) or on the CERCLIS or on
any other federal or state list of sites requiring investigation or
clean-up, to the extent that any such listing, singly or in the
aggregate, may have, or may reasonably be expected to have, a Material
Adverse Effect;
(f) There are no underground storage tanks, active or
abandoned, including petroleum storage tanks, on or under any Property
now or previously owned, leased or operated by Borrower or any
Subsidiary that, singly or in the aggregate, have, or may reasonably be
expected to have, a Material Adverse Effect;
(g) None of Borrower or any Subsidiary has directly
transported or directly arranged for the transportation of any
Hazardous Material to any location (i) which is listed or proposed for
listing on the National Priorities List pursuant to CERCLA (or any
similar Environmental Law) or on the CERCLIS or on any federal or state
list, to the extent that any such listing, singly or in the aggregate,
may have, or may reasonably be expected to have, a Material Adverse
Effect, or (ii) which is the subject of federal, state or local
enforcement actions or other investigations which may lead to claims
against Borrower or such Subsidiary for any remedial work, damage to
natural resources or personal injury, including claims under any
Environmental Law, to the extent that such claims, singly or in the
aggregate, may have, or may reasonably be expected to have, a Material
Adverse Effect;
(h) There are no polychlorinated biphenyl, radioactive
materials or friable asbestos present at any Property now or previously
owned or leased by Borrower or any Subsidiary that, singly or in the
aggregate, have, or may reasonably be expected to have, a Material
Adverse Effect; and
(i) No condition exists at, on or under any Property now or
previously owned or leased by Borrower or any Subsidiary which, with
the passage of time, or the giving of notice or both, would give rise
to material liability under any Environmental Law that, singly or in
the aggregate have, or may reasonably be expected to have, a Material
Adverse Effect.
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4.25. General. All statements contained in any certificate or Financial
Statement delivered by or on behalf of Borrower or any Subsidiary to the Lenders
under or in connection with any Loan Document shall constitute representations
and warranties made by Borrower hereunder.
SECTION 5
Covenants
5.1. Affirmative Covenants. Until the Obligations are paid in full, and
so long as any Commitment is outstanding, unless the Required Lenders shall
otherwise consent in writing, Borrower will:
5.1.1. Financial Reporting. Furnish the Lenders:
(a) As soon as practicable, but in any event
within ninety (90) days after the end of each fiscal year of
Borrower, Consolidated and consolidating Financial Statements
of Borrower and its Consolidated Subsidiaries, such
Consolidated Financial Statements to have been certified after
audit by certified public accountants acceptable to the
Required Lenders, including a balance sheet and statements of
income, retained earnings and cash flows, together with the
accompanying notes to such Financial Statements, all prepared
in accordance with GAAP on a Consolidated and consolidating
basis consistent with prior periods, unless specifically
otherwise noted thereon, and accompanied by (i) the
unqualified opinion of such accountants that such Consolidated
Financial Statements present fairly the Consolidated financial
position of Borrower and its Consolidated Subsidiaries as of
the date thereof and the results of their Consolidated
operations for the fiscal year then ended, (ii) the management
letter of such accountants describing any deficiencies in the
internal controls or other matters of significance discovered
during the course of the audit, (iii) a certificate of such
accountants to the effect that, in the course of their
examination, 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, and (iv) a Compliance Certificate
duly completed and signed by the chief executive officer or
chief financial officer of Borrower;
(b) As soon as practicable, but in any event
within forty-five (45) days after the end of each of
Borrower's first three (3) fiscal quarters, similar unaudited
Consolidated Financial Statements of Borrower and its
Consolidated Subsidiaries as of the end of such quarter and
the results of their operations for the portion of the fiscal
year then elapsed, all prepared in accordance with GAAP on a
Consolidated basis consistent with prior periods (except for
normal year-end adjustments and for the absence of footnotes),
unless specifically otherwise noted thereon, and
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accompanied by a Compliance Certificate duly completed and
signed by the chief executive officer or chief financial
officer of Borrower;
(c) As soon as practicable, but in any event
within five Business Days after Borrower becomes aware
thereof, a written statement signed by the chief executive or
chief financial officer of Borrower as to the occurrence of
any Default or Unmatured Default stating the specific nature
thereof, Borrower's intended action to cure the same and the
time period in which such cure is to occur;
(d) As soon as practicable, but in any event
within ten (10) Business Days after Borrower becomes aware
thereof, a written statement describing any litigation
instituted by or against Borrower which, in the reasonable
judgment of Borrower, singly or in the aggregate, could have a
Material Adverse Effect;
(e) As soon as practicable, but in any event
within ten (10) Business Days after Borrower becomes aware
thereof, a written statement signed by the chief executive
officer or the chief financial officer of Borrower describing
any Reportable Event which has occurred with respect to any
Plan and the action which Borrower proposes to take with
respect thereto; and within two hundred seventy (270) days
after the close of each fiscal year, a statement of the
Unfunded Liabilities of each Single Employer Plan, certified
as correct by an actuary enrolled under ERISA;
(f) As soon as practicable, but in any event
within ten (10) Business Days after the filing with the
Securities and Exchange Commission, or any successor thereto,
or any state securities Governmental Authority, copies of all
registration statements and all periodic and special reports
required or permitted to be filed under federal or state
securities laws and regulations;
(g) As soon as practicable, but in any event
within ten (10) Business Days after receipt by Borrower, a
copy of any notice, complaint, Lien, inquiry or claim (i) to
the effect that Borrower or any of its Subsidiaries is or may
be liable to any Person as a result of the release by
Borrower, any of its Subsidiaries, or any other Person of any
Hazardous Material into the environment, or (ii) alleging any
violation of any Environmental Law by Borrower or any of its
Subsidiaries, which, in either case, singly or in the
aggregate, could reasonably be expected to have a Material
Adverse Effect; and
(h) Such other information as the Agent or any of
the Lenders may from time to time reasonably request,
including, without limitation, such information or
certifications to evidence compliance with Section 5.1.14.
5.1.2. Good Standing. Maintain, and cause each Subsidiary to
maintain, its corporate existence, good standing (if applicable), and
right to do business in its jurisdiction of incorporation and all
requisite authority to conduct its business in each jurisdiction in
which
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such business is conducted, except where the failure to do so, singly
or in the aggregate, could have a Material Adverse Effect and except as
permitted by Section 5.2.6.
5.1.3. Taxes, Etc. Pay and discharge, and cause each
Subsidiary to pay and discharge, all taxes, assessments, judgments,
orders, and governmental charges or levies imposed upon it or on its
income or profits or upon its Property prior to the date on which
penalties attach thereto and all lawful claims which, if unpaid, may
become a Lien or charge upon the Property of Borrower or any
Subsidiary, provided that neither Borrower nor any of its Subsidiaries
shall be required to pay any tax, assessment, charge, judgment, order,
levy or claim, if such payment is being contested diligently, in good
faith, and by appropriate proceedings which will prevent foreclosure or
levy upon its Property and adequate reserves against such liability
have been established.
5.1.4. Maintain Properties. Maintain, and cause each
Subsidiary to maintain, all Properties and assets used by, or useful
to, Borrower or such Subsidiary in the ordinary course of its business
in good working order and condition and suitable for the purpose for
which it is intended, and from time to time, make any necessary repairs
and replacements.
5.1.5. Insurance. Maintain, and cause each Subsidiary to
maintain, with financially sound and reputable insurance companies
rated not less than "A-" by A.M. Best Company, insurance on all their
Property in such amounts and covering such risks as is consistent with
sound business practice, and Borrower shall furnish any Lender upon
request full information as to the insurance carried.
5.1.6. Books and Records. Keep, and cause each Subsidiary to
keep, proper books of account in which full, true and correct entries
will be made of all dealings and transactions of, and in relation to,
the business and affairs of Borrower and its Subsidiaries, and, at all
reasonable times, and as often as the Lenders may request, permit
authorized representatives of the Lenders to (a) have access to the
premises and Properties of Borrower and its Subsidiaries and to the
records relating to the operations of Borrower and its Subsidiaries,
(b) make copies of or excerpts from such records, (c) discuss the
affairs, finances and accounts of Borrower and its Subsidiaries with
and be advised as to the same by the chief executive and financial
officers of Borrower and each Subsidiary, and (d) audit and inspect
such books, records, accounts, memoranda and correspondence at all
reasonable times, to make such abstracts and copies thereof as the
Lenders may deem necessary, and to furnish copies of all such
information to any proposed Purchaser or Participant, provided,
however, that Borrower's Obligation to reimburse the Agent and the
Lenders for costs and expenses associated with performance of periodic
audits of the records of Borrower and its Subsidiaries by the Agent's
auditors shall be limited to one audit visit per year, unless unusual
and adverse circumstances require, in the reasonable opinion of the
Agent, more frequent visits.
5.1.7. Reports. File, and cause each Subsidiary to file, as
appropriate, on a timely basis, annual reports, operating records and
any other reports or filings required to be made
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with any Governmental Authority, except where the failure to make any
such filing, singly or in the aggregate, could not have a Material
Adverse Effect.
5.1.8. Licenses. Maintain, and cause each Subsidiary to
maintain, in full force and effect all operating permits, licenses,
franchises, and rights used by it in the ordinary course of business,
except where the failure to maintain the same, singly or in the
aggregate, could not have a Material Adverse Effect.
5.1.9. Conduct of Business. Carry on and conduct, and cause
each Subsidiary to carry on and conduct, its business in substantially
the same manner and in substantially the same fields of enterprise as
currently conducted.
5.1.10. Compliance with Laws. Comply, and cause each
Subsidiary to comply, in all material respects with all laws, rules,
regulations, orders, writs, judgments, injunctions, decrees or awards
to which Borrower or such Subsidiary may be subject, including, without
limitation, ERISA and all Environmental Laws, except where such
noncompliance, singly or in the aggregate, could not have a Material
Adverse Effect.
5.1.11. Trade Accounts. Pay all trade accounts in accordance
with past custom and industry practice.
5.1.12. Use of Proceeds. Use the proceeds of the Facilities
solely for the purposes herein described.
5.1.13. Loan Payments. Duly and punctually pay or cause to be
paid principal and interest on the Facilities in lawful money of the
United States at the time and places and in the manner specified herein
according to the stated terms hereof.
5.1.14. Environmental Covenant. (a) Use, operate and maintain
all of its Properties in compliance with all applicable Environmental
Laws, keep or acquire all necessary permits, approvals, certificates,
licenses and other authorizations relating to environmental matters in
effect and remain in compliance therewith, and handle all Hazardous
Materials in compliance with all applicable Environmental Laws, except
where the failure to do any of the foregoing, singly or in the
aggregate, could not reasonably be expected to have a Material Adverse
Effect, (b) use its reasonable best efforts to have dismissed with
prejudice, within ninety (90) days after filing thereof, any actions or
proceedings against Borrower or any of its Subsidiaries relating to
compliance with Environmental Laws which, in the reasonable opinion of
the Agent, singly or in the aggregate, could have a Material Adverse
Effect, and (c) diligently pursue cure of any material underlying
environmental problem which forms the basis of any claim, complaint,
notice, Lien, inquiry, proceeding or action referred to in Section
5.1.1(g). If Borrower or any Subsidiary is notified of any event
described in Section 5.1.1(g), Borrower shall, upon the request of
Required Lenders, establish appropriate reserves against such potential
liabilities and engage a firm or firms of engineers or environmental
consultants appropriately qualified to determine
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as quickly as practical the extent of contamination and the potential
financial liability of Borrower or any of its Subsidiaries with respect
thereto, and the Lenders shall be provided with a copy of any report
prepared by such firm or by any Governmental Authority as to such
matters as soon as any such report becomes available to Borrower or any
Subsidiary. The selection of any engineers or environmental consultants
engaged pursuant to the requirements of this Section shall be subject
to the approval of the Required Lenders, which approval shall not be
unreasonably withheld or delayed.
5.1.15. Change Name and Place of Business. Provide the Agent
not less than sixty (60) days written notice prior to changing its
corporate name or principal place of business.
5.1.16. Adjusted Consolidated Net Worth. Maintain at all times
Adjusted Consolidated Net Worth of not less One Hundred Ten Million
Dollars ($110,000,000) as of August 31, 1997, and thereafter increasing
effective as of the last day of each fiscal year by an amount equal to
Fifty Percent (50%) of Net Income (without reduction for any net
losses) for such fiscal year.
5.1.17. Leverage Ratio. Maintain its Leverage Ratio of not
greater than (a) 3.25 to 1.0 at all times through and including
November 29, 1998, (b) 3.0 to 1.0 as of November 30, 1998 and at all
times through and including November 29, 1999, and (c) 2.5 to 1.0 as of
November 30, 1999 and at all times thereafter.
5.1.18. Fixed Charge Coverage Ratio. Maintain a Fixed Charge
Coverage Ratio of not less than (a) 1.20 to 1.0 at all times through
and including November 29, 1999, and (b) 1.25 to 1.0 as of November 30,
1999 and at all times thereafter.
5.2. Negative Covenants. Until the Obligations are paid in full, and so
long as any Commitment is outstanding, unless the Required Lenders shall
otherwise consent in writing, Borrower will not, and will not permit any
Subsidiary to:
5.2.1. Dispose of Property. Sell, transfer, lease or otherwise
dispose of its assets (including, without limitation, stock in any
Subsidiary), Properties, or business, or discount, with or without
recourse, any of its accounts or notes receivable, except (a) sales
from Inventory in the ordinary course of business, (b) dispositions of
fixed assets no longer used or useful in the operation of its business,
provided, (i) any such disposition is for cash and for fair value, (ii)
at the time of such disposition there exists no Default or Unmatured
Default and no Default or Unmatured Default would be occasioned
thereby, and (iii) the aggregate net after-tax sale proceeds from such
dispositions do not exceed Fifteen Million Dollars ($15,000,000) during
any fiscal year, (c) transfers to or from Wholly-Owned Subsidiaries of
Borrower, (d) the issuance of stock constituting directors' qualifying
shares in Foreign Subsidiaries, (e) the sale or factoring of accounts
receivable, and (f) such other dispositions of Property, which when
coupled with dispositions of fixed assets pursuant to clause (b) above,
do not exceed, in the aggregate, Twenty-Two Million Five Hundred
Thousand Dollars ($22,500,000) during any fiscal year.
