Exhibit 1
LOAN AGREEMENT
Dated as of July 12, 2001
among
THE LENDERS NAMED HEREIN
and
SPECIAL VALUE INVESTMENT MANAGEMENT, LLC
as Agent
and
UNOVA, INC.
and
ITS SUBSIDIARIES PARTY HERETO,
as Borrowers
TABLE OF CONTENTS
Section Page
ARTICLE 1 TERM LOAN...............................................................................................1
1.1 Term Loan.......................................................................................1
ARTICLE 2 INTEREST AND FEES.......................................................................................2
2.1 Interest........................................................................................2
2.2 Continuation and Conversion of LIBOR Interest Periods; Conversion Into Base Rate Loans..........3
2.3 Maximum Interest Rate...........................................................................4
2.4 Fees............................................................................................4
ARTICLE 3 PAYMENTS AND PREPAYMENTS................................................................................4
3.1 Mandatory Prepayments...........................................................................4
3.2 Optional Prepayment.............................................................................5
3.3 Payments by the Borrowers.......................................................................5
3.4 Indemnity for Returned Payments.................................................................6
ARTICLE 4 TAXES, YIELD PROTECTION AND ILLEGALITY..................................................................6
4.1 Taxes...........................................................................................6
4.2 Illegality......................................................................................9
4.3 Increased Costs and Reduction of Return.........................................................9
4.4 Funding Losses.................................................................................10
4.5 Inability to Determine Rates...................................................................10
4.6 Certificates of Lender.........................................................................11
4.7 Registration of Term Notes.....................................................................11
4.8 Survival.......................................................................................11
ARTICLE 5 BOOKS AND RECORDS; FINANCIAL INFORMATION; NOTICES......................................................11
5.1 Books and Records..............................................................................11
5.2 Financial Information..........................................................................12
5.3 Notices to the Lenders.........................................................................14
ARTICLE 6 GENERAL WARRANTIES AND REPRESENTATIONS.................................................................17
6.1 Authorization, Validity, and Enforceability of this Agreement and the Loan Documents...........17
6.2 Validity and Priority of Security Interest.....................................................17
6.3 Organization and Qualification.................................................................18
6.4 Corporate Name; Prior Transactions.............................................................18
6.5 Subsidiaries and Affiliates....................................................................18
6.6 Financial Statements and Projections...........................................................19
6.7 Capitalization.................................................................................19
6.8 Solvency.......................................................................................19
6.9 Debt...........................................................................................19
6.10 Distributions..................................................................................20
6.11 Real Estate; Leases............................................................................20
6.12 Proprietary Rights.............................................................................20
6.13 Trade Names....................................................................................21
6.14 Litigation.....................................................................................21
6.15 Labor Disputes.................................................................................21
6.16 [Intentionally Omitted]........................................................................21
6.17 No Violation of Law............................................................................21
6.18 No Default.....................................................................................21
6.19 ERISA Compliance...............................................................................21
6.20 Taxes..........................................................................................22
6.21 Regulated Entities.............................................................................22
6.22 Use of Proceeds; Margin Regulations............................................................22
6.23 Copyrights, Patents, Trademarks and Licenses, etc..............................................23
6.24 No Material Adverse Change.....................................................................23
6.25 Full Disclosure................................................................................23
6.26 Material Agreements............................................................................23
6.27 Bank Accounts..................................................................................23
6.28 Governmental Authorization.....................................................................23
6.29 Transfer Pricing Between Affiliates............................................................24
ARTICLE 7 AFFIRMATIVE AND NEGATIVE COVENANTS.....................................................................24
7.1 Taxes and Other Obligations....................................................................24
7.2 Legal Existence and Good Standing..............................................................24
7.3 Compliance with Law and Agreements; Maintenance of Licenses....................................25
7.4 Maintenance of Property; Inspection of Property................................................25
7.5 Insurance......................................................................................25
7.6 Insurance and Condemnation Proceeds............................................................26
7.7 [Intentionally Omitted]........................................................................26
7.8 Compliance with ERISA..........................................................................26
7.9 Mergers, Consolidations or Sales...............................................................26
7.10 Distributions; Capital Change; Restricted Investments..........................................28
7.11 Transactions Affecting Collateral or Obligations...............................................28
7.12 Guaranties.....................................................................................28
7.13 Debt...........................................................................................29
7.14 Prepayment.....................................................................................30
7.15 Transactions with Affiliates...................................................................30
7.16 Investment Banking and Finder's Fees...........................................................30
7.17 Business Conducted.............................................................................31
7.18 Liens..........................................................................................31
7.19 Sale and Leaseback Transactions................................................................31
7.20 New Subsidiaries...............................................................................32
7.21 Fiscal Year....................................................................................32
7.22 Fixed Charge Coverage Ratio....................................................................32
7.23 Minimum EBITDA.................................................................................34
7.24 Minimum Tangible Net Worth.....................................................................34
7.25 Capital Expenditures...........................................................................34
7.26 [Intentionally Omitted]........................................................................35
7.27 Use of Proceeds................................................................................35
7.28 Additional Borrowers...........................................................................35
7.29 Foreign Subsidiaries Stock Pledge..............................................................35
7.30 Further Assurances.............................................................................35
ARTICLE 8 CONDITIONS OF LENDING..................................................................................35
8.1 Conditions Precedent to Making of the Term Loan on the Closing Date............................35
ARTICLE 9 DEFAULT; REMEDIES......................................................................................38
9.1 Events of Default..............................................................................38
9.2 Remedies.......................................................................................41
ARTICLE 10 TERM..................................................................................................42
10.1 Term...........................................................................................42
ARTICLE 11 AMENDMENTS; WAIVERS; PARTICIPATIONS; ASSIGNMENTS; SUCCESSORS..........................................42
11.1 Amendments and Waivers.........................................................................42
11.2 Assignments; Participations....................................................................44
ARTICLE 12 THE AGENT.............................................................................................46
12.1 Appointment and Authorization..................................................................46
12.2 Delegation of Duties...........................................................................47
12.3 Liability of Agent.............................................................................47
12.4 Reliance by Agent..............................................................................47
12.5 Notice of Default..............................................................................47
12.6 Credit Decision................................................................................48
12.7 Indemnification................................................................................48
12.8 Agent in Individual Capacity...................................................................49
12.9 Successor Agent................................................................................49
12.10 Withholding Tax................................................................................49
12.11 Collateral Matters.............................................................................51
12.12 Restrictions on Actions by Lenders; Sharing of Payments........................................52
12.13 Agency for Perfection..........................................................................52
12.14 Concerning the Collateral and the Related Loan Documents.......................................53
12.15 Field Audit and Examination Reports; Disclaimer by Lenders.....................................53
12.16 Relation Among Lenders.........................................................................54
12.17 Co-Agents......................................................................................54
ARTICLE 13 MISCELLANEOUS.........................................................................................54
13.1 No Waivers; Cumulative Remedies................................................................54
13.2 Severability...................................................................................54
13.3 Governing Law; Choice of Forum; Service of Process.............................................54
13.4 WAIVER OF JURY TRIAL...........................................................................56
13.5 Survival of Representations and Warranties.....................................................57
13.6 Other Security and Guaranties..................................................................57
13.7 Fees and Expenses..............................................................................57
13.8 Notices........................................................................................58
13.9 Waiver of Notices..............................................................................59
13.10 Binding Effect.................................................................................59
13.11 Indemnity of the Agent and the Lenders by the Borrowers........................................59
13.12 Limitation of Liability........................................................................60
13.13 Final Agreement................................................................................60
13.14 Counterparts...................................................................................61
13.15 Captions...................................................................................... 61
13.16 Right of Setoff................................................................................61
13.17 Confidentiality................................................................................61
13.18 Conflicts with Other Loan Documents............................................................62
13.19 Joint and Several Liability....................................................................62
13.20 Contribution and Indemnification among the Borrowers...........................................63
13.21 Additional Rights or Contribution..............................................................64
13.22 Agency of Parent for each other Borrower.......................................................64
ANNEXES, EXHIBITS AND SCHEDULES
ANNEX A - DEFINED TERMS
EXHIBIT A - FORM OF TERM NOTE
EXHIBIT B - FORM OF NOTICE OF CONVERSION
EXHIBIT C - FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
EXHIBIT D - FORM OF SECTION 4.1(d) CERTIFICATE
SCHEDULE 1.2 - LENDERS' COMMITMENTS (ANNEX A - DEFINED TERMS)
SCHEDULE 6.3 - ORGANIZATION AND QUALIFICATIONS
SCHEDULE 6.4 - CORPORATE NAMES; PRIOR TRANSACTIONS
SCHEDULE 6.5 - SUBSIDIARIES AND AFFILIATES
SCHEDULE 6.7 - CAPITALIZATION
SCHEDULE 6.9 - DEBT
SCHEDULE 6.10 - DISTRIBUTIONS
SCHEDULE 6.11 - REAL ESTATE; LEASES
SCHEDULE 6.12 - PROPRIETARY RIGHTS
SCHEDULE 6.13 - TRADE NAMES
SCHEDULE 6.14 - LITIGATION
SCHEDULE 6.15 - LABOR DISPUTES
SCHEDULE 6.16 - ENVIRONMENTAL LAW
SCHEDULE 6.19 - ERISA COMPLIANCE
SCHEDULE 6.26 - MATERIAL AGREEMENTS
SCHEDULE 6.27 - BANK ACCOUNTS
SCHEDULE 7.9 - CERTAIN TRANSACTIONS
SCHEDULE 7.12 - GUARANTIES OF PERMITTED DEBT
SCHEDULE 7.19 - SALE AND LEASEBACK TRANSACTIONS
SCHEDULE 8.1(o) - FOREIGN BANK AND CORPORATE GUARANTIES TO BANKS
LOAN AGREEMENT
This Loan Agreement dated as of July 12, 2001 (this "Agreement")
among the lenders from time to time parties hereto (such lenders, together
with their respective successors and assigns, are referred to hereinafter
each individually as a "Lender" and collectively as the "Lenders"), SPECIAL
VALUE INVESTMENT MANAGEMENT, LLC, with an office at 00000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx 00000, as administrative and
collateral agent for the Lenders (in its capacity as administrative and
collateral agent, the "Agent"), and UNOVA, INC., a Delaware corporation
(the "Parent"), UNOVA INDUSTRIAL AUTOMATION SYSTEMS, INC., a Delaware
corporation, INTERMEC TECHNOLOGIES CORPORATION, a Washington corporation,
R&B MACHINE TOOL COMPANY, a Michigan corporation, X.X. XXXXXXXX COMPANY, a
Michigan corporation, M M & E, INC., a Nevada corporation, INTERMEC IP
CORP., a Delaware corporation, and UNOVA IP CORP., a Delaware corporation
(each individually a "Borrower" and all collectively the "Borrowers").
W I T N E S S E T H:
WHEREAS, the Borrowers have requested the Lenders to make
available to the Borrowers a term loan in an amount not to exceed
$75,000,000 and which extension of credit the Borrowers will use for the
purposes permitted hereunder;
WHEREAS, capitalized terms used in this Agreement and not
otherwise defined herein shall have the meanings ascribed thereto in Annex
A which is attached hereto and incorporated herein; the rules of
construction contained therein shall govern the interpretation of this
Agreement, and all Annexes, Exhibits and Schedules attached hereto are
incorporated herein by reference;
WHEREAS, the Lenders have agreed to make available to the
Borrowers a term loan upon the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the mutual conditions and
agreements set forth in this Agreement, and for good and valuable
consideration, the receipt of which is hereby acknowledged, the Lenders,
the Agent, and the Borrowers hereby agree as follows.
ARTICLE 1
TERM LOAN
1.1 Term Loan. Each Lender severally agrees, upon the terms and
subject to the conditions set forth in this Agreement, to make a term loan
(collectively, the "Term Loan") to the Borrowers in a single borrowing on
the Closing Date, in a principal amount not to exceed such Lender's Term
Commitment. The Borrowers shall execute and deliver to each Lender a
promissory note in the principal amount of the Lender's Pro Rata Share of
the Term Loan, dated the date hereof and in substantially the form of
Exhibit A (each a "Term Note" and, collectively, the "Term Notes"). Each
Term Note shall represent the joint and several obligation of each of the
Borrowers to repay the applicable Lender's Pro Rata Share of the unpaid
principal amount of the Term Loan together with interest thereon as
prescribed in Section 2.1. The entire unpaid balance of the Term Loan and
all other non-contingent Obligations shall be immediately due and payable
in full in immediately available funds on the Maturity Date. Any portion of
the Term Commitments that are not funded as of the Closing Date shall
expire and be of no further force or effect. Any portion of the Term Loan
that is prepaid cannot be reborrowed.
ARTICLE 2
INTEREST AND FEES
2.1 Interest.
(a) Interest Rates. The outstanding principal amount of the
Term Loan and all other monetary Obligations that are outstanding from time
to time (including, to the extent permitted by law, interest not paid when
due) shall bear interest from the Closing Date (in the case of the Term
Loan) or the date such Obligation is due and payable (in the case of all
other Obligations), until paid in full in cash at a per annum rate
determined by reference to the LIBOR Rate or, at the election of the
Borrowers, the Base Rate) as set forth below. Accrued interest shall be
computed on the basis of a year of 360 days and actual days elapsed. The
Borrowers shall pay to each Lender interest accrued on its Pro Rata Share
of all Base Rate Loans in arrears on the first Business Day of each
calendar month commencing August 1, 2001 (each an "Interest Payment Date").
The Borrowers shall pay to each Lender interest accrued on its Pro Rata
Share of all LIBOR Rate Loans in arrears on each LIBOR Interest Payment
Date. Except as otherwise provided herein, the outstanding Obligations
shall bear interest as follows:
(i) While any portion of the Term Loan is a LIBOR Rate Loan,
at a per annum rate equal to the LIBOR Rate plus the Applicable
Margin;
(ii) While any portion of the Term Loan is a Base Rate Loan,
and with respect to all other Obligations, at a fluctuating per
annum rate equal to the Base Rate plus the Applicable Margin.
Each change in the Base Rate shall be reflected in the interest
rate applicable to Base Rate Loans as of the effective date of such change.
The foregoing notwithstanding, at no time shall any portion of the
Obligations bear interest at a per annum rate less than 13.0%. To the
extent that interest accrued hereunder at the rate set forth herein would
be less than the foregoing minimum rate, the interest rate chargeable
hereunder for the applicable period automatically shall be deemed increased
to the minimum rate.
(b) Default Rate. If any Default or Event of Default occurs
and is continuing then, while any such Default or Event of Default is
continuing, all of the Obligations shall bear interest at the Default Rate
applicable thereto.
2.2 Continuation and Conversion of LIBOR Interest Periods;
Conversion Into Base Rate Loans.
(a) So long as no Event of Default exists, and to the extent
no circumstances described in Section 4.2 exists, on the last day of an
Interest Period of a LIBOR Rate Loan, the portion of the Term Loan that is
a LIBOR Rate Loan shall, without further action by the Borrowers, the Agent
or any Lender, be continued as a LIBOR Rate Loan for a successive Interest
Period.
(b) If an Event of Default exists on the last day of an
Interest Period of a LIBOR Rate Loan or any circumstance described in
Section 4.2 or 4.5 then exists, such LIBOR Rate Loan (or, in the event
circumstances described in Section 4.2 exist with respect to one or more
Lenders, the affected portion of the LIBOR Rate Loan) shall, without
further action by the Borrowers, the Agent, or any Lender, convert into a
Base Rate Loan.
(c) On the last day of an Interest Period of a LIBOR Rate
Loan, Borrowers may elect to convert all or a part of such LIBOR Rate Loan
into a Base Rate Loan.
(d) At any time that all or a part of the Term Loan is a
Base Rate Loan, the Borrowers may elect (subject to Section 2.2(f)), as of
any Business Day, to convert the Base Rate Loan (or any part thereof in an
amount not less than $5,000,000, or that is in an integral multiple of
$1,000,000 in excess thereof) into a LIBOR Rate Loan; provided, however,
that the Borrowers may not so convert a Base Rate Loan into a LIBOR Rate
Loan to the extent circumstances described in Section 4.2 or 4.5 exist on
such Business Day; provided, further, that if an Event of Default has
occurred and is continuing, the Borrowers shall have no right to convert a
Base Rate Loan into a LIBOR Rate Loan.
(e) If the Borrowers desire to convert all or a part of a
Base Rate Loan into a LIBOR Rate Loan, the Borrowers shall deliver a notice
of conversion ("Notice of Conversion") to the Agent not later than 2:00
p.m. (Los Angeles, California time) at least three (3) Business Days in
advance of the Conversion Date, and specifying:
(i) the proposed Conversion Date;
(ii) the portion of the Term Loan to be converted or
renewed;
(iii) the types of the respective portions of the Term Loan
resulting from the proposed conversion or continuation; and
(iv) the duration of the requested Interest Period,
provided, however, the Borrowers may not select an Interest Period
that ends after the Maturity Date.
(f) The Agent will promptly notify each affected Lender of
its receipt of a Notice of Conversion.
(g) There may not be more than five (5) Interest Periods in
respect of the Term Loan while it is a LIBOR Rate Loan in effect hereunder
at any time.
2.3 Maximum Interest Rate. Notwithstanding Section 2.1(a) and (b),
in no event shall any interest rate provided for hereunder exceed the
maximum rate legally chargeable by any Lender under applicable law for such
Lender with respect to loans of the type provided for hereunder (the
"Maximum Rate"). If, in any month, any interest rate, absent such
limitation, would have exceeded the Maximum Rate, then the interest rate
for that month shall be the Maximum Rate, and, if in future months, that
interest rate would otherwise be less than the Maximum Rate, then that
interest rate shall remain at the Maximum Rate until such time as the
amount of interest paid hereunder equals the amount of interest which would
have been paid if the same had not been limited by the Maximum Rate. In the
event that, upon payment in full of the Obligations, the total amount of
interest paid or accrued under the terms of this Agreement is less than the
total amount of interest which would, but for this Section 2.3, have been
paid or accrued if the interest rate otherwise set forth in this Agreement
had at all times been in effect, then the Borrowers shall, to the extent
permitted by applicable law, pay the Agent, for the account of the Lenders,
an amount equal to the excess of (a) the lesser of (i) the amount of
interest which would have been charged if the Maximum Rate had, at all
times, been in effect or (ii) the amount of interest which would have
accrued had the interest rate otherwise set forth in this Agreement, at all
times, been in effect over (b) the amount of interest actually paid or
accrued under this Agreement. If a court of competent jurisdiction
determines that the Agent and/or any Lender has received interest and other
charges hereunder in excess of the Maximum Rate, such excess shall be
deemed received on account of, and shall automatically be applied to
reduce, the Obligations other than interest, ratably among the Lenders on
the basis of their respective Pro Rata Shares of the Term Loan, and if
there are no Obligations outstanding, the Agent and/or such Lender shall
refund to the Borrowers such excess.
2.4 Fees. The Borrowers agree to pay the Agent on the Closing
Date, for its solely and separate account and not the account of any
Lender, a closing fee in the amount set forth in a separate letter
agreement dated as of May 15, 2001 between the Parent and the Agent.
ARTICLE 3
PAYMENTS AND PREPAYMENTS
3.1 Mandatory Prepayments
(a) The Borrowers shall repay the Term Loan in full in cash
and pay all other non-contingent monetary Obligations that are then due and
payable on the Maturity Date.
(b) The Borrowers shall prepay the Term Loan, in whole or in
part, and pay all accrued but unpaid interest on the portion so prepaid, on
a pro rata basis among the Lenders in accordance with their respective Pro
Rata Shares of the Term Loan on the date that any Borrower receives the Net
Cash Proceeds from (i) the sale of any Designated Collateral, or (ii) any
casualty insurance proceeds with respect to any Designated Collateral to
the extent such casualty insurance proceeds are not used to rebuild,
reconstruct, or replace the affected Designated Collateral in accordance
with the terms of the applicable Mortgage, or (iii) any eminent domain,
condemnation or similar taking with respect to any Designated Collateral,
in each case, other than in connection with the sale or other disposition
of the Headquarters Property, in an amount equal to 100% of the Net Cash
Proceeds received, and in connection with the sale or other disposition of
the Headquarters Property, an amount equal to the first $5,000,000 of Net
Cash Proceeds received upon the sale or other disposition thereof. Each
mandatory prepayment of the Term Loan made pursuant to this Section 3.1(b)
shall be applied first to any Base Rate Loans until paid in full, then to
any LIBOR Rate Loans until paid in full.
(c) In conjunction with each mandatory prepayment of the
Term Loan required pursuant to (i) Sections 3.1(a) and (b) hereof, the
Borrowers shall pay to each Lender, with respect to any LIBOR Rate Loan
prepaid, the amounts due under Section 4.4, if any, and (ii) Section 3.1(b)
hereof, the Borrowers shall pay to each Lender a mandatory prepayment fee
in an amount equal to the Adjusted Applicable Prepayment Premium
corresponding to the required mandatory prepayment amount.
3.2 Optional Prepayment. The Borrowers shall have the right, at
any time and from time to time, upon 1 Business Days' prior written notice
with respect to Base Rate Loans and 3 Business Days' prior written notice
with respect to LIBOR Rate Loans, in each case, to Agent and the Lenders,
to prepay the Term Loan in whole or in part, by paying to the Lenders, in
immediately available funds, (a) the then outstanding principal balance of
the Term Loan, or in the case of a partial prepayment of the Term Loan, the
principal amount so prepaid, (b) all accrued but unpaid interest thereon,
(c) the Applicable Prepayment Premium, (d) with respect to the LIBOR Rate
Loan prepaid, any amounts due under Section 4.4, if any, and (e) in the
case of a prepayment in full of the Term Loan all reimbursable expenses and
other non-contingent monetary Obligations.
3.3 Payments by the Borrowers.
(a) All payments to be made by the Borrowers shall be made
without set-off, recoupment or counterclaim. Except as otherwise expressly
provided herein, all payments by the Borrowers shall be made to each
Lender, at the account designated by such Lender and shall be made in
Dollars and in immediately available funds, no later than 12:00 noon (Los
Angeles, California time) on the date specified herein. Any payment
received by the Lenders after such time shall be deemed (for purposes of
calculating interest only) to have been received on the following Business
Day and any applicable interest shall continue to accrue.
(b) Subject to the provisions set forth in the definition of
"Interest Period", whenever any payment is due on a day other than a
Business Day, such payment shall be due on the following Business Day, and
such extension of time shall in such case be included in the computation of
interest or fees, as the case may be.
3.4 Indemnity for Returned Payments. If after receipt of any
payment which is applied to the payment of all or any part of the
Obligations, the Agent or any Lender is for any reason compelled to
surrender such payment or proceeds to any Person because such payment or
application of proceeds is invalidated, declared fraudulent, set aside,
determined to be void or voidable as a preference, impermissible setoff, or
a diversion of trust funds, or for any other reason, then the Obligations
or part thereof intended to be satisfied shall be revived and continued and
this Agreement shall continue in full force as if such payment or proceeds
had not been received by the Agent or such Lender and the Borrowers shall
be liable to pay to the Agent and the Lenders, and hereby does indemnify
the Agent and the Lenders and hold the Agent and the Lenders harmless for
the amount of such payment or proceeds surrendered. The provisions of this
Section 3.4 shall be and remain effective notwithstanding any contrary
action which may have been taken by the Agent or any Lender in reliance
upon such payment or application of proceeds, and any such contrary action
so taken shall be without prejudice to the Agent's and the Lenders' rights
under this Agreement and shall be deemed to have been conditioned upon such
payment or application of proceeds having become final and irrevocable. The
provisions of this Section 3.4 shall survive the termination of this
Agreement.
ARTICLE 4
TAXES, YIELD PROTECTION AND ILLEGALITY
4.1 Taxes.
(a) Any and all payments by or on behalf of the Borrowers to
each Lender or the Agent under this Agreement and any other Loan Document
shall be made free and clear of, and without deduction or withholding for
any Taxes. In addition, the Borrowers shall pay all Other Taxes.
(b) The Borrowers agree to indemnify and hold harmless each
Lender and the Agent for the full amount of Taxes or Other Taxes (including
any Taxes or Other Taxes imposed by any jurisdiction on amounts payable
under this Section) paid by any Lender or the Agent and any liability
(including penalties, interest, additions to tax and expenses) arising
therefrom or with respect thereto, whether or not such Taxes or Other Taxes
were correctly or legally asserted. Payment under this indemnification
shall be made within 45 days after the date such Lender or the Agent makes
written demand therefor.
(c) If the Borrowers shall be required by law to deduct or
withhold any Taxes or Other Taxes from or in respect of any sum payable
hereunder to any Lender or the Agent, then:
(i) the sum payable shall be increased as necessary so that
after making all required deductions and withholdings (including
deductions and withholdings applicable to additional sums payable
under this Section) such Lender or the Agent, as the case may be,
receives an amount equal to the sum it would have received had no
such deductions or withholdings been made;
(ii) the Borrowers shall make such deductions and
withholdings;
(iii) the Borrowers shall pay the full amount deducted or
withheld to the relevant taxing authority or other authority in
accordance with applicable law; and
(iv) the Borrowers shall also pay to each Lender or the
Agent for the account of such Lender, at the time interest is
paid, all additional amounts which the respective Lender specifies
as necessary to preserve the after-tax yield such Lender would
have received if such Taxes or Other Taxes had not been imposed.
(d) Each Lender that is not a United States person (as such
term is defined in Section 7701(a)(30) of the Code) agrees to deliver to
the Borrowers on or prior to the Closing Date or in the case of a Lender
that is an assignee or transferee of an interest under this Agreement
(unless the respective Lender was already a Lender hereunder immediately
prior to such assignment or transfer), on the date of such assignment or
transfer to such Lender, (i) two accurate and complete original signed
copies of IRS Form W-8ECI or Form W-8BEN with respect to a complete
exemption under an income tax treaty (or successor forms) certifying to
such Lender's entitlement to a complete exemption from United States
withholding tax with respect to payments to be made under this Agreement,
or (ii) if the Lender is not a "bank" within the meaning of Section
881(c)(3)(A) of the Code or otherwise cannot deliver either IRS Form W-8ECI
or Form W-8BEN with respect to a complete exemption under an income tax
treaty pursuant to clause (i) above, (x) a certificate substantially in the
form of Exhibit F (any such certificate, a "Section 4.1(d) Certificate"),
and (y) two accurate and complete original signed copies of IRS Form W-8BEN
(with respect to the portfolio interest exemption) (or successor form)
certifying to such Lender's entitlement to a complete exemption from United
States withholding tax with respect to payments of interest to be made
under this Agreement and under any Note. In addition, each Lender agrees
that from time to time after the Closing Date, when a lapse in time or
change in circumstances renders the previous certification obsolete or
inaccurate in any material respect, it will deliver to the Borrowers two
new accurate and compete original signed copies of IRS Form W-8ECI, Form
W-8BEN (with respect to the benefits of any income tax treaty), or Form
W-8BEN (with respect to the portfolio interest exemption) and a Section
4.1(d) Certificate, as the case may be, and such other forms as may be
required in order to confirm or establish the entitlement of such Lender to
a continued exemption from or reduction in United States withholding tax
with respect to payments under this Agreement, or it shall immediately
notify the Borrowers of its inability to deliver any such Form or
Certificate, in which case such Lender shall not be required to deliver any
such Form or Certificate pursuant to this Section 4.1(d).
(e) Notwithstanding anything to the contrary contained in
Section 4.1(d), but subject to the immediately succeeding sentence (x) the
Borrowers shall be entitled, to the extent they are required to do so by
law, to deduct or withhold income or similar taxes imposed by the United
States (or any political subdivision or taxing authority thereof or
therein) from interest, fees or other amounts payable hereunder for the
account of any Lender that is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) for U.S. Federal income tax
purposes to the extent that such Lender has not provided to the Borrowers
U.S. IRS Forms that establish a complete exemption from such deduction or
withholding, and (y) the Borrowers shall not be obligated pursuant to
Section 4.1 hereof to gross-up payments to be made to a Lender in respect
of income or similar taxes imposed by the United States if (i) such Lender
has not provided to the Borrowers the IRS Forms required to be provided to
the Borrowers pursuant to this Section 4.1, or (ii) in the case of a
payment, other than interest, to a Lender described in clause (ii) above,
to the extent that such forms do not establish a complete exemption from
withholding of such taxes. Notwithstanding anything to the contrary
contained in the preceding sentence or elsewhere in this Section 4.1, the
Borrowers agree to pay additional amounts and to indemnify each Lender in
the manner set forth in Section 4.1(b) (without regard to the identity of
the jurisdiction requiring the deduction or withholding) in respect of any
amounts deducted or withheld by it was described in the immediately
preceding sentence as a result of any changes after the Closing Date in any
applicable law, treaty, governmental rule, regulation, guideline or order,
or in the interpretation thereof, relating to the deduction or withholding
of taxes.
(f) Within forty-five (45) days after the date of any
payment by the Borrowers of Taxes or Other Taxes, the Borrowers shall
furnish the Agent the original or a certified copy of a receipt evidencing
payment thereof, or other evidence of payment satisfactory to the Agent.
(g) If the Borrowers determine in good faith that a
reasonable basis exists for contesting any taxes for which indemnification
has been demanded hereunder, the relevant Lender shall reasonably cooperate
with the Borrowers in challenging such taxes at the Borrowers' expense if
so requested by the Borrowers. If the Borrowers pay any additional amount
pursuant to this Section 4.1 and a Lender determines in its sole discretion
that it has actually received or realized in connection therewith any
refund of tax or credit against its tax liabilities in or with respect to
the taxable year in which the additional amount is paid by the Borrowers (a
"Tax Benefit"), such Lender shall pay to the Borrowers an amount that such
Lender determines, in its sole judgment, is equal to the net tax benefit
obtained by such Lender as a result of such payment by the Borrowers.
Whether or not a Lender claims any refund or credit shall be in the sole
discretion of each Lender. Any Taxes that are imposed on a Lender as a
result of a disallowance or reduction (including through the expiration of
any tax credit carryover or carryback of such Lender that otherwise would
not have expired) of any Tax Benefit with respect to with such Lender has
made a payment to the Borrowers pursuant to this Section 4.1(g) shall be
treated as a Tax for which the Borrowers are obligated to indemnify such
Lender pursuant to this Section 4.1 without any exclusions or defenses.
Nothing in this Section 4.1 shall require a Lender to disclose any
confidential information (including, without limitation, its tax returns)
or detail the basis of its calculation of the amount of any net tax benefit
or any other amount to the Borrowers or any other party.