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5.2.2. Liens and Encumbrances. Create or suffer to exist any
Lien in, of or on any of its Property, except (a) Liens for taxes or
assessments which are not yet due, Liens for taxes or assessments or
Liens of judgments which are being contested, appealed or reviewed in
good faith by appropriate proceedings which prevent foreclosure of any
such Lien or levy of execution thereunder and against which Liens, if
any, adequate insurance or reserves have been provided, (b) pledges or
deposits to secure payment of workers' compensation obligations and
deposits or indemnities to secure public or statutory obligations or
for similar purposes, (c) any Liens and other security interests in
favor of the Lenders and/or the Agent under the Loan Documents, (d)
Liens imposed by law, such as carrier's, warehousemen's and mechanics'
Liens and other similar Liens arising in the ordinary course of
business which secure payment of obligations not more than sixty (60)
days past due, (e) utility easements, building restrictions, zoning
ordinances and such other encumbrances or charges against real property
as are of a nature generally existing with respect to Properties of a
similar character and which do not in any material way affect the
marketability of the same or interfere with the use thereof in the
business of a Person, (f) lessors' interests under Capitalized Leases,
(g) Liens created in the ordinary course of Borrower's or a
Subsidiary's business which constitute purchase money security
interests encumbering only the Property acquired by Borrower or its
Subsidiary and the Proceeds thereof, and securing only the purchase
price thereof, and (h) those further encumbrances (if any) shown on
Schedule 5.2.2 hereto (collectively, "Permitted Liens").
5.2.3. Indebtedness. Create, incur, assume or suffer to exist
any Indebtedness, except (a) that in existence as of the date hereof
and disclosed in the Financial Statements, (b) trade accounts and
normal business accruals payable in the ordinary course of business,
(c) Indebtedness to the Lenders pursuant to the Loan Documents, (d)
Indebtedness arising under Rate Hedging Agreements, (e) Indebtedness to
Borrower or any Wholly-Owned Subsidiary of Borrower, (f) other
Indebtedness of Borrower and its Subsidiaries not exceeding in the
aggregate (i) One Hundred Thirty Million Dollars ($130,000,000)
outstanding at any time through November 29, 1999, and (ii) One Hundred
Fifty Million Dollars ($150,000,000) outstanding at any time as of
November 30, 1999 and thereafter, provided that, for purposes of
funding an Acquisition, the amounts specified in (i) and (ii) hereof
shall be increased, up to an additional aggregate amount of One Hundred
Million Dollars ($100,000,000), by an amount equal to the amount of
equity capital raised by Borrower in the preceding 12-month period from
the date of determination, and (g) as set forth on Schedule 5.2.3
hereto.
5.2.4. Investments and Acquisitions. Make or suffer to exist
any Investment (including, without limitation, Investments in
Subsidiaries), or commitments therefor, or create any Subsidiary or
remain a partner in any partnership or joint venture, or make any
Acquisition of any Person, except:
(a) short-term obligations of, or fully guaranteed by, the
United States of America,
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(b) commercial paper rated in one of the two highest rating
categories of either Standard & Poor's Ratings Services, a division of
McGraw Hill Companies, Inc. or Xxxxx'x Investors Service, Inc.,
(c) demand deposit accounts maintained in the ordinary course
of business,
(d) certificates of deposit issued by, and time deposits with,
commercial banks having its outstanding indebtedness then rated "A-" or
higher by Standard & Poor's Ratings Services, a division of McGraw Hill
Companies, Inc. or "A3" or higher by Xxxxx'x Investors Service, Inc.,
(e) existing Investments in Subsidiaries and other Investments
in existence on the date hereof,
(f) as permitted by Section 5.2.7,
(g) the currently planned single Acquisition by a Subsidiary
of Borrower not exceeding a total purchase price (including the
assumption of Indebtedness) of Fifteen Million Dollars ($15,000,000),
provided no Default or Unmatured Default has occurred and is continuing
at the time of such Acquisition or will result or occur after
consummation of such Acquisition, and
(h) Other Acquisitions, provided (i) no Default or Unmatured
Default has occurred and is continuing at the time of an Acquisition or
will result or occur after consummation of such Acquisition, (ii)
Borrower provides satisfactory written evidence to the Agent and the
Lenders that it is in compliance with the covenants contained in
Section 5 both immediately before and after giving effect to
consummation of the subject Acquisition, and further provides a
satisfactory pro forma Compliance Certificate showing compliance with
all financial covenants on a consolidated basis for Borrower, its
Subsidiaries and the target business or entity to be acquired for the
preceding 12-month period after giving effect to the proposed terms of
such Acquisition, (iii) the entity or business acquired is in the
substantially same line of business as Borrower or its Subsidiaries or
reasonably related thereto, (iv) in the event of a merger to which
Borrower is a party, Borrower is the surviving entity, (v) subject to
(vi) below, the aggregate cash portion of the total purchase price
(including the assumption of Indebtedness) for all Acquisitions
(including after giving effect to the subject Acquisition) consummated
in the preceding 12-month period from the date of determination is not
greater than Fifty Million Dollars ($50,000,000), (vi) to the extent
the total purchase price (including the assumption of Indebtedness),
whenever due, of an Acquisition would exceed Fifty Million Dollars
($50,000,000) in the aggregate for all Acquisitions (including after
giving effect to the subject Acquisition) consummated in the preceding
12-month period from the date of determination, Borrower must provide
satisfactory evidence to the Agent and the Lenders that not less than
Fifty Percent (50%) of such excess amount will be funded by Borrower's
issuance of stock or from the proceeds of an equity offering, and (vii)
the total aggregate purchase price (including the assumption of
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Indebtedness) for all Acquisitions (including the subject Acquisition)
consummated after the date hereof does not exceed Two Hundred Fifty
Million Dollars ($250,000,000).
5.2.5. Contingent Obligations. Assume, guarantee, suffer to
exist or otherwise become liable for any Contingent Obligations, except
(a) for endorsements by Borrower and its Subsidiaries of negotiable
instruments for deposit or collection in the ordinary course of
business, and (b) as permitted by Section 5.2.3 and as set forth on
Schedule 5.2.5 hereto.
5.2.6. Mergers and Consolidations. Merge or consolidate with
any other Person, except (a) a Subsidiary may merge into Borrower or a
Wholly-Owned Subsidiary, and (b) as permitted by Section 5.2.4.
5.2.7. New Subsidiaries. Create any new Subsidiary, except
Borrower may create (but not acquire except pursuant to Section 5.2.4)
Subsidiaries in substantially the same lines of business as currently
conducted by Borrower or any of its Subsidiaries.
5.2.8. Accounting Policies. Change its fiscal year or any of
its significant accounting policies, except to the extent necessary to
comply with GAAP.
5.2.9. Change of Business. Make any material change in the
nature of its business as carried on at the date of this Agreement.
5.2.10. Benefit Plans. Permit any Reportable Event under, or
any partial or complete withdrawal from, or any other condition to
exist in connection with any Plan which might constitute grounds for
the PBGC to institute proceedings to have the Plan terminated or a
trustee appointed to administer the Plan; or engage in, or permit to
exist or occur any other condition, event or transaction with respect
to any Plan which, singly or in the aggregate, could have a Material
Adverse Effect.
5.2.11. Affiliates. Enter into any transaction (including,
without limitation, the purchase or sale of any Property or service)
with, or make any payment or transfer to, any Affiliate except in the
ordinary course of business and pursuant to the reasonable requirements
of Borrower's or such Subsidiary's business and upon fair and
reasonable terms no less favorable to Borrower or such Subsidiary than
Borrower or such Subsidiary would obtain in a comparable arms-length
transaction.
5.2.12. Sale and Leaseback. Enter into any Sale and Leaseback
Transaction.
5.2.13. Operating Leases; Rentals. Enter into or remain liable
upon any Operating Lease, except for Operating Leases with annual
Rentals aggregating to not more than Ten Million Dollars ($10,000,000).
5.2.14. Dividends, Etc. (a) Declare or pay any dividend in
cash or other Property (other than a dividend payable solely in the
form of common stock of Borrower or a dividend
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payable by any Subsidiary to Borrower), if, at the time of such
declaration or payment, (i) there shall have occurred and then be
continuing any Default hereunder, or (ii) the payment of such dividend
(assuming, in the case of a declaration, that the payment of such
dividend were made immediately upon such declaration) would cause a
Default hereunder; nor (b) redeem, repurchase, or otherwise acquire or
retire any of the capital stock of Borrower at any time outstanding.
5.2.15. Restrictive Agreements. Enter into any agreement
(excluding any restrictions existing under the Loan Documents)
prohibiting (a) the (i) creation or assumption of any Lien upon its
Property, except as provided in the documents governing the Senior
Notes, or (ii) ability of Borrower to amend or otherwise modify this
Agreement or any other Loan Document, except the Lenders acknowledge
that the documents governing the Senior Notes restrict Borrower's
ability to incur Indebtedness beyond certain limits as provided
therein; or (b) the ability of any Subsidiary to make any payments,
directly or indirectly, to Borrower by way of dividends, advances,
repayments of loans or advances, reimbursements of management and other
intercompany charges, expenses and accruals or other returns on
investments, or any other agreement or arrangement which restricts the
ability of any such Subsidiary to make any payment, directly or
indirectly, to Borrower, except as provided in subsection (c) of the
definition of "Permitted Debt" as defined in the documents governing
the Senior Notes.
SECTION 6
Conditions Precedent to Loans
6.1. Conditions to Initial Advance. The obligation of the
Lenders to make the initial Advance under the Facilities (including the
issuance of a Letter of Credit) is subject to each of the following
conditions precedent:
6.1.1. Secretary's Certificates. Borrower shall have furnished
to the Agent (with sufficient copies for the Lenders), and the Agent
shall have determined satisfactory in all respects, certificates, each
dated as of the date of the initial Advance hereunder, signed by the
Secretary or an Assistant Secretary of Borrower, respectively,
certifying, in each case and as the case may be, as true, accurate and
complete, and attaching (a) copies of Borrower's articles or
certificate of incorporation (which shall bear the recent certification
by the appropriate Secretary of State), (b) copies of Borrower's code
of by-laws or regulations, as amended, (c) original certificates of
existence and/or good standing issued as of a recent date by the
Secretaries of State of the respective states of incorporation, of
Borrower, (d) original certificates issued by the appropriate
Secretaries of State as of a recent date evidencing the qualification
by Borrower to do business as a foreign corporation in each
jurisdiction in which Borrower conducts business, (e) copies of
resolutions adopted, respectively, by the Boards of Directors of
Borrower appropriately authorizing the transactions contemplated hereby
and specifying the names and capacities of those Persons authorized to
execute the Loan
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Documents, as the case may be, and (f) the incumbency and genuine
signatures of each officer of Borrower, authorized to sign the Loan
Documents. (The Lenders shall be entitled to rely upon such
certificates until informed in writing of any change by Borrower.)
6.1.2. Insurance. Borrower shall have furnished to the Agent
evidence of the insurance required by this Agreement in a form
reasonably satisfactory to the Agent.
6.1.3. Loan Documents. Each of the Loan Documents shall have
been executed and delivered by Borrower to the Agent.
6.1.4. Opinion of Counsel. The Agent shall have received a
favorable written opinion of counsel to Borrower, dated of even date
herewith, in form and substance acceptable to the Lenders.
6.1.5. UCC Searches. The Agent shall have received
satisfactory return after search in accordance with the Uniform
Commercial Code or other applicable law in such governmental offices as
the Agent shall have deemed appropriate.
6.1.6. Litigation. No injunction or temporary restraining
order which, in the judgment of the Agent or the Required Lenders,
would prohibit the making of the Loans; and no litigation has been
filed which, singly or in the aggregate, could reasonably be expected
to have a Material Adverse Effect on Borrower and its Subsidiaries,
taken as a whole.
6.1.7. Solvency Certificate. The Agent shall have received a
certificate from the chief financial officer of Borrower in a form
reasonably satisfactory to the Agent supporting the conclusions that,
Borrower and its Subsidiaries, on a Consolidated basis, are solvent and
will be solvent subsequent to incurring the Indebtedness, will be able
to pay their debts and liabilities as they become due, and will not be
left with unreasonably small capital with which to engage in their
businesses.
6.1.8. Environmental Matters. If requested by the Agent, the
Agent shall have received updates of past environmental audits
furnished to the Agent, in form, substance and scope satisfactory to
the Required Lenders, which updates shall not disclose any condition
which, with the passage of time, or the giving of notice or both, would
give rise to any liability that, singly or in the aggregate, could have
a Material Adverse Effect and shall not otherwise disclose that
Borrower is in violation of Environmental Laws, noncompliance with
which could, singly or in the aggregate, have a Material Adverse
Effect.
6.1.9. Existing Facilities. Concurrently with the initial
Advance under the Facilities, Borrower shall have prepaid and repaid
all outstanding obligations under that certain Credit Agreement as of
April 8, 1996, as amended, among Borrower, the Agent and the lenders
party thereto, and any existing commitments of such lenders shall have
been terminated to the satisfaction of the Agent.
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6.1.10. Legal. All legal (including tax implications) and
regulatory matters relative to the Loans shall be satisfactory to the
Required Lenders.
6.1.11. Regulations. Borrower shall have complied with all
applicable requirements of Regulations G, T, U, and X of the Board of
Governors of the Federal Reserve System.