(h) If the Borrowers are required to pay additional amounts
to any Lender or the Agent pursuant to subsection (c) of this Section, then
such Lender shall use reasonable efforts (consistent with legal and
regulatory restrictions) changing the jurisdiction of its lending office so
as to eliminate any such additional payment by the Borrowers which may
thereafter accrue, if such change in the reasonable judgment of such Lender
is not otherwise disadvantageous to such Lender.
4.2 Illegality.
(a) If any Lender determines that the introduction of any
Requirement of Law, or any change in any Requirement of Law, or in the
interpretation or administration of any Requirement of Law, has made it
unlawful, or that any central bank or other Governmental Authority has
asserted that it is unlawful, for any Lender or its applicable lending
office to make LIBOR Rate Loans, then, on notice thereof by that Lender to
the Borrowers through the Agent, any obligation of that Lender to make
LIBOR Rate Loans shall be suspended until that Lender notifies the Agent
and the Borrowers that the circumstances giving rise to such determination
no longer exist.
(b) If a Lender determines that it is unlawful to maintain
any LIBOR Rate Loan, the Borrowers shall, upon receipt of notice of such
fact and demand from such Lender (with a copy to the Agent), prepay in full
such LIBOR Rate Loans of that Lender then outstanding, together with
interest accrued thereon and amounts required under Section 4.4, either on
the last day of the Interest Period thereof, if that Lender may lawfully
continue to maintain such LIBOR Rate Loans to such day, or immediately, if
that Lender may not lawfully continue to maintain such LIBOR Rate Loans. If
the Borrowers are required to so prepay any LIBOR Rate Loans, then
concurrently with such prepayment, the Borrowers shall borrow from the
affected Lender, in the amount of such repayment, a Base Rate Loan.
4.3 Increased Costs and Reduction of Return.
(a) If any Lender determines that due to either (i) the
introduction of or any change in the interpretation of any law or
regulation or (ii) the compliance by that Lender with any guideline or
request from any central bank or other Governmental Authority (whether or
not having the force of law), there shall be any increase in the cost to
such Lender of agreeing to make or making, funding or maintaining any LIBOR
Rate Loans, then the Borrowers shall be liable for, and shall from time to
time, upon demand (with a copy of such demand to be sent to the Agent), pay
to the Agent for the account of such Lender, additional amounts as are
sufficient to compensate such Lender for such increased costs.
(b) If any Lender shall have determined that (i) the
introduction of any Capital Adequacy Regulation, (ii) any change in any
Capital Adequacy Regulation, (iii) any change in the interpretation or
administration of any Capital Adequacy Regulation by any central bank or
other Governmental Authority charged with the interpretation or
administration thereof, or (iv) compliance by such Lender or any
corporation or other entity controlling such Lender with any Capital
Adequacy Regulation affects or would affect the amount of capital required
or expected to be maintained by such Lender or any corporation or other
entity controlling such Lender and (taking into consideration such Lender's
or such corporation's or other entity's policies with respect to capital
adequacy and such Lender's desired return on capital) determines that the
amount of such capital is increased as a consequence of its loans, credits
or obligations under this Agreement, then so long as such Lender is as a
policy generally charging customers similarly situated therefor, upon
demand of such Lender to any Borrower through the Agent, the Borrowers
shall pay to such Lender, from time to time as specified by such Lender,
additional amounts sufficient to compensate such Lender for such increase.
4.4 Funding Losses. The Borrowers shall reimburse each Lender and
hold each Lender harmless from any loss or expense described below in this
Section 4.4, which such Lender may sustain or incur as a consequence of:
(a) the failure of any Borrower to make on a timely basis
any payment of principal of any LIBOR Rate Loan;
(b) the failure of any Borrower to continue or convert a
portion of the Term Loan after the Borrowers have given (or is deemed to
have given) a Notice of Conversion; or
(c) the prepayment or other payment (including after
acceleration thereof) of LIBOR Rate Loans on a day that is not the last day
of the relevant Interest Period;
including any such loss of anticipated profit to the end of the then
current or expected Interest Period and any loss or expense arising from
the liquidation or reemployment of funds obtained by it to maintain its
LIBOR Rate Loans or from fees payable to terminate the deposits from which
such funds were obtained. Borrowers shall also pay any customary
administrative fees charged by any Lender in connection with the foregoing.
4.5 Inability to Determine Rates. If the Agent determines that for
any reason adequate and reasonable means do not exist for determining the
LIBOR Rate for any requested Interest Period with respect to a proposed
LIBOR Rate Loan, or that the LIBOR Rate for any requested Interest Period
with respect to a proposed LIBOR Rate Loan does not adequately and fairly
reflect the cost to the Lenders of funding such LIBOR Rate Loan, the Agent
will promptly so notify the Parent and each Lender. Thereafter, the
obligation of the Lenders to make or maintain LIBOR Rate Loans hereunder
shall be suspended until the Agent revokes such notice in writing. Upon
receipt of such notice, the Borrowers may revoke any Notice of Conversion
then submitted by them. If the Borrowers do not revoke such Notice of
Conversion, the Lenders shall convert or continue that portion of the Term
Loan that is the subject of such Notice of Conversion, as proposed by the
Borrowers, in the amount specified in the applicable notice submitted by
the Borrowers, but such portion of the Term Loan shall be maintained as a
Base Rate Loan instead of a LIBOR Rate Loan.
4.6 Certificates of Lender. If any Lender claims reimbursement or
compensation under this Article 4, such Lender shall determine the amount
thereof and shall deliver to the Parent a certificate setting forth in
reasonable detail the amount payable, and such certificate shall be
conclusive and binding on the Borrowers in the absence of manifest error.
4.7 Registration of Term Notes. The Borrowers hereby acknowledge
and make the Term Notes a registered obligation for United States
withholding tax purposes. The Parent shall be the registrar for the Notes
(the "Registrar") with full power of substitution. In the event the
Registrar becomes unable or unwilling to act as registrar under this
Agreement, the Parent shall reasonably designate a successor Registrar. The
Registrar shall keep at its principal executive office (or an office or
agency designated by it by notice to the last registered Lender) a ledger,
in which, subject to such reasonable regulations as it may prescribe, but
at its expense, it shall provide for the registration and transfer of the
Term Notes. No sale, transfer, hypothecation, participation or assignment
of any Term Note or any interest therein shall be effective for any purpose
until it shall be registered on the books of the Registrar to be maintained
for such purpose. The Registrar shall record the transfer of the Notes on
the books maintained for this purpose upon receipt by the Registrar at the
office or agency designated by the Registrar of a copy of the relevant
Assignment and Acceptance. The Registrar shall be responsible for the costs
and expenses related thereto.
4.8 Survival. The agreements and obligations of the Borrowers in
this Article 4 shall survive the payment of all other Obligations.
ARTICLE 5
BOOKS AND RECORDS; FINANCIAL INFORMATION; NOTICES
5.1 Books and Records. Each Borrower shall maintain, at all times,
correct and complete books, records and accounts in which complete, correct
and timely entries are made of its transactions in accordance with GAAP
applied consistently with the audited Financial Statements required to be
delivered pursuant to Section 5.2(a). Each Borrower shall, by means of
appropriate entries, reflect in such accounts and in all Financial
Statements proper liabilities and reserves for all taxes and proper
provision for depreciation and amortization of property and bad debts, all
in accordance with GAAP. Each Borrower shall maintain at all times books
and records pertaining to the Collateral in such detail, form and scope as
the Agent or any Lender shall reasonably require, including, but not
limited to, records of (a) all payments received and all credits and
extensions granted with respect to the Accounts; (b) the return, rejection,
repossession, stoppage in transit, loss, damage, or destruction of any
Inventory; and (c) all other material dealings affecting the Collateral.
5.2 Financial Information. The Borrowers shall promptly furnish to
Agent (with sufficient copies for each Lender) all such financial
information as the Agent shall reasonably request. Without limiting the
foregoing, the Borrowers will furnish to the Agent, in sufficient copies
for distribution by the Agent to each Lender, in such detail as the Agent
or the Lenders shall reasonably request, the following:
(a) As soon as available, but in any event not later than
ninety-five (95) days after the close of each Fiscal Year, (i) audited
consolidated financial statements (consolidated balance sheet, consolidated
statements of operations, consolidated statements of shareholder equity,
and consolidated statements of cash flow) and the accompanying notes
thereto for the Parent and its Subsidiaries for such Fiscal Year, and (ii)
unaudited consolidating balance sheet and statements of operations for the
Parent and each of the Reporting Segments ("Consolidating Schedules"), in
each case set forth in comparative form for the previous Fiscal Year, all
in reasonable detail, fairly presenting the financial position and the
results of operations of the Parent and its Subsidiaries as at the date
thereof and for the Fiscal Year then ended, and prepared in accordance with
GAAP. Such consolidated statements shall be examined in accordance with
generally accepted auditing standards and accompanied by a report thereon
unqualified in any respect from either (A) any of the big five accounting
firms or (B) any independent certified public accountants (i) selected by
the Parent and (ii) reasonably satisfactory to the Agent. The Parent,
simultaneously with retaining such independent public accountants to
conduct such annual audit, shall send a letter to such accountants, with a
copy to the Agent with sufficient copies for the Lenders, notifying such
accountants that one of the primary purposes for retaining such
accountants' services and having audited financial statements prepared by
them is for use by the Agent and the Lenders. The Borrowers hereby
authorize the Agent to communicate directly with their certified public
accountants. For avoidance of doubt, delivery of the annual report on
Exchange Act Form 10-K of the Parent shall satisfy the delivery request set
forth in this Section 5.2(a).
(b) As soon as available, but in any event not later than
thirty-five (35) days after the end of each of the first two months of each
fiscal quarter, monthly consolidated and consolidating unaudited balance
sheets of the Parent and its Subsidiaries as of the end of such months, and
consolidated and consolidating unaudited statements of operations for the
Parent and its Subsidiaries for such months and for the period from the
beginning of the Fiscal Year to the end of such month, all in reasonable
detail, fairly presenting the financial position and results of operations
of the Parent and its Subsidiaries as of the date thereof and for such
periods (subject to normal quarterly adjustments and the absence of
footnotes), and, in each case, in comparable form, figures for the
corresponding period in the prior Fiscal Year and in the Borrowers' budget,
and prepared in accordance with GAAP applied consistently with the audited
Financial Statements required to be delivered pursuant to Section 5.2(a).
As soon as available, but in any event not later than thirty-five (35) days
after the end of each month, internal statements prepared by the Borrowers
(the "Blue Book Statements") in the form previously delivered to and
approved by the Agent. The Parent on behalf of the Borrowers shall certify
by a certificate signed by a Corporate Officer that all such statements
have been prepared in accordance with GAAP and present fairly the
Borrowers' financial position as of the dates thereof and its results of
operations for the periods then ended, subject to normal quarterly
adjustments and the absence of footnotes.
(c) With each of the audited Financial Statements delivered
pursuant to Section 5.2(a), a report of the independent certified public
accountants that audited such Financial Statements stating that nothing
came to their attention that caused them to believe that the Borrowers
failed to comply with the financial covenants of this Agreement, except as
described in their report.
(d) With each of the Financial Statements delivered pursuant
to Section 5.2(a), (b) and (e), a certificate of a Responsible Officer of
the Parent setting forth in reasonable detail the calculations required to
establish that the Borrowers were in compliance with the covenants set
forth in Sections 7.22 through 7.25 during the period covered in such
Financial Statements and as of the end thereof and stating that, except as
otherwise explained in reasonable detail in such certificate, (A) all of
the representations and warranties of the Borrowers contained in this
Agreement and the other Loan Documents are correct and complete in all
material respects as of the date of such certificate as if made at such
time, except for those that speak as of a particular date, (B) the
Borrowers are, as of the date of such certificate, in compliance in all
material respects with all of its respective covenants and agreements in
this Agreement and the other Loan Documents, and (C) no Default or Event of
Default then exists or existed during the period covered by the Financial
Statements for such month. If such certificate discloses that a
representation or warranty is not correct or complete in all material
respects, or that a covenant has not been complied with in all material
respects, or that a Default or Event of Default existed or exists, such
certificate shall set forth what action the Borrowers have taken or propose
to take with respect thereto. At the request of the Agent, Borrowers shall
participate in a conference call with Agent and the Lenders on a monthly
basis for purposes of describing and analyzing in reasonable detail all
material trends, changes, and developments in each and all Financial
Statements explaining any variances to the corresponding figures in the
budgets and prior Fiscal Year financial statements previously delivered to
Agent.
(e) Within fifty (50) days after the end of each fiscal
quarter, the quarterly consolidated financial statements for such quarter
of the Parent and its Subsidiaries for such quarter. For avoidance of
doubt, delivery of the quarterly report on Exchange Form 10-Q of the Parent
shall satisfy the delivery request set forth above in this Section 5.2(e).
In addition and together with such quarterly statements, the Borrowers
shall provide the Agent with (i) a reconciliation of the Parent's 10-Q
Statements for such quarter against the monthly unaudited consolidated and
consolidating balance sheets and income statements of operations of the
Parent and each of the Reporting Segments, such reconciliation to be in
form and substance acceptable to Agent (it being agreed for avoidance of
doubt that such reconciliation statements if delivered in the form
delivered to Agent prior to the Closing Date shall be deemed to be in
acceptable form), and (ii) consolidating statements corresponding to those
described in Section 5.2(e)(i) reflecting separately the results of
operations during such quarter for (A) the Borrower, and (B) the
Subsidiaries that are not Borrowers.
(f) On or before the earlier of (i) January 31 of each
Fiscal Year or (ii) three (3) Business Days after the date they are
prepared, annual forecasts (to include forecasted consolidated and
consolidating balance sheets, income statements and cash flow statements)
for the Parent and its Subsidiaries as of the end of and for each month of
such Fiscal Year.
(g) Promptly after filing with the PBGC and the IRS, a copy
of each annual report or other filing filed with respect to each Plan of
the Borrowers.
(h) Promptly upon the same becoming publicly available,
copies of all reports, if any, to or other documents, in each case, that
have any material importance filed by any of the Borrowers with the
Securities and Exchange Commission under the Exchange Act, and all material
reports, notices, or statements sent or received by any of the Borrowers to
or from the holders of any equity interests of the Parent (specifically
excluding routine non-material correspondence sent by shareholders of the
Parent to the Parent) or any such Borrower or of any Debt of any of the
Borrowers registered under the Securities Act of 1933 or to or from the
trustee under any indenture under which the same is issued.
(i) As soon as available, but in any event not later than 15
days after any Borrower's receipt thereof, a copy of all final management
reports and final management letters prepared for the Borrowers by any
independent certified public accountants of the Borrowers.
(j) Concurrently with their distribution, copies of any and
all proxy statements, financial statements, and reports which the Parent
makes available to its shareholders.
(k) If requested by the Agent, promptly after filing with
the IRS, a copy of each tax return filed by the Parent or by any of the
other Borrowers.
(l) As soon as available, but in any event not later than 15
days after any Borrower's receipt thereof, a copy of all appraisals of any
portion of the Collateral.
(m) If requested by the Agent, each of the Parent and the
other Borrowers or the Parent and its Subsidiaries, as applicable, shall
restate any of the financial statements or other information required to be
delivered pursuant to this Section 5.2 to reflect GAAP as in effect on the
Closing Date, adjusting such Financial Statements and information to
eliminate the effects of changes in GAAP from the Closing Date to the
original date of delivery of such financial statements or information.
(n) Such additional information as the Agent and/or any
Lender may from time to time reasonably request regarding the financial and
business affairs of the Parent or any other Borrower.
5.3 Notices to the Lenders. Each Borrower shall notify the Agent
and the Lenders in writing of the following matters as to any such Borrower
at the following times:
(a) immediately after any Responsible Officer becomes aware
of any Default or Event of Default;
(b) immediately after any Responsible Officer becomes aware
of the assertion by the holder of any capital stock of any Borrower or the
holder of any Debt of any Borrower in a face amount in excess of $3,000,000
that a default exists with respect thereto or that such Borrower is not in
compliance with the terms thereof, or the threat or commencement by such
holder of any enforcement action because of such asserted default or
non-compliance;
(c) immediately after any Responsible Officer becomes aware
of any event or circumstance which could reasonably be expected to have a
Material Adverse Effect;
(d) immediately after any Responsible Officer becomes aware
of any pending or threatened action, suit, or proceeding, by any Person, or
any pending or threatened investigation by a Governmental Authority, which
could reasonably be expected to have a Material Adverse Effect;
(e) immediately after any Responsible Officer becomes aware
of any pending or threatened strike, work stoppage, unfair labor practice
claim, or other labor dispute affecting the Parent or any of the other
Borrowers in a manner which could reasonably be expected to have a Material
Adverse Effect;
(f) immediately after any Responsible Officer becomes aware
of any violation of any law, statute, regulation, or ordinance of a
Governmental Authority affecting the Parent or any other Borrower which
could reasonably be expected to have a Material Adverse Effect;
(g) immediately after any Responsible Officer's receipt of
any notice of any violation by the Parent or any of its Subsidiaries of any
Environmental Law which could reasonably be expected to have a Material
Adverse Effect or that any Governmental Authority has asserted in writing
that the Parent or any other Borrower is not in compliance with any
Environmental Law or is investigating the Parent's or such other Borrower's
compliance therewith;
(h) immediately after any Responsible Officer's receipt of
any written notice that the Parent or any of its Subsidiaries is or may be
liable to any Person as a result of the Release or threatened Release of
any Contaminant or that the Parent or any other Borrower is subject to
investigation by any Governmental Authority evaluating whether any remedial
action is needed to respond to the Release or threatened Release of any
Contaminant which, in either case, is reasonably likely to give rise to
liability in excess of $5,000,000;
(i) immediately after any Responsible Officer's receipt of
any written notice of the imposition of any Environmental Lien against any
property of the Parent or any of its Subsidiaries;
(j) any change in any Borrower's name, state of
organization, locations of Collateral, or form of organization, trade names
under which such Borrower will sell Inventory or create Accounts, or to
which instruments in payment of Accounts may be made payable, in each case
at least thirty (30) days prior thereto;
(k) within ten (10) Business Days after the Parent or any
ERISA Affiliate knows that an ERISA Event or a prohibited transaction (as
defined in Sections 406 of ERISA and 4975 of the Code) has occurred or will
occur, and, when known, any action taken or threatened by the IRS, the DOL
or the PBGC with respect thereto;
(l) upon request, or, in the event that such filing reflects
a material change with respect to the matters covered thereby, within ten
(10) Business Days after the filing thereof with the PBGC, the DOL or the
IRS, as applicable, copies of the following: (i) each annual report (form
5500 series), including Schedule B thereto, filed by the Parent or any
ERISA Affiliate with the PBGC, the DOL or the IRS with respect to each
Plan, (ii) a copy of each funding waiver request filed with the PBGC, the
DOL or the IRS with respect to any Plan and all communications received by
the Borrowers or any ERISA Affiliate from the PBGC, the DOL or the IRS with
respect to such request, and (iii) a copy of each other filing or notice
filed by Parent or any ERISA Affiliate with the PBGC, the DOL or the IRS,
with respect to each Plan by either the Parent or any ERISA Affiliate;
(m) upon request, copies of each actuarial report for any
Plan or Multi-employer Plan and annual report for any Multi-employer Plan;
and within ten (10) Business Days after receipt thereof by the Borrowers or
any ERISA Affiliate, copies of the following: (i) any notices of the PBGC's
intention to terminate a Plan or to have a trustee appointed to administer
such Plan; (ii) any favorable or unfavorable determination letter from the
IRS regarding the qualification of a Plan under Section 401(a) of the Code;
or (iii) any notice from a Multi-employer Plan regarding the imposition of
any withdrawal liability on any Borrower or any ERISA Affiliate;
(n) within ten (10) Business Days after the occurrence
thereof: (i) any changes in the benefits of any existing Plan which
increase any Borrower's annual costs with respect thereto by an amount in
excess of $1,000,000, or the establishment of any new Plan or the
commencement of contributions to any Plan by Parent or any ERISA Affiliate
to which the Parent or any ERISA Affiliate was not previously contributing;
(ii) any failure by the Parent or any ERISA Affiliate to make a required
installment or any other required payment under Section 412 of the Code on
or before the due date for such installment or payment; or (iii) the
establishment of a Foreign Plan by any Borrower or the commencement of
contributions by any Borrower to a Foreign Plan; or
(o) within ten (10) Business Days after the Parent or any
ERISA Affiliate knows or has reason to know that any of the following
events has or will occur: (i) a Multi-employer Plan has been or will be
terminated or become insolvent or involved in a reorganization; or (ii) the
administrator or plan sponsor of a Multi-employer Plan intends to terminate
a Multi-employer Plan.
Each notice given under this Section shall describe the
subject matter thereof in reasonable detail, and shall set forth the action
that the Parent, any other Borrower, or any ERISA Affiliate, as applicable,
has taken or proposes to take with respect thereto.
ARTICLE 6
GENERAL WARRANTIES AND REPRESENTATIONS
EACH BORROWER warrants and represents to the Agent and the Lenders
that except as hereafter disclosed to and accepted by the Agent and the
Majority Lenders in writing:
6.1 Authorization, Validity, and Enforceability of this Agreement
and the Loan Documents. Each Borrower has the power and authority to
execute, deliver and perform this Agreement and the other Loan Documents to
which it is a party, to incur the Obligations, and to grant to the Agent
Liens upon and security interests in the Collateral. Each Borrower has
taken all necessary action (including obtaining approval of its
stockholders if necessary) to authorize its execution, delivery, and
performance of this Agreement and the other Loan Documents to which it is a
party. This Agreement and the other Loan Documents to which it is a party
have been duly executed and delivered by each Borrower, and constitute the
legal, valid and binding obligations of such Borrower, enforceable against
it in accordance with their respective terms (subject to the effects of
bankruptcy, insolvency, reorganization, moratoriums or other similar loans
affecting the rights and remedies of creditors generally). The execution,
delivery, and performance of this Agreement by each Borrower and the other
Loan Documents to which it is a party do not and will not conflict with, or
constitute a violation or breach of, or result in the imposition of any
Lien upon the property of such Borrower or any of its Subsidiaries, by
reason of the terms of (a) any material mortgage, lease, indenture,
contract, agreement or instrument to which such Borrower is a party or
which is binding upon it, (b) any Requirement of Law applicable to such
Borrower, or (c) the certificate or articles of incorporation or by-laws or
the limited liability company or limited partnership agreement of any
Borrower.
6.2 Validity and Priority of Security Interest. The provisions of
this Agreement, the Mortgages, and the other Loan Documents create legal
and valid Liens on all the Collateral in favor of the Agent, for the
ratable benefit of the Agent and the Lenders, and following the filing of
the applicable financing statements, the recordation of the Mortgages, and
any other filings or registrations necessary to perfect the Agent's Lien in
the Collateral, such Liens constitute perfected and continuing Liens on all
the Collateral, having priority over all other Liens on the Collateral,
except for those Liens identified in clauses (a), (c), (d), (e), (g), (h)
and (i) of the definition of Permitted Liens or that consist of Liens
identified in Section 7.18(c) and (e) or that are listed on Schedule 6.9
and that are superior to the Liens of Agent, or, in the case of the Lien in
favor of the Revolver Agent or the Lien of any institution refinancing the
Permitted Revolver Obligations (to the extent any such refinancing conforms
with the definition of "Bank Claims" set forth in the Intercreditor
Agreement), are subject to the provisions of Intercreditor Agreement, and
are enforceable against the Borrowers and all third parties.
6.3 Organization and Qualification. Each Borrower (a) is duly
organized or incorporated and validly existing in good standing under the
laws of the state of its organization or incorporation, (b) is qualified to
do business and is in good standing in the jurisdictions set forth on
Schedule 6.3 as updated from time to time, upon written notice to Agent
from Borrowers (it being understood and agreed that for purposes of this
Section 6.3 and Sections 6.4, 6.5, 6.11, 6.12, 6.13, 6.14 and 6.16 and the
Schedules to the Security Agreement, such updating shall be permitted but
only while no Default or Event of Default exists and only if Agent, in its
reasonable discretion, does not object to any such updating and said
schedule shall be deemed to be updated in accordance with written notice
from Borrowers accompanied by the updated information, which are the only
jurisdictions in which qualification is necessary in order for it to own or
lease its property and conduct its business except for any jurisdictions in
which the failure to so qualify would not create a Material Adverse Effect,
and (c) has all requisite power and authority to conduct its business and
to own its property.
6.4 Corporate Name; Prior Transactions. Except as set forth on
Schedule 6.4 as updated from time to time, each Borrower has not, during
the five (5) years prior to the date hereof, been known by or used any
other corporate or fictitious name, or been a party to any merger or
consolidation, or acquired all or substantially all of the assets of any
Person, or acquired any of its property outside of the ordinary course of
business except (i) to the extent disclosed in writing to Agent or (ii) in
connection with activities involving Xxxxxx Industries and Western Atlas
corporations as set forth in the Parent's 10-K statements.
6.5 Subsidiaries and Affiliates. Schedule 6.5, as updated from
time to time, is a correct and complete list of the name and relationship
to the Borrowers of each and all of the Parent's and the other Borrowers'
Subsidiaries and other Affiliates. Except for Factory Power, (i) no
domestic Subsidiary that is not a Borrower has assets valued at a net
tangible book value of more than $1,000,000 and (ii) all domestic
Subsidiaries that are not Borrowers taken as a whole do not have assets
valued at a net tangible book value of more than $2,000,000. As of the
Closing Date, Factory Power has assets valued at the greater of fair market
value or net tangible book value of approximately $1,360,000.
6.6 Financial Statements and Projections.
(a) The Parent has delivered to the Agent the audited
balance sheet and related statements of income, retained earnings, cash
flows, and changes in stockholders equity for the Parent and its
Subsidiaries as of December 31, 2000, and for the Fiscal Year then ended,
accompanied by the report thereon of the Borrowers' independent certified
public accountants, Deloitte & Touche. The Parent has also delivered to the
Agent the Consolidating Schedules of the Borrowers and of the Parent and
its Subsidiaries as of March 31, 2001 together with a reconciliation of
such statements in form and substance acceptable to Agent. All such
financial statements have been prepared in accordance with GAAP (subject in
the case of unaudited financial statements to the addition of footnotes and
normal year-end adjustments) and present accurately and fairly in all
material respects the financial position of the Borrowers as of the dates
thereof and their results of operations for the periods then ended.
(b) The Latest Projections when submitted to the Agent as
required herein represent the Borrowers' good faith estimate of the future
financial performance of the Parent and its Subsidiaries for the periods
set forth therein. The Latest Projections have been prepared on the basis
of the assumptions set forth therein, which the Borrowers believe are fair
and reasonable in light of current and reasonably foreseeable business
conditions at the time submitted to the Agent, it being understood by the
Agent and the Lenders that such projections as to future events are not to
be viewed as facts and that actual results during the period or periods
covered by any such projections may differ materially from the projected
results.
6.7 Capitalization. Schedule 6.7 sets forth, as of the Closing
Date, a true and complete listing of each class of each Borrower's
authorized Capital Stock, of which all of such issued shares are validly
issued, outstanding, fully paid and non-assessable, and owned beneficially
and of record by the Persons identified on Schedule 6.7. As of the Closing
Date, all Borrowers (other than the Parent) are wholly-owned Subsidiaries
of the Parent.
6.8 Solvency. Each Borrower is Solvent prior to and after giving
effect to extensions of credit to be made on the Closing Date and shall
remain Solvent during the term of this Agreement.
6.9 Debt. After giving effect to the making of the Term Loan to be
made on the Closing Date, the Parent and its domestic Subsidiaries have no
Debt, except (a) the Obligations, (b) Debt described on Schedule 6.9, and
(c) Debt not prohibited by Section 7.13. Schedule 6.9 sets forth the Debt
of the foreign Subsidiaries of the Borrowers as of the Closing Date. As of
the Closing Date but before giving effect to the transactions contemplated
herein and in the Revolving Credit Documents, the aggregate amount of all
Debt (for purposes of this sentence, as such term is defined in the
Indenture) secured by Restricted Collateral (but other than such Debt that
is secured by mortgages permitted by clauses (1) through (7) of Section
1008 of the Indenture) plus all Attributable Debt (as such term is defined
in the Indenture) of Parent and its domestic Subsidiaries in respect of
Sale and Leaseback Transactions (as such term is defined in the Indenture;
but other than such Sale and Leaseback Transactions permitted by clauses
(1) through (4) of Section 1009 of the Indenture) with respect to Operating
Properties (as such term is defined in the Indenture) is not greater than
$40,000,000. As of the Closing Date, the foregoing amount plus the
Obligations plus the Debt incurred pursuant to the Revolving Credit
Documents secured by Restricted Collateral does not exceed the aggregate
$150,000,000 limitation set forth in the lead-in to Section 1008 of the
Indenture.
6.10 Distributions. Since December 31, 2000, no Distribution has
been declared, paid, or made upon or in respect of any capital stock or
other securities of the Parent except as set forth on Schedule 6.10.
6.11 Real Estate; Leases. Schedule 6.11 sets forth, as of the
Closing Date, a correct and complete list of all Real Estate owned by the
Parent and all Real Estate owned by any Borrower, all leases and subleases
of real or personal property held by the Borrowers as lessee or sublessee,
and all leases and subleases of real or personal property held by the
Borrowers as lessor, or sublessor, in each case, as to which the interests
of the relevant Borrower has a book value or estimated fair market value in
excess of $750,000. Each of such leases and subleases is valid and
enforceable against the applicable Borrower in accordance with its terms
and is in full force and effect, and no material default by any Borrower to
any such lease or sublease exists. The Borrowers have good and marketable
title in fee simple to the Real Estate identified on Schedule 6.11 as owned
by the Borrowers, or valid leasehold interests in all Real Estate
designated therein as "leased" by the Borrowers. The Borrowers have good,
indefeasible, and merchantable title to all of their other property
reflected on the March 31, 2001 Financial Statements delivered to the Agent
and the Lenders, except as disposed of in the ordinary course of business
since the date thereof, free of all Liens except Permitted Liens. All of
the statements made by or on behalf of the Parent or any Subsidiary and
contained in any exhibit, report, statement or certificate furnished by or
on behalf of the Parent or any Subsidiary to any appraiser of the Real
Estate in connection with the transactions contemplated by this Agreement
are true, correct, and complete in all material respects and do not omit
any material fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances under which they are
made, not misleading as of the time when made or delivered.
6.12 Proprietary Rights. Schedule 6.12, as updated from time to
time to the best knowledge of the Borrowers, sets forth a correct and
complete list in all material respects of the Proprietary Rights of the
Borrowers. To the best of each Borrower's knowledge, no material portion of
the Proprietary Rights is subject to any licensing agreement or similar
arrangement except as set forth on Schedule 6.12. To the best of each
Borrower's knowledge and except as disclosed in writing to Agent prior to
the Closing Date, none of the Proprietary Rights infringes on or conflicts
to any material extent with any other Person's property, and no other
Person's property infringes on or conflicts with the Proprietary Rights in
a manner that could reasonably be expected to result in a Material Adverse
Effect. The Proprietary Rights described on Schedule 6.12 constitute all of
the property of such type necessary to the current and anticipated future
conduct of the businesses of the Borrowers.
6.13 Trade Names. All trade names or styles under which the Parent
or any of the other Borrowers will sell Inventory or create Accounts, or to
which instruments in payment of Accounts may be made payable, are listed on
Schedule 6.13, as updated from time to time.
6.14 Litigation. Except as set forth on Schedule 6.14 as updated
from time to time, there is no pending, or to the best of each Borrower's
knowledge, threatened, action, suit, proceeding, or counterclaim by any
Person, or to the best of each Borrower's knowledge, investigation by any
Governmental Authority, or any basis for any of the foregoing, which could
reasonably be expected to have a Material Adverse Effect.
6.15 Labor Disputes. Except as set forth on Schedule 6.15, as of
the Closing Date (a) there is no collective bargaining agreement or other
labor contract covering employees of the Parent or any of the other
Borrowers, (b) no such collective bargaining agreement or other labor
contract is scheduled to expire during the term of this Agreement, (c) no
union or other labor organization is seeking to organize, or to be
recognized as, a collective bargaining unit of employees of the Parent or
any of the other Borrowers or for any similar purpose, and (d) there is no
pending or (to the best of each Borrower's knowledge) threatened, strike,
work stoppage, material unfair labor practice claim, or other material
labor dispute against or affecting the Parent, any of the other Borrowers
or their employees, which, with reference to this Section 6.15(d), could
reasonably be expected to have a Material Adverse Effect.
6.16 [Intentionally Omitted].
6.17 No Violation of Law. Neither the Parent nor any of the other
Borrowers is in violation of any law, statute, regulation, ordinance,
judgment, order, or decree applicable to it which violation could
reasonably be expected to have a Material Adverse Effect.
6.18 No Default. Neither the Parent nor any of its Subsidiaries is
in default with respect to any note, indenture, loan agreement, mortgage,
lease, deed, or other agreement to which the Parent or such Subsidiary is a
party or by which it is bound, which default could reasonably be expected
to have a Material Adverse Effect.
6.19 ERISA Compliance. Except as specifically disclosed in
Schedule 6.19:
(a) Each Plan is in compliance in all material respects with
the applicable provisions of ERISA, the Code and other federal or state
law. Each Plan which is intended to qualify under Section 401(a) of the
Code has received a favorable determination letter from the IRS and to the
best knowledge of the Borrowers, nothing has occurred which would cause the
loss of such qualification. The Parent and each ERISA Affiliate has made
all required contributions in all material respects to any Plan subject to
Section 412 of the Code, and no application for a funding waiver or an
extension of any amortization period pursuant to Section 412 of the Code
has been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of each
Borrower, threatened claims, actions or lawsuits, or action by any
Governmental Authority, with respect to any Plan or Foreign Plan which has
resulted or could reasonably be expected to result in a Material Adverse
Effect. There has been no prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan which has resulted
or could reasonably be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably
expected to occur; (ii) no Pension Plan has any material Unfunded Pension
Liability; (iii) neither the Parent nor any ERISA Affiliate has incurred,
or reasonably expects to incur, any material liability under Title IV of
ERISA with respect to any Pension Plan (other than premiums due and not
delinquent under Section 4007 of ERISA); (iv) neither the Parent nor any
ERISA Affiliate has incurred, or reasonably expects to incur, any liability
(and no event has occurred which, with the giving of notice under Section
219 of ERISA, would result in such liability) under Section 4201 or 4243 of
ERISA with respect to a Multi-employer Plan; and (v) neither the Parent nor
any ERISA Affiliate has engaged in a transaction that could be subject to
Section 4069 or 4212(c) of ERISA.
(d) Neither Parent nor any of its ERISA Affiliates sponsors,
maintains, contributes to, or has any obligation to contribute to a
Multi-employer Plan.
6.20 Taxes. The Parent and its Subsidiaries have filed all federal
and other tax returns and reports required to be filed except where the
failure to do so would not reasonably be expected to have a Material
Adverse Effect, and have paid all federal and other taxes, assessments,
fees and other governmental charges levied or imposed upon them or their
properties, income or assets otherwise due and payable unless such unpaid
taxes and assessments would constitute a Permitted Lien, except where the
failure to do so would not reasonably be expected to have a Material
Adverse Effect.
6.21 Regulated Entities. No Borrower and no Person controlling a
Borrower is an "Investment Company" within the meaning of the Investment
Company Act of 1940. No Borrower is subject to regulation under the Public
Utility Holding Company Act of 1935, the Federal Power Act, the Interstate
Commerce Act, any state public utilities code or law, or any other federal
or state statute or regulation limiting its ability to incur indebtedness.
6.22 Use of Proceeds; Margin Regulations. The proceeds of the Term
Loan are to be used solely (i) for working capital, capital expenditures
and other lawful corporate purposes; and (ii) to refinance existing
indebtedness under certain pre-existing credit facilities. Neither the
Parent nor any other Borrower is engaged in the business of purchasing or
selling Margin Stock or extending credit for the purpose of purchasing or
carrying Margin Stock.
6.23 Copyrights, Patents, Trademarks and Licenses, etc. The
Borrowers own or are licensed or otherwise have the right to use all of the
patents, trademarks, service marks, trade names, copyrights, contractual
franchises, licenses, rights of way, authorizations and other rights that
are reasonably necessary and material for the operation of their
businesses, without material conflict with the rights of any other Person.
To the best knowledge of each Borrower and except as otherwise previously
disclosed to Agent in writing, no slogan or other advertising device,
product, process, method, substance, part or other material now employed,
or now contemplated to be employed, by the Parent or any other Borrower
infringes to any material extent upon any rights held by any other Person.
No claim or litigation regarding any of the foregoing is pending or to the
knowledge of each Borrower, threatened, and no patent, invention, device,
application, principle or any statute, law, rule, regulation, standard or
code is pending or, to the knowledge of each Borrower, proposed, which, in
either case, could reasonably be expected to have a Material Adverse
Effect.
6.24 No Material Adverse Change. No Material Adverse Effect has
occurred since the latest date of the Financial Statements previously
delivered to the Lenders.
6.25 Full Disclosure. None of the representations or warranties
made by the Parent or any other Borrower in the Loan Documents as of the
date such representations and warranties are made or deemed made, and none
of the statements contained in any exhibit, report, statement or
certificate furnished by or on behalf of the Parent or any other Borrower
in connection with the Loan Documents (including the materials delivered by
or on behalf of the Borrowers to the Lenders prior to the Closing Date),
contains any untrue statement of a material fact or omits any material fact
required to be stated therein or necessary to make the statements made
therein, in light of the circumstances under which they are made, not
misleading as of the time when made or delivered.
6.26 Material Agreements. Schedule 6.26 hereto sets forth as of
the Closing Date all material agreements and contracts to which the Parent
or any of the other Borrowers is a party or is bound as of the date hereof.
For avoidance of doubt, "material" in the context only of the preceding
sentence means material within the purview of the requirements of the
Exchange Act with respect to the Parent's obligations under the Exchange
Act to disclose all material agreements and contracts.
6.27 Bank Accounts. Schedule 6.27 contains as of the Closing Date
a complete and accurate list of all material bank accounts maintained by
each Borrower with any bank or other financial institution.
6.28 Governmental Authorization. Except for the filing of
financing statements, the recordation of the Mortgages, any other filings
or registrations necessary to perfect the Agent's security interest in the
Collateral, and any required filings with the Securities and Exchange
Commission or any applicable state securities regulators, no approval,
consent, exemption, authorization, or other action by, or notice to, or
filing with, any Governmental Authority or other Person is necessary or
required in connection with the execution, delivery or performance by, or
enforcement against, the Borrowers or any of their Subsidiaries of this
Agreement or any other Loan Document.
6.29 Transfer Pricing Between Affiliates. Each Borrower is in
compliance with and utilizes the arms-length standard for course of dealing
transactions applicable to Affiliates as contemplated in Section 482 of the
Code, as amended and the regulations promulgated thereunder, such that no
material amount of Taxes are due and owing and unpaid as a result of any
such transaction or series of transactions.
ARTICLE 7
AFFIRMATIVE AND NEGATIVE COVENANTS
EACH BORROWER covenants to the Agent and each Lender that so long
as any of the non-contingent Obligations remain outstanding or this
Agreement is in effect:
7.1 Taxes and Other Obligations. Each Borrower shall (a) file when
due all tax returns and other reports which it is required to file; (b)
pay, or provide for the payment, when due, of all taxes, fees, assessments
and other governmental charges against it or upon its property, income and
franchises, make all required withholding and other tax deposits, and
establish adequate reserves for the payment of all such items, and provide
to the Agent and the Lenders, upon request, satisfactory evidence of its
timely compliance with the foregoing; and (c) pay when due all Debt owed by
each of them and all material claims of materialmen, mechanics, carriers,
warehousemen, landlords, processors and other like Persons, and all other
indebtedness owed by it and perform and discharge in a timely manner all
other obligations undertaken by it to the extent such Debt and such claims
would otherwise exceed $5,000,000 in the aggregate for all Borrowers;
provided, however, so long as the Parent has notified the Agent in writing,
neither the Parent nor any of the other domestic Subsidiaries need pay any
tax, fee, assessment, or governmental charge (i) it is contesting in good
faith by appropriate proceedings diligently pursued, (ii) as to which the
Parent or any other domestic Subsidiary, as the case may be, has
established proper reserves as required under GAAP, and (iii) the
nonpayment of which does not result in the imposition of a Lien (other than
a Permitted Lien).
7.2 Legal Existence and Good Standing. Subject to the provisions
of Section 7.9, each Borrower shall maintain its legal existence and its
qualification and good standing in all jurisdictions in which the failure
to maintain such existence and qualification or good standing could
reasonably be expected to have a Material Adverse Effect; provided,
however, that provided no Default or Event of Default then exists and
provided there is no significant increase in the respective assets owned by
each of R & B and M M & E subsequent to the Closing Date and so long as any
assets of R & B and M M & E that constitute Collateral continue to be
subject to a security interest having the priority specified herein and in
the Intercreditor Agreement, Borrowers may terminate the operations R & B
or M M & E, or both, dissolve that entity or entities and distribute the
proceeds in accordance with applicable provisions of the Intercreditor
Agreement to Agent for the benefit of Lenders and to the Revolver Agent.
7.3 Compliance with Law and Agreements; Maintenance of Licenses.
Each Borrower shall comply in all material respects with all Requirements
of Law of any Governmental Authority having jurisdiction over it or its
business (including the Federal Fair Labor Standards Act and all
Environmental Laws (in the case of Environmental Laws, to the extent set
forth in the Mortgages)). Each Borrower shall obtain and maintain all
patents, trademarks, licenses, permits, franchises, and governmental
authorizations necessary to own its property and to conduct its business as
conducted on the Closing Date or as otherwise permitted under Section 7.17.
No Borrower shall modify, amend or alter its certificate or articles of
incorporation, or its limited liability company operating agreement or
limited partnership agreement, as applicable, other than in a manner which
does not adversely affect the rights of the Lenders or the Agent.
7.4 Maintenance of Property; Inspection of Property.
(a) Each Borrower shall maintain all of its property
necessary and useful in the conduct of its business, in good operating
condition and repair, ordinary wear and tear excepted, including
specifically without limitation all patents, trademarks, licenses and other
intellectual property.
(b) Each Borrower shall permit representatives and
independent contractors of the Agent (at the expense of the Borrowers
provided such expenses are reasonable under the circumstances to visit up
to four times annually), inspect, and appraise any of its properties, to
examine its corporate, financial and operating records, and make copies
thereof or abstracts therefrom and to discuss its affairs, finances and
accounts with its directors, officers and independent public accountants,
at such reasonable times during normal business hours and as soon as may be
reasonably desired, upon reasonable advance notice to the Parent; provided,
however, when an Event of Default exists, the Agent or any Lender may do
any of the foregoing on any number of occasions at the expense of the
Borrowers at any time during normal business hours and without advance
notice.
7.5 Insurance.
(a) Each Borrower shall maintain, and shall cause each of
the other Borrowers to maintain, with financially sound and reputable
insurers having a rating of at least A+ or better by Best Rating Guide,
insurance against loss or damage by fire with extended coverage; theft,
burglary, pilferage and loss in transit; public liability and third party
property damage; larceny, embezzlement or other criminal liability;
business interruption; public liability and third party property damage;
and such other hazards or of such other types as is customary for Persons
engaged in the same or similar business, as the Agent, in its reasonable
discretion, or acting at the direction of the Majority Lenders, shall
specify, in amounts, and under policies reasonably acceptable to the Agent
and the Majority Lenders. Without limiting the foregoing, in the event that
any improved Real Estate covered by the Mortgages is determined to be
located within an area that has been identified by the Director of the
Federal Emergency Management Agency as a Special Flood Hazard Area
("SFHA"), the Borrower that holds title to such Real Estate shall purchase
and maintain flood insurance on the improved Real Estate and any Equipment
and Inventory located on such Real Estate. The amount of said flood
insurance will be reasonably determined by the Agent, and shall, at a
minimum, comply with applicable federal regulations as required by the
Flood Disaster Protection Act of 1973, as amended. Each Borrower shall also
maintain flood insurance for its Inventory and Equipment which is, at any
time, located in a SFHA.
(b) The Borrowers shall cause the Agent, for the ratable
benefit of the Agent and the Lenders, to be named as secured party or
mortgagee and loss payee or additional insured, in a manner acceptable to
the Agent and consistent with the Intercreditor Agreement. Each policy of
insurance shall contain a clause or endorsement requiring the insurer to
give not less than thirty (30) days' prior written notice to the Agent in
the event of cancellation of the policy for any reason whatsoever and shall
contain such other terms and conditions as Agent shall require. All
premiums for such insurance shall be paid by the applicable Borrower when
due, and certificates of insurance and, if requested by the Agent or any
Lender, photocopies of the policies, shall be delivered to the Agent, in
each case in sufficient quantity for distribution by the Agent to each of
the Lenders. If any Borrower fails to procure such insurance or to pay the
premiums therefor when due, the Agent may, at the Borrowers' expense, do
so.
7.6 Insurance and Condemnation Proceeds. The Borrowers shall
promptly notify the Agent and the Lenders of any loss, damage, or
destruction to the Collateral in excess of $1,000,000 in any single
occurrence or $5,000,000 in any series of occurrences in any one Fiscal
Year, whether or not covered by insurance. Subject to the provisions of the
Intercreditor Agreement and the Mortgages, the Agent hereby is authorized
to collect all insurance and condemnation proceeds in respect of Collateral
directly and after deducting from such proceeds the reasonable expenses, if
any, incurred by the Agent in the collection or handling thereof, the Agent
shall apply such proceeds, ratably, to the reduction of the Obligations as
provided for in Section 3.1(b).
7.7 [Intentionally Omitted]
7.8 Compliance with ERISA. If a failure would result or could
reasonably be expected to result in any material liability to any Borrower,
each Borrower shall, and shall cause each of its ERISA Affiliates to: (a)
maintain each Plan in compliance in all material respects with the
applicable provisions of ERISA, the Code and other federal or state law;
(b) cause each Plan which is qualified under Section 401(a) of the Code to
maintain such qualification; (c) make all required contributions in all
material respects to any Plan subject to Section 412 of the Code; (d) not
engage in a prohibited transaction or violation of the fiduciary
responsibility rules with respect to any Plan; and (e) not engage in a
transaction that could be subject to Section 4069 or 4212(c) of ERISA.
7.9 Mergers, Consolidations or Sales. Neither the Parent nor any
of the other Borrowers shall enter into any transaction of merger,
reorganization, or consolidation, or transfer, sell, assign, lease, or
otherwise dispose of all or any material part of its property, or wind up,
liquidate or dissolve, or agree to do any of the foregoing, except for:
(a) sales of Inventory in the ordinary course of its
business,
(b) sales or other dispositions of Equipment in the ordinary
course of business that are obsolete or no longer useable by such Borrower
in its business with an orderly liquidation value not to exceed $10,000,000
in any Fiscal Year,
(c) sales or other dispositions of Borrowers' patents and
trademarks in an aggregate sale price not to exceed $20,000,000 during the
period beginning on the Closing Date and ending on the Maturity Date,
(d) sales or other dispositions of assets by Borrowers that
have been approved by the Agent prior to the Closing Date and which are set
forth on Schedule 7.9, provided (i) in the case of sales or other
dispositions of Designated Collateral, no Default or Event of Default then
exists, the net proceeds received as a result of such sale are greater than
net tangible book value of the assets so sold and the Net Cash Proceeds are
allocated and paid as required by the Intercreditor Agreement, and (ii) in
the case of dispositions of Revolver Lender Collateral, the Net Cash
Proceeds of such sale or other disposition are utilized or applied in a
manner not prohibited by this Agreement, the Revolving Credit Documents, or
the Intercreditor Agreement,
(e) dissolutions of Subsidiaries that are not Borrowers and
dissolutions of R & B and M M & E in accordance with the provisions of
Section 7.2,
(f) sales or other dispositions of assets not in the
ordinary course of business provided (i) in the case of sales or other
dispositions of Designated Collateral, (A) no Default or Event of Default
then exists, (B) the net sales proceeds received from such sale or sales
exceeds net tangible book value, (C) the proceeds received in the aggregate
from all such sales do not exceed $10,000,000 in any Fiscal Year and do not
exceed $25,000,000 during the term of this Agreement, and (D) the Net Cash
Proceeds received are distributed or applied for the benefit of the Lenders
and the Revolver Agent, in accordance with the provisions of the
Intercreditor Agreement, and (ii) in the case of sales or other
dispositions of Revolver Lender Collateral, the Net Cash Proceeds of such
sale or disposition are utilized or applied in a manner not prohibited by
this Agreement, the Revolving Credit Documents, or the Intercreditor
Agreement,
(g) Parent and the other Borrowers may enter into licensing
agreements in the ordinary course of business provided they are consistent
with reasonable business practices,
(h) sale and leaseback transactions permitted pursuant to
Section 7.19, and
(i) leases, in the ordinary course of Borrowers' business,
of the Real Estate, provided, no Default or Event of Default then exists
and after giving effect to such lease, no material portion of the Inventory
or Equipment is located on the leased premises unless Agent has received
estoppel letters governing access to the leased premises and containing
such other assurances as Agent shall deem reasonably necessary.
7.10 Distributions; Capital Change; Restricted Investments.
Neither the Parent nor any of the other Borrowers shall (a) directly or
indirectly declare or make, or incur any liability to make, any
Distribution, except (i) Distributions to the Parent by the other
Borrowers, and (ii) Distributions to other Borrowers, (b) make any change
in its capital structure which would reasonably be expected to have a
Material Adverse Effect, or (c) make any Restricted Investment. No Borrower
shall transfer any asset now or hereafter located in the United States to
any office of that, or any other, Borrower located outside of the United
States, except (x) to the extent such transfer is permitted in Section
7.15, or (y) if (i) the aggregate amount of all such assets [without regard
to those permitted to be outside the United States pursuant to the
provisions of Section 7.10(x)] is less than $3,000,000 at all times, and
(ii) such assets were transferred in the ordinary course of business and
consistently with Borrowers' past business practices.
7.11 Transactions Affecting Collateral or Obligations. Neither the
Parent nor any of its domestic Subsidiaries shall enter into any
transaction which could reasonably be expected to have a Material Adverse
Effect.
7.12 Guaranties. Neither the Parent nor any of its domestic
Subsidiaries shall make, issue, or become liable on any Guaranty, except
(a) Guaranties of the Obligations in favor of the Agent,
(b) the Foreign Subsidiary Credit Facility Guaranty and only
then if (i) the maximum liability of the Parent under such Guaranty is
equal to or less than $30,000,000 in principal amount plus the costs of
enforcement of the Guaranty, (ii) stock of the foreign Subsidiaries of the
Parent has been pledged (or Parent is obligated to pledge it) to Agent, and
(iii) such Guaranty is unsecured,
(c) unsecured Guaranties in the ordinary course of business
by the Parent requested by vendors or other third parties doing business
with Subsidiaries of Parent,
(d) existing Guaranties listed on Schedule 7.12,
(e) unsecured Guaranties of Permitted Debt,
(f) unsecured Guaranties of intercompany obligations,
(g) unsecured Guaranties of performance bonds entered into
in the ordinary course of Borrowers' business provided the indemnification
provisions contained in the performance bonds are acceptable to Agent in
its reasonable discretion,
(h) Guaranties of the Permitted Revolver Obligations so long
as any such guarantor delivers to Agent contemporaneously with the Guaranty
of the Permitted Revolver Obligations a guaranty of the Obligations that is
substantially identical to the Guaranty of the Permitted Revolver
Obligations or that is otherwise in form and substance reasonably
satisfactory to the Agent, and
(i) other unsecured Guaranties not permitted in the
preceding provisions of this Section 7.12, provided the aggregate liability
of all Borrowers under such Guaranties does not exceed $5,000,000 in the
aggregate at any time.
7.13 Debt. Neither the Parent nor any of the other Borrowers shall
incur or maintain any Debt, other than (collectively, the "Permitted
Debt"):
(a) the Obligations;
(b) Debt described on Schedule 6.9;
(c) Capital Leases of Equipment and purchase money secured
Debt incurred to purchase Equipment provided that (i) Liens securing the
same attach only to the Equipment acquired by the incurrence of such Debt,
and (ii) the aggregate amount of such Debt (including Capital Leases)
outstanding does not exceed $15,000,000 at any time;
(d) Debt incurred in connection with the execution and
delivery by Borrowers of surety and bid bonds in the ordinary course of
business, provided the aggregate liability of the Borrowers thereunder does
not exceed $20,000,000 at any time;
(e) Debt evidencing a refinancing, renewal or extension of
(i) any Debt described on Schedule 6.9 or (ii) the Permitted Revolver
Obligations; provided that (A) in the case of the Debt described on
Schedule 6.9, (1) the principal amount thereof is not increased, (2) the
Liens, if any, securing such refinanced, renewed or extended Debt do not
attach to any assets in addition to those assets, if any, securing the Debt
to be refinanced, renewed or extended, (3) no Person that is not an obligor
or guarantor of such Debt as of the Closing Date and after giving effect to
Section 7.28 hereof shall become an obligor or guarantor thereof except to
the extent, if any, not prohibited herein, (4) the Debt that replaces the
Debt that is refinanced, renewed, or extended shall not contain any new or
accelerated scheduled amortizing payments of principal when compared to the
Debt so refinanced, renewed, or extended, and (5) the terms of such
refinancing, renewal or extension are no less favorable in the aggregate to
the applicable Borrower, the Agent or the Lenders than the original Debt,
and (B) in the case of the Permitted Revolver Obligations, any such
refinancing, renewal or extension complies with the criteria set forth in
the definition of "Bank Claims" described in the Intercreditor Agreement;
(e) Debt consisting of Guaranties permitted pursuant to the
provisions of Section 7.12;
(f) the Permitted Revolver Obligations;
(g) Debt evidenced by the Existing Senior Notes in a
principal amount not to exceed $200,000,000 at any one time outstanding;
and
(h) other Debt in an aggregate principal amount at any time
of not more than $5,000,000.
Anything contained herein or in any of the other Loan Documents to the
contrary notwithstanding, neither Parent nor any of its domestic
Subsidiaries shall incur any Debt (for purposes of this sentence only, as
defined in the Indenture) secured by Restricted Collateral other than such
Debt as exists on the Closing Date or that is permitted by clauses (1)
through (7) of Section 1008 of the Indenture.
7.14 Prepayment. Neither the Parent nor any of its domestic
Subsidiaries shall voluntarily prepay any Debt, except (a) the Obligations
in accordance with the terms of this Agreement, and (b) any other Debt so
long as any such prepayment is made in accordance with the terms of the
Revolving Credit Agreement.
7.15 Transactions with Affiliates. Except as set forth below or as
not prohibited by the provisions of the definition of Restricted
Investment, neither the Parent nor any of the other Borrowers shall, sell,
transfer, distribute, or pay any money or property, including, but not
limited to, any fees or expenses of any nature (including, but not limited
to, any fees or expenses for management services), to any Affiliate that is
not a Borrower, or lend or advance money or property to any Affiliate that
is not a Borrower, or invest in (by capital contribution or otherwise) or
purchase or repurchase any stock or indebtedness, or any property, of any
Affiliate that is not a Borrower, or become liable on any Guaranty (other
than Guaranties permitted under Section 7.12) of the indebtedness,
dividends, or other obligations of any Affiliate that is not a Borrower.
The foregoing notwithstanding, while no Event of Default has occurred and
is continuing, Borrowers may engage in transactions with Affiliates in the
ordinary course of business consistent with past practices, in amounts and
upon terms fully disclosed to the Agent and the Lenders, and no less
favorable to the Borrowers than would be obtained in a comparable
arm's-length transaction with a third party who is not an Affiliate and
otherwise in compliance with the provisions, if applicable, of Section 482
of the Code. For avoidance of doubt, if the referenced transactions result
in the creation of Accounts owed by Foreign Affiliate(s) to one or more of
the Borrowers, such transactions shall be deemed to comply with the
requirements of the preceding sentence for so long as either (i) the amount
of such Accounts is less than $33,000,000 in the aggregate, or (ii) (A)
prior to the date the Credit Facility of the Foreign Subsidiaries is put in
place, the DSO associated with such Accounts is less than one hundred
eighty (180) days, or (B) after the date the Credit Facility of the Foreign
Subsidiaries is put in place, the DSO associated with such Accounts is less
than one hundred sixty-five (165) days.
7.16 Investment Banking and Finder's Fees. Neither the Parent nor
any of its domestic Subsidiaries shall pay or agree to pay, or reimburse
any other party with respect to, any investment banking or similar or
related fee, underwriter's fee, finder's fee, or broker's fee to any Person
in connection with this Agreement, except as set forth in that certain
agreement between the Borrowers and Agent, dated as of May 15, 2001. The
Borrowers shall defend and indemnify the Agent and the Lenders against and
hold them harmless from all claims of any Person that any Borrower is
obligated to pay for any such fees, and all costs and expenses (including
reasonable attorneys' fees) incurred by the Agent and/or any Lender in
connection therewith.
7.17 Business Conducted. The Parent shall not, and shall not
permit any of the other Borrowers to, engage directly or indirectly, in any
general line of business other than the businesses in which the Parent and
the other Borrowers are engaged on the Closing Date.
7.18 Liens. Neither the Parent nor any of the other Borrowers
shall create, incur, assume, or permit to exist any Lien on any property
now owned or hereafter acquired by any of them, except (a) Permitted Liens,
provided that the amount of cash and cash equivalents subject to Liens to
third parties on the Closing Date relating to Liens identified in clause
(i) of the definition of "Permitted Liens" shall not exceed in the
aggregate $5,150,000 and the amount thereof after the Closing Date shall
not at any time exceed $5,150,000 in the aggregate, (b) Liens, if any, in
effect as of the Closing Date and described in Schedule 6.9 securing Debt
described in Schedule 6.9 and any permitted refinancings, renewals, or
extensions of such Debt, (c) Liens securing Capital Leases and purchase
money Debt permitted in Section 7.13, (d) other Liens securing liabilities
in an aggregate amount not to exceed $5,000,000 at any time; provided,
however, that such Liens may not extend to the real property comprising the
Headquarters Property, and (e) Liens on property acquired by Borrowers that
is subject to such Liens at the time of acquisition, provided the Debt
secured by such Liens constitutes Permitted Debt or such Liens are
otherwise permitted under Section 7.18(c) or 7.18(d).
7.19 Sale and Leaseback Transactions. Neither the Parent nor any
of the other Borrowers shall, directly or indirectly, enter into any
arrangement with any Person providing for the Parent or any other Borrower
to lease or rent property that the Parent or such other Borrower has sold
or will sell or otherwise transfer to such Person unless (a) no Default or
Event of Default exists, (b) the net tangible book value of the assets so
sold is less than $15,000,000 in the aggregate in any Fiscal Year or the
transaction is listed and described on Schedule 7.19 hereto, (c) in the
case of the transactions listed on Schedule 7.19, the transaction is
completed in a manner consistent with the description on Schedule 7.19, and
(d) the Net Cash Proceeds realized as a result of such sale and leaseback
transaction have been tendered to the Lenders as a mandatory prepayment of
the Term Loans in accordance with Section 3.1(b); provided, however, that
none of the Borrowers shall enter into any sale and leaseback transaction
(except Sale and Leaseback Transactions (as currently defined in the
Indenture) permitted by clauses (1) through (4) of Section 1009 of the
Indenture) if the Attributable Debt (as currently defined in the Indenture)
in respect of such sale and leaseback transaction exceeds an amount equal
to (i) $125,000,000, minus (ii) the sum of (A) the aggregate amount of Debt
(as currently defined in the Indenture) owed at such time by Parent and its
domestic Subsidiaries and secured by Restricted Collateral (other than Debt
described in clause (iii) below and Debt under the Loan Documents) plus (B)
the aggregate amount of Attributable Debt (as currently defined in the
Indenture) of Parent and its domestic Subsidiaries existing at such time
(except for Sale and Leaseback Transactions (as currently defined in the
Indenture) permitted by clauses (1) through (4) of Section 1009 of the
Indenture), minus (iii) the amount of Debt (as currently defined in the
Indenture) in respect of the Obligations at such time after taking into
account any repayment thereof from the Net Cash Proceeds of such sale and
leaseback transaction, and Parent has delivered to Agent a certificate
executed by a Responsible Officer of the Parent certifying as to such
calculation. For avoidance of doubt, it is understood and agreed that the
provisions of this Section 7.19 are designed to restrict and control
Borrowers' rights with respect to sale and leaseback or similar
transactions, not the execution and delivery of non-capitalized operating
leases.
7.20 New Subsidiaries. The Parent shall not, directly or
indirectly, organize, create, acquire or permit to exist any domestic
Subsidiary other than those listed on Schedule 6.5 or unless the value of
any such Subsidiary's assets at the greater of fair market value or net
tangible book value (a) is less than $1,000,000, and (b) together with the
value of the assets of all Subsidiaries that are not Borrowers (other than
Factory Power) at the greater of fair market value or net tangible book
value is less than $2,000,000.