6.1.12. No Default; No Material Adverse Change. The Agent
shall have received a certificate signed by the chief executive officer
or chief financial officer of Borrower stating that on the Closing Date
(a) no Default or Unmatured Default has occurred and is continuing, and
(b) no material adverse change in the business, condition (financial or
otherwise), operations, performance, properties, or prospects of
Borrower and its Subsidiaries, taken as a whole, since August 31, 1997
has occurred.
6.1.13. Commitment Fees and Expenses. The fees described in
Section 2.6 shall have been paid by Borrower, and Borrower shall have
reimbursed the Agent for all reasonable legal fees and other expenses
of the Agent in connection with the Facilities.
6.1.14. Senior Notes. The terms and conditions of the Senior
Notes shall be consistent with those described in Borrower's
preliminary offering materials and the Lenders shall have received (a)
copies of the documents governing the Senior Notes, and (b) a
certificate signed by an Authorized Officer of Borrower stating that
the terms and conditions set forth in the final documents governing the
Senior Notes are not materially different than the terms and conditions
described in such preliminary offering materials. In addition, Borrower
shall have received the proceeds from the issuance of the Senior Notes.
6.1.15. Money Transfer Instructions. Borrower has furnished to
the Agent (with sufficient copies for the Lenders) written money
transfer instructions, in substantially the form of Exhibit D hereto,
addressed to the Agent and signed by an Authorized Officer, together
with such other related money transfer authorizations as the Agent may
have reasonably requested.
6.1.16. Additional Documentation. The Agent shall have
received such other documents, instruments, financing statements,
assignments, waivers, certificates, reaffirmations, consents and
opinions as the Agent may reasonably request.
6.2. Conditions to Subsequent Advances. The obligation of the
Lenders to make each subsequent Advance or for NBD to issue any Letter
of Credit under the Facilities is subject to each of the following
conditions precedent:
6.2.1. No Default. No Default or Unmatured Default shall have
occurred and be continuing.
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6.2.2. Representations and Warranties. Each representation and
warranty contained in Section 4 shall be true and correct in all
material respects as of the date of such Advance, except to the extent
any such representation or warranty relates solely to an earlier date.
6.2.3. Legal Matters. All legal matters incident to the making
of such Advance shall be reasonably satisfactory to the Agent and its
counsel.
6.2.4. Expenses. Borrower shall have reimbursed the Agent for
all legal fees and other reasonable expenses incurred by the Agent in
connection with the Facilities.
6.3. General. Each request for an Advance under the Facilities
shall constitute a representation and warranty by Borrower that the
applicable conditions contained in this Section 6 have been satisfied.
SECTION 7
Default
The occurrence of any of the following events shall be deemed a Default
hereunder:
(a) Any representation or warranty made by or on behalf of
Borrower to the Lenders or the Agent under or in connection with any
Loan Document, shall be false in any material respect as of the date on
which made;
(b) Borrower fails to make any payment of principal of, or
interest on, any of the Notes when due, or any fee or other payment
Obligation within five days after the same becomes due;
(c) The breach by Borrower of any of the covenants contained
in Sections 5.1.1 through 5.1.16 (other than Sections 5.1.1(c) and
5.1.13) which breach remains uncured for a period which is the earlier
of twenty (20) days after the occurrence thereof or ten (10) days after
written notice to Borrower from the Agent or a Lender; or the breach by
Borrower of any other covenant contained in Section 5;
(d) The breach by Borrower of any other terms or provisions of
the Loan Documents (other than a breach which constitutes a Default
under Section 7(a), (b) or (c) above) not cured within thirty (30) days
after written notice from the Agent or a Lender to Borrower specifying
such breach;
(e) The failure of Borrower or any of its Subsidiaries to pay
any other Indebtedness aggregating in excess of Ten Million Dollars
($10,000,000) when due or within any applicable grace or cure period,
or the default by Borrower or any of its Subsidiaries in
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the performance of any other term, provision or condition contained in
any agreement under which any such Indebtedness was created or is
governed, the effect of which is to permit the holder or holders of
such Indebtedness to cause such Indebtedness to become due prior to its
stated maturity, unless such default is waived in writing by the holder
or holders of such Indebtedness; or any such Indebtedness shall be
validly declared to be due and payable or required to be prepaid (other
than by a regularly scheduled payment) prior to the stated maturity
thereof;
(f) Borrower shall (i) have an order for relief entered with
respect to it under the Federal Bankruptcy Code, (ii) not pay, or admit
in writing its inability to pay, its debts generally as they become
due, (iii) make an assignment for the benefit of creditors, (iv) apply
for, seek, consent to, or acquiesce in the appointment of a receiver,
custodian, trustee, examiner, liquidator or similar official for it or
any Substantial Portion of its Property, (v) institute any proceeding
seeking an order for relief under the Federal Bankruptcy Code or
seeking to adjudicate it a bankrupt or insolvent, or seeking
dissolution, winding up, liquidation, reorganization, arrangement,
adjustment or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors or fail
to file an answer or other pleading denying the material allegations of
any such proceeding filed against it, or (vi) suspend operations as
currently conducted or discontinue doing business as an ongoing
concern;
(g) Without the application, approval or consent of Borrower,
a receiver, trustee, examiner, liquidator or similar official shall be
appointed for Borrower or any Substantial Portion of its Property, or a
proceeding described in item (f) shall be instituted against Borrower
and such appointment continues undischarged or such proceeding
continues undismissed or unstayed for a period of sixty (60)
consecutive days;
(h) Any Governmental Authority shall condemn, seize or
otherwise appropriate, or take custody or control of all or any
Substantial Portion of the Property of Borrower;
(i) Borrower or any Subsidiary shall fail within thirty (30)
days to pay, bond or otherwise discharge any judgment or order for the
payment of money which when aggregated with all other such outstanding
judgments or orders exceeds Five Million Dollars ($5,000,000) and which
is not stayed on appeal or otherwise appropriately contested in good
faith, or any attachment, levy or garnishment is issued against any
Property of Borrower or such Subsidiary;
(j) The Unfunded Liabilities of all Single Employer Plans
shall exceed Five Million Dollars ($5,000,000) in the aggregate or any
Reportable Event shall occur in connection with any Plan;
(k) Borrower or any other member of the Controlled Group shall
have been notified by the sponsor of a Multi-employer Plan that it has
incurred withdrawal liability to
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such Multi-employer Plan in an amount which, when aggregated with all
other amounts required to be paid to Multi-employer Plans by Borrower
or any other member of the Controlled Group as withdrawal liability
(determined as of the date of such notification), exceeds Five Million
Dollars ($5,000,000);
(l) Borrower or any other member of the Controlled Group shall
have been notified by the sponsor of a Multi-employer Plan that such
Multi-employer Plan is in reorganization or is being terminated, within
the meaning of Title IV of ERISA, if as a result of such reorganization
or termination the aggregate annual contributions of Borrower and the
other members of the Controlled Group (taken as a whole) to all
Multi-employer Plans which are then in reorganization or being
terminated have been or will be increased over the amounts contributed
to such Multi-employer Plans for the respective plan years of each such
Multi-employer Plan immediately preceding the plan year in which the
reorganization or termination occurs by an amount exceeding Five
Million Dollars ($5,000,000);
(m) If there occurs a Change in Control; or
(n) any Loan Document shall fail to remain in full force or
effect or any action shall be taken to discontinue or assert the
invalidity or unenforceability of any Loan Document.
SECTION 8
Remedy
8.1. Acceleration. If any Default described in Section 7 (f) or Section
7 (g), occurs, the Commitments and all obligations of the Lenders to make, renew
or convert Advances of the Facilities, to accept drafts or to issue Letters of
Credit hereunder shall automatically terminate and the Obligations (including,
without limitation, the Obligation to deposit with the Agent a sum equal to the
aggregate face amount of the outstanding Letters of Credit pursuant to Section
8.2) shall immediately become due and payable without any election or action on
the part of any Lender or the Agent. If any other Default occurs, then upon the
declaration of the Required Lenders or the Agent at the direction of the
Required Lenders, the obligations of the Lenders to make, renew or convert
Advances of the Facilities, to accept drafts and to issue Letters of Credit
under this Agreement shall terminate, and the Obligations (including, without
limitation, the Obligation to deposit with the Agent a sum equal to the
aggregate face amount of the outstanding Letters of Credit pursuant to Section
8.2) shall immediately become due and payable. In either event, the Obligations
shall become immediately due and payable without presentment, demand, protest or
notice of any kind, all of which Borrower hereby expressly waives. The remedies
of the Lenders specified in this Agreement and the other Loan Documents shall
not be exclusive, and the Lenders may avail themselves of any of the remedies
provided by law as well as any equitable remedies available to the Lenders, and
each and every remedy shall be cumulative and concurrent and shall be in
addition to every other remedy now or hereafter existing at law or in equity.
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8.2. Deposit to Secure Reimbursement Obligations. When any Default has
occurred and is continuing, the Required Lenders or the Agent at the direction
of the Required Lenders may demand that Borrower immediately pay to the Agent an
amount equal to the aggregate outstanding amount of the Letters of Credit, and
Borrower shall immediately upon any such demand make such payment. Borrower
hereby irrevocably grants to the Agent for the benefit of the Lenders a security
interest in all funds deposited to the credit of or in transit to any deposit
account or fund established pursuant to this Section 8.2, including, without
limitation, any investment of such fund. Borrower hereby acknowledges and agrees
that the Agent and NBD would not have an adequate remedy at law for failure by
Borrower to honor any demand made under this Section 8.2 and that the Agent and
NBD shall have the right to require Borrower specifically to perform its
undertakings in this Section 8.2 whether or not any draws have been made under
any Letter of Credit. In the event the Agent or NBD makes a demand pursuant to
this Section 8.2, and Borrower makes the payment demanded, the Agent agrees to
invest the amount of such payment for the account of Borrower and at Borrower's
risk and direction in Qualified Investments.
8.3. Subrogation. NBD shall, to the extent of any payments made by NBD
under any Letter of Credit, be subrogated to all rights of the beneficiary of
such Letter of Credit as to all obligations of Borrower and its Subsidiaries
with respect to which such payment shall have been made by NBD.
8.4. Preservation of Rights. No delay or omission of the Agent or any
Lender to exercise any power or right under the Loan Documents shall impair such
power or right or be construed to be a waiver of any Default or an acquiescence
therein, and any single or partial exercise of any power or right shall not
preclude other or further exercise thereof or the exercise of any other power or
right. No Advance hereunder shall constitute a waiver of any of the conditions
of any Lender's obligation to make further Advances, nor, in the event Borrower
is unable to satisfy any such condition, shall a waiver of such condition in any
one instance have the effect of precluding any Lender from thereafter declaring
such inability to be a Default hereunder. No course of dealings shall be binding
upon the Agent or any Lender.
SECTION 9
The Agent
9.1. Appointment. Each of the Lenders hereby designates and appoints
NBD as the Agent of such Lender under the Loan Documents, and each such Lender
authorizes NBD 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 duties of the Agent shall be administrative in nature, and the Agent shall
not have a fiduciary relationship in respect of any Lender by reason of this
Agreement, and the Agent shall not be deemed to have assumed any obligation
toward, or relationship or agency or trust with or for, Borrower. The provisions
of this Section 9 are solely for the benefit of the Agent and the Lenders, and
Borrower shall not have any rights as a third party beneficiary of any of the
provisions hereof.
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9.2. Powers. The Agent shall have and may exercise such powers
hereunder and under the other Loan Documents as are specifically delegated to
the Agent by the terms hereof and thereby, together with such powers as are
reasonably incidental thereto. The Agent shall have no implied duties to the
Lenders or any obligation to the Lenders to take any action hereunder or
thereunder, except any action specifically provided by this Agreement or the
other Loan Documents to be taken by the Agent. The Agent shall take such action
or refrain from taking such action as is directed by the Required Lenders, or,
if this Agreement or the Loan Documents requires that such direction shall be
given by all of the Lenders, then by all the Lenders.
9.3. Exculpatory Provisions. Neither the Agent nor any of its officers,
directors, employees or agents shall be liable for any action taken or omitted
to be taken by it under or in connection with this Agreement or the other Loan
Documents except for its own gross negligence or willful misconduct, or be
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by Borrower or any Subsidiary or any officer
thereof contained in this Agreement or in any certificate, report, statement or
other document referred to or provided for in, or received by the Agent or any
of the Lenders under or in connection with this Agreement or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any of the other Loan Documents or for any failure of Borrower to
perform the Obligations. The Agent shall not be under any obligation to any of
the Lenders to ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or the conditions of, this Agreement. The
Agent shall be fully justified in failing or refusing to take any action
hereunder or under the other Loan Documents unless it shall first be indemnified
to its satisfaction by the Lenders pro rata against any and all liability and
expense which may be incurred by it or by reason of taking or continuing to take
any such action.
9.4. Reliance by Agent. The Agent shall in all cases be fully protected
in acting, or refraining from acting, hereunder or under the other Loan
Documents in accordance with written instructions signed by the Required Lenders
or by each of the affected Lenders pursuant to Section 11.1, and such
instructions and any action taken or failure to act pursuant thereto shall be
binding on all the Lenders and on all holders of the Notes. The Lenders
acknowledge that the Agent is under no duty to take any discretionary action
permitted to be taken by it pursuant to the provisions of this Agreement or any
other Loan Document unless it shall be requested in writing to do so by the
Required Lenders or by each of the affected Lenders pursuant to Section 11.1.
The Agent may deem and treat the payee of any Note as the owner thereof for all
purposes hereof unless and until a written notice of the assignment or transfer
thereof shall have been filed with the Agent. Any requests, 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.