7.21 Fiscal Year. No Borrower shall change its Fiscal Year.
7.22 Fixed Charge Coverage Ratio. Except to the extent set forth
to the contrary below in this Section 7.22 with respect to the periods
ending September 30, 2001 and December 31, 2001, the Parent and its
Subsidiaries will maintain a Fixed Charge Coverage Ratio for each period of
four consecutive fiscal quarters ended on the last day of each fiscal
quarter set forth below (or with respect to the fiscal quarters ending on
or before June 30, 2001, measured for the period commencing on July 1, 2001
and ending on the last day of such fiscal quarter) of not less than the
respective ratio set forth below opposite each such fiscal quarter:
Period Ending Fixed Charge Coverage Ratio
September 30, 2001 .75 : 1.00
December 31, 2001 .90 : 1.00
March 31, 2002 1.00 : 1.00
June 30, 2002 1.00 : 1.00
September 30, 2002 1.00 : 1.00
December 31, 2002 1.00 : 1.00
March 31, 2003 1.10 : 1.00
June 30, 2003 1.10 : 1.00
September 30, 2003 1.10 : 1.00
December 31, 2003 1.10 : 1.00
March 31, 2004 1.10 : 1.00
June 30, 2004 1.10 : 1.00
(a) If Parent and its Subsidiaries fail to maintain a Fixed
Charge Coverage Ratio of .75 to 1.00 for the three (3) month period ended
September 30, 2001, or if Borrowers fail to deliver timely the quarterly
Financial Statements for the period ended September 30, 2001, pursuant to
Section 5.2(e) and without regard to any payment that may have been
required pursuant to Section 7.22(b) below, Borrowers shall immediately pay
to Agent for the pro rata benefit of the Lenders a Fixed Charge Coverage
Ratio Deficiency Fee of $375,000 concurrently with the earlier of the date
Borrowers deliver, or are obligated to deliver, the Financial Statements
required pursuant to Section 5.2(e) to Agent for the period ended September
30, 2001 (which fee will be refunded if the applicable Financial Statements
when delivered to and approved by Agent reflect a Fixed Charge Coverage
Ratio of .75 to 1.00 for such period). If Borrowers timely deliver such
quarterly Financial Statements and the Fixed Charge Coverage Ratio
reflected therein is at least .50 to 1.00 but less than .75 to 1.00 and
thereafter Borrowers continuously maintain daily Availability (as such term
is defined and determined in accordance with the Revolving Credit
Agreement) of at least $25,000,000 from October 1, 2001 through the date
the Financial Statements for the period ending December 31, 2001 are
delivered to Agent, no Event of Default shall be deemed to have occurred.
If such quarterly Financial Statements reflect a Fixed Charge Coverage
Ratio of (i) less than .50 to 1.00 as of September 30, 2001 measured as set
forth above, or (ii) equal to or greater than .50 to 1.00 but less than .75
to 1.00 and Borrowers fail to maintain daily Availability (as such term is
defined and determined in accordance with the Revolving Credit Agreement)
of at least $25,000,000 from October 1, 2001 through the date the Financial
Statements for the period ending December 31, 2001 are delivered to Agents,
then in either such case under this Section 7.22(a)(i) or (a)(ii), an Event
of Default shall be deemed to have occurred.
(b) If Parent and its Subsidiaries fail to maintain a Fixed
Charge Coverage Ratio of .90 to 1.00 for the six (6) month period ended
December 31, 2001, or if Borrowers fail to deliver timely the annual
Financial Statements for the period ended December 31, 2001, pursuant to
Section 5.2(a), Borrowers shall immediately pay to Agent for the pro rata
benefit of the Lenders and without regard to any payment that may have been
required pursuant to Section 7.22(a) above, a Fixed Charge Coverage Ratio
Deficiency Fee of $375,000 concurrently with earlier of the date Borrowers
deliver, or are obligated to deliver, the Financial Statements required
pursuant to Section 5.2(a) to Agent for the period ended December 31, 2001
(which fee will be refunded if the applicable Financial Statements when
delivered to and approved by Agent reflect a Fixed Charge Coverage Ratio of
.90 to 1.00 for such period). If Borrowers timely deliver such quarterly
Financial Statements and the Fixed Charge Coverage Ratio reflected therein
is at least .75 to 1.00 and thereafter Borrowers continuously maintain
daily Availability (as such term is defined and determined in accordance
with the Revolving Credit Agreement) of at least $25,000,000 from December
31, 2001 through the date the Financial Statements for the period ending
March 31, 2002 are delivered to Agent, no Event of Default shall be deemed
to have occurred. If such quarterly Financial Statements reflect a Fixed
Charge Coverage Ratio of (i) less than .75 to 1.00 as of December 31, 2001
measured as set forth above or (ii) equal to or greater than .75 to 1.00
but less than .90 to 1.00 and Borrowers fail to maintain daily Availability
(as such term is defined and determined in accordance with the Revolving
Credit Facility) of at least $25,000,000 for each day from December 31,
2001 through the date the Financial Statements for the period ending March
31, 2002 are delivered to Agent, then in either such case under this
Section 7.22(b)(i) or (b)(ii), an Event of Default shall be deemed to have
occurred.
7.23 Minimum EBITDA. The Borrowers shall generate EBITDA of not
less than $0 during each quarter of the term of this Agreement.
7.24 Minimum Tangible Net Worth. The Parent and its Subsidiaries
will maintain a Tangible Net Worth as of the end of each month during the
periods set forth below of not less than the respective amount set forth
below opposite each such period:
Month Amount
----- ------
July 31, 2001 through November 30, 2002 $310,000,000
December 31, 2002 through November 30, 2003 $323,620,000
December 31, 2003 through June 30, 2004 $348,735,000
7.25 Capital Expenditures. Capital Expenditures of the Parent and
its Subsidiaries shall not exceed the respective amount for the respective
periods set forth below:
Maximum Capital
Period Expenditures
------ ---------------
January 1, 2001 through June 30, 2001 $15,000,000
January 1, 2001 through September 30, 2001 25,000,000
January 1, 2001 through December 31, 2001 32,000,000
January 1, 2001 through December 31, 2002 43,000,000
January 1, 2003 through December 31, 2003 43,000,000
January 1, 2004 through June 30, 2004 43,000,000
The limitations on Capital Expenditures for calendar year 2001 are
cumulative limitations for said year measured as of the respective dates
set forth above. The limitations for other calendar years are annual
Capital Expenditure limitations, measured quarterly. Capital Expenditures
permitted hereunder and not used during any calendar year may be carried
over into a subsequent calendar year in an amount of up to $10,000,000. For
purposes of the foregoing calculation, proceeds of the sale of obsolete,
fully depreciated or replaced Equipment and proceeds of casualty losses or
condemnation proceedings affecting Equipment that are used by the Borrowers
for the purpose of Capital Expenditures shall be deducted from the
calculation of Capital Expenditures for this covenant.
7.26 [Intentionally Omitted].
7.27 Use of Proceeds. No Borrower shall use any portion of the
Loan proceeds, directly or indirectly, (i) to purchase or carry Margin
Stock, (ii) to repay or otherwise refinance indebtedness of any Borrower or
others incurred to purchase or carry Margin Stock, (iii) to extend credit
for the purpose of purchasing or carrying any Margin Stock, or (iv) to
acquire any security in any transaction that is subject to Section 13 or 14
of the Exchange Act.
7.28 Additional Borrowers. To the extent that the assets of any
Subsidiary (other than Factory Power) that is not a Borrower at any time
measured at net book value is more than $1,000,000, such Subsidiary shall
execute an assumption agreement acceptable to Agent pursuant to which such
Subsidiary shall immediately become a Borrower hereunder, subject to all of
the obligations and liabilities of every other Borrower hereunder.
7.29 Foreign Subsidiaries Stock Pledge. Within sixty (60) days of
the Closing Date, sixty-five percent (65%) of the equity ownership interest
of the Parent and the other Borrowers in their direct foreign Subsidiaries
shall be pledged to Agent, for the benefit of the Lenders, pursuant to a
pledge agreement and other documents, in form and substance acceptable to
Agent. If the Credit Facility of the Foreign Subsidiaries is in effect, a
pledge of the stock of the foreign Subsidiaries is required thereunder, and
no Foreign Subsidiary Credit Facility Guaranty is then in effect or
required in connection with the Credit Facility of the Foreign
Subsidiaries, Agent, at the request of the Parent, shall be authorized to
release the pledge of equity ownership interests of the Parent and the
other Borrowers in their foreign Subsidiaries.
7.30 Further Assurances. Each Borrower shall execute and deliver,
or cause to be executed and delivered, to the Agent and/or the Lenders such
documents and agreements, and shall take or cause to be taken such actions,
as the Agent or any Lender may, from time to time, reasonably request to
carry out the terms and conditions of this Agreement and the other Loan
Documents.
ARTICLE 8
CONDITIONS OF LENDING
8.1 Conditions Precedent to Making of the Term Loan on the Closing
Date. The several obligations of the Lenders to make the Term Loan on the
Closing Date are subject to the following conditions precedent having been
satisfied or waived in a manner satisfactory to the Agent and each Lender:
(a) This Agreement and the other Loan Documents shall have
been executed by each party thereto and each Borrower shall have performed
and complied with all covenants, agreements and conditions contained herein
and the other Loan Documents which are required to be performed or complied
with by the Borrowers before or on such Closing Date.
(b) All representations and warranties made hereunder and in
the other Loan Documents shall be true and correct as if made on such date
except to the extent they relate specifically and only to an earlier date.
(c) No Default or Event of Default shall have occurred and
be continuing after giving effect to the Term Loan to be made on the
Closing Date.
(d) The Agent and the Lenders shall have received such
opinions of counsel for the Parent and the other Borrowers as the Agent or
any Lender shall request, each such opinion to be in a form, scope, and
substance satisfactory to the Agent, the Lenders, and their respective
counsel.
(e) The Agent shall have received ALTA title policies, in
form and substance reasonably acceptable to Agent, with respect to the
Mortgages.
(f) The Agent shall have received each of the material
Revolving Credit Documents, in each case, duly executed and in full force
and effect, and certified by the Secretary of Parent as being a true,
correct, and complete copy thereof.
(g) The Agent shall have received:
(i) original copies of proper financing statements, duly
executed by each Borrower on or before the Closing Date under the
UCC of all jurisdictions that the Agent may deem necessary or
desirable in order to perfect the Agent's Liens; and
(ii) duly executed UCC-3 Termination Statements and such
other instruments, in form and substance satisfactory to the
Agent, as shall be necessary to terminate and satisfy all Liens on
the Property of the Parent and the other Borrowers except
Permitted Liens and other Liens permitted pursuant to Section
7.18.
(h) The Borrowers shall have paid all fees and expenses of
the Agent and the Attorney Costs incurred in connection with any of the
Loan Documents and the transactions contemplated thereby to the extent
invoiced.
(i) The Agent shall have received evidence, in form, scope,
and substance, reasonably satisfactory to the Agent, of all insurance
coverage as required by this Agreement.
(j) The Agent and the Lenders shall have had an opportunity,
if they so choose, to examine the books of account and other records and
files of the Borrowers and to make copies thereof, and to conduct a
pre-closing audit, and the results of such examination and audit shall have
been satisfactory to the Agent and the Lenders in all respects.
(k) All proceedings taken in connection with the execution
of this Agreement, all Loan Documents and all documents and papers relating
thereto shall be satisfactory in form, scope, and substance to the Agent
and the Lenders.
(l) Agent shall have received such evidence as the Agent may
require demonstrating that the Borrowers have received not less than
$115,000,000 in unrestricted cash proceeds from the Pension Reversion.
(m) The completion by Agent of its due diligence in
connection with the Loan Documents, with the results thereof being
acceptable to Agent.
(n) The execution and delivery by Agent and Revolver Agent
of an Intercreditor Agreement in form and substance satisfactory to Agent
and the Lenders.
(o) The Borrowers shall have no liability under the (i)
Foreign Bank Guaranties and (ii) corporate Guaranties to banks reflected on
Schedule 8.1(o) shall have terminated.
(p) Stock pledges in favor of Agent pursuant to documents
approved by Agent of the stock of the Borrowers other than the Parent.
(q) Without limiting the generality of the items described
above, the Borrowers and each Person guarantying or securing payment of the
Obligations shall have delivered or caused to be delivered to the Agent (in
form and substance reasonably satisfactory to the Agent), the financial
statements, instruments, resolutions, documents, agreements, certificates,
opinions and other items set forth on the "Closing Checklist" delivered by
the Agent to the Borrowers prior to the Closing Date.
The acceptance by the Borrowers of the Term Loan made on the
Closing Date shall be deemed to be a representation and warranty made by
each Borrower to the effect that all of the conditions precedent to the
making of such Term Loan have been satisfied or waived by the Lenders, with
the same effect as delivery to the Agent and the Lenders of a certificate
signed by a Responsible Officer of each Borrower, dated the Closing Date,
to such effect.
Execution and delivery to the Agent by a Lender of a counterpart
of this Agreement shall be deemed confirmation by such Lender that (i) all
conditions precedent in this Section 8.1 have been fulfilled to the
satisfaction of such Lender, (ii) the decision of such Lender to execute
and deliver to the Agent an executed counterpart of this Agreement was made
by such Lender independently and without reliance on the Agent or any other
Lender as to the satisfaction of any condition precedent set forth in this
Section 8.1, and (iii) all documents sent to such Lender for approval
consent, or satisfaction were acceptable to such Lender
ARTICLE 9
DEFAULT; REMEDIES
9.1 Events of Default. It shall constitute an event of default
("Event of Default") if any one or more of the following shall occur for
any reason:
(a) any failure by any Borrower to pay the principal of or
interest or premium on any of the Obligations or any fee or other amount
owing hereunder within three (3) Business Days of the date due, whether
upon demand or otherwise;
(b) any representation or warranty made or deemed made by
any Borrower in this Agreement or by the Parent or any of the other
Borrowers in any of the other Loan Documents, any Financial Statement, or
any certificate furnished by the Parent or any of the other Borrowers under
the Loan Documents at any time to the Agent or any Lender shall prove to be
untrue in any material respect as of the date on which made, deemed made,
or furnished;
(c) (i) any default shall occur in the observance or
performance of any of the covenants and agreements contained in Sections
5.2(l), 7.2, 7.5, 7.9 through 7.29 herein, or in Section 11 of the Security
Agreement, (ii) any default shall occur in the observance or performance of
any of the covenants and agreements contained in Section 5.2 (other than
5.2(l)) or in Section 5.3 and such default shall continue for three (3)
days or more; (iii) any default shall occur in the observance or
performance of any of the covenants and agreements contained in Sections
7.4 or 7.7 and such default shall continue for thirty (30) days or more
after the date that any Responsible Officer has knowledge of the existence
of such default; or (iv) any default shall occur in the observance or
performance of any of the other covenants or agreements contained in any
other Section of this Agreement or any other Loan Document, any other Loan
Documents, or any other agreement entered into at any time to which the
Parent or any other Borrower and the Agent or any Lender are party and such
default shall continue for thirty (30) days or more;
(d) any default shall occur (i) with respect to any Debt
(other than the Obligations) of the Parent or any of the other Borrowers in
(A) the individual outstanding principal amount of which exceeds
$5,000,000, or (B) the aggregate principal amount of which exceeds
$5,000,000, or (ii) under any agreement(s) or instrument(s) under or
pursuant to which any such Debt may have been issued, created, assumed, or
guaranteed by the Parent or any of the other Borrowers, and such default
shall continue for more than the period of grace, if any, therein
specified, if the effect thereof (with or without the giving of notice or
further lapse of time or both) is to accelerate, or to permit the holders
of any such Debt to accelerate, the maturity of any such Debt; or any such
Debt shall be declared due and payable or be required to be prepaid (other
than by regularly scheduled required prepayment(s)) prior to the stated
maturity thereof due to a default thereunder;
(e) any Borrower shall (i) file a voluntary petition in
bankruptcy or file a voluntary petition or an answer or otherwise commence
any action or proceeding seeking reorganization, arrangement or
readjustment of its debts or for any other relief under the federal
Bankruptcy Code, as amended, or under any other bankruptcy or insolvency
act or law, state or federal, now or hereafter existing, or consent to,
approve of, or acquiesce in, any such petition, action or proceeding; (ii)
apply for or acquiesce in the appointment of a receiver, assignee,
liquidator, sequestrator, custodian, monitor, trustee or similar officer
for it or for all or any material part of its property; (iii) make an
assignment for the benefit of creditors; or (iv) be unable generally to pay
its debts as they become due;
(f) an involuntary petition shall be filed or an action or
proceeding otherwise commenced seeking reorganization, arrangement,
consolidation or readjustment of the debts of any Borrower or for any other
relief under the federal Bankruptcy Code, as amended, or under any other
bankruptcy or insolvency act or law, state or federal, now or hereafter
existing and such petition or proceeding shall not be dismissed within
sixty (60) days after the filing or commencement thereof or an order of
relief shall be entered with respect thereto;
(g) a receiver, assignee, liquidator, sequestrator,
custodian, monitor, trustee or similar officer for any Borrower or for all
or any part of its property shall be appointed or a warrant of attachment,
execution or similar process shall be issued against all or any material
part of the property of any Borrower;
(h) any Borrower shall file a certificate of dissolution
under applicable state law or shall be liquidated, dissolved or wound-up or
shall commence or have commenced against it any action or proceeding for
dissolution, winding-up or liquidation, or shall take any corporate action
in furtherance thereof, except as otherwise permitted under Section 7.9
(other than pursuant to the terms hereof at a time when, or after giving
effect to such termination, no Default or Event of Default occurs);
(i) all or any material part of the property of any Borrower
shall be nationalized or expropriated, seized or otherwise appropriated, or
custody or control of such property or of any such Borrower shall be
assumed by any Governmental Authority or any court of competent
jurisdiction at the instance of any Governmental Authority, except where
contested in good faith by proper proceedings diligently pursued where a
stay of enforcement is in effect;
(j) any Loan Document shall be terminated (other than
pursuant to the terms hereof at a time when or after giving effect to such
termination no Default or Event of Default occurs), revoked or declared
void or invalid or unenforceable or challenged by any Borrower or in
writing by any other obligor;
(k) one or more judgments, orders, decrees or arbitration
awards is entered against any one or more of the Borrowers involving in the
aggregate liability (to the extent not covered by independent third-party
insurance as to which the insurer does not dispute coverage) as to any
single or related or unrelated series of transactions, incidents or
conditions, of $3,000,000 or more, and the same shall remain unsatisfied,
unvacated and unstayed pending appeal for a period of thirty (30) days
after the entry thereof;
(l) any loss, theft, damage or destruction of any item or
items of Collateral or other property of the Parent or any other Borrower
occurs which could reasonably be expected to cause a Material Adverse
Effect and is not adequately covered by insurance;
(m) there is filed against the Parent or any of the other
Borrowers any action, suit or proceeding under any federal or state
racketeering statute (including the Racketeer Influenced and Corrupt
Organization Act of 1970), which action, suit or proceeding (i) is not
dismissed within one hundred twenty (120) days, and (ii) could reasonably
be expected to result in the confiscation or forfeiture of any material
portion of the Collateral;
(n) for any reason other than the failure of the Agent to
take any action available to it to maintain perfection of the Agent's
Liens, pursuant to the Loan Documents, any Loan Document ceases to be in
full force and effect except as otherwise permitted by its terms or any
Lien with respect to any material portion of the Collateral intended to be
secured thereby ceases to be, or is not, valid, perfected and prior to all
other Liens (other than Permitted Liens) or is terminated, revoked or
declared void;
(o) an ERISA Event shall occur with respect to a Pension
Plan or Multi-employer Plan which has resulted or could reasonably be
expected to result in liability of any one or more of the Borrowers under
ERISA or the Code to anyone (excluding any excise or other taxes under the
Code that the Parent has paid is obligated to pay in connection with the
Pension Reversion) in an aggregate amount in excess of $20,000,000; (ii)
the aggregate amount of Unfunded Pension Liability among all Pension Plans
at any time exceeds $50,000,000; (iii) any Borrower or any ERISA Affiliate
shall fail to pay when due, after the expiration of any applicable grace
period, any installment payment with respect to its withdrawal liability
under Section 4201 of ERISA under a Multi-employer Plan in an aggregate
amount in excess of $20,000,000; or (iv) all the Foreign Plans in the
aggregate have liabilities in excess of assets (determined in accordance
with the assumptions under such Foreign Plan and under applicable law used
for funding the Foreign Plan pursuant to reasonable accounting standards)
in an amount which would result or could reasonably be expected to result
in a Material Adverse Effect;
(p) there occurs a Change of Control;
(q) Parent makes, voluntarily or involuntarily, a payment or
a series of payments under any Guaranty described in Section 7.12(c)
relating to an event giving rise to payment liability under such Guaranty
in respect of a Subsidiary that is not a Borrower in an aggregate amount of
$1,000,000 or more and after giving effect to such payment, Availability
(as such term is defined and determined in the Revolving Credit Agreement)
is not then the greater of (i) at least three (3) times the amount of such
payment (or in the case of multiple payments under a single Guaranty, three
(3) times the aggregate amount of such payments), or (ii) $10,000,000; or
(r) there occurs an event having a Material Adverse Effect.
9.2 Remedies.
(a) If an Event of Default exists, the Agent may, or shall
at the direction of the Majority Lenders, at any time, without notice to or
demand on the Borrowers: (A) declare the Term Loan and/or any other of the
Obligations to be immediately due and payable; provided, however, that upon
the occurrence of any Event of Default described in Sections 9.1(e),
9.1(f), 9.1(g), or 9.1(h), the Term Loan and all other Obligations shall
automatically become immediately due and payable without notice or demand
of any kind, and (B) pursue its other rights and remedies under the Loan
Documents and applicable law.
(b) If an Event of Default has occurred and is continuing:
(i) the Agent shall have for the benefit of the Lenders, in addition to all
other rights of the Agent and the Lenders, the rights and remedies of a
secured party under the Loan Documents and the UCC; (ii) the Agent may, at
any time, take possession of the Collateral and keep it on any Borrower's
premises, at no cost to the Agent or any Lender, or remove any part of it
to such other place or places as the Agent may desire, or the Borrowers
shall, upon the Agent's demand, at the Borrowers' cost, assemble the
Collateral and make it available to the Agent at a place reasonably
convenient to the Agent; and (iii) the Agent may sell and deliver any
Collateral at public or private sales, for cash, upon credit or otherwise,
at such prices and upon such terms as the Agent deems advisable, in its
sole discretion, and may, if the Agent deems it reasonable, postpone or
adjourn any sale of the Collateral by an announcement at the time and place
of sale or of such postponed or adjourned sale without giving a new notice
of sale. Without in any way requiring notice to be given in the following
manner, each Borrower agrees that any notice by the Agent of sale,
disposition or other intended action hereunder or in connection herewith,
whether required by the UCC or otherwise, shall constitute reasonable
notice to each Borrower if such notice is mailed by registered or certified
mail, return receipt requested, postage prepaid, or is delivered personally
against receipt, at least ten (10) Business Days prior to such action to
each Borrower's address specified in or pursuant to Section 13.8. If any
Collateral is sold on terms other than payment in full at the time of sale,
no credit shall be given against the Obligations until the Agent or the
Lenders receive payment, and if the buyer defaults in payment, the Agent
may resell the Collateral without further notice to any Borrower. In the
event the Agent seeks to take possession of all or any portion of the
Collateral by judicial process, each Borrower irrevocably waives to the
maximum extent permitted by applicable law: (A) the posting of any bond,
surety or security with respect thereto which might otherwise be required;
(B) any demand for possession prior to the commencement of any suit or
action to recover the Collateral; and (C) any requirement that the Agent
retain possession and not dispose of any Collateral until after trial or
final judgment. Each Borrower agrees that the Agent has no obligation to
preserve rights to the Collateral or marshal any Collateral for the benefit
of any Person. During the existence of an Event of Default, the Agent is
hereby granted a license or other right to use, without charge, each
Borrower's labels, patents, copyrights, name, trade secrets, trade names,
trademarks, and advertising matter, or any similar property, solely for the
limited purpose of completing production of, advertising or selling any
Collateral, and the Borrowers' rights under all licenses and all franchise
agreements shall inure to the Agent's benefit for such purpose. The
proceeds of sale shall be applied first to all expenses of sale, including
reasonable attorneys' fees, and then to the Obligations. The Agent will
return any excess to the Borrowers and the Borrowers shall remain liable
for any deficiency.
(c) If an Event of Default occurs and is continuing, each
Borrower hereby waives all rights to notice and hearing prior to the
exercise by the Agent of the Agent's rights to repossess the Collateral
without judicial process or to reply, attach or levy upon the Collateral
without notice or hearing, except with respect to notices that are required
as a matter of law and cannot be waived.
ARTICLE 10
TERM
10.1 Term. The Term Loan shall be repaid in full in immediately
available funds on the Maturity Date unless sooner prepaid in accordance
with the terms hereof.
ARTICLE 11
AMENDMENTS; WAIVERS; PARTICIPATIONS; ASSIGNMENTS; SUCCESSORS
11.1 Amendments and Waivers.
(a) No amendment or waiver of any provision of this
Agreement or any other Loan Document, and no consent with respect to any
departure by the Borrowers therefrom, shall be effective unless the same
shall be in writing and signed by the Majority Lenders (or by the Agent at
the written request of the Majority Lenders) and the Borrowers and then any
such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given; provided, however, that no such
waiver, amendment, or consent shall, unless in writing and signed by the
Agent, all the Lenders and the Borrowers, do any of the following:
(i) postpone or delay any date fixed by this Agreement or
any other Loan Document for any payment of principal, interest,
fees or other amounts due to the Lenders (or any of them)
hereunder or under any other Loan Document;
(ii) reduce the principal of, or the rate of interest
specified herein on the Term Loan, or any fees or other amounts
payable hereunder or under any other Loan Document;
(iii) change the percentage of the aggregate unpaid
principal amount of the Term Loan which is required for the
Lenders or any of them to take any action hereunder;
(iv) amend this Section or any provision of this Agreement
providing for consent or other action by all Lenders;
(v) release any Guaranties of the Obligations or release
Collateral other than as permitted by Section 12.11; or
(vi) change the definition of "Majority Lenders."
provided, however, that no amendment, waiver or consent shall, unless in
writing and signed by the Agent, affect the rights or duties of the Agent
under this Agreement or any other Loan Document.
(b) If any fees are paid to the Lenders as consideration for
amendments, waivers or consents with respect to this Agreement, at Agent's
election, such fees may be paid only to those Lenders that agree to such
amendments, waivers or consents within the time specified for submission
thereof.
(c) If, in connection with any proposed amendment, waiver or
consent (a "Proposed Change"):
(i) requiring the consent of all Lenders, the consent of
Majority Lenders is obtained, but the consent of other Lenders is
not obtained (any such Lender whose consent is not obtained as
described in this clause (i) and in clause (ii) below being
referred to as a "Non-Consenting Lender"), or
(ii) requiring the consent of Majority Lenders, the consent
of Majority Lenders is obtained,
then, so long as the Agent is not a Non-Consenting Lender, at the Parent's
request, the Agent or an Eligible Assignee shall have the right (but not
the obligation) with the Agent's approval, not to be unreasonably withheld,
to purchase from the Non-Consenting Lenders, and the Non-Consenting Lenders
agree that they shall sell, all the Non-Consenting Lenders' interests in
the Obligations then outstanding for an amount equal to the principal
balances thereof and all accrued interest and fees with respect thereto
through the date of sale pursuant to Assignment and Acceptance
Agreement(s), without premium or discount.
11.2 Assignments; Participations.
(a) Any Lender may, upon prior written notice to the Agent
and in consultation with the Parent (which consultation shall not be
binding on such Lender or the Agent), assign and delegate to one or more
Eligible Assignees (each an "Assignee") all, or any ratable part of all, of
the Term Loan and the other rights and obligations of such Lender
hereunder, in a minimum amount of $5,000,000; provided, however, that,
unless an assignor Lender has assigned and delegated all of its Pro Rata
Share of the Term Loan, no such assignment and/or delegation shall be
permitted unless, after giving effect thereto, such assignor Lender retains
an interest in the Obligations in a minimum amount of $5,000,000; provided,
however, that that there shall be no such limitations or restrictions in
connection with the assignments contemplated on or about the Closing Date
(the "Closing Date Assignments") or in connection with any subsequent
assignments by the Lenders party to the Agreement immediately after giving
effect to the Closing Date Assignments to any Affiliate, fund, or other
investment vehicle organized, controlled or managed by any such Lender;
provided, however, that the Borrowers and the Agent may continue to deal
solely and directly with such Lender in connection with the interest so
assigned to an Assignee until (i) written notice of such assignment,
together with payment instructions, addresses and related information with
respect to the Assignee, shall have been given to the Parent and the Agent
by such Lender and the Assignee; (ii) such Lender and its Assignee shall
have delivered to the Parent and the Agent an Assignment and Acceptance in
substantially the form of Exhibit C ("Assignment and Acceptance") together
with any note or notes subject to such assignment; and (iii) the assignor
Lender or Assignee has paid to the Agent a processing fee in the amount of
$3,500. The Borrowers agree to promptly execute and deliver new promissory
notes and replacement promissory notes as reasonably requested by the Agent
to evidence assignments of the Term Loan in accordance herewith. In
connection with any assignment hereunder, each Lender agrees to return to
Parent any old Term Notes marked cancelled promptly upon the consummation
of any assignment hereunder so long as such Lender has received a
substitute Term Note evidencing its Pro Rata Share of the Term Loan, if
any, after giving effect to the assignment.
(b) From and after the date that the Agent notifies the
assignor Lender that it has received an executed Assignment and Acceptance
and payment of the above-referenced processing fee, (i) the Assignee
thereunder shall be a party hereto and shall have the rights and
obligations of a Lender under the Loan Documents, and (ii) the assignor
Lender shall, to the extent that rights and obligations hereunder and under
the other Loan Documents have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its
obligations under this Agreement (and in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be
a party hereto).
(c) By executing and delivering an Assignment and
Acceptance, the assigning Lender thereunder and the Assignee thereunder
confirm to and agree with each other and the other parties hereto as
follows: (i) other than as provided in such Assignment and Acceptance, such
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other Loan Document furnished pursuant
hereto or the attachment, perfection, or priority of any Lien granted by
the Borrowers to the Agent or any Lender in the Collateral; (ii) such
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrowers or
the performance or observance by the Borrowers of any of its obligations
under this Agreement or any other Loan Document furnished pursuant hereto;
(iii) such Assignee confirms that it has received a copy of this Agreement,
together with such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such Assignee will, independently and
without reliance upon the Agent, such assigning Lender or any other Lender,
and based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or not taking
action under this Agreement; (v) such Assignee appoints and authorizes the
Agent to take such action as agent on its behalf and to exercise such
powers under this Agreement as are delegated to the Agent by the terms
hereof, together with such powers, including the discretionary rights and
incidental power, as are reasonably incidental thereto; and (vi) such
Assignee agrees that it will perform in accordance with their terms all of
the obligations which by the terms of this Agreement are required to be
performed by it as a Lender.
(d) Immediately upon satisfaction of the requirements of
Section 11.2(a), this Agreement shall be deemed to be amended to the
extent, but only to the extent, necessary to reflect the addition of the
Assignee and the resulting adjustment of the respective Pro Rata Shares of
the Term Loan arising therefrom. The portion of the Term Loan allocated to
each Assignee shall reduce the Pro Rata Share of the Term Loan of the
assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more
commercial banks, financial institutions, or other Persons not Affiliates
of any Borrower (a "Participant") participating interests in such Lender's
Pro Rata Share of the Term Loan and the other interests of that Lender (the
"originating Lender") hereunder and under the other Loan Documents;
provided, however, that (i) the originating Lender's obligations under this
Agreement shall remain unchanged, (ii) the originating Lender shall remain
solely responsible for the performance of such obligations, (iii) the
Borrowers and the Agent shall continue to deal solely and directly with the
originating Lender in connection with the originating Lender's rights and
obligations under this Agreement and the other Loan Documents, and (iv) no
Lender shall transfer or grant any participating interest under which the
Participant has rights to approve any amendment to, or any consent or
waiver with respect to, this Agreement or any other Loan Document except
the matters set forth in Section 11.1(a) (i), (ii) and (iii), and all
amounts payable by the Borrowers hereunder shall be determined as if such
Lender had not sold such participation; except that, if amounts outstanding
under this Agreement are due and unpaid, or shall have become due and
payable upon the occurrence of an Event of Default, each Participant shall
be deemed to have the right of set-off in respect of its participating
interest in amounts owing under this Agreement to the same extent and
subject to the same limitation as if the amount of its participating
interest were owing directly to it as a Lender under this Agreement.
(f) Notwithstanding any other provision in this Agreement,
any Lender may at any time create a security interest in, or pledge, all or
any portion of its rights under and interest in this Agreement in favor of
any Federal Reserve Bank in accordance with Regulation A of the Federal
Reserve Board or U.S. Treasury Regulation 31 CFR ss.203.14, and such
Federal Reserve Bank may enforce such pledge or security interest in any
manner permitted under applicable law.
ARTICLE 12
THE AGENT
12.1 Appointment and Authorization. Each Lender hereby designates
and appoints SVIM as its Agent under this Agreement and the other Loan
Documents and each Lender hereby irrevocably authorizes the Agent to take
such action on its behalf under the provisions of this Agreement and each
other Loan Document and to exercise such powers and perform such duties as
are expressly delegated to it by the terms of this Agreement or any other
Loan Document, together with such powers as are reasonably incidental
thereto. The Agent agrees to act as such on the express conditions
contained in this Article 12. The provisions of this Article 12 are solely
for the benefit of the Agent and the Lenders and no Borrower shall have any
rights as a third party beneficiary of any of the provisions contained in
this Article 12 (except for the provisions of Section 12.10, 12.11(a),
12.11(b) and 12.18(d)). Notwithstanding any provision to the contrary
contained elsewhere in this Agreement or in any other Loan Document, the
Agent shall not have any duties or responsibilities, except those expressly
set forth herein, nor shall the Agent have or be deemed to have any
fiduciary relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be
read into this Agreement or any other Loan Document or otherwise exist
against the Agent. Without limiting the generality of the foregoing
sentence, the use of the term "agent" in this Agreement with reference to
the Agent is not intended to connote any fiduciary or other implied (or
express) obligations arising under agency doctrine of any applicable law.
Instead, such term is used merely as a matter of market custom, and is
intended to create or reflect only an administrative relationship between
independent contracting parties. Except as expressly otherwise provided in
this Agreement, the Agent shall have and may use its sole discretion with
respect to exercising or refraining from exercising any discretionary
rights or taking or refraining from taking any actions which the Agent is
expressly entitled to take or assert under this Agreement and the other
Loan Documents, including the exercise of remedies pursuant to Section 9.2,
and any action so taken or not taken shall be deemed consented to by the
Lenders.
12.2 Delegation of Duties. The Agent may execute any of its duties
under this Agreement or any other Loan Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Agent shall not be
responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects as long as such selection was made without
gross negligence or willful misconduct.
12.3 Liability of Agent. None of the Agent-Related Persons shall
(i) be liable for any action taken or omitted to be taken by any of them
under or in connection with this Agreement or any other Loan Document or
the transactions contemplated hereby (except for its own gross negligence
or willful misconduct), or (ii) be responsible in any manner to any of the
Lenders for any recital, statement, representation or warranty made by the
Parent or any other Borrower or Affiliate of the Parent, or any officer
thereof, contained in this Agreement or in any other Loan Document, or in
any certificate, report, statement or other document referred to or
provided for in, or received by the Agent under or in connection with, this
Agreement or any other Loan Document, or the validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other
Loan Document, or for any failure of any Borrower or any other party to any
Loan Document to perform its obligations hereunder or thereunder. No
Agent-Related Person shall be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of the Parent or
any of the Parent's Subsidiaries or Affiliates.
12.4 Reliance by Agent. The Agent shall be entitled to rely, and
shall be fully protected in relying, upon any writing, resolution, notice,
consent, certificate, affidavit, letter, telegram, facsimile, telex or
telephone message, statement or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or made by the
proper Person or Persons, and upon advice and statements of legal counsel
(including counsel to the Borrowers), independent accountants and other
experts selected by the Agent. The Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other
Loan Document unless it shall first receive such advice or concurrence of
the Majority Lenders as it deems appropriate and, if it so requests, it
shall first be indemnified to its satisfaction by the Lenders against any
and all liability and expense which may be incurred by it by reason of
taking or continuing to take any such action. The Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this
Agreement or any other Loan Document in accordance with a request or
consent of the Majority Lenders (or all Lenders if so required by Section
11.1) and such request and any action taken or failure to act pursuant
thereto shall be binding upon all of the Lenders.
12.5 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default,
unless the Agent shall have received written notice from a Lender or the
Parent referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default." The Agent
will notify the Lenders of its receipt of any such notice. The Agent shall
take such action with respect to such Default or Event of Default as may be
requested by the Majority Lenders in accordance with Section 9; provided,
however, that unless and until the Agent has received any such request, the
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it
shall deem advisable.
12.6 Credit Decision. Each Lender acknowledges that none of the
Agent-Related Persons has made any representation or warranty to it, and
that no act by the Agent hereinafter taken, including any review of the
affairs of the Parent and its Affiliates, shall be deemed to constitute any
representation or warranty by any Agent-Related Person to any Lender. Each
Lender represents to the Agent that it has, independently and without
reliance upon any Agent-Related Person and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, operations, property, financial
and other condition and creditworthiness of the Parent and its Affiliates,
and all applicable bank regulatory laws relating to the transactions
contemplated hereby, and made its own decision to enter into this Agreement
and to extend credit to the Borrowers. Each Lender also represents that it
will, independently and without reliance upon any Agent-Related Person and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Loan
Documents, and to make such investigations as it deems necessary to inform
itself as to the business, prospects, operations, property, financial and
other condition and creditworthiness of the Borrowers. Except for notices,
reports and other documents expressly herein required to be furnished to
the Lenders by the Agent, the Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, prospects, operations, property, financial and
other condition or creditworthiness of the Borrowers which may come into
the possession of any of the Agent-Related Persons.
12.7 Indemnification. Whether or not the transactions contemplated
hereby are consummated, the Lenders shall indemnify upon demand the
Agent-Related Persons (to the extent not reimbursed by or on behalf of the
Borrowers and without limiting the obligation of the Borrowers to do so),
in accordance with their Pro Rata Shares, from and against any and all
Indemnified Liabilities as such term is defined in Section 13.11; provided,
however, that no Lender shall be liable for the payment to the
Agent-Related Persons of any portion of such Indemnified Liabilities
resulting solely from such Person's gross negligence or willful misconduct.
Without limitation of the foregoing, each Lender shall reimburse the Agent
upon demand for its Pro Rata Share of any costs or out-of-pocket expenses
(including Attorney Costs) incurred by the Agent in connection with the
preparation, execution, delivery, administration, modification, amendment
or enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or responsibilities
under, this Agreement, any other Loan Document, or any document
contemplated by or referred to herein, to the extent that the Agent is not
reimbursed for such expenses by or on behalf of the Borrowers. The
undertaking in this Section shall survive the payment of all Obligations
hereunder and the resignation or replacement of the Agent.
12.8 Agent in Individual Capacity. SVIM and its Affiliates may
make loans to, issue letters of credit for the account of, accept deposits
from, acquire equity interests in and generally engage in any kind of
banking, trust, financial advisory, underwriting or other business with the
Parent and its Subsidiaries and Affiliates as though SVIM were not the
Agent hereunder and without notice to or consent of the Lenders. SVIM or
its Affiliates may receive information regarding the Parent, each Borrower,
their Affiliates and Account Debtors (including information that may be
subject to confidentiality obligations in favor of the Parent, or such
Borrower, or such Subsidiary) and acknowledge that the Agent and SVIM shall
be under no obligation to provide such information to them.
12.9 Successor Agent. The Agent may resign as Agent upon at least
30 days' prior notice to the Lenders and the Parent, such resignation to be
effective upon the acceptance of a successor agent to its appointment as
Agent. In the event SVBF and SVBFII sells all of its Pro Rata Share of the
Term Loan as part of a sale, transfer or other disposition by SVBF and
SVBFII of substantially all of its loan portfolio, SVIM shall resign as
Agent and such purchaser or transferee shall become the successor Agent
hereunder. Subject to the foregoing, if the Agent resigns under this
Agreement, the Majority Lenders shall appoint from among the Lenders in
consultation with the Borrowers (which shall not be binding) a successor
agent for the Lenders. If no successor agent is appointed prior to the
effective date of the resignation of the Agent, the Agent may appoint,
after consulting with the Lenders and the Parent, a successor agent from
among the Lenders. Upon the acceptance of its appointment as successor
agent hereunder, such successor agent shall succeed to all the rights,
powers and duties of the retiring Agent and the term "Agent" shall mean
such successor agent and the retiring Agent's appointment, powers and
duties as Agent shall be terminated. After any retiring Agent's resignation
hereunder as Agent, the provisions of this Article 12 shall continue to
inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent under this Agreement.
12.10 Withholding Tax.
(a) If any Lender is a "foreign corporation, partnership or
trust" within the meaning of the Code and such Lender claims exemption
from, or a reduction of, U.S. withholding tax under Sections 1441 or 1442
of the Code, such Lender agrees with and in favor of the Agent, to deliver
to the Agent:
(i) if such Lender claims an exemption from, or a reduction
of, withholding tax under a United States of America tax treaty,
properly completed IRS Forms W-8BEN and W-8ECI before the payment
of any interest in the first calendar year and before the payment
of any interest in each third succeeding calendar year during
which interest may be paid under this Agreement;
(ii) if such Lender claims that interest paid under this
Agreement is exempt from United States of America withholding tax
because it is effectively connected with a United States of
America trade or business of such Lender, two properly completed
and executed copies of IRS Form W-8ECI before the payment of any
interest is due in the first taxable year of such Lender and in
each succeeding taxable year of such Lender during which interest
may be paid under this Agreement, and IRS Form W-9; and
(iii) such other form or forms as may be required under the
Code or other laws of the United States of America as a condition
to exemption from, or reduction of, United States of America
withholding tax.
Such Lender agrees to promptly notify the Agent of any change in
circumstances which would modify or render invalid any claimed exemption or
reduction.
(b) If any Lender claims exemption from, or reduction of,
withholding tax under a United States of America tax treaty by providing
IRS Form FW-8BEN and such Lender sells, assigns, grants a participation in,
or otherwise transfers all or part of the Obligations owing to such Lender,
such Lender agrees to notify the Agent of the percentage amount in which it
is no longer the beneficial owner of Obligations of the Borrowers to such
Lender. To the extent of such percentage amount, the Agent will treat such
Lender's IRS Form W-8BEN as no longer valid.
(c) If any Lender claiming exemption from United States of
America withholding tax by filing IRS Form W-8ECI with the Agent sells,
assigns, grants a participation in, or otherwise transfers all or part of
the Obligations owing to such Lender, such Lender agrees to undertake sole
responsibility for complying with the withholding tax requirements imposed
by Sections 1441 and 1442 of the Code.
(d) If any Lender is entitled to a reduction in the
applicable withholding tax, the Agent may withhold from any interest
payment to such Lender an amount equivalent to the applicable withholding
tax after taking into account such reduction. If the forms or other
documentation required by subsection (a) of this Section are not delivered
to the Agent, then the Agent may withhold from any interest payment to such
Lender not providing such forms or other documentation an amount equivalent
to the applicable withholding tax.
(e) If the IRS or any other Governmental Authority of the
United States of America or other jurisdiction asserts a claim that the
Agent did not properly withhold tax from amounts paid to or for the account
of any Lender (because the appropriate form was not delivered, was not
properly executed, or because such Lender failed to notify the Agent of a
change in circumstances which rendered the exemption from, or reduction of,
withholding tax ineffective, or for any other reason) such Lender shall
indemnify the Agent fully for all amounts paid, directly or indirectly, by
the Agent as tax or otherwise, including penalties and interest, and
including any taxes imposed by any jurisdiction on the amounts payable to
the Agent under this Section, together with all costs and expenses
(including Attorney Costs). The obligation of the Lenders under this
subsection shall survive the payment of all Obligations and the resignation
or replacement of the Agent.
12.11 Collateral Matters.
(a) The Lenders hereby irrevocably authorize the Agent, at
its option and in its sole discretion, to release any Agent's Liens upon
any Collateral (i) upon the termination of this Agreement and payment and
satisfaction in full in immediately available funds by Borrowers of the
Term Loan and all other non-contingent Obligations then due and payable;
(ii) constituting property being sold or disposed of if Parent certifies to
the Agent that the sale or disposition is made in compliance with Section
7.9 (and the Agent may rely conclusively on any such certificate, without
further inquiry); (iii) constituting property in which the Borrowers owned
no interest at the time the Lien was granted or at any time thereafter; or
(iv) constituting property leased to any Borrower under a lease which has
expired or been terminated in a transaction permitted under this Agreement.
Except as provided above, the Agent will not release any of the Agent's
Liens without the prior written authorization of the Lenders; provided that
the Agent may, in its discretion, release the Agent's Liens on Collateral
valued in the aggregate not in excess of $1,000,000 during each Fiscal Year
without the prior written authorization of the Lenders and the Agent may
release the Agent's Liens on Collateral valued in the aggregate not in
excess of $5,000,000 during each Fiscal Year with the prior written
authorization of Majority Lenders. Upon request by the Agent or the
Borrowers at any time, the Lenders will confirm in writing the Agent's
authority to release any Agent's Liens upon particular types or items of
Collateral pursuant to this Section 12.11.
(b) Upon receipt by the Agent of any authorization required
pursuant to Section 12.11(a) from the Lenders (or the Majority Lenders, if
applicable) of the Agent's authority to release Agent's Liens upon
particular types or items of Collateral, and upon at least five (5)
Business Days (or such shorter period to which Agent may agree) prior
written request by the Borrowers, the Agent shall (and is hereby
irrevocably authorized by the Lenders to) execute such documents as may be
necessary to evidence the release of the Agent's Liens upon such
Collateral; provided, however, that (i) the Agent shall not be required to
execute any such document on terms which, in the Agent's reasonable
opinion, would expose the Agent to liability or create any obligation or
entail any consequence other than the release of such Liens without
recourse or warranty, and (ii) such release shall not in any manner
discharge, affect or impair the Obligations or any Liens (other than those
expressly being released) upon (or obligations of the Borrowers in respect
of) all interests retained by the Borrowers, including the proceeds of any
sale, all of which shall continue to constitute part of the Collateral.
(c) The Agent shall have no obligation whatsoever to any of
the Lenders to assure that the Collateral exists or is owned by the
Borrowers or is cared for, protected or insured or has been encumbered, or
that the Agent's Liens have been properly or sufficiently or lawfully
created, perfected, protected or enforced or are entitled to any particular
priority, or to exercise at all or in any particular manner or under any
duty of care, disclosure or fidelity, or to continue exercising, any of the
rights, authorities and powers granted or available to the Agent pursuant
to any of the Loan Documents, it being understood and agreed that in
respect of the Collateral, or any act, omission or event related thereto,
the Agent may act in any manner it may deem appropriate, in its sole
discretion given the Agent's own interest in the Collateral in its capacity
as one of the Lenders and that the Agent shall have no other duty or
liability whatsoever to any Lender as to any of the foregoing.
12.12 Restrictions on Actions by Lenders; Sharing of Payments.
(a) Each of the Lenders agrees that it shall not, without
the express consent of all Lenders, and that it shall, to the extent it is
lawfully entitled to do so, upon the request of all Lenders, set off
against the Obligations, any amounts owing by such Lender to the Borrowers
or any accounts of any Borrower now or hereafter maintained with such
Lender. Each of the Lenders further agrees that it shall not, unless
specifically requested to do so by the Agent, take or cause to be taken any
action to enforce its rights under this Agreement or against the Borrowers,
including the commencement of any legal or equitable proceedings, to
foreclose any Lien on, or otherwise enforce any security interest in, any
of the Collateral.
(b) If at any time or times any Lender shall receive (i) by
payment, foreclosure, setoff or otherwise, any proceeds of Collateral or
any payments with respect to the Obligations of the Borrowers to such
Lender arising under, or relating to, this Agreement or the other Loan
Documents, except for any such proceeds or payments received by such Lender
from the Agent pursuant to the terms of this Agreement, or (ii) payments
from the Agent in excess of such Lender's ratable portion of all such
distributions by the Agent, such Lender shall promptly (1) turn the same
over to the Agent, in kind, and with such endorsements as may be required
to negotiate the same to the Agent, or in same day funds, as applicable,
for the account of all of the Lenders and for application to the
Obligations in accordance with the applicable provisions of this Agreement,
or (2) purchase, without recourse or warranty, an undivided interest and
participation in the Obligations owed to the other Lenders so that such
excess payment received shall be applied ratably as among the Lenders in
accordance with their Pro Rata Shares; provided, however, that if all or
part of such excess payment received by the purchasing party is thereafter
recovered from it, those purchases of participations shall be rescinded in
whole or in part, as applicable, and the applicable portion of the purchase
price paid therefor shall be returned to such purchasing party, but without
interest except to the extent that such purchasing party is required to pay
interest in connection with the recovery of the excess payment.
12.13 Agency for Perfection. Agent and each Lender hereby appoints
each other Lender as agent for the purpose of perfecting the Agent's Liens
in assets which, in accordance with Article 9 of the UCC can be perfected
only by possession. Should any Lender (other than the Agent) obtain
possession of any such Collateral, such Lender shall notify the Agent
thereof, and, promptly upon the Agent's request therefor shall deliver such
Collateral to the Agent or in accordance with the Agent's instructions.
12.14 Concerning the Collateral and the Related Loan Documents.
Each Lender authorizes and directs the Agent to enter into the other Loan
Documents, for the ratable benefit and obligation of the Agent and the
Lenders. Each Lender agrees that any action taken by the Agent or Majority
Lenders, as applicable, in accordance with the terms of this Agreement or
the other Loan Documents, and the exercise by the Agent or the Majority
Lenders, as applicable, of their respective powers set forth therein or
herein, together with such other powers that are reasonably incidental
thereto, shall be binding upon all of the Lenders. The Lenders acknowledge
that the Term Loan and all interest, fees and expenses hereunder constitute
one Debt, secured pari passu by all of the Collateral.
12.15 Field Audit and Examination Reports; Disclaimer by Lenders.
By signing this Agreement, each Lender:
(a) is deemed to have requested that the Agent furnish such
Lender, promptly after it becomes available, a copy of each field audit or
examination report (each a "Report" and collectively, "Reports") prepared
by or on behalf of the Agent;
(b) expressly agrees and acknowledges that neither SVIM nor
the Agent (i) makes any representation or warranty as to the accuracy of
any Report, or (ii) shall be liable for any information contained in any
Report;
(c) expressly agrees and acknowledges that the Reports are
not comprehensive audits or examinations, that the Agent or SVIM or other
party performing any audit or examination will inspect only specific
information regarding the Borrowers and will rely significantly upon the
Borrowers' books and records, as well as on representations of each
Borrower's personnel;
(d) agrees to keep all Reports confidential and strictly for
its internal use, and not to distribute except to its participants, or use
any Report in any other manner; and
(e) without limiting the generality of any other
indemnification provision contained in this Agreement, agrees: (i) to hold
the Agent and any such other Lender preparing a Report harmless from any
action the indemnifying Lender may take or conclusion the indemnifying
Lender may reach or draw from any Report in connection with any loans or
other credit accommodations that the indemnifying Lender has made or may
make to the Borrowers, or the indemnifying Lender's participation in, or
the indemnifying Lender's purchase of, a loan or loans of the Borrowers;
and (ii) to pay and protect, and indemnify, defend and hold the Agent and
any such other Lender preparing a Report harmless from and against, the
claims, actions, proceedings, damages, costs, expenses and other amounts
(including Attorney Costs) incurred by the Agent and any such other Lender
preparing a Report as the direct or indirect result of any third parties
who might obtain all or part of any Report through the indemnifying Lender.
12.16 Relation Among Lenders. The Lenders are not partners or
co-venturers, and no Lender shall be liable for the acts or omissions of,
or (except as otherwise set forth herein in case of the Agent) authorized
to act for, any other Lender.
12.17 Co-Agents. None of the Lenders identified on the facing page
or signature pages of this Agreement as a "co-agent" shall have any right,
power, obligation, liability, responsibility or duty under this Agreement
other than those applicable to all Lenders as such. Without limiting the
foregoing, none of the Lenders so identified as a "co-agent" shall have or
be deemed to have any fiduciary relationship with any Lender. Each Lender
acknowledges that it has not relied, and will not rely, on any of the
Lenders so identified in deciding to enter into this Agreement or in taking
or not taking action hereunder.
ARTICLE 13
MISCELLANEOUS
13.1 No Waivers; Cumulative Remedies. No failure by the Agent or
any Lender to exercise any right, remedy, or option under this Agreement or
any present or future supplement thereto, or in any other agreement between
or among the Borrowers and the Agent and/or any Lender, or delay by the
Agent or any Lender in exercising the same, will operate as a waiver
thereof. No waiver by the Agent or any Lender will be effective unless it
is in writing, and then only to the extent specifically stated. No waiver
by the Agent or the Lenders on any occasion shall affect or diminish the
Agent's and each Lender's rights thereafter to require strict performance
by the Borrowers of any provision of this Agreement. The Agent and the
Lenders may proceed directly to collect the Obligations without any prior
recourse to the Collateral. The Agent's and each Lender's rights under this
Agreement will be cumulative and not exclusive of any other right or remedy
which the Agent or any Lender may have.
13.2 Severability. The illegality or unenforceability of any
provision of this Agreement or any Loan Document or any instrument or
agreement required hereunder shall not in any way affect or impair the
legality or enforceability of the remaining provisions of this Agreement or
any instrument or agreement required hereunder.
13.3 Governing Law; Choice of Forum; Service of Process.
(a) THIS AGREEMENT SHALL BE INTERPRETED AND THE RIGHTS AND
LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE
INTERNAL LAWS (AS OPPOSED TO THE CONFLICT OF LAWS PROVISIONS) OTHER THAN
ss.5-1401 OF THE NEW YORK GENERAL OBLIGATION LAW, PROVIDED THAT PERFECTION
ISSUES WITH RESPECT TO ARTICLE 9 OF THE UCC MAY GIVE EFFECT TO APPLICABLE
CHOICE OR CONFLICT OF LAW RULES SET FORTH IN ARTICLE 9 OF THE UCC) OF THE
STATE OF NEW YORK; PROVIDED THAT THE AGENT AND THE LENDERS SHALL RETAIN ALL
RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE
STATE OF CALIFORNIA OR OF THE UNITED STATES OF AMERICA LOCATED IN LOS
ANGELES COUNTY, CALIFORNIA, AND BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, EACH OF THE BORROWERS, THE AGENT AND THE LENDERS CONSENTS, FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF
THOSE COURTS. EACH OF THE BORROWERS, THE AGENT AND THE LENDERS IRREVOCABLY
WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR
BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN
RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. NOTWITHSTANDING
THE FOREGOING: (1) THE AGENT AND THE LENDERS SHALL HAVE THE RIGHT TO BRING
ANY ACTION OR PROCEEDING AGAINST ONE OR MORE OF THE BORROWERS OR ONE OR
MORE OF SUCH BORROWER'S PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION
THE AGENT OR THE LENDERS DEEM NECESSARY OR APPROPRIATE IN ORDER TO REALIZE
ON THE COLLATERAL OR OTHER SECURITY FOR THE OBLIGATIONS AND (2) EACH OF THE
PARTIES HERETO ACKNOWLEDGES THAT ANY APPEALS FROM THE COURTS DESCRIBED IN
THE IMMEDIATELY PRECEDING SENTENCE MAY HAVE TO BE HEARD BY A COURT LOCATED
OUTSIDE THOSE JURISDICTIONS.
(c) EACH BORROWER HEREBY WAIVES PERSONAL SERVICE OF ANY AND
ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS MAY BE
MADE BY REGISTERED MAIL (RETURN RECEIPT REQUESTED) DIRECTED TO THE
APPLICABLE BORROWER CARE OF THE PARENT AT ITS ADDRESS SET FORTH IN SECTION
13.8 AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED FIVE (5) DAYS
AFTER THE SAME SHALL HAVE BEEN SO DEPOSITED IN THE U.S. MAILS POSTAGE
PREPAID. NOTHING CONTAINED HEREIN SHALL AFFECT THE RIGHT OF AGENT OR THE
LENDERS TO SERVE LEGAL PROCESS BY ANY OTHER MANNER PERMITTED BY LAW.
(d) NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT TO
THE CONTRARY, ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES,
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
INCLUDING ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED TORT, SHALL AT THE
REQUEST OF ANY PARTY HERETO BE DETERMINED BY BINDING ARBITRATION. The
arbitration shall be conducted in accordance with the United States
Arbitration Act (Title 9, U.S. Code), notwithstanding any choice of law
provision in this Agreement, and under the Commercial Rules of the American
Arbitration Association ("AAA"). The arbitrator(s) shall give effect to
statutes of limitation in determining any claim. Any controversy concerning
whether an issue is arbitrable shall be determined by the arbitrator(s).
Judgment upon the arbitration award may be entered in any court having
jurisdiction. The institution and maintenance of an action for judicial
relief or pursuant to a provisional or ancillary remedy shall not
constitute a waiver of the right of either party, including the plaintiff,
to submit the controversy or claim to arbitration if any other party
contests such action for judicial relief.
(e) Notwithstanding the provisions of Section 13.3(d) above,
no controversy or claim shall be submitted to arbitration without the
consent of all parties if, at the time of the proposed submission, such
controversy or claim arises from or related to an obligation to the Lenders
which is secured by real estate property collateral (exclusive of real
estate space lease assignments). If all the parties do not consent to
submission of such a controversy or claim to arbitration, the controversy
or claim shall be determined as provided in Section 13.3(f).
(f) At the request of either party a controversy or claim
which is not submitted to arbitration as provided and limited in Section
13.3(d) and (e) shall be determined by judicial reference. If such an
election is made, the parties shall designate to the court a referee or
referees selected under the auspices of the AAA in the same manner as
arbitrators are selected in AAA-sponsored proceedings. The presiding
referee of the panel, or the referee if there is a single referee, shall be
an active attorney or retired judge. Judgment upon the award rendered by
such referee or referees shall be entered in the court in which such
proceeding was commenced.
(g) No provision of Sections 13.3(d) through (g) shall limit
the right of the Agent or the Lenders to exercise self-help remedies such
as setoff, foreclosure against or sale of any real or personal property
collateral or security, or obtaining provisional or ancillary remedies from
a court of competent jurisdiction before, after, or during the pendency of
any arbitration or other proceeding. The exercise of a remedy does not
waive the right of either party to resort to arbitration or reference. At
the Agent's option, foreclosure under a deed of trust or mortgage may be
accomplished either by exercise of power of sale under the deed of trust or
mortgage or by judicial foreclosure.
13.4 WAIVER OF JURY TRIAL. SUBJECT TO THE PROVISIONS OF SECTION
13.3(d), THE BORROWERS, THE LENDERS AND THE AGENT EACH IRREVOCABLY WAIVE
THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN
DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY
ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE
PARTIES AGAINST ANY OTHER PARTY OR ANY AGENT-RELATED PERSON, PARTICIPANT OR
ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR
OTHERWISE. THE BORROWERS, THE LENDERS AND THE AGENT EACH AGREE THAT ANY
SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A
JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR
RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION
AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR
IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR
THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
13.5 Survival of Representations and Warranties. All of each
Borrower's representations and warranties contained in this Agreement shall
survive the execution, delivery, and acceptance thereof by the parties,
notwithstanding any investigation by the Agent or the Lenders or their
respective agents.
13.6 Other Security and Guaranties. The Agent, may, without notice
or demand and without affecting any Borrower's obligations hereunder, from
time to time: (a) take from any Person and hold collateral (other than the
Collateral) for the payment of all or any part of the Obligations and
exchange, enforce or release such collateral or any part thereof; and (b)
accept and hold any endorsement or guaranty of payment of all or any part
of the Obligations and release or substitute any such endorser or
guarantor, or any Person who has given any Lien in any other collateral as
security for the payment of all or any part of the Obligations, or any
other Person in any way obligated to pay all or any part of the
Obligations.