9.5. Non-Reliance on Agent and Other Lenders. Each Lender expressly
acknowledges that neither the Agent nor any of its officers, directors,
employees or agents has made any representations or warranties to it and that no
act by the Agent hereinafter taken, including, without limitation, any review of
the affairs of Borrower, shall be deemed to constitute any representation or
warranty by the Agent to any of the Lenders. Each Lender represents to the Agent
that it has, independently and
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without reliance upon the Agent or any other Lender, and based on such documents
and information as it has deemed appropriate, made its own appraisal of and
investigation into the business, financial condition and credit-worthiness of
Borrower and made its own decision to make its Commitments and Advances and
enter into this Agreement. Each Lender also represents that it will
independently and without reliance upon the Agent or the other Lenders, and
based upon such documents and information as it may deem appropriate at the
time, continue to make its own credit analysis and decisions in taking or not
taking action under this Agreement. The Agent makes no representation or
warranty of any kind with respect to the validity, enforceability, legality or
sufficiency of the Loan Documents or any of the other documents referred to or
contemplated herein or therein.
9.6. Employment of Agents and Counsel. The Agent may execute any of its
duties as Agent hereunder and under any other Loan Document by or through
employees, agents, and attorneys-in-fact and shall not be answerable to the
Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Agent shall be entitled to advice of
counsel concerning all matters pertaining to the agency hereby created and its
duties hereunder and under any other Loan Document.
9.7. 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.
9.8. Defaults; Notices. The Agent shall not be deemed to have knowledge
of the occurrence of any Default or Unmatured Default unless the Agent has
received written notice from a Lender or Borrower specifying such Default or
Unmatured Default and stating that such notice is a "Notice of Default." In the
event that the Agent receives such a notice, the Agent shall promptly give
written notice thereof to the Lenders. Any time a Lender has actual knowledge of
the occurrence of any Default or Unmatured Default, such Lender shall promptly
give written notice thereof to the Agent. The Agent shall take such action with
respect to a Default or a Unmatured Default as shall be reasonably directed in
writing by the Required Lenders or all the Lenders, as applicable, provided,
however, that, unless and until the Agent shall have received such direction,
the Agent may take such action, or refrain from taking such action with respect
thereto, as it shall deem advisable in the best interests of the Lenders. The
Agent shall have no obligation to impose or collect the Default rate of interest
as provided in Section 2.2.3 unless and until instructed in writing by the
Required Lenders, which written instruction shall include the Required Lenders'
determination of the date of Default and the amount of interest due and payable
by Borrower.
9.9. Rights as Lender. The Agent shall have the same rights and powers
hereunder as any Lender and may exercise the same as though it were not the
Agent, and the term "Lender" or "Lenders" shall, unless the context otherwise
requires, include the Agent in its individual capacity. The Agent may accept
deposits from, lend money to, and generally engage in any kind of banking or
trust business with Borrower, as if it were not the Agent. Borrower hereby
authorizes the Agent, as
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the Agent may elect in its sole discretion, to discuss with, and furnish to, the
Lenders or for a proper business purpose or to any other Person having an
interest in the Obligations (whether as a guarantor, pledgor, Participant,
Purchaser or otherwise) all Financial Statements, audit reports and other
information pertaining to Borrower or any Subsidiary whether such information
was provided by Borrower or such Subsidiary or prepared or obtained by the
Agent, provided that the Agent shall require the recipient of any such
information to comply with the confidentiality provisions of Section 11.11.
Neither the Agent nor any of its employees, officers, directors or agents makes
any representation or warranty regarding any audit reports or other analysis of
Borrower's or any Subsidiary's condition which the Agent may elect to
distribute, whether such information was provided by Borrower or any Subsidiary
or prepared or obtained by the Agent, nor shall the Agent or any of its
employees, officers, directors or agents be liable to any Person receiving a
copy of such reports or analysis for any inaccuracy or omission contained
therein or relating thereto.
9.10. Agent's Indemnification and Reimbursement. The Lenders agree to
indemnify and to reimburse the Agent (to the extent not reimbursed by or on
behalf of Borrower) according to their Pro Rata Shares, from and against all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may be
imposed upon, incurred by, or asserted against the Agent in any way relating to
or arising out of this Agreement or the other Loan Documents or any action taken
or omitted by the Agent under this Agreement or the other Loan Documents,
provided that no Lender shall be liable for any portion of the foregoing
resulting from the Agent's gross negligence or willful misconduct. Without
limiting the foregoing, each Lender agrees to indemnify and reimburse the Agent
(to the extent not reimbursed by or on behalf of Borrower) promptly upon demand
for its Pro Rata Share of (a) any expenses for which the Agent is entitled to
reimbursement by Borrower hereunder, and (b) any out-of-pocket expenses
(including, without limitation, fees and disbursements of counsel) incurred by
the Agent on behalf of the Lenders in connection with the preparation,
administration or enforcement of, or legal advice in respect of, its rights or
responsibilities under this Agreement.
9.11. Successor Agent. The Agent may resign at any time by giving
written notice thereof to the Lenders and Borrower and may be removed at any
time with or without cause by the Required Lenders. Upon any such resignation or
removal, the Required Lenders shall have the right to appoint, on behalf of
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 (30) days after the retiring Agent's notice of
resignation, then the retiring Agent may appoint, on behalf of Borrower and the
Lenders, a successor Agent. Such successor Agent shall be a commercial bank
having capital and retained earnings of at least Two Hundred Million Dollars
($200,000,000). Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to, and become
vested with, all the rights, powers, privileges and duties of the retiring
Agent, and the retiring Agent shall be discharged from its duties and
obligations hereunder. After any retiring Agent's resignation hereunder as
Agent, the provisions of this Section 9 shall continue in effect for its benefit
with respect to any actions taken or omitted to be taken by it while it was
acting as the Agent hereunder.
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SECTION 10
Benefit of Agreement; Assignments; Participations
10.1. Successors and Assigns. Each Lender will accept the Notes as
evidence of loans made in the ordinary course of its commercial banking or
investing business. The terms and provisions of the Loan Documents shall be
binding upon and inure to the benefit of Borrower and the Lenders and their
respective successors and assigns, except that (a) Borrower shall not have the
right to assign its rights or obligations under the Loan Documents, and (b) any
assignment by any Lender must be made in compliance with Section 10.3.
Notwithstanding clause (b) of this Section, any Lender may at any time, without
the consent of 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 to a Federal Reserve Bank 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 10.3 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 transferor 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.
10.2. Participations.
10.2.1. Permitted Participations; Effect. Any Lender may, in
the ordinary course of its business and in accordance with applicable
law, at any time sell to one or more Eligible Assignees
("Participants") participating interests in any Loan owing to such
Lender, any Note held by such Lender, any Commitment of such Lender or
any other interest of such Lender under the Loan Documents. In the
event of any such sale by a Lender of participating interests to a
Participant, such Lender's obligations under the Loan Documents shall
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 Borrower under this
Agreement shall be determined as if such Lender had not sold such
participating interests, and 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.
10.2.2. 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 Facility
in which such Participant has an interest which forgives principal,
interest or fees or reduces the interest rate or fees payable with
respect to any such Facility, postpones any date fixed for any
regularly-scheduled payment of principal of, or interest or fees on,
any such Facility, releases any guarantor of any such Facility or
releases any Substantial Portion of collateral, if any, securing any
such Facility.
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10.2.3. Benefit of Set-off. Borrower agrees that each
Participant shall be deemed to have the right of set-off provided in
Section 11.2 in respect of its participating interest in amounts owing
under the Loan Documents to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under the
Loan Documents, provided that each Lender shall retain the right of
set-off provided in Section 11.2 with respect to the amount of
participating interests sold to each Participant. The Lenders agree to
share with each Participant, and each Participant, by exercising the
right of set-off provided in Section 11.2, agrees to share with each
Lender, any amount received pursuant to the exercise of its right of
set-off, such amounts to be shared in accordance with Section 11.2 as
if each Participant were a Lender.
10.3. Assignments.
10.3.1. Permitted Assignments. Any Lender may, in the ordinary
course of its business and in accordance with applicable law, at any
time assign to one or more Eligible Assignees ("Purchasers") all or any
part of its Loans, rights and obligations under the Loan Documents, and
such assignments need not be pro rata among the Facilities. Such
assignment shall be made pursuant to an Assignment Agreement
substantially in the form of Exhibit E hereto or in such other form as
may be agreed to by the parties thereto. The consent of Borrower and
the Agent (which consents shall not be unreasonably withheld or
delayed) shall be required prior to an assignment becoming effective
with respect to a Purchaser which is not a Lender or an Affiliate
thereof, and each such assignment to a Purchaser which is not a Lender
or an Affiliate thereof shall transfer an interest in the Facilities of
not less than the lesser of (a) Five Million Dollars ($5,000,000), or
(b) the then remaining amount of such Lender's Loans and Commitments);
provided, however, that if a Default has occurred and is continuing,
the consent of Borrower shall not be required.
10.3.2. Effect; Effective Date. Upon (a) delivery to the Agent
of a notice of assignment, substantially in the form of Exhibit I to
Exhibit E hereto (a "Notice of Assignment"), together with any consents
required by Section 10.3.1, (b) acceptance and recording of the Notice
of Assignment by the Agent in accordance with Section 10.4, and (c)
payment of a Three Thousand Five Hundred Dollar ($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.
Notwithstanding anything to the contrary contained herein, no
assignment of any Loan evidenced by a Registered Note shall be
effective unless and until the assignment is recorded in the Register.
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 and Loans under the applicable assignment
agreement are Plan Assets and that the rights and interests of the
Purchaser in and under the Loan Documents will not be Plan Assets. On
and after the effective date of such assignment, such Purchaser shall
for all purposes be a Lender party to this Agreement and any other Loan
Document executed by 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 Borrower, the Lenders or the Agent shall be required to release the
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transferor Lender with respect to the percentage of the Commitment and
Loans assigned to such Purchaser. Upon the consummation of any
assignment to a Purchaser pursuant to this Section, Schedule 1 shall be
deemed modified to reflect the Commitments of the Purchaser and of the
existing Lenders, and the transferor Lender, the Agent and Borrower
shall make appropriate arrangements so the 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 Commitment, as adjusted pursuant to
such assignment.
10.4. Registered Notes.
(a) Any Non-U.S. Lender that could become completely exempt
from withholding of any taxes in respect of payment of any interest due
to such Non-U.S. Lender under this Agreement if the Notes held by such
Lender were in registered form for United States federal income tax
purposes may request Borrower (through the Agent), and Borrower agrees
(i) to exchange for any Notes held by such Lender, or (ii) to issue to
such Lender by the date it becomes a Lender, promissory note(s)
registered as provided in clause (b) of this Section 10.4 (each, a
"Registered Note," to be in substantially the form of Exhibit A-1
hereto, as applicable). Registered Notes may not be exchanged for Notes
that are not Registered Notes.
(b) Borrower shall maintain, or cause to be maintained, a
register (the "Register") which, at the request of Borrower, shall be
kept at no extra charge to Borrower by the Agent, acting for this
purpose solely as agent of Borrower, at the address to which notices to
the Agent are to be sent hereunder, on which it enters the name of the
registered owner of each Loan evidenced by a Registered Note.
(c) A Registered Note and the Loan evidenced thereby may be
assigned or otherwise transferred in whole or in part pursuant to
Section 10.3 only by registration of such assignment or transfer of
such Registered Note and the Loan evidenced thereby on the Register
(and each Registered Note shall expressly so provide). Any assignment
or transfer of all or part of a Loan and the Registered Note evidencing
the same shall be recorded on the Register only upon surrender for
registration of assignment or transfer of the Registered Note
evidencing such Loan; duly endorsed by (or accompanied by a written
instrument of assignment or transfer duly executed by) the holder of
such Registered Note and thereupon one or more new Registered Notes in
the same aggregate principal amount shall be issued to the Purchaser
and, if applicable, to the assignor Lender. The entries in the Register
shall be conclusive and Borrower, the Agent, and the Lenders shall
treat the Person in whose name such Loan(s) and the Registered Notes(s)
evidencing the same are registered as the owner thereof for the purpose
of receiving all payments thereon and for all other purposes,
notwithstanding any notice to the contrary. The Register shall be
available for inspection by Borrower and any Lender at any reasonable
time upon reasonable prior notice.
10.5. Dissemination of Information. Borrower authorizes each Lender to
disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by
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operation of law (each a "Transferee") and any prospective Transferee any and
all information in such Lender's possession concerning the credit-worthiness of
Borrower and its Subsidiaries; provided that each Transferee and prospective
Transferee agrees to be bound by Section 11.11.
10.6. Tax Treatment. If any interest in any Loan Documents is
transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the transferor
Lender shall cause such Transferee, concurrently with the effectiveness of such
transfer, to comply with the provisions of Sections 2.3.4(b) and 11.19.
SECTION 11
General Provisions
11.1. Waivers and Amendments. No delay or omission of the Lenders 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 any
single or partial exercise of any such right shall not preclude other or further
exercise thereof or the exercise of any other right. 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 Borrower, the Required
Lenders (or the Agent with the written consent of the Required Lenders), and, to
the extent any rights or duties of the Agent may be affected thereby, the Agent;
provided, however, that no waiver, amendment, modification, consent or other
variation shall, without the prior written consent of each Lender affected
thereby, (a) authorize or permit the extension of time for paying the principal
of, or interest on, any Obligations (including, without limitation, payments due
under Section 2.3.1), or any fees payable hereunder or thereunder, or any change
in, or forgiveness or reduction of, the principal amount thereof or the rate of
interest or fees thereon (other than as a result of waiving the applicability of
any increase in the applicable interest rate upon Default or maturity) or
increase the amount of any Lender's Commitment hereunder, (b) amend (i) the
definition of Required Lenders or the percentage of Lenders required to take or
approve any action hereunder, or (ii) the provisions of this Section or Sections
7 or 8.1, (c) release a Substantial Portion of collateral, if any, subject to
any Loan Document, or (d) waive, amend, or modify any other provision of the
Loan Documents which creates an Obligation on the part of Borrower to indemnify
the Agent or any Lender or to pay money to the Agent or any Lender. Any such
waiver, amendment, modification or consent shall be effective only in the
specific instance and for the specific purpose for which given.
11.2. Set-off by Lenders. In addition to any rights now or hereafter
granted under applicable law or otherwise, and not by way of limitation of any
such rights, upon the occurrence of a Default, each Lender is hereby authorized
at any time or from time to time, without presentment, demand, protest or other
notice of any kind to Borrower or to any other Person, any such notice being
hereby expressly waived, to set off and to appropriate and apply any and all
deposits (general or special) and any other Indebtedness at any time held or
owing by such Lender (including, without limitation, by branches and agencies of
such Lender wherever located) to, or for the credit or the account of, Borrower
against and on account of the Obligations to such Lender, including, without
limitation,
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all interests in Obligations of Borrower purchased by such Lender pursuant to
Section 10.2.3, and all other claims of any nature or description arising out of
or connected with this Agreement or any other Loan, irrespective of whether or
not such Lender shall have made any demand hereunder and although said
Obligations, liabilities or claims, or any of them, shall be contingent or
unmatured.
11.3. Survival. All representations, warranties and indemnities made by
Borrower in the Loan Documents shall survive delivery of the Notes, the
establishment of the Facilities, the making of Loans and the termination of the
Commitments.
11.4. Governmental Regulation. Anything contained in this Agreement to
the contrary notwithstanding, the Lenders shall not be obligated to extend
credit to Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
11.5. Taxes. Any taxes (excluding taxation of the overall net income of
the Agent or any Lender) payable or ruled payable by any Governmental Authority
in respect of the Loan Documents shall be paid by Borrower, together with
interest and penalties, if any.
11.6. Choice of Law. The Loan Documents (other than those containing a
contrary express choice of law provision) and the rights and obligations of the
parties thereunder and hereunder shall be governed by, and construed and
interpreted in accordance with the laws of the State of Indiana (but giving
effect to federal laws applicable to national banks), notwithstanding the fact
that Indiana conflict of law rules might otherwise require the substantive rules
of law of another jurisdiction to apply. Borrower hereby consents to the
jurisdiction of any state or federal court located within Xxxxxx County,
Indiana. All service of process may be made by messenger, certified mail, return
receipt requested or by registered mail directed to Borrower at the addresses
indicated aside its signature to this Agreement, and Borrower otherwise waives
personal service of any and all process made upon Borrower. Borrower waives any
objection which Borrower may have to any proceeding commenced in a federal or
state court located within Xxxxxx County, Indiana, based upon improper venue or
forum non conveniens. Nothing contained in this Section shall affect the right
of the Lenders to serve legal process in any other manner permitted by law or to
bring any action or proceeding against Borrower or its Property in the courts of
any other jurisdiction.
11.7. 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.
11.8. Entire Agreement. The Loan Documents embody the entire agreement
and understanding among Borrower, the Agent and the Lenders and supersede all
prior agreements and understandings between Borrower, the Agent and the Lenders
relating to the subject matter thereof.
11.9. Expenses. Borrower shall reimburse the Agent for any and all
reasonable costs, charges and out-of-pocket expenses (including attorneys' and
paralegals' fees and time charges of attorneys and paralegals for the Agent,
which attorneys may be employees of the Agent or its Affiliates), paid or
incurred by the Agent in connection with the preparation, review, execution,
delivery, amendment, modification and administration of the Facilities and/or
the Loan Documents,
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which costs, charges and expenses shall be due and payable whether or not the
Effective Date occurs. Borrower shall reimburse the Agent and the Lenders for
any and all reasonable costs, charges and out-of-pocket expenses (including
attorneys' and paralegals' fees and time charges of attorneys and paralegals for
the Agent and the Lenders, which attorneys may be employees of the Agent or the
Lenders or their Affiliates), paid or incurred by the Agent and/or the Lenders
in connection with the collection and enforcement of the Facilities and/or the
Loan Documents. The Lenders may pay or deduct from the Loan proceeds any of such
expenses, and any proceeds so applied shall be deemed to be Advances under this
Agreement evidenced by the Notes, and shall bear interest at the Alternate Base
Rate plus the Applicable Margin for ABR Loans. The obligations of Borrower under
this Section shall survive the termination of this Agreement.
11.10. Indemnification. Borrower agrees to indemnify the Lenders, and
their successors and assigns (including any purchaser of a participation in the
Facilities), and their respective directors, officers and employees, against all
losses, claims, costs, damages, liabilities and expenses, including, without
limitation, all expenses of litigation or preparation therefor (a "Loss"), which
any of them may pay or incur in connection with or arising out of, or related to
the Loan Documents, the transactions contemplated hereby, or the direct or
indirect application or proposed application of the proceeds of the Facilities
hereunder, except to the extent they are determined by a court of competent
jurisdiction in a final and non-appealable order to have resulted from the gross
negligence or willful misconduct of the party seeking indemnification. The
obligations of Borrower under this Section shall survive the termination of this
Agreement.
11.11. Confidentiality. Each Lender agrees to hold any confidential
information which it may receive from Borrower pursuant to this Agreement in
confidence, except for disclosure (a) to its Affiliates and to other Lenders and
their respective Affiliates, (b) to legal counsel, accountants, and other
professional advisors to that Lender or to a Transferee, (c) to regulatory
officials, (d) to any Person as requested pursuant to, or as required by, law,
regulation, or legal process, (e) to any Person as deemed reasonably necessary
by such Lender or the Agent to prosecute or defend any legal proceeding to which
that Lender or the Agent is a party, and (f) permitted by Section 10.5.
11.12. Notice. Any notice required or permitted to be given under this
Agreement may be, and shall be deemed effective if made in writing and delivered
to the recipient's address, telex number or facsimile number addressed to
Borrower at the address specified opposite its signature below, or if addressed
to the Agent or the Lenders at the addresses indicated on Schedule 1 hereto, by
any of the following means: (a) hand delivery, (b) United States first class
mail, postage prepaid, (c) registered or certified mail, postage prepaid, with
return receipt requested, (d) by a reputable rapid delivery service, or (e) by
telegraph, telex, or facsimile when delivered to the appropriate office for
transmission, charges prepaid, with request for assurance of receipt in a manner
typical with respect to communication of that type. Notice made in accordance
with this Section shall be deemed given (aa) upon receipt if delivered by hand
or wire transmission, (bb) three Business Days after mailing if mailed by first
class, registered or certified mail, or (cc) one Business Day after deposit with
an overnight courier service if delivered by overnight courier; provided that
notices to the Agent under Section 2 shall not be effective until received.
Borrower, the Agent and the Lenders may each change
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the address for service of notice upon it by a notice in writing to the other
parties hereto in accordance with this Section 11.12.
11.13. 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.
11.14. Incorporation by Reference. All Exhibits and Schedules hereto
are incorporated herein by this reference. Each of the other Loan Documents
shall be made subject to all of the terms, covenants, conditions, obligations,
stipulations and agreements contained in this Agreement to the same extent and
effect as if fully set forth therein, and this Agreement is made subject to all
of the terms, covenants, conditions, obligations, stipulations and agreements
contained in the other Loan Documents to the same extent and effect as if fully
set forth therein. The provisions of this Agreement, including, without
limitation, provisions relating to maintenance of insurance, are in addition to,
and not a limitation upon, the requirements of any other Loan Document.
11.15. No Joint Venture. Notwithstanding anything to the contrary
herein contained or implied, the Lenders, by this Agreement, or by any action
pursuant hereto, shall not be deemed to be a partner of, or a joint venturer
with, Borrower or one another, and Borrower hereby indemnifies and agrees to
defend and hold the Lenders harmless, including the payment of reasonable
attorneys' fees, from any Loss resulting from any judicial construction of the
parties' relationship as such.
11.16. Severability. In the event any provision of this Agreement or
any of the Loan Documents shall be held invalid or unenforceable by any court of
competent jurisdiction, such holding shall not affect the validity,
enforceability or legality of the remaining provisions hereof or thereof, all of
which shall continue unaffected and unimpaired thereby.
11.17. Waiver of Set-off by Borrower. Borrower agrees that it will not
exercise, and it will not permit any Subsidiary to exercise, any right of
set-off on any of the Obligations or under any Note or assert any claim for,
reduction or credit against any of the Notes except when actual payment has been
made.
11.18. Lenders Not Controlling Borrower. None of the covenants or other
provisions contained in the Loan Documents shall be deemed to give the Lenders
the rights or power to exercise control over the affairs and/or management of
Borrower or any Subsidiary, the power of the Lenders being limited to the right
to exercise the remedies provided in the Loan Documents; provided, however, that
if the Lenders become the owners of any stock or other equity interest in any
Person, whether through foreclosure or otherwise, the Lenders shall be entitled
(subject to requirements of law) to exercise such legal rights as it may have by
virtue of being the owner of such stock or other equity interest in such Person.
11.19. Foreign Lender Withholding Tax. Each Lender that is not a U.S.
Person agrees that it will deliver to each of Borrower and the Agent at least
five Business Days prior to the first date on which interest or fees are payable
hereunder (or in the case of a Purchaser, on or prior to the date
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such Purchaser becomes a Lender) for the account of any Lender (a)(1) two duly
completed copies of United States Internal Revenue Service Form 1001 or 4224,
certifying in either case that such Lender is entitled to receive payments under
this Agreement and the Notes without deduction or withholding of any United
States federal income taxes, and (2) a duly completed United States Internal
Revenue Service Form W-8 or W-9 certifying that such Lender is entitled to an
exemption from United States backup withholding tax, or (b), in the case of a
Lender not treated as a bank for regulatory, tax or other legal purposes in any
jurisdiction, (1) a certificate signed under penalties of perjury that such
Lender is not a "bank" within the meaning of Section 881(c)(3)(A) of the Code or
a "conduit entity" within the meaning of United States Treasury Regulations
Section 1.881-3, and (2) a duly completed Internal Revenue Service Form W-8.
Each Lender which so delivers a Form 1001, 4224 or W-8 further undertakes to
deliver to each of Borrower and the Agent two additional copies of such form (or
a successor form) on or before the date that such form expires (currently, three
successive calendar years for Form 1001 and one calendar year for Form 4224) or
becomes obsolete or after the occurrence of any event requiring a change in the
most recent forms so delivered by it, and such amendments thereto or extensions
or renewals thereof as may be reasonably requested by Borrower or the Agent, in
each case certifying, in the case of a Form 1001 or 4224, that such Lender is
entitled to receive payments under this Agreement and the Notes without
deduction or withholding of any United States federal income taxes and, in the
case of a Form W-8, if such Lender is entitled to receive payments of interest
under this Agreement and the Notes without deduction or withholding of any
United States federal income taxes, unless an event (including without
limitation any change in treaty, law or regulation) has occurred prior to the
date on which any such delivery would otherwise be required which renders all
such forms inapplicable or which would prevent such Lender from duly completing
and delivering any such form with respect to it and such Lender advises Borrower
and the Agent that it is not capable of receiving payments without any deduction
or withholding of United States federal income tax.
11.20. Replacement of Lenders. Upon a Lender charging to Borrower
increased costs in excess of those being generally charged by the other Lenders,
Borrower shall have the right, in accordance with the requirements of Section
10.3, if no Default will exist after giving effect to such replacement, to
replace such Lender (the "Replaced Lender") with an Eligible Assignee or
Eligible Assignees (collectively, the "Replacement Lender"), reasonably
acceptable to the Agent, provided that (a) at the time of any replacement
pursuant to this Section, the Replacement Lender shall enter into one or more
Assignment Agreements pursuant to which the Replacement Lender shall acquire all
the Commitments and outstanding Loans of, and in each case participation in
Letters of Credit by, the Replaced Lender and, in connection therewith, shall
pay to the Replaced Lender in respect thereof an amount equal to the sum of (i)
an amount equal to the principal of, and all accrued interest on, all
outstanding Loans of the Replaced Lender, plus (ii) an amount equal to all
accrued, but theretofore unpaid, fees owing to the Replaced Lender, and (b) all
Obligations of Borrower owing to the Replaced Lender (other than those
specifically described in clause (a)(i) above in respect of which the assignment
purchase price has been, or is concurrently being, paid) shall be paid in full
to such Replaced Lender concurrently with such replacement.
11.21 Relationship of Parties. The relationship between Borrower and
the Lenders and the Agent shall be solely that of borrower and lender. Neither
the Agent nor any Lender shall have any
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fiduciary responsibilities to Borrower. Neither the Agent nor any Lender
undertakes any responsibility to Borrower to review or inform Borrower of any
matter in connection with any phase of Borrower's business or operations.
11.22 Several Obligations; Benefits of this Agreement. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other (except to the extent to which the
Agent is authorized to act as such). The failure of any Lender to perform any of
its obligations hereunder shall not relieve any other Lender from any of its
obligations hereunder. This Agreement shall not be construed so as to confer any
right or benefit upon any Person other than the parties to this Agreement and
their respective successors and assigns.
11.23. Agreement Effective. This Agreement shall be effective when it
has been executed by Borrower, the Agent and the Lenders, provided the Lenders
shall have no obligation under this Agreement until the Effective Date. In the
event the Effective Date has not occurred by November 30, 1997, or such later
date as agreed in writing by the Lenders, this Agreement shall terminate.
SECTION 12
Ratable Payments
If any Lender, whether by set off or otherwise, has payment made to it
upon its Loans (other than payments received pursuant to Section 3.1, 3.2 or
3.4) in a greater proportion than that received by any other Lender in terms of
its Pro Rata Share, 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 after taking into effect the
aforementioned payment and purchase. If any Lender, whether in connection with
set off or amounts which might be subject to set off or otherwise, receives
collateral or other protection for its Obligations or such amounts which may be
subject to set off, such Lender agrees, promptly upon demand, to take such
action necessary such that all Lenders share in the benefits of such collateral
ratably in proportion to their Loans. In case any such payment is disturbed by
legal process, or otherwise, appropriate further adjustments shall be made.