13.7 Fees and Expenses. Each Borrower agrees to pay to the Agent,
for its benefit, on demand, all costs and expenses that Agent pays or
incurs in connection with the negotiation, preparation, syndication,
consummation, administration, enforcement, and termination of this
Agreement or any of the other Loan Documents, including: (a) Attorney
Costs; (b) costs and expenses (including reasonable attorneys' and
paralegals' fees and disbursements) for any amendment, supplement, waiver,
consent, or subsequent closing in connection with the Loan Documents and
the transactions contemplated thereby; (c) costs and expenses of lien and
title searches and title insurance; (d) taxes, fees and other charges for
recording the Mortgages, filing financing statements and continuations, and
other actions to perfect, protect, and continue the Agent's Liens
(including costs and expenses paid or incurred by the Agent in connection
with the consummation of Agreement); (e) sums paid or incurred to pay any
amount or take any action required of the Borrowers under the Loan
Documents that the Borrowers fail to pay or take; (f) costs of appraisals,
inspections, and verifications of the Collateral, including travel,
lodging, and meals for inspections of the Collateral and each Borrower's
operations by the Agent plus the Agent's then customary charge for field
examinations and audits and the preparation of reports thereof (such charge
is currently $750 per day (or portion thereof) for each Person retained or
employed by the Agent with respect to each field examination or audit), it
being agreed that if no Default or Event of Default exists, Agent intends
to conduct one full annual appraisal of all Collateral and a so-called
"desktop" or summary appraisal of Collateral every six (6) months during
each Fiscal Year and at any time when a Default or Event of Default exists,
Agent may conduct as many appraisals and in such order and on such dates as
Agent deems necessary and appropriate); and (g) costs and expenses of
forwarding loan proceeds, collecting checks and other items of payment, and
establishing and maintaining Payment Accounts and lock boxes, and costs and
expenses of preserving and protecting the Collateral. In addition, each
Borrower agrees to pay costs and expenses incurred by the Agent (including
Attorney Costs) to the Agent, for its benefit, on demand, and to the other
Lenders for their benefit, on demand, and all reasonable fees, expenses and
disbursements incurred by such other Lenders for one law firm retained by
such other Lenders, in each case, paid or incurred to obtain payment of the
Obligations, enforce the Agent's Liens, sell or otherwise realize upon the
Collateral, and otherwise enforce the provisions of the Loan Documents, or
to defend any claims made or threatened against the Agent or any Lender
arising out of the transactions contemplated hereby (including preparations
for and consultations concerning any such matters). The foregoing shall not
be construed to limit any other provisions of the Loan Documents regarding
costs and expenses to be paid by the Borrowers. All of the foregoing costs
and expenses shall be paid by the Borrowers within 2 Business Days
following demand therefor by Agent or the applicable Lender.
13.8 Notices. Except as otherwise provided herein, all notices,
demands and requests that any party is required or elects to give to any
other shall be in writing, or by a telecommunications device capable of
creating a written record, and any such notice shall become effective (a)
upon personal delivery thereof, including, but not limited to, delivery by
overnight mail and courier service, (b) four (4) days after it shall have
been mailed by United States mail, first class, certified or registered,
with postage prepaid, or (c) in the case of notice by such a
telecommunications device, when properly transmitted, in each case
addressed to the party to be notified as follows:
If to the Agent or to SVIM:
Special Value Investment Management LLC
00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxx Xxxxxxxxxx
Telecopy No.: (000) 000-0000
If to any Borrower:
c/o UNOVA, Inc.
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Treasurer
Telecopy No.: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxxx
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxxxxxx, Esq.
Telecopy No.: (000) 000-0000
If to any Lender:
To such address as may be designated by such
Lender in a written notice sent to all other
parties hereto.
or to such other address as each party may designate for itself by like
notice. Failure or delay in delivering copies of any notice, demand,
request, consent, approval, declaration or other communication to the
persons designated above to receive copies shall not adversely affect the
effectiveness of such notice, demand, request, consent, approval,
declaration or other communication.
13.9 Waiver of Notices. Unless otherwise expressly provided
herein, to the extent permitted by law each Borrower waives presentment,
and notice of demand or dishonor and protest as to any instrument, notice
of intent to accelerate the Obligations and notice of acceleration of the
Obligations, as well as any and all other notices to which it might
otherwise be entitled. No notice to or demand on any Borrower which the
Agent or any Lender may elect to give shall entitle the Borrowers to any or
further notice or demand in the same, similar or other circumstances.
13.10 Binding Effect. The provisions of this Agreement shall be
binding upon and inure to the benefit of the respective representatives,
successors, and permitted assigns of the parties hereto; provided, however,
that no interest herein may be assigned by any Borrower without prior
written consent of the Agent and each Lender. Subject to the provisions of
Section 11.12, the rights and benefits of the Agent and the Lenders
hereunder shall, if such Persons so agree, inure to any party acquiring any
interest in the Obligations or any part thereof.
13.11 Indemnity of the Agent and the Lenders by the Borrowers.
(a) Each Borrower agrees to defend, indemnify and hold the
Agent-Related Persons, and each Lender and each of its respective officers,
directors, employees, counsel, representatives, agents and
attorneys-in-fact (each, an "Indemnified Person") harmless from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, charges, expenses and disbursements (including
Attorney Costs) of any kind or nature whatsoever which may at any time
(including at any time following repayment of the Term Loan and the
termination, resignation or replacement of the Agent or replacement of any
Lender) be imposed on, incurred by or asserted against any such Person in
any way relating to or arising out of this Agreement or any Loan Document,
or the transactions contemplated hereby, or any action taken or omitted by
any such Person under or in connection with any of the foregoing, including
with respect to any investigation, litigation or proceeding (including any
Insolvency Proceeding or appellate proceeding) related to or arising out of
this Agreement, any other Loan Document, or the Term Loan or the use of the
proceeds thereof, whether or not any Indemnified Person is a party thereto
(all the foregoing, collectively, the "Indemnified Liabilities") provided,
that the Borrowers shall have no obligation hereunder to any Indemnified
Person with respect to Indemnified Liabilities resulting from the gross
negligence or willful misconduct of such Indemnified Person. The agreements
in this Section shall survive payment of all other Obligations.
(b) Each Borrower agrees to indemnify, defend and hold
harmless the Agent and the Lenders from any loss or liability directly or
indirectly arising out of the use, generation, manufacture, production,
storage, release, threatened release, discharge, disposal or presence of a
hazardous substance relating to any Borrower's operations, business or
property ; provided, that the Borrowers shall have no obligation hereunder
to any Indemnified Person with respect to any such liabilities that result
from the gross negligence or willful misconduct of such Indemnified Person.
This indemnity will apply whether the hazardous substance is on, under or
about any Borrower's property or operations or property leased to any
Borrower. The indemnity includes but is not limited to Attorneys Costs. The
indemnity extends to the Agent and the Lenders, their parents, affiliates,
subsidiaries and all of their directors, officers, employees, agents,
successors, attorneys and assigns. "Hazardous substances" means any
substance, material or waste that is or becomes designated or regulated as
"toxic," "hazardous," "pollutant," or "contaminant" or a similar
designation or regulation under any federal, state or local law (whether
under common law, statute, regulation or otherwise) or judicial or
administrative interpretation of such, including petroleum or natural gas.
This indemnity will survive repayment of all other Obligations.
13.12 Limitation of Liability. NO CLAIM MAY BE MADE BY ANY
BORROWER, ANY LENDER OR OTHER PERSON AGAINST THE AGENT, ANY LENDER, OR THE
AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, COUNSEL, REPRESENTATIVES,
AGENTS OR ATTORNEYS-IN-FACT OF ANY OF THEM FOR ANY SPECIAL, INDIRECT,
CONSEQUENTIAL OR PUNITIVE DAMAGES IN RESPECT OF ANY CLAIM FOR BREACH OF
CONTRACT OR ANY OTHER THEORY OF LIABILITY ARISING OUT OF OR RELATED TO THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR
ANY ACT, OMISSION OR EVENT OCCURRING IN CONNECTION THEREWITH, AND EACH
BORROWER AND EACH LENDER HEREBY WAIVE, RELEASE AND AGREE NOT TO XXX UPON
ANY CLAIM FOR SUCH DAMAGES, WHETHER OR NOT ACCRUED AND WHETHER OR NOT KNOWN
OR SUSPECTED TO EXIST IN ITS FAVOR.
13.13 Final Agreement. This Agreement and the other Loan Documents
are intended by the Borrowers, the Agent and the Lenders to be the final,
complete, and exclusive expression of the agreement between them. Subject
to the provisions of Section 11.1, this Agreement supersedes any and all
prior oral or written agreements relating to the subject matter hereof
except for that certain letter agreement dated as of May 15, 2001 between
the Parent and Agent described in Section 2.4. No modification, rescission,
waiver, release, or amendment of any provision of this Agreement or any
other Loan Document shall be made, except by a written agreement signed by
the Borrowers and a duly authorized officer of each of the Agent and the
Lenders required for such action.
13.14 Counterparts. This Agreement may be executed in any number
of counterparts, and by the Agent, each Lender and each Borrower in
separate counterparts, each of which shall be an original, but all of which
shall together constitute one and the same agreement; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document.
13.15 Captions. The captions contained in this Agreement are for
convenience of reference only, are without substantive meaning and should
not be construed to modify, enlarge, or restrict any provision.
13.16 Right of Setoff. In addition to any rights and remedies of
the Lenders provided by law, if an Event of Default exists or the Term Loan
has been accelerated, each Lender is authorized at any time and from time
to time, without prior notice to the Borrowers, any such notice being
waived by the Borrowers to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held by, and other indebtedness at any
time owing by, such Lender or any Affiliate of such Lender to or for the
credit or the account of the Borrowers against any and all Obligations
owing to such Lender, now or hereafter existing, irrespective of whether or
not the Agent or such Lender shall have made demand under this Agreement or
any Loan Document and although such Obligations may be contingent or
unmatured. Each Lender agrees promptly to notify the Borrowers and the
Agent after any such set-off and application made by such Lender; provided,
however, that the failure to give such notice shall not affect the validity
of such set-off and application. NOTWITHSTANDING THE FOREGOING, NO LENDER
SHALL EXERCISE ANY RIGHT OF SET-OFF, BANKER'S LIEN, OR THE LIKE AGAINST ANY
DEPOSIT ACCOUNT OR PROPERTY OF ANY BORROWER HELD OR MAINTAINED BY SUCH
LENDER WITHOUT THE PRIOR WRITTEN UNANIMOUS CONSENT OF THE LENDERS.
13.17 Confidentiality.
(a) Each Borrower severally hereby consents that the Agent
and each Lender may issue and disseminate to the public general information
describing the credit accommodation entered into pursuant to this
Agreement, including the name and address of the Borrowers and a general
description of the Borrowers' business and may use each Borrower's name in
advertising and other promotional material.
(b) Subject to the provisions of the following sentence,
each Lender severally agrees to take normal and reasonable precautions and
exercise due care to maintain the confidentiality of all information
identified as "confidential" or "secret" by each Borrower and provided to
the Agent or such Lender by or on behalf of such Borrower, under this
Agreement or any other Loan Document, except to the extent that such
information (i) was or becomes generally available to the public other than
as a result of disclosure by the Agent or such Lender, or (ii) was or
becomes available on a nonconfidential basis from a source other than the
Borrowers, provided that such source is not bound by a confidentiality
agreement with the Borrowers known to the Agent or such Lender; provided,
however, that the Agent and any Lender may disclose such information (1) at
the request or pursuant to any requirement of any Governmental Authority to
which the Agent or such Lender is subject or in connection with an
examination of the Agent or such Lender by any such Governmental Authority;
(2) pursuant to subpoena or other court process; (3) when required to do so
in accordance with the provisions of any applicable Requirement of Law; (4)
to the extent reasonably required in connection with any litigation or
proceeding (including, but not limited to, any bankruptcy proceeding) to
which the Agent, any Lender or their respective Affiliates may be party;
(5) to the extent reasonably required in connection with the exercise of
any remedy hereunder or under any other Loan Document; (6) to the Agent's
or such Lender's independent auditors, accountants, attorneys and other
professional advisors; (7) to any prospective Participant or Assignee under
any Assignment and Acceptance, actual or potential, provided that such
prospective Participant or Assignee agrees to keep such information
confidential to the same extent required of the Agent and the Lenders
hereunder; (8) as expressly permitted under the terms of any other document
or agreement regarding confidentiality to which the Borrowers are party or
are deemed party with the Agent or such Lender, and (9) to its Affiliates.
In the event the Agent or any Lender or any person to whom the Agent or any
Lender transmits confidential information in accordance with this Section
13.17 becomes legally compelled to disclose such information, the Agent,
applicable Lender or Person shall, unless legally constrained against doing
so, use reasonable efforts (but shall have no liability for a failure to do
so) to provide Borrowers with prompt notice thereof so that Borrowers may
seek a protective order or other appropriate remedy to prevent any such
disclosure.
13.18 Conflicts with Other Loan Documents. Unless otherwise
expressly provided in this Agreement (or in another Loan Document by
specific reference to the applicable provision contained in this
Agreement), if any provision contained in this Agreement conflicts with any
provision of any other Loan Document, the provision contained in this
Agreement shall govern and control.
13.19 Joint and Several Liability. The Borrowers shall be liable
for all amounts due to the Agent and/or any Lender under this Agreement,
regardless of which Borrower actually receives the proceeds of the Term
Loan or other extensions of credit hereunder or the amount of such Term
Loan received or the manner in which the Agent and/or such Lender accounts
for such Loans or other extensions of credit on its books and records. Each
Borrower's Obligations with respect to the Term Loan made to it, and each
Borrower's Obligations arising as a result of the joint and several
liability of the Borrowers hereunder, with respect to the Term Loan made to
the other Borrowers hereunder, shall be separate and distinct obligations,
but all such Obligations shall be primary obligations of each Borrower.
Each Borrower's Obligations arising as a result of the joint and
several liability of such Borrower hereunder with respect to the Term Loan
or other extensions of credit made to the other Borrowers hereunder shall,
to the fullest extent permitted by law, be unconditional irrespective of
(i) the validity or enforceability, avoidance or subordination of the
Obligations of the other Borrowers or of any promissory note or other
document evidencing all or any part of the Obligations of the other
Borrowers, (ii) the absence of any attempt to collect the Obligations from
the other Borrowers, any other guarantor, or any other security therefor,
or the absence of any other action to enforce the same, (iii) the waiver,
consent, extension, forbearance or granting of any indulgence by the Agent
and/or any Lender with respect to any provision of any instrument
evidencing the Obligations of the other Borrowers, or any part thereof, or
any other agreement now or hereafter executed by the other Borrowers and
delivered to the Agent and/or any Lender, (iv) the failure by the Agent
and/or any Lender to take any steps to perfect and maintain its security
interest in, or to preserve its rights to, any security or Collateral for
the Obligations of the other Borrowers, (v) the Agent's and/or any Lender's
election, in any proceeding instituted under the Bankruptcy Code, of the
application of Section 1111(b)(2) of the Bankruptcy Code, (vi) any
borrowing or grant of a security interest by the other Borrowers, as
debtors-in-possession under Section 364 of the Bankruptcy Code, (vii) the
disallowance of all or any portion of the Agent's and/or any Lender's
claim(s) for the repayment of the Obligations of the other Borrowers under
Section 502 of the Bankruptcy code, or (viii) any other circumstances which
might constitute a legal or equitable discharge or defense of a guarantor
or of the other Borrowers. With respect to each Borrower's Obligations
arising as a result of the joint and several liability of the Borrowers
hereunder with respect to the Term Loan or other extensions of credit made
to any of the other Borrowers hereunder, each Borrower waives, until the
non-contingent monetary Obligations shall have been paid in full in
immediately available funds and the Agreement shall have been terminated,
any right to enforce any right of subrogation or any remedy which the Agent
and/or any Lender now has or may hereafter have against such Borrower, any
endorser or any guarantor of all or any part of the Obligations, and any
benefit of, and any right to participate in, any security or collateral
given to the Agent and/or any Lender to secure payment of the Obligations
or any other liability of the Borrowers to the Agent and/or any Lender.
Upon and during the continuance of any Event of Default, the Agent
may proceed directly and at once, without notice, against any Borrower to
collect and recover the full amount, or any portion of the Obligations,
without first proceeding against any other Borrower or any other Person, or
against any security or collateral for the Obligations. Each Borrower
consents and agrees that the Agent shall be under no obligation to marshal
any assets in favor of such Borrower or against or in payment of any or all
of the Obligations.
13.20 Contribution and Indemnification among the Borrowers. Each
Borrower is obligated to repay the Obligations as joint and several
obligors under this Agreement. To the extent that any Borrower shall, under
this Agreement as a joint and several obligor, repay any of the Obligations
constituting the Term Loan made to another Borrower hereunder or other
Obligations incurred directly and primarily by any other Borrower (an
"Accommodation Payment"), then the Borrower making such Accommodation
Payment shall be entitled to contribution and indemnification from, and be
reimbursed by, each of the other Borrowers in an amount, for each of such
other Borrowers, equal to a fraction of such Accommodation Payment, the
numerator of which fraction is such other Borrower's "Allocable Amount" (as
defined below) and the denominator of which is the sum of the Allocable
Amounts of all of the Borrowers. As of any date of determination, the
"Allocable Amount" of each Borrower shall be equal to the maximum amount of
liability for Accommodation Payments which could be asserted against such
Borrower hereunder without (i) rendering such Borrower "insolvent" within
the meaning of Section 101(31) of the Bankruptcy Code Section of the
Uniform Fraudulent Transfer Act (the "UFTA"), or Section 2 of the Uniform
Fraudulent Conveyance Act (the "UFCA"), (ii) leaving such Borrower with
unreasonably small capital or assets, within the meaning of Section 548 of
the Bankruptcy Code, Section 4 of the UFTA, or Section 5 of the UFCA, or
(iii) leaving such Borrower unable to pay its debts as they become due
within the meaning of Section 548 of the Bankruptcy Code or Section 4 of
the UFTA, or Section 5 of the UFCA. All rights and claims of contribution,
indemnification and reimbursement under this Section shall be subordinate
in right of payment to the prior payment in full of the Obligations. Each
agreement, consent, warranty, representation or obligation of the Borrowers
hereunder shall be deemed to be made or to have been made by the Borrowers
on a joint and several basis. The provisions of this Section shall, to the
extent expressly inconsistent with any provision in any Loan Documents,
supersede such inconsistent provision.
13.21 Additional Rights or Contribution. Each Borrower hereby
agrees that to the extent that any individual Borrower or entity obligated
hereunder shall have paid an amount hereunder or pursuant to this Agreement
which would, but for this provision, render such Borrower or entity
insolvent for purposes of state or federal fraudulent conveyance laws, such
Borrower shall be entitled to seek and receive contribution from and
against any other Borrower hereunder to the extent such contribution would
not render such other Borrower insolvent. The provisions of this Section
13.21 shall in no respect limit the obligations and liabilities of any
Borrower to Agent and Lenders and each Borrower shall remain liable to
Agent and Lenders for the full amount of such Borrower's Obligations
hereunder.
13.22 Agency of Parent for each other Borrower. Each of the other
Borrowers appoints Parent as its agent for all purposes relevant to this
Agreement, including (without limitation) the giving and receipt of notices
and the execution and delivery of all documents, instruments and
certificates contemplated herein and all modifications hereto. Any
acknowledgment, consent, direction, certification or other action which
might otherwise be valid or effective only if given or taken by all of the
Borrowers acting singly, or jointly, or both shall be valid and effective
if given or taken only by Parent, whether or not any of the other Borrowers
joins therein.
[signature page follows]
IN WITNESS WHEREOF, the parties have entered into this Agreement
on the date first above written.
"PARENT"
UNOVA, INC., a Delaware corporation X.X. XXXXXXXX COMPANY, a Michigan corporation
By: /s/ Xxxxx X. Xxxx, Xx. By: /s/ Xxxxx X. Xxxx, Xx.
Name: Xxxxx X. Xxxx, Xx. Name: Xxxxx X. Xxxx, Xx.
Title: Vice President and Treasurer Title: Vice President and Treasurer
"BORROWERS" M M & E, INC., a Nevada corporation
UNOVA, INC., a Delaware corporation By: /s/ Xxxxx X. Xxxx, Xx.
Name: Xxxxx X. Xxxx, Xx.
By: /s/ Xxxxx X. Xxxx, Xx. Title: Vice President and Treasurer
Name: Xxxxx X. Xxxx, Xx.
Title: Vice President and Treasurer INTERMEC IP CORP., a Delaware corporation
UNOVA INDUSTRIAL AUTOMATION SYSTEMS, INC., By: /s/ Xxxxx X. Xxxx, Xx.
a Delaware corporation Name: Xxxxx X. Xxxx, Xx.
Title: Vice President and Treasurer
By: /s/ Xxxxx X. Xxxx, Xx.
Name: Xxxxx X. Xxxx, Xx.
Title: Vice President and Treasurer
INTERMEC TECHNOLOGIES CORPORATION,
a Washington corporation
By: /s/ Xxxxx X. Xxxx, Xx.
Name: Xxxxx X. Xxxx, Xx.
Title: Vice President and Treasurer
R & B MACHINE TOOL COMPANY, a
Michigan corporation
By: /s/ Xxxxx X. Xxxx, Xx.
Name: Xxxxx X. Xxxx, Xx.
Title: Vice President and Treasurer
UNOVA IP CORP., a Delaware corporation
By: /s/ Xxxxx X. Xxxx, Xx.
Name: Xxxxx X. Xxxx, Xx.
Title: Vice President and Treasurer
"AGENT"
SPECIAL VALUE INVESTMENT
MANAGEMENT, LLC, as the Agent
By: /s/ Xxxx Xxxxxxxxxx
Name: Xxxx Xxxxxxxxxx
Title: Member
"LENDER"
XXXXXXXXXX SECURITIES, LLC
By: /s/ Xxxx Xxxxxxxxxx
Name: Xxxx Xxxxxxxxxx
Title: President
"LENDERS"
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By: Xxxxx X. Xxxxxx & Company Inc.,
as Investment Adviser
By: /s/ Xxxx Xxx XxXxxxxx
Title: Managing Director
MASSMUTUAL HIGH YIELD PARTNERS II LLC
By: HYP Management, Inc.
as Managing Member
By: /s/ Xxxx Xxx XxXxxxxx
Title: Vice President
ANNEX A
to
Loan Agreement
Definitions
Capitalized terms used in the Loan Documents shall have
the following respective meanings (unless otherwise defined therein), and
all section references in the following definitions shall refer to sections
of the Agreement:
"Accounts" means all of each Borrower's now owned or
hereafter acquired or arising accounts, as defined in the UCC, including
any rights to payment for the sale or lease of goods or rendition of
services, whether or not they have been earned by performance.
"Account Debtor" means each Person obligated in any way
on or in connection with an Account.
"Adjusted Applicable Prepayment Premium" means, as of any
date of determination, an amount equal to 50% of the Applicable Prepayment
Premium.
"Affiliate" means, as to any Person, any other Person
which, directly or indirectly, is in control of, is controlled by, or is
under common control with, such Person or which owns, directly or
indirectly, five percent (5%) or more of the outstanding equity interest of
such Person, except with respect to a Person owning an equity interest in
Parent, in which case such Person shall be deemed to be an Affiliate only
if such Person owns more than fifteen percent (15%) or more of the
ownership equity interest of Parent. A Person shall be deemed to control
another Person if the controlling Person possesses, directly or indirectly,
the power to direct or cause the direction of the management and policies
of the other Person, whether through the ownership of voting securities, by
contract, or otherwise.
"Agent" means SVIM, solely in its capacity as agent for
the Lenders, and any successor agent.
"Agent's Liens" means the Liens in the Collateral granted
to the Agent, for the benefit of the Lenders and Agent pursuant to this
Agreement and the other Loan Documents.
"Agent-Related Persons" means the Agent, together with
its Affiliates, and the officers, directors, employees, counsel,
representatives, agents and attorneys-in-fact of the Agent and such
Affiliates.
"Agreement" means the Loan Agreement to which this Annex
A is attached, as from time to time amended, modified or restated.
"Amtech Bonds" means bonds that the Parent or the other
Borrowers were required to post in connection with the business activities
of Amtech Systems Corporation and its Subsidiaries, which entities were
sold pursuant to that certain Stock and Asset Purchase Agreement dated June
30, 2001, among Parent, Intermec Technologies Corporation and various other
entities, pursuant to which Stock and Asset Purchase Agreement the
purchasers thereunder have fully indemnified Parent and the other Borrowers
for any liability under said bonds.
"Anniversary Date" means each anniversary of the Closing
Date.
"Applicable Margin" means
(i) with respect to the Term Loan while it is a Base
Rate Loan and all other Obligations, eight
percent (8.0%); and
(ii) with respect to the Term Loan while it is a
LIBOR Rate Loan, nine percent (9.0%).
"Applicable Prepayment Premium" means, as of any date of
determination, an amount equal to (a) during the period of time from and
after the Closing Date up to the date that is the second anniversary of the
Closing Date, 3.0% times the principal amount of the Term Loan to be
prepaid, and (b) at all other times, 1.0% times the principal amount of the
Term Loan to be prepaid.
"Assignee" has the meaning specified in Section 11.2(a).
"Assignment and Acceptance" has the meaning specified in
Section 11.2(a).
"Attorney Costs" means and includes all reasonable fees,
expenses and disbursements of any law firm or other counsel engaged by the
Agent and the reasonably allocated costs and expenses of internal legal
services of the Agent, or to the extent provided in the Agreement, by the
other Lenders.
"Bankruptcy Code" means Title 11 of the United States
Code (11 X.X.X.xx. 101 et seq.).
"Base Rate" means, for any day, the greater of the
following rates of interest: (a) higher rate of interest in effect for such
day as publicly announced from time to time by Bank of America, N.A. in
Charlotte, North Carolina as its "prime rate" (the "prime rate" being a
rate set by Bank of America, N.A. based upon various factors including Bank
of America, N.A.'s costs and desired return, general economic conditions
and other factors, and is used as a reference point for pricing some loans,
which may be priced at, above, or below such announced rate); and (b) the
Federal Funds Rate plus one-half of one percent (.50%). Any change in the
prime rate announced by Bank of America, N.A. shall take effect at the
opening of business on the day specified in the public announcement of such
change. Each Interest Rate based upon the Base Rate shall be adjusted
simultaneously with any change in the Base Rate.
"Base Rate Loans" means the Term Loan during any period
in which it bears interest based on the Base Rate.
"Business Day" means (a) any day that is not a Saturday,
Sunday, or a day on which banks in Los Angeles, California are required or
permitted to be closed, and (b) with respect to all notices,
determinations, fundings and payments in connection with the LIBOR Rate or
LIBOR Rate Loans, any day that is a Business Day pursuant to clause (a)
above and that is also a day on which trading in Dollars is carried on by
and between banks in the London interbank market.
"Capital Adequacy Regulation" means any guideline,
request or directive of any central bank or other Governmental Authority,
or any other law, rule or regulation, whether or not having the force of
law, in each case, regarding capital adequacy of any bank or of any
corporation controlling a bank.
"Capital Expenditures" means all payments due (whether or
not paid during any fiscal period) in respect of the cost of any fixed
asset or improvement, or replacement, substitution, or addition thereto,
which has a useful life of more than one year, including, without
limitation, those costs arising in connection with the direct or indirect
acquisition of such asset by way of increased product or service charges or
in connection with a Capital Lease.
"Capital Lease" means any lease of property by any
Borrower which, in accordance with GAAP, should be reflected as a capital
lease on the balance sheet of such Borrower.
"Change of Control" means any of the following
(a) An acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act of
1934) of beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 30 percent or more of either (i) the then
outstanding shares of common stock of any Borrower (the "Outstanding
Borrower Common Stock"), or (ii) the combined voting power of the then
outstanding voting securities of any Borrower entitled to vote generally in
the election of directors (the "Outstanding Borrower Voting Securities");
excluding, however, the following acquisitions of Outstanding Borrower
Common Stock and Outstanding Borrower Voting Securities: (i) any
acquisition by any Borrower or any corporation controlled by any Borrower,
(ii) any acquisition by any employee benefit plan (or related trust)
sponsored or maintained by any Borrower or any corporation controlled by
any Borrower, or (iii) any acquisition by any Person pursuant to a
transaction which complies with clauses (i), (ii) and (iii) of subsection
(c) of this definition; or
(b) Individuals who, as of the Closing Date, constitute
the Board of Directors ("Board") of any Borrower (the "Incumbent Board"
cease for any reason to constitute at least a majority of such Board;
provided, however, that any individual who becomes a member of such Board
subsequent to the Closing Date whose election, or nomination for election
by any such Borrower's shareholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board,
but provided further, that any such individual whose initial assumption of
office occurs as a result of either an actual or threatened election
contest (as such terms are used in Rule 14a-11 of Regulation 14A
promulgated under the Exchange Act) or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than
the Board shall not be so considered as a member of the Incumbent Board; or
(c) The approval by the shareholders of any Borrower of a
reorganization, merger or consolidation or sale or other disposition of all
or substantially all of the assets of any Borrower (a "Business
Combination"), or if consummation of such Business Combination is subject,
at the time of such approval by shareholders, to the consent of any
government or governmental agency, obtaining of such consent (either
explicitly or implicitly by consummation); excluding, however, such a
Business Combination pursuant to which (i) all or substantially all of the
individuals and entities who are the beneficial owners, respectively, of
the Outstanding Borrower Common Stock and Outstanding Borrower Voting
Securities immediately prior to such Business Combination will beneficially
own, directly or indirectly, more than 60 percent of, respectively, the
then outstanding shares of common stock, and the combined voting power of
the then outstanding voting securities entitled to vote generally in the
election of directors, as the case may be, of the corporation resulting
from such Business Combination (including, without limitation, a
corporation which as a result of such transaction owns any Borrower or all
or substantially all of any Borrower's assets either directly or through
one or more subsidiaries) in substantially the same proportions as their
ownership, immediately prior to such Business Combination of the
Outstanding Borrower Common Stock and Outstanding Borrower Voting
Securities, as the case may be; (ii) no Person (other than any employee
benefit plan (or related trust) sponsored or maintained by any Borrower or
any corporation controlled by any Borrower or such corporation resulting
from such Business Combination) will beneficially own, directly or
indirectly, 30 percent (30%) or more of, respectively, the outstanding
shares of common stock of the corporation resulting from such Business
Combination or the combined voting power of the outstanding voting
securities of such corporation entitled to vote generally in the election
of directors except to the extent that such ownership existed with respect
to any Borrower prior to the Business Combination; and (iii) at least a
majority of the members of the board of directors of the corporation
resulting from such Business Combination will have been members of the
Incumbent Board at the time of the execution of the initial agreement, or
of the action of the Board, providing for such Business Combination.
"Chattel Paper" means all of each Borrower's now owned or
hereafter acquired chattel paper, as defined in the UCC, including
electronic chattel paper.
"Closing Date" means the date of this Agreement.
"Code" means the Internal Revenue Code of 1986.