SECTION 13
Waiver of Jury Trial
THE LENDERS, THE AGENT AND BORROWER, AFTER CONSULTING, OR HAVING HAD THE
OPPORTUNITY TO CONSULT, WITH COUNSEL, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE ANY RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION BASED
UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY OF THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY COURSE OF CONDUCT, DEALING,
STATEMENTS
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(WHETHER ORAL OR WRITTEN), OR ACTIONS OF ANY OF THEM. NEITHER A LENDER, THE
AGENT NOR BORROWER SHALL SEEK TO CONSOLIDATE, BY COUNTERCLAIM OR OTHERWISE, ANY
ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A
JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. THESE PROVISIONS SHALL NOT BE
DEEMED TO HAVE BEEN MODIFIED IN ANY RESPECT OR RELINQUISHED BY EITHER THE
LENDERS, THE AGENT OR BORROWER EXCEPT BY A WRITTEN INSTRUMENT EXECUTED BY THE
LENDERS, THE AGENT AND BORROWER.
IN WITNESS WHEREOF, Borrower, the Lenders and the Agent have caused this
Agreement to be executed by their respective officers duly authorized as of the
day and year first above written.
[This space intentionally left blank]
-65-
SIGNATURE PAGE OF
LILLY INDUSTRIES, INC.
TO
CREDIT AGREEMENT
LILLY INDUSTRIES, INC.
By: /s/ Xxxx X. Xxxxx
Xxxx X. Xxxxx, Chief Financial Officer
and Secretary
Address:
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxx
Facsimile: 000-000-0000
-66-
SIGNATURE PAGE OF
NBD BANK, N.A.,
TO
CREDIT AGREEMENT
NBD BANK, N.A.,
individually and as Agent
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Xxxxxx X. Xxxxxxx
Its: Senior Vice President
-67-
SIGNATURE PAGE OF
FIRST UNION NATIONAL BANK
TO
CREDIT AGREEMENT
FIRST UNION NATIONAL BANK
By: /s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx
Its: Vice President
-68-
SIGNATURE PAGE OF
DRESDNER BANK AG-NEW YORK
AND GRAND CAYMAN BRANCHES
TO
CREDIT AGREEMENT
DRESDNER BANK AG - NEW YORK
AND GRAND CAYMAN BRANCHES
By: /s/ Xxxxxxxx X. Xxxxx /s/ Xxxxxxx X. Xxxxx
Its: Vice President Assistant Vice President
-69-
SIGNATURE PAGE OF
NATIONAL CITY BANK OF INDIANA
TO
CREDIT AGREEMENT
NATIONAL CITY BANK OF INDIANA
By: /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx, Vice President and
Senior Lending Officer
-70-
SIGNATURE PAGE OF
KEYBANK NATIONAL ASSOCIATION
TO
CREDIT AGREEMENT
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxxxx
Its: Vice President
-71-
SIGNATURE PAGE OF
XXXXXX TRUST AND SAVINGS BANK
TO
CREDIT AGREEMENT
XXXXXX TRUST AND SAVINGS BANK
By: /s/ Xxxxx Xxxxxxxx
Xxxxx Xxxxxxxx
Its: Vice President
-72-
SIGNATURE PAGE OF
BANK ONE, INDIANA, N.A.
TO
CREDIT AGREEMENT
BANK ONE, INDIANA, N.A.
By: /s/ Xxxxx X. Si
Its: Vice President
-73-
Schedule 1-Lenders
Lenders Revolving Loan
And Addresses Commitment
NBD Bank, N.A. $ 35,000,000
Xxx Xxxxxxx Xxxxxx
Xxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
Fax: 000-000-0000
Bank One, Indiana, N.A. $ 25,000,000
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxx
Fax: (000) 000-0000
First Union National Bank $ 25,000,000
Xxx Xxxxx Xxxxx Xxxxxx, XX-0
000 X. Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx
Fax: (000) 000-0000
Xxxxxx Trust and Savings Bank $ 25,000,000
000 Xxxx Xxxxxx, 00-Xxxx
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
Fax: (000) 000-0000
KeyBank National Association $ 25,000,000
000 Xxxxxx Xxxxxx
Xxxx Xxxxxxx XX-00-00-0000
Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Fax: (000) 000-0000
National City Bank of Indiana $ 25,000,000
000 X. Xxxxxxxxxx Xx., Xxx. 000X
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx
Fax: (000) 000-0000
-74-
Lenders Revolving Loan
And Addresses Commitment
Dresdner Bank AG - New York $ 15,000,000
and Grand Cayman Branches
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxx
Fax: (000) 000-0000
$ 175,000,000
-75-
SCHEDULE 4.10 AND 5.2.3
INDEBTEDNESS
The Borrower incorporates Schedule 5.2.2 by reference into Schedules
4.10 and 5.2.3.
An existing bank credit facility to be paid off with Loan proceeds.
A 10-year economic development note relating to the State of Kentucky.
The principal amount of the note is $186,000 and the lender is National
City Bank.
-viii-
SCHEDULE 4.7
SUBSIDIARIES
LILLY INDUSTRIES, INC.
Jurisdiction
Percent of
Investment In Owned By Ownership Organization
Lilly Industries (USA), Inc. Lilly Industries, Inc. 100% Indiana
Lilly Industries (Far East), Lilly Industries, Inc. 100% Taiwan
Ltd.
Lilly Industries, Inc. Lilly Industries, Inc. 100% Ontario,
(Canada) Canada
Lilly Industries (Asia) Lilly Industries, Inc. 100% Hong Kong
Limited
Lilly Industries (Malaysia) Lilly Industries, Inc. 100% Malaysia
Sdn.Bhd.
Lilly (Ireland), Ltd. Lilly Industries, Inc. 100% Ireland
Lilly Industries (Cornwall) Lilly Industries (USA), Inc. 100% Ontario,
Limited Canada
London Laboratories Lilly Industries (USA), Inc. 100% Ontario,
Limited Canada
London Laboratories Lilly Industries (USA), Inc. 100% Germany
GmbH
Guardsman UK Limited Lilly Industries (USA), Inc. 100% United
Kingdom
GCI Insurance Company, Lilly Industries (USA), Inc. 100% Bermuda
Limited
Guardsman Chemicals Lilly Industries (USA), Inc. 100% U.S. Virgin
International Inc. Islands
Dongguan Lilly Paint Lilly Industries (Asia) 100% Peoples
Industries Ltd. Limited Republic of
China
SCHEDULE 4.10 AND 5.2.3
INDEBTEDNESS
The Borrower incorporates Schedule 5.2.2 by reference into Schedules
4.10 and 5.2.3.
An existing bank credit facility to be paid off with Loan proceeds.
A 10-year economic development note relating to the State of Kentucky.
The principal amount of the note is $186,000 and the lender is National
City Bank.
SCHEDULE 4.13
LITIGATION
None.
SCHEDULE 4.16 AND 5.2.5
CONTINGENT OBLIGATIONS
Lilly Industries, Inc. guarantees the lease of an aircraft by LR
Aviation, Inc. Lilly Industries, Inc. owns 50% of the capital stock of LR
Aviation, Inc.
SCHEDULE 5.2.2
PERMITTED LIENS
None
EXHIBIT A
REVOLVING CREDIT NOTE
$ Date: October , 1997
------------------------------- ------
Indianapolis, Indiana
FOR VALUE RECEIVED, LILLY INDUSTRIES, INC., an Indiana corporation
("Borrower"), hereby promises to pay without setoff or counterclaim to the order
of
(the "Lender"), or its assigns, at the main office of NBD BANK, N.A.
(the "Agent"), as Agent under the Agreement (hereinafter defined) in the City of
Indianapolis, Indiana, or at such other place as the holder hereof may designate
in writing, the principal sum of Dollars ($ ), or the aggregate unpaid principal
amount
of all Revolving Loans made by the Lender to the Borrower pursuant to Section 2
of the Agreement, in lawful money of the United States of America and in
immediately available funds, together with interest on the unpaid principal
balance existing from time to time at the per annum rates and on the dates set
forth in the Agreement. The Borrower shall pay the principal and accrued and
unpaid interest on the Revolving Loans in full on the Facility Termination Date,
and shall make such mandatory payments as are required to be made under the
terms of Section 2 of the Agreement.
The Lender shall, and is hereby authorized to, record on any schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Revolving Loan under this Note and the date and
amount of each principal payment hereunder.
This Note is issued pursuant to, is entitled to the benefit of, and is
subject to the provisions of that certain Credit Agreement dated as of even date
herewith among Borrower, the lenders party thereto, including the Lender and NBD
Bank, N.A., as the Agent for the Lenders (as the same may be amended from time
to time, the "Agreement"), to which Agreement reference is hereby made for a
statement of the terms and conditions governing this Note, including, without
limitation, the terms and conditions under which this Note may be prepaid or its
maturity date accelerated. Capitalized terms used herein and not otherwise
defined herein are used with the meanings attributed to them in the Agreement.
Subject to any applicable grace or cure period set forth in the
Agreement, if Borrower fails to make the payment of any installment of principal
or interest, as provided in the Agreement, or upon the occurrence of any other
Default, then in any of such events, or at any time thereafter prior to such
Default being cured, the entire principal balance of this Note, and all accrued
and unpaid interest thereon, irrespective of the maturity date specified herein
or in the Agreement, together with reasonable attorneys' fees and other costs
incurred in collecting or enforcing payment or performance
Page 1 of a Note containing Two Pages, dated October , 1997 from LILLY
INDUSTRIES, INC. to .
hereof and with interest from the date of Default on the unpaid principal
balance hereof at the Default rate specified in Section 2.2 of the Agreement,
shall, at the election of the Required Lenders (except as otherwise provided for
automatic acceleration on the occurrence of certain Defaults specified in the
Agreement), and without relief from valuation and appraisement laws, become
immediately due and payable.
Borrower and all endorsers, guarantors, sureties, accommodation parties
hereof and all other parties liable or to become liable for all or any part of
this indebtedness, severally waive demand, presentment for payment, notice of
dishonor, protest and notice of protest and expressly agree that this Note and
any payment coming due under it may be extended or otherwise modified from time
to time without in any way affecting their liability hereunder.
Notice of acceptance of this Note by the Lender is hereby waived.
BORROWER, AFTER CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT WITH
COUNSEL, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LITIGATION BASED UPON OR ARISING OUT OF THIS NOTE OR
ANY OTHER LOAN DOCUMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS NOTE OR
ANY COURSE OF CONDUCT, DEALING, STATEMENTS, WHETHER ORAL OR WRITTEN, OR ACTIONS
OF BORROWER OR ANY OF THE LENDERS. BORROWER SHALL NOT SEEK TO CONSOLIDATE, BY
COUNTERCLAIM OR OTHERWISE, ANY ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH
ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. THESE
PROVISIONS SHALL NOT BE DEEMED TO HAVE BEEN MODIFIED IN ANY RESPECT OR
RELINQUISHED BY THE LENDERS EXCEPT BY WRITTEN INSTRUMENT EXECUTED BY BORROWER,
THE LENDER AND THE OTHER LENDERS.
IN WITNESS WHEREOF, Borrower has caused this Note to be executed by its
duly authorized officer as of the day and year first hereinabove written.
LILLY INDUSTRIES, INC.
By:
Its:
Page 2 of a Note containing Two Pages, dated October , 1997 from LILLY
INDUSTRIES, INC. to .
SCHEDULE OF REVOLVING LOANS
AND PAYMENTS OF PRINCIPAL
BORROWER: LILLY INDUSTRIES, INC.
NOTE DATED: OCTOBER , 1997
Principal Maturity
Amount Type of Interest Amount of Unpaid
Date of Loan of Loan Period Principal Repaid Balance Maturity
---- ------- ------- ------ ---------------- ------- --------
Page 3 of a Note containing Two Pages, dated October , 1997 from LILLY
INDUSTRIES, INC. to .
EXHIBIT A-1
REVOLVING REGISTERED CREDIT NOTE
$ Date: October , 1997
------------------------------- ------
Indianapolis, Indiana
FOR VALUE RECEIVED, LILLY INDUSTRIES, INC., an Indiana corporation
("Borrower"), hereby promises to pay without setoff or counterclaim to the order
of
(the "Lender"), or its assigns, at the main office of NBD BANK, N.A.
(the "Agent"), as Agent under the Agreement (hereinafter defined) in the City of
Indianapolis, Indiana, or at such other place as the holder hereof may designate
in writing, the principal sum of Dollars ($ ), or the aggregate unpaid principal
amount
of all Revolving Loans made by the Lender to the Borrower pursuant to Section 2
of the Agreement, in lawful money of the United States of America and in
immediately available funds, together with interest on the unpaid principal
balance existing from time to time at the per annum rates and on the dates set
forth in the Agreement. The Borrower shall pay the principal and accrued and
unpaid interest on the Revolving Loans in full on the Facility Termination Date,
and shall make such mandatory payments as are required to be made under the
terms of Section 2 of the Agreement.
The Lender shall, and is hereby authorized to, record on any schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Revolving Loan under this Note and the date and
amount of each principal payment hereunder.
This Note is issued pursuant to, is entitled to the benefit of, and is
subject to the provisions of that certain Credit Agreement dated as of even date
herewith among Borrower, the lenders party thereto, including the Lender and NBD
Bank, N.A., as the Agent for the Lenders (as the same may be amended from time
to time, the "Agreement"), to which Agreement reference is hereby made for a
statement of the terms and conditions governing this Note, including, without
limitation, the terms and conditions under which this Note may be prepaid or its
maturity date accelerated. Capitalized terms used herein and not otherwise
defined herein are used with the meanings attributed to them in the Agreement.