"Collateral" means all of each Borrower's real property
having either an estimated fair market value or a net book value in each
case of $750,000 or more and all other assets and personal property of any
Person from time to time subject to Agent's Liens securing payment or
performance of the Obligations, including without limitation, a pledge of
100% of the stock of all domestic Subsidiaries and, subject to Section 7.29
hereof, 65% of the stock of all foreign Subsidiaries.
"Consolidated Net Income" means, for any period, the net
income or loss of the Parent and its Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP.
"Consolidating Schedules" means consolidating balance
sheets and statements of operations reflecting each of the Reporting
Segments (a) of the Parent and its Subsidiaries or (b) in certain instances
as specified in the Agreement, of the Parent and the other Borrowers.
"Contaminant" means any waste, pollutant, hazardous
substance, toxic substance, hazardous waste, special waste, petroleum or
petroleum-derived substance or waste, asbestos in any form or condition,
polychlorinated biphenyls ("PCBs"), or any constituent of any such
substance or waste.
"Conversion Date" means the date on which a portion of
the Term Loan is converted into or continued as a LIBOR Rate Loan.
"Corporate Officer" means any officer of Parent as set
forth in Parent's bylaws.
"Credit Facility of the Foreign Subsidiaries" means the
financial arrangements pursuant to which institutions provide financial
accommodations to foreign Subsidiaries of the Parent, including, without
limitation, credit, borrowings, foreign exchange contracts, letters of
credit, bank guaranty and multi-currency borrowings.
"Debt" means, without duplication, all liabilities,
obligations and indebtedness of any Borrower to any Person, of any kind or
nature, now or hereafter owing, arising, due or payable, howsoever
evidenced, created, incurred, acquired or owing, whether primary,
secondary, direct, contingent, fixed or otherwise, consisting of
indebtedness for borrowed money or the deferred purchase price of property,
excluding trade payables, but including (a) all Obligations; (b) all
obligations and liabilities of any Person secured by any Lien on any
Borrower's property, even though the applicable Borrower shall not have
assumed or become liable for the payment thereof; provided, however, that
all such obligations and liabilities which are limited in recourse to such
property shall be included in Debt only to the extent of the book value of
such property as would be shown on a balance sheet of such Borrower
prepared in accordance with GAAP; (c) all obligations or liabilities
created or arising under any Capital Lease or conditional sale or other
title retention agreement with respect to property used or acquired by any
Borrower, even if the rights and remedies of the lessor, seller or lender
thereunder are limited to repossession of such property; provided, however,
that all such obligations and liabilities which are limited in recourse to
such property shall be included in Debt only to the extent of the book
value of such property as would be shown on a balance sheet of such
Borrower prepared in accordance with GAAP; (d) all obligations and
liabilities under Guaranties and (e) the present value (discounted at the
Base Rate) of lease payments due under synthetic leases.
"Default" means any event or circumstance which, with the
giving of notice, the lapse of time, or both, would (if not cured, waived,
or otherwise remedied during such time) constitute an Event of Default.
"Default Rate" means a fluctuating per annum interest
rate at all times equal to the sum of (a) the otherwise applicable Interest
Rate plus (b) two percent (2%) per annum. Each Default Rate shall be
adjusted simultaneously with any change in the applicable Interest Rate.
"Designated Collateral" means, at any time prior to the
date that all amounts under the Revolving Credit Agreement have been repaid
and the commitments thereunder have been terminated, any Equipment or Real
Estate, and at all times thereafter, any item of Collateral.
"Distribution" means, in respect of any Person: (a) the
payment or making of any dividend or other distribution of property in
respect of the equity interests of such Person (or any options or warrants
for, or other rights with respect to, such equity interests) of such
Person, other than distributions in the applicable equity interests (or any
options or warrants for such equity interests) of the same class; or (b)
the redemption or other acquisition by such Person of any equity interests
(or any options or warrants for such equity interests) of such Person.
"Documents" means all documents as such term is defined
in the UCC, including bills of lading, warehouse receipts or other
documents of title, now owned or hereafter acquired by any Borrower.
"DOL" means the United States Department of Labor or any
successor department or agency.
"Dollar" and "$" means dollars in the lawful currency of
the United States. Unless otherwise specified, all payments under the
Agreements shall be made in Dollars.
"DSO" means Days Sales Outstanding, which for purposes of
this Agreement means as of the date of measurement, the number 360
multiplied by the following quotient: (i) total Accounts then due from
Foreign Affiliates as of the end of each fiscal quarter divided by (ii) the
amount of Borrowers' trailing three month revenues multiplied by four (4)
based on sales to Foreign Affiliates at the end of such each fiscal quarter
during the term of this Agreement.
"EBITDA" means, for any period Consolidated Net Income
for such period plus (a) without duplication and to the extent deducted in
the determination of Consolidated Net Income for such period, (i) interest
expense calculated in accordance with GAAP, (ii) the provision (or benefit)
for income taxes, (iii) depreciation and amortization expense, (iv) any
non-recurring, non-cash charges, including, any losses attributable to the
write-down of long-lived assets or impairment of intangibles (i.e.,
goodwill), stock based compensation and amortization of financing costs,
(v) any non-recurring, non-cash losses attributable to the sale of assets,
including without limitation operating divisions or Subsidiaries, outside
the ordinary course of business, and (vi) any net loss attributable to
foreign exchange fluctuation, (vii) any non-recurring severance charges and
restructuring expenses attributable to the permanent reduction of employees
or consolidation of operations in an aggregate amount not exceeding
$5,000,000 for the six (6) month period ending December 31, 2001; and minus
(b) without duplication and to the extent included in determining such
Consolidated Net Income for such period, the sum of (A) any gains
attributable to the sale of assets outside the ordinary course of business,
(B) any net gain attributable to foreign exchange fluctuation, and (C) any
other non-cash gains, all determined on a consolidated basis in accordance
with GAAP. For this purpose, a "non-cash charge" is one which involves no
cash expenditure in the current Fiscal Year and a "non-cash gain" is one
which involves no cash receipt in the current Fiscal Year.
"Eligible Assignee" means any Person other than a Person
that (a) is a direct business competitor of the Parent or any of its
Subsidiaries, or (b) has a direct material adverse business interest to
Parent or any of its Subsidiaries.
"Environmental Claims" means all written claims asserted
by any Governmental Authority or other Person alleging potential liability
or responsibility for violation of any Environmental Law, or for a Release
or injury to the environment.
"Environmental Laws" means all federal, state or local
laws, statutes, common law duties, rules, regulations, ordinances and
codes, together with all administrative orders, directed duties, licenses,
authorizations and permits of, and agreements with, any Governmental
Authority of the United States, in each case relating to environmental,
health, safety and land use matters.
"Environmental Lien" means a Lien in favor of any
Governmental Authority for (a) any liability under Environmental Laws, or
(b) damages arising from, or costs incurred by such Governmental Authority
in response to, a Release or threatened Release of a Contaminant into the
environment.
"Equipment" means all of each Borrower's now owned and
hereafter acquired machinery, equipment, furniture, furnishings, fixtures,
and other tangible personal property (except Inventory), including embedded
software, motor vehicles with respect to which a certificate of title has
been issued, aircraft, dies, tools, jigs, molds and office equipment, as
well as all of such types of property leased by each Borrower and all of
each Borrower's rights and interests with respect thereto under such leases
(including, without limitation, options to purchase); together with all
present and future additions and accessions thereto, replacements therefor,
component and auxiliary parts and supplies used or to be used in connection
therewith, and all substitutes for any of the foregoing, and all manuals,
drawings, instructions, warranties and rights with respect thereto;
wherever any of the foregoing is located.
"ERISA" means the Employee Retirement Income Security Act
of 1974, and regulations promulgated thereunder.
"ERISA Affiliate" means any trade or business (whether or
not incorporated) treated as a single employer with the Parent, the other
Borrowers, or any of their respective Subsidiaries in accordance with the
provisions of Section 414(b) or (c) of the Code (and Sections 414(m) and
(o) of the Code for purposes of provisions relating to Section 412 of the
Code).
"ERISA Event" means (a) a Reportable Event with respect
to a Pension Plan, (b) a withdrawal by the Parent or any ERISA Affiliate
from a Pension Plan subject to Section 4063 of ERISA during a plan year in
which it was a substantial employer (as defined in Section 4001(a)(2) of
ERISA) or a cessation of operations which is treated as such a withdrawal
under Section 4062(e) of ERISA, (c) a complete or partial withdrawal by the
Parent or any ERISA Affiliate from a Multi-employer Plan or notification
that a Multi-employer Plan is in reorganization or insolvent, (d) the
filing of a notice of intent to terminate, the treatment of a Plan
amendment as a termination under Section 4041 or 4041A of ERISA, or the
commencement of proceedings by the PBGC to terminate a Pension Plan, or the
termination, insolvency, or reorganization of a Multi-employer Plan, (e)
the occurrence of an event or condition which might reasonably be expected
to constitute grounds under Section 4042 of ERISA for the termination of,
or the appointment of a trustee to administer, any Pension Plan or
Multi-employer Plan, (f) the imposition of any liability under Title IV of
ERISA, other than for PBGC premiums due but not delinquent under Section
4007 of ERISA, upon the Parent or any ERISA Affiliate, or (g) the
commencement of any action or proceeding arising out of or relating to any
of the transactions mentioned in Schedule 6.19 by any Governmental
Authority or participants or other beneficiaries with respect to a Plan,
that results or could reasonably be expected to result in a material
liability to any Borrower.
"Event of Default" has the meaning specified in Section
9.1.
"Exchange Act" means the Securities Exchange Act of 1934,
and regulations promulgated thereunder, as amended.
"Existing Senior Notes" means those certain 6.875% Notes
due March 15, 2005 and the 7.00% Notes due March 15, 2008, in each case,
issued by the Parent under the indenture dated as of March 11, 1998, by and
between the Parent and The First National Bank of Chicago, as Trustee.
"Factory Power" means The Factory Power Company, an Ohio
corporation.
"FDIC" means the Federal Deposit Insurance Corporation,
and any Governmental Authority succeeding to any of its principal
functions.
"Federal Funds Rate" means, for any day, the rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to
the weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers on such day, as published by the Federal Reserve Bank of New York
on the Business Day next succeeding such day; provided that (a) if such day
is not a Business Day, the Federal Funds Rate for such day shall be such
rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (b) if no such rate is
so published on such next succeeding Business Day, the Federal Funds Rate
for such day shall be the average rate charged to Bank of America, N.A. on
such day on such transactions as determined by the Agent.
"Federal Reserve Board" means the Board of Governors of
the Federal Reserve System or any successor thereto.
"Financial Statements" means, according to the context in
which it is used, the financial statements referred to in Sections 5.2 and
6.6 or any other financial statements required to be given to the Lenders
pursuant to this Agreement.
"Fiscal Year" means the Parent's fiscal year for
financial accounting purposes. The current Fiscal Year of the Parent will
end on December 31, 2001.
"Fixed Charge Coverage Ratio" means, with respect to any
fiscal period of Parent and its Subsidiaries, the ratio of EBITDA to Fixed
Charges.
"Fixed Charges" means, with respect to any fiscal period
of the Parent on a consolidated basis, without duplication, interest
expense calculated in accordance with GAAP, Federal, state, local and
foreign income taxes paid in cash net of refunds and reimbursements
(excluding up to $35,000,000 of cash taxes related to the Pension
Reversion, and excluding taxes due in connection with gains on sales or
dispositions of assets, provided that in any case in which proceeds of
asset sales are conveyed or transferred to third parties, taxes due on
gains on such sales or dispositions shall be excluded only if (a) no more
than the proceeds of the assets sales or dispositions net of such taxes
have been so transferred or conveyed, and (b) such transfers or conveyances
of proceeds are otherwise permitted under this Agreement), Capital
Expenditures (excluding Capital Expenditures funded with Debt other than
extensions of credit under the Revolving Credit Agreement or funded with
insurance or condemnation proceeds that have been made available to the
Borrowers or with the proceeds of sales of obsolete or fully depreciated or
replaced Equipment and used by the Borrowers for Capital Expenditures
during such fiscal period, but including, without duplication, principal
payments with respect to such Debt), scheduled principal payments of Debt,
and permitted Distributions paid to third parties to the extent permitted
pursuant to a contemplated amendment to this Agreement that may be executed
subsequent to the Closing Date.
"Foreign Affiliate" means an Affiliate of a Borrower that
is incorporated, formed or registered or whose principal place of business
or headquarters is not in the United States.
"Foreign Plan" means any benefit plan established or
maintained outside of the United States which any Borrower or any of the
Subsidiaries maintains, sponsors or to which such entity has any obligation
or liability and which provides or otherwise makes available retirement or
deferred benefits of any kind whatsoever to employees of, or other
individuals associated with, any Borrower or its Subsidiaries.
"Foreign Subsidiary Credit Facility Guaranty" means a
Guaranty by the Parent of the Credit Facility of the Foreign Subsidiaries.
"Funded Debt" means with respect to a Person, without
duplication, (a) all Debt of such Person for borrowed money, (b) all Debt
of such Person evidenced by bonds, notes, debentures, or other similar
instruments, (c) the amount of all Debt of such Person under Capital
Leases, (d) the amount of all Debt of such Person secured by a Lien
existing on property owned by such Person whether or not the Debt secured
thereby has been assumed by such Person or is non-recourse to such Person,
(e) all Debt of such Person to redeem or retire any Capital Stock of such
Person; provided that the holder(s) of such Capital Stock shall on the date
of determination hold the right to redeem or retire such Capital Stock for
cash, (f) all Debt of such Person in respect of unfunded vested benefits
under any Plan, (g) all obligations of such Person to pay the deferred
purchase price of property or services (excluding trade accounts payable of
such Person arising in the ordinary course of business that are not past
due by more than one hundred twenty (120) days or that are being contested
in good faith by appropriate proceedings diligently pursued and for which
adequate reserves have been established in accordance with GAAP), (h) all
reimbursement obligations of such Person (whether contingent or otherwise)
in respect of letters of credit, bankers' acceptances, surety or other
bonds other than the Amtech Bonds, and similar instruments that are not
collateralized or secured with cash of the Borrowers as permitted in
Section 7.18 and subsection (h) of the definition of "Permitted Liens", and
(i) the principal balance outstanding under any synthetic lease, tax
retention operating lease, off balance sheet loan, or similar off balance
sheet financing product to which such Person is a party, where such
transaction is considered borrowed money indebtedness for tax purposes but
is classified as an operating lease in accordance with GAAP.
"GAAP" means generally accepted accounting principles and
practices set forth from time to time in the opinions and pronouncements of
the Accounting Principles Board and the American Institute of Certified
Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board (or agencies with similar functions of
comparable stature and authority within the U.S. accounting profession).
"Governmental Authority" means any nation or government,
any state or other political subdivision thereof, any central bank (or
similar monetary or regulatory authority) thereof, any entity exercising
executive, legislative, judicial, regulatory or administrative functions of
or pertaining to government, and any corporation or other entity owned or
controlled, through stock or capital ownership or otherwise, by any of the
foregoing.
"Guaranty" means, with respect to any Person, all
obligations of such Person which in any manner directly or indirectly
guarantee or assure, or in effect guarantee or assure, the payment or
performance of any indebtedness, dividend or other obligations of any other
Person (the "guaranteed obligations"), or assure or in effect assure the
holder of the guaranteed obligations against loss in respect thereof,
including any such obligations incurred through an agreement, contingent or
otherwise: (a) to purchase the guaranteed obligations or any property
constituting security therefor; (b) to advance or supply funds for the
purchase or payment of the guaranteed obligations or to maintain a working
capital or other balance sheet condition; or (c) to lease property or to
purchase any debt or equity securities or other property or services.
"Headquarters Property" means the Borrowers' corporate
headquarters located at 00000 Xxxxxxx Xxxxxxxxx, Xxxxxxxx Xxxxx, Xxxxxxxxxx
00000.
"Hedge Agreement" means any and all transactions,
agreements or documents now existing or hereafter entered into, which
provides for an interest rate, credit, commodity or equity swap, cap,
floor, collar, forward foreign exchange transaction, currency swap, cross
currency rate swap, currency option, or any combination of, or option with
respect to, these or similar transactions, for the purpose of hedging a
Borrower's exposure to fluctuations in interest or exchange rates, loan,
credit exchange, security or currency valuations or commodity prices.
"Indenture" means the Indenture dated March 11, 1998 made
by Parent to Bank One, NA, formerly known as The First National Bank of
Chicago, as Trustee.
"Instruments" means all instruments as such term is
defined in the UCC, now owned or hereafter acquired by a Borrower.
"Intercreditor Agreement" means that certain
Intercreditor Agreement, dated as of the date hereof, by and between Agent
and Revolver Agent, as amended, restated, supplemented, or otherwise
modified from time to time.
"Interest Payment Date" has the meaning specified in
Section 2.1(a).
"Interest Period" means, as to the Term Loan while it is
a LIBOR Rate Loan, the period commencing on the Closing Date or on a
Continuation Date on which the Term Loan is converted into or continued as
a LIBOR Rate Loan, and ending on the date one, two, three, or six months
thereafter as selected by the Borrowers in their Notice of Conversion,
provided that:
(a) if any Interest Period would otherwise end on a day
that is not a Business Day, that Interest Period shall be extended
to the following Business Day unless the result of such extension
would be to carry such Interest Period into another calendar
month, in which event such Interest Period shall end on the
preceding Business Day;
(b) any Interest Period pertaining to a LIBOR Rate Loan
that begins on the last Business Day of a calendar month (or on a
day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end on
the last Business Day of the calendar month at the end of such
Interest Period; and
(c) no Interest Period shall extend beyond the Maturity
Date.
"Interest Rate" means each or any of the interest rates,
including the Applicable Margin and Default Rate, set forth in Section 2.1.
"Inventory" means all of each Borrower's now owned and
hereafter acquired inventory, goods and merchandise, wherever located, to
be furnished under any contract of service or held for sale or lease, all
returned goods, raw materials, work-in-process, finished goods (including
embedded software), other materials and supplies of any kind, nature or
description which are used or consumed in a Borrower's business or used in
connection with the packing, shipping, advertising, selling or finishing of
such goods, merchandise, and all documents of title or other Documents
representing them.
"Investment Property" means, subject to the provisions of
Section 7.28, all of each Borrower's right title and interest in and to any
and all: (a) securities whether certificated or uncertificated; (b)
securities entitlements; (c) securities accounts; (d) commodity contracts;
or (e) commodity accounts.
"IRS" means the Internal Revenue Service and any
Governmental Authority succeeding to any of its principal functions under
the Code.
"Latest Projections" means: (a) on the Closing Date and
thereafter until the Agent receives new projections pursuant to Section
5.2(f), the projections of the consolidated financial condition, results of
operations, and cash flows (i) for (A) the Parent and its Subsidiaries, (B)
the Borrowers, and (C) the Parent and its Reporting Segments together with
(ii) such reconciliations with other previously delivered financial
statements as Agent shall require, all in form and content acceptable to
Agent; and (b) thereafter, the projections most recently received by the
Agent pursuant to Section 5.2(f).
"Lender" and "Lenders" have the meanings specified in the
introductory paragraph hereof.
"LIBOR Interest Payment Date" means, with respect to a
LIBOR Rate Loan which is for a term of three months or less, on the last
day of the applicable Interest Period and on the Maturity Date, and with
respect to a LIBOR Rate Loan which is for a term of six months, on the date
which is three months after the date such LIBOR Rate Loan was made or
converted, and on the last day of the applicable Interest Period, and on
the Maturity Date.
"LIBOR Rate" means, for any Interest Period, with respect
to LIBOR Rate Loans, the rate of interest per annum determined pursuant to
the following formula:
LIBOR Rate = Offshore Base Rate
------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"Offshore Base Rate" means the rate per annum
appearing on Telerate Page 3750 (or any successor page) as the
London interbank offered rate for deposits in Dollars in the
approximate amount of the requested LIBOR Rate Loan at
approximately 11:00 a.m. (London time) two Business Days prior to
the first day of such Interest Period for a term comparable to
such Interest Period. If for any reason such rate is not
available, the Offshore Base Rate shall be, for any Interest
Period, the rate per annum appearing on Reuters Screen LIBO Page
as the London interbank offered rate for deposits in Dollars in
the approximate amount of the requested LIBOR Rate Loan at
approximately 11:00 a.m. (London time) two Business Days prior to
the first day of such Interest Period for a term comparable to
such Interest Period; provided, however, if more than one rate is
specified on Reuters Screen LIBO Page, the applicable rate shall
be the arithmetic mean of all such rates. If for any reason none
of the foregoing rates is available, the Offshore Base Rate shall
be, for any Interest Period, the rate per annum determined by
Agent as the rate of interest at which dollar deposits in the
approximate amount of the LIBOR Rate Loan that is the subject of
the Notice of Conversion would be offered to major banks in the
offshore dollar market at their request at or about 11:00 a.m.
(London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period.
"Eurodollar Reserve Percentage" means, for any
day during any Interest Period, the reserve percentage if any
(expressed as a decimal, rounded upward to the next 1/100th of 1%)
in effect on such day applicable to member banks under regulations
issued from time to time by the Federal Reserve Board for
determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement)
with respect to Eurocurrency funding (currently referred to as
"Eurocurrency liabilities"). The LIBOR Rate for each outstanding
LIBOR Rate Loan shall be adjusted automatically as of the
effective date of any change in the Eurodollar Reserve Percentage.
"LIBOR Rate Loan" means any portion of the Term Loan
during any period in which it bears interest based on the LIBOR Rate.
"Lien" means: (a) any interest in property securing an
obligation owed to, or a claim by, a Person other than the owner of the
property, whether such interest is based on the common law, statute, or
contract, and including a security interest, charge, claim, or lien arising
from a mortgage, deed of trust, encumbrance, pledge, hypothecation,
assignment, deposit arrangement, agreement, security agreement, conditional
sale or trust receipt or a lease, consignment or bailment for security
purposes; (b) to the extent not included under clause (a), any reservation,
exception, encroachment, easement, right-of-way, covenant, condition,
restriction, lease or other title exception or encumbrance affecting
property; and (c) any contingent or other agreement to provide any of the
foregoing.
"Loan Documents" means this Agreement, the Patent and
Trademark Security Agreements, the Security Agreement, the Mortgages, the
Stock Pledges, the Intercreditor Agreement, and any other agreements,
instruments, and documents heretofore, now or hereafter evidencing,
securing, guaranteeing or otherwise relating to the Obligations, the
Collateral, or any other aspect of the transactions contemplated by this
Agreement.
"Majority Lenders" means at any date of determination
Lenders whose Pro Rata Shares aggregate more than 50%.
"Margin Stock" means "margin stock" as such term is
defined in Regulation T, U or X of the Federal Reserve Board.
"Material Adverse Effect" means (a) a material adverse
change in, or a material adverse effect upon, the operations, business,
properties, or condition (financial or otherwise) of the Borrowers and any
guarantor(s), if any, of the Obligations taken as a whole or the Collateral
taken as a whole; (b) a material impairment of the ability of the Borrowers
taken as a whole to perform under the Loan Documents; or (c) a material
adverse effect upon the legality, validity, binding effect or
enforceability against any Borrower of any Loan Document to which it is a
party.
"Maturity Date" means July 11, 2004.
"M M & E" means M M & E, Inc., a Nevada corporation.
"Mortgages" means and includes any and all of the
mortgages, deeds of trust, deeds to secure debt, assignments and other
instruments executed and delivered by the Borrowers to or for the benefit
of the Agent by which the Agent, on behalf of the Lenders, acquires a Lien
on the Real Estate or a collateral assignment of any Borrower's interest
under leases of Real Estate, and all amendments, modifications and
supplements thereto.
"Multi-employer Plan" means a "multi-employer plan" as
defined in Sections 3(37) or 4001(a)(3) of ERISA which is or was at any
time during the current year or the immediately preceding six (6) years
contributed to by the Parent or any ERISA Affiliate.
"Net Cash Proceeds" means, with respect to any sale or
disposition of assets by a Person (a) the gross cash payments received by
such Person in connection with the sale or other disposition of an asset,
minus (b) an amount equal to the sum of all closing costs, fees, and
expenses associated with such sale or other disposition plus an amount
equal to any anticipated tax liability arising as a result of any gain
incurred as a result of such sale or other disposition.
"Notice of Conversion" has the meaning specified in
Section 2.2(e) and shall be in substantially the form of Exhibit B attached
hereto.
"Obligations" means all present and future loans
(including the Term Loan), advances, liabilities, obligations, covenants,
duties, and debts owing by any Borrower to the Agent and/or any Lender,
arising under or pursuant to this Agreement or any of the other Loan
Documents, whether or not evidenced by any note, or other instrument or
document, whether arising from an extension of credit, opening of a letter
of credit, acceptance, loan, guaranty, indemnification or otherwise,
whether direct or indirect, absolute or contingent, due or to become due,
primary or secondary, as principal or guarantor, and including all
principal, interest, charges, expenses, fees, attorneys' fees, filing fees
and any other sums chargeable to the Borrowers hereunder or under any of
the other Loan Documents.
"Other Taxes" means any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement
or any other Loan Documents.
"Parent" means UNOVA, Inc., a Delaware corporation.
"Participant" means any Person who shall have been
granted the right by any Lender to participate in the financing provided by
such Lender under this Agreement, and who shall have entered into a
participation agreement in form and substance satisfactory to such Lender.
"Patent and Trademark Agreements" means the Patent
Security Agreement and the Trademark Security Agreement, each dated as of
the date hereof, executed and delivered by each Borrower to the Agent to
evidence and perfect the Agent's security interest in such Borrower's
present and future patents, trademarks, and related licenses and rights,
for the benefit of the Agent and the Lenders.
"Payment Account" means each bank account established
pursuant to the Security Agreement, to which the proceeds of the Collateral
are deposited or credited, and which is maintained in the name of the
Revolver Agent or the Parent in accordance with the Security Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation or
any Governmental Authority succeeding to the functions thereof.
"Pension Plan" means a pension plan (as defined in
Section 3(2) of ERISA) subject to Title IV of ERISA, other than a
Multi-employer Plan or Foreign Plan, which any Borrower or any ERISA
Affiliate sponsors, maintains, or to which it makes, is making, or is
obligated to make contributions.
"Pension Reversion" means the assets which have been
directly or indirectly distributed prior to the Closing Date to the Parent,
Borrowers or any ERISA Affiliates from the Retiree Pension Benefit Plan or
the Xxxxxx Tool Pension Plan (as those terms are currently identified and
referred to by the Parent).
"Permitted Debt" has the meaning specified in Section
7.13.
"Permitted Liens" means:
(a) Liens for taxes not delinquent or statutory Liens for
taxes which are due and payable in an amount not to exceed $5,000,000 in
the aggregate provided that the payment of such taxes which are due and
payable is being contested in good faith and by appropriate proceedings
diligently pursued and as to which adequate financial reserves have been
established on Parent's books and records and a stay of enforcement of any
such Lien is in effect;
(b) the Agent's Liens;
(c) Liens consisting of deposits made or received in the
ordinary course of business in connection with, or to secure payment of,
obligations under worker's compensation, unemployment insurance, social
security and other similar laws, or to secure the performance of bids,
tenders or contracts (other than for the repayment of Debt) or to secure
indemnity, performance or other similar bonds for the performance of bids,
tenders or contracts (other than for the repayment of Debt) or to secure
statutory obligations (other than liens arising under ERISA or
Environmental Liens) or surety or appeal bonds, or to secure indemnity,
performance or other similar bonds;
(d) Liens securing the claims or demands of materialmen,
mechanics, carriers, warehousemen, landlords and other like Persons,
provided that if any such Lien arises from the nonpayment of such claims or
demand when due, such claims or demands do not exceed $1,000,000 in the
aggregate;
(e) Liens constituting encumbrances in the nature of
reservations, exceptions, encroachments, easements, rights of way,
covenants running with the land, and other similar title exceptions or
encumbrances affecting any Real Estate; provided that they do not in the
aggregate materially detract from the value of the Real Estate or
materially interfere with its use in the ordinary conduct of a Borrower's
business;
(f) Liens arising from judgments and attachments in
connection with court proceedings provided that the attachment or
enforcement of such Liens would not result in an Event of Default hereunder
and such Liens are being contested in good faith by appropriate
proceedings, adequate reserves have been set aside and no material Property
is subject to a material risk of loss or forfeiture and the claims in
respect of such Liens are fully covered by insurance (subject to ordinary
and customary deductibles) and a stay of execution pending appeal or
proceeding for review is in effect;
(g) Liens in favor of the Revolver Agent in the Revolver
Lender Collateral to secure the Permitted Revolver Obligations so long as
(i) the Liens granted by the Borrowers in favor of the Agent in the
Revolver Lender Collateral are perfected Liens, and (ii) there are no
consensual Liens in the Revolver Lender Collateral in favor of a third
Person having a priority (A) senior to the Liens granted by the Borrowers
in favor of Agent in the Revolver Lender Collateral and (B) junior to the
Liens granted by the Borrowers in favor of the Revolver Agent in the
Revolver Lender Collateral;
(h) Liens on cash and cash equivalents, not to exceed at
any time in the aggregate the amount of such cash and cash equivalents
pledged by Borrowers and subject to Liens on the Closing Date to secure
foreign exchange contracts, letters of credit, other than those issued in
connection with the credit facility extended to the Borrowers by Xxxxxx
Guaranty Trust Company of New York, and foreign bank Guaranties, and
provided further that on and after the Closing Date such cash and cash
equivalents are pledged to secure foreign exchange contracts, letters of
credit, other than those issued pursuant to this Agreement, and permitted
foreign bank Guaranties;
(i) Liens on the assets of foreign Subsidiaries; and
(j) Liens in favor of the Revolver Agent in the
Designated Collateral to secure the Permitted Revolver Obligations so long
as the Liens granted by the Borrowers in favor of the Agent in the
Designated Collateral are perfected Liens having a priority senior to the
Liens in favor of the Revolver Agent in the Designated Collateral.
"Permitted Revolver Obligations" means Debt incurred by
the Borrowers under the Revolving Credit Agreement in a principal amount
not to exceed at any one time outstanding the lesser of (a) $200,000,000,
and (b) the maximum amount that the Borrowers would be permitted to borrow
thereunder pursuant to the borrowing base or other formula in effect on the
Closing Date to determine borrowing availability thereunder.
"Person" means any individual, sole proprietorship,
partnership, limited liability company, joint venture, trust,
unincorporated organization, association, corporation, Governmental
Authority, or any other entity.
"Plan" means an employee benefit plan (as defined in
Section 3(3) of ERISA), other than a Multi-employer Plan or Foreign Plan,
which any Borrower or any Subsidiary sponsors or maintains or as to which
any Borrower or any Subsidiary has any liabilities or makes, is making, or
is obligated to make contributions and also includes, without limitation,
any Pension Plan.
"Proprietary Rights" means all of each Borrower's now
owned and hereafter arising or acquired: licenses, franchises, permits,
patents, patent rights, copyrights, works which are the subject matter of
copyrights, trademarks, service marks, trade names, trade styles, patent,
trademark and service xxxx applications, and all licenses and rights
related to any of the foregoing, including those patents, trademarks,
service marks, trade names and copyrights set forth on Schedule 6.12
hereto, and all other rights under any of the foregoing, all extensions,
renewals, reissues, divisions, continuations, and continuations-in-part of
any of the foregoing, and all rights to xxx for past, present and future
infringement of any of the foregoing.
"Pro Rata Share" means, with respect to a Lender, a
fraction (expressed as a percentage), the numerator of which is the amount
of such Lender's Term Commitment and the denominator of which is the sum of
the amounts of all of the Lenders' Term Commitments, or if no Term
Commitments are outstanding, a fraction (expressed as a percentage), the
numerator of which is the amount of Obligations owed to such Lender and the
denominator of which is the aggregate amount of the Obligations owed to the
Lender.
"R & B" means R & B Machine Tool Company, a Michigan
corporation.
"Real Estate" means all of each Borrower's now or
hereafter owned or leased estates in real property, including, without
limitation, all fees, leaseholds and future interests, together with all of
each Borrower's now or hereafter owned or leased interests in the
improvements thereon, the fixtures attached thereto and the easements
appurtenant thereto.
"Release" means a release, spill, emission, leaking,
pumping, injection, deposit, disposal, discharge, dispersal, leaching or
migration of a Contaminant into the indoor or outdoor environment or into
or out of any Real Estate or other property, including the movement of
Contaminants through or in the air, soil, surface water, groundwater or
Real Estate or other property.
"Reportable Event" means, any of the events set forth in
Section 4043(b) of ERISA or the regulations thereunder, other than any such
event for which the 30-day notice requirement under ERISA has been waived
in regulations issued by the PBGC.
"Reporting Divisions" means each of the following
divisions of Parent and a combination of the other Borrowers, generally and
for convenience referred to as, Lamb Technicon, Lamb Body and Assembly,
Cincinnati Machine, Xxxxxx Xxxxxxx, and Intermec Technologies, reflecting
the operating and reporting divisions of the Borrowers as previously
disclosed to Agent and reflected in Financial Statements delivered to Agent
by the Borrowers prior to the Closing Date.
"Reporting Segments" means the reporting segments of the
Borrowers as previously and from time to time reflected in the Parent's
10-K statements.
"Requirement of Law" means, as to any Person, any law
(statutory or common), treaty, rule or regulation or determination of an
arbitrator or of a Governmental Authority, in each case applicable to or
binding upon the Person or any of its property or to which the Person or
any of its property is subject.
"Responsible Officer" means the chief executive officer,
the chief financial officer, the treasurer, the general counsel or the
president of any Borrower, or any other officer having substantially the
same authority and responsibility.
"Restricted Collateral" means (i) capital stock issued by
a Restricted Subsidiary (as currently defined in the Indenture), and
pledged to Agent, and all of the rights and privileges of any Borrower with
respect thereto, and all income and profits thereon, and all interest,
dividends and other payments and distributions with respect thereto, (ii)
Debt (as currently defined in the Indenture) of a Restricted Subsidiary
owned by the Parent or any other Restricted Subsidiary, (iii) any Operating
Property (as currently defined in the Indenture) included in the Collateral
and (iv) all proceeds of the foregoing.
"Restricted Investment" means, as to any Borrower (but
excluding such transactions between or among only the Borrowers), any
acquisition of property by such Borrower in exchange for cash or other
property, whether in the form of an acquisition of stock, debt, or other
indebtedness or obligation, or the purchase or acquisition of any other
property, or a loan, advance, capital contribution, or subscription, except
the following: (a) acquisitions of Equipment to be used in the business of
a Borrower so long as the acquisition costs thereof constitute Capital
Expenditures permitted hereunder; (b) acquisitions of Inventory in the
ordinary course of business of a Borrower; (c) acquisitions of current
assets acquired in the ordinary course of business of a Borrower; (d)
acquisitions of direct obligations of the United States of America, or any
agency thereof, or obligations guaranteed by the United States of America,
provided that such obligations mature within one year from the date of
acquisition thereof; (e) acquisitions of certificates of deposit maturing
within one year from the date of acquisition, bankers' acceptances,
Eurodollar bank deposits, or overnight bank deposits or money market
deposits to the extent that Agent has a perfected security interest in such
money market deposits, in each case issued by, created by, or deposited
with a bank or trust company organized under the laws of the United States
of America or any state thereof having capital and surplus aggregating at
least $100,000,000; (f) acquisitions of commercial paper given a rating of
"A2" or better by Standard & Poor's Corporation or "P2" or better by
Xxxxx'x Investors Service, Inc. and maturing not more than 90 days from the
date of creation thereof; (g) Hedge Agreements; (h) investments
constituting Permitted Debt; (i) ordinary course loans to employees,
officers and directors in an amount not to exceed $5,000,000 in aggregate
principal amount outstanding at any time; and (j) non-cash investments
received in connection with bankruptcy proceedings or workouts of
agreements with existing or normal customers or suppliers; (k) intercompany
loans to Subsidiaries that are not Borrowers in an aggregate principal
amount outstanding at any one time not to exceed $5,000,000 and so long as
the other terms and provisions governing such intercompany loans are
commercially reasonable; and (l) a recapitalization of Parent's foreign
Subsidiary, Honsberg Lamb Sonderwerk-Zeugmaschinen GmbH, provided such
recapitalization is completed on or before the Closing Date.
"Revolver Agent" means Bank of America, N.A., in its
capacity as agent under the Revolving Credit Agreement and its successors.
"Revolver Lender Collateral" means all of each Borrower's
assets other than the Designated Collateral and the proceeds thereof.
"Revolving Credit Agreement" means that certain Credit
Agreement, dated as of the date hereof, by and among the Borrowers, the
lenders from time to time a party thereto, and Revolver Agent, as in effect
on the Closing Date.
"Revolving Credit Documents" means the Revolving Credit
Agreement and each of the other agreements, instruments, and documents
executed in connection therewith.
"Security Agreement" means the Security Agreement of even
date herewith among Agent, UNOVA, Inc. a Delaware corporation, UNOVA
Industrial Automation Systems, Inc., a Delaware corporation, Intermec
Technologies Corporation, a Washington corporation, R & B Machine Tool
Company, a Michigan corporation, X.X. XxXxxxxx Company, a Michigan
corporation, and M M & E, Inc., a Nevada corporation, Intermec IP Corp. , a
Delaware corporation, and UNOVA IP Corp., a Delaware corporation.
"Solvent" means, when used with respect to any Person,
that at the time of determination:
(a) the assets of such Person, at a fair valuation, are
in excess of the total amount of its debts (including contingent
liabilities); and
(b) the present fair saleable value of its assets is
greater than its probable liability on its existing debts as such
debts become absolute and matured; and
(c) it is then able and expects to be able to pay its
debts (including contingent debts and other commitments) as they
mature; and
(d) it has capital sufficient to carry on its business as
conducted and as proposed to be conducted.
For purposes of determining whether a Person is Solvent,
the amount of any contingent liability shall be computed as the amount
that, in light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual
or matured liability.
"Subsidiary" of a Person means any corporation,
association, partnership, limited liability company, joint venture or other
business entity of which more than fifty percent (50%) of the voting stock
or other equity interests (in the case of Persons other than corporations),
is owned or controlled directly or indirectly by the Person, or one or more
of the Subsidiaries of the Person, or a combination thereof. Unless the
context otherwise clearly requires, references herein to a "Subsidiary"
refer to a Subsidiary of the Parent.
"SVBF" means Special Value Bond Fund, LLC.
"SVBFII" means Special Value Bond Fund II, LLC.
"SVIM" means Special Value Investment Management, LLC.
"Tangible Net Worth" means Parent's and its Subsidiaries'
total assets less total liabilities as determined in accordance with GAAP
and reported on the consolidated Financial Statements, plus (a) (i)
subordinated debt, (ii) any net loss or reduction in shareholder's equity
attributable to foreign exchange fluctuations after Xxxxx 00, 0000, (xxx)
any non-recurring, non-cash charges, including, any losses attributable to
the write-down of long-lived assets or impairment of intangibles (i.e.,
goodwill), stock based compensation and amortization of financing costs
after June 30, 2001, (iv) any non-recurring, non-cash losses attributable
to the sale of assets, including without limitation operating divisions or
subsidiaries, outside the ordinary course of business after June 30, 2001,
and (v) any non-recurring severance charges and restructuring expenses
attributable to the permanent reduction of employees or consolidation of
operations in an aggregate amount not exceeding $5,000,000 for the six (6)
month period ending December 31, 2001; and minus (b) without duplication
and to the extent included in determining such Consolidated Net Income for
such period, the sum of (i) intangibles, (ii) any gains attributable to the
sale of assets outside the ordinary course of business after June 30, 2001,
(iii) any net gain or increase in shareholder's equity attributable to
foreign exchange fluctuations after March 31, 2001, and (iv) any other
non-cash gains after June 30, 2001, all determined on a consolidated basis
in accordance with GAAP. For the purpose of the foregoing definition, a
"non-cash charge" is one which involves no cash expenditure in the current
Fiscal Year and a "non-cash gain" is one which involves no cash receipt in
the current Fiscal Year.
"Taxes" means any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities
with respect thereto, excluding, in the case of each Lender and the Agent,
such taxes (including income taxes or franchise taxes) as are imposed on or
measured by the Agent's or each Lender's net income in any the jurisdiction
(whether federal, state or local and including any political subdivision
thereof) under the laws of which such Lender or the Agent, as the case may
be, is organized or maintains a lending office.
"Term Commitment" means, with respect to each Lender, the
principal amount set forth beside such Lender's name as its "Term
Commitment" on Schedule 1.2 or on the signature page of the Assignment and
Acceptance pursuant to which such Lender became a Lender hereunder in
accordance with the provisions of Section 11.2, as the Term Loan may be
adjusted from time to time in accordance with the provisions of Section
11.2, and "Term Commitments" means, collectively, the aggregate amount of
the term commitments of all of the Lenders.
"Term Loan" has the meaning specified in Section 1.2.
"Term Note" and "Term Notes" have the respective meanings
specified in Section 1.2.
"UCC" means the Uniform Commercial Code, as in effect
from time to time, of the State of New York or of any other state the laws
of which are required as a result thereof to be applied in connection with
the issue of perfection of security interests.
"United States" means the United States of America.
"Unfunded Pension Liability" means the excess of a
Pension Plan's benefit liabilities under Section 4001(a)(16) of ERISA, over
the current value of that Pension Plan's assets, determined in accordance
with the assumptions used for funding the Pension Plan pursuant to Section
412 of the Code for the applicable plan year.
Accounting Terms. Any accounting term used in the
Agreement shall have, unless otherwise specifically provided herein, the
meaning customarily given in accordance with GAAP, and all financial
computations in the Agreement shall be computed, unless otherwise
specifically provided therein, in accordance with GAAP as consistently
applied and using the same method for inventory valuation as used in the
preparation of the Financial Statements.
Interpretive Provisions. (a) The meanings of defined
terms are equally applicable to the singular and plural forms of the
defined terms.
(b) The words "hereof," "herein," "hereunder" and similar
words refer to the Agreement as a whole and not to any particular provision
of the Agreement; and Subsection, Section, Schedule and Exhibit references
are to the Agreement unless otherwise specified.
(c) (i) The term "documents" includes any and all
instruments, documents, agreements, certificates, indentures, notices and
other writings, however evidenced.
(ii) The term "including" is not limiting and means
"including without limitation."
(iii) In the computation of periods of time from a
specified date to a later specified date, the word "from" means
"from and including," the words "to" and "until" each mean "to but
excluding" and the word "through" means "to and including."
(iv) The word "or" is not exclusive.
(d) Unless otherwise expressly provided herein, (i)
references to agreements (including the Agreement) and other contractual
instruments shall be deemed to include all subsequent amendments and other
modifications thereto, but only to the extent such amendments and other
modifications are not prohibited by the terms of any Loan Document, and
(ii) references to any statute or regulation are to be construed as
including all statutory and regulatory provisions consolidating, amending,
replacing, supplementing or interpreting the statute or regulation.
(e) The captions and headings of the Agreement and other
Loan Documents are for convenience of reference only and shall not affect
the interpretation of the Agreement.
(f) The Agreement and other Loan Documents may use
several different limitations, tests or measurements to regulate the same
or similar matters. All such limitations, tests and measurements are
cumulative and shall each be performed in accordance with their terms.
(g) For purposes of Section 9.1, a breach of a financial
covenant contained in Sections 7.22 through 7.25 shall be deemed to have
occurred as of any date of determination thereof by the Agent or as of the
last day of any specified measuring period, regardless of when the
Financial Statements reflecting such breach are delivered to the Agent.
(h) The Agreement and the other Loan Documents are the
result of negotiations among and have been reviewed by counsel to the
Agent, the Parent, the Borrowers and the other parties, and are the
products of all parties. Accordingly, they shall not be construed against
the Lenders or the Agent merely because of the Agent's or Lenders'
involvement in their preparation.
EXHIBIT A
FORM OF TERM NOTE
EXHIBIT B
NOTICE OF CONVERSION
Date: __________, 200_
To: Special Value Investment Management, LLC as Agent for the Lenders
to the Loan Agreement dated as of July 12, 2001 (as extended,
renewed, amended or restated from time to time, the "Loan
Agreement") among UNOVA, Inc., a Delaware corporation ("Parent"),
each of Parent's subsidiaries identified on the signature pages
thereof (such subsidiaries, together with Parent, each a
"Borrower" and collectively, the "Borrowers") certain Lenders
which are signatories thereto and Special Value Investment
Management, LLC, as Agent
Ladies and Gentlemen:
The undersigned, UNOVA, Inc., a Delaware corporation, as
agent for the Borrowers (the "Parent"), refers to the Loan Agreement, the
terms defined therein being used herein as therein defined, and hereby
gives you notice irrevocably of the conversion of that portion of the Term
Loan specified herein, that:
1. The Conversion Date is ______________, 200_.
2. The aggregate amount of the Term Loan to be converted
is $ .
3. The portion of the Term Loan referenced above is to be
converted into a LIBOR Rate Loan.
The undersigned hereby certifies that the following
statements are true on the date hereof, and will be true on the proposed
Conversion Date, before and after giving effect thereto and to the
application of the proceeds therefrom:
(a) The representations and warranties of each Borrower
contained in the Loan Agreement are correct in all material
respects on and as of the date of such extension of credit as
though made on and as of such date, other than any such
representation or warranty which relates to a specified prior date
and except to the extent the Agent and the Lenders have been
notified in writing by the Borrowers that any representation or
warranty is not correct and the Agent and Majority Lenders have
explicitly waived in writing compliance with such representation
or warranty; and
(b) Default or Event of Default has occurred and is
continuing, or would result from such proposed conversion.
UNOVA, INC., a Delaware corporation,
as agent for the Borrowers
By:_________________________________
Title: _____________________________
EXHIBIT C
[FORM OF] ASSIGNMENT AND ACCEPTANCE AGREEMENT
This ASSIGNMENT AND ACCEPTANCE AGREEMENT (this
"Assignment and Acceptance") dated as of ____________________, 200_ is made
between ______________________________ (the "Assignor") and
__________________________ (the "Assignee").
RECITALS
WHEREAS, the Assignor is party to that certain Loan
Agreement dated as of July 12, 2001 (as amended, amended and restated,
modified, supplemented or renewed, the "Loan Agreement") among UNOVA, Inc.,
a Delaware corporation ("Parent"), each of Parent's Subsidiaries identified
on the signature pages thereof (such Subsidiaries, together with Parent,
each a "Borrower" and collectively, jointly and severally, the
"Borrowers"), the several financial institutions from time to time party
thereto (including the Assignor, the "Lenders"), and Special Value
Investment Management, LLC, as agent for the Lenders (the "Agent"). Any
terms defined in the Loan Agreement and not defined in this Assignment and
Acceptance are used herein as defined in the Loan Agreement;
WHEREAS, as provided under the Loan Agreement, the
Assignor has made a term loan (the "Loan") to the Borrowers; and
WHEREAS, the Assignor wishes to assign to the Assignee
[part of the] [all] rights and obligations of the Assignor under the Loan
Agreement in respect of its Loan in an amount equal to $__________ (the
"Assigned Amount") on the terms and subject to the conditions set forth
herein and the Assignee wishes to accept assignment of such rights and to
assume such obligations from the Assignor on such terms and subject to such
conditions;
NOW, THEREFORE, in consideration of the foregoing and the
mutual agreements contained herein, the parties hereto agree as follows:
1. Assignment and Acceptance.
(a) Subject to the terms and conditions of this
Assignment and Acceptance, (i) the Assignor hereby sells, transfers and
assigns to the Assignee, and (ii) the Assignee hereby purchases, assumes
and undertakes from the Assignor, without recourse and without
representation or warranty (except as provided in this Assignment and
Acceptance) __% (the "Assignee's Percentage Share") of (A) the Loan of the
Assignor and (B) all related rights, benefits, obligations, liabilities and
indemnities of the Assignor under and in connection with the Loan Agreement
and the Loan Documents.
(b) With effect on and after the Effective Date (as
defined in Section 5 hereof), the Assignee shall be a party to the Loan
Agreement and succeed to all of the rights and be obligated to perform all
of the obligations of a Lender under the Loan Agreement, including the
requirements concerning confidentiality and the payment of indemnification,
with a Loan in an amount equal to the Assigned Amount. The Assignee agrees
that it will perform in accordance with their terms all of the obligations
which by the terms of the Loan Agreement are required to be performed by it
as a Lender. It is the intent of the parties hereto that the Loan of the
Assignor shall, as of the Effective Date, be reduced by an amount equal to
the Assigned Amount and the Assignor shall relinquish its rights and be
released from its obligations under the Loan Agreement to the extent such
obligations have been assumed by the Assignee; provided, however, the
Assignor shall not relinquish its rights under Sections 12.7 and 12.18 of
the Loan Agreement to the extent such rights relate to the time prior to
the Effective Date.
(c) After giving effect to the assignment and assumption
set forth herein, on the Effective Date the Assignee's Loan will be
$__________.
(d) After giving effect to the assignment and assumption
set forth herein, on the Effective Date the Assignor's Loan will be
$__________.
2. Payments.
(a) As consideration for the sale, assignment and
transfer contemplated in Section 1 hereof, the Assignee shall pay to the
Assignor on the Effective Date in immediately available funds an amount
equal to $__________, representing the Assignee's Pro Rata Share of the
principal amount of the Loan.
(b) The Assignee further agrees to pay to the Agent a
processing fee in the amount specified in Section 11.2(a) of the Loan
Agreement.
3. Reallocation of Payments.
Any interest, fees and other payments accrued to the
Effective Date with respect to the Loan shall be for the account of the
Assignor. Any interest, fees and other payments accrued on and after the
Effective Date with respect to the Assigned Amount shall be for the account
of the Assignee. Each of the Assignor and the Assignee agrees that it will
hold in trust for the other party any interest, fees and other amounts
which it may receive to which the other party is entitled pursuant to the
preceding sentence and pay to the other party any such amounts which it may
receive promptly upon receipt.
4. Independent Credit Decision.
The Assignee (a) acknowledges that it has received a copy
of the Loan Agreement and the Schedules and Exhibits thereto, together with
copies of the most recent financial statements of the Borrowers, and such
other documents and information as it has deemed appropriate to make its
own credit and legal analysis and decision to enter into this Assignment
and Acceptance; and (b) agrees that it will, independently and without
reliance upon the Assignor, the Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the time,
continue to make its own credit and legal decisions in taking or not taking
action under the Loan Agreement.
5. Effective Date; Notices.
(a) As between the Assignor and the Assignee, the
effective date for this Assignment and Acceptance shall be __________, 200_
(the "Effective Date"); provided that the following conditions precedent
have been satisfied on or before the Effective Date:
(i) this Assignment and Acceptance shall be executed and
delivered by the Assignor and the Assignee;
[(ii) the consent of the Agent required for an effective
assignment of the Assigned Amount by the Assignor to the Assignee
shall have been duly obtained and shall be in full force and
effect as of the Effective Date;]
(iii) the Assignee shall pay to the Assignor all amounts
due to the Assignor under this Assignment and Acceptance;
[(iv) the Assignee shall have complied with Section 11.2
of the Loan Agreement (if applicable);]
(v) the processing fee referred to in Section 2(b) hereof
and in Section 11.2(a) of the Loan Agreement shall have been paid
to the Agent; and
(b) Promptly following the execution of this Assignment
and Acceptance, the Assignor shall deliver to the Parent and the Agent for
acknowledgment by the Agent, a Notice of Assignment in the form attached
hereto as Schedule 1.
6. [Agent. [INCLUDE ONLY IF ASSIGNOR IS AGENT]
(a) The Assignee hereby appoints and authorizes the
Assignor to take such action as agent on its behalf and to exercise such
powers under the Loan Agreement as are delegated to the Agent by the
Lenders pursuant to the terms of the Loan Agreement.
(b) The Assignee shall assume no duties or obligations
held by the Assignor in its capacity as Agent under the Loan Agreement.]
7. Withholding Tax.
The Assignee (a) represents and warrants to the Lender,
the Agent and the Borrowers that under applicable law and treaties no tax
will be required to be withheld by the Lender with respect to any payments
to be made to the Assignee hereunder, (b) agrees to furnish (if it is
organized under the laws of any jurisdiction other than the United States
or any State thereof) to the Agent and the Borrowers prior to the time that
the Agent or the Borrowers are required to make any payment of principal,
interest or fees hereunder, duplicate executed originals of either U.S.
Internal Revenue Service Form W-8ECI or U.S. Internal Revenue Service Form
W-8BEN (wherein the Assignee claims entitlement to the benefits of a tax
treaty that provides for a complete exemption from U.S. federal income
withholding tax on all payments hereunder) and agrees to provide new Forms
W-8ECI or W-8BEN upon the expiration of any previously delivered form or
comparable statements in accordance with applicable U.S. law and
regulations and amendments thereto, duly executed and completed by the
Assignee, and (c) agrees to comply with all applicable U.S. laws and
regulations with regard to such withholding tax exemption.
8. Representations and Warranties.
(a) The Assignor represents and warrants that (i) 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 Lien or other
adverse claim; (ii) it is duly organized and existing and it has the full
power and authority to take, and has taken, all action necessary to execute
and deliver this Assignment and Acceptance and any other documents required
or permitted to be executed or delivered by it in connection with this
Assignment and Acceptance and to fulfill its obligations hereunder; (iii)
no notices to, or consents, authorizations or approvals of, any Person are
required (other than any already given or obtained) for its due execution,
delivery and performance of this Assignment and Acceptance, and apart from
any agreements or undertakings or filings required by the Loan Agreement,
no further action by, or notice to, or filing with, any Person is required
of it for such execution, delivery or performance; and (iv) this Assignment
and Acceptance has been duly executed and delivered by it and constitutes
the legal, valid and binding obligation of the Assignor, enforceable
against the Assignor in accordance with the terms hereof, subject, as to
enforcement, to bankruptcy, insolvency, moratorium, reorganization and
other laws of general application relating to or affecting creditors'
rights and to general equitable principles.
(b) The Assignor makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Loan Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Loan Agreement or any other instrument or document furnished
pursuant thereto. The Assignor makes no representation or warranty in
connection with, and assumes no responsibility with respect to, the
solvency, financial condition or statements of the Borrower, or the
performance or observance by the Borrowers, of any of its respective
obligations under the Loan Agreement or any other instrument or document
furnished in connection therewith.
(c) The Assignee represents and warrants that (i) it is
duly organized and existing and it has full power and authority to take,
and has taken, all action necessary to execute and deliver this Assignment
and Acceptance and any other documents required or permitted to be executed
or delivered by it in connection with this Assignment and Acceptance, and
to fulfill its obligations hereunder; (ii) no notices to, or consents,
authorizations or approvals of, any Person are required (other than any
already given or obtained) for its due execution, delivery and performance
of this Assignment and Acceptance; and apart from any agreements or
undertakings or filings required by the Loan Agreement, no further action
by, or notice to, or filing with, any Person is required of it for such
execution, delivery or performance; (iii) this Assignment and Acceptance
has been duly executed and delivered by it and constitutes the legal, valid
and binding obligation of the Assignee, enforceable against the Assignee in
accordance with the terms hereof, subject, as to enforcement, to
bankruptcy, insolvency, moratorium, reorganization and other laws of
general application relating to or affecting creditors' rights and to
general equitable principles; and (iv) it is an Eligible Assignee.
9. Further Assurances.
The Assignor and the Assignee each hereby agree to
execute and deliver such other instruments, and take such other action, as
either party may reasonably request in connection with the transactions
contemplated by this Assignment and Acceptance, including the delivery of
any notices or other documents or instruments to the Borrowers or the
Agent, which may be required in connection with the assignment and
assumption contemplated hereby.
10. Miscellaneous.
(a) Any amendment or waiver of any provision of this
Assignment and Acceptance shall be in writing and signed by the parties
hereto. No failure or delay by either party hereto in exercising any right,
power or privilege hereunder shall operate as a waiver thereof and any
waiver of any breach of the provisions of this Assignment and Acceptance
shall be without prejudice to any rights with respect to any other or
further breach thereof.
(b) All payments made hereunder shall be made without any
set-off or counterclaim.
(c) The Assignor and the Assignee shall each pay its own
costs and expenses incurred in connection with the negotiation,
preparation, execution and performance of this Assignment and Acceptance.
(d) This Assignment and Acceptance may be executed in any
number of counterparts and all of such counterparts taken together shall be
deemed to constitute one and the same instrument.
(e) THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK. The
Assignor and the Assignee each irrevocably submits to the non-exclusive
jurisdiction of any State or Federal court sitting in [ ] over any suit,
action or proceeding arising out of or relating to this Assignment and
Acceptance and irrevocably agrees that all claims in respect of such action
or proceeding may be heard and determined in such [ ] State or Federal
court. Each party to this Assignment and Acceptance hereby irrevocably
waives, to the fullest extent it may effectively do so, the defense of an
inconvenient forum to the maintenance of such action or proceeding.
(f) THE ASSIGNOR AND THE ASSIGNEE EACH HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER,
OR IN CONNECTION WITH THIS ASSIGNMENT AND ACCEPTANCE, THE LOAN AGREEMENT,
ANY RELATED DOCUMENTS AND AGREEMENTS OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, OR STATEMENTS (WHETHER ORAL OR WRITTEN).
IN WITNESS WHEREOF, the Assignor and the Assignee have
caused this Assignment and Acceptance to be executed and delivered by their
duly authorized officers as of the date first above written.
[ASSIGNOR]
By: _____________________________
Title:___________________________
Address:_________________________
[ASSIGNEE]
By:_____________________________
Title:__________________________
Address:________________________
SCHEDULE 1
to
ASSIGNMENT AND ACCEPTANCE
NOTICE OF ASSIGNMENT AND ACCEPTANCE
_______________, 200_
Special Value Investment Management, LLC
__________________________________
__________________________________
Attn: ____________________________
Re: [Name and Address of Borrower]
Ladies and Gentlemen:
We refer to the Loan Agreement dated as of July 12, 2001
(as amended, amended and restated, modified, supplemented or renewed from
time to time the "Loan Agreement") among UNOVA, Inc., a Delaware
corporation ("Parent"), each of Parent's Subsidiaries identified on the
signature pages thereof (such Subsidiaries, together with Parent, each a
"Borrower" and collectively, the "Borrowers"), the Lenders referred to
therein and Special Value Investment Management, LLC, as agent for the
Lenders (the "Agent"). Terms defined in the Loan Agreement are used herein
as therein defined.
1. We hereby give you notice of, and request your consent
to, the assignment by __________________ (the "Assignor") to
_______________ (the "Assignee") of _____% of the right, title and interest
of the Assignor in and to the Loan Agreement (including the right, title
and interest of the Assignor in and to the Term Loan of the Assignor (the
"Assignment and Acceptance"). We understand and agree that the Assignor's
portion of the Term Loan, as of , 200 , is $ ___________.
2. The Assignee agrees that, upon receiving the consent
of the Agent and, if applicable, the Parent to such assignment, the
Assignee will be bound by the terms of the Loan Agreement as fully and to
the same extent as if the Assignee were the Lender originally holding such
interest in the Loan Agreement.
3. The following administrative details apply to the
Assignee:
(A) Notice Address:
Assignee name:_______________________________
Address:_____________________________________
_____________________________________
_____________________________________
Attention:___________________________________
Telephone: (___)____________________________
Telecopier: (___)___________________________
Telex (Answerback): _________________________
(B) Payment Instructions:
Account No.: ________________________________
At:_______________________________
_______________________________
_______________________________
Reference: _______________________________
Attention: _______________________________
4. You are entitled to rely upon the representations,
warranties and covenants of each of the Assignor and Assignee contained in
the Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have
caused this Notice of Assignment and Acceptance to be executed by their
respective duly authorized officials, officers or agents as of the date
first above mentioned.
Very truly yours,
[NAME OF ASSIGNOR]
By: ________________________________
Title:______________________________
[NAME OF ASSIGNEE]
By:_________________________________
Title:______________________________
ACKNOWLEDGED AND ASSIGNMENT
CONSENTED TO:
Special Value Investment Management, LLC
as Agent
By:_____________________________________
Title:__________________________________
EXHIBIT D
FORM OF SECTION 4.1(d) CERTIFICATE
Reference is hereby made to the Loan Agreement dated as of July 12, 2001,
among Unova, Inc. and its Subsidiaries party thereto, the lenders named
therein, and Special Value Investment Management, LLC, as the agent for
such lenders (as amended, restated, modified and/or supplemented from time
to time, the "Loan Agreement"). Pursuant to the provisions of Section
4.1(d) of the Loan Agreement, the undersigned hereby certifies that it is
not a "bank" as such term is used in Section 881(c)(3)(A) of the Internal
Revenue Code of 1986, as amended.
[NAME OF LENDER]
By: ___________________________
Title: __________________________
Date:_______________
SCHEDULE 1.2
COMMITMENTS
Lender Term Commitment Pro Rata Share
------ --------------- --------------
(3 decimals)
Xxxxxxxxxx Securities, LLC $63,000,000 84%
Massachusetts Mutual Life Insurance $6,250,000 8.33%
Company
MassMutual High Yield Partners II, LLC $5,750,000 7.67%
100%
----