Subject to any applicable grace or cure period set forth in the
Agreement, if Borrower fails to make the payment of any installment of principal
or interest, as provided in the Agreement, or upon the occurrence of any other
Default, then in any of such events, or at any time thereafter prior to such
Default being cured, the entire principal balance of this Note, and all accrued
and unpaid interest thereon, irrespective of the maturity date specified herein
or in the Agreement, together with reasonable attorneys' fees and other costs
incurred in collecting or enforcing payment or performance
Page 1 of a Note containing Three Pages, dated October , 1997 from LILLY
INDUSTRIES, INC. to .
hereof and with interest from the date of Default on the unpaid principal
balance hereof at the Default rate specified in Section 2.2 of the Agreement,
shall, at the election of the Required Lenders (except as otherwise provided for
automatic acceleration on the occurrence of certain Defaults specified in the
Agreement), and without relief from valuation and appraisement laws, become
immediately due and payable.
Borrower and all endorsers, guarantors, sureties, accommodation parties
hereof and all other parties liable or to become liable for all or any part of
this indebtedness, severally waive demand, presentment for payment, notice of
dishonor, protest and notice of protest and expressly agree that this Note and
any payment coming due under it may be extended or otherwise modified from time
to time without in any way affecting their liability hereunder.
Notice of acceptance of this Note by the Lender is hereby waived.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR IN THE
CREDIT AGREEMENT, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO AND IN
ACCORDANCE WITH THE REGISTRATION AND OTHER PROVISIONS OF SUBSECTION 10.4 OF THE
CREDIT AGREEMENT.
BORROWER, AFTER CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT
WITH COUNSEL, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY
HAVE TO A TRIAL BY JURY IN ANY LITIGATION BASED UPON OR ARISING OUT OF THIS NOTE
OR ANY OTHER LOAN DOCUMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS NOTE
OR ANY COURSE OF CONDUCT, DEALING, STATEMENTS, WHETHER ORAL OR WRITTEN, OR
ACTIONS OF BORROWER OR ANY OF THE LENDERS. BORROWER SHALL NOT SEEK TO
CONSOLIDATE, BY COUNTERCLAIM OR OTHERWISE, ANY ACTION IN WHICH A JURY TRIAL HAS
BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT
BEEN WAIVED. THESE PROVISIONS SHALL NOT BE DEEMED TO HAVE BEEN MODIFIED IN ANY
RESPECT OR RELINQUISHED BY THE LENDERS EXCEPT BY WRITTEN INSTRUMENT EXECUTED BY
BORROWER, THE LENDER AND THE OTHER LENDERS.
Page 2 of a Note containing Three Pages, dated October , 1997 from LILLY
INDUSTRIES, INC. to .
IN WITNESS WHEREOF, Borrower has caused this Note to be executed by its
duly authorized officer as of the day and year first hereinabove written.
LILLY INDUSTRIES, INC.
By:
Its:
Page 3 of a Note containing Three Pages, dated October , 1997 from LILLY
INDUSTRIES, INC. to .
SCHEDULE OF REVOLVING LOANS
AND PAYMENTS OF PRINCIPAL
BORROWER: LILLY INDUSTRIES, INC.
NOTE DATED: OCTOBER , 1997
Principal Maturity
Amount Type of Interest Amount of Unpaid
Date of Loan of Loan Period Principal Repaid Balance Maturity
---- ------- ------- ------ ---------------- ------- --------
Page 4 of a Note containing Three Pages, dated October , 1997 from LILLY
INDUSTRIES, INC. to .
EXHIBIT B
CREDIT NOTE
(Cash Management Line)
$15,000,000.00 Dated: October 24, 0000
Xxxxxxxxxxxx, Xxxxxxx
FOR VALUE RECEIVED, LILLY INDUSTRIES, INC., an Indiana corporation (the
"Borrower"), hereby promises to pay without setoff or counterclaim to the order
of NBD BANK, N.A., a national banking association ("NBD"), or its assigns, at
its principal office at Indianapolis, Indiana, or at such other place as the
holder hereof may designate in writing, in lawful money of the United States of
America and in immediately available funds, the principal sum of Fifteen Million
Dollars ($15,000,000), or so much thereof as may be advanced and outstanding
from time to time, together with interest on the unpaid principal balance
existing from time to time at the per annum rates and on the dates set forth in
the Agreement (hereinafter defined). The Borrower shall pay the principal and
accrued and unpaid interest on this Note in full on the Facility Termination
Date, and shall make such mandatory payments as are required to be made under
the terms of Section 2 of the Agreement.
NBD shall, and is hereby authorized to, record on any schedule attached
hereto, or to otherwise record in accordance with its usual practice, the date
and amount of each Advance under this Note and the date and amount of each
principal payment hereunder.
This Note is issued pursuant to, is entitled to the benefit of, and is
subject to the provisions of that certain Credit Agreement of even date herewith
among Borrower, the lenders party thereto, and NBD, individually and as Agent
(as the same may be amended from time to time, the "Agreement"), to which
Agreement reference is hereby made for a statement of the terms and conditions
governing this Note, including, without limitation, the terms and conditions
under which this Note may be prepaid or its maturity date accelerated.
Capitalized terms used herein and not otherwise defined herein are used with the
meanings attributed to them in the Agreement.
Subject to any applicable grace or cure period set forth in the
Agreement, if Borrower fails to make the payment of any installment of principal
or interest, as provided in the Agreement, when due, or upon the occurrence of
any other Default, then in any of such events, or at any time thereafter prior
to such Default being cured, the entire principal balance of this Note, and all
accrued and unpaid interest thereon, irrespective of the maturity date specified
herein, together with reasonable attorneys' fees and other costs incurred in
collecting or enforcing payment or performance hereof and with
Page 1 of a Note containing Two Pages dated October 24, 1997 from LILLY
INDUSTRIES, INC. to NBD BANK, N.A.
interest from the date of Default on the unpaid principal balance hereof at the
Default rate specified in Section 2.2 of the Agreement, shall, at the election
of NBD (except as otherwise provided for automatic acceleration on the
occurrence of certain Defaults specified in the Agreement), and without relief
from valuation and appraisement laws, become immediately due and payable.
Borrower and all endorsers, guarantors, sureties, accommodation parties
hereof and all other parties liable or to become liable for all or any part of
this indebtedness, severally waive demand, presentment for payment, notice of
dishonor, protest and notice of protest and expressly agree that this Note and
any payment coming due under it may be extended or otherwise modified from time
to time without in any way affecting their liability hereunder.
Notice of acceptance of this Note by NBD is hereby waived.
BORROWER, AFTER CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT
WITH COUNSEL, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY
HAVE TO A TRIAL BY JURY IN ANY LITIGATION BASED UPON OR ARISING OUT OF THIS NOTE
OR ANY OTHER LOAN DOCUMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS NOTE
OR ANY COURSE OF CONDUCT, DEALING, STATEMENTS, WHETHER ORAL OR WRITTEN, OR
ACTIONS OF BORROWER OR NBD. BORROWER SHALL NOT SEEK TO CONSOLIDATE, BY
COUNTERCLAIM OR OTHERWISE, ANY ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH
ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. THESE
PROVISIONS SHALL NOT BE DEEMED TO HAVE BEEN MODIFIED IN ANY RESPECT OR
RELINQUISHED BY NBD EXCEPT BY WRITTEN INSTRUMENT EXECUTED BY BORROWER AND NBD.
IN WITNESS WHEREOF, Borrower has caused this Note to be executed by its
duly authorized officer as of the day and year first hereinabove written.
LILLY INDUSTRIES, INC.
By:
Xxxx X. Xxxxx, Chief Financial
Officer and Secretary
Page 2 of a Note containing Two Pages dated October 24, 1997 from LILLY
INDUSTRIES, INC. to NBD BANK, N.A.
Page 2 of a Note containing Two Pages dated October 24, 1997 from LILLY
INDUSTRIES, INC. to NBD BANK, N.A.
SCHEDULE OF ADVANCES UNDER CASH MANAGEMENT LINE
AND PAYMENTS OF PRINCIPAL
BORROWER: LILLY INDUSTRIES, INC.
NOTE DATED: OCTOBER 24, 1997
Principal Maturity
Amount Type of Interest Amount of Unpaid
Date of Advance of Advance Period Principal Repaid Balance Maturity
---- ---------- ---------- ------ ---------------- ------- --------
Page 3 of a Note containing Two Pages dated October 24, 1997 from LILLY
INDUSTRIES, INC. to NBD BANK, N.A.
EXHIBIT C
COMPLIANCE CERTIFICATE
To: The Lenders Parties to the
Credit Agreement Described Below
This Compliance Certificate is furnished pursuant to that certain
Credit Agreement dated as of October , 1997 (as amended, modified, renewed or
extended from time to time, the "Agreement") among Lilly Industries, Inc. (the
"Borrower"), the Lenders party thereto and NBD Bank, N.A., as Agent for the
Lenders. Unless otherwise defined herein, capitalized terms used in this
Compliance Certificate have the meanings ascribed thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected Chief Financial Officer of Borrower;
2. I have reviewed the terms of the Agreement and I have made, or have
caused to be made under my supervision, a detailed review of the transactions
and conditions of Borrower and its Subsidiaries during the accounting period
covered by the attached financial statements;
3. The examinations described in paragraph 2 did not disclose, and I
have no knowledge of, the existence of any condition or event which constitutes
a Default or Unmatured Default during or at the end of the accounting period
covered by the attached financial statements or as of the date of this
Certificate, except as set forth below;
4. Schedule I attached hereto sets forth financial data and
computations evidencing Borrower's compliance with certain covenants of the
Agreement, all of which data (in all material respects) and such computations
are true, complete and correct;
5. Schedule II attached hereto sets forth the determination of the
Applicable Commitment Fee and the Applicable Margin to be effective on the Fifth
(5th) Business Day following the delivery hereof;
6. Schedule III attached hereto sets forth the various reports and
deliveries which are required under the Credit Agreement and the other Loan
Documents and the status of compliance; and
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Described below are the exceptions, if any, to paragraph 3 by listing,
in detail, the nature of the condition or event, the period during which it has
existed and the action which Borrower has taken, is taking, or proposes to take
with respect to each such condition or event:
The foregoing certifications, together with the computations set forth
in Schedule I and Schedule II hereto and the financial statements delivered with
this Certificate in support hereof, are made and delivered this day of , .
LILLY INDUSTRIES, INC.
By:
Its:
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SCHEDULE I TO COMPLIANCE CERTIFICATE
Compliance as of _________, with
Provisions of and of
the Agreement
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SCHEDULE II TO COMPLIANCE CERTIFICATE
Determination of the Applicable Commitment Fee
and the Applicable Margin
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SCHEDULE III TO COMPLIANCE CERTIFICATE
Reports and Deliveries
-5-
EXHIBIT D
LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION
To NBD Bank, N.A.
as Agent (the "Agent") under the Credit Agreement
Described Below.
Re: Credit Agreement, dated October 24, 1997 (as the same may be amended or
modified, the "Credit Agreement"), among Lilly Industries, Inc. (the
"Borrower"), the Lenders named therein and the Agent. Capitalized terms
used herein and not otherwise defined herein shall have the meanings
assigned thereto in the Credit Agreement.
The Agent is specifically authorized and directed to act upon the
following standing money transfer instructions with respect to the proceeds of
Advances or other extensions of credit from time to time until receipt by the
Agent of a specific written revocation of such instructions by the Borrower,
provided, however, that the Agent may otherwise transfer funds as hereafter
directed in writing by the Borrower in accordance with Section 11.12 of the
Credit Agreement or based on any telephonic notice made in accordance with
Section 2.4.1 of the Credit Agreement.
Facility Identification Number(s):
Customer/Account Name
Transfer Funds To
For Account No.
Reference/Attention To
Authorized Officer (Customer Representative) Date
(Please Print) Signature
Bank Officer Name Date
(Please Print) Signature
(Deliver Completed Form to Credit Support Staff For Immediate Processing)
EXHIBIT E
ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignment Agreement") between
(the
"Assignor") and (the "Assignee") is dated as of , .
The parties hereto agree as follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to a Credit Agreement
(which, as it may be amended, modified, renewed or extended from time to time is
herein called the "Credit Agreement") described in Item 1 of Schedule 1 attached
hereto ("Schedule 1"). Capitalized terms used herein and not otherwise defined
herein shall have the meanings attributed to them in the Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and assigns to
the Assignee, and the Assignee hereby purchases and assumes from the Assignor,
an interest in and to the Assignor's rights and obligations under the Credit
Agreement such that after giving effect to such assignment the Assignee shall
have purchased pursuant to this Assignment Agreement the percentage interest
specified in Item 3 of Schedule 1 of all outstanding rights and obligations
under the Credit Agreement relating to the facilities listed in Item 3 of
Schedule 1 and the other Loan Documents. The aggregate Commitment (or Loans, if
the applicable Commitment has been terminated) purchased by the Assignee
hereunder is set forth in Item 4 of Schedule 1.
3. EFFECTIVE DATE. The effective date of this Assignment Agreement (the
"Effective Date") shall be the later of the date specified in Item 5 of Schedule
1 or two Business Days (or such shorter period agreed to by the Agent) after a
Notice of Assignment substantially in the form of Exhibit I attached hereto has
been delivered to the Agent. Such Notice of Assignment must include any consents
required to be delivered to the Agent by Section 10.4 of the Credit Agreement.
In no event will the Effective Date occur if the payments required to be made by
the Assignee to the Assignor on the Effective Date under Sections 4 and 5 hereof
are not made on the proposed Effective Date. The Assignor will notify the
Assignee of the proposed Effective Date no later than the Business Day prior to
the proposed Effective Date. As of the Effective Date, (a) the Assignee shall
have the rights and obligations of a Lender under the Loan Documents with
respect to the rights and obligations assigned to the Assignee hereunder, and
(b) the Assignor shall relinquish its rights and be released from its
corresponding obligations under the Loan Documents with respect to the rights
and obligations assigned to the Assignee hereunder.
4. PAYMENTS OBLIGATIONS. On and after the Effective Date, the Assignee
shall be entitled to receive from the Agent all payments of principal, interest
and fees with respect to the interest assigned hereby. The Assignee shall
advance funds directly to the Agent with respect to all Loans and reimbursement
payments made on or after the Effective Date with respect to the interest
assigned hereby. [In consideration for the sale and assignment of Loans
hereunder, (a) the Assignee shall pay the Assignor, on the Effective Date, an
amount equal to the principal amount of the portion
-1-
of all Eurodollar Loans assigned to the Assignee hereunder, and (b) with respect
to each ABR Loan made by the Assignor and assigned to the Assignee hereunder
which is outstanding on the Effective Date, (i) on the last day of the Interest
Period therefor, or (ii) on such earlier date agreed to by the Assignor and the
Assignee, or (iii) on the date on which any such ABR Loan either becomes due (by
acceleration or otherwise) or is prepaid (the date as described in the foregoing
clauses (i), (ii) or (iii) being hereinafter referred to as the "Payment Date"),
the Assignee shall pay the Assignor an amount equal to the principal amount of
the portion of such ABR Loan assigned to the Assignee which is outstanding on
the Payment Date. If the Assignor and the Assignee agree that the Payment Date
for such ABR Loan shall be the Effective Date, they shall agree to the interest
rate applicable to the portion of such Loan assigned hereunder for the period
from the Effective Date to the end of the existing Interest Period applicable to
such ABR Loan (the "Agreed Interest Rate") and any interest received by the
Assignee in excess of the Agreed Interest Rate shall be remitted to the
Assignor. In the event interest for the period from the Effective Date to, but
not including, the Payment Date is not paid by Borrower with respect to any ABR
Loan sold by the Assignor to the Assignee hereunder, the Assignee shall pay to
the Assignor interest for such period on the portion of such ABR Loan sold by
the Assignor to the Assignee hereunder at the applicable rate provided by the
Credit Agreement. In the event a prepayment of any ABR Loan which is existing on
the Payment Date and assigned by the Assignor to the Assignee hereunder occurs
after the Payment Date but before the end of the Interest Period applicable to
such ABR Loan, the Assignee shall remit to the Assignor the excess of the
prepayment penalty paid with respect to the portion of such ABR Loan assigned to
the Assignee hereunder over the amount which would have been paid if such
prepayment penalty was calculated based on the Agreed Interest Rate. The
Assignee will also promptly remit to the Assignor (y) any principal payments
received from the Agent with respect to ABR Loans prior to the Payment Date, and
(z) any amounts of interest on Loans and fees received from the Agent which
relate to the portion of the Loans assigned to the Assignee hereunder for
periods prior to the Effective Date, in the case of Eurodollar Loans or fees, or
the Payment Date, in the case of ABR Loans, and not previously paid by the
Assignee to the Assignor.]* In the event that either party hereto receives any
payment to which the other party hereto is entitled under this Assignment
Agreement, then the party receiving such amount shall promptly remit it to the
other party hereto.
*Each Assignor may insert its standard payment provisions in lieu of the payment
terms included in this Exhibit.
5. FEES PAYABLE BY THE ASSIGNEE. The Assignee shall pay to the Assignor
a fee on each day on which a payment of interest or [commitment] fees is made
under the Credit Agreement with respect to the amounts assigned to the Assignee
hereunder (other than a payment of interest or commitment fees for the period
prior to the Effective Date or, in the case of ABR Loans, the Payment Date,
which the Assignee is obligated to deliver to the Assignor pursuant to Section 4
hereof). The amount of such fee shall be the difference between (a) the interest
or fee, as applicable, paid with respect to the amounts assigned to the Assignee
hereunder, and (b) the interest or fee, as applicable, which would have been
paid with respect to the amounts assigned to the Assignee hereunder if each
interest rate was of 1% less than the interest rate paid by Borrower or if the
commitment fee was of 1% less than the commitment fee paid by Borrower, as
applicable.
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In addition, the Assignee agrees to pay % of the recordation fee required to be
paid to the Agent in connection with this Assignment Agreement.
6. REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE
ASSIGNOR'S LIABILITY. The Assignor represents and warrants that it is the legal
and beneficial owner of the interest being assigned by it hereunder and that
such interest is free and clear of any adverse claim created by the Assignor. It
is understood and agreed that the assignment and assumption hereunder are made
without recourse to the Assignor and that the Assignor makes no other
representation or warranty of any kind to the Assignee. Neither the Assignor nor
any of its officers, directors, employees, agents or attorneys shall be
responsible for (a) the due execution, legality, validity, enforceability,
genuineness, sufficiency or collect ability of any Loan Document, including
without limitation, documents granting the Assignor and the other Lenders a
security interest in assets of Borrower or any guarantor, (b) any
representation, warranty or statement made in or in connection with any of the
Loan Documents, (c) the financial condition or creditworthiness of Borrower or
any guarantor, (d) the performance of or compliance with any of the terms or
provisions of any of the Loan Documents, (e) inspecting any of the Property,
books or records of Borrower, (f) the validity, enforceability, perfection,
priority, condition, value or sufficiency of any collateral securing or
purporting to secure the Loans, or (g) any mistake, error of judgment, or action
taken or omitted to be taken in connection with the Loans or the Loan Documents.
7. REPRESENTATIONS OF THE ASSIGNEE. The Assignee (a) confirms that it
has received a copy of the Credit Agreement, together with copies of the
financial statements requested by the Assignee and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment Agreement, (b) agrees that it will,
independently and without reliance upon the Agent, the Assignor or any other
Lender and based on such documents and information at it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under the Loan Documents, (c) appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers under the Loan
Documents as are delegated to the Agent by the terms thereof, together with such
powers as are reasonably incidental thereto, (d) agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Loan Documents are required to be performed by it as a Lender, (e) agrees that
its payment instructions and notice instructions are as set forth in the
attachment to Schedule 1, (f) confirms that none of the funds, monies, assets or
other consideration being used to make the purchase and assumption hereunder are
"plan assets" as defined under ERISA and that its rights, benefits and interests
in and under the Loan Documents will not be "plan assets" under ERISA, [(g)
confirms that it is an Eligible Transferee,]* [and (h) attaches the forms
prescribed by the Internal Revenue Service of the United States certifying that
the Assignee is entitled to receive payments under the Loan Documents without
deduction or withholding of any United States federal income taxes].**
*to be inserted if required by the Credit Agreement.
**to be inserted if the Assignee is not incorporated under the laws of the
United States, or a state thereof.
8. INDEMNITY. The Assignee agrees to indemnify and hold the Assignor
harmless against any and all losses, costs and expenses (including, without
limitation, reasonable attorneys'
-3-
fees) and liabilities incurred by the Assignor in connection with or arising in
any manner from the Assignee's non-performance of the obligations assumed under
this Assignment Agreement.
9. SUBSEQUENT ASSIGNMENTS. After the Effective Date, the Assignee shall
have the right pursuant to Section 10.3.1 of the Credit Agreement to assign the
rights which are assigned to the Assignee hereunder to any entity or person,
provided that (a) any such subsequent assignment does not violate any of the
terms and conditions of the Loan Documents or any law, rule, regulation, order,
writ, judgment, injunction or decree and that any consent required under the
terms of the Loan Documents has been obtained, and (b) unless the prior written
consent of the Assignor is obtained, the Assignee is not thereby released from
its obligations to the Assignor hereunder, if any remain unsatisfied, including,
without limitation, its obligations under Sections 4, 5 and 8 hereof.
10. REDUCTIONS OF AGGREGATE COMMITMENT. If any reduction in the
aggregate Commitment occurs between the date of this Assignment Agreement and
the Effective Date, the percentage interest specified in Item 3 of Schedule 1
shall remain the same, but the dollar amount purchased shall be recalculated
based on the reduced aggregate Commitment.
11. ENTIRE AGREEMENT. This Assignment Agreement and the attached Notice
of Assignment embody the entire agreement and understanding between the parties
hereto and supersede all prior agreements and understandings between the parties
hereto relating to the subject matter hereof.
12. GOVERNING LAW. This Assignment Agreement shall be governed by the
internal law, and not the law of conflicts, of the State of Indiana.
13. NOTICES. Notices shall be given under this Assignment Agreement in
the manner set forth in the Credit Agreement. For the purpose hereof, the
addresses of the parties hereto (until notice of a change is delivered) shall be
the address set forth in the attachment to Schedule 1.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement by their duly authorized officers as of the date first above written.
"ASSIGNOR"
By:
Title:
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"ASSIGNEE"
By:
Title:
-5-
SCHEDULE 1
to Assignment Agreement
1. Description and Date of Credit Agreement:
2. Date of Assignment Agreement: , 19
3. Amounts (As of date of Item 2 above):
Revolving Credit Loans
a. Total of Commitments
(Loans)* under
Credit Agreement $
b. Assignee's Percentage
of each Facility purchased
under the Assignment
Agreement** %
c. Amount of Assigned Share in
each Facility purchased under
the Assignment
Agreement $
4. Assignee's Aggregate (Loan
Amount)** Commitment Amount
Purchased Hereunder: $
5. Proposed Effective Date:
Accepted and Agreed:
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: By:
Title: Title:
* If a Commitment has been terminated, insert outstanding Loans in place
of Commitment
** Percentage taken to 10 decimal places
-6-
Attachment to SCHEDULE 1 to ASSIGNMENT AGREEMENT
Attach Assignor's Administrative Information Sheet, which must include
notice address for the Assignor and the Assignee
-7-
EXHIBIT I
to Assignment Agreement
NOTICE
OF ASSIGNMENT
, 19
To: [NAME OF BORROWER]*
[NAME OF AGENT]
From: [NAME OF ASSIGNOR] (the "Assignor")
[NAME OF ASSIGNEE] (the "Assignee")
1. We refer to that Credit Agreement (the "Credit Agreement") described
in Item 1 of Schedule 1 attached hereto ("Schedule 1"). Capitalized terms used
herein and not otherwise defined herein shall have the meanings attributed to
them in the Credit Agreement.
2. This Notice of Assignment (this "Notice") is given and delivered to
****[Borrower and]**** the Agent pursuant to Section 10.3.2 of the Credit
Agreement.
3. The Assignor and the Assignee have entered into an Assignment
Agreement, dated as of , 19 (the "Assignment"), pursuant to which, among other
things, the Assignor has sold, assigned, delegated and transferred to the
Assignee, and the Assignee has purchased, accepted and assumed from the Assignor
the percentage interest specified in Item 3 of Schedule 1 of all outstandings,
rights and obligations under the Credit Agreement relating to the facilities
listed in Item 3 of Schedule 1. The Effective Date of the Assignment shall be
the later of the date specified in Item 5 of Schedule 1 or two Business Days (or
such shorter period as agreed to by the Agent) after this Notice of Assignment
and any consents and fees required by Sections 10.3.1 and 10.3.2 of the Credit
Agreement have been delivered to the Agent, provided that the Effective Date
shall not occur if any condition precedent agreed to by the Assignor and the
Assignee has not been satisfied.
*To be included only if consent must be obtained from Borrower pursuant to
Section 10.3.1 of the Credit Agreement.
-8-
4. The Assignor and the Assignee hereby give to Borrower and the Agent
notice of the assignment and delegation referred to herein. The Assignor will
confer with the Agent before the date specified in Item 5 of Schedule 1 to
determine if the Assignment Agreement will become effective on such date
pursuant to Section 3 hereof, and will confer with the Agent to determine the
Effective Date pursuant to Section 3 hereof if it occurs thereafter. The
Assignor shall notify the Agent if the Assignment Agreement does not become
effective on any proposed Effective Date as a result of the failure to satisfy
the conditions precedent agreed to by the Assignor and the Assignee.
At the request of the Agent, the Assignor will give the Agent written
confirmation of the satisfaction of the conditions precedent.
5. The Assignor or the Assignee shall pay to the Agent on or before the
Effective Date the processing fee of $3,500 required by Section 10.3.2 of the
Credit Agreement.
6. If Notes are outstanding on the Effective Date, the Assignor and the
Assignee request and direct that the Agent prepare and cause Borrower to execute
and deliver new Notes or, as appropriate, replacements notes, to the Assignor
and the Assignee. The Assignor and, if applicable, the Assignee each agree to
deliver to the Agent the original Note received by it from Borrower upon its
receipt of a new Note in the appropriate amount.
7. The Assignee advises the Agent that notice and payment instructions
are set forth in the attachment to Schedule 1.
8. The Assignee hereby represents and warrants that none of the funds,
monies, assets or other consideration being used to make the purchase pursuant
to the Assignment are "plan assets" as defined under ERISA and that its rights,
benefits, and interests in and under the Loan Documents will not be "plan
assets" under ERISA.
9. The Assignee authorizes the Agent to act as its agent under the Loan
Documents in accordance with the terms thereof. The Assignee acknowledges that
the Agent has no duty to supply information with respect to Borrower or the Loan
Documents to the Assignee until the Assignee becomes a party to the Credit
Agreement.*
*May be eliminated if Assignee is a party to the Credit Agreement prior to the
Effective Date.
NAME OF ASSIGNOR NAME OF ASSIGNEE
By: By:
Title: Title:
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ACKNOWLEDGED [AND CONSENTED TO] ACKNOWLEDGED [AND CONSENTED TO]
BY [NAME OF AGENT] BY [NAME OF BORROWER]
By: By:
Title: Title:
[Attach photocopy of Schedule 1 to Assignment]
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